Editor Geoffrey Hall reports that little has been said in Parliament about Lord Justice Jackson’s Civil Litigation Costs Review; this is hardly surprising because the report is not a creature of Parliament. However, there is an extract from the House of Commons Hansard which appears bizarre … See ARTICLES database.

A prison medical officer was held in breach of duty where the inmate (the claimant) complained of a breast lump successively on three occasions.  The exercise of reasonable care and skill demanded the taking of a history that would have elicited the fact of earlier consultations and established the locus of the possible lump.  Had that been done then the claimant would have been the subject of a “non urgent” referral to a breast clinic. This judgment is interesting in that the judge made some telling comments on fact-finding on balance of probabilities when confronted with the realities of a prison environment. Carter v Ministry of Justice MLC 1679 (QBD: Sir Christopher Holland, February 12, 2010). See CASES database.

Paul Balen, Partner, Freeth Cartwright, Nottingham, reports on a multi-million pound award structured in such a way so that the future care and case management costs are covered by a periodical payments order indexed by reference to ASHE 6115 whilst all other elements of the judge’s award are paid in a lump sum amounting to £912,374. See ARTICLES database. February 25.

 The clinical judgment of an orthopaedic surgeon was upheld by HH Judge Platt in a case where there was a choice between medical or surgical treatment. There were potentially catastrophic risks in surgery but infection control was vital. The surgeon excised the infected tissue and drained the sacral space, halting the spread of necrotising fasciitis. But was the patient’s general condition systemically such that surgeon should have decided to drain epidural abscess surgically immediately? HH Judge Platt commented adversely on a microbiologist commenting on the clinical judgment of a spinal surgeon. Hyperlinks: As a further service to Subscribers we are now inserting hyperlinks when verifying names of medical experts in the headnote. We would appreciate any comments on this feature from readers of this case. Newman v Maurice MLC 1678 (QBD: HH Judge Platts, January 20, 2010).

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 I have an identical case, almost word for word, in which my client was told he was going to die in less than 6 months and to go home and get his affairs in order. He lost his job, girlfriend, savings and is being repossessed. He gave away all his clothes except one suit for his funeral. The Trust deny any breach of duty and the NHSLA are fighting it very hard.

 I have two negative experts’ reports both of which have told me that the claim has no merit and I was sitting here worrying about how I was going to satisfy the LSC Funding Code Criteria when your email alert arrived. I couldn’t find anything on Lawtel on misdiagnosis of pancreatic cancer.

 Thank you very much indeed, as I can now carry on fighting for my client.

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 This claim was also pleaded with a significant future loss of pension claim, as, in the belief that he had incurable metastatic cancer, the claimant had transferred his pension scheme benefits out of the scheme to supplement the income he was receiving at that time.  In February 2008, the claimant’s financial advisor calculated that this represented a £44,721.00 loss.  However, shortly afterwards, the economy crashed, and the value of pension funds plummeted.  Thus, there was a significant risk that K would recover very little or nothing in respect of this head of loss as, in view of K’s age, it may actually have been fortuitous that he withdrew the funds when he did. The Claim was pleaded with a significant future loss of earnings claim (nearly £40,000) on the basis that the Claimant had been out of work for 2½ years, and had had to accept a job at a lower salary than had he found a job following his redundancy (unrelated to the claim) in October 2005.  However, this was a difficult argument – firstly, the defendant could have argued that, in fact, in the current economic climate, it was probable that the claimant would have been made redundant in such a job; and secondly, the defendant could have argued that there was nothing now stopping the claimant obtaining a higher paid job. K v The Princess Alexandra Hospitals NHS Trust MLC 1674 (Case Note, January 2009) See CASES database. 

Shoulder dystocia, acknowledged by one medical expert as probably the most frightening obstetric emergency that medical staff can encounter, is likely to engender an atmosphere of crisis in the delivery room.  But when should the risk of the condition be explained by a consultant?  In the case, say, of an obese mother, undergoing a vaginal birth. And whose previous child had shoulder dystocia.  In those circumstances, should the alternative of caesarean section have been mentioned? And what if mother was a Jehovah’s Witness? Mr Justice Nicol, in deciding these and other issues, ruled that mother would not have opted for a caesarean against the advice of her consultant even if she had been given appropriate advice about the risk of a vaginal birth. He went on to decided that the obstetrics team had not been negligent in the delivery of the claimant. Jones v North West Strategic Health Authority MLC 1677 (QB: Nicol J, February 5, 2010). See CASES database.

NHS Redress in Wales

Letter to the Editor:

From:

Mr Peter Williams

Partner

Marchant Harries Solicitors

http://www.marchantharries.co.uk/

I read with interest your article dated 8th February 2010 about the NHS Redress Act 2006. You describe the scheme as “a dog’s breakfast” and predict, I hope correctly, that in England the scheme will sink without trace. In Wales, the dogs will be eating well.

In a misguided fit of enthusiasm, the Welsh Assembly has passed the NHS Redress Wales Measure, which was given Royal Assent in July 2008. This is primary legislation and is touted as the first genuinely Welsh law passed since the days of Hywel Dda, almost a millennium ago. It therefore has enormous political significance.

The Welsh Assembly Government (WAG) hope to have Redress in operation before the end of the year and have just published the draft Regulations. The Scheme will be available to deal with claims with a value in general damages of up to £20,000. The size of the associated special damages claims does not affect eligibility. Redress is to be free to the patient at all stages.

Welsh clinical negligence solicitors were asked some time ago for their view on organisation of the Scheme and for their assessment of a reasonable level of legal costs for giving the independent advice which the patient is allowed to obtain at various stages of the process. It is of interest that the draft scheme now put forward for final consultation does not include the figures which we put forward or, indeed, any figures. The regulations say only that

“The cost of such legal advice will be borne in its entirety by the NHS body in accordance with an agreed framework of financial reimbursement.”

In the initial stages of the process, the relevant NHS body will be judge and jury in its own cause. The regulations require that the Redress officer for each body will be of senior management status. I am, nevertheless, sceptical that he or she will be able to persuade his organisation to offer Redress in every case that he judges appropriate. I have no doubt that the Legal Services Commission will want to take advantage of the scheme by requiring patients to submit to it before funding will be offered, except in the largest of claims.

It is in my view politically unfortunate that the Measure is the Assembly’s first piece of primary legislation. It would take an enormous act of political will for WAG to abandon it. Nevertheless, I do not believe that Redress has been costed properly or at all. I think it certain that the scheme, once launched, will very soon and sink under the weight of its own bureaucracy. Given that the complaining patient incurs no financial liability, whatever the outcome, it must be in his interests to seek to use the process whenever possible. Even if, as is likely to be the case, the vast majority of claims turn out to be without foundation the time and effort spent in processing them will be considerable.

The Regulations envisage that a patient deemed entitled to Redress may be offered

“ ... a contract to provide care or treatment ... ”

as part of a settlement. By implication, such treatment is to be delivered promptly. However, the question whether the patient should be given that treatment before others whose clinical need may be greater has not been discussed. Indeed, I can see how an aggrieved patient who is pushed down the waiting list to make way for a Redressee (to coin a term) might himself have grounds for seeking Redress because his treatment has been delayed other than for sound clinical reasons.

According to WAG Health Minister Edwina Hart when the Measure was passed:-

“This important piece of legislation will build on our efforts to continually improve the care for Patients and learn from any mistakes. It will establish better access, improve processes and fairer outcomes for users of NHS services. This aims to ensure a more effective use of resources for the NHS and ultimately be [sic] fairer on Patients and the NHS itself.”

I prefer Master Yoxall’s assessment in an address he gave to the 2003 AvMA conference shortly after “Making Amends” was published. At the conclusion of his speech on Redress he posed a number of questions which remain apposite.

“Will what is proposed be an improvement? Or the creation of another Tribunal or bureaucracy? Have the Article 6 implications been fully appreciated? Will the proposed scheme be adequately resourced.”

I think we all know the answers.

Yours,

NHS Redress Act 2006 Remember the NHS Redress Act 2006? What’s happened? Well, er … nothing. The government’s proposals were described in Parliament as a “dog’s breakfast”. The leading text Clinical Negligence edited by Powers Harris Barton (2008) has described the Act as “fundamentally misconceived”. The government's proposed scheme - that the NHS should investigate itself - was twice defeated during the Bill's passing but ultimately prevailed – to what end … News Update By Geoffrey Hall editor. See ARTICLES database.

This was a medical negligence claim by a daughter which was time barred. The plaintiff’s solicitors were found negligent. But how did the court assess damages that would properly have been awarded if the claim had not failed on a limitation point. Plaintiffs in Northern Ireland are not obliged to disclose and exchange medical reports. What did that mean? Was the plaintiff obliged to mitigate her loss by claiming against her legal expenses insurer – in fact, was she even entitled to recover the insurance premium? Neeson v Agnew MLC 1644 (NI QB: Deeny J, February 13, 2009). See CASES database.

Conduct, duties and responsibilities of  MMR consultants came under quasi-judicial focus on January 28, 2010, when a GMC Fitness to Practise Panel (FPP) gave its long-awaited decision on allegations made against three consultants who were involved in the issue whether there is a connection between the MMR vaccine and autism:  Dr Andrew Wakefield, Professor John Walker-Smith and Professor Simon Murch. Readers will recall that, in January 2007, following the tabling of two Parliamentary Questions by Shadow Health Minister John Barron MP seeking information on the funding of the MMR/MR vaccine litigation, we reported that the Department for Constitutional Affairs (DCA) had supplied, on December 19, 2006, details of fees paid from public funds. Dr Wakefield received £439,553 and Professor Walker-Smith £23,131.  The Panel made it clear that the case was not concerned with whether there is or might be any link between the MMR vaccination and autism. Due to the removal of legal aid, the UK litigation on this issue collapsed.  However, these US cases, reported only in Medical Litigation Cases (MLC), are instructive:

·         Cedillo v Sec of Health MLC 1590 (US:09) United States: Vaccine - MMR – Autism - Causation.

·         Hazlehurst v SDHHS MLC 1591 (US:09) United States: Vaccine - MMR – Regressive autism.

·         Snyder v SDHHS MLC 1592 (US:09) United States: Vaccine - Autism Spectrum Disorder (ASD).

The FPP’s findings are published in full in an Appendix to an article by Geoffrey Hall.  See ARTICLES database.

 The standard of care required in silent ischemia cases was the subject of a case in Ontario.  The patient’s died from a heart attack during sexual intercourse after Viagra prescribed by his family doctor. The doctor was aware from the cardiologist’s report that the patient suffered from heart disease. But the cardiologist did not recommending that the patient cease to engage in sexual intercourse. Should the doctor have refused to prescribe Viagra to his patient without first insisting that he undergo cardiovascular assessment by cardiologist?  The court ruled that while the preferred course of conduct would have been for a family doctor to have used his patient’s request for Viagra as an opportunity to insist that the patient go back to his cardiologist, the doctor’s decision to prescribe Viagra to the patient without first referring him to a cardiologist did not fall outside the reasonable range of judgment calls being made by prudent and diligent practitioners in similar circumstances. Houlihan v Caskey MLC 1641 (Canada Ont Sup Ct, 2006) See CASES database.