Martin's case

M's claim was that the First Defendant and/or agents of the Second Defendant knew or ought to have known that M's condition was unstable in the post operative period and they failed to adequately monitor and diagnose M's deteriorating condition and administer the correct treatment.

At 12.30 am on 3 October 2000 M arrested and was taken back to the operating theatre, and following further investigation and treatment M has been diagnosed as suffering permanent brain damage and psychiatric symptoms. The brain damage has prevented M from returning to his job as Head of IT for a life assurance company and has left him with a significant disability and with a tendency to suffer from depression.

A Claim Form was issued on 29 September 2003 within the primary limitation period. The claim was initially brought against Mr Kaisary for negligence and breach of professional duty when performing the operation. M believed that the nursing and support staff who assisted Mr Kaisary with his operation and aftercare were employed by Mr Kaisary and concluded that Mr Kaisary was therefore vicariously liable for the actions and or omissions of his assisting staff. The Claim Form and Particulars of Claim were served in January 2004. It later transpired that the staff assisting with M's treatment were acting as servants or agents of the Second Defendant. Subsequently on 29 July 2004 when M's solicitors issued an application notice which in part sought to add the Royal Free Hampstead Trust as an additional defendant to the action pursuant to CPR 19.5 (3)(b) and (4) outside of the relevant limitation period.

On 23 September 2004 Mr Justice Simon ruled that the Royal Free Hampstead Trust could not be joined as a party pursuant to CPR 19.5(2) and 3(b) as the M had not proved that the addition of a second defendant was 'necessary' under the definition given in R.19.5(3)(b). However, he ordered a trial of a preliminary issue in relation to whether the claim against the second defendant was barred by the provisions of s.11 and/or 14 of the Limitation Act 1980, and if so whether the action should be allowed to proceed under s.33 of the Limitation Act 1980.

The Court of Appeal agreed with Mr Justice Simon's decision in relation to M's argument under CPR 19(5)(3)(b) but Mr Justice Hodge allowed the second defendant to be added to the claim under to CPR 19.5(4) ruling in favour of the Claimant under sections 11 and 14 of the Limitation Act 1980, as reported in his Judgment on 5 April 2005.

Numerous expert medical witnesses were instructed to prepare reports on liability and causation and condition and prognosis. The experts included:-

Consultant Anaesthetist

Consultant Urologist

Consultant Neurologist

Consultant Neuropsychologist

Consultant Neuropsychiatrist

Nursing Expert

A Case Manager was also appointed to manage M's care regime.

The case progressed and a trial date was fixed for 19 June 2006 with a time estimate of 5 days. On 19 April 2005 the Claimant made a Part 36 offer of 95% of damages of £1 million which was rejected by the Defendant.

The Second Defendant admitted in their Defence that on the evening of 2 October 2000 there had been a breach of their duty of care. On 31 January 2006 a hearing was listed to deal with M's application for summary judgment, and to seek an interim payment of £75,000 against the Second Defendant and to make various amendments to the case management timetable. The hearing in relation to the applications was adjourned because the Second Defendant made a cross application to serve causation evidence 9 weeks out of time. On 6 March 2006 M's application was heard and M was successful in his application for summary judgment and was awarded an interim payment of £20,000.

On 10 March 2006 the Defendants made an offer to settle for £600,000. M rejected this offer, and made a counter offer of £800,000 on 17 March. Again, this was rejected by the Defendants who then increased their offer to £700,000. After an additional three offers were rejected by both parties, on 29 March 2006, shortly before discussions between the experts were due to take place in respect of liability and causation, the parties settled the claim for £750,000 plus reasonable costs to be assessed if not agreed.

Please note that all names have been changed to maintain anonymity.



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