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High Court, Queen’s Bench Division
23 October 2015
The claimant had an epidural during childbirth in January 2004 and suffered immediate pain, she was subsequently diagnosed with hydrocephalus. She instructed solicitors to investigate but following a number of failed attempts for an MRI scan to be undertaken they advised her to discontinue her claim in August 2007 with limitation expiring in September 2007. Following a successful MRI scan in 2010 she was diagnosed with arachnoiditis and instructed a new firm of solicitors whose instructed medical expert in April 2012 concluded this to have been caused by a contaminant in the epidural. She brought a claim for professional negligence against her previous solicitors for loss of chance and breach of contract and considered her date of knowledge for the clinical negligence to be April 2012. It was held that the claim for professional negligence was within the 6 year limitation period and not statute bared but that the claim for breach of contract was. Additionally, it was held that the claimant had a requisite level of knowledge of the clinical negligence from 2004 but that it was equitable for the action to proceed under s 33 of the Limitation Act 1980 (‘LA 1980’).
On 5 January 2004 the claimant was given an epidural during childbirth. This led to immediate pain and she was later diagnosed as having developed hydrocephalus. She then had a ventriculo-peritoneal shunt inserted but has continued to suffer neurological symptoms in her lower spine and legs since the epidural resulting in a significant disability. Her claim is that these injuries were as a result the negligence of the anaesthetic team in administering the epidural.
The claimant instructed the first defendant in June 2004 to investigate this negligence. Their medical expert advised in April 2006 that it was likely that the damage had been caused by the epidural and recommended that the claimant undergo MRI scans to her spine. Many attempts were made to arrange these scans but the claimant either failed to attend or was in too much pain to sit through them. As a result, no scans were successfully carried out.
Extensions to limitation were obtained by the first defendant resulting in it being put back to 7 September 2007. However, as the medical experts felt unable to support a case for negligence without the MRI scans, the first defendant advised the claimant to discontinue her claim and these instructions were received on 15 August 2007.
The claimant successfully underwent an MRI scan in August 2010 which resulted in a diagnosis of arachnoiditis. This was the first time the claimant had been aware of this condition and the point that she retained her current solicitors. A medical expert was then instructed who concluded on 19 April 2012 that the probable cause of this condition was a contaminant in the epidural which was negligence on the part of the second defendant.The claimant issued proceedings against the first defendant on 2 September 2013 alleging that due to their professional negligence she had lost the chance to recover damages from the second defendant. The claimant then issued proceedings against the second defendant on 28 August 2014 on the basis that her date of knowledge was 19 April 2012 following the expert report.
The first defendant contested that as the date of knowledge was 19 April 2012 no loss of chance had occurred. Additionally they contested that six years had passed and therefore any claim was statue barred under LA 1980.
The second defendant also contested that the claim was statute barred under LA 1980 as the believed that the claimant’s date of knowledge was January 2004 when she first attributed her injury to the epidural.
It was held, that in relation to the claimant’s date of knowledge of the clinical negligence, she had not been ‘barking up the wrong tree’ prior to the medical report in April 2012 and that she had had requisite knowledge for the purposes of sections 11 and 14 of LA 1980 due to her firm belief from the outset that her injury had been caused by the epidural.
However, the judge then considered that it was equitable for the claimant’s action against the second defendant’s to proceed pursuant to s 33, LA 1980 as she had not been at fault for any significant part of the delay and her evidence would be no less cogent because of it. Furthermore, in relation to the action against the first defendant, it was held that the claim of loss of chance was not statute barred as this had occurred on 7 September 2007 when limitation had expired. However, the claim for breach of contract was dismissed due to the cause of action being on 9 August 2007 when the advice to discontinue the claim had been given.
This cause highlights the complexities in clinical negligence claims which can give rise to a whole host of issues.Sandra De Souza and Tom Dickinson, Anthony Gold