What’s changing in clinical negligence litigation?

Fixed fees in clinical negligence cases

Following a government consultation in 2017, a Civil Justice Council working group has been considering the proposal to introduce fixed level recoverable costs in clinical negligence cases for claims of up to £25,000. The recommendations from their review are due to be released in 2019. Claimant solicitors are concerned that a fixed costs scheme would result in a lack of access to justice.

Discount rate decision due in August 2019

During 2019 we will also get a decision on the discount rate. The Civil Liability Act 2018 (CLA 2018) received royal assent on 20 December 2018, and under its provisions, the Lord Chancellor had to start a review of the rate within 90 days. The review of the personal injury discount rate started on 19 March, according to a statement issued by the lord chancellor to the London Stock Exchange. The lord chancellor must the review and determine whether the rate should be changed or kept at its current level within 140 days. This means the decision must be made on or before 5 August 2019.

The rate is almost certain to change from the current -0.75% because the CLA 2018 alters the way in which it is calculated.

Informed consent post-Montgomery

Interesting consent issue cases continue to come before the courts as both claimants and defendants look to the judiciary to apply Montgomery v Lanarkshire [2015] UKSC 11 to a range of surgical and treatment cases.

It is doubtful that Hassell could have succeeded in the pre-Montgomery era

The first case dealt with at trial in 2018 was Hassell v Hillingdon Hospital NHS Foundation Trust [2018] EWHC 164 (QB). The defendant surgeon, Mr Ridgeway, was alleged to have failed to obtain the claimant’s informed consent to a complex spinal operation.

The trial judge found that Mrs Hassell was not pre-operatively warned of the risk of paralysis as a result of spinal cord injury during her proposed cervical discectomy. He also found that Mrs Hassell was not advised of conservative treatment options including physiotherapy and further injections. The surgeon’s failure to ensure that the patient was aware of the material risks of the operation and the alternative conservative treatment options was held to be negligent.

As to causation, although the risk of permanent paralysis due to spinal cord injury was between one in 500 and one in 1000, the court found that that Mrs Hassell would not have elected to undergo the surgery if she had been warned of that risk, particularly given the option of conservative treatment. It is very doubtful that this case could have succeeded in the pre-Montgomery era.

Claimants not compensated for criminal conduct

Henderson v Dorset Healthcare University NHS Foundation Trust [2018] EWCA Civ 1841 tested the courts to see if the judicial view had changed since the cases of Clunis v Camden & Islington Health Authority [1998] 3 All ER 180 and Gray v Thames Trains & Ors [2009] UKHL 33. In both cases, the claimants had been negligently treated or harmed, and subsequently killed people. Their claims for damages arising from the harm they had caused to their lives by killing another person were struck out on the grounds of illegality and public policy.

In the 2018 case of Henderson, it was agreed that the claimant’s psychiatric care had been negligently managed. It was further agreed by the parties that this tragic event would not have happened but for the NHS trust’s breaches of duty in failing to respond in an appropriate way to Ms Henderson’s mental collapse. Mrs Henderson sought damages for pain, suffering and loss of amenity together with general damages for loss of liberty (having been detained as a result of her actions) and special damages for future costs such as a case manager / support worker.

The Court of Appeal upheld the earlier case law, agreeing with the past decisions of the court that it was offensive to public notions of the fair distribution of resources that a claimant should be compensated (usually out of public funds) for the consequences of their own criminal conduct. The doctrine of illegality / public policy therefore still prevents a claimant from bringing negligence claims for loss arising out of the claimant’s own illegal act.

What is the duty of care owed by NHS receptionists?

In possibly the most controversial case of 2018, Darnley v Croydon Health Services NHS Trust [2018] UKSC 50, the claimant attended A&E at Croydon Hospital with a head injury. An A&E receptionist gave incorrect information, saying he would face a wait of four to five hours to be seen, when the actual wait to see a triage nurse was 30 minutes.

The Supreme Court ruled that an averagely competent and well-informed A&E receptionist would not provide misleading information 

The court held that it was foreseeable that the claimant would leave A&E because he did not want to wait that long. He suffered a collapse at home and permanent brain damage that would have been largely avoided had he remained at the hospital and been seen by the triage nurse who would have referred him on to the appropriate doctors.

The controversy of this case is that it imposed a duty of care upon a receptionist who has no medical training and absolved the claimant of blame when he walked out of A&E. The Supreme Court ruled that an averagely competent and well-informed A&E department receptionist would not provide misleading information when responding to requests for information. To do so was breach of the duty of care she owed to patients.

Wrongful birth

The appeal case of Khan v MNX [2018] EWCA Civ 2601 considered the liability of a doctor in a wrongful birth.

The claimant sought medical advice from the defendant doctor as to whether she was a carrier of haemophilia. The doctor arranged blood tests, but they were to determine whether the claimant had haemophilia – not whether she was a carrier. The claimant was advised that the tests were normal. She later became pregnant and gave birth to a child who had haemophilia. It was agreed that, had she known she was a carrier, she would have found out during the pregnancy that her child had haemophilia and would have terminated the pregnancy.

Complicating matters was the fact that her child was born with autism – leading to a need for a very high level of care and support. The Court of Appeal held that it was not within the scope of the defendant’s duty of care to protect the claimant from having a child, or the risks of the child having a disability. Damages would be limited to those losses attributable to the child having haemophilia only and not for any losses and expenses attributable to the child’s autism.