Clinical Negligence Cases of Interest – January 2017

1. Serving evidence late – Defendant refused permission to serve supplementary witness statement

MOORE -V- PLYMOUTH HOSPITALS TRUST (2016) – His Honour Judge Cotter QC

Case concerned a relief from sanctions application following an attempt by the defendant to file a supplementary witness statement (3 weeks before trial). Court refused permission to serve the supplementary statement, noting that if granted it would “in part condone the continuance of the old lax culture of non compliance and delay”

Court noted that a period between February and April had elapsed, when the Defendant had shown no urgency and had not informed the Claimant that further evidence was likely. Nor had it informed the Claimant how that evidence might alter matters in issue.

The argument that the evidence would have emerged eventually (during evidence at trial) was described as akin to the “proverbial rabbit out of the hat at trial” and the Court emphasized the need to ensure that litigation is conducted fairly and efficiently, and that Court Orders are complied with.

2. Causation and issues relating to bundles

GRIFFITHS V SECRETARY OF STATE FOR HEALTH – [2015] EWHC 1264 (QB)

Causation issues relating to competing causes of injury, and comments relating to preparing bundles

The Claimant, who had alcohol problems, was carrying out some DIY work at home. Whilst waiting for some paint to dry (and drinking vodka and orange) he fell on the stairs. He broke his neck in the fall, ending up in a heap at the bottom on the stairs.

When she arrived home the Claimant’s wife “seriously underestimated the seriousness of her husband’s condition”. She took photos, with the intention of presenting these to her husband as evidence of his behaviour.

Twenty minutes later she thought he may have had a stroke and an ambulance was called.

The ambulance crew arrived and the paramedic made a serious error in assuming (like the Claimant’s wife) that the claimant had suffered a stroke rather than a neck injury. No steps were taken to immobilise the Claimant’s neck.

Once at hospital the correct diagnosis was made about the severity of the injury.

The defendant admitted that the error made by the paramedic was a breach of duty.

The causation question was whether the breach of duty in failing to immobilise the claimant’s neck caused at least part of his residual disability.

The Court had to consider whether the negligent manhandling caused further injury to the spinal cord, and whether the Claimant’s condition deteriorated between the time he was found by the ambulance crew at the bottom of the stairs to the time he arrived at hospital.

The Court noted that if there was evidence to show that on a balance of probability the Claimant was in a worse state when he arrived at hospital than he had been before he had been manhandled then this would establish that the admitted negligence probably caused a poorer outcome.

The photographs taken by the Claimant’s wife proved to be important. The differences between photos taken allowed the Judge to conclude the claimant did have some level of residual function below the level of the spinal injury after the fall but before the manhandling.

The Court held that combined evidence of manhandling and deterioration was compelling enough to support the conclusion manhandling had been responsible for the deterioration.

Comment

The case shows the need to consider causation carefully. There are instances where non-tortious events need to be analysed and taken into account in determining liability.  The Court needs to consider whether there is a causal connection between the breach of duty and eventual outcome.

In the judgment it is detailed how the analysis was on the basis of the conventional “but for” basis, analysing whether or not the deterioration had occurred, rather than the judge considering whether the negligence was a material contribution to the damage.

It could be thought that this case was suitable for the cumulative factors involved in case would have led to a Bailey v Ministry of Defence analysis. However, the distinguishing feature was that the Defendant’s argument was that all the damage had already been done, leaving no scope for an argument based on contribution.

The fact that the photographs were key on the question of the deterioration show such items (or detailed information in witness statements) can sometimes be of the utmost value, even though that would not have been expected when the photos were taken.

Bundles

The Judge was quite critical of the trial bundles, noting 17 lever arch files in total, with around 12 unopened throughout the trial.

Referring to para.3.2 PD 39A he noted that the bundles did not comply and were something of a parody, complying with Sedley’s Laws of Documents (see below).

The Judge noted the need to err on the side of caution when deciding which documents to include but that CPR 1.3 imposes a duty upon the parties to help the court to further the overriding objective. This duty is not fulfilled by “documentary carpet bombing”.

He warned that in appropriate cases, adverse costs consequences may flow.

Sedley’s Laws of Documents are:

1. Documents may be assembled in any order, provided it is not chronological, numerical or alphabetical.

2. Documents shall in no circumstances be paginated continuously.

3. No two copies of any bundle shall have the same pagination.

4. Every document shall carry at least three numbers in different places.

5. Any important documents shall be omitted.

6. At least 10 per cent of the documents shall appear more than once in the bundle.

7. As many photocopies as practicable shall be illegible, truncated or cropped.

8. At least 80 per cent of the documents shall be irrelevant. Counsel shall refer in court to no more than 10 per cent of the documents, but these may include as many irrelevant ones as counsel or solicitor deems appropriate.

9. Only one side of any double-sided document shall be reproduced.

10. Transcriptions of manuscript documents shall bear as little relation as reasonably practicable to the original.

11. Documents shall be held together, in the absolute discretion of the solicitor assembling them, by: a steel pin sharp enough to injure the reader; a staple too short to penetrate the full thickness of the bundle; tape binding so stitched that the bundle cannot be fully opened; or a ring or arch-binder, so damaged that the two arches do not meet.

3. Disclosure of documents pre-action

NICOLE CHAPMAN v TAMESIDE HOSPITAL NHS FOUNDATION TRUST (2016)

CC (Bolton) (District Judge Swindley)

Costs order for failing to disclose documents pre action that would have caused Claimant not to issue. This was a PI case and that Protocol has a different requirement in respect of disclosure – but worth considering the issues on clinical negligence cases too.

A Defendant which had failed to comply with the Pre-Action Protocol for Personal Injury Claims was ordered to pay the Claimant’s costs.

The Defendant stated that it had no documents to disclose pre-issue, but then disclosed relevant documents, causing the Claimant to discontinue.

The claim related to a slip and fall while visiting the Defendant NHS A&E department. In the Letter of Response the Defendant stated that liability was denied and that the trust had no documents to disclose. However, after proceedings were issued, the trust disclosed a number of documents. A month later it disclosed further documents which resulted in the Claimant agreeing to discontinue her claim.

The claimant submitted that had the Defendant disclosed the documents earlier she would probably not have issued proceedings and would not have incurred costs.

The Court held that the Pre-action Protocol sets out an obligation to provide “documents in its possession which are material to the issues between the parties, and which would be likely to be ordered to be disclosed by the court”.

It was held that the documents eventually disclosed should have been disclosed before the issue of proceedings, and the court was satisfied that, on the balance of probabilities, had the Defendant produced the documentation when they should have done, the claim would not have gone any further.

The approach was stated to have been unacceptable and exactly the type of conduct which costs rule CPR r.44.2 was designed to address – namely the conduct of the parties and the extent to which the parties had followed any relevant pre-action protocol when making costs orders. The Claimant was awarded her costs.

Comment

Consider carefully what documents could/should be disclosed or appended with the Letter of Response; an approach of simply denying liability may not be enough and could potentially end up with costs consequences even if the claim is successfully rebutted.

4. Costs Budgets

SURIAYA JAMADAR v BRADFORD TEACHING HOSPITALS NHS FOUNDATION TRUST [2016] EWCA Civ 1001

The Court of Appeal upheld the decision of the lower court that the Claimant’s recoverable costs limited to court fees only under CPR r.3.14 where he had not served a costs budget.

Liability had been admitted but the case remained a multi-track case and the costs management regime still applied.

At the CMC the district judge had given directions, including the appointment of five experts on each side, leading towards a five-day trial on quantum. He approved the trust’s costs budget. He noted that r.3.13(2) required the appellant to produce a costs budget at least seven days before the CMC, which he had not done, and therefore he ordered under r.3.14 that his recoverable costs be confined to court fees.

The appellant applied unsuccessfully to vary that order or for relief from sanctions. A circuit judge refused his appeal, holding that the claim was self-evidently a multi-track case to which r.3.13 applied and that the appellant had been in breach.

The Court of Appeal held that it was clear that this remained a multi-track case, despite the admission of liability the fact that it was quantum-only did not take it out of the costs management regime.

It was also held that the circuit judge had properly applied the three-part test in Denton, and the Claimant’s costs recovery was restricted to Court fees.

5. Local Authority funding obligations

DAMIEN TINSLEY (BY HIS LITIGATION FRIEND & PROPERTY & AFFAIRS DEPUTY HUGH JONES) (Claimant) v MANCHESTER CITY COUNCIL (Defendant) & SOUTH MANCHESTER CLINICAL COMMISSIONING GROUP (Interested Party) (2016) [2016] EWHC 2855 (Admin)

The court made a declaration that a local authority could not have regard to a Claimant’s ability to fund after-care services from personal injury damages awarded to him when determining whether to provide or arrange for the provision of such services under s.117.

So double recovery is allowed in these circumstances – it’s a matter for Parliament to deal with.

The court was required to determine issues relating to the duty of the defendant local authority’s under the Mental Health Act 1983 s.117 to provide after-care services to persons detained under s.3.

The claimant had been awarded damages including future care costs of £2.89 million.

The Court held that care under s.117 had to be provided free of charge regardless of resources, and it would be anomalous if a claimant under s.117 with personal injury damages were put in a worse position. It was not open to the Defendant to refuse to make provision for a person otherwise entitled under s.117 on the basis that they were in receipt of personal injury damages including the costs of such care.

6. Fraudulent claimants

HAYWARD V ZURICH INSURANCE COMPANY LTD [27.07.16]

The claimant brought a claim arising from an injury at work in 1998. Proceedings were commenced in 2001 and in 2003 (before trial) insurers settled the claim for £134,973.11.

Two years later the Claimant’s neighbours gave evidence stating that he had recovered from his injuries a year before the settlement.

The Supreme Court unanimously allowed the insurer to set aside the settlement, on the basis that the claimant’s fraudulent misrepresentations had induced the insurer to settle at a level far higher than it would have done, had it known that the misrepresentations were false.

7. Extending time and when to apply

EAGLESHAM -V- MINISTRY OF DEFENCE [2016] EWHC 3011 (QB)

Mrs Justice Andrews DBE refused the defendant’s application for an extension of time for compliance with an unless order. The Defence was struck out.

The Court refused to grant relief from sanctions to a Defendant that had breached a peremptory order for the disclosure of documents. It was noted that although the defendant’s application for relief was made the day before compliance was due it was appropriate for the court to apply the “Denton” principles.

The key issue to remember is that a party that cannot comply with a peremptory order should make a prompt application to court as soon as problems arise, not leave it to the last minute.

The Court held that “At the end of the day, Unless Orders should mean what they say. The Defendant knew the risk. Even though this was not a case of a deliberate flouting of a court order it is not an appropriate case in which to grant the Defendant any further indulgence.”

8. Quantum cases –

Dental cases – a selection of out of court settlements, and the PSLA figures agreed recently

JD v JM (2016)

39-year old woman, received £7,000 (PSLA £4,500)

Substandard treatment between 2014 and 2016

Failure to extract her LR5 in a timely manner, which resulted in the Claimant suffering from a dental infection, which led to her collapsing and requiring a hospital attendance.

BM v PS (2016)

39-year-old man, received £9,500 (PSLA £2,200)

Treatment between 2007 and 2010.

He suffered dental decay, had to undergo an extraction and would require further treatment.

SW v AC (2016)

65-year-old woman, received £18,000 (PSLA £7,800)

Failure to treat periodontal disease in July 2011.

She suffered extensive bone loss and the loss of one tooth, and was likely to have to undergo nine further extractions and implant placement.

SF v LD (2016)

50-year-old man, received £1,750 (PSLA £1,000)

Treatment in August 2015. He suffered facial pain and swelling for approximately three weeks.

JB v BARNES (2016)

53-year-old woman, received £12,000 (PSLA £4,500)

Severe periodontal disease, and care between March 2008 and January 2012. Several teeth suffered periodontal destruction and one had to be removed and replaced with an implant.

AP v PS (2016)

53-year-old woman, received £2,300 (PSLA £1,900)

Alleged failure to completely replace her amalgam fillings with composite fillings between 2003 and 2009.

Amalgam was left in situ, compromising the structural integrity of the restorations, and a further procedure to remove the residual amalgam would be required.

JD v EP (2016)

44-year-old man, received £14,500 (PSLA £3,720)

Dental injuries sustained following treatment between September and November 2014.

He suffered tooth decay, had to undergo additional treatment and subsequently had two teeth extracted, although liability was not admitted.

SALEEM v BAB (2016)

31-year-old man, received £20,000 (PSLA £19,000)

Treatment in September 2014

He suffered the loss of one tooth and lingual and inferior dental nerve damage, leaving him with permanent numbness.

JA v DB (2016)

63-year-old woman, received £7,000 (PSLA £3,500)

Dental implant fell out a few months after fitting.

A temporary bridge was subsequently fitted but she would require a further implant.

JM v PS (2016)

63-year-old woman, received £12,000 (PSLA £3k)

Injuries sustained between December 2000 and January 2013.

She suffered infection, decay and pain and at least one tooth required extraction.

KS v NA (2016)

38-year-old woman, received £4,000 (PSLA £2,300)

Alleged damage sustained to her teeth in June 2014.

Liability was not admitted.

The damage to her teeth was permanent and she would require further dental treatment.

GRATTON v W (2016)

46-year-old woman, received £13,000 (PSLA £2,300)

Dental treatment received in October 2010.

She suffered the loss of a tooth, underwent bridge and denture provision and would require implant replacement therapy and regular crown replacements.

MA v IK (2016)

32-year-old man, received £5,000 (general damages)

Dental implant was allegedly drilled too deep into his jaw in August 2015.

Liability was not admitted.

The claimant had to undergo an additional procedure to reposition the implant.

JOHNSON v H (2016)

54-year old woman, received £35,000 (PSLA £10,100)

Failure to diagnose and treat periodontal disease between 1998 and 2011.

She suffered extensive bone loss and the loss of six teeth, and argued that she would require the extraction of a further six teeth.

JD v PS (2016)

79-year-old woman, received £17,500 (PSLA £5,100)

Treatment she received between 2010 and 2013.

She suffered decay resulting in the extraction of three teeth and required three new crowns.

AP v (1) AM (2) NC (3) TF (2016)

36-year-old woman, received £45,000 (PSLA £18k)

Dental injuries sustained between 2009 and 2013.

She underwent one extraction and scar revision surgery and would require three further extractions, implants and a bilateral sinus lift.

BROWNE v K (2016)

28-year old man, received £15,000 (general damages)

Negligent dental treatment between 2006 and 2013.

He suffered the avoidable loss of LR8, permanent inferior dental nerve damage and the significant deterioration of UL7.

LIGHTFOOT v PATEL (2016)

16-year-old girl, received £60,000 (PSLA £30k)

Dental injuries sustained during orthodontic treatment in March 2013.

She suffered damage to the enamel of 10 front teeth and would need repeated restorative work throughout her life.

JG v JS (2016)

52-year-old woman, received £14,750 (PSL £4k)

Failure to diagnose decay on four teeth and for substandard root canal treatment between 2006 and 2013.

She was likely to lose the teeth that suffered decay and would require extensive restorative treatment.

EAVES v H (2016)

54-year-old woman, received £55,000 (PSLA £20k)

Suffering periodontal disease (undiagnosed/treated) between the 1980s and 2011.
Liability was not admitted.

The claimant lost 11 teeth and she might lose more in the future.

HEYES v COOKSON (2016)

42-year old woman, received £85,000 (PSLA £23k)

Mismanagement of her periodontal health between 1998 and 2011.

She sustained the avoidable loss of some of her teeth and would sustain the avoidable loss of all of her remaining teeth in the future. She would have to undergo extensive full mouth implant replacement therapy.