Secondary Victims in Clinical Negligence (again): Shorter v Surrey

In the recent case of Shorter v Surrey the High Court gave further consideration to the application of the control mechanisms to secondary victim claims in clinical negligence (see previous post on Wild and Wild).

No new ground is broken but in such a complex area, any application of the rules to a new set of facts is of great use to those considering bringing a secondary victim claim. Some helpful clarification is provided on a number of issues.

The Facts

Very briefly, the Claimant’s sister died on 13 May 2009 at St George’s Hospital, as a result of a subarachnoid haemorrhage, caused by an aneurysm, having been admitted on 12 May.

Previously on 5 May 2009, the deceased had another SAH caused by the same aneurysm, causing a severe headache. She attended at the Defendant’s hospital and underwent a CT scan but the aneurysm was not identified. Liability (for the death) was admitted.

The Claim

The Claimant brought a claim as a ‘secondary victim’, the basis of which is described as follows:

She was aware of her sister’s collapse on 5 May 2009 and of what happened thereafter.  In particular, she was present with Mrs Sharma at ESH following Mrs Sharma’s admission there on the morning of 12 May and she was also at SGH [St George’s] from shortly after Mrs Sharma’s admission there until after she was pronounced dead on 13 May.

The Particulars of Claim alleged at paragraph 25, that, as a result of the Defendant’s negligence, the Claimant suffered a number of different insults which:

“constituted a seamless single horrendous event starting with the news of the serious deterioration in Mrs Sharma’s condition on the morning of the 12th May 2009 and that she had suffered a subarachnoid haemorrhage which had gone undiagnosed and untreated and concluding with her death which resulted in the Claimant sustaining … nervous shock …”.

This is a clear reference to the ‘seamless tale’ in Walters (see previous post).

The Defendant denied the claim on the basis that the control mechanisms were not made out, specifically:

-          There was no single seamless event

-          The Claimant did not witness all of the event(s)

-          There was a gradual realisation over a prolonged period of the probable consequences for her sister.

The Defendant had argued that the relationship between the Claimant and her sister was not sufficiently proximate but had conceded this point by the time of judgment.

The Judgment

Mrs Justice Swift gave detailed consideration to all of the authorities on secondary victims, particularly those in clinical negligence cases. The Judge found as follows:

The nature of the ‘Event’

Considering Walters [210]:

The “event” was a convenient description for “the fact and consequence of the defendant’s negligence” and that it had begun “with the negligent infliction of damage”, i.e. at the time of the baby’s convulsion.  That was the time when the consequence of the negligence first became evident.  There would of course have been ongoing consequences affecting the baby’s biological processes for some time previously but it was only at the time of the convulsion that those consequences became evident and impacted on the claimant.

Applied to the present case [211], Swift J found that the negligence started on 5 May when the aneurysm was not diagnosed, and continued thereafter. It was a week later when the deceased attended SGH that “both the fact of the negligence and of the potential consequences of that negligence became known”.

Although the fact and consequence of the negligence became known to the claimant on 12 May, she was informed of developments by telephone. At that stage there was no element of physical proximity to any event [212]:

“Even when she saw her sister on a life-support machine, her perception was informed by the information she had been receiving over the previous 15 hours or so and by her own professional knowledge. ([218])”

So this was a “series of events over a period of time”, only some of which occurred when the claimant was proximate to them ([218]) (suggesting that it cannot have been a ‘seamless tale’). Accordingly the events were not sufficient to satisfy the control mechanisms.

“Horrifying”

When the Claimant subsequently arrived at SGH, the deceased was not (the judge found) in the dramatic state of pain and distress contended by the Claimant. She was not in such a condition that to see her could be described as a ‘horrifying event’ or to cause ‘violent agitation of the mind’. Even if she had been in the state described by the Claimant that would not have been sufficient to meet the ‘horrifying event’ test ([213]).

Interestingly the Claimant had argued that the events were more ‘horrifying’ for the Claimant because she had professional expertise as a nurse and therefore a more detailed understanding of what was happening. The Judge dismissed this argument, finding that “the event must be one which would be recognised as ‘horrifying’ by a person of ordinary susceptibility, in other words, by objective standards. After all certain people would find it more frightening to have no medical knowledge…”

Analysis

Though this case turns on its facts, it is a useful example of how the control mechanisms apply in practice, in particular where there is a series of events, some of which are witnessed by C and some of which are not.

Further, a number of interesting issues are raised and dealt with in this appeal. Though it is not a binding authority the reasoning appears sound on the basis of the previous authorities:

1. It is clarified that the “event” begins when the fact and consequence of the negligence become evident,

Firstly this confirms that the negligence and the consequence thereof do not need to be concurrent in time, and therefore that C need not witness the negligence.

Accordingly it seems that where there has been negligence, the first consequence of which is evident some time later (unlike in Taylor v A Novo where there were 2 consequences), and that consequence is witnessed by C, that consequence will be the ‘event’ (or the start of it) and may give rise to a secondary victim claim.

2. The ‘event’ must be ‘horrifying’ on an objective basis and special knowledge that the Claimant possesses is not relevant.

This must be right given that the basis of the mechanisms is proximity. Whether a defendant should have in mind a secondary victim claimant as potentially being injured by his negligence cannot include considerations of special knowledge C may possess.

3. It appears that a series of events was not a ‘seamless tale’ because the Claimant had not been present throughout.

This again seems entirely consistent with the authorities. The definition of the ‘event’ must always be from the point of view of the secondary victim and if only some events are witnessed, they are separated from one another (unlike in Walters where the Claimant was involved throughout).

               

Secondary Victims Following Wild v Southend: Where Are We Now?

Secondary Victims – Where are we now?

An update following Wild & Wild v Southend

This post analyses the state of the law on Secondary Victims (SV), in particular in the clinical negligence context, following the case of Wild v Southend (available here). I consider below the background and key authorities, and the effect of Wild itself. 

Where did we start?

It is not immediately clear why Primary Victim (PV) and Secondary Victims (SV) claims should be treated differently. The answer is the issue of proximity to the Defendant. Lord Keith explained the importance of proximity in Alcock at 397:

“I am of the opinion that in addition to reasonable foreseeability liability for injury in the particular form of psychiatric illness must depend in addition upon a requisite relationship of proximity between the claimant and the party said to owe the duty. Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562, 580 described those to whom a duty of care is owed as being:

"persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

Control Mechanisms

Lord Oliver identified ‘common features’ from all the reported cases (later the ‘Control Mechanisms’). They were set out by Lord Oliver at 411 (underlined text), and further detailed in Alcock and other cases, as referenced below):

• The psychiatric injury arises from sudden and unexpected shock to C’s nervous system.
• There are close ties of love and affection between C and PV.
• C was either ‘personally present at the scene of the accident or was in the more or less immediate vicinity and witnessed the aftermath shortly afterwards.
• The injury arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the PV.
• There is not only an element of physical proximity but a close temporal connection between the event and the plaintiff’s perception of it combined with close relationship of affection.

The significance of the mechanism is: If these are satisfied, there well be sufficient proximity between the PV and Defendant. 

North Glamorgan v Walters

Facts

The Claimant’s son had been ill and was admitted to the Defendant hospital (though it failed to diagnose his acute hepatitis). The Claimant was asleep in the hospital at her child’s side when she awoke to him having a fit at 0300 on 30 July. She was told he had suffered no brain damage but he was transferred to Kings College Hospital.

On 31 July, C was told that he had suffered brain damage from the fit and that his quality of life would be poor. The decision was taken to withdraw treatment and the life support machine was turned off; he died a short while later in C’s arms.

The trial judge found that C could recover as she had suffered the injury as a result of experiencing sudden shock. He found that the event had lasted the whole 36 hour period from the fit.

On appeal the court considered whether the events qualified as ‘a horrifying event’ and whether the injury was caused by a ‘sudden appreciation’ as opposed to a ‘gradual assault’.

Issue 1 – was the 36 hour period one horrifying event?

At 34, Ward LJ said:

the law as presently formulated does permit a realistic view being taken from case to case of what constitutes the necessary "event". Our task is not to construe the word as if it had appeared in legislation but to gather the sense of the word in order to inform the principle to be drawn from the various authorities. As a word, it has a wide meaning as shown by its definition in the Concise Oxford Dictionary as: 'An item in a sports programme, or the programme as a whole".

[…]

In my judgment on the facts of this case there was an inexorable progression from the moment when the fit occurred as a result of the failure of the hospital properly to diagnose and then to treat the baby, the fit causing the brain damage which shortly thereafter made termination of this child's life inevitable and the dreadful climax when the child died in her arms. It is a seamless tale with an obvious beginning and an equally obvious end. It was played out over a period of 36 hours, which for her both at the time and as subsequently recollected was undoubtedly one drawn-out experience.

The court found that the totality of the events were horrifying ([35]):

For my part the facts only have to be stated for the test to be satisfied. This mother awakens to find her baby rigid after a convulsion. Blood is coming from his mouth. He is choking. Is that not as much an as-sault upon her senses as if her child had been involved in a road accident, suffered grievous head injuries as yet undetected and was found bleeding in the car seat?

Issue 2: Was the condition caused by sudden appreciation or a more gradual assault?

The court found at [39] that the medical evidence was clear. The injury was caused by shock. As to whether the events were sufficiently sudden, (at [40]):

Each of these three events had their impact there and then. This is not a case of the gradual dawning of realisation that her child's life had been put in danger by the defendant's negligence. A consequence of that negligence was that the child was seized with convulsion. She was there witnessing the effect of that dam-age to her child. The necessary proximity in space and time is satisfied.

Taylor v A Novo:

The Claimant’s mother was injured at work (27.2.2008) and apparently recovered. Later (19.3.2008) she died from a pulmonary embolism caused by the accident. The sole issue was whether C was entitled to claim as a “secondary victim”; specifically whether she had witnessed the ‘accident’ or ‘event’. C submitted that the ‘event’ in this case was the death.

The Court of Appeal held ([29]) that in this case there was a single accident or event with 2 consequences: (i) Injury to head / arm and (ii) her death three weeks later.

The Court distinguished Walters (at [35]) on the basis that there were 2 events, not a ‘seamless tale’ as described in Walters. “The injuries and death suffered by Mrs Taylor were certainly not part of a single event or seamless tale”.

Wild & Wild v Southend University Hospital

This is a case which seems to have caused concern among practitioners, though it should first be noted that this is a High Court case. Further, it sets out no new principle. Like Walters it merely applies arbitrary and somewhat unsuitable principles to complex situations.

Facts

C was due on 20 March 2009. Attended an appointment on 10 March 2009 with her husband, at which time the Defendant’s midwife was negligent (it is not clear how). C noticed vaginal bleeding on 20 March 2009 and attended hospital. FHR not detectable. Multiple midwives attempted to auscultate the FHR but could not. Parents were not actually told that intrauterine death had occurred. The baby was delivered still-born on 21 March 2009.

Both C’s suffered psychiatric injury arising from the still birth of their son, in particular from the realisation that their son had died when no FHR could be heard. “knowledge of the death” was the cause of the injury (Psychiatrist, see judgment at [10]-[11]).

The Issues

Mrs Wild was held to be the PV given that foetus and mother are considered to be the same person in law (see [22]). Though the court did not appear to consider it, the fact that Mrs Wild was clearly within the range of foreseeable physical injury also indicates that she was the primary victim (as per Page v Smith). That also removes the need to consider the more complex issues of law surrounding the foetus.

The main issues on the secondary victim claim were as to (iii) (iv) and (v) of the control mechanisms:

The court considered the distinction between Walters and Taylor, raising an issue as to which might apply to Wild. The issue was not resolved because the judge based his decision on the ‘horrifying’ element of the control mechanisms.   

The Ratio

The Defendant’s arguments (at [45]-[47]), which were accepted, were that:

• There was no shocking event to witness, only the shocking fact to experience the death of a loved one or the death of the soon to be born baby.
• Just as those in Alcock who were watching television did not qualify, Mr Wild’s realisation based on the actions of the staff in the hospital does not qualify.
• “As in fact the baby had already died, by definition Mr. Wild was not a witness of the injury and death suffered by Matthew. Even if the injury is characterised, as a matter of law, as having been suffered by Mrs Wild, that was an injury that had already occurred at some time between the 10th and 20th March.”

The key passages are as follows:

• Mr Wild was experiencing a growing and acute anxiety… But none of that… amounts to “actually witnessing horrific events leading to a death or serious injury” ([47])

• In my judgment this case is materially different from the facts in Walters being based on an “event” which starts with the realisation that Matthew has already died ([53])

The author’s view is that this has been somewhat misinterpreted, and its effect overstated. The court did not find that there was no horrific event – no specific finding was made but the stillbirth would most likely satisfy that test. However the claim failed for three reasons:

• The (horrific) event did not lead to injury to the PV; it flowed from injury to the PV;
• There was no ‘inexorable progression’; there were 2 separate events;
• The witnessing of the (second) event did not cause the SV’s injury, the injury stemmed from his realisation about the death;

Conclusions

In conclusion the authorities establish that the following requirements must be met in relation to the 'witnessing a horrific event' control mechanism in a secondary victim claim:

1. C must witness the event. Not hearing or realising it as a fact. (i.e. Wild)
2. The event has to be shocking and that has to cause the injury to the SV. Not realisation, (Wild) not the bereavement, but what was witnessed.
3. It must be a single event. However it need not all occur in a few seconds (Walters – can be over days). But not an event followed by another event (i.e. Taylor v A Novo / Wild)
4. The event must ‘Immediately’ cause death or injury. Immediate in the sense that it is the direct and immediate result - not a later consequence as in Taylor v A Novo. Events which flow from the death or injury will not suffice (Wild)

The importance of the question of proximity cannot be overstated: Is it reasonable for D to have the SV in contemplation? 

In the case of a father in a stillbirth case the obvious answer is yes.

However the broader answer comes from Allcock: D only has to contemplate those in the immediate area of the accident or injury who are also closely connected to the PV. Otherwise, D would have to consider (and be liable to) anyone who came upon the scene (over whom D has no control) and the limits of liability would be endless.

That produces a result in clinical negligence cases, and in particular stillbirth cases, which is arbitrary and apparently unfair. However that is unlikely to change in the near future and we are left with the Alcock control mechanisms unless and until Parliament opts to change the law.  

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.

Cerebral Palsy Claim Defeated at Trial

The Decision of Mr Justice Phillips in the High Court in Aspinall-v-Sec of State for Health [2014] EWHC 1217 (QB)  illustrates the difficulty which can arise for a claimant who relies on inference to prove breach of duty and the limitations of seeking to apply of Bailey-v-MOD, writes Nigel Poole QC.

The case involved allegations of negligence concerning the Claimant's neonatal management in 1982. The Cliamant had been born by Caesarean section at 32 weeks gestation in poor condition. In the first hours of life he was intubated and was noted, at about 0015 hours on the day after birth, to be suffering from metabolic acidosis. He developed hyaline membrane disease and an intraventricular haemorrhage and hydrocephalus with resultant severe cognitive and physical disability.

By the end of the trial, which was on liability only, the sole focus of dispute was on the allegedly negligent failure to detect and rectify a problem with the Claimant's ventilation during a 45 minute period between 2330 hours and 0015 hours, when he was 2-3 hours old. It was common ground that by 0015 hours the Claimant's endotracheal tube had slipped out of position. the Claimant's case was that the seriousness of the Claimant's condition at that time indicated that it was likely that the tube had slipped out of position by 2330 hours after which time some oxygen had reached the Claimant, but not a sufficient amount.

According to the judgment this case arose out of oral evidence from the Claimant's expert. The Judge rejected it for two principal reasons. First, the theory was "no more than speculation, it being more likely that the tube was disturbed" when checks were made at about 0015 hours. Second, the doctor concerned with the Claimant's care (over 30 years previously) said in evidence that she would have been watching the Claimant's breathing on a continual basis and would have noticed if he had ceased to breathe in time with the ventilator.

The Judge was satisfied that the Claimant's deteriorating condition up to 0015 hours was explicable by his condition at birth rather than deprivation of oxygen in the neonatal period. The Claimant could not, in the judge's finding, prove causation on a "but for" analysis. His Counsel relied, in the alternative, on Bailey-v-MOD, contending that the 45 minute period made a material contribution to the subsequent brain damage. the Judge rejected that argument:

"...this is not a case of cumulative agents, where it is impossible to determine whether or not a negligent act caused any injury. In this case the experts have been able to express a clear view as to whether the injury would or would not have occurred in any event and I have found that because of the Claimant's condition at birth, it would have occurred notwithstanding the 45 minute period in question.
"I accordingly hold that, even if the Defendant had been responsible for the worsening of the Claimant's condition between 2330 and 0015 (contrary to my finding above) I would not have found that such matters caused the Claimant's ultimate brain injury."

Bailey-v-MOD will not apply unless medical science cannot answer the but for test one way or the other. If the Court is satisfied that the evidence answers the but for test negatively from the Claimant's point of view, then Bailey-v-MOD does not permit a "second bite at the cherry".

Recent Clinical Negligence Quantum Cases

Links are available for subscribers to Lawtel.                                

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.