Judgments 2017

Clinical Negligence Judgements 2017

Case Name and Link


C of A

Cerebral Palsy case. Trial Judge awarded compensation for two adapted homes. The second was to allow C to visit his father, his parents having divorced. 

D appealed the award but C of A held that whilst generous, it was, on the facts, reasonable. The multiplier used for 2nd home was for C's life. 

On appeal D contended it should have been for his father's life. C of A held that the point could not be argued because it was not raised at first instance.

Jeremy Baker J
Negligent failures to investigate fetal abnormalities on antenatal scans and to warn mother of substantial risk of physical and mental abnormalities which would have led her to terminate the pregnancy.
Kerr J
Delay in diagnosing cancer claim where histopathologist had wrongly reported malignant melanoma as non-malignant ulcer. Interesting discussion of whether Bolam test applied. Judge found it did, through prism of Bolitho, even though this was not a treatment decision. Considered Penney v East Kent HA [2000] PNLR 323.
Breach of duty found. Damages only £16,500 because cancer had already metastasised. No effect on life expectancy, but more extensive treatment and mental anguish caused.

 Court of Appeal
Court of Appeal upheld finding of liability for neuroradiologist failing to identify aneurysm on MRI brain scan. The trial judge had properly applied the Bolam test to the issue of negligence. The Judge had found that the defendant/appellant's expert witness had failed to declare a close connection with the defendant. The judge had been accordingly entitled, having admitted the expert's evidence, to give it less weight. 
Court of Appeal
Claimant successfully appealed judgment against him on causation. C 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 not avoiding C's injuries.
The Court of Appeal held that the proper test was that in Montgomery. What advice ought to have been given and what decision would C'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 C's injuries would have been avoided.
Holroyde J
C gave birth by Caesarean section. Post-natally she had tachycardia and raised white cell count but was discharged home. A fortnight later she suffered a stroke due to bacterial infection following the CS. Sole issue for Court was breach of duty. Court rejected opinion of Defendant's obstetric expert because he had neglected to refer to significant recorded observations.
Green J
Very experienced surgeon admitted in evidence that the advice he gave to the patient about proposed spinal surgery (discectomy) was overly optimistic and sub-standard. Post Montgomery he had adopted a quite different approach. Finding that advice was negligent, relied upon and caused C to undergo surgery. C had disabling leg pain and reduced sensation affecting bladder and sexual function. Liability only trial.
After trial, finding that surgery not negligently performed.
(but defendant successfully defended allegations of negligence concerning the surgery)
Court of Appeal
By a majority the Court dismissed the Claimant's appeal against the decision of HHJ Robinson that it was not within the scope of the duty of care of a receptionist at an A&E department to advise the Claimant of the waiting time. He would have been seen within 30 minutes. He waited 19 minutes during a very busy time at the department then left. In fact he had a serious head injury and suffered very severe injuries. The receptionist was not in breach of duty, advising on waiting times was not within the scope of her duty of care and in any event there was no causal connection between any breach and the injury: the Claimant was told to wait, but chose to leave.
Court of Appeal
Trial Judge right not to recuse himself. No objective appearance of bias by referring to his own knee treatment and background research on the subject when finding that Claimant's knee surgery had been non-negligent
Foskett J
Infant Claimant suffered brain damage and later died following a Hemi-Fontan procedure to divert venous blood to lungs by-passing the right side of the heart. Complex medical evidence reviewed and a finding made that there was no breach of duty.
C of A
A "remarkably succinct" judgment at trial, which took the virtue of brevity "too far" was nevertheless upheld after a review of the evidence. The Judge had been entitled to find that negligence in the use of antibiotics after an operation had not been proven to be causative of a serious spinal abscess that caused paraplegia.
Goss J
Liability for mismanagement of birth that resulted in hypoxic ischaemic injury to child. Liability to mother who was primary victim: negligence occurred when baby in birth canal.
Grandmother was secondary victim. Control mechanisms considered and thresholds met. Event was "sufficiently horrifying".
Court of Appeal
Senior House Officer in A&E was negligent in failing to take an adequate history and make adequate examination of child who in fact developed pneumococcal meningitis and suffered severe disability. C of A considered the standard of care to be expected of a junior doctor and whether, in relation to contact with a child in an A&E setting, the standard was lower than it might be for a more experienced doctor. It allowed the appeal, finding that the SHO had been negligent and that the trial judge (Jay J) had applied the wrong standard.
Court of Appeal
Trial judge had found that operation on neuroma on C's right foot had negligently omitted the important third stage of the procedure, relocation, but that the Claimant's continuing pain was not due to the re-formed neuroma that had developed after the operation.
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. C would not have consented to a two stage procedure and therefore D was liable for all the injury that flowed from undergoing the operation. C of A held that consent was properly obtained. It was the operation that was negligently performed, but the consent procedure was satisfactory.
Court of Appeal
C's father was subject to a hospital order under S37 of the MHA 1983. He was found to have Huntington's Disease, a genetic, progressive, debilitating and ultimately fatal condition. He refused permission to disclose the diagnosis to his daughters, one of whom, the Claimant, was pregnant. A wrongful birth claim was brought alleging a breach of the duty of care in not disclosing the diagnosis to C. Struck out in the High Court. The Court of Appeal allowed the appeal, finding that C had an arguable case and remitted the case for trial. The Court of Appeal noted GMC guidance about overriding the duty of confidentiality when there is a greater public interest or need to protect others by doing so. It considered, and found unpersuasive, nine policy reasons for not imposing the duty of care. It observed that Article 8 of the ECHR did not add to the common law. Permission was given to C to Re-Amend her P of C to allege that by participating in family therapy organised by the Defendants, she had become their patient, but observed that it was not persuaded that thereby the duty to disclose arose.

William Davis J
Claimant with cerebral palsy. 24 years old at time of assessment of damages. Lost years claim for loss of pension was held to be valid (with 50% deduction for living expenses).

Not disputed that C required alternative accommodation. D contended that discount rate of -0.75% resulted in a nil Roberts v Johnstone award. The negative DR showed that there is no ability to obtain positive return on a capital fund based on risk-free investment. Hence there is no need to compensate the Claimant for loss of that return (by putting funds into purchasing property ). C can use fund to purchase property which will have a better than negative return. C contended that R v J was a pragmatic solution that still applied, and applied at same conventional rate of 2.5% The Court preferred D's approach.
NB the Court noted that the only evidence it had as to the return on a risk free investment was the discount rate itself. Further, no evidence put before it to support alternative solution such as cost of mortgage or giving reversionary interest in property to defendant.

Cost of hydrotherapy pool at home not allowed.
Defendant (on the accommodation issue)
Court of Appeal
1. Judges involved in previous litigation involving Claimant refused to recuse themselves.
2. Loss of personal autonomy had not been pleaded as a cause of action and could not be raised on appeal. In any event it was a cause of action that should be formulated in negligence.
3. 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 loss of autonomy. Claim for £50,000 in this particular case had no basis.

See also Shaw v Leigh Day (a firm) [2017] EWHC 825 (QB) in which C succeeded in overturning strike out against her in respect of a claim for damages against the solicitors who represented her at the Inquest into the death of her father. The Court considered there was an arguable case for damages for loss of peace of mind arising out of breach of contract.
Nicol J
Claims against GPs and Trust (A&E) for failure to investigate C's back complaints. In fact he had spinal TB and developed paraplegia. Split trial. Claims against A&E department dismissed on the basis that the Defendant's expert opinion that the care was acceptable accorded with a responsible body of opinion and was not illogical. Claims against GPs dismissed save for finding of breach against GP who failed to refer C for a thoracic spine x-ray after he expressly complained of thoracic back pain radiating around his chest. It was agreed that had he been x-rayed then he would have been commenced on anti-tubercular treatment which would have resulted in effectively full recovery and no paraplegia. Damages to be assessed accordingly.
Claimant (although claims against 3 of 4 defendants failed and claim against one other discontinued prior to trial)
Cosmetic surgery claim. C underwent VASER liposuction of fat from legs. Six litres of fat removed and C left with "skeletonised" legs which were uneven, bumpy and mottled. Finding by Court that she had not requested High Definition, very muscular appearance of legs, but rather feminised look with a thigh gap. D's contention that C had elected for high definition treatment against specific advice from D was rejected - there was no record of such counselling. Damages for PSLA, including psychiatric injury £45,000
Thorburn v South Warwickshire NHS Foundation Trust [2017]  EWHC 1791
(Not on Bailii)
HHJ Pearce
Negligent performance of knee replacement surgery causing knee pain and restriction of movement - breach admitted in closing submissions.
HHJ Worster
Gynaecological examination failed to identify that a uterine fibroid had prolapsed through the cervix. Finding of fact that prolapse was present at time of examination. Admissions on other issues that consequent delay in treatment and damages of £20,000.
Cosgrove v Al-Doori [2017] EWHC 1268
(Not on Bailii)
Goss J
GP negligent in not making urgent referral after C presented with malignant lesion under thumbnail.

Foskett J
C suffered multiple amputations following emergency admission with septic shock. In days before he had attended on GP (no liability found) and A&E at Mayday Hospital.
He had attended at 10.30 am and had left without blood tests of antibiotics having been given at 4.30 pm.
Judge found with C's expert evidence on the aetiology of the infection.
Triage nurse at A&E had requested standard blood tests but these were not done. They would not have included CRP. However a doctor later commissioned blood tests including CRP. These were not done and C left the unit without them having been done. Judge found system error but for which blood tests would have been done by 1530 and C would have known they had been done. There was a judicial finding that he would have stayed to await consultation to discuss results. A scan would have been performed that afternoon/early evening and surgery by the following morning. There was a system failure in not seeking to contact C after he had left, and not recognising that tests had not been done. Argument by D that Darnley judgment in C of A meant that D was not liable because C should be responsible for his own actions in leaving the A&E was rejected.

HHJ Freedman
Negligent of surgeon not to have advised C before abdominal hernia repair that suture repair was likely to fail in which case mesh repair would be necessary. However the Court found that, contrary to her assertions in the litigation, C would have elected to undergo the surgery in any event.
Smith v Barking, Havering and Redbridge NHS Trust [2017] EWHC 943 (QB)
(not on Bailii)
HHJ Reddinough
Not negligent to have failed to have treated polyp in bowel. In any event C’s symptoms caused by diverticular disease not the polyp.
Werb v Solent NHS Trust
Decision reported on Lawtel only on 26.07.17
Master Roberts
the Court refused to strike out a secondary victim claim by the father of a 15 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, in that the event was the suicide not the early negligence. In fact the pleaded claim was that negligence continued right up to the time of the suicide.
Gilbart J
C 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.
The obstetrician's evidence was that the delivery was uneventful, but contemporaneous records noted extensive bruising and the delivery had been described as "difficult".
Judge 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 to deliver C when he was in the OL position had caused the spinal cord injury.
Judge criticised the Trust/NHSLA for maintaining that the delivery was straightforward when evidence suggested otherwise and it did not call midwives and others who had been present, and for initially putting forward conflicting expert opinions (D's other experts did not all agree with the agreed position of the paediatric neurologists). D should have chosen the case it would argue at trial.
Edward Peperall QC (Deputy HCJ)
Claims that cardiac surgery was negligently delayed and perfomred, and inadequate advice given were dismissed on the basis (essentially) that the Judge preferred the Defendant's expert over the Claimant's expert. The Judge cited (as is becoming more common) Green J at [25] of C v North Cumbnria University Hospitals NHS Trust [2014] EWHC 61 as to the Bolam and Bolitho tests.
Dyson v Heart of England NHS FOundation Trust [2017] EWHC 1910 (QB)

Not on Bailii at time of writing - on Lawtel
Robert Francis QC (dep HCJ)
The claimant's wife died of an intra-cerebral haemorrhage following an allegedly negligent prescription of Clexane (low molecular weight heparin) following a suspected pulmonary embolism after knee replacement surgery. On expert evidence the allegation of negligence was found not to have been proven, The Judge would have awarded the widower claimant £3,000 as a Regan v Williamson award, rejecting the defendant's submissions, relying on Mosson v Spousal, that such awards were not valid and that no award should be made.

Sir Robert Nelson
Quantum only. D's negligence caused C to suffer infertility following chemo-radiotherapy for cervical cancer. C wished to use commercial surrogacy arrangements in US. Court disallowed that claim since such arrangements are illegal in UK and contrary to public policy. Claim for costs of surrogacy using C's own eggs (harvested prior to the cancer treatment) was a valid claim: £74,000 awarded for two children. Prospects of success were sufficiently high to justify the claim. However, there would not have been a valid claim for the costs of surrogacy using donor eggs, because the loss was the ability to have "her baby" rather than "a baby".

Sir Robert Nelson
Cerebral Palsy case. Breach of duty ultimately admitted. Midwifery staff should have summoned obstetrician for assisted delivery earlier than they did. Central issue was causation. In relation to Bolitho test D's Counsel submitted that C had to establish what would have happened in fact and that D was negligent in failing to ensure that that did happen. The Court rejected that submission confirming that Bolitho made clear that the first question was what would have happened but for the negligence, and that was not a Bolam question. If what would have happened establishes the Claimant's case, there is no need to consider whether what would have happened would or would not have been negligent. The second question is whether it would have been negligent to have acted in that way, but that only arises if it is necessary for the Claimant to prove that would have happened would have been negligent to establish their case.
Yip J
Court allowed wrongful birth claim to include costs related to child's autism as well as haemophilia, where the negligence had been in relation to a test directed only at haemophilia. D argued that advice about the risk of autism was not within the scope of the duty of care and therefore costs related to autism not recoverable. D relied on SAAMCO approach. Judge held that following Parkinson and Groom, the costs of bringing up a disabled child were recoverable even where the disability was not directly related to the negligence. 
HHJ Peter Hughes QC
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.

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