Friday, 27 February 2015

Even Steven (Losing Streak Revisited)

It seems that claimants have fared much better at clinical negligence trials on liability in the past 12 months than during the previous year.

A year ago I wrote a post called Losing Streak in which I pointed out that an unscientific survey of Lawtel reports of High Court liability judgments in clinical negligence cases showed that 13 of 14 were lost by the claimant.

What of the last 12 months?

As I said when writing Losing Streak, it is worth noting that this is not at all a comprehensive survey. Indeed I think one of my own cases ought to be on the losing list, but is not reported on Lawtel. So this is a sample only. It does not include county court judgments, some of which can be for considerable sums, or in quite complex cases. Also, some of these decisions may be under appeal.With all those caveats, here are the results. All are on Lawtel. I have provided links to BAILII where I can:

Claimants 11

Claimants succeeded on the issue of liability in the following 11 disputed cases:

Cutting-v-Islam [2014] EWHC 720 QB
Negligence by GP in cancer case

Pringle-v-Nestor Prime Care Services [2013] EWHC 1308 QB
Negligent advice from out of hours clinical triage telephone service regarding two year old with meningococcal septicaemia. Child suffered subsequent amputations

Atkinson-v-South Tees Hospitals NHS Foundation Trust  [2014] EWHC 1590 QB
Surgeon divided ulnar digital nerve during operation and had been negligent in failing to recognise that and repair

Coakley-v-Rosie [2014] EWHC 1790 QB
GP negliegntly failed to suspect, diagnose or treat bacterial meningitis

Gardener-v-Northampton GH NHS Trust [2014] EWHC 4217 QB
Necrotising fasciitis

Shortall-v-Mid Essex Hospital Services NHS Trust  [2014] EWHC 246 QB
Post operative bowel leak not investigated

Marshall-v-Hull & East Yourks Hospitals NHS Trust  [2014] EWHC 4326 QB
Negligent treatment of post-arthroscopy infection affecting knee and accelerating need for knee replacement.

Hayes-v-Sout East Coast Ambulance Service [2015] EWHC 15 QB
Ambulance crew negligent in failing to appreciate that asthma patient had life threatening condition

Sumner-v-Royal Surrey County Hospital NHS Foundation Trust and St George's Healthcare NHS Trust [2015] EWHC 293 QB
Negligent spinal surgery

Hamed-v-Mills and others [2015] EWHC 298 QB
Negligence of football club doctor and others regarding player's heart attack

Defendants 10

In the following cases the defendants succeeded in avoiding liability in 10 cases.

Tippett-v-Guy's and St Thomas' Hospital NHS Foundation Trust  [2014] EWHC 917 QB
No negligence in relation to antenatal care, CTG monitoring of child born with cerebral palsy

Aspinall-v-Sec of State for Health  [2014] EWHC 1217 QB
No negligence in treatment of a premature baby

Michael-v-Royal Free Hampstead NHS Trust QBD, Judge Ralls QC
Not negligent to adopt wait and see policy after complications following cholecystectomy

Ulucesme-v-Goel   [2014] EWHC 2761 QB
GP had not been given ante-natal test results raising possibility of Down's Syndrome, so not negligent in failing to act on information

Gregory-v-County Durham and Darlington NHS Foundation Trust  [2014] EWHC 2643 QB
No negligence in relation to appendicectomy

McGovern-v-Sharkey and another [2014] NIQB 117
Diagnosis and treatment of detached retina not negligent

ST-v-Maidstone & Tunbridge Wells NHS Trust [2015] EWHC 51 QB
Negligently delayed blood transfussion and IV fluids for child, and administration of diuretic drug, but no causation

Davies-v-Countess of Chester Hospital NHS Foundation Trust [2014] 4294 QB
Serious breach of care by administering excess dose of magnesium causing fatal cardiac arrest, but no causation because patient would not have survived significantly longer without negligence.

Hogg-v-Sec of State for Health [2015] EWHC 267 QB
Claimant unable to prove that brain condition was due to negligent pre-natal procedure rather than an inherent cause.

Mulholland-v-Medway NHS Foundation Trust [2015] EWHC 268 QB
Three month delay in diagnosing brain tumour not negligent.

There were two score draws:  the claimant succeeded on liability against one defendant, but lost against other defendants:

Hall-v-Thomas and others [2014] EWHC 1625 QB
Treatment of footballer's knee

McCabe-v-Moore and others [2015] EWHC 260 QB
One of three GPs found negligent in relation to recognition of infective endocarditis which preceded a stroke

There were also two secondary unsuccessful secondary victim claims in Lexi-Rae Speirs-v-St George's Healthcare NHS Trust, and Wild-v-Southend University Hospital NHS Foundation Trust.

In addition Court of Appeal decisions on clinical negligence liability were given in:

Meiklejohn-v-St George's Healthcare NHS Trust [2014] EWCA Civ 120
Diagnosis and treatment not negligent

Webster-v-Liddington [2014] EWCA Civ 560
Defendants liable for statements in brochures

Border-v-Lewisham & Greenwich NHS Trust [2015] EWCA Civ 8
Insertion of cannula without consent in breach of duty

Welch-v-Waterworth [2015] EWCA] Civ 11
Surgeon negligent in performance of operation

Are there any trends? None that I can see, although the cases underline that for a claimant, establishing negligence alone is only half the battle.

Some commentators on my Losing Streak post seemed to think that the high proportion of cases lost at trial demonstrated very poor judgment by claimant lawyers. I do not accept that at all. The cases that reach trial are the tip of the iceberg. At a guess, over 95% of clinical negligence cases do not reach trial on liability. Of those that do not, many will settle and many of those will settle on the basis that liability is (expressly or implicitly) admitted either in full or in part. Given the "no win no fee" structure, few claimant solicitors will prosper without a healthy success rate. Nevertheless, the losing streak was of note. It might have suggested that defendants should have been fighting more cases. The evidence above suggests that perhaps they are. Andecdotal evidence is that a more robust stance has been adopted by the NHSLA in recent months. Note that there are more cases in the sample than last year and that there is very approximately at 50/50 success rate at trial.

I would be very interested to know the "official" figures for the number of clinical negligence trials and the proportion that result in awards of compensation. In the meantime, all I can offer is this sample.

1 comment:

  1. Nigel
    A useful round up of cases fought by an increasingly litigious NHSLA. An interesting figure we will never get to see is the number of cases fought, on substantive and costs issues, where advice from defence Counsel/Solicitors to make an increased offer has not been followed resulting in a contest.
    Richard Follis