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February 2013
Medical Law Brief
Welcome to the Medical law Brief.
The Ministry of Justice has published its consultation into the legal framework for
setting the personal injury discount rate. The consultation seeks views on two
issues: whether the legal parameters defining how the rate is set should be
changed and whether there is a case for encouraging the use of periodical payment
orders instead of lump sum payments. It follows the earlier consultation that
closed in October 2012 on the methodology to be used in setting the personal
injury discount rate. The consultation is open until 7 May 2013. Keep up to date
with progress of the discount rate with our dedicated webpage
http://www.kennedys-law.com/discountrate/
The Civil Procedure Rule (CPR) Committee has finally released the changes to
practice directions that support the 60th update to the CPR, which come into force
on 1 April 2013. There will be a further statutory instrument and practice
direction document with amendments next month. At the same time, there is
growing concern about the apparent defects in the rules published with regard to
new funding arrangements. The Bar Council has argued that the rules as currently
drafted are “not fit for purpose” and undermine the intentions of Lord Justice
Jackson. These issues were debated in the House of Lords on 26 February 2013 but
the Government has confirmed there will be no delay in implementing the reforms.
The Government has launched a consultation on proposals to make it mandatory
for all regulated healthcare professionals to hold indemnity or insurance to
practice. The proposals aim to address the current inconsistency in the statutory
healthcare professional regulatory bodies in relation to legislation or guidance on
the need to hold such cover. The consultation will run until 17 May 2013.
The Government also proposes to amend medical regulations from April 2013 to
appoint up to 220 senior doctors as the “responsible officer” in clinical
commissioning groups set up to check the language and communications skills of EU
doctors as well as their credentials.
Finally, the Court of Protection has ruled that it would be disproportionate and
unnecessary to perform a sterilisation procedure on a 21 year old woman with
Down's Syndrome. Whilst her parents had requested the procedure for the woman's
own protection, the judge noted that the woman was well supervised and said that
the potential complications of sterilisation needed to be borne in mind.
As always, I hope you enjoy reading this edition and welcome your feedback.
Janet Sayers, Partner
Liability Division
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Case reviews
Cerebral palsy: Court of Appeal reviews negligence finding
Court of Appeal upholds decision that Claimant’s cerebral palsy caused by
negligent failure to spot signs of fetal distress and expedite delivery - Popple v
Birmingham Women’s NHS Foundation Trust [11.12.12].
Comment
Birth injury cases predominantly centre around alleged failures in management
during the first and second stages of labour. The importance of taking time to
consider whether it is clinically appropriate to continuously monitor by way of CTG
both at the outset of contractions, during established labour, and during the active
stage of delivery cannot be overemphasised.
This was a case in which it was noted that continuous monitoring had not been in
place from 14:00 hours and there had been suspicion of fetal distress at that time.
Such monitoring may assist midwives when making a judgement as to whether or
not to act swiftly to avoid fetal hypoxia and facilitate earlier delivery. In this case
damage could have been avoided if delivery had taken place only five minutes
earlier.
However, even when continuous CTG monitoring is put in place, it should not
become a substitute for careful observation and auscultation by a trained midwife
with clinical experience.
The ability to correctly interpret a CTG trace is essential in both isolating fetal
hypoxia and ascertaining when a trace should not cause concern. Care must be
taken to avoid unnecessary caesarean sections through an overreliance upon
continuous monitoring. Such monitoring cannot replace an experienced midwife
who is able to understand the whole clinical picture.
Background
The detailed background to this case can be seen in our case review of the High
Court decision from January 2012.
In summary, the Claimant suffered brain damage at birth resulting in severe
cerebral palsy. After a nine day trial in the High Court, His Honour Judge Oliver
Jones QC held the Defendant liable. Subject to the Court’s approval, damages had
been agreed at £5.5m. Partly because so much was at stake both for the NHS and
for the Claimant, permission was given to appeal, on fact only.
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Decision
The leading judgment was given by Lord Justice Ward. He considered the key issues
and dismissed the appeal:
What was the cause of the injury? This was not in dispute. Compression
or occlusion of the umbilical cord had caused an asphyxial insult leading to
circulatory collapse for a period of 15 to 20 minutes.
When did the injury occur? The issue was whether the injury had
occurred in the immediate run up to delivery, as the Judge had found, or
at some considerable time before birth, as the Defendant contended.
There was ample evidence for the Judge to have come to the conclusion
he did. The clinical view of the experts was that the trace for the period
immediately before the Claimant’s birth was uninterpretable, therefore it
was unreliable. Consequently it could not displace the overwhelming view
of the causation experts that the Claimant suffered his injury immediately
before birth.
Should the Claimant have been born before the injury occurred? In light
of the evidence, the latest time for safe delivery was 14:44 hours on 21
September 1997, five minutes before the actual delivery time. The Judge
was entitled to find on the evidence that the midwives should have called
for assistance or performed an episiotomy to allow for delivery as early as
14:20 hours and in any event within one or two contractions after 14:30
hours.
Were the midwives in breach of their duty to take proper care in the
management of his mother’s labour? There was no appeal against the
Judge’s findings of breach of duty. The period of profound bradycardia for
a period of 15 to 20 minutes before birth was either not detected or was
ignored by the midwives because of a complete failure properly to monitor
his heart rate.
Find out more
A midwife's duty: expected skills - http://www.kennedyslaw.com/casereview/midwifesdutyexpectedskills/
For more information please contact Ed Glasgow – e.glasgow@kennedys-law.com.
CT scanning/improved healthcare - http://www.kennedyslaw.com/article/ctgscanningimprovedhealthcare/
http://www.kennedyslaw.com/casereview/cerebralpalsycoareviewsnegligencefinding
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Dentist: no delay in oral cancer referral
High Court rejects claim that dentist should have made earlier referral for
investigation of mouth lesion - Drabble v Hughes [23.01.13].
Implications
This case emphasises the need for rigorous note keeping by clinicians. Despite
detailed records maintained by the dentist in question he was still required to
defend his actions at a High Court hearing. His expert evidence was that the
presence of the cancer would not have been detectable with the human eye at the
time alleged as its presence would have been at a cellular level only.
To afford greater protection in such cases the dentist would be wise to seek
completion of a signed pre-admission checklist by the patient. This should include
questions as to whether the patient has any new developments or concerns
regarding their oral health.
Background
The Claimant sought damages against the Defendant, her dentist, in respect of his
alleged failure to refer her for investigation of a lesion in her mouth. From April
1995 a white patch in her mouth was kept under observation at the University
Dental Hospital, Manchester. She was discharged from the hospital in October 2004
on the basis that in future she could be reviewed at routine dental check ups.
The Claimant alleged that she should have been referred urgently following an
examination by the Defendant on 30 June 2008. She was in fact referred to hospital
by him in April 2009 on a non-urgent basis. Following investigation she underwent
surgery in July 2009 to remove a tumour in her mouth extending into the lymph
nodes. After a protracted course of treatment, and despite an initially poor
prognosis, the Claimant made a good recovery. She was left with a number of
permanent functional problems.
It was common ground that had malignant changes been present in June 2008 then
earlier referral and treatment would have meant that less invasive and radical
treatment would have been required.
Decision
Mr Recorder Sweeting QC dismissed the Claimant’s claim:
The case turned on issues of fact which arose, essentially, from the
conflicting evidence of the Claimant and Defendant.
If the Claimant was correct in her contentions, the Defendant not only
failed to observe the change in the appearance of the white patch in June
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2008 but also failed to record her complaints that such a change had
occurred. These errors and omissions would then necessarily have been
repeated to a greater or lesser extent on each of the four further
occasions on which he saw her in 2008 and 2009.
The improbability of this persistent failure led him to reject the
Claimant’s account and to prefer that of the Defendant.
For more information please contact Tom Armstrong – t.armstrong@kennedys-lawlaw.com.
http://www.kennedys-law.com/casereview/dentistnodelayinoralcancerreferral
Future loss of earnings: lack of evidence
Court of Appeal upholds lump sum Blamire award; Claimant had failed to
demonstrate she would suffer a loss of earnings as a result of the accident -
Ward v Allies and Morrison Architects [10.10.12]
Background
The Claimant who had a first class honours degree in model making for design and
media was working as a model maker on a short term placement at the
Defendant’s offices. She was asked to cut some wood using an unguarded circular
saw. Whilst doing so, the index finger of her left (non-dominant) hand was cut off
and her middle finger was significantly damaged by dislocation. Fortunately her
index finger was reattached and she made a considerable recovery although the
extent of it was in issue at trial.
At first instance, His Honour Judge Cleary held that the injury to her index finger
was an inconvenience rather than a disability, and its cosmetic impact was
negligible. Her difficulty in finding work was because she had been out of
circulation for a period of four years, in an industry in which it was difficult to get
started unless doors were opened, contacts “engaged” and in which tenacity and
bloody-mindedness were required in order to succeed.
The key issue on appeal concerned the basis on which the Judge had awarded
damages for loss of future earnings. Having concluded that as a matter of both fact
and law she was not a “disabled person”, he held that this should be on a “broad
brush” basis, following the decision in Blamire v South Cumbria Health Authority
[1993]. This was in preference to the conventional multiplicand/multiplier
approach which would have resulted in a much higher award than the £30,000
awarded, which was to allow the Claimant to retrain if she chose to do so.
Decision
The Court of Appeal upheld the first instance decision:
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The multiplicand/multiplier methodology and the tables and guidance in
the current edition of Ogden should normally be applied when assessing
future loss of earnings, unless the judge really has no alternative.
In order to carry out the conventional exercise, a judge has to make
findings on the likely pattern of the claimant’s future earnings, both had
they not been injured, and given that they had been injured, the burden
of proof resting on the claimant.
In this case, the Judge was not satisfied that the Claimant had
demonstrated that she would actually suffer a loss of earnings as a result
of the accident. Given the many imponderables he was driven to adopt the
Blamire approach.
Even if the Blamire approach had been incorrect in principle, the disability
factor in Ogden 6 could not have been used in this case. Considering the
wording in paragraph 35 of the introduction to Ogden 6, the third
condition, “their condition affects either the kind or the amount of paid
work they can do”, had not been satisfied.
Implications
The original injury to the Claimant was significant, and a sizeable award for future
loss of earnings might have been expected. The decision however serves as a
reminder that a claimant has to prove that they will suffer an actual loss. In this
case, the Claimant failed to prove that the injury would lead to a loss of earnings.
She was perhaps fortunate that the Judge went so far as to make a Blamire award
of £30,000.
Whilst a conventional loss of earnings award was not made in this case, the case
also serves as a reminder of the conditions that must be met for a claimant to be
regarded as disabled for the purposes of a calculation using the Ogden tables. It is
reassuring to see the Court of Appeal adopting a strict approach in this regard,
confirming that the disability factor in Ogden 6 could not have been used in this
case, even though the Claimant sustained a serious hand injury.
For more information please contact Richard McKeown – r.mckeown@kennedyslaw.com.
http://www.kennedys-law.com/casereview/futurelossofearningslackofevidence/
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Feature article
No-fault compensation scheme for Scotland
The Scottish Government has consulted on a no-fault compensation scheme for
injuries resulting from clinical treatment. We consider the proposals and issues of
concern.
Overview
The consultation, which was launched on 20 August 2012, followed a review by a
group of independent experts led by Professor Sheila McLean. The group reviewed
the current no-fault compensation schemes in a number of countries including
Sweden, Finland, Norway and New Zealand. It concluded that consideration should
be given to introducing in Scotland a scheme similar to the Swedish model. The
consultation process closed on 23 November 2012. We await the outcome of the
consultation.
The Scottish government’s final decision requires careful analysis of costs/benefits.
Further detailed consideration is required. In view of the potential drawbacks, it
may only be adopted on a pilot basis initially. Only then can we measure its
impact. For the time being, the overall impression is that it would not be viable in
the long term.
Purpose of the scheme
The scheme would allow patients who have suffered injury, loss or damage as a
result of their medical treatment to receive compensation without having to
establish breach of duty. This should avoid litigation and, in theory, promote a
system where more people could obtain compensation on a quicker and more costeffective
basis, thereby reducing spiralling legal costs.
However, the scheme would still require causation to be proved and quantum to be
established. This could result in satellite litigation. It is contended by the
Association of Personal Injury Lawyers (APIL) that patients cannot be left to deal
with causation and quantum without the benefit of legal expertise. Consequently,
legal costs would continue to be incurred. Otherwise, APIL consider that there is a
serious risk that victims of clinical negligence will be undercompensated.
It would be open to patients to pursue litigation to seek additional compensation,
albeit any no-fault award would be deducted from any damages received through
litigation. It follows that patients who pursue litigation will also be able to apply
under the scheme.
Extent of the scheme
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It is intended that the scheme should cover all healthcare services and not only the
NHS. This would include private healthcare sector hospitals and clinics and
independent practitioners.
Paying for the scheme
It has been suggested in the Scottish press that their Government considers that
the scheme could be run for the same costs as the NHS currently pay for
compensation and legal fees. This would be a cost neutral scheme. However,
compensation would need to be paid in conjunction with guarantees of appropriate
welfare provision. This would see patients receiving less in overall monetary
awards, as is the experience in Sweden and other schemes around the world.
The funding and costs of the scheme is queried by APIL and the Forum of Insurance
Lawyers (FOIL). According to APIL, the current costs estimate of the scheme was
based on NHS claims alone and did not take into account private healthcare claims.
In addition, there has been an apparent failure to acknowledge a potentially
significant increase in claims if negligence does not need to be proved. As the
claim numbers increase, so would the previously estimated amount of damages due
to be paid. This may therefore result in some form of compulsory insurance to pay
for the costs shortfall in running the scheme. Such insurance is found in most of the
Scandinavian countries.
Issues of concern
The introduction of the scheme in Scotland may be problematic. Commentators
have raised various concerns, including the following:
A causal link still needs to be proved between the treatment and the
resultant injury. Quantification of the claim also needs to be established.
Causation and quantification require expert and legal involvement. This
would result in costs being incurred and a delay in resolution of claims.
There would be satellite litigation arising from disputes in the scheme in
terms of applicability, causation and quantum.
The right to litigate will remain. Patients who consider they are
undercompensated may attempt to top up with litigated damages. This
would not avoid litigation or associated costs.
Compensation under the scheme would be lower than in a normal claim for
damages. This is on the basis that any scheme would need to cap the
damages provided, in order to be sustainable. It is likely that patients
would not be satisfied in high value claims where the welfare system
cannot sufficiently meet their needs in conjunction with any reduced
damages.
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The removal of threatened litigation may reduce the incentive to seek
higher standards of care within the NHS and the healthcare industry
generally.
Compensation when breach of duty does not need to be proved may
replace an explanation or apology to patients in respect of their care. This
could result in a lack of accountability.
The affordability of the scheme does not appear to be fully realised at this
stage.
For more information please contact Nico Fabri – n.fabri@kennedys-law.com.
http://www.kennedyslaw.com/casereview/cerebralpalsycoareviewsnegligencefinding
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