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".

Capacity and Protecting Parties from their Lawyers - Dunhill-v-Burgin

The Supreme Court has given a succinct and clear judgment in the case of Dunhill-v-Burgin [2014] UKSC 18 . writes Nigel Poole QC

In 1999 Ms Dunhill, was a pedestrian when she was struck by a motorcycle driven by the appellant, Mr Burgin. She suffered a severe head injury. In May 2002 she brought a claim for damages and on the day of trial settlement negotiations took place and Ms Dunhill, after advice from her counsel and solicitor, decided to compromise her claim for £12,500 plus costs.

In fact Ms Dunhill had suffered very serious injuries and this settlement represented a gross undervalue of her claim (provided she could prove negligence). In 2006 she consulted new solicitors. A litigation friend was appointed to act on her behalf, and an application was made that the consent order should be set aside.

Two preliminary issues arose. What was the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf. Was it a test of here capacity to litigate in a general sense or was it a test of her capacity to consent to the settlement? Further, what were the consequences if a person lacked capacity but their claim was settled without court approval under CPR Part 21.10. The Defendant did not argue that retrospective approval should be given. In other cases that might very well be a pertinent issue.

The High Court held that capacity was to be judged by reference to the decisions which Ms Dunhill had actually been required to take in the action as drafted rather than those which she might have been required to take had the action been differently framed. On this basis she did have capacity. The Court of Appeal disagreed and held that she had to have capacity to conduct the more complicated action which ought to have been brought. When the case was remitted to the High Court, it held that her lack of capacity rendered the settlement void as it had not been approved by the court as required by CPR 21.10.

The Supreme Court gave permission to Mr Burgin to appeal against both findings and dismissed the appeals, lady hale giving the judgment of the court. The test properly to be applied was whether Ms Dunhill lacked the capacity to commence and conduct proceedings arising out of her claim. The test of capacity to conduct proceedings for the purpose of CPR 21 is the capacity to conduct the claim or the cause of action which the claimant in fact has rather than to conduct the claim as formulated by her lawyers which might depend on whether advice given was good or bad. On this test it was common ground that Ms Dunhill lacked that capacity [13-18].

The effect of incapacity
It followed that Ms Dunhill should have had a litigation friend when the proceedings were begun. Although the court had power to validate steps taken without a litigation friend retrospectively, it was not just to do so in this case in relation to a settlement and consent order made. The consequence was that the settlement was of no effect. The terms of CPR 21 did not enable Mr Burgin to rely on the fact that he had not been on notice of Ms Dunhill’s incapacity [22].

Although there was a need for finality in litigation, and the difficulty of re-opening cases such as this so long after the event was recognised, the policy underlying the CPR was clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers [32-33]. Accordingly the consent order must be set aside and the case go for trial [34].

The case appears to leave open the question of whether and in what circumstances it would be right retrospectively to approve a settlement notwithstanding that approval was needed but not obtained at the earlier time. In this case there was a large disparity between the damages recovered and the award which might be recoverable - that might be a salient factor in any future disputed case.

Manchester provided barristers  for both sides in this appeal and the successful solicitors (Potter Rees).

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".

The Court rejected that submission and accepted  "the correct comparator was that advanced before the Judge, a tertiary specialist in AA [aplastic anaemia"].

Chester-v-Afshar

Second, the Court of Appeal considered the application of Chester-v-Afshar, a striking decision of the House of Lords, and said, "Chester is at best a modest acknowledgement, couched in terms of policy, of narrow facts far from analogous to those we are considering." That approach is in accordance with many commentators' expectations of how the courts would view Chester-v-Afshar.

Expert Treated Claimant

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:

"112. Prof Cavenagh had been obliged to answer the charge that he was a disgrace to his profession. The basis for the slur appears to be that having accepted instructions before he met the Claimant he ought not to have treated him on referral by Prof Dokal or he should have withdrawn from the case. It was put to him that he sought to abuse the relationship of doctor and patient so as to advance the case for Prof Marsh, suppressed the fact that he had sent blood samples to Prof Dokal for active testing in a clinical situation, was not impartial, was too close to Professor Marsh, and was not independent of Prof Dokal, working in the same institution as and accepting referrals from him.

113. I notice too that during cross-examination Prof Marsh was accused of having lied.

114. It seems to me noteworthy that the Judge not only rejected the criticisms absolutely but went on to express how helpful and reliable he found Prof Cavenagh and to exculpate Prof Marsh from any suggestion of untruthfulness."