Two cases awaiting decisions from the Supreme Court and Court of Appeal respectively, could have a significant impact for healthcare organisations.

The relationship between a clinician’s duty of care and the extent of the loss claimed will be considered by the Supreme Court in Khan v Meadows. In 2019, the Court of Appeal held that Dr Khan, a GP, was negligent in failing to advise the Respondent pre-conception that she was a carrier for haemophilia. Although it was accepted that Ms Meadows would have terminated the pregnancy had she known she was a carrier, the Court determined that Dr Khan was not 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.

In Paul & Paul v Royal Wolverhampton NHS Trust, the Court of Appeal will consider the need for proximity in time and space between the negligent act and the event which causes a secondary victim Claimant’s psychiatric damage. The High Court held that a 14 ½ month period between negligent cardiac treatment and Mr Paul’s collapse and sad death which had been caused by it, did not in itself preclude liability to his young daughter who witnessed the collapse.  The decision marked a departure from earlier case law on the need for proximity in time and space between the negligence and the event which causes a claimant’s psychiatric damage. If the decision is upheld the pool of potential claimants in clinical negligence cases is likely to become wider.

Medical Malpractice Forward View 2021 

This article is part of Capsticks’ Medical Malpractice Forward View 2021. 

Read the other articles featured in this publication below: 

• Spotlight on two pending court decisions
• Decision in Maughan may lead not only to an increase in requests for an unlawful killing conclusion at inquest, but have wider consequences
• Resource issues are likely to have a significant role in determining the standard of care in claims arising during the pandemic
• Remote hearings and medical examinations are likely to continue for the foreseeable future
• Safety and learning will remain front and centre in healthcare
• The roll-out of digital healthcare is likely to continue apace
• Artificial Intelligence is likely to assist in the post-Covid recovery of healthcare services, but could be a ‘disrupter’ in healthcare law
• Research and development in life sciences will assume even greater importance as will information governance around the use of apps

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.