A court settlement this week (31st March 2010) will provide a more secure financial future for Kyle Burch and his family, from Lawford (near Manningtree) in Essex, who have worked with Essex solicitors Thompson Smith & Puxon in their litigation against Colchester Hospital.
Kyle (now aged eight) was starved of oxygen at birth after his delivery was delayed by nearly five hours, resulting in severe quadriplegic cerebral palsy, mental retardation, epilepsy and partial blindness and deafness.
Mum Tracy was transferred from Harwich Hospital to Colchester General Hospital in the early hours of 4th July 2001. There was already concern about Kyle’s wellbeing before Mrs Burch was transferred but after she arrived at 0328 hours the delays at the hospital meant Kyle was not born until 0814 hours.
Colchester Hospital accepted 80% liability in the claim and the settlement was approved in the High Court on 4 June 2009. Since then negotiations have taken place in relation to the level of the award and settlement for Kyle, who will become a client of the Court of Protection.
Subject to approval by the judge at the Royal Courts of Justice on 31 March, Kyle will be awarded a lump sum payment of £1.75 million together with periodical payments starting December 2010 of £72,000, rising to £100,000 in 2014 and £152,000 in 2020.
Tracy Burch says: “It’s been a long haul to get this far and it will make a huge difference to all our lives because we’ll be able to get the accommodation and support we need for Kyle. We would like to thank Thompson Smith & Puxon because it’s thanks to them that we have got this far. Their expertise was crucial in finding out the relevant information.”
Tracy added: “We would like to thank family and friends. We are a loving and close knit family and we’ve relied on them for help and support, especially with transport and child minding. We’d also like to take the opportunity to say how proud we are of Kyle after all he has been through, coped with and has achieved this far. Long may it continue for the future.”
Kyle Burch lives with his parents (Tracy and Danny), sister Renee (aged seven) and cousin Summer (aged four) in a bungalow in Lawford, near Manningtree in Essex. He can’t walk or talk and he’s recently had two hip operations to help his development.
The family are planning a move to larger accommodation which will be especially adapted for Kyle’s needs. The payout will pay for the new home and will provide for Kyle’s ongoing care costs as he gets older, including specialist help with speech and language therapy and new technology and equipment to improve his quality of life.
Julian Wilson, Thompson Smith & Puxon, said: “Although the experience of caring for Kyle has been a rewarding one to both Mr and Mrs Burch there is no doubt that the burden of looking after a child with Kyle’s disabilities is challenging. His parents' main concern in this litigation has been to secure Kyle’s future and this settlement achieves that.”
Case Summary - Kyle Burch v Colchester Hospital University NHS Foundation Trust
Kyle Burch was born on 4 July 2001 at Colchester General Hospital. He is now eight years old and lives with his mother and father in Manningtree, Essex.
On 4 June 2009 the High Court approved settlement of the liability issue of Kyle’s claim on the basis that he received 80% of the damages which would have been awarded on 100% basis.
The history of events is that on 3 July 2001 Mrs Burch was admitted to the maternity unit at Harwich Maternity Hospital at about 23:15 hours with a history of contractions. There was concern about Kyle’s wellbeing and Mrs Burch was transferred from Harwich Hospital to Colchester General Hospital at about 03:01 hours on 4 July arriving there at 03.28 hours.
Kyle was not born until 08:14 hours on that day. He was in poor condition and needed to be incubated. He was transferred to the Special Care Baby Unit and then to Addenbrookes Hospital when he was just over two days old.
His condition at birth was consistent with chronic partial asphyxia over a period of several hours before delivery. He has been diagnosed by the consultant paediatric neurologist advising in the claim with severe quadriplegic cerebral palsy. He has severe mental retardation, he is epileptic, partially blind and partially deaf. He also suffers from klinefelters syndrome which is unrelated to the claim in this action.
Kyle will remain severely physically and mentally disabled throughout his life. He will never be able to live independently and will require carers to help him undertake the activities of daily living. He will always lack capacity to manage his own affairs and has a reduced life expectancy. The claim made on Kyle’s behalf was that he should have been born by 03.30 hours and that had he been born by that time then he would have suffered none of the injury caused to him by perinatal hypoxic insult. The solicitors on behalf of the Trust admitted breach of duty in failing to deliver Kyle by 03.30 hours on 4 July but dispute took place in the proceedings over the level of injury that Kyle would have suffered had he been born by that time.
While the litigation was pursued offers of settlement on the issue of liability were made by the Trust’s solicitors. After some negotiation the offer of 80% liability was made and Mrs Burch instructed her solicitors to settle the case on that basis in view of the undoubted risks of litigating the matter further. That settlement was approved by Master Rogers in a hearing before the High Court on 4 June 2009.
The litigation has continued so as to establish the value of Kyle’s claim and expert evidence has been obtained from the following disciplines namely:- care and case management, educational psychology, occupational therapy, speech and language therapy, paediatric neurology and assistive technology. A Schedule of Loss was served in September 2009 and a counter Schedule was served in December 2009. The litigation reached the stage of there being discussions between the respective experts and trial had been listed for 21 June 2010.
Negotiations took place in relation to the level of the award and settlement was reached on the basis that Kyle be awarded a lump sum payment of £1,750,000 together with periodical payments starting in December 2010 of the sum of £72,000. This sum is indexed linked and will rise to £100,000 in 2014 and £152,000 per annum in 2020. Those sums are also index linked.
Following the settlement the sums will be paid into Court and Kyle will become a client of the Court of Protection. A Deputy is in the process of being appointed to help manage his property and affairs. The family plan to move from their current accommodation (which does not have the space for managing the level of care and assistance that Kyle needs) to more suitable accommodation. This is in the process of being purchased.
It has been complex and challenging litigation of significant value to Kyle. It will make significant difference to his quality of life. Although the experience of caring for Kyle has been a rewarding one to both Mr and Mrs Burch there is no doubt that the burdens of looking after a child with Kyle’s disabilities is challenging. His parent’s main concern in this litigation has been to secure Kyle’s future and this settlement achieves that.