Kristina James* v Epsom & St Helier Hospital NHS Trust
Kristina had recently given birth to her second child, and had developed post-partum HELLP syndrome so she was put on dialysis as an emergency procedure after suffering renal failure. The line was temporarily put into her neck and she was subsequently discharged as an outpatient having to attend for dialysis on a regular basis at the hospital. When she asked the Consultant if the line in her neck could now be taken out the Consultant instructed a nurse to deal with this. The nurse took her to a room and simply pulled out the dialysis line which was not the usual and accepted procedure. A few moments later Kristina collapsed suffering from a stroke. She suffered a brain injury, the consequences of which included short-term memory, personality change, epilepsy, visual perception and other cognitive impairments. Kristina initially instructed another solicitor who did not specialise in clinical negligence and therefore Barlow Robbins agreed to take over the case. At that time Kristina was entitled to obtain Legal Aid to pursue the clinical negligence case.
It was alleged that she suffered the stroke because of the way that the line had been removed from her neck. It was bad practice to simply pull the line out when the patient was not lying down. It was suggested that the most likely cause for the stroke was that an air embolism had entered the blood system and travelled through the heart up to the brain. For the claim to be successful it had to be proved that the air embolism could have passed through the heart due to a hole being present. The Defendants strenuously denied liability and they raised at least 5 other explanations for the stroke. Proceedings were issued and the case was listed for a 5 day hearing.
James Badenoch QC was instructed to advise in a conference with various medical experts who explained the intricacies of micro bubbles by-passing the capillaries in the lungs and moving from one side of the heart to the other. It was then suggested by one of the experts that Kristina should undergo a test called a TCD (Transcranial Doppler Sonography) which basically introduces air bubbles into the blood system to see whether they pass through the heart and move up to the brain. It was a very frightening procedure but the Claimant was persuaded by her solicitor, Caroline Flashman, to undergo this test which would provide vital evidence to prove the case. Caroline attended the hospital with the Kristina when she underwent the procedure which proved positive. Even after the procedure the Defendants still would not accept liability. However an offer was then made of £500,000.00 in settlement. Kristina was advised to accept the offer by her legal team because of the significant risks of going to court and not succeeding in liability or not beating the offer. Caroline Flashman however first suggested that she quickly tried to increase the offer by negotiation with the Defendant’s solicitors and within days Caroline secured a final settlement of £875,000.00 three weeks before the trial.
The case was extremely complex and had issues running throughout the claim, of limitation (the claim had to be issued in the court within 3 years of the date when Kristina realised something had gone wrong and the hospital may have been negligent), liability (negligence or breach of duty of care) and causation (that it was indeed the removal of the line and an air embolism which had caused the stroke) and not one of the other alternatives. The medical issues were very difficult to understand. The risk of not beating the offer made only three weeks before trial was significant but with tough negotiating skills it is possible to push the Defendants up significantly to achieve settlements which are much higher than anticipated.
Quote from Leading Counsel James Badenoch QC
“I have worked with Caroline Flashman on a very complex case with medical practice, physiology and cardiological and neurological aspects to it. She conducted it with great skill legally confident robustness in her dealings with the other side, and tact and humanity towards our brain damaged client. I commend her strongly. I was very glad to have her as part of the team”.
*Surname amended to maintain privacy