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.  ...an 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