Negligence claim allowed after 35 years
A Cambridge postgraduate born at Queen Charlotte's Hospital more than 30 years ago has been told he can sue the NHS for damages, following claims that his delivery left him with a lifelong disability.
Julius Whiston, who suffers from cerebral palsy, says his condition was caused by a brain injury due to a lack of oxygen during his 1974 delivery at the hospital, which at that time was located in Goldhawk Road.
The Court of Appeal has ruled that Whiston should be allowed to proceed with his case, despite being past the age when such claims are usually allowed: birth injury victims are normally required to file a damages claim before the age of 21.
But Whiston said he did not have the relevant knowledge until November 2005, when he was 31 and his mother revealed to him her belief that his condition was caused by the alleged negligence of a doctor who spent half an hour trying to carry out a forceps delivery.
Despite his condition, the 35-year-old won a King's Scholarship at Eton and went on to gain a degree and a PhD in mathematics at Pembroke College, Cambridge. But Whiston's condition began to deteriorate sharply when he was in his 20s, and he is now increasingly reliant on his ageing parents, and can no longer walk unaided, speak or write.
His lawyers are claiming substantial compensation from the NHS to pay for the care the young man will need for the rest of his life.
The London Strategic Health Authority denies negligence in the case. During the Appeal Court hearing, they argued that the action, launched in October 2006, could not go ahead as it was brought outside the legal time limit and was so late that the NHS was in no position to defend the case. The authority also said Whiston had been aware his condition had been caused by brain injury due to lack of oxygen during delivery well before his 18th birthday.
But ruling in Whiston's favour, Mr Justice Eady said a fair trial was still possible despite the passage of time. He said Whiston had achieved far more in his life than most able-bodied people: “It seems to me entirely plausible that he regarded himself as only mildly affected by the disability which had always been with him. He did his best to ignore it and concentrate on other matters,” he said.
Whiston already won the right to sue in May 2009, but lawyers for the NHS were trying to have that decision overturned.
March 5, 2010