f Clinical Negligence Update
Nigel Poole QC
1. Judgecraft
1.1. Not a “details man”. 1.1.1. Barnett v Medway NHS Foundation Trust [2017] EWCA Civ 235 [Case 21].
1.1.2. Difficult expert evidence was considered but not resolved by the trial judge who ultimately decided the case for the defendant on the burden of proof – the claimant had failed to prove his case to the requisite standard because the court could not resolve a key factual issue.
1.1.3. The Court of Appeal considered Stephens v Cannon [2005] EWCA Civ 222 and Verlander v Devon Waste Management [2007] EWCA Civ 835 in which Auld LJ held: When this court in Stephens v Cannon used the word "exceptional" as a seeming qualification for resort by a tribunal to the burden of proof, it meant no more than that such resort is only necessary where on the available evidence, conflicting and/or uncertain and/or falling short of proof, there is nothing left but to conclude that the claimant has not proved his case. The burden of proof remains part of our law and practice -- and a respectable and useful part at that - - where a tribunal cannot on the state of the evidence before it rationally decide one way or the other. In this case the Recorder has shown, in my view, in his general observations on the unsatisfactory nature of the important parts of the evidence on each side going to the central issue, particularly that of Mr Verlander, that he had considered carefully whether there was evidence on which he could rationally decide one way or the other."
1.1.4. In Barnett the Court of Appeal was clearly concerned about the “remarkably succinct judgment”:
“The Appellant submits, in support of these Grounds, not only that the judge reached "impermissible" or erroneous conclusions, but that the judgment contains no sufficient analysis of the case, and thus the Appellant is left in doubt as to the judge's reasoning. With respect to the Judge, there appears to me to be
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force in the latter complaint. There is great virtue in writing judgments concisely. However, the parties do need to know sufficiently what led to the conclusions reached. In this instance, the judgment gave only the briefest explanation. The obligation is all the clearer in a case of such complexity, and in a case where a key issue is decided on the basis that a claimant has failed to discharge the burden of proof, as the passage from paragraph 46 of Stephens v Cannon quoted above makes clear. The learned judge is to be commended for his brevity, but on this aspect of the case at least, it went too far. Irwin LJ at [54].
1.1.5. However, the Court of Appeal held that this was an exceptional case in which the judge was justified in his inability to resolve an issue of fact and therefore to determine the case on the burden of proof.
1.2. “I know all about that” 1.2.1. Willmott v Rotherham NHS Foundation Trust [2017] EWCA Civ 181 [Case 19]
1.2.2. Knee replacement operation. The trial Judge had had a knee operation and informed the parties that he had gained a great deal of knowledge through that experience. After several judicial interventions the claimant’s counsel asked the Judge to recuse himself which he refused to do. The Court of Appeal agreed that the Judge had not been required to recuse himself but commented:
“I should say that I think it was unwise for the judge to refer so extensively to his own experience of knee treatment and to his background reading on the subject. This gave rise to a concern that the judge might not be confining his approach to the evidence adduced before him. The concern was in fact unjustified, but it fuelled the application for recusal and has fuelled this appeal.”
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2. The Standard of Care
“I predict that over the coming years there will be continuous onslaught on Bolam. The argument will be that the ordinary principles of tortious liability should apply to the professions in the same way that they apply to everybody else. There is no reason for the courts to accord special protection to the professions. Whether any of those attacks will succeed I do not know and it would be wrong for me, as a judge, to predict. I merely state where I foresee the next battles being fought.”
Lord Justice Jackson, 2015
2.1. Assessing Conflicting Expert Evidence 2.1.1. In Lane v Worcestershire Acute Hospitals NHS Trust [2017] EWHC 1900 (QB) Edward Pepperall QC reviewed the authorities on the approach to the standard of care where there are conflicting expert opinions. He relied upon Green J in C v North Cumbria University Hospital NHS Trust [2014] EWHC 61 at [25]:
"(vi) Responsible/competent/respectable: In Bolitho Lord Browne-Wilkinson cited each of these three adjectives as relevant to the exercise of assessment of an expert opinion. The judge appeared to treat these as relevant to whether the opinion was 'logical'. It seems to me that whilst they may be relevant to whether an opinion is 'logical' they may not be determinative of that issue. A highly responsible and competent expert of the highest degree of respectability may, nonetheless, proffer a conclusion that a court does not accept, ultimately, as 'logical'. Nonetheless these are material considerations …
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"vii) Logic/reasonableness: By far and away the most important consideration is the logic of the expert opinion tendered. A judge should not simply accept an expert opinion; it should be tested both against the other evidence tendered during the course of a trial, and, against its internal consistency."
Green J’s formulations have been relied upon on more than one occasion by other High Court Judges. However, Edward Pepperall QC also warned himself that:
“Bolitho is not a licence for a judge to prefer one expert's logical opinion over another. The question is not whether Mrs Lane could have received a better standard of care or whether, with hindsight, things could have been done better, but whether the treatment given by these doctors is or is not supported by a responsible body of medical opinion that withstands logical analysis.”
The court scrutinizes an expert’s opinion for its logic, but if the defendant’s conduct accords with a responsible body of medical opinion that withstands logical, that is the end of the matter. It is not for the court to go on to decide whether it prefers the approach of the claimant’s expert.
2.2. The Particular Task 2.2.1. Most obviously, as confirmed in Montgomery v Lanarkshire, the task of giving advice and obtaining consent is no longer judged by the Courts using the Bolam test. Thefaut v Johnston [2017] EWHC 497 (QB) [Case 17] provides a striking example of the impact of Montgomery: a very experienced surgeon accepted that the advice he had given about proposed spinal surgery had been overly optimistic and sub-standard and that, post Montgomery, he had changed the pre-operative advice he gives to patients.
2.2.2. But are there other clinical activities for which the Bolam test is not appropriate?
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2.2.3. Muller v King's College Hospital NHS Foundation Trust [2017] EWHC 128 (QB). [Case 13].This was a claim for delay in diagnosing cancer where the histopathologist had misreported a malignant melanoma as non- malignant ulcer. Kerr J considered what was the correct test to apply when determining whether such mis-reporting had been negligent. In an important passage beginning at [46] he said:
“Mr Kellar, for Mr Muller, submitted 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.
“One might have thought the principles would be settled by now. In my judgment, the difficulty has arisen because, unfortunately, the authorities applying the conventional Bolam approach to negligence in this field do not sufficiently differentiate between two types of case.
“The first type is a case such as the present, where the patient's condition is unknown, and what is alleged to be negligent is a doctor's diagnosis of the condition, in the form of a report, with no decision made or advice given about treatment or further diagnostic procedures. The diagnosis is either right or wrong and, if wrong, either negligently so or not. Such a case could be called a "pure diagnosis" case.
“At the other end of the spectrum is the second type of case: a "pure treatment" case, where the nature of the patient's condition is known, and the alleged negligence consists in a decision to treat (or advise treatment of) a condition in a particular manner. The second type of case is the paradigm for application of the Bolam principle.”
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2.2.4. Kerr J reviewed a number of authorities, concerned to apply the correct test to the case in hand. In particular he considered the case of Penney referred to earlier in his judgment (above). In that case, involving cytological reporting the judge at first instance had expressly not applied the Bolam test but as Kerr J noted:
“… the Court of Appeal did not expressly endorse the judge's proposition that the Bolam principle did not apply because there was no issue of whether a particular course of conduct was acceptable medical practice. However, the Court of Appeal did allow a liberal invocation of Lord Browne-Wilkinson's Bolitho exception, no doubt because this was, in Lord Browne-Wilkinson's words, not a case where there was any "weighing of risks and benefits", which should attract particular deference to the views of the experts, whether or not unanimous.”
2.2.5. Kerr J ultimately concluded: “I accept the submission of Mr Kellar that the case most closely analogous to the present case is Penney v. East Kent Health Authority; and I regard Penney as authority permitting the court to choose between competing expert opinion on the issue the court has to decide: whether the act or omission of the defendant's employee fell below the standard reasonably to be expected of her.
“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.”
2.2.6. Kerr J concluded that the histopathologist had indeed been negligent. The correct question was whether a histopathologist acting competently (whether or not he was ordinarily competent) would have missed it. The
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Judge was satisfied that he/she would not have done so and that the misdiagnosis was negligent.
2.2.7. However, just because a medical professional is looking at a biopsy under a microscope, it does not follow that they do not exercise judgment when reaching a conclusion or reporting a diagnosis. There may often be more than one reasonable view of certain radiological or histopathological evidence. It is common to find that decisions are made by Multi-Disciplinary Teams who will consider slides and scans together and then formulate treatment plans accordingly.
2.3. The Particular Professional 2.3.1. FB v Princess Alexandra Hospital Trust [2017] EWCA Civ 334 [Case 26]. The Court of Appeal considered whether a lower standard of care should apply where a junior clinician was involved in the investigation and treatment of a patient.
2.3.2. The claimant was 13 months old when her parents called an ambulance to take her into A&E where she was reviewed by a Senior House Officer. Her parents had noted a high temperature and that her child’s eyes were rolling. The SHO diagnosed a respiratory tract infection, administered antibiotics and discharged the child home. In fact the child had pneumococcal meningitis. When re-admitted it was too late to avoid her sustaining permanent brain damage and profound deafness.
2.3.3. At trial, Jay J made a finding that the SHO, Dr Rushd, had not asked the claimant’s parents why they had called an ambulance to bring their child to A&E. He found that the parents had done so due to the eye rolling incident. He did not criticize them for failing to volunteer that
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information and found that they would have revealed that part of the history had they been asked.
2.3.4. Thirlwall LJ noted Jay J’s findings:
“…In my judgment, a Consultant A&E doctor or paediatrician either would have picked up the abnormal state variation or embarked on a line of inquiry which was likely to have elicited Ms Whipple's coda [ie the information about the eye rolling episode which precipitated the emergency call]. In particular an experienced doctor would probably have said to the parents something along the lines – "this child looks fine to me, how was she different earlier?"
2.3.5. Thirlwall LJ went on:
“26. He developed the conclusion further, by reference to the fact that an experienced clinician "acquires an armamentarium of diagnosis and inquisitive resources, part intuitive and part knowledge-based, which enable her or him to penetrate more deeply into any given situation". He concluded "overall that it was not substandard practice for Dr Rushd to fail to elicit the relevant history".
2.3.6. The Court of Appeal overturned Jay J’s judgment on breach. Jackson LJ reviewed the history of the law on this issue, even mentioning Nettleship v Weston, which “any fule kno” and concluded:
“[59]. In Wilsher v Essex AHA [1987] 1 QB 730 the Court of Appeal for the first time gave detailed consideration to the standard of care required of a junior doctor. (This issue did not arise in the subsequent appeal to the House of Lords). The majority of the court held that a hospital doctor should be judged by the standard of skill and care appropriate to the post which he or she was fulfilling, for example the post of junior houseman in a specialised unit. That involves leaving out of account the particular experience of the doctor or their length of service. This analysis works in the context of a hospital, where there is a clear hierarchy with consultants at the top, then registrars and below them various levels of junior doctors. Whether doctors are performing their normal role or 'acting up', they are judged by reference to the post which they are fulfilling at
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the material time. The health authority or health trust is liable if the doctor whom it puts into a particular position does not possess (and therefore does not exercise) the requisite degree of skill for the task in hand.
[60]. Thus in professional negligence, as in the general law of negligence, the standard of care which the law requires is an imperfect compromise. It achieves a balance between the interests of society and fairness to the individual practitioner.
2.3.7. Perhaps it is surprising that Jay J thought that a reasonably competent SHO would not take an adequate history. To many, the failure in this particular case was of an elementary kind and so an analysis of the different levels of care to be expected of differently qualified and experienced practitioners was not necessary.
2.3.8. Jackson LJ noted that the position in relation to contractual claims might well be different: “In a contractual case, the claimant may have selected and retained the defendant precisely because of their experience and CV. In a tortious claim, however, such as the present case, the claimant and her parents may play no part in the choice of doctor” [62]
2.3.9. Although, note the first instance decision of David Blunt QC in Kathleen Jones v Royal Devon and Exeter NHS Foundation Trust, handed down on 22 September 2015 and available on Lawtel, where he found the defendant liable where the expected surgeon was replaced by a colleague at the last moment.
3. The Scope of Duty
Darnley: i) It is not within the scope of the duty of care of an A&E Department’s, non-medically qualified receptionist to advise as to waiting times and the fact
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that she has done so is not an assumption of legal responsibility to give accurate information. ii) In any event the scope of such duty would not extend to liability for the consequences of a patient leaving the department without telling staff.
McCauley: But where a patient leaves the department after several hours, having been seen by a doctor but before investigations are completed, and that is known to the Trust, there is a duty of care to ensure the patient is aware of the importance of the investigation and to make an informed decision to leave.
Crossman: The scope of duty of a Trust does extend to liability for the otherwise unavoidable consequences of an operation which ought to have been performed at a different time.
3.1. Mayday! 3.1.1. One of the most controversial decisions of the last 12 months is that of Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151 [Case 18]. It involved the A&E Department at Mayday Hospital, now Croydon University Hospital. The claimant was told he would have to wait several hours before being dealt with. The claimant left the hospital before being dealt with. There was no attempt to call him back.
3.1.2. McCauley v Karim and Croydon Health Services NHS Trust [2017] EWHC 1795 [Case 33] involved the A&E Department at Mayday Hospital, now Croydon University Hospital. The claimant had to wait several hours
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before being dealt with. The claimant left the hospital before staff had finished dealing with him. There was no attempt to call him back.
3.1.3. Mr Darnley was struck on the head and attended the Mayday Hospital A&E department with his friend. He was clerked in by a receptionist, described in the judgment as a “civilian” meaning that she was neither a nurse nor a doctor and had no clinical qualifications. Misleadingly she told the claimant that he would have to wait four to five hours to be seen. In fact he would have been seen within 30 minutes. He did not wait longer than 19 minutes, leaving the hospital and going home. Soon after arriving home he deteriorated and was rushed back to hospital where he was found to have an extra-dural haematoma which has caused him to suffer from permanent and serious neurological injury.
3.1.4. It was found at trial that the claimant had complained to the receptionist that he felt like he might collapse and she had told him that if he did he would be treated as an emergency.
3.1.5. The evidence suggested that the claimant was perfectly able to answer questions about himself and what had happened to him when he had been clerked in. I can find no mention of evidence that his capacity to make decisions about whether to stay or leave was at all affected by his head injury throughout the period he remained at the hospital, but this does not appear to have been expressly addressed in the Court of Appeal. The trial judge had found that had the claimant been told accurately he would be seen within 30 minutes he would have waited.
3.1.6. The Court of Appeal noted that NICE Guidelines provided that head injured patients such as the claimant ought to be seen within 15 minutes, but agreed with the trial judge (and the expert witnesses) that it would have been non-negligent to have seen him within 30 minutes in all the
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circumstances of the particular case. The NICE Guidelines do not necessarily set a minimum, acceptable standard of care: evidence relevant to the particular A&E department might well be relevant.
3.1.7. The court found that the receptionist’s duty did not extend to advising patients about waiting times. The fact that she had done so did not amount to an assumption of responsibility to give accurate information but was an act of courtesy. It was not within the scope of her duty of care to advise as to waiting times. In any event the fact that the claimant had not waited was his own choice and there was no causal link between any breach of duty and the injury sustained.
3.1.8. Jackson LJ held at [52] and [53]:
“In the present case the gravamen of the claimant's complaint is not failure to inform. It is the giving of incorrect information by the receptionist. I have come to the conclusion that this is not an actionable misstatement. The receptionist took down the claimant's details and, correctly, told him to wait in the waiting area. When she added that he would have to wait for up to 4 or 5 hours, she was not assuming responsibility to the claimant in the sense of accepting responsibility for the catastrophic consequences which he might suffer if he simply walked out of the hospital. Foreseeability alone is not sufficient to give rise to a duty of care.
“Nor do I think that it is fair, just and reasonable to impose upon the receptionist (or the defendant acting by the receptionist) a duty not to provide inaccurate information about waiting times. This would add a new layer of responsibility to clerical staff and a new head of liability for NHS health trusts.”
And at [56] “If I am wrong in that conclusion, and if the receptionist (or the defendant acting by the receptionist) was in breach of duty by giving incorrect information to the claimant, the claim still cannot succeed. The scope of that duty cannot extend to liability for the consequences of a patient walking out without telling the staff that he was about to leave.”
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3.1.9. Giving a dissenting judgment, McCombe LJ placed importance on the accepted evidence of Mr Darnley’s, friend, Mr Tubman:
" … Michael tried to tell the lady at the desk that he had been involved in an incident in which somebody had hit him over the back of his head and he believed he had a head injury. He told the lady that he was feeling very unwell and his head was really hurting. The lady did not have a helpful attitude at all to Michael. She seemed more concerned as to how the injury had occurred and she asked Michael if the police had been involved. Michael tried to explain to her that he had been hit over the head and was worried that he had a head injury and needed to be seen quickly. I also tried to explain to the lady that Michael was really unwell and we were worried that he had a head injury and needed urgent attention. …
”… The lady told Michael in a very off-hand way that he would have to go sit down and would have to wait 4-5 hours before somebody looked at him. Michael said that he could not wait that long because he felt he was about to collapse. The lady told him that if he did collapse then he would be treated as an emergency. At this point she made it clear that she was not interested in dealing with him any more and was pulling down the shutter."
3.1.10. McCombe LJ considered that the duty of care was on the hospital trust, not solely on the receptionist, and that it was wrong to allow the Trust to avoid liability it would otherwise have, by allocating a particular role to a “civilian”:
“I do not accept that the functions of the hospital can be divided up into those of receptionists and medical staff. 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…. I would have thought there would be no doubt that the hospital would have been liable had it been a member of medical staff that had reacted in this manner to the claimant's presentation on this occasion. I do not consider that the responsibility of the hospital can be shifted because the misinformation was provided by non-medical staff” [71].
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3.1.11. The Trust had failed to give accurate advice to the patient either by the receptionist, a leaflet or otherwise. It knew of the importance of assessing head injuries and of the tendency of some to leave if they are kept waiting, or anticipate being kept waiting, too long. It owed a duty of care to give accurate information, negligently failed to do so and had it given accurate information it was likely the claimant would have stayed and have avoided his injuries.
3.1.12. Not all A&E departments have a “civilian” as the first point of contact. Does a higher standard of care apply to those who use a nurse in that role? If so, will this judgment provide an incentive on hospitals to use civilian staff for all first points of contact, and perhaps to expand the role of civilian staff?
3.1.13. Why was no written, head injury information given to the claimant?
3.1.14. Ought the receptionist to have had some training in relation to advising patients with head injuries about the importance of remaining?
3.1.15. How can a hospital be responsible for outcomes when a patient is, by choice, not there and has not even informed the staff that he is leaving? The answer might be that he was not there due to the misinformation given to him. Although the Montgomery judgment highlights the responsibility on patients to make decisions for themselves and to live by the consequences of those decisions, in this case the information given to the patient misled him and made a material difference to his decision- making about whether to stay or go.
3.1.16. In Michael v Chief Constable of S Wales Police [2015] UKSC 2 Lord Toulson in the Supreme Court commented on an earlier Court of Appeal
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decision in Kent v Griffiths [2000] EWCA Civ 3017 . A [81] Lord Toulson said,
“A doctor attended the home of a patient suffering from an asthma attack and called for an ambulance to take her immediately to hospital. The control replied "Okay doctor." After 13 minutes the ambulance had not arrived and the patient's husband made a further call. He was told that an ambulance was well on the way and should arrive in seven or eight minutes. For unexplained reasons it did not arrive until 40 minutes after the first call. The patient suffered a respiratory arrest which would have been prevented if the ambulance had arrived in a reasonable time. The patient's doctor gave evidence that if she had been told that it would take the ambulance service 40 minutes to come, she would have advised the patient's husband to drive her to hospital and would have gone with them. The Court of Appeal upheld the trial judge's finding of liability against the ambulance service. It would have been sufficient to hold that the acceptance of the doctor's request for an ambulance to come immediately gave rise to a duty of care but Lord Woolf MR (with whom the other members of the court agreed) went further. He held that the ambulance service, as part of the health service, should be regarded as providing services equivalent to those provided by hospitals, and not as providing services equivalent to those rendered by the police and fire services. Accordingly, the staff of the ambulance service owed a similar duty of care to that owed by doctors and nurses operating in the health service” [Para 45].
3.1.17. It appears therefore that a “civilian” answering emergency calls on behalf of an ambulance service might well owe a duty of care to advise correctly as to waiting times, but not a civilian within an A&E Department.
3.1.18. Jackson LJ distinguished the civilian within the ambulance service from the civilian A&E receptionist:
“The telephonist in the ambulance service often passes information to paramedics or patients, in order that people can act on that information…. Therefore the law imposes on the ambulance service, by its telephone staff, a duty to take reasonable care to pass on correct information. The position of the A & E
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reception staff in a hospital such as Mayday Hospital is different. Their function is to record the details of new arrivals, to tell them where to wait and to pass on relevant details to the triage nurses. It is not their function or their duty to give any wider advice or information to patients.” [51].
3.1.19. McCombe LJ disagreed: It is a distinction which I find myself unable to accept. It is said that patients waiting for ambulance services may need to decide whether to stay where they are or to arrange alternative transport. In my view, when given information about waiting times, patients need to know that in true urgency the hospital can act quickly and that initial assessment will occur sooner than the well-known average national A & E waiting times until treatment.” [70].
3.1.20. Is it unfair to compare Jackson LJ’s approach at paragraph [59] in FB, discussed above? In that case he emphasized the importance of the role being undertaken over and above the identity, experience and qualifications of the person acting in that role.
“The health authority or health trust is liable if the doctor whom it puts into a particular position does not possess (and therefore does not exercise) the requisite degree of skill for the task in hand.”
Arguably advice as to waiting time at an A&E department is tantamount to advice as to the potential seriousness of the presenting patient’s condition on which a patient is likely to rely. The fact that it is given by a receptionist who does not have the “requisite degree of skill for the task in hand” is therefore no defence.
3.1.21. Darnley was raised as a defence by the very same Trust in McCauley, before Foskett J. The claimant suffered multiple amputations of toes, fingers and his left leg after being rushed to hospital with septic shock. Earlier he had attended the defendant's A&E department. The triage nurse had requested blood tests but the Judge found that they would not
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have included CRP which would have been important in terms of subsequent management. However the claimant was later seen by a doctor who ordered bloods including CRP and his direction was not actioned. On the court's findings the blood results would have led to further investigations and treatment that would have prevented the claimant's severe injuries.
3.1.22. The claimant had attended the A&E department at 1030 hours and he left without any blood tests having been performed, at 1630 hours. It seems that he left after being told (wrongly) by a receptionist (tantalisingly it is not known if it was the Darnley receptionist!) that there were no outstanding investigations. The court's finding was that but for a negligent system, rather than negligence attributable to any one, identifiable individual, blood tests would have been performed by 1530 hours and that the claimant would have stayed for a further medical consultation to discuss the results and any further investigations. At [163] it was held:
“As it was, given that C left the hospital about 16.30 and there is nothing in the records to indicate that he was not available for taking the sample when the staff were ready to take it, the only reasonable inference is that the "system" failed to deliver the result within that period (or even to have taken the specimen), a period which arguably should, in any event, have been foreshortened earlier in the chronology of the day.”
And at [166]: “Standing back from the roles of various individuals, so far as the circumstances of those roles can be ascertained, the general impression one gains is that C had "slipped through the net" by the time he was beginning to question whether he should remain in the hospital or ask his wife to come to collect him. He seems to have been lost to the system at an important time.”
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3.1.23. No contact was made with the claimant after he had left the hospital. Either someone had tried to find him to take blood but after he had left, in which case they did not then take steps to contact him, or no-one ever actioned the request for blood tests and therefore no-one noticed he had gone.
3.1.24. In relation to the former scenario the Judge noted the defendant's submissions in response to the claimant's case that steps should have been taken to call the claimant back:
"If it was mandatory to summon C back to hospital (a patient who had capacity and absconded whilst waiting for blood tests with a reasonable differential diagnosis of ? evolving ischiorectal abscess/?prostatitis) then this obligation would seem to apply to all adult patients who leave without being seen who need blood tests or might have an infection. There is nothing in the material provided by the experts which could justify the imposition of so wide an obligation on a busy A&E department.
“In reality this is just another mechanism by which C has sought to fix D2 with responsibility (i.e. to blame D2) for the consequences of his own decision to leave. The submissions on this topic above apply with equal force: C must take responsibility for his own action in leaving."
3.1.25. Mr Justice Foskett was not attracted to this submission:
“This, as it seems to me, is endeavouring to extend the effect of the decision in Darnley beyond what was intended. It does seem to me that the situation in this case is not one that can be swept aside by the assertion that this was all the responsibility of C and that telephoning him would have the effect of imposing an excessive obligation on a busy A & E Department. I accept that his decision to leave the hospital might mean that C cannot rely upon what was said by the receptionist as an actionable misstatement (following Darnley), but this situation is different: it involves the "system" failing (i) to identify the fact that an important test had not been done on C and (ii) to alert him to or to reinforce
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the desirability of making himself available for it to be carried out. … there is no evidence … that C appreciated fully the importance of the test…. there was a duty on the hospital to check that there was a good reason for him not being there to provide the specimen and then to warn him of the risk of not having done so. Only then could it truly be said that he had made an informed decision about ceasing to place reliance on the hospital that day for finding out what was wrong with him. If that had happened, the decision in Darnley may have prevented him from pursuing a claim.
“All this arises, of course, only if it is established that the hospital realised that C was not present when the sample was to be requested. There is no evidence that this was the case and, as I have said, it is a legitimate inference that no step was ever taken to obtain a sample.”
3.1.26. Clearly there are factual differences between McCauley and Darnley. The claimant had been seen clinicians, he had been in the system at the department for a number of hours. There had been ample opportunity to carry out the tests and to give him advice. In Darnley the claimant was present only for 19 minutes, had not seen a clinician and so had not relied on any advice from a clinician. Nevertheless it is not only the coincidence of the location that raises interest. Rather like McCombe LJ, Foskett J pointed to the system in place at the department. The defendant can be liable if the system is deficient. The judgment also demonstrates that a patient's decision to leave a hospital before the conclusion of the (intended) investigation or treatment of him will not necessarily defeat or reduce his claim.
3.2. Crossman 3.2.1. I have mentioned this decision under scope of duty because it seems to me that that is the issue at the root of the case. Crossman v St. George's Healthcare NHS Trust [2016] EWHC 2878 (QB) [Case 5].
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3.2.2. HHJ Peter Hughes QC, in the High Court, held that it had been negligent of the defendant (as admitted) to change the plan to treat the claimant’s neck condition conservatively for 3 months before proceeding to surgery. As a result of the negligent change the surgery performed earlier. There was a 0.5% risk of radicular nerve damage from the surgery. When the surgery was in fact performed non-negligent radicular nerve damage occurred. There would have been the same level of risk even if surgery had been performed 3 months later as originally planned. Informed consent was given to undergoing the surgery. The court held the claimant had not been at fault and that conventional causation principles should be applied to allow recover of compensation for the nerve damage. On the balance of probabilities (99.5%) the radicular nerve damage would not have occurred had the surgery been performed at the time it ought to have been, but for the negligent chance of plan.
3.2.3. The timing of the surgery was irrelevant to the extent of the risk of radicular nerve damage.
3.2.4. Sometimes a strict “but for” test can result in spurious results – the mountain climber killed in the avalanche example. A GP negligently advises the mountaineer that he is fit for an expedition, when in fact he has a dodgy knee. But for the negligence the mountaineer would not have been on the mountain when the avalanche occurred. The conventional way of avoiding such results is to ask whether the avoidance of death by avalanche was within the scope of the duty of care of the GP. Likewise, it might be questioned whether avoidance of the risk of radicular nerve damage was within the scope of the duty of care of the doctor who changed the planned date of surgery. Would the Trust have
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been liable for any injury that occurred on the date of actual surgery? Suppose there had been an earthquake, the surgeon’s hand had slipped and severed an artery? On the reasoning in Crossman, wouldn’t the Trust have been liable?
3.3. Third Parties: ABC 3.3.1. The Court of Appeal overturned a decision to strike out a wrongful birth claim by the daughter of the Trust’s patient, for failing to advise her, against his express wishes, of the possibility that she had inherited a genetic condition from which he was suffering.
3.3.2. ABC v St. George's Healthcare NHS Trust and others [2017] EWCA Civ 336 [Case 28].
3.3.3. The facts of ABC are now familiar to most clinical negligence practitioners. In short the claimant’s father had shot and killed her mother and was found guilty of manslaughter on the grounds of diminished responsibility. In 2009 he was diagnosed with Huntington’s disease, an inherited, progressive and incurable condition. Being a child of a sufferer, the claimant had a 50% chance of developing the same condition. At her father’s express request the claimant was not informed of his diagnosis even when it was known she had become pregnant. Ultimately, after her daughter’s birth, the claimant was accidentally informed. She was found to have inherited the condition and her daughter has a 50% risk of having the condition also (but it was not yet possible to diagnose either way).
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3.3.4. The claimant brought a wrongful birth claim and argued breach of Art 8. Her claim was struck out. The Court of Appeal overturned that decision. The argument centred on the third part of the test for a duty of care in Caparo v Dickman- was it just and reasonable to impose a duty of care on the defendants. Here, of course, the duty of care was to a third party. In fact the appellant contended that since she had attended a family therapy session arranged by the defendant Trust she was a patient and therefore was owed a duty of care in that capacity, but that did not find immediate favour with the court. Its decision to allow the claim to continue was on the basis that she was not a patient.
3.3.5. The trust raised nine arguments for why the third Caparo test was not satisfied. Irwin LJ addressed and rejected each one. In relation to the floodgates argument, he acknowledged the potential impact of extending the duty of care to third parties:
“In written submissions to us, the Defendants submit that such problems as these may arise in a variety of medical scenarios aside from those involving genetic conditions. The examples given include a patient suffering from a sexually transmitted disease who refuses to tell his or her previous sexual partners; a patient whose vasectomy has failed but who refuses to tell his sexual partner; a patient who is suffering from a contagious disease who refuses to tell family or friends; a patient dying from a long, distressing illness and who does not wish his family to be told for fear of psychiatric harm; and a terminally ill patient who refuses to allow his pregnant partner to be told, for fear she might choose to terminate the pregnancy. Here, I recognise that there is force in the Defendants’ submissions. “
3.3.6. However, Irwin LJ noted that geneticists were in a very specific position: “However problematic, and whatever the implications for “third parties”, the clinician usually only has knowledge of medical facts about the existing patient. It is only in the field of genetics that the clinician acquires definite, reliable and critical medical information about a third party, often meaning that the third party should become a patient.”
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3.3.7. The court was clearly influenced by guidance to professionals from the Royal College of Physicians, the Royal College of Pathologists and the British Society of Human Genetics entitled “Consent and Confidentiality in Genetic Practice, Guidance on Genetic Testing and Sharing Genetic Information” and published in 2006. That guidance suggested a professional obligation of disclosure to third parties in certain circumstances
“where the aversion of harm by the disclosure substantially outweighs the patient’s claim to confidentiality. Examples may include a person declining to inform relatives of a genetic risk of which they may be unaware, or to allow the release of information to allow specific genetic testing to be undertaken.”
3.3.8. The existence of such guidance did not of course necessarily create a duty of care to disclose or to breach confidentiality, but it was influential on the court’s decision that the claimant had an arguable case for a duty of care having arisen in the particular case.
3.3.9. In Connor Smith v University of Leicester NHS Trust [2016] EWHC 817 (QB), decided before the appeal in ABC, the court had struck out claims by relatives of a patient, Mr Craven who had a genetic disease from which two of his second cousins had also suffered, one of whom had died of the condition. The argument was that there had been a negligent delay in diagnosing Mr Craven but for which his wider family would have been tested earlier, giving rise to earlier treatment and better outcomes. HHJ McKenna, sitting in the High Court, struck out the claim, concluding on the authorities, including ABC at first instance, that “The settled policy of the law is opposed to granting remedies to third parties for the
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effects of injuries to other people and what the Claimants seek in this case is to introduce an exception to that approach”.
3.3.10. In ABC the Court of Appeal found that there was an arguable case that the Trust owed a duty to inform the daughter of its patient of the genetic condition in question. This seems to me to be an entirely different question from that raised in Connor Smith, namely whether the Trust owed a duty of care to third parties to treat the patient under its care non-negligently.
3.3.11. Note also that the question is not whether a court, such as the family court, would order disclosure of otherwise confidential information about a patient to relatives or others. The question is whether, having not disclosed that information, at Trust is potentially liable for damages for the consequences of not doing so.
3.3.12. Finally, in ABC disclosure of the information to the claimant was irrelevant to the treatment of, or duty of care to her father. Disclosure would have breached confidentiality and thereby could potentially harm the doctor/patient relationship, but there was no balance of care to be struck. The treatment of the father’s condition could not be affected by knowledge of a potential claim by his daughter if the treatment were given in one way or another. There was no conflict of interest between his treatment and the interests of his relatives.
4. Advice and Consent
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4.1. Thefaut v Johnston [2017] EWHC 497 (QB) [Case 17]. This is included solely to demonstrate the impact of Montgomery. A very experienced surgeon admitted in evidence that the advice he had given to his patient about proposed spinal surgery (discectomy) was overly optimistic and sub- standard. Post Montgomery he had adopted a quite different approach. The court found that the advice was negligent, had been relied upon and caused claimant to undergo surgery. The claimant has suffered avoidable disabling leg pain and reduced sensation affecting bladder and sexual function.
4.2. The limits of the obligation on a medical professional to advise when obtaining informed consent were explored by the Court of Appeal in Worrall v Antoniadou [2016] EWCA Civ 1219 [Case 6]. The court held that the trial judge had gone too far when making a finding that the defendant cosmetic surgeon had given negligent advice to a patient. The issue was whether the claimant had consented to breast augmentation on the basis of advice from the defendant that she would not require a mastopexy (uplift) for another five to ten years after the augmentation. The trial judge found:
“I am satisfied that the defendant did not explicitly give a timescale of five to ten years before mastopexy was necessary.”
But…
“I think the more probable likelihood is that the timescale was mentioned by the claimant who, when pressing the defendant, said words to the effect of, "What do you mean by sooner or later? Are we talking months? Years? Five years? Ten years?" to which the defendant said something non-committal, which the claimant then interpreted, because this was what she wanted to hear, as giving her up to five to ten years before mastopexy was necessary”.
Thus the Judge held that:
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“the defendant, albeit unintentionally, allowed the claimant to go away from the consultation of 28th July 2010 under the impression that she had at least five years before mastopexy would be required”.
4.3. Not only had the Judge determined liability on a basis that had not been pleaded but, the Court of Appeal held, at [22] and [23]:
“The question which the judge ought to have asked himself is whether anything said or done by the Defendant at the consultation would have been reasonably understood by a reasonable patient in the position of the Claimant as an assurance that it would be of the order of 5 to 10 years before she would require a mastopexy. This is always the relevant and objective approach, but it was critically important that the judge should have couched the question in this way having first concluded that the Claimant had got hold of the wrong end of the stick. A defendant medical professional ought not to be liable in such circumstances unless either he/she is responsible for the patient getting hold of the wrong end of the stick or, having realised that the patient has or is in danger of getting hold of the wrong end of the stick, or in circumstances where the medical professional ought so to have realised, he/she takes no step to dispel the misapprehension. In my judgment the judge would not have been justified in answering the relevant critical question in the affirmative.”
“Even on the basis of his own findings the judge was not in my view entitled to reach the conclusion which he did. If the enquiry by the Claimant was "are we talking months? Years? 5 years? 10 years?" then a non-committal response by the Defendant along the lines "sooner or later" could not reasonably be interpreted as an assurance that the time-scale was of the order of 5-10 years. It could equally have been months or years.”
4.4. Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ 356. [Case 27]. In this case the trial judge had found that during an operation on a neuroma on the claimant’s right foot the surgeon had negligently omitted the important third stage of the procedure, namely, relocation, but that the claimant's continuing pain was not due to the re-formed neuroma that had developed after the operation.
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4.5. 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. It was contended that the claimant had not consented, and would not have consented to, a two stage procedure, omitting relocation. Hence, the defendant was liable for all the injury flowing from the surgery.
4.6. The Court of Appeal held that the claimant had been properly advised about the intended procedure and had given valid informed consent on the basis of that advice. The fact that the surgeon had negligently performed the operation did not negate informed consent.
“The negligent failure to deal appropriately with the nerve ending did not make this either a different operation for the purposes of consent, nor an operation for which specific consent was required. It was a breach of duty which had the potential to give rise to liability for damages if all the other elements of the tort of negligence were made out. The claimant made an informed choice to have the surgery, and the injury was not 'intimately linked' with the duty to warn.” [26] per Simon LJ.
4.7. The implications of the claimant’s argument would be far-reaching: if patients could not give informed consent to negligently performed operation then every negligently performed operation would give rise to a Chester v Afshar type of claim irrespective of whether the negligent performance caused subsequent injury.
4.8. Another attempt to deploy Chester v Afshar failed in Shaw v Kovac and University Hospitals of Leicester NHS Trust [2017] EWCA Civ 1028. [Case 36]. This is one of a number of cases arising out of the death of Mr Shaw that have occupied the court’s time and attention. The Court of Appeal held that 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
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loss of autonomy but the claim in this particular case for £50,000 as a separate head of loss had no basis in law.
4.9. In Giles v Chambers [2017] EWHC 1661 (QB) HHJ Wood QC, sitting in the High Court, found a cosmetic surgeon liable for a negligent failure to give adequate advice to a patient who underwent liposuction to remove fat from her legs. She maintained that she had wanted a feminized look with a thigh gap, but she had ended up with “skeletonized” legs after what was described as high definition liposuction. A striking six litres of fat had been removed. The Court rejected the defendant’s case that the claimant had opted for the high definition procedure noting that there was no contemporaneous record to support that defence.
4.10. Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62 [Case 15]. The claimant successfully appealed judgment against him on causation. He was 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 the claimant’s injuries would not have been avoided.
4.11. The Court of Appeal held that the proper test was that laid down in Montgomery. What advice ought to have been given and what decision would the claimant’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 the claimant’s injuries would have been avoided. As Simon LJ held:
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“… the Judge followed the Bolam approach of basing his judgment on whether Mr Hollingworth acted in accordance with a responsible body of expert medical opinion. It is now clear from Montgomery that this is no longer the correct approach.”
4.12. In many clinical negligence cases the claimant has to establish what would or should have happened in the absence of an alleged or admitted breach of duty. Sometimes there is evidence of what a particular clinician would have done and the claimant contends that such actions would themselves have been negligent. Here the Court of Appeal has accepted that but for the admitted negligence certain advice about the risks and benefits of different treatment/management options should have been given. The “what would have happened next” test is then applied to what decisions the patient would have taken. This is a quite radical departure from an approach to causation that focuses entirely on whether decision-making by clinicians would have been Bolam negligent.
4.13. Take the example of a post-operative patient with signs of possible bowel perforation. Suppose it was not negligent to have caused the perforation or to have failed to identify and repair it intra-operatively. However there was a failure carry out observations post-operatively which would have picked up the possibility of a perforation earlier than was the case. Typically you might have one expert saying that with that knowledge the patient would have been returned to theatre within 12 hours, and another saying that these signs can resolve by themselves and that it would be reasonable to wait a further 48 hours before operating if symptoms and signs dictated it at that time. Is it now more relevant to ask what advice would have been given to the patient about the risks and benefits of returning to theatre within 12 hours, and what decision the patient would have taken once given that advice?
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4.14. Gallardo v Imperial College Healthcare NHS Trust [2017] EWHC 3147 (QB) provides an example of the need to give advice after treatment. C underwent surgery to remove what was a malignant gastrointestinal tumour. He was not informed that it was malignant and that he ought to be regularly monitored and undergo CT scans in the future. He became a private patient of the surgeon shortly after the operation. The surgeon had subsequently died and his estate was not sued. Ct held that failure to advise had been negligent and that the duty was connected with the surgery/treatment and did not end when C became a private patient. Causation established and damages were awarded.
4.15. Diamond v Royal Devon and Exeter NH Foundation Trust [2017] EWHC 1495 (QB) [Case 32] demonstrates (yet again) the difficulties on causation that many claimants face in consent cases. The Judge found that although the defendant had negligently failed to advise that a mesh repair was likely to be needed if suture repair of an abdominal hernia failed, the claimant would have elected to proceed with the surgery notwithstanding her protestations in the litigation that she would not have done so because of her concerns about mesh repair.
5. Causation 5.1. The Defendant in Palmer v Portsmouth Hospitals NHS Trust [2017] EWHC 2460 (QB) made an interesting submission about the correct interpretation and application of Bolitho in relation to causation. Sir Robert Nelson rejected it and provided a neat clarification which will be helpful to practitioners.
5.2. This was a cerebral palsy case in which the breach of duty was, ultimately, admitted. Midwives had failed to call of obstetric attendance for an assisted
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delivery before 0850. Assisted delivery was achieved at 0900. The baby was born with neurological injuries. The question for the court was when delivery would have been achieved but for the negligence in failing to summon obstetric attendance earlier. It seems to have been agreed that delivery only 2 minutes earlier would have avoided the Claimant's injuries.
5.3. The Judge recorded at [50] that Defendant's Counsel: "contended that the Claimant must not only show what would in fact have happened but that the Defendant's employees were medically negligent in failing to ensure that it did."
5.4. As noted, the Judge rejected that analysis. He noted that in Bolitho Lord Browne-Wilkinson said that there were two questions for the trial judge on the issue of causation. Firstly, what the doctor would have done or authorised to be done if she had attended the patient and secondly if she would not have provided the treatment that would have avoided the claimant’s injuries, would that have been negligent. The Bolam test, he said, had no relevance to the first of those questions but was central to the second (P240 B-G).
5.5. The Claimant's Counsel in Palmer submitted that the second Bolitho question only arises where the factual situation (i.e. what would have happened) involves some potential further negligence. That, she submitted did not arise in the present case due to the evidence given.
5.6. The Judge rejected the Defendant's interpretation of Bolitho
[77] "It is only necessary to ask whether there is continuing or a secondary act of negligence, i.e. the second Bolitho question, if that has to be proved by the Claimant for the claim to succeed. Thus, in Bolitho the doctor was negligently late, but even if
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she had arrived on time she would not have intubated. Thus the question arose as to whether it would have been negligent not to have intubated. If however she would, had she arrived, successfully intubated the patient, the second Bolitho question would not have arisen, as it did not on the facts of Gouldsmith v Mid Staffordshire General Hospital NHS Trust [2007] EWCA Civ 397.
[78] "Lord Browne-Wilkinson in Bolitho makes it clear that the Bolam test has no relevance to the factual issue of what would have happened, and that alone may be determinative of the issue of causation (240 B-C)
5.7. [79] "Here, the second Bolam question does not in my judgment arise. The failure of the midwife to call for medical assistance soon enough was a continuing act of negligence and the only causation questions which arise are the factual questions in relation to whether the second on call registrar, if he had been called, would, on the balance of probabilities, have arrived in time to deliver Jade before 20:58"
5.8. Therefore the claimant did not have to prove that it would have been negligent not to have delivered before 20:58 if that was what would, as a matter of fact, have occurred and if that would have avoided the claimant’s injuries.
5.9. This sometimes arises in cases where the issue is when, but for negligence, a Caesarean section would have been performed, or when assisted delivery would have been effected. The first question is how long it would in fact have taken following a non-negligent decision to proceed, not “beyond when would it have been negligent not to have performed a section?”. That first question is not a Bolam question. It is not a question of how long a non- negligent "decision to incision" period would have been, it is a question of how long it would actually have taken from decision to incision. So, if the
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claimant can prove that it would in fact have taken 15 minutes from the decision to deliver, that is the answer to the first Bolitho question even if it would have been non-negligent to have taken 30 minutes. If that finding is made and it supports the claimant’s case on causation, there is no need to consider the second question.
5.10. The importance therefore of evidence relevant to question of fact is obvious. The defendant has the advantage perhaps of being able to call witnesses who would have been directly involved. The claimant might want to seek disclosure of evidence of times from decision to delivery at the relevant trust at the relevant time, if available. How long did it take to deliver, once the actual decision to proceed to, say a Caesarean section, was made? Is there any reason why it would have taken longer/shorter had an earlier decision been made?
5.11. In Meadows v Khan [2017] EWHC 2990 (QB), Yip J held that the defendant was liable in a wrongful birth claim for compensation in relation to all the disabling conditions of the child. The child had haemophilia and autism. The claimant mother had sought advice in relation to the chance of the child being born with haemophilia only. The defendant argued that losses due to autism were outside the scope of the doctor’s duty of care. The Court rejected that contention.
6. Evidence 6.1. Experts 6.1.1. Watts v Sec of State [2016] EWHC 2835 (QB) [Case 4]. The Defendant made a series of trenchant criticisms of the Claimant’s obstetric expert in a shoulder dystocia claim. The Judge noted,
“These are serious criticisms, but I regret to say that they are justified.
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I found Ms Chaliha to be a distinctly unimpressive witness, with a serious lack of knowledge of clinical practice in 1993 and a worrying lack of appreciation of the importance of basing her opinions by the standards pertaining at that time.”
The expert had relied on a single, slightly obscure textbook as the basis for an assertion that a particular practice had been standard at the material time.
6.1.2. Harris v Johnston [2016] EWHC 3193 QB [Case 8]. An expert’s opinion concerning spinal surgery was rejected because of a basic misunderstanding about the surgical instrument used.
6.1.3. EXP v Barker [2017] EWCA Civ 63 [Case 14]. In a striking case the defendant neuroradiologist had relied at trial on expert evidence from a Dr Molyneux, also a neuroradiologist. Dr Molyneux was an eminent expert but as the Court of Appeal observed:
“there was in fact a close connection between the Appellant and his principal expert witness. That was not declared by the Appellant or by Dr Molyneux. Indeed, the judge clearly concluded that some steps had been taken which might have had the effect of avoiding the emergence of the connection.”
Nor was it declared by Dr Molyneux. The close connection was that the defendant had trained directly under Dr Molyneux as a Registrar and Senior Registrar for some two and half years. The Defendant had in fact suggested Dr Molyneux as a suitable expert. The trial judge had said,
“I must bear powerfully in mind, when I assess the weight that I should give to the evidence, the reservations that I retain about Dr Molyneux's independence and objectivity in this case."
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Irwin LJ on appeal upheld the trial judge’s rejection of Dr Molyneux’s opinion evidence (there were other issues on the evidence aside from the question of his independence).
6.1.4. There is a delicious irony in that the expert so roundly criticised in Harris was relied upon with confidence by the court in EXP, whereas the expert relied upon in Watts was then criticized by the court in the next case: Haywood v University Hospitals of North Midlands NHS Trust [2017] EWHC 335 (QB) [Case 16]. In this case he had erred by neglecting to refer to significant recorded observations when giving his opinion.
6.1.5. JRM v King's College Hospital Foundation Trust [2017] EWHC 1913 (QB) [Case 38]. JRM v King's College Hospital Foundation Trust [2017] EWHC 1913 (QB) is a decision of Gilbart J.
6.1.6. The claimant was one of twins (his brother sadly died at 2 weeks) and was delivered by forceps but suffered an acute spinal cord injury. It was agreed, by the expert paediatric neurologists and, by day 4 of the trial, by the defendant, that the injury was caused either by excessive force during delivery or by a blood clot or placental emboli, an exceedingly rare occurrence.
6.1.7. The obstetrician's evidence was that the delivery was uneventful, but contemporaneous records noted extensive bruising and the delivery had been described as "difficult".
6.1.8. Gilbart J found that the obstetrician had fallen "far below the standard of care expected of him" and that the trauma caused by his use of forceps
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to deliver claimant C when he was in the occipito lateral position had caused the spinal cord injury. The Judge was unimpressed by the defendant’s maintenance of a defence that was at odds with the contemporaneous records. Notes made by, amongst others, neonatology staff had recorded extensive bruising. The Trust did not call staff who had been present and who may have been able to give relevant evidence.
6.1.9. He expressly said he had no criticism of counsel in the case but “…in the light of the terms of the NICU records, notes and reports, and the other documents to which I have referred, I am very critical of whoever it was in the Defendant Trust or in the NHSLA who considered that this claim should be resisted on the basis (among others) that the delivery was a straightforward and unremarkable forceps delivery. It must have been known for a long time that Dr Mahfouz’' evidence about the delivery was, to say the least, difficult to reconcile with the internal notes and records, where the obvious injuries to the baby had excited so much concern and comment by those treating him. It was an obvious lacuna in the Defendant's case that, in a claim where so much turned on the evidence that this child was injured at round the time of his birth, no midwife or nurse present at the birth was called, nor, perhaps more concerningly, none of the clinicians or nursing staff who dealt with the consequences of the labour when C was admitted to NICU.”
6.1.10. The Judge also criticised the defendant for riding two (possibly three) horses when it came to its defence on causation. It called experts from different disciplines who put forward differing accounts as to causation of the claimant’s injuries. Whilst each may have provided a defence to the claim, they were not consistent with each other.
“While I understand a Defendant arguing that the Claimant had not proved causation, that is a different matter from a Defendant asserting different
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mechanisms on how the injury was caused, and calling expert witnesses who are not in agreement with each other. The various experts are entitled to hold their expert opinions, but it is for the Defendant to determine which case it chose to argue at trial.”
6.1.11. Gilbart J criticized the Defendant Trust/NHSLA for relying on a number of experts whose evidence was inconsistent. In effect the defendant had sought to rely on three differing opinions as to the underlying cause of the claimant’s spinal cord injury. The Judge observed that “The various experts are entitled to hold their expert opinions, but it is for the Defendant to determine which case it chose to argue at trial.” [84]
6.2. Absent Witnesses 6.2.1. Defendants might take particular note of HHJ Freedman’s approach to the absence of a witness who professed to have no independent recollection of events in Welds v Yorkshire Ambulance Service NHS Trust and one other [2016] EWHC 3325 (QB) [Case 9]. HHJ Freedman declined to draw adverse inferences from the absence of a midwifery witness in a cerebral palsy claim. The case concerned a birth in 2000. Two midwives involved in the care of the claimant’s mother had been contacted. One had reported that she was frail with Parkinson’s disease. The other had told the defendant’s solicitors that she had no independent recollection of events. The Judge held that the defendant was under no obligation to call those witnesses.
6.3. Medical Records
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6.3.1. Goss J took a strong line in relation to “unsatisfactory” medical records some of which had been destroyed since the commencement of proceedings, in RE and others v Calderdale & Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB) [Case 24]. He held: “Medical records are neither self-proving nor automatically admissible: see Buxton LJ's remarks in Denton Hall Legal Services v. Fifield [2006] Lloyd's Rep Med 251. The Claimants expressly put the Defendant on notice that they must prove any medical records on which they relied. In fact, the only witnesses providing evidence of the truth of their respective contributions to the medical records are Midwives Garvey and Taylor and Dr Emovon.
“The Claimants contend that where there are ambiguities or uncertainties on the face of the documents, the court ought to resolve them in the Claimants' favour. Given that the Defendant failed in their duty to maintain the records, where, by reason of the quality of the relevant record now available compared to what would have been expected to have been clearer on the originals, I consider that it is appropriate to proceed on the rebuttable assumption that my reading of the entries should be the most favourable to the Claimants that is reasonable on the face of the available documents.”
6.3.2. In H v Southend Hospital NHS Trust (unreported and no neutral citation number available – summary on Lawtel [Case 22], May J was faced with a home birth case in which there were records of fetal heart rate up to 0615, none between 0615 and 0630, an absent heart beat noted at 0635 and then episiotomy and delivery of the claimant in a poor condition. The Judge held that notwithstanding the absence of contemporaneous records of fetal heart rate for those important 15 minutes, the midwives had continued to monitor FHR.
6.3.3. In another obstetric case, JRM v King's College Hospital Foundation Trust [2017] EWHC 1913 (QB) [Case 38], Gilbart J was strongly critical of the defendant for pursuing a defence based on the witness evidence of the
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obstetrician that the forceps delivery had been straightforward and uneventful, when that was “to say the least, difficult to reconcile with the internal notes and records.”
6.4. Other 6.4.1. In OX v Derby Teaching Hospitals NHS Foundation Trust (On Lawtel only, no neutral citation provided) [Case 1] the court heard and relied on data from the local trust showing the times between arrival in theatre and delivery to establish the likely time in the particular case, absent the negligence. Such evidence, in conjunction with the circumstances of the particular case, might be more reliable than a rule of thumb of 30 minutes that is often used by expert witnesses.
7. Secondary Victims 7.1. There are wars and there are battles. Unusually there have been a couple of successful battles for claimants in the war on secondary victim claims.
7.2. In RE and others v Calderdale & Huddersfield NHS Foundation Trust [2017] EWHC 824 (QB) [Case 24] Goss J held that a mother was a primary victim when the defendant’s negligence occurred when the baby was in the birth canal. The grandmother present at birth was a secondary victim with a valid claim.
“…she is clearly in the closest possible personal relationship to RE, whose condition on birth was a sudden and unexpected event and not a process of gradual realisation.
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There was no conditioning for what came nor was there any warning of a materialising risk that RE would be born lifeless and require a sustained period of resuscitation. I am satisfied that, for the Second Claimant, this was an outwardly shocking experience that was exceptional in nature and horrifying as judged by objective standards and by reference to persons of ordinary susceptibility. It was not an event of the kind to be expected as 'part and parcel' of the demands and experience of childbirth.” [47]
The fact that the event was in a hospital setting did not defeat the claim. However this was a case where there were no incidents prior to the event which might have been regarded as “conditioning” the secondary victim.
7.3. In Werb v Solent NHS Trust (decision on Lawtel only, reported on 26.7.17 but case decided on 15.3.17) [Case 38], Mater Roberts refused to strike out a secondary victim claim by a father of a 25 year old boy who had committed suicide on the day after being given home leave. There was an arguable case of close proximity to the event because the “event” was the suicide not the earlier negligence. This is a very important issue in clinical negligence case where often there is no temporal proximity between a negligent omission and the fatal or catastrophic event which has triggered the observer’s psychiatric injury. Taylor v Somerset Health Authority [1993] PIQR P262 supports the contention that there should be a close temporal proximity between the negligence and the horrific event. Auld LJ said that an essential component is “an external, traumatic, event caused by the defendant’s breach of duty which immediately causes some person injury or death.”
7.4. It is sometimes argued that Taylor v A Novo (UK) Ltd [2013] EWCA Civ 194 is further support for that proposition, but in that case there had been an obvious event (the accident at work) prior to the collapse and death. The negligence had not been “silent”.
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7.5. On the other hand obiter remarks by Peter Gibson LJ in Sion v Hampstead Health Authority [1994] 5 Med LR 170, suggest that proximity to the causative negligence is not required: “I see no reason in logic why a breach of duty causing an incident involving no violence or suddenness, such as where the wrong medicine is negligently given to a hospital patient, could not lead to a claim for damages for nervous shock, for example where the negligence has fatal results and a visiting close relative, wholly unprepared for what has occurred, finds the body and thereby sustains a sudden and unexpected shock to the nervous system.”
7.6. In Liverpool Women’s Hospital NHS Foundation Trust v Ronayne [2015] EWCA Civ 588 the Court of Appeal overturned the judgment for the claimant but did not disturb the finding of the trial judge that: “… the event for this purpose is not the stitch on the 8th July 2008, but the injury flowing from it, as and when it became actionable harm, and that was when it became apparent on the 17th July 2008 that the Claimant’s wife had or may have suffered the development of life-threatening infection, just as in Walters, the event was not the negligent delay in diagnosis and the institution of treatment, whenever that had occurred, but rather the observation by the secondary victim of the injury that flowed from it, namely the epileptic seizure and also its aftermath.”
8. Quantum 8.1. Two Houses 8.1.1. Manna v Central Manchester University Hospitals NHS Foundation Trust [2017] EWCA (Civ) 12 [Case 11]. The trial judge awarded compensation for two adapted homes: the second was to allow the claimant to visit his father, his parents having separated. The Court of Appeal held that, whilst generous, the award was, on the facts, reasonable. The multiplier used for the second house had been the claimant’s life multiplier. This was obviously illogical (after his father’s death, the claimant would have
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no need for an adapted second home) but the Court of Appeal did not disturb that finding because the defendant had not argued for a different multiplier at trial.
8.2. No House 8.2.1. JR v Sheffield Teaching Hospitals NHS Foundation Trust [2017] EWHC 1245 (QB) [Case 30] was the first reported High Court decision on the effect of a negative discount rate on a Roberts v Johnstone award. William Davis J held that since there was no ability to obtain a positive return on a capital fund based on risk-free investment, there was no need to compensate a claimant for loss of that return consequent on putting his or her funds into purchasing property. There was no loss. The court noted that the only evidence it had as to the return on a risk free investment was the discount rate itself and no evidence had been put before it to support alternative solutions such as the cost of a mortgage or giving a reversionary interest in property to the defendant. This case was compromised pending a hearing in the Court of Appeal. Counsel for the Claimant/Appellant has stated publicly that as part of the settlement the defendant Trust agreed to pay the full capital cost of alternative accommodation. Beware: this is not a binding decision and it arguably defies logic. The discount rate may well change in the first half of 2018 and if it is a positive rate then arguments raised on appeal in JR (but not determined by the court) that Roberts v Johnstone is no longer valid, would no longer hold water.
8.3. Loss of Love and Affection
8.3.1. In a decision that I cannot find on Bailii but is reported on Lawtel, Sir Robert Francis QC, sitting as a Deputy High Court Judge, considered the
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defendant’s submission that there was no valid claim in a Fatal Accidents Act case for general damages for the loss of special love and affection. The case is Dyson v Heart of England NHS Foundation Trust [2017] EWHC 1910 (QB). I have always referred to this head of claim as a Regan v Williamson award. It tends to be a low award, usually not more than about £3,000 for an adult and £5,000 for a child to compensate for the unquantifiable loss of love and affection of the deceased. It is separate from the statutory bereavement award. It has come under attack and in cases such as Mosson v Spousal the court has been persuaded that the award is not valid.
8.3.2. Sir Robert Francis reviewed the authorities and found that the award is a valid one and he would have awarded £3,000 in the particular case. I am not aware of any recent appellate authority on this issue.
8.4. Bereavement Damages 8.4.1. In Smith v Lancashire Teaching Hospitals NHS Trust [2017] EWCA Civ 1916, the Court of Appeal held that the Fatal Accidents Act 1976 s.1A was incompatible with ECHR art.14, read in conjunction with art.8, to the extent that it excluded cohabitees of over two years from its scheme for bereavement damages.
8.4.2. In the context of bereavement damages under s.1A, the situation of someone like the appellant, who was in a long-term relationship in every respect equal to a marriage in terms of love, loyalty and commitment, was sufficiently analogous to that of a surviving spouse or civil partner to require discrimination to be justified in order to avoid infringement of art.14 in conjunction with art.8. It was plainly material that Parliament had treated cohabitees of over two years as being in a stable and long-
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term relationship comparable to that of spouses and civil partners for the purposes of dependency damages, and had not provided any justification for the different treatment of such cohabitees under s.1A
8.5. Cost of Surrogacy Arrangements 8.5.1. In XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB) Sir Robert Nelson allowed an award for the cost of surrogacy. The claimant had suffered loss of fertility due to negligent delay in diagnosing cervical cancer. C wished to use commercial surrogacy arrangements in US but the Court disallowed that claim since such arrangements are illegal in UK and it would be contrary to public policy to award damages to a claimant to enter into such an arrangement. However, non-commercial surrogacy arrangements are permissible in this country and the Court awarded the claimant the costs that would be involved in such arrangements. The claim was for the costs of surrogacy using the claimant’s own eggs which had been harvested prior to the cancer treatment). There was a valid claim in the sum of £74,000 which would cover such arrangements for two children. The prospects of a successful outcome from such an arrangement were sufficiently high to justify the claim. That suggests that the court will always look at the prospects of success for infertility treatment before making an award.
8.5.2. Interestingly the court held that there would not have been a valid claim for the costs of surrogacy using donor eggs, because the loss suffered by the claimant was the ability to have "her baby" rather than "a baby". The Court has given permission to appeal on the refusal to award damages for a commercial surrogacy arrangement and the “own eggs” point too.
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8.6. Damages for Peace of Mind 8.6.1. And finally …. Andrews J allowed an appeal against the striking out of a contractual claim by the claimant against former solicitors in Shaw v Leigh Day (a firm) [2017] EWHC 825 (QB) [Case 23]. Leigh Day had represented the claimant at an Inquest into the death of her father (see also Case 36). The Judge ruled that it was arguable that the court could award damages for the loss of peace of mind arising out of breach of contract for representation at an Inquest. We have now reached a position where there is only exceptional public funding for bereaved families at Inquests, whereas taxpayers routinely pay for representation for NHS Trusts; where recovering representation costs through a subsequent civil claim is problematic and uncertain; where many lawyers act, in effect, pro bono at Inquests, but where they can arguably be sued for failing to give their clients peace of mind.
© Nigel Poole QC Kings Chambers January 2018
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