Wednesday, January 16, 2008

Ms Leslie Ash: £5 Million Compo for MSRA, Outrageous?

Ellee Seymour ran a post about Leslie Ash's compensation when, following the Mail, she believed it was set at £500,000. Ash contracted MSSA - a strain of MRSA - after being hospitalised by what she claimed was merely energetic sex though in the first instance it was treated as an instance of domestic violence.

The £500,000 figure is I think incorrect. It is set at what seems an extraordinary £5 Million. Ash's action was reported by The Standard as being for £1 million 12 months ago.

Even half a million is an extraordinary settlement compared to what people get in other actions in clinical, personal injury (PI) and military fields.

One newsworthy case of course being the famous double amputee paraplegic soldier Lance Corporal Ben Parkinson. He has now been offered £285,000 - almost twice the first calculation.

His total package including the pension element is not that disimilar to the lower figure reported for Ms Ash’s damages. But it is of course dwarfed by the higher, correct figure.

My partner is a Clinical Negligence solicitor who also does some PI and a large number of military cases. So I have some awareness of how these things go.

As I understand it the defendant - be they Trust, Hospital, Clinician, or their Insurer - has to (a) be judged to have acted unreasonably (as judged by their peers) and (b) be judged that their unreasonable decision(s) result(s) in the harm to the plaintiff (c) pay compensation related to actual losses, including loss of earnings. If the plaintiff has contributed to the incident a percentage may be applied.

Being civil cases the burden of proof is balance of probabilities. 51% likely is good enough. But the hurdles of reasonableness and causation are difficult. Here's a summary of the Hospital (Chelsea and Westminster) side (from the Standard):

The hospital admits a nurse should have asked a doctor to examine Ms Ash before she was discharged but said it would not have ruled out Ms Ash requiring surgery or suffering long-term damage.
The hospital's legal papers say: "The infection could not reasonably have been avoided ... surgery would probably have been required in any event. There would have been some residual neurological deficit."

In other words they are saying what they did was reasonable and predicting that the problems would have occurred anyway. You may be able to see what they're attempting there!

The "tariffs" on victory can be extraordinarily low. Many many people who are harmed in hospitals and surgeries get nothing. Not even an apology or any empathy. 49% nothing, 51% everything. Though of course whatever the causation and whether the reasonableness is in fact reasonable they will face the same struggles and the same losses of earnings as their equivalents.

The families of those who die around the time of the incident or subsequently may seem especially hard done by. Particularly if the victims were retired or not great earners with dependents. They typically get tiny amounts. The whole system is crying out for a more humane and expeditious approach. Cases often run for years with a significant number of plaintiffs not living to see their settlements. Which are of course often reduced by the certainty and change of circumstances provided by their deaths.

It may be that Leslie Ash never again works as an actress. If so this sum - bizarre though it seems, particularly against that of Ben Parkinson - may be proportionate to projected lost earnings. Though if she received it as a lump sum and invested it wisely it could become a very significant revenue stream. And she might be able to resume work ... if nothing else as the poster girl for either the racier end of the compo industry or for bona fide legal support.

I'm not quite sure quite what would happen if Ash has taken a lump sum but miraculously does go on to earn well. Will depend on the small print I guess.

Will other MRSA and similar victims fare as well - proportionate to their losses? I would say not.

No comments: