David Peter

A Thematic Digest of Recent Notable Clinical Negligence Cases

Posted on 28 July, 2017 by | David Peter

1. Informed Consent: Montgomery Applied

Webster -v- Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62
Causation in informed consent cases:
Montgomery trumps Bolam

Facts and issues
The Claimant was born 11 days after he was due.  Had he been born at his due date he would have avoided severe neurological injuries.  There had been a negligent failure to heed the abnormal results of a 34 weeks ultrasound scan.  Had the scan been interpreted correctly, two further bi-weekly scans would have been undertaken.  The main issues in dispute were what would further ultrasound scanning have shown, had it taken place, and what would have happened as a consequence.

The Claimant’s case was that the anomalies identified on the scans ought to have led to the offer of induction at term.  If accepted, this would have avoided the brain injury. The Defendant contended that the anomalies relied on would not have given rise to the need for any heightened vigilance or advice about dangers which might be avoided by induction.

Decision at first instance
The trial judge found that:

  1. If the additional scans had taken place, the combination of unusual features shown would have pointed to increased risks of delaying labour in this case; and
  2. If the mother had been advised to undergo induction, or that if the increased risks in waiting to give birth had been discussed with her, she would have proceeded to induction.  

However, he noted that, whereas the Claimant’s expert considered that the anomalies that would have been found represented an increased risk of perinatal mortality, the Defendant’s expert did not consider such anomalies to be significant.  It followed that there was no requirement to provide advice on, or discuss with the Claimant, any matter which would have led to a decision being made to induce labour at term, as opposed to continuing until the forty-second week in order to achieve a more satisfactory labour.  The result was that the claim failed on causation. 


The Claimant appealed on the ground that the judge had plainly erred in his approach:  following Montgomery, the issue was no longer whether a reasonable body of medical opinion would have been deflected from a particular course, but what advice should properly have been given to the mother, and what would have happened as a consequence.

In allowing the appeal, the Court of Appeal held that the effect of Montgomery, in general terms, was that the doctor's obligation (apart from in cases where that would damage the patient's welfare) was to present the material risks and uncertainties of different treatments, and to allow patients to make decisions that would affect their health and well-being on proper information.  The significance of the risks and uncertainties, including the possibility of alternative treatment, was sensitive to the characteristics of the patient.

The judge had followed the Bolam approach of basing his judgment on whether JH acted in accordance with a responsible body of expert medical opinion. It was clear from Montgomery that was no longer the correct approach.  The new approach involved identifying how the mother would have presented at term and, in light of this presentation, how she ought to have been advised and what her response would have been.  The answer to that was that the mother should have been advised that the anomalies were the subject of emerging but incomplete recent research which appeared to show (albeit on a small statistical basis)  that there were increased risks of delaying labour in cases with her particular combination of features.

Had the mother been given that information, she would have wanted to be delivered on 27 December; and that would have been so even if the information had been couched in terms of contrary arguments in favour of non-intervention.  Accordingly, the appeal was allowed.

Thefaut -v- Johnston [2017] EWHC 497 (QB)
Informed consent claim can succeed even if the surgery consented to was non-negligent

Facts and issues
Following a discectomy performed by the defendant spinal surgeon, the Claimant had suffered from constant severe pain in her back and in her leg.
She contended that:
(a) She consented to surgery as a result of the defendant failing to give her full and accurate advice about the risks and benefits of the proposed surgery; and
(b) A crucial part of the operation was performed unreasonably quickly, which led to a poor outcome.

During the course of the trial the defendant admitted that the advice he had given to the claimant was overly optimistic and sub-standard and that, post-Montgomery, he had adopted a quite different approach.

The claim that the surgery was performed negligently failed on the grounds of insufficiency of evidence in respect of both breach and causation.

Notwithstanding this, the informed consent claim succeeded. Green, J., held that the law of informed consent requires the doctor to communicate material risks (said to be those risks that the patient would consider significant) and that ought to include reasonable alternatives or variants.  Accordingly, the test (which combined the subjective and objective) was whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk.  Applying the above test, he found that a reasonable patient with the claimant's condition would have declined surgery or at least deferred it pending a second opinion. There had been material understatement of the risks of surgery causing damage to the nerve, material overstatement of the prospects of success (more than 90% as opposed to 85%) and an omission of a warning about the inherent risks of surgery or the prospect that surgery could worsen the claimant’s condition. 

A reasonable patient with the claimant's symptoms, being fully and properly advised, would have either rejected the option of surgery altogether or at least deferred the option until she had received a second opinion; had she received an accurate second opinion, she would have refused surgery. In addition, the cause of the claimant's pain was the breach of the dura, causing the herniating nerves to come into contact with the surrounding tissue. The breach of duty on the defendant's part in the advice that he gave was therefore causative of the claimant's condition and he was liable accordingly.

2. The Scope of the Duty of Care: (Part 1) Diagnosis Cases

Muller v King's College Hospital NHS Foundation Trust [2017] EWHC 128 (QB)
Bolam under attack again: causes difficulty and confusion in “pure diagnosis” claims

Facts and issues
A consultant histopathologist employed by the defendant hospital trust conducted a histological examination of a biopsy taken from the claimant but failed to diagnose a malignant melanoma, which the claimant contended was a breach of duty. The defendant relied on the satisfaction of the Bolam test by the opinion of its expert that the misdiagnosis was not negligent, but could easily have been made by a histopathologist acting with reasonable skill and care. The claimant submitted that Bolam did not provide the answer, and that Penney v East Kent HA [2000] Lloyd's Rep. Med. 41 showed that the court had to determine the objective facts about what pathological features were there to be seen in the biopsy sample, and then decide whether, in the light of the differing experts' views, the misdiagnosis was one that must have been made without the use of reasonable skill and care.

Judgment was given for the claimant.  The court’s reasoning was as follows. The authorities applying the conventional Bolam approach to negligence did not sufficiently differentiate between two types of case: the first was where a patient's condition was unknown, and what was alleged to be negligent was a doctor's diagnosis of the condition. The diagnosis was either right or wrong and, if wrong, either negligently so or not. The second type of case was where the nature of the patient's condition was known, and the alleged negligence consisted of a decision to treat the condition in a particular manner. That type of case was the paradigm for application of the Bolam principle: the judge in Bolam did not have in mind a "pure diagnosis" case such as the instant case when he gave his direction to the jury. However, even in a pure diagnosis case, the exercise of preferring one expert to another had to be viewed through the prism of the exception in Bolitho (Deceased) v City and Hackney HA [1998] A.C. 232, namely that the expert's opinion had to have a logical basis, and the expert had to have directed his mind to the question of comparative risks and benefits and have reached a defensible conclusion. Penney was authority permitting the court to choose between competing expert opinions on the issue of whether the relevant act or omission fell below the standard reasonably to be expected. However, the court could not reject an expert's view unless persuaded that it was untenable in logic or otherwise flawed in some manner rendering its conclusion indefensible and impermissible.  The experts and the parties agreed that signs of melanoma were present and visible in the sample examined by the defendant’s consultant.  Breach of duty was established. The defendant’s expert’s contrary conclusion was underpinned by applying the wrong legal test; as such, his reasoning and conclusion were not defensible and fell within the Bolitho exception.

In coming to the above conclusion, the court observed that the application to a “pure diagnosis” case of the test of whether a practitioner acted in accordance with a practice of competent respected professional opinion accepted as proper by a responsible body of medical practitioners skilled in the relevant art has led to difficulty and confusion in the development of the law. It would be preferable to reject that test where no issue arises to which it was intended to apply.

2. The Scope of the Duty of Care: (Part 2) the A&E Cases

Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151
No duty on “civilian” NHS A&E staff to provide accurate information about waiting times

Facts and issues
The Claimant, after sustaining a head injury and presenting to A&E, was told to wait in reception of the A&E department and informed by one of the receptionists on duty that it would be up to 4 or 5 hours before he would been seen. In fact the system at the hospital was that a triage nurse would examine the Claimant within 30 minutes. After 19 minutes the Claimant and his friend left the A&E department and did not notify the reception staff that he was leaving. Later that evening the Claimant’s condition deteriorated and he was taken back to the same hospital, this time by ambulance. He suffered permanent, serious brain injury.

The issue was whether a duty of care ought to be imposed on an A&E receptionist who did not give correct information to a patient about waiting times. The trial judge held that such a duty of care should not be imposed.

The majority of the Court of Appeal (Jackson, L.J. and Sales, L.J.) found that the receptionist’s duty did not extend to advising patients about waiting times. The fact that she had done so did not amount to an assumption of responsibility to give accurate information. It was not within the scope of her duty of care to do so. In any event the fact that the Claimant had not waited was his own choice and there was no causal link between any breach of duty and the injury sustained. 

Sales, L.J. said that the fair, just and reasonable view is that such information [waiting times] is provided as a matter of courtesy and out of a general spirit of trying to be helpful to the public, as the judge held, and that its provision is not subject to a duty of care in law such that compensation must be paid if a mistake is made. Imposition of such a duty would be likely to lead to defensive practices on the part of NHS Trusts to forbid their receptionists to provide any information about likely waiting times, which would be an unacceptable social cost of imposition of a duty of care, in terms of withdrawal of information which is generally helpful to the public when provided as a courtesy.

The minority (McCombe, L.J.) found that he trust was in breach of its duty to the appellant, and that breach had caused his injury. He considered that, when given information about waiting times, patients needed to know that in true emergencies the hospital could act quickly, and that initial assessments would occur sooner than the average waiting time for treatment. Furthermore, the functions of a hospital could not be divided up into those of receptionists and medical staff: if the hospital had a duty not to misinform patients, the duty was and ought not to be removed by interposing non-medical reception staff as a first point of contact. Accordingly, the failure to inform the appellant of the triage system was a breach of duty by the hospital, which caused the claimant’s injuries.

FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334
The standard of care expected from an NHS doctor does not depend on their experience

Facts and issues
The claimant had become unwell when she was 13 months old. Her mother noted that she had a high temperature and her eyes were rolling. At 4am an ambulance was called and she was brought to the A&E department. An A&E senior house officer (SHO) examined her and took her history. The SHO diagnosed her with a respiratory tract infection and discharged her. In fact the appellant had pneumococcal meningitis. She was re-admitted later the same day and administered antibiotics, but she had sustained permanent brain damage and deafness. It was agreed that had she been admitted by the SHO, she would have received antibiotics earlier and not suffered any injury.

The claimant alleged that the SHO had negligently failed to take an adequate history and to conduct an adequate patient examination.

First instance decision
The judge found that the SHO had not asked them why they had brought the appellant to A&E in the early morning, but concluded that only a more senior doctor would have noticed the appellant's symptoms during the examination or asked the parents about what had prompted the emergency visit, so it had not been substandard practice for the SHO to fail to elicit that history.

The issue for the court was whether there was a different standard of care in patient history-taking for an SHO as compared to a more senior doctor.

The Court held that, in clinical negligence cases, the court was concerned with the acts or omissions of a medical professional in the context of a particular task. There was often a correlation between the task's complexity and the doctor's seniority, but the standard of competence required was the same no matter who performed the task. In assessing the standard of care, the appropriate exercise is to judge the doctor by the standard of skill and care appropriate to the role they were filling: see Wilsher v Essex AHA [1987] 1 QB 730. Thus, if a registrar carries out surgery that would normally be performed by a consultant, the standard of competence required is that of the consultant, rather than of a reasonably competent registrar.  It also follows that if a doctor does not have the requisite degree of skill for the role in which they are acting, the hospital authorities will be liable for putting the doctor in a position that was too advanced for their abilities.

In the present case, there was no evidence that there was any difference between the standard required of an SHO or of a consultant in taking a history in A&E. Accordingly, the judge's view that there was a lower standard of care for an SHO in history-taking, and that only a more senior doctor could have been expected to elicit the fact of the eye-rolling, could not be sustained.. History-taking was a basic skill that hospital doctors at all levels were expected to possess and had not been carried out to the standard expected of a competent SHO.

Jackson, L.J., observed that this was a claim purely in the tort of negligence. In a contractual claim, the standard of care was more nuanced. The instant judgment should not be taken as accepting that in contractual professional negligence claims the particular experience and CV of the defendant should be ignored, as they must be in tort claims/

3. Costs

Harrison -v- University Hospitals Coventry & Warwickshire NHS Trust [2017] EWCA Civ 792
Essential costs budgeting decision

The claimant brought a claim for clinical negligence against the defendant. The claim was limited to a value of £50,000. The defendant disputed liability. At the costs management hearing (CMH) the claimant put forward incurred and future costs at a total of £197,000, excluding additional liabilities. The judge recorded no comment on the incurred costs that came to circa £108,000 of the figure.

The claim later settled for £20,000, plus costs on the standard basis. The claimant’s solicitors served a bill for over £467,000 including success fee and ATE premium. Court dealt with four issues.

First, the effect that the budgeting of estimated costs has on the assessment of costs at the conclusion of the case.
This issue had been considered by Carr, J., in Merrix v Heart of England NHS Foundation Trust [2017] EWHC 346 (QB). She  concluded that where the costs claimed on assessment are, on a phase by phase basis, within the budgeted figure for the same phase as approved or agreed in a costs budget, then the court, in applying CPR 3.18, cannot depart from that agreed figure either upwards or downwards without good reason. In other words, absent good reason, the approved or agreed figure for estimated costs is to be allowed. The Court of Appeal agreed;

Secondly, the effect that a case management order has on the assessment of costs which have been incurred at the time of the budget.
At first instance, Master Whalan held that these were subject to the same approach as with estimated costs: provided the final claim for costs per phase was within the total of both the incurred and approved estimated costs for the budget for the same phase, then the court should allow those costs without further assessment, unless there was good reason under CPR 3.18 not to do so. The Court of Appeal did not agree, holding that incurred costs are not approved by the court, expressly disapproving the suggestion to the contrary in SARPD Oil International Limited v Addax Energy SA [2016] EWCA Civ 120.  Accordingly, incurred costs are to be subject to assessment without any fetter under CPR 3.18, though any comments made by the budgeting judge will be taken into account;

Thirdly, how proportionality to be approached where costs have been budgeted.
In particular, provided the estimated costs remain in budget, are they excluded from any consideration of ‘global’ proportionality on assessment absent good reason, as the claimant contended. The Court of Appeal held to the contrary.  At paragraph 52 of the judgment it was expressly held that even where the estimated costs remained within budget (and therefore the budget was not to be departed from without good reason), the court must still look at the totality of the allowed estimated costs and assessed incurred costs in order to consider proportionality and therefore potentially to decide whether and if so what further reduction to make on a global basis. This is an important point and was described by the court as a further potential safeguard for the paying party.

Finally, there was a subsidiary point as to when proceedings were commenced for the purpose of CPR 44.3(7) in order to decide which proportionality test applies. The court held that proceedings for these purposes are commenced when the court issues the claim form and not when a claimant took steps to have the claim form issued (such as sending the documents to the court).

Findcharm Ltd. v Churchill Group Ltd. [2017] EWHC 1108 (TCC)
Court tells defendants not to “low-ball” budgets.

The claim concerned a gas explosion at a hotel owned by the defendant, in which the claimant operated a restaurant. The claim was for £820,000 (plus interest), the bulk of which related to business interruption and loss of profit caused by the restaurant's closure for four months. The claimant's costs budget amounted to approximately £244,000 and was based on a single joint accountancy expert report and no expert evidence about the cause of the explosion, because no positive defence on that issue had been pleaded by the defendant. The defendant's costs budget was £79,371. It had suggested a budget of £46,900 for the claimant's costs.

The claimant’s budget was approved.  Coulson J noted that some parties seemed to treat costs budgeting as a form of game, in which they could seek to exploit the rules in the hope of obtaining a tactical advantage over the other side. In extreme cases, this could lead one side to offer very low figures in their Precedent R, in the hope that the court might calculate its own amount, somewhere between the wildly different sets of figures put forward by the parties.

The claimant’s cost budget was held to be reasonable.  By contrast, the defendant's costs budget seemed erroneous even on the defendant's own case, as it allowed nothing for fire experts even though the defendant argued that causation was in issue. It also estimated less than £7,000 for the preparation of a High Court trial. It was an unrealistically low budget. However, as it had been put forward, the claimant had, not unreasonably, agreed it. The sum of £79,371 was therefore the approved costs budget figure for the defendant.

Furthermore, the defendant's Precedent R was completely unrealistic. It was designed to put as low a figure as possible on every stage of the process, without justification, in the hope that the court's subsequent assessment would also be low.  The unreasonably low figures for trial preparation, disclosure, witness statements, and an accountancy expert report were an abuse of the costs budgeting process. 

Rezek-Clarke v Moorfields Eye Hospital NHS Foundation Trust (unreported, 2017) SCCO
Proportionality and low value clinical negligence claims

The Senior Courts Costs Office rejected a challenge to its provisional assessment of a claimant's costs in a low-value clinical negligence case, holding that costs of £72,320 were disproportionate given that the claim was worth less than £5,000 and had settled for £3,250 shortly after issue. 

Recovery was limited to £24,604.40 and included a reduction in the After-the-Event insurance premium from £31,976.49 to £2,120.00 and experts’ fees from £18,036.00 to £9,000.00.

David Peter specialises in clinical negligence, acting for both claimants and defendants.  His practice ranges from Fast-track trials, factually detailed multi-week hearings concerning claims involving multi-disciplinary treatment, serious injury, and complex questions of causation, with regular appearances in the High and County Courts on matters of great complexity.  For more information on his latest case highlights, or Devereux’s leading personal injury and clinical negligence team, please contact our practice managers on 020 7353 7534 or email clerks@devchambers.co.uk.

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