Thursday, 17 November 2016

Whiplash

"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
RTA." 

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

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

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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:
" ...it 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.