Clinical Negligence Update Webinar Welcome

Transcription

1 Clinical Negligence Update Webinar 2016 Welcome 1

2 Preview Current topics Breach: secondary victims Causation: material contribution Procedure Quantum ADR Funding and Part 36. CN Landscape NHSLA Annual Report Fixed Costs 2

3 NHSLA Annual Report Currently over a third of what we spend each year is received by the legal profession and most of this is paid to claimants lawyers. Ian Dilks, NHSLA chairman 3

4 NHSLA Annual Report The NHSLA has experienced an increase in the costs associated with clinical negligence claims in recent years Helen Vernon, Chief Exec NHSLA But The NHSLA s net operating costs fell by 27% over the year. They fell over 732m to bn. 4

5 And The number of claims reported to the NHSLA fell: 2013/2014: 11,945 claims 2014/2015: 11,497 claims 3.7% reduction in claims despite treating more patients and an increase in reported incidents Also The sum paid out in damages has fallen: 2013/2014: 840,751, /2015: 774,444,135 There has been a reduction of over 66m (8%). 5

6 NHSLA Operating costs expenditure b Paid to claimants lawyers - 292m (11%) Paid to defendant lawyers - 103m (4%) one third of what we spend Andrew Ritchie QC These three facts are good news for the NHSLA and they deserve credit for them. They are good news for the taxpayer too. It is therefore surprising and disappointing that comment on them is completely omitted from the Chairman s Welcome and the CE s Report. 6

7 Claims falling Costs of claims falling Watch out for NHSLA report July 2016 Summary DoH Press Release July 2015 Govt announced a formal consultation by DoH to introduce fixed recoverable costs for clinical negligence claims. Proposals would include the introduction of fixed recoverable costs for claims worth up to 100,000 (but this could be higher) in value There would be a link between the level of the fixed costs and the value of the damages awarded 7

8 APIL Preliminary Response Stop getting things wrong! Earlier admissions and better claims conduct would reduce costs without reducing access to justice Data relied on does not allow for impact of LASPO APIL Preliminary Response An analysis by MoJ of payouts in suggested that around half the legal costs (the fee paid for the claimant s legal representation) paid in cases lost by the NHS were for success fees and insurance premiums Defence legal costs significantly underestimated due to cost of NHSLA and work done by Trust legal departments. DoH consultation on costs to NHS yet proposal covers all clinical negligence including private medicine and indemnity insurers 8

9 APIL Preliminary Response Conflict of interest Opposed to fixed fees Recognise the may be a place of them as part of new streamlined low value claims model If they are to be imposed they must be as fair and equitable as possible and relate to all parties involved in these claims, not just claimants He s back 9

10 Jackson LJ Speech to Insolvency Practitioners It is time to introduce fixed costs for all civil claims worth up to 250,000, If the political will is there, this whole project could be accomplished during the course of this year. Latest: 31 May APIL has received today welcome confirmation from health minister Ben Gummer that the introduction of fixed costs for clinical negligence cases will not be implemented on 1 October as previously planned. The Department of Health has acknowledged that the delay in publication of its consultation on this matter means an October implementation is not achievable. 10

11 This image cannot currently be displayed. Breach: Secondary Victim LIVERPOOL WOMEN'S HOSPITAL NHS FOUNDATION TRUST v RONAYNE CA (Civ) (Sullivan LJ; Tomlinson LJ; Beatson LJ) 17/06/2015 [2015] EWCA Civ July 2008 Julie Ronayne was admitted to Liverpool Women's Hospital She underwent a hysterectomy It seemed to go to plan. 11

12 Time Passes A few days later She became unwell High temperature and thirst Shallow breathing. Early Morning - 18 July 2008 Admitted to the Royal Liverpool University Hospital Via its A & E department. 12

13 More Time Passes Over the next 24 hrs Husband Edward Observed a rapid deterioration in the condition of his wife There were two particular episodes. Edward Claimed I suffered PTSD Due to seeing her sudden deterioration Particularly on those two occasions. 13

14 HHJ Gore QC He d not had recurrent flashbacks & nightmares So he hadn t had PTSD But he had suffered from a psychiatric illness. Applied NORTH GLAMORGAN NHS TRUST v WALTERS (2002) EWCA Civ

15 HHJ Gore QC A seamless tale With an obvious beginning and end Same here. HHJ Gore QC Injury was triggered By his wife's sudden shocking state/condition During the period of one or two days after her readmission to hospital Damages of 9, inclusive of interest. 15

16 Appeal Issues 1. Were the events horrifying As necessary to found a secondary victim case? 2. Was it sudden appreciation of those events That caused the claimant's psychiatric illness? Distinguished NORTH GLAMORGAN NHS TRUST v WALTERS (2002) EWCA Civ

17 Held Wrong to treat as 1 event The period 36 hours Beginning with the sight of his wife before surgery Through to the moment he saw her in her postoperative swollen state. Tomlinson L.J. There was no Seamless tale with an obvious beginning and an equally obvious end Instead, there was a series of events Over a period of time. 17

18 It was all part of a continuum The necessary element of suddenness Did not exist. Tomlinson L.J. Tomlinson L.J. And it was not exceptional or "horrifying" In the sense the word was used in the authorities There was no case. 18

19 Future? Seeing the aftermath of the treatment not horrifying But seeing treatment go wrong? Causation WILLIAMS v THE BERMUDA HOSPITALS BOARD [2016] UKPC 4 PC (Ber) (Lady Hale, Lord Clarke, Lord Hughes, Lord Toulson, Lord Hodge) 25/01/

20 Background On 30 May 2011 the respondent, Kamal Williams, went to the emergency department of the King Edward VII Memorial Hospital in Bermuda, complaining of abdominal pain He was suffering from acute appendicitis. Background Later that day he had an appendectomy, but there were complications He was seriously unwell for a period of weeks, but he finally made a full recovery. 20

21 Background He sued the appellant hospital board, which is responsible for the management of the hospital, for damages for his pain and suffering, medical expenses and loss of earnings He alleged that the complications were the result of negligent delay in his treatment. Findings The claimant was found to have a ruptured appendix and widespread pus throughout the pelvic region The accumulation of pus led to the claimant suffering myocardial ischemia and requiring life support in the ICU. 21

22 Timing The claimant arrived at hospital at A CT scan was ordered about The scan was performed at The scan was reviewed about The claimant had surgery about Breach The defendant had no policy about when a request for a CT scan should be STAT (ie immediate) With suspected appendicitis a CT scan should normally be obtained on a STAT basis. 22

23 Causation If the CT scan had been obtained on a STAT basis the claimant s condition would probably have been diagnosed earlier and appropriate treatment given more rapidly But the rupture of the appendix was gradual not instantaneous and it would generally take 4 to 5 hours for the amount of pus found to have formed. Causation The delay was at least 2 hours 20 minutes and at most 4 hours 15 minutes Whilst sepsis from the ruptured appendix caused injury to his heart and lungs the judge was not satisfied, even with a STAT CT scan, the complications suffered would probably have been avoided. 23

24 First Appeal The claimant appealed The trial judge was held to be in error by raising the bar unattainably high The proper test on causation was whether the breach of duty contributed materially to the injury First Appeal In other words: Bailey! The appeal was allowed The defendant now appealed. 24

25 Privy Council Back to Bonnington Castings Limited! Where Lord Reid had held that the source of his disease was the dust from both sources Guilty and non-guilty dust Lord Toulson quoted Professor Green Privy Council it was trite a defendant would be liable if found to have caused or contributed to an indivisible injury even though there may have been other contributing causes. 25

26 Privy Council Lord Toulson observed that the guilty dust had been a cause of the entire disease only part of the cause, but a partial cause of the entire injury, as distinct from being a cause of only part of the injury Hence Lord Reid had concluded that asking which was the most probable source of the disease was a false either/or premise Privy Council Because the disease had been caused by the totality of the toxic material inhaled, the right question was whether the guilty dust made any material contribution to the whole of the damage. 26

27 Hotson? Hotson v East Berkshire Health Authority [1987] AC 750 could be distinguished as there, on proper analysis of the evidence, the avascular necrosis must have been caused in one or other of two ways Hotson Either irreparable rupture of the blood vessels at the time of the initial injury or later pressure within the joint resulting from the sub-standard medical treatment Crucially there was no room for finding the avascular necrosis was caused by a combination of those two factors. 27

28 Wilsher? Wilsher v Essex AHA [1988] 1 AC 1074 was also distinguished There the most that could be said was that the claimant s injury was likely to have been caused by one of a number of disparate factors, only one of which resulted from breach of duty and that factor did not operate cumulatively with other factors to cause the injury. Here? On the balance of probabilities the breach of duty materially contributed to the process of the damaging sepsis And so to the injury to the heart and lungs. 28

29 Bailey? Lord Toulson preferred the reasoning of Foskett J, at first instance, to that of the Court of Appeal, on appeal, in Bailey. That was because the judge had concluded the totality of the claimant s weakened condition caused the harm, so but for causation was established. Meaning? The breach contributed to the mechanism which probably caused the injury BUT surely claimant still unable to prove that on a balance of probability the injury would not have occurred without (but for) the breach The very point made by Waller LJ in Bailey? 29

30 Thoughts But for is the standard test to be applied if possible Will apply even in cumulative cases if the injury is divisible If cumulative causes of an indivisible injury the test may be material contribution But no need for single agency And can be successive (not just concurrent). Issue LEWIS v WARD HADAWAY Ch D (John Male QC) 21/12/2015 [2015] EWHC 3503 (Ch) 30

31 Background Pre-action valuation Valuation on issue Amendment and payment of further fee Application to strike out. Judgment Abuse of process Abuse? Strike out? Limitation Page v Hewetts [2013] EWHC 2845 (Ch). 31

32 Pre-Action Admissions CLARK v BRAINTREE CLINICAL SERVICES LTD QBD (Judge Burrell QC) 9/11/2015 [2015] EWHC 3181 (QB) Facts C alleged negligence in arthroscopic shoulder surgery Surgeon directed physiotherapy should commence asap in post op instructions Physiotherapy not started for over a month by which time shoulder was stiff and painful C left with poor result from what should have been straightforward procedure. 32

33 The admission? In defence D said: If the facts alleged were correct breach of duty would be admitted unless records revealed good reason why such physio not offered Allegations could not yet be verified nor whether there was a good reason for not offering physiotherapy (if that was the case). Was this an admission? In my judgment, this is a qualified admission of breach i.e. conditional upon the Claimant proving the matters contended for HHJ Burrell Not pleaded that physio was provided within reasonable time nor that any failure was in accordance with and supported by responsible body of medical opinion. 33

34 Should permission be granted? Considered Woodland v Stopford Held - Not in the interest of good administration of justice Pleadings still mean something. Conflicts EXP v BARKER QBD (Kenneth Parker J) 7/05/2015 [2015] EWHC 1289 (QB) 34

35 Interim Payment ZEB v FRIMLEY HEALTH NHS FOUNDATION TRUST QBD (Garnham J) 28/01/2016 [2016] EWHC 134 (QB) Summary Appeal against the dismissal of an interim payment application Claimant alleged the defendant failed to diagnose tuberculosis meningitis which, therefore, went untreated causing a devastating brain injury. 35

36 Background Claimant moved to the United Kingdom in April 2011 Also in April 2011 the claimant visited the defendant s hospital with complaints of headache, abdominal pain and chest pain The claimant was discharged the same day. Background The claimant subsequently returned to hospital as well as attending her GP It was not, however, until 11 May she was diagnosed with tuberculosis meningitis By now the claimant had suffered a devastating neurological injury due to this condition. 36

37 Admission Defendant admitted breach of duty The defendant also admitted that without that breach the claimant would have made a full recovery. But Novus actus interveniens! Why? In February 2011, in Pakistan, a radiologist identified an abnormality, from a chest X ray, consist with tuberculosis infection. 37

38 And Contributory negligence! For failing to continue with treatment arranged in Pakistan And for failing to tell the defendant s clinicians about the history and working diagnosis of tuberculosis. Application For an interim payment Dismissed by the Master The claimant appealed. 38

39 Appeal Merely pleading novus actus or contributory negligence did not disentitle the claimant from succeeding But just because the claimant put herself in the hands of experienced clinicians did not mean there could be no contributory negligence. Appeal The need for an accurate history from a patient is fundamental But with the admitted breach of duty contributory negligence could not be 100%!. 39

40 Appeal The term novus actus was not helpful as there was no new act between the defendant s breach of duty and the damage But was the claimant s conduct a complete and sufficient cause of the injury suffered?. Appeal Clerk & Lindsell, dealing with successive sufficient causes, suggest where the two events are separated in time the first event should be treated as the cause. 40

41 Appeal Hence there was a proper argument the claimant s own negligence was the operative cause of the injury and the link between her negligence and injury was not breached by the defendant s negligence. Result The court could not be satisfied that if the claim went to trial the claimant would obtain judgment for a substantial amount of money Appeal dismissed No interim payment!. 41

42 What! There is no such thing as 100% contributory negligence a proper finding is no causation It is surely a fallacy to regard an admitted breach of duty which it is admitted was causative, not to be of causative effect!. What! Both on causation and contributory negligence the judgment conflates the claimant s failure to take care of her own safety with her being under a duty to prevent the defendant s own breach of duty. 42

43 What! Whilst a failure to give a proper history might amount to contributory negligence the background which leads to treatment being required is history not cause Remember RYAN ST GEORGE v HOME OFFICE CA (Civ Div) (Ward LJ, Dyson LJ, Lloyd LJ) 8/10/2008 [2008] EWCA Civ

44 Denton Always Applies GENTRY v MILLER CA (Civ Div) (Lewison LJ, Beatson LJ, Vos LJ) 9/03/2016 [2016] EWCA Civ 141 Appeal BILLETT v MINISTRY OF DEFENCE CA (Civ Div) (Jackson LJ, Patten LJ, McFarlane LJ) 23/07/2015 [2015] EWCA Civ

45 First Instance BILLETT v MINISTRY OF DEFENCE Andrew Edis QC [2014] EWHC 3060 (QB) Background The claimant was employed by the defendant as an Acting Lance Corporal in the British Army. 45

46 Background In the course of that employment the claimant suffered a non-freezing cold injury whilst engaging in physical exercises in cold weather. Background The claimant subsequently left the army, contending that was partly because he considered the injury had damaged his career prospects and partly because he was unhappy about the way in which he had been treated. 46

47 Background At about the time he left the army the claimant arranged new employment as an HGV driver. Claimant s description of injuries A minor to the feet Symptoms in the hand. 47

48 Judgment The real reason for the claimant leaving the army was his family commitments and plans for civilian life, so he would have left the army when he did even without having suffered his injury. Judgment A key issue was the correct approach to calculating future loss of earnings. 48

49 Loss of Earnings The claimant contended the methodology in the Ogden Tables should be adopted As a backstop the claimant argued that if damages were not assessed on that basis there should be an award for handicap on the labour market. The Difference? On the Ogden basis that would give a loss of earnings over 10 years If damages were assessed for handicap on the labour market the claimant submitted the award should be for loss of earnings over at least 3 years. 49

50 Judgment The traditional method for assessing loss of earning capacity was based on judicial assessment of chances. Judgment That could be contrasted with the methodology in the Ogden Tables which attempt to provide and supply statistical information. 50

51 Solutions? 1.A traditional award of a lump sum Smith v- Manchester Corporation 2.Ogden Tables A & B without adjustment 3.Ogden Tables A & B as adjusted. Lump Sum? A traditional lump sum award should be ruled out as... That would only be applicable where there is a great deal of uncertainty of about what the claimant would have done if uninjured. 51

52 Was the claimant disabled? The definition is broad and captured those such as the claimant with mild conditions, as these met the definition in the Ogden Tables. Why? The claimant had a physical impairment resulting from the relevant injury which lasted or was expected to last for over a year. That was because his feet were permanently sensitised to cold and gave him pain when they became cold. 52

53 Why? The disability limited his ability to carry out normal day to day activities, because he cannot work or do anything else outside in cold condition for any appreciable period of time. Why? That condition affects the kind or amount of paid work the claimant can do, as the employment experts agreed he must avoid working outside in cold conditions. 53

54 However It was appropriate to adjust the reduction factors given the very low level of disability and excellent work record A mid point between the not disabled RF of 0.92 and the disabled RF of 0.54 was taken Calculation Pre-injury: multiplier Post-injury: multiplier (after adjusting RF) Difference: 4.62 Multiplicand: 21,442 21,422 x 4.62 = 99,

55 Appeal BILLETT v MINISTRY OF DEFENCE CA (Civ Div) (Jackson LJ, Patten LJ, McFarlane LJ) 23/07/2015 [2015] EWCA Civ 773 Jackson LJ His net earnings were 21,442 per annum. This was the same as the claimant would have been earning if he were uninjured. So there was no current loss. The fact remained, however, that if the claimant lost his job he would be at a disadvantage in finding new employment by reason of his injury. 55

56 Jackson LJ Even if the claimant s current rate of earnings is the same as his preaccident rate, he may still have a claim for loss of future earning capacity. The claimant is entitled to a lump sum as compensation for the losses which he is likely to suffer in the future by reason of increased difficulty in obtaining or retaining employment. Jackson LJ The trial judge was entitled to conclude the claimant was disabled However, the judge should still have assessed damages for future loss of earning capacity on the basis of Smith v Manchester Corporation. 56

57 Why? The claimant was at the outer fringe of the broad spectrum of disability The disability affected his ability to pursue his chosen career much less than other activities There was no rational basis for determining how the reduction factor should be adjusted for the Ogden Tables to be applied. Result Smith award to reflect loss of earnings over 2 years Rounded up to 45,

58 Thoughts Continuing effect of injury = future loss of earnings Threshold for disability, and hence use of the Ogden Tables, is low Even with Smith seek at least 2 years earnings? Non-Delegable Duties GB v HOME OFFICE QBD (Coulson J) 31/03/2015 [2015] EWHC 819 (QB) 58

59 Background The claimant, a Nigerian national, was arrested for criminal damage and, as an illegal over-stayer in the UK, detained at Yarl s Wood The defendant had contracted a local GP surgery to provide treatment for those detained at the centre. Background The claimant was prescribed an antimalarial drug in readiness for return to Nigeria The claimant subsequently exhibited signs of psychosis The claimant argued this condition was drug-induced, triggered by the anti-malarial drug. 59

60 Procedural Points Anonymity: an order should be made unless shown to be unnecessary Preliminary issue: appropriate when not decisive?. The Preliminary Issue? Defendant contracted to Serco who contracted to the GP surgery for provision of medical treatment Did the defendant owe the claimant a non-delegable duty in respect of that treatment?. 60

61 Key Authority WOODLAND v ESSEX COUNTY COUNCIL SC ((Lady Hale JSC, Lord Clarke JSC, Lord Wilson JSC, Lord Sumption JSC, Lord Toulson JSC) 23/10/2013 [2013] UKSC 66 Lord Sumption s Five Features Vulnerability An antecedent relationship No control Delegation of a positive duty Negligence in performance of a core function. 61

62 Judgment All features were established It was fair, just and reasonable to impose a duty in all the circumstances Earlier authorities in this area now had to be viewed in the light of guidance given by the Supreme Court. ADR Update REID v BUCKINGHAMSHIRE HEALTHCARE NHS TRUST Sen Cts Costs Office (Master O'Hare) 28/10/2015 [2015] EWHC B21 (Costs) 62

63 Facts Clinical negligence case Substantive case settled Costs settled after detailed assessment had started Parties could not agree C s entitlement to costs of the detailed assessment. C s Offers 24 July 2015 invited D to mediate 28 September 2015 made Part 36 offer 6 October 2015 made Part 36 offer re counsel only Judgment was at least as advantageous as C s Part 36 offers. 63

64 Failure to mediate The only sanctions available are to award costs on an indemnity basis and to award interest on those costs from date earlier than judgment D s failure to mediate was unreasonable. Word of caution Case law has been largely about penalties imposed on successful parties Did not involve further penalties on losers. 64

65 But now If the party unwilling to mediate is the losing party, the normal sanction is an order to pay the winner s costs on the indemnity basis, and that means that they will have to pay their opponent s costs even if those costs are not proportionate to what was at stake. This penalty is imposed because a court wants to show its disapproval of their conduct. I do disapprove of this Defendant s conduct but only as from the date they are likely to have received the July offer to mediate. 65

66 Funding: 1 SURREY v BARNET & CHASE FARM HOSPITALS NHS TRUST Sen Cts Costs Office (Master Rowley) 10/08/2015 [2015] EWHC V16 (Costs) Funding: 2 MILTON KEYNES NHS FOUNDATION TRUST v HYDE QBD (Soole J) 20/01/2016 [2016] EWHC 72 (QB) 66

67 Part 36: 1 ABC v BARTS HEALTH NHS TRUST QBD (Judge McKenna) 11/03/2016 [2016] EWHC 500 (QB) Part 36: 2 WEBB v LIVERPOOL WOMEN S NHS FOUNDATION TRUST CA (Civ Div) (Gloster LJ, Simon LJ, Sir Stanley Burnton) 14/04/2016 [2016] EWCA Civ

68 Part 36: 3 BROADHURST v TAN CA (Civ Div) (Lord Dyson MR, McCombe LJ, David Richards LJ) 23/02/2016 [2016] EWCA 94 Questions 68