Friday, 27 February 2015

Even Steven (Losing Streak Revisited)

It seems that claimants have fared much better at clinical negligence trials on liability in the past 12 months than during the previous year.

A year ago I wrote a post called Losing Streak in which I pointed out that an unscientific survey of Lawtel reports of High Court liability judgments in clinical negligence cases showed that 13 of 14 were lost by the claimant.

What of the last 12 months?

As I said when writing Losing Streak, it is worth noting that this is not at all a comprehensive survey. Indeed I think one of my own cases ought to be on the losing list, but is not reported on Lawtel. So this is a sample only. It does not include county court judgments, some of which can be for considerable sums, or in quite complex cases. Also, some of these decisions may be under appeal.With all those caveats, here are the results. All are on Lawtel. I have provided links to BAILII where I can:

Claimants 11

Claimants succeeded on the issue of liability in the following 11 disputed cases:

Cutting-v-Islam [2014] EWHC 720 QB
Negligence by GP in cancer case

Pringle-v-Nestor Prime Care Services [2013] EWHC 1308 QB
Negligent advice from out of hours clinical triage telephone service regarding two year old with meningococcal septicaemia. Child suffered subsequent amputations

Atkinson-v-South Tees Hospitals NHS Foundation Trust  [2014] EWHC 1590 QB
Surgeon divided ulnar digital nerve during operation and had been negligent in failing to recognise that and repair

Coakley-v-Rosie [2014] EWHC 1790 QB
GP negliegntly failed to suspect, diagnose or treat bacterial meningitis

Gardener-v-Northampton GH NHS Trust [2014] EWHC 4217 QB
Necrotising fasciitis

Shortall-v-Mid Essex Hospital Services NHS Trust  [2014] EWHC 246 QB
Post operative bowel leak not investigated

Marshall-v-Hull & East Yourks Hospitals NHS Trust  [2014] EWHC 4326 QB
Negligent treatment of post-arthroscopy infection affecting knee and accelerating need for knee replacement.

Hayes-v-Sout East Coast Ambulance Service [2015] EWHC 15 QB
Ambulance crew negligent in failing to appreciate that asthma patient had life threatening condition

Sumner-v-Royal Surrey County Hospital NHS Foundation Trust and St George's Healthcare NHS Trust [2015] EWHC 293 QB
Negligent spinal surgery

Hamed-v-Mills and others [2015] EWHC 298 QB
Negligence of football club doctor and others regarding player's heart attack

Defendants 10

In the following cases the defendants succeeded in avoiding liability in 10 cases.

Tippett-v-Guy's and St Thomas' Hospital NHS Foundation Trust  [2014] EWHC 917 QB
No negligence in relation to antenatal care, CTG monitoring of child born with cerebral palsy

Aspinall-v-Sec of State for Health  [2014] EWHC 1217 QB
No negligence in treatment of a premature baby

Michael-v-Royal Free Hampstead NHS Trust QBD, Judge Ralls QC
Not negligent to adopt wait and see policy after complications following cholecystectomy

Ulucesme-v-Goel   [2014] EWHC 2761 QB
GP had not been given ante-natal test results raising possibility of Down's Syndrome, so not negligent in failing to act on information

Gregory-v-County Durham and Darlington NHS Foundation Trust  [2014] EWHC 2643 QB
No negligence in relation to appendicectomy

McGovern-v-Sharkey and another [2014] NIQB 117
Diagnosis and treatment of detached retina not negligent

ST-v-Maidstone & Tunbridge Wells NHS Trust [2015] EWHC 51 QB
Negligently delayed blood transfussion and IV fluids for child, and administration of diuretic drug, but no causation

Davies-v-Countess of Chester Hospital NHS Foundation Trust [2014] 4294 QB
Serious breach of care by administering excess dose of magnesium causing fatal cardiac arrest, but no causation because patient would not have survived significantly longer without negligence.

Hogg-v-Sec of State for Health [2015] EWHC 267 QB
Claimant unable to prove that brain condition was due to negligent pre-natal procedure rather than an inherent cause.

Mulholland-v-Medway NHS Foundation Trust [2015] EWHC 268 QB
Three month delay in diagnosing brain tumour not negligent.

There were two score draws:  the claimant succeeded on liability against one defendant, but lost against other defendants:

Hall-v-Thomas and others [2014] EWHC 1625 QB
Treatment of footballer's knee

McCabe-v-Moore and others [2015] EWHC 260 QB
One of three GPs found negligent in relation to recognition of infective endocarditis which preceded a stroke

There were also two secondary unsuccessful secondary victim claims in Lexi-Rae Speirs-v-St George's Healthcare NHS Trust, and Wild-v-Southend University Hospital NHS Foundation Trust.

In addition Court of Appeal decisions on clinical negligence liability were given in:

Meiklejohn-v-St George's Healthcare NHS Trust [2014] EWCA Civ 120
Diagnosis and treatment not negligent

Webster-v-Liddington [2014] EWCA Civ 560
Defendants liable for statements in brochures

Border-v-Lewisham & Greenwich NHS Trust [2015] EWCA Civ 8
Insertion of cannula without consent in breach of duty

Welch-v-Waterworth [2015] EWCA] Civ 11
Surgeon negligent in performance of operation

Are there any trends? None that I can see, although the cases underline that for a claimant, establishing negligence alone is only half the battle.

Some commentators on my Losing Streak post seemed to think that the high proportion of cases lost at trial demonstrated very poor judgment by claimant lawyers. I do not accept that at all. The cases that reach trial are the tip of the iceberg. At a guess, over 95% of clinical negligence cases do not reach trial on liability. Of those that do not, many will settle and many of those will settle on the basis that liability is (expressly or implicitly) admitted either in full or in part. Given the "no win no fee" structure, few claimant solicitors will prosper without a healthy success rate. Nevertheless, the losing streak was of note. It might have suggested that defendants should have been fighting more cases. The evidence above suggests that perhaps they are. Andecdotal evidence is that a more robust stance has been adopted by the NHSLA in recent months. Note that there are more cases in the sample than last year and that there is very approximately at 50/50 success rate at trial.

I would be very interested to know the "official" figures for the number of clinical negligence trials and the proportion that result in awards of compensation. In the meantime, all I can offer is this sample.

Thursday, 26 February 2015

The Medical Innovation Bill - In a Nutshell

The Medical Innovation Bill has passed to the House of Commons from the House of Lords.

The purpose of the bill is to promote responsible medical innovation.

The means by which innovation is promoted in the bill is by seeking to reduce or remove the threat of medical negligence litigation against doctors who innovate. Medical negligence litigation is the means by which patients who have suffered injury as a result of negligent medical treatment, can obtain compensation for their avoidable pain, suffering and consequent financial losses. The bill does not change the law of consent. The bill does not address regulations governing the trial and introduction of new treatments, nor the funding of research or the commissioning of new treatments by the NHS.

1.     "Medical innovation" is not defined in the bill but section 1(2) provides that a doctor who meets the requirements later set out in the bill shall not be negligent if he departs from the existing range of accepted treatments. The bill does not seek to define when a treatment is to be considered as "accepted".

2.     Apart from cosmetic surgery, the bill applies to all doctors registered with the GMC, all patients, all conditions and all treatments.

3.     The requirements that a doctor has to meet under the bill in order to avoid a finding of negligence, include a requirement that he should obtain an opinion about the proposed treatment from an appropriately qualified doctor and take that opinion into account in a way in which any responsible doctor would do.

4.     The doctor must comply with any professional requirement to register the treatment, but there is in fact no such professional requirement.

5.     If a doctor makes out the Saatchi Defence then he cannot be found to have been negligent by the court, even if he would have been found negligent under the common law. Thus, in some cases, patients or their families who would now be entitled to compensation for injury or death caused by negligent treatment will no longer be so entitled.

6.     The MDU and MPS, bodies which defend doctors in medical negligence claims, have opposed the bill. They have said that the law of medical negligence is clear and is not an obstacle to responsible medical innovation.

7.     The bill is opposed by the Patients' Association, National Voices and AvMA, as being "unnecessary and dangerous".

8.     The BMA, the Academy of Royal Medical Colleges, Cancer Research UK, the Medical Research Council, the Wellcome Trust, Parkinsons UK, the Lancet Oncology, and the British Heart Foundation have all publicly opposed the bill.

9.     The Welsh Assembly has voted unanimously to reject the bill and to oppose its application in Wales.

10.    Leading members of the All Party Parliamentary Group on Cancer, the Chair of the APPG on Pancreatic Cancer and the Chair of the Health Select Committee have publicly opposed the bill.

Monday, 16 February 2015

The SARAH Act 2015 - Similar Fact Evidence and Disclosure

The Social Action, Responsibility and Heroism Act 2015 has received Royal Assent and will come into force on a day to be appointed by regulations to be made by the Secretary of State. It is worth considering how it will affect the conduct of clinical negligence litigation, in particular the exercise of disclosure.

The Act applies "when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining steps that the person was required to take to meet a standard of care." Thus the Act applies to any clinical negligence claim and in relation to the determination of whether the Bolam/Bolitho tests are met.

By Section 2, the court must have regard to whether the alleged negligence occurred when the person (healthcare professional) was acting for the benefit of society or any of its members. Negligent treatment causing harm tends not to have been beneficial, but I suppose the point is that medical treatment generally is of benefit to society. A doctor will have been generally acting for the benefit of patients and so the court must take that into account. If so, Section 2 will always apply and a court must have regard to it. Just how it will take it into account is unknown - see my previous post.

Section 4, on heroism, might apply to clinical negligence claims in a limited number of cases.

It is section 3 - the responsibility part of the Act  - which might cause the most difficulty in  clinical negligence litigation. It provides that:

"The court must have regard to whether the person, in carrying out the activity in the course of which the alleged negligence ... occurred, demonstrated a predominantly responsible approach towards protecting the safety or other interests of others."

The phrase "the activity" might be construed widely - the provision of treatment to patients by the practitioner - or narrowly - the particular consultation at which the GP failed to refer the patient with a breast lump to a breast clinic. On the narrow interpretation, it is difficult to see how the provision would be meaningful - "Apart from my amputating the wrong leg Mr Jones, the operation was a huge success..." On any wider interpretation, the doctor's past record becomes relevant.

The word "predominantly" is also ripe for judicial interpretation - does it mean "more often than not" - a pretty low standard for a neurosurgeon or indeed any other healthcare professional? Or would even a few examples of a poor approach to patient safety establish that the doctor did not have a predominantly responsible approach?

In the recent Court of Appeal decision in Laughton-v-Shalaby  the Court of Appeal considered that the claimant could not rely on evidence from a GMC investigation into seven operations on other patients by the defendant surgeon to prove negligence on the occasion of the claimant's operation - [21] to [27]. Only similar fact evidence could be probative of negligence. 

If the SARAH Act had been in force, then the court would have been required to have regard to whether the surgeon demonstrated a predominantly responsible approach when performing surgery. As such perhaps it would have been bound to have regard to the evidence of his standard of surgery on other patients. Surely the new Act renders such evidence admissible whether or not it is similar fact evidence. 

The future exercise of disclosure will accordingly become far more problematic than it has been in the past. Since the Court must have regard to whether a doctor demonstrated a predominantly responsible approach, it will have to receive evidence on the issue. There is no escaping that requirement. Nor can this be a one-way enquiry. Evidence tending to establish a predominantly responsible approach, and evidence tending to establish the reverse, must be equally relevant and equally disclosable. Is a claimant in a surgical negligence claim going to be entitled to expect disclosure of success rates for the surgeon's similar operations, or even for all operations? Does evidence of past complaints, findings of negligence, adverse incidents etc become disclosable? How far can this enquiry reasonably extend? Under the Act it seems that evidence of approach after the index injury would be as relevant as evidence of previous approach. 

I can foresee pre-action protocol letters changing to adapt to this new Act.

The Court of Appeal in Laughton recognised the difficulties for a Judge of a "roving cross-examination into other cases" but the SARAH Act surely makes that more likely, thereby prolonging trials.

And how will all this enquiry assist the court? The court must take into account the evidence of whether the doctor has a "predominantly responsible approach", but how does it take it into account? If the evidence is positive for the doctor, but evidence about his practice in the particular case establishes negligence, then his "predominantly responsible approach" will avail him nought. And if the evidence is negative for the doctor, isn't it likely that the courts will revert to the similar fact evidence rule when it comes to assessing the probative value of the evidence?  Either way, the whole exercise will have been an expensive waste of time.