Wednesday, 13 September 2017

In Praise of the Man on The Clapham Omnibus

One of the common law's best known creations is the man on the Clapham Omnibus. 

As is fitting, he took his seat almost unnoticed: first mentioned in a law report by Collins MR in McQuire v Western Morning News Company [1903] 2 KB 100 at 109. The then Master of the Rolls wished not to praise him, but to keep him quiet. The Court was determining whether a theatre critic's review had been "fair comment" and was anxious to hold that "fair", in that context, 

"does not mean that which the ordinary reasonable man, "the man on the Clapham omnibus," as Lord Bowen phrased it, the juryman common or special, would think a correct appreciation of the work."

The reference to Lord Bowen's use is not clear from the judgment but he is said to have used the phrase as an advocate in the famous Titchborne Claimant case of the 1870's. If so, then perhaps Walter Bagehot had that in mind when he wrote in The English Constitution in 1873, 

"Public opinion ... is the opinion of the bald-headed man at the back of the omnibus"

Clapham would represent an unremarkable and ordinary area of London. Our man himself seems to be ordinary and unremarkable, and yet he has endured.



Over the nearly 150 years since his creation, the Courts have adopted an increasingly affectionate, even reverential tone when considering the man on the Clapham Omnibus. 

He is a perfect symbol for the common law - constant yet adaptable. A figure of solidity and yet, like justice itself, tantalisingly indefinable. Sir Percy Winfield rudely called him a "sloppy thinker" but accepted that he was someone who knew how to put the phrase "justice as between man and man" to practical use, even if he could not explain it.

So totemic of ordinary British reasonableness has he become that Lord Reed was able to describe him and what he represents in some detail in Healthcare at Home Limited v. The Common Services Agency [2014] UKSC 49:


"1. The Clapham omnibus has many passengers. The most venerable is the reasonable man, who was born during the reign of Victoria but remains in vigorous health. Amongst the other passengers are the right-thinking member of society, familiar from the law of defamation, the officious bystander, the reasonable parent, the reasonable landlord, and the fair-minded and informed observer, all of whom have had season tickets for many years.

2. The horse-drawn bus between Knightsbridge and Clapham, which Lord Bowen is thought to have had in mind, was real enough. But its most famous passenger, and the others I have mentioned, are legal fictions. They belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to the creation by Roman jurists of the figure of the bonus paterfamilias...

3. ..... The behaviour of the reasonable man is not established by the evidence of witnesses, but by the application of a legal standard by the court. The court may require to be informed by evidence of circumstances which bear on its application of the standard of the reasonable man in any particular case; but it is then for the court to determine the outcome, in those circumstances, of applying that impersonal standard.

4. In recent times, some additional passengers from the European Union have boarded the Clapham omnibus. This appeal is concerned with one of them: the reasonably well-informed and normally diligent tenderer."



The bald man at the back of the omnibus has changed with time. Certainly, he no longer rides on a horse-drawn bus. But is he still bald? Is he in fact male, or would that prevent him being representative of both, indeed all, genders? I imagine that as conceived in the Victorian era, he was white and Christian, but now he must represent all races, and people of all faiths and none. 

These changes make him more difficult to conjure in the imagination - the greater the range of people he represents, the less specific he becomes. 

Nevertheless, we still need him. We need him more than ever.


He is impartial: he is a disinterested observer. 

He is rational: he does not allow prejudice, blind faith or distrust to cloud his judgment.

He is well-informed: not an "expert" but an inquisitive generalist who gathers, assimilates and weighs the available information before making a judgment.

He is reasonable: he takes into account differing views and perspectives. He allows for uncertainty. He balances evidence and argument. 


It may be more difficult to pin down this fictional figure to a specific gender or race, but I hold on to the idea that he is seated at the back of the bus. It suggests a quiet, observant individual.  He sits alone and sees the other passengers in front of him in all their variety. He is anxious to become well-informed and is slow to judge. He is restrained, unlike his interfering cousin, the officious bystander.

Although he has lived for nearly a century and a half, in my mind's eye he remains middle-aged. He has experienced both the joys and travails of life but is not cynical nor yet worn down.

However you imagine him, you know that he has a deep well of common sense: a sense of practical justice, so-called because it is common to all rational, fair-minded people, whatever their gender, race, health, talents, wealth or political affiliations, not the preserve of a particular type or group.    

The man at the back of the bus has endured. He has survived an onslaught of statutes and regulations. He has shaken the hand of human rights but not moved from his seat. Whilst others shout to be heard, he has maintained a quiet dignity.

Long live the reasonable man. Long live the man on the Clapham omnibus.



Wednesday, 2 August 2017

Riding More Than One Horse

When at the Bar, Mr Justice Gilbart was head of my chambers, Kings Chambers. He was a doyen of planning bar. Before he became a High Court Judge he was Recorder of Manchester, the leading criminal judge in the city. Now he has given a typically resounding judgment in a clinical negligence case: JRM v King's College Hospital Foundation Trust [2017] EWHC 1913 (QB).

The claimant was one of twins - his brother sadly died at the age of two weeks - who was born by vaginal forceps delivery but suffered acute spinal cord injury. The Judge recorded agreement that the injury was caused around the time of birth and was due to one of two possible causes:

  1. Traumatic injury causing tearing of the lining of the anterior spinal artery; or
  2. A occlusion due to a blood clot or placental emboli.

The second mechanism would be an "exceedingly rare" event.

This agreed position had been reached by the parties' respective expert paediatric neurologists but was not adopted by the Defendant until the fourth day of the trial. Other experts relied upon by the Defendant had put forward (two) other possible explanations for the Claimant's condition. At the start of the trial the parties had intended to call ten expert witnesses. In the event, only two gave oral evidence.

The obstetrician who delivered the Claimant told the court that the delivery had been straightfoward and uneventful. The baby had been, he considered, in the occipital anterior position not, as the Claimant alleged, the occipital lateral position.

The Judge rejected that evidence. There was ample contemporaneous written and photographic evidence of extensive bruising to the baby. The delivery was described in correspondence at the time as "difficult". The Judge found that the Claimant had been in the OL position and he had been delivered with excessive force with the forceps in the wrong position. The obstetrician had fallen "far below the standard of care to be expected of him" and the injuries were attributable to that poor standard of care.


The Judge ended his judgement with two comments:

"I cannot leave the case without making two comments. The case before me for the Defendant was conducted with scrupulous fairness and considerable skill by Mr Evans, and the conduct of his instructing solicitors appeared to me to be most efficient. However, 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.

"It was also of concern that the agreed statement between Dr Philip and Dr Smith was inconsistent with other evidence contained in reports to be adduced by the Defendant, and notably from Mr Walkinshaw and from Dr Emmerson, a neonatologist, which put forward other causes for the injury, including that the injury was not related to the mode of birth, and in Dr Emmerson’'s case that it was a congenital abnormality. While I understand a Defendant arguing that the Claimant had not proved causation, that is a different matter from a Defendant asserting different 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."


Of course a party may choose to run a case that is not easy to reconcile with the contemporaneous notes - claimants will do at least as often as defendants. But the Judge was clearly concerned about the decision to run a defence where other witness evidence that might have been available was not called and where the documentary evidence did not sit at all easily with the key professional witness's account. 

The evidence should not be shaped by your case. Your case should be shaped by the evidence.

The observation about the defence to this claim should resonate with both claimants and defendants. It is not uncommon to gather expert evidence where each expert is supportive of a party's case but not in agreement with the other experts. The Judge's warning is that the party concerned has to make a choice. Forensically it is rather difficult to ride two horses at a trial. In this case there appear to have been three horses, and I can well imagine the judicial probing that preceded the Defendant's change of approach on day 4 of this particular trial.




Tuesday, 25 July 2017

Mayday!Mayday! Leaving A&E .

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The Court of Appeal's decision in Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151 has met with a mixed response from clinical negligence practitioners. This was the case of the head injured claimant who attended A&E only to be told wrongly by a receptionist that he would have to wait a number of hours to be seen, when in fact he would have been seen within 30 minutes. He was with a friend and decided to leave to go home after 19 minutes, rather than wait for hours. He later deteriorated and suffered permanent neurological injuries. The Court of Appeal held, by majority, that it had not been within the scope of the duty of care of the receptionist to advise as to waiting times but she had done so as a matter of courtesy. In any event there was no causal connection between any alleged breach and the injury because the claimant had made a free choice to leave the hospital.

At the AvMA conference in Leeds this summer, one speaker tore at this judgment and supported the minority decision of McCombe J. Many of the claimant lawyers agreed! In particular it was regarded as unreasonable to have in effect held the claimant accountable for leaving the hospital when one of the key reasons he left was due to the misinformation given to him by the defendant Trust's employee (or agent).
Mayday Hospital is now known as Croydon University Hospital


Darnley was raised as a defence in another claim against the same hospital's A&E department in the recent High Court case of McCauley v Karim and Croydon Health Services NHS Trust [2017] EWHC 1795, a decision of Mr Justice Foskett. 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 have included CRP which would have been important in terms of subsequent management. However the claimant was seen by a doctor who ordered bloods including CRP and his direction was not actioned. On the court's findings they would have led to further investigations and treatment that would have prevented the claimant's severe injuries.

The claimant had attended the A&E department at 1030 hours and he left without any blood tests having been performed, at 1630 hours. 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.

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.

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."

    Mr Justice Foskett was not attracted to this submission:
  1. 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 the desirability of making himself available for it to be carried out. At the risk of repetition, it should be emphasised that he was an overweight diabetic who it was thought might have an ischiorectal abscess. Even if he was told by Dr Uhercik that a blood test was required (which is likely), there is no evidence (because neither C nor Dr Uhercik remember the examination and any conversation) that C appreciated fully the importance of the test. Since he had been waiting since 10.30 in the morning, possibly anticipating a blood test in the light of the triage nurse's request, he may well not have seen this further request for a blood test as any advance in trying to find out what was wrong with him. But whether something said by the receptionist encouraged him to think that there was no point in staying any longer (see paragraph 57), in my judgment, 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.

  2. As I have said, I am unable to accept that imposing a duty to make contact in a case such as this places an unreasonable burden on a hospital. That people do leave A & E Departments before they are treated is a well-known phenomenon: see, e.g. the review article in the Emergency Medicine Journal, 2011, entitled 'Patients who leave emergency departments without being seen: literature review and English Data analysis' and 'The patient who absconds' 2013, guidance given by The College of Emergency Medicine. Mr Richmond has said that those who come within the cohort of cases to which C would belong for this purpose represent a very small proportion of those who leave an A & E Department before treatment: Mr Richmond is (or at least had been for a number of years) in charge of a busy A & E Department in Poole and had extensive experience in A & E Departments in Wales prior to that. I do not suggest that Dr Campbell-Hewson does not have relevant and appropriate experience, but it is less than that of Mr Richmond, and more importantly his view does not seem to me to address the question of what to do about someone who, like C, has been in the system for the best part of a day, in respect of whom an important diagnostic test has been commissioned and who, for some reason, has left before the test is carried out when there is no record in the notes that he had "gone missing" at the material time.

  3. 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.

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.






Thursday, 22 June 2017

Safe Spaces

The goal of impartial and thorough investigations into patient safety risks within the NHS is laudable. Of course it is. Jeremy Hunt has focused on that goal and the government is to create an independent Health Service Safety Investigation Body to help to achieve it.


But is one of the major planks of that policy compatible with the just disposal of claims by injured patients?

It has long been considered, by many, that the fear of litigation obstructs such investigations. Healthcare professionals who would otherwise be candid, are intimidated by the prospect of their disclosures being later thrown back at them in the courtroom court. Thus the government has announced, in the briefing notes to the Queen's Speech, June 2017:

DRAFT PATIENT SAFETY BILL 

The purpose of the Bill is to
• Improve how the NHS investigates and learns from mistakes by establishing an independent Health Service Safety Investigation Body. 

• Encourage staff and other participants to share information freely with the Health Service Safety Investigation Body by prohibiting the disclosure of information held in connection with its safety investigations, creating a ‘safe space’ for staff. 

.... This prohibition will not apply where there is an ongoing risk to the safety of patients or evidence of criminal activity, in which case the HSSIB can inform the relevant regulator or the police.

A significant difficulty for policy-makers is that of balancing the advantages of a "safe space" for staff with the need to afford justice to those who have suffered from unsafe practice. How does this proposal sit with the recently introduced, hard fought for "duty of candour"? Would a public body really be willing to suppress evidence of wrong-doing and defend a clinical negligence claim knowing that such evidence existed but was protected by "safe space" legislation?  

A " safe space" is presumably one from which patients or their relatives who have suffered as a result of a "patient risk" incident are kept out. Is an investigation truly independent and thorough if those able to give relevant evidence and insight are not made aware of what others are saying, and cannot respond?

This is a difficult balancing act: what one person may perceive as a safe space, another might see as a cover up. The trick to pull off is to encourage candour and learning so that institutions can improve patient safety, whilst protecting justice for all those involved. 

A Wasted Resource

One wasted learning resource, which I have discussed with a medico-legal expert recently, is that contained in expert reports prepared for litigation. Over the years I have heard many eminent healthcare experts criticising the conduct of their peers or systems of work, knowing that their reports may never be seen by the practitioners involved or their managers and employers. So much potential learning is wasted. A case settles and those reports are archived and eventually shredded.

Perhaps the policy-makers can find a way of pulling that evidence into a safe space so that it can used for the common good. 

Monday, 15 May 2017

Clinical Negligence in the Court of Appeal 2017


There have been no fewer than nine Court of Appeal judgments in clinical negligence cases so far in 2017. 

The first five were covered in my first Quarterly Report and I will be reviewing the next four in the second quarterly review. YOu can subscribe to my Quarterly Reports 2017 HERE.

Links to all the cases can be found on my Judgments 2017 page.

Here is a summary of the key issues:


In Manna v Central Manchester a claim for a second adapted home was allowed where the claimant's parents lived separately. 



It is not uncommon for parents of severely disabled children to separate and so this decision will have ramifications for a number of similar cases.

_________________________________________________

In EXP v Barker the importance of experts' independence and objectivity was emphasised after an expert had failed promptly to disclose a close connection with the party by whom he had been instructed. 

All experts should consider their connections with the parties or witnesses and make a full declaration at the earliest opportunity.

_________________________________________________

In Webster v Burton Hospitals, the approach to informed consent in Montgomery was applied to an issue of causation. A negligent failure to carry out scans would have led to more information being available to inform the decision whether to proceed to an elective Caesarean section. The question was not what the clinicians would have decided to do, but what the mother would have decided to do upon being given material information.

When considering what would or should have occurred but for a breach of duty, practitioners must consider not only what treatment would have been available and what is given most commonly, but also what advice would or should have been given and what the particular patient would have elected to do.

________________________________________________

Darnley v Croydon Health Services concerned the duty of care on a receptionist in an A&E department who wrongly advised a patient that he would have to wait five hours to be seen. He was not prepared to wait that length of time and left the hospital. 

Practitioners may want to consider what systems were in place to advise patients about their likely management. There are implications for the making of appointments and administrative communications, as well as in relation to A&E receptionists. 

_________________________________________________

In Wilmott v Rotherham the Court of Appeal held that a trial judge was right not to have recused himself and that there was no objective appearance of bias after he had referred to his own knee replacement operation and his own background research.

Whilst the Judgment was upheld, it is clear that trial judges should be wary of introducing their own experiences into the hearing.

__________________________________________________

The Court upheld a "remarkably succinct" judgment in Barnett v Medway NHS Foundation Trust notwithstanding that the judge had taken the virtue brevity "too far". 

Again, the judgment was upheld, but trial judges are encouraged to explain how they have weighed up the evidence to reach the conclusions underpinning their conclusions.

________________________________________________

In FB v Princess Alexandra Hospital Trust, the Court addressed the issue of the standard of care applicable to a Senior House Officer in A&E when taking a history and carrying out an initial examination. The notion that a lower standard of care applied than it would had, say, a Consultant carried out the same tasks, was rejected. 

This is an important decision. Jackson LJ put it in context. There are some basic clinical skills and processes that patients are entitled to expect from any doctor, whatever their level of qualification and experience.  

______________________________________________

In Correia v University Hospital of North Staffordshire NHS Trust, the appellant's case that informed consent had not been given to an operation was rejected. The surgeon negligently failed to carry out the important third stage of the operation. Although the Claimant had not consented to a two stage operation, only a three stage operation, she had given her informed consent to the procedure. 

There are limits to the attempts to plead a claim about negligent performance as a Montgomery consent claim. Patients do not literally consent to being treated negligently but they may consent to treatment that is then delivered negligently.

_____________________________________________

ABC v St George's Healthcare NHS Trust: the Court of Appeal allowed C's appeal against a strike out of her claim. Her father was subject to a hospital order under s37 MHA. He was diagnosed with Huntington's Disease. C alleged that the defendants owed a duty of care to override patient confidentiality, and the wishes of her father, and to disclose his genetic condition to her. She had been pregnant and this is a wrongful birth claim. This is a case that has been remitted for trial. 

The high court judgment was regarded by the NHSLA as one of the most important of the year, and this CofA decision is clearly of great significance. The Defendants argued that there is a distinction between it being good practice on occasion to override patient confidentiality (GMC guidance) and it being a duty of care, breach of which gives rise to liability for compensation, to do so. This and other arguments are likely to be subject to further judicial scrutiny: this was an appeal against a strike out application not an appeal against a final judgment.

Webster, Darnley, FB and ABC seem to be a particular significance for other cases and should be read by all clinical negligence litigators.


Tuesday, 25 April 2017

Learned Friend Videos

Learned Friend has produced a series of films to help those who have little or no experience of the civil justice system.

Learned Friend Helps With .....

Click to view:Introductory Video 



These videos are presented by Nigel Poole QC. Nigel has specialised in clinical negligence and healthcare law for over 25 years. He was appointed a QC in 2012. Chambers UK Guide to the Bar says Nigel is:

"Widely regarded as a hugely important clinical negligence expert with tremendous client handling and advocacy skills."


You can view these films for free and as many times as you wish. Just click to view each film below or visit the Learned Friend You Tube Channel


1. Learned Friend Helps With An Introduction to Bringing a Clinical Negligence Claim


What to expect when you bring a clinical negligence claim. This video will describe what you have to prove when you bring a claim, what evidence is needed, and all the steps that will be taken up to and including trial.
If you are contemplating bringing a claim, or are already involved in litigation, this video should help you.

Click to View: Bringing a Clinical Negligence Claim




2. Learned Friend Helps With Advocacy at Inquests


It is increasingly difficult for bereaved families to secure legal representation at Coroners Inquests. This video provides some practical advice on how to prepare and some tips on effective advocacy: how to ask questions and what submissions you can make.
The focus is on Inquests concerning the deaths of patients.
This video should help to give you some guidance and confidence when approaching the difficult task of representing your family at an Inquest.

Click to view: Advocacy At Inquests



3. Learned Friend Helps With Cosmetic Surgery - Knowing Your Rights


When contemplating cosmetic surgery you need to understand your rights. What are the terms of the contract you are entering? What are the rules about obtaining your consent? And what is your entitlement to compensation if something goes wrong?

Click to view: Cosmetic Surgery



4. Learned Friend Helps with Claims for Delay in Diagnosing Cancer


Some of the most difficult clinical negligence claims to prove are those arising out of a delay in diagnosing cancer. This video provides an introduction to the issues in such claims and the evidence that will be needed to prove your case.

Click to view: Delay in Diagnosing Cancer





Wednesday, 19 April 2017

Learned Friend's Clinical Negligence Quarterly Reports

I am pleased to introduce the first quarterly report on clinical negligence in 2017. This is my review of the most important High Court and Court of Appeal judgments of the year. The first quarter of 2017 has been packed with important decisions so there has been plenty to write about. I have added some comments on the Discount Rate announcement.



See an extract from the Introduction to the first Quarterly Report below.

The cost is £50 for the year. For that you will receive four reports. You can subscribe by clicking the link Add to Cart below, or visit the Store page on this blog.

Subscribers so far have included QCs, academics, solicitors and legal executives.

Many of us now have to plan our Continuous Professional Development and record the tasks completed. By subscribing to my Quarterly Reports you can keep abreast of legal developments in clinical negligence and build your knowledge of that area of law. Each report has links to the cases referred to so that you can build a library of case law. You can meet many of your CPD needs by subscribing.




From the Introduction to Q1:

"2017 has got off to an interesting start. The first seven cases of the year, decided in the High Court and Court of Appeal, were all won by Claimants with the next three being decided in favour of Defendants. There have been some fascinating decisions and no fewer than five clinical negligence judgments in the Court of Appeal compared with two for the whole of 2016. All the cases are listed with links on my blog, but there is also a list of the cases reviewed in this Quarterly Report with links below. 

 HHJ Robinson’s decision on the scope of the duty of care of an A&E receptionist was upheld by a majority decision in the Court of Appeal. The issue of consent following Montgomery has been significant in two of the leading cases and these are discussed at length in this report. The relevance of the Bolam test to histopathological reporting was considered by Kerr J in Muller v King’s College Hospital. The Courts’ approach to expert evidence was once again a significant feature in clinical negligence case law. Jeremy Baker J adopted and applied dicta of Green J which may become standard text in future skeleton arguments and judgments. The Court of Appeal upheld a trial judge’s approach to an expert’s failure to disclose a connection with a party to the litigation and the Courts’ willingness to openly criticise experts remained evident but with an intriguing reversal of fortunes for two particular experts. The Court of Appeal began the quarter by upholding a generous award in respect of a second home and ended it by upholding a judge who had over-shared his own experiences of knee treatment when dealing with a case involving treatment of a knee. Perhaps the most important development in this quarter has come not from the courts but from the Ministry of Justice with the Lord Chancellor’s announcement of a new discount rate of -0.75% which came into force on 20 March. Although not within my self-imposed remit, I have included a section on the new discount rate in this review."

Friday, 24 March 2017

Mayday! Mayday!

Mr Darnley attended the Mayday Hospital A&E with a head injury following an assault. He was with a friend.  It was a busy Monday evening. He was greeted, as was the system in place, by a receptionist without medical or nursing qualifications. She clerked him in and asked him to wait. She told him that it would be up to 4 to 5 hours before he was seen. He told her that he felt he was going to collapse. She told him that if he did he would be treated as an emergency.


NICE Guidelines state that a head injured patient should be seen within 15 minutes. It was not disputed that in this case Mr Darnley would have been seen within 30 minutes. The information given by the receptionist had been misleading. Mr Darnley was not seen in 30 minutes because after 19 minutes of waiting, he and his friend left. He went home. Very unfortunately his condition rapidly deteriorated and he was rushed back to hospital where it was found he had an extradural haematoma. It was too late to save him from having permanent, serious neurological injuries.

The majority in the Court of Appeal in Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151, held:

(i) The circumstances had not been such as to place the Claimant in a special category of patients requiring priority triage.

(ii) The receptionist had not assumed a duty of care or responsibility to the Claimant when giving advice about the likely waiting time. It would not be fair, just and reasonable to impose a duty of care on the receptionist not to give misleading information about waiting times (Caparao v Dickman [1990] 2 AC 605, applied). The Court was concerned, in this case, about the ramifications of finding otherwise when 450,000 people per week present to A&E and many hospitals operate a system similar to the Mayday Hospital. Research shows that as many as 3-8% of patients leave A&E without being seen. How many have potentially serious injuries?

(iii) In any event, either the prevention of the injury was outside the scope of the duty of care or there was no causal link between any breach and the injury: the Claimant, a capacitous adult, chose to walk out of A&E. 



McCombe LJ gave a dissenting judgment. He pointed to the trial Judge's findings about the complaint of possible collapse and the receptionist's response, referred to above. He also observed that the duty of care was on the hospital. He said at [71]:

"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."

He would have allowed the appeal and imposed liability on the Defendant Trust.



Mr Darnley chose to forego treatment. He did so at least partly on the basis of incorrect advice that he might have to wait up to 4 to 5 hours to be seen by a clinician. He had to balance that information with other considerations such as that he did not know how serious his head injury might be. Arguably therefore he made a treatment decision on the basis of incorrect advice from the hospital staff. This brings to mind the principles in Montgomery. Did the hospital provide the Claimant with relevant, accurate information on which he could exercise proper autonomy?

Suppose the Trust had employed a nurse on reception who had given the same information to the Claimant as the receptionist had given? Would a nurse have been under a duty to advise Mr Darnley to wait to be seen because it cannot be known without proper examination how serious his head injury might be? Would the Trust have been liable because a nurse owes a higher standard of care than a "civilian"? It must be implicit in the majority judgments in Darnley that it is acceptable to organise an A&E department so that the first point of contact - and the only contact for perhaps half an hour in a head injury case - is with a "civilian". Also, it appears that there was no written information given to Mr Darnley. Head injury leaflets are common-place. Was he not given a leaflet to read telling him of the importance of being checked out? 

Some might thing that there is a danger that this judgment will encourage greater use of "civilian" staff so as to help the NHS and other healthcare providers to avoid liability? Why employ a trained nurse when you can use a "civilian" at less cost and with a lower risk of being found liable if something goes wrong?

On the other hand, as I have previously observed on this blog, if there is an greater emphasis on patient autonomy following Montgomery, then that has consequences not only for providers of medical care but also for patients. Adults with capacity to make rational decisions have responsibility for the consequences of those decisions. Mr Darnley removed himself from the hospital without having been seen by a nurse or doctor. He did so without receiving any nursing or medical advice. By doing so he knowingly took the risk that his head injury might be a serious one and he might deteriorate at a time when he was out of the immediate reach of medical attention. He fully, but unwisely, exercised autonomy. 

For some time clinical negligence defendants have been seeking to defend cases (in whole or in part) by contending that patients have broken the chain of causation or have been contributorily negligent by missing appointments or not complying fully with advice etc. Will this judgment encourage more of those sorts of defences?

This is a fascinating decision with potential ramifications for the way hospitals should be organised, and for the responsibilities patients have for their own decisions. 


Monday, 27 February 2017

Discount Rate: In Case of Emergency....

Today's announcement of a change in the discount rate from 2.5% to -0.75% (that's minus 0.75%) was a shock, although the Lord Chancellor has said it was the "only legally acceptable rate". If so, one wonders about the legality of the 2.5% rate that applied up to today.

The change comes into effect on 20 March 2017.  There may be a legal challenge to prevent that. Nevertheless litigators should treat this change as an emergency.


It has immediate implications for practitioners. Gordon Exall has been quick of the mark with sensible advice. Have a look.

Here is a link to tables of multipliers using the -0.75% rate produced by Rebmark. I cannot vouch for the accuracy of the figures.

Future claims could double or even treble in value. In some cases multipliers could be over 100.

The implications of this change are far-reaching. The cost to insurers and the NHS could be very high.

For litigators, immediate attention should be given to:


  • Existing Part 36 Offers
    • Any that depend on an assessment of future awards need to be immediately assessed. 
    • Claimant's must consider withdrawal as a serious option. It might be professional negligence not to do so. However
    • If a Defendant sought permission to accept a Part 36 Offer which would now manifestly undervalue a claim, surely the Court would refuse permission. 
    • Consideration by Cs to make offers based on the new rate - might the new rate be challenged by insurers so that it does not take effect? How should Ds respond to offers based on the new rate but when the time for acceptance expires only a day or so after the new rate is due to come into force?
  • Existing non-Part 36 Offers
    • ditto
  • Ongoing negotiations/settlements
    • Radical reassessment is required.
    • Court unlikely to approve settlement that did not reflect new rate
  • Schedules and Counter Schedules
    • Need to be re-written. All future claims, and claims for loss of earning capacity that are based on the Ogden Tables, need to be re-calculated.
    • Discounts for early receipt would become enhancements for early receipt using a negative discount rate. Is that how they should be used or should there simply be no allowance either way for early receipt.
  • Costs budgets
    • If more work needed, for example re-writing schedules, or obtaining further financial advice, then this needs to be factored in to a costs budget
  • Court fees
    • Some claims will have doubled in value overnight. This might affect the proper issue fee.
  • PPO vs lump sum 
    • The balance of benefits and disadvantages of a PPO or lump sum award has just changed. Financial advice is required to address the new position
  • Interim Payments
    • The assessment of the likely lump sum, insofar as it depends on certain future losses, requires reconsideration.
  • Accommodation Claims
    • Is the Roberts-v-Johnstone calculation still applicable? It would result in a negative amount (Additional cost of accommodation x -0.75% x multiplier). Are new ways of assessing the value of an accommodation claim now required? See this blog from John de Bono QC : Roberts v Johnstone is dead
    • Will there be an early test case on how accommodation claims should be calculated?
    • In the meantime how do litigants deal with this uncertainty?
Of course, this rate will not last forever. In particular, will there be a legal challenge by the insurance industry? Might they succeed in staying the implementation of the new rate so that it does not take effect as planned on 20 March? Or, will there be a short "window" in which claims have a value well in excess of what has come before, and will ever come again?

I am sure there are other implications that will sink in with further reflection. Let me know of any thoughts about what they are and how to deal with them.

Monday, 6 February 2017

Bolam under the Microscope


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Are there cases of clinical negligence in which the Bolam test has no application?

We know that in the field of informed consent the Supreme Court in Montgomery v Lanarkshire recently emphasised that the Bolam test is not an appropriate yardstick for ensuring that patient autonomy is respected. Now, in Muller v King's College Hosptial NHS Foundation Trust [2017] EWHC 128 (QB)  Kerr J has addressed the applicability of the Bolam test to cases of purely diagnostic error, where there is no question of the exercise of professional judgment in relation to management or treatment.




The Claimant alleged that there was a negligent error by a histopathologist in reporting what was a biopsy of a malignant melanoma as a non-malignant lesion.

Defendant's counsel submitted that Bolam should be applied "unvarnished". The admitted error in reporting: 

"... could easily be made by a histopathologist acting with reasonable competence, i.e. with reasonable skill and care. Mr Gibson submitted that Dr Foria's expert opinion was founded on acceptable reasoning and not outside the bounds of respectable medical opinion. 

"Mr Gibson submitted, therefore, that Professor Wright's contrary view - that Dr Goderya committed a plain breach of duty - should not be preferred; Dr Foria's opinion was sufficient to exonerate Dr Goderya from the charge of negligence. Applying the Bolam doctrine, the court should not choose between these opposing experts' views; Dr Foria's view should carry "substantial weight" and should not be rejected unless Professor Wright's evidence cast it in "such an altogether negative light that it should be rejected" (per Green J in C. v. North Cumbria University Hospitals NHS Trust, at paragraphs 25(i) and 73)."
[paras 44 and 45]

In contrast Claimant's counsel argued 

"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."
[46 and 47]

The Judge considered the context in which Bolam and other cases had been decided and concluded at [75]

"In a case involving advice, treatment or both, opposed expert opinions may in a sense both be "right", in that each represents a respectable body of professional opinion. The same is not true of a pure diagnosis case such as the present, where there is no weighing of risks and benefits, only misreporting which may or may not be negligent. The experts expressing opposing views on that issue cannot both be right. And the issue is, par excellence a matter for the decision of the court, which should not, as a matter of constitutional propriety, be delegated to the experts."

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." [79]

This might point the way to future appellate consideration (perhaps not in this particular case) of the approach that should be taken to cases involving errors of reporting and diagnosis. 




Friday, 20 January 2017

Consent to Treatment - Guidelines from the Royal College of Surgeons

I was delighted to be asked by the Royal College of Surgeons to attend the press briefing at the launch of its new Guidance on Consent following the decision in Montgomery v Lanarkshire. I was also asked to write a short blog on the issue of consent which has been published today by the RCS and which is copied here.


               

Montgomery v Lanarkshire [2015] is a landmark judgment affecting the surgeon/patient relationship. The Supreme Court held that patients have the right to exercise autonomy over their own bodies and over the treatment they undergo. When making treatment choices it is the surgeon’s duty to advise and the patient’s right to decide.
This right of autonomy over treatment is a common law right. It does not come from the European Convention on Human Rights but has been created by British judges in cases beginning with Sidaway [1985]. In Montgomery the Supreme Court gave it a final and very decisive stamp of approval. The Court held:
 “An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo … The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative … The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”
The Royal College of Surgeon’s recent publication: Consent: Supported Decision-Making – A Guide to Good Practice, offers detailed and practical guidance on the implications of Montgomery and how surgeons should protect patients’ rights to autonomy.
The well-known Bolam test continues to apply to the delivery of treatment but the Courts take a different approach when scrutinising the process of obtaining informed consent.

The Patient’s Right to Autonomy
Important though this right to autonomy is, there are certain qualifications:
·         The surgeon only has to give information about the reasonable treatments available. Financial restraints may limit the available range of treatments and a surgeon is not obliged to explain the risks and benefits of all possible treatments, however unreasonable or irrational.
·         Only adult patients with the capacity to make decisions about their own treatment can exercise this right of autonomy.
·         In situations, such as emergencies, when it is not possible to obtain a patient’s informed consent it may be necessary for a surgeon to make treatment decisions.
·         In very rare cases, the “therapeutic exception” may apply such that a surgeon need not divulge information to a patient if to do so would be seriously detrimental to them.
·         Patients may still ask, “What would you do, doctor?” If a patient makes a clear choice to follow a surgeon’s recommendation and not to be informed of the risks and benefits of alternative treatments, that is an exercise of autonomy.
Although the Court’s decision reflected guidance on informed consent given by the GMC for a number of years, concerns have been raised about its impact on consultation times and a rise in litigation.


Consultation Times
If, as likely, more time is spent with patients, that is a price worth paying to protect the right of autonomy. The unpalatable alternative is that patients have treatment decisions made for them.
Hospital managers must allow sufficient time and resources for advice properly to be given and recorded. The current standard consent form is poor evidence of a full discussion and consent process. A better recording system is required. Smart use of written or filmed advice issued prior to consultations can assist.

Litigation
If adequate resources are allocated and surgeons follow the College’s guidance, there ought to be a reduction in litigation. With the right of autonomy comes the responsibility on a fully informed patient to live with the consequences of their decisions. Many patients instruct solicitors because they feel they have been kept in the dark. Patients who have been fully informed and empowered to choose a particular treatment are more likely to accept complications when they arise.
If surgeons and managers do not change from the old ways to the new, then patients who would have avoided harm had they been fully informed may well seek compensation.
The Supreme Court has laid down the law: doctors advise, patients decide. This is the new contract. All healthcare professionals and managers, not just surgeons, should heed the College’s Guide to Good Practice.

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Tuesday, 10 January 2017

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