Clinical Negligence Update, August 2023: Ian Huffer highlights recent cases of interest.
Briley & Ors v Leicester Partnership NHS Trust & Ors  EWHC 1470 is a cost claim of interest to clinical negligence practitioners. The background claim which settled prior to the inquest was one which arose out of the death of a vulnerable young woman in the care of the Defendants. The judge found that the Claimant’s costs of preparing for and attending a pre inquest review were recoverable in principle, being necessary and proportionate to the pursuit of the civil claim. Proportionality not just being a question of the monetary damages but requiring examination of the Defendant’s systems and practices in the context of the death of a vulnerable young person in their care.
Chapman v Mid & South Essex NHS Foundation Trust  EWHC 1290 (KB) is initially reported as the judgment of Mrs Justice Hill on the split trial on liability and causation. The Claimant brought a clinical negligence claim on the basis of failure and delay in diagnosing and treating a prolapsed thoracic disc resulting in paraplegia.
The judgment is a long one (214 paragraphs) containing detailed analysis of lay and expert evidence. Whilst it will be of interest to any practitioner with a similar claim, in the brief summary that follows, I set out how it is illustrative of evidential issues raised more generally in clinical negligence claims.
The judge found –
(1) that breach was proved in 2009/10 when the treating Consultant (in the Management of Chronic Pain), B, failed (i) to conduct a full neurological examination or order an MRI scan (which would have revealed the prolapse), (ii) failed to take an adequate history or conduct an examination and (iii) gave advice on surgery which was not within his remit
(2) that if a scan had been ordered, a surgeon would have advised the Claimant to undergo surgery for the thoracic disc prolapse in 2009/10.
(3) That the Claimant would have elected to undergo surgery for the thoracic disc prolapse if it had been offered in 2009/10.
In approaching this question, the judge took into consideration the guidance in Smith v Barking, Havering and Brentwood HA  5 Med LR 285 which emphasised the need to treat with caution assertions made at trial as to what a Claimant would have done.
(4) A further alleged breach of duty by a nurse in emergency department in 2017 to undertake a proper neurological examination was not proven, the judge accepting that the nurse’s note accurately recording the history she took from the Claimant in preference to a different account given by the Claimant and family members.
In analysing the evidence of the Claimant and her witnesses, the judge reflected the view of the Court of Appeal in Barrow v Merrett  EA Civ 1241 that whilst justifying caution in applying the guidance from Gestmin (a commercial dispute where there was a significant “digital footprint”), wholesale to other types of case, said recollections can helpfully be tested by reference to plausibility and the inherent probability of the evidence (which Gestmin recognised was useful).
(6): The Claimant did not contribute to her injury by her conduct in refusing the advice of her GP to call an ambulance and attend hospital in 2017?
In considering this allegation, the judge reminded herself that the Defendant bears the burden of proof and referred to the observations of Yip J in Dalton v Southend University Hospital NHS Foundation Trust  EWHC 832 (QB) as to the effect that the circumstances in which a finding of contributory negligence can properly be made in a clinical negligence claim will be rare.
The case is further reported in Bailii on 20th July 2023 on the separate issue of costs at Chapman v Mid and South Essex NHS Foundation Trust (Re Costs)  EWHC 1871 (KB)
The Claimant had made a Part 36 offer to accept 90% of the damages succeeding on the trial on liability and causation (making a 10% deduction on the full value of the claim) and recovered in full at trial
The Defendant sought to argue that the offer in this form was not an offer to settle the claim or a quantifiable part or issue of the claim and part 36.17 consequences did not apply. Mrs Justice Hill distinguished the case of Munday v Tui  EWHC 386(Ch) on which the Defendants sought to rely. In that case there was a Claimant 90:10 liability split offer which was bettered but a £4000 Defendant Part 36 offer in full settlement which was not bettered by the Claimant. Mrs Justice Hill did not understand Collins Rice J’s judgment in Munday as purporting to hold that Part 36 consequences could not flow from such offers made in different factual circumstances.
Mrs Justice Hill went on to reject a further argument that it was ‘unjust’ within 35.17(5) for Part 36 cost consequences to have followed because of the serious reputational issues that arose from the allegations made against the nurse. The high threshold of establishing injustice was not satisfied and ventilation of issues against the nurse could have been avoided by the Defendants by admission of the breaches of duty by the consultant.
Comment: Being aware that the sort of offer made by the Claimant’s solicitor in this case in advance of split liability and causation trials are ones frequently made by clinical negligence practitioners, this is a welcome and clearly correct decision on Part 36.
The judgment in CCC v Sheffield Teaching Hospitals NHS Foundation Trust  EWHC 1770 (KB) handed down on 12 July 2023 was one following a trial on quantum of a CP clinical negligence claim where liability was admitted.
I hope to be able to return to some of the significant quantum issues raised by this case in a long and substantial judgment which have wider relevance and application to different heads of claim in catastrophic personal injury claims. I now mention two procedural issues that emerge from the case.
Witness statements. The Claimant sought to rely on witness statements served in October 2022 for a trial listed in June 2023. The witnesses were to evidence the need for two waking night carers which only crystallised upon receipt of the Claimant care expert (Miss Sargent’s) final report. The Defendants did not object to updated witness statements from the case manager and Claimant’s deputy but did object to witness statements from three support workers which necessitated an application for relief from sanctions as there was no provision for updating witness statements.
Relief was granted and permission given to rely on the statements.
Mr Justice Ritchie noted “The error here, in my judgment, was the parties’ joint failure to build into the main directions a provision for up-to-date factual evidence, for which they both share responsibility”.
In my experience, such an omission is not uncommon when main directions are made and it is something that perhaps practitioners need to consider at that time, being clearly preferably to having to make a subsequent relief from sanctions application.
Costs: This is reported in a separate judgment CCC v Sheffield Teaching Hospitals & Anor  EWHC 1905 (KB) (13 July 2023).
“In my judgment the MTV (‘money terms value’) of the Claimant’s Part 36 was as stated on the face of it. At trial the Claimant beat the PPO part of the combined offer but failed to beat her lump sum offer, so the combined Part 36 offer was not beaten. Therefore, the Part 36 rewards and incentives are not appropriate and I award the Claimant her costs on the standard basis for the claim”.
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