Monday 24 February 2014

Recent Clinical Negligence Quantum Cases



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JM-v-University Hospital of South Manchester NHS Foundation Trust

Failure to recognise and treat deceased's overdose. Settlement. Reported by C's solicitor. £20,000 total damages. Funeral expenses, bereavement award, consequential expenses, pre-death PSLA. No psychiatric claim by bereaved.

H-v-East Kent Hospitals NHS Trust

Failure to recognise and treat ruptured appendix. Claimant suffered from altered bowel habit, abdominal pain and restriction of social activities. She suffered dysmenorrhoea controlled by medication. She had increased risk of infertility and incisional hernia. Settlement. Reported by C's solicitor. Damages for PSLA £45,000. Total damages £115,000.

Boyle-v-NW London Hospitals NHS Trust 

Negligent surgery leading to leak of bowel anastomosis causing ischaemia. Permanent colostomy and massive incisional hernias as well as generalised distension of abdomen and extensive surgical scarring and skin graft. Settlement. Reported by C's solicitor. Total damages £290,000. PSLA £60,000.

H-v-Bradford Teaching Hospitals NHS Trust
Septic arthritis in ankle unrecognised and untreated resulting in below knee amputation and kyphosis of spine (causation of kyphosis disputed). Settlement. Reported by C's solicitors. Total damages £1.5m. PSLA £150,000.

L-v-Shrewsbury and Telford Hospital NHS Trust

Negligently performed endoscopy causing perforation of oesophagus and pharyngeal puch and surgical emphysema. Subsequent dryness of throat, episode of choking, general throat awareness and apprehension. Settlement. Reported by C's solicitor. Total damages £26,000. PSLA £19,000.




Thursday 20 February 2014

Client's Incapacity and Solicitor's Retainer

Matthew Smith of Kings Chambers reports on the recent decision in Blankley-v-Central Manchester.


A recent High Court appeal has determined that a solicitor's retainer is not automatically determined by the loss of mental capacity of the client. In the judgment, Phillips J held that, whilst Yonge v Toynbee  [1910] 1 K.B. 215 is long accepted authority that a solicitor's authority automatically and immediately determines upon the loss of capacity of the client, that does not equate to a frustration of the entire retainer. In that regard, the judge disapproved the earlier conclusion of Chief Costs Judge Hurst in Findley v Barrington Jones [2009] EWHC 90130 (costs) that the retainer was frustrated.

In Blankley v Central Manchester and Manchester Children's University Hospitals NHS Trust [2014] EWHC 168 (QB) (05 February 2014), Phillips J noted that if frustration occurred, any appointed deputy would have to incept a new retainer. In certain circumstances, of course, that could result in the loss of ability to recover additional liabilities from the losing party where the client had previously been funded by way of a CFA..

The judge likened the situation to one where an employee is temporarily incapacitated or where a company is temporarily unable to provide instructions due to a temporary absence of directors able to provide instruction. So long as the hiatus is dealt with sufficiently swiftly, the contract survives. In Blankley, the claimant had lost capacity on 9 February 2007 and authority was restored through the appointment of a (then) receiver whose application for appointment was dated the 26th of Feburary 2007.

Clearly, in order to preserve a retainer in a similar situation swift action is necessary especially as there can be occasions where there can be some delay between loss of capacity and a retained solicitors discovery of that fact.


Matthew was instructed on behalf of the Defendant by David Abraham at Clyde & Co. 

Tuesday 18 February 2014

Guidance on Pre Inquest Review Hearings

In Ernest Andrew Brown (Claimant) v HM Coroner for Norfolk (Defendant)& Chief Constable of Norfolk (Interested Party) [2014] EWHC 187 (admin), the High Court (Pitchford LJ and HHJ Thornton QC (Chief Coroner for England and Wales) gave guidance to Coroners on the handling of pre-inquest review hearings (“PIRs”), writes Rachel Galloway of Kings Healthcare Team.



The Claimant (the stepfather of the deceased) made an application under s 13(1)(b) of the Coroners Act 1988 (as amended) for an order that an inquest into the death of Joanne Foreman be quashed and a fresh investigation be held. 

It was common ground that the police investigation into the circumstances of Ms Foreman’s death was inadequate.  At inquest, the coroner was unable to find the cause of death and recorded a narrative verdict accordingly.  The PIR proceeded upon the assumption that although the precise cause of death could not be ascertained, the self-ingestion of insulin and alcohol may well have been the cause (a view put forward by an expert).  After the full inquest had concluded it became apparent that this assumption was incorrect.  The Paramedic team who attended upon the deceased had taken a blood glucose analysis and the reading was found to be entirely normal.  This reading had not been brought to the expert’s attention and expert evidence was subsequently obtained which concluded that insulin had played no significant role on the deceased’s death.

It was held that as a result of the blood sugar finding by the paramedics not being available to the Coroner, the medical side of the investigation into the death of Joanne had set off on the wrong track and never got back on track.  The absence of the finding was so significant that it was desirable and in the interests of justice that a fresh investigation and inquest be held.

However, HHJ Thornton QC went on to give some wider guidance to Coroners on the handling of PIRs.  He endeavoured to identify “potential pitfalls” which could be avoided by good practice.

He noted that the status of the PIR is now enshrined in Rule 6 of the Coroners (Inquest) Rules 2013 (which came into force from the 25th July 2013 for investigations started before and since).  Rule 6 permits the Coroner to hold a PIR ‘at any time during the course of an investigation and before an inquest’.  Rule 26 of the 2013 Rules requires a coroner to make and keep a recording of a PIR hearing.  In the present case, large parts of the recording was not available due to apparent equipment failure.  HHJ Thornton QC stated at paragraph 38 of the Judgment (in respect of Rule 26):

“This requirement means that a coroner conducting such a hearing should take reasonable steps to ensure that the recording equipment is working well and that those who speak in court do so in such a way that the recording can be transcribed with accuracy and in full.  An incomplete transcript is not helpful.  It may open the door (as in this case) to allegations of tampering and deliberate and fraudulent removal of key questions and answers”. 


Further, HHJ Thornton QC made the following points:

(1)          In each case the Coroner should ensure that all interested persons (particularly bereaved families) have sufficient notice of the matters to be discussed at the PIR (where held);

(2)        Coroners should provide a written agenda in advance and, if appropriate, express provisional views so that agreement or opposition can be expressed;

(3)          The agenda should include:

(a)  A list of interested persons;
(b)  A proposed list of witnesses identifying those who may be called and those whose statements may be read;
(c)   The issues to be considered at the inquest;
(d)  The scope of the evidence;
(e)  Whether a jury will be required;
(f)    Whether Article 2 is engaged;
(g)  Any issues of disclosure;
(h)  The date of the final hearing;
(i)    Any other relevant matters. 

(4)          In a complex or difficult investigation, Interested Persons should be invited to respond to the Coroner’s agenda in advance of the PIR hearing in writing, stating what they agree with and what they do not agree with;

(5)          The Coroner should ensure that Interested Persons (particularly those unrepresented) have sufficient disclosure of the relevant statements and documents before the PIR hearing so as to be able to address the agenda on an informed basis (in the present case, HHJ Thornton QC was concerned that the Claimant may not have had access to the Post Mortem Report or the Toxicology Reports prior to the PIR hearing);

(6)          Coroners should avoid giving the impression at a PIR hearing (and in any documentation supplied before it) that the findings and conclusions of the inquest are in any way pre-determined, even when the evidence points substantially in one direction.  It may be necessary to explain in clear language to unrepresented families that there is a difference between seeking to identify the key issues and coming to a final conclusions;

(7)          Coroners should at all times take care in their dealings with interested parties not to give the impression of bias or favouritism.  It appears that the Claimant and his wife had overheard the Coroner and Police discussing the deceased prior to the commencement of the PIR hearing.  The Claimant asserted that he had overheard the Detective Chief Inspector referring to the deceased as aggressive, suicidal and drunk and describing the Claimant as difficult.  HHJ Thornton QC stated that Coroners may need to communicate with police officers investigating on their behalf, but their communications, whether oral or written, should be made in such a way that they will not engender concern to others that their interests are being treated as secondary;

(8)          Coroners should be careful in correspondence with an Interested Person, such as the police, not to appear too familiar or too close to the correspondent and not encourage the same from the correspondent, even though the Coroner may know the correspondent well during the course of coroner work.  He goes on: “Even the use of first names may not look good to an outsider, particularly to somebody of the older generation”;

(9)          Coroners should only write letters (and emails) in the course of their work which will stand the test of looking fair and unbiased if and when read out in court in litigation. 

Report by Rachel Galloway








Sunday 16 February 2014

Neglect Verdict at Article 2 Inquest into Suicide of Voluntary Patient


Kings Healthcare member, Rachel Galloway (instructed by JMW Solicitors), has recently represented the family at an inquest into the death of a voluntary mental patient.  








S had been admitted to the SAFIRE unit in Park House at North Manchester General Hospital.

After a 4 week (Article 2) inquest, the jury found that S had taken her own life whilst the balance of her mind was disturbed and that her death was contributed to by neglect.  The jury found that S suffered from schizophrenia and a personality disorder; she experienced auditory hallucinations.  S was assessed as being too high risk for continued care within the community and a Psychiatrist indicated that urgent inpatient treatment was required.  There was a delay in finding her a bed and S was not admitted to hospital for a further 8 days.  S accepted that she needed inpatient care and therefore she was not sectioned under the Mental Health Act.  She was not clerked in or seen by a doctor at any point during her stay.  She was commenced on "general observations".  

The jury found that she should have been put on "within arm's length" observations.  Within less than 48 hours of being admitted to hospital, S was found in a toilet having used a ligature to end her life.  In the afternoon before her death, she had handed into staff a ligature and a lighter and told them that she was hearing voices telling her to kill herself; these voices were increasingly difficult to resist.  Despite this, the level of observations was not increased.  When D was found with the ligature around her neck, ligature cutters could not be found and there were additional failures in respect of equipment.  However, it could not be said that her death would have been prevented had the ligature been removed earlier.  

The jury were specifically asked to consider the events which took place during the afternoon prior to S taking her own life and consider whether or not the care that had been provided amounted to a gross failure to provide basic medical attention to a person in a dependent position that was directly connected to her death.  The jury found that there had been such a gross failure and "neglect" was found accordingly. 

Friday 14 February 2014

Court of Appeal - Meikeljohn-v-St Georges Healthcare

Notes on the Court of Appeal decision in Meikeljohn-v-St Georges

 By Nigel Poole QC


In Meikeljohn-v-St Georges Healthcare NHS Trust [2014] EWCA 120 Civ the Court of Appeal has firmly dismissed an appeal from a trial judge's finding that there was no negligence in the diagnosis and treatment of a rare genetic disorder. The first instance decision is here Three particular points of interest amongst a number of issues addressed in the judgment:

Standard of Care
First, the standard of care to be expected when the particular practitioner involved on behalf of the Defendant Trust was acting on a tertiary referral and was an expert of some repute. The Court of Appeal remarked that the Claimant had sought to raise the expected standard on appeal beyond that which had been accepted as applicable at trial, and which was the correct standard. The Court noted,
  1. It is now suggested that a top-layer should be imposed upon the standard against which Prof Marsh is to be measured with the addition of "a leader in the field of AA in the UK and who has an international renown".



Third, the Court was critical of the robust stance taken at trial to the Defendant's expert (Prof Cavenagh) and to the particular practitioner who had been responsible for the management of the Claimant (Prof Marsh). The basis for the criticism of Prof Cavenagh seems to be that he had treated the Claimant on referral after having accepted instructions to advise the Defendant in the litigation. As a litigator I would comment that that is an unusual situation to say the least. However the Claimant's condition was rare and this was an area of medical practice in which the experts in their field were nearly all familiar with each other - it was a small world. The circumstances of the expert's involvement did not seem to caused undue concern to an experienced first instance judge and the Court of Appeal:







Thursday 13 February 2014

New Clinical Negligence Model Direction

A new model direction has been approved for use in High Court clinical negligence cases.



Master Cook announced, with the approval of the Master of the Rolls, an addition to the model directions for use in High Court clinical negligence cases. It is as follows:

"The parties may, by prior agreement in writing, extend the time for directions, in the Order dated xxxxxx, by up to 28 days and without the need to apply to Court. Beyond that 28 day period, any agreed extension of time must be submitted to the Court by email including a brief explanation of the reasons, confirmation that it will not prejudice any hearing date and with a draft Consent Order in word format. The Court will then consider whether a formal Application and Hearing is necessary."

This is not directly applicable to district registries nor in the County Court, but practitioners may well wish to deploy it in draft directions.. What is good enough for the High Court in the RCJ is surely good enough for Burnley County Court or the Birmingham District Registry.

Following the Court of Appeal’s decision in Mitchell-v-News Corp and Mr Justice Turner's judgment in MA Lloyd litigators were concerned that any delay in complying with court directions, even if an extension had been agreed with the other parties, could lead to dire consequences. This model direction, if now widely followed, will provide some scope for sensible practitioners to co-operate without having to spend time making repeated court applications. 

Sex and Secrecy

Kings Healthcare member, Adam Fullwood has recently appeared in two important cases involving the Court of Protection.



In IM-v-LM and AB & Liverpool City Council [2014] EWCA Civ 37 the Court of Appeal carried out a comprehensive review of the case law in relation to the question of capacity to consent to sex. The Court unanimously concluded that the test for determining capacity to engage in sexual relations was not "person specific" but required a much simpler issue or situation specific approach.

In RC-v-CC & X Locatl Authority [2014] EWHC 131 (COP) the President of the Court of Protection, Lord Justice Munby confirms that the test for disclosure is whether it is "strictly necessary" to deny disclosure as opposed to whether disclosure is strictly necessary. He also questioned the suggestion that disclosure could properly be made to counsel only.









Monday 10 February 2014

Chambers UK Guide to the Bar

We are delighted to have enjoyed recognition in Chambers UK Guide to the Bar 2014.

Kings Chambers was the 3rd ranked set in the country for the number of  practice areas in which members were listed, and was the 9th ranked chambers in the country for total barrister rankings.



We were one of only two chambers on the Northern Circuit to be ranked for clinical negligence work and several members received praise for their healthcare law work.

The Guide said:

"Kings Chambers' barristers act for claimants and defendants in relation to a broad range of clinical negligence issues, with recent instructions including neo-natal negligence, cosmetic surgery and psychiatric negligence cases. Solicitors characterise it as an "innovative" and "forward-thinking" set with a well-organised and "approachable" clerking team."

"The clerks bend over backwards to sort things out for you."

"Kings Chambers is widely considered the leading set for administrative and public law matters on the Northern Circuit ... The set's public law team are acknowledged experts across a wide range of issues such as local authority decisions, planning disputes, social welfare, healthcare and equality law."


Ranked barristers in the team are:

Nicholas Braslavsky QC: "He has a sharp and analytical mind and is an excellent advocate."

Nigel Poole QC: "Receives glowing praise ... combines a client-friendly approach with a fantastic intellect."

Simon Burrows: "... very charismatic, has a good sense of humour and is very persuasive. An excellent and intelligent opponent..."

Sarah Pritchard: "approachable, practical, good in round table meetings and quick to get to the heart of a case."

Adam Fullwood: "He is impressive in court and very friendly towards clients. He is fair, straight-talking and very knowledgeable..."

Jeremy Roussak: "...highly sought after to appear in cases involving complicated medical issues..."

Melanie Plimmer: "Receives strong praise for her handling of administrative and public law matters ... extremely articulate in court..."

Helen Mulholland: "client-friendly, bright and innovative... brave and tenacious."

Stephen Maguire: "Praised for his courtroom demeanour and practical approach..."

Claire Steward: "Receives glowing praise from instructing solicitors. She is commended for her sensitive approach and ability to handle complex cases."

Sam Karim: "He is very passionate about what he does and is a good advocate."

Charlotte Law: "Sources admire her committed and diligent approach ... methodical and thorough. Clients love her."

Stephen McNamara: "... very astute for his level of call and picks up issues quickly. He is very down to earth and good with clients."








Welcome

Specialist. Accessible. Committed.


Kings Chambers Clinical Negligence and Healthcare team offers expert advocacy and advice in many areas of healthcare law. Our barristers practise in the fields of Negligence, Court of Protection, Mental Health, GMC, Inquests and Inquiries, Human Rights and Public Law.






Nine of our members are currently ranked for clinical negligence by Chambers UK Guide. Four others for their Court of Protection, Human Rights and Public Law expertise.

We offer specialist barristers at all levels of experience.

We want to use this blog to share our news and views.

You can visit our web page here and find out about members of our team and the services we offer. We aim to be accessible and invite you to make contact with members of our team by e-mail.

To book a member of the team or for general enquiries, please contact our clerks:

Steve Loxton for Clinical Negligence, Inquests, Inquires and Regulatory matters.


sloxton@kingschambers.com




Mark Ronson for other Healthcare matters.

mronson@kingschambers.com