Monday, 3 February 2014

Losing Streak

Recently, reading a newly reported trial judgment in a clinical negligence case, it crossed my mind that it had been a while since I had read of a decision in favour of a claimant. I did a quick search and the result was striking.

Fourteen judgments in High Court clinical negligence liability trials have been reported on Lawtel in the past 12 months. In thirteen of them, the claim failed. In one the claimant recovered only minor damages having lost on the key causation issue.

Of course the next fourteen High Court trials might all result in success for the claimants. Further, I cannot claim that this list is comprehensive: not all High Court trial judgments necessarily appear on Lawtel and these are High Court cases only (many clinical  negligence claims are heard in the County Court). All I did was use the search term "clinical negligence" so I may have missed some trials which were not brought up by that search. Some of these fourteen might yet be successfully appealed. Nevertheless, with all those caveats, it is quite a losing streak. I thought it was of interest and might give pause for thought for those who think the courts help foster a compensation culture amongst NHS patients.

What does this losing streak tell us? That the NHS, MDU and MPS have been astute in judging which cases to settle and which to contest at trial? That our High Court Judges are sceptical about clinical negligence claims? That claimants and their representatives are overly optimistic about their chances at trial? I do not have the answer. Perhaps it is just a statistical anomaly.

Here (most recent case listed first) are links to case reports where available, alternatively case summaries on Lawtel, together with a brief comment on each.

1) C-v-North Cumbria University Hospitals NHS Trust [2014] EWHC 61 (QB)

Midwife administered second dose of Prostin to induce labour. Placental abruption resulted. Mother died. Child suffered permanent cerebral injury. The Judge found that the midwife had

"acted within the bounds of reasonable judgment. I of course accept that she might, equally reasonably, have adopted a very cautious approach and had she done so this tragedy would not have occurred. But this reflects the fact that there are a range of possible reasonable actions that might have been taken in this case and [the midwife's] decision was within that range."

2) Jones-v-Portsmouth [2014] EWHC 42 (QB) 

Claimant failed to prove negligent delay in proceedeing to surgery when she had necrotising myositis; failed to prove that remedial surgery was inadequate and failed to prove that she had been given negligent advice as to the available reconstruction options leading to an unnecessary amputation.

3) Sardar-v-NHS Commissioning Board  [2014] EWHC 38 (QB)

Group 4 Erb's palsy suffered after shoulder dystocia noted at birth. Court found that injured shoulder was posterior at birth and was injured by forces of propulsion not traction,

4) Chappell-v-Newcastle-upon-Tyne  [2013] EWHC 4023 (QB)

Severe brain damage to child was not attributable to any negligent management of mother's labour or delivery. In any event the claim on causation would probably have failed since the damage resulted from meningitis caused by maternal infection during labour and not hypoxia.

5) Shah-v-North West London Hospitals NHS Trust [2013] EWHC 4088 (QB)

 GP was not negligent in failing to palpate the peripheral pulses of the legs of the deceased who had collapsed having recently had a child.

6) Nyang-v-G4S Care [2013] EWHC 3946 (QB)

Negligent failure to carry out an adequate mental health assessment of detainee at an immigration removal centre. Claimant injured spine running into a wall. Negligence not causative since it was found that his act of self-harm would have happened in any event.

7) Weeks-v-Wright 14.11.2013, Judge Forster (QB)

Rectal damage caused by use of monopolar diathermy was due to inadvertent heat spread from the instrument, a recognised complication, rather than negligent direct application of the instrument to the rectal wall.

8) Appleton-v-Medway 7.11.2013, Judge Hampton (QB)

NHS Trust in breach of duty of care in delaying treatment for foot infection but below knee amputation was due to diabetes and not infection and so delay had not caused injury.

9) Orwell-v-Salford Royal NHS Foundation Trust [2013] EWHC  3245 (QB)

NHS Trust in breach of duty in failing timeously to diagnose and treat compartment syndrome but delay not causative of injury since patient's leg muscles were already damaged by the time treatment ought to have been carried out.

10) Beech-v-Timney [2013] EWHC 2345 (QB)

GP's note of blood pressure was accurate and GP not liable.

11) Ecclestone-v-Medway [2013] EWHC 790 QB

Consultant Orthopaedic Surgeon not negligent when operating on knee by using percutaneous rather than arthroscopic technique. Both were recognised and acceptable surgical techniques logically supported by a
responsible body of relevant opinion.

12) Meiklejohn-v-St George's Healthcare NHS Trust [2013] EWHC 409 (QB)

No negligence in failing to suspect and therefore treat patient for rare genetic disorder.

13) Oliver-v-Williams [2013] EWHC 600 (QB) 

GP negligent in failing to tell a patient that he was urgently referring her for investigation. As a result ovarian cancer and surgery for it were delayed by five and a half months. However claimant failed to establish that the breach had caused a material or measurable difference to her life expectancy. Perhaps it is unfair to include this as a losing case for the claimant. Damages were recovered for some injury, but less than £10,000 and the key issue of loss of life expectancy was lost.

14) Dove-v-Jarvis [2013] Med LR 284 

Orthopaedic surgeon not negligent in performing hip replacement. An assurance that the surgery would be "well done" was not a material representation that the surgery would be successful and did not indicate that the surgeon was assuming a higher than usual standard of care.

1 comment:

  1. Nigel, interesting. I suspect a number of factors at play. As a Claimant solicitor (with a background in genetics) I take the view that before you take a case to trial you objectively assess the merits; preferably beofre you Issue a CF. I know people say they do, but I have my doubts. The desire to push forward because there is 'some' positive evidence sometimes blinds people to an overall assessment. A winning case is almost the only way a claimant solicitor gets paid, so can impact any merits assessment (at whatever stage of the investigation/pursuit of a claim). Some will still lose, but not 93%. Dr Darren Conway PhD