Thursday, 18 September 2014

Contributory Negligence in Clinical Negligence Cases

I have seen contributory negligence pleaded in my clinical negligence cases more times in the last 12 months than in the previous 24 years put together. Perhaps this is coincidence. Perhaps there is a trend developing and others will have had the same experience. Maybe there is a policy being put into action.

It has always been something of a rarity to find an allegation of contributory negligence in a defence to a clinical negligence claim. One of the better known cases where the court did find contributory negligence is the case of Pidgeon-v-Doncaster HA, 23 October 2001, judgment of HHJ Bullimore. It is reported on Lawtel but not in the law reports. The defendant had negligently reported a cervical smear test result as negative but the claimant had then failed to respond to a number of requests for further tests. The defendant sought to avoid liability, contending that the claimant's failures broke the chain of causation between its initial negligence and the claimant's injury. The judge rejected that contention but found that the claimant had been contributorily negligent and found her two-thirds responsible for her injuries.

In P, deceased-v-Sedar, unreported, 11 March 2011 but available on Lawtel, HHJ Mitchell distinguished Pidgeon. The defendant had negligently reassured the claimant following an examination for breast cancer. Two follow up letters were not answered because the claimant had moved. The court found that it was difficult to find her at fault for that and it was not a case for a finding of contributory negligence.

In the past 12 months I can think of six clinical negligence cases which I have handled on behalf of claimants in which contributory negligence has been pleaded against them.

I will only cite examples from the recent cases of mine where liability has been resolved.

  • The claimant had been wrongly prescribed a drug which was contra-indicated by reason of her history of a particular condition. The defendant denied negligence, saying that she had asked the claimant about that condition and had been given reassuring answers. The claimant denied that. The defendant pleaded that the claimant had been contributorily negligent in not giving accurate information about her history to the defendant. 
  • The claimant was being treated for a severe depression, was known to be at risk of suicide  and was wrongly allowed home without adequate protection for his safety. He shot himself. The defendant pleaded contributory negligence against the claimant for shooting himself.
  • The defendant alleged contributory negligence because the claimant had drunk excessive amounts of alcohol, thereby exacerbating his loss of function, incapacity for work and need for care.

I do not have neat answers as to whether in these cases the allegation of contributory negligence ought to have been made or was likely to succeed. Certainly in the first case I wondered how, if the defendant was found negligent in not eliciting the information, the claimant could be contributorily negligent in not providing it.

In relation to the suicide attempt case, there is authority that a finding of contributory negligence may be appropriate, even though the actions of the deceased were deliberate and even when the defendant's duty of care was to guard against suicide. In Commissioners of Police for the Metropolis-v-Reeves [2000] AC 360, the House of Lords held that a finding of contributory negligence of 50% was appropriate where a detained man of "sound mind" had taken his own life when in the custody of the (negligent) police.

In Corr-v-IBC Vehicles Limited [2008] 1 AC 884 the House of Lords considered a case where an employer's breach of duty had caused the employee psychiatric injury, namely depression, and his later suicide. Lords Bingham and Walker considered it inappropriate to reduce damages for contributory negligence in that case. The majority - Lords Scott, Mance and Neuberger - thought that in principle a deduction for contributory negligence was appropriate. Lord Neuberger's speech is of particular interest as he suggested that there would be a range of cases from those where the person committing (or attempting) suicide was of sound mind and therefore fully responsible for his actions, to those where his will and understanding were so "overborne by his mental state" that it would be wrong to regard him as having responsibility for his actions. Some cases would lie in between. He thought that the principle of autonomy was sufficiently important that it would be wrong to rule out a finding of contributory negligence - and thus, responsibility - is every case where the person committing suicide was not of "sound mind".

Note that neither case was a clinical negligence case. In a case where the health authorities have wrongly allowed a patient to leave a hospital and that patient has then taken or has tried to take their own life, the claimant/deceased's mental condition will be highly relevant to the question of liability, as well as  any question of contributory negligence. The more severe the patient's mental illness or condition, the more easier it might be to establish primary liability and the more difficult to establish contributory negligence. In contrast, the less severe the condition, the harder it will to establish primary liability but the easier it might be to establish contributory negligence. That said, it is of course possible in principle that a court could make findings both of liability against the defendant and contributory negligence in a clinical negligence case where the deceased had committed suicide and the defendant's duty was to treat that condition with skill and care.

In relation to what might euphemistically be called lifestyle issues, the use of allegations of contributory negligence is potentially controversial and far-reaching. Clearly a claimant who is a lifelong smoker might have a shortened life expectancy below the "normal" range. Therefore their smoking is relevant to causation and to the quantum of the claim. Can it ever be regarded as negligent? Is drinking too much alcohol negligent? Is being obese negligent? Is participation in dangerous sports negligent?

Suppose a patient's smoking has caused or made a significant contribution to ischaemia in his right leg. Due to negligent delays he suffers an amputation which would probably have been avoided but for the delay but would certainly have been avoided had he not smoked so much over many years. Is contributory negligence an appropriate (partial) defence in such a case? Medical professionals are daily dealing with patients whose own choices have led to their requiring help, be it drinking too much, a choice to intervene in a fight, to play rugby or to do some DIY without the appropriate tools (a personal recollection!). If negligently treated, are they to have their compensation reduced because they bore responsibility for the injury?

In Ryan St George-v-Home Office [2008] 4 All ER 1039 , [2009] 1 WLR 1670 the claimant had a withdrawal seizure and fell from a prison bunk suffering brain damage. Although, it was held, he was at fault, within the meaning of the Law Reform (Contributory Negligence) Act 1945, for becoming addicted to drugs in his teens, that was not a potent cause of the accident. The Court of Appeal held that the prisoner's position was analogous to a patient admitted to a clinic for rehabilitation - he would not be held contributorily negligent.

As the older case of Pidgeon shows, the courts have been willing to find contributory negligence for failing to abide by medical advice or failing to attend for appointments (without adequate reason). If a defendant has good evidence that an appointment letter was sent/received but not acted on, and there were no further reasonable opportunities for medical intervention because of the claimant's non-attendance, and the non-attendance was crucial in terms of causation, then an allegation of contributory negligence might have some traction.

I would be interested to know if other practitioners have had a similar experience to mine - is there a rise in the number of allegations of contributory negligence in clinical negligence cases?

Friday, 12 September 2014

Scottish Independence and the Ogden Tables

Do the people of Scotland not realise the full implications of their referendum on independence?

If there is a "Yes" vote then it will have a significant impact on damages for personal injury claims in the rest of the United Kingdom with corresponding adverse impacts on insurance premiums and taxes.

The multipliers for the Ogden Tables 7th Edition give multipliers based on the projected mortality rates underlying the 2008-based population projections for the United Kingdom by the Government Actuary. As is commonly known, life expectancy in Scotland is lower than it is in each of England, Wales and Northern Ireland (life expectancy for women is about two years lower in Scotland than England).  Following Scottish independence it would surely make no more sense to include life expectancy in Scotland than to include life expectancy in France, for the purpose of calculating multipliers for claimants in what remains of the United Kingdom. Thus the removal of Scotland from the projections will increase the multipliers and therefore increase compensation for future losses and expenses.

What about other data used to calculate personal injury claims? 

The Annual Survey of Hours and Earnings used to calculate annual changes in periodical payments is based on data from the United Kingdom. If Scotland leaves, then there will be a new data base for future calculations.

New Earnings Survey: Again, as I understand it, this is based on UK data. It is often used to assess project earnings in a loss of earnings claim. The data set will change following a "Yes" vote. 

The Discount rate - the financial implications of independence and the effect of government bonds will doubtless provide an additional reason to kick the discount rate review further into the long grass.

Whenever the courts rely on data and statistics from the Office of National Statistics or other bodies which are taken from the UK as a whole, there will be an impact if Scotland leaves the UK.

For the Scots, whose legal system has always had a high degree of independence, there may be corresponding changes to their PI calculations.

Finally, do the Scots realise that a "yes" vote will throw two members of the Supreme Court onto the dole queue?

Much to ponder.

Thursday, 11 September 2014

Saatchi Bill - Widening its Reach and Turning Full Circle

I once heard of a project which aimed to "turn around" the lives of people who had fallen on hard times and which had called itself "360 Degrees", not realising that that would turn someone around until they were facing exactly the same way!.

I was reminded of this on reading Lord Saatchi's proposed amendments to his Medical Innovation Bill. He has tabled these after discussions with the government and Sir Bruce Keogh, the Chief Medical Officer. You can read the amendments and commentary on them from the Saatchi Bill team here.

In the House of Lords debate on the second reading of the bill Lord Saatchi said unequivocally that he would accept (unpublished) government amendments.
"I believe that the result of his work will be, as my noble friend summarised briefly, that the Government will themselves propose amendments to the Bill in the Public Bill Committee in the House of Commons. I hope that that may be an appropriate point for other amendments to be tabled, following the Government’s example in the Public Bill Committee in the House of Commons.
I give the House this undertaking. I and Michael Ellis, the MP for Northampton North, who will propose the Bill in the House of Commons, undertake here and now to adopt the government amendments that my noble friend and the Department of Health will put forward and to take them forward in our name in the House of Commons"

So far the government has not tabled any amendments itself, so these may be the last word on amendments by those who support the bill. If the government was to table its own amendments now, will Lord Saatchi withdraw his own amendments given his undertaking?

What is the effect of these amendments? In short, it is not altogether clear! One small amendment seems designed to widen the ambit of the bill considerably. On the other hand the wholesale changes to clause 1(3) would produce a bill which dismantles the Bolam/Bolitho test with one hand and reconstructs it with the other.

I commend an article by Professor Miola on the Stop the Saatchi Bill Website. I do not want to repeat the points he has made but wish to add to them as follows.

1." Innovation" and "innovative treatment" are still not defined. Treatment is still defined by the bill as including management and inaction.This bill is still not targeted at treatment which is new, which is for the terminally ill, or which is for  conditions for which so-called "standard" treatments are ineffective. It would apply for example to a doctor whose treatment was outdated and was given for a broken leg. But the amendments introduce a new term. Previously it applied to departures from a range of accepted "treatment". Now it applies where a doctor departs from "the existing range of accepted medical treatments for a condition". The insertion of the word "medical"raises a whole new set of questions.  "Medical treatment" as defined in a mental health context by s145 of the Mental Health Act 1983 as amended includes nursing care, psychological therapy and rehabilitation. Although "medical" is often used to distinguish treatment from "surgical", presumably there was no intention to exclude surgical treatment from the ambit of the bill? Would "medical treatment" include alternative management and treatments such as acupuncture or homoeopathy?

2. The second amendment is to leave out the word "decision" from clause 1(2) with the effect that the immunity for negligence is to apply to departures rather than decisions to depart from the range of accepted treatments. I must confess I gave that little attention when I first saw it but the explanatory notes say that the intention of the amendment is that the protection of the bill should apply to the decision to treat and "what the doctor does to put the decision into effect." I had previously drawn at least a little comfort from the fact that the bill only applied to treatment decisions not to performance. It seems that this small amendment is designed to provide immunity from a negligence claim for delivery of the treatment itself. So, if a doctor is negligent in the dosage of an innovative form of radiotherapy, he is to be provided with immunity. I am not sure that that is how the consolidated bill reads, but his is potentially highly significant and surely cannot be allowed to pass.

3. With the aim of "protecting" patients from irresponsible treatment decisions the amendments jettison previous requirements for an MDT meeting and notification of an authorised officer, and replace them with new procedural requirements . It has been claimed on many occasions that the bill will require the doctor to secure agreement to his proposed treatment. The amendments do not impose that requirement. The doctor would comply with the requirements by obtaining the views of one doctor who has "appropriate" experience and expertise in dealing with patients with the condition in question, and taking those views into account - the  doctor does not have to agree with the other's views.

4. However there is a new requirement which requires careful scrutiny: the doctor providing the treatment must take "full account of the views" of the other doctor "and do so in a way in which any responsible doctor would be expected to take account of such views." 

This bill has no purpose unless it provides an immunity for a doctor who provides medical treatment which no responsible body of doctors would support.  Thus the bill now supposes that a doctor can take into account views on the proposed treatment in a way in which any responsible doctor would do, and yet still give the treatment which no responsible body of doctors would give. Thus there is now a new Bolam test: not in relation to the treatment given, but in relation to taking into account the views of another doctor.

This bill is intended to provide certainty and clarity to doctors but if, as claimed by Lord Saatchi, doctors are riddled with uncertainty about whether their treatment would pass the Bolam test when examined by the court several years later, how will a doctor know if his taking into account the views of another doctor, will pass a similar test when examined by the court several years later?

5. The following considerations would be relevant as to whether the doctor has acted in a way any responsible doctor would have acted when taking into account another doctor's views on proposed treatment?

  • were the other doctor's views sought in relation to the particular patient or generally in relation to the proposed treatment - were they generic views or specific?
  • what information did the other doctor have? Was it in writing? Had he examined the patient? 
  • did the other doctor discuss the case and options with the patient?
  • did the other doctor support or oppose the proposed treatment decision?
  • was the other doctor's opinion given in writing or orally? What were the specifics of his or her view?
  • was the other doctor's opinion rational?
  • was the other doctor's opinion one which would be supported by any responsible body of medical opinion, or not so supported?
  • is the other doctor wholly independent? Is he or she in the same hospital team, the same private clinic? 
  • does the other doctor have any financial or professional interest in the decision to treat the patient in the way proposed?
  • is the other doctor in a position of authority over the treating doctor or vice versa?
  • is the other doctor expert not only in the condition but in the mode of treatment proposed?
  • what was the time between the other doctor giving his views and the treatment being given - what has happened of relevance in that time?
  • was it or ought it to have been evident that the views of experts in more than one field  had to be taken into account (e.g. surgery, oncology and radiology)?
  • was the doctor making the decision senior or junior, more experienced or less experienced than the doctor whose views were sought?
  • were the other doctor's views communicated to the patient before the patient's consent was obtained?
  • if the other doctor's views were against giving the treatment but the treatment was nevertheless given, what reasons did the treating doctor have for not accepting the other's advice, and were those reasons rational and justified?
  • would any responsible body of doctors have so treated the patient having taken into account the views of the other doctor?

Will this consolidated bill lead to more or to less litigation in the future? As I have previously warned, I am sure it will lead to more.

So the Saatchi Bill has come almost full circle. Lord Saatchi thought that the Bolam test was preventing a cure for cancer. In its latest manifestation his bill actually introduces a new Bolam test as to how the doctor arrived at his decision to treat.

Isn't life for doctors wishing to innovate much simpler under the present law than it would  be under the Saatchi Bill?

The medical establishment, along with patients' bodies and research bodies, spoke loudly and clearly in response to the government's consultation - this bill is unnecessary and unwanted. Once it looks at these amendments I would expect its opposition to become even more loud and more clear.

Monday, 8 September 2014

Innovation, Proton Beam Therapy, Ebola and Litigation

Does clinical negligence litigation operate so as to discourage medical innovation including proton beam therapy and new treatments for the Ebola virus?

The Bolam/Bolitho test applies to claims for compensation for injuries allegedly caused by medical negligence. It provides that a doctor is liable to pay compensation where a patient is injured or killed by the doctor giving them treatment which no responsible body of doctors would support.

Such litigation is nothing to do with professional regulation by the General Medical Council, or regulation covering the use of new drugs or other treatment, or wardship or Court of Protection proceedings. The threat of claims for compensation in negligence had no role to play either in the recent high profile case of Aysha King. The court's involvement arose when the parents took their son out of the hospital and the court was asked to take steps to protect the child from harm or the risk of harm. Aysha King's NHS doctors were not prevented from giving proton beam therapy by the threat of clinical negligence litigation. The NHS does not recommend or fund proton beam therapy for medulloblastomas because it does not believe there is evidence of its effectiveness, not because it fears being sued for injuring patients. There was no threat of a negligence claim by the child or parents against the Trust for providing innovative treatment - it is what the parents wanted the Trust to provide. 

Similarly the use of Z-mapp for treating patients with the Ebola virus was not precluded because of the fear that patients would sue their doctors for compensation if it was ineffective or even if it caused them harm. Its use might have otherwise been precluded by regulations governing the introduction of new treatments had the authorities not intervened. That is nothing to do with medical negligence litigation. 

It seems that doctors who wish to innovate are not discouraged from doing so by the fear of litigation. The British Medical Association has said that it "is not aware of any evidence which shows that the possibility of litigation deters doctors from pursuing innovative treatments or that uncertainty exists over the circumstances in which a doctor can safely innovate without fear of litigation." The bodies which defend medical negligence claims - the MDU, MPS and NHSLA, have all said much the same.

And yet there are some who have continued to claim that the Bolam test operates to impede responsible medical innovation. Some have even claimed that  the Aysha King and ebola virus/Z-mapp stories demonstrate the need to give an immunity to doctors from being sued in negligence for making treatment decisions which harm their patients -  which is the what the Medical Innovation Bill is designed to do. 

Lord Woolf has said that he was aware of cases from his time as a trial judge in which the law of  clinical negligence was in conflict with promoting innovative medical treatment. Unfortunately for informed debate on the issue, the names and reports of such cases have not been made public.  Nevertheless his statement is often cited as trumping the clear evidence of the BMA, NICE, the Academy of Royal Medical Colleges, Cancer Research UK, the medical defence organisations, APIL, AvMA and many others. 

Faced with such overwhelming evidence on the one hand, and personal recollections of un-named individual cases on the other, I have little doubt which way Lord Woolf the esteemed judge would have decided the argument.  

A trawl through the law reports has produced the following relevant cases. If there are other  cases where judgments are available then I will gladly publicise them on my blog.

In Sidaway-v-Board of Governors of the Bethlem Royal Hospital [1985] AC 871; [1985] 2 WLR 480, Lord Diplock said:
Those members of the public who seek medical or surgical aid would be badly served by the adoption of any legal principle that would confine the doctor to some long-established, well-tried method of treatment only, although its past record of success might be small, if he wanted to be confident that he would not run the risk of being held liable in negligence simply because he tried some more modern treatment, and by some unavoidable mischance it failed to heal but did some harm to the patient. This would encourage ‘defensive medicine'...  The merit of the  Bolam test is that the criterion of the duty of care owed by a doctor to his patient is whether he has acted in accordance with a practice accepted as proper by a body of responsible and skilled medical opinion. There may be a number of different practices which satisfy this criterion at any particular time. These practices are likely to alter with advances in medical knowledge. Experience shows that, to the great benefit of human kind, they have done so …”

So, as medical knowledge develops, the Bolam test is sufficiently flexible to take innovations  into account. But is it sufficiently flexible to deal with very novel or even untested treatments? The following cases suggest that it is. 

In Simms-v-Simms [2002] EWHC 2734; [2003] 2WLR 1465 Lady Butler-Sloss had to consider whether the best interests of two patients would be served by giving them previously untried treatment for variant Creutzfeldt-Jakob disease. The NHS Trust did not wish to give the treatment but the doctor involved wished to try it. The court sided with the doctor, deploying the Bolam test to give permission for the treatment. As Robert Francis QC has written "it was not the law that stood in the way of innovative treatment in that case - it facilitated it by explicit reference to the Bolam test. Indeed the doctor wanting to provide the treatment was no deterred by the fear of litigation. He was inhibited by his employer."

The courts have also supported doctors who have provided innovative treatment even where that treatment has in fact harmed their patients. In these cases it is fair to say that the injured patients have sued the doctors, but the courts have supported the doctors. The Bolam test was applied to support innovative treatment not to discourage it. These cases also show that the Bolam test can be applied even where there is not body of medical practitioners in UK who have actually given the treatment in question. 

In Waters-v-West Sussex HA [1995] 6 Med LR 362 the Court applied the Bolam test when dismissing a negligence claim where a surgeon had used a "unique" technique and the patients suffered paralysis following the operation. In Pollard-v-Crockard (unreported, 22nd January 1997) the High Court applied the Bolam test when a surgeon had used a technique 'previously unknown' in the UK. The surgeon was found not to have been negligent. 

If a doctor tells parents that he cannot give a certain treatment to their child because of "the lawyers" it does not follow that he is telling them he believes the parents would sue him for compensation for negligence if he gave the treatment. He might be referring to one of a number of ways in which the law restricts the treatment he may give. Or perhaps he is using the spectre of those "greedy lawyers" as an excuse to do what he thinks is right.

Before a well established common law principle is re-written by parliament, clear evidence and clear thinking are required.