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ARTICLE
Why I do the job that I do –
the reflections of a clinical negligence lawyer
Kym Provan, Head of the Enable Law Southampton Clinical Negligence practice, recently visited one of her former clients, whose claim she settled around two years ago. In our roles we don’t always get the opportunity to visit with our clients after the litigation process is over. Many of them want to leave this chapter of their lives behind them as part of rebuilding their lives, which is something we always respect.
Following her visit, Kym decided to share in her own words a little bit about the case and how the visit went, to inspire solicitors considering specialising in clinical negligence and existing peers.
Introducing Tom, a young boy with cerebral palsy
I had the huge privilege last week of being able to go out and visit a former client of mine, whose case concluded over 2 years ago. I wanted to share how life has progressed “post-litigation”.
We obtained an anonymity Order to protect my client’s privacy at the time, so obviously I can’t use my client’s real name or refer to too many specific details. For present purposes I will call my client Tom.
Tom was born with cerebral palsy because of delays by the hospital at the time of his birth in recognising that he was in difficulty and needed to be delivered by emergency caesarean section. The delay meant that his brain was starved of oxygen prior to his birth, and he was born with a significant brain injury.
Tom’s brain injury affected all aspects of his life. He was unable to walk unaided and as he became older and bigger, he became more reliant on a wheelchair to get around. Tom suffers from muscle spasms which make his fine motor control difficult, so holding a pen or even a joystick control, is very difficult for him.
Tom’s speech has also been severely affected. He is non-verbal and reliant on an Eye-Gaze computer. He struggled at school and his frustration at not being understood meant that he could become very distressed at times. He has always been an extremely determined and independent spirit, but his injuries meant that he was often exhausted.
Tom’s parents fought tirelessly on his behalf (and still do!) to ensure that he received as much help from the state and charity sector as possible. However, this was an uphill battle and life was far from easy.
Tom’s legal case
Tom was 13 years old before the hospital where he had been born admitted that failings in their care had caused Tom’s cerebral palsy.
As soon as we had the admission, we secured a substantial interim payment and the family were able to start putting things in place to make their lives just a little bit easier. Better equipment was purchased, a case manager appointed, and for the first time, Tom was able to access all of the therapeutic input that he needed to maximise his level of independence.
A key step we took once funds were available, was to appoint a Special Educational Needs lawyer. Sarah Palmer, partner at Enable Law, was instructed on Tom’s behalf to appeal his EHCP and the school placement that the local authority had proposed. This was successful and Tom was able to transfer to a much more suitable specialist school, where he had a real peer group of children with a variety of complex needs to communicate and learn with, and to forge friendships.
Tom flourished at his new school. Within quite a short period of time it became clear that he was far more cognitively able than had previously been thought, because he was now being taught in an environment that stimulated him and met his needs, and was using learning techniques that he could follow.
Expert evidence obtained during the litigation indicated that Tom was unlikely to ever be in a position where he was able to manage his own financial affairs, and so an application was made to the Court of Protection to appoint the Foot Anstey Trust Corporation as Tom’s Deputy. Alison McClure and Hannah Loosemoore from the Enable Law Mental Capacity team worked closely with the family to make sure that whilst Tom’s money was protected, they, and Tom in particular, would always be at the centre of any decision making.
Another key step was finding a more suitable home. The family’s home at the time was far too small to meet Tom’s needs and they had no space to allow them to have carers into the home to help with his personal care. It took some time to work out exactly what Tom would need in a property. It took considerably longer to find an appropriate property that could be adapted and to secure another interim payment, to be able to complete the purchase.
However, this was ultimately achieved, and architects were appointed to design a home that would truly meet Tom’s needs for the rest of his life.
Shortly after the move to both a new school and a then a new home, the Court approved a settlement that had been reached between the family and the NHS Trust. I was delighted for the family of course. Litigation can be stressful, time consuming and at times feel overwhelming. Tom now had financial security for life and would be able to be involved in planning a fulfilling future with the support that he needs.
Fast forward to today – two years post litigation
All too often for us as litigators, once the award of damages has been made, this is the end of our journey with our clients. I had worked closely with Tom and his family for years, as I do with many of my clients, and it can feel like the closing of a chapter when a case like this ends.
However, in Tom’s case, I have been very lucky. My colleagues in the mental capacity team keep me updated with titbits of information about the progress Tom is making, and his family have been kind enough to stay in touch.
Last week Tom’s mum had invited me, and my colleagues who worked alongside me on Tom’s case, Kerry Blomerus and Brooke Manning, to visit with Tom and to see the completed property.
All I can say, is that it is fabulous. Tom has his own living space to chill with friends or have time on his own, as well as a bedroom with plenty of space to move around in his power chair, and an en-suite wet room complete with a ceiling track hoist.
He now has a proper care package in place and the carers have their own living space separate to the family space. There is also a dedicated therapy room. Of course there is space for Tom’s parents and family too, but the whole property has been designed around Tom’s needs. The thresholds are level and there are ramps to the entrances. The doors and entranceways are plenty wide enough to accommodate the power chair and there is sufficient turning space in all the rooms that Tom uses to be able to easily turn in his wheelchair. Perhaps best of all, there is a fabulous hydrotherapy pool with adjacent changing area, complete with a beautiful view. Tom is able to enjoy social time relaxing and swimming with his family and has space to have friends round.
Most importantly, Tom was happy, clearly loved the increasing level of independence he now has and was making exciting plans for the future – including an accessible mobile home by the sea for ad hoc holidays!
I had a fantastic afternoon. In a profession that is filled with deadlines, high pressure negotiations and 6-minute units, it was a real privilege and a joy to be reminded just why I do the job that I do.
