Image © Tero Vesalainen
Barts NHS Health Trust, which administered an experimental Reflex DNA test at 16 weeks to a high-risk pregnant 39-year-old with epilepsy, and which also failed to detect any fetal abnormalities through a routine ultrasound scan at 20 weeks, has admitted and apologised for failings at the Royal London Hospital in 2016.
The Reflex DNA test, as developed and supplied by the Wolfson Institute of Preventive Medicine to detect chromosomal trisomies, was not a recognised alternative to the standard combined test, and not recognised by the National Screening Committee.
After believing that they were carrying a healthy child, the couples’ baby was born at full term with severe abnormalities, and Edwards syndrome (trisomy in chromosome 18) was later diagnosed. He died at 10 weeks old from a condition that is known to result in severe disability and very early death. Usually, parents are offered a termination if antenatal tests detect Edwards Syndrome in the fetus, and in this case they would have taken that route had they known.
Leigh Day Solicitors representing the claimants said “They were not provided with appropriate choices regarding screening or proper advice to enable them to make an informed decision about appropriate tests. If appropriate tests had been offered, abnormalities would and should have been detected and the parents should have been given advice about the continuation of the pregnancy.”
The trust has modified its procedures as a result of this incident.
In North Bristol NHS Trust v White [2022] EWHC 1313 (QB) (26 May 2022) Mr Justice Ritchie said that Holly White should go to prison immediately as a suspended sentence would not get the message across sufficiently strongly that defrauding the NHS is utterly unacceptable. ’Nor would it send out the right message to those currently suing NHS trusts or those who will do so in future.’
The 29-year-old woman who knowingly exaggerated the extent of injuries suffered as a result of alleged NHS negligence during treatment for herniated discs, has been jailed for six months for contempt of court.
She was examined by several expert witnesses and claimed that she could not drive long distances, walk up stairs unaided or take more than 20 steps without needing to use a crutch, and was in constant pain. Video surveillance showed that while White claimed to have mobility issues, she walked normally without assistance and drove up to 40 miles without stopping.
Read more: https://www.bailii.org/ew/cases/EWHC/QB/2022/1313.html
An amendment to the Civil Procedure Rules, to be put in place from 2 June 2022, stating that solicitors responding to claims for damages issued via the Damages Claims Portal (DCP) must respond using the DCP, is being postponed indefinitely. An HM Courts and Tribunals Service Tweet on 31 May 2022 has confirmed that this part of the Practice Direction has been revoked before it came into force.
The DCP (Practice Direction 51ZB) is a digital service that allows solicitors to issue and respond to claims for unspecified amounts where a claim has 1 claimant versus 1 defendant. HMCTS is currently refusing to issue proceedings not using the portal, but defendants complain they cannot use the system properly because of unresolved glitches.
Read more: HMCTS weekly operational summary - GOV.UK (www.gov.uk)
Alexander Hutton QC, Hailsham Chambers, is Keynote Speaker for the 2022 conference.
Other speakers include:
Please visit the conference website below for more details and to secure a ticket for 2022: www.medicolegalconference.com
Please contact craig.kelly@iconicmediasolutions.co.uk for further information if you are interested in sponsoring the programme or hosting a stand at next year's event in London on 20 June 2023.
Up to 30,000 NHS patients contracted hepatitis C, HIV and other diseases after receiving contaminated blood-clotting products in the 1970s and 1980s, and 3,000 are thought to have already died as a result.
Ministers have accepted that there is a “strong moral case” for a taxpayer-funded scheme to compensate those affected by this major NHS treatment disaster.
Details of the compensation plan have been promised before the government responds to a review due in July, led by Sir Robert Francis QC, set up last year to examine a possible compensation framework for the victims and their families.
Francis, was asked to:
Give independent advice to the Government regarding the design of a workable and fairframework for compensation for individuals infected and affected across the UK to achieve parity between those eligible for compensation regardless of where in the UK the relevant treatment occurred or place of residence.
Campaigners are demanding immediate interim payments of £100,000 for victims nearing the end of their lives after 40 years of living with the consequences without compensation.
Read more: https://www.infectedbloodinquiry.org.uk/
The House of Commons Committee report, with recommendations to government, was published at the end of April. The Government has two months to respond.
The committee’s central recommendation is that “the NHS adopt a radically different system for compensating injured patients which moves away from a system based on apportioning blame and prioritises learning from mistakes. An independent administrative body should be made responsible for investigating cases and determining eligibility for compensation in the most serious cases.
Reconstituting the new Special Health Authority, which will take over maternity investigations from HSSIB, would be an efficient way for the Government to implement our recommendation. This would be the most effective long-term way to reduce both the number of tragedies and the cost to the NHS. Changing from a blame culture to a learning culture is not easy but can be accelerated by some simple but important changes to current NHS processes which we encourage the Government to adopt.”
Read more: https://publications.parliament.uk/pa/cm5802/cmselect/cmhealth/740/summary.html
In Jenkinson v Robertson [2022] EWHC 756 (Admin) Mr Justice Choudhury overturned a trial judge’s finding of fundamental dishonesty on the part of a claimant who was a litigant in person. Mr Justice Choudhury said:
“A claim that is unreasonable is not necessarily dishonest; it may simply be misconceived. A claim that is exaggerated may be so because of the inclusion of losses that are wrongly believed to arise out of the accident in question. If a defendant wishes to establish that an exaggerated or unreasonable claim is fundamentally dishonest, then the basis on which that dishonesty arises or is alleged to arise ought to be made clear.”
This is a judgment that highlights the need for defendants to give clear notice of the matters upon which a claimant is going to be alleged to be dishonest and to particularise its allegations. It also highlights the fact that that a claimant who makes claims that are unreasonable or misconceived is not necessarily dishonest.
Read more: https://www.bailii.org/ew/cases/EWHC/Admin/2022/756.html
David Parkin, deputy director of civil justice and law policy for the MoJ, revealed at the Association of British Insurers conference in late May that 185,000 claims are currently active in Official Injury Claim, the portal for handling lower-value RTA cases.
Since the system launched last year, 243,000 claims have been lodged, of which around 50,000 have been settled and or exited. Many are waiting for the medical details to be uploaded, or negotiation between the parties.
Hybrid claims seem to be the main reason settlement cannot be reached, where claimants report both whiplash (covered by a compensation tariff) and other injuries (not covered). Claimant and defendant representatives continue discussions over a potential test case to bring before the court and establish the position on hybrid claims.
Parkin told the conference that the system has worked well for litigants-in-person but this only accounts for around 9% of claims.
He also revealed there are no plans to introduce mandatory alternative dispute resolution in the system, after initial plans for this provision were dropped before the portal went live, saying:
‘It would be irresponsible to make it compulsory overnight when the capacity is not there.”
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