Personal Injury Law Blogs

Chronic Shortage of Midwives May Be Opening the NHS Up to More Medical Negligence Claims

Below is a guest law blog post.

In November of 2011 the Royal College of Midwives reported that in the last 10 years the birth rate in the UK has increased by 22% while medical services suffered a shortfall of approximately 5,000 midwives. The Royal College of Midwives points this out as having serious ramifications regarding patient safety especially in the context of new NHS guidelines. However, in from the point of view of hospital administrators of trying to implement policies without resources to do so safely may increase exposure to claims of medical negligence.

The National Institute for Clinical Excellence (NICE) is informing NHS policy regarding child birth that seeks to educate expectant mothers about the necessarily serious nature of caesarean births. The hope is that though a discussion of the risk involved the number caesarean births as patients opt for “safer options” (i.e. natural delivery). About 25% of all births in the UK are done via caesarean section versus about 14% in Nordic countries, and NICE view this disparity as having largely to do with “myths” having to do with both vaginal and caesarean births.

However, the shortage of trained midwives calls into question the practicality of implementing such a policy. Natural births taking place without the support of a midwife have been shown to contribute to traumatic deliveries that can injure both mother and infant—as well as causing undue distress to the mother. This is significant to the NICE guidelines in that women who have experienced traumatic births in the past are susceptible to developing an unreasonable fear of vaginal birth (tokophobia). Indeed, Malcolm Griffiths, a consultant obstetrician and gynaecologist who chaired the NICE guidelines committee agrees that appropriately attended births were critical in reducing caesarean rates, and that it was not uncommon for women having had a previous traumatic birth to be so emotionally distressed by the incident that they then considered abortion. Nina Khazaezadeh, a consultant midwife added that, following traumatic births, women tended to put off future pregnancies.

The chief executive of National Childbirth Trust, Belinda Phipps, warns that if caesarean rates go up after these guidelines it speaks to the UK failing to provide safe and supportive midwife care. Though, if these guidelines are to be adopted safely at all then a much larger pool of midwives is necessary so as to ensure adequate care for both mother and baby. If this need is not met then poor outcomes in terms of patient care are going to become more common along with the cases of medical negligence.

Small Business Owners: Tips to Avoid Being Involved in a Lawsuit

For small business owners, being involved in a lawsuit can means huge case-related costs, lost income, and defamation of their business. If you’re selling your own invented product, you might want to patent invention InventHelp to stop others from copying, manufacturing, selling or importing your invention without your permission.

Here are the steps every small business owner should take to avoid being involved in a lawsuit:

1.     Sufficiently Train Your Employees

Adequately train your employees to safely complete the tasks inherent to their job; employees must be taught company procedure, clean-up procedure, to properly use equipment, etc.  It is also your job as an employer to train your employees on how to properly react to and report an emergency situation, and what safety issues are inherent in the work place.  For instance, if you own a coffee shop, you must teach your employees while training them about the burns they can sustain from the coffee equipment and how to react if they do sustain a burn.

2.     Set Up a Safe Business Environment

Always provide employees with the proper equipment they need to do their job safely and effectively.  Do periodic checks of your facilities to ensure that there are no safety hazards, such as loose carpeting, gas leaks, electrical issues, etc.  If there are safety hazards that are unavoidable in your business, adequately mark them as such with signs so that employees, clients, and/or customers are aware of the hazards.  Have stations set up throughout the office specifically for emergencies.  For instance, if your business is one where employees could get dangerous chemicals in their eyes, have an eye washing station.

3.     Develop An Employee Handbook

Developing an employee handbook is imperative in a work environment; such a handbook establishes employee vacation policies, how the company deals with sexual harassment, how employees can report concerns/issues to management, general employee rights, etc.  It generally establishes employees’ rights and your rights as an employer, and it will offer you protection in the event of a lawsuit.

4.     Be Fair To Your Employees

Pay your employees on-time, every time, and “on the books.”  Pay them for the vacation time you’ve promised them, don’t allow employees to work after-hours without pay, and always give them the benefits you promised, e.g. health insurance.  Failure to compensate employees fairly or as promised could lead to a personal injury claim for discriminatory pay practices or unpaid wages.

Allison Dean is a guest blogger bringing to us tips for avoiding involvement in business-related personal injury lawsuits.  Allison’s career concentrates on personal injury law, but more specifically on medical malpractice.  She spends much of her time writing educational articles to help lawpersons determine when and how to seek a medical malpractice lawyer.

Margaret Aitken v Scottish Ambulance Service and Greater Glasgow Health Board [2011] CSOH 49

Margaret Aitken v Scottish Ambulance Service and Greater Glasgow Health Board [2011] CSOH 49

Margaret Aitken, a mother whose teenage daughter died through an epileptic seizure, has succeeded in her first legal hurdle to suing the Scottish Ambulance Service and Greater Glasgow Health Board for damages following their alleged negligence.

Facts

The daughter of Ms Aitken, Nikki Williamson, died in November 2003 following an epileptic seizure. Before the death, Ms Aitken’s son had telephoned 999, which was answered by the Emergency Medical Dispatch Centre (the “EMDC”). An ambulance arrived at the family home 33 minutes later following the instruction of a doctor who attended the family home 10 minutes after the emergency phone call. Ms Aitken sued for damages on the basis that the Scottish Ambulance Service and the Health Board were vicariously liable for the fault and negligence of others for whose acts and omissions they are responsible, primarily in respect of an ambulance having not been sent immediately to the family home.

The case came before Lord MacKay in the Outer House of the Court of Session through a procedure roll hearing, where the first defenders sought to have excluded from probation certain of the averments of fault of the defenders. The principal question raised was essentially whether the member of staff of the EDMC who answered the 999 call owed any duty of care to the deceased when the 999 call was made.

Judgment

Refusing the ambulance service’s motion and allowing a proof before answer, Lord MacKay noted that

“it cannot be said that the pursuer had no prospects of addressing fairness and public policy, the issues involved in the third element of the Caparo test, in a manner that results in the test being satisfied in its entirety. That is because the pursuer may, if she manages to prove her averments about the events of 1 November 2003, be able to prove that the defender’s employee, by her words and actions, assumed a responsibility for getting Nikki to hospital as an emergency. In my opinion, it may also be possible for her to establish that she and her son relied on what the employee did and said, as they cared for Nikki. In my opinion, the facts the pursuer offers to prove as to the events of 1 November 2003 are capable of constituting a situation of an exceptional nature such as was postulated in Mitchell v Glasgow City Council… and capable of establishing that the first defenders’ employee had by what he had said and done come under a duty to exercise reasonable care towards Nikki by arranging for her to be transported to hospital as an emergency.”

Comment

While there still has been no definitive judgment on the case in its entirety, the Opinion of Lord MacKay illustrates the maintained flexibility of the Scots law of delict, through which each case should still be considered on its merits. Any blanket immunity in favour of the emergency services may indeed even lead to a breach of Article 6 of the ECHR, as was established, for instance, in Osman v United Kingdom [1998] EHRR 101.

Through the law of negligence, the duty of care tripartite test was established by Lord Bridge in Caparo Industries plc v Dickman [1990] 2AC 605 at pages 617 – 618:

“What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity’ of ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon one party for the benefit of the other.”

This test is now firmly regarded as being part of Scots Law e.g. via Gibson v Orr 1999 SC 420, 431, per Lord Hamilton and Mitchell v Glasgow City Council, [2009] 1AC 874, para 25, per Lord Hope of Craighead.

Counsel for the Defenders argued that the ambulance service was not subject to any such common law duty of care, as set out in Caparo, to rescue members of the public. However, every case turns on its own facts. Here, the proximity and the fair, just and reasonable tests, which are the second and third legs of Caparo respectively, may indeed be subject to further consideration and cannot be blankly dismissed.

As regards proximity, Lord MacKay said that “In my opinion, were this action to go to proof, it would be open to the Lord Ordinary to hold that a relationship of some proximity came into existence involving Nikki and the member of staff in the EMDC unit, arose whilst that member of staff was dealing with the first 999 call.” Thus, the relevant relationship of proximity may be greater than that of the member of staff to all members of the public.

Turning to the fair, just and reasonable test, Lord MacKay took into account many relevant similar accident claims cases involving responses by emergency services to alarms or 999 calls. These were summarised as follows:-

– In Kent v Griffiths [2001] Q B 36, it had been held that an ambulance service had been under a duty to respond to a 999 call;

– In Hill v Chief Constable of West Yorkshire [1989] AC 53, it was affirmed by the House of Lords that there was no general duty of care owed by police officers to identify and apprehend an unknown criminal and that police officers did not owe any duty of care to individual members of the public who might suffer injury through such a criminal’s activities (also applied by Brooks v Commissioner of Police of the Metropolis [2005] 1 WLR 1495 and Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 853);

– In Alexandrou v Oxford [1993] 4 All ER 328, the Court considered the question of whether the making of a 999 call, activated by an alarm bell, which had caused police to attend at the plaintiff’s premises, had created a special relationship between the plaintiff and the police and given rise to a duty of care owed to the plaintiff. The Court of Appeal held it had not;

– In Capital & Counties plc v Hampshire County Council [1997] QB 1004, it had been held by the Court of Appeal that a fire brigade had not been under a common law duty to answer a call for help or to take care to do so.

– In OLL Limited v Secretary of State for Transport [1997] 3 All ER 897, May J had held that there was no obvious distinction between the fire brigade responding to a fire where lives were at risk and the coastguard responding to an emergency at sea. On that basis, the coastguard had not been under any enforceable private law duty to respond to an emergency call.

Nevertheless, although these cases may show pockets of liability, or indeed lack thereof as the case may be, Lord MacKay noted that “there are cases in which the facts may have to be established before such a question [of whether a duty of care was owed] can be determined. Having considered the extensive submissions I received, I have reached the firm opinion this is such a case. In particular, without a full examination of the facts, it is not possible to reach a conclusion whether the pursuer will be able to satisfy the third element of the Caparo test. Before doing so, she would require to demonstrate that when regard is had to all the relevant circumstances, including the statutory framework within which the first defenders operate, the nature of the services they provide as a Special Health Board, the policy and other factors involved in the delivery of those services to individual members of the public by their employees, and also, of course, to the events of 1 November 2003, it would be fair, just and reasonable for there to have been a duty of care of the nature upon which she seeks to found. In that exercise, she will not have any assistance from the decision of the Court of Appeal in Kent v Griffiths, for the reason that, as is clear from the report at para.48, the defendants in that case did not seek to found on policy considerations as providing a basis for challenging the decision of Turner J that they had owed a duty of care to the plaintiff.”

As noted above, the Opinion of Lord MacKay leads Ms Aitken one step further to securing damages for the alleged negligence of the Defenders. Nevertheless, Ms Aitken must still establish, through the forthcoming proof before answer, that a proximate relationship existed between the Defenders and the deceased, that it was fair, just and reasonable in the circumstances that a duty of care be imposed and, if a duty of care is deemed to have existed, also that the Defenders breached that duty of care and that the Defender’s breach caused the harm suffered by the deceased. A long road remains to be travelled for Ms Aitken and, equally, for the Defence.

The case is reported here http://www.scotcourts.gov.uk/opinions/2011CSOH49.html

For further information or advice, contact injury solicitors in Edinburgh/Scotland such as Lawford Kidd

Welcome to Personal Injury Claims Blawg

Welcome to Personal Injury Claims Blawg, a legal news blog on personal injury law and accident claims law for PI lawyers and the general public and potential clients of personal injury lawyers.

A complex area of law requiring expert advice from solicitors, personal injury law is the body of law that governs personal injury claims against legal persons in delict in Scotland or in tort in England & Wales, the US and other legal jurisdictions. Personal injury actions are raised for people to seek damages for loss caused by another’s intentional or negligent acts or omissions.

One of the most famous delict/tort cases dates back to 1932 in Scotland where Lord Atkin set out the neighbourhood principle in Donoghue v Stevenson.

Further posts on personal injury claims law and news to follow.