A Case Note and Comment kindly supplied by Simon Elliman, Withy King, Solicitors to the claimant where a settlement of £150,000 was achieved where a vaginal swab taken from mother was not acted upon and there were failures to note signs of neonatal sepsis and intra uterine infection soon after delivery. F A v Worcestershire Acute Hospitals NHS Trust MLC 1621 (Case Note).

 Mr Justice Plender, in the  Queen’s Bench Division Admin Ct, held that an interim order made on a psychiatrist referred to the General Medical Council  in May 2007 should be continued. Complaints had been made by the psychiatrist’s colleagues relating to decisions that he made to authorise discharge of patients. Those complaints were subject to investigation by the General Medical Council. The Judge ruled that, while the burden of the interim order upon the psychiatrist was substantial, the interest to the public in protection of vulnerable patients must prevail.  Applying General Medical Council v Chee Cheung Hiew MLC 1342 the extension was granted. General Medical Council v Ghaly MLC 1622.

 A claimant is entitled as of right to damages from the tortfeasor in preference to dependence on the statutory obligations of a local authority and it is reasonable for a claimant to opt for self-funding and damages rather than to seek provision of care and accommodation at public expense.  Further, where a court has awarded 100% of the care costs that are necessary to meet a claimant’s needs there is no duty on the case manager or Deputy to seek full public funding as well. That would otherwise amount to double recovery.  Paul Balen, Partner, Freeth Cartwright, explains the significance of Peters v East Midlands SHA MLC 1617 reported by us on June 25. See ARTICLES database.

 The Court of Appeal (Carnwath, Smith and Hughes LJJ) has ruled that CPR 3.1(7) does not permit a court to revoke or vary approval given to a settlement agreement. The claimant was severely disabled because of lack of brain development.  He was incapable of looking after himself, and for the purposes of litigation was a patient.  He had lived all his life with his parents.  The claimant’s action was begun in the Summer of 2005.  The trial of the quantum issue was listed for January 2007.  Until mid August 2006 the parents had felt unable to agree to any placement of the claimant in a residential school. But then they did agree to it. Accordingly, the settlement was on the basis that care in a Group Home was appropriate to the needs of the claimant. The Judge gave his approval to the terms of the settlement agreement. It was common ground that in July 2007 the claimant had moved into a Local Authority Group Home but was removed after a very short time by his parents.  Their view was and had since remained that the home was unsuitable and that such a home always would be.

Then, in May or June 2008 the claimant served a revised schedule of his outstanding claim.  It sought damages for future care in privately obtained accommodation with privately engaged dedicated carers.  The defendants sought referral back to the court of the issue whether the claimant could pursue such a claim.  On 17 November 2008, Christopher Clarke J, who had given approval to the original partial settlement, was asked to determine as a preliminary issue whether it was open to him to do so. He decided that it was not. That decision was upheld by the Court of Appeal, but on different grounds: Roult v North West Strategic Health Authority MLC 1615 in our CASES database.

 Claimants’ solicitors Tee Lorimers contribute a case note on a case of hypoxic ischaemic encephalopathy resulting in intracranial haemorrhage death. B v Hinchingbrooke Healthcare NHS Trust MLC 1619.

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In a recent case of alleged failure to treat a tumour in deceased’s lung, the defence acceptance of the claimant’s Part 36 offer of £11,500 was out of time. The claimant’s solicitors maintain that it is a classic example of the NHSLA not getting to grips with cases and making early admissions of liability where it is reasonable and appropriate that they should do so, and therefore unnecessarily increasing the costs incurred by Claimant Solicitors. It gives the truth, they say, behind the recent spate of press releases from the Defendant community in respect of the costs of Claimant Solicitors. Rogers v University Hospitals NHS Foundation Trust MLC 1589 (Casenote). See CASES database.

Our advance report, subject to correction, of Mr Justice Foskett’s decision in AB and Others v Ministry of Defence MLC 1618 is now in our Cases database. The judgment deals with limitation issues in this unique case where the claimants, ex-servicemen and their dependants, alleged negligence in the design, planning and execution of Britain’s nuclear bomb tests. Of the ten Lead Cases the cases of Mr Ayres, the late Mr Brothers, the late Mr Dickson, Mr Hart and the late Mr Sinfield were, the judge ruled, not statute-barred. Those of Mr McGinley, the late Mr Clark, Mr Noone, the late Mr Ogden and Mr Rokoratu were statute-barred. But, in all cases found statute-barred or where the case had been conceded to be statute-barred, the judge said he would exercise his discretion under section 33 of the Limitation Act to disapply section 11. In those cases found not to be statute-barred, if the court’s decision on that issue was wrong, the court would have exercised the discretion to disapply section 14. The case can be downloaded by non-subscribers for £7 using a credit card.

 Application by claimant in pharmaceutical product liability action – Claim funded with CFA backed by insurance policy. Had a master erred in ruling that, under the overriding objective, it was just to make an order in a pharmaceutical product liability action that the defendants’ costs should be capped in such figure as a Costs Judge should determine? Justice in a case described as David v Goliath. Eli Lilly & Company Limited v James MLC 1586 (QBD: Dobbs J DBE, January 19, 2009). See CASES database.

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 Issues arising included the presentation of the plaintiff’s left little finger prior to a first operation. Was amputation of the little finger warranted?  The procedure adopted – by a general surgeon operating in a county hospital – was different to that described as appropriate by the plaintiff’s expert. Whether a reasonable choice to make. Would the plaintiff have had a better result had he been referred to, and obtained, specialist care from a hand surgeon in a dedicated unit? English v The North Eastern Health Board MLC 1598 (Ireland HC, Charleton J, April 23, 2009). See CASES database.

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It is difficult not to feel a degree of sympathy with the defendants in Haithwaite v Thomson Snell & Passmore MLC 1612. This was an action by the claimant, Ashley Haithwaite, against the defendants, Thomson Snell & Passmore, his former solicitors, for admitted negligence. The claimant had instructed the defendants in March 1999 in connection with clinical negligence proceedings against Mid-Sussex National Health Service Trust for alleged delays in diagnosing and treating his subdural haematoma which had developed in the course of February 1999. In considering the information available to a SHO and consultant, and whether it was negligent for the SHO to have taken a decision not to conduct the CT scan himself – or, indeed, whether in any case it had been negligent not to have conducted a further CT scan – the court’s approach to assessment of damages where solicitors have been negligent in conduct of action is important to all practitioners – particularly when legal aid is the funding source.

Because, as Mr Justice Nicol commented, in the section of his judgment dealing with damages, the defendants were faced with a difficult case in terms of negligence and causation. It is plain that they did a great deal to investigate these matters. They were constrained by a limited legal aid certificate and understandably gave priority to the medical issues. The defendants had to explain to the claimant’s partner that they were waiting for the Legal Services Commission to approve an extension of the legal aid limit before they could write to potential witnesses. The Commission refused the extension. The Defendants pursued the matter. they did try to contact some of the people whose names had given.