Healthcare Brief: latest decisions December 2019

A round up of recent court decisions raising issues relating to secondary victims, causation, informed consent, contrasting clinical records and witness evidence, and the burden of proof. 

Secondary victim claims dismissed

Balbir Kaur Paul (on her own behalf & as Administratrix of the estate of Parminder Singh Paul) (2) Saffron Olivia Kaur Paul (A child by her litigation friend Balbir Kaur Paul) (3) Mya Paul (A child by her litigation friend Balbir Kaur Paul) v Royal Wolverhampton NHS Trust [04.11.19]

‘Secondary victim’ claims brought by two daughters having witnessed the death of their father, were dismissed due to the absence in “proximity in space and time” between witnessing his death and the alleged breach of duty.

In November 2012 Mr Paul was admitted to New Cross Hospital as an emergency and was treated for acute coronary syndrome “but no cardiac investigations were performed apart from echocardiography”.  He was subsequently admitted on 3 August 2013 with “a two week history of breathlessness”; haemodialysis was commenced three days later and he was then seen by a Consultant Nephrologist on 30 September 2013. Noting that his ECG showed “significant abnormalities” Mr Paul was referred to a Consultant Cardiologist and was seen on 9 January 2014, with an elective coronary angiography recommended. Mr Paul died less than three weeks later.

The claimants’ case was that “there were failures in the care given to Mr Paul when he was seen at New Cross Hospital for cardiac symptoms in November 2012.” The claimants’ position being that appropriate tests “would almost certainly have demonstrated significant coronary artery disease” and  it was likely he would have been offered a “coronary vascularisation”. Further, if that had been performed in 2012 “it is unlikely the fatal event in January 2014 would have occurred”.

The Judge held that:

“Mr Paul’s tragic death 14½ months after the negligent incident, in circumstances separated in space and time from the negligence I must assume occurred in the hospital, cannot possibly be said to be the “relevant event” for deciding the proximity required to establish liability under the established control mechanisms.”

Contact: David Kelly

Causation: keeping rare occurrences under consideration

TB (a protected party) v Bedford Hospital NHS Trust [14.10.19]

Kennedys successfully defended the Trust in relation to a claim for an alleged failure to diagnose a transient ischaemic attack (TIA) which, it was alleged, led to an avoidable stroke.

The claimant suffered a major stroke aged just 44, which left her with significant permanent disabilities.

Her Honour Judge Taylor found that the possibility of a TIA should have been considered as a differential diagnosis and failure to do so was a breach of duty. However, the Judge accepted the defendant Trust’s evidence that, even if the claimant had complied with advice and been prescribed medication, she had not succeeded in proving the cause of her stroke was atherosclerosis (that being the only potential cause that could potentially have been avoided with earlier/different treatment). The claimant had therefore failed to prove that the course could have been avoided and failed to establish causation, and her claim was dismissed.

Contact: Samantha Goward

Related item: Causation: the importance of keeping the possibility of rare occurrences under consideration

Failure to obtain informed consent

Edyta Ewelina Mordel v Royal Berkshire NHS Foundation Trust [08.10.19]  

The Trust was held liable for the birth of a baby with Down’s syndrome, the court concluding that a sonographer had failed to obtain the mother’s informed consent not to undertake the screening. A computer record completed by the sonographer indicated “Down’s screening declined”, however, the claimant claimed she had not been asked by the sonographer whether she wanted the screening. The claimant’s secondary case was that she misunderstood the question and so informed consent was not given.

The sonographer had no recollection of the claimant and as explained by the Judge could only assist with what she “would routinely do in this situation”. Such practice being to ask if the patient wants the screening and if declined, to clarify that in those circumstances the scan would only be a dating scan and to check the baby.

The Judge did not accept the proposition that the sonographer had failed to ask the question but held that it was “the sonographer’s duty to satisfy herself that the patient is consenting to the procedure...and that her consent is informed.Further, that this logically requires:

“(i) checking that there has been a discussion between patient and midwife, (ii) checking that the patient has been supplied with the NHS booklet, and (iii) ascertaining by brief questioning that the patient understands the essential elements and purposes of scanning for Down’s syndrome.”

The Judge held that the sonographer had failed to obtain informed consent and had not discharged her duty on this occasion.

Contact: Samantha Williams

Contrasting clinical records and witness evidence

CXB v North West Anglia NHS Foundation Trust [04.07.19]

This case required the Judge to weigh up the contrary evidence of the family and the clinicians in order to resolve a factual dispute. In doing so, the Judge considered case law relating to the reliability of contemporaneous medical records and the reliability of witnesses’ recollections, and expressed his reservations about the current ‘fashion’ for courts to prefer clinical records to contrary factual accounts. Kennedys acted for North West Anglia NHS Foundation Trust in the successful defence of this clinical negligence claim.

His Honour Judge Gore sought to establish that the issue for the court should be whether: “when the evidence is viewed as a whole, there is material that justifies the conclusion that the clinical record is unreliable or incorrect, or whether, when the evidence is viewed as a whole, there is material that justifies the conclusion that the witness evidence to the contrary is unreliable or incorrect.”

HHJ Gore considered the current ‘fashion’ of acceptance of the principle that the reliability and veracity of assertions contained in medical records should be preferred to contrary factual accounts, was fraught with danger. The claim was however, dismissed on the basis that there was not sufficient evidence to conclude that the medical records were unreliable or incorrect, but there was ample evidence that the contrary witness evidence was.

Contact: Sarah Taylor

Related item: Weighing up contrary evidence: clinical records and witness evidence

Burden of proof

Field v Medway NHS Foundation Trust [03.07.19]

This case concerned the adequacy of a caesarean section (CS) repair leading to abdominal complications. The Trust (represented by Kennedys) successfully defended a claim against the obstetrician for negligence in carrying out the repair.

The claimant gave birth to her second child on 1 September 2011 following a planned CS. As set out in the judgment, “the CS and birth went smoothly and a healthy son was born”. Following the CS, due to divarication of the rectus muscles in the abdomen, the claimant suffered considerable pain. The claimant’s poor outcome was not in issue and quantum was agreed pre-trial.

The claimant asserted that the severe divarication was caused by a negligent repair of the CS incisions and, in particular, the repair of the incision in the rectus sheath.

The claimant’s claim was dismissed. The Judge considered that the obstetric experts instructed on behalf of both parties had “entered, to an extent, the realm of speculation and strayed from the path of logic” which “is not a basis for making a finding that the Claimant has proved that the injury was caused by negligence”.

Contact: Balraj Sihota

Related item: Burden of proof in medical negligence claims

Read more items in Healthcare Brief - December 2019