Case: Failure to recognize respiratory distress resulting in death

The Claimant, Annie Mathews, was born on 26 December 1945. Her daughter, Katie Victoria Mathews, born on 1 October 1986, suffered from cerebral palsy, spastic quadriplegia and epilepsy. She was unable to talk and was fed through a gastrostomy tube. The Claimant was her principal carer and was devoted to her. She and Katie lived together in a flat in Brentwood, Essex. They were paid State Benefits including Income Support.

Katie suffered frequently from very severe chest infections. On 1 August 2004, while at home, she became blue around her lips and began gasping. An ambulance was called and the Claimant gave Katie some oxygen she had in the flat. The ambulance attended about 20 minutes later and the ambulance crew gave Katie more oxygen and suctioned her. She was then taken by ambulance, with the Claimant, to the A&E Department at Oldchurch Hospital, arriving at about 12:14. She had been on oxygen supplied by the ambulance crew for about 1 hour before she arrived in A&E. She was placed on a stretcher and given oxygen in the department at the Claimant's request. She was subsequently triaged at 12:20. Her oxygen saturations were recorded as 92% in air. She was then given more oxygen.

She then saw a junior doctor who checked Katie's oxygen levels and she found that they were 98%. At the request of the Claimant, the doctor reassessed Katie's oxygen levels after she had been breathing air, not oxygen, and the level remained at 98%.

The Claimant gave the junior doctor a full history of Katie and provided details of how she looked after her at home, including chest physiotherapy and suctioning. Katie's blood pressure was not taken, and no blood or sputum was taken for analysis. No chest X-rays were taken and Katie was not referred to another doctor. She was discharged and taken home by ambulance, arriving there at about 17:30. The Claimant then performed postural drainage and gave Katie a nebulizer via a face mask and kept her under constant observation. She gave her oxygen, using the supply she had at home for this purpose. She also gave her nebulizers at various times. In between the nebulizer sessions the Claimant gave Katie more oxygen and continued to keep her under constant observation.

Katie eventually went to sleep and the Claimant held her hand but shortly after 02:00, while being nebulized, Katie's hand moved and it was clear she was struggling for breath and was going blue. The Claimant immediately gave her two puffs of Ventolin and an ambulance was called. Katie's mouth was opening and closing as she struggled for breath and her eyes then became fixed and staring. Her chest did not move and she went limp. The operator dealing with the emergency call for the ambulance gave the Claimant instructions regarding performing CPR. A paramedic arrived by car and was quickly joined by an ambulance crew and Katie was then taken to Oldchurch Hospital, arriving there at about 03:13. She was taken to the resuscitation room and shortly afterwards the Claimant was informed that Katie had died.

The postmortem report confirmed that both Katie's lungs were congested and that there was bilateral bronchopneumonic consolidation in the right and left lungs and the cause of death was stated to be:

bronchopneumonia;

The Claimant sought legal advice shortly before expiry of the limitation period. She had the benefit of before-the-event legal insurance cover and the insurers agreed to the instruction of firm who were not on the insurers' panel.

Investigations were then urgently carried out. A report was obtained from an A&E consultant who confirmed that the care received in the A&E Department at Oldchurch Hospital was substandard and that, in the circumstances, Katie should have been admitted to hospital at the time and appropriately treated. A report was obtained from a chest physician who supported the case so far as causation was concerned, and he also advised that if Katie had survived, then, in the light of her chest problems (she suffered from frequent chest infections), she would have survived for approximately a further 4 years.

A psychiatric report was obtained in respect of the Claimant and in the opinion of the psychiatrist the Claimant continued to suffer from a prolonged and relatively severe form of adjustment disorder which he considered was derived directly from the circumstances surrounding the loss of Katie on 2 August 2004. He recommended appropriate therapy. The Psychiatrist's opinion was that with appropriate therapy the symptoms would substantially resolve in the course of the next 6–12 months but if she did not respond to treatment that would indicate a prolonged adjustment reaction. He further advised that in all the circumstances resolution of the litigation as early as possible would be in her best interests.

Proceedings were then issued in the Harlow County Court on 26 July 2007. A conference took place with Counsel and the experts. The appropriate proceedings, including Particulars of Claim were then served. The allegations of negligence made related to the care Katie had received from the junior doctor in A&E at Oldchurch Hospital and included the following:

She failed to recognize the signs of respiratory distress, in particular:

That low oxygen levels had persisted throughout the ambulance journey and had been recorded on arrival in hospital at 92%;

It was the Claimant's case that she had suffered psychiatric injury as a result of attending to Katie while she was dying and/or being present at hospital outside the resuscitation room and experiencing the aftermath of Katie's death and a supportive psychiatric report was served.

The claim was pursued under The Law Reform (Miscellaneous Provisions) Act 1934 and The Fatal Accidents Act 1976, plus the Claimant's own claim for psychiatric injury as a secondary victim. The claim included a claim for financial dependency based on the Benefits being received.

A Defence was served admitting that a chest X-ray should have been taken in A&E and that such an X-ray would on the balance of probabilities have shown consolidation of Katie's lungs. Katie would then have been referred to a chest physician and admitted to the medical ward where she would have been treated with intravenous antibiotics and fluids and further that if those steps had been taken she probably would have survived. The Defence made no admissions with regard to the claim for psychiatric injury and a Counter Schedule served at that stage made limited concessions in relation to the other aspects of the claim.

The case was subsequently listed for trial at the Cambridge County Court for hearing on 12 January 2009.

An updating psychiatric report was served on behalf of the Claimant together with a report from a chest physician instructed in respect of Katie's life expectancy. The Defendants served reports from a chest physician which put Katie's life expectancy at 2 years and from a psychiatrist which said that the Claimant was suffering from a grief reaction which had been caused, not by the circumstances surrounding Katie's death, but by the death itself. A schedule of loss and counter schedule were served.

The calculations in respect of damages in this case, on the assumption that the Claimant's arguments would have been accepted with regard to life expectancy and the claim for psychiatric injury, can be broken down, very approximately, as follows: Funeral expenses

£3620

There were then negotiations, including an exchange of Part 36 Offers, between solicitors and the Claimants allowed a discount to achieve settlement and the claim was settled for total damages of £55,000, a Consent Order being made in respect of this on 10 November 2008.

This case is of particular interest in the light of the following:

While the Claimant had legal expense cover this was not considered sufficient for both the Claimant's costs and the Defendant's costs. In the circumstances a very careful eye had to be kept on the costs position. The Defendant's solicitors cooperated in providing details of their costs. An application for legal aid was made, and legal aid was granted, when it was clear that the cover had been practically exhausted. The Legal Services Commission was not prepared to entertain an application for legal aid until this situation had been reached;