Tuesday, 19 March 2013

Secondary Victims

The Master of the Rolls has given a  judgment on a secondary victim claim in a personal injury action which will have important consequences for clinical negligence litigation.

In Taylor-v-A. Novo (UK) Limited  [2013] EWCA Civ 194 Mrs Taylor suffered injuries as a result of an accident at work. Three weeks later, at home, having seemingly begun a good recovery, she collapsed and died as a consequence of those injuries. Negligence for the accident was admitted. Her daughter, the claimant, Ms Taylor, witnessed her mother's death but not the accident. She claimed compensation as a secondary victim for her own psychiatric disorder due to the shock of witnessing her mother's death at home.

The Master of the Rolls referred to the established rules of recovery for secondary victims set out by Lord Oliver in Alcock v Chief Constable of South Yorkshire Police [1991] 1AC 310 

"first, that in each case there was a marital or parental relationship between the plaintiff and the primary victim; secondly, that the injury for which damages were claimed arose from the sudden and unexpected shock to the plaintiff's nervous system; thirdly, that the plaintiff in each case was either personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards; and, fourthly, that the injury suffered arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim. Lastly, in each case there was not only an element of physical proximity to the event but a close temporal connection between the event and the plaintiff's perception of it combined with a close relationship of affection between the plaintiff and the primary victim. It must, I think, be from these elements that the essential requirement of proximity is to be deduced, to which has to be added the reasonable foreseeability on the part of the defendant that in that combination of circumstances there was a real risk of injury of the type sustained by the particular plaintiff as a result of his or her concern for the primary victim."

The Master of the Rolls identified the issue in Taylor-v-A. Novo as being "whether the death of Mrs Taylor was a relevant incident for the purposes of Ms Taylor's claim as a secondary victim. If it was, then her claim would succeed because, on this hypothesis, it would not founder on the rock of any of the control mechanisms." [25]

He, and the other appeal judges found that the death was not the relevant incident or event:

"A paradigm example of the kind of case in which a claimant can recover damages as a secondary victim is one involving an accident which (i) more or less immediately causes injury or death to a primary victim and (ii) is witnessed by the claimant. In such a case, the relevant event is the accident. It is not a later consequence of the accident. Auld J put the point well in [Taylor-v-Somerset Health Authority [1993] 4 Med LR 34]. MsTaylor [the present claimant] would have been able to recover damages as a secondary victim if she had suffered shock and psychiatric illness as a result of seeing her mother's accident. She cannot recover damages for the shock and illness that she suffered as a result of seeing her mother's death three weeks after the accident." [32]

In the clinical negligence case of Taylor-v-Somerset HA referred to, the deceased's heart condition had not been adequately managed over a period of time. He collapsed and died at work . His wife attended hospital and saw him and claimed damages as a secondary victim. She was denied damages, Auld J holding that the death was not "the event" which had to be considered for the purpose of determining the validity of the secondary victim's claim. It was a first instance decision. The House of Lords in W-v-Essex CC [2001] 2AC 592 seemed to point to a more liberal approach to the secondary victim control mechanisms, albeit in relation to a strike-out application.

In other clinical negligence cases, such as North Glamorgan NHS Trust-v-Walters [2002] EWCA Civ 1792, the "event" has been taken to be the deterioration and death of a patient due to negligent treatment, yet the Master of the Rolls did not think Walters was inconsistent with his judgment in Taylor-v-A. Novo.

There are many clinical negligence claims where a close relative suffers a psychiatric injury as a result of witnessing a collapse or death due to negligent treatment which occurred days, weeks, even years before. Suppose a surgeon perforates the bowel and the perforation is not recognised. The patient goes home, develops systemic sepsis, collapses and dies. There was an "accident" - the perforation-  but clearly the relatives did not witness that, only the "horrific" collapse and death at home. Is the horrifying "event" the perforation rather than the collapse and death?

The Master of the Rolls quoted Lord Oliver in Alcock where he divided cases of nervous shock into two categories:those in which the claimant is directly involved as a participant, and those in which the claimant "was no more that the passive and unwilling witness of injury caused to others." [emphasis added]. If the "injury" is caused in a road traffic accident, at a factory or a football stadium then the injury is contemporaneous with the accident. In clinical negligence cases the "injury" is often suffered and therefore witnessed as a later consequence of the negligence or accident.

In Walters , as in many clinical negligence cases, the negligence was an omission - a failure to diagnose acute hepatitis - and the "event" was his collapse, deterioration and death (apparently) several days later.  There was no earlier "accident" to witness.

Defendants are likely to deploy the judgment in Taylor-v-A. Novo to argue that a collapse and/or death of a patient consequent upon an earlier negligent event are not part of the event and that therefore secondary victims who witnessed the event's consequences but not the event itself are not entitled to recover compensation. Claimants can still refer to Walters as supporting the contention that where "injury" is subsequent to an act or omission of clinical negligence, the injury can be the event to which the secondary victim control tests are applied.

This is an area of law where the courts are guided by "policy" considerations, but different judges may have different notions of where the policy lines should be drawn. 

Perhaps the Supreme Court will be asked to tackle this important issue.

Thursday, 14 March 2013

Singapore Spring - Clinical Negligence Litigation after 1 April 2013

Perhaps it is the view from my window of a beautiful spring sky over Salford, but I want to encourage a little more optimism about the future of civil litigation post 1 April 2013. There is so much fear and loathing abroad but whilst there are many causes for concern (see February blog), perhaps clinical negligence litigators, more than most, can look forward to the Jackson Reforms as challenges to meet rather than existential threats.

The current rush to conclude as many CFAs as possible before "J-day" is testimony to the belief amongst many claimant representatives that the landscape after 1 April is bleak and unwelcoming. And yet ...

- Would we really miss ATE insurance? It has introduced very substantial additional cost into the system but for what overall benefit? I suspect that ATE insurers have had to pay out defendants' costs in very cases, and yet premiums are often set at a large percentage of the potential liability and must have cost the NHS a small fortune. For those would miss dealing with ATE insurers, there is still the retention of recoverable premiums for part of clinical negligence work. There will be ATE available for own costs. QOWCS will ultimately simplify costs and reduce the burden of costs in clinical negligence litigation. The days of six figure premiums to cover the winning party's costs are presumably over.

- Why shouldn't the parties know in advance, broadly what the costs of each phase of the litigation are going to be? I would want a detailed estimate of costs before agreeing to building works at my house. I would think it an odd system for the builder to charge me what he wanted at the end of the project and then to have a lengthy court battle about what a reasonable charge should be. And costs are more likely to be paid, in full, shortly after the conclusion of a case: claimants' lawyers should have improved cashflow.

-  It is reasonable for the courts and for the state to want to keep some level of control over the costs of litigation and to ensure that they are proportionate. Costs have risen. Lawyers should not be heard to complain if access to justice can be maintained and justice delivered at lower cost. Who can argue against a requirement that a costs budget should be proportionate? Would they prefer the courts to allow disproportionate costs? In most clinical negligence cases the courts will surely trust that specialist lawyers intend to act proportionately and reasonably. The hatchet is being sharpened for lower value mass litigation not for properly conducted clinical negligence cases.

- Delay is a problem which needs addressing. The new "Singapore style" case management approach hailed by Jackson LJ in his fifth implementation lecture, of which the DCJ in Manchester, and I believe other senior judges elsewhere, have reminded local practitioners, may lead to some blood on the floor but the new rules apply equally to claimants and defendants. Indeed the NHSLA is likely to face greater challenges than most claimant firms in meeting deadlines robustly enforced by the courts. If the courts give lawyers and experts the hurry up, that might just be good for clients.

- Clinical negligence practitioners will not have to worry about "The Portal"!

- Yes, success fees are going to be lower and may be driven out altogether by the market (and for barristers the market pressures will be stronger, earlier) but in my experience claimant clinical negligence litigators have always been astute to identify the right cases to litigate. This is not a world of stacking cases high and then settling as early as possible. The great majority of litigated cases have substantial merit. Frankly, if any firms have been losing more than 20% of their litigated cases, I would be surprised if they were still in business by 1 April.

The prospect of Singapore style justice will not fill everyone with the joys of spring. It engenders fear of unremitting, top-down micro-management - a Big Brother approach. And yet if you look at the new rules on, say, relief from sanctions the court is still enjoined to deal justly with the application and to consider all the circumstances of the case. The court administration is just not capable of managing all of the many twists and turns of a clinical negligence case. And the courts will also have to keep in mind article 6 of the European Convention on Human Rights before striking out claims for procedural misdemeanours (not a problem for the Singaporean judiciary!)

For practitioners who conduct clinical negligence litigation carefully, efficiently and professionally the Singapore Spring should not herald the end of the world.

I don't expect clinical negligence practitioners to embrace the Jackson Reforms, but rather than the two-fingered salute many seem to be giving them, perhaps we should at least try a respectful and firm handshake and then, together with the courts, try to make them work.

Monday, 11 March 2013

Fine Tuning PPOs

Two court decisions from March 2013 must be taken into account in all PPO cases.

In the first, a further hearing in the case of RH-v-University Hospitals Bristol NHS Foundation Trust [2013] EWHC 229 (QB) , Swift J gave judgment incorporating a technical but important change to the model PPO agreement reached with the NHSLA.

The Office of National Statistics publishes an Annual Survey of Hours and Earnings (ASHE). The SOC (Standard Occupational Code)  numbered 6115 is used for indexing periodical payments for care and case management. "First release" and "revised" data are published. The problem which had arisen was described by Swift J as follows:

"Paragraph 5 of Part 3 of the Schedule to the model order sets out the method of calculation to be used when the ONS has revised its classification of the relevant occupational group. The calculations require the use of a value, "AF", where "AF" is the "revised" hourly gross wage rate for the previously applied SOC. The SOC applied by the ONS up to 2011 was SOC 2000. The ONS has not published the "revised" 2011 ASHE 6115 data based on SOC 2000 methodology and has said that it is unable to do so. As a result, when the NHSLA was preparing to calculate the annual periodical payments due to claimants under the terms of the model order in December 2012, the value of "AF" could not be determined. "

The solution adopted by the parties and thus the court was "that paragraph 6.1.2 of Part 3 of the Schedule to the model order should be amended to provide that if, for the year of reclassification, the ONS does not publish "AF" [the revised rate] , then the value "OPF" [the first release rate] shall be applied in its place."

Thus the model agreement changes accordingly.

The Judge observed that PPO cases not involving the NHSLA would be affected by the same issue and urged all compensators "to review the terms of their existing order(s) and, in the event that the terms of the order(s) require it and the same problem of calculation arises, to seek acceptance by claimants and Deputies to amendments similar to those which have been made to the NHS LA model order in this case. "

In a further case, this time from the Court of Appeal - Wallace-v-Follett [2013] EWCA Civ 146 -  the parties could not agree two details in a PPO. The first was in relation to the provision for future medical reports in relation to the Claimant's condition. Defendant insurers/compensators wish to have Claimant's examined on occasions for purposes of purchasing annuities. The Claimant emphasised the need to protect the autonomy of the Claimant. The second issue was in relation to the requirement for providing annual proof to the Defendant/Compensator that the Claimant is still living and the consequences of failing to provide such evidence.

The Court of Appeal's solutions were to order that the following clauses should be incorporated into the PPO

"The Defence Insurer shall be entitled to require the Claimant to undergo medical examination at its request upon reasonable notice being given to the Claimant at any time during the Claimant's life time, such medical examinations to be limited to obtaining a medical opinion as to the Claimant's general health in order to obtain a quotation for the purchase cost of an annuity to fund the periodical payments and/or (not more frequently than once every seven years) for the express purposes of reviewing its reserve. The cost of any such examination, to include any reasonable costs and any loss of earnings incurred by the Claimant in attending the examination, shall be paid by the defence insurer. The Claimant shall have permission to apply to the court in the event of reasonable concern as to the nature or extent of any such examination."
"Following a request by the Defence Insurer in writing on or before 1 November each year, the Claimant shall obtain and provide to the Defence Insurer by 1 December each year, commencing 01/12/2012, written confirmation from his GP or other medical adviser dated not before 1 November of the same year confirming that the GP or medical adviser has seen the Claimant on or after that date and that the Claimant is still alive, in default of which the obligation of the Defence Insurer to make instalment payments to the Claimant shall be suspended until 7 days after the written confirmation (dated not more than one month before the date of its submission) is provided to the Defence Insurer."
It can be expected that these will now become standard terms in PPOs.


Tuesday, 5 March 2013

David James-v-Aintree - Court of Appeal

The Court of Appeal has held that the wishes and feeling of a critically ill patient who lacks mental capacity to make a decision about his treatment, cannot be ascertained, he should be regarded as having the wishes and feelings of a reasonable person. Furthermore, when considering whether treatment is futile, the Court has held that what must be established is that treatment will cure or at least alleviate a patients's life threatening disease or condition.

The Court of Appeal judgment in David James-v-Aintree may not be the final word in this case. I understand that the family will seek permission to appeal to the Supreme Court. However, as it stands the judgment seems to me to represent a significant development of the law in relation to end of life treatment decisions.

I cannot do justice in a blog to the judgments of Peter Jackson J at first instance, and of Sir Alan Ward in the Appeal. I will try to give a flavour of the evidence in the case and the key points of the judgments.

Mr James was in a critical condition. He had suffered infection following a colostomy he had undergone for the treatment of colon cancer. He suffered multi-organ failure and required critical care including ventilation. By the time of the court hearing he was described as being in a minimally conscious state. A pattern had developed of tentative recoveries interrupted by recurrent infections leading to lowering of blood pressure, septic shock and multiple organ failure.

The Trust responsible for Mr James' care sought a declaration for permission not to give resuscitation and and life saving treatment in the event of a further serious deterioration. The family opposed the application. Peter Jackson J refused to give the declaration sought. Mr James' condition deteriorated further after the initial judgment of Peter Jackson J. On 21 December 2012 the Court of Appeal allowed the appeal and made the declarations sought. Sadly Mr James died after a cardiac arrest on 31 December. The Court of Appeal handed down its full judgment on 1 March 2013.

Mr James lacked capacity. Peter Jackson J had proper regard to the Mental Capacity Act and the Code of Practice. Paragraph 5.31 of the Code of Practice provides, amongst other things, that "There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery." Whether the authors of the Code wanted it or not, this sentence has now become the subject of close textual analysis. The issue was what was in Mr James' best interests. He set out a "balance sheet" of the pros and cons of making the declaration sought and concluded that it was not in Mr James' best interests to make the declaration.

At trial the Judge heard evidence from the family that Mr James could show facial expression and showed interest in family news and events. The Official Solicitor's representative who had visited Mr James had noted how he had held his son's hand, kissed his wife when she had leaned to him and had watched her as she moved around his bed. He had smiled on hearing his wife had telephoned and on hearing music.

There was no application to withdraw ventilation or artificial nutrition and hydration but the Trust did not wish to give what would be invasive, distressing and even painful support for circulatory problems or renal replacement therapy in the event of a deterioration. Peter Jackson J held, "Although DJ's condition is in many respects grim, I am not persuaded that treatment would be futile or overly burdensome or that there is no prospect of recovery." He regarded recovery as being a resumption of a quality of life which DJ would consider worthwhile.

He noted that Counsel had not been able to identify a case in which the withholding of treatment had been approved where the patient's quality of life was comparable to DJ's and where the family was in such clear opposition.

Giving the lead judgment on Appeal Sir Alan Ward (with whom Laws LJ agreed) said that "the crucial question is to determine what the proper goal is for life sustaining treatment" which is defined in s4(10) of the MCA 2005 to be treatment which in the view of the person providing healthcare for the person concerned is necessary to sustain life. He held that the futility of treatment must be judged in the light of the answer to the question whether the treatment has a real prospect of "curing or at least palliating the life threatening disease or illness from which the patient is suffering." He held that the judge had been wrong to concentrate on the usefulness of treatment in coping with a crisis and "not also to be concerned instead with whether the treatment was worthwhile in the interests of the general well-being and overall health of the patient. The narrowness of the judge's focus undermines his judgment and I would allow the appeal on that basis alone."

Thus, it seems, treatment which saves or prolongs life is futile if it does not cure or palliate (improve or alleviate) the underlying condition. If it does no more than restore the patient to their pre-treatment condition then it is to be regarded as "futile". In Bland Lord Goff had talked of treatment as being futile where the patient was unconscious and there was no prospect of improvement in his condition. It appears that the Court of Appeal have gone a significant step further and have considered that treatment may be futile if it merely helps overcome a crisis or acute deterioration and thereby prolongs the life of a patient who is in a minimally conscious state,

Sir Alan Ward also concluded that the Judge had erred in his approach to the question of whether there was a prospect of recovery. The Judge had held that "recovery does not mean a return to full health but a resumption of a quality of life that DJ would regard as worthwhile". Sir Alan Ward disagreed stating that under the Code of Practice (especially at 5.30) the "the focus is on the medical interest of the patient when treatment is being considered to sustain life ... "no prospect of recovery" means no prospect of recovering such a state of good health as will avert the looming prospect of death if the life-sustaining treatment is given." That is a very high hurdle - in many cases there will be no prospect of a sustained recovery but there may be improvements which could be made to enhance his quality of life.

Having found that the first instance judge had erred in law, Sir Alan Ward then went on to consider what was in Mr James' best interests. He said, with what almost sounds like reluctance, "here I have to accept that the term "best interests" encompasses medical, emotional and all other welfare issues." The court must consider, so far as reasonably ascertainable, the person's past and present wishes and feelings - s4(6) of the Act. However Sir Alan held that since Mr James lacked capacity and his wishes and feelings could not be ascertained, the court had to have regard to the factors that he would be likely to consider if he were able to do so. In that context he held that "His wishes, if they were to be the product of full informed thought, would have to recognise the futility of treatment, that treatment would be extremely burdensome to endure and that he would never recover enough to go home". Sir Alan concluded, "I respect his wishes but in my judgment they must give way to what is best in his medical interests."

Lady Justice Arden took a similar line on the question of wishes and feelings. She said that "if the court has any doubt as to an individual's wishes or as to whether treatment should be given, it should proceed on the basis that the individual would act as a reasonable individual would act." [59]. Taking that approach she concluded that "his wishes would be unlikely to be to have the treatment of the kind in issue here, and ... a reasonable individual in the light of current scientific knowledge would reject it."

An alternative approach would be to say that if the wishes and feelings of the individual are unascertainable then they cannot be taken into account in the balance sheet approach which is to be adopted in all such cases (unless it is a PVS/Bland type of case) - W-v-M  Baker J. Section 4(6)(b) of the Act provides that so far as reasonably ascertainable, account should be taken of "the beliefs and values that would be likely to influence his decision if he had capaccity." It seems now that these are taken to be those of the reasonable man, rather than the individual concerned. By placing emphasis on the wishes and feelings of the reasonable man, the court is likely simply to repeat or add weight to its views on the medical interests of the individual. Indeed Sir Alan Ward said clearly that his wishes should give way to what is in his best medical interests. Thus the approach of the Court was very different from that of the experienced first instance judge. Perhaps the Supreme Court will take a different approach to these difficult cases.

Sunday, 3 March 2013

Res Ipsa Loquitur in Clinical Negligence Claims

Judge:   "Has your client never heard of res ipsa loquitur? 

Barrister: "My Lord, in the corner of Connaught which my client farms, they talk of little else."

My apologies - it is an old anecdote. But many patients, whether from Connaught or elsewhere, have had cause to be grateful for the existence of the doctrine of res ipsa loquitur (the thing speaks for itself), and recently the Court of Appeal has given the doctrine particular consideration in the context of clinical negligence claims. 

In  Thomas-v-Curley the Court of Appeal determined an appeal from the trial judge's finding that damage to the Respondent's bile duct during a laparoscopic cholecystectomy had been caused negligently. The Defendant appealed on the grounds that the Court had wrongly decided the case on the basis of res ipsa loquitur.

Giving the lead judgment of the Court Lloyd Jones referred to the judgment of Hobhouse LJ in Ratcliffe-v-Pymouth and Torbay HA where he held that

"Res ipsa loquitur is not a principle of law and it does not relate to or raise any presumption. It is merely a guide to help identify when a prima facie case is being made out. Where expert and factual evidence is being called on both sides at trial its usefulness will normally have been long since exhausted. "

Reading the Lloyd Jones LJ's judgment, the impression given is that the Court was particularly anxious to avoid any conclusion that the case had been determined on the basis of res ipsa loquitur. Why so?

In Ratcliffe, the first judgment had been given by Brooke LJ. He reviewed numerous authorities on the issue of res ipsa loquitur and then set out the principles to be applied. They included the following:

    "(3) In practice, in contested medical negligence cases the evidence of the plaintiff, which establishes the "res", is likely to be buttressed by expert evidence to the effect that the matter complained does not ordinarily occur in the absence of negligence.
    (4) The position may then be reached at the close of the plaintiff's case that the judge would be entitled to infer negligence on the defendant's part unless the defendant adduces evidence which discharges this inference.
    (5) This evidence may be to the effect that there is a plausible explanation of what may have happened which does not connote any negligence on the defendant's part. The explanation must be a plausible one and not a theoretically or remotely possible one, but the defendant certainly does not have to prove that his explanation is more likely to be correct than any other. If the plaintiff has no other evidence of negligence to rely on, his claim will then fail.
    (6) Alternatively, the defendant's evidence may satisfy the judge on the balance of probabilities that he did exercise proper care. If the untoward outcome is extremely rare, or is impossible to explain in the light of the current state of medical knowledge, the judge will be bound to exercise great care in evaluating the evidence before making such a finding, but if he does so, the prima facie inference of negligence is rebutted and the plaintiff's claim will fail."

That is a very helpful and well established approach to the doctrine of res ipsa loquiur. With respect, the quotation from Hobhouse LJ's judgment does not do justice to the more detailed analysis of the doctrine given in Brooke LJ's judgment. The doctrine of res ipsa loquitur may very well have a role in clinical negligence cases, requiring the defendant to provide an explanation for the damage caused, or otherwise to give evidence which establishes that there was no negligence. So I struggle to understand the conclusion of Lloyd Jones LJ at paragraph 33 of Thomas-v-Curley were he says:

  • "In the circumstances I am satisfied that the judge's approach to the issue of negligence was entirely appropriate. The respondent had established that in this case, during an uncomplicated operation, injury was caused in an area other than that where the operation took place. That called for an explanation as to how that might have occurred in the absence of negligence. None was forthcoming from the defendant's expert or from any other quarter. That is entirely consistent with the judge's direction to himself that he should assess the weight of the evidence and decide whether negligence on the part of the appellant had been proved. This has nothing to do with the reversal of the burden of proof and nothing to do with res ipsa loquitur." [Emphasis added]

  • Surely the judgment did have something to do with res ipsa loquitur. The underlined sentences show that the trial judge had reached the position at (4) above in Lord Justice Brooke's analysis of the doctrine. The Defendant/Appellant did not discharge the inference and so negligence was established.

    It would be a worrying development if the courts became too reluctant to apply the doctrine of res ipsa loquitur. In many clinical negligence claims the explanation for any injury may very well be within the exclusive knowledge of the defendant. A patient undergoing surgery is usually under anaesthetic. He may have to rely on the medical records to explain what went wrong and if they give no explanation, then he may have to rely on inferences from the injuries themselves. The doctrine of res ipsa loquitur may rarely decide the beginning and end of a clinical negligence claim, but,  handled with care, it is a helpful and useful tool when determining liability.