Monday, 15 May 2017

Clinical Negligence in the Court of Appeal 2017


There have been no fewer than nine Court of Appeal judgments in clinical negligence cases so far in 2017. 

The first five were covered in my first Quarterly Report and I will be reviewing the next four in the second quarterly review. YOu can subscribe to my Quarterly Reports 2017 HERE.

Links to all the cases can be found on my Judgments 2017 page.

Here is a summary of the key issues:


In Manna v Central Manchester a claim for a second adapted home was allowed where the claimant's parents lived separately. 



It is not uncommon for parents of severely disabled children to separate and so this decision will have ramifications for a number of similar cases.

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In EXP v Barker the importance of experts' independence and objectivity was emphasised after an expert had failed promptly to disclose a close connection with the party by whom he had been instructed. 

All experts should consider their connections with the parties or witnesses and make a full declaration at the earliest opportunity.

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In Webster v Burton Hospitals, the approach to informed consent in Montgomery was applied to an issue of causation. A negligent failure to carry out scans would have led to more information being available to inform the decision whether to proceed to an elective Caesarean section. The question was not what the clinicians would have decided to do, but what the mother would have decided to do upon being given material information.

When considering what would or should have occurred but for a breach of duty, practitioners must consider not only what treatment would have been available and what is given most commonly, but also what advice would or should have been given and what the particular patient would have elected to do.

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Darnley v Croydon Health Services concerned the duty of care on a receptionist in an A&E department who wrongly advised a patient that he would have to wait five hours to be seen. He was not prepared to wait that length of time and left the hospital. 

Practitioners may want to consider what systems were in place to advise patients about their likely management. There are implications for the making of appointments and administrative communications, as well as in relation to A&E receptionists. 

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In Wilmott v Rotherham the Court of Appeal held that a trial judge was right not to have recused himself and that there was no objective appearance of bias after he had referred to his own knee replacement operation and his own background research.

Whilst the Judgment was upheld, it is clear that trial judges should be wary of introducing their own experiences into the hearing.

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The Court upheld a "remarkably succinct" judgment in Barnett v Medway NHS Foundation Trust notwithstanding that the judge had taken the virtue brevity "too far". 

Again, the judgment was upheld, but trial judges are encouraged to explain how they have weighed up the evidence to reach the conclusions underpinning their conclusions.

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In FB v Princess Alexandra Hospital Trust, the Court addressed the issue of the standard of care applicable to a Senior House Officer in A&E when taking a history and carrying out an initial examination. The notion that a lower standard of care applied than it would had, say, a Consultant carried out the same tasks, was rejected. 

This is an important decision. Jackson LJ put it in context. There are some basic clinical skills and processes that patients are entitled to expect from any doctor, whatever their level of qualification and experience.  

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In Correia v University Hospital of North Staffordshire NHS Trust, the appellant's case that informed consent had not been given to an operation was rejected. The surgeon negligently failed to carry out the important third stage of the operation. Although the Claimant had not consented to a two stage operation, only a three stage operation, she had given her informed consent to the procedure. 

There are limits to the attempts to plead a claim about negligent performance as a Montgomery consent claim. Patients do not literally consent to being treated negligently but they may consent to treatment that is then delivered negligently.

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ABC v St George's Healthcare NHS Trust: the Court of Appeal allowed C's appeal against a strike out of her claim. Her father was subject to a hospital order under s37 MHA. He was diagnosed with Huntington's Disease. C alleged that the defendants owed a duty of care to override patient confidentiality, and the wishes of her father, and to disclose his genetic condition to her. She had been pregnant and this is a wrongful birth claim. This is a case that has been remitted for trial. 

The high court judgment was regarded by the NHSLA as one of the most important of the year, and this CofA decision is clearly of great significance. The Defendants argued that there is a distinction between it being good practice on occasion to override patient confidentiality (GMC guidance) and it being a duty of care, breach of which gives rise to liability for compensation, to do so. This and other arguments are likely to be subject to further judicial scrutiny: this was an appeal against a strike out application not an appeal against a final judgment.

Webster, Darnley, FB and ABC seem to be a particular significance for other cases and should be read by all clinical negligence litigators.


Tuesday, 25 April 2017

Learned Friend Videos

Learned Friend has produced a series of films to help those who have little or no experience of the civil justice system.

Learned Friend Helps With .....

Click to view:Introductory Video 



These videos are presented by Nigel Poole QC. Nigel has specialised in clinical negligence and healthcare law for over 25 years. He was appointed a QC in 2012. Chambers UK Guide to the Bar says Nigel is:

"Widely regarded as a hugely important clinical negligence expert with tremendous client handling and advocacy skills."


You can view these films for free and as many times as you wish. Just click to view each film below or visit the Learned Friend You Tube Channel


1. Learned Friend Helps With An Introduction to Bringing a Clinical Negligence Claim


What to expect when you bring a clinical negligence claim. This video will describe what you have to prove when you bring a claim, what evidence is needed, and all the steps that will be taken up to and including trial.
If you are contemplating bringing a claim, or are already involved in litigation, this video should help you.

Click to View: Bringing a Clinical Negligence Claim




2. Learned Friend Helps With Advocacy at Inquests


It is increasingly difficult for bereaved families to secure legal representation at Coroners Inquests. This video provides some practical advice on how to prepare and some tips on effective advocacy: how to ask questions and what submissions you can make.
The focus is on Inquests concerning the deaths of patients.
This video should help to give you some guidance and confidence when approaching the difficult task of representing your family at an Inquest.

Click to view: Advocacy At Inquests



3. Learned Friend Helps With Cosmetic Surgery - Knowing Your Rights


When contemplating cosmetic surgery you need to understand your rights. What are the terms of the contract you are entering? What are the rules about obtaining your consent? And what is your entitlement to compensation if something goes wrong?

Click to view: Cosmetic Surgery



4. Learned Friend Helps with Claims for Delay in Diagnosing Cancer


Some of the most difficult clinical negligence claims to prove are those arising out of a delay in diagnosing cancer. This video provides an introduction to the issues in such claims and the evidence that will be needed to prove your case.

Click to view: Delay in Diagnosing Cancer





Wednesday, 19 April 2017

Learned Friend's Clinical Negligence Quarterly Reports

I am pleased to introduce the first quarterly report on clinical negligence in 2017. This is my review of the most important High Court and Court of Appeal judgments of the year. The first quarter of 2017 has been packed with important decisions so there has been plenty to write about. I have added some comments on the Discount Rate announcement.



See an extract from the Introduction to the first Quarterly Report below.

The cost is £50 for the year. For that you will receive four reports. You can subscribe by clicking the link Add to Cart below, or visit the Store page on this blog.

Subscribers so far have included QCs, academics, solicitors and legal executives.

Many of us now have to plan our Continuous Professional Development and record the tasks completed. By subscribing to my Quarterly Reports you can keep abreast of legal developments in clinical negligence and build your knowledge of that area of law. Each report has links to the cases referred to so that you can build a library of case law. You can meet many of your CPD needs by subscribing.




From the Introduction to Q1:

"2017 has got off to an interesting start. The first seven cases of the year, decided in the High Court and Court of Appeal, were all won by Claimants with the next three being decided in favour of Defendants. There have been some fascinating decisions and no fewer than five clinical negligence judgments in the Court of Appeal compared with two for the whole of 2016. All the cases are listed with links on my blog, but there is also a list of the cases reviewed in this Quarterly Report with links below. 

 HHJ Robinson’s decision on the scope of the duty of care of an A&E receptionist was upheld by a majority decision in the Court of Appeal. The issue of consent following Montgomery has been significant in two of the leading cases and these are discussed at length in this report. The relevance of the Bolam test to histopathological reporting was considered by Kerr J in Muller v King’s College Hospital. The Courts’ approach to expert evidence was once again a significant feature in clinical negligence case law. Jeremy Baker J adopted and applied dicta of Green J which may become standard text in future skeleton arguments and judgments. The Court of Appeal upheld a trial judge’s approach to an expert’s failure to disclose a connection with a party to the litigation and the Courts’ willingness to openly criticise experts remained evident but with an intriguing reversal of fortunes for two particular experts. The Court of Appeal began the quarter by upholding a generous award in respect of a second home and ended it by upholding a judge who had over-shared his own experiences of knee treatment when dealing with a case involving treatment of a knee. Perhaps the most important development in this quarter has come not from the courts but from the Ministry of Justice with the Lord Chancellor’s announcement of a new discount rate of -0.75% which came into force on 20 March. Although not within my self-imposed remit, I have included a section on the new discount rate in this review."

Friday, 24 March 2017

Mayday! Mayday!

Mr Darnley attended the Mayday Hospital A&E with a head injury following an assault. He was with a friend.  It was a busy Monday evening. He was greeted, as was the system in place, by a receptionist without medical or nursing qualifications. She clerked him in and asked him to wait. She told him that it would be up to 4 to 5 hours before he was seen. He told her that he felt he was going to collapse. She told him that if he did he would be treated as an emergency.


NICE Guidelines state that a head injured patient should be seen within 15 minutes. It was not disputed that in this case Mr Darnley would have been seen within 30 minutes. The information given by the receptionist had been misleading. Mr Darnley was not seen in 30 minutes because after 19 minutes of waiting, he and his friend left. He went home. Very unfortunately his condition rapidly deteriorated and he was rushed back to hospital where it was found he had an extradural haematoma. It was too late to save him from having permanent, serious neurological injuries.

The majority in the Court of Appeal in Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151, held:

(i) The circumstances had not been such as to place the Claimant in a special category of patients requiring priority triage.

(ii) The receptionist had not assumed a duty of care or responsibility to the Claimant when giving advice about the likely waiting time. It would not be fair, just and reasonable to impose a duty of care on the receptionist not to give misleading information about waiting times (Caparao v Dickman [1990] 2 AC 605, applied). The Court was concerned, in this case, about the ramifications of finding otherwise when 450,000 people per week present to A&E and many hospitals operate a system similar to the Mayday Hospital. Research shows that as many as 3-8% of patients leave A&E without being seen. How many have potentially serious injuries?

(iii) In any event, either the prevention of the injury was outside the scope of the duty of care or there was no causal link between any breach and the injury: the Claimant, a capacitous adult, chose to walk out of A&E. 



McCombe LJ gave a dissenting judgment. He pointed to the trial Judge's findings about the complaint of possible collapse and the receptionist's response, referred to above. He also observed that the duty of care was on the hospital. He said at [71]:

"The duty of the hospital has to be considered in the round and, if the hospital has a duty not to misinform patients, the duty is not removed by interposing non-medical reception staff as a first point of contact."

He would have allowed the appeal and imposed liability on the Defendant Trust.



Mr Darnley chose to forego treatment. He did so at least partly on the basis of incorrect advice that he might have to wait up to 4 to 5 hours to be seen by a clinician. He had to balance that information with other considerations such as that he did not know how serious his head injury might be. Arguably therefore he made a treatment decision on the basis of incorrect advice from the hospital staff. This brings to mind the principles in Montgomery. Did the hospital provide the Claimant with relevant, accurate information on which he could exercise proper autonomy?

Suppose the Trust had employed a nurse on reception who had given the same information to the Claimant as the receptionist had given? Would a nurse have been under a duty to advise Mr Darnley to wait to be seen because it cannot be known without proper examination how serious his head injury might be? Would the Trust have been liable because a nurse owes a higher standard of care than a "civilian"? It must be implicit in the majority judgments in Darnley that it is acceptable to organise an A&E department so that the first point of contact - and the only contact for perhaps half an hour in a head injury case - is with a "civilian". Also, it appears that there was no written information given to Mr Darnley. Head injury leaflets are common-place. Was he not given a leaflet to read telling him of the importance of being checked out? 

Some might thing that there is a danger that this judgment will encourage greater use of "civilian" staff so as to help the NHS and other healthcare providers to avoid liability? Why employ a trained nurse when you can use a "civilian" at less cost and with a lower risk of being found liable if something goes wrong?

On the other hand, as I have previously observed on this blog, if there is an greater emphasis on patient autonomy following Montgomery, then that has consequences not only for providers of medical care but also for patients. Adults with capacity to make rational decisions have responsibility for the consequences of those decisions. Mr Darnley removed himself from the hospital without having been seen by a nurse or doctor. He did so without receiving any nursing or medical advice. By doing so he knowingly took the risk that his head injury might be a serious one and he might deteriorate at a time when he was out of the immediate reach of medical attention. He fully, but unwisely, exercised autonomy. 

For some time clinical negligence defendants have been seeking to defend cases (in whole or in part) by contending that patients have broken the chain of causation or have been contributorily negligent by missing appointments or not complying fully with advice etc. Will this judgment encourage more of those sorts of defences?

This is a fascinating decision with potential ramifications for the way hospitals should be organised, and for the responsibilities patients have for their own decisions. 


Monday, 27 February 2017

Discount Rate: In Case of Emergency....

Today's announcement of a change in the discount rate from 2.5% to -0.75% (that's minus 0.75%) was a shock, although the Lord Chancellor has said it was the "only legally acceptable rate". If so, one wonders about the legality of the 2.5% rate that applied up to today.

The change comes into effect on 20 March 2017.  There may be a legal challenge to prevent that. Nevertheless litigators should treat this change as an emergency.


It has immediate implications for practitioners. Gordon Exall has been quick of the mark with sensible advice. Have a look.

Here is a link to tables of multipliers using the -0.75% rate produced by Rebmark. I cannot vouch for the accuracy of the figures.

Future claims could double or even treble in value. In some cases multipliers could be over 100.

The implications of this change are far-reaching. The cost to insurers and the NHS could be very high.

For litigators, immediate attention should be given to:


  • Existing Part 36 Offers
    • Any that depend on an assessment of future awards need to be immediately assessed. 
    • Claimant's must consider withdrawal as a serious option. It might be professional negligence not to do so. However
    • If a Defendant sought permission to accept a Part 36 Offer which would now manifestly undervalue a claim, surely the Court would refuse permission. 
    • Consideration by Cs to make offers based on the new rate - might the new rate be challenged by insurers so that it does not take effect? How should Ds respond to offers based on the new rate but when the time for acceptance expires only a day or so after the new rate is due to come into force?
  • Existing non-Part 36 Offers
    • ditto
  • Ongoing negotiations/settlements
    • Radical reassessment is required.
    • Court unlikely to approve settlement that did not reflect new rate
  • Schedules and Counter Schedules
    • Need to be re-written. All future claims, and claims for loss of earning capacity that are based on the Ogden Tables, need to be re-calculated.
    • Discounts for early receipt would become enhancements for early receipt using a negative discount rate. Is that how they should be used or should there simply be no allowance either way for early receipt.
  • Costs budgets
    • If more work needed, for example re-writing schedules, or obtaining further financial advice, then this needs to be factored in to a costs budget
  • Court fees
    • Some claims will have doubled in value overnight. This might affect the proper issue fee.
  • PPO vs lump sum 
    • The balance of benefits and disadvantages of a PPO or lump sum award has just changed. Financial advice is required to address the new position
  • Interim Payments
    • The assessment of the likely lump sum, insofar as it depends on certain future losses, requires reconsideration.
  • Accommodation Claims
    • Is the Roberts-v-Johnstone calculation still applicable? It would result in a negative amount (Additional cost of accommodation x -0.75% x multiplier). Are new ways of assessing the value of an accommodation claim now required? See this blog from John de Bono QC : Roberts v Johnstone is dead
    • Will there be an early test case on how accommodation claims should be calculated?
    • In the meantime how do litigants deal with this uncertainty?
Of course, this rate will not last forever. In particular, will there be a legal challenge by the insurance industry? Might they succeed in staying the implementation of the new rate so that it does not take effect as planned on 20 March? Or, will there be a short "window" in which claims have a value well in excess of what has come before, and will ever come again?

I am sure there are other implications that will sink in with further reflection. Let me know of any thoughts about what they are and how to deal with them.

Monday, 6 February 2017

Bolam under the Microscope


For a more in depth analysis of Muller and other clinical negligence cases, subscribe to my 2017 Quarterly Reports



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Are there cases of clinical negligence in which the Bolam test has no application?

We know that in the field of informed consent the Supreme Court in Montgomery v Lanarkshire recently emphasised that the Bolam test is not an appropriate yardstick for ensuring that patient autonomy is respected. Now, in Muller v King's College Hosptial NHS Foundation Trust [2017] EWHC 128 (QB)  Kerr J has addressed the applicability of the Bolam test to cases of purely diagnostic error, where there is no question of the exercise of professional judgment in relation to management or treatment.




The Claimant alleged that there was a negligent error by a histopathologist in reporting what was a biopsy of a malignant melanoma as a non-malignant lesion.

Defendant's counsel submitted that Bolam should be applied "unvarnished". The admitted error in reporting: 

"... could easily be made by a histopathologist acting with reasonable competence, i.e. with reasonable skill and care. Mr Gibson submitted that Dr Foria's expert opinion was founded on acceptable reasoning and not outside the bounds of respectable medical opinion. 

"Mr Gibson submitted, therefore, that Professor Wright's contrary view - that Dr Goderya committed a plain breach of duty - should not be preferred; Dr Foria's opinion was sufficient to exonerate Dr Goderya from the charge of negligence. Applying the Bolam doctrine, the court should not choose between these opposing experts' views; Dr Foria's view should carry "substantial weight" and should not be rejected unless Professor Wright's evidence cast it in "such an altogether negative light that it should be rejected" (per Green J in C. v. North Cumbria University Hospitals NHS Trust, at paragraphs 25(i) and 73)."
[paras 44 and 45]

In contrast Claimant's counsel argued 

"that the application of the Bolam principle did not provide the answer here. He proposed that the governing authority was the Court of Appeal's decision in Penney v. East Kent Health Authority [2000] PNLR 323, in which Lord Woolf MR gave the judgment of the court. That case, he pointed out, was like this one a case of interpreting objective data wrongly.

"He submitted that Penney showed that the court must determine the objective facts about what pathological features were there to be seen on the slides - which in the present case is a matter of agreement - and then decide for itself whether, in the light of the differing experts' views, the misdiagnosis was one that must have been made without the use of reasonable skill and care. The court could not abdicate its responsibility to resolve the conflict of expert opinion by resorting to the Bolam-derived notion of a respectable body of medical opinion."
[46 and 47]

The Judge considered the context in which Bolam and other cases had been decided and concluded at [75]

"In a case involving advice, treatment or both, opposed expert opinions may in a sense both be "right", in that each represents a respectable body of professional opinion. The same is not true of a pure diagnosis case such as the present, where there is no weighing of risks and benefits, only misreporting which may or may not be negligent. The experts expressing opposing views on that issue cannot both be right. And the issue is, par excellence a matter for the decision of the court, which should not, as a matter of constitutional propriety, be delegated to the experts."

However ....
"I am bound by the law as it currently stands, to approach that issue by reference to a possible invocation of the Bolitho exception. I must not, therefore, reject Dr Foria's view unless I am persuaded that it does not hold water, in the senses discussed in Lord Browne-Wilkinson's speech in Bolitho and developed in other cases: that is to say, if it is untenable in logic or otherwise flawed in some manner rendering its conclusion indefensible and impermissible." [79]

This might point the way to future appellate consideration (perhaps not in this particular case) of the approach that should be taken to cases involving errors of reporting and diagnosis. 




Friday, 20 January 2017

Consent to Treatment - Guidelines from the Royal College of Surgeons

I was delighted to be asked by the Royal College of Surgeons to attend the press briefing at the launch of its new Guidance on Consent following the decision in Montgomery v Lanarkshire. I was also asked to write a short blog on the issue of consent which has been published today by the RCS and which is copied here.


               

Montgomery v Lanarkshire [2015] is a landmark judgment affecting the surgeon/patient relationship. The Supreme Court held that patients have the right to exercise autonomy over their own bodies and over the treatment they undergo. When making treatment choices it is the surgeon’s duty to advise and the patient’s right to decide.
This right of autonomy over treatment is a common law right. It does not come from the European Convention on Human Rights but has been created by British judges in cases beginning with Sidaway [1985]. In Montgomery the Supreme Court gave it a final and very decisive stamp of approval. The Court held:
 “An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo … The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative … The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”
The Royal College of Surgeon’s recent publication: Consent: Supported Decision-Making – A Guide to Good Practice, offers detailed and practical guidance on the implications of Montgomery and how surgeons should protect patients’ rights to autonomy.
The well-known Bolam test continues to apply to the delivery of treatment but the Courts take a different approach when scrutinising the process of obtaining informed consent.

The Patient’s Right to Autonomy
Important though this right to autonomy is, there are certain qualifications:
·         The surgeon only has to give information about the reasonable treatments available. Financial restraints may limit the available range of treatments and a surgeon is not obliged to explain the risks and benefits of all possible treatments, however unreasonable or irrational.
·         Only adult patients with the capacity to make decisions about their own treatment can exercise this right of autonomy.
·         In situations, such as emergencies, when it is not possible to obtain a patient’s informed consent it may be necessary for a surgeon to make treatment decisions.
·         In very rare cases, the “therapeutic exception” may apply such that a surgeon need not divulge information to a patient if to do so would be seriously detrimental to them.
·         Patients may still ask, “What would you do, doctor?” If a patient makes a clear choice to follow a surgeon’s recommendation and not to be informed of the risks and benefits of alternative treatments, that is an exercise of autonomy.
Although the Court’s decision reflected guidance on informed consent given by the GMC for a number of years, concerns have been raised about its impact on consultation times and a rise in litigation.


Consultation Times
If, as likely, more time is spent with patients, that is a price worth paying to protect the right of autonomy. The unpalatable alternative is that patients have treatment decisions made for them.
Hospital managers must allow sufficient time and resources for advice properly to be given and recorded. The current standard consent form is poor evidence of a full discussion and consent process. A better recording system is required. Smart use of written or filmed advice issued prior to consultations can assist.

Litigation
If adequate resources are allocated and surgeons follow the College’s guidance, there ought to be a reduction in litigation. With the right of autonomy comes the responsibility on a fully informed patient to live with the consequences of their decisions. Many patients instruct solicitors because they feel they have been kept in the dark. Patients who have been fully informed and empowered to choose a particular treatment are more likely to accept complications when they arise.
If surgeons and managers do not change from the old ways to the new, then patients who would have avoided harm had they been fully informed may well seek compensation.
The Supreme Court has laid down the law: doctors advise, patients decide. This is the new contract. All healthcare professionals and managers, not just surgeons, should heed the College’s Guide to Good Practice.

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






Tuesday, 10 January 2017

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