Legal Update from Serjeants’ Inn 7th Annual Oxford Medical Law Conference

Written by: Oliver Williamson
Published: 21 September 2016

Serjeants’ Inn Chambers & Oxford Neurosurgery and Spine Practice – 7th Annual Oxford Medical Law Conference
Wadham College
26 September 2016

Legal Update

Duty of Care

1. Smith v University of Leicester NHS Trust [2016] EWHC 817 (QB) (15 April 2016):

  1. Neil Caven (“Neil”) a patient at the Defendant hospital (D) suffered from a long-standing (undiagnosed) disease. In March 2003 a doctor at D’s hospital requested a diagnostic test but the test was not performed.
  2. In March 2006 Callum Smith (“Callum”) was admitted to hospital and underwent testing and was subsequently diagnosed as suffering from Adrenoleukodystrophy (ALD) (a childhood version of Adrenomyeloneuropathy (AMN)). By the time of diagnosis the condition was too far advanced for treatment to be effective and Callum subsequently died on 26 April 2012.
  3. Following Callum’s diagnosis, his brother Connor Smith (“Connor”) underwent testing and was also diagnosed with ALD. Connor received treatment and his general health remained satisfactory.
  4. Following the diagnosis of Callum and Connor, Neil was seen in D’s clinic in 2006 and stated that his first cousin had been identified as a carrier of ALD. It was then noticed that the diagnostic test considered in 2003 had never been performed. The test was carried out and Neil diagnosed with the adult form of AMN.
  5. C alleged that D was negligent in not performing the test on Neil in 2003 and alleged that had the test been performed it would have led to testing of the wider family which would have included Connor and Callum and would have given rise to their diagnosis 2.5-3 years earlier which would have led to a materially improved outcome for both.
  6. The Claim was struck out on policy grounds.
  7. HHJ McKenna held: “this is a novel claim where it would not be fair just and reasonable on policy grounds to impose a duty of care on the Defendant in respect of those who are not its patients” (§30).

Causation & Material Contribution

2. Williams v Bermuda Hospitals Board [2016] AC 888 (25 January 2016):

  1. Claimant (C) went to hospital suffering acute appendicitis and underwent appendectomy. Complications of appendicitis resulted in sepsis and injury to C’s heart and lungs, which developed over a period of 6 hours prior to surgery. C alleged delay in treatment.
  2. Hellman J at first instance held that there had been a culpable delay of at least 140 minutes prior to the operation. The case was appealed to the Privy Council.
  3. Privy Council: where on the balance of probabilities an injury is caused by 2 or more factors operating cumulatively, 1 or more of which was negligent, it was immaterial whether the cumulative factors operated concurrently or successively. As a matter of principle, successive events were capable of each making a material contribution to the subsequent outcome.
  4. The sequence of events might be relevant in considering as a matter of fact whether a later event made a material contribution to the outcome (or whether an earlier event had been so overtaken by later events as not to have made any contribution) but those were evidential considerations.
  5. Therefore a claim will fail if the most which can be said is that C’s injury was likely to have been caused by 1 or more of a number of disparate factors, 1 of which was attributable to negligence by D, since it cannot be shown that as a matter of probability D’s negligence caused the injury (or was 1 of 2 or more factors which had operated cumulatively to cause it).
  6. In Williams’ case, since the injury was caused by a single known agent (sepsis) and its development and later effect on the heart and lungs had been a single continuous process which continued for 140 minutes longer than it should have, it was right to infer on the balance of probabilities that the negligence had materially contributed to the process and therefore the injury.

3. John v Central Manchester and Manchester Children’s University Hospitals NHS Foundation Trust [2016] EWHC 407 (QB) (2 March 2016):

  1. C, a GP, suffered a head injury and attended D’s hospital at around 07:00. At 13:15 C underwent a CT scan, more than 6 hours after his admission. A decision was taken to transfer C to another hospital for surgery. C also suffered a 1 hour delay in being transferred.
  2. C was left with brain injury which prevented him from practicing as a GP. C alleged that D’s negligent delay had resulted in a period of intra-cranial pressure which had caused or materially contributed to his brain damage.
  3. Picken J held that both periods of delay had been negligent (but the second was attributable to the Ambulance Service, not D). On the balance of probabilities C had been suffering intracranial pressure from 12:15 onwards and had the CT scan been performed before 10:00, D would have avoided a period of raised intra-cranial pressure for around 6 hours.
  4. Picken J held that the material contribution approach applied to ‘multiple factor’ cases where there have been sequential or cumulative causes (as it also does to ‘single agency’ cases).
  5. The material contribution test was therefore the appropriate approach to causation, even though the case concerned contribution to damage rather than risk.
  6. The test having been satisfied, causation was made out and C was entitled to recover in respect of the entirety of his loss, without deduction. An apportionment exercise was inappropriate because the evidence could not possibly attribute particular damage to a specific pathology or cause.

Damages

4. Reaney v University Hospital of North Staffordshire NHS Trust [2016] P.I.Q.R Q3 (2 November 2015):

  1. Hospital (D) was negligent and caused pressure sores to already incapacitated patient (C) who already required continuous care.
  2. Court of Appeal: D must compensate C only to the extent that a condition has been worsened by the negligence.
  3. D was entitled to take C as it found her. If the negligence caused C to have care and other needs which were substantially of the same kind as pre-existing needs, the damage caused by the negligence is the additional needs.
  4. If the needs caused by the negligence were qualitatively different from the pre-existing needs, those needs were caused in their entirety by the negligence.
  5. It remains for the Claimant to establish that the negligence caused (or materially contributed to: see Williams and John above) the injuries.
  6. Where a Defendant has injured a Claimant with a pre-existing condition, the Defendant is liable for the care and other needs of the Claimant to the extent that they are increased by the injury; a quantitative difference.
  7. However, where the needs of the Claimant as a result of the injury are qualitatively different from what was required previously, those needs are treated as being entirely caused by the Defendant.

5. Knauer v Ministry of Justice [2016] AC 908 (24 February 2016):

  1. C’s wife died in August 2009 from mesothelioma caused by D. C sought future loss of dependency under the Fatal Accidents Act 1976 (“FAA”). Assessment of damages took place in July 2014 and the Judge calculated sum by multiplying lost income by number of years, starting at the date of death.
  2. The effect of the calculation was to discount the damages for early receipt of the money by over £50,000 more than would have been the case if the multiplier had been applied from the date of trial (since such a calculation would treat damages as if they had been paid at the date of death).
  3. Supreme Court: it was the aim of an award of damages to place the person harmed in the position in which they would have been but for the harm done. Calculating the multiplier in FAA cases from the date of death gave rise to significant discount for early receipt of the money when in fact the money would not be received until after trial, resulting in under-compensation in most cases.
  4. There had been “a material change in the relevant legal landscape”, namely the use of actuarial tables to calculate future losses and therefore the reasoning of the House of Lords in earlier cases was illogical and resulted in unfair outcomes.
  5. Therefore, the correct date as at which to assess the multiplier when fixing damages for future loss in fatal accident claims is the date of trial, not the date of death.
  6. Damages for the period between death and trial are to be calculated by reference to the length of that period, subject to a discount (which in most cases would be modest) to reflect the possibility of events which might otherwise have occurred in that period.

Procedure

6. Clair Sellar-Elliott v Dr Sarah Howling [2016] EWHC 443 (QB) (3 March 2016):

  1. D admitted she had been negligent in failing to identify and report a malignant tumour on C’s liver. Causation was in dispute and depended upon expert evidence.
  2. 6 weeks before the date for exchange of expert evidence C applied for an interim payment. C served her expert evidence early so that the evidence was before the Court at the interim payment hearing. D did not serve her expert evidence.
  3. The Master held that he had to decide the application on the evidence before him and that C had proved her case and D had not discharged the evidential burden of proving that C would not succeed in obtaining substantial damages.
  4. On appeal, Sweeney J held: an application for an interim payment had to be supported by evidence (CPR 25.6(3)(b)). However there is no obligation on either party to file supporting evidence, simply an option to so do (CPR 25.6(4) and (5)).
  5. The Court will be alert to the possibility of an application for an interim payment being made for and improper purpose and would deal with it accordingly.
  6. In this case there was nothing improper about the application and C had served supporting evidence. D (as was her right) had chosen to serve only limited evidence in response. The Master had to decide the application on the evidence before him and was entitled to find C’s evidence sufficient to satisfy CPR 25.7(1)(c) (if the claim went to trial, C would obtain judgment for a substantial amount of money against D from whom C is seeking an order for an interim payment).

Costs

7. Sarpd Oil International Ltd v Addax Energy SA [2016] EWCA Civ 120 (3 March 2016):

  1. Appeal relating to security for costs in an international purchase contract case. Andrew Smith J at first instance held that there was no reason to believe that C would be unable to pay D’s costs if ordered to do so and therefore refused to make an order for security for costs. On appeal, consideration was given to the relevance of the parties’ costs budgets in calculating the amount of the security.
  2. Sales LJ held: “The proper interpretation of the order made in relation to each costs budget, therefore, is that the estimated costs element in each case was approved by the order (so that CPR 3.18(b) was engaged in relation to that element) and the court commented on the incurred costs element in each case (and on the total figure which included that element), as it was entitled to do under the second sentence of para 7.4, to the effect that it agreed the claim made on the face of the costs budget that those costs were reasonable and proportionate costs in the litigation. The effect of this comment was that it was likely that the incurred costs element would be included in any standard assessment of costs at the end of the day, unless good reason was shown why it should not be. There was little if any difference between the practical effect of the court’s order in relation to incurred costs and its order in relation to estimated costs.” (at §47).
  3. As a consequence, it is vital that any concerns about the level of incurred costs in an opponent’s budget are raised. There is a risk that a failure to raise an objection will be taken as implied approval that the costs incurred are reasonable and proportionate, with real difficulty challenging the same at any subsequent assessment.