Friday, 25 January 2013

Giving Bolam a Nip and a Tuck

If there is one passage in one clinical negligence judgment which all clinical negligence practitioners know, it is McNair J's in Bolam-v-Friern HMC [1957] 1WLR 582 where he says that a doctor:

"is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art ... Putting it the other way round, a man is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."

The "body of opinion" does not have to be large  - De Freitas-v-O'Brien [1995] PIQR P281 Court of Appeal. It does have to be reasonable or responsible. If the doctor professes to exercise a special skill he or she must exercise the ordinary skill of his or her speciality - Maynard-v-West Midlands RHA [1984] 1WLR 634.

The Bolam test has been applied not just to surgeons and medical practitioners, but to dentists, nurses, midwives and health visitors. The Bolam test was applied to chiropractors in O'Loughlin-v-Greig (QBD) 15.11.99 a decision of Curtis J which is summarised on Lawtel at AC 7000267.

The question of whether a body of opinion is reasonable or responsible is one for the court. In Bolitho-v-City & Hackney HA [1998 [AC] 232Lord Browne-Wilkinson said "the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant's treatment or diagnosis accorded with sound medical practice.... in some cases it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible."

The Bolitho judgment is a guard against the courts being bound to accept the prevailing standards, or at least the prevailing standards of some (body of) current practitioners as setting the standard for acceptable practice. In litigation concerning NHS practice there will not be many occasions where, in the face of evidence that the defendant acted in accordance a practice accepted as proper by a body of medical men and women skilled in that particular art, the court finds that the practice was irrational or the body was unreasonable or not responsible.

In areas of medical practice outside the NHS, particularly in a highly developed commercial setting such as cosmetic surgery, and in healthcare fields where there are fledgling professional organisations, or where the practice as a whole is not regarded as mainstream, then the courts may well have to have closer regard to Bolitho.

The difficult question in relation to say, private cosmetic surgery practice, is to identify what is a responsible or reasonable body of opinion. Must a surgeron act in accordance with the practices considered acceptable by, say, BAAPS or BARAPS, or is that setting the bar too high? But if the court does not apply the standards of a professional body, then do the commercial providers themselves in effect set the standard? Should the courts take into account the commercial pressures on surgeons or, put more neutrally, the commercial realities in which they work? Should a patient who chooses a less expensive provider expect the same quality of care as one who pays more? Is there a minimum level of service, skill and care below which no provider should fall no matter what they charge and what warnings are given to the patient electing to undergo the treatment?

These difficulties illustrate why the role of regulation is, and might become more, important in relation to setting standards which patients are entitled to expect.

The Bolam test may require a nip and a tuck when being applied to cosmetic surgery and healthcare services provided in a profit-driven market.

Friday, 11 January 2013

Repeal of the Law Reform (Personal Injuries) Act 1948

On the Radio 4 Today program on 11 January 2013, in response to a recent settlement of a clinical negligence claim for a child with cerebral palsy in the sum of £7.1 million (in fact it was a periodical payment order and therefore the total damages may turn out to be more or less than that sum), Christine Tomkins, Chief Executive of the Medical Defence Union, questioned whether the Law Reform (Personal Injuries) Act 1948 was sustainable given the large cost to the NHS (and presumably to insurers such as the MDU) of compensation payments.

In an article in The Independent in December 2012, Christine Tomkins was also quoted as saying:

"Today claims for babies damaged at birth may cost up to £6m. Money is pouring out of the NHS to set up 'one-patient institutions' when it could be retained in the NHS."

The article reported her as arguing that the law required that the cost of future care in such cases be calculated on the basis that it would be provided privately, rather than on the NHS. The rule, she claimed, was established under the 1948 Law Reform (Personal Injuries) Act – before the NHS became established. Again she was quoted:

"Why must you disregard NHS care [in calculating the size of a settlement]? It was understandable in 1948 when no one knew how long the NHS would last or how comprehensive it would be. But it doesn't make any sense today when the NHS often delivers the best care."

This is a thought-provoking analysis. What would be the consequences of a repeal?

The 1948 Act

Section 2(4) of the Act provides that:
"In an action for damages for personal injuries ... there shall be disregarded in determining the reasonableness of any expenses the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the NHS."

It does not follow that a claimant will be awarded the costs of private provision even if he is likely to use the NHS - Harris-v-Brights Asphalt Contractors Ltd [1953] 1 QB 617, Woodrup-v-Nicol [1993] PIQR Q104. It must be likely that he will actually incur the costs for them to be recoverable. Thus if parents of a child with cerebral palsy were satisfied that the NHS would deliver the best care to their child for the remainder of its life, then they would choose to rely on the NHS and the court would not award compensation for private provision. In fact nearly all parents with a choice, choose private provision.

The Courts' Approach

How do the Courts approach these cases? In Whiten-v-St George's Healthcare NHS Trust [2011] EWHC 2066 (QB) Mrs Justice Swift stated that "The claimant is entitled to damages to meet his reasonable needs arising from his injuries. In considering what is "reasonable", I have had regard to all the relevant circumstances, including the requirement for proportionality as between the cost to the defendant of any individual item and the extent of the benefit which would be derived by the claimant from that item."

A claimant can only claim the reasonable costs of care, equipment and therapies which are reasonably required because of the injuries sustained. Nevertheless, the 1948 Act provides that in determining reasonableness, the availability of NHS provision should be disregarded.

Consequences of Repeal

Even if s2(4) of the Act were repealed a court would still compare the quality of the proposed private provision and the proposed state provision. It would also have to consider to what extent the quality and extent of future state provision could be guaranteed. If the claimant requires 24 hour care within his or her own home, what would the NHS provide? Would it provide suitable equipment, nursing care, therapies, accommodation, transport etc.? And would it guarantee to do so for the remainder of the claimant's life?

Furthermore, NHS provision of 24 hour care in the Claimant's own home is not cost free. It would cost the state a great deal of money. The cost to the state of a claim for compensation of £7.1 million, is not £7.1 million more than the cost to the state if the NHS itself provided the care, equipment etc. required over the whole of the injured person's life. Indeed, since the government seems keen on contracting out services to the private sector on the basis that the private sector can provide services more efficiently, why should we assume that the NHS would provide the necessary care at lower cost than the private sector?

So upon repeal of the 1948 Act, if the defendant were the NHS itself, then a costs comparison would inevitably be made - would the NHS be able to provide the same (reasonable) quality of care, accommodation and equipment as the private sector and at what cost?

Further, surely the government would not want to repeal the Act for all claims. To do so would allow any defendant, including insured motorists, to avoid paying compensation by saying that of course the private provision is disproportionate because the claimant can get the same provision for free through the NHS. That might lower the compensation awards, but it would simply shift the burden from insurers to the state.

The MDU is not "the state", so repeal of the Act would be particularly advantageous to its members if not to the taxpayer.

"One-patient institutions"

Christine Tomkins refers to injured persons' homes as "one-patient institutions". I don't know whether the intended implication is that to save costs, injured persons should be cared for in multi-patient institutions, or that repeal of the 1948 Act would lead to that result. If so, then perhaps that outcome would indeed save costs. Indeed for a very few claimants it may actually be in their best interests to be cared for elsewhere than in their own home. But for most it will be in their interests and it will be their wish to remain at home. Had they not been negligently injured these individuals would have been able to benefit from family life at home. If they have the capacity to benefit from home life is it right that they should then be deprived of the choice to live at home in order to save costs (if indeed it would save costs)?

There is no doubt that the cost to the NHS and doubtless the MDU of compensation payments for patients seriously injured by negligent treatment has risen. It may be that the burden has risen as more children have survived severe peri-natal brain injury, and have survived for longer. Perhaps more families are aware of their entitlement to claim compensation than used to be the case. A wider range of, sometimes expensive equipment is now available to assist severely injured persons. Perhaps lawyers and experts have learned more about the true costs of caring for a seriously injured person and are claiming now for a wider range of provision. But whatever the reasons for the increases in the compensation bill, is it clear that repeal of the 1948 Act would be the answer?

Thursday, 3 January 2013

Birth Injury and Material Contribution

In Nathan Popple-v-Brimingham Women's NHS Foundation Trust [2012 EWCA Civ 1628 the Court of Appeal commented that the result of the appeal was of interest to the parties only. In fact it contains a short passage on causation and the application of Bailey-v-MOD which is of general interest.

According to the Court of Appeal's judgement, Nathan Popple suffered from "intra-partum asphyxia causing brain damage of the 'acute profound' or 'acute near total hypoxic' (low oxygen in the arterial blood) ischaemic (blocked or restricted blood supply) type as a result of which he now suffers severe dyskenitic or athetoid cerebral palsy". He therefore suffered from a single injury (Cerebral Palsy) due to a single cause (hypoxic ischaemic asphyxia, "HIA").

Nathan was born at 1449 hours. The failure adequately to monitor the fetal heart rate and nature of the other evidence in the case was such that the experts could not precisely determine the period of HIA. The evidence could not establish whether by Nathan suffered 15 minutes or 20 minutes of HIA. It appears to have been accepted that the period of HIA ended at birth (1449). The Court of Appeal noted that "the causation experts agreed that "Nathan would need to have been delivered between 1439 and 1444 in order to have avoided brain injury."" [paragraph 76]. If he had suffered a 15 minute period of HIA at birth then the HIA began at 1434, thus, delivery at 1444 would have limited him to a period of ten minutes of HIA. If he had suffered a 20 minute period of HIA then HIA began at 1429 hours and delivery at 1439 would have limited him to a period of ten minutes of HIA. A period of ten minutes of HIA would not have caused him any injury.

In fact the trial judge had held that but for the negligence of the midwives who had conduct of Nathan's mother's labour and his delivery, "I am satisfied that an episiotomy should have been performed by no later than 14.35 and that Nathan would have been delivered then or shortly thereafter - and, in any event, before 14.39." Thus, but for the negligence, he would not have had more than ten minutes of HIA and would not have suffered any injury at all.

Nevertheless the Court of Appeal did address the "what if" question. What if Nathan had in fact suffered a 20 minute period of HIA by birth at 1449 hours but, in the absence of the negligence, he would been been delivered by 1444 hours? He would then have suffered 15 minutes of HIA, the last five minutes of which would have caused injury, albeit less extensive injury than he in fact suffered (the severity of cerebral palsy would be generally considered to correlate to the duration of the HIA).

The Court of Appeal held at [78]:
    ... Some damage might have occurred during the five minute period prior to 14.44 if the overall duration of the insult was 20 minutes, but there would still have been damage in the entire last five minutes from which Nathan would have been saved had he been delivered by 14.44. It was not possible to say how much, if any, damage occurred prior to 14.44, whereas all of the period thereafter must have been damaging. Thus, on any view, a failure to deliver by 14.44 either caused the damage in its entirety or made a material and probably preponderant contribution to it.

          The rule established by Bailey v Ministry of Defence [2008] EWCA Civ 883 is, per Waller LJ at [46]:

"In a case where medical science cannot establish the probability that 'but for' an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the 'but for' test is modified, and the claimant will succeed."

Here the negligent failure to deliver Nathan before 14.44 caused all the damage if this was a 15 minute insult. Medical science cannot establish whether it was a 15 minute insult or a 20 minute insult. If it did take 20 minutes, the damage done in the last five minutes must have made a contribution to the overall harm which was more than minimal. I cannot see why the Bailey principle does not apply."

The medical uncertainty was about the actual period of HIA. As I understand it, there was no uncertainty about whether a period of HIA longer than 10 minutes would have caused some HIA. Also the experts were not saying that the period of actual HIA was either 15 minutes or 20 minutes, but that it was between 15 and 20 minutes. It could have been 16 minutes, or 19 minutes, for example.

It might be argued therefore that in some cases a claimant is advantaged by uncertainty in the expert evidence. Thus, if the evidence establishes that a child has suffered CP due to a period of HIA, a part of that period being non-negligent and the other part being negligent, but the evidence can only establish that the negligent period caused either some or all of the cerebral palsy, the claim will succeed, and it seems, compensation will be awarded for all the cerebral palsy suffered. On the other hand if the evidence establishes exactly the duration of the negligent and non-negligent parts of the period of HIA, and that the child would have suffered some CP even without the negligence, but less severe CP than he has in fact suffered, then compensation will be awarded only for the additional injury caused by the negligent delay.

This judgment does not address other questions such as how the courts should approach cases where the uncertainty is greater, namely that but for the period of delay the Claimant may have suffered all, some or even none of the injury he did in fact suffer. Or where the uncertainty is not about the period of negligent exposure to a damaging cause but about the extent of the injury caused by that exposure.