Monday, 10 March 2014

What A Pain

When an initially minor physical injury leads to large claim because of a psychiatric disorder, scepticism can cloud assessment of the issues which fall to be determined. The recent first instance decision in Malvicini--Ealing Primary Care Trust is a useful reminder of the sorts of issues which arise and a demonstration of how the courts might deal them.

The Claimant, a nurse, suffered an accident at work. Judgment had been entered for damages to be assessed and the trial of damages came before Robert Francis QC sitting as a Deputy High Court Judge. He noted that  the Claimant "sustained a soft tissue injury to the left upper arm and scapular region from which she has developed a seriously disabling condition largely mediated by psychological factors. She accepts that the physical effects of the injury have largely, if not entirely, dissipated, but the remaining psychological effects remain with her and are seriously disabling. She claims that her disability is permanent. The gravity of this is shown by her claim for lifetime loss of earnings and a substantial claim for future care. "

In 2013 one expert "observed her walk with a "tottering", spastic-like gait, and an ability to walk five steps without crutches before leaning against a wall. He noted a variety of other movements which led him to suggest that there was evidence of a degree of calculation and conscious exaggeration. This included sudden jerking of limb, groaning, a claim of difficulty in rotating her neck whereas later she succeeded in doing so to 65 degrees, and a demonstration of foot drop which was contradicted by the way she walked ".

The orthopaedic experts agreed to describe her condition as "bizarre".

The psychiatric experts agreed that "she fulfilled the diagnostic criteria for persistent somatoform disorder according to ICD-10".

The Defendant's case was noted to raise the following issues:

"i) That there are indications of malingering and exaggeration, which are entirely or partially conscious. In other words the defendant suggests that the claimant has been dishonest in respect of the extent of her condition;
ii) That if the disability is genuine and psychological then it demonstrates such vulnerability to an abnormal reaction to a minor incident that it was bound to occur in any event. Such an event occurred in June 2010.

In any event there is a good prospect of the claimant's condition improving significantly, following the end of the litigation."

Malingering
The Defendant accepted that malingering involved dishonesty. Its expert had said there were elements of malingering. The Judge held:

  1. "As was accepted by Miss Ayling to accuse a person of malingering is to accuse them of dishonesty. While there is only one standard of proof in a claim such as this, the balance of probabilities, clear evidence is required to support an allegation of that nature. The principle was put clearly by Lord Nicholls of Birkenhead in Re H and others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586

  2. "The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
    Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established."
  3. I have no hesitation in concluding on the evidence I have heard and have summarised above that the claimant has not at any material time been malingering in the sense of deliberately pretending to be more disabled than she believes she is, or in the sense of deliberately exaggerating her symptoms, beyond an occasional tendency to over-state symptoms a little through anxiety to persuade experts of the truth of her very real suffering. She is genuinely suffering from a condition with a diagnosis as variously described in the evidence I considered in the preceding section of this judgment. There is no direct evidence which demonstrates malingering, and a number of factors satisfy me that she is not a malingerer." 
This is a familiar finding in such cases. I had a very similar case last year (which the Defendant is appealing and which, therefore I will not comment upon). 

Defendants need to be aware that good evidence is required to establish malingering and deliberate exaggeration for the purpose of gain which will undermine the whole or a very substantial part of the claim.

Vulnerability
The Defendant contended that the extreme response to a minor initial injury showed that the Claimant was "exquisitely vulnerable"to a pain disorder and had an "all encompassing need to be dependent and unwell".  She would have suffered a similar response to any one of a number of minor injuries which she might have befallen even in the absence of the index accident, for example a minor injury she did in fact suffer after the accident. The Judge held that 
  1. "I find that the claimant would not, on the balance of probability, have sustained an injury from an event for which the defendant was not tortiously liable. Indeed I find that the particular circumstances that surrounded the index accident, including the immediate perception of the claimant that it should not have happened, were likely to have been significant. We know that the claimant had sustained relatively routine injuries and illnesses in the past, unrelated to her work, and had not suffered this sort of psychological reaction."
However, he did find that the Claimant was vulnerable to some extent and taking into account all the circumstances her damages should be reduced by 10% to reflect that vulnerability.

Defendants might wish to consider the particular circumstances of the accident and why it gave rise to the extreme reaction. How did they compare with previous or subsequent incidents.

Prognosis
The Judge was influenced by the expert evidence of the pain management experts who were gloomy as to the prospects of recovery. As such he did not accept the more optimistic view of the Defendant's psychiatrist.
In my experience of such cases there are often difficulties in presenting a coherent and consistent set of expert reports. Orthopaedic surgeons, for example, may be sceptical about continuing symptoms, psychiatrists may differ about diagnosis and pain management experts might take a third view!

This initially minor physical injury resulted in an award of about £690,000 (after the 10% reduction).

Thanks to Lee Jenkins for alerting me to this case









4 comments:

  1. William and Diane Powell against the United Kingdom

    Application no. 45305/99

    Third Section - sitting on 4th May 2000

    Below is the last paragraph of page 15 of 26 of the European Court of Human Rights' decision that the Powells’ Application was inadmissible.

    "Whilst it is arguable that doctors had a duty not to falsify medical records under the common law (Sir Donaldson MR's "duty of candour"), before Powell v Boladz there was no binding decision of the courts as to the existence of such a duty. As the law stands now, however, doctors have no duty to give parents of a child who died as a result of their negligence a truthful account of the circumstances of the death, nor even to refrain from deliberately falsifying records."

    In response to the Court of Appeal judgment in July 1997 the following was stated by Dr Brian Goss in GP Magazine on the 11/7/97:

    "GPs could now put a gloss on the cause of death without fear of litigation."

    You can access the full judgment at:

    https://sites.google.com/site/robbieslawtrust00/echr-s-ruling-in-the-case-of-robbie-powell

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  2. Thank you for sharing this article about a claim for psychiatric damage following a minor act of medical negligence. It interests me as my claim for psychiatric damage failed but my wife's would have been successfully compensated had she accepted the compensation without appealing against a High Court ruling that the doctors responsible for our son's death didn’t owe us a post death duty of care, in civil law, to tell us the truth about the negligent circumstances of the death or to refrain from falsifying the child’s medical records (Robbie’s case highlighted the absence of a post death Duty of Candour).

    The psychiatrist found that my wife had an abnormal reaction to the events leading to Robbie's negligent death and by the death itself. It was therefore accepted that my wife had a claim for psychiatric damage. However, the psychiatrist claimed I hadn't had an abnormal reaction to the events leading to the death or by actually witnessing Robbie taking his last conscious breath. The psychiatrist found that my diagnosed PTSD had been caused by my belief that there had been a post death cover up by the doctors. I was the sole bread winner so my claim would have included a substantial claim for loss of earnings. I haven't worked since Robbie's death almost 24 years ago.

    My wife was forced by the rules of public funding to accept £80,000 compensation when it was paid into court in 1996 with an admission of liability by the health authority. The money was secured by the court pending the outcome of our appeal against the High Court ruling that the doctors didn't have to tell us the truth about Robbie's negligent death. The appeal failed and the £80,000 was totally absorbed in legal costs with an order for costs against me for the deficit.

    If the psychiatrist had found that I had suffered an abnormal reaction to Robbie's death, which was exacerbated by the post death cover up, my claim would have been partly successful.

    Although I watched Robbie take his last conscious breath and was suicidal, as I drove home on my own that tragic night, these relevant facts were not mentioned in the psychiatrist’s report.

    So the nurse who had psychiatric damage after suffering a minor medical negligence incident gets £690,000 compensation whilst a bereaved father who lost his child as a consequence of medical negligence, watched his child die 30 minutes after being refused an ambulance, suffered PTSD, hasn't worked for 24 years and still has psychiatric problems gets ZERO!

    There was a case in 1998 in which a junior doctor developed a phobia after accidentally pricking herself with a needle. The doctor received almost half a million pounds compensation. You can access more information about that particular case at:

    http://news.bbc.co.uk/1/hi/health/190141.stm

    Any comments would be very much appreciated.

    ReplyDelete
  3. Interesting article but out of curiosity, did the Defendant appealed?

    ReplyDelete
    Replies
    1. No, so far as I am aware. Thanks for your interest.

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