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.

Tuesday, 4 June 2013

Legal Typos

The following post was picked up and improved by Legal Cheek - it is worth looking at for the comments providing further typos.

Just thought I would share some legal typing errors harvested from a recent Friday's tweeting. I can only vouch for the authenticity of those which were in instructions to me, but I am sure the others are all true as well. Thanks to the tweeters named below.

"Our client suffered a Baloney amputation"

"The surgeons proceeded with a fan and steel incision"

"The defendant's offer is poultry" (Jeremy Roussak)

"Our client was taken into custardy" (Anna Symington)

"As a jester of goodwill..." (Daniel Taylor)

"The claimant can no longer carry out household tasks such as hovering". (Jasmine Murphy)

"The defendant is a pubic body" (MedNegLawyer)

"We return the document Julie signed" (Daniel Herman)

"The defendant believed he had inherited criminal jeans" (Christopher Hamerton)

"Re Estate of __________, diseased" (Lisa Boyce)

In Counsel's advice - "Having considered this case I am reasonably competent but unsure about certain issues." (Jason Cox)

"The defendant was admitted to basil with a condition of residence." (Gentleman Gardeners)

The claimant has difficulty with "widow cleaning" (John Bates)

"Was this a 2p transfer?" (Andrea Cohen)

Of course I shall keep quiet about all the typing errors I have made!