Clinical Negligence Claims 2021. Some cases of interest so far…
East Lancashire Hospitals NHS Trust v GH  EWCOP 18
GH suffered from severe anxiety, depression and acute agoraphobia. As such, she had declined all routine ultrasound and growth scans. At a time when her capacity was not in question, she had elected to have a home birth but agreed to a hospital admission should it be required.
Complications arose during labour, and it was felt that urgent in-patient obstetric treatment and a possible emergency caesarean section maybe required. GH refused. A Specialist Perinatal Community Mental Health Midwife arranged an urgent capacity assessment, and it was concluded that, at that time, she lacked capacity. The Official Solicitor became involved on her behalf and agreed it was in her best interests to be taken to hospital.
An urgent out of hours application was made to the Court of Protection. An order was made allowing proportionate and reasonable measures, including sedation, to affect the admission and treatment.
The Trust were represented by Hempsons regarding this matter.
MacDonald J appreciated the gravity of the requested course of action, but found that the Trust had discharged the burden of demonstrating that GH lacked capacity in making decisions on admission and treatment in circumstances where her agoraphobia, anxiety and depression prevented her from weighing up information in deciding whether to agree. He further found that it was in her best interests to be taken to hospital by ambulance and for the medical practitioners to carry out the appropriate treatment to manage the delivery.
From the claim of Montgomery, we are aware that consent for medical treatment must be informed. It is also clear here that it must be given with capacity to consent.
Capacity is determined under the Mental Capacity Act 2005 and is a time and issue specific question. Once capacity is considered as lacking, what is in the person’s best interests must then be determined having regard to the 2005 Act.
Significantly, in the Judge’s decision, he noted that GH had been willing to agree the treatment should the need arise, at a time when there were no issues regarding capacity.
Medical practitioners must always be alive to the issue of consent or refusal and consent must always be provided by a person with capacity. Any concerns regarding capacity must be assessed as soon as possible.
This case is following MB 1997 CA FCR 541 where Butler-Sloss laid down the tests to be followed in assessing capacity.
Jarman v Brighton and Sussex University Hospitals NHS Foundation Trust  EWHC 323 (QB)
The Claimant, a primary school teacher, injured her back in an accident at work on 17-2-15. Following consultations with both her GP and physiotherapists she attended A and E at the Royal Sussex County Hospital on 3-3-15. Following same day review in the Orthopaedic Department, the Claimant was booked in for a MRI scan on a “routine” basis. The MRI scan was not performed until 18-3-15. The MRI Scan showed possible Cauda Equina Syndrome (“CES”) as the Claimant had a prolapsed disc compressing the right anterior cauda equina. The Claimant underwent urgent spinal decompression surgery on 21-3-15, but unfortunately the surgery was not successful in preventing her from suffering permanent neurological damage, and long- term consequences of CES.
The Claimant alleged that she should have been referred for an urgent MRI Scan which should have been carried out by 7-3-15 and surgery would have taken place by 9-3-15. She alleges that the delay caused a worse outcome. The Defendant maintained that the timing of the scan and surgery was appropriate, as the Claimant had not showed any signs of CES on examination by the Orthopaedic Registrar.
The Deputy Judge referred the case of Hewes, noting that “once CES has been diagnosed, it is seen as an emergency, because unless pressure on the nerves is released quickly, they can be damaged permanently”. The Judge felt that the evidence showed that in 2015 it was reasonable not to scan a patient for CED who presented with symptoms but no signs of CES, even if there was a greater likelihood that such a patient would be scanned on an emergency basis today.
As regards causation, two points were noted:-
- The narrow window for achieving a better outcome. It was noted to be in the region of 48 hours, as supported by Mr Todd, the Claimant’s Neurosurgical expert.
- The Judge was critical that the Claimant’s expert did not provide any Literature to support his view. It was argued that there was too much literature in the area and flaws can always be found in literature. The Judge did not agree; he considered the evidence would have been much more persuasive if it had been supported.
There are several key points to note from the Judgment on this matter:-
- Review the guidelines from the year of the alleged negligence. Of note, the 2018 edition lower the threshold, and also recommend scanning where there are any suspicions and note that these scans should take precedence over any routine cases.
- It appears that if the alleged negligence occurs earlier in the ‘CES timeline’, the Claimant is likely to find it more difficult to prove the breach, but causation arguments may be easier to prove. Later in the timeline, it is likely to be the opposite. The Claimant needs to consider exactly where the window of lost opportunity arose.
- At trial the Judge is likely to expect some literature being cited in support.
This case turned much on the quality of the expert witnesses.
King v Royal United Hospitals Bath NHS Foundation Trust  EWHC 1576 (QB)
The Claimant and his wife were expecting their second baby. The baby was born late by emergency section on 5-5-16, at the Defendant Trust. Sadly, the baby died five days later.
Negligence was admitted by the Trust for the baby and his mother, accepting that the baby would have survived if care had not been delayed and he had been born before 5-5-16.
The Claimant pursued a claim as a secondary victim having suffered PTSD as a result of seeing his new son in NICU shortly after his birth. His claim was substantial as he was a successful actor claiming Loss of Earnings.
The relevant test was still confirmed to be Alcock v Chief Constable of South Yorkshire Police  1 AC 310, summarised as follows (Liverpool Women’s NHS Foundation Trust v Ronayne  PIQR P20:-
- The Claimant must have a close tie of love and affection with the person killed, injured or imperilled;
- The Claimant must have been close to the incident in time and space;
- The Claimant must have directly perceived the incident rath than, for example, hearing about it from a third person; and
- The Claimant’s illness must have been induced by a sudden shocking event.
It was agreed that the first three conditions were met. The fourth was disputed. The Judge felt that,
“the shocking event must be outside ordinary human experience in the context in which it occurs”. Based on the evidence available, the Judge felt that the Claimant was prepared for the interventions and machinery he would see before he entered NICU. Thereafter despite the tubes, the baby appeared as a “sleeping new born baby”.
On this basis the Alcock criteria was not established.
Clearly, what falls outside the ordinary human experience will need to be considered on a case by case basis.
Of further note in this particular case is that the Doctors evidence on the chronology of events was preferred to the Claimant as to the morning in question; the Doctors had confirmed that the Claimant had been aware of the position before he entered the room. It is likely that the account which makes the most logical sense when set out chronologically usually has an inherently greater likelihood of being accepted as correct.
The Judge also criticised the Claimant’s expert who provided evidence on the loss of earnings potential. The Judge considered the expert to stray outside her expertise. This is a reminder to make sure experts remain independent and a demonstration of the impact it can have if they are not.
Brennan and Others v City of Bradford Metropolitan District Council (1), Leeds Teaching Hospital NHS Trust (2) [2021)
The case concerns the body of Emily Whelan, who passed away on 8-11-16. The body was taken to the mortuary at Leeds General Infirmary, under the care of the above named Trust. Her body was kept in refrigeration until 23-12-16. She was then moved to Bradford Public Mortuary until 5-12-17. This is responsibility of the above named Council. The body was then moved to deep freeze storage and eventually buried on 11-5-18.
Refrigeration only slows down decomposition. It can only be halted by freezing. The family members were aware of the extent of decomposition and suffered psychological injury as a result; alleging further that her body had not been treated with dignity and response. A claim was therefore pursued under the Human Rights Act 1998. They alleged that Article 8(1) of the European Convention on Human Rights (“ECHR”) had been infringed, and that this infringement had caused them psychological damage.
Article 8 of the ECHR reads as follows:
Article 8(1): “everyone has the right to respect for his private and family life, his home and his correspondence.”
The First Defendant admitted that Article 8(1) was engaged and that it had been breached. However, the Second Defendant defended the claim to trial, denying that the body decomposed in their care to such extent that it was unfit for viewing and also denied that Article 8 was engaged.
His Honour Judge Saffman found for the Claimants. He made the following findings:-
- On the balance of probabilities, the body was in the advanced stages of decomposition by 23-12-16.
- Article 8 of the ECHR did cover the treatment of the body of a loved one.
This case highlights how human rights can impact on medical cases and in a medical environment, particularly where it may not appear that a duty of care is owed.
Factors to consider in such a claim are:-
- Who is pursuing the claim?
- Is the right engaged?
- Does a reasonable justification apply?
- Consider the remedy that could be awarded. In this claim it was damages totalling £7500.00 across all five Claimants.
If you have any questions regarding any of these cases then please get in touch with the team.