As part of our Medical Malpractice Forward View 2020, we highlight seven cases either awaiting decisions or coming before the Supreme Court in the year ahead are likely to have a significant impact for healthcare organisations.

Khan v Meadows

The Supreme Court will be asked to consider the relationship between a clinician’s duty of care and the extent of the loss claimed. In 2019, the Court of Appeal held that Dr Khan’s negligence in failing to advise the Respondent pre-conception that she was a carrier for haemophilia, did not make him liable for the additional costs associated with her haemophiliac child’s autism.  Although the situation is a reasonably rare one, a finding in the Respondent’s favour is likely to increase significantly the cost of ‘wrongful birth’ claims where the child has a disability which has no connection with the breach of duty.

Various Claimants v Barclays Bank PLC

The Supreme Court will adjudicate on whether the bank should be vicariously liable for sexual assaults carried out by a self-employed occupational health screening doctor.  This case has a significant impact for all employers if the Court of Appeal’s 2018 decision that the bank was vicariously liable for the doctor’s actions is upheld. Employers should ensure that the risks applicable to their organisations are understood in the context of the environment in which they and any third-party contractors work, including situations which at first sight appear to fall outside the current scope of the duty of care.

WM Morrisons Plc v Various Claimants

Another decision which considers the wider use of vicarious liability is WM Morrisons Plc v Various Claimants in which the Supreme Court will consider the application of tort-based principles of vicarious liability to a data protection scenario. In 2018, the Court of Appeal held the supermarket chain vicariously liable for a malicious data breach by a former employee. The breach involved a leak of payroll data and had been committed at home using a memory stick. The Court considered the employer liable as the employee’s actions formed a seamless sequence of events which had started in the workplace.  The number of Claimants could run into thousands. The decision is likely to have an impact on healthcare due to the volumes of sensitive personal data being held by private healthcare companies and the NHS. This highlights the need for all healthcare organisations to have appropriate cyber risk insurance cover in place. Read our in-depth Insight on the case to date.

Henderson v Dorset Healthcare University NHS Foundation Trust

In Henderson the Supreme Court will decide whether compensation can be awarded for negligence where a Claimant subsequently carries out an illegal act. The Claimant killed her mother during a psychotic episode due to the Defendant’s negligence. In the Crown Court she had been convicted of manslaughter by diminished responsibility, psychiatry experts having agreed that she had some responsibility. In 2018, the Court of Appeal held that she could not recover damages against the Trust as this was barred by the doctrine of illegality. If the claimant were to succeed it would in effect be inviting the civil courts to look behind a conviction and review the penalty imposed by the criminal law.

XX v Whittington Hospital NHS Trust

This case marks a potential watershed in the law on recovery of the costs of surrogacy. The Claimant had become infertile due to the Defendant’s admitted negligence. She claimed commercial surrogacy costs in the USA.  The Court of Appeal’s 2018 decision acknowledged that the business of commercial surrogacy is illegal in the UK, but determined that XX herself did not propose to do anything unlawful and she was able to recover the cost of a US commercial surrogacy arrangement. The Court felt that social attitudes towards surrogacy had changed since its decision in Briody (2001) and that a bar was no longer required on public policy grounds. The case was heard in the Supreme Court last month and the decision is keenly awaited. Read NHS Resolution’s case note on the Court of Appeal decision.

R (on the application of Maughan (Appellant) v HM Coroner for Oxfordshire (Respondent)

The Supreme Court will consider whether the civil standard of proof (balance of probabilities) should be applied to suicide conclusions at inquest. The Court of Appeal’s 2019 decision changing the standard from the criminal standard (beyond reasonable doubt), represents a major change in the law.  If upheld, it may herald an increase in the number of suicide conclusions. Read our in depth Insight on the Court of Appeal decision

ABC v St George’s Healthcare NHS Trust & Others

Finally, in ABC v St George’s Healthcare NHS Trust & Others the Claimant alleged that she should have been informed of her father’s diagnosis of Huntingdon’s disease. The case goes to the very crux of the doctor/patient relationship – the duty to preserve patient confidentiality and whether it should be trumped by a duty to family members in relation to the results of genetic testing. The decision of the High Court is likely to have wider ramifications. Capsticks acted for the Defendants.

Medical Malpractice Forward View 2020

This article is part of Capsticks’ Medical Malpractice Forward View 2020. Read the other articles featured in this publication below:

• Paterson Inquiry report due in early 2020
• The new Clinical Trials Regulation – implementation date likely to be delayed
• Further developments in telemedicine, AI and robotics will bring opportunities, challenges and risk for businesses in the MedTech sector
• Where next on the appropriate approach to future accommodation claims?
• Fixed Recoverable Costs should contribute to controlling the rising costs of clinical negligence claims, but there is further work to be done
• Mediation and other forms of dispute resolution are set to continue rising in medical malpractice claims
• Challenges to dishonest claims against health providers will continue to rise.

Get in touch

Capsticks advise and support medical malpractice insurers and healthcare providers on all aspect of medical law including claims, inquests and regulatory proceedings.

To discuss how any of these issues may affect your organisation, please get in touch with Majid Hassan, Anna Walsh, or Philip Hatherall.