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Claim settled on behalf of 6 year old left disabled due to failures by staff at Portsmouth Hospital

Toby Butler is blind and deaf, and has cerebral palsy

Toby Butler is blind and deaf, and has cerebral palsy

24 October 2013

Toby is six years old.  He is blind and deaf and has cerebral palsy. He has a team of carers to meet his high level of need.  Toby cannot walk or sit up.  He has regular seizures which disrupt his daily routines and sleep.  Toby’s swallow is damaged and he can only eat if his food is first put through a blender.  Toby will be totally dependent on others for the rest of his life. 

This is a very different picture to when Toby was one year old in March 2008.   At that time he was a happy healthy little boy.  Over the bank holiday weekend Toby became ill with flu like symptoms and on Easter Monday, following a trip to the out of hours GP service, these symptoms worsened.  His mother contacted NHS Direct who sent an ambulance to their home.  Following an assessment by paramedics, Toby was taken by ambulance to the paediatric A&E department at St Mary’s Hospital in Portsmouth.

Toby and his mother waited in a reception area for the next four hours before Toby was assessed by a junior doctor.  The doctor suspected that Toby had a chest infection and so ordered an x-ray, but did not arrange other tests, start antibiotics or antiviral medication or listen to the information provided by his mother who challenged this diagnosis.  When she couldn’t find anything on the x-ray, the doctor admitted Toby overnight with a prescription for an inhaler. Toby was next seen by a consultant paediatrician the following day at noon on her ward round. The Paediatrician did not order any tests, concluding that Toby was showing signs of a viral illness but that the picture was one of evolving asthma. Toby was prescribed nebulizers and was allowed to stay another night for observations

Over the next day his parents were concerned that he seemed to be getting worse and they reported to staff that he was vomiting, had blood stains in his nappy and was indicating that he was in serious pain when he moved.  Toby’s parents reported these symptoms repeatedly to nursing staff but a doctor never came to assess him.  

Around 33 hours after admission, Toby began to have seizures.  The medical team tried to stabilise him, but by then it was far too late.  He had meningitis and encephalitis and it  was later confirmed that he had a pneumococcal illness. The team at Portsmouth were unable to manage Toby and he was transferred to the local paediatric intensive care unit at Southampton General Hospital where he spent the next 16 weeks and five days. 

Toby’s solicitor, Russell Levy, argued from an early stage that a claim was indefensible and the NHSLA accepted liability on behalf of the Trust in April 2010, agreeing there was hospital negligence, stating that Toby received inadequate care and that if appropriate treatment had been instituted, Toby’s profound neurological disabilities and his loss of vision and hearing would have been avoided.

The claim was then put on hold until Toby reached five years old to enable Toby to develop sufficiently to allow a more accurate prediction as to how his disabilities would develop and to gain a better understanding of what he would require to meet these needs.  

During the period of the ‘stay’ of the case, interim payments of Toby’s damages were arranged to allow Toby’s parents to purchase suitable accommodation and have it adapted to meet his physical and mental needs and sensory impairments. A personalised care team was recruited and items of specialist equipment and a specially adapted vehicle were bought.

After Toby turned five, experts in paediatric neurology, speech and  language, assistive technology, physiotherapy, educational psychology and care and case management were engaged to assess Toby, and to predict how his disabilities would evolve as he grew older, which allowed us to estimate how much it would cost to meet his needs for the rest of his life.

In June 2012, the parties were able to reach a settlement and the need for a Trial was averted.  The Trust agreed to compensate Toby paying a lump sum of £1.5m and index linked periodical payments for the rest of Toby’s life which, at current values, start at £225,000 rising to £327,000 per annum

Toby’s parents say:

"This avoidable situation has been catastrophic for Toby but also his family and has resulted in a happy, smiling one year old boy being affected in ways many people can’t even imagine.  The impact this has had on us, as his parents, and the wider family have been far reaching.  Russell Levy and Anna Brothers at Leigh Day have not only provided Toby with a superbly knowledgeable and effective legal service but have also managed to steer us through this process with consideration and understanding and a total focus on Toby’s needs and wellbeing.

"Whilst no settlement of money will ever give Toby back what he has lost, or compensate him for the pain and suffering he has experienced, the settlement will enable us to ensure that Toby’s very significant needs are met for the rest of his life and that his new world is as comfortable and stimulating as it can be made to be.

"We will be eternally grateful to Russell, Anna and all of the staff at Leigh Day for securing this settlement, supporting us as a family and most importantly for putting Toby first."

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