Medico Legal News, Issue 11

By Lisa Cheyne, Medico-Legal Manager, SpecialistInfo

Issue 11

Court of Appeal ruled lying GP expert witness should have been jailed

A GP who lied and signed a false witness report should have been jailed immediately rather than handed a suspended sentence, but he will still avoid prison, the Court of Appeal has ruled.

Judges in Liverpool Victoria Insurance Company Ltd v Zafar found Dr Asef Zafar had been dealt with too leniently. The court heard Dr Zafar, who made £350,000 a year from writing 5,000 reports, produced two versions of a report for one claim, with significant differences in the seriousness of the injuries diagnosed. The misconduct was uncovered when the original report was mistakenly included in the trial bundle.

Appeal judges stressed the deliberate or reckless making of a false statement in a court document would usually be serious enough for a prison sentence – particularly in the case of an expert witness. This was not mitigated by the comparatively modest sum involved in the underlying claim.

The attempted cover-up, and making of further false statements, ‘significantly increased’ the doctor’s culpability, judges ruled.

The judges said the sentence should have been significantly longer than six months and served immediately rather than suspended.

The doctor had been motivated by a concern for financial profit, acted with deliberate dishonesty and persisted with in the conduct which constituted his contempt.

The General Medical Council has confirmed Dr Zafar was made subject to interim conditions on his registration at an interim orders tribunal in November. He must not undertake any medico legal work, including writing reports or giving evidence in court. The GMC's investigation is ongoing.

Read more: https://www.bailii.org/ew/cases/EWCA/Civ/2019/392.html

The Medico-Legal Conference – 16th May 2019, at the Queen Elizabeth Hall, South Bank, London

Tickets are still available for SpecialistInfo’s Medico- Legal Conference in London on 16th May 2019. Over 160 delegates are already confirmed for this exciting event. Topics to be discussed include: issues around consent post Montgomery, gross negligence manslaughter, malingering and sepsis.

Please visit the website for details of the programme and to book:

www.medicolegalconference.com/programme.html

Please contact:

craig.kelly@iconicmediasolutions.co.uk. for further information if you are interested in hosting a stand at the event.

Dr Hadiza Bawa-Garba can return to work after gross negligence manslaughter conviction

The Medical Practitioners Tribunal Service (MPTS) has now ruled Dr Bawa-Garba can return to work, but only under close supervision, after being struck off the register last year.

She was convicted of GNM after 6-year-old Jack Adcock, who had Down's syndrome and a heart condition, died from a cardiac arrest caused by sepsis 11 hours after being admitted to hospital in 2011.

In 2017 the MPTS suspended her from the medical register for a year, but the GMC appealed against the decision and in January 2018 she was struck off at the High Court.

Dr Bawa-Garba subsequently took her case to the Court of Appeal and in August won her bid to be reinstated this month.

GP indemnity insurance cover changes from April 2019: The Government’s state-backed clinical negligence scheme for general practice (CNSGP)

The new NHS indemnity scheme for GPs (CNSGP) covers all future clinical negligence claims from this month for GPs and associated medical staff practising in England, but discussions are still ongoing about whether it will also apply to incidents that occur before the scheme’s introduction.

It is also important to note staff may need to check they are covered in relation to areas that fall outside of the scheme, such as expert witness work. For example, membership of a medical defence organisation or other indemnity providers will be needed for activities and services not covered by CNSGP. This includes non-NHS or private work, inquests, regulatory and disciplinary proceedings,employment and contractual disputes, and non- clinicalliabilities.

Health Education England (HEE) will also fund personal indemnity cover for all GP trainees from April 2019.

Eventually it is hoped the scheme will provide consistency directly through NHS Resolution for medical negligence lawyers dealing with all aspectsof complex claims involving alleged GP and hospital errors.

Read more: https://www.england.nhs.uk/gp/gpfv/investment/indemnity/

Claimant jailed for five months by the High Court for contempt of court after attempting to defraud the NHS out of compensation

Browne Jacobson LLP, instructed by NHS Resolution on behalf of George Eliot Hospital NHS Trust in Nuneaton, established that Lesley Elder, from Poole, lied about the extent of her injuries and disabilities following vaginal mesh surgery in 2010.

She claimed the surgery left her in such severe and constant pain in her groin and leg that she couldn't work, travel, or walk unaided. She said she needed more than £1m worth of care and support.

She demanded the seven-figure sum from The George Eliot Hospital NHS Trust - which awarded her £120,000 after the surgery was found to be have been unnecessary.

She was particularly upset that she had not been able to go to her daughter's hen do, she claimed.

After surveillance by private investigators and searches of social media, the gross exaggeration of her disability was exposed.

She was photographed in an Ibiza nightclub, with her daughter and other women, the court was told. Miss Elder insisted the trip was not a hen party, but simply a holiday.

Judge Iain Hughes QC pointed out that the party was women-only, all of them wearing t-shirts emblazoned with the words 'Tania's hen party'.

This April she was found in contempt of court and jailed for five months by Judge Karen Walden-Smith, who said it was an 'attempt to effectively defraud the NHS' out of more than £2m.

Royal College of Physicians adopts a neutral stance on the issue of assisted dying

Following a poll of its members, the Royal College of Physicians (RCP) has now adopted a neutral stance on the issue of assisted dying. The survey was completed by 6,885 respondents from more than 30 specialties.

Members were asked:

‍What should the RCP’s position be on whether or not there should be a change in the law to permit assisted dying?

43% thought the college should oppose a change in the law
32% wanted the college to support a change
25% were neutral

Under UK law, it is still illegal to encourage or assist a suicide.

The online survey, carried out between 5 February and 1 March, also asked members whether they personally support a change in the law on assisted dying. Those supporting such a change increased to 40.5% from 32.3%, while those opposing it fell from 57.5% to 49.1%.

The college has shifted to a neutral stance because neither side achieved a majority of 60%.

Prof Andrew Goddard, President of the RCP said: "It is clear that there is a range of views on assisted dying in medicine, just as there is in society.

"We have been open from the start of this process that adopting a neutral position will mean that we can reflect the differing opinions among our membership.

"Neutral means the RCP neither supports nor opposes a change in the law and we won't be focusing on assisted dying in our work.

"Instead, we will continue championing high-quality palliative care services."

NICE recommends vaginal mesh ban can be lifted with management changes

Controversial vaginal mesh implants can be offered again on the NHS in England once certain conditions are met.

Under the new guidelines, Urinary incontinence and pelvic organ prolapse in women: management, patients would receive a "decision aid", detailing all the latest evidence on available treatments, and mesh implants would be used only after non-surgical options, such as lifestyle changes and pelvic floor training, had failed.

Studies suggest as many as one in 10 patients can experience complications after vaginal mesh surgery, including chronic pain and difficulties walking.

Labour MP Owen Smith, who chairs a cross-party group of MPs on surgical mesh implants, called for the continued suspension of vaginal mesh until an independent review, led by Baroness Julia Cumberlege, publishes its findings later this year.

The Royal College of Obstetricians and Gynaecologists (RCOG) and the British Society of Urogynaecology (BSUG) said they welcomed NICE's recommendation "that the full range of non-surgical options should be offered to women before any surgical procedures" and "fully endorse" NICE's patient decision aids.

But they added it was "important to note" that a period of "high-vigilance" remained regarding the implants' use.

National Audit Office warns lengthening NHS waiting times could lead to a rise in clinical negligence claims

In a report, NHS waiting times for elective and cancer treatment, the NAO notes that the elective care waiting list grew from 2.7 million to 4.2 million between March 2013 and November 2018. The number waiting more than 18 weeks grew from 153,000 to 528,000, while, the number of people treated each month increased from 1.2 million to 1.3 million.

‘Long waiting times may lead to an increased risk of more negligence claims against the NHS,’ the report states. ‘Almost 40% of such negligence claims against the NHS are related to failures or delays in diagnosis or treatment.’

The NAO has found that while increased demand and funding constraints affect the entire system, other factors that are linked to declining waiting time performance include NHS staff shortages for diagnostic services, a lack of available beds and pressure on trusts from emergency care.

It adds: ‘However, it is not possible to identify whether delays were due to long waiting times or other factors such as missed diagnoses. Excluding maternity, ambulance and emergency cases, which are not usually related to elective care, in 2017-18 about 3,000 such claims were resolved by NHS Resolution. ‘Damages were paid in 56% of these cases, at a total cost of some £600m.’

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