Judgments 2017

Clinical Negligence Judgements 2017

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Case Name and Link


C of A

Cerebral Palsy case. Trial Judge awarded compensation for two adapted homes. The second was to allow C to visit his father, his parents having divorced. 

D appealed the award but C of A held that whilst generous, it was, on the facts, reasonable. The multiplier used for 2nd home was for C's life. 

On appeal D contended it should have been for his father's life. C of A held that the point could not be argued because it was not raised at first instance.

Jeremy Baker J
Negligent failures to investigate fetal abnormalities on antenatal scans and to warn mother of substantial risk of physical and mental abnormalities which would have led her to terminate the pregnancy.
Kerr J
Delay in diagnosing cancer claim where histopathologist had wrongly reported malignant melanoma as non-malignant ulcer. Interesting discussion of whether Bolam test applied. Judge found it did, through prism of Bolitho, even though this was not a treatment decision. Considered Penney v East Kent HA [2000] PNLR 323.
Breach of duty found. Damages only £16,500 because cancer had already metastasised. No effect on life expectancy, but more extensive treatment and mental anguish caused.

 Court of Appeal
Court of Appeal upheld finding of liability for neuroradiologist failing to identify aneurysm on MRI brain scan. The trial judge had properly applied the Bolam test to the issue of negligence. The Judge had found that the defendant/appellant's expert witness had failed to declare a close connection with the defendant. The judge had been accordingly entitled, having admitted the expert's evidence, to give it less weight. 
Court of Appeal
Claimant successfully appealed judgment against him on causation. C born at term plus. Had had he been born at term he would have avoided severe neurological injuries. It was admitted that it had been negligent, following an antenatal scan at 34 weeks, to fail to follow up with fortnightly scans thereafter. However, the trial judge held that it would not have been Bolam negligent to keep to the plan that was in fact followed, leading to delivery at term +, and therefore not avoiding C's injuries.
The Court of Appeal held that the proper test was that in Montgomery. What advice ought to have been given and what decision would C's mother have made? She would have been advised of risks and benefits of earlier delivery and she would have chosen elective delivery at term. Hence C's injuries would have been avoided.
Holroyde J
C gave birth by Caesarean section. Post-natally she had tachycardia and raised white cell count but was discharged home. A fortnight later she suffered a stroke due to bacterial infection following the CS. Sole issue for Court was breach of duty. Court rejected opinion of Defendant's obstetric expert because he had neglected to refer to significant recorded observations.
Green J
Very experienced surgeon admitted in evidence that the advice he gave to the patient about proposed spinal surgery (discectomy) was overly optimistic and sub-standard. Post Montgomery he had adopted a quite different approach. Finding that advice was negligent, relied upon and caused C to undergo surgery. C had disabling leg pain and reduced sensation affecting bladder and sexual function. Liability only trial.
After trial, finding that surgery not negligently performed.
(but defendant successfully defended allegations of negligence concerning the surgery)
Court of Appeal
By a majority the Court dismissed the Claimant's appeal against the decision of HHJ Robinson that it was not within the scope of the duty of care of a receptionist at an A&E department to advise the Claimant of the waiting time. He would have been seen within 30 minutes. He waited 19 minutes during a very busy time at the department then left. In fact he had a serious head injury and suffered very severe injuries. The receptionist was not in breach of duty, advising on waiting times was not within the scope of her duty of care and in any event there was no causal connection between any breach and the injury: the Claimant was told to wait, but chose to leave.
Court of Appeal
Trial Judge right not to recuse himself. No objective appearance of bias by referring to his own knee treatment and background research on the subject when finding that Claimant's knee surgery had been non-negligent
Foskett J
Infant Claimant suffered brain damage and later died following a Hemi-Fontan procedure to divert venous blood to lungs by-passing the right side of the heart. Complex medical evidence reviewed and a finding made that there was no breach of duty.
C of A
A "remarkably succinct" judgment at trial, which took the virtue of brevity "too far" was nevertheless upheld after a review of the evidence. The Judge had been entitled to find that negligence in the use of antibiotics after an operation had not been proven to be causative of a serious spinal abscess that caused paraplegia.
Goss J
Liability for mismanagement of birth that resulted in hypoxic ischaemic injury to child. Liability to mother who was primary victim: negligence occurred when baby in birth canal.
Grandmother was secondary victim. Control mechanisms considered and thresholds met. Event was "sufficiently horrifying".
Court of Appeal
Senior House Officer in A&E was negligent in failing to take an adequate history and make adequate examination of child who in fact developed pneumococcal meningitis and suffered severe disability. C of A considered the standard of care to be expected of a junior doctor and whether, in relation to contact with a child in an A&E setting, the standard was lower than it might be for a more experienced doctor. It allowed the appeal, finding that the SHO had been negligent and that the trial judge (Jay J) had applied the wrong standard.
Court of Appeal
Trial judge had found that operation on neuroma on C's right foot had negligently omitted the important third stage of the procedure, relocation, but that the Claimant's continuing pain was not due to the re-formed neuroma that had developed after the operation.
On appeal the Court of Appeal held that the trial judge had been entitled to reach the conclusion on causation. It dismissed the Appellant's contention that, following Chester v Afshar, the defendant was liable for not having obtained informed consent to a procedure that did not include the third stage. C would not have consented to a two stage procedure and therefore D was liable for all the injury that flowed from undergoing the operation. C of A held that consent was properly obtained. It was the operation that was negligently performed, but the consent procedure was satisfactory.
Court of Appeal
C's father was subject to a hospital order under S37 of the MHA 1983. He was found to have Huntington's Disease, a genetic, progressive, debilitating and ultimately fatal condition. He refused permission to disclose the diagnosis to his daughters, one of whom, the Claimant, was pregnant. A wrongful birth claim was brought alleging a breach of the duty of care in not disclosing the diagnosis to C. Struck out in the High Court. The Court of Appeal allowed the appeal, finding that C had an arguable case and remitted the case for trial. The Court of Appeal noted GMC guidance about overriding the duty of confidentiality when there is a greater public interest or need to protect others by doing so. It considered, and found unpersuasive, nine policy reasons for not imposing the duty of care. It observed that Article 8 of the ECHR did not add to the common law. Permission was given to C to Re-Amend her P of C to allege that by participating in family therapy organised by the Defendants, she had become their patient, but observed that it was not persuaded that thereby the duty to disclose arose.

William Davis J
Claimant with cerebral palsy. 24 years old at time of assessment of damages. Lost years claim for loss of pension was held to be valid (with 50% deduction for living expenses).

Not disputed that C required alternative accommodation. D contended that discount rate of -0.75% resulted in a nil Roberts v Johnstone award. The negative DR showed that there is no ability to obtain positive return on a capital fund based on risk-free investment. Hence there is no need to compensate the Claimant for loss of that return (by putting funds into purchasing property ). C can use fund to purchase property which will have a better than negative return. C contended that R v J was a pragmatic solution that still applied, and applied at same conventional rate of 2.5% The Court preferred D's approach.
NB the Court noted that the only evidence it had as to the return on a risk free investment was the discount rate itself. Further, no evidence put before it to support alternative solution such as cost of mortgage or giving reversionary interest in property to defendant.

Cost of hydrotherapy pool at home not allowed.
Defendant (on the accommodation issue)
Court of Appeal
1. Judges involved in previous litigation involving Claimant refused to recuse themselves.
2. Loss of personal autonomy had not been pleaded as a cause of action and could not be raised on appeal. In any event it was a cause of action that should be formulated in negligence.
3. There is no separate head of damages for loss of personal autonomy. General damages for injury can reflect any particular increased suffering by reason of loss of autonomy. Claim for £50,000 in this particular case had no basis.

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