In Swift v Carpenter [2018] EWHC 2060 (QB) Mrs Justice Lambert carried out a detailed consideration of the value and cost of prosthetic legs. It is unusual for this issue to be considered at length and the judgment is worth reading for that issue alone. Gordon Exall looks at the key points to come out of the judgment
THE CASE
The claimant was seriously injured in a car crash. She underwent a left sided trans-tibial (below knee) amputation as a result. One of the issues before the court was the appropriate prosthetics to use, and their subsequent costs.
KEY POINTS
- The claimant’s choice of prosthetic leg was accepted as reasonable.
- Whilst the claimant should have tried the prosthetic leg that had been recommended by the defendant, the failure to do so did not lead to her case failing. The leg she had chosen was one recommended by treating doctors.
- A claim for separate water and sport limbs were also allowed.
THE JUDGMENT ON PROSTHETICS
Prosthetics
24. Given its direct bearing upon the Claimant’s independence, the logical starting point is the dispute concerning the prosthetics. I heard evidence on the topic from the Claimant, Professor Saleh, Professor Hanspal and from the prosthetists, Mr Nieveen and Mr Sullivan.
i)The daily activity limb or “everyday” limb
The Claimant’s Case
25. The Claimant’s current everyday limb is the Elation prosthetic which was recommended by Mr Abdo Haidar of the London Prosthetic Centre. It is a trans-tibial, modular prosthesis with a foot incorporating a heel device which can be adjusted by the user to accommodate shoes up to 2 inches in heel height. The limb is fitted with a high definition silicone cosmetic sleeve which gives a very life-like appearance. The ankle joint of the Elation prosthesis is however fixed, preventing natural plantar and dorsiflexion and “rolling through” of the foot during walking, producing a flat-footed gait. It was common ground between the relevant experts that this problem is compounded by the stiffness of the ankle and midfoot on the right side. The combined effect of the fixed ankle joint and the stiffness on the right side is that, although not intrinsically a particularly heavy prosthetic, the Elation is a relatively tiring limb to wear. The Claimant also found that the fixed ankle presented an embarrassing tripping hazard to those around her. With legs crossed the foot sticks out in front; alternatively if the knee is bent so that the foot is flat on the ground she gets chafing and pain around the socket. The only comfortable pose for sitting for any reasonable period of time is with the leg stretched out in front of her.
26. These problems led Claimant to discuss with Mr Haidar the possibility of a more versatile limb which would incorporate ankle movement. She told me that Mr Haidar recommended that she test a Meridium prosthetic which is fitted with sensors and a microprocessor ankle enabling the foot to conform to the ground and to flex up and down in a similar way to a natural foot. She was fitted with the Meridium for a three-week trial period and used it daily for hill walking, general pavement walking, gym work and for Pilates. She told me that the Meridium made a real difference to the way in which she walked. Not only did it permit a more natural and smooth walk, but it also saved energy, particularly when walking on uneven surfaces or inclines/declines. She felt more stable, there was no jolting of the hip when she stepped on stones or bumps and she felt much more confident when walking on uneven surfaces and hills whilst on her own or when pushing the pram. She said that she had more energy for other activities. Also, when sitting down she was able to bend the knee and her ankle would naturally adjust. She was also able to use it when wearing heels. The essential problem with the Meridium prosthetic is that it cannot be fitted with a silicone cover. It is eye-catchingly unsightly. The “trade off” for the improved function of the Meridium is therefore that it can only be worn with trousers or a longer skirt.
27. I was shown a short series of videos depicting the Claimant wearing the Elation prosthetic and the Meridium prosthetic. I can deal with these relatively shortly. There was no disagreement that the Meridium enabled the Claimant to walk more quickly; that her gait was more symmetrical and that she was able to turn more freely. She seemed to be able to climb stairs with less effort. These points were obvious to a lay person. What was less obvious to the lay eye was the effect of the Meridium prosthetic on the right foot function; Professor Saleh explained that the two feet try and “match” each other and, as the left prosthetic foot was rolling through during walking, there was a more normalised rolling through on the right also. Professor Hanspal told me that he largely agreed with Professor Saleh’s assessment of the improvement in the Claimant’s gait using the Meridium.
28. The Claimant also trialled an alternative prosthetic, the “Kinnex”. I need say no more about that limb given that it is not advanced by the Defendant as a realistic alternative. The Claimant did not however trial the Echelon prosthesis, notwithstanding that it had been recommended by the Defendant’s expert, Mr Sullivan. Her explanation, when questioned by Mr Audland on the topic, was that the limb had not been recommended to her by her treating prosthetist, Mr Haidar, whose clinical preference was for the Meridium. She told me that Mr Haidar’s view was that the Meridium was the better limb for her as it afforded a greater degree of ankle movement than the Echelon and would enable her to wear a wider range of shoes.
29. The Claimant told me that, understandably, there are occasions particularly in the summer when she wants to wear a shorter dress or skirt without attracting untoward attention to her disability. The Claimant therefore seeks the costs throughout life of two everyday limbs: the Elation and the Meridium.
The Defendant’s Case
30. The Defendant submits that the reasonable choice of everyday limb with an “intelligent ankle” is an Echelon prosthesis which differs from the Meridium in that the internal workings of the ankle joint are hydraulic. The Defendant argues the Echelon performs to the same standard as a Meridium (in conforming to different contours) and will enable the Claimant to walk safely and comfortably on uneven terrain, including going uphill. It has further advantages which the Meridium does not have: it is intrinsically lighter, it can be fitted with a silicone sleeve for cosmesis and it does not require batteries (which need to be re-charged). It is accepted by the Defendant that the down-side of the Echelon foot is that it cannot accommodate different heel heights unless the adjustment is made by the prosthetist, involving a trip to the Clinic.
31. I note that the significance of the dispute concerning the type of everyday limb (in quantum terms) has receded considerably in the light of the concession made by the Defendant in closing submissions. The argument advanced by the Defendant in the Counter Schedule and at trial was that the Echelon prosthesis would operate as a replacement of the Elation limb and therefore only one type of everyday limb would therefore be reasonably required. No allowance was made in the Counter Schedule for the costs associated with the ongoing provision of the Elation prosthesis. In closing however, the Defendant accepts that the Claimant has a reasonable ongoing need for the Elation in addition the Echelon. Mr Audland submits however that:
i) I should award the costs of the Elation prosthesis only to the Claimant’s age 78.58 (therefore over a period of 35 years) on the basis that cosmesis and the wish to wear higher heels will reduce in later years, particularly given the prognosis for the right foot and the possibility of accelerated degeneration in the event of the Claimant undertaking high impact sport.
ii) He maintains his primary case that I should allow the costs of the Echelon prosthesis (in addition to the Elation) but that in the alternative I should make an adjustment to the capitalised cost of the Meridium over the course of the Claimant’s life to reflect the possibility that there is a real prospect that the Claimant may in later life adopt the Echelon. He proposes a deduction of 10% to reflect this chance.
Meridium v Echelon: Discussion
32. The relative pros and cons of the Meridium and Echelon prosthetics were debated at some considerable length at trial. Professor Hanspal, of all of the experts, was probably the greatest advocate of the Echelon and did not accept that the Echelon range of ankle movement was appreciably less (although said that this issue was a matter for the prosthetists). He thought that an hydraulic foot conferred all of the gait benefits of the Meridium. Both Mr Nieveen and Mr Sullivan accepted that the Meridium was the heavier prosthesis, had the disadvantage of using battery power and did not come with a silicone sleeve. Both accepted that the Echelon prosthesis would involve the Claimant in a visit to the Clinic if she wished to wear higher heeled shoes. As to their relative function, Mr Nieveen was effectively cross examined by Mr Audland that it would be expected that the Echelon would provide a similar level of comfort and stability for the Claimant.
33. However, although I have been invited by both parties to express a preference for one expert over the other on the basis of points scored in cross examination, in the end, my resolution of this aspect of the claim does not turn upon the expert evidence. All of the experts were in the same position in that, although each expressed marginal preferences, none were in a position to advance a positive case for the Meridium over the Echelon, or vice versa, in the absence of the Echelon prosthesis ever having been tried by the Claimant.
34. It was clear from the evidence overall that there exists a range of functionally good prostheses, all with slightly different pros and cons. Professor Hanspal in his evidence mentioned, almost in passing, that there was another prosthesis which was not in a UK catalogue (but available in the US) with an adjustable hydraulic foot. The point was not developed, not least because it emerged at such a late stage, but it illustrates the range of potentially suitable prosthetics and that there is no single “right” artificial limb for any particular amputee. Outside the medico-legal context the clinical experience of the prosthetist and the personal preference of the user are likely to determine which one is eventually prescribed, rather than claims made by the manufacturer as to the theoretical function of any particular model.
35. I accept Mr Audland’s submission that it is unsatisfactory that the Echelon prosthesis has not been tried by the Claimant given that it was recommended by Mr Sullivan in his report. However, I do not accept his further point; that the Claimant has deliberately chosen not to trial the limb in order to maximise her claim. Nor do I accept that the fact that she has not yet bought the Meridium is evidence that she will not do so in the future if funds are available. I accept the Claimant’s evidence that she did not trial the Echelon for the simple reason that it was not recommended to her by Mr Haidar whose clinical preference was for the Meridium and that she had a clear (and, I add, understandable) preference for a prosthesis which would accommodate a range of heel heights without her having to make a trip to the Clinic for an adjustment to be made to the limb. I accept her evidence that if funds become available she will purchase the Meridium prosthesis and that the reason she has not yet done so is cash flow.
36. Nor do I accept Mr Audland’s submission that in the absence of a trial of the Echelon and a positive recommendation by the prosthetists in the light of such a trial, the Claimant has failed to discharge the burden of making good her claim for the Meridium. The Claimant’s choice of a Meridium is largely because it affords her flexibility in footwear. This is reasonable. For this reason alone, the claim is made out. However, as Mr Arney further submits, Mr Audland’s submission that the costs of the Echelon should be allowed would lead to the unsatisfactory and illogical end-point of the Claimant being awarded by me the costs associated with a limb which she has never yet tested and which may be uncomfortable or not suit her. I therefore accept the Claimant’s case that her choice of the Meridium prosthetic is reasonable.
37. The Defendant’s further submission is that, if I were to conclude that the Meridium was reasonable, then I should make a downward adjustment to the overall cost on the basis that in later life the Claimant may select the Echelon over the Meridium. I do not accept this point either. I take into account the Claimant’s prognosis, including the prospect that in later years the Claimant will likely need to use a wheelchair for mobility. However, there is no basis for my concluding that there is anything other than a fanciful chance that the Claimant may in later years favour the Echelon over the Meridium either because of the weight of the prosthesis, because wearing high heels will be less important or because of technological advances. It is, I find, overwhelmingly likely that the Claimant will in her later life elect to stay with the prosthesis with which, by then, she will have long been familiar. I do not therefore make any adjustment to reflect that the Claimant will substitute the Echelon foot for the Meridium.
38. I therefore allow the cost of the Meridium for life. I have also been asked to rule on the cost per six year cycle of the Meridium. Although Mr Audland queries the pleaded cost (£35,260) in his closing submissions he does not appear to advance an alternative costing. Although there was evidence from Mr Nieveen that the cost of the microprocessor element of the Meridium was set to increase by 6%, I make no allowance for the increase. The evidence was vague (and appeared to relate only to the microprocessor element of the prosthetic). The cost per six year cycle is therefore as pleaded in the Schedule at £35,260.
39. I also accept the Claimant’s case that her reasonable needs include the provision of an Elation for life. Given my conclusion that the provision of the Meridium prosthesis is reasonable, then, terminating the claim for the Elation at age 78 would have the effect that the Claimant would be deprived of a cosmetically acceptable limb from that age. There is no logical justification for such a limitation. The Claimant is reasonably entitled to a cosmetically acceptable prosthesis for life.
ii) Water Activity Limb
40. The cost per five-year cycle is agreed at £13,375. I accept the Defendant’s argument that it is unlikely to be purchased in the last year of life. The appropriate adjustment to the multiplier should therefore be made.
iii) Sports Activity Limb
41. Again, this is a topic in which the division between the parties has narrowed considerably during the trial. The Counter Schedule disputed the claim for a running blade in its entirety on the basis of the joint view of Professors Saleh and Hanspal that high impact sport was not recommended. However, the cost of the blade is now admitted by the Defendant, but to age 58 years only, in comparison with the claim which is made, to age 70 years. The Defendant submits that between ages 58 and 70 years it is likely that the Claimant will undertake lighter sports (rather than high impact) and seek to limit or rationalise the number of prostheses which she uses. It is argued that, from age 58, the Claimant will purchase a more versatile “sports” prosthetic such as a Rush Foot which could be used for both water and dry land activities. This costs around £5,575 more per five- year cycle than the cost of the water activity limb which has been allowed for life: the claim for the sports activity limb from age 58 years is therefore limited by the Defendant to this “additional” cost per cycle.
42. I accept that a number of amputees may wish, or end up, slimming down the number of prosthetics which they use and have to transport from place to place. However, I do not find that this Claimant will fall into this cohort. Sport has been and will remain central to her life. If anything, it is more important to her now given her need for, as she put it, “release”. Between age 58 and 70, as the Defendant accepts, she is likely to continue lighter sports including swimming. Although the types of activity which she undertakes may change during these later years, neither her commitment to sport nor wish to compete is likely to dwindle. She will want to use the most appropriate prosthesis for the sport in question. For these reasons, I do not find that it is either likely that she will reduce the number of prosthetics or that it is reasonable to impose a reduction upon her.
43. I therefore find that the Claimant’s need for a sports activity limb is as claimed to the age of 70 years. The multiplier will of course reflect that she has already purchased a blade.
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