Medico Legal News, Issue 13

No Agreement on Fixed Costs for Low Value Clinical Negligence Claims

In a report published by the Civil Justice Council (CJC) in October, claimant and defendant sides came close to agreeing fixed costs for claims valued up to £25,000.

Both sides were in reach of each other on costs with only £2,000 difference between them.

However, agreement was not reached on exclusions from the fixed costs scheme, especially fatal claims, level of expert fees or after-the-event insurance premiums.

The use of single joint experts was not supported. The CJC said it is pleased to have played a small part in facilitating discussions on issues of patient safety and learning from clinical mistakes; as an advisory body on issues of civil justice, the CJC can do little more than encourage the organisations on all sides to continue working together in the interests of patients.

Read more: https://www.judiciary.uk/wp-content/uploads/2019/10/Fixed-recoverable-costs-in-lower-value-clinical-negligence-claims-report-141019.pdf

The Medico-Legal Conference – 11th June 2020, has moved to a larger venue at The Congress Centre, 28 Great Russell St, Bloomsbury, London WC1B 3LS, after the success of this year’s conference.

Tickets are now available for SpecialistInfo’s Medico- Legal Conference in London on 11th June 2020, get an early bird deal while it still runs!

Please visit the website for details and to book: www.medicolegalconference.com

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

Expert witness 'primers' will cut costs

The Rt. Hon. Lord Neuberger, the former president of the Supreme Court, spoke at the Expert Witness Conference in September and said that the judiciary was working with the Royal Societies of London and Edinburgh to produce primers for judges on topics similar to the ones on DNA evidence and gait, available since 2017, where there is a clear consensus among experts.

Neuberger told expert witnesses: ‘What [the primers] aretryingtodois–Iwouldn’tsaydoyououtofa job – but restrain aspects of expert evidence by telling judges that on certain topics there is a clear consensus among experts.’

While Neuberger called the primers an ‘enormously valuable development’ which will cut costs and increase consistency, he accepted that ‘we all know that theories which were generally accepted by the world and the experts in one generation can turn out to be rejected by another generation'.

Read more: https://royalsociety.org/news/2017/11/royal-society-launches-courtroom-science-primers/

Case Report: ZZZ v. Yeovil District Hospital NHS Foundation Trust (High Court, 26 June 2019 – Garnham J.)

A young woman was a rear seat passenger in a car which was involved in a road traffic collision. She was wearing a lap seat belt but suffered serious spinal injuries. Insurers for the negligent motorist settled her claim with a lump sum of £3 million, plus substantial ongoing periodical payments for care and case management. They started contribution proceedings against the trust, alleging that insufficient precautions were taken in the emergency department.

Shortly after arriving in hospital by ambulance, she was able to help a nurse in removing her trousers and to push her feet against the nurse’s hand. However, an hour later she could no longer move her legs and four hours later a scan revealed a fracture of the lower thoracic spine and severe compromise of the spinal canal and cord. She was referred to a tertiary centre for urgent surgery, but remains seriously disabled.

Ambulance staff, on arrival at the hospital, did not suggest to trust clinicians that they had any concerns about the patient’s neck or back and she was not on a spinal board.

Various expert witnesses gave evidence and the neuro- radiologists agreed that the fracture dislocation probably occurred in the collision.

Mr. Justice Garnham held that any breaches by trust staff did not cause or contribute to the patient’s injury. He accepted the evidence of two neuro-surgical experts who explained that following initial damage to the spine, swelling of the cord can occur which restricts its supply of oxygen. This results in white cells and other inflammatory material appearing inside the cord. In time, those materials release chemicals which set up secondary damage.

The initial insult to the cord had been so severe that complete spinal cord injury and subsequent paralysis were inevitable, even though paralysis was not instantaneous. It was therefore wrong to view the trauma as a single event because the spine was locked in a contorted and extended position. Consequently, whilst two breaches of duty had occurred those had no causative effect. The true cause of the patient’s paralysis was damage inflicted inthe collision.

Read more: https://resolution.nhs.uk/2019/10/21/case-of-note-zzz-v-yeovil-district-hospital-nhs-foundation-trust-high-court-26-june-2019-garnham-j/

Australian women win long-running class action lawsuit against Johnson & Johnson (J&J) over vaginal mesh implants

Australia's Federal Court found this November that Ethicon, a J&J subsidiary, failed to warn patients and surgeons about the risks posed by the products.

The implants were commonly used to treat pelvic organ prolapse and incontinence after childbirth, but left some patients with chronic pain, bleeding and severe discomfort during sexual intercourse.

The risks were known, not insignificant and on Ethicon's own admission, serious harm could ensue if they eventuated," the Judge said in her ruling.

The court will set damages next year.

In October, the company agreed to pay nearly $117m (£90.5m) to resolve claims over pelvic mesh in 41 US states and the District of Columbia.

It is also facing lawsuits over the product in Canada and Europe.

Senior judges attack inadequate expert witnesses

Mr Justice Martin Spencer, who chairs the Expert Witness Institute’s board of governors, spoke at their conference in September to criticize expert witnesses who “were undoubtedly experts in their field but no good as expert witnesses because they have had no training and do not understand their duties to the court”.

He said he had “come across just such an expert earlier this year”, referring to his judgment this summer in Arksey v Cambridge University Hospitals NHS Foundation Trust. In his ruling, the judge described the consultant neurosurgeon as “embarrassing” and said he made “continual apologies” and used “an expletive” while giving evidence.

It became apparent during the case that the expert had not only failed to read the claimant’s medical reports, but also the report of the other expert.

“Experts should be able to demonstrate not only credentials in their field but credentials as an expert.

“How is it that in 2019, in an important High Court medical negligence case, that we can have an expert witness who does not even begin to understand his duties as an expert?

“As a judge, it’s not enough for me to have an expert who knows everything about neurosurgery. It’s useless if he hasn’t done his job as an expert.”

Another senior Judge, Lady Justice Nicola Davies, also commented that she believed medical experts who left clinical practice more than five years ago should not be called as expert witnesses.

She said it was a “false point” for solicitors to instruct an expert who had not been in practice “for some time” as “ultimately it will undermine the credibility of the expert in the eyes of the court”.

Read more: https://www.bailii.org/ew/cases/EWHC/QB/2019/1276.html

RCN Reports Nurse vacancies at record high

The Royal College of Nursing published a report this October entitled “Staffing for Safe and Effective Care in England - Standing up for Patient and Public Safety” describing the “lack of clear roles, responsibilities and accountability for workforce planning and supply in England”.

The report notes that the Secretary of State for Health and Social Care has an overall duty in law to provide a ‘comprehensive’ health and care system to meet the needs of the population, but there is no specific legislation detailing their responsibility to make sure there are enough nursing and other professionals to meet this need.

Dame Donna Kinnair, their Chief Executive & General Secretary, said “The significant nursing shortage in England – 12% vacancy rate in the NHS without counting social care, public health or primary care – means inadequate staffing levels across all settings. With an over-reliance on temporary staff filling gaps, we know that that the shortage is putting patients at risk and pushing nurses to leave the profession they love due to the pressures they face.”

The College believes this must be resolved through legislation, alongside additional investment in the nursing workforce and a national health and care workforce strategy for England.

“The RCN is clear, it is no longer the time to be discussing whether legislation is needed, instead, we should also be focussed on how we go about securing these necessary changes in law.”

Read more: https://www.rcn.org.uk/professional-development/publications/007-743#detailTab

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