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.
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.
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.
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.
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.
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.
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.
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.
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.