June-15-2016 in Healthcare Law
On 19 April 2016, Mr Justice Barr directed that the plaintiff’s future care costs and therapy costs should be dealt with on the basis of a periodic payment, despite the plaintiffs’ parents wish to deal with the whole claim on a lump sum basis (Jude Miley (a minor) suing by his father and next friend, Greville Miley –v- Lorcan Birthistle, High Court 2013/7674P).
The plaintiff was four years old and there was no dispute in respect of his future life expectancy. However, the defendant made an application to adjourn the assessment of the plaintiff’s future care needs to allow the plaintiff the opportunity to engage in behavioural management therapy which the defendant submitted could change his future care needs.
The issue between the parties was that the plaintiff had submitted a claim for future care which stated that two carers would be needed from age 18 upwards because of the behavioural difficulties which it was contended the plaintiff would exhibit at that time. However, the defendant argued that in circumstances where doctors had advised that the plaintiff should have behavioural management therapy, there was a good chance that he might make significant improvements and the need for two carers may not arise at all.
The defendant further submitted that if the plaintiff’s claim was determined at the present time by a fixed lump sum award, this could cause a great injustice to the defendant who might be asked to pay for the cost of future care at a level that may not prove to be necessary. In addition, the plaintiff had recently been commenced on new anti-epileptic medication which it was submitted should also be given a chance to see if it would bring about improvement in the plaintiff’s condition.
Mr Justice Barr agreed to adjourn the plaintiff’s claim for therapy and care costs for a period of time on the basis of Order 36 Rule 34 of the Rules of the Superior Courts. He further found that even if he was incorrect in his interpretation of this rule, he was satisfied that the court had jurisdiction to make this order in order to do justice in the case.
Mr Justice Barr noted that from the content of the plaintiff’s and the defendant’s medical reports, where the plaintiff had had therapy over a consistent period in the past there had been an improvement in his behaviour. It had also been accepted by the medical and care experts that the plaintiff would have to be reviewed again in the future to finally assess his cognitive and behavioural progress and his consequent care needs due to this young age.
Mr. Justice Barr ultimately found that there would be a real risk of doing a grave injustice to the defendant to force the action to be dealt with by way of a lump sum award in damages for future care costs at this time without giving the treatment which had been recommended for the plaintiff a chance to work.
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