#10453 - Clinical Negligence - Personal Injury and Clinical Negligence

CLINICAL NEGLIGENCE

CASE ANALYSIS

• Summary of facts of medical treatment and consequences – condition and prognosis

• Discussions for first interview:

  • Advantages/disadvantages of issuing proceedings for negligence

  • Whether client wishes to continue with the existing doctor/patient relationship

  • How to complain about the service received to the hospital concerned

  • How to complain about possible professional misconduct of the clinicians concerned

• Evidence which should be obtained

  • Medical notes

    • Investigate the initial consultation – GP records

  • Expert evidence

    • Causation of current deformity

    • Current condition – prognosis

    • Liability – whether trust was in breach of its duty here

  • Documents relating to quantum

  • Whether the treatment given would be

  • Proof of loss of earnings

  • Transport costs

  • Witness statements from both GPs and NHS Trust

  • Witness statement from expert GP

  • Witness statement from claimant

  • NHS Complaints Procedure – evidence he/she undertook this

  • Hospital protocols and other healthcare guidance

    • Existing protocols that exist for this type of injury?

Explain the relevant law and evidence on liability and causation in clinical negligence claims

Who will be the parties to the litigation?

• Who the defendant is depends on who provides the treatment

• NHS trusts and health authorities

  • NHS trust hospital is responsible for the acts and omissions of its staff – Cassidy v Ministry of Health (1951) – each NHS trust is a separate legal entity

    • A hospital authority could not escape liability by reference to its employees if there was negligence during a course of treatment.

    • A hospital authority was liable for the negligence of professional medical staff employed by the authority under contracts for services as well as contracts of service.

    • The authority owed a duty of care to give proper treatment for which it remained liable even if it delegated the performance of that treatment.

  • So the defendant is trust/health authorities and NOT the employee

• GPs – backed by defence bodies (do not receive backing from the government)

  • MDU – Medical Defence Union

  • MPS - Medical Protection Society

• Private doctors – own defence body

• Private hospitals - backed by insurance

• Other possible defendants e.g. alternative health practitioners

What is the duty of care and has there been any breach of duty?

• Established duty of care between medical practitioner and patient

• Duty to take reasonable care to avoid acts or omissions which would cause reasonably foreseeable loss and damage

• Examples of duties owed by medical professionals

  • To properly assess the patient’s condition

  • To be readily accessible to meet the patient’s need

  • To keep the client informed

  • To prescribe and administer drugs

  • To avoid omissions

  • To regularly assess progress

  • Make enquiries – e.g. nature of complaint, medical history

  • Referral to another professional if necessary

  • Keep good notes and inform patient

  • Prepare for any operation

• Standard of care

  • The standard is that of the ordinary skilled doctor skilled in that particular art

  • If a doctor holds himself as performing a skilled practice, he is assessed by reference to that skill – Wilsher v Essex

• Challenges

  • Different schools of thought

  • Difficult illness

  • Understanding clinician’s actions

  • Bolan v Friern Hospital [1957] – any breach of duty is judged by the standard of a reasonable body of medical opinion

    • Mcnair J - Bolam test (the ratio):

      • Acted in accordance with practice accepted as proper? 10% rule

      • By responsible body of medical people?

      • Skilled in that particular art?

      • If YES to all questions > not negligent

  • This was considered in Bolitho v City and Hackney HA [1997]

    • The court added that the practice and body of opinion relied upon must have a logical basis

  • On these facts: [EXPLAIN THE BREACHES IN THE SCENARIO]

What is the law on causation? What arguments might the defendant raise?

• But for test - the claimant has to satisfy the court that, on a balance of probabilities, but for defendant’s breach, he would not have suffered the injury – Barnett v Chelsea [1969]

  • Claimant does NOT have to prove defendant’s breach was the sole cause, only that the breach made a material contribution to the injury

  • Apply to the facts: was the [DISEASE/ILLNESS/INJURY] suffered by [THE PATIENT] caused by [THE SAID ERRORS OR OMISSIONS]?

• Causation

  • Did breach cause damage?

  • Even a correct operation might not have succeeded

  • Breach might not have caused current suffering

• Causation and loss of a chance - Hotson v East Berkshire HA [1987]

  • Claimant cannot claim for loss of a prospect of recovery where the chance of recovery is less than 50% -

• Causation and failure to warn - Chester v Afshar [2004]

  • If the doctor does not advise patient of risks of treatment, and claimant would NOT have had the treatment if she had known of the risks, causation is established

• Causation and failure to attend - Bolitho v City and Hackney HA [1997] – 2 stages

  • What would the doctor have done if she had attended?

  • Would what the doctor would have done have been negligent?

Other possible causes of action

• Compensation

• Manslaughter – convictions rare

Could a complaint or disciplinary proceedings be pursued instead or as well as litigation?

• Practical point: depends what [the claimant] wants to achieve

• Complaints/disciplinary proceedings

  • Principle 4 – best interests of client

    • Involves exploring alternatives to litigation

  • NHS complaints procedure – local

    • Write a letter to Chief Executive Officer of NHS body within 1 year

    • Separate from disciplinary procedures

  • For a complaint to a specific medical professional – see p. 83 textbook

    • Contact GMC or NMC

• If not satisfied with the initial result,

  • Go to Ombudsman – national level

MEDICAL EXPERTS

• Condition and prognosis

  • Get claimant’s consent for release of medical records and obtain them

  • Instruct expert

  • Examination of client

  • Report prepared on claimant’s condition and prognosis

  • For occupation disease or occupational stress claims: medical evidence on how disease/stress was caused

• Occupation disease or stress

  • Medical evidence

  • Causation

• Role summary

  • Prepare reports

  • Give opinions

  • Suggest questions to put to other litigants and request further information

  • Attend settlement meetings and conferences with other experts and lawyers

  • Give evidence at trial (if allowed by the relevant directions)

• Demands of the case

  • Medical – condition and prognosis

  • Medical - causation

  • Non-medical - breach of duty

• Parties should identify experts together with fields of expertise promptly i.e. when deciding on directions and case management

Appropriate experts: who and why?

See list in relevant textbooks.

Where would you find the experts?

• Internal expert directory

• AvMA or similar charitable legal organisations

• CPR 35 deals with experts

• Clinical Disputes Protocol Part 4

INFANT SETTLEMENTS

Claims on behalf of children – CPR 21

• Deals with special provisions for children and protected parties

• In civil law, a child is a person under 18 – this person is aged […] and so

• The limitation period does not run against a child and during that time the child cannot normally bring proceedings in his own name

• His options are either:

  • Wait until 18

  • Bring proceedings through a ‘litigation friend’ under CPR 21.2

Litigation friend

• Under CPR 21.4(3) (a) – (c) must file a certificate of suitability stating that she satisfies the conditions specified in r21.4(3) (see also r21.5)

• The certificate of suitability must be set out in form N235 (PD 21, para 2.2) - the litigation friend must state that he/she

  • Consents to act

  • Knows/believes that the claimant is a child

  • Can fairly and competently conduct proceedings on behalf of the child and has no interest adverse to that of the child

  • Undertakes to pay any costs which the child may be ordered to pay relating to proceedings, subject to any right he may have to be repaid from assets of the child

• Must be verified by a statement of truth

• Must be filed when the claim is made – CPR 21.5(3)(a)

Approval of settlements

• CPR 21.10(1)(b) – no settlement involving a child is valid without the court’s approval

• If such approval is not obtained, the child may, when 18, issue proceedings against the defendant or his litigation friend for negligently dealing with his claim

• If the sole purpose of issuing proceedings is to obtain the court’s approval, the solicitor must follow the procedure set out in Part 8 of the CPR AND as per CPR 21.10(2) and PD 21 para 5.1:

  • A specific request for approval of the settlement must be included with claim form

  • A draft consent order must also be provided – Practice Form N292

  • Part 8 claim form with witness statement

  • Details of extent defendant...