Clinical negligence and PI

Clinical negligence

In Gouldsmith v Mid Staffordshire General Hospitals NHS Trust [2007] EWCA Civ 397, the Court of Appeal held that the judge had erred in his application of the Bolitho principle on causation.

The case examined what would and should have happened following referral of the claimant to a specialist, tertiary, hospital because of an arterial stenosis just beyond the origin of the claimant's left subclavian artery, the failure to refer having been considered by the judge to be in breach. The judge asked the question whether every specialist exercising the proper standard of care would have operated, and answered it in the negative; therefore, the judge concluded that the ongoing damage of amputation of a thumb and two fingers would not have been avoided and the Trust could not be held responsible for such injuries.

The appeal court held that there should be a two-step approach to causation. The correct approach was: (1) what would in fact have happened if the claimant had been referred to a specialist hospital, for example would, on the balance of probabilities, a surgeon have operated if the claimant had been referred? If the answer to this was not in the affirmative, then the next question had to be asked, which was: (2) what should have happened, for instance would that specialist have been negligent in not operating, applying Bolitho v City and Hackney Health Authority [1998] AC 232. The appeal court was of the view that the Bolam test and standards of care had no part to play in considering the answer to the first question, what would have happened, and the judge had erroneously subsumed question 1 within question 2. The court adopted the analysis of Hobhouse LJ in Joyce v Merton, Sutton and Wandsworth Health Authority [1996] 7 Med.L.R. 1 at p 20: 'Thus a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person's duty towards the plaintiff required that she take that action'. Therefore, in this case, if the answer to question 1 was in the affirmative, then causation was determined (applying Joyce) and the second question did not arise.

In Sutcliffe v BMI Healthcare Ltd [2007] EWCA Civ 476, the Court of Appeal considered the claimant's appeal. The claimant's case concerned an alleged nursing failure to monitor vital signs at about 6am following a routine operation the preceding evening.

This resulted in the claimant a short while later vomiting and aspirating (because of a lack of a gag reflex due to morphine for pain relief and the claimant's deep sleep), ultimately causing cerebral anoxia and brain damage.

The High Court had found that the nursing had been negligent in failing to respond to an oxygen saturation of 90 per cent in recovery shortly after the operation, and in some other respects, but that none of these had caused the catastrophic event. Importantly, the judge had found that the nurses exercised reasonable clinical judgment in deciding not to perform observations of vital signs at 6am when the claimant was asleep.

The judge had also found that, even if the nursing staff had been in breach and had roused the claimant to carry out the observations at or after 6am, he would have gone back to sleep, and the aspiration and consequential anoxia and brain damage would not have been avoided. The claimant thus failed on both breach and causation. The claimant appealed on a number of grounds, all rejected by the appeal court.

The claimant argued that the judge should not have accepted that it was reasonably justifiable nursing practice to leave the claimant to sleep at 6am without carrying out pulse, temperature and blood pressure observations; that such observations would have detected a reduced level of consciousness; that the risk of not performing the observations far outweighed any risk of performing them; and the judge accordingly should have rejected the defendant's nursing expert's opinion as not having a logical basis and, therefore, not representing a body of responsible nursing opinion.

The appeal court held that the judge was entitled to accept that the nurses had evaluated risk and benefit appropriately and that this case was not 'one of the rare cases in which the judge should have rejected [the expert's] opinion for want of logic'.

In addition, the claimant failed to persuade the appeal court: (1) that it was unacceptable for the judge to conclude that the oxygen saturations must have recovered on the ward before 6am; the appeal court upheld the judge's conclusion that an established breach in the recovery room many hours before still had no causative effect; and (2) that the judge had erred in preferring the evidence of the defendant's anaesthetist in relation to rousability at 6am; the appeal court confirmed that the judge was entitled to conclude that, if the claimant could have been roused at 6am, he would have gone back to sleep and would still have aspirated.

General practitioners

In Maria Jeanette Holt v Antony Norman Edge [2007] EWCA Civ 602, the claimant appealed against a finding that a GP had been non-negligent in failing to diagnose a subarachnoid haemorrhage and refer to hospital timeously; and, even if the GP had been in breach, it would have made no difference.

The basis of the appeal was that the claimant should have been referred to hospital sooner, the CT scan would have taken place sooner, she would have been diagnosed sooner and the operation would have taken place sooner. However, it was not argued that the outcome (stroke and permanent disability) would have been any different, merely that it would have occurred sooner and the claimant would have been spared a few days' anxiety and unpleasant symptoms. The appeal was on the basis that proper telephone triage by a doctor or proper eliciting of a history of vomiting would have resulted in earlier diagnosis and referral.

The Court of Appeal dismissed the appeal on causation. The court concluded that (1) if the GP had conducted a telephone triage as he should have done, no information, in particular a pounding headache, would have been provided to the doctor that would have made any difference to the decision whether or not to refer to hospital; and (2) while the defendant GP should have questioned directly the claimant about a history of vomiting, the answer would not have prompted immediate referral to hospital.

In Vance v Dr Graeme Taylor [2007] EWHC 1602 (QB), the claimant alleged that the defendant GP did not adequately conduct a home visit consultation with the claimant, such that, if it had been carried out reasonably, he would have been immediately admitted to hospital; and his undetected Staphylococcus aureus infection would have been diagnosed and treated promptly and effectively.

Instead, the claimant remained at home with a supposed back strain, eventually further deteriorating and being admitted to hospital, by which time it was too late to deal with the condition without intensive surgery, permanent damage to his left hip joint and much consequential loss.

The judge found for the defendant. In essence, the defendant was entitled to: (a) have in his consideration the conclusion of back strain already reached by the hospital; (b) manage the complaint of very severe back pain by prescribing a better drug regime and, in effect, advising that an examination be delayed until the new drugs had the desired effect; (c) consider the vomiting (or nausea) as a side-effect of the previous drug regime; (d) fail to act upon profuse sweating, as it was conceded by the claimant that he did not draw this symptom to the defendant's attention and there was no basis upon which sweating, as a sign of fever, was significant enough to challenge the diagnosis of back strain arrived at in hospital.

The judge held that consideration of the claimant's presentation as a whole offered nothing additional to the analysis of the individual factors. The judge also found the claimant 'fell victim to a virulent infection with features in terms of history, presentation and extent that were unusual almost to the point of being unique'.

Periodical payment indexing

In three important cases that have followed hot on the heels of each other, the High Court has considered the issue of periodical payments and indexing.

First, in Corbett v South Yorkshire Strategic Health Authority (QBD, 28 March 2007, unreported), the High Court considered the index against which a cerebral palsy claimant's future periodical payments for care and case management should be measured, whether ASHE 6115 (the Annual Survey of Hours and Earnings occupational group 6115) rather than the Retail Prices Index (RPI).

The Court rejected the defendant's argument that it had no power to adopt a different indexing to RPI, concluding that it had power under sections 2(8) and 2(9) of the Damages Act 1996 to ensure that a damages award was fair and reasonable, applying Flora v Wakom (Heathrow) Ltd (formerly Abela Airline Catering Ltd) [2006] EWCA Civ 1103 and Thompstone v Tameside & Glossop Acute Services NHS Trust [2006] EWHC 2904 (QB).

The defendant also argued that, even if the court had power, then the principle of distributive justice should apply, the court should 'balance, on the one hand, the competing needs of persons in the position of the claimant, against on the other hand, the competing needs of persons who require a well resourced and free health service ' and, therefore, the court should have regard to the competing claims on NHS resources. The court held that the inevitable result of the defendant's argument would be to reduce what otherwise would be the appropriate sum of damages payable to the claimant, which offended against the principle that damages should be calculated so as to achieve as nearly as possible full compensation for a claimant and was against authority binding on the court, applying Wells v Wells [1999] 1 A.C. 345. The court, in considering the indices of RPI, average earnings index (AEI), ASHE Median and ASHE 6115, chose the ASHE 6115 index at a rate of 70 per cent of that measure as the most appropriate for future care and case management in this particular case.

Secondly, in Sarwar v Ali [2007] EWHC 1255 (QB), 25 May 2007, a personal injury claim by a 17-year-old rendered tetraplegic following a road traffic accident, the High Court also considered the issues outlined above in Corbett. Following Flora, the court concluded that under section 2(9) of the Damages Act 1996 it could award indexing other than RPI where it was appropriate and fair to do so. The court considered that: 'indexation on the basis of RPI would fail to meet the objective of ensuring, so far as possible, that periodical payments would meet the claimant's costs of future care'. The Court also considered that a 'substantial risk of over-compensation, were AEI to be employed, [was] inconsistent with the 100 per cent principle', but 'on the other hand, indexation to aggregate ASHE median [was likely] to result in under-compensation to the claimant'.

The Court, therefore, considered that ASHE(90) (90th centile) was the most accurate and precise measure for care and case management. In relation to future loss of earnings, the court had concluded that £55,000 gross per annum represented the most likely average of the claimant's lifelong earnings. On that basis, it was appropriate to link an award of periodical payments to the appropriate decile of aggregated ASHE male full-time earnings; in 2006 the gross earnings for full time adult males at the 90th percentile of ASHE was £52,070. Accordingly, the court concluded that the appropriate measure would be aggregate ASHE (90).

Finally, in RH v United Bristol Healthcare NHS Trust [2007] EWHC 1441 (QB) 20 June 2007, a case in which H had cerebral palsy, Mackay J applied Thompstone, Corbett and Sarwar in concluding that the test for choosing an index was 'whether it is fair reasonable and appropriate in all the circumstances to exercise my discretion to modify the statute on the basis of the evidence, my judgment being informed by my awareness of the need to respect the 100 per cent principle'. The court considered the criteria that should be applied when making a comparative assessment as to whether an index meets the test of fairness and appropriateness, namely: '(i) accuracy of match of the particular data series to the loss or expenditure being compensated; (ii) authority of the collector of the data; (iii) statistical reliability; (iv) accessibility; (v) consistency over time; (vi) reproducibility in the future; and (vii) simplicity and consistency in application'.

The court considered that ASHE 6115 was 'markedly superior to RPI' and the most appropriate index, in this particular case, linked to the 80th centile for the first two care periods and the 75th centile for the third.

Personal injury

In Lamont v Burton [2007] EWCA Civ 429 the defendant appealed a decision to award the claimant a success fee of 100 per cent in an road traffic accident claim where the claimant failed to better a Part 36 offer at trial.

The claimant instructed his solicitors under a conditional fee agreement which provided for a success fee. The defendant admitted liability and made a Part 36 payment, which the claimant rejected. At trial the claimant failed to better the payment.

The court awarded the claimant his costs up to the last date on which the payment could have been accepted together with a success fee of 100 per cent pursuant to Civil Procedure Rules (CPR) r45.16 (a). The defendant submitted that the Court should have exercised its discretion conferred by CPR r44.3 (1) in awarding an uplift of 12.5 per cent. Its reasoning being that had the payment been accepted and the claim concluded before trial, the claimant would have only been entitled to a success fee of 12.5 per cent under CPR r45.16 (b)(i).

The Court rejected the defendant's submission and decided that it had no discretion to award anything other than 100 per cent.

The defendant appealed. It argued that although the wording of CPR r45.16 was mandatory there is a lacuna in the rule in that it does not deal with a situation where a part 36 offer/payment is not beaten at trial. It contended that fairness required the success fee to be no greater than the amount the claimant would have received had the offer/payment been accepted before trial. It further argued that the exercise of discretion under rule 44.3 was a precondition to the application of rule 45.16 and that there were policy reasons against this interpretation as the claimant's solicitor would be better off advising that a part 36 offer/payment should be rejected.

The Court held that the provisions of rule 45.16 were mandatory and therefore rule 44 could not be used to circumvent this.

Moreover the purpose of the fixed fee scheme was to provide certainty and limit litigation over the level of success fees. The effect of this would be sometimes to award success fees that were excessive and other times too low, but this was the price for having certainty.

The introduction of fairness as contended by the defendant would be at odds with the mandatory effect of rule 45.16. The Court acknowledged that there was some credit to the defendant's arguments about policy but accepted the claimant's contention that there was already sufficient incentive for the claimant to accept a Part 36 offer/payment.

The appeal was dismissed.

Ex turpi causa

In Gray v (1) Thames Trains Limited (2) Network Rail Infrastructure Limited [2007] EWHC 1558 (QB) the claimant suffered serious psychiatric injury when he was a passenger on a train involved in the Ladbroke Grove rail crash.

The claimant was in one of the carriages that bore the brunt of the collision. He sustained minor physical injuries but consistent medical opinion concluded that the crash had caused him post-traumatic stress disorder. His symptoms included significant personality change, angry outbursts, becoming socially withdrawn and anxious.

Nearly two years after the accident he stabbed and killed a stranger and pleaded guilty to manslaughter on the grounds of diminished responsibility. He claimed damages in respect of his losses after commission of this offence arguing that he committed the offence because of his psychiatric injury which in turn was caused by the defendant's negligence. The defendant admitted negligence but denied liability for losses after the date of manslaughter arguing that this was contrary to public policy as per the doctrine of ex turpi causa.

The claimant contended the doctrine should only be adopted in cases where the illegal act was a necessary component of the claimant's cause of action. In this case, the manslaughter was not a necessary part, as the cause of action was complete when the defendant's negligence caused injury to the claimant.

The Court did not accept that this argument applied to tort cases. It cited authority which stated the doctrine applied 'when the claimant's claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct'.

The Court considered this later test was satisfied in relation to the claimant's losses incurred after the date of the offence as they were closely connected or inextricably bound up with the manslaughter act. The claimant had to rely on the offence in pleading these losses to prevent his criminal act breaking the chain of causation.

The Court also noted that the claimant was found guilty of manslaughter albeit on grounds of diminished responsibility as opposed to being found not guilty by reason of insanity. The distinction was significant because it showed that some degree of culpability was attached to the claimant. As he was considered responsible (albeit to a lesser extent than someone not suffering from any psychiatric illness) for the commission of a serious crime, the principle that the Court would not aid recovery of damages based on an illegal act applied. The claimant could therefore only claim for losses incurred before commission of the manslaughter offence and not after.

Untraced drivers agreement

Byrne (a minor by his litigation friend, Julie Byrne) v (1) The Motor Insurers Bureau (2) The Secretary of State for Transport [2007] EWHC 1268 (QB).

The claimant who was three years old at the time of the accident was hit by a car and injured when crossing the road. The vehicle failed to stop and was never traced. The accident took place in 1993 and the claimant's parents only became aware that he could claim for his injuries in 2001. They submitted an application to the Motor Insurers' Bureau (MIB) in December 2001 but this was rejected under clause 1(1)(f) of the untraced drivers

agreement (UDA) which required that any application be made within three years from the date of the accident, which expired in June 1996. It was evident that had the claimant brought a claim in tort against an insured driver he would not have been out of time.

The claimant therefore brought an action for damages claiming the MIB had failed to properly interpret the UDA in accordance with Community law and in the alternative, that it breached statutory duty directly applicable to it under Community law. The claimant also claimed against the Secretary of State in the alternative, for failing properly to implement Article 1(4) of Directive 84/5/EEC (the Second Directive).

In a trial of preliminary issues, the Court first looked at the purpose of the directives and the Community principle of equivalence. It was noted that their aim was to ensure free movement of vehicles which led to the abolition of checks at national borders. The corollary of this was that uninsured drivers would not be caught at border controls.

Therefore the Second Directive imposed an obligation on member states to compensate uninsured driver victims. The Court considered the directive aims could only be realised if uninsured driver victims were given the same protection as those injured by insured drivers. The Court considered that Evans v Secretary of State for the Environment and Motor Insurers Bureau [2003] Case C-63/01 supported this view which required the protection to be both equivalent and 'as effective' as an action against an insured driver.

The UDA also failed to satisfy the principle of equivalence which requires that when member states lay down detailed procedural rules, this should not be in a way that is less favourable than the rules in relation to a 'similar domestic action'. The Court was satisfied that a claim against an insured driver in tort was a 'similar domestic action'.

The Court then dealt with the question of whether the UDA should be interpreted in accordance with Community obligations. It applied White (Brian) v White [1999] 1 CMLR 241 in concluding that there was no obligation on the Court to interpret the agreement in line with Community law as this obligation did not apply to private law agreements (as the UDA could not be categorised as national law). The Court then considered whether Community law placed a direct obligation on the MIB to compensate a minor in the position of the claimant. It concluded that while the Second Directive did have direct effect, there was no right of action against the MIB as it was not an emanation of the state and was instead a private entity (following Foster v British Gas Plc (C188/89) [1991] 1 QB 405).

Finally, the Court considered whether the secretary of state could be liable in damages for breaching the terms of the Second Directive. The Court had sight of correspondence between the Department for Transport (DfT) and MIB at the time the directive was implemented showing the DfT was aware Clause 1(1)(f) did not comply with the Second Directive.

It found that its failure to amend this Clause was due to 'an inexcusable lack of thoroughness' which was made worse by a further failure to check the UDA after the decision in Evans which showed that the UDA did not comply with the Second Directive. In the Court's view this constituted 'an extremely serious breach', which could in principle give rise to an action for damages.

Therefore, the claimant will now be able to proceed with his action against the DfT.