Personal Injury Law Blogs

Consenting to what? The issue of informed patient consent post-Montgomery

I have previously written about the issue of consent to medical treatment following the Supreme Court Judgment in the case of Montgomery v Lanarkshire Health Board [2015].

Subsequent to the decision in Montgomery the issue of consent has been considered in a number of reported decisions. In addition, I have recently settled a claim on behalf of a client who underwent a surgical procedure on her right knee to which she claimed not to have consented.

The reported cases include: –

Connolly v Croydon Health Services NHS Trust [2015]

Mrs Connolly was referred to hospital to undergo an angiogram which involved the insertion of a catheter under a local anaesthetic via either the radial or femoral artery. Before the procedure the Claimant signed a consent form after having a consultation with a doctor and having been given an information sheet. The catheter was inserted into the Claimant’s radial artery but that approach was abandoned when she began to suffer pain. It was decided that access would be attempted via the femoral artery.

A catheter was inserted into her leg and she was given diazepam and morphine. During that procedure the Claimant suffered a spasm in her right arm which the experts agreed was caused by the catheterisation. She complained of pain in her arm as soon as the spasm developed. She also complained of severe pain across her back, chest and jaw. The doctor performing the procedure saw that the left ascending artery from the Claimant’s heart was occluded, which was a serious and potentially life-threatening condition.

He carried out an emergency angioplasty to re-open the artery by the insertion of stent. An x-ray showed that there had been a dissection of the left main stem artery.

The Claimant claimed that (1) she had not provided valid consent for the angiogram, as she had been given misleading information before it began; and (2) the dissection had occurred only after the femoral route was undertaken by which time she had withdrawn any consent she might have given.

The Court held that a failure to provide a patient with sufficient information to permit an informed choice as to whether to consent to a procedure was capable of giving rise to a cause of action in negligence. In addition, the giving of inaccurate or misleading information to a patient might invalidate their consent and amount to negligence.

In Mrs Connolly’s case the fact that the information sheet was misleading did not negate her consent in view of the entirety of the information made available to her prior to her signing the consent form.

The weight of the evidence favoured the conclusion that the pain she experienced, and therefore the dissection, occurred before the femoral route was undertaken.

Although she had become anxious and distressed as soon as she started to suffer from pain as a result of the dissection and occlusion of the artery, there was insufficient evidence that she had withdrawn her consent. In any event, it had been reasonable for the procedure to be continued once the occlusion had been detected. Had it not been remedied, she might have died or suffered permanent damage to her heart.

Accordingly, even if she had withdrawn her consent after the radial approach had been abandoned she would have given her consent to continuance by the femoral route if the seriousness of the situation had been explained to her. The likelihood was that she would have died had the procedure been halted at any time.

The claim therefore failed on both breach of duty and causation.

Jones v Royal Devon and Exeter NHS Foundation Trust [2015]

Mrs Jones was referred, with a history of low back pain, to the Trust’s orthopaedic department under the care of consultant orthopaedic surgeon, Mr Daniel Chan in November 2009. Although she had an epidural injection in January 2010, her back pain continued and, at a clinic in March, she was reviewed by Mr Chan and “put on his waiting list” for bilateral decompression surgery. That operation was carried out on 29 July 2010, not by Mr Chan, as the Claimant had expected, but by a more junior clinician, a spinal fellow, called Mr Sunduram.

Unfortunately, the operation did not go well. A dural tear, caused by the surgical instrumentation, left the Claimant, a previously active lady, with permanent numbness, bladder and bowel problems and a significant loss of mobility.

Mrs Jones brought a claim on three grounds. The judge, having heard expert evidence, rejected her case that the procedure had been performed negligently and an allegation that Mr Sunduram ought to have been supervised was abandoned during the trial. However, he found that the Trust had breached its duty by not informing Mrs Jones that the operation was not to be performed by Mr Chan and that causation was made out.

Mrs Jones’s case was that she had been lad to believe that Mr Chan would perform the operation and had never been told otherwise. She was particularly anxious that he should do so because, it seems, Mr Chan has a particularly impressive reputation as a spinal surgeon in the South-West and even nationally. After she had been placed on his waiting list, she went away with her husband to France for a holiday but had to return early because of her pain. She then contacted the hospital to see if she could arrange an earlier operation, only to be told that the hospital could only give her an earlier date with a different surgeon. Having discussed this with her GP, she decided to wait until Mr Chan was available. Her evidence was that the first that she heard that it was not to be performed by him was on the very day of the procedure when she asked the theatre sister where Mr Chan was, only to be told that it was not he who was to perform the operation. By then, her husband had left to go to work and she was in her theatre gown, and she felt that she had no option but to go ahead.

The Trust’s evidence was different. Mr Sundaram had performed the consent procedure a few days before the operation. His evidence was that he had provided Mrs Jones with all the information which she needed to give consent and that he had specifically told that it was to be he who was to perform the operation. She had signed the consent form, a document which set out explicitly that the Trust could not provide “a guarantee that a particular person will perform the operation”. Not only that, but Mr Sundaram said that he saw her again on the morning of the operation and repeated that he was to carry out the operation.

The Recorder resolved those factual differences in the Claimant’s favour. He did not accept Mr Sundaram’s evidence that he told her that he was to do the operation at the time of the consent procedure or even on the day of the surgery. Had he done so, in advance of the day, the Recorder concluded that Mrs Jones would have “questioned why” that was to happen, given that she had already turned down the opportunity to have the operation done earlier by a surgeon other than Mr Chan.

In deciding that a breach was made out, the Recorder said this:

“The scope and rationale of a doctor’s so-called “duty to warn “, was articulated by Lord Hope (with whom Lord Walker and Lord Steyn agreed) in a passage in his opinion in Chester v Afshar:-

“I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether, and if so which and by whom, to be operated on. Patients may have, and are entitled to have, different views about these matters. All sorts of factors may be at work here – the patient’s hopes and fears and personal circumstances, the nature of the condition that has to be treated and, above all, the patient’s own views about whether the risk is worth running for the benefits that may come if the operation is carried out. For some the choice may be easy – simply to agree to or to decline the operation. But for many the choice will be a difficult one, requiring time to think, to take advice and to weigh up the alternatives. The duty is owed as much to the patient who, if warned, would find the decision difficult as to the patient who would find it simple and could give a clear answer to the doctor one way or the other immediately.”

Accordingly, the Recorder found the breach proved.

In relation to the issue of Causation the Trust had sought to rely upon the fact that the Claimant had been told, on the morning of the operation, that Mr Chan was not to be there and had chosen to proceed. The contention that causation was not, therefore, made out was not pursued at trial. As the Recorder made clear, any decision taken “so far down the line” was unlikely to be taken freely.

Secondly, it was contended that, if she had been informed in advance of Mr Chan’s unavailability, then she would have decided, as she did on the morning of the operation, to proceed. The Recorder, again rejected this argument, observing that:

“…the fact that Mrs. Jones originally wanted her operation to be carried out by Mr. Chan is corroborated by the reference to Mr. Chan in the GP’s Note of the attendance on 9 June 2010: Mr. Chan had and has a high reputation locally and nationally: Mrs. Jones’s evidence, which I accept, was that several people whom she knew had been operated on by him, and that when, in June, she raised with her GP the fact that there would be a delay if she wanted him to carry out the operation, the GP advised that it would be preferable to wait: in spite of the severity of her symptoms, and she did decide to wait until Mr. Chan was available. I therefore reject this contention.”

Thirdly, it was the Defendant’s contention that the Claimant could not prove, on the balance of probabilities, that the operation would have been performed with any better result had it been done by Mr Chan.

The Recorder found that, on the balance of probabilities, the damage would not have occurred if the operation had been performed by Mr Chan. He listed a number of reasons for coming to that conclusion, including the smallness of the risk of damage in any event, the expert evidence that “experience counts” in this operation, the absence of any pre-existing condition likely to increase that risk whoever performed the operation, the seniority and experience of Mr Chan and the statistical evidence that such complications are rare and rarer still in the hands of a surgeon of the experience of Mr Chan.

Other recent examples

As stated above, I have recently settled a claim on behalf of a 50 year old woman who underwent a procedure to her right knee to which she did not consent.

My client, who has a long history of bilateral knee pain, had previously undergone surgery on both knees. However, in approximately 2011 her symptoms started to deteriorate and she sought further advice from the orthopaedic surgeons at her local hospital in Kent. However, following a number of outpatient consultations, she was recommended to a surgeon at the Salford Royal Hospital (more than 250 miles away from her home address) for consideration of a re-alignment procedure (a high tibial osteotomy).

In April 2012 my client was seen at the Salford Royal Hospital at which time it was decided to carry out an arthroscopy and ‘washout’ of her left knee and to see whether or not she would be a suitable candidate for the realignment procedure.

The surgery was carried out on 8th June 2012. My client was delighted with the outcome and for the first time in several years experienced no pain at all in her left knee. She was discharged the following day and was able to mobilise without any assistance.

She was next seen at the Salford Royal Hospital in September 2012 when she agreed to undergo exactly the same procedure on her right knee.

The surgery was carried out on 6th November 2012. However, the original surgeon was not available and so her surgery was carried out by a different, less experienced surgeon who had never even met my client until shortly before her operation.

Following the surgery my client woke in excruciating pain. She was subsequently reviewed by the surgeon who explained to her that he had carried out a procedure called ‘microfracturing’ and that she would need to remain non-weight bearing for a period of at least 4 weeks.

My client was understandably upset as at no time prior to her surgery was the possibility of this procedure being carried out discussed with her.

She was discharged from hospital on 7th November 2012 but was unable to mobilise at all and had to be pushed by her husband in a wheelchair. Following her discharge she was reliant on the use of a wheelchair for approximately 11 weeks.

She subsequently wrote a letter of complaint to the Hospital but the Hospital refused to accept any wrongdoing and advised that the actions of the surgeon involved were entirely justifiable.

Unfortunately, despite us advising her that the issues if her case appeared clear-cut, the NHSLA continued to deny any wrongdoing on the part of the hospital and maintained that my client’s informed consent had been appropriately obtained prior to the surgery taking place (despite my client never having heard of microfracturing at any time prior to her surgery).

Eventually, more than 3 years later, and following the commencement of Court proceedings, the solicitors instructed by the NHSLA agreed to deal with the claim and accepted an offer which my client had made to settle her claim some 6 months previously.

Summary

As advised in an earlier blog, the guidance of the General Medical Council is the relevant professional standard when considering the issue of informed consent.

In this regard, the guidance states that: –

“The doctor explains the options to the patient, setting out the potential benefits, risks, burden and side effects of each option, including the option to have no treatment. The doctor may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice. The patient weighs up the potential benefits, risks and burdens of the various options as well as any non-clinical issues that are relevant to them. The patient decides whether to accept any of the options and, if so, which one.”

Essentially, a doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. Failure to do so is likely to be a breach in the duty of care.

The doctor must record details of the consent process including the risks and options discussed within the clinical notes. A signature on a consent form will also not signify that a patient has been appropriately informed.

Applying this to my client’s case she clearly had the right to be advised of the possibility of the microfracturing procedure being carried out and what this was likely to mean in terms of her post-operative recovery i.e. that she was likely to be non-weight bearing for at least 4 weeks.

Of course, that is not the end of the matter as the Claimant must still prove that if they had been appropriately warned of the risks/advised of the treatment options they would not, in those circumstances have consented to the same procedure anyway (i.e. the Claimant still has to overcome the hurdle of causation in the usual way). However, in my client’s case causation was made out because: –

  • At the time of her surgery she was running her own out of hours school club and she would not have consented to any procedure which meant that she would be unable to weight bear afterwards;
  • She had recently undergone carpal tunnel surgery on her left wrist from which she was still recovering and so unable to use a standard crutch in her left hand; and
  • Had she been advised at any stage prior to her attendance at Hospital on 6th November 2012 that her original surgeon was not available to carry out her surgery she would have postponed the surgery to a date on which he was available. In this regard, the original surgeon would have carried out exactly the same procedure on my client’s right knee as he had carried out previously on her left knee. In other words, he would not have carried out the microfracturing procedure which the subsequent surgeon carried out.

KCR v The Scout Association – Compensation Awards in Abuse Cases

The case of KCR v The Scout Association [2016] EWHC 597 (QB) concerned the abuse of a young boy suffered at the hand of his Cub Scout Group Leader in the 1980s. The boy’s abuser was convicted of a great number of sexual offences carried out against young boys, including the claimant in 2003. The defendant, in this case, The Scout Association admitted vicarious liability in the subsequent civil action for damages.

The interesting aspects of this case were both the claim for loss of past and future earnings and the assessment of whether money paid to the boy by his abuser at the time of the abuse, should be deducted from the compensation awarded to him

Claim for Loss of Earnings

The difficulty in making such a claim for loss of past and future earnings is, of course, the issue of establishing causation. The claimant contended that he was entitled to an award of loss of past and future earnings as he had been unable to find and sustain suitable employment as a result of the abuse he suffered. However, the claimant’s childhood had already been difficult. His mother and father separated on the grounds that his father had been violent towards his mother. The claimant began using drugs in his early teens and subsequently became a drug-dealer with a few short spells in employment. The claimant also has a number of convictions relating to drugs, violence, and firearms. The court denied the claim for loss of earnings, preferring the defendant’s argument that the claimant’s inability to find and sustain employment was as a result of his ‘lifestyle choices’ as opposed to the abuse suffered. The defendant did, however, concede that the claimant was entitled to general damages which the court assessed to be £48,000. However, an almost shocking argument was put forward by the defendant in relation to what may be deducted from this amount.

What should be deducted from damages compensation?

Arguably the most unusual aspect of this case was that at the time the abuse was being carried out, the claimant began blackmailer his abuser. The claimant along with another boy demanded cash and other possessions, in return for silence about the abuse. The defendant, in this case, put forward the amount extorted from the Cub Scout Leader should be deducted from the total compensation amount. The defendant outlined that the claimant himself had described the blackmail payments as ‘compensation’ in a police statement.

This submission on the part of the defendant seems so glaringly unattractive that is surprising it was even put forward. It was dismissed by the judge on two grounds-

Firstly that they payments were to be considered ‘gifts’ and could not thus be considered ‘compensation’. Secondly, that as a matter of public policy, the judge could not reduce the claimant’s damages award as a result of the defendant’s suggestion.

This point is interesting as many abuse cases involve wealthy abusers bribing their victims, including many cases currently making their way through the courts. It will be interesting to see in what, if any circumstances payments made to victims would be deducted from the damages award.

Johnson & Johnson to pay $71m in Compensation – Could they be held liable under UK law?

Household name Johnson & Johnson have been ordered to pay $71m (around £51m) in compensation to the family of a woman who suffered from ovarian cancer, allegedly as a result of using Johnson & Johnson products. However, a number of legal commentators have stated that the case simply wouldn’t hold up in the UK courts, under the UK legal system or under UK personal injury law. This post looks at the key differences between the US and UK systems in relation to this case, to understand whether Johnson & Johnson could face similar claims in the UK.

Hogans et al v. Johnson & Johnson et al (Hogans et al v. Johnson & Johnson et al, Circuit Court of the City of St. Louis, Missouri, No. 1422-CC09012)

The case concerned Mrs Fox, who passed away as a result of ovarian cancer last year. Mrs Fox allegedly had been using two Johnson & Johnson products, one of which was talcum powder, for around 35 years prior to developing ovarian cancer.

The case was heard in St. Louis, Missouri where the outcome was determined by a jury. This is one of the key factors which could affect whether the claim would be successful in the UK. The jury was convinced of the company’s liability on the grounds that they failed in their obligation to warn users of their products of the potential risks and dangers. In addition, some US manufacturers had switched from using the allegedly dangerous substance talcum, to using corn starch. Concerns about the use of talcum powder had been raised by the American Cancer Society in 1999, but many UK manufacturers still use the product and do not include a warning to users about the alleged risks.

Johnson & Johnson were ordered by the court to pay the family of Mrs Fox $10 million in compensation, and also a punitive award of $62 million.

Johnson & Johnson is now facing 1200 lawsuits in the US for failing to include such a warning. However, it is unlikely that the brand will face similar litigation in the UK for a number of reasons.

The Problem with Bringing this Case in the UK

There are a number of factors which mean that this case probably wouldn’t withstand scrutiny under the law in the UK.

Firstly, the case in St Louis was determined by a jury. It would be far more difficult for the claimant to convince a judge in the UK that the evidence supporting the claim was sufficient. This in tandem with personal injury law in the UK would make it highly unlikely that the company would face similar claims in the UK. The scientific evidence demonstrating that talc may cause cancer is practically non-existent. A number of scientists have suggested that talc particles may travel to the ovaries causing irritation and inflammation, which after a period of time could increase the risk of certain types of cancer. However, this theory has never been proven. In fact, studies observing the effect of anti-inflammatory drugs in the prevention of cancer have proven to be unsuccessful. Most of the claimant’s arguments were based on the fact that other manufacturers in the US had stopped using talc in their products.

In order to be successful in a parallel UK case, the claimant would need to prove that there was enough evidence to support the allegations that talcum powder could cause cancer. More specifically, that Johnson & Johnson’s talcum powder was, at least, a contributing factor in causing the claimant’s cancer. It also is for the claimant to prove that the company breached their duty of care towards the claimant by failing to give adequate warning about the risks of using the product. The difficulty with bringing cancer-related claims is that there are so many factors which may contribute to causing cancer. As was seen in McTear v Imperial Tobacco, proving causation in cancer claims is incredibly difficult. For these reasons, it is unlikely that Johnson & Johnson will face similar litigation in the UK.

Tough new health and safety sentencing guidelines now in force in England and Wales

New health and safety guidelines have come into force which could mean that large companies could face fines of £10 million for serious breaches of health and safety law.

The new Sentencing Council’s guidelines, published in November 2015, will apply to health and safety, corporate manslaughter, and food and safety hygiene cases, and have come into force on 1 February 2016.

The new guidelines require courts to assess the seriousness of a health and safety offence based on the offender’s culpability and the risk of whether serious harm could have been caused, whether or not any harm was in fact caused. Once this has been established, a starting point for fines and a range of possible fines are then produced based upon the seriousness of the offence, and taking into account mitigating and aggravating fines. Judges will then determine what the appropriate fine for the organisation is, taking into account all of the relevant factors. The new range in values of fines for health and safety offences is between £50 for the least serious offence and £10 million for the most serious offence.

The guidelines for corporate manslaughter imposes a maximum fine of £20 million for companies that are found guilty of corporate manslaughter. It also requires courts adjudicating upon court manslaughter cases to undertake a nine-step process in determining whether an organisation or individual is guilty of corporate manslaughter. The court must first assess the seriousness of the offence (including an assessment of the foreseeability of harm, how far the employer has fallen below the required standard, how common breaches with this organisation are, and whether there was more than one death or a higher risk of further deaths or personal injury. Individual company directors found guilty of “consent, connivance or neglect” in relation to offences may face potentially unlimited fines as well as prison sentences of up to two years. The courts can also order businesses to pay compensation to affected employees, although in the majority of cases compensation for loss or damage will be dealt with by the civil courts.

Chris Hadrill, a solicitor at Redmans Solicitors, commented on the new guidelines: “The new Sentencing Council guidelines for health and safety and corporate manslaughter offences demonstrate the serious approach that the Government and the judiciary are taking towards health and safety breaches in the workplace. Fines in recent years in health and safety and corporate manslaughters have noticeably increased, and only this week ConocoPhillips (UK) Limited was fined £3,000,000 and ordered to pay costs of over £150,000 after three dangerous releases of gas in Lincolnshire. It is not yet clear what the outcome of the new guidelines will be, but hopefully they will put pressure on employers to take ever-greater steps to protect the health, safety and welfare of their employees and third parties.”

Redmans Solicitors are solicitors in Fulham, Hammersmith, Richmond, and Chiswick.

Irish courts award nervous shock compensation to vulnerable boy after dishwasher fire

Irish law has long been thought of as being ahead of other jurisdictions in allowing damages for negligently caused psychiatric injury (nervous shock), but the law in this area has really only developed significantly in the past twenty-five years. Decisions in recent years have restricted this area of the law and have limited the scope of recovery for nervous shock by reinforcing the requirement that there be an actual or apprehended physical injury which gave rise to the nervous shock. A recent High Court judgment focussed on the requirement that a recognisable psychiatric injury be proven and deals with the eggshell skull rule in the context of nervous shock cases.

In Monds v. Indesit [2015] IEHC 808 the plaintiff was a child with an intellectual disability who claimed compensation for a nervous shock injury suffered after a domestic dishwasher fire. The case was taken against the vendor and manufacturer of a dishwasher. The manufacturer, Indesit Company UK Limited, has issued warnings about the potential for electrical components in certain dishwashers to fail which can cause overheating and fire. Similar warnings have more recently been published by Indesit relating to tumble driers.

In this case, a dishwasher manufactured by Indesit under the Hotpoint brand caught fire at the plaintiff’s home in June 2010. Liability for the fire was not in issue but the cause and extent of the symptoms complained of by the plaintiff were contested.

The plaintiff was in bed when the fire broke out and witnessed both the fire and his father re-enter the house to see if there was anything he could do to put out the fire. The family home was badly damaged in the fire but the occupants escaped without physical injury. The family had to move to alternative accommodation for a number of months while their home was refurbished and on return home the plaintiff exhibited signs of anxiety when bedtime approached. He had difficulty sleeping and experienced nightmares with fears that the house was going to go on fire. In particular, he developed a habit of repeatedly checking that appliances were switched off and unplugged.

His general practitioner concluded that he suffered from a form of post-traumatic stress disorder and referred him to a consultant psychiatrist who diagnosed him as suffering from an obsessive compulsive disorder. The plaintiff’s intellectual disability was a key factor as it was found to have rendered him more susceptible than most to anxiety and so the obsessive compulsive behaviour he engaged in after returning home developed into a disorder as a result of this susceptibility.

The five key requirements to claim compensation for nervous shock were formulated by the Supreme Court over 20 years ago:

  1. The plaintiff must establish that (s)he suffered a recognisable psychiatric illness.
  2. This illness must have been shock induced.
  3. The nervous shock must have been caused by the defendant’s act or omission.
  4. The nervous shock must have been by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff.
  5. The plaintiff must show that the defendant owed a duty of care not to cause a reasonably foreseeable injury in the form of nervous shock.

The defendants essentially argued under the second and third requirements, on the basis that there was a delay in the onset of symptoms. However, their own psychiatrist witness accepted that the plaintiff had a psychological reaction to trauma and it was clear that the return to the family home was a trigger for the behaviour.

Mr Justice Barton was satisfied that the plaintiff suffered psychological injuries as a result of the fire and that the plaintiff’s intellectual disability made him susceptible to developing adverse psychological sequelae as a consequence of it. By the time of judgment the plaintiff’s symptoms had largely settled, with some residual symptoms and a small risk of recurrence. The Court awarded general damages of €35,000 for pain and suffering to date and a further €15,000 in respect of the future.

There has been some concern that Irish law on nervous shock has become quite restrictive in recent years. This judgment demonstrates that the courts are quite prepared to award reasonably generous compensation for a defined and recognised psychiatric injury. It appears obvious, of course, that a plaintiff who did not suffer from an intellectual disability may have had difficulty in establishing an entitlement to any compensation if involved in a similar incident.

Clinical negligence legal blog: Williams v Bermuda Hospitals Board – “material contribution” & causation

The facts

Mr Williams attended A&E complaining of abdominal pain. A scan was ordered but there was a negligent delay before the scan was undertaken. It transpired that Mr Williams was suffering from appendicitis and required urgent surgery to remove his appendix.

During the surgery it was discovered that Mr Williams’ appendix had ruptured and there was a large accumulation of pus which led to damage to his heart and lungs.

The trial judge found that as a result of the hospital’s negligence Mr Williams’ operation had been carried out at least 2 hours and 20 minutes later than it should have been.

However, the trial judge found for the hospital on the basis that Mr Williams had failed to prove that the complications were most probably caused by the delay in treatment. In other words, Mr Williams had failed to prove that his outcome would have been different if the surgery had been carried out earlier.

The Court of Appeal of Bermuda overturned the decision on the basis that the delay in treatment had “materially contributed” to the injuries which Mr Williams sustained.

The hospital board appealed. However, the Privy Council rejected the appeal, finding that the Court of Appeal had been entitled to conclude that the complications were the “product of a steadily worsening accumulation of sepsis over several hours, which was caused in part by the negligence of the hospital board”.

On the balance of probabilities the delay of at least 2 hours and 20 minutes “materially contributed to the process, and therefore materially contributed to the injury to the heart”.

“Material contribution” – a different approach to causation?

The usual approach to the issue of causation is to identify the effective cause of the injury by the application of the “but for” test i.e. would the Claimant’s injury have occurred “but for” the Defendant’s breach of duty?

However, in the case of Bailey v Ministry of Defence [2008] the Court of Appeal held that in certain circumstances the “but for” test is modified and the usual approach does not apply.

In this case Mrs Bailey was operated on for a gallstone problem. Following that operation there was a lack of adequate care. She also developed an acute pancreatitis but this was not as a consequence of substandard care. A few days after the operation Mrs Bailey was in a weakened state, partly as a result of the lack of care and partly due to the pancreatitis. In that weakened state Mrs Bailey aspirated her own vomit which led to a cardiac arrest and which in turn caused her to suffer hypoxic brain damage.

The trial judge had identified 2 causes of the Claimant’s weakened state namely the lack of care and the pancreatitis but was unable to say which had made the greater overall contribution. What he did find was that each contributed materially to Mrs Bailey’s overall weakness and he therefore found for Mrs Bailey on the basis that it was sufficient for the Defendant’s negligence to have “materially contributed” to Mrs Bailey’s weakened state and it was that weakened state which had subsequently caused her to aspirate on her own vomit (in turn leading to the cardiac arrest and brain damage).

The Court of Appeal upheld the trial judge’s findings on the basis that “where medical science cannot establish the probability that “but for” an act of negligence the injury would not have happened but can establish that the contribution of the negligence was more than negligible, the “but for” test is modified and the Claimant will succeed”.

The Privy Council in Williams has essentially supported the Court of Appeal decision in Bailey and significantly it seems extended the application of “material contribution” to cases not only involving those where the Defendant’s negligence has materially contributed to the cause of the actual injury sustained (i.e. the weakness in Bailey which ultimately resulted in Mrs Bailey’s brain injury) but those where the negligence has materially contributed to the injury itself (i.e. the damage to Mr Williams’ heart and lungs caused by the steadily worsening accumulation of sepsis which went on for at least 2 hours and 20 minutes longer than it should have).

“Divisible” and “indivisible” injury

The law in this area (as in other areas) distinguishes between injuries which are “divisible” and “indivisible”.

Although it was not made explicit it would seem that the Privy Counsel in Williams found that the injury sustained by Mr Williams was “indivisible” i.e. it was not possible to distinguish the extent of the injury which Mr Williams would have sustained in any event from that which resulted as a direct consequence of the 2 hours and 20 minute delay in his operation being carried out.

In these circumstances, provided that it can be established that the Defendant’s negligence “materially contributed” to the cause of the injury then the Defendant will be liable in full.

Contrast this with injuries which are found to be “divisible”. The case of Tahir v Haringey Health Authority [1998] provides a good example. The trial judge found that there was a negligent delay of 3 hours in the treatment of a 15 year old boy who had a spinal abscess which resulted in some permanent paralysis. However, the Claimant had not adduced any evidence as to what his outcome would have been in these circumstances (his case was that the period of negligent delay was 24 hours and that his injuries would have been avoided in their entirety) and so the Court of Appeal overturned the trial judges decision that the delay had caused £4,000 worth of damage. However, the Court of Appeal clearly accepted that the hospital would only have been liable for such proportion of the injury as was caused by the negligent delay.

The importance of the Tahir decision is that where in a clinical medical negligence case part of the damage occurs before the negligence starts to cause damage, and part after that, the Defendant is not liable for the whole of the injury sustained (providing that the Court is satisfied that the injury truly is “divisible”).

Conclusions to be drawn

The decision in Williams will potentially have implications for many kinds of clinical negligence claims including cases involving birth injuries and delayed diagnosis of an illness such as cancer.

For example, let’s assume that in a birth injury case it is established that it was mandatory to have delivered a baby by 12:00 instead of 12:05 as in fact happened. However, even if delivered at 12:00 some damage might have been sustained in any event but it is not possible to say how much. In other words, the damage sustained as a result of the negligent delay was that in the 5 minute period between 12:00 and 12:05. Any damage sustained prior to this time was not caused by any negligence.

In light of the Privy Council’s decision in Williams it strikes me that providing the evidence can establish that the negligent period of delay caused some (or all) of the cerebral palsy (i.e. that it made a “material contribution” to the adverse outcome) then the claim will succeed and damages awarded for all of the losses suffered. The injury in these circumstances is “indivisible”.

However, if the evidence establishes that delivery at 12:00 would have resulted in damage to the cognitive functions but none yet to mobility functions it would be open to the Defendant to argue that the Claimant was entitled to damages relating to his mobility dysfunction but not for losses associated with his cognitive difficulties. In these circumstances that Claimant would not be entitled to recover the full value of the claim and would only be compensated for the additional injury caused by the negligent delay. In these circumstances the injury is “divisible”.

It would therefore appear that the distinction between “divisible” and “indivisible” injury in this complex area of law will be crucial in determining the extent of a Defendant’s responsibility to compensate a Claimant for the injuries sustained.

At Work in the Laboratory – States Differ on How to Deal With the Negligence of the Plaintiff

Justice Brandeis wrote in New State Ice Co. v. Lieberman, that a “state may, if its citizens choose, serve as a laboratory ; and try novel social and economic experiments without risk to the rest of the country.” 285 U.S. 262 (1932).   Each State has its own tort system. At work in each tort system is how each State has decided how to deal with civil wrongs.  Even more fundamental to each is how each state deals with the concept of how allocate fault and value human life.

A survey of the nation shows that the majority of State’s have adopted a type of system known as Modified Comparative Fault.   This system is generally viewed as the middle of the road method tort system. Under this system, the negligence of both the Plaintiff and the Defendant are determined by the finder of fact and then compared against each other. The general rule being that if the Plaintiff is less negligent than the Defendant, the Plaintiff would be allowed to recover. A reduction of the entire amount of the award is made from the percentage of fault attributable to the Plaintiff.   This method is viewed as being fair to a Plaintiff who can still recover if they are partially at fault and fair to the Defendant who does not have to pay for an injury that is more greatly blamed on the Plaintiff. The criticism of this method comes when there are multiple parties who may be at fault for the injury to the Plaintiff. A decision needs to be made as to how to compare the Plaintiff’s fault to that of the various Defendant’s. The issue of joint and several liability also causes concern that needs to be addressed. The question needs to be answered just how much responsibility must the Defendant have for the injury before they joint and severally liable for the entire amount due to the Plaintiff.

South Dakota takes a different approach to dealing with comparative fault. The State works under a slight/gross rule. If a Plaintiff’s negligence is more than slight, they may not recover. One the other hand, in order for the Plaintiff to recover the negligence of the Defendant must be more than gross. South Dakota is the only state to work under this system. South Dakota still requires a jury to allocate fault between the parties. A jury determination of more than 30% is considered to be more than slight as a matter of law. See Wood v. City of Crooks, 1997 SD 20, 559 N.W.2d 558, 559 (1997).

A minority of states have adopted systems at the extreme ends of the fault system. Thirteen states have adopted Pure Comparative Fault System. This system allows a damaged party to recover even if they are 99% at fault. The recovery of the party is reduced by the percentage of fault allocated to the injured party. This system is criticized because it allows for an injured person who for the greater part hurt themselves to recover. On the other hand, the Pure Contributory Fault System goes to the other extreme. Under this system, an injured person cannot recover even if they are 1% at fault. This system is criticized for being too harsh on the injured party. An injured person can be denied compensation even for the slightest reason.

As you can see from above, each state makes a choice how to handle fault that causes injury. No system is perfect and through legislation and caselaw the system are constantly being tweaked and modified to address the issues of the current day.  All of the above systems have certain rules particular to the state. For example, in Wisconsin a child cannot be contributorily negligent if under the age of 7. Wis. Stat. 891.44 Each state may have exceptions as to when it applies its fault system to different types of claims and causes of actions. An additional issue that must be addressed is when the negligence system overlaps with a strict liability system. The strict liability system is often found with dog bites or with products liability cases. In these scenarios, a court must make a reasoned determination regarding the interplay of complex rules regarding the allocation of responsibility.

A couple of examples might show the difference of the systems. A car driver (A) is proceeding down a road in the country going 60 mph in a 55 mph zone.   A semi-driver (B) goes through a stop sign on an adjoining road and strikes the car of (A) and severely injures him. A jury assesses fault at 90% on (B) and 10% on (A). Under both the Modified Comparative Fault and Pure Comparative Fault systems, (A) would recover 90% of the damage figure awarded. Under the pure contributory fault system, (A) would receive no damages at all. In another scenario, take the same situation and this time the (B) is the person who is badly injured. In a Modified Comparative Fault or Pure Contributory Fault State, (B) would receive nothing. However, in a Pure Comparative Fault State (B) would still have a viable claim. The total damages that (B) is awarded would be reduced by 90%.

Another issue that underlies the allocation of fault is the principle of subrogation. Each state must also develop its own method of how to deal with parties who pay medical expenses for an injured person and have a right either by statute or contract to recover. Once again these decisions begin to be complex based upon the allocation of fault and each state’s rules with respect to subrogation.

Whether a case is a good case worth putting much time and effort into or simply passing on can turn simply on the location of injury. A plaintiff’s lawyer who has a choice of venue in a personal injury case is wise to research the laws of the various venues where they have a choice to sue out the case. The lawyer’s decision can make or break a case for the plaintiff.

You can also follow the firm of Herrick & Hart on Twitter at @wisconsinpilaw, on LinkedIn at www.linkedin.com/company/herrick-&-hart , and on Google+ at plus.google.com/+HerrickHartSCEauClaire/about. The website of the firm is http://www.eauclairelaw.com/

Interested in Medical Negligence Law in the UK?

Interested in medical negligence law in the UK? Caroline Moore of www.medical-solicitors.com (on Twitter here) has recently been tweeting useful legal info via #law11sies – worth following this feed on Twitter and checking out their useful guides.

Also worth reading this guide from mind.org.uk, Unlock The Law’s guide to medical negligence law in Scotland here. in England here, and our own feed of medical negligence legal blogs here. See also the short guide to dental negligence in Scotland here.

Know of any other outstanding legal guides to medical negligence law in the UK or elsewhere? Get in touch.

 

 

 

The Government’s proposal to increase small claims limit from £1,000 to £5,000: what does it mean?

Outlined in the Autumn Statement, Chancellor Osborne announced plans to increase the small claims limit for personal injury claims from £1,000 to £5,000. If these changes go ahead, it will obstruct whiplash victims in claiming the compensation they are legally entitled to. At the moment, if you are involved in a non-fault road traffic accident and suffer whiplash as a result, you can easily seek legal representation to assist you in claiming your compensation. If the new changes come into effect claimants will be forced to represent themselves, which means they would have to cover all of their own legal costs to take their case to court.

When you become a victim of a road traffic accident, the current small claims limit of £1,000 means that you are able to obtain representation from a solicitor to support you in claiming your whiplash compensation. If the limit rises to £5,000, most standard whiplash claims will no longer fall under the ‘small claims’ threshold, which means that legal representatives won’t be able to recover their legal costs from the other side. This will result in solicitors being unlikely to take on these types of claims. Consequentially, most road traffic accident victims will be left without the ability to obtain legal representation to pursue a claim for compensation which they’re justly entitled to.

Since the proposal was announced in the Autumn Statement, there seems to be a definitive divide in whether the changes will be of benefit or hindrance to the general public. On one hand they are being told they can save money on insurance premiums, but on the other hand, their access to justice and legal representation will be restricted should they find themselves victims of a non-fault road traffic accident.

In his speech to the House of Commons Chancellor Osborne said: ‘We’re going to bring forward reforms to the compensation culture around minor motor-accident injuries. This will remove over £1bn from the cost of providing motor insurance…so motorists see an average saving of £40-£50 per year off their insurance bills.’

Why have these changes been proposed?

The changes have been proposed in a bid to crack down on the fraudulent claim culture typically associated with whiplash claims. The government alleges that the changes could reduce motor insurance policies by an average of £40 to £50 annually, saving the motor insurance industry £1bn a year.

While this is great news for insurance companies and their customers, there isn’t yet any clear evidence to support these statements and there hasn’t been any explanation to determine how the rights of genuinely injured victims will be protected. Promises regarding reduced motor insurance policies is something that we’ve heard in the past but are yet to see materialise.

What does this mean for personal injury victims?

If the small claims limit rises to £5,000, it will obstruct access to justice for many genuine personal injury victims. Although the government has outlined some of the potential benefits to the changes, it unfortunately means that genuine whiplash sufferers will be limited in obtaining legal representation in claiming for compensation they are rightly owed if injured in an accident that wasn’t their fault.

What the professionals said

For the change:

Huw Evans, director general of the Association of British Insurers, said: ‘This is a significant breakthrough in tackling the compensation culture and is good news for motorists.’

A spokesman for Aviva said: ‘These measures will directly address motor fraud like crash for cash, reduce the volume of nuisance calls, remove costly lawyers from the process and save motorists more than 10% on their premium.’

Stephen Gaywood, the AA’s director of counter-fraud said: ‘By giving successful personal injury claimants care such as physiotherapy, which compensation is supposed to pay for, those out to make a fast buck from an injury claim that may not have happened, will immediately be discouraged.’

Against the change:

Jonathan Wheeler, the president of APIL (Association of Personal Injury Lawyers) said: ‘In 2012 the insurance industry promised the Government that if reforms to the way whiplash claims are handled were introduced, savings would be passed on to motorists through their premiums. All that has changed since then is that the insurance industry has failed to live up to its own promises. Since 2012 the portal [a streamlined system for dealing with personal injury claims] has been extended, medical reporting for whiplash claims has been completely overhauled, sharing of fraud data has been introduced and solicitors fees have been slashed. Government figures show whiplash claims have fallen by more than a third in the past four years. Yet still insurance premiums have increased.

‘Only two years ago the Government ruled out increasing the small claims court limit because there were no adequate safeguards to protect genuine claimants. There are still no adequate safeguards. If the small claims court limit is raised to £5,000 all that will happen is that genuine victims of injury will not be able to afford the legal help they need to bring genuine claims and there will be an epidemic of cold calling from claims management companies as they rush to take advantage of vulnerable people who won’t be able to afford legal representation. We need to remember that these are people who have been needlessly injured by the negligence of others. Removing the right to damages for pain and suffering would show a callous indifference to the suffering of people who were needlessly injured by the negligence of others.’

Law Society President Jonathan Smithers said: ‘[The proposals] will completely undermine the right of ordinary citizens to receive full and proper compensation from those that have injured them through negligence.

‘These proposals will stop people obtaining legal advice for all personal injury claims below £5,000 and stop people claiming for often debilitating injuries arising from road traffic accidents if these injuries are considered minor.’

A petition has been set up calling upon the Government to review the proposed changes; if you think that the small claims limit should remain at £1,000 you can show your support here.

Weather Warning: How does bad weather affect road traffic accident claims?

As the weather worsens, the risk of being involved in a road traffic accident increases. Driving on winter roads can be challenging, and as such drivers must exercise a greater level of caution and skill than is usually required of them. However, regardless of how careful drivers are, unforeseen weather conditions such as black ice, fog or being caught in snowfall can result in an accident – but how does this affect driver’s liability in relation to other road users? Can the local council be held responsible for failing to grit the roads? This post looks as the determination of liability and negligence in adverse weather road traffic accident claims.

Assessing Negligence in Bad Weather Claims

Drivers have a legal obligation to drive safely, including making assessments about road conditions. When driving under extreme weather conditions, it is important that drivers take extra care, or they may be acting negligently. When roads are wet or icy, drivers should drive below the speed limit, leave extra space for other drivers and make sure their car is made suitable for driving in such weather. Drivers may face negligence claims where they:

  • Fail to adjust their driving for weather conditions (driving too quickly, for example)
  • Overly rely on vehicle safety features such as four-wheel drive
  • Fail to prepare their car in poor weather conditions. Such as driving with windows frosted over, restricting their view of the road.

However, even when all caution has been exercised by the driver accidents still do happen. In these circumstances, however, it may still be possible to make a claim for compensation against the local authority.

Legal Obligations of Local Authorities

The local authority is responsible for ensuring ‘safe passage’ along highways so far as is reasonably practicable. The law is set out in the Highways Act 1980, and the definition of highways under the act includes roads and public footpaths.

However, the obligation on local authorities is not particularly onerous. Local authorities are limited in resources and can only respond to inclement weather conditions as they receive relevant information. This means that authorities will firstly focus on gritting main roads and walkways, and even then they can only do so after the icy weather has been reported to them.

This is outlined in Section 58 of the Highways Act 1980, which gives local authorities a defence against many claims brought against them relating to snow and ice on the roads. Section 58 outlines that authorities are only under an obligation to attend to what is reasonably practicable, and thus their lack of resources means that it is not practicable (nor in all likelihood possible) to clear and grit every road and walkway. This means that personal injury cases against local authorities involving ice or snow are often difficult to pursue.

Obligations of Individuals

Another interesting aspect of personal injury claims arising from poor weather conditions is that where an injury is sustained on private land, or where private occupiers clear public pathways in an unsatisfactory way – both could result in a successful personal injury claim.

Where a private occupier takes to clearing a public pathway and their actions are negligent, if these actions result in an accident they could face a personal injury claim. For example, if a person pours hot water on a pathway in the hopes of melting the ice or snow, and this, in fact, makes the pathway more slippery, the individual may find themselves liable for compensation if an accident occurs as a result.

Furthermore, under the Occupiers Liability Act 1984, it is the responsibility of the occupier to take reasonable care of those visiting their land. While it is simple to warn guests of dangerous ice on your property, this liability extends to those such as the postman or another delivery person. This means that occupiers are under an obligation to take reasonable care to ensure their land is safe for those that may be required.

Need a personal injury legal opinion? Get in touch here.