This Blog has already looked at the case of Robshaw -v- United Lincolnshire Hospital NHS Trust  EWHC 923 (QB) in the context of judicial consideration of the basic principles of the law of damages. However the judgment of Mr Justice Foskett also contains some important observations in relation to life expectancy. In particular the approach to be taken when dealing with evidence from experts and statistical analysis.
The relevant part of the judgment is set out here in full. This is, undoubtedly, a judgment the courts will look to in the future when this issue of life expectancy arises. In particular the questions that arise in relation to the assessment of the evidence and the relevance of the quality of care.
The action related to a child, now 12 years of age, who was seriously injured at birth due to the defendant’s negligence. He suffered motor developmental delay, cerebral palsy and learning difficulties. There was, surprisingly, little agreement at trial in relation to many issues. One of the issues in dispute was life expectancy.
THE JUDGMENT ON LIFE EXPECTANCY
This is a lengthy judgment on the issue but one that is worthwhile reading in full.
- I should turn immediately to the vexed issue of life expectancy. It is most unfortunate that the dispute should exist and having to determine it is always an invidious task for a court. Whilst the welcome introduction of the ability of the court to make periodical payments orders in cases of this nature has lowered the profile of the issue in a number of cases, as the editors of McGregor on Damages, 19th ed., 2014, remark somewhat ruefully at paragraph 38-103, “the issue is still with us”. Dr Rosenbloom made much the same point in his article in ‘Clinical Risk’ entitled ‘Estimating life expectancy in children with neurological disabilities’ in 2004 (see paragraph 62 below). In this particular case it is, of course, doubly unfortunate that I have not been able to witness what would, in effect, have been an informed debate on the issue between two acknowledged experts in the field who have arrived at different views.
- Dr Rosenbloom expressed his regret that Dr Ferrie was unable to be present and it was obvious that each had mutual respect for each other’s opinion. I do not recall seeing previously a passage such as that which follows in a memorandum recording the areas of agreement and disagreement between experts (and indeed Dr Rosenbloom confirmed that he had never introduced such a passage into a joint statement previously), but Drs Ferrie and Rosenbloom said this at the conclusion of their memorandum dated 6 July 2014:
“Against the background that both Dr Ferrie and Dr Rosenbloom are experienced experts who prepare reports for both Claimant’s and Defendant’s advisers they would wish to bring to the attention of those instructing them and to the Court that the differences between them, especially so far as their life expectation estimates are concerned, are much greater than is usually the case.
Dr Ferrie’s estimate is to age 66 years. Dr Rosenbloom’s estimate is to age 53 years.
The reasons for our differences are detailed in this minute and following extensive, constructive and mutually respectful discussion we are not able to reconcile them further.
In spite of the extent of the difference between us we each accept that the other’s estimate is reasonable whilst preferring our own.
We agree therefore that there is a wide range of possible projected life expectancy for James and that this is between 53 and 66 years in total.”
- As already recorded (see paragraph 4 above), the case in fact advanced on James’ behalf on the basis of the evidence given at the trial (which is said to have demonstrated material improvements in his abilities since Dr Ferrie and Dr Rosenbloom discussed matters in July 2014) is that I should conclude that the predicted life expectancy should be to age 70-71.
- By way of background, it should be noted that Dr Ferrie’s first report dated 8 September 2012, based upon his assessment at the time, contained the opinion that James was likely to survive “to around 70 years of age”, but that assessment expressly did not take into account “any adjustment the Court might consider appropriate to take into account the likely benefits which are likely given his success in the litigation.” That latter comment was directed to the suggestion that the Court might make a further “modest upward adjustment” to his own estimate to reflect the advantageous position that James would enjoy in comparison with others who would not have access to substantial damages and the benefit of very high standard 24/7 care. Dr Ferrie’s approach at that time was that James had the ability to roll/sit and get around by scooting, but would not be able “to fully feed himself”, but would “gain sufficient self-feeding abilities such that for the purposes of [the 2008 Strauss paper: see paragraph 41 below] he could be considered as self-feeding.”
- In a further report dated November 2013 Dr Ferrie maintained that opinion for the reasons that will appear in paragraph 51 below. He modified his view downwards slightly (in other words, survival to age 66) in the light of his discussion with Dr Rosenbloom for the reasons mentioned in paragraph 52 below. That was his last recorded view on the position and I have, of course, received no direct evidence that he had changed his view back to survival to age 70 or thereabouts in the light of developments since July 2014 or indeed in the light of the new statistical material to which I will refer below (see paragraph 42). However, I have effectively been invited to conclude that this would have been his view had he heard all the evidence I heard and that such a view would have been correct. I will return to that contention in due course, but for the present will make the following observation on the differences between the two expert views as recorded in the memorandum.
- The task of trying to reconcile or choose between opposing views that are recognised by respected experts in the field to be “reasonable” is even more difficult than choosing between two views that each opposing proponent regards as unreasonable or unsustainable. I do not know whether that passage in the memorandum was a subtle, coded message to the parties or the court simply to “split the difference” bearing in mind the long-established view that whatever assessment of life expectancy is made it will be proved to have been wrong. However, whatever the temptation, I do not think that a court can perform its role conscientiously by approaching the issue in that way: unlikely though I suspect it may be in this particular case, it could result in a significant over-payment of compensation with public money, on the one hand, or a significant degree of under-compensation for a very seriously disabled young man with, on whichever view is adopted, many years ahead of him, on the other. Nonetheless, it offers some comfort if it should be the case that I conclude that neither view is wholly consistent with the evidence I have received. It is accepted on all sides that ultimately I must make an assessment based upon all the evidence that I consider goes to the issue.
- It has been established for a long time that there is interplay between the conclusions to be drawn from certain statistical data available to the experts and the actual presentation of the individual concerned. The statistics are those derived from the data collected and published in the USA by Professor David Strauss and others (which is generally referred to as “the Strauss data”). I will say a little more about those statistics and how they are to be applied shortly, but the following interchange during Ms Susan Rodway QC’s cross-examination of Dr Rosenbloom on behalf of James illustrates the proposition in the first sentence of this paragraph:
Q. Are you prepared to accept that common sense, clinical judgment and empirical experience are relevant in seeking to predict the individual life expectancy of someone like James?
A. To the best of one’s ability, yes, I do.
MR JUSTICE FOSKETT: That has always been the position, hasn’t it?
A. It has indeed, my Lord.
MR JUSTICE FOSKETT: But one looks, obviously, at the statistics because they are very important, but at the end of the day the individual characteristics are matters that have to be factored in.
A. And this is something that we have always written about and always taught.
MR JUSTICE FOSKETT: That’s what I had always understood to be the position ….
MS RODWAY: Within that clinical experience, clinical judgment can be brought to bear and is very important.
A. I think that’s parts (sic) of it.
Q. Even if one can’t find a paper in the literature that specifically reflects someone with James’s range of disabilities, one … overlays the statistics with the clinical assessment?
A. With caution, my Lord, and to the best of one’s ability. I would not be looking for (sic) someone such as James [and] saying the described clinical characteristics are such that he shouldn’t be in that group altogether, because I don’t think that’s an appropriate way to look at the data and to look at clinical experience.
Q. But … we have discussed not just the aspiration, and we differ on that, where you consider that even absent aspiration now, there is still a risk in the future. But on the other side, I think we did agree that on the mobility aspect, the greater the mobility, it’s an empirical judgment that that decreases the risk of lung infections because you have a lesser chance of getting respiratory load?
Q. One doesn’t need for that purpose to see dozens of papers written by learned authorities; you are able to say that because you see it in practice?
A. But it is also supported by the literature.
Q. Yes. A lot of it, though, Dr Rosenbloom, when one moves on to these various areas, a lot of it is common sense, isn’t it? If you can cough more, if you can clear your lungs more, you are going have be a better chance than someone who is unable to do so?
A. I hope it is common sense, my Lord. It would be worrying if that which we have attempted to describe is so against common sense and then you would be looking for flaws in the argument … [so] I agree with counsel.
- It is this kind of approach that will have led Swift J in Whiten v St. George’s  EWHC 2066 (QB) to consider whether to make any adjustment to the figure generated by an analysis of where the claimant in that case fell within the Strauss data “to reflect individual features in [his] case”: . In fact she did not do so in that case, but there are examples in other cases where the life expectancy derived from the statistical data has been altered by reference to the individual characteristics of the particular claimant and his or her clinical presentation. It should be noted that Swift J considered this question after the necessary adjustment for use in the UK of the actual life expectancy rates utilised in the US: see . I will return later to the way in which this factor is sought to be deployed in the present case and the issue about when any such adjustment should be made (see paragraphs 91 – 100 below). However, it is important to recall that an adjustment to UK figures is required and the manner in which it is achieved is set out in the 2008 paper at page 491. It is common ground in this case that such an adjustment is necessary and the essential manner in which it is achieved is not in dispute.
- In an endeavour not to extend unduly what is necessarily a lengthy judgment, I would respectfully adopt and rely upon the full and detailed description of the background to the Strauss data and its development set out in Whiten at -. It has not been questioned in this case and, in my view, it sets out clearly the history up to and including what is generally referred to as “the 2008 paper” (i.e. Strauss DJ, Brooks J, Rosenbloom L, Shavelle RM. ‘Life expectancy in cerebral palsy: an update’: Developmental Medicine and Child Neurology 2008; 50: 487-493). Dr Ferrie and Dr Rosenbloom took the 2008 paper as the relevant starting point to apply to this case at their meeting in July 2014.
- The judgment in Whiten was given in August 2011. There has been a further contribution to the learning on this topic by the same authors with the addition of Linh Tran and Yvonne Wu in the form of articles published in 2014 in Developmental Medicine and Child Neurology entitled ‘Recent trends in cerebral palsy survival’. Part 1 related to “period and cohort effects” and Part 2 to “individual survival prognosis”. The articles were accepted for publication on 15 April 2014 and were apparently published online subsequently although Dr Rosenbloom was unable to remember precisely when that was. I mention this only because it is very unfortunate that reference to the new study and its potential relevance to this case did not feature at the meeting between Dr Ferrie and Dr Rosenbloom on 6 July 2014 although publication must have been imminent if it had not taken place already. As I have already said (see paragraph 41), they agreed that the 2008 paper was the correct starting point. It is troubling that the existence of this new learning was, it would seem, unknown more generally (or certainly in the context of this case) until Dr Rosenbloom drew it to the attention of the Defendant’s solicitors in a letter dated 31 December 2014, about 14 days before the trial. This was too late for Dr Ferrie’s indisposition not to have intervened before he could express a view based upon the new study. As I will indicate below (paragraphs 52 – 55), his articulated view is, therefore, based upon the 2008 paper being the starting-point and upon his appreciation of James’ presentation in July 2014.
- Although the message of the 2014 articles is, as I read them, essentially positive in relation to those cerebral palsy patients who are fed to some extent by a gastrostomy (see paragraphs 44 – 48 below), in fact the new research did not alter Dr Rosenbloom’s previously expressed view of James’ life expectancy following the joint meeting: he adhered to survival until age 53 and it is possible to see how, simply applying the new relevant table produced in the 2014 articles, he did so. I will indicate below (paragraphs 56 – 57) how he reached that conclusion.
- According to Part I of the 2014 paper, the “study population included persons age 4 years and older with [cerebral palsy] who were clients of the California Department of Developmental Services between January 1983 and December 2010.” The total number involved in the survey was 51,923, split roughly 55% male and 45% female. The study drew attention to the fact that “[tube] feeding, most often by gastrostomy, was more common in children than in adults … [but that in all age groups] the use of feeding tubes has become more prevalent in recent years.” In the light of the questions raised in this case about the significance of the gastrostomy that James now has (it having been inserted on 2 April 2013), it is worth noting what the authors say about the significance of tube fed cerebral palsy patients:
“Tube feeding has become much more widespread in children with CP. We found that 6% of children born in the 1980s had a gastrostomy at their first evaluation and an additional 9% had a tube inserted during the study period. Supplementary analyses revealed that, as expected, the 6% had more severe functional disabilities than the 9% who had the tubes placed later in the study period. On the other hand, the 9% who had tubes placed after the initial evaluation had disabilities that were still worse than those of the remaining 85% who fed orally throughout the study period. This demonstrates that while tube feeding is still a marker for more severe disabilities, there has been some shift toward placement of tubes into children with less severe disabilities. Further, an increasing number of clinicians have embraced mixed tube and oral feeding, such that gastrostomy is no longer an ‘all-or-nothing’ intervention. In the present study, we were unable to make distinctions between children who were completely tube fed and those with feeding tubes who took a significant proportion of their nutrition orally.”
“Because tube feeding remains one of the most powerful predictors of long-term survival, it should always be considered in the survival prognosis for an individual child.”
“There have been substantial improvements in mortality rates for children with CP in California. Childhood mortality rates in CP declined by 2.5% per year from 1983 to 2010, which is very similar to improvements found for children in the general population. Mortality rates in tube fed adolescents and adults have declined by 0.9% per year. The mortality ratio for orally fed adolescents and adults and adults over age 60, as compared with the United States general population, has actually increased. These trends should be taken into account for individual survival prognosis.”
“Survival prognosis for persons with CP should take into account age and severity of disability. The survival figures reported here are based on the most recent California population data from the Department of Developmental Services, and supersede those given for the same comparison groups in prior publications. These new figures include adjustments to reflect the observed declines in mortality rates in California. We hope that this article serves as a practical guide to prognosis to be used in planning of future care for children, adolescents, and adults with CP.”
- It was that latter table that both Dr Ferrie and Dr Rosenbloom took as the framework for the assessments of life expectancy up until and including the discussion in July 2014.
- In his report dated November 2013 Dr Ferrie had given the following as his reason for adhering to the view that James would probably survive to around 70 years of age:
“In my previous Report I estimated that James will probably survive to around 70 years of age. This estimate was based upon the likelihood that at 15 years of age he would continue to be able to roll and scoot and to be substantially self-feeding. Since I gave this estimate a gastrostomy feeding tube has been inserted. However, I do not think it would be appropriate to consider James within the Strauss cohort of those fed by gastrostomy since it is clear that the majority of his calories continue to be given orally. On the basis of the information available to me when I re-evaluated James, I no longer felt it likely that at 15 years of age he would be able to self-feed to any significant extent and that he should be considered within the cohort of subjects who roll/sit but cannot walk and are fed by others. This would equate with a significant reduction in my previous estimate of his life expectancy. However, more recent evidence indicates that James is now obtaining a significant proportion of his calories orally and that he has rapidly learnt to use the Neater Eater. His self-feeding skills are likely to further improve and on this basis I feel that his life expectancy should be calculated (as before) on the basis that he best fits in the Strauss cohort of those who can who roll/sit and self-feed (recognising that he will not fully self-feed). Taking this and additional positive and negative factors into consideration I estimated that he would probably survive until around 70 years of age. I remain of the opinion that this is an appropriate estimation of his life expectancy.”
“Dr Ferrie now considers that James is likely to survive until 65.75 years (66 years if rounded to the nearest year). This is less than the estimates in his reports due to him now considering it appropriate to now make a bigger reduction than he originally did to reflect James’s limited self-feeding skills, the presence of the gastrostomy and his acceptance that his cognitive and intellectual level and his general health are neutral rather than positive factors.”
“The approach of Dr Ferrie is that the relevant cohort for James is rolls/sits, cannot walk and self feeds. A 15 year old male with these abilities has a life expectancy according to Strauss of 45 additional years (survival to 60 years) compared to 60.6 additional years (survival to 75.6 years) in the general population. In other words the subject’s life expectancy is 79% of the relevant population. The projected life expectancy of a 15 year old who, like James will attain the age of 15 years in 2017 is 74.8 additional years with survival to 89.8 Therefore if James was currently 15 years of age he might be expected to survive to 71 years of age. A correction must be made for the fact that James is not yet 15 years of age (0.25 years) and for any additional positive and negative factors to survival identified.”
“Dr Ferrie considers the most important negative factor is that he is not fully self-fed. The presence of the gastrostomy is a weak negative factor. He considers his type of cerebral palsy to be a positive factor. He considers James’s success in litigation also to be a positive factor. Following further consideration and discussion, he no longer considers his intellectual abilities and general health to be positive factors. He now considers these to be neutral factors. He no longer considers that the positive and negative factors to cancel each other out. He thinks a reduction of 8 years to reflect his limited self-feeding and the presence of the gastrostomy is appropriate. He considers that the combined ‘positive uplift’ should be 3 years.”
- The starting point thus taken by Dr Ferrie (from Table 1 in the 2008 paper) was that a 15-year old male with the abilities/disabilities he identified would live until age 60. Via the route set out in the first paragraph quoted in paragraph 53 above he concluded that such a person would have 79% of the normal projected life expectancy of someone of the same age, but without the disabilities. Since that projected life expectancy (in the UK) for someone who would be 15 in 2017 would be to survive to age 89.8, the projected life expectancy for James would be 71 (i.e. 79% of 89.8). From that starting point of 71, there is a reduction of 0.25 years to reflect the fact that James is not yet 15 and the risk of him dying prior to achieving that age and a further reduction of 8 years “to reflect his limited self-feeding and the presence of the gastrostomy”, but an addition of 3 years by way of a “positive uplift”, yielding 65.75 (rounded up to 66). The positive uplift is derived in part from Dr Ferrie’s intuitive opinion that the very high standard of care that James will have throughout the remainder of his life is “likely to improve survival”. Those further adjustments to the starting point of 71 were made after the relevant conversion to the UK projected figures (see paragraph 40 above).
- That, therefore, is the way that Dr Ferrie reached the view that survival until the age of 66 was the appropriate conclusion. In relation to feeding he treated James as “not fully self-fed” and the “presence of the gastrostomy [as] a weak negative factor”.
- Dr Rosenbloom’s approach in his report of January 2014 was to say that he classified James as “fed by others” because his view at the time was that “it is probable that most of his nutrition will continue to be given orally”, notwithstanding the gastrostomy insertion. His approach at that stage was, using Table 1 (see paragraph 49 above), that if James were aged 15 years and was fully able to roll or sit but was “wholly fed by others” his predicted life expectancy within the US data would be for a further 32 years. He considered that reductions were required from that figure (i) because of the small risk that James would not survive to 15 years, (ii) because he had only “limited rolling and sitting abilities” and (iii) because “he will continue to be partially fed by gastrostomy”. For that combination of features he considered it appropriate to reduce the life expectation estimate by 7 years – in other words from age 47 to age 40 years. This translated to living for a further 29 years from January 2014. That required adjustment to the UK figures in the manner set out in the 2008 paper. Adopting that approach, Dr Rosenbloom noted that the projected life expectation in the UK for an uninjured 11-year old male was “close to 88 years” with the result that there was “some 13 years more” than the actual life expectation data in the 2008 paper. The proportion of that 13-year difference to apply in James’ case was the fraction derived from dividing 29 (his estimated further years of actual life expectation) divided by 49.6 (the actual life expectation of an uninjured male of his age). That came to 6 years and, accordingly, Dr Rosenbloom’s then estimate of projected life expectancy was that he would live to the age of 46 years.
- As a result of his meeting with Dr Ferrie, Dr Rosenbloom modified his view somewhat, but there remained the significant difference between their two views as reflected above. Dr Rosenbloom’s approach at that time can be seen from the following two paragraphs in the memorandum:
“94. In his report Dr Rosenbloom has made a total downward adjustment of seven years to take into account James’ age, his limited motor abilities, and the particular characteristics of his feeding. Following this expert discussion and in the light of updating information he has reduced this downward adjustment to 2 years in total as is further detailed below.
For the purpose of answering this question [i.e. what discount needs to be applied to reflect James’ age at the trial in January 2015] he estimates that there should be a reduction of one year because of James’ age and two years because of his clinical need for gastrostomy insertion. He then now increases his estimate by one year because of James’ limited self-feeding abilities. He now does not make any reduction for James’ motor abilities as he regards him as average for the relevant category of sits/rolls.
96. [In relation to the question of how the agreed upward adjustment to reflect the UK projected mortality data is achieved] Dr Rosenbloom adopts the approach detailed in the Strauss et al (2008) paper. Using this approach he has first made the deduction detailed in his answer to Question 94 above i.e. to take into account James’ age and relevant clinical factors. He now considers that these deductions amount to 2 years as has been detailed in his answer to 94 above. Then, as has been detailed in his report, he has noted that projected life expectations in the UK for uninjured 12 year old males are some 13 years more than the actual life expectation data used by Strauss et al and summarised in Table I of their 2008 paper. The appropriate proportion of this to apply in James’ case is 33 (James’ estimated further years of actual life expectation from January 2015) divided by 53.6 (the actual life expectation of an injured 12 year old male) multiplied by 13. This comes to 8 years.
- As I have indicated, the 2014 papers (to which, of course, like the 2008 paper, he was a contributor) have not altered his eventual opinion, but he arrives at the age of 53 years, as set out in his letter of 31 December 2014 (see paragraph 42 above), as follows: he remained of the view that James should be regarded as “fed by others”, but in the light of the new Strauss data he should increase his estimate of James’ actual life expectation by 1 year (given that there was a small increase in survival for those “fed by others”, namely, from 32 further years to 33 further years). Based on the USA data he considered James’ actual life expectation to be to age 46, i.e. a further 34 years. Making the appropriate adjustment for UK figures (derived on this occasion by dividing 34 by 64.4 – the actual further years of life expectation of an uninjured 12-year old male – and multiplying that fraction by 13), in round figures this came to 7 years. This resulted in the projected life expectation to age 53 years. In the same letter Dr Rosenbloom suggested that Dr Ferrie’s new estimate in the light of the new paper would be (in round figures) to age 64. I have not, of course, had any input from Dr Ferrie on that issue.
- The focus of the debate at the trial has been upon whether Dr Rosenbloom is correct to classify James as “fed by others” and to make adjustments from the starting-point thus generated within the Strauss data or whether Dr Ferrie was right to treat him as “self-fed” for starting-point purposes, but to make in the first instance an essentially downward adjustment to reflect the proposition that James was not “fully self-fed” (my emphasis). As will be apparent from the foregoing, Dr Rosenbloom has taken his starting-point as 33 further years of life (in the light of the 2014 papers) and Dr Ferrie took a further 45 years in the light of the 2008 paper. I agree with Dr Rosenbloom that Dr Ferrie would almost certainly have taken a further 45 years as a starting-point if he had seen the 2014 papers because the life expectancy for the self-fed cohort is the same in that paper as in the earlier paper.
- As it seems to me, the first issue to consider is the way in which the three categories of feeding set out in the Strauss tables are defined. In the 2008 paper the categories were “tube fed” (in other words, by gastrostomy), “fed by others, without feeding tube” and “self-feeds”. In the 2014 papers the categories are “tube fed”, “self-feeds orally” and “fed orally by others”. Given that, on at least a superficial view of the evidence (and which I will examine more closely below), James is (i) fed partly orally by others, (ii) has some (arguably limited) self-feeding capability, but (iii) is also supplied some nutrition by gastrostomy, it is immediately apparent that classifying him within one or other of the cohorts in either of the tables as defined is not straightforward.
- Ms Rodway and Mr Latimer-Sayer have invited my attention to what has been said about these classifications by the authors of the various papers over the years. The eating skills of a cerebral palsy patient (in addition to his or her motor skills) have been seen from the outset as a significant marker for the severity of the brain damage and thus upon life expectancy. In the 1998 paper, in its introductory paragraph, it was asserted that “[the] most powerful prognostic factors for survival were … mobility and feeding skills.” In the list of characteristics given on the second page of that article the numbers of those in the overall cohort who were either “tube fed”, “fed by others, no feed tube” or some “self-feeding skills” were enumerated. The group that possessed “some self-feeding skills” were said in the body of the article to include those who could only use fingers.
- Looking at matters chronologically, it is right to observe that Dr Rosenbloom, in his 2004 article (see paragraph 33 above), said this about gastrostomy feeding:
“There has also been some controversy and confusion with regard to the relevance of the need for gastrostomy feeding to the life expectation in disabled children with cerebral palsy. Here the issues are far more complex than whether or not a gastrostomy is in place and life expectation appears to be primarily related to the child’s nutritional status. Specifically it is reasonable to anticipate that a child who has a gastrostomy but is adequately nourished and free from the risk of aspiration is likely to have a longer life expectancy than one who is orally fed but is failing to thrive and has recurrent respiratory infections.”
“(6) The highest functioning group considered in the study, namely “rolls and/or sits and self feeds” sometimes appears to have been misinterpreted. Because it was the highest functioning category it included individuals with a wide range of disabilities. At the lower end of the group were individuals who could roll over and finger feed but, for example, could not stand unaided and had no useful form of mobility. At the higher end were those who could self-feed with utensils and walk without support. Evidently the life expectancies in these two groups are quite different and the estimates in Table III were a composite that were too high for the first group and too low for the second.
(7) In the database we worked with there is a six-level feeding scale, ranging from fed by others (level 1) to finger feeding (levels 2 and 3) up to ‘uses fork and spoon without spillage’ (level 6). We used the phrase ‘at least some self-feeding (SF)’ in the earlier article simply to contrast levels 2 to 6 with level 1. To qualify for this the person must take a significant proportion of his nutrition by SF. We perhaps did not make it sufficiently clear that children who take only 10%, say, of their nutrition by SF would not be considered to have ‘at least some SF’ for our purposes.”
- It follows (and Dr Rosenbloom confirmed this in cross-examination) that children who take more than 10% of their nutrition by self-feeding are to be placed in the self-feeding category for the purposes of the Strauss tables. I will return to this later.
- I have already alluded to the proposition that, on a superficial analysis, James does not fit neatly into any of the classifications set out in the various Strauss papers. It is, of course, to be recalled that it is acknowledged in the 2014 papers that the authors were unable to make distinctions between children who were completely tube fed and those with gastrostomies who took a significant proportion of their nutrition orally. Bearing in mind that Dr Ferrie and Dr Rosenbloom each make adjustments from the starting point that each takes, the question arises of whether there is a true starting point for someone such as James within the Strauss tables. It may well be that as the Californian data base increases, further refinements along these lines will emerge, but at present I am tempted to say that he is somewhere between the two extremes and it is somewhat artificial to be forced to place him in one category or the other and then to make adjustments upwards or downwards.
- I will return to this when I have considered the evidence of what James can now do and whether there is a basis for concluding that his ability to self-feed will improve in the future and/or whether the gastrostomy is to be seen as a positive or negative factor in the longer term. As to the future, it is of course, the case that both Dr Ferrie and Dr Rosenbloom are paediatric consultant neurologists who have been involved in the treatment of children. To that extent their knowledge of what occurs in relation to cerebral palsy patients in adulthood is less extensive than others who do follow matters through into the post-18 age group. Dr Rosenbloom accepted that, whilst he did follow up many of his patients to age 25 or thereabouts, he had no clinical hands-on role with adult cerebral palsy patients. In those circumstances, it does seem to me that I must look elsewhere for evidence about what the future may hold in terms of the feeding pattern for James. Indeed that may also be the case in relation to other matters.
- The most direct and persuasive evidence (which, in the event, was largely agreed) was the evidence of the two speech and language therapists who gave evidence, Ms Kay Coombes for James and Mrs Michelle Whitton for the Defendant. Although an important role in a case such as this for experts of their discipline is to address the communication difficulties of the cerebral palsy patient, their remit covers also issues relating to eating, drinking and swallowing – both areas being features of oromotor function.
- Ms Coombes saw James in February 2011 and again in August 2013. She has seen the videos that have been prepared. Mrs Whitton saw James in June 2013 and, whilst she had not seen the videos at the time of the joint discussion with Ms Coombes, she had seen them prior to giving evidence. To the extent that it matters, I thought both were impressive witnesses, each with a good deal of relevant experience, Ms Coombes being particularly articulate and persuasive. I felt I could rely upon their combined assessment where it was given and that where Mrs Whitton felt that she should defer to others, I felt that I could rely upon Ms Coombes as an objective and reliable appraiser of the issue in question. I will come to that assessment shortly, but I need to describe one aid to eating that James has which is useful from time to time and would, if used more frequently, enable it to be said that he self-feeds to a greater extent than at present. The aid is a “Neater Eater”.
- Before describing it I should record one clear area of agreement between Ms Coombes and Mrs Whitton: it is that James has good skills in being able to take food into his mouth, move it around and control it in his mouth, chew it and swallow it without aspiration, regurgitation or gastrointestinal reflux. His problems are more associated with getting the food to the mouth than with processing it properly when it is in the mouth. It is getting the food to the mouth that the Neater Eater is designed to help.
- The manufacturers describe it as an eating aid designed to enable people to use their own movements to feed themselves. It can come in a variety of forms, with varying levels of sophistication, but at its most rudimentary it constitutes a mechanical arm at the end of which is a spoon. The user grasps the arm and uses it to bring food in the spoon to the mouth. Ms Coombes described it as “quite bulky” and that it sits on a plate fixed to the table. She said that people who use such a device say that “they feel more in control and know when the food is arriving because it is very predictable” compared with being fed by somebody who is not properly trained. She was unable to say how much they continue to be used by cerebral palsy patients because very little data exists, but she was aware of people who used them over an extended period of time. Mrs Whitton had a similar view although she was aware of people who do use Neater Eaters either for one meal a day or perhaps partially during a meal. She saw it as a matter of choice for the individual depending on their capacity to use it.
- It is common ground that such a system (or at least the system that James currently has) does take up a fair degree of space on the dining table and the process of feeding in this way can be quite laborious. In their joint statement Ms Coombes and Mrs Whitton expressed the view that “the time it takes for James to eat using a Neater Eater … and the limited space available in his current accommodation are likely to discourage frequent use of the Neater Eater.”
- On any view, in the future James will be in much more spacious accommodation so it follows that one disincentive to the use of the Neater Eater will be removed or at least reduced. Ms Coombes was asked whether she saw James going on to develop self-feeding skills and, if so, how much of his calorific intake might be received by that route. Her answer is worth recording:
“The issues that I would be taking into account would be his choice. He clearly has chosen to persevere with the Neater Eater, for example. He clearly is interested in self-feeding, including taking foods directly in his hands or in a tube that stops his grasp squashing whatever he is trying to hold. So he is certainly interested in it, but it’s also clear that he doesn’t always choose to have oral eating. For example, at school, if there is something that he is going to miss, he wants to go out and play … he will opt for a gastrostomy feed. The question was about how I see the future. I think that it must be part of the future that he should be enabled to exercise choice, to select priorities … what he wants to do, but he must also be given the opportunity to feed himself as much as possible. And given the way in which his eating, drinking, swallowing regime is continuing at the moment, and bearing in mind that he is able to take drinks through a straw and so on, I don’t see why he shouldn’t be able to have a combination of gastrostomy feeding at his choice, really, and to ensure that he has sufficient nutrition, but also … when there is time and space and he wants to, then he should be able to feed himself using a Neater Eater or feed himself with assistance from another person perhaps. I was asked how much he might do that …. It is a difficult one … but given his developing abilities and his clear interest in being independent in terms of meal times and in other things as well, I do not see why it wouldn’t be realistic to think he could have perhaps a third of his nutrition self-fed. But it’s maintaining that ability for him to choose, I think, and have the flexibility. But in terms of the safety and ability to do it, there aren’t vast obstacles. It’s his busy life, really.”
- I should say that Ms Coombes and Mrs Whitton agreed that at present James received about 25% of his calorific intake via his gastrostomy. It follows that the other 75% was received either through feeding by others or as a result of such self-feeding as he undertook. There is an issue about whether using the Neater Eater would constitute self-feeding (to which I will return), but finger-feeding would also be included within that definition.
- Mrs Whitton accepted that James had already made progress with the use of the Neater Eater and that if he is in the future supported by trained carers, has the space and is encouraged to feed himself more, he is likely to do so more in future. She said that the “chances are higher” that his hand-to-mouth co-ordination will improve and the more food will arrive at his mouth via his own use of the Neater Eater in the new regime after it has been set up.
- I am, of course, focusing on this issue because of the debate about how to classify James’ present feeding pattern. Before trying to reach a conclusion on that issue, I should return to the question of the gastrostomy. As a matter of fact, of course, the gastrostomy is in place. However, the reasons for its insertion are, on the case advanced on James’ behalf, important. Dr Rosenbloom, I believe, accepted that the reason for its insertion is of some relevance although his general stance was that a “child who has required, and still requires, a gastrostomy … is more severely neurologically impaired in a general sense than one who does not have a gastrostomy.” He appeared at one stage to think that it was inserted because of the risks of aspiration. However, the evidence is clear that that was not the case. A video fluoroscopy was carried out in October 2012 and Mrs Beesley, who was present, said (and it was not challenged) that what had been thought to be evidence of aspiration was an artefact. On that basis, it is clear (and Dr Rosenbloom accepted) that the gastrostomy was not inserted for that reason. The reason does appear from the letter of Head of Speech and Language Therapy at Sheffield Children’s Hospital dated 2 October 2012. The relevant part was in the following terms:
“During the solid and liquid textures we felt that we saw some trace aspiration in James’ trachea. However, this did not move and we are not clear that this was the case so will be reviewing the disc as soon as it is available to us. Following the study, I was able to discuss with James’ family, his case manager and speech and language therapist that although James is reported to love his food and reported to eat a lot of food, I felt that the effort required in eating for a prolonged period – a meal time can take up to one hour – could be using up many calories in itself. I advised James’ family that I felt that if James had a gastrostomy through which he could have most of his nutrition, he would then be able to have shorter mealtimes, focussed on food that he really enjoyed, of textures that he could cope with easily so that he would be getting nutrition and still be able to get pleasure out of food. We discussed that we had only seen a ten minute mealtime with James where the amount of effort he expended was considerable. We have no information about James’ swallow at the end of an hour and this may increase his vulnerability.
James’ mum informed me that he had a friend with a gastrostomy and had been quite keen on having his food this way as well as the opportunity to enjoy small amounts of food at family mealtimes.”
- Although this letter suggested that the gastrostomy would constitute the route by which “most of his nutrition” would be received, that is obviously not the case in practice (see paragraph 73 above), but nonetheless it remains a useful, and not insignificant, means by which his nutrition is kept at the right levels. The suggestion is that it constitutes a “top up” process which Dr Rosenbloom was prepared to accept as an appropriate description.
- It will, I think, be apparent that reaching anything like a definitive conclusion on the issue of where James stands in the Strauss tables is extremely difficult. Dr Rosenbloom and Dr Ferrie found it difficult. I cannot help but observe that an important decision that may affect whether James receives adequate compensation or whether more public money than is necessary is spent on such compensation really ought not to turn on such questions. However, I must do the best I can on the material I have.
- Dr Rosenbloom appeared to accept that if the use of the Neater Eater was included as part of self feeding, James would probably be regarded as taking more than 10% of his nutrition by self feeding. I derived that from his answer to Mr Block in examination in chief when he said that “[if] we ignore the Neater Eater, it’s my opinion that [James] doesn’t take 10% of his nutrition by self feeding.” It seems to follow from that that he was conceding that if the Neater Eater was not ignored, the conclusion would be that James should be in the cohort of self feeding cerebral palsy patient. However, he asserted that the reference in the 2008 paper to the 10% criterion (set out in paragraph 63 above and referred to in paragraph 64 above) “clearly doesn’t include machines such as the Neater Eater.” That seems to me to be more definitive than his answer to the precise question addressed at the meeting with Dr Ferrie. The question was whether in terms of self-feeding it was agreed that it included using an aid such as a Neater Eater. It was made clear that this was not an agreed issue. Dr Rosenbloom’s answer was as follows:
“It is Dr Rosenbloom’s experience that the use of appliances such as a Neater Eater by individuals with cerebral palsy tends to be transient and time limited. In addition it is not usual for a significant amount of an individual’s nutrition to be obtained using an appliance such as this. Dr Rosenbloom does not regard the use of a Neater Eater … as indicating that an individual self-feeds.”
“Dr Ferrie notes that no guidance is given by Strauss on how the use of aids to feeding should be approached. In his experience the use of aids such as special cutlery and, non-slip mats is ‘accepted’ as being compatible with self-feeding.”
- Obviously, I have not heard from Dr Ferrie and plainly I must be cautious about preferring a view expressed by him when I have not heard him challenged upon it, but I have to say that it makes more sense to me in, if I may so describe the process and its effect, “mechanical terms” than Dr Rosenbloom’s view. I cannot see what material difference there is in the mechanics of eating if someone uses his or her hand naturally to bring the food to the mouth and someone who does so “artificially” in the sense of being assisted by some mechanical process that has the effect of dampening hand or arm movements that would otherwise make bringing food to the mouth difficult. Neater Eaters and other devices of this nature have, on the evidence, been in existence for a good many years – and doubtless have become more sophisticated with the passage of time. I am inclined to feel that if the Strauss team had for some reason wanted its readership to exclude the use of such an aid from consideration in this context, it would have said so. I am, of course, acutely aware that Dr Rosenbloom is a distinguished member of that team, but notwithstanding that I do have to be satisfied that what is advanced stands up to appropriate scrutiny and on this issue I cannot be so satisfied. I quite accept that Dr Rosenbloom’s essential answer to all this would be that not being able to self-feed properly and the need for the gastrostomy are all markers for the severity of the brain damage, but for present I am merely addressing the relevance of the Neater Eater in relation to self-feeding.
- To that extent, I conclude that James’ use of the Neater Eater would qualify for self-feeding within the Strauss tables. I cannot, of course, speak for the conclusion that might be reached in other cases on different evidence, but that seems to me to be the correct conclusion on the evidence I have heard.
- However, tempting though it is to say that that conclusion settles the issue under consideration, I do not think that it does. The evidence about how much nutrition James takes from using the Neater Eater is, to my mind, unclear. I have no doubt that on some days when it is used he will receive more than 10% of his nutritional intake by that process. That seems to me to be commonsense and in line with what Dr Rosenbloom said as recorded in paragraph 76 above. However, there must be other days when he does not use it at all or very little and if follows that the same conclusion could not be reached. I have little difficulty concluding that James can indeed manage to use the Neater Eater, as Mrs Adams said, “pretty much by himself”. That was supported by Mrs Sarah Hilton-Bailey, James’ current treating physiotherapist. However, Mrs Beesley said clearly that, in the present circumstances, it is not possible for James to access the dining room table on a routine basis to use the Neater Eater. It is partly a function of the relatively cramped accommodation in the present property and partly of the difficulties that Mrs Adams, in her present psychological state, causes. She has a lot of documentary material on the table and gets very stressed if it is moved. The carers do not feel that they can interfere with this. As I have said, I accept the evidence that James can use the Neater Eater (and indeed the short video clip supports that conclusion), but there is no convincing evidence that he uses it sufficiently regularly for it to be said that he has a consistent intake of food via this route. There were some difficulties, according to the evidence, of being able to set it up at his former school. I am not sure that I was told specifically about the arrangements at his present school, but one can imagine that similar issues would arise in a mainstream school. For my part, it seems to me more in keeping with commonsense that a person would need consistently more than 10% of his daily nutritional intake for him to be regarded, on that basis of the Strauss definition, as being within the self-feeding category and I do not think the evidence supports that conclusion as things stand.
- For reasons that I will give shortly, I do not think that the conclusion referred to in the preceding paragraph necessarily determines that James, with his present abilities, should be seen as in the category of “fed by others” if that means he is exclusively fed by others. But it does mean that I cannot accept that, as things stand, he can properly be regarded as in the self-feeding category. Although it is correct to say that the evidence has moved on since Dr Ferrie expressed his view in July last year, I do not think that the evidence supports the conclusion that, had he been available at the trial, Dr Ferrie would have modified his view again. At all events, the issue is one for me and that is my conclusion on that issue. As I have said, however, I do not think that this necessarily means that the starting-point must be where Dr Rosenbloom says it is.
- Before coming to that and other issues, the other question that arises is whether, in assessing where James should be classified within the Strauss data, I could or should take into account the fact that he has the ability to use a Neater Eater and that the likelihood (as is contended) that that he will use it much more when he is settled into new accommodation with a better and more intensive care regime than is presently available to him. The issue was addressed by Dr Rosenbloom and Dr Ferrie in their joint discussion and I think I should record their respective conclusions.
- The question was whether, when assessing life expectancy, it is important that James has the ability to self-feed or that he is actually self-feeding for the majority of the time. The answer was recorded as follows:
“We are largely agreed on this point. Dr Rosenbloom considers that the latter is more important i.e. that the individual should be actually self-feeding for the majority of his intake. It is his opinion that when considering life expectation it is actual-functioning, rather than a hypothetical potential to function, that is the relevant criterion. In Dr Ferrie’s opinion the most important factor to consider in most cases is how the individual receives the bulk of their calories. In other words he considers the latter to be most important. However, there may be individual circumstances which negate this. For example, an individual may be capable of self-feeding and may do so for one meal a day and at weekends but time pressures cause most of his meals to be given to him. In this case the ability to self-feed is more important.”
- I am not sure I can quite accept the submission made by Mr Block and Miss Greaney that this represented agreement between the experts that actual functioning, rather than hypothetical potential to function, is a more important factor when considering life expectancy if what is being suggested is that the possibility that an existing ability to self-feed, albeit not utilised regularly for whatever reason, is to be disregarded wholly for life expectancy purposes, particularly if there is good reason to believe that the ability will be more regularly utilised in the future. Dr Ferrie appears to be saying that, whilst “in most cases” the life expectancy issue will be informed by the amount of calorific intake by self-feeding, there are those cases where an unfulfilled or unrealised ability to self-feed fully on a regular basis is more important. The reconciliation between that view and the view of Dr Rosenbloom seems to me to be that, whilst the current level of actual self-feeding is more relevant to the initial placement of a person within the Strauss data, the existing ability and its potential for greater utilisation may be something calling for an adjustment to the effect of that initial classification. That is how I intend to approach this factor.
- I understand Dr Rosenbloom to accept that the starting point itself can be adjusted in an individual case. He accepted, by reference to the 2014 tables, that for a 15-year old boy there is a 12-year “life expectancy gap” between someone at the bottom of the feeding range (i.e. “fed by others”, 33 years) and someone at the top of that range (i.e. self-feeding, 45 years) and that there was a “clear linear progression”. He agreed that it would be for the court to decide where in that spectrum James was to be placed. If that is to be determined (as I have concluded) largely by reference toexisting feeding patterns, it does seem to me logical (and indeed in accordance with what the 2008 Strauss paper said) that a starting point somewhere within that spectrum should be taken rather than trying artificially to force the individual case into one end or the other of that spectrum. Whether that is merely another means of “adjustment” of the life expectancy is, perhaps, a moot point, but since there is an issue about the stage at which any adjustment for individual factors is made (see paragraphs 91 – 100 below), it seems to me more logical to alight upon a sensible starting-point and then to adjust the predicted life expectancy to reflect individual factors thereafter, particularly if some of the factors reflect the effect upon life expectancy of future changes of the individual circumstances. At all events, that is the exercise I propose to undertake.
- I have covered a great deal of the relevant ground already and I will not repeat it. I do not think that James can be regarded now as fully self-feeding. Dr Ferrie was of that view in July (as indeed was Dr Rosenbloom) and I accept that assessment as at that time. Whatever improvement there has been since July 2014 (and I accept that there has been some improvement) I do not consider that it puts James into that category. In my view, he has the ability to self-feed (albeit not to the extent that he would, certainly at present, take in his full daily calorific needs), but that ability is currently constrained by his general living conditions. He receives about 25% of his daily calorific intake via his gastrostomy and the balance largely by being fed by others, though he will receive some food by self-feeding, either using his Neater Eater or by finger feeding.
- Dr Rosenbloom does not suggest that the starting-point should be influenced by the presence of the gastrostomy (since this is not a case where all feeding is undertaken via a gastrostomy) and, accordingly, I ignore it for present purposes. So the question is where in the spectrum between 33 and 45 years should the starting-point be taken? In the light of my findings, it has to be nearer at the lower end of that range than the top end, but not so low as to place James in the cohort of those who are fully fed by others. My assessment is that, within the Strauss table, the starting point should be a further 37 years from the age of 15. In other words, provided James survives until the age of 15, then by reference to the US data he would survive a further 37 years subject to any further adjustments, upwards or downwards, that are required and/or justified by his individual characteristics.
- Counsel agreed to make the necessary calculations, but my belief was that this would mean that, provided James survived to 15, he would have a predicted life expectancy by reference to UK figures of an additional 8 years or thereabouts beyond his life expectancy if in the US (in other words, a further 45 years) subject to any of the other adjustments to which I have referred. Indeed my belief has been confirmed by the agreement referred to in paragraph 134 below.
- Before addressing any adjustments, I need to consider the disputed issue of when those adjustments are to be made – is it before or after the conversion of the US figures to the UK figures? The Defendant contends for the former, supported by Dr Rosenbloom, Mr Block and Miss Greaney arguing that it “wholly distorts the calculation” if the adjustment is not made at this stage. The latter is contended for on behalf of James. Dr Ferrie has approached matters in this way. Each side claims that logic is on their side. Dr Rosenbloom does not think it would make much practical difference because the clinical factors that would be taken into account would be similar, but adheres to his view.
- I have noted previously (see paragraph 40) that Swift J considered whether to make any adjustment in Whiten after the conversion of the US figures to the UK figures). It is right to say that no argument appears to have been put forward about the matter and equally right to say that Swift J was not particularly impressed with the approach of either of the experts in that case. She did not have the advantage of Dr Rosenbloom’s view. Whilst ordinarily I would attach great weight to the approach of a very experienced judge in this field who had the benefit of help from equally experienced counsel, I do not think I can attach quite so much weight to the approach than I might otherwise have done for those reasons. However, notwithstanding that observation, it is of particular note that the Defendant’s team in that case (doubtless instructed on behalf of the National Health Service Litigation Authority as is the Defendant’s team in the present case) took no point about this and that is something I should bear in mind.
- The first point to note is that there is nothing in any of the Strauss papers that expressly deals with this question. In his response to the issue raised at his meeting with Dr Ferrie, Dr Rosenbloom said this:
“Dr Rosenbloom considers that adjustments for age and clinical factors should be undertaken before making any upward adjustment for projected life expectation. This is consistent with the recommendation made in the Strauss et al paper.”
” … it is also the view of Professor Strauss and the California colleagues … I have assumed that because the material we are working with in coming to a view is the actual US life expectation then adjusted for clinical criteria. And to me, it made sense to get as accurate a figure as we could for actual life expectation before we made the adjustment. That seemed to me, and seemed to my California colleagues, to be the logical way to go about it.”
Q. If you do that [i.e. make the adjustments before conversion to the UK figures], because it is already recognised that there is an increased life projection in the UK, it’s unfair on the individual who is living within the UK cohort, isn’t it?
A. I think in all honesty, my Lord, it depends on whether the adjustment you make before altering from US to UK projected is whether the adjustment is upward or downward, because the proportionate amount would be increased if one is making an upward adjustment and would be decreased if you made a downward adjustment. So I don’t see it as being fair or unfair. It’s a suggested way that seems to work in practice.
- I am not wholly clear how such an approach can be said to have been shown “to work in practice” other than by concluding that its fruits seem to accord with the perceptions of “the right result” of some of those with expertise in the field. This seems to be something of a self-fulfilling prophecy. I do feel that there ought to be a logical answer to this issue.
- With great respect to Dr Rosenbloom, I have not found it easy fully to understand the position he takes on the basis of the answers given. Unfortunately, there was no recorded discussion about the issue when he met Dr Ferrie and there is nothing in Dr Rosenbloom’s letter of 31 December 2014 that clarified the approach. I do not, of course, doubt his evidence that he has discussed this with his Californian colleagues, but that is no substitute for a written analysis that has been considered by appropriately qualified experts and subjected to an effective “peer review”. It is very difficult for a court to make a decision on a matter like this without some clearly articulated material that it can scrutinise and evaluate. All expert opinions need to withstand logical scrutiny: Bolitho v City and Hackney Health Authority  AC 232, 241.
- Since the approach of the parties and of the court in Whiten was as I have indicated, it seems to me that (perhaps by default) the practice of making adjustments after the conversion may have developed. In those circumstances, if the Defendant in any case considers that this approach is wrong, it does seem to me that the onus of persuading another court that the approach in Whiten is wrong must lie on those instructed by the Defendant in a subsequent case. Dr Rosenbloom is, of course, a well-known and highly-respected expert, but, as I have indicated, merely to express an opinion without any very cogent backup is not really sufficient. If this argument is to be pursued in future it needs to be put before a court in a satisfactory fashion so that an informed decision can be made.
- I propose, therefore, to take a cautious approach (arguably marginally favourable to James) and to assume for present purposes that the approach inWhiten was correct and to say, as is the case, that I have not been persuaded that it was wrong. At a very simplistic level (which I acknowledge may, on proper analysis, be wrong), there seems to me some logic in the proposition that in a case such as this the Strauss figures should be converted to the projected life expectancy in the UK to the result of which any adjustments in the light of UK experience and/or conditions should then be made because it will be that experience that will inform the assessment of the individual living in the UK and those conditions in which the individual claimant will live and be cared for. If, for example, it is the case that the standard of future care is a relevant factor in the ultimate assessment of life expectancy, it seems to me to be distinctly arguable that the standards of care with which the domestic courts are familiar should inform whatever adjustments are made and that transposing any such adjustment into the US figures before conversion is inappropriate and illogical. At all events, I propose to hold, on the basis of the evidence and arguments I have heard in this case, that that approach is the correct one.
- What adjustments, if any, should be made in this case to the converted life expectancy of 45 years from the age of 15? It will, of course, be necessary to consider making a modest adjustment to reflect the risk that James will not survive to the age of 15. Given that it was acknowledged by Dr Rosenbloom to be a small risk, my preference would be for a modest “rounding down” of the figure finally thrown up by the calculations to which I will refer below. I have to say that working in terms of a figure after the decimal point in what is acknowledged to be the world of an inexact science seems inappropriate: none of the Strauss tables are presented in that way. However, I will return to this at paragraphs 135-137 below.
- It will be appreciated that no further downward adjustment is required by reason of the fact that James is still “fed by others” to a material degree: that factor was taken into account in deciding where in the “33 – 45 year spectrum” (see paragraph 89) James was to be placed by way of a starting-point. The logic, as it seems to me, is that if there were grounds for thinking that the amount of feeding by others was likely materially to increase in the future (thus giving rise to whatever increased risk is associated with that process), there might be scope for some reduction in the projected life expectancy. However, the evidence is very much the other way: as I have already said (see paragraph 88), James already has the ability to use a Neater Eater and, given his very positive approach to life and his plain wish to act and behave as much as possible as do those without disability, I have no doubt that he will increase its use once he is in his new accommodation and has the full care regime in place. For my part, that seems to me to be a factor that would require some degree of upward adjustment. I will return to the “quantum” of that adjustment later. I cannot see that there is any fundamental objection to this course because Dr Rosenbloom himself made an adjustment upwards to reflect James’ existing self-feeding skills when he revised his initial life expectancy assessment (see paragraph 57 above), although I perceive his general position to be that future improvements are irrelevant. I will deal with that particular aspect shortly.
- In relation to the gastrostomy, Dr Rosenbloom maintained his view, notwithstanding a searching cross-examination by Ms Rodway on the issue, that this remained a negative factor and required a downward adjustment of two years. It will be recalled that Dr Ferrie in July 2014 (but without access to the new Strauss papers) regarded this as “a weak negative factor”. Some part of the 8 years by which he reduced his starting point of 71 years was attributable to this, but it can safely be assumed that it was a fairly modest part of the overall reduction.
- James is not, of course, tube-fed in the sense that all his nutrition comes via such a route. If so, he would have been in a very different cohort of cerebral palsy patients. The extent to which he currently relies upon it is set out above (see paragraph 73). It was put in place, not because of the risks of aspiration, but for convenience purposes given the length of time eating in a more conventional way required: he is a young man and does not wish to spend too long eating in that way if there is a quicker method. It has, by all accounts, paid dividends and he has put on weight since its insertion.
- As previously observed (see paragraph 44), the most recent Strauss paper describes the more liberal use of gastrostomies for children with less severe disabilities and the philosophy on the part of some clinicians that a “mixed tube and oral feeding pattern” was acceptable or desirable. In this kind of situation, there seems to be something of a trend away from regarding a gastrostomy as a significant constraint on life expectancy. Indeed Dr Rosenbloom’s article (see paragraph 62 above) appears to me to foreshadow the viewpoint that a gastrostomy can have a positive impact on life expectancy in some circumstances. James is certainly a child who “is adequately nourished and free from the risk of aspiration”. On that basis, according to Dr Rosenbloom’s article, he is “likely to have a longer life expectancy than one who is orally fed but is failing to thrive and has recurrent respiratory infections.” I did not fully understand why Dr Rosenbloom thought that this consideration did not apply in James’ case.
- Ms Rodway and Mr Latimer-Sayer invite me to say that the gastrostomy should be seen as a positive factor in James’ case: it acts as a useful top up for James’ calorific intake which is positive. However, it is, to use laymen’s language, a piece of inserted medical equipment which presumably carries its own negative impact. However, it does seem to me that the 2014 papers, when seen in the light of Dr Rosenbloom’s earlier view, do put the existence of a gastrostomy in someone like James marginally on the positive side of the equation than the negative side even allowing for the artificial nature of the intervention to which it gives rise. I will return to this later.
- The next matter for consideration is whether some positive adjustment upwards is justified by reference to the quality of care that James’ will receive for the rest of his life. The care package is secure for the rest of his life and, whatever the precise outcome of the case, it is likely that there will be sufficient free capital (or further periodical payments) to ensure that the essential quality of the care package will be maintained and that essential equipment will be updated. Ms Rodway and Mr Latimer-Sayer submit that common sense suggests that James will have a significant advantage over other people in his cohort because of his ability to pay for good quality care, accommodation, equipment, therapies and so on. This positive feature justifies an upward adjustment of the predicted life expectancy.
- In his 2004 article (see paragraph 62), Dr Rosenbloom said this:
“…when clinicians are asked to give an opinion on the prognosis for survival in medical negligence or personal injury litigation … figures that are statistically derived from the epidemiological studies can and should be weighted for clinical factors. What is less certain it is whether it is appropriate to weigh statistically derived figures in relation to assumed future quality of care. Whilst it is intuitive to attempt to do this there is hitherto no supportive published evidence.”
DR ROSENBLOOM: My view, my Lord, is that poor care is very likely to produce a reduced life expectation, if the individual is neglected, not attended to, not properly nourished, skin isn’t attended to and so on. In the UK and in my own practice generally that is so exceptional that I believe it can be discarded. I have never found evidence that the converse of exceptional care prolongs life expectation, and I think that the reason for this is that the reasons people die once you get an appropriate average standard of care relate to illnesses that would cause them to die anyway, rather than the more that they are cared for, the longer that, in statistical terms, they will live. That’s my best guess.
MR BLOCK: Can I see if I have understood that. You are saying that the [Strauss paper] deals with average care?
Q. And if someone has very significantly below average care, then that would be detrimental and could well result in a lower life expectation?
A. I believe that’s probable, yes.
Q. But increases from the average upwards, there is no evidence that that has a positive effect on life expectancy?
MR JUSTICE FOSKETT: It’s somewhat counter-intuitive that, though, isn’t it?
A. I have said that myself, and in the 2004 paper that is included in this I have actually used the phrase “counter-intuitive”, so I wholly agree with you, my Lord. But we can’t find the evidence. It’s interesting that, looking at other papers on care from the United States, it does seem that people living in residential institutions where there may well be an average standard of care live longer on average than those living at home. So there is quite a lot that’s counter-intuitive about this, and I think that the issue that we have to look at is quality of life, rather than longevity. And here, I have no doubt that a very high quality of care, the sort of activities that have been talked about for James, will enhance his quality of life but, let me give a crude example, they are not going to stop him dying from a heart attack or a stroke.
MR JUSTICE FOSKETT: No, I understand that.
- In cross-examination he accepted almost all the points put to him by Ms Rodway about the life-style that James will have and the care regime to which he will be subject: points such as the 24/7 availability of trained carers who could deal with any physical problems arising from the gastrostomy and reducing the risk of any aspiration or choking whilst eating; the availability of good quality accommodation with good quality hygiene and cleanliness; access to all the equipment required to remain mobile; access to physiotherapy, speech and language therapy and any other necessary therapies; access to private medical treatment and access to private occupational therapy ensuring seating reviews; and the ability to be transported appropriately and to take holidays. He accepted that the quality of the care received would be likely to improve the quality of James’ life, but he maintained his position that there was no evidence that these factors increased longevity. He said there was no data to support it.
- The issue was re-visited again during his cross-examination and I think it right to record the interchanges:
MS RODWAY: … one of the features … we differ on, is your dismissal of the improved features: good care, good socio-economic factors on expectation of life. That’s something you set your face against.
A. I thought we had said earlier in cross-examination that I cannot find evidence to support that, but I agreed with his Lordship that to an extent this is counter-intuitive.
MR JUSTICE FOSKETT: I was just reflecting on this over the weekend. How would you find evidence of this? I mean, this is the age-old problem. You can’t run a survey with one cohort of 12-year olds and you give them the best care in the world, and another cohort that you don’t give them any care at all.
A. No, you can’t, my Lord. One of my constant theses that I have looked for research funding for is to follow up individuals who have been successful litigants.
MR JUSTICE FOSKETT: Yes.
A. Funding for that has never been made available to me.
MR JUSTICE FOSKETT: No. But you indicated — I was looking back at the transcript and I hope I quote you correctly — that there was some evidence, I think, in the States that those who were looked after in institutions fared better than those who were looked after at home?
MR JUSTICE FOSKETT: But I think you put that on the basis that those who were in institutions would have an average level of care, I think was the way you put it?
A. I believe so, my Lord.
MR JUSTICE FOSKETT: But it may be said, well, actually, those who are in institutions will be more constantly monitored than those who happen to be at home. If they happen to be at home with a first class care regime, that may be one thing, but if they are simply at home being looked after by a family with no resources, then of course, it’s rather difficult to draw such a conclusion.
A. I agree completely, and I hope that I was honest about that because, of course, the other thing that would, that could be argued was if you were in some sort of care regime you would not have regular and consistent caretakers and that could be disadvantageous. It could be argued either way, and I agree with you it could be very difficult to demonstrate what is intuitive, that the sort of care that James receives will in his case prolong his life. I understand what has been put to me. I can’t support it because I don’t know.
- It is, perhaps, that last comment of Dr Rosenbloom that really emphasises his position. He does not know whether socio-economic factors (including the quality of care) make a difference because, from his perspective, there is no reliable clinical or other scientific evidence upon which he can say positively that they do make a difference. From a purist perspective that does seem to me to be a perfectly reasonable and respectable position to take. However, my concern, which was foreshadowed in one of my questions to Dr Rosenbloom, is that it is difficult to see how any statistically reliable evidence to support or refute the proposition that good care extends the life expectancy of a cerebral palsy patient will ever emerge because no ethically acceptable experiment can be set up to test it. (On reflection I think my suggested need to compare a cohort of patients who receive “the best care in the world” and those who receive “no care” is a little stark, but the point is that a statistically valid exercise in which one cohort of patients is given first-class care and another has deliberately reduced care in some areas in order to compare survival rates would not be ethical.) Whilst I do not, of course, criticise this purist perspective as such, I do not consider that it binds the court to adopting the same approach. The court is never bound by scientific certainty in these matters and Dr Rosenbloom is the first to acknowledge that the whole issue is not an exact science in any event.
- I do not see why the court cannot, in an individual case, seek to identify the risks that exist in an individual’s life if he or she is a cerebral palsy patient and then consider the life that such a patient is likely to lead in the future and to determine how large those risks in truth are likely to be in that individual’s life. In some cases, of course, the best care in the world may not obviate or materially reduce those risks. But there may be other cases in which it is quite plain that the risks to life are reduced by the quality of care to be received and if that can be demonstrated as the likely scenario I cannot see any reason in logic for the court not giving effect to that conclusion in the individual case by adjusting the life expectancy thrown up in the generality of cases based upon the available statistics.
- I will for the present leave to one side the fact that Dr Ferrie is plainly of the view that this is a legitimate approach and I will consider whether there is other thinking (or indeed authority) that supports this general approach. It is clear that there is. On the basis of a number of cases where the claimant has sustained serious spinal injuries in an accident, it has been the agreed position of the experts that the likely quality of future care affects the life expectancy prediction. The courts have accepted this approach and, as I will indicate, in at least one case the court has adopted this approach in relation to a cerebral palsy patient. However, as it seems to me, there is no material difference between the type of disability under consideration: in each case the disability will give rise to particular risks as to mortality beyond the ordinary risks of mortality and the court has adopted the position that where those additional risks are reduced by reason of the quality of care to be received in the future, that is a legitimate basis for making an adjustment to the life expectancy prediction thrown up by reference to such statistics as are available.
- In Owen v Brown  EWHC 1135 (QB);  All ER (D) 534 (May), the claimant, then aged 20, sustained very serious injuries in a road traffic accident, including head injuries, and was rendered triplegic. The court had to assess aspects of his damages claim (which was being met by the defendant on a 90% basis). As Silber J said, a critical factor in assessing most of the items of future loss in the case was the claimant’s life expectancy. It was necessary to consider it in detail. The opinion of the very experienced Consultant Spinal Surgeon, Mr. Brian Gardner, who reported for the claimant, was that the claimant would live until the age of 70. Dr. John Evans, the Consultant Neurologist, called as the defendant’s expert on life expectancy was of the view that the claimant would live until the age of 60 although “in recognition of the difficulties of estimating the life expectancy of the claimant, he was prepared to accept that the life expectancy of the claimant could be 62.5 years.”
- In the event, Silber J preferred the thrust of Mr Gardner’s evidence to that of Dr Evans, but indicated that he would have to scrutinise it carefully. I will indicate one or two matters of potential relevance in the judgment, but it is, perhaps, worth recording that Dr Evans shared the view of Mr Gardner that when assessing the life expectancy of an individual “the quality of care supplied to the individual concerned [is] significant:” . One of the positive factors taken into account by Mr Gardner that would increase the claimant’s life expectancy was “the financial ability of the claimant to have access to good medical care and to take advantage of medical advances.” Silber J said that he regarded this as a “valid and significant point”.
- Silber J reviewed extensively the worldwide statistical material available concerning the survival of spinal injury patients to which Mr Gardner had referred and which he took into account in advancing his opinion on the life expectancy of the claimant. One passage in the judgment of note in this context is where Silber J recorded Mr Gardner’s reasons for saying, as was the case, that there were better survival rates in Australia than the UK. The passage is as follows :
“Mr. Gardner does not think that there in anything intrinsically different between the Australia and United Kingdom populations. He concludes that the probable reason for the better life expectancies in Australia is the better care facilities available for those with spinal injuries in Australia. Mr. Gardner points out that the United Kingdom spinal cord injury service is seriously under-resourced. For example, 42% of United Kingdom patients with complications to their spinal cord injuries cannot gain access to specialist facilities. The claimant with the benefit of his damages award would not be constrained by these limitations and fortunately he will be able to purchase and will continue to have the benefit of very good care.”
“Mr. Gardner stressed that in his opinion that there was a trend to increasing life expectancy for those with spinal cord injuries and that it will continue to increase for those, like the claimant who are financially able to have access to good treatment and to further improvements that will arise in the treatment of spinal injuries.”
- Having scrutinised Mr Gardner’s evidence with care and having taken into account the guidance given by the Court of Appeal in The Royal Victoria Infirmary and Associated Hospitals NHS Trust v. B (A Child)  EWCA Civ 348, an important case in this context, Silber J said this :
“My conclusion is that Mr. Gardner’s assessment of the claimant’s life expectancy is correct. I strongly agree with Mr. Gardner that a significant positive factor that he correctly took into account was and is the very high standard of care that the claimant receives and will receive. The effect of the award in this case is that the claimant will be the beneficiary of very high quality care in all the areas in which he requires it.”
- A similar approach was adopted by Lloyd Jones J, as he then was, in Sarwar v Ali and the MIB  EWHC 274 (QB) in a case involving a claimant who became a C5 tetraplegic following a road traffic accident. It does not appear to have been disputed between the two experts called on each side that socio-economic factors could have an impact on life expectancy, though there was a difference as to the extent. By way of explanation of the following passage from the judgment, the judge’s attention had been drawn to a paper by Krause and others :
“Nevertheless, I consider that there is force in the submission that such socio-economic factors are likely to have a favourable impact on the life expectancy of the Claimant. I did not understand Mr. Tromans to deny them any effect. While I am unable to accept that their impact is likely to be as dramatic as the Krause paper contends, I nevertheless consider that these favourable factors should be given weight in assessing life expectancy in the present case. In this regard I attach particular importance to my finding that the Claimant will use his award to purchase high quality care and medical services.”
- Burton v Kingsbury  EWHC 2091 (QB) was another case in which a young man was rendered a C4 quadriplegic in a road traffic accident. The experts on life expectancy in that case were Mr Gardner and Mr Tromans, the former taking the view that the claimant’s life expectancy of 69 years whereas Mr Tromans said it was around 62-63 years. Flaux J recorded  that “Mr Gardner’s evidence in his report is that probably the most important determinant of life expectancy for a spinal cord injured person was the quality of care” and that he (Mr Gardner) had relied upon, inter alia, the Krause paper, to which reference was made in Sarwar’s case, in this connection. Mr Tromans had drawn attention to two critiques of the Krause paper both of which emanated, at least in part, from Professor Strauss (the contention in essence being that the inclusion in the cohort under consideration of workers’ compensation cases skewed the results in favour of suggesting greater longevity). The precise criticisms are probably not relevant for present purposes because it would seem that Mr Tromans adhered to his view that socio-economic factors could have a bearing on life expectancy, but Flaux J’s conclusion, having referred to the Krause paper, is to be noted. He said this :
“I accept that the different social conditions and health care arrangements in the United States (particularly the complete absence of a state run health service corresponding to the NHS) should make one cautious of placing too much reliance on the Krause study. Furthermore, there seems to me to be some force in the argument that workers compensation cases should be discounted because in an American context they represent a generally healthier segment of the population. Having said that, in my judgment, the overall point made by Mr Gardner, which he adhered to, irrespective of the workers compensation argument, that favourable economics improve life expectancy in persons with [spinal cord injury] is a valid point, which I accept.”
“In the Joint Statement prepared by Mr Gardner and Mr Tromans, Mr Gardner expressed the opinion that, notwithstanding the doubts expressed about the workers compensation element of the Krause study, there is robust evidence apart from the Krause study that economics impact on longevity. I agree and consider that any suggestion to the contrary in the Strauss materials is flawed.”
- There is, therefore, a clear line of thinking, accepted in those three cases, that the future quality of care can affect the life expectancy of the spinal injury patient. There is, it would seem, some reasonably extensive statistical evidence to support the validity of this factor in spinal injury patients and, of course, people like Mr Gardner and his colleagues will see patients for many years of all ages. However, as I have said, I cannot see any logical difference between patients with that disability and those who possess disabilities associated with cerebral palsy when it comes to considering such a factor. If there was compelling statistical evidence to the contrary, a different view may have to be formed, but until then I do not see why the common sense proposition that good and conscientious care will reduce mortality risks should not be adopted and reflected appropriately.
- It was adopted by His Honour Judge MacDuff QC, as he then was, in the unreported case of reasonable needs v Shrewsbury NHS Trust, 14 June 2007. Ms Rodway and Mr Latimer-Sayer have drawn my attention to the following passages in his judgment in relation to the issue of life expectancy:
“144. For reasons which are given above, I get no assistance at-all from Professor Barnes. But, in spite of Dr Thomas’s evidence that he saw no reason to adjust the statistical result (“it is the best evidence we have”) I propose to adjust the life expectancy figure by three years in the Claimant’s favour. I hold that her expected life span is to age 40. There is just one reason for this. [She] will have the benefit of a first class care package. This undoubtedly helps to guard against the risks associated with the main risk factors. Round the clock nursing care, which [she] will have, will, for example, guard against the risks associated with skin pressure ulcers. With good care, skin ulcers should not be a problem. But if they were to occur, ameliorative nursing measures would be brought to bear, at the first sign. The risk of aspiration may also be used as an example. Good feeding, carefully supervised, should guard against aspiration. And there would be a good early warning system, with prompt and appropriate medical treatment. An epileptic seizure would be detected immediately with the proper treatment. And so on.
145. Dr Thomas accepted this. He accepted that good care will make a difference. Of course, we do not know about the care enjoyed by the average member of the California database. Some will have excellent care; some, I guess, as good as that which [she] will enjoy. Many will not. Whatever is the position, [her] care package is likely to be well above the average. Unfortunately nobody asked Professor Strauss for his observations upon this and whether he could help with hard evidence about the care given to the members of his group across the range. Nor was he asked about the effects of excellent nursing care upon the results of his analysis. I should perhaps also take account of the fact that [she] will be living in a stimulating environment with loving parents, an opportunity for “swimming” in a spa pool of her own … and regular holidays. This might also have an impact upon her prospects.
146. In the final analysis, it is impossible to judge how far to go. Why should I assume an extra three years rather than an extra two years or some other figure? It is not something upon which I have expert evidence, and, in the end, it comes down to a judgment based upon a general feeling for the case. I cannot justify a three year uplift as opposed to any other figure. It is a decision made with the help of the judicial fingertips. I find that [her] expectation is to age 40″.
- I infer from that extract that Dr Thomas (almost certainly Dr Neil Thomas, an experienced Consultant Paediatric Neurologist, who gave evidence inWhiten for the defendant) had given evidence on behalf of the defendant and had “accepted that good care will make a difference” to life expectancy. That, of course, suggests that it is not universally accepted that the issue is irrelevant. That case was in 2007 and, as Judge MacDuff said, no-one had asked Professor Strauss about the issue. (Professor Strauss had given evidence in that case by video-link.) Had they done so, one assumes the answer would have been along the lines of the following passage in the 2008 paper which was accepted for publication in December 2007:
“The effect of quality of care on life expectancy is frequently discussed, and it is sometimes asserted, without any supporting evidence, that quality of care is a critically important factor. This issue is more complex and less clear than is often assumed and the following brief discussion summarizes some of the reasons for this. Some of these points have been made at greater length in a recent review article on life expectancy after traumatic brain injury by Shavelle et al. Quality of care is a rather vague term that may refer to any or all of the following:
(1) The expertize of the caregivers, ranging from highly qualified professionals to relatively unskilled (and low paid) staff. A complicating factor is that caregivers are often family members, who generally do not have formal qualifications but in some cases become highly skilled carers.
(2) The accessibility of physicians and emergency services.
(3) The quantity of care and equipment provided, which is often a reflection of the funds available.
Next, the effect of quality of care on life expectancy surely depends on what is being compared. If, for example, it is good care versus grossly inferior care, the difference in life expectancy will doubtless be large. That comparison, however, is generally not of interest. The most relevant comparison is between (1) the reasonable and necessary standard care available in most developed societies, and (2) the care expected given that the patient has a carefully prepared and well-funded life care plan.
It might be argued that the care embodied in (2) represents the best case in practice, as one cannot forecast exactly what care the patient will receive, or will choose to receive, in the coming decades.
It is sometimes asserted that quality of care is the most important determinant of life expectancy. If the comparison is between (1) and (2) above, this assertion is clearly wrong: the most important determinant is undoubtedly the severity of the disabilities. For example, literature from many countries documents that young patients in the permanent vegetative state have mortality rates up to 500 times larger than in the general population. If quality of care is as important a determinant of mortality risk, then death rates under ‘standard’ care would have to be 500 times higher than they would be under (2). This is surely inconceivable.
Further, some states or countries provide services to individuals with disabilities as an entitlement. For example, California provides annual person-centered individual program plans plus provision of all indicated care. In such cases it is not clear what is the difference, if any, between (1) and (2) above ….”
- Mr Block and Miss Greaney have drawn attention to that passage and have submitted that it means that “the distinction between reasonable and necessary care and a well-funded care plan is probably not relevant.” I note that they do not use the expression “plainly not relevant”.
- I confess to finding the passage in the 2008 paper rather difficult to follow and would have valued meaningful elucidation. On a straightforward reading it does not say specifically that the quality of care is irrelevant; it suggests that the issue is “complex and less clear than is often assumed.” The passage undoubtedly challenges the view that it is a “critically important factor” in assessing life expectancy. However, the way that the issue has been advanced in the cases to which I have referred (and indeed the way it has been advanced in this case) is in a less extravagant manner than is conveyed by that expression: it is to the effect that where there is good reason to believe that the quality of future care will reduce some identifiable risks to life, then it is appropriate to reflect that in the overall assessment of life expectancy.
- Dr Rosenbloom’s position is, as I have said, that there is no evidence to support this approach and I have already indicated my view about that (see paragraph 112 above). He also asserted many times that it is the severity of the brain damage that operates as the true constraint on survival and that all the individual features of James’ presentation are simply markers of the acknowledged severity of his brain injury. As I understood him, this viewpoint was emphasised in the context of the debate about where to place James in the Strauss data. Dr Rosenbloom would not accept, for example, that merely because James has shown no tendency towards aspiration at present his lifetime risk of aspirating is in some way diminished. However, it needs to be understood, in the context of the issue about whether an adjustment can be made to the life expectancy prediction because of anticipated good quality future care, that the relevance of the care relates to the reduction in the likelihood of the risk materialising in a way that is unheeded and thus not acted upon before death occurs. The two issues are, in my view, different.
- Having concluded that it is legitimate to increase the life expectancy prediction in the light of the future care that will be available to James, by how much should the prediction referred to in paragraph 89 above be increased? The nature of the overall care package available to James in the future will be apparent from the balance of this judgment (and indeed is reflected in paragraph 110 above), but in summary he will have 24/7 care from 2 trained carers with the availability of many aids and items of equipment that will enhance his mobility and ability to communicate. In addition he will have available other therapies and access to the opportunities of appropriate exercise and recreation that might be denied to others who do not have the means to access such a regime.
- Because he does not subscribe to adjusting the prediction for this reason, Dr Rosenbloom did not put forward a figure for the adjustment on this account. Dr Ferrie had suggested a 3-year increase (against the background of an 8-year decrease because James was not to be regarded as fully self-feeding and the presence of the gastrosomy as a “weak negative factor”: see paragraph 53 above), though some part of the increase was on account of the particular type of cerebral palsy that James has. I understand that Dr Ferrie’s position in relation to that matter is that the high level of dystonic movements means that James is constantly “exercising” and, accordingly, the lack of mobility (with its associated risks) that afflicts some cerebral palsy patients does not apply to him. Dr Rosenbloom clearly disagreed with this view and, without further explanation from Dr Ferrie or some clear support in the literature, I do not think I can act upon it. Because it appears to be a somewhat novel suggestion I propose to assume that it accounted for a modest proportion of the 3-year period he advocated.
- In Lewis, Judge MacDuff had no expert evidence to guide him on the amount of any adjustment to be made on account of the good future care that could be anticipated in that case (other than support for the proposition that he was entitled to make such an adjustment) and, as he said, it was a matter of judgment based upon a general feel for the case assisted by “the judicial fingertips”. I might observe that in that case the claimant was to receive 90% of the full value of her damages claim, not 100% as James will.
- In this case I do have Dr Ferrie’s view, albeit not one tested in cross-examination. Nonetheless, his approach was to look for a modest addition on this account and it would be difficult to see his 3-year period of itself to be excessive given the lengthy life expectancy otherwise predicted for James. I have also had the advantage of a detailed analysis of the factors that do or do not constitute constraints upon survival for someone like James. Although those matters go largely to where in the statistical cohort he should be placed, they have a bearing on the impact that future care may have. Overall, I consider that adding an additional 2 years for the quality of the future care and the lifestyle to which it will give rise in this case will not operate as an injustice to either party. If anything, it may be on the conservative side.
- Furthermore, it seems to me to be appropriate to regard the continued presence of the gastrostomy and the likely increase in use of a Neater Eater once James’ new regime is in place in his new accommodation to be factors that combine to warrant a modest uplift in the way that, had she felt there were such factors in Whiten, Swift J would have considered appropriate in that case “to reflect individual features in the claimant’s case.” I do not think it unreasonable to assume that Dr Ferrie included a 1-year reduction within his overall 8-year reduction for the “weak negative factor” of the gastrostomy given that Dr Rosenbloom had suggested 2 years because of the “clinical need” he then perceived for the gastrostomy. Equally, therefore, it seems to me reasonable to add 1 year to reflect the modest positive factor to which, in my judgment, the gastrostomy gives rise combined with the positive feature of greater self-feeding in the longer term by using the Neater Eater, albeit that both aspects of James’ daily feeding pattern will be watched carefully by his trained carers.
- My overall conclusion, therefore, is that a total of 3 years should be added to the predicted life expectancy before any reduction is considered for the risk that James will not survive until 15. It is agreed by Counsel that this means that the life expectancy, subject to any such reduction, is to age 63.2.
- I have mentioned the small risk that James will not survive until 15 in paragraphs 56 and 101 above. I expressed the hope that I could make a modest “rounding down” to achieve a whole-figure life expectancy because a life expectancy with figures beyond the decimal point seems to me to be inappropriate in this context. It does appear that this can be achieved.
- Dr Rosenbloom had suggested a reduction of 1 year and Dr Ferrie had suggested a 0.25 year reduction at the time of the joint statement. Dr Rosenbloom accepted in cross-examination that it was less than a year since the trial was 6 months on from the joint meeting and James had remained well. He said “precisely what” reduction should be made was uncertain and said that “the risks are that in spite of the excellent care he receives, … he could have an overwhelming infection from which he would die [or] that he may have an episode of status epilepticus.” Those were identified as the risks, but they are, he said, “small and the downward adjustment is small because of that”.
- Against that background, I would have proposed taking Dr Ferrie’s assessment, now very nearly 9 months since the joint meeting. This would indeed have reduced the life expectancy to as near to age 63 as would make no difference. If I had acceded to Mr Block’s suggestion in his closing submissions that it is reasonable to adopt 0.5 years, the rounding up of the figure of 62.7 would also achieve the same result. Whichever route is adopted, the relevant age is age 63.