Liability Judgments 2016

High Court and Court of Appeal Liability Judgments in Clinical Negligence Cases 2016



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 Date
 Case
 Judge
 Summary
 Successful Party
1.
27.11.15
(Unreported) but transcript supplied in 2016 by Simon Taylor QC, with thanks
Mitting J
Negligent delay in management by ambulance personnel of 35 week pregnant mother who collapsed at home with hypovolaemia. Court applied Wright v Cambridge
Claimant

(Defendant refused permission to appeal)
2.
15.1.16
Patterson J
Surgeon negligently caused severe internal anal sphincter damage during fistulotomy.
D agreed C's witness statement about post-operative difficulties but sought to argue that there was a conflict between his account and the medical records. The Judge rejected that contention [77-82]
Claimant
3
22.1.16
SB v Sandwell & W Birmingham NHS Trust [2016] EWHC 90 (QB)
(On Lawtel)
HHJ McKenna
Cerebral palsy/obstetric negligence claim failed on findings of fact about the CTG
Defendant










4.
25.1.16
Lord Toulson (on behalf of the court)
Delay had made a material contribution to the patient's developing sepsis - that was sufficient to establish causation.
More on the case here
Claimant
5.
27.1.16
Jay J
Surgeon not negligent in failing to identify and repair an indirect inguinal hernia during surgery for direct inguinal hernia. But the Judge rejected a submission commonly made by clinical negligence defendants that he should determine issues of fact on the basis of the inherent improbability that experienced practitioners would make the alleged negligent errors. See blog post here.
Defendant





6.
27.1.16
HHJ Taylor (QBD)
Negligent failure to provide heparin which would have prevented pulmonary embolism.
Claimant
Kindly notified by Simon Dyer, Counsel, Cloisters Chambers
7.
28.1.16
HHJ Collender QC, Sitting as a Judge of the High Court
Limited breach of duty admitted. Further limited breach found against defendant but C not "appreciably worse off" as a consequence therefore no injury and claim dismissed. C's expert made highly significant concessions at trial.
Defendant
8.
11.2.16
Coulson J
Complex obstetric negligence claim. C suffered cerebral palsy due to hypoxic ischaemia caused by cord compression during an assisted breech delivery. Many issues considered including failure to offer external cephalic version and management of labour and causation. 
Defendant
9.
22.2.16
Dove J
Failure to detect scaphoid fracture after hyperextension wrist injury
Claimant
10.
22.2.16
Dove J
C alleged consent not properly obtained for lumbar microdiscectomy. Breach not proved
Defendant





11.
26.2.16
Hickinbottom J
GPS not negligent when managing patient with cystitis who latter suffered seizures due to hyponatraemia.
Obiter remarks on causation of interest.
Defendant
12.
2.3.16
Picken J
Head injury. Negligent delay in scanning and therefore operating to evacuate sub-dural haematoma. Raised intracranial pressure during approx 6 hr negligent delay. Post operative infection (not negligent). Negligence materially contributed to brain injury. Bailey v MOD applied. No apportionment of injury to negligent and non-negligent causes
Claimant
13.
18.3.16
McGowan J
Cerebral palsy due to HIE. Negligent delay in proceeding to delivery due to poor communications on busy unit
Claimant
14.
18.3.16
Bajraktari v Barts Health NHS Trust [2016] EWHC
Extempore - Lawtel AC9301662
Patterson J
Finding that proper telephone advice given to expectant mother about coming to hospital after a bleed.
Defendant
15.
15.4.16
HHJ McKenna
NO duty of care on NHS Trust in respect of third party relative of patient who had genetic condition.
ABC v St George's applied
Defendant
16..
6.5.16
Jay J
Claimant underwent cryo buckle procedure for detached retina and argued he should have had a primary vitrectomy. No negligence found by the Judge in detailed judgment
For Defendant
17.
4.5.16
Soole J
Correctional spinal surgery for progressive scoliosis caused damage to cauda equina and permanent paralysis for Claimant with cerebral palsy. Not negligent in failing to inform surgeon that monitoring providing no useful information, failing to carry out or to consider a wake up test, and in failing to abandon the operation.
Defendant
18.
12.5.16
Nicol J
Retained products of conception case. Agreed that claim turned on whether placental tissue retained was substantial. Court not persuaded that it was. Histopathology did not help because size of tissue was not recorded. No adverse inference from fact that a Defendant witness was not called.
For Defendant
19.
20.5.16
Reginald Parker v London North Healthcare
Reported on Lawtel but not on Bailii
Judge Forster QC (QBD)
Claim that surgeon failed to diagnose acute diverticular disease and to perform a colostomy when undertaking a laparotomy. Finding of no breach of duty
Defendant
20.
25.5.16
Garnham J
C suffered stroke caused by infective carditis of mechanical aortic valve fitted 5 years earlier. Should GP have recognised need to refer C to hospital upon which he would have been admitted earlier and stroke avoided? Finding that GP not in breach of duty
Defendant
21.
26.5.16
Garnham J
Cosmetic surgery - rhinoplasty. Claimant's view that unsatisfactory outcome was not due to surgical negligence. Judge said at [52] that experts had considered wrong question when addressing whether the outcome was satisfactory. The key question was whether the surgical technique used was acceptable
Defendant
22.
26.5.16
Hall v North Herts NHS Trust [2016] EWHC 1811 (QB)
On Lawtel
HHJ Forster QC (QBD)
Midwife turned back on mother in labour who then delivered whilst standing up, the baby falling on to a pillow. The cord snapped. The mother suffered psychiatric injury. The baby was unharmed save for temporary bruising. Judge found that the sudden delivery was not reasonably foreseeable and midwife not negligent 
Defendant

23.
26.5.16
Chema-Grubb J
Delay in delivery. Child with severe but not profound cerebral palsy. Surprising outcome given 29 mins of damaging hypoxia (39 mins in total). No negligence, but finding that even the alleged avoidable 6-9 mins would not have made a material contribution to the injury, i.e. not appreciably worse outcome. Court accepted that generally the longer the period of hypoxia the worse the outcome, but not proven on unusual facts of this case
Defendant
24.
8.6.16
Turner J
Cerebral Palsy injury. Alleged failure to obtain informed consent to induction. Judge found no breach and in any event no evidence to prove causation.
Alleged failure of to give adequate care following induction - no breach or causation
Defendant
25.
13.7.16
Whipple J
Allegedly negligent surgery during radical hysterectomy such as to cause psoas abscess. Allegedly poor planning of salpingo-oophrectomy. Both allegations of breach of duty dismissed.
Defendant
26.
27.7.16
Bell v Ashford & St Peters Hospital NHS Trust

Extempore judgment on Lawtel
HHJ Gore (sitting in QBD)
Admitted breach of duty during surgery on patient with oesophageal cancer caused metastatic spread
Claimant
27.
26.7.16
Edis J
D's application to strike out where C had resolved pre-clinical negligence tort claim for accidental injury subject to reduction for contributory negligence. C accepteed credit would have to be given for damages received, but court found that settlement had not been for whole claim, including post clinical negligence element which would not be subject to contributory negligence reduction as against NHS Trust. Application dismissed.
Claimant
28.
18.7.16
Badri v Hariram [2016] EWHC 2122 (QB)
(on Lawtel)
HHJ Gore QC
No negligence at 8 week and 7 month checks of C who was born with bilateral subluxation of hips.
Defendant













29.
1.7.16
Sir Alistair MacDuff
Negligent to fail to refer C for vascular opinion. C high risk for a vascular event. Later underwent above-knee amputation
Claimant
30
28.10.16
Foskett J
Management of infant's pneumococcal meningitis not negligent
Defendant
31
4.11.16
Lewis J
Admitted breach in delay in referring for suspected cervical cancer did not cause premature death. Agreed low level of damages for estate but no Fatal Accidents Act compensation 
Defendant (C secured some damages, but D won on the substantial dispute before the Court)
32.
10.11.16
HHJ Peter Hughes QC
Erb's Palsy following alleged shoulder dystocia at birth in 1993. Finding that injury was to posterior shoulder and caused by maternal propulsion.
Expert evidence on behalf of C was unsatisfactory as to standard of care to be expected in 1993 and other matters.
Defendant
33
25.11.16
HHJ Hughes QC 
Negligent of defendant (as admitted) to change plan to treat neck condition conservatively for 3 months before proceeding to surgery. As a result surgery performed earlier. 0.5% risk of radicular nerve damage. Non-negligent radicular nerve damage occurred. Same risk even if surgery had been performed 3 months later as originally planned. Consent given to surgery. Court held C not at fault and that conventional causation principles should be applied to allow recover of compensation for the nerve damage.
Claimant
34.
6.12.16
Court of Appeal
CA overturned trial judge's finding of fact concerning advice to patient contemplating breast implant surgery (without mastopexy). 
Advice that a mastopexy would  be required "sooner or later" was reasonable. Advice that it would not be required for 5 years would have been negligent, but was not given.
Defendant
35.
13.12.16
Court of Appeal
Negligent delay of 30 minutes in delivering by Caesarean section after placental abruption. D's case was that all brain damage due occurred after birth due to reperfusion causing haemorrhage. C's case was that delay contributed to brain damge occuring before birth and materially contributed to totality of brain damage.
C of A dismissed the appeal: the trial judge had been entitled to prefer the expert evidence called by D and to making findings accordingly. No reason to disturb those findings. NB no analysis of case law material contribution within the judgment because it was not necessary given that the findings of fact were upheld and by themselves defeated the claim
Defendant/Respondent
36.
14.12.16
Andrews J
Damage caused to spinal cord during revision foraminotomy. Damages agreed at £750,000 subject to liability. Court found Claimant's expert evidence fundamentally flawed because of basic misunderstanding about the surgical instrument used. Defendant surgeon not negligent - injury was a tragic but non-negligent complication of the surgery.
Defendant
37.
20.12.16
HHJ Freedman 
C had cerebral palsy following a period of acute profound hypoxia ischaemia following a placental abruption when out of hospital. Allegations of lack of urgency in getting C's mother to hospital and then to delivery. Judge declined invitation to draw adverse inferences from the absence of a midwifery witness. On findings regarding timings and the evidence as a whole, Court not satisfied that there were breaches of duty. 
Defendant
38.
21.12.16
HHJ Freedman
C underwent failed uni-compartment knee replacement  ("UKR")followed by total knee replacement. She suffered chronic pain syndrome. She alleged negligent performance of the UKR and failure to obtain informed consent to it (Montgomery applied). Judge found UKR was non negligent. He found C's evidence on consultations unreliable, commenting also that her evidence on the warnings given and what decisions she would have made, was "inevitably coloured" by the actual outcome.
Defendant
39.
16.9.2016
OX v Derby Teaching Hospitals NHS Foundation Trust
(On Lawtel only, no neutral citation provided)

Judge Godsmark (sitting as HCJ)

Finding of midwifery negligence in delaying making urgent call for obstetric review, causing delay in delivery of child who suffered dystonic athetoid cerebral palsy. Reliance on local trust data of times between arrival in theatre and delivery to establish likely time in the particular case, absent negligence. Finding that outcome, without delay, would have been mild brain damage rather than severe. No argument regarding material contribution.
Claimant









































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