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Medical Negligence:
Guidance on
causation and
valuation of claims
Nicola Edgar and Derek Couper
How to succeed in making a
medical negligence claim
• Negligence• Hunter v Hanley 1955 SC 200
• “true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care."
• Causation • The negligence of the doctor caused or materially
contributed to the bad outcome.
Causation
• Gregg v Scott (2005) 2 AC 176
• Delay in diagnosis by GP
• 9 month delay in treatment, during which time the
cancer had spread
• Chance of being cured (i.e. surviving 10 years)
reduced from 42% to 25% due to the delay
• Court held Mr Gregg was not entitled to recover
damages for loss of a chance
Alternative Heads of Claim
• Solatium - additional pain and suffering in the period during which diagnosis is delayed, perhaps resulting in additional treatments or investigation necessitated purely as a result of the delay;
• An award for psychiatric damage caused as a result of the delay in treatment and diagnosis, including the belief that the delay impacted upon the outcome; and
• Reduced life expectancy or 'lost years'.
Alternative Heads of Claim
• JD v Melanie Mather (2012) EWHC 3063
• 7 month delay in diagnosis of cancer by GP
• Poor prognosis
• Claimant sued GP on the basis that the delay had led to him losing a better than 50% chance of survival
• Court held chances of survival already less than 50%, even if the tumour had been detected earlier
• Successful claim for reduced life expectancy of 3 years
Alternative Heads of Claim
• Oliver v Williams (2013) EWHC 600
• Delay in diagnosis of ovarian cancer by 5 ½ months
• Court held there was no statistical evidence to
support the medical expert's view that the claimant’s
life expectancy had reduced by 12 to 18 months.
• Award for additional pain and suffering over the 5 ½
month period when symptoms were undiagnosed and
unalleviated
• Award for contribution to psychiatric damage as a
result of the delay in diagnosis
Valuation
• Loss of Survival
• J v Goodhope Hospital NHS Trust ("Failure to
diagnose bowel cancer" P & MILL June 2004, 11-
12)
• Delay in diagnosis of bowel cancer of two years
• Cure rate of cancer 85-90%
• Due to delay, no real prospect of cure
• Claimant required multiple surgeries
• Awarded £130,000, updated
Valuation
• Delay in diagnosis leading to lost years and
greater medical intervention.
• G v Lock ("Clinical negligence - bladder cancer"
PI Comp June 2006, 10-11)
• Delay in diagnosis of bowel cancer
• Claimant required multiple surgeries and
chemotherapy
• Positive response to treatment
• Case settled at mediation for £120,000, updated
Valuation – Lost Years
• JD v Mather (2012) EWHC 3063
• Delay in diagnosis by GP of a malignant skin tumour
• Reduction in life expectancy of 3 years
• Case settled out of court for £40,000, updated
• W v Basingstoke and North Hampshire NHS Foundation Trust (C Risk 2011, 17(6), 232-233)
• 4 lost years
• Settled in 2010 at £40,000, updated
Valuation – Lost Years
• Brown (deceased) (2013) EWHC 4067
• Delay in diagnosis leading to 1 year reduction in
life expectancy
• Claimant awarded £8,925, updated
Loss of Society Awards
• Damages (Scotland) Act 2011• Prescribed categories: “immediate family”
• Closeness of relationships
• Life expectancy
• Manson v Henry Robb Limited [2017] CSOH 126• Remaining life expectancy of 5.8 years
• Widow awarded £75,000 and Children £30,000
• Anderson & Ors. v Brig Brae Garage Ltd [2015]• 35 year old died in course of workplace accident
• Civil jury awarded widow £140,000 and children £80,000
Duty of Care Owed by Non-
Clinical Staff
• Darnley v Croydon Health Services NHS Trust [2018] UKSC 50
• The case emphasises the wide (and growing?) scope of duty of care placed on healthcare providers
• Accurate information on waiting times forms part of that duty and health board are vicariously liable for negligence on the part of non-medical staff
• Will this extend to those working in administrative roles in GP practices and other treatment centres?
Expert Evidence
• Kennedy v Cordia (Services) LLP 2016
UKSC 6: “as with judicial or other opinions,
what carries weight is the reasoning, not the
conclusion”
• Fundamental characteristic of expert
evidences is that it is opinion evidence
• Instruction of a single joint expert for both the
parties increasing, but still used in limited
circumstances
Joint Meetings of Experts
• Both the Sheriff Court rules and Court of Session rules provide for case management by the court
• Chapter 42A in the Court of Session / Chapter 36A in the Sheriff Court
• Increasingly parties are agreeing that joint meetings of experts is useful
• Many judges are either encouraging or ordaining parties to arrange joint meetings of experts (known as ‘hot-tubbing’) to narrow scope of issues before Proof, already popular in England
Periodical Payment Orders
• Presently discretionary in Scotland but can be enforced by Courts in other parts of UK
• Investment Returns and Periodical Payments (Scotland) Bill
• Split between lump sum and annualised payments indexed and linked to increase in care costs
• Removes requirement for Court to determine life expectancy
• Removes ability of pursuer or family to take investment decision on a significant principal award
Cost of Medical Negligence
Claims in Scotland
• Clinical Negligence and Other Risks Indemnity Scheme (CNORIS)
• Value of Claims paid in 2017/18 was 33.6 million
• Obstetric claims account for 15.8% of the number of claims but almost 40% of the total value
• Health Boards self-insure at levels up to £25,000 including costs
• Anticipated that PPO arrangements can ‘regulate’ annual sums payable to spread costs over a longer period
Claim Values by Speciality
Pre-Action Protocol for Clinical
Negligence Claims?
• Pilot scheme co-ordinated by NHS Central Legal Office
• "to avoid the need for or mitigate the length and complexity of civil proceedings“
• Proposed ceiling of case value is £100,000• Records must be provided in 40 days
• Assessment then “letter of notification” indicating a letter of claim is likely to be sent
• Letter of claim must then set out basis for claim including detail of investigations undertaken
• Proceedings should not be raised unless for purposes of avoiding time bar, with usual expenses implications