“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.”
“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.”
“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 reevaluated 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.”
“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.”
“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 spaceand 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.”
“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.”
“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 selffeeds.”
“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.”
“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 actualfunctioning, 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 selffeeding 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.”
“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.”
“…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.”
“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 underresourced. 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.”
“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.”
“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.”
“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.” 122.He continued thus [29]: “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.”
“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 ….”
“But for his injuries, what would James’ level of cognitive ability probably have been? We agree that James would probably have been of at least Average ability and capable of achieving success in at least further education level. DAJ considers that, given James has been able to perform within the Average range on some tests now … in the context of permanent brain damage and multiple impairments, it is likely that he would have been more able in the absence of injury. DAJ considers it reasonable to suggest the potential for High Average level ability, given an undamaged brain. But for his injuries, what kind of employment would you have expected James to have been capable of? We agree that James would have probably continued his education to at least further education level. We agree his area of study/employment would probably have been vocational, rather than professional. We agree James could have worked in a skilled occupation, with the potential to progress to managerial levels.” 145.Mr Reid and Mr Baldwin agreed as follows: “We agree but for his injuries James could have been a young man whose general level of cognitive function would have most probably fallen within the normal average range. In Mr Baldwin’s view he would have been capable of independent living and been capable of continuing his education at a college of further education, most probably undertaking vocational qualifications. In drawing this conclusion Mr Baldwin has reviewed the family background including the social and economic resources available to them. On balance he would have obtained vocational qualifications up to NVQ level. In Mr Reid’s view it is likely that James would have achieved at least 5 GCSE subjects at grades A* - C including Maths and English; he could then have undertaken tertiary qualifications including a Degree leading to a vocational qualification.”
“The claimant is entitled to damages to meet his reasonable needs arising from his injuries. In considering what is “reasonable”, I have had regard to all the relevant circumstances, including the requirement for proportionality as between the cost to the defendant of any individual item and the extent of the benefit which would be derived by the claimant from that item.”
“18. Ms Vaughan Jones also relied on a proposition in the same paragraph of Swift J’s judgment, that the relevant circumstances include “the requirement for proportionality as between the cost to the defendant of any individual item and the extent of the benefit which would be derived by the claimant from that item”
“I think that on a one-to-one at school, the physiotherapist could probably see him now every two weeks, which would come to about 26 sessions, rather than the weekly that she is doing just through school time. Because he is growing, to keep it regular, say, 26 sessions for the one-to-one sessions. And then I would say that every term the physiotherapist needs a session with the school teacher and the TAs and perhaps the PE teacher to advise and see if there have been any changes and just to see positioning and things at school. That's another three sessions. Then each time he has his orthotics checks, which may be once or twice a year, the physiotherapist needs to be there with the orthotist, so that's another session. Then the seating, because he is growing, every six months they will be looking at his seating and that tends to take a double session. I worked a session out at an hour and to do a proper seating, it can be up to two hours, so I have allowed two sessions per seating, so it comes to four, but it's actually not foursessions, it's a double session. Then maybe one session, maybe to go to the sailing club to advise on posture for that or maybe, if he gets into the football or the riding, so one one year, one another, which actually adds up to about 36.”
“I'm not comfortable with that layout at all … because you have got a dining room and this is a lifetime home again for him … where James can only get to one end of the table. He has his back (if he is positioned in his wheelchair up to that table) to whatever is happening in the kitchen. He can't get to the other end of the dining room, he can't get around and circumnavigate that dining room at all. He is just stuck at that end … with his back to the kitchen. He is also having to manoeuvre in a place, where … the kitchen/dining room is in fact a through-room, everybody has to go through it. So … where James is wanting to sit … everybody is milling around going from one end of the bungalow to the other. And the kitchen area itself, if I were to place within that a turning circle of … 1,700 millimetres/1,800 millimetres … you can probably see with the scale of that room that it would pretty well occupy the space between the worktops and he would certainly be obstructing anybody else in that kitchen area …. So he needs to have somewhere where he can be positioned and I have suggested in my report that there ought to be a cul-de-sac arrangement of kitchen but the kitchen space needs to be adequately large so that there could be a separating breakfast bar beyond which the dining room and the dining space [takes] place, where James can be brought up to a breakfast bar and positioned in his wheelchair and therefore be part of the kitchen activities without necessarily obstructing and becoming an obstruction within the business end of the kitchen.”
“From a psychological point of view, one of the benefits of swimming is that it allows James to move freely. He is spending a lot of time strapped in, as it were, and isn't able to exercise as well as if he was in a free state.” 286.He also said this: “I support James swimming. The provision of the facility is not really within my expertise. It has got to be somewhere that he can access easily and readily without problems of fatigue, without problems of long travelling time and, of course, with adequate access.”
“262. … I have no doubt that the claimant enjoys his aquatic physiotherapy sessions, just as he enjoys his visits to the swimming pool with his family and/or carers. I readily accept that exercising in water is generally beneficial for him. However, I am not satisfied that the claimant has established a clinical need which cannot adequately be met by physiotherapy exercises carried out in an ordinary swimming pool with suitably trained carers and, occasionally, his treating physiotherapist. Consequently, I make no award for the costs of future aquatic physiotherapy. 263. Whilst it might be convenient for the claimant to have a pool at his new home, there is no evidence of a real need for that facility. The claimant will have trained carers and a suitably adapted vehicle to take him for sessions in a swimming pool at a local private leisure club whenever he wishes to go. The availability of suitable pool facilities will be one factor to be considered when the family come to decide where their new home should be sited.”