Friday, 23 September 2016

Missed Appointments

To keep up to date with clinical cases in 2017 please subscribe to the Learned Friend Quarterly Cases Reports. The cost is £50 and you will receive a free copy of the Review of 2016.

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!