Friday 16 May 2014

Webster-v-Liddington - Doctors' Liability for Misrepresentation


Dr Nicholas Braslavsky QC  Andrew Grantham


Dr Nicholas Braslavsky and Andrew Grantham have been successful in the Court of Appeal in the landmark decision of Webster-v-Liddington [2014] EWCA Civ 560 in which the Court of Appeal held that medical practitioners could be liable in damages for misrepresentation when the content of manufacturer’s literature provided to prospective patients prior to them undergoing treatment was materially false in the absence of an express disclaimer.
The case involved a class action brought by over 50 claimants who alleged that they had been induced to undergo a course of innovative non-surgical cosmetic treatment known as Isolagen. The treatment involved the removal of cells from the patient, cultivating them in bovine calf serum and then re-injecting them into the patient’s face.  The manufacturer’s literature claimed that the process involved the reinjection of only the patient’s own cells.  In fact, there would be small quantities of bovine material.  At first instance HHJ Platts held that the medical practitioners had adopted the content of the literature as their own representations and that the representations were materially incorrect.
On appeal two issues arose.  First, whether the medical practitioners had adopted the content of the literature as their own representations given the absence of any express warranty as to the truth of such statements; and second, whether those representations were materially false given the small quantities of bovine material that would be left in the material injected into the patients.
The Court of Appeal reconsidered the law both concerning the adoption of third party statements and the test for falsity of representations in what is clearly a landmark decision: the implications are potentially extremely serious.  Any person with access to superior information who hands over literature produced by a third party with the objective of inducing a person to contract with him may be liable for the content of that literature in the absence of an express disclaimer.  The motto is clear:  the importance of a suitably worded disclaimer cannot be overstated.”


Note that the question of damages for the claimants is yet to be decided. Nevertheless this judgment may have important ramifications not just for for doctors but for other healthcare professionals and, indeed, non-medical professionals and service providers.   





Tuesday 13 May 2014

Clinical Negligence Quantum Updates

Courtesy of Helen Mulholland







CG v NIGDIKAR (2013) AM0202405

Lawtel reference: AM 0202405
Age of Claimant: 29
Injury: Severe blood loss following tooth extraction
Total Damages: £4,000
Damages for Pain, Suffering and Loss of Amenity: £4,000


The Claimant alleged that the Defendant performed an inappropriate extraction, as her INR was unstable. 

The Claimant was said to have experienced pain, discomfort and emotional stress as she had to be hospitalized for three days whilst her bleeding was brought under control. She was rendered anaemic (albeit temporarily) and required additional trips to her GP.


XV v MAYDAY HEALTHCARE NHS TRUST (2012)

Lawtel reference: AM 0202399
Age of Claimant: 31
Injury: wrongful birth claim
Total Damages: £2,300,000
Pain, Suffering and Loss of Amenity: £35,000

The Claimant’s partner’s family had a history of spinal muscular atrophy (SMA) and that she was concerned that her unborn child might have the condition. Although the midwife made a note of this, the Claimant was not offered an appointment with a consultant or any diagnostic test.
The Claimant’s baby was born with congenital spinal muscular atrophy. 
The Claimant’s evidence was that if she had been offered the test, she would have taken it and would have undergone further screening. She asserted that, after counselling, she would have opted to have a termination.

  

BLYTH v (1) NORTHERN LINCS & GOOLE HOSPITALS NHS TRUST (2) UNITED LINCS HOSPITALS NHS TRUST (2013)

Lawtel reference: AM0202382
Age of Claimant:, 23
Injury: ectopic pregnancy.
Total Damages: £5,500
Damages for Pain, Suffering and Loss of Amenity: £5,363.75


CS v NORTH YORKSHIRE & YORK PRIMARY CARE TRUST (2013) 

Lawtel reference: AM0202384
Age of Claimant: 69
Injury: pain and suffering following negligent hip replacement
Total Damages: £75,000
Damages for Pain, Suffering and Loss of Amenity: £35,000


The Claimant was said to have experienced severe pain and discomfort for a period of twelve months prior to revision surgery including numbness in her right side and numerous fallsand to have undergone an unnecessary hip revision.

SPENCER v ONCERIU (2013)

Lawtel reference: AM0202391
Age of Claimant: 60
Injury: tongue laceration during dental procedure
Total Damages: £902
Damages for Pain, Suffering and Loss of Amenity: £750

The duration of the injury was three weeks.




EK v BIRMINGHAM WOMEN'S NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202388
Age of Claimant: 32
Injury: failure to identify and treat internal bleeding and bruising leading to physical symptoms and psychiatric injury
Total Damages: £40,000
Damages for Pain, Suffering and Loss of Amenity: £37,000

The Claimant suffered a delay in internal bleeding being diagnosed and treated. Whilst she was suffering the symptoms of the bleed, she was scared and had a genuine belief that she would die.


PENDLEBURY v F & H (2013)

Lawtel reference: AM0202383
Age of Claimant: 55
Injury: failure to diagnose and treat periodontal disease
Total Damages: £35,000
Damages for Pain, Suffering and Loss of Amenity: £16,000

The Claimant suffered bone loss of 80% in UR5 UR4 UR2 UL4 and UL5. She had to have extractions of several teeth and underwent implant replacement.


TH v NORTH YORKSHIRE & YORK PRIMARY CARE TRUST (2012)

Lawtel reference: AM0202385
Age of Claimant: 67
Injury: pain and suffering following negligent hip replacement.
Total Damages: £100,000
Damages for Pain, Suffering and Loss of Amenity: £30,000

The Claimant suffered 20 months pain and suffering and had to undergo unnecessary revision surgery.



XXX v BARNET & CHASE FARM HOSPITAL NHS TRUST (2013)

Lawtel reference: AM0202374
Age of Claimant: 10
Injury: injuries following a failure to diagnose pneumococcal meningitis
Total Damages: lump sum of £2,900,000 plus periodical payments
Damages for Pain, Suffering and Loss of Amenity: £275,000

The Claimant suffered severe spastic quadriparetic cerebral palsy, epilepsy, sensorineural deafness and significant learning difficulties. The Claimant would require care for the rest of his life.


KA v DERBYSHIRE HEALTH UNITED (2013)


Lawtel reference: AM0202368
Age of Claimant: 22
Injury: injuries arising from failure to diagnose gastric perforation
Total Damages: £80,000
Damages for Pain, Suffering and Loss of Amenity: £40,000

The delay in diagnosis led to complications, including a chest and wound infection. The Claimant also had scarring, psychological injuries, and would potentially experience fertility problems in the future.


TMR v ROYAL DEVON & EXETER NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202371
Age of Claimant: 30
Injury: failure to carry out appendicectomy as part of surgical treatment for ovarian cancer
Total Damages: £8,500
Damages for Pain, Suffering and Loss of Amenity: £7,500

The Claimant underwent a total abdominal hysterectomy and removal of the remaining ovary followed by infra-colic omentectomy and paraaortic node sampling. She had been told that she would also require an appendicectomy But this was not in fact carried out.
The Claimant had to endure a third open surgery procedure, and thereafter spent weeks recuperating from this.


JLH v COUNTY DURHAM & DARLINGTON NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202372
Age of Claimant: N/A (Fatal Claim)
Injury: Post partum haemorrhage, hypothermia, hypovolaemia
Total Damages: £565,000
Damages for Pain, Suffering and Loss of Amenity: £17,000 (est)

At the inquest, the coroner gave a narrative verdict, stating that medical management of the postpartum haemorrhage, subsequent hypothermia and possible hypovolaemia, together with a lack of medical and midwifery communication, contributed to the Deceased’s subsequent medical complications which ultimately led to her death.
Claims were brought under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.


TH v THE LEEDS TEACHING HOSPITALS NHS TRUST (2013)

Lawtel reference: AM0202370
Age of Claimant: 58
Injury: pressure sore
Total Damages: £25,000
Damages for Pain, Suffering and Loss of Amenity: £23,000

The Claimant received poor post-operative care and developed a pressure sore which was said to be grade 2. It was dressed daily, but developed into a grade 3 lesion. The pressure sore gradually improved, but the Claimant was left with scarring and pain.


JN v (1) EAST CHESHIRE NHS TRUST (2) ST HELENS & KNOWSLEY TEACHING HOSPITALS NHS TRUST (2013)

Lawtel reference: AM0202373
Age of Claimant: 60
Injury: amputation of right leg
Total Damages: £1,100,000
Damages for Pain, Suffering and Loss of Amenity: £100,000


The Claimant was examined in November 2007 in the Defendant’s Emergency Department. She was seen by a senior house officer who did not note the pain in the Claimant’s legs or coldness of her feet (although the Claimant’s son later insisted that both he and C had provided such information). The Claimant claimed that there were further opportunities to identify vascular compromise that were missed.

The case settled without admission of liability.


TCM v WARDLE (2013)

Lawtel reference: AM0202376
Age of Claimant: 73
Injury: tongue laceration
Total Damages: £14,500
Damages for Pain, Suffering and Loss of Amenity: £12,000


The Claimant’s tongue was lacerated during a dental procedure. Liability was denied. The Claimant had permanent symptoms of paraesthesia and some psychological symptoms .


H v ANEURIN BEVAN LOCAL HEALTH BOARD (2013)

Lawtel reference: AM0202378
Age of Claimant: 40
Injury: delay of 11 days in diagnosing ulna fracture leading to surgical intervention
Total Damages: £1,500
Damages for Pain, Suffering and Loss of Amenity: £1,500




A v BEDFORD HOSPITAL NHS TRUST (2013)

Lawtel reference: AM0202377
Age of Claimant: 53
Injury: perforated bowel
Total Damages: £54,000
Damages for Pain, Suffering and Loss of Amenity: £35,000

AW v OXFORD UNIVERSITY HOSPITALS NHS TRUST (2012)

Lawtel reference: AM0202367
Age of Claimant: 46
Injury: severe bleeding (caused by administration of excessive heparin) which caused infection in the knee
Total Damages: £196,000
Damages for Pain, Suffering and Loss of Amenity: £40,000


The Claimant had significant knee symptoms for which she underwent a total knee replacement. Tests undertaken prior to surgery were said to confirm that she had antiphospholipid syndrome conferring a thrombotic tendency and that she needed to remain on warfarin for the rest of her life. It was stated that she needed 'good thromboprophylaxis' following a total knee replacement.



When the Claimant was admitted for her left total knee replacement, she underwent a heparin infusion and her records noted UFH 25,000 in 50ml. Following the operation, the heparin was stopped and C was noted to be feeling unwell and faint, and blood was oozing from her wound. C was subsequently transfused four units of blood and was seen by consultants. It was noted that C was feeling faint and light-headed and that there had been lots of fresh oozing from the wound overnight but there was no evidence of compartment syndrome. On investigation, it appeared highly likely that the post-operative syringe driver contained 125,000 units of UFH rather than 25,000 units and this would explain the over anticoagulation and bleeding.
The Claimant suffered pins and needles and blistering in the knee. She underwent blood transfusions. She developed an infection in the with sudden pain, redness and swelling of the left knee and was referred to hospital where she underwent a surgical washout and debridement.

The Defendant admitted breach of duty but disputed causation and the claim was settled. 



SZ v TEACHING HOSPITAL NHS TRUST (2013)

Lawtel reference: AM0202398
Age of Claimant: 27
Injury: paraplegia
Total Damages: £2,977,000 lump sum and periodical payments of £100,000 per annum rising to £154,000 after 10 years.
Damages for Pain, Suffering and Loss of Amenity: £220,000 

The Claimant underwent a pancreatic transplant aimed at managing his diabetes. Pain relief was to be managed via a spinal block, but the anaesthetist had difficulty inserting the Tuohy needle. At the third attempt, the Claimant’s spinal cord was damaged, rendering him paraplegic.

Liability was admitted.

The Claimant worked in a builders' merchants on a management trainee programme at the time of his injury. He had always worked in employment of a manual nature. C was therefore at significant disadvantage on the labour market and had failed to hold down any continuous employment at the date of settlement.


The Claimant needed to be urgently rehoused in a council property. Interim damages were thereafter sought to rehouse C in a property more appropriate to his needs.

The settlement was approved by the Court. The full breakdown is available on Lawtel.


NF (ON BEHALF OF THE ESTATE OF X DECEASED) v BLACKPOOL TEACHING HOSPITALS NHS FOUNDATION TRUST (2013)

Lawtel reference: AM0202397
Age of Claimant: N/A FAA CLAIM
Injury: pressure sores
Total Damages: £30,000
Damages for Pain, Suffering and Loss of Amenity: £10,000

The Claimant fell and fractured her left humerus whilst an inpatient. She had previously been assessed as having a high risk of falling. She developed several pressure ulcers on her body including one grade two ulcer on her sacrum. Her condition deteriorated and she died.