This last year or so has seen a number of significant case law developments in the clinical negligence arena. Partner and Head of Healthcare, Janet Sayers, sets out some of the main highlights.
Effect on employment: the cost of retraining
M v Betsi Cadwaladr University [09.05.11] showed that as always, an award of damages turns on the specific facts of the case. It is not wholly surprising given the circumstances of the incident and the Claimant’s occupation as a midwife, that the defence team in this matter were satisfied a court would conclude this precluded her return to nursing. The case should, however, be distinguished from those in occupations not closely connected to an incident.
Loss of earnings: high-earning Claimant
In Penny Johnson v Le Roux Fourie [23.05.11], an award of just under £2 million for loss of earnings was extremely high given this is a claim relating to cosmetic surgery. However, the Court’s rigorous approach to the self employed Claimant’s loss of earnings claim is reassuring for compensators. The test of a "real and substantial chance" of an increase in turnover presents a high hurdle for claimants and is one which defendants must consider carefully when investigating a loss of earnings claim.
Opting for surgery: little prospect of success
In Webb v Norfolk and Norwich University Hospital NHS Trust [21.10.11] Kennedys successfully defended the Trust. This case highlights the importance of a detailed pre-operative discussion with the patient, together with the need for clear record keeping. The Court accepted that for surgery such as breast reconstruction, it is necessary for the surgeon to see the patient before being able to proceed with surgery, and this must have occurred. The case also acts as a useful reminder of the importance of explaining why a patient’s cooperation is required during the consent process. As well as ensuring the optimal surgical result, it will also help eliminate any potential embarrassment to the patient.
Causation: a question of time
Lyndon v Royal Free Hampstead NHS Trust [09.11.11] demonstrated the difficulty in challenging causation. The Court was not persuaded by arguments that the Claimant could have suffered permanent heart damage from a childhood episode of rheumatic fever. However, even though the Claimant could not prove she had suffered a recurrence of rheumatic fever, the Court found that this must have occurred and allowed her case.
On a positive note for defendants, the Claimant’s claim for private treatment was dismissed. The Judge found that the Claimant’s need to have heart surgery undertaken by a top heart surgeon was readily available on the NHS.
Duty of care: operational obligation to protect
Rabone v Pennine Care NHS Foundation Trust [08.02.12] highlights the importance of the treating psychiatrist’s consideration of a risk of suicide, which if "real and immediate", will warrant sufficient protection of the patient.
What this case may create, however, is a culture where clinicians wish to avoid the risk of waiting until the last minute before detaining their patients. Given that it is easier to 'control' a patient who is formally detained than one who is free to come and go as they choose, there is likely to be more pressure on clinicians to formally detain patients for their own safety when they might have been informally detained previously. Clinicians though should of course continue to treat each patient as clinically appropriate on a case by case basis.
Duty of care to victim
In Buck v Norfolk and Waveney Mental Health NHS Foundation Trust [27.02.12], Kennedys acted for the Trust. In this case, there was no evidence that the Trust had assumed any responsibility for Mr Buck (a third party) - "a custody authority responsible for the negligent release of a patient did not owe a duty to a victim unless that victim had been identifiable".
Clinical negligence: assessing the amount of damages
In the unusual claim of Woodward v Leeds Teaching Hospital NHS Trust [01.08.12] the Judge did not find it easy to value the Claimant’s claim for general damages. He reviewed the JSB Guidelines and decided on the Defendant’s suggested approach - taking the two worst injuries suffered by the Claimant and applying the guidelines to those.
This last year has been another busy one for the courts. With the extent of reform proposals to the civil litigation landscape due to come into force from April 2013, I anticipate that the coming year will continue to be busy, and also, challenging, for the judiciary.