The cases of note so far this year include:

Holmes v Poeton Holdings Limited [2023]

The Court of Appeal considered the Claimant’s claim that his exposure to unsafe levels of Trichlorethylene (TCE) materially contributed to his development of Parkinson’s disease and as an indivisible injury, the Defendant should be liable for all consequences.

The Court found that the “Bonnington principle” of material contribution applies to indivisible diseases, i.e. if the Claimant is able to prove a material contribution, the Defendant(s) bear 100% of the damage. However a causative link needs to be shown – it is not sufficient to simply show a risk factor. 

The Court considered that causation could be considered in two ways. Firstly, generic causation – i.e. whether what is alleged can cause or materially contributed, and secondly individual causation – i.e. whether it did in this specific case. The Court determined that there was insufficient evidence to establish causation (either generic or individual) in Holmes.  

Comment

This claim shows the need for clear scientific evidence of causation. Whilst clarification that material contribution applies to indivisible injuries may widen its use in some claims, it will make it more difficult to prove such cases and may avoid claims being brought where it is only possible to show a risk factor.

Man v St George's University Hospital NHS Foundation Trust [2024]

This was an interlocutory hearing relating to the evidence being relied upon by the Defendant. The Claimant brought a claim in relation to attendance at A&E with a leg injury. There was a specific point within the Particulars of Claim that alleged that the Claimant was in exquisite pain. The Defence did not specifically deny that point and the Defendant thereafter served a witness statement which did not accept that the Claimant was not in that severe pain. 

The Court found that the Defendant could not rely on the witness statement on the basis that the Defendant had not responded to that allegation in the Defence. 

Comment

This judgment shows the importance of understanding the facts that are in dispute at the point that a Defence is drafted and therefore obtaining any necessary comments from those involved to be in a position to properly respond to any disputes of fact. A failure to do so can be costly as the Defendant found out here.

Clarke v Poole and others [2024]

The High Court found that if the Claimant refused to undergo electromyography testing (EMG) her claim should be stayed. This was because her future losses claim was based upon her not having an underlying diagnosis of symptomatic myotonic dystrophy.

The test set out in Laycock v Lagoe [1997] PIQR 518 set out a two-stage test:

1. the interests of justice require the testing sought; and
2. whether the claimant has a real objection.

In Clarke it was held that there was a third stage; taking account of an earlier case Starr v NCB [1977] 1WLR which states that where there is a substantial objection the competing rights of the Parties should be weighed.

Comment

Defendants should use this case where a claimant is not co-operating with tests necessary for a medical examination.

Spellman v Portsmouth Hospitals University NHS Trust [2024]

This case relates to the alleged negligent reporting of MRI scans which led to the failure to diagnose Cauda Equina Syndrome. Whilst the majority of the issues are claim specific in relation to the adequacy of the scan reports, where this matter has potentially wider importance is in considering how the Court views such “pure diagnosis” cases. 

The legal test for such cases was set by the Court of Appeal in Penny v East Kent Health Authority [2000]; namely that the Court had to determine as a matter of fact what is shown on the imaging, and thereafter, whether, irrespective of what was to be seen on the imaging, the scan had been reported in line with the Bolam test (i.e. in line with a reasonable and logical body of radiology opinion). 

In the present case, the Court determined that the scan did not in fact show an acute cauda equina compression and therefore there was no unreasonable failure not to identify this. The Claimant’s expert had also made, what the Court described as a “number of errors in his interpretation of the scan including identifying pathology at the wrong level”.   

The Claimant’s claim was dismissed.

Comment

Where this matter has potentially wider importance is in considering how the Court views such “pure diagnosis” cases. 

The legal test for such cases was set by the Court of Appeal in Penny v East Kent Health Authority [2000], namely that the Court had to determine as a matter of fact what is shown on the imaging, and thereafter, whether, irrespective of what was to be seen on the imaging, the scan had been reported in line with the Bolam test (i.e. in line with a reasonable and logical body of radiology opinion). It is also important to ensure that experts interpretation of the imaging is accurate.

Healey v McGrath and Ramsay Healthcare UK Operations Ltd [2024]

This case relates to a Part 20 contribution claim and shows how a court may consider apportionment of liability in such circumstances.

The Claimant was the widow of the deceased patient, who died following a right hemicolectomy undertaken by the First Defendant (D1) at the Second Defendant’s (D2’s) hospital.

Both Defendants were negligent. D1 in relation to a delay in responding to post-operative deterioration and diagnosis of a leak, and D2 via its nurses in not seeking medical review and the rate of observations undertaken. 

D1’s solicitors came off the record before settlement and D1 represented himself, but did not comply with the directions order in the contribution claim and did not attend the trial, which proceeded in his absence. The Judge highlighted the seriousness of D1’s failures and determined his responsibility as being more than 50% but less than 100%. The Court apportioned liability as 75% to D1 and 25% to D2. 

D2 thereafter sought an order that D1 should also pay 75% of its costs in defending the main claim even though it too was negligent. The Court had to consider whether to exercise its discretion under section 51 of the Senior Courts Act 1981 and CPR44.2 to order a contribution of costs in respect of the main claim.

Not only did the Court find that D1 had the greater responsibility for the death, but also considered conduct. D2 had settled the claim (D1 had not) and his conduct was deemed to be unsatisfactory, unrealistic and uncooperative. D1 was ordered to pay 1/3 of D2’s costs of defending the main claim (as well as 75% of the Claimant’s costs) and all of the costs of the contribution claim. 

Comment

This case shows both the importance of proper conduct and how the Court will take account of matters such as failures to settle a claim when considering costs.  It also shows the wide discretion that the court has in relation to costs matters.

PHJ v HMA (unreported)

HHJ Allen considered the principle from Reaney in relation to care costs and whether a reduction should be allowed to account for the pre-injury care costs. It was incumbent on the Defendant in seeking a reduction (25% was sought) to show evidence of these pre-injury care needs.

It was found in this matter that “in determining the aetiology of the claimant’s severe psychiatric injury, the medical experts had given their views on causation of the different aspects of the injury. This did not allow for the distribution of causative responsibility with any degree of precision. In order to arrive at a just result a broad-brush division of responsibility was justified. In the present case, in the absence of evidence estimating care requirements pre-accident, it would be difficult to justify a broad-brush approach that was little more than a guess.”  

Comment

This case shows the importance of understanding, and being able to provide evidence of, any pre-existing care needs should a reduction to the care costs as a result of the same be sought.

Furthermore, in relation to whether an expert is required to read all of the medical records when preparing a report. The Court confirmed that, with the requirement to prepare reports within reasonable cost parameters, it was not inappropriate for the expert to rely upon a summary of the medical records. However, the person and qualification who prepared the summary should be made clear in the report and the intention should be discussed with the expert’s instructing solicitor. In this case one expert’s wife (a qualified neuropsychologist) had reviewed the records and prepared a summary.

Cases still to be heard

CCC v Sheffield Teaching Hospitals NHS Foundation Trust– permission has been granted in this matter for a leapfrog appeal to the Supreme Court for a determination on the entitlement for a lost years claim on behalf of a child with reduced life expectancy. No date has yet been set.

Medical malpractice insurance: mid-year review 2024

• Fixed Recoverable Costs: where are they?
• New damages guidelines published in April 2024
  
  • Sexual/ physical abuse claims
  • Technology
  • 10% uplift to account for future inflation
• Alternative Dispute Resolution becoming integrated into claims processes
  
  • Mediation in Low Value Claims
  • Alternative dispute resolution (ADR) consultation
• Discount Rate Review: what might happen?
• Expansion of the Damages Claims Portal (DCP)

Get in touch

Aiming to be the firm of choice for medical malpractice insurers and those who they cover, we advise and support on all aspect of claims, inquests and associated proceedings. 

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan, Ed Mellor or Sarah Bryant.