TALK ON CLINICAL NEGLIGENCE TO ROYAL FACULTY OF PROCURATORS

GLASGOW 8 MAY 2014

OVERVIEW

  1. BASIC ELEMENTS OF A CLAIM FOR CLINICAL NEGLIGENCE
  1. Complaint v claim
  2. Test for negligence
  3. Causation
  4. Time limits
  1. SOME RECENT CASES OF INTEREST
  1. Helen Coyle v Lanarkshire HB
  2. LG v Greater Glasgow HB
  3. Glancy v Southern General HB
  4. JM v Highland HB
  5. Holdich v Lothian HB
  1. RELIANCE ON EXPERTS
  1. Role
  2. Standard
  3. Expertise - Coyle
  4. Objection
  5. Quantum – care
  6. Employment - McGlone
  1. FUNDING
  1. legal aid, restriction of costs, children’s cases
  2. insurance
  3. maximising expenses
  1. NEW PROCEDURE IN CT OF SESSION
  1. Chapter 43 - new
  2. Chapter 43A - newer
  3. Chapter 42A – newest Rules
  4. Smith v GGHB – Lord Jones
  1. PPO – Periodical Payments Orders
  1. Agreement
  2. Scottish Government policy
  3. Advantages – index linking
  4. Disadvantages - security
  5. Format – D’s guardian v GGHB
  6. Future – independence and the Salmond poond
  1. COURTS REFORM (S) BILL – changes afoot.
  1. Privative limit of Sh Ct
  2. Specialist PI court
  3. Complex cases can be remitted
  1. DAMAGES BILL
  1. Extension of prescription to 5 years
  2. Incapacity
  3. Discretion of court - factors to be taken into consideration
  4. Replace reasonably practicable test with subjective one
  5. Psychiatric injury
  6. Power of courts to impose PPOs
  1. NO FAULT COMPENSATION REPORT
  2. Proposals
  3. Scandimania
  4. Scottish Government response
  1. MEDICAL INNOVATION BILL–England
  2. Freedom to innovate
  3. Fear of litigation
  4. Quack’s charter
  1. DEFECTIVE PRODUCTS
  1. Consumer Protection Act 1987
  2. S.3 – safety
  3. Defences
  4. Time limit – date of supply
  5. PIP claims

OVERVIEW - Some statistics

Figures from NHS England in 2013 have shown that mistakes by NHS staff are to blame for the death or significant harm of 250 patients a day, at a cost of £1.3 billion a year. In Scotland, the cost of claims in the year to 2012 was reportedly £30m.

I don’t know how anyone can put an accurate figure on it and in fact it ignores what is actually important, which is that every claim is an event that has happened to a patient in the NHS, which has serious consequences for him or her and their family. And for every mishap for which there is a successful claim, there are an awful lot more potential claims which don’t succeed or even get as far as a phone call to a solicitor.

Why do individuals who have suffered harm as a result of a medical accident want to make a claim? Research shows that they want validation for their explanation of what has happened, and they don’t want it to happen to anyone else. They also say that financial gain is not their primary motivation and I believe that that is totally genuine at the outset. However, the medical profession believes that money is the primary motivation and at the root of every complaint. They have a mistaken belief that if they apologise or seem to accept responsibility for what has happened, that there will be a successful claim in negligence.That simply isn’t the case.

  1. BASIC ELEMENTS OF PROCEEDING WITH A CLAIM

There are two possible routes of enquiry, either a complaint or a claim for medical negligence.

A complaint is an informal procedure and usually conducted by the person affected. They can submit a letter with the issues they wish addressed, it usually involves a factual investigation of the circumstances by the health board or GP practice, and response to specific questions asked. The CAB is very helpful in directing clients’ enquiries if they need assistance. However, even a full investigation, to its final conclusion before the Scottish Public Services Ombudsman, often doesn’t satisfy an individual or a deceased’s relatives. Furthermore, there is no facility for compensation or costs to be paid.

The procedure for a claim for medical negligence is very different and will not address concerns about any system failure or achieve an apology. Nor is there usually an admission of liability. Multi million pound cases settle on the basis there is no admission of liability which simply doesn’t make sense. The only remedy can be damages, based on supportive expert medical reports and documentation of costs incurred.

As in all PI claims there are four basic elements to prove

  1. duty of care
  2. breach of duty of care
  3. causation
  4. loss
  1. The doctor/patient relationship should be enough to establish the duty of care
  2. is addressed by expert reports on negligence - the test in detail to follow
  3. similarly, causation requires expert evidence and is often where the whole thing comes unstuck
  4. loss – same as in every case for PI

Usually you would address negligence first of all and then causation, although without one you cant win on the other. So sometimes if it seems very obvious what went wrong – perhaps the wrong leg getting chopped off – you might get the causation report first. But sadly it’s not usually as clear cut as that.

In order to prove negligence in Scotland, we still hark back to 1955 and the case of Hunter v Hanley 1955 S.C. 200.Every case is determined according to this classic statement of the law, which I’m sure you all know but it’s probably worth repeating anyway.

Ld Pres Clyde @ p205

“In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man is clearly not negligent merely because his conclusion differs from that of other professional men…the true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.”

"To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care."

It is necessary to satisfy each of the three legs of the test. This is a high test to satisfy, there requires to be more than an error or a mistake, but treatment that fell below that requisite standard.

It is necessary to consider a particular individual’s actions in the setting and get an independent report from a practitioner in the same area of expertise to address this test. It is also important to remember not to get too specialised an expert on negligence as they will probably be imposing their own very high standards on someone who is judged at their particular level of expertise. So it’s no good having a professor of neurosurgery from the top London hospital commenting on the actions of a junior registrar on a general ward in a district hospital.

Having got a supportive report on negligence, it is then necessary to go on and prove that, on the balance of probabilities, the negligence caused the outcome and it would not have happened in any event. This is the but for test =

“But for the doctor’s negligent act, would the harm have occurred?”-

If the outcome would have happened anyway, irrespective of the negligence then a pursuer won’t succeed.

Often a case will be supported on negligence, only to fail on causation, which can be particularly hard for a client to comprehend.

In order to succeed you need good experts and just because you have supportive ones it doesn’t necessarily mean that you’ll win. If both sides have experts backing up their position, as a pursuer you will need to prove that the defender’s expert report is not logical, or proceeds on a mistaken interpretation of the facts. I’ll come back to that later when I deal with some recent cases that restated the test.

TIME LIMITS

The standard prescriptive limit is 3 years from the date of the negligent act, or for a child, 3 years from their 16th birthday. If the pursuer is incapax, or suffers from “unsoundness of mind” as the phrase goes, then the time doesn’t run at all. However, that’s not to say that you’ve got all the time you want to raise the case.

There might be an argument from the defenders that there has been mora, acquiescence and taciturnity. Basically that means an unreasonable and excessive delay in bringing proceedings, in a case where it is obvious personal injury has been suffered.

See Rennie obo DMF v Lothian Health Board [2010] CSOH 61 where a child’s mother didn’t seek legal advice until the child was 19. The child was born in 1980 and during labour she’d suffered a lack of oxygen and it was apparent from not long after birth that she had cerebral palsy. The mum had been so busy with her and the other children she hadn’t done anything about it until a local councillor visited the house in 1999 to ask her to vote for him in a local election and saw Donna. He told the mum to see a solicitor, which she did, then it took until 2003 for a curator bonis to be appointed and proceedings were brought in 2006 when she was 26.The PR was in 2009. The mora argument related to the mum’s failure to do anything, but was rejected by Lady Clark.

If a person was not aware of there having been negligence, then time runs for 3 years from when it was reasonably practicable for the pursuer to have known the injuries were sufficiently serious to justify an action and that the defenders were responsible. That is not a subjective test, based on what the pursuer might or might not have known, but is judged very harshly in hindsight as to what the reasonable person might have thought about what has happened.

You won’t know until you’ve raised proceedings whether you will be able to proceed, as if the point is taken by the defender, it will be up to the judge’s discretion in terms of s.19A Prescription and Limitation (S) Act 1973.

These provisions are currently under consideration with a Bill to increase the time limit for bringing a personal injury action from 3 years to 5 years. Also, it is intended to replace the reasonably practicable test with a more subjective awareness assessment. I’ll come back to this when I discuss the reforms on the horizon.

  1. RECENT CASES

The basic tests for negligence and causation and competing experts have been affirmed recently in the cases that have come before the courts.

(a)Helen Coyle v Lanarkshire HB [2013] CSOH 167LdTyre24 Oct 13 concerned the labour and birth of Helen Coyle’s son Ryan, at BellshillMaternityHospital in Aug 1993. He suffered hypoxic brain damage at birth.

Mrs Coyle had an uneventful pregnancy but labour hadn’t started 12 days after her due date and so she was admitted to hospital to be induced on 16 Aug 93. Ryan was born 2 days later. On Aug 18th at 08:30 she was admitted to the labour ward, at 10:40 given syntocinon to stimulate contractions, she was given an epidural, various examinations and more syntocinon, and monitored on a CTG trace. Poor lady was still labouring through the day and from about 16:45 there were decelerations – they’re not necessarily bad, but not good if the heart rate doesn’t bounce back up. The process went on a lot longer, and it was alleged that the CTG was showing signs that she should have been delivered earlier than she was. Ryan was born at 23:47 and in very poor condition.

The defenders accepted that midwives should have called for medical help at about 23:00 after a deceleration in Ryan’s heart beat 5 minutes before. And it was agreed by joint minute that if he’d been born by 23:15, he wouldn’t have suffered the chronic partial asphyxia which caused him to have severe cerebral palsy.

As is usual in cases that come to proof, the experts were divided on what the ordinary practice of midwives and obstetricians was at that time. Lord Tyre referred to the test set out in the previous case by Ld Hodge, Honisz v Lothian HB 2008 SC 235 para 39

“it is not the function of the court to prefer one school over the other”

“However the court does not defer to the opinion of the relevant professionals to the extent that, if a defender led evidence that other responsible professionals among the relevant group of medical practitioners would have done what the impugned medical practitioner did, the judge must in all cases conclude that there has been no negligence. This is because ...... in exceptional cases the court may conclude that a practice which responsible medical practitioners have perpetuated does not stand up to rational analysis.”

In the Coyle case he found that causation was proved, that the midwives should have called for assistance, that the doctor would have come within 5 minutes, and that Ryan would have been born before 23:15. Thus the case succeeded on the merits.

However, that is not the usual turn of events in cp cases at proof, unfortunately.

(b)LG v GGHB [2013] CSOH 145 Ld Armstrong27 Aug 2013 – was unsuccessful. This also concerned an alleged delay in noting changes to a CTG trace during labour, and delayed delivery, causing hypoxia and thus cerebral palsy. The birth was in 2004. There were cases against the Registrar and also the SHO anaesthetist. Both sides had experts who had differing views, which Lord Armstrong referred to as competing schools of evidence on the actions of both.

“I find nothing to cause me to have any reservation about the evidence of ProfessorWalker. (The defender’s expert obstetrician in relation to the actions of the Registrar)There is nothing to suggest that he reached his views on a mistaken or incomplete understanding of the facts in this case or that his assessment was illogical or irrational. In particular, although it was urged on me, on behalf of the pursuer, to assess as irrational Prof Walker's refusal to accept ...... a certain point,...... the pursuer’s expert Mr Walkinshaw was unable to point, in support for his assumption, to any medical literature but, on the other hand, Prof Walker did, in my view, expand on his own position persuasively. For that reason, on this specific issue, I prefer the evidence of Prof Walker. I do not consider his position on the matter to be irrational. That being so, and the totality of his evidence being to the effect that DrOgah acted appropriately in every way within the context of the relevant test, I find that the pursuer's case against DrOgah fails. I am not persuaded that DrOgah failed in his treatment of the pursuer.”

He repeated the exact same test about the evidence of expert anaesthetists for the pursuer and the defenders and said

“there is nothing to cause me to have any doubt or reservation about the evidence of DrLevy and DrHeidemann such as to cause me to think that either proceeded on a misunderstanding of the facts of the case or reached an assessment which could be said to be mistaken, illogical or wrong. In these circumstances, the evidence of [the defenders experts] being to the effect that the course adopted by Dr Thomas was appropriate in the context of the relevant test, it follows, therefore, that the pursuer's case against DrThomas fails. I am not persuaded that Dr Thomas failed in his treatment of the pursuer.”

(c)Lord Boyd - Alexander Glancy v The Southern General hospital [2013] CSOH 35 – decision 1 March 2013. This was an informed consent case.

Mr Glancy attended his GP complaining of pain in his neck and upper arm. This was the start of a chain of events which culminated in an operation at the Southern General Hospital in 1994. As a result of that operation Mr Glancy was left with incomplete tetraplegia. There were competing theories as to what caused this to happen and claims that there was negligent treatment and a lack of informed consent The argument was that Mr Glancy did not know the risks of having the operation, and that had he known the risks, he would not have gone ahead with it. However it was held that there was no negligence,and that he would have had the op anyway, even if he had known of the risks.Further that it was not known what caused his catastrophic injury

This illustrates how difficult informed consent cases are, so often with hindsight it is judged easy to say you would not have had the op, but a judge considers a pursuer would have had it.

Lord Boyd:

[32] In this case there has been a sharp conflict of expert evidence. In assessing that evidence it appears to me that I require to consider whether the expert's opinion has been reached on a mistaken or incomplete understanding of the relevant facts, whether there has been a proper assessment of the risks and benefits of the course of action which was adopted compared with another course of action and more generally whether or not there is a logical basis for the opinion supporting the course of action which was adopted.

(d)One of those statistics I referred to earlier is that cases involving obstetrics and gynaecology make up 15% of all casesin Scotlandnationally, although in Lanarkshire it was apparently 23%. There was a decision in another obstetric case this year, which was also unsuccessful, concerning a birth in 1999 –

JM for RM v Highland HB [2014] CSOH 9 - Lord Kinclaven 23 Jan 14. There were allegations of negligence on the part of midwives for failing to appreciate the CTG trace was abnormal and to seek medical review. There were allegations of negligence against the doctors for failing to perform a caesarean section quicker than they did. Neither was found proved.