Monday, 12 December 2016

Expert Opinion In Whiplash Claims

My short post on the irrationality of some of the Government’s “whiplash” proposals prompted this response from Richard Rawlins, Consultant Orthopaedic and Trauma Surgeon.  It is a timely contribution on the use of expert evidence in minor whiplash claims given not only the consultation but also the recently reported settlement and subsequent defamation claim involving an expert witness, Dr Grace Kerali.

I welcome contributions to my blog from those who have particular insights to share. Richard’s views are his own. I am sure they will provoke debate.


In his Foreword to Reforming the Soft Tissue Injury (‘whiplash’) Claims Process, Lord Keen advises: “The government is bringing forward a package of measures to crack down on minor, exaggerated and fraudulent soft tissue injury (‘whiplash’) claims stemming from road traffic accidents (RTAs). The reform package announced in this consultation will save the industry around £1bn a year…”

Finance is important, but as a medical expert witness, I am concerned about medical practice, and the requirement that experts should be unbiased.

Evidence Based Medicine

Modern doctors are enjoined to be as scientific as possible, yet it is only little more than 20 years since the evidence based medicine working group announced a ‘new paradigm’ for teaching and practising clinical medicine. Tradition, anecdote, and theoretical reasoning from basic sciences has been replaced, in so far as is possible, by evidence from high quality randomised controlled trials and observational studies, in combination with clinical expertise. ‘EBM’ is now the mantra and scientifically grounded doctors do their best to base their opinions on corroborated facts.
Which is all very well until we consider patients whose allegation is pain, suffering and loss of amenity (PSLA) affecting the muscles, ligaments, tendons, and nerves of the cervical spine, as a result of a road traffic accident. Often described for the alleged mechanism of injury as ‘whiplash’ by definition, bony integrity is not breached.

The Veracity of a Patient’s Account is for the Court, not The Expert, To Determine

I can find statistics to support any contention, and contentious the diagnosis of whiplash certainly is. The term is a colloquialism - there is no satisfactory International Classification of Diseases (version 10) classification. ‘S16.1XXA - Strain of muscle, fascia and tendon at neck level’ is probably best for injuries not involving bones. And the diagnosis is almost entirely dependent on the patient’s history.

For all their scientific scepticism, doctors are inclined to trust that patients will give an accurate account of their condition. How else can the cause of their problems be treated? But ‘whiplash’ rarely benefits from any treatment at all, and doctors mostly become involved only at the behest of the ‘claims industry’. Support and TLC always helps patients, but formal counselling and physiotherapy rarely provide more than entertainment whilst time passes.

If a patient asserts they are suffering, there is no test which will prove they are not. And that is all a medical expert witness can say about the matter. Doctors do not take histories under oath, do not cross examine forensically and are not trained to judge demeanour let alone malingering - except in the most egregious cases. Doctors acting as experts to the court might well be suspicious of exaggerated or fraudulent histories, but in the absence of any further and better information, we are obliged to report ‘on the balance of probabilities’. The veracity of a patient’s account is for the courts to determine.

The Logical Fallacy of Insisting on a Medical Report

This lax lacuna allows dishonest people to take advantage of the generosity of our altruistic society to gain compensation. But as our Learned Friend pointed out in his perspicacious posting of November 17th 2016, some of the proposals by the Ministry of Justice, might have merit - such as raising the small claims limit for personal injury claims.  Other proposals could “create farcical inconsistency and unfairness.”

Lord Keen’s forward goes on: “At the moment there is simply too great a financial incentive to make claims for whiplash…. This consultation paper proposes that compensation for pain, suffering and loss of amenity (PSLA) for minor whiplash claims will either be removed entirely or replaced by a fixed sum….other measures include banning the settling of whiplash claims without a medical report from an accredited medical expert.” 

This proposal presents a logical fallacy, as it begs the question (petitio principii, if you prefer) - as by whom such a ‘medical expert’ is accredited; what the basis of such accreditation might be; and what the purpose of the expert’s opinion is. MedCo is proposed as the ‘accrediting authority’ - but this is an organisation largely run by players in the claims industry, and is not independent of those having financial liabilities. 

MedCo is not designed to improve standards of medical reporting, but rather to cap fees experts might charge. Many MedCo experts are general practitioners, not registered as specialists in trauma, and (from personal experience), are locums. Judging by the CVs I have seen, few seem to have any experience in actually treating neck injuries and generally have not operated on an injured neck.
If a medical opinion is deemed necessary then solicitors should get such an opinion directly from a GMC registered medical practitioner, and get the GMC to deal with any ethical misdemeanour by the doctor. There is no need for a third party agency. 

Frankly, to assess PSLA for minor “whiplash” injuries, I cannot see that any medical opinion is necessary at all. The ‘assessment’ comprises nothing more than taking a history and demonstrating the comfortable range of movement demonstrated by the patient. What would be a good professional title for one who makes such determinations? If neurological, orthopaedic, or significant psychological symptomology is evidenced, a specialist opinion is called for, and, by definition, that will not be ‘PSLA due to soft tissue injury’.

All that experts can opine is: “This patient says they have suffered pain and loss of amenity as a result of a ‘whiplash’ type injury. There is no means whereby I can corroborate the history given, and it is for the court to determine its veracity.” That statement should be included in the declaration experts all sign. 

Wind up the MedCo Service

Lord Keen goes on to say that, “the proposals are aimed squarely at tackling the compensation culture which has grown up around whiplash claims in recent years. That culture is fuelled by a substantial industry of sustained nuisance cold-calls and targeted advertising which encourages motorists to make claims when little or no injury has been suffered.

Very well, but if the perceived problem is that motorists are making fraudulent claims, then say so, and address the frauds directly. Carry out some basic demographic research (there was hardly a taxi-driver in one county I worked in who had not been involved in a shunt); ban cold-calling for claims; ban targeted advertising by ‘claims-handlers’; remove the ‘guidance’ by NHS England (which Trusts are not obliged to follow), that NHS Trusts should not allow advertising on their premises by PI lawyers or claims handling firms, and make it an unequivocal instruction; tighten bans on referral fees; ban solicitors from outsourcing other companies to administer the claims process (there should be no need for ‘medical reporting organisations’); and wind up the MedCo service. 

The ‘Whiplash consultation’ paragraph 44 anticipates the proposed reforms “will help MedCo with its robust enforcement programme to ensure that prognosis periods are accurate. But no prognosis is ‘accurate’: a prognosis only assesses what is likely. After the event, (of prognostication), not only patients, but their lawyers and reporting doctors will inevitably be affected by confirmation bias, and report symptoms in their own best interest. Given the difficulty the government has identified with establishing a diagnosis of whiplash, and the propensity for claims to be exaggerated, if not fraudulent, it is hard to see how MedCo’s ‘enforcement programme’ will have any practical application.

Paragraph 45 suggests: “An examination at six months would enable the medical expert to assess whether the claimant was still suffering from pain or other symptoms related to injuries sustained in their earlier RTA.” No, it would not. As stated, all that an expert could do is report what the patient asserts. There is no examination which might reasonably corroborate a patient’s claims. For sure, there are a few tricks of the trade which might raise suspicions, but they rarely allow the expert to assess the veracity of the patient’s account. That is the job of the court. Absence of evidence of a corroborating sign, is not evidence of absence of significant genuine symptoms. 

Ensure Medical Experts can be Truly Independent

If a motorist’s claim is for genuine and significant injury, then they are deserving of compensation. The quantum is for the courts to determine. As Learned Friend has pointed out, the government’s present concern is only for ‘minor soft tissue injuries caused to occupants of motor vehicles.’ Perniciously, the government is proposing no compensation if the PSLA lasts a second less than six (or nine) months. At present, the government seems to have no particular concern about injuries sustained in trips and falls, nor for defendants other than drivers. Is that fair?

An apparently ‘minor’ injury can become a major problem. And, (worthy of repetition), there is no way to prognosticate accurately. I have always taught that there is no such thing as a ‘minor injury’, only a ‘minor doctor’. To which aphorism I can now add , ‘only a minor medical expert’. Surely, all injured patients are deserving not only of care and compassion, but also compensation. Raising the small claims limit for personal injury claims might help deal with the ‘claims culture’, but doctors should remain as independent, unbiased experts, reporting to the courts, and not be dragged into political, economic or cultural controversies, or lured into working for ‘reporting organisations’.  

Mr Richard Rawlins MBA FRCS is a consultant orthopaedic and trauma surgeon with a medico-legal practice (reporting for both claimants and defendants), based in Bath, London and Torbay. A former member of the BMA’s Medico-legal Committee, Chairman of its Clinical Audit Committee and an Associate Member of the GMC, Mr Rawlins has lectured at a number of whiplash related conferences. He is also a member of The Magic Circle, and is used to dealing with delusion, deceit and deception!

Thursday, 1 December 2016

For Want of a Nail: Crossman v St George's

For further discussion of this and other important cases in 2016 you can purchase Learned Friend's Clinical Negligence Cases Review 2016 - see here or go directly to STORE

For want of a nail a shoe was lost,
for want of a shoe a horse was lost,
for want of a horse a rider was lost,
for want of a rider an army was lost,
for want of an army a battle was lost,
for want of a battle the war was lost,
for want of the war the kingdom was lost,
and all for the want of a little horseshoe nail.

As "any fule kno" the test of causation in clinical negligence is the but for test (and material contribution, see past posts).

The test should not be applied too expansively - it should not be taken too literally: but for my negligent driving this morning, another motorist would not have been later for a GP appointment. If they had not been late the appointment would not have been re-arranged. But for the appointment being re-arranged they would have been diagnosed with a serious heart condition before the cardiac arrest ...

In fact I am not liable for the cardiac arrest even though, but for my negligence, it probably would not have occurred.

In Caparo v. Dickman, Lord Bridge said:

It is never sufficient to ask simply whether A owed B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless”. 

It is not within the scope of my duty of care as a motorist to prevent cardiac arrests suffered due to late diagnosis.

Is it within the scope of a surgeon's duty of care to prevent his or her patient from suffering a non-negligent complication of surgery? By non-negligent I mean a complication that has arisen notwithstanding proper performance of the surgery.

Where the "non-negligent" complication would probably have been avoided had the surgeon given proper advice about the proposed surgery, because the patient would have avoided the surgery in the light of that advice then, applying conventional principles, the surgeon is liable.

Chester v Afshar concerned a different situation. These are the opening words of the (minority) judgment of Lord Bingham in Chester v Afshar:

"The central question in this appeal is whether the conventional approach to causation in negligence actions should be varied where the claim is based on a doctor's negligent failure to warn a patient of a small but unavoidable risk of surgery when, following surgery performed with due care and skill, such risk eventuates but it is not shown that, if duly warned, the patient would not have undergone surgery with the same small but unavoidable risk of mishap. Is it relevant to the outcome of the claim to decide whether, duly warned, the patient probably would or probably would not have consented to undergo the surgery in question?"

The majority held that the conventional approach should be varied: As Lord Steyn concluded:

"I have come to the conclusion that, as a result of the surgeon's failure to warn the patient, she cannot be said to have given informed consent to the surgery in the full legal sense. Her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles."

Thus the "but for" test would not have afforded a remedy to Miss Chester because she had not established she would have elected to avoid surgery. An exception to that rule of causation was carved out to vindicate the patient's right of autonomy.

In Crossman v St. George's Healthcare the Judge begins by distinguishing Chester v Afshar. The facts of Crossman were that a proper plan was agreed to manage the patient's neck condition conservatively for three months and then, if symptoms persisted, to proceed to surgery. Surgery involved a 0.5% risk of radicular nerve damage. Circumstances and negligent management conspired to bring the surgery forward, such that the period of conservative treatment was avoided. 

It was agreed evidence that the conservative treatment would have been ineffective and that the surgery would have been undergone, with the same risk of radicular nerve damage (and other risks).  

The surgery was properly performed but the Claimant suffered radicular nerve damage. 

Thus, but for the negligence, the claimant would have undergone the same surgery but some three months later.

This is not a judgment about informed consent. It is about causation.

The judge discussed Chester v Afshar but held that it did not apply to the present case, which could be decided according the conventional principles. The risk of nerve damage was very small. It would therefore have been very small if, as should have happened, the surgery had been performed 3 months later. The Judge held that "Had [the claimant]had the operation on a different occasion, on the balance of probabilities the operation would have been successful." Accordingly the damage would have been avoided but for the defendant's negligence.

It seems to me that the Judge applied the "but for" test in its most "expansive" form. Too expansive an application allows for this argument from Lord Bingham in Chester: "But for your negligent misdelivery of my luggage, I should not have had to defer my passage to New York and embark on SS Titanic". 

One question which might have been addressed in the judgment was whether the scope of the defendant's duty of care extended to protecting the claimant from the risk, or the materialisation of the risk of "non-negligent" nerve damage. 

The occurrence of nerve damage was entirely co-incidental to the breach of duty. The timing of the operation was irrelevant to the exposure to the claimant of the risk of radicular nerve damage. Hence, arguably, it was not part of the defendant's duty of care to fix the timing of the operation in order to reduce the risk of, let alone to prevent, radicular nerve damage. The timing of the operation was within the scope of the duty of care only because it was necessary to give conservative treatment an opportunity to work. The injury that it was within the scope of the duty of care to prevent (in that respect) was for the claimant to undergo an avoidable operation. But, the evidence was that conservative treatment would have been ineffective and the surgery would have been performed even without the breach of duty. Thus that particular injury did not arise. 

It would be surprising if this judgment were not subject to further scrutiny. After all, there must be very many instances where administrative or clinical negligence has led to the timing of an operation being altered. Is the NHS going to be liable every time a non-negligent injury arises from an operation that ought to have been performed on a different date or at a different time?

Thursday, 17 November 2016


"The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation."

(Bingham's third feature of the rule of law).

Compensation for road traffic accident injuries is part of the law of negligence, which is part of the law of tort, which is part of the common law, which is part of the rule of law. 

The (largely) judge-made law governing the awarding of compensation to those who have suffered injury as a result of the negligence of others is therefore part of the rule of law. It applies equally to all. Where there are objectively different injuries the law differentiates, but it does so in a way that achieves fairness to all injured people and those liable to compensate them. It is a balanced and fair system of justice. 

The government is proposing to make changes to one part of that system to combat what the present Lord Chancellor has called "rampant compensation culture".

Raising the small claims limit for personal injury claims would not unbalance the system. That is a rule change that would apply to all. There seems to me to be a good case for a change of that kind. Likewise one or two of the other proposals in the consultation paper published today by the Ministry of Justice.

The proposals to interfere with the assessment of damages for injury for particular kinds of injury and particular claimants are a different matter. They would create farcical inconsistency and unfairness.

The proposal is to exclude or to severely restrict the entitlement of damages for "minor RTA related soft tissue claims". The working definition of an RTA related soft tissue claim is:

"a claim brought by an occupant of a
motor vehicle where the significant physical injury caused is a soft tissue injury and
includes claims where there is a minor psychological injury secondary in significance to
the physical injury’.

Soft tissues include muscles, ligaments and tendons. I would have thought the skin is a soft tissue also. Bones are not soft tissues and, I suppose, organs are not either. Clearly the proposals are not limited to neck injuries. These are not "whiplash" reforms, they are reforms applicable to all minor soft tissue injuries suffered by occupants of motor vehicles.

What is a "minor" injury? The proposal is that a minor injury is one of  "duration of up to and including six months". An alternative proposal is that the duration should be up to nine months.

The government proposes either to exclude compensation for such injuries, or to restrict them to a tariff of its choosing. It states:

 "The government is of the
view that the level of compensation awarded to claimants is out of all proportion to the
level of pain and suffering actually experienced by most people following a low speed

It might be said that a six or nine month soft tissue injury could be caused in a moderate speed RTA, but let that lie.

The reasoning and the implications of the proposal to exclude or limit compensation for minor RTA soft tissue injuries are striking:
  • The government believes that the courts have been overcompensating injured persons for years. 
  • The government does not believe that compensation has been disproportionate across the board: only disproportionate for minor soft tissue injuries caused to occupants of motor vehicles.
  • Thus the award for a 3 month shoulder strain suffered by a nurse at work (Judicial College Guideline: up to £1860) is fit and proper, but an award for the same injury suffered by a nurse when driving her car is "out of all proportion".
  • Judges have been awarding reasonable amounts to passengers with broken fingers but disproportionate compensation to their fellow passengers with strained wrists. 
  • To remedy the the making of disproportionate awards the primary proposal is to exclude all damages for the injury but to allow the injured person to claim compensation for the costs of treating that injury. Yes, the injury is not deserving of compensation but its treatment is.
  • Setting a time limit for recovery of six months (or nine) will, the government believes, discourage exaggeration. Mmmm. Given the distrust the government plainly has for anyone who makes a compensation claim for a soft tissue injury, this is surprising. It must be confident that the person who has largely recovered at five months would not dream of complaining of some continuing niggling pain for a further six weeks in order to receive compensation. The genuine claimant who suffers injury for 5 months three weeks gets nothing. Their neighbour with a lower pain threshold or a tendency to complain gets compensation.
  • When and how do you determine that the six months threshold has been crossed? If the government insists on a report after six months, but also provides, as proposed, that there should be no offers of settlement before a report is obtained, that will prolong cases. If you allow for an earlier report, do you need a second one to establish that the injury did not in fact resolve within six months? More investigation might be required for minor injuries than for more significant ones.

Meddling with one part of a balanced system of justice is liable to knock the whole system out of kilter. This part of the proposals will cause unfairness 
  • between claimants in the same accident who have different kinds of injury, 
  • between claimants with the same injury suffered in different circumstances, and 
  • between claimants with the same injuries whose symptoms last for slightly different periods.

Of course there exist claimants who lie and exaggerate just as there are those who never bring a claim or who understate their suffering. Implement rules that apply equally to all and let judges decide what award, if any, is fair in each case, and you should have a fair and balanced system of justice. Interfere with how the system applies to one kind of injury (soft tissue) for the benefit of one kind of defendant (drivers) and you unbalance the scales of justice.


Tuesday, 8 November 2016

Proving Survival After Cancer

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When seeking to prove reduced life expectancy following a delay in diagnosis of cancer, practitioners need to be wary of:

  • over-reliance on statistical or epidemiological evidence particularly in cases involving rare cancers where there is a paucity of data.
  • applying data or evidence regarding one type of cancer to a case involving a different type of cancer.

The recent Fatal Accident Act case of Hague & Rich v Dalzell &Fish [2016] EWHC 2753 (QB) illustrates these difficulties.

Breach of duty had been admitted. The defendant GPs negligently failed to refer the deceased for investigation of abdominal pain and vaginal bleeding. Had they done so then cervical cancer would have been diagnosed and surgery performed. The delay in treatment was seven months and four months in relation to the failures by the first and second defendant respectively.

After actual diagnosis and treatment the deceased sadly suffered further cervical cancer - the consensus was that this was a recurrence due to the growth of residual cancer cells following the initial surgery. She died just over a year after the recurrence was diagnosed.

Mr Justice Lewis found as fact that at the time when diagnosis ought to have been made, the tumour would have been stage 1b1. At actual diagnosis, as I understand it, the clinical staging was 1b2 but there was agreement amongst the experts that the tumour "would have been" classed as a 2b tumour on the basis of the MRI scan at that time. 

The Judge rejected attempts by one of the Claimants' experts, disputed not only by the Defendants' experts but also by the second of the Claimants' experts, to use doubling times to interpolate the size and characteristics of the tumour at the time when diagnosis ought to have been made. He quoted from expert evidence as follows:
" is inadvisable to use tumour doubling times in this particular tumour because there is no reliable data for the volume doubling time of this tumour or any primary cervical carcinoma growing in situ."

It was agreed that the particular cancer affecting the deceased was very aggressive and rare. It was a sarcomatoid squamous cell carcinoma. There were only 17 such cases in the literature, the court was advised. The Judge therefore also rejected the application of studies on survival chances following treatment for other, more common and less aggressive, kinds of cervical squamous cell carcinomas.

That much is uncontroversial.

However the Judge went further in his rejection of the Claimants' use of statistical evidence to show that the deceased would have been cured with earlier diagnosis and treatment. 

  • He observed that "The figures are intended to show prospectively the likelihood of survival. They are not designed to be applied retrospectively to predict the likelihood of whether any particular individual would have survived if treated by a particular date."
  • He commented further that "the statistics are intended to show likely survival rates for a cohort of people ... [evidence that shows] that just under 95 out of a hundred such patients would be alive after 5 years does not assist in determining whether or not a particular patient will be one of the 95 patients who survive or one of the 5 who do not."

Nicholas Peacock, for the Defendants, took the Judge to various judicial comments on the limitations of the use of statistics.

Mr Justice Lewis was persuaded by the expert evidence that "the tumour in the present case was a highly aggressive, rare form of cancer, namely a sarcomatoid squamous cell carcinoma and that such tumours have a poor prognosis and are likely to recur." The Claimants could not persuade him that the deceased would have probably survived more than 5 years on earlier diagnosis. 

Whilst statistics are intended to show prospective survival rates they are often based on data of actual survival. The judgment shows the need to scrutinise the data relied upon. Is it a retrospective study of actual mortality? 

Of course statistical evidence relating to a cohort can never demonstrate beyond doubt what would have happened to a particular individual, but the test is the balance of probabilities. If, on all the evidence, there is good reason to conclude that the particular patient would have been in the 5% rather than the 95%, then the fact that 95% survive will be irrelevant. Absent such evidence, however, the fact that 95% survive is surely compelling evidence of the likelihood that the particular patient would have survived, assuming that the data is directly relevant to the particular cancer.

It is of interest that the issue was framed for the Court as whether the deceased "would have survived for five years if she had been treated" earlier. It seems that five year survival was treated as a cure and that the case was brought on a "cured or not cured" basis. I cannot find reference to median life expectancy in the judgment. In some cases it is possible to show a reduction of a number of years even if both with and without delay the deceased would not have survived more than five years. Perhaps that was not possible on the evidence in this case.

Damages had been agreed at £225,000 had the causation findings gone in favour of the Claimants, and £15,000 on the findings as they were in fact made. The smaller sum was for the estate's claim, not for the dependants under the FAA 1976.

Tuesday, 11 October 2016

Picking Over The Bones

On 9 October 2016 the Mail on Sunday's front page story, with its mixed metaphor headline, was directed at "grasping" clinical negligence lawyers. Warning: I am a clinical negligence lawyer. So is the author of this guest post, Alan Mendham, partner at Gadsby Wicks. Following Michelle Obamas advice, "When they go low, we go high", Alan rationally explores the actual rise in costs and the reasons behind it. I would be more than happy to publish a guest post in reply from anyone who works for clinical negligence defendants or the NHSLA.

Guest Post By Alan Mendham

The NHSLA published its 2015/2016 annual report which, although more measured than in previous years, informed the reader that costs paid to Claimants had risen from £292m to £418m, a rise of £126m that has been seized upon by the press.

What the NHSLA Annual Report does not explain is that it is comparing apples with oranges which, coincidentally, is to its own benefit when making the argument for fixing costs.

Have Costs Risen to £418m?

No, they have not.  The figure of £418m includes both payments on closed cases and payments on account of costs in cases that have not yet been closed.  

The Civil Procedure Rules were amended in 2013 to include a presumption that when the Court makes an order for costs, the order should include a payment on account of costs.  Lawyers and Courts were slow to utilise payments on account, with the NHSLA routinely opposing requests for payments on account, but in the last year they have become common.  

Payments on account of costs are a pre-payment against costs in cases that will be closed the following year.  To see if and by how much costs have risen, one needs to strip out the payments on account and look at the costs paid in closed cases.

Curiously, the figures paid in closed claims do not appear in the NHSLA Annual Reports.  Instead, they appear in separate “Fact Sheets”.  In 2014/2015, it was £249m.    In 2015/2016 it was £279m.  The rise in costs therefore is from £249m to £279m, a rise of £30m.

Why Did Costs Rise?  

It is multifactorial, but it is likely to be a combination of NHSLA behaviour, increases in Court Fees and Insurance Premium Tax and, of course, the NHSLA increasing its membership with numerous private sector organisations joining the scheme and increasing the NHSLA’s income but now producing claims that it must meet.  Claimants cannot control any of those factors.

The costs paid to Claimants include Court fees, which the Government have increased to raise revenue and to make the civil justice system profitable.  The fee for issuing a Claim Form has risen by up to 620% and the fee for commencing detailed assessment proceedings has risen by up to 2,700%.  Those increased fees are included in the costs paid to Claimants, but the Claimant can do nothing to reduce them.

Insurance Premium Tax has been doubled by the Government to raise revenue; that increased tax revenue is included in the costs paid to Claimants, but the Claimant can do nothing to reduce it.

The seemingly universal experience of Claimant lawyers is that the NHSLA deny, defend and delay, forcing Claimants to issue Court proceedings before the NHSLA will admit liability or make or accept a sensible offer of settlement.

Figures obtained from the NHSLA through the Freedom of Information Act show that in 2016 it settled fewer cases before the issue of proceedings than the previous year (3,451 in 2014/2015 versus 3,281 in 2015/2016) and that the number of cases in which damages were paid following the issue of proceedings increased (2,430 in 2014/2015 versus 2,514 in 2015/2016). 

The figures seem to bear out the complaints of Claimant solicitors: the Claimant received damages in almost 76% of cases in which Court proceedings were commenced (a rise from 72% in 2014/2015).  They also demonstrate that the average costs in closed cases are £20k if resolved before the issue of Court proceedings and £85k if resolved after the issue of Court proceedings.

Managing The Early Stages of Cases

The NHSLA introduced a fixed costs scheme for their own panel of lawyers which, for a claim valued at up to £50,000 requires them to undertake all work up to and including the service of a Defence, including paying experts and counsel, for the sum of £2,000.  If the claim is valued at between £50,001 and £100,000, the NHSLA allow £4,000 for the same work.  The question has to be asked, are the NHSLA causing so many cases to be settled late in the litigation process by failing to pay enough to enable experienced lawyers and medical experts to carry out an adequate investigation at an early stage?  Fixed fees do not work if the fee is fixed so low that the work cannot be carried out with appropriate attention and skill.

It is laudable that the NHS is now taking steps to learn from the clinical mistakes uncovered by claims in order to reduce patient harm, which will of course reduce the costs paid by the NHSLA.  What Claimant lawyers would like to see is a similar approach to the management of litigation within the NHSLA, to focus on why they settle so many cases so late on.  The NHSLA are either receiving bad advice, or ignoring good advice.  If it addresses its own performance and reduces the number of cases resolved only after the issue of proceedings from its current 76%, significant costs savings can be made.  

Alan Mendham is a solicitor and partner at Gadsby Wicks specialising in clinical negligence claims and is a member of the Society of Clinical Injury Lawyers Public Affairs and Patient Safety Group.

Friday, 23 September 2016

Missed Appointments

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If you have a pending medical appointment you might well receive a text reminder informing you that a non-attendance costs the NHS £150. I believe that this is "nudge theory" being put into practice. Missed appointments reportedly cost the NHS a small fortune. 

Making Patients Pay

There is, as yet, no charge for non-attendance although Jeremy Hunt says he has "no problem" with the idea. But should the common law of clinical negligence penalise these patients? Should patients who miss appointments but who also suffer injury as a result of clinical negligence, have their compensation reduced?

Contributory Negligence

I have previously posted on the case of Pidgeon v Doncaster HA. In that case the court found the claimant contributory negligent for repeatedly failing to attend for cervical smear tests.

I am grateful to Nick Peacock of Hailsham Chambers for "reminding" me of the High Court case of Sims v MacLennan. The claimant alleged that a doctor (not his own GP) whom her husband had seen in 2002 was negligent in failing to advise him appropriately upon finding that he had high blood pressure. Had he done so her husband would have had further checks, treatment and would have avoided suffering a fatal stroke in 2011. In 2007 the claimant's husband had seen his own GP who had advised him to see the practice nurse to have his blood pressure checked but he did not do so. The Court decided, obiter, that had it found the defendant doctor negligent in failing to advise the deceased to attend to have his blood pressure checked, it would have reduced damages by 25% for his contributory negligence in failing to make arrangements to have his BP checked when he knew it to have been high in the past.

I have conducted several cases where the NHS has contended that failures to attend appointments should be taken into account when determining its liability, or the extent of its liability. There is a range of allegedly negligent failures:

  • Where a series of fixed appointments are sent to the patient who fails to attend any of them.
  • Where a fixed appointment is sent to the patient who fails to attend but there is no follow-up or chasing letter thereafter.
  • Where the doctor advises the patient verbally to come back in, say 7 days, but the patient does not return.
  • Where the doctor advises the patient to return after a week if the condition does not improve or if they are still concerned, but the patient does not do so.
  • Where the doctor advises that a blood test should be repeated in 3 months but  there is no appointment letter sent out and the patient does not make the arrangements.
  • Where a GP makes a referral but the hospital/specialist does not contact the patient, and neither the GP surgery nor the patient chases it up.
  • The patient is negligently reassured by the doctor and/or discharged without follow up but does not return to seek further medical advice when symptoms deteriorate.  

Arguably those scenarios illustrate decreasing degrees of patient culpability.

My impression is that clinical negligence defendants are more inclined to contend that patient "failures" of the kind set out above represent contributory negligence, or that they "break the chain of causation" between the defendant's own breach of duty and the injury suffered.


As the courts emphasise the importance of patient autonomy and frown upon medical paternalism (Montgomery) it could be argued that the greater is the onus on patients to take responsibility for their own health and their interactions with their clinicians. You cannot complain about paternalism and in the same breath argue that your doctor should have chased you up after you failed to attend an appointment, so the argument goes. Patients are not passive participants in their treatment and care, they are active agents. With the right of autonomy comes accountability for your own actions and choices.

But wait. Is it "negligent" to miss an appointment? As a (largely) cognitively intact and articulate middle-aged individual, I have been driven to distraction trying to negotiate a hospital switchboard to find the right out-patient department or ward. There are of course many possible explanations for a missed appointment (research has been done!) and clearly not all no-shows are negligent. There may have been a misunderstanding, an unposted letter, an urgent need to attend to something else, a transport problem. 

Even if there was no "excuse" for the non-attendance, is forgetfulness or oversight necessarily negligent? Perhaps no-one had explained to the patient how important their future attendance was and what the potential implications were for their own health if they were not followed up. It is one thing to text a patient about the cost of non-attendance to the NHS, and another to inform them of the cost to their own health. 

Although obiter on this point, the  judgement in Sims v MacLennan indicates that courts are willing to find that a patient's failure to attend an appointment or even to make their own arrangements to make an appointment can be negligent, depending on the precise circumstances.

Darnley v Croydon

In the case of Darnley v Croydon the Court determined that there was no liability on an NHS Trust for administrative staff in A&E providing allegedly misleading information about waiting times. The patient left but suffered serious injury as a result of not having been treated. The case is under appeal but if the NHS contends that it is not liable for an administrative error of that kind, should a patient be penalised for his or her own administrative mistakes?

Appointment Errors by the NHS

What of the responsibility of the NHS, not for advice about waiting times, but for its own failures to keep an appointment time as arranged? If the NHS contends that patients are negligent for not attending appointments, then should the NHS be liable for postponing operations at the last minute, for making patients wait for hours to be seen etc.? I don't believe that that is a road anyone wants to go down. No-one would wish upon the NHS anything like the "delayed journey" claims industry that has emerged in relation to air travel. But if the NHS seek to penalise patients financially for failures to attend, then patients may seek to turn the tables.

It would be unsurprising to see some of these issues litigated over the next few years.

Thursday, 1 September 2016

The NHSLA's Top Five Cases from the Past Year

In its latest Annual Report the NHS Litigation Authority highlights what it regards as five important cases for the NHS decided in the previous year (the cases date from May 2015 to January 2016). The cases can all be found on my blog page of liability judgements for 2015.

They are:

ABC v. St. George’s Healthcare NHS Trust and Others

In 2007 the claimant’s father (F) shot and killed ABC’s mother. He was convicted of manslaughter and detained at a secure clinic, In 2009 he was diagnosed with Huntington’s disease  This is a genetic condition with a 50% chance of recurrence in the next generation. Health professionals sought F’s permission to disclose the diagnosis to ABC, who was pregnant at the time. He refused. In 2013 ABC herself was diagnosed with the condition, but it was too early to tell whether her daughter had the disease. ABC maintained that she should have been informed of her father’s condition whilst pregnant and that if she had been told about it she would have undergone testing. If that had proved positive she would have had a termination. She also claimed to have suffered psychiatric trauma. The defendant applied to strike out the claim on the basis that it was not fair, just or reasonable to allow it to proceed. The judge agreed and held that the claim was bound to fail. Patient confidentiality was a qualified duty, not an absolute one, but there was no obligation, in this case, to disclose to family members information about F’s condition. It would be a radical departure from existing law to impose a liability in such circumstances. 

Mrs R underwent a hysterectomy but as a consequence of negligence in the course of surgery a suture was misplaced in her colon. She developed septicaemia and peritonitis and remained in intensive care for nine weeks. She subsequently recovered. Her husband claimed damages for psychiatric trauma as a secondary victim, having seen his wife connected to equipment such as a ventilator, observing her in an unconscious state and noting that her arms, face and legs were very swollen. The claim succeeded at first instance with modest damages being awarded. The Defendant appealed. successfully. The Court of Appeal held that the claimant had not suffered a single shocking event as the law required but rather from a gradual realisation that his wife’s life was in danger as a consequence of the initial surgical mistake. The appearance of his wife was such as might be expected in a hospital setting and was not exceptional. Although alarming and distressing, it was not in the overall context of hospital treatment, wholly unusual. The NHSLA observes, "This is the control mechanism adopted by the law to prevent large numbers of hospital visitors from recovering damages, which would be unsustainable for both the NHS and private hospitals." Clearly in this case the conditions for recovery were not met. It does not follow that they could not be met in other cases in a clinical negligence setting.

There has been a series of secondary victim judgments in which defendants have succeeded. The limits of recoverability (or non-recoverability) for clinical negligence claims are yet to be finally determined.

Following an assault to his head, Mr D attended the A&E department of Mayday Hospital, accompanied by a friend. He was booked in at 20.26 hours and left 19 minutes later without having seen a clinician. Back at home about an hour later his condition deteriorated and he was returned to hospital by ambulance. He suffered a left hemiplegia and is permanently disabled. It was agreed that had he remained in A&E he would have been treated sufficiently soon such that his disability would have been avoided. He claimed that he left because the receptionist was “off-hand” and informed him that he would have to wait four or five hours. The relevant NICE guideline was that patients with head injuries should be reviewed by a trained person within 15 minutes. That guideline was broken, given that the claimant had been in hospital for 19 minutes before departing. The experts agreed however that it would have been acceptable to have been seen within 30 minutes. The judge found that Mr D was not told that he would be seen by a triage nurse within 30 minutes and that he would have remained had he been told that. On the basis of the expert evidence, the Judge found that breaching the NICE guideline was not negligent. Further, he held that receptionists were not under a duty to guard patients against harm caused by failure to wait and be seen. Mr D had to take responsibility for the consequences of his decision to leave. 
The NHSLA comments that "This is the first case, to our knowledge, where it was alleged that receptionists owed such a wide duty to patients. The claimant’s representatives are planning to take this issue to the Court of Appeal, so the matter is not concluded yet. This case is important because it also helps to define who is responsible when a patient discharges themselves before being triaged and clarifies the limits of an A&E receptionist’s legal duty to a patient.

In fact the appeal is now due to be heard in February 2017. The case demonstrates that breaching national guidelines is not necessarily negligent. Also, that the scope of the duty of care has to be carefully considered in cases that fall outside the classic Dr (or nurse)/patient relationship.

Mrs R was paralysed below the mid-thoracic level. This was not a result of negligence. She required a few hours care each week, which were predicted to rise to over 30 hours per week by the age of 75. Whilst being cared for in hospital she developed a number of deep (grade 4) pressure sores which severely increased her disability and her need for care. Liability for the pressure sores was admitted. In the High Court  Mr Justice Foskett held that the NHS trust should be responsible for all of the claimant’s care needs. The NHSLA appealed and the Court of Appeal held that the trust was only liable to the extent that it had worsened Mrs R’s condition.. A distinction was made between a quantative and qualitative  change in care needs. The NHSLA consider this to be "a significant ruling because it demonstrates that where a claimant has pre-existing care needs, it is not equitable for a defendant whose negligence has increased those needs to be responsible for the original care requirements." 

A subsequent hearing before Mr Justice Foskett has shown that the complications involved in this case are far from resolved.

The NHSLA comments that this case involved issues of "material contribution .. a topic upon which the law in England is far from straightforward". The NHSLA's summary is, "In essence, if a defendant has materially contributed to a claimant’s injury, and that injury is regarded by experts as being indivisible in terms of causation: in other words it cannot be determined which part of the injury was caused by negligence and which was not, the defendant can be held liable for the whole of the claim." The Privy Council upheld the lower court's decision that a delay in treating the Claimant's sepsis had materially contributed to the serious complications of sepsis he later suffered. I have posted on this decision here. The NHSLA says that  "rather than reviewing the whole basis of the law as it relates to material contribution the Privy Council decided this case on its own facts ... we shall now await an opportunity to argue the point in another suitable case."

Look out for a challenge to a material contribution judgment in 2016/17!

Friday, 15 July 2016

Correcting An Imbalance

For help on acting as your own family''s representative at an Inquest arising out of the death of a loved one whilst they were in the healthcare system, please view my video . It gives you advice on how to prepare for the Inquest and tips on how to ask questions.


As Liz Truss becomes the new Secretary of State for Justice, I wonder whether she would care to address the way the state funds representation at Inquests.

As a clinical negligence barrister I shall address only the imbalance in funding legal representation at Inquests involving healthcare related deaths but similar considerations arise in other Inquests where a citizen has died unexpectedly whilst in the care of a public body.

I made Freedom of Information Act requests of the Ministry of Justice and of the National Health Service Litigation Authority ("NHSLA") in relation to their funding of Inquests. As a result of their responses I can share with you the following information:

  • In the financial year 2013-14 the total expenditure on representation at Inquests by way of exceptional public funding was £43,010. This is the MOJ budget for bereaved families.

  • In the same year the NHSLA spent £907,055 on representation at Coroner's Inquests. This is the money spent on representation for NHS Trusts at Inquests where a patient has died unexpectedly.

Thus the taxpayer spend 21 times on lawyers to represent the NHS than on lawyers to represent bereaved families.

Of course the £43,010 was not just for bereaved families at healthcare inquests. That was the total for all exceptional funding that year, whatever the circumstances of the death. So the imbalance as between deceased patients' families and the NHS trusts who were caring for those patients is even greater than a factor of 21.

The Coroner is of course impartial. He or she cannot "represent" a particular interested party. 

Healthcare Inquests almost always involve technical medical evidence. Medical and nursing witnesses have all their experience and professional knowledge to call upon. Families are likely to find the hearings distressing and difficult even when they do not have to question witnesses, scrutinise evidence, learn about the legal issues and follow procedures. It is a significant additional burden to have to manage these hearings without help.

One of the cliched images of justice is a pair of balance scales. In this corner of the justice system there is an imbalance. The way to correct the imbalance is to provide entitlement to bereaved families to adequate, publicly funded legal representation at all Inquests when the deceased died whilst in the care of the NHS or any other public body. At present there is no entitlement, as of right, even to funded representation at Article 2 Inquests.

It would cost less than £1m per year to provide equality of funding for representation at Inquests.

Perhaps the new Secretary of State can find a way to help these bereaved families. 

Tuesday, 21 June 2016

Cerebral Palsy and Material Contribution

For further discussion of this and other important cases in 2016 you can purchase Learned Friend's Clinical Negligence Cases Review 2016 - see here or go directly to STORE


Following my previous posts on material contribution in clinical negligence and its relevance to cerebral palsy claims, comes an interesting decision by Cheema-Grubb J in DS v Northern Lincolnshire & Goole NHS Foundation Trust [2016] EWHC 1246 (QB). 

The Parties' Contentions

The Judge summarised the parties' respective positions as follows:

"4. The case brought on DS's behalf alleges that there was negligent delay at the end of his mother's labour in that the midwives failed to realise that his heartbeat had dropped to dangerous depths until 1500 hours; that this was because inadequate monitoring was being carried out: that once they discovered this the labour should have been managed in such a way that medical assistance was called for minutes before it was and that the doctor who then arrived should have made the decision to deliver by emergency caesarean section at least a couple of minutes before she did. But for the negligent delay DS's delivery would have been achieved 6 or 9 minutes before 1529 hours and the saving of time would have been sufficient to reduce the effects of the period of damaging hypoxia to a materially less damaging injury.

"5. The Trust defends the claim on both negligence and causation. It denies that its midwives or doctor acted in breach of their duties or that they delayed any appropriate and reasonable step in FS's care. Also medical causation cannot be established because on the balance of probabilities even an interval of ischaemic hypoxia shorter by 6-9 minutes that than which DS sustained would have caused essentially the same injury and the only way to avoid it would have been for DS to have been delivered within 10 minutes of the hypoxia starting."


The Judge found against the Claimant on its primary case on breach of duty but went on to consider issues of causation:

"150. Given the findings I have made as to negligence, namely that there was a maximum of 3 minutes of negligent delay from 1504 to 1507 only, the evidence of the remaining experts, particularly those concerned with causation, is strictly of less relevance, as it has not been contended that a saving of 3 minutes would have materially affected the degree of injury. However, lest my findings on breach of duty are challenged subsequently I will go on to consider the case on causation both on the basis of a 6-9 minute negligent delay and a 3 minute negligent delay."

After reviewing the expert and other evidence the Judge concluded as follows:

"196. On the basis of saving 6-9 minutes of negligent delay:

i) It is agreed that DS's motor functions would not be materially different.

ii) Although there is understood to be a relationship between the duration of an acute profound hypoxic episode and the severity of brain injury caused, the relationship is not simple to define. The Claimant was apparently a healthy and robust foetus. He suffered a long period of hypoxia, at least 39 minutes (1500-1539) but more probably longer. Making an allowance of the generally accepted 10 minutes of non-harmful hypoxia (as described by the paediatric neurologists), he survived at least 29 minutes of injurious hypoxia but displays less profound injury than might be expected after that period of exposure. His neurological disabilities are atypical and not at the most severe end of the spectrum.

iii) While common sense suggests that a reduction of 6-9 minutes of exposure (as a proportion of the whole) would have made a difference to DS's cognitive abilities it is difficult to be certain, whether it would have been a material difference. This is especially so when DS's atypical radiology results are taken into account however, I have to apply a lower threshold of proof, namely the balance of probabilities....

vii) I am persuaded that if birth had been as much as 9 minutes earlier, a substantial proportion of the total hypoxic insult would have been avoided and although I cannot calculate it exactly I am satisfied on the balance of probabilities that it would have made a material difference to DS's cognitive abilities so that although the care support he needed may have been the same his ability to manage himself, to make daily (not legal) decisions and the degree to which he would be able to join in his care would have been substantially improved.

"viii) On the other hand, in all the circumstances the Claimant has not persuaded me that it is likely he would have suffered materially less injury had he been delivered 6 minutes before 1529 on 4th June 2005. DS was bound to suffer significant brain damage from the acute hypoxia following placental abruption until resuscitation and although a saving of 6 minutes before delivery and a consequential shorter period of necessary resuscitation may have made some proportionally minor difference to his cognitive functioning, it is impossible to say to what extent that saving of time would have improved his current condition."

Material Difference or Material Contribution?

The evidence and finding of a period of profound hypoxia ischaemia of at least 39 minutes "but more probably longer" is remarkable and very unusual. However the upshot is that context of the (obiter) causation findings was that 6 to 9 minutes of the, say, 29 minutes of harmful hypoxia ischaemia, were avoidable.

The Judge seems to have asked herself the question: has C proved that the "avoidable" period of harmful hypoxia ischaemia made a material difference to the Claimant's cognitive abilities or functioning? She was satisfied that if the avoidable period were 9 minutes, then the answer was "Yes". If the avoidable period were 6 minutes then the answer was "No".

The Defendant appears to have contended that if brain damage, however severe, would have been inevitable even absent the negligence, then the Claimant could not recover any compensation: had hypoxia been longer than 10 minutes then essentially the same brain damage injury would have been suffered (see paragraph 5 of the judgment above). The Judge must have rejected that contention. It is true that the first question in the Bailey v MOD test of causation is:

"If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed".

But there is a difficulty in applying that test to cases of injury caused by a process, some of which is negligent, some non-negligent. Such cases are not, as the Defendant in DS seems to have contended, "all or nothing" in the following sense. In Bailey the injury was a sudden event with more than one, but very distinct, contributory causes. In DS as in  Williams v Bermuda there was a process causing injury. In Williams the process was the development of sepsis. The Privy Council held that,

 "[The] development [of sepsis] and effect on the heart and lungs was a single continuous process, during which the sufficiency of the supply of oxygen to the heart steadily reduced." [41]. On the balance of probabilities the negligent delay, found to be at least 2 hours 20 minutes "materially contributed to the process, and therefore materially contributed to the injury to the heart." [42]."

Likewise with cerebral palsy caused by hypoxic ischaemia. There is a continuous process during which the supply of oxygen to the brain is interrupted. Some of that period is "non-harmful" only in the sense that, without more, it would not cause injury; some is harmful and avoidable; some is harmful and unavoidable. The whole period causes the brain injury. The negligent part contributes to the whole.

Assessing Quantum

How would Mrs Justice Cheema-Grubb have assessed quantum on her finding that a "negligent" 9 minute delay made a material difference to the Claimant's cognitive abilities? The alternatives would have been to assess damages for the whole of the injury, because the avoidable 9 minutes made a material contribution, or to assess damages for the additional injury caused by the avoidable 9 minutes. My guess is that the Judge would have sought to assess on the latter basis because the implication of the judgment on causation is that the Judge approached hypoxic ischaemic brain damage at or around the time of birth as a dose-related injury susceptible to a quantifiable attribution of injury to cause.

The judgment is not easy to reconcile with the approach taken in Popple and, in a closely related case, John neither of which were referred to in the judgment. In Popple Ward LJ held that

 "If [the hypoxic insult] 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." 

It is perfectly possible for one court to find on the facts that 5 minutes of a 20 minute period of hypoxia is material, and for another to find that 6 minutes of a 29 minute period is not material. Each case must be determined on its own facts. However, the question Ward LJ asked himself appears to have been, "Did the avoidable period of hypoxia make a material contribution to the overall harm?", not, "Did the avoidable period of hypoxia cause material or quantifiable additional harm?"

The question of whether a negligent period of hypoxia made a a material contribution to the injury sustained is not necessarily the same question as whether it made a material difference to the outcome?

The "material contribution" principle applies precisely in those cases where one cannot quantify the degree of injury attributable to the negligent cause. As was held in the brain injury case of John :

"... the Bailey and Williams cases are cases where it was impossible, not merely difficult, to attribute particular causes to particular loss. The present case likewise entails impossibility rather than simply difficulty. As such, it is not an appropriate case for an apportionment exercise." 

So, the fact that the Claimant cannot prove a quantifiable difference in outcome did not preclude recovery of compensation - indeed the Claimant recovered compensation for the whole of the injury suffered.

It is possible that on the facts the Court might find that a period of avoidable hypoxia has not made a material contribution to the overall harm. But that is a different question from the one the Court appears to have asked itself in DS.

Popple, Williams and John, seemed to establish that where there are successive causes, negligent and non-negligent, which are part of a process leading to the final injury, and the negligent cause made a material but unquantifiable contribution to that process and to the final injury, then the Defendant is liable to compensate the Claimant for the whole of the injury. DS appears to point another way.