Update: clinical negligence and PI

Premature labour policy

In Jamie Andrew Cowley (by his mother and litigation friend Lesley Carol Cowley) v Cheshire and Merseyside Strategic Health Authority [2007] EWHC 48 (QB), the High Court considered whether a Health Authority's policy for the management of a premature labour was within a reasonable range of policies. The claimant's claim was essentially that a corticosteroid should have been administered to his mother, who had a history of premature labour, when she was admitted to hospital at 27+5 weeks gestation rather than the next day; and that, if the steroid had been administered, his brain damage would have been significantly reduced. The defendant argued that the claimant's mother was not in premature labour and so it was reasonable not to give steroids, as per their policy.

The Court concluded that the hospital's policy not to give steroids to a patient not yet in actual or active premature labour was reasonable and that, even if such a policy had been extended to include the state of 'threatened' pre-term labour, the claimant's mother would still not have been given steroids because she did not fall into that category either.

The Court concluded that the claimant's brain damage would have been materially reduced if steroids had been administered a day earlier but that, in any event, the claimant failed on breach of duty.

Midwifery and obstetric care

In Fahima Khalid (a child by her mother and litigation friend Baira Khalid) v Barnet and Chase Farm Hospital NHS Trust [2007] EWHC 644 (QB) the High Court considered whether a midwife and an obstetric registrar had been negligent in the management of the claimant's mother.

The defendant trust had admitted that a midwife had been in breach of her duty in failing to call the registrar an hour earlier than she did call him such that, if the registrar had been called, he would have attended the claimant's mother about an hour earlier than he did.

The first issue was what would have happened had the registrar attended an hour earlier than he did. The Court concluded that the registrar would have attended again an hour later but, on that latter occasion, having already attended an hour earlier, he would have advised caesarean section rather than carrying out fetal blood sampling (FBS), which factually is what he had done. Had he advised a section, on balance the claimant would have been delivered more than 20 minutes before she was in fact delivered, and she would have been born neurologically intact.

In any event, in considering the second issue of whether the registrar's actions were acceptable, the Court also held him in breach for failing to recognise the change in rate of contractions on the CTG trace, the increased risk of uterine scar rupture and, therefore, the inappropriateness of FBS. If FBS had not been carried out and advice on caesarean section given instead, as it should have been, then the claimant would have been born at least 20 minutes earlier than she was and, again, she would have been born neurologically intact.

In contrast, the Court of Appeal upheld the decision that a midwife was not negligent in Monzur Miah v Birmingham & The Black Country Strategic Health Authority [2007] EWCA Civ 290. In essence, the issue at trial had been whether a midwife had remembered, rather than reconstructed, the events of the claimant's birth 25 years earlier, such that she could recall that she had not missed a prolapsed cord on vaginal examination at the time when the membranes ruptured. It was agreed that the midwife would have been negligent if the cord had prolapsed before she had completed her examination and she had failed to identify it.

The judge preferred the evidence of the defendant's expert and had felt that the expert evidence pointed to a prolapse not being present when the midwife carried out her examination and the midwife, therefore, had not missed a prolapsed cord. The midwife's evidence had to be assessed in the context of the expert evidence. The Appeal Court held that the judge was entitled to make his findings on the basis of the evidence available to him and that it would not interfere with those findings.

The possibility of obstetric negligence was again considered by the High Court in Jac Richards (a child by his mother and litigation friend Sheila Joanne Richards) v Swansea NHS Trust [2007] EWHC 487 (QB) in a liability-only trial.

The claimant's mother had been admitted to hospital 13 days past term and, on the basis of the CTG trace displaying decelerations of concern, the registrar correctly advised of the need for a caesarean section. The claimant's mother was taken to theatre 10 minutes later and CTG monitoring was discontinued. The claimant was born 40 minutes later, 55 minutes after the original decision. The experts on causation had agreed that, if the claimant had been born 10 minutes earlier than he had been, he would have been born neurologically intact. The standard accepted time from decision to delivery of 30 minutes was discussed, the claimant arguing that 55 minutes to delivery had been too long and 30 minutes had been achievable, with which the defendant disagreed.

The judge, in finding for the claimant, concluded that there had to be some exculpatory external constraint on the team for them not to deliver as quickly as possible, and within 30 minutes, once the decision had been made to carry out a caesarean section and the onus was on the defendant to adduce evidence of such a constraint, such as competing demands for the surgeon's or anaesthetist's time; if there was no evidence of logistical constraints adduced, then the inference was that there were no such constraints. The Court concluded that the hospital staff had been negligent and that the claimant should have been born within 30 minutes, or at the latest 45 minutes, from the decision, and he, therefore, would have been born at least 10 minutes earlier and neurologically intact. The judge considered Bull v Devon Area Health Authority [1993] 4 Med LR 117.

Paediatric care

In Antoniades v East Sussex Hospitals NHS Trust [2007] EWHC 517 (QB) the Court had to consider whether a paediatric registrar had been in breach in the management of a mucus plug blocking the claimant's trachea immediately following delivery. It was acknowledged that such an occurrence was very rare, as opposed to obstruction with meconium or blood. A number of doctors had been involved in the claimant's resuscitation and had attempted to secure the claimant's airway by inserting a series of endotracheal tubes, but it had taken 30 minutes following delivery to achieve full oxygenation, which was achieved when a thick mucus plug was eventually removed from the claimant's trachea.

The Court held that the registrar was in breach in failing to report to the other doctors involved in the resuscitation that he had discovered a mucus plug in the first endotracheal tube. This meant that the other doctors were not clear as to the nature and extent of the claimant's blockage. In addition, the registrar failed to inform his colleagues that he knew of a straightforward suction technique directly through an endotracheal tube (referred to as ETTS), regularly used for other causes of obstruction such as meconium. If he had informed them of this, the technique would probably have been used successfully and in time to avoid the claimant's brain damage.

Further, the Court held the paediatric consultant in breach for failing to advise the resuscitation team that securing an airway was more important than resuscitation and drug administration, which were at best useless and at worst a distraction.

Gynaecological negligence

In Lilian Tagg v Countess of Chester Hospital Foundation Trust [2007] EWHC 509 (QB) the Court considered the issue of bowel perforation during surgery. The claimant had undergone gynaecological surgery during which the operating consultant gynaecologist unknowingly perforated the claimant's bowel. Post-operatively, the claimant became pyrexial and was told that it was due to wind. Three days later, a different gynaecologist reviewed the claimant and diagnosed peritonitis. A further procedure revealed faecal peritonitis such that a temporary colostomy was performed and the claimant's left ovary removed. The claimant also suffered with a wound infection, incisional hernia, abdominal scarring, psychological distress and a chronic pain syndrome.

The Court, in finding for the claimant, held that a reasonable gynaecologist would have stretched the bowel, inspected it and identified the perforation at the original operation; the failure to do so had, therefore, been negligent. The evidence given by the gynaecologist at trial indicated that the bowel had not been stretched sufficiently and the hole had, accordingly, not been identified when, with an appropriate technique, it would have been.

Damages were awarded for the bowel injury in the sum of £20,000 and for the psychological trauma in the sum of a further £20,000.

Quantum

Finally, the Court of Appeal considered the claimant's appeal in the case of Crofton (a patient suing by his father and litigation friend John Crofton) v National Health Service Litigation Authority [2007] EWCA Civ 71.

The issues the Appeal Court had to consider arose 'from the fact that the judge held that the damages awarded to the claimant should be reduced to reflect the fact that the council would make direct payments to the claimant if he were to live in his own home and arrange for his care needs to be met privately'.

In summary, the Appeal Court concluded that, where a claimant was awarded damages for personal injury they were administered by the Court of Protection: first, a local authority was obliged to disregard any such damages in deciding the threshold question (which is 'can the council be satisfied that it is necessary for it to meet the care needs of the claimant?'), the Court applying R. v Sefton MBC Ex p. Help the Aged [1998] 38 BMLR 135; secondly, in considering whether at the means testing stage a local authority can have regard to the damages in deciding what direct payments (if any) to make in order to meet an individual's care needs, a) the capital value of such damages was to be disregarded, as per the Fairer Charging Policy, though b) the issue of income from capital was unclear, the Court considering Freeman v Lockett [2006] EWHC 102 (QB), and neither the judge nor the Appeal Court had sufficient information to make a judgment on income; thirdly, the judge had been correct to determine that direct payments would be made by the local authority and that they should be taken into account in the assessment of damages, the Court remarking that each case should be assessed on its own facts; and fourthly, the judge was incorrect to apply the whole life multiplier to the direct payments, though the Appeal Court did not have enough material to determine the correct multiplier.

The Appeal Court held that the whole of the direct payments issue should be remitted to the judge for further consideration in light of its judgment.

Dr Jock Mackenzie is a partner in clinical negligence at Leigh Day

Damages

Van Wees v Karkour & Another [2007] EWHC 165 (QB)

The claimant was a woman of high intelligence with a full-scale IQ measured post-accident at 128. This score placed her in the top 3 per cent of her age group. She claimed that the after-effects of a road traffic accident, which occurred in 2000 when she was aged 34, caused her to lose the opportunity of a high-flying career in which she could earn millions of pounds. The claimant was involved in a road traffic accident, which resulted in her sustaining a head injury accompanied by post-traumatic amnesia. The claimant contended that, in relation to the damage that she had suffered, whilst it was quite subtle, had she not been injured she would have had a still higher IQ and her memory would not have been reduced to that of an average person. Without the subtle reduction in her ability to perform at a high level, she would have been expected to earn a higher salary.

Following the accident the claimant had obtained a high-level corporate job with a high salary, but had subsequently been dismissed. Whilst the effects of her injury did not make her unemployable, the claimant's case was that the accident caused a 'loss of edge' which contributed to her dismissal from her high-level corporate job. It was her case that had she not been injured, she would have enjoyed a greater prospect of being retained in that high-earning job.

The Court held that the loss of edge caused by the accident had been a contributory factor to her dismissal and had she not been injured, there would have been a greater prospect that her services would have been retained. The subtle alterations to her ability to perform at a high corporate level as a result of the accident had affected her prospects of commanding an even higher salary.

Insurance

Phillips v (1) Rafiq, (2) Motor Insurance Bureau [2007] EWCA CIV 74

This was an appeal by the Motor Insurance Bureau against a ruling that it was liable to satisfy a judgment for damages obtained by P, the widow of a deceased person against R, an uninsured driver, under the Fatal Accidents Act 1976.

The deceased, P's husband, had no insurance cover for his car, but had allowed R to drive the vehicle. R did have a motor insurance policy of his own, but it did not cover his use of the deceased's vehicle. The parties agreed that the deceased knew, or should have known, that he was a passenger in an uninsured vehicle.

The MIB argued that P's claim was solely based on whether her husband would have been entitled to claim damages from the accident had he survived. They argued that he would not have been able to do so as a result of the exception in clause 6.1(e) of the Uninsured Drivers' Agreement 1999 in which the MIB will be exempt from liability because he knew or ought to have known that he was travelling in an uninsured vehicle. The clause states that the MIB would be exempt from liability where 'the claimant' voluntarily allowed himself to be carried in an uninsured vehicle.

The MIB argued that the judge erred in beginning his considerations with the literal meaning of clause 6.1(e) of the 1999 agreement without having regard to the background in clause 6.1(e) of the Insured Drivers Agreement 1988, which stated that the MIB was not liable for claims where the 'person suffering death', or 'person suffering death or bodily injury' allowed himself to be carried in an uninsured vehicle. The MIB argued that on the strength of those words the judge did not have regard to the background context to ass ist in establishing the true meaning of the words.

The Court of Appeal held that the judge had in fact taken the background context into account and had given due consideration to the purpose of the 1999 Agreement. The background to any scheme for compensating victims of uninsured drivers must include the range of victims likely to be within the contemplation of the parties, which would include dependants of victims who were killed.

If the 1988 agreement had applied to P's claim she would not have been able to obtain compensation from the MIB as the 'person suffering death or bodily injury' had agreed to travel in an uninsured vehicle. The formula used in the 1988 Agreement was not adopted when the 1999 Agreement was drafted.

The Court of Appeal was of the view that the 1999 Agreement simply provided a scheme to compensate the victims of uninsured drivers. That objective could be achieved if the dependants were treated as victims. The Court of Appeal could find there was nothing in the background material to justify the conclusion that the words in clause 6.1(e) meant anything other than what was literally meant.

The appeal was dismissed.

Limitation

Jason McCoubrey v Ministry of Defence [2007] EWCA CIV 17

The Ministry of Defence appealed against a decision that the respondent soldier, M, had brought a personal injury claim in time, pursuant to the section 11(4)(b) of the Limitation Act 1980.

M had suffered a hearing loss in 1993 during a training exercise. M consulted a specialist in early 1994 who noted that he had marked sensorineural hearing loss. His hearing loss did not affect his military career until 2001 when he was downgraded on a temporary basis. He was downgraded on a permanent basis in 2003.

M commenced proceedings in 2004 and sought to rely on section 11(4)(b) and section 33 of the 1980 Act to bring his claim outside the three-year limitation period specified in Section 11(4)(a) of the Act.

The judge in the case considered not only the severity of the injury but also the effect of the injury on the claimant's quality of life and on his ability to continue in his career. The judge held that the effect of M's injury did not have a significant impact on him until the MoD restricted his activities in 2001 permitting him to rely on section 11(4)(b). The judge did not rule on section 33.

The issue for determination by the Court of Appeal was a proper approach to the meaning and application of section 14(2) of the 1980 Act, which dealt with whether an injury was significant. The Court of Appeal held that the law had changed from that which had previously been understood and applied and that a test under section 14(2) was now substantially objective. It was no longer a mixture of subjective and objective approaches, as had previously been the case.

The question as to whether an injury in question was significant within section 14(1)(a) as expanded by section 14(2) should be decided by reference to the seriousness of the injury, not by reference to its effect on the life or career of the claimant. It should be applied by reference to a subjective approach from the claimant's perspective.

The Court took the view that the person contemplated by section 14 was a claimant who was in the same position in objective terms as the claimant in the instant case. The correct approach to section 14(2) was to consider the reaction of a reasonable person to the injury, as opposed to its possible consequences. The Court of Appeal held that the judge had erred in taking into account M's attitude to the effect of his injury and his reasons for not pursuing or contemplating a claim against the MOD in 1993. The fact that the injury sustained did not hamper his career until 2001 was not a significant reason for concluding that time did not begin to run under section 11(1)(b) until 2001. The case was remitted to the judge to decide whether M could bring his claim under section 33 of the Act. The appeal was allowed.

Meera Maharaj is an assistant solicitor in PI at Leigh Day

Asbestos update

Claimant solicitors were applauding the Court of Appeal decision in Rice & Thompson v. Secretary of State for Department of Trade and Industry [2007] EWCA Civ 289 handed down on 4 April 2007.

The claimants were a former dockworker and widow of a deceased dockworker. Both employees had obtained employment under the National Dock Labour Board Scheme, a statutory framework which provided a contract entitling workers to agree rates of pay and allocation by the board to registered employers. When workers were not allocated to an employer, they were deemed to be in the employment of the local board. Significantly, the board was also under a duty to make satisfactory provision for the training and welfare of dockworkers.

The claimants pleaded that the statutory duties imposed a positive obligation on the board to protect dockworkers against the risk of asbestos exposure. The Secretary of State for Trade and Industry asserted that a claim in negligence could not be founded upon an omission to exercise a statutory power.

The Court found that the relationship between dockworkers and the board was akin to a relationship of employer and employee. The risk of disease caused by asbestos was a foreseeable risk and the Court found it reasonable to impose a specific duty on the board to protect dockworkers as individual employees.

The decision has been applauded by claimant asbestos solicitors who are often prevented from advancing cases due to former employers ceasing to exist or being dissolved. This was commonly the case amongst dockworkers who transferred their employment daily or weekly and where many companies have gone out of business.

In Scotland, the Mesothelioma Damages Bill introduced an amendment to the Damages (Scotland) Act 1976 which bought an end to the dilemma faced by Scottish mesothelioma victims who previously were forced to choose between pursuing a claim in their lifetime, or postponing a potentially more valuable claim until after their death. The Bill removed that invidious decision enabling victims to proceed with a claim in their lifetime without preventing their families bringing claims for the 'non-patrimonial damages', ' i.e. distress and grief caused by the victim's suffering and death.

Dan Easton is is an assistant solicitor in PI at Leigh Day

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