H-v-Avon & Western Wiltshire Mental Healthcare NHS Trust, Wiltshire Health Authority and another

In 1988, a Psychiatrist at Roundway Hospital in Devizes diagnosed temporal lobe epilepsy in the Claimant. During the course of 1988, the Claimant had begun to suffer episodes of temper loss. These episodes were described as occurring about twice a month. His GP referred him to the Consultant Psychiatrist, who undertook EEG's. Initially, the Consultant Psychiatrist was reluctant to diagnose temporal lobe epilepsy, but then in February 1989, when a further episode of aggressive behaviour was reported, the doctor noted "the description and circumstances of this attack make it seem much more likely that this was indeed a post ictal or ictal attack". Carbamazepine was prescribed. No formal diagnosis of epilepsy was made at this stage, but on the 17th March 1989 the Consultant Psychiatrist wrote to the Claimant's General Practitioner saying "My view would be that we cannot make a diagnosis of temporal lobe epilepsy in H's case. He does have an epileptiform instability in his EEG, which is compatible with epilepsy. He has, however, had no clear attacks of loss of consciousness or loss of control of voluntary muscle movements".

At the end of April/May 1989, there was a further episode, during which the Claimant pushed his arm through a plate glass window and required 39 stitches. He saw the Consultant Psychiatrist on the 12th May 1989, and the Psychiatrist advised the General Practitioner that there was now "very strong evidence for him suffering from partial seizures", and therefore a formal diagnosis of epilepsy was made.

The immediate consequence of this diagnosis was that the Claimant's General Practitioner properly reported the diagnosis to the DVLC (as it then was), and the Claimant's licence was suspended. This was a disastrous step for the Claimant, because he from a very young age had set his heart on becoming a Heavy Goods Vehicle Driver, but he obviously assumed that the diagnosis was accurate.

It was fully 10 years later in August 1998 that anyone questioned the diagnosis. The Claimant's mother worked in the General Practitioner's surgery, and she was concerned that the Claimant's medication, which had by now been changed to Epilim, had no effect on his moods. The General Practitioner therefore referred the Claimant for a neurological assessment at the Royal United Hospital Bath NHS Trust.

The Bath Neurologist concluded that the Claimant was not suffering from epilepsy at all, and that the outbursts were simply a behavioural disorder.

The Claimant instructed Solicitors and public funding was granted. An independent Neurologist agreed that the Claimant had never suffered from epilepsy, and that he in fact suffered from Episodic Dyscontrol Syndrome.

An independent Consultant Psychiatrist advised that the standard of care provided fell below that which should have been expected from a Psychiatrist practicing in general mental health in 1988. This was because, despite the fact that the Consultant was at first reluctant to make the diagnosis of epilepsy, he did not refer the Claimant onward to a Neurologist to confirm his diagnosis, but simply assumed that his own interpretation of the EEG was correct.

General Damages in the case were modest amounting to little more than compensation for the unpleasant side-effects of the inappropriate Carbamazepine/Epilim medication. However, the main part of the damages in the case reflected the delay in achieving the Claimant's ambitions to qualify as a long haul HGV Driver, and the effect of his loss of his licence and then only having it returned on a restricted basis, so that his career was delayed by some 10 years.

The Claimant had always intended to become an HGV Driver. He intended to take his test as soon as possible after his 21st birthday. He had contemporaries who shared his interests and ambitions, and who themselves had managed to obtain their Class 1 license within about 6 months of their 21st birthday. But for the mistaken diagnosis of epilepsy, it was reasonable to assume (all other things being equal) that the Claimant would have achieved the same result.

The Claimant's Solicitors made enquiries of the DVLA as to what would have happened if the correct diagnosis of Episodic Dyscontrol Syndrome had been relayed to them in 1989. The evidence was that there would have been no automatic suspension (in contrast to a diagnosis of epilepsy), but the case would have been judged by the Department's Medical Advisors on its merits. The evidence from the DVLA was that, on the balance of probabilities, the Claimant would have had his licence back a great deal earlier than he did on any understanding of the situation, and indeed he might not have had his licence suspended at all, if the correct diagnosis had been advised.

The Claimant set out to qualify as an HGV Driver in short order following the return of his licence, and he was successful in August 2001. He therefore sought General Damages and lost earnings as a Class 1 HGV Driver for some 8 to 10 years. There had been a change in the method of training and obtaining a Class 1 license after 1997, and it was established that the process now took longer and was more expensive, and so a claim was included for that additional expense.

The evidence was that the average differential in earnings between what the Claimant had earned during the 10 year period in less well-paid employment and his achievable earnings as an average HGV Driver was equivalent to some £6,250.00 per annum nett.

A protective Claim Form was issued on the 12th November 2001 relying on the Claimant's date of knowledge of the misdiagnosis dating back to November 1998. A formal Letter of Claim under the Pre-Action Protocol for the Resolution of Clinical Disputes was sent on the 12th September 2001, together with a Part 36 Offer. The Defendants rejected the Part 36 Offer, and served a formal Response letter on the 11th January 2002. An Offer of £7,500.00 was made in full and final settlement of the Claimant's claim, without admission of liability. This was rejected.

The Defendants' Solicitors increased their offer to £15,000.00 on the 1st February 2002. In view of the many uncertainties and difficulties with proving causation and the disproportionate costs of obtaining the necessary evidence to underwrite a full value loss of earnings claim, the Claimant elected to accept the increased Offer in settlement.

General Damages were estimated to be worth some £4,000.00, and the balance of the claim was made up of a contribution towards the Claimant's loss of earnings. There was a nil CRU certificate.

The Claimant's experts were:
Dr Richard Greenhall, Consultant Neurologist
Dr Christopher Churcher-Brown, Consultant Psychiatrist
For the Claimant

Ian Bullock/Gerry Ferguson of Withy King Solicitors
For the Defendant

Sian Morgan, Bevan Ashford
Comment

In the Defendant's Letter of Response, they emphasised that the Claimant's ambition to become an HGV Driver had not been mentioned, according to the treating Consultant Psychiatrist. The evidence was that the Consultant remembered that the Claimant was training to be a mechanic, and he said that he remembered forming the impression that the Claimant would not be unduly held back in such a career by the revocation of his driving licence. The treating Consultant confirmed to the Defendant's Solicitors that had the Claimant indicated to him that he had an ambition to become an HGV Driver, the treating Consultant is sure that he would have anxiously investigated the effect of continuing on anti-convulsant therapy on the Claimant's ability to possess a Group 2 driving license. The Defendants further emphasised that no mention was made in the GP records either of the Claimant's expressed intention to become an HGV Driver, nor any subsequent disappointment in being unable to fulfil this career goal.

In any event, it was conceded that if the Claimant had been treated with psychotropic medication for episodic dyscontrol syndrome, then in 1989 he would have been considered unfit for Group 2 licensing until he had been off the medication for at least 6 months, and if the behavioural problems had been secondary to alcohol abuse, the DVLA would still have been likely to refuse a Group 2 licence altogether, unless and until a Consultant Psychiatrist certified that the driver did not constitute a risk to other road users.

All these points served to diminish the settlement value of the claim, and as the Claimant was a very reasonable man, and more concerned with the principle of the action, a settlement was achieved, despite the apparent discrepancy between the total calculated potential loss of earnings and the ultimate settlement figure.