Friday, 27 July 2012

Ten Rules for Telephone Conferences with Experts

They reduce costs and delay and are now almost the norm, but there are pitfalls in having conferences where the experts "attend" by telephone.  Here are ten rules to help them run more smoothly.

1.            Arrange to call the experts at least  15 minutes after the start of the conference.

Conferences rarely start bang on time. Coffee and tea are served. Everyone settles down. Counsel breaks the ice by talking about the weather and then introduces the conference. The client has something they want to get off their chest at the outset. Fifteen minutes have passed. If the expert was expecting a call at ten o'clock and it is now quarter past, they are getting nervous that they have been forgotten. They are busy people and not used to being kept waiting. At twenty past they are cross and calling the solicitor's office.  So, solicitors should arrange to meet counsel and the client about fifteen minutes before the time set for the conference call.

2.            Inform the expert who is present in the room with you.

And, if necessary, keep reminding them throughout the conference. Even then I wonder whether experts sometimes forget that the client is present with the lawyers and listening to the discussions. In one conference I asked the expert microbiologist over the telephone what  dosage of antibiotic  ought to have been administered to my, admittedly overweight, client who was sitting next to me. "Well,", replied the expert, "We are dealing here with what is basically a whale".

3.            Landlines are preferable to mobile phones.

Not only is the connection generally worse on a mobile, but mobiles allow experts to take part in the conference in less than ideal circumstances, usually involving their cars. I have had experts say, "I am stuck in a traffic jam but I will be fine - carry on", and "I have just pulled into a lay-by. Hang on, I'll get the papers from the boot."

4.            Avoid calls to experts when they are abroad.

Many is the time when I have had a conference by telephone with an expert who has been abroad on a conference or on holiday. They rarely run smoothly. If your expert is going to be abroad they are unlikely to be taking three ring-binders of medical records with them, so consider providing records and other documents in electronic form.

5.            Don't let experts' patients interrupt the conference.

I am not suggesting that experts should ignore emergency calls and carry on the conference regardless, but rather that it is best to avoid timing the conference for midway through an operating list or out-patient clinic. 

The trouble with "office time" conference calls is that experts' patients may be within reach. I recall one conference which had been arranged to take place with the surgical expert when he was between patients on his theatre list. I had the distinct impression that he was operating with the phone tucked under his chin.

6.            Try to avoid calling the expert when they are at home.

At least an expert in the office is more likely to be in "work mode". When they take the call at home, there are countless distractions which may interrupt the conference. Dogs are a particular and common menace and seem to choose to bark loudly at vital moments. 

I remember one expert becoming increasingly angry with his noisy retriever: "Rufus! Shut up!". Other potential distractions include children, "Daddy, can I watch a video" and visitors, "Sorry, Mr Poole, I will just have to let in the decorator. One minute."  The client may think that the expert is not paying full attention when he hears him shouting, "I left the keys in the kitchen drawer, darling".

7.            Ensure there is a proper "hands free" telephone and someone present who knows how to use it.

The conference sets which look like small UFO's are best.  Conventional sets often give only a very faint line when using the hands free function. I have conducted several conferences by shouting. The one that stays with me involved a client who had Peyronie's disease. The expert could not hear what the client's wife was saying, so I had to shout it down the line: "She says her husband's penis was bent at an angle of nearly 90 degrees". Not everyone is efficient or even capable of  operating the telephones for conference calls. "Now, I think I can remember how to do this", is always a worrying beginning to the conference. Technophobes - know your limits. Someone present needs to know exactly how to operate the system. An alternative, at additional cost, is to use a service such as BT conference calls: "Press *0 for assistance".

8.            Remind the expert to have the records and reports available for the conference.

Too many experts participate in telephone conferences without having the records and other documents in front of them. I recently had to dictate the entries from an observation chart over the telephone.

9.            Beware the Disappearing Expert

Sometimes the line just fails and an expert is cut off. The problem comes when you don't know that has happened. On one  occasion I was midway through a question to the expert when the receptionist came in the room with a message to call him because he had been disconnected. I had, not for the first time, been speaking to myself.

10.          Check the Conference Note

It is good practice to send the experts a note of the conference, but check what you send them.  They may not appreciate seeing what was said about them or their opinions after they had finished the call.  I know of one telephone conference where, immediately after the call to the expert had ended, counsel said to the client that he thought the expert was "completely batty". The diligent trainee solicitor duly noted the comment and the full conference note was sent to the expert. It may be no co-incidence that the same firm now produces two notes: one of the conference with the experts and a second note of the further discussions between counsel, solicitor and client.

I have no doubt that the physical distance between expert and client at a telephone conference makes it less awkward for the expert to give unsupportive opinions. You may think that to be an advantage or disadvantage of telephone conferences, but from the  point of view of client care, it is sometimes better to allow them to see an unsupportive expert face to face. However the bean-counters would not approve. So telephone conferences will continue, together with video or even skyping, and there will be plenty more pitfalls ahead. Good luck!

Friday, 20 July 2012

Selwood - NHS Liability for Injury Caused by Psychiatric Patients

In Claire Selwood-v-Durham CC and others [2012] EWCA Civ 979 the Claimant successfully appealed against the striking out of her claim for damages against two NHS Trusts. The Claimant worked as a senor social worker for Durham CC and was involved in a family proceedings case involving the daughter of a man, GP who was treated as a psychiatric patient by the two Trusts. He was a voluntary patient. Whilst in the Trusts' care he had made threats to kill the Claimant. He was allowed home leave, attended a case conference and attacked the Claimant causing her grave injuries. He subsequently pleaded guilty to attempted murder and was given a sentence of life imprisonment.

The Trusts and the Council were co-signatories to a policy document called "working together in the delivery of services to adults and children."

The Court considered authorities such as Palmer-v-Tees HA [1999] Lloyd's Law Rep Med 351 in relation to the requirement of proximity between the defendant and the claimant - the issue being whether there was a known risk to the specific individual rather than to the public at large - and Jain-v-Trent SHA [2009] 1 AC 583 in relation to whether the imposition of a duty of care would be fair and reasonable.

The Court decided that the claims should not have been struck out. It would be open to a trial judge to find that the Trusts had assumed responsibility to do what was reasonable in the circumstances to reduce or avoid any foreseeable risk of harm to which an employee of a co-signatory to the policy document was exposed. It might be fair, just and reasonable to impose a duty of care on the NHS Trusts in the circumstances of this case. It was also arguable that the Trusts were in a similar position to the police who may be under an article 2 operational obligation to warn a person whom they know is at a real and immediate risk of being killed by a person with whom they have been involved - see Van Colle. The Claimant's case that there was such a risk was not a hopeless one.

It will be interesting to see whether this case does go to trial. However, the Court of Appeal's decision seems to me to be of significance not least because of the large number of partnership agreements in place across the country between NHS Trusts and local authorities, in particular in the fields of child protection, safeguarding vulnerable adults and mental health services.

Of course it would be wrong to suggest that there are large numbers of  psychiatric patients in the community who give rise to the sort of risks that GB presented. However, there will be incidents of harm to third parties and where such partnerships are in place the Court of Appeal has indicated that there may arise, in certain circumstances, an inference of a duty of care to employees of the partner authority who are at risk of harm from a patient being treated by an NHS Trust and an article 2 duty to other individuals who are known or ought to be known to be at a real and immediate risk from the patient.

Thursday, 12 July 2012

Consent to Cosmetic Surgery

Patients and surgeons should be aware that much of the litigation that arises out of cosmetic surgery concerns pre-operative advice rather than the performance of the surgery itself. I have conducted many cases involving the issue of consent to cosmetic surgery. Here are a few matters for patients, surgeons, litigants and their representatives to consider:

The Nature of Cosmetic Surgery
Cosmetic Surgery has been described by the Independent Healthcare Advisory Services, in the 2006 publication Good Medical Practice in Cosmetic Surgery, as comprising “operations and other procedures that revise or change the appearance, colour, texture, structure or position of bodily features to achieve what patients perceive to be more desirable.”  It is not surgery to alleviate pain or disability or to prevent death. Predominantly it is designed to meet what the patient considers to be desirable.   In some cases, it might be argued, cosmetic surgery may alleviate psychiatric or psychological suffering, but in every case the patient's desire to have the surgery will have a psychological and/or social motivation. Thus the process of obtaining informed consent to cosmetic surgery will be different in character from the process of obtaining consent to, say, bowel surgery for diverticulitis. The surgery is always elective and in most cases the patient will not suffer pain or disability as a result of chosing not to have the surgery. In nearly every case the patient's choice to proceed will come at a financial cost - cosmetic surgery is rarely performed by the NHS.

Psychological Assessment
Given the motivations to seek cosmetic surgery, it would seem sensible to have some form of psychological assessment of all patients. It has been suggested that a significant proportion of patients seeking cosmetic surgery have an identifiable psychological disorder. Some will have body dysmorphic disorder. Many will seek surgery at or following very difficult life events such as divorce. Their mental state can affect their motivation to have surgery and the likelihood of the surgery satisfying their perceived desires. In order properly to advise a patient of the potential risks and benefits to them of proposed surgery, surely the surgeon needs to know something of their psychological history and condition. The National Minimum Standards which apply to the regulation of private hospitals offering cosmetic surgery,  insist that referral to appropriate psychological counselling is available if clinically indicated prior to surgery [A26.4] but who decides if it is clinically indicated if there is no routine psychological screening or assessment? The NCEPOD Report 2010 found that routine psychological assessment was performed in only 35% of those clinics which took part in the survey (only 32% of clinics responded and, as the report authors noted,  they might be amongst the most conscientious clinics).

Medical History
A significant number of patients self-refer for cosmetic surgery and some do not even consent to their GP being informed. If so, how does the surgeon find out whether the patient has any significant medical history? Is it reasonable to rely on the patient's own account (particularly if given to a patient co-ordinator on a pro-forma questionnaire)? Might the patient who is particularly motivated to undergo cosmetic surgery be willing to mislead the surgeon? Cosmetic surgery is purely elective, there is no urgency or emergency. There will always be time to take a full history and carry out a full pre-operative assessment and any tests that may be necessary.

The Patient's Desires
The surgery is designed to meet the wishes of the patient, not to do what the surgeon thinks would be best for them. So it is incumbent on the surgeon to elicit those wishes. There is no such thing as an ideal nose which will suit every patient.  However, if what the patient seeks would have ramifications (for example very large breast implants might give rise to physical problems) then the patient needs to know of the consequences of what they are seeking. In particular in future years might further surgery be required and what will that surgery cost?

The GMC, amongst detailed guidance on consent, advises that, doctors should "identify which investigations or treatments are likely to result in overall benefit for the patient. The doctor explains the options to the patient, setting out the potential benefits, risks, burdens and side effects of each option, including the option to have no treatment. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice."
Clearly the surgeon must advise the patient on the risks and benefits of all the various surgical options which might meet the patient's desired outcome. There is little room for paternalism - the patient seeking elective surgery which is designed to meet their desires is entitled to know of a small risk of a serious consequence. Advising fully as to one option, but failing to refer to other available alternatives may result in a finding that informed consent was not obtained - Birch-v-UCL Hospital NHS Foundation Trust. The provision of written information is advisable, but is not a substitute for a full face to face discussion.

Cooling off Period
The National Minimum Standards provide at A26 that no patient should be admitted for the procedure on the same day as the initial consultation. Compare and contrast the Guide to Good Medical Practice in Cosmetic Surgery issued by the Independent Healthcare Advisory Services in May 2006: “You should not normally admit any patient for a procedure to be carried out sooner than two weeks after the initial consultation in order to allow the patient adequate time for reflection.” In my experience most reputable surgeons would follow the "two week rule" but it is far from clear that a allowing a shorter period would be negligent.

Commercial Pressures
As can be seen the process of obtaining informed consent to cosmetic surgery might require considerable input of professional resources. Since cosmetic surgery is nearly always provided as part of a commercial enterprise, there will be a tension between allocating those resources and maintaining margins. Further, some might argue, there is a tension between giving proper warnings of risks, complications and future costs and the commercial imperative to increase turnover.Whatever the commercial pressures, the surgeon's duty of care and skill in giving pre-operative advice, is to the patient.

The British Association of Aesthetic Plastic Surgeons (BAAPS) has useful advice to patients/potential patients about the issues they should consider before consenting to cosmetic surgery. So too does the British Association of Plastic Reconstructive and Aesthetic Surgeons.

In order to succeed in a claim for compensation a claimant would have to establish both that the pre-operative advice was negligent and that they have suffered injury as a result of that advice. It is not always easy for a patient who was highly motivated to undergo surgery to prove that he/she would not have undergone the surgery had they been advised of a particular risk or complication.

Friday, 6 July 2012

Cosmetic Surgery Litigation - the Impact of Advertising

A claim for damages for injury resulting from cosmetic surgery treatment may be brought in contract and/or tort. The patient may have a contract with the surgeon directly, in which case any claims that the surgeon has made in advertising about his level of skill and expertise may become terms of the contract unless they are obviously "mere puffs".

Where the patient has purchased their treatment through a clinic the contract may be with the clinic, but in my experience clinics will argue that their contractual obligation was merely to refer the patient to the surgeon who was an independent contractor for whom they are not liable. That is a moot point, to say the least. However, in this post I want to discuss how advertising by the clinic may be relevant to a claim in tort against the surgeon.

Cosmetic surgery is surgery performed by a professional and therefore the Bolam test is applicable in assessing whether the surgeon has fallen below an acceptable standard of care and skill. If, in applying the Bolam test, the Court is considering whether a responsible body of neurosurgeons would have carried out a particular operation, then the field from which bodies of neurosurgeons come is easily identifiable - they all work or have worked in the NHS. They will probably all be on the appropriate specialist register with the GMC etc.

In the field of cosmetic surgery the position is less clear. Most cosmetic surgery is performed within the private sector as part of an industry where the providers are expected to make a profit. Some clinics use surgeons who live abroad and come to the UK for two or three month periods at a time to perform procedures. There is no GMC specialist register for cosmetic surgery. There is a specialist register for plastic surgery but no requirement that a practitioner performing cosmetic procedures has to be on the plastic surgery specialist register. There are reputable associations such as the British Association of Aesthetic Plastic Surgeons (BAAPS) but there are many practitioners performing cosmetic surgery who are not members of such associations.

So, what constitutes a "responsible body" of cosmetic surgeons? Is it a body of those surgeons who might typically perform cosmetic surgery in UK, or is it a body of surgeons who are on the plastic surgery register? Is it a body of practitioners who meet the standards expected of members of BAAPS or is it a body with lower level skills and standards but which satisfy the requirements of a competitive industry?

Whatever the answers to those questions, the Court is likely to be influenced by claims made by or on behalf of the surgeon who is being sued. Many clinics make claims about their surgeons. If a surgeon benefits from advertising by the clinic, then surely he or she has some responsibility for the content of that advertising. A patient might reasonably consider that a claim that "our surgeons are leaders in their field" or that a particular clinic is a "centre of excellence" for breast augmentation, is genuine: the standard of care and skill that a patient is entitled to expect from their surgeon working for such a clinic might well be higher than that of the ordinarily competent surgeon.

A quick internet search reveals that one clinic claims to use "some of the country's top cosmetic surgeons",  another that its surgeons are "the best" and "internationally recognised", yet another that it provides "surgical excellence". Try looking for yourself. I suppose not many clinics would advertise that their surgeons are "average"! The claims made in advertising may be true, but whether true or not, the patient is entitled to expect a standard of care consistent with those claims unless otherwise advised or unless no reasonable person would be expected to believe them.

Beyond the advertising, clinics make claims for their surgeons by other means including recommendations from the staff, many of whom have undergone surgery themselves (they are walking advertisements). The surgeons should make it their business to know what claims are being made on their behalf and, if necessary, to seek to correct their patients' expectations. Otherwise, they may find that the Courts demand of them a standard of skill and care which is beyond them.

Wednesday, 4 July 2012

All you Wanted to Know about Serious Injury Quantum but were Too Afraid to Ask

No one judgment can address all the issues about quantum in serious injury cases, but by Jove Mrs Justice Swift gave it a good try in Whiten-v-St George's Healthcare NHS Trust. This was a claim by a boy, aged seven at the assessment of damages, who suffered profound hypoxic ischaemic damage and developed a mixed spastic-dystonic severe quadriplegic cerebral palsy as a result of admitted negligent management of his mother's labour and his birth. Whilst liability was not in dispute, just about every issue on quantum was. It is a long, long judgment and of course there is no substitute for reading it all, but here is a list of questions which arise in such cases and the learned judge's answers:

1.     Does the "full compensation principle" mean that if the Claimant proposes an item of expenditure which would meet his/her needs then it does not matter if there is a less expensive alternative?

No. There is a "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."

2.   Which Ogden Table should I use to calculate the life multiplier where there is shortened life expectancy?

If you have a conclusion on life expectancy for a number of years (a further 28 years in this case) then use Ogden Table 28. Using Table 1 (or 2 in the case of a female claimant) would lead to a double discount where the conclusion on life expectancy already takes into account all contingencies.

3.   Should I use the basic or aggregate NJC rates for past gratuitous care?

Aggregate where much care has been given at anti-social hours.

4.    25% or 30% deduction to NJC rates for past gratuitous care?


5.    For future care is calculation on the basis of a 60 week year valid?


6.    Should the costs of future care include employers' pension contributions?

Yes they should. 

7. Is a large award for the costs of aquatic physiotherapy (previously known as hydrotherapy) inevitable if such therapy is of benefit to the claimant?

No. Alternatives to £150/session therapy might well suffice and in choosing future accommodation the availability of a local pool will no doubt be a factor for the family. Remember the principle of proportionality set out above.

8.    On the subject of accommodation, should credit be given for the parents' own home/the value to them of new accommodation for their child?

No. Whilst there is some force in the argument that if no credit is given then this gives a windfall for the parents, the better view is that the claimant should not be penalised in his award for the incidental benefit to the parents of providing the claimant with the accommodation he/she needs.