Friday, 29 November 2013

Injustice at Inquests

I have recently acted for the family of a patient, Andrea Green, who bled to death at Barnsley Hospital within hours of a routine discectomy operation. Her death followed a series of errors ranging from the surgeon operating on the wrong disc and in doing so damaging an artery, to a failure to maintain routine post-operative observations and then failure promptly to commence blood transfusion when a haemoglobin result indicated a "massive" internal blood loss. Within her narrative conclusion the Assistant Coroner concluded that there had been "neglect" - a gross failure to provide basic medical attention to a patient who was in obvious physical need of it.

The Inquest lasted three weeks. There was expert evidence from the pathologist, an anaesthetist and a spinal surgeon. Professional witnesses including the surgeon, two anaesthetists and two other doctors.  Senior managers including the then Chief Executive of the Trust also gave evidence.

The Trust and three individual practitioners were represented by Counsel with solicitors present as well. With no disrespect to the intelligent family members on whose behalf I acted, or the superb staff at Sheffield Coroners Court, there were many times during the Inquest when I pondered how the family would have been able to deal with the Inquest without legal representation. Perhaps you will forgive me for saying that they needed both an experienced barrister and solicitor to help them with this Inquest.

The family have no complaints about the Inquest and what follows is not directed at this particular case, some details of which can be found in this Mail On Line report. The Inquest allowed for those involved in Miss Green's treatment and care to be held to account. But what the case highlights, for me, is an injustice inherent in the present funding arrangements for bereaved families at Inquests.

As I have previously posted the civil claim was rapidly settled by the defendant Trust. Since that settlement preceded the Inquest, the costs of representation at the Inquest could not be claimed as part of the ongoing civil proceedings in accordance with the principles established in Roach-v-Home Office. However we managed to secure agreement to payment of a fixed sum for representation at the Inquest as part of the settlement of the civil claim.

In hospital death Inquests, it is extremely rare for public funding to be made available to families of the deceased. If there is a civil claim which is resolved swiftly then, unless there is a settlement of the kind we reached, the family will not be able to recover costs of representation from the defendant. The result is that in many such cases the family of the deceased will have no funds to pay for representation. In contrast, as in this case, representation is available for other interested parties, including what is in effect state funding for the relevant Trust(s).

Ironically the problem may be more likely to arise in cases of greatest concern in terms of clinical or systemic error. Those are the cases which will tend to lead to early admissions and settlement but which also give rise to the more complex Inquests. Such Inquests take longer and are more likely to involve representation of other interested parties, thereby putting the bereaved families at further disadvantage. Added to which, bereaved families are very likely to be upset or distressed by some of the evidence given at the Inquest.

NHS Trusts and individual healthcare professionals should be commended for seeking to conclude civil claims or potential civil claims promptly, but in so doing it becomes more difficult for the bereaved to secure representation at a later Inquest.

Recognising that extending the scope of legal aid sits uneasily with the rest of Mr Grayling's policies, I still say there should be public funding for representation of bereaved families at Inquests when there is no other available funding. And one size does not fit all: funding should be at a level to allow for representation suitable to the complexity and importance of the Inquest.

I was instructed by Andrew Harrison at Raleys Solicitors

Wednesday, 27 November 2013

A Chill Wind : Mitchell-v-News Group

A chill wind is blowing through the civil courts as the ramifications of Plebgate spread ever wider. That brief encounter at the gates of Downing Street has now led to a Court of Appeal decision on costs budgeting and relief from sanctions which is intended to "send out a clear message" to all involved in litigation: do not expect the courts to indulge failure to comply with rules, practice directions and orders. The judgement was given by the Master of the Rolls in Andrew Mitchell MP-v-News Group Newspapers Limited [2013] EWCA Civ 1526.

We cannot say we were not warned. Sir Rupert Jackson's Final Report warned that "Courts at all levels have become too tolerant of delays and non-compliance with orders. In doing so, they have lost sight of the damage which the culture of delay and non-compliance is inflicting upon the civil justice system."

And the Master of the Rolls said on 22 March 2013 that "The tougher, more robust approach to rule-compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases. this requires an acknowledgement that the achievement of justice means something different now. Parties can no longer expect indulgence if they fail to comply with their procedural obligations."

Mr Mitchell's lawyers failed to file a costs budget in time. Master McCloud directed that he should be treated as having filed a costs budget comprising only the applicable court fees. The impact of that decision was likely to be a shortfall in potentially recoverable costs of about £500,000 (yes, five hundred thousand pounds). This was still about £90,000 less than the Defendant's budget which was filed in the nick of time. The Claimant's costs budget was 6 days late. The Master later refused to grant relief under CPR 3.9 from her first decision. The Court of Appeal stated that the question at the heart of the appeal is "how strictly should the courts now enforce compliance with rules, practice directions and court orders." The answer given: very strictly indeed.

The Court of Appeal upheld both orders. In doing so it gave a passing wrist-slap to the High Court Judges in Wyche-v-Careforce Group Plc [2013] EWHC 3282 and Raayan Al Iraq-v-Trans Victory Marine Inc [2013] EWHC 2696 for not having got with the programme (for the avoidance of doubt, my words not those of Lord Dyson).

The Court was not attracted by the suggestion that whenever a sanction is imposed regard should be had to proportionality . In relation to CPR 3.14 - which was applicable in this case "by analogy" - the Court said that the sanction for late filing (no costs save for court fees) will usually apply unless (i) the breach was trivial or (ii) there was a good reason for it. Partial relief (as opposed to upholding the full sanction) was to be discouraged.

So, the delay of  six days was not regarded as minor or trivial - it resulted in an abortive costs budget hearing listed for the day after actual filing by the Claimant. Neither was there a good excuse - rather chillingly for the individual concerned and the Bar generally, the reason given for the delay was that the solicitors had been "delayed in receiving Counsel's figures despite chasing for these daily since the middle of last week."

The Master of the Rolls ended his judgment by saying, "we hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders. If this happens then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past."

This was a decision "pour encourager les autres". Perhaps because senior judges see a disproportionate number of cases where there have been failures to comply with rules and orders, they have a jaundiced view of litigators. Surely, legal representatives do already routinely comply although mistakes are sometimes made. The sanction in this case is very harsh. Either Mr Mitchell will not be able to afford to continue his claim, or some arrangement, involving insurers or otherwise, will have to be made to provide for his representation at an estimated cost of £1/2 m. All of us involved in litigation may have reason to fear that professional indemnity insurance premiums will rise further.

This is an important decision. The message is indeed loud and clear: you fail to comply with any rule, order or direction at your peril.

Friday, 25 October 2013

Outsourcing and the Liability of the NHS

The Supreme Court decision in Woodland-v-Essex CC provides very clear guidance as to when a non-delegable duty may arise, fixing liability for tort on an organisation such as a state school, a care home or a public healthcare provider even when the harmful negligence has been committed by an independent contractor.

The claimant suffered catastrophic injury during a school swimming lesson. Her school was run by Essex CC but the alleged negligence was that of an independent contractor to which the provision of swimming teaching had been "outsourced". The High Court and Court of Appeal had held that the education authority was not vicariously liable for the acts and omissions of the contractor. It did not owe a non-delegable duty of care to the claimant.

In the clinical negligence context those decisions seemed to build on the case of Farraj-v-King's Healthcare NHS Trust  in which case the Court of Appeal had dismissed a claim against a hospital which had employed an independent laboratory to analyse a tissue sample for a patient who was not being treated by the hospital and was therefore not in its custody or care.

The concern was that the NHS could outsource even core services to independent contractors and thereby avoid liability. Would such contractors be adequately insured. What would happen if the went into liquidation? PPOs might well not be available even if the contractor was liable if the NHS was not liable as well.

The Woodland decision should put to rest such concerns.

Lord Sumption, delivering the lead judgment, was critical of the fact that the Defendant's liability in principle had been taken as a preliminary issue. Although the Supreme Court decided the issue in the claimant's favour the case will now go back to the High Court to determine the other substantive issues. However, on the preliminary issue Lord Sumption reviewed the case-law paying some attention to Denning LJ's judgement in Cassidy v Ministry of Health [1951] 2 KB 343, and a series of Australian cases and extracted the following principles:

  1. In my view, the time has come to recognise that Lord Greene in Gold and Denning LJ in Cassidy were correct in identifying the underlying principle, and while I would not necessarily subscribe to every dictum in the Australian cases, in my opinion they are broadly correct in their analysis of the factors that have given rise to non-delegable duties of care. If the highway and hazard cases are put to one side, the remaining cases are characterised by the following defining features:

  2. (1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes.
    (2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren.
    (3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties.
    (4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it.
    (5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.

    Lord Sumption carefully considered but dismissed the suggestion that to find a non-delegable duty of care on an education authority in such circumstances would be overly burdensome. 
Farraj fell on the wrong side of the line from the claimant's perspective. In that case the claimant was not a patient was not in the custody or care of the Trust. 

It is obvious that Woodland has important implications for NHS outsourcing and for the liability of NHS bodies which rely on independent contractors to carry out their core positive duties to a patient under their care and control.

Monday, 16 September 2013

Contractual Terms for Private Surgery

A large number of surgical procedures, including cosmetic procedures, are performed each year under contract. The fact that a patient is paying for surgery or treatment does not, by itself, mean that he/she is entitled to expect a higher standard of care and skill from their surgeon than if they had undergone the procedure within the NHS. 

Nevertheless, private providers do sometimes make claims for the excellence of their services. Certain representations may be made in pre-operative consultations which persuade the patient to enter a contract and pay for surgery. What effect do these have on the contractual obligations of the provider?

We are all used to warranties or guarantees for certain products but most (reasonable) people will know that the performance of surgery cannot be guaranteed in the same way as the performance of a new fridge-freezer. In relation to medical or surgical services, it will be very difficult to establish that the surgeon or provider guaranteed a certain outcome. As the court noted in Thake-v-Maurice [1986] QB 644,

"The reasonable man would have expected the defendant to 

exercise all the proper skill and care of a surgeon in that 

speciality; he would not in my view have expected the 

defendant to give a guarantee of 100 per cent. success."

Even if a provider promised "you will be happy with the result", or "we will make you look like Brad Pitt", it is highly unlikely that a court would find that a patient had relied on those statements such that they became terms of the contract or warranties! That is not to say that pre-contractual representations are irrelevant to issues of consent. Patients' expectations should always be carefully managed.

An alternative approach is to contend that the contract imposed a higher standard of care on the surgeon than would be expected in tort. However, two recent cases do not encourage that approach either.

In Silverstone-v-Mortensen and Oxford University Hospital NHS Trust [2012] EWHC 2706 (QB) the Court considered whether a term could be implied into a contract for surgical services which would affect/raise the standard of care of the surgeon concerned. The Judge dismissed that suggestion:

"34. ... it is pleaded that Professor Mortensen would exercise the skill and care of a world authority in [his surgical management of the case]. This does not add anything to the ordinary duty in contract and tort that the surgery would be performed to the standard expected of a competent consultant surgeon in a major teaching hospital."

In Dove-v-Jarvis Unreported, Mr Justice Gouldie QC High Court, 6.2.13 had to consider a contract for private surgery by way of a hip replacement. It was claimed that there was a contractual term that the surgery would be "well done". The Judge noted that it was common ground that in tort and contract the standard of care to be expected was that of a surgeon experienced and expert in performing hip arthroplasty [28]. 

This was a high standard and not the medical equivalent of "a small firm of country solicitors" [a slightly quaint analogy, perhaps]. The Claimant contended that the assertion that the surgeon would be "well done" gave rise to a contractual obligation to exercise a higher standard of care. It was not alleged that it gave rise to a warranty. The Judge rejected the contention.

"[66] Contract does not in this instance convert a losing case on the duty of skill and care into a winning one."

In my view, such discouragement notwithstanding, there may be implied terms, perhaps falling short of warranties, as to outcome or the standard of care and skill, which arise from pre-contract representations. This may occur in the field of cosmetic surgery, for example. Suppose a breast surgeon agrees with the patient that he will use implants to enlarge her breasts to a C-cup and he makes them much larger. Or, the patient is told that the surgeon is particularly skilled and experienced in producing fine, pale scars but the suturing is done to a standard which would be considered acceptable for the normally competent surgeon, but not for a specialist in producing pale, fine scars? 

If a patient has shopped around and is willing to pay 50% more for a particular surgeon because he has been held out as one of the world's leading surgeons in the field of rhinoplasty, why should the patient expect the same standard of care and skill as from the surgeon up the road charging much less and not making such representations?

This is surely an area of law ripe for further judicial consideration. The courts will be more inclined to find that there was a contractual promise which went beyond the duty of care in tort where (a) the representation made a real difference to the choices made by the patient, (b) it was reasonable to rely on it, and (c) the finding would make a material difference to the outcome of the legal claim.

Wednesday, 4 September 2013

Who Is My Neighbour?

When a catastrophic injury occurs in a social setting, friends, even family members, can find themselves on opposing sides in hard-fought litigation where the courts have to consider from first principles whether a duty of care arose and whether it was breached. In Donoghue-v-Stevenson Lord Atkin famously posed the question, "Who then, in law, is my neighbour?" 

Outside the well-established relationships of employer/employee, doctor/patient, driver/pedestrian or occupier/visitor, the answer is not always clear. Occasionally cases throw up challenging questions as to the ambit of the duty of care. I was recently involved in one such case.

In Poole-v-Wright and others [2013] EWHC 2375 (QB) one of the issues before Mrs Justice Swift was whether one friend owed a duty of care to another in respect of a social or leisure activity.

The claimant was one of a group of friends who, one Bank Holiday weekend, took out two motorised go-karts owned by my client, the defendant Mr Abbott, to drive around an unused car park. When driving one of the karts the claimant's neck scarf became caught in moving machinery behind her, causing her catastrophic injuries. She sued, amongst others, the kart's owner, alleging that he breached his duty of care to her by failing to advise her to remove the scarf. She alleged that the defendant ought to have been aware of the particular danger of a scarf becoming entangled in the unguarded moving parts of his kart.

The defendant contended that he owed no duty of care to the claimant and that in any event the scarf was not such an obvious hazard that he was negligent in failing to alert the claimant to the dangers of wearing it whilst driving the kart.

The parties were involved in a purely social activity. No money had exchanged hands. The kart was not being hired by the claimant. She simply made use of it, as did other present at the outing.

On behalf of the defendant I conceded that even in a social situation an owner of equipment which has a potentially dangerous defect which would not be readily apparent to another to whom he lent the equipment, may owe a duty of care to the other to warn him of the defect - see Coughlin-v-Gillison and another [1899] 1QB 145. That was not however the situation in the case before Swift J. There were no hidden defects - the fact that there were unguarded moving parts in close proximity to the driver was, she found, "plain for all, including the claimant, to see."

The Judge considered the principles set out in Caparo-v-Dickman  [1990] 2AC 605 and in particular the question of whether it would be fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. She also considered authorities such as Tomlinson-v-Congleton BC [2004] 1 AC 46 in relation to the duty to protect against obvious risks. She held at [170] that:

"In circumstances other than the "hidden defect" case, the imposition of a duty of care in circumstances such as these, where leisure equipment is provided by an individual in a social setting for the enjoyment of other adults without any form of reward, would not in my view be fair or reasonable. I consider that it would impose an undue burden of legal responsibility on those who wish to share such equipment with others who might wish to use it. The imposition of such a burden would have potentially far-reaching consequences for those engaging in recreational activities with friends and acquaintances."

The fact that providing the go-kart for the claimant to use gave rise to a foreseeable risk of injury was not sufficient to give rise to a duty of care on its owner. This decision fits with cases such as Poppleton [2008] EWCA (Civ) 646 in which the Court of Appeal emphasised the importance of there having been an assumption of responsibility by the defendant to the claimant in order for a duty of care to arise.

The decision may have been different if the claimant had been a child, or a vulnerable adult. 

Tuesday, 30 July 2013

The Cost of Dying

The civil law is uncomfortable dealing with death. The rules on calculating dependency and multipliers and the restrictions on lost years claims are confusing and sometimes counter-intuitive.
The limited selection of those entitled to a bereavement award, the amount of the award and the impact of the Human Rights Act create a system of compensation which few would consider just and reasonable.

Compensation recoverable for a death can sometimes be less than it would be for a 6 month whiplash injury. A driver's insurer might be better off if the driver negligently kills another than slightly injuring them. I recently considered a case of alleged clinical negligence where the deceased was a single adult with no dependants. The only valid claim would have been for funeral expenses of about £2,000.

Even where there is a bereaved person who is entitled to the statutory award (now £12,980) the level of the award creates difficulties for the litigator.

Take for example a case of obstetric negligence. It can cost tens of thousands of pounds to investigate liability: expert midwifery,  obstetric, neonatal and paediatric opinions may be required and minute scrutiny of the medical records and CTG traces needed to determine whether there is liability. If the baby survived but developed severe cerebral palsy then the compensation which may follow a finding of liability is likely to be over £1 million. The costs of investigating liability are proportionate and can be justified. If the baby died then the likely claims will be for funeral expenses and bereavement damages: less than £15,000. How can the costs of investigating liability be justified as proportionate? Even if account is taken of the importance of the issues for the claimants, courts will be unlikely to allow a budget for investigating liability which, on the claimant's side alone, would be significantly higher than the likely damages.

The medical and legal issues are the same, but the bereaved will have much greater difficulty in achieving access to justice.

The challenging economics of fatal cases has often led litigators to seek damages for claimants for psychiatric injury as secondary victims. That is not always an easy solution - see my previous post. Where a baby is still-born, and therefore never lived, the courts have sought to circumvent the lack of entitlement to a bereavement award by awarding a similar amount for the loss of satisfaction in bringing a pregnancy to a satisfactory conclusion or other means - see Bagley-v-North Herts HA [1986] NLJ Rep 1014. See also the approaches taken in Kralj-v-McGrath [1986] 1 All ER 54 and Grieve-v-Salford HA [1991] 2 Med LR 295.

The bereavement award is not intended to be compensatory. It is the same for everyone regardless of how they have been affected by the death. The amount at which it is set is in a sense arbitrary. It has been argued that it should be dispensed with altogether - it is distasteful to put any figure on the value of a death. Others argue that it should be set much higher.

At present, where there is no entitlement to a bereavement award, or there is but there are no other substantial claims (for dependency or pre-death injury and losses) there is a risk that deaths which might be due to clinical negligence will not be adequately investigated. For good or ill, litigation is an important means through which deaths are investigated and those who might be responsible are held to account. There is the coronial system but in many cases  (and in particular those where there is no economically viable civil claim waiting in the wings) the bereaved will not be entitled to or be able to afford legal representation at Inquests. The state, through the NHS, will pay for representation for the NHS Trust which might be responsible for the death but not for the bereaved.

If the Inquest does not provide a full inquiry in which the bereaved can fully participate and the costs of litigation are disproportionate because of the limited compensation recoverable, then certain deaths which might have been avoidable will not be investigated and those who might be responsible will not be held publicly accountable. That would be no good for the bereaved, no good for the institutions who might be responsible and no good for the rest of us - we all want lessons to be learned.

I am grateful for Katie Donne of Barcan Woodward for suggesting the topic for this post

Thursday, 18 July 2013

Should an Apprentice Run a Cosmetic Procedures Business?

There are several ironies involved in Dr Leah Totton winning The Apprentice.

First, Dr Totton was trained at a cost to the NHS estimated by one report to be £250,000, the very same amount Lord Sugar is to invest in her private medical company, thereby inducing her to leave the NHS. So the taxpayer, through the NHS has funded her training and then, through the BBC, has helped deprive the NHS of her services.

Second, Sir Bruce Keogh's Review of the Regulation of Cosmetic Interventions recommended a prohibition on offering cosmetic procedures as competition prizes yet the BBC has now given a whole cosmetic clinic as a prize in a competition. That takes it to another level!

Third, although Dr Totton's selling point was that she is a proper doctor, the British Association of Plastic Reconstructive and Aesthetic Surgeons has expressed its concern that "a very junior doctor" should be held out as an authority in cosmetic interventions.

So, to BAPRAS she does indeed look like "The Apprentice" when it comes to offering cosmetic procedures.

The business will be called Dr Leah (not Niks as she had planned) which will emphasise her medical qualification. She is a registered medical doctor and was given a full licence to practise in August 2012. Accepting that her medical training might put her in a better position to offer cosmetic interventions than the local beauty salon, the question is whether she has the qualifications and experience to be held out as an expert in the field of cosmetic procedures.

BAPRAS writes that The Apprentice final, "highlights the on-going trivialisation of non invasive cosmetic surgery procedures and dismisses the associated risk of physical and emotional harm in favour of financial gain and entertainment."

Prospective patients need to make sure that Lord Sugar remains the only person taking a risk. If anyone is considering undergoing Botox injections, facial fillers or similar so-called "non-invasive cosmetic procedures" at the hands of any provider, they should consider asking:

- What are the risks and possible complications associated with the treatment and what evidence is there of the long term effects of the treatment?

- Will further treatments be necessary to maintain results, and at what cost?

- What qualifications does the practitioner have for providing the   particular treatment? 

- What experience does the practitioner have of providing the particular treatment?

- What investigations into the medical and psychiatric history and condition of the patient have been carried out and for what reason?

- Is the individual practitioner insured in respect of any claims for injury attributable to the treatment and the obtaining of consent? Does the insurance provide full indemnity irrespective of when the claim on the policy is made? What is the excess?

- Is there a contract between patient and provider and what are its  terms? Who is the contract with and are there any exclusion clauses?

- Are there other ways of achieving the same or a similar outcome which do not involve injecting substances or removing layers of skin?

- What written information is available about the treatments and is there sufficient time to read and consider it?

Dr Leah may become an expert in this field of practice and her business may help drive out the rogue practitioners. Meanwhile as she begins her work, the cosmetic procedures industry, perhaps with renewed vigour, continues to draft enforceable standards and regulations which will serve to protect all patients.

Let's hope that future regulations are sufficiently strong to enable the authorities to point the finger at any rogue practitioners and tell them: "You're fired."

Tuesday, 16 July 2013

The Spirit and the Letter of the Law - Lessons from Cricket

By sticking to the letter of the law Stuart Broad struck a blow for fairness and consistency.

How many of those who have so roundly criticised Stuart Broad for not "walking" when he edged a ball to first slip during the first of the Ashes test series this summer, have broken the law and not handed themselves in to the police? Have none of them driven over the speed limit without reporting their offence?

Many people routinely break the law with impunity and think nothing of it. A cricketer happens to abide by the laws of cricket and there are calls to punish him.

This hypocrisy comes, I believe, from misplaced romanticism about the spirit over the letter of the law. It seems to be a popular notion that adherence to the spirit of the law is as, if not more, important than abiding by the letter of the law. But cricketers, and citizens generally might do better to focus instead on the letter of the law.

Glorifying the spirit over the letter of the law allows for a subjective interpretation of the intentions of law-makers; it encourages a discretionary approach to the law and promotes lack of clarity and inconsistency. What, after all, is the spirit of the law and how can we all agree on what it means? Lord Bingham was surely right to describe the qualities of clarity, consistency, objectivity, and governance by law not discretion as important ingredients of the rule of law.

The rules of the game of cricket happen to be called "Laws". 

Stuart Broad was "out" caught as defined by Law 32.1, but  Law 27 provides:

1. Umpire not to give batsman out without an appeal

Neither umpire shall give a batsman out, even though he may be out under the Laws, unless appealed to by a fielder. This shall not debar a batsman who is out under any of the Laws from leaving his wicket without an appeal having been made ...

2.  Batsman dismissed

A batsman is dismissed if, either (a) he is given out by an umpire on appeal, or (b) he is out under any of the Laws and leaves his wicket as in (1) above.

9. umpire's decision ... is final.

So, Stuart Broad was not given out and was not dismissed under the letter of the laws of cricket. The laws do allow for a batsman to "walk" where the fielding side have not appealed. But he was no more obliged to give up his wicket than would Andy Murray be obliged to volunteer to replay a point won where he sees his opponent's ball landing in but it is called out and there is no appeal.

Traffic laws define when a speeding offence is committed and what the punishment should be. In cricket being dismissed is not a punishment for an offence, the rules define the combination of circumstances which lead to a dismissal. Stuart Broad was not dismissed under the rules of the game.  He was lucky that the Australians were no longer able to ask for the third umpire to review, but he acted within the letter of the law. Did he act contrary to the spirit of the law?

Paragraph 5 of the Preamble to the Laws of provides that it is against the spirit of the game:
"To dispute an umpire's decision...
To direct abusive language towards an opponent or umpire
To indulge in cheating or any sharp practice, for instance:
(a) to appeal knowing that the batsman is not out
(b) to advance towards an umpire in an aggressive manner when appealing
(c) to seek to distract an opponent either verbally or by harassment with persistent clapping or unnecessary noise under the guise of enthusiasm and motivation of one's own side."

Note that the preamble talks of the spirit of the game rather than the spirit of the law and the examples given are far more to do with general conduct on the field of play. The preamble does not refer at all to a batsman failing to walk when an appeal is made to the umpire. A distinction is made between that situation and a dishonest appeal to the umpire. Michael Holding was wrong therefore to draw a parallel between the Denesh Ramdin case and that of Stuart Broad.

Golfers are obliged to volunteer that their ball has moved when addressing it - but who else would know that the ball had moved? They have to be trusted to admit to events which lead to penalties. Test cricketers are not in the same position - two umpires watch their every move on the pitch, another on a TV screen. In any event golfers and cricketers are both obliged to abide by the letter of the law - it is just that the laws of each game place different obligations upon them.

For years the convention at test match level is that a batsman will play to the umpires' decisions. In the same match that Stuart Broad stood his ground, the Australian captain and vice-captain both awaited the umpires' decisions after similarly being caught out. If only one side or one player decides to "walk" rather than await the umpires' decisions, then there would not be an even contest.

The spirit of the law is in the eye of the beholder. Insistence on adherence to the letter of the law is fair to all and it provides for clarity, certainty and objectivity. Romanticism about the spirit of the law can lead to inconsistency and subjectivity - enemies of the rule of law.

Stuart Broad's decision not to "walk", far from cheating, ensured a fair match. His adherence to the letter of the law should be applauded.


Tuesday, 9 July 2013

Medical Innovation and the Law of Negligence

Lord Saatchi has been promoting the Medical Innovation Bill in the media. He has a deep personal commitment to the Bill but some of the reasoning he has given for the need for the legislation seems to me to be fundamentally flawed He believes that clinical negligence law stands in the way of clinical innovation and in the Daily Telegraph he seems to make the striking claim that clinical negligence law is the reason why there is no cure for cancer. He writes:

"Any deviation by a doctor is likely to result in a verdict of guilt for medical negligence. The law defines medical negligence as deviation from that standard procedure. But as innovation is deviation, non-deviation is non-innovation. This is why there is no cure for cancer."

I am not sure that there will be one reputable clinical practitioner or clinical negligence lawyer who would agree with him.

The law on medical negligence has been clear for over 50 years since  Bolam-v-Friern Hospital Management Committee [1957] 1 WLR 582: a doctor is not negligent if he or she acts in accordance with a practice accepted as proper by a responsible body of medical men and women skilled in that art merely because there is a body of opinion that takes a contrary view. So, if 95% of doctors would not give a certain kind of cancer treatment but 5% would, and that 5% represents a reasonable body of opinion, then it is not negligent to give that treatment.

The law does not define medical negligence as deviation from standard procedure.

There is case law which demonstrates that medical negligence law does not hinder innovative treatment, even treatment previously untested on humans. In Simms-v-Simms  [2003] 2WLR 1465 the court considered an application that two persons suffering from variant Creutzfeld Jakob disease should be given innovative treatment which was new and untested on humans. The court decided that the first question was whether the doctors would be acting in accordance with a responsible and competent body of relevant professional opinion as per Bolam, and the court held that there was a responsible body of professional opinion that supported the innovative treatment.

So the law of clinical negligence is not an obstacle to innovation. There are of course already guards against reckless experimentation given without patient consent. The General Medical Council for example issues numerous guidelines including those on obtaining patients' consent to treatment which is part of a research project. I did have one case where a cancer patient died of the toxic effects of High Dose Interferon. The drug was being used as part of a trial and the clinician did not abide by the protocol for the trial. He continued to prescribe the drug when the patient's liver function tests were very significantly abnormal. Do we really want legislation which would protect a practitioner from departing from carefully thought through trial protocols, or which would remove reasonable protections from patients?

I have recently written a series of blog posts on bringing claims for delay in diagnosing cancer. If nothing else they surely show how very difficult it is to bring a successful claim. The Bolam test provides a substantial shield for medical practitioners to defend allegations of negligence and claimants have the difficult task of proving causation when the allegedly negligent treatment has been given to a terminally ill patient.

Thursday, 4 July 2013

All Change for Coroners Courts

The appointment last year of a Chief Coroner, HHJ Peter Thornton QC, was expected to be followed by changes to coronial practice and procedure, and so it turns out.  I have not yet seen the final rules and regulations which are expected to be published this month but, together with the (belated) implementation of the Coroners and Justice Act 2009 they will introduce some important changes to the Coroners' court.

Coroners will be engaged in three stages - an enquiry, which may or may not lead to an investigation, which may or may not lead to an inquest. 

As publicised by the Ministry of Justice today it is required that investigations (which includes the inquest if required) should be completed within six months or as soon as practicable thereafter. Any investigation not completed within 12 months must be reported to the Chief Coroner (as provided for by the 2009 Act).

HM Coroner for Manchester has forewarned local "stakeholders" that the new regime will necessitate compliance by all parties, including NHS Trusts, with directions for providing documents, witness statements and witness availability. There are sanctions available to the Coroner in the event of non-compliance.

As a clinical negligence practitioner I am primarily concerned about the effect of these changes on cases involving deaths in a healthcare setting.

The first and most obvious benefit could be that bereaved families have an investigation into the death of their loved-ones at an early stage. There is a general benefit in not being kept waiting and a specific legal benefit in some cases. Under the Human Rights Act there is a one year time limit for bringing a claim: a coronial investigation completed within a year of death will help families know, in time, whether there a grounds for such a claim.

It is laudable to seek to conclude coronial investigations within these time limits, but it will be interesting to see how many cases do get reported to the Chief Coroner for having overrun. Some investigations require the attendance of a large number of witnesses including busy medical professionals. The administrative systems of some NHS Trusts are not geared to the prompt disclosure of documentation. These changes will place further demands on the already stretched NHS.

It would also be of considerable concern if the desire to meet targets for completing investigations interfered with the need for a thorough investigation.  

Bereaved families need to be aware to ask the right questions at the right time. Some families whom I have represented, did not start raising questions about the death of their loved-one until several months after the death. They often have other priorities or are not emotionally ready to assert themselves with the huge organisation that is the NHS. Coroners should be alert to those cases where certain difficult questions need to be addressed but often they need the family to alert them to shortcomings, concerns or unanswered questions. 

Helen Grant, Justice Minister, says that "we are making absolutely sure that the needs of bereaved people are put first and foremost". A simple way of doing that would be to fund representation of bereaved people for inquests. However the government has made it pretty clear that it does not encourage representation of families at inquests save in a very few cases. That is its position even though it pays for representation for NHS trusts as a matter of course.

Families may benefit from representation if there is a possible civil claim for clinical negligence or where a lawyer is prepared to act pro bono. Useful advice to families can be found on the AvMA website here

Monday, 24 June 2013

Delay in Diagnosing Cancer - Part 6: the Dying Claimant

In this sixth and final blog post on claims for delay in diagnosing cancer, I consider the problems litigators face when representing a client with a shortened life expectancy. As the decision in Thompson-v-Arnold demonstrated, final resolution of a personal injury claim will preclude a later claim by dependent relatives under the Fatal Accidents Act 1976 should the claimant later die prematurely as a result of the negligent delay. So, litigators have to consider very carefully the consequences concluding a personal injury claim.

There are various options:

-  Bring the PI claim and conclude it with the full knowledge and agreement of all who would be affected by it, including the potential dependants under a later FAA claim;

- Do not bring a PI claim but bring a FAA claim after the death of the individual with cancer;

- Bring a PI claim for delay in diagnosis and stay the claim upon receipt of an interim payment. As and when the claimant dies then convert to a FAA claim, giving credit for the interim;

- Bring a PI claim for delay in diagnosis and resolve certain heads of claim such as general damages for pain, suffering and loss of amenity, but stay the remaining heads of claim and apply to restore after the death of the claimant, converting the claim to a FAA claim;

- Bring a provisional damages claim (settlement of which does not preclude a later FAA claim);

- Resolve the PI claim as a PPO with periodical payments to continue after the death of the claimant for the benefit of the dependants (see my earlier blog for the power to make such an order).

Which option best suits the particular circumstances will depend on a number of factors including:

- Is the claimant's life expectancy very limited?

- How confident is the prognosis?

- Are there dependants/likely to be dependants?

- What is the likely value of the PI claim including any Lost   Years claim?

- What is the likely value of the FAA claim?

- Is the Defendant amenable to resolving both the PI claim and the future/potential  FAA claim (suitably discounted for early receipt? See the Lawtel report of the out of court settlement in Crowther-v-Jones.

- Is the Claimant anxious to bring and determine his/her claim before he/she dies? Or would they prefer not to have to deal with litigation in the last months of their lives?

- Is liability in dispute (can an interim payment be secured)?

- Will it be possible to prove to the requisite standard of proof, that the claimant's future death is attributable to the negligent delay in diagnosis?

- Is there an offer from the Defendant which if accepted could provide certainty of outcome?

Be careful to consider who might be affected. Who are your clients? Who would benefit from/be disadvantaged by any settlement or resolution of the claim for delay in diagnosing cancer? Bear in mind that if settlement is reached which includes recovery for a protected party, even if that is in relation to a claim under the FAA which could not presently be brought because the Claimant is still alive, the court's approval should be sought. This appears to have been the case in the case of Crowther-v-Jones.

One size does not fit all. You have to adopt a strategy to suit the circumstances of each case.

That concludes the whistle-stop tour around claims for delay in diagnosing cancer. I have put the links to all the posts here, together with links to case law and authorities.

Thanks for staying the course!

Monday, 17 June 2013

Delay in Diagnosing Cancer - Part 5 - Reduced Life Expectancy

For many claimants whose cancer was diagnosed later than it ought to have been, one of their primary concerns is the effect on their life expectancy. This is an issue which can cause considerable difficulties in litigation. It is important not to forget that there are other injuries which may be attributable to delay such as the need for more radical treatment or the psychological effects of the delay, but in this post I shall address the issue of proving reduced life expectancy.

There are a number of general difficulties which beset this issue:

-   When Oncologists talk about a cure for a patient's cancer, they talk in terms of the chances of 5 or 10 year survival. So a patient has a 95% chance of a cure from breast cancer if they have a 95% chance of surviving 10 years from diagnosis. Lawyers find it difficult to translate that information into a claim. If a claimant's chances of cure have reduced from 95% to 55% because of negligent delay, what have they lost and how do you quantify that loss, if any?

-   In establishing what life expectancy would have been but for the negligent delay, you are having to use the evidence of what has happened (given the delay) to prove what would have happened without the delay. You are using the present to predict the past! Is it legitimate to use evidence of how the claimant has responded to later treatment to "predict" how they would have responded to earlier treatment?

-   Statistics of how groups of patients have fared following diagnosis and treatment are obviously useful evidence to help establish life expectancy, but how meaningful are statistics to proving an individual case? Is the claimant typical for the group? What individual factors are relevant to prognosis and how many of them are reflected in the data?

It is perhaps easier to list all the difficulties of establishing a reduction in life expectancy than to give any solutions but there is one approach which will be helpful in many cases. In the well-known case of Gregg-v-Scott, many of the difficulties in proving reduced life expectancy came to the surface and were considered by the House of Lords. Mr Gregg originally claimed that on the balance of probabilities he would have been cured of his cancer but for his GP's negligence. By the time of actual diagnosis his prospects of being cured were below 50%. He had claimed that he had been deprived of a cure. Unfortunately for that claim, by the time the case was heard by their Lordships the evidence established that at the time when he ought to have been diagnosed Mr Gregg's chances of a cure were 42% (compared with 25% on actual diagnosis). Mr Gregg therefore changed his approach and claimed that he had suffered a reduced chance of a cure. The court found that there was no such claim recognised by English law.

Many have misinterpreted Gregg-v-Scott as meaning that a claimant whose chances of a cure would have been below 50% even without the negligent delay (or whose chances of a cure are above 50% even with the delay) cannot prove causation of reduced life expectancy.

In fact, the problem for Mr Gregg arose from the way in which he framed his claim. Baroness Hale highlighted that problem in her judgment and provided a solution. She said at [207] that the claim might have been put as a reduction in median life expectancy.

"It is possible that had he been treated when he should have been treated, his median life expectancy then would have been x years, whereas given the delay in treatment his median life expectancy from then is x minus y. This argument requires that the assessment of loss of life expectancy be based on median survival rates: ie those to be expected of half the relevant population at the particular time. If half the men with Mr Gregg's condition would have survived for x years or over with prompt treatment, and half would have survived for less than x years, then x is the median life expectancy of the group. If the same calculation of life expectancy from when he should have been treated is done in the light of the delay in treatment, the median life expectancy may have fallen. There might therefore be a modest claim in respect of the 'lost years'."

Similarly, if the claim is under the Fatal Accidents Act, then a period of dependency can be calculated.

The beauty of using median life expectancy is that it can establish a reduction even if on the balance of probabilities the claimant would not have been "cured" without the delay (or still has >50% of cure even given the delay). It also allows for the calculation of loss based on definite periods of time/survival. 

This approach succeeded when a claim framed on the basis of reduced chances of cure would have failed, in the recent case of JD-v-Mather.

Space does not allow me to discuss the pros and cons of using median life expectancy further in this post. It is an issue which I have discussed at various seminars and will be talking about at the APIL clinical  negligence conference later this year (plug). Suffice to say that deploying median life expectancy is potentially a very useful approach to many but not all claims for delay in diagnosing cancer. The potential pitfalls of using statistics do not disappear: is there sufficiently robust data available? Is there data to show what median life expectancy is when the survival prospects are high? Are there reasons to suppose that use of the median is not appropriate for the particular claimant? Nevertheless, I believe, litigators should always consider using median life expectancy to prove reduced life expectancy - it will be an effective in many cases.

In the next and final post in this series I will look at how to quantify claims where there is reduced life expectancy and the decisions to be made when representing claimants who may die prematurely because of negligent delay in diagnosing their cancer. There are links to useful resources here.

Thursday, 13 June 2013

Barristers, Legal Aid and The Media

Many of my clinical negligence clients tell me they hope they will never have to meet me again. I don't take it personally. If you need to consult with a barrister then you are usually in some kind of crisis. My clients have suffered bereavement or life-changing injury. They are often in financial need. The law imposes substantial hurdles to them holding those responsible to account. Lawyers do not make the law, but they help people who have to deal with the law. That is a necessary and useful service.

When I was called to the Bar in 1989 I joined a profession with an honourable history. Lincoln, Gandhi, Mandela - all lawyers. Although not of that calibre, most barristers I have encountered have been honest, hard-working and talented. Given the nature of our work, the number of complaints made to the independent regulator by people who actually come into contact with barristers is astonishingly low.

And yet, some people really do like to have a go at us.

Harry Mount oozed scorn for the legal profession in his Spectator article last week: for him lawyers have created an "over-priced, agonising racket." He claims that barristers are used to "gilt-edged perks" "privileges and subsidies". Quentin Letts in the Daily Mail regards us as an "over-complicating, tax-sponging cabal". He scoffs at the idea that the head of the Criminal Bar Association should be concerned about the impact of government proposals on legal ethics: "Legal ethics? Remind me."

Perhaps it is foolish to react. Comment journalists are not obliged to write reasoned, balanced articles. No-one would regard them as having a deep knowledge of the justice system. Next week they are as likely to express equally forthright opinions on the NHS, education or immigration. Reacting to playground taunting might only serve to raise the volume.

Yet, their opinions are widely read and, you sense, in tune with those of Mr Grayling. It has been decided that the best way to respond to opposition to the MoJ's legal aid proposals is concerted lawyer-bashing. After all, who loves lawyers?

So, if we do not stand up for ourselves and for the system of justice in which we work, we cannot expect anyone else to do so.

There is a perfectly reasonable argument to be had about the high costs of litigation. Barristers who do not depend on publicly funded work are generally very well paid. Fire away. But the current argument is about legal aid. Barristers whose income is from legal aid are not generally overpaid. Every year the press publishes a list of the barristers who have received the most in legal aid fees. These are the top earners, the elite, often conducting the most difficult and sensitive cases.  There are thousands of others earning a small fraction of the fees at the top. You cannot infer the average wages of journalists from knowing what Quentin Letts earns.

If the legal aid proposals were just about trimming fees then there would not be the same level of opposition. What really sticks in the craw is not the invective about money, but being sneered at by these journalists the work that we do and for our belief in the value of having a justice system that is accessible to all. Messrs Mount and Letts surely know that this opposition to Mr Grayling's legal aid proposals is not about lining the pockets of what Mr Mount calls "millionaire QCs". The great majority of lawyers strongly oppose the proposals because they will undermine access to justice. They will deprive those on criminal legal aid of the choice of lawyer. They will drive down access to experienced, good quality legal services. Should we just shut up about that?  

As for the snide attacks on lawyers themselves, actually, Mr Letts, ethics are extremely important to lawyers. And maintenance of legal ethics is important to anyone unfortunate enough to be caught up in the legal system. A strong code of conduct, enforced by independent regulation, is crucial to maintaining professional standards. The legal system relies on the integrity of lawyers to function effectively.

It is curious that most of the vitriol comes from the political right. A strong legal system accessible to all and which secures the rights of individuals, including their right to protection against the state should surely be a cornerstone of any libertarian's beliefs. Would the political right prefer the state to have fewer checks on its authority over individual citizens?

The caricature of the fat cat barrister whose only interest is to line his own pockets is becoming tedious. Barristers do perform a necessary and worthwhile service and most of us do care about our system of justice. Some may regard that statement as laughable, but I believe it is true.

Lawyers do not need to be loved, but they should be respected as knowing something about the legal system. We are entitled to be listened to when we oppose government proposals which we believe will damage that system. We should not be pilloried for speaking out.

On a not unrelated matter - please consider sponsoring me and the other barristers swimming in the Great North Swim in aid of the North West Legal Support Trust - the link is here . The Trust supports bodies who provide access to justice for those who would not otherwise be able to afford it.

Friday, 7 June 2013

Delay in Diagnosing Cancer - Part 4: Treatment

If the date when diagnosis would probably have been made but for the defendant's negligence is the "opportunity date", and the date when diagnosis was actually made is the "diagnosis date" then the litigator needs to establish the likely treatment at both dates.

The treatment given at diagnosis will be a matter of record. The treatment which would or should have been given at the opportunity date will have to be established to the civil standard of proof using other evidence. Crucial evidence will include:

- what the characteristics of the cancer would have been at the opportunity date (see Part 3);

- what treatment options would have been offered or recommended to the claimant;

- what treatment the claimant would have opted to have.

It would be a mistake not to consider both the recommendations for treatment and the claimant's election. Different patients will make different decisions about treatment even when given the same advice about the same stage/grade of cancer. Some women might choose a lumpectomy, others a mastectomy.

The treatment which would have been given at the opportunity date is relevant for two obvious reasons. First, in many cases involving delay in diagnosing cancer, the treatment is the injury, or one of the injuries suffered. Second, the treatment which would have been given is relevant to the likely prognosis on earlier diagnosis.

In later posts I will consider the issue of prognosis and reduced life expectancy, but litigators should not lose sight of the possibility that the difference in treatment due to the delay could be a substantial injury in its own right. In one case of mine the delay in diagnosing a synovial sarcoma led to the claimant having her leg amputated. With earlier diagnosis she would probably have had had the cancer excised and have avoided amputation. In many breast cancer cases a mastectomy would have been avoided but for the negligent delay. Sometimes the adjuvant therapy would have been avoided. Sometimes the injury is a complication of such avoidable therapy, such as complications of chemotherapy. Avoidable treatments may have long term implications for the claimant's capacity for work and need for care.

In Froggatt-v-Chesterfield (reported on Lawtel) the High Court awarded £75,000 general damages for PSLA (current value over £100,000) to the claimant who had undergone an avoidable mastectomy and no fewer than eight subsequent operations including breast reconstruction surgery.

When determining what difference earlier diagnosis would have made to prognosis and life expectancy, it is of course necessary to consider what treatment would have been given. If you are considering the likely prognosis for breast cancer using Predict, for example, you need to know what, if any, adjuvant therapy would have been given. Experts may differ as to their opinions of what treatment should have been given, but the first question is what treatment is likely (in fact) to have been offered. The relevant Trust may have had a protocol or guidance. It may be possible to consider what the relevant Multi-Disciplinary Team was recommending for patients with similar cancers at the relevant time (with anonomysed disclosure). In one of my cases the defendant's surgeon asserted that the claimant would have undergone full axillary node clearance whereas the MDT minutes showed that women with similar cancers were being recommended axillary node sampling only.

In subsequent posts I will tackle the difficult issue of prognosis and the decision in Gregg-v-Scott.

See this blog post for links to resources and authorities.