clinical negligence


Cases of the Year: 2022

5 January 2023 by

The year passed was, unsurprisingly, another year of tumult and surprise, something that by now registers as the norm rather than an aberration. Even so, 2022 must be a standout year – even by recent standards. From Russia’s invasion of Ukraine to the death of Queen Elizabeth II, the collapse of two consecutive Tory governments, dramatic election results around the world from Israel to Brazil, and in the run up to the festive season a football World Cup as mired in human rights controversy as in any sporting event can be, 2022 was not a quiet year. 

Nor did the legal world disappoint. On the Parliamentary side of things, Justice Secretary Dominic Raab’s controversial Bill of Rights Bill continues to clunk through Parliament, and other bills with interesting human rights implications have had their moment in the sun as well. To take but one example, the Online Safety Bill, whose controversial but central parts dealing with ‘legal but harmful’ speech were removed recently, is yet to become law after extensive reform following criticisms based on freedom of expression.

But the focus of this post is not on Parliament, or politics in general, but on the highlights of 2022 in the Courts. So with no further ado and in no particular order, the cases which (in the completely impartial and objective joint opinion of the co-editors of this blog) have defined 2022 are:


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Supreme Court invited to consider secondary victim claims

20 January 2022 by

The Court of Appeal has invited the the Supreme Court to consider these cases

Paul & Ors v The Royal Wolverhampton NHS Trust [2022] EWCA Civ 12 (13 January 2022)

The Court of Appeal dismissed a set of claims for psychiatric injury on the basis of prior binding authority, but indicated that the issue is suitable for consideration by the Supreme Court.

Background

The judgment concerns three linked appeals regarding the circumstances in which relative(s) of somebody injured or killed by alleged clinical negligence (the secondary victim(s)) can claim damages in respect of a psychiatric disorder caused by having witnessed the death or suffering of their loved one (the primary victim).

For a defendant to be liable for a secondary victim’s psychiatric illness, the claimant needs to show the necessary legal proximity between themselves and the defendant. In Alcock v Chief Constable of the South Yorkshire Police [1992] 1 AC 310, Lord Oliver identified five elements which form the essential requirements of such a relationship:

  1. the secondary victim is in a marital/parental relationship with the primary victim; 
  2. the psychiatric illness for which damages are claimed arises from a sudden and unexpected shock to the secondary victim’s nervous system; 
  3. the secondary victim was personally present at the scene of the accident or was in more or less the immediate vicinity and witnessed the aftermath shortly afterwards;
  4. the psychiatric illness arose from witnessing the death of, extreme danger to, or injury and discomfort suffered by the primary victim; and
  5. there was not only an element of physical proximity to the event but a close temporal connection between the event and the secondary victim’s perception of it.

These elements were applied in Crystal Taylor v A. Novo (UK) Ltd [2013] EWCA Civ 194. The secondary victim claim of a daughter who witnessed her mother’s death three weeks after an accident at work in which negligently stacked racking boards fell on her failed despite her death having been caused by the accident. The Court of Appeal held that as she was not present at the accident, she lacked the necessary legal proximity.


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Should we sue doctors? Law Pod UK latest episode

20 January 2020 by

The BBC today published a report following a Freedom of Information request that the NHS “faces paying out £4.3 billion in legal fees to settle outstanding claims in clinical negligence. Read the report here. The vast inflation in damages awards in clinical negligence claims means that the cost to the health services is producing great concern in those who have to address the financial future of the NHS. This is particularly an issue with birth disasters where the life expectancy of the child, however badly damaged, is lengthy and therefore ongoing costs, notably care costs, stretch long into the future.
In May 2019, former Court of Appeal judge Rupert Jackson proposed a series of solutions to this problem, including replacing the principle of full compensation with a system of tariffs . This may be along the lines of the current scheme operated by the Criminal Injury Compensation Authority . He also called for a new test for liability, which would ask whether the patient had suffered ‘reasonably avoidable injury’. You can read Sir Rupert Jackson’s full paper here:

Medical errors: Sanctions and compensation – is there another way? 

In this episode I’ve brought together two members of 1 Crown Office Row who have spent their professional lives both claiming against and defending the NHS. James Badenoch QC, now retired, maintains that the existence of these claims is justified by the pressure to improve clinical practice.

David Hart QC provides us with the details of the very considerable figures paid out recently by the NHS in settlements and awards. The source of these figures and others can be found here:

NHS Resolution Annual Report and Accounts 2018-2019

So what are the solutions – or what, some might say, are the threats – to the principle of full compensation in the medical context? Do listen to this discussion between two experts in the field.

Law Pod UK is available on Spotify, Apple PodcastsAudioboomPodbeaniHeartRadio PublicDeezer or wherever you listen to our podcasts.

Please remember to rate and review us if you like what you hear.

Sensitisation to allergy is physical injury – Supreme Court

23 March 2018 by

Dryden and Others v Johnson Matthey [2018] UKSC 18 – read judgment 

We are all made of stuff, and that stuff is not inert because it’s organic matter. Changes at the molecular level happen all the time, through cell death and replenishment, growth and the constant attrition caused by cosmic radiation on our DNA.  Other changes are wrought by the environment or other organisms. Some changes are beneficial, even life saving, such as the removal of an appendix or the insertion of a pacemaker.  The production of antibodies by vaccination have eradicated many diseases.  Most of the time the body manages this itself.  Every time certain cells in the blood encounter a foreign invader, they recruit the immune system to come up with a focussed weapon. This is an antibody, which lies dormant until the threat (the antigen) arises again.  Antibodies are good things to have around until they’re provoked by enemies akin to the ones that created them, whereupon the body produces an allergic reaction to get rid of the toxin/allergen.

So, does the triggering of an antibody (an immunoglobulin molecule) constitute tortious injury, sounding in damages? This is the question raised by this case, and it goes to the heart of what “injury” is for the purposes of the law.
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“Genetic affinity” an actionable head of damage against IVF clinic

14 February 2018 by

ABC v Thomson Medical Pte Ltd and others, Singapore Civil Court of Appeal  [2017] SGCA 20 – read judgment

It is a trite reflection that law should change with the times but every so often we see the hair-pin bends in law’s pursuit of modern technology.  This case from Singapore about reproductive rights and negligence in an IVF clinic is just such an example. As the judge said at the outset, the need for the law to adjust itself to the changing circumstances of life is clearest  in the area of medical science,

where scientific advancement has made it possible for us to do things today which would previously have been unimaginable a few decades ago. This has brought untold prosperity to many, and hope to those who previously had none; but it has also given us greater capacity for harm.

Background facts

The Appellant, a Chinese Singaporean, and her husband, a German of Caucasian descent, sought to conceive a child through in-vitro fertilisation . The Appellant underwent IVF treatment and delivered a daughter, referred  to in the judgment as “Baby P”. After the birth of Baby P, it was discovered that a serious mistake had been made: the Appellant’s ovum had been fertilised using sperm from an unknown Indian third party instead of sperm from the Appellant’s husband. It turned out that the clinic had processed two semen specimens inside one laminar hood at the same time and failed  to discard the disposable pipettes that had been used after each step of the IVF process.  This had resulted in a baby being born on 1 October 2010, whose DNA did not match her father’s.
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Will genetically-informed medicine upend medical confidentiality?

17 May 2017 by

ABC v St George’s Healthcare NHS Trust and Others [2017] EWCA Civ 336 – read judgment

All the advocates in this case are from 1 Crown Office Row. Elizabeth-Anne Gumbel QC, Henry Witcomb QC and Jim Duffy for the Appellant, and Philip Havers QC and Hannah Noyce for the Respondents. None of them were involved in the writing of this post.

In a fascinating twist to the drama of futuristic diagnosis, the Court of Appeal has allowed an argument that doctors treating a Huntington’s patient should have imparted information about his diagnosis to his pregnant daughter to go to trial.

The background to this case is outlined in my earlier post on Nicol J’s ruling in the court below. A patient with an inherited fatal disease asked his doctors not to disclose information to his daughter. The daughter came upon this information accidentally, shortly after the birth of her child, and found, after a genetic test, that she suffered from this condition as well, which has a 50% chance of appearing in the next generation. Had she known this, she would have sought a termination of the pregnancy. She claimed that the doctors were liable to her in damages for the direct effect on her health and welfare.

A claim for “wrongful birth” is well established in law; no claim was made on behalf of the child, who was too young to be tested for the condition. The twist is the duty of secrecy between doctor and patient, which has held very well for the past two centuries. Short of confessions pertaining to homicide or information regarding contagious diseases, the dialogue behind the consulting door should end there.

The problem is that the typical medical relationship only pertains to the pathology of the individual patient. Now that tests are available that make every single one of us a walking diagnosis not only for our own offspring but those of our siblings and their offspring, the one-to-one scenario collapses, along with the limited class of people to whom a doctor owes a duty of care. The pregnant daughter who came across the information about her father’s condition was not the defendant doctor’s patient. In pre-genetic days, that meant there was no duty of care relationship between her father’s doctors and her. But the certainty of hereditability brings her into that circle.
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Consultation again – this time for dentists

19 December 2014 by

simple-consultation-y200British Dental Association v. General Dental Council [2014] UK EWHC 4311 (Admin) 56, Cranston J, 18 December 2014 – read judgment UPDATED

Philip Havers QC and Jeremy Hyam of 1COR were for the successful Claimants in this case. They had no part in the writing of this post.

The Supreme Court has very recently reviewed the law on consultation and unlawfulness in the Moseley case (read judgment, and my post here). The present case is a good illustration of those principles in practice.

Dentists have to be registered with the General Dental Council. The GDC regulate them and may bring proceedings against them if their fitness to practise is impaired. All that regulation has to be financed by annual fees, and the current challenge by the dentists’ trade union (BDA) was to a decision by the GDC to raise the annual fee to £890 per dentist.

As I shall explain, Cranston J decided that the consultation in advance of that decision was unfair and hence unlawful.

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IVF Doctor not liable for failing to warn parents of genetic disorder in child – Australian Supreme Court

21 May 2013 by

12280487228o6zg0Waller v James  [2013] NSWSC 497 (6 May 2013) – read judgment

So-called “wrongful birth” cases – where parents claim for the costs of bringing up a child that has been born as a result of the hospital’s alleged negligence – have long been the subject of heated debate.

Since 1999 (MacFarlane v Tayside Health Board) such damages have been refused on grounds of public policy – for the birth of a healthy baby, that is. As far as disabled children are concerned, parents can the additional costs attributable to the disability (Parkinson v St James and Seacroft NHS Trust).  Now that so much more can be predicted with a high level of certainty from pre-birth, even pre-conception genetic tests, where do we stand on public policy in wrongful birth cases where the negligence not so much in failure to treat (failed vasectomies etc) but failure to inform? This Australian case gives some indication of the way the courts may approach such questions.

Background facts

Keeden Waller was conceived by IVF using the Wallers’ own gametes. There was a fifty percent chance that he would inherit from his father a blood disorder called antithrombin deficiency (ATD), a condition that affects the body’s normal blood clotting ability and leads to an increased risk of thrombosis. Keeden suffered a stroke a few days after his birth resulting in severe disabilities, which his parents, Lawrence and Deborah Waller, alleged was the result of ATD. They brought a claim in damages against their doctor for the care of their disabled son and psychological harm to themselves.
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Lord Justice Jackson: legal aid should remain for clinical negligence

13 September 2011 by

Lord Justice Jackson spoke in strong terms last week to the Cambridge Law Faculty on the controversial topic of legal aid and legal costs reforms.

The architect of the proposed reforms to legal costs made clear his position on the government’s proposed amendments, set out in the Legal Aid, Sentencing and Punishment of Offenders Bill, which was reviewed by the Committee of the House of Commons today, 13 September (listen to the committee recording here). He was keen to highlight which parts of the reforms reflect he views expressed in his report, and which parts he does not consider to be in the interests of justice. He said, in summary:

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Legal aid reforms will be catastrophic for victims of medical negligence

22 November 2010 by

The government’s proposed reforms to legal aid will have a catastrophic effect on those who have suffered as a result of negligent medical treatment.

When Kenneth Clarke informed Parliament on Monday that

Legal aid will still routinely be available in civil and family cases where people’s life or liberty is at stake, or where there is risk of serious physical harm or the immediate loss of their home.

he clearly did not mean that the destruction of a person’s life or the suffering of seriously physical harm through the mismanagement of their medical treatment was to be included within this. If he had meant that he would have proposed at the same time that clinical negligence would continue to be funded by legal aid.

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Aarhus Abortion Abu Qatada Abuse Access to justice administrative court adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Appeals Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 7 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders charities Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs court of appeal Court of Protection covid crime Cybersecurity Damages Dartmoor data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal enforcement Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany gmc Google government Grenfell Health healthcare high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Jalla v Shell Japan Japanese Knotweed Judaism judicial review jury trial JUSTICE Justice and Security Bill Land Reform Law Pod UK legal aid legal ethics legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery monitoring murder music Muslim nationality national security NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal Parole patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Private Property Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law Regulatory Proceedings rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy Right to Roam right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media Social Work South Africa Spain special advocates Sports Standing statelessness Statutory Interpretation stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh united nations unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks Wild Camping wind farms WomenInLaw YearInReview Zimbabwe
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