Healthcare Brief latest decisions – May 2022
A roundup of recent court decisions raising issues relating to non-delegable duty of care; the reintroduction of a claim following earlier discontinuance; secondary victim claims and clinical negligence; and future care and capacity.
Court of Appeal ruling on non-delegable duty of care
Hughes v Rattan [04.02.22]
On 4 February 2022, the Court of Appeal handed down the latest judgment considering whether a dental practice can be held liable for the acts or omissions of self-employed Associate dentists.
The claim concerned alleged negligent dental treatment by a number of dentists, three of whom were self-employed Associates.
See our more detailed case summary here.
Contacts: Camilla Long, Nico Fabri and Katie Stone
Related item: Who owes a duty to a patient: practice, practitioner or both?
High Court refuses reintroduction of clinical negligence claim
Astley v Mid Cheshire Hospitals NHS Foundation Trust [26.01.22]
The High Court refused the claimant permission to reintroduce a claim against the defendant after discontinuing the original claim over 14 years earlier.
The central question for the court was whether the Court of Appeal’s decision in Bailey v Ministry of Defence , regarding material contribution, constituted a change in the law such that the claimant was entitled to bring a new claim.
This judgment confirms that discontinued claims will not be allowed to resurface, a significant time later, due to subsequent favourable case law coming to light. The court applied a firm distinction between cases in which existing principles in case law are being applied with the much narrower and rarer circumstances where there is a real change in the law i.e. when a superior court overrules a lower court, where such change “would clearly be a factor of great weight”. Mr Justice Eyre adding that the “position must be different where the further authority relied on indicates an incremental development and an elucidation or clarification which is inherent in the common law system”.
Contact: Claire West
Related item: High Court refuses reintroduction of clinical negligence claim following earlier discontinuance
Secondary victim claims and clinical negligence
Paul v Royal Wolverhampton NHS Trust; (2) Polmear v Royal Cornwall Hospitals NHS Trust; and (3) Purchase v Ahmed [13.01.22] EWCA Civ 12
On 13 January 2022, the Court of Appeal handed down the latest judgment considering whether a defendant can be held liable for psychiatric injury suffered by a close relative of a primary victim of clinical negligence.
The judgment concerns three conjoined appeals. Each of these concern an alleged failure by the defendant to diagnose the primary victim’s life threatening condition resulting in their close relatives witnessing the primary victim’s death, causing psychiatric injury.
The central question for the court was the relevance of any time intervals between the clinical negligence, the damage caused by it, and the horrific event that ultimately causes the psychiatric injury to the claimant.
Although there was judicial discontent expressed in the judgment, the decision clarifies the present state of the law. A claimant can only succeed in pursuing a secondary victim claim if they have witnessed by sight or sound an horrific event which has taken place at the same time as the negligence or within the same continuum. This continuum has to be over a short period as set out in North Glamorgan NHS Trust v Walters  which referred to events 36 hours apart. Although the claimants have applied for permission to appeal to the Supreme Court, the judgment is clear and current ongoing cases with these issues should now be capable of resolution.
Contacts: Laura Ringrose and Amanda Mead
Related item: Court of Appeal ruling: secondary victim claims and clinical negligence
Future care, double recovery and capacity
Celine Martin v Salford Royal NHS Foundation Trust 
In February 2010, the claimant suffered a brain injury and physical injuries whilst detained in hospital. Liability was established in favour of the claimant and the quantum trial took place in May 2021. There were various considerations in this case, but two of the key issues in dispute related to future care and capacity.
The outcome in this case highlights that a state funded package does not necessarily prevent a finding of a full award for private care. The small risk of double recovery is not always a barrier when it comes to assessing future care claims and it is important to take into account the notion that if the negligence makes a qualitative difference (i.e. the needs are no longer of the same type), this tends to favour a more holistic approach when assessing damages.
The court’s approach to capacity was also interesting, particularly as whilst the claimant demonstrated poor decision making and poor mental health, these alone did not equate to a finding of a lack of capacity.
We explore the court’s approach to the key issues here.
Contact: Rob Tobin
Related item: High Court examines the issues of future care, double recovery and capacity