We recently defended a very difficult and emotive case successfully to trial. Gill Stoll discusses the importance of selecting the right experts in niche cases, and how claims managers and clinicians can help with this process.
This claim related to the tragic suicide of a young mother, who had a history of paranoid schizophrenia.
Some weeks after giving birth to her second child she suffered a relapse of her psychosis. Care was provided in her own home by the Trust over a four-day period, with practitioners attending twice daily.
Although she was noted to be overtly psychotic she denied suicidal ideation and it was her express wish to avoid hospitalisation. However, she sadly took her own life during the period of relapse.
A claim was brought on behalf of the deceased’s estate.
Breach of duty
Although the allegations were extensive, in effect it was alleged that the deceased ought to have been admitted to hospital as soon as she presented with symptoms of relapse, with criticism levied against most of the clinicians involved in her care.
In particular it was said that there had been a failure to follow the trust’s own policies for home treatment.
It was alleged that, had she been properly assessed, she would have been admitted to hospital and her death avoided.
During our initial investigations, it became clear that we would need a nursing expert who:
- Had significant hands-on experience in treating mental health patients in the community and appreciated the patient’s right to refuse to engage when well.
- Understood the interplay between a community mental health team (who are on duty from 9am to 5 pm during the week) and a crisis resolution home treatment team (who are available out of hours). In particular, the way both teams can access each other’s medical records.
- Was familiar with the role of the various members of both teams (including the consultant psychiatrist, care-co-ordinator, mental health practitioner and social worker), and what would be expected of the nursing level staff during their attendances upon the deceased.
- Knowledge of what happens at regular multi-disciplinary team meetings, in which services users on GP edit (a system allowing quick access to services) are discussed, thus raising an awareness of each individual’s particular needs.
- Had a detailed knowledge of the motivation behind the Care Programme Approach scheme, under which the deceased was being cared, and the aims of the various national and trust- specific policies in place at the time.
After approaching numerous experts, a decision was eventually taken that it would be in the trust’s best interests to seek to rely upon evidence from two nursing experts. While proportionality is always a key consideration when defending any claim for clinical negligence (and expert evidence is kept to the absolute minimum), this claim was valued at well over £700,000. As such this approach was felt to be proportionate. The court agreed and ordered that we could rely upon:
- one expert who had been involved in the development of the Care Programme Approach and its implementation and so could explain the rationale behind the scheme from a position of authority and from a national perspective; and
- another who was in current practice and could discuss the practicalities of how things worked ’on the ground’.
The matter proceeded to trial before Recorder Patrick Walker in the Liverpool County Court in September 2014.
In finding for the defendant, Recorder Walker went to great lengths to highlight that he had found all of the clinicians to have been competent, caring and professional. Indeed he expressed regret that they had had to work 'under a cloud' of allegations which did not come close to establishing negligence.
He preferred all of the defendant’s expert witnesses, finding that they were honest, careful and independent.
Have a say on expert selection
We have a comprehensive database of medico-legal experts specialising in a full spectrum of clinical practice, from A&E experts to weight loss surgeons. However occasionally we come across a case involving a niche area of practice.
For example, in this case, whilst we had nursing (and indeed mental health nurses) on our database, they were generally employed in secure or unsecure hospital units or involved in providing psychological therapies in the clinical setting, rather than in dealing with mental health patients under a Care Programme Approach in the community.
It was only through detailed discussions with the trust and the clinicians that we were able to gain an understanding of precisely the expert (or in the case experts!) we needed. Between them the chosen experts set the context in which the deceased was treated and were able to show that the care provided was in accordance with national practice and well within the standards to be expected of a community mental health team.
Clinicians often have recommendations for experts or can guide the approach to be taken, and we are always more than willing to listen – it can mean the difference between winning or losing at trial.