Catriona McCorry

Medical Negligence Update

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NHS Pays More Than £1 billion in Patient Negligence Claims

According to NHS Resolution the NHS paid out over £1.7 billion in damages for medical negligence claims in the last year. Ten years ago, in 2006/2007, the NHS received 5,419 claims. The number of claims last year came to nearly 11,000.  Whilst the overall number of claims in 2016 were down from the previous year, legal costs and damages have increased.

As set out in a recent article by The Telegraph’s Health Editor, statistics from health officials show that errors during childbirth account for 50% of the value of claims, despite a recent impetus in training to help midwives and doctors work better together. Peter Walsh, chief executive of charity Action against Medical Accidents (AvMA), said the NHS was spending too much on litigation, because it was failing to improve its safety record.

No study or analysis has been undertaken to establish which diseases and/or conditions drive claims.  Such a study is the first step towards establishing how better clinical practice could lead to a reduction in the number of claims.

Recent Decisions from The Court of Appeal, England & Wales

‘EXP’ -v- Dr Charles Simon Barker [2017] EWCA Civ 63

The Court of Appeal criticised an expert who failed to disclose a close connection with the Defendant.

The expert had trained the Defendant, on whose behalf he was giving evidence.  This only emerged upon cross-examination at trial.  The clinical negligence claim related to a failure to detect an aneurysm on a brain scan.  The Defendant said that the scan was normal. The expert’s evidence was rejected entirely by the Trial Judge and the Court of Appeal agreed with the lower Court. The failure to disclose the close connection was very substantial.

The case is a stark reminder of the critical importance of the independence and openness of expert witnesses.  Such a revelation at a late stage of proceedings is likely to be fatal to that party’s case.

Sebastian Webster -v- Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62

A recent decision dealing with the issues of informed consent and causation. 

The Plaintiff suffered from cerebral palsy and was born with significant physical and cognitive impairment as a result of hypoxic ischemia to the brain 2-3 days prior to delivery in 2003.  All parties agreed that, had he been delivered 3 days earlier, he would not have been born with this condition - he would have been born unharmed.

The case failed at the first instance, as the Trial Judge held that when the Plaintiff’s mother was assessed at full term, it was reasonable for the pregnancy to continue and there was, therefore, no breach.  This decision was taken prior to the decision in Montgomery -v- Lanarkshire Health Board [2015] UKSC 11 which is the seminal decision on informed consent.

The Court of Appeal decision came post-Montgomery.  The Plaintiff’s mother had a university degree in nursing, which helped her in making educated decisions previously during the pregnancy.  For example, when there was a concern about placental abruption at approximately 7 months, she had determined that she lived close to the hospital and would be more comfortable at home.  She had weighed the risks.

Overall, on Appeal there was overwhelming evidence to support the case that, even if the Plaintiff’s mother had been given balanced advice by the consultant who was favouring continuation of pregnancy, the mother would have chosen induction on her due date.

This decision shows that the Bolam test (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) is no longer appropriate in determining whether a breach of duty has arisen, when considering issues of informed consent in clinical negligence claims.  It emphasises the role of the doctor as medical advisor and not the decision maker.  It is for the patient to decide the risks which they wish to take.

For further details on this practice area, contact Catriona 

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