Liverpool Victoria Insurance Company Limited v Dr Asef Zafar [2019] EWCA 392 (Civ) -and- George Eliot Hospital NHS Trust v Elder (2019), QBD, 5 April 2019

Introduction

Dr Zafar ran his own medico-legal company, producing over 500 expert reports a year. In February 2012, he examined Mr Iqbal 11 weeks after a road traffic accident. The other driver involved was insured by Liverpool Victoria Insurance Company Limited (‘LVI’). Dr Zafar concluded that having taken analgesia immediately after the accident, Mr Iqbal had made a complete recovery within one week of the accident. Dr Zafar signed this report with a statement of truth, in accordance with CPR Part 35.

The instructing solicitor then asked Dr Zafar if he could amend the report to reflect that Mr Iqbal had ongoing moderate to severe pain in his neck and shoulders. He requested Dr Zafar review his examination notes, and in light of this ongoing pain amend his report to the effect that Mr Iqbal would recover over the next six to eight months. Without any further re-examination of Mr Iqbal, Dr Zafar obliged. Although the content of the expert report changed, the report date remained the same, as did the statement of truth.

The short answer is no but feel free to keep reading.

In Pomphrey v. Secretary of State for Health the Claimant’s claim for damages in respect of the non-negligent complications of spinal surgery failed. His argument was that for a period of 10 months prior to surgery he had symptoms of cauda equina syndrome and should have had decompressive surgery earlier. Had he done so he would probably have avoided the dural tear which he sustained when his operation eventually took place. HHJ Cotter QC rejected the Claimant’s argument, preferring the evidence of Richard Stacey to Nick Todd. He found that the Claimant had been suffering from intermittent spinal claudication caused by spinal stenosis, not CES, and that there was no requirement for earlier surgery.

 R (Chidlow) v HM Coroner for Blackpool and Fylde & Others [2019] EWHC 581 (Admin)

Human bodies being such complex things it is unsurprising medical causation is often extremely complicated. Legal causation of medical injury is a minefield for clinical negligence lawyers to navigate: “indivisible injuries”, “multifactorial causation”, “material contribution”, “loss of a chance”etc.

But there is good news for all who must negotiate these causation booby-traps. It comes in the form of Mr Justice Pepperall’s judgment – arising out of an inquest – about whether a jury could reach a safe conclusion on the causative link between delay in treatment and death where the medical cause of death is unascertained.

It’s a brilliant exposition of two fundamental points on causation: 

  • Causation is more than a matter of medical statistics - even where survivors are a majority category.
  • There is a difference between identifying what caused death and whether life could have been saved with earlier medical attention.

Jonathan Holl-Allen QC acted for the successful Claimant in this claim against a Consultant Neurologist who Yip J concluded had failed to discharge his duty when advising in respect of medication to a suspected Parkinson’s Disease patient.

The case is (to my knowledge) the first reported clinical negligence claim arising from the well known Montgomery v Lanarkshire Health Board [2015] AC 1430 principles since last year’s Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 and Khan v MNX [2018] EWCA 2609, and provides a useful illustration of the complexities of factual causation in such cases.

Angus Moon QC successfully defended this psychiatric negligence claim (unreported, County Court at Sheffield, 9 January 2019).

The Claimant – a Consultant Radiologist – jumped from a balcony in an apparent suicide attempt and sustained serious injuries. He is now confined to a wheelchair. He alleged being let down by a number of psychiatric practitioners who, he said, had failed to admit him to hospital when he should have been admitted in light of his psychiatric state. His Honour Judge Mark Gargan dismissed the claim and found for the Defendant.

The decision serves as a reminder of the factors that are likely to sway judges when assessing lay evidence.

The Court of Appeal in XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832 has overturned the High Court’s decision ([2017] EWHC 2318 (QB)) by awarding damages to an infertile claimant for the costs of commercial surrogacy in California.

The first instance decision

In a previous blog post from September 2017 entitled Surrogacy: The Birth of a New Head of Loss, I discussed the first instance judgment in XX. Following the Trust’s admission that its failures led to Ms X’s infertility, Sir Robert Nelson awarded £74,000 to Ms X for the costs of UK-based surrogacy using her own eggs but not those of a donor. Claire Watson represented the Claimant at first instance.

Whilst the High Court’s decision was significant – this was the first case in which damages for the costs of UK surrogacy had been awarded – it was not the decision that Ms X wanted. She appealed to the Court of Appeal in order to recover the costs of Californian commercial surrogacy. The one-and-a-half-day hearing took place in early November and judgment was handed down on 19 December 2018. On appeal, Claire was led by Christopher Johnston QC.

Commercial surrogacy arrangements are lawful and binding in California, which has a well-established system. In contrast, only non-commercial surrogacy is permitted in the UK, and all surrogacy arrangements are unenforceable. The Law Commission has noted that there are ‘significant problems’ with the Surrogacy Arrangements Act 1985 and it aims to publish a consultation paper on law reform by spring 2019.