Clinical Negligence 2017 Review – a summary of all the important cases from 2017
Dr Simon Fox QC
No 5 Chambers and Exchange Chambers
The last year has seen a number of significant cases as clinical negligence law continues to evolve. Some, but not all, demonstrate how it can be easier for a Claimant to succeed, with Montgomery showing its influence in areas other than consent. The following is a summary of the important cases, from the existence of a duty of care to the nature of that duty, through to secondary victim claims.
The Existence of a Duty of Care
– Inherited Conditions and A+E Receptionists
ABC v St Georges Healthcare and Others  EWCA Civ 336
The Claimant appealed the strike out of her case. Her father had killed her mother and been sentenced to a hospital order. He was later diagnosed with Huntingdon’s Disease but wished this to be kept confidential from his family. There was a 50% risk that this genetic condition would be passed to his children. The Defendants who cared for him respected the father’s wish. His daughter, the Claimant, had her own child and was found also to have Huntingdon’s disease. It then transpired that she inherited this from her father but had not been told of his diagnosis. The daughter claimed against the Defendant as the unit treating her father on the basis that it owed a duty to her to inform of her father’s diagnosis. She was a prospective single parent. If she had been aware of his diagnosis she would have been tested and if positive terminated the pregnancy.
The Court considered the tripartite test in Caparo v Dickman for extension of the legal duty to individuals. The Defendant accepted for the purpose of the application that the first and second limbs of test were satisfied – injury reasonably foreseeable and sufficient proximity for duty to arise. The issue was the 3rd limb – was it arguably fair, just and reasonable to impose a duty on the Defendant ?
The Court considered the public interest, duty of confidentiality to father, undermining of the doctor patient relationship, pressure on patients to agree to disclosure, psychiatric harm to non patient, burden on medical staff and incremental manner of development of the law. The Court also considered the consent case of Montgomery.
The Court found that the duty of care was arguable, strike out was quashed and case was remitted for trial.
The appeal decision in ABC contrasts with the first instance decision in Connor Smith v University Leicester NHS Trust  EWHC 817 QB. In that case second cousins of a patient with a similar inherited condition brought a claim on the basis that delay in diagnosis in that patient led to a delay in the others. The same Caparo test was applied. The strike out succeeded on the basis that the claim failed the second and third hurdles of proximity and fair, just and reasonable. The Judge found support for his decision in fist instance strike out decision in ABC which had not at that time been appealed and Smith itself was not appealed.
Darnley v Croydon NHST  EWCA Civ 151
A patient with a head injury attends A and E and is told by the receptionist that the waiting time to be seen is 4-5 hours. This was incorrect. In fact he would have been triaged within 30 minutes and prioritized accordingly but he leaves before then without waiting or advising staff. He suffered an avoidable brain injury at home. He claimed he should have been seen in less than 30 mins and for negligent advice from receptionist that he would have to wait 4-5 hours. Held by a majority that there was no negligent delay in seeing him and no duty on the receptionist to advise the Claimant on the basis that it failed the Caparo 3rd limb.
– Illustrations of, and limits to, Montgomery
Thefaut v Johnston  EWHC 497 (QB)
This case concerned consent for a discectomy procedure. The operation resulted in nerve damage with worsening in the Claimant’s condition in contrast to the anticipated improvement. The surgeon was found to have overstated the percentage chance of improving the back pain and understated the risk of deterioration. The judgment gives some useful flesh on the bones of the test in Montgomery. There must be adequate communication/dialogue in adequate time and space. It must be dejargonised and not too technical.
The Court emphasized the limitation of the signed consent form which it considered was “of no significance”. Similarly the discussion at the bedside on the morning of operation was not sufficient.
With proper information it was likely that the Claimant would have declined or postponed and avoided her injury.
Correia v University Hospital N Staffs  EWCA Civ 356
The Claimant was consented for and underwent an exploration and excision of foot neuroma. This should comprise exploration, excision of neuroma and then relocation of proximal nerve ending. It was established that in breach of duty the relocation part of the procedure had not been performed.
The Claimant’s case was that her residual pain was caused by this negligent failure but she failed to prove causation in this respect.
The Claimant therefore sought to prove her claim on consent and argued that she had not consented to the procedure without relocation, nor had she been warned of the risks of an operation without relocation.
The Court dismissed her case on consent. There could be no complaint of consent process up to start of her operation. A negligent failure to carry out relocation part of the procedure did not negate consent for the procedure. Omission of relocation did constitute a breach of duty (in respect of which the Claimant could not prove causation).
Webster v Burton Hospitals  EWCA Civ 62
This was a cerebral palsy claim in which there was an admitted negligent failure to carry out further scanning in response to poor growth, asymmetry and polyhydramnios in an antenatal scan.
The Claimant alleged that if the consultant obstetrician had carried out further scanning in response to poor growth, the results of the further scan would or should have led to the obstetrician bringing forward delivery to before a period of brain damaging hypoxia which in fact occurred 72-48 hours prior to his delivery during spontaneous labour. In the alternative the obstetrician should have advised the Claimant’s mother of the alternative of earlier delivery.
The Defendant asserted that their obstetrician would not have arranged earlier delivery in response to the repeat scan or of the alternative of earlier delivery, but would have continued the pregnancy and this would not have been negligent.
At first instance – before Montgomery – the Judge found for the Defendant on both aspects.
The appeal was heard after Montgomery. The Claimant won on consent; his mother should have been advised of the complications and risks and uncertainties of different treatments. This would or should have included “an emerging but recent and incomplete material showing increased risks of delaying labour in cases such as this”. The Court of Appeal accepted the mother’s clear evidence at trial that she would have opted for early delivery if there had been “any suggestion of risk”.
Diamond v Royal Devon and Exeter  EWHC 1495 (QB)
Failure to advise of risk of mesh repair surgery in obtaining consent. However Judge found that Claimant would have proceeded even if risk advised –no causation. The Claimant sought to argue that the failure to advise of risk alone entitled the Claimant to damages. A mere failure to advise of risks without more could not give rise to a free standing claim in damages.
Shaw v Kovac  EWCA Civ 1028
This was a consent case in which a patient died following heart surgery in respect of which he had not been advised properly of the risks. The surgeon admitted liability and £5,000 for pain, suffering and loss of amenity. However in addition the Claimant sought £50,000 general damages for loss of personal autonomy as a head of loss. The Court of Appeal refused to recognise such an award.
Breach of Duty
– Bolam and Bolitho Analysed in Detail
McGuinn v Lewisham NHS Trust  EWHC 88 (QB)
This was a wrongful birth claim with alleged failures to interpret fetal ultrasound scans appropriately. The Bolam/Bolitho test was considered. The judgment contains a helpful analysis by Green J in C v North Cumbria  EWHC 61 of the Bolitho component of the test and in particular the assessment as to whether the Defence expert’s view represented a reasonable and responsible body.
“The court in making this assessment must not however delegate the task of deciding the issue to the expert. It is ultimately an issue that the Court, taking account of that expert evidence, must decide for itself”. Factors included whether the expert is responsible, competent, respectable, reasonable and logical. “A highly responsible and competent expert of the highest degree of respectability may, nonetheless, proffer a conclusion that a Court does not accept, ultimately, as ‘logical‘”. Logic is by far and away the most important consideration – by reference to other evidence tendered and internal consistency and whether it accords with inferences properly drawn from the clinical notes. It is a “high hurdle” for Claimant to satisfy the Court not just that Claimant’s expert evidence should be preferred, but that the Defendant’s expert evidence does not reflect reasonable practice.
The Court found that the Defendant’s expert “lacked a sufficiently logical and rational basis” and found for the Claimant.
EXP v Barker EWCA  Civ 63
Defendant neuroradiology expert had not declared a close connection with the Defendant. An expert not declaring a conflict of interest can reduce the weight attached to evidence or justify exclusion completely.
Trial Judge was entitled to find for the Claimant on breach by accepting the Claimant’s expert evidence and rejecting the Defendant’s expert evidence where the Judge felt unable to rely on the Defence expert’s evidence as that of a responsible body. It was not necessary for the Judge to find that the body of opinion represented by the Defendant’s expert was unreasonable.
Muller v Kings College  EWHC 128 (QB)
This is a useful first instance decision distinguishing the test for breach to be applied for “pure diagnosis” cases (reasonable skill and care) as opposed to “pure treatment” cases (no reasonable or responsible body). Noting that in the former there is no issue of preferring one body or not but the Court still has to apply Bolitho in rejecting the defence expert.
Secondary Victim Claims
– Still Possible after Ronayne
RE v Calderdale  EWHC 824 (QB)
A claim was brought on behalf of a baby who suffered hypoxic brain injury during delivery after shoulder dystocia. In addition mother and grandmother present at birth brought primary /secondary victim claims for PTSD. In issue was breach, whether mother was primary or secondary victim, and whether sufficiently shocking for mother/grandmother to recover as secondary victims.
The Defendant was found in breach which was causative of hypoxic brain injury commencing 8 minutes before birth. The Judge held that the baby’s injury commenced before birth and continued after. The extent of injury depended on totality of insult which began before birth when mother and baby are regarded as one legal entity and therefore mother was a primary victim (avoiding the need to satisfy the additional requirements for a secondary victim).
Even if she was a secondary victim – it was sufficiently shocking to qualify as a shocking event under the principles of secondary victim law. “I could see that her body was completely white and lifeless, her head was purple and swollen…my baby is dead”
Grandmother could only be a secondary victim. She witnessed the same event and therefore also qualified as a secondary victim.
This is a further case demonstrating that it is still possible to bring secondary victims in clinical negligence after the Court of Appeal decision in Ronayne, as long as the event is sufficiently shocking, as it was here.