Clinical Negligence Law

Secondary victim claims Part 2: A differing view on Paul v Royal Wolverhampton NHS Trust

In this blog post, Rachit Buch writes in support of the recent decision made in the case of Paul v Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB).

I have decided to place myself comically out of my depth by arguing against Ronnie Walker Q.C.. Having caught wind of Ronnie’s (shall we say, negative) views of the decision in Paul v Royal Wolverhampton NHS Trust [click here to access the Ronnie Walker Q.C.’s analysis of the decision], I will attempt to make the case for Chamberlain J’s judgment on appeal.

This post summarises the decision and looks at the arguments for allowing the secondary victim claims of Saffron and Mya Paul, children of Parminder Singh Paul, to proceed.

Summary of the case

Mr Paul attended the defendant’s hospital on 9 November 2012 with chest and jaw pain. He was discharged three days later. 14 and a half months from then, in January 2014, he sadly collapsed whilst suffering a heart attack. The pleaded case included details of the two daughters seeing their father fall and hit his head, there being blood on the hands of a man holding Mr Paul’s head, and hearing their mother, Balbir Kaur Paul, scream Mr Paul’s name before an ambulance came and the crew placed a foil blanket over Mr Paul whilst doing chest compressions.

The defendant trust’s staff were alleged to have negligently failed to perform a coronary angiography and failed to have diagnosed the ischaemic heart disease and atherosclerosis that led to the heart attack.

Mrs Paul and her two daughters brought claims as secondary victims for psychiatric harm (as well as dependency claims). The defendant accepted it owed Mrs Paul a duty, but applied to strike out the claims of Saffron and Mya, an application which was granted by Master Cook.

On appeal from the decision of Master Cook, the Trust argued that there was no “external, traumatic event” (using the language of the Court of Appeal in Taylor v A Novo [2013] EWCA Civ 194); there was just the consequence of the alleged negligence (which, in this case, was the build up of disease process leading to a heart attack). The Trust argued that the claimants could not possibly have the required proximity, not having been present at the “scene of the tort”.

Chamberlain J allowed the appeal, holding that the reference to an external event was one external to the secondary victim; that at a strike out stage the claimant’s case that the heart attack was the first damage caused by the negligence is assumed; and that it could therefore constitute ‘the event’ from which the claimants could establish the necessary ingredients for secondary victim claims. The judge also held that, even if Mr Paul had suffered actionable damage from the alleged negligence before the heart attack, the claims could succeed.

Discussion

The principles of secondary victim claims are well established. The so-called ‘control mechanisms’ from McLoughlin v O’Brian [1983] 1 A.C. 410 and Alcock v Chief Constable South Yorkshire Police [1992] A.C. 310 are additional criteria keeping the gates to successful claims for secondary victims.

Claimants must establish close ties of love and affection with the primary victim; proximity in time and space to the negligence (directly witnessing the accident or event, or its immediate aftermath) and injury caused by ‘nervous shock’ that is foreseeable in a person of normal fortitude. Reasonable foreseeability of injury is not enough.

As in issue in this case, how does a claimant establish proximity in time and space?

The alleged negligence in Paul was treatment at the hospital (specifically, lack of testing and diagnosis). The claimants suffered injury over a year afterwards, far from the hospital. However, in Taylor v Somerset Health Authority [1993] PIQR 262, Auld J held that the claimant arriving at hospital around an hour after her husband’s heart attack at work, caused by the defendant’s failure to diagnose and treat heart disease many months before, could not succeed. There was no relevant event and the claimant was not in the ‘immediate aftermath’. Therefore, at first blush, it appears that Paul should have been struck out for the same reasons.

However, the reasoning in Taylor v Somerset did not turn on whether a heart attack (or any such event), months after negligence could ever constitute the relevant event. In Paul the pleaded ‘event’ would plainly be traumatic in a way beyond the arrest of a heart that occurred in Taylor v Somerset. This is not to say that there would be less sadness or grief – but that is exactly the sort of psychological effect for which damages are not recoverable.

It was not argued in Paul, rightly, that the claimants had to be present at the scene of the breach of duty. As Chamberlain J noted, there was nothing in the House of Lords authorities to suggest such a requirement, and, indeed the negligence leading to an event may have been months or years in advance. If the ‘relevant event’ in an accident case could be a year after the failure to assess risks and put in place preventative measures in respect of, say, a bridge collapsing, it seems reasonable to find that Mr Paul’s sudden collapse and death could be too. Further, Chamberlain J stated that there was no reason in principle why a secondary victim claimant should be required to know that the ‘relevant event’ was due to negligence, and whose negligence, in order to succeed in their claim.

The essential decision in the instant case that permits secondary victim claims arising from negligent acts or omissions several months earlier appears consistent with the first cases addressing so called ‘pure psychiatric harm’ – see Lord Wilberforce’s reference in McLoughlin to the ‘fact and consequence’ of the negligence, suggesting that the focus has been on psychiatric harm from witnessing the effects of negligence.

The requirement of proximity in time and space does, however, limit recovery in important respects. Secondary victim claimants do not have to be present at the scene of the breach, but must, if it occurs later, have proximity to the accident or damage caused by the breach. On the claimants’ case in Paul, the heart attack was the first such damage. I agree with the analysis that this means that the claims should not be struck out, by parity of reasoning with Taylor v Somerset, or otherwise.

However, one might think that even silent damage following the failure to diagnose the heart condition would in principle be actionable, following the determination on what constitutes actionable damage in Dryden v Johnson Mathey plc [2019] AC 403. In Paul, the judge found, obiter, that the claim could succeed despite this as “there was nothing that could naturally be described as an “event” before Mr Paul’s collapse” ([78] (unlike the situation in Taylor v A Novo). Therefore, such a case would turn on whether the ‘relevant event’ was the first time at which the damage became manifest in the primary victim.

This, I suggest, would mean that secondary victims could recover damages, provided that the event they witnessed was the first shocking event following a defendant’s negligence. This would be an extension of the well-known Alcock criteria that, whilst imperfect, have been reinforced many times to the point of being apparently impregnable.

Breach of duty, Duty of care, Expert Evidence

Pneumococcal meningitis judgment: SC v University Hospital Southampton NHS FT [2020] EWHC 1610 (QB)

In this post, Isaac Hogarth summarises the recent case of SC v University Hospital Southampton NHS FT [2020] EWHC 1610 (QB), which involved a failure to diagnose pneumococcal meningitis.

Introduction

This is the first High Court judgment in a meningitis case in over three years. On 26 January 2006, a GP examined C, who was then aged 15 months. Being concerned by what he found, he sent C to hospital in an ambulance with a detailed referral letter identifying his findings and diagnosing “ ?meningitis”. At hospital, the clinicians diagnosed tonsillitis and sent C home. C in fact had a pneumococcal meningitis, and developed a right hemiparetic cerebral palsy and permanent neurological deficit.

In his introduction, having set out the above facts, Johnson J makes clear that the case is in fact far more nuanced and complex than those facts make it sound. He urges caution on the reader not to pre-judge on the basis of those incomplete facts, and notes that D had supportive expert evidence that the diagnosis of tonsillitis and discharge were reasonable.

The Facts

The relevant timeline is as follows:

On 23 or 24 January 2006, C, who was a previously healthy 15-month-old girl, had a mild temperature and was a bit withdrawn. Her parents thought she might be teething and did not seek medical help.
On the morning of 26 January 2006, she developed a temperature, prompting her mother to call NHS Direct. At some point during the morning, C’s condition deteriorated: her temperature rose, she became “very lethargic” and “very lifeless”, she had “glazed eyes” and a “vacant stare”.
C was seen by her GP at 11:50 that day. She was noted to be very lethargic and floppy and to have vomited three times. Her pulse was 160-170 BPM, her respiratory rate was 36 and her temperature was 40.1°C. He noted possible photophobia. The GP gave an intramuscular injection of antibiotics and Calpol, and called an ambulance.
After arrival at hospital by 13:15, C was seen by SHO Dr Rowley at 14:00. The SHO performed a detailed examination, but her impression was one of tonsillitis, with meningitis being unlikely. C was admitted for observation, and to be given oral antibiotics. C’s parents repeatedly questioned the diagnosis of tonsillitis, and sought reassurance that meningitis had been ruled out.
The documented observations thereafter are limited.
At 18:40, C was seen by Dr Roe, Consultant. The note was as follows:

“Frequent contact with other children

Fully immunised

On examination: alert, miserable, walking around play area

Temp 40 ↓37.2 Normal respiratory rate No neck stiffness

Large inflamed pussy tonsils, ears not examined

Impression: tonsillitis

Plan: 5 days oral penicillin

Encourage fluids

Home, review tomorrow John Atwell Day Ward 2.15pm”

On 27 January 2006, C was still asleep at 10:00, when she normally awoke at 06:30. Her mother woke her, and found her to be ill and lethargic. Her parents took her back to hospital for her follow up.
Dr Roe saw her at 14:30 and recorded as follows:

“Reviewed

Better

Drinking a little Wet nappies

Still lethargic ++

On examination: awake and alert

Chest – clear

Pulse 120 Respiratory rate 28

Throat not examined

Impression: Resolving viral illness

Home

No follow up”

C’s condition did not improve. She had a high temperature on 28 January 2006.
On 29 January 2006, her mother had to wake her. C vomited when her mother attempted to administer medicine. C’s mother called the hospital to ask whether she could come back in but was told to wait. She saw another GP, who thought it might be an ear infection, and changed the antibiotic.
On 30 January 2006, C was seen by another GP who was concerned it might be meningitis and arranged for C to be seen at A&E.
Having been seen in A&E, C was admitted to paediatric ward at 14:20. Her parents requested a lumbar puncture (LP), but this was not done.
The following morning (31 January), C’s parents felt she had deteriorated and was twitching. Dr Roe saw C at 10:00. He still thought the likely diagnosis was tonsillitis, but in light of the deterioration, he considered an LP was appropriate. Bacteria were seen in the CSF, leading to a diagnosis of partially treated meningitis.
C’s condition deteriorated further. On 8 February 2006, her smile appeared “wonky”, and she was having trouble with her right arm. On 11 February, C’s parents were told she had had a stroke.
The agreed medical evidence was that as a result of pneumococcal meningitis C developed vasculitis, leading to an infected perforator infarction with adjacent oedema, involving her left basal ganglia. The infarction probably occurred between 7 and 9 February 2006. She was left with right hemiparetic cerebral palsy with neurological deficit.

The Issues

There were various issues of fact which fell to be determined, including whether there was neck stiffness on 26 January, and how alert C was throughout that day. The judge found that there was no clinical neck stiffness, and that although C was unresponsive to pain when injected by the GP, and arguably unresponsive in the ambulance, that, by the time she was examined in hospital (having been given antibiotics and Calpol), she was alert.

In their joint statement, the expert microbiologists agreed that C was suffering from both a viral tonsillitis and a pneumococcal bacteraemia, and that various of her symptoms were non-specific and could be attributed to either illness. However, they agreed that symptoms of floppiness and having a glazed expression could not be accounted for by viral tonsillitis and were consistent with pneumococcal bacteraemia. The Defendant’s expert was nevertheless of the view that these symptoms were not caused by pneumococcal bacteraemia, but by a high temperature.

On balance, the judge found (preferring the evidence of C’s expert) that C’s floppiness and glazed expression on 26 January were attributable to pneumococcal bacteraemia, and that the clinical improvement was down to the antibiotics.

The Judgment

The judge performed a helpful review of various clinical textbooks and guidelines. In relation to guidelines or toolkits that were not yet in place at the material time, he did consider them, but only on the basis that compliance with such guidelines would be evidence of the absence of negligence.

The judge recognised that the central question was whether the SHO and the Consultant on 26 January 2006 should have suspected that C had a serious bacterial infection so as to necessitate further investigations (including LP) and administration of intravenous (IV) antibiotics. This required an assessment of the weight to be attached to the findings made by the GP compared to those made in the hospital, in the context of the medication that had been provided.

It was found that the care by the SHO did not fall below the standard of a reasonably competent SHO. The plan which she formulated for admission and observation was reasonable. The level of observation thereafter was not reasonable, but was not causative of harm.

The judge carefully considered whether Dr Roe’s examination at 18:40 on 26 January 2006 was substandard. Whilst it was not unreasonable for Dr Roe to diagnose tonsillitis, he also had a duty, against the earlier findings of the GP, to rule out a serious bacterial illness. The earlier findings of possible photophobia, poor feeding, floppiness, lethargy, vacant expression, vomiting and high fever (at a level above that ordinarily associated with tonsillitis) are all identified by the textbooks as being associated with meningitis, and are not typically associated with tonsillitis.

The judge accepted the evidence of the Claimant’s expert paediatrician (Dr Ninis) that the only safe way to proceed was to perform an LP. The balance of evidence also suggested that IV antibiotics should have been administered, either the same day, or once pneumococcus had been cultured from the CSF within 24 hours.

At paragraph 116-117, the judgment reads:

“Once it is appreciated that there were signs of bacterial infection then not only did the textbooks mandate the use of intravenous antibiotics, the clear balance of risk pointed in that direction. There were potential disadvantages to their use if it turned out that they were unnecessary: they would commit C to staying in hospital rather than allowing her to be discharged home, they can have minor side-effects (commonly rash and diarrhoea) and inappropriate prescription is a major cause of antibiotic resistance. However, these potential disadvantages were limited. As against that, the potential disadvantages of not prescribing antibiotics if it turned out that C did have a serious bacterial infection were very significant, as the events of this case show […]

“Accordingly, assessed against the background of the textbooks and scientific literature of the time, and without reference to the guidance that was subsequently provided by NICE and by the Thames Valley & Wessex Screening Tool and by the UK Sepsis Trust screening tool, I consider that the standard of medical care fell below that which was required.”

The judge was unimpressed by the suggestion of the Defendant’s counsel that, if C’s case succeeded, it would have wide-ranging implications for the practice of paediatrics and the NHS, requiring more widespread use of admission, IV antibiotics and LP.

Causation was agreed between the parties, and therefore, the finding of breach on 26 January 2006 was determinative.

Learning Points

Whilst all such cases turn on their own facts, there are general points of interest to be drawn out from the judgment.

The judge placed a lot of emphasis on the guidance in place at the time in the leading paediatric textbooks, and the APLS training materials that were in place at the time. He referred also to NICE guidelines which post-dated the index events as a safety net, working on the basis that if the care fell within those guidelines, it was unlikely to be negligent.

It is often the case that experts (unless prompted) place more weight on their own experience and less on the literature. In cases such as this, and where eminent and experienced experts disagree, it is all the more important that there is material the Court can look to which is objective. It is advisable when instructing the experts to request a full literature review, particularly in reference to such materials as were available at the time of the alleged negligence.

The other key point is that the diagnosis of tonsillitis was not, in itself, wrong or negligent, but it did not, when carefully considered, properly explain all the signs and symptoms that were present. It will often be the case that a serious bacterial infection will ‘piggy-back’ on a less serious or resolving viral illness, as in this case, and on balance that is something the defendant clinicians failed to consider. In meningitis cases where a less serious illness is suspected or diagnosed in the first instance, the key question will be whether, in all the circumstances, that diagnosis can be maintained.

Isaac’s book, ‘A Practical Guide to Sepsis and Meningitis Claims’ is available here [http://www.lawbriefpublishing.com/product/sepsisandmeningitisclaims/]

Legal reform, Secondary Victims

Secondary victim claims in clinical negligence actions

In this article, Ronald Walker QC gives his thoughts on why he considers that the recent appeal case of Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 was wrongly decided.

In 1968 Quintin Hogg Q.C. (the future Viscount Hailsham L.C.), writing in Punch magazine, described a decision of the Court of Appeal as “a strange example of the blindness which sometimes descends on the best of judges”[1]. Well here’s another one.

In Paul v The Royal Wolverhampton NHS Trust [2020] EWHC 1415 (QB) Chamberlain J allowed the claimants’ appeal from the order of Master Cook [2019] EWHC 2893 (QB) striking out their claims for damages for psychiatric injury allegedly suffered when they witnessed the collapse of their father in the street following a fatal heart attack in January 2014.

The facts

The deceased, who suffered from ischaemic heart disease and occlusive coronary artery atherosclerosis, had been admitted to the defendant’s hospital in November 2012 and discharged without appropriate cardiac investigations being undertaken. The claimants’ case was that coronary angiography should have been performed, which would have revealed significant coronary artery disease which could and would have been successfully treated by coronary revascularisation, and that had this taken place he would not have suffered the cardiac event in 2014.

The issue: proximity

The claimants, as secondary victims, had to satisfy the criteria for the imposition of liability formulated by the House of Lords in McLoughlin v O’Brian [1983] 1 AC 410 and Alcock v Chief Constable of South Yorkshire Police [1992] AC 310. It was agreed between the parties that the only issue was whether they could satisfy the criterion of “proximity”.

Proximity is a familiar legal concept in the law of negligence generally. It describes the relationship between parties which is necessary in order to found a duty of care owed by one to the other, i.e. for them to be Donoghue v Stevenson “neighbours”. This may be termed “proximity in law”. However, in secondary victim actions, where the claimant’s perception of a qualifying (i.e. sufficiently horrifying) “event” (or its “immediate aftermath”) is a necessary condition for liability, the word is used, in a second and separate sense, to describe the secondary victim’s propinquity in time and space to an event which is necessary to enable the secondary victim to maintain an action against the tortfeasor, a shorthand description of which would be “proximity in fact”.

The dispute between the parties in the present case was as to the point in time at which proximity in fact needed to be established. The claimants’ case was that this was the occurrence of the qualifying “event” (in the present case the collapse and death of their father); the defendant’s case was that it was the occasion of commission of the tort, which was when the primary victim first suffered actionable damage (this being on or soon after failure to diagnose or treat his vascular disease).

This question will arise in cases where the secondary victim sustains psychiatric injury in consequence of perceiving not the commission of the tort, or the primary victim’s initial injury (either or both of which might be described as the “accident”), as opposed to some later “event”. It may therefore typically arise in a clinical negligence action where there is negligent treatment resulting in a latent pathology, which manifests itself in the patient’s injury or death at a later time; alternatively (as alleged in the present case) a failure to diagnose and/or treat an existing condition, which failure eventually causes injury, or death.

But the issue only arises where there are two separate events, (1) the commission of the tort, and (2) the subsequent occurrence of injury or death. So it would not arise in a case where, for example, a garage negligently serviced a car, which negligence caused the brakes to fail and the owner to drive the car off a cliff some time later. Although the owner’s cause of action in contract arose when the work was negligently performed, his cause of action in tort did not arise until he drove the car off the cliff. It would follow that the secondary victim who saw the accident could satisfy the criterion of proximity. Likewise no problem would arise in a clinical negligence action where there is no evidence that the defendant’s negligence caused any injury or damage until the later fatal event.[2]

The authorities

The issue does not arise where the qualifying event (injury to or death of the primary victim) is synchronous with the commission of the tort, as will be the position in most accidental injury cases. The accident, injury and/or death will all have been sufficiently close in time to form part of a single “event” to which the secondary victim may or may not be in a position to prove proximity – which depends upon his having witnessed the event or its immediate aftermath.

It did not, therefore, arise in any of the House of Lords cases, McLoughlin, Alcock, Page v Smith, Frost v Chief Constable of South Yorkshire Police, in which the elements of secondary victim liability had been judicially defined. It follows that reference to passages in the speeches in those cases to “proximity to the accident” or “proximity to the event” tells us nothing about what the answer should be where the qualifying event relied upon by the secondary victim post-dates the “accident” or commission of the tort.

However, the issue of what is the relevant occasion for the existence of proximity in fact in a “two event” case had been decided by the Court of Appeal, in Taylor v A.Novo (UK) Ltd. The primary victim was the claimant’s mother, who had suffered injuries to her head and foot when some boards fell on to her while she was at work, due to the negligence of her employer, the defendant. About 3 weeks later she collapsed and died as a result of pulmonary emboli caused by her injuries suffered in the accident. Her daughter, who suffered psychiatric injury as a result of witnessing the death, sued as a secondary victim. Her action failed; there had been two distinct events, (a) the sustaining of injury in the initial accident, and (b) the subsequent pulmonary emboli which caused her death. The “event” to which the claimant needed to prove proximity was (a), rather than (b). As Lord Dyson MR stated, at [32]

A paradigm example of the kind of case in which a claimant can recover damages as a secondary victim is one involving an accident which (i) more or less immediately causes injury or death to a primary victim and (ii) is witnessed by the claimant. In such a case, the relevant event is the accident. It is not a later consequence of the accident. ..Ms Taylor would have been able to recover damages as a secondary victim if she had suffered shock and psychiatric illness as a result of seeing her mother’s accident. She cannot recover damages for the shock and illness that she suffered as a result of seeing her mother’s death three weeks after the accident.

The ratio decidendi of this decision is, therefore, that in secondary victim cases proximity must be proved at the date of the event which completes commission of the tort (which may conveniently be described as the “scene of the tort”), and proximity at the date of subsequent injury is insufficient.

The judge’s decision

Nevertheless, Chamberlain J allowed the claimants’ appeal from the decision of Master Cook[3] striking out the claims on the ground that they were bound to fail. His reason for so doing was that, for the purposes of the strike out application, he had to proceed on the factual basis most favourable to the claimants, which was that Mr Paul had suffered no damage prior to the moment of his heart attack, which was itself therefore the “scene of the tort”; in other words this was arguably not a “two event” case. True it of course is, that on a strike out application under CPR 3.4(2)(a) the court is limited to considering whether the statement of case discloses reasonable grounds for bringing the claim. Accordingly if the particulars of claim had averred that Mr Paul had suffered no damage prior to his heart attack, the court would have been required to assume that this averment was true. However it does not appear from the report that the particulars of claim did so aver, as opposed to alleging that Mr Paul’s collapse was the “first manifestation of the Defendant’s breach of duty”. It is trite law that damage sufficient to complete the tort may occur without the victim being aware of the same (Cartledge v Jopling); it would seem to follow that “manifestation” of the defendant’s breach of duty is not a relevant occurrence, unless the word is intended to describe the point at which damage has been suffered. But if such be the case Mr Paul clearly had suffered damage due to the defendant’s breach of duty before his collapse. On the claimants’ case, when he left hospital he had partially blocked coronary arteries, with consequent risk of cardiac failure, whereas had he been treated with due care, these blockages would have been wholly or partially eliminated. He was therefore “worse off” than he would have been but for the defendant’s negligence; this was “damage” sufficient to complete his cause of action in anyone’s language[4]; cf Grieves v FT Everard & Sons Ltd (the pleural plaques litigation)[5] and Dryden v Johnson Matthey plc.[6]

In fact, as appears from the judgment of Master Cook, it does not seem to be the case that Mr Paul’s collapse in 2014 was the first “manifestation” on any view. He had been admitted to hospital in September 2013 with a two to three week history of breathlessness and had undergone an ECG which showed significant abnormalities. Be that as it may, even if Chamberlain J’s decision on the strike out application might have been justified, it is difficult to see how, if he was applying the “scene of the tort” test, he could have failed to conclude that the defendant was entitled to succeed on its summary judgment application under CPR 24.2, i.e. on the ground that the claimants had no real prospect of succeeding. Even if Mr Paul’s coronary artery disease (which on the claimants’ case should have been successfully treated) had not “manifested” itself to him or anyone else, it would ex hypothesi obviously have been visible on a coronary angiogram. This was therefore plainly a two event case.

Obiter dicta

Having allowed the claimants’ appeal on the narrow ground that, on the face of the claimants’ pleaded case, it was arguable that no tort had been committed prior to January 2014, the judge went on to consider what the position was if the defendant’s negligent failure of diagnosis had given rise to actionable damage at the time. He opined that the answer was that the claimants could still succeed because the qualifying “event” (which was the point at which proximity needed to be established) would still be the collapse in 2014, and not the damage which completed Mr Paul’s cause of action, because the relevant “event” only occurred when the same became “manifest” or “evident.” He therefore distinguished Taylor v Novo on the ground that in that case, unlike the present, there had been an “evident“ event (the collapse of the shelving on to Mrs Taylor) at the scene of the tort, whereas in the present case there had not.

Discussion

The judge’s obiter dicta, if correct, would represent a significant extension to the scope of liability to secondary victims that has been recognised in any previous case. It would mean that a secondary victim’s cause of action could arise long, even potentially many years, after the commission of the defendant’s tort against the primary victim. This would seem inconsistent with the “thus far and no further” prescription of Lord Steyn in Frost v Chief Constable of South Yorkshire Police, with which Lord Hoffmann and Lord Browne-Wilkinson agreed in that case, and which was one of the two stated reasons for the Court of Appeal’s decision in Taylor v Novo.

It is also difficult to see why, in principle, successive secondary victims could not succeed if each witnessed a different sufficiently horrifying event caused by the defendant’s tortious act. Take, for example, the case of a young child who suffers brain damage as a result of the defendant’s clinical negligence. The damage causes no immediately evident signs or symptoms but in fact gives rise to a significant epilepsy risk (so that the tort is complete). The child begins to suffer alarming and distressing fits some years later. The first is witnessed by his mother, the second by his father and the third by his sister, all of whom suffer psychiatric injury. Can all three successfully sue the defendant, or if not, why not? Chamberlain J, at [79], suggested not, stating “If it is necessary to identify a stopping point after which the consequences of a negligent act or omission can no longer qualify as an ‘event’ giving rise to liability for psychiatric damage in a secondary victim, the most obvious candidate is the point when damage to the primary victim first becomes manifest or, as Swift J put it in Shorter, ‘evident’”. But, while this may be a pragmatic solution, it is difficult to identify any principle underlying it. In the example of the epileptic child above postulated, why should only the first observer succeed and the others not? Surely each has a distinct cause of action independent of the others. What if it could not be proved which of them was the first to witness a fit? Presumably none of them could succeed. Also, supposing medical evidence established that the child must have had an earlier, unwitnessed, fit. Again, presumably none of the family could succeed. These would surely be arbitrary and, more importantly, unprincipled consequences.

Nor is it easy to understand, for the purpose of distinguishing Taylor v Novo, the principled distinction between injury which is “manifest” or “evident”, (presumably to the naked eye), and one which is visible only via an angiogram or EEG or some other form of scan. If one of the family of the epileptic child above referred to happened to be a radiographer, he or she might equally have found the brain scan horrifying.

None of the above anomalies and illogicalities exists if the analysis contended for by the defendant in this case is accepted, namely that proximity between the defendant and the secondary victim must be assessed at the time of the commission of the tort against the primary victim. Had that approach been adopted the judge should surely have concluded that the claims were bound to fail. Mr Paul suffered damage caused by the defendant’s assumed negligence, at the latest, on the date when if correctly diagnosed he would have undergone successful treatment for his coronary artery disease. He was then “worse off” than he would have been but for the defendant’s negligence. The decision in Taylor v Novo should have bound the judge to hold that to be the moment at which the proximity test needed to be satisfied, but could not be.

[1] This was held not to amount to a contempt of court: R v Metropolitan Police Commissioner. Ex parte Blackburn (No.2) [1968] 2 QB 150.

[2] Cf Werb v Solent NHS Trust (Master Roberts, 15 March 2017, unreported)

[3] [2019] EWHC 2893 (QB)

[4] It is a moot point whether the cause of action arose when Mr Paul should have been, but was not, advised of his disease and the need for remedial treatment, or on the date when, if correctly advised, he would have undergone the successful treatment.

[5] [2008] 1 AC 281

[6] [2019] AC 403

Current Affairs, Duty of care, Legal reform, Medical ethics

Standard of care in a clinical setting during the Covid-19 crisis

In this article, Isaac Hogarth discusses the issue of the standard of care to be applied to redeployed doctors in a Covid-19 setting. He suggests that legislation would be required to lay down any proposed modifications to the standard of care.

Introduction

The Coronavirus pandemic is putting an unprecedented strain on NHS services, and on the healthcare professionals providing those services. In addition to the fact that doctors and nurses are facing a personal risk of exposure to Covid-19, in many cases without proper personal protective equipment, doctors are also being required to work outside of their own specialisms in order to enable sufficient cover of Covid, medical, A&E and ICU wards. Whilst the BMA has advised its members not to accept redeployment outside of their competence, in the present crisis, it may be the case that individual doctors have little choice (or feel that they have none).

This raises important questions about the standard of care to which those doctors will be held where they may lack the training or experience that would otherwise be expected. These questions are important both from a patient perspective (in terms of the standard of care they receive) and from a doctor perspective (in terms of knowing what is expected of them). One can easily anticipate the sorts of issues that could arise in an acute setting: missed heart attack, stroke or sepsis, or a failure to diagnose a fracture. What then is the applicable standard of care for a paediatric trainee required to work on an adult respiratory ward? Or a radiologist required to work a shift in A&E?

The law on standard of care

The starting point when considering standard of care in a clinical negligence claim will usually be the test set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582: was there an act or omission which fell below a proper standard according to a responsible body of medical opinion within the field? The law of tort does not generally make allowances for whether a tortfeasor is experienced or a beginner, as in the learner driver case of Nettleship v Weston [1971] 2 QB 691. But can the court make allowances for the particular experience of the individual doctor?

The higher courts have considered the question of whether the experience of the individual doctor can be taken into account when determining if an act or omission constituted a breach of duty. In Wilsher v Essex Area Health Authority [1987] QB 730 (which went to the House of Lords on a separate point), the Court of Appeal had to consider the standard to which a junior doctor, who inserted a catheter into a vein rather than an artery, should be held. There were three alternative arguments on standard of care put before the Court:

The “team” standard, whereby each person who formed any part of the specialised team would be held to the standard of being able to perform the specialised procedures the unit set out to perform. The Court dismissed this standard, stating “If it seeks to attribute to each individual member of the team a duty to live up to the standards demanded of the unit as a whole, it cannot be right: for it would expose a student nurse to an action in negligence for a failure to possess the skill and experience of a consultant.”

That the junior doctor ought to be judged to the standard that would reasonably be expected of him with regard to his individual formal qualifications and practical experience. This formulation is of particular interest in the present circumstances. The Court of Appeal rejected this formulation on the following basis:

“If correct, this proposition entails that the standard of care which the patient is entitled to demand will vary according to the chance of recruitment and rostering. The patient’s right to complain of faulty treatment will be more limited if he has been entrusted to the care of a doctor who is a complete novice in the particular field (unless perhaps he can point to some fault of supervision in a person further up the hierarchy) than if he has been in the hands of a doctor who has already spent months on the same ward: and his prospects of holding the health authority vicariously liable for the consequences of any mistreatment will be correspondingly reduced.

To my mind, this notion of a duty tailored to the actor, rather than to the act which he elects to perform, has no place in the law of tort.

…

To my mind, it would be a false step to subordinate the legitimate expectation of the patient that he will receive from each person concerned with his care a degree of skill appropriate to the task which he undertakes, to an understandable wish to minimise the psychological and financial pressures on hard-pressed young doctors.”

That the standard be based not on the individual doctor, but on the post they fulfil. It was put as follows: “In a case such as the present, the standard is not just that of the averagely competent and well-informed junior houseman (or whatever the position of the doctor) but of such a person who fills a post in a unit offering a highly specialised service. But, even so, it must be recognised that different posts make different demands. If it is borne in mind that the structure of hospital medicine envisages that the lower ranks will be occupied by those of whom it would be wrong to expect too much, the risk of abuse by litigious patients can be mitigated, if not entirely eliminated.”

The third of these tests was adopted, and has since then been the applicable legal test when determining standard of care.

It should be noted that, whilst Mustill LJ refers to the need to make allowance for “battle conditions” where an emergency may overburden the available resources, that is a means of making allowances for errors made by an overstretched clinician with too much to do (“because their attention was distracted by having to do something else at the same time, or because they had to take a difficult decision on the spur of the moment”) rather than changing the standard to allow for cross-cover that would in ordinary circumstances be totally inappropriate.

Wilsher has twice been revisited by the higher courts in recent years, firstly by the Court of Appeal in FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334, and then more recently by the Supreme Court in Darnley v Croydon Health Services NHS Trust [2018] UKSC 50.

In FB v Rana, a pneumococcal meningitis case, the claimant was a 13-month-old child who attended A&E having been unwell for 11 days. A junior doctor took a detailed history, but that history did not elicit the fact that the claimant’s eyes had been rolling, which it was agreed between the experts would have led to more senior review, IV antibiotics, and would have resulted in a full recovery. The key legal question was the standard at which a Senior House Officer (SHO) was required to take a history in A&E, the judge having found that a more experienced doctor would have asked more specific questions and successfully elicited the key fact.

In her leading judgment, Thirwell LJ stated that what the Court is concerned with in any given case is the particular “task” being performed: “whether it be the delivery of a baby, the examination of a patient, the performing of surgery, the taking of a history and so on”. In her judgment, the standard of competence required in relation to any given task would be the same, whether it is performed by a junior doctor or a consultant. As such, the Court of Appeal concluded that the same facts ought to have been elicited by an SHO as by a consultant, because there is only one standard in relation to each medical task.

Whilst it was not appealed (most probably because the Court also made clear that, even judged by the standard of a reasonably competent SHO, the history was negligent), this judgment has introduced a slightly different test to that set out in Wilsher, where the Court of Appeal had specifically rejected the “team” standard, and settled on a standard judged by the post being fulfilled (with such posts being related to seniority).

In Darnley v Croydon, the claimant had sustained a head injury. He attended A&E and was wrongly informed by a receptionist that he would not be seen for four to five hours, when in fact he would have been seen by a triage nurse within 30 minutes. He went home, collapsed and suffered permanent brain damage. Whilst the receptionist was not a clinician, the Court still considered the question of standard of care. Having made explicit reference to the test in Wilsher, Lord Lloyd-Jones JSC restated the test as follows:

“A receptionist in an A & E department cannot, of course, be expected to give medical advice or information but he or she can be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance. The standard required is that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care.”

That confirms beyond any doubt that the relevant standard of care is judged by reference to the post held by the person who is said to have been negligent.

Consideration of established principles in the context of Covid-19

In the present crisis, for reasons that are understandable (namely higher numbers of adult medical and ICU patients, combined with insufficient staff numbers to cover those wards), doctors who do not normally treat adult medical, A&E or ICU patients are being asked to do so. Anecdotally, this includes doctors who do not generally treat on medical wards at all, such as radiologists and psychiatrists, as well as surgeons being asked to cover medical wards and paediatricians being asked to cover adult wards (albeit that according to NHS England guidance “all redeployed doctors should be appropriately supervised when delivering clinical care”). To state the obvious, it is not only Covid patients who are being treated by these doctors, but also adult patients in general. Doctors who have not done general medical or A&E cover since the very early years of their training may be required to recognise and treat medical emergencies such as strokes and heart attacks, without any or any recent experience in doing so. As noted above, the BMA has advised its members not to accept redeployment outside their competence, although in the real world (and where doctors are trying their best to cover rota gaps), it is probably unrealistic to expect all redeployed doctors to have the relevant up-to-date training. It is inevitable that this will lead to challenges in patient safety, and it is probable that some patients will suffer harm.

The NHS has attempted to guard against this by introducing a series of “COVID-19 rapid” guidelines, some of which are specifically designed for doctors acting outside their own area of specialism. The courts will doubtless be asked to reconsider in the present context whether the Wilsher test can be fair or appropriate when, even exercising reasonable care and skill, doctors and NHS trusts will (in some cases) have been unable to staff wards with suitably experienced medics. It is therefore all but inevitable that defendant trusts will seek to re-argue the second of the tests suggested in Wilsher (i.e. the clinician should be judged with reference to their qualifications and experience) in the context of these Covid-19 cases. The reason for this is obvious: it would enable the Court to make allowance for the fact that a gynaecologist covering A&E might be slower to spot meningitis than an Emergency Medicine consultant.

There are two major problems, however. The first is that (as has been recognised by the Courts in the aforementioned cases), as a matter of generality, a patient’s legitimate expectation in relation to their standard of care ought not to be impacted by the question of their treating doctor’s experience or training. It is otherwise the case, as considered in Wilsher, that a patient’s right to complain will be less if he has been treated by a novice than if he has been treated by an expert. The second is that, as the present law is a common law test that has been carefully formulated by the higher courts (and especially as it has recently been restated by the Supreme Court), it is probably the case that in order to depart from it for reasons of policy, Parliament would be required to legislate. This is particularly likely considering Parliament’s willingness to legislate (with some efficiency) on Covid-related matters in passing the Coronavirus Act 2020. As a matter of general jurisprudence, it should be for Parliament rather than the Courts to legislate in response to an emergency situation. It is notable that whilst the Coronavirus Act contains provisions to ensure that redeployed health workers are indemnified (see section 11(3)(b)), is does nothing to alter the standard of care under which they are required to operate.

It is suggested that any such legislation should be narrow in its terms so as not to curtail important patient rights. Doctors who are fulfilling these posts will still be capable of negligence, even when judged in reference to their own experience. One can easily anticipate claims arising from sepsis, strokes and heart attacks (for example), all of which have extremely accessible treatment protocols which should be readily on hand for anyone on an acute or A&E ward. Patients who suffer harm in such circumstances should not be shut out from bringing claims on account of the current crisis in cases where obvious textbook signs and symptoms were missed (any more than they would be in a non-Covid scenario but in circumstances where one might have sympathy with the treating doctor for some other reason: i.e. the treating doctor had just worked a week of night shifts, or had recently returned from parental leave).

There may be a question as to whether retrospective legislation impacting upon the rights of patients is contrary to their human rights. This is a stand-alone topic worthy of its own consideration, but I would suggest that there would be a sufficient public interest in such legislation (in order to protect the NHS and healthcare workers within it) that retrospective effect would be justified.

Unless or until such legislation, however, the Courts will be bound by the authorities. That being the case, any legislation which is anticipated should be made sooner rather than later in the interests of clarity.

Breach of duty, Mediation, News, Quantum

William Audland QC and Isaac Hogarth of 12KBW achieve online mediated settlement of catastrophic blindness claim secondary to raised intra-cranial pressure

William Audland QC and Isaac Hogarth of 12 King’s Bench Walk, instructed by Stewart Young of Stewarts successfully represented the claimant (“C”) in his claim against Imperial College Healthcare NHS Trust (“D”), achieving a settlement of £4.3 million at a video mediation.

The claim arose from a delay in treating raised intracranial pressure secondary to cerebral venous thrombosis (CVT).

C was a young man in his early thirties. In July 2015, he had been referred to hospital by an optometrist who noted that he was suffering from raised optic discs. He had also suffered from migraine-like symptoms including debilitating headache and blurred vision.

He was then seen by a consultant ophthalmologist in September 2015, who noted bilateral swollen nerve heads, but no other ongoing symptoms. The ophthalmologist made an ‘urgent’ referral to neuro-ophthalmology at the defendant trust.

In late October 2015, C was ultimately seen by a consultant ophthalmologist employed by D. An examination of the eyes confirmed bilateral papilloedema (optic disc swelling). C was sent for a CT head scan, which came back clear. C’s case was that it was mandatory at this point to perform a CT venogram, and lumbar puncture. Either would have diagnosed raised intracranial pressure, and a CT venogram would have confirmed the presence of CVT. A lumbar puncture would also have relieved the elevated intracranial pressure, and would have prevented his loss of sight.

C was discharged to the care of his GP, who was asked to make a neurology referral. There was also a plan for ophthalmology follow-up in four weeks.

When C returned in November 2015, the notes from his previous attendance had been lost. He was increasingly symptomatic and reported headaches, dizziness and some blurring of vision in the previous week. The ophthalmologist recorded that the optic discs were less swollen and with early “champagne cork” appearance. He made a non-urgent neurology referral, but did not arrange any urgent investigations.

In December 2015, C suffered a catastrophic deterioration. He started to experience headache, followed by light sensitivity, dizziness and vomiting. He subsequently awoke to find he was unable to see properly.

When he was assessed in hospital, an MRI and lumbar puncture were performed, both of which demonstrated significantly raised intracranial pressure. A CT venogram demonstrated CVT.

In January 2016, C had a ventricular peritoneal shunt inserted. Unfortunately, his vision continued to deteriorate. He is severely sight impaired with visual acuity of 6/36 in his right eye, and 6/48 in his left eye, and very narrow tunnel vision in both eyes. It was likely that his vision would continue to deteriorate over the next 10 years. He also suffered from a significant psychiatric injury in the form of a severe major depressive episode.

He would require a significant level of care, aids and equipment and adapted accommodation.

Liability was disputed.

The Mediation

The mediation took place over a period of six hours via Microsoft Teams. The mediator had invited both sides to participate in an initial joint meeting for the purposes of the mediation, and had created multiple channels or rooms that allowed each party to hold confidential talks, and a separate room for joint sessions. Each party’s own virtual ‘conference room’ was locked so that the other side was unable to enter.

The technology allowed a mediation that was very close to ‘the real thing’ and allowed C to attend from home. Even when the Covid-19 crisis is over, it will be worth remembering that some catastrophically injured claimants, particularly those who are very anxious about leaving their homes, may prefer to attend remotely.

Quantum

Although liability was disputed, the key battleground was quantum. The most contentious heads of loss were future care and case management, and accommodation.

Whilst D had accepted a lifelong need for care, there was a dispute over the number of hours and the level of case management required. There was also a dispute about whether C would use an agency carer or would directly employ his own carer.

A periodical payment of £40,000 for care and case management was ultimately agreed. This essentially reflected a directly employed carer at four-and-a-half hours per day, and approximately 50 hours a year of case management.

It was agreed that C required adapted accommodation, and would benefit from the use of assistive technology.

One of the aids that C was most excited about was the Orcam MyEye (https://www.orcam.com/en/myeye2/). This is a small device with a smart camera that attaches to a glasses frame. It helps sight impaired people to understand text, recognise faces and identify objects.

Settlement

Overall, the claim settled for a lump sum and periodical payments with a total value of approximately £4.3 million.

Foreign claims

Cross-border clinical negligence: Harry Roberts v (1) SSAFA (2) MOD v AKV (Part 20) [2020] EWHC 994 (QB)

In this blog post, 12KBW pupil Cressida Mawdesley-Thomas looks at the recent case of Harry Roberts v (1) SSAFA (2) MOD v AKV (Part 20) [2020] EWHC 994 (QB), which involved allegations of clinical negligence arising out of the claimant’s birth in a German hospital serving British military personnel and their families. The judgment relates to the issues of applicable law and limitation rather than substantive clinical negligence matters; however, it is useful for practitioners dealing with claims where the index treatment has occurred abroad.

The Facts

Mrs Roberts gave birth to the claimant, Harry, in June 2000 at the AKV hospital in Germany. Harry was born in Germany because his father was serving in the UK armed forces and the family lived in military accommodation there. Harry suffered from acute profound hypoxic brain injury, resulting in significant disabilities, which was alleged to have been due to the negligence of a midwife. This midwife was employed by the Soldiers, Sailors, Airmen and Families Association (“SSAFA”), the first defendant, but worked at the AKV hospital, the Part 20 defendant. The claimant’s claim against the first and second defendants was issued out of the High Court on 31 December 2004.

The MoD’s provision of secondary medical care in Germany for servicemen and their dependents was made through a complex series of arrangements and has been the subject of previous proceedings. In short, SSAFA was responsible for the provision of general and community nursing under a contract with the MoD. The MoD also entered into a contract with Guy’s and St Thomas’s Hospital NHS Trust (“GSST”) for procurement of all non-emergency secondary care, which was fulfilled by GSST entering into contracts with the German providers, one of which was the AKV hospital. Accordingly, the SSAFA-provided English midwives were required to work to English standards, but in a German hospital under the direction of the German system and to German standards. This created tensions, particularly as German birth practices were more clinician-led than midwife-led.

In this case, Mrs Justice Foster gave judgment on two preliminary issues arising out of the claimant’s claim: (1) whether German law applied; and (2) if so, whether the claim was time-barred under German law or whether the defendants were not entitled to rely on any limitation defence. Overall, the judge held that German law applied and that the claim was not time-barred. However, Mrs Justice Foster went on to say that, if the claim was time-barred, the German limitation period should be disapplied on account of the undue hardship it would cause.

Determining the Applicable law under PILA

There was no dispute between the parties that the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”) applied. This is because the alleged negligence took place in 2000 and the Rome II Regulation on the law applicable to non-contractual obligations only came into force on 11 January 2009.

The Relevant PILA Provisions

Section 11(1) reads as follows: “The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur.”

However, the general rule may be displaced under s.12(1) if the factors which connect the tort with one country show that it is “substantially more appropriate” for that country’s law to apply. The factors to be taken into account, per s.12(2), are “factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events.”

Counsel for the claimant agreed German law was applicable under s.11 of PILA but relied on s.12 to argue that the general rule should be displaced. The judge examined the different factors which connected the tort to Germany and England, which are set out below:

German Law Factors	English Law Factors
The midwife was part of a German obstetric team, led by a German obstetrician in a country where perinatal care is led by obstetricians, not midwives.	The claimant and defendant were English.
The tort took place entirely in a German hospital.	The claimant’s father was in the service of the British Crown.
All antenatal care took place in Germany.	The defendant employer of the alleged tortfeasor, and its indemnifier, the MoD, are UK- based and represent UK institutions.
The presence of the Roberts family in Germany was not transitory, so they could not be classified as temporary visitors.	The defendant midwife was trained in England and posted to Germany to offer an English-type service.
The alleged negligence of the midwife was wholly bound up with the procedures and expectations of the German obstetric system, and with this her interrelationship with the German doctors and the hospital (which elements would necessarily be governed by German law).	English midwives were required to adhere to their English registration requirements when practising abroad.
The MoD was providing a German hospital obstetrics system for UK service personnel and their families, albeit they sought to ameliorate the experience by employing English-trained midwives.	The alleged negligent midwife, as a registrant of the (then) UKCC, could be called to account by reference to the standards deriving from her British registration as a midwife.

The table illustrates that the evaluation of factors for determining the applicable law is fact-dependent. In the instant case, the judge observed that the English midwives were merely “grafted on” to a German obstetrics team working in a German hospital. It is also worth highlighting that, in respect of PILA, trying to persuade a judge that the law of the country where the tort occurred should be displaced will be an uphill battle. Mrs Justice Foster cited ‘Dicey, Morris & Collins on the Conflict of Laws’ (15^th Ed.) which states “The provisions of s.12 have been applied to displace the law applicable under s.11 on very few occasions.”

Limitation under German Law

Whether the Claim Was Time-Barred

The judge then determined whether the claim was time-barred under German law (there was no dispute that German law had to be considered, as per s.1(a) Foreign Limitation Periods Act 1984 (“FLPA”)). Under German law, a party has three years to bring a claim, but the time only starts to run once the claimant has knowledge that there has been misconduct or a deviation from accepted standards. The claimant will not be imputed with knowledge or expected to “join the dots” to deduce that a required standard had not been met. Accordingly, the claimant’s mother only had the necessary knowledge to start time running when she received a letter in June 2004 which implicated the midwife as being negligent. As a consequence, when the claim was brought in December 2004, it was not out of time under German law.

Disapplication of the Foreign Limitation Period

Mrs Justice Foster went on to consider, if she was wrong in holding that Harry’s claim was not out of time under German law, whether the limitation period could be disapplied. A foreign limitation period can be disapplied pursuant to s.2 of the FLPA where it would “conflict with public policy” or “cause undue hardship”.

Public Policy

The judge was reminded that the disapplication of a foreign limitation period under s. 2(1) of the FLPA on the grounds of public policy is only exceptionally successfully invoked. The foreign law must outrage an English court’s “sense of justice or decency” and be “manifestly” incompatible with English public policy (per Scarman J in The Estate of Fuld, deceased (No.3) [1968] at p.675). This test will not be met simply because the foreign limitation period is less generous than the comparable English provision (Durham v T&N plc 1 May 1996 Court of Appeal, unreported). Further, the fundamental principle of justice with which it is said the foreign law conflicts must be clearly identifiable, and the principle must be evident in English law. It was also noted at [155] when citing ‘McGee, Limitation Periods’ (8^th ed.) that “[l]imitation law is about balancing the interests of claimants and defendants and different states may legitimately take different views about where the proper balance lies. Judges should be very slow indeed to substitute their views for the views of a foreign legislature.”

Accordingly, it was held that the German law of limitation, which does not recognise the disability of the claimant (unlike in England and Wales where it abrogates the limitation period of 3 years), was not contrary to public policy. Mrs Justice Foster stated at [182] that “there is no public policy offence in the disparity between the English policy decision to remove limitation in the case of a disability such as that suffered by Harry, and/or to afford protection to a claimant during their minority, and the German system which does not protect these classes of claimant in this way.”

Undue Hardship

The disapplication of the limitation period on the basis of undue hardship under s.2(2) FLPA was also a high bar to meet. Mrs Justice Foster observed at [181] that (emphasis added) “… the hardship suffered must be properly described as over and above the hardship that is inevitably caused by the application of the foreign limitation period itself. I interpret “hardship” as meaning significant detriment, since the statute indicates is a subset of the notion of “public policy”. It must therefore be a detriment of real significance which should not be countenanced.” It was also noted that the case law (summarised at [172] and the subparagraphs thereto) “compels a highly fact sensitive assessment of undue hardship”. The judge found that this case concerned “a badly affected victim of cerebral palsy, and a primigravida giving birth in a foreign country” and that “it would be a disproportionate application of the law contrary to public policy, to deprive her of her action on behalf of her son” [185]. Accordingly, it was held (albeit obiter) that the German limitation period should be disapplied on the basis of undue hardship. Mrs Justice Foster expressly rejected the defendant’s submission that the claimant had failed to adduce sufficient evidence of undue hardship, and she concluded that it was clear from the evidence available and the “unusual circumstances” of the case [282].

Comment

These issues are unusual for clinical negligence claims, and certainly most of the cases summarised on this blog centre on allegations of negligence against healthcare providers based in England and Wales. Of particular note was the military setting of this case, which gave rise to the complex arrangements of control over the midwife against whom the allegations were focused. This case is helpful in setting out some of the considerations that the court will have when faced with cross-border clinical negligence claims, most importantly applicable law and limitation. With a cross-border case, it is crucial to ensure that, where foreign law might apply in respect of limitation, the claim is within those time limits too and not just within those time limits provided under the law of England and Wales.

Breach of duty, Current Affairs, Duty of care, Editorial messages, Legal reform, News

COVID-19 and Clinical Negligence Claims

Here, Henry Charles, Michael Brace and Lizzie Boulden explain why they consider that COVID-19 related clinical negligence claims arising out of redeployed healthcare professionals are unlikely to succeed on the present law. This should provide considerable comfort to healthcare professionals who are not only bravely risking their lives, but who are also working in unfamiliar roles in the national effort to fight the pandemic.

We acknowledge and applaud the brave and selfless work being done by support staff, nurses and clinicians. Neither they nor the NHS should be looking over their shoulders for claims in these difficult times. The emergency powers provide for indemnity for personal injury claims in tort arising out of the current circumstances [1]. However, whilst there are presently no claims, it still leaves the providers of the indemnities i.e. NHS Resolution, private hospitals and others exposed, and the clinicians, nurses and support staff would still be faced with the burden of a claim if one was brought.

Sadly, we hear that some lawyers may be trying to create interest in clinical negligence claims arising out of COVID-19, in particular, we presume, from the redeployment of clinicians and nurses, and the use of junior clinicians and nurses and support staff offering related services in more senior or very different positions. We suggest that those claims are likely to fail, and rightly so, even without any change in the law.

It is worth pointing out that, even before we get to the legal principles likely to protect clinicians in these circumstances, there is, in any event, little scope for clinical negligence claims in this period. Treating COVID-19 patients and preventing transmission of the virus are the priority: elective surgery had been cancelled until last week, A&E admissions are said to be decreased, and the general public is wary of attending medical institutions due to fear of virus spread combined with a desire to ease the burden on the NHS. Quite rightly, the public is aware that the NHS is working in difficult and unprecedented times.

Why COVID-19 related claims are likely to fail on the current law

We would suggest that a “triple lock” of three legal principles are available to be deployed which give considerable comfort: the “rescuer principle”, a potentially modified standard of care in relation to COVID-19 wards, and the “Act of God” principle.

Let us take an example where it is feared that proceedings could successfully be pursued. Assume the case of a consultant psychiatrist who has to be deployed to A & E because otherwise there would be no medical cover; however, the psychiatrist has not worked in A & E for 30 years. A patient is wrongly triaged and suffers a worse outcome than s/he would otherwise have done. In ordinary terms, there has been Bolam negligence.

The starting point is that any patient in a hospital is owed a duty of care. The issue is the standard of care required. The issue of the experience of the clinician in relation to the standard of care to be expected in his or her given role has occupied the Courts for many years. In Wilsher v Essex Health Authority [1987] Q.B. 730, it was held that the length of experience of the clinician was not relevant, and the duty of care related not to the individual but to the post they occupied. A houseman had failed to reach this standard by failing to notice a patient’s spitting and pooling of saliva, in simply accepting what the patient’s representative said and failing to obtain a proper case history, thereby failing to elicit details of a difficulty in swallowing which would reasonably have required him to detain the patient pending examination by an ENT specialist. It was probable that such further investigation would have revealed the condition and that treatment at that stage would have avoided brain damage.

In FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334, the Court of Appeal overturned Mr Justice Jay’s decision that only a senior doctor would have had the expertise to apprehend the claimant’s developing problem. At paragraphs 59-60, Jackson LJ noted:

“59. In Wilsher v Essex AHA [1987] 1 QB 730 the Court of Appeal for the first time gave detailed consideration to the standard of care required of a junior doctor. (This issue did not arise in the subsequent appeal to the House of Lords). The majority of the court held that a hospital doctor should be judged by the standard of skill and care appropriate to the post which he or she was fulfilling, for example the post of junior houseman in a specialised unit. That involves leaving out of account the particular experience of the doctor or their length of service. This analysis works in the context of a hospital, where there is a clear hierarchy with consultants at the top, then registrars and below them various levels of junior doctors. Whether doctors are performing their normal role or ‘acting up’, they are judged by reference to the post which they are fulfilling at the material time. The health authority or health trust is liable if the doctor whom it puts into a particular position does not possess (and therefore does not exercise) the requisite degree of skill for the task in hand.

60. Thus in professional negligence, as in the general law of negligence, the standard of care which the law requires is an imperfect compromise. It achieves a balance between the interests of society and fairness to the individual practitioner.”

That view was reiterated in the context of the facts of the case at paragraph 63: “The conduct of Dr Rushd in the present case must be judged by the standard of a reasonably competent SHO in an accident and emergency department. The fact that Dr Rushd was aged 25 and “relatively inexperienced” (witness statement paragraph 5) does not diminish the required standard of skill and care. On the other hand, the fact that she had spent six months in a paediatric department does not elevate the required standard. Other SHOs in A&E departments will have different backgrounds and experience, but they are all judged by the same standard.”

The law thus requires a standard no higher, and no lower, than a reasonably competent healthcare professional of the role which is being fulfilled.

The “triple lock”

Having considered the existing formulation of the standard of care in clinical negligence cases, we will turn to consider how the law allows for variations in the standard of care, as well as other protections, which we suggest would apply to the current emergency circumstances.

(1) The “rescuer principle”

The “rescuer principle” is a term that we use to indicate modifications to the standard of care which arise from the fact that currently redeployed NHS healthcare professionals are acting for the public good in the face of an emergency. In essence, this principle allows for a relaxation of the standard of care where individuals are working in an unprecedented emergency; its purpose being to prevent a fear of liability acting as a brake on such activity.

The legal source of this principle is the Social Action, Responsibility and Heroism Act 2015. Section 1 of the Act states that it applies “when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care”. Sections 2-4 detail matters which the court must have regard to, relating to the circumstances of the alleged breach of duty: whether it occurred when the person was acting for the benefit of society or any of its members, whether the person demonstrated a predominantly responsible approach towards protecting the safety or other interests of others, and whether that person was acting heroically by intervening in an emergency to assist an individual in danger. It is suggested that all 3 of these criteria are met in the situation of healthcare professionals redeployed during the COVID-19 crisis; it is difficult to contemplate how this Act would not apply to the current circumstances.

Assistance can also be drawn from section 1 of the Compensation Act 2006, which provides that, when considering breach of duty, the court may have regard to whether the steps that should have been taken by the defendant to meet a standard of care might either prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or discourage persons from undertaking functions in connection with a desirable activity. Whilst this does not strictly apply to the current circumstances, in that healthcare professionals clearly do not fail to carry out desirable activities in respect of treating patients, it does give a clear indication that the standard of care has limits. It suggests that in certain cases, the rights of individuals to be compensated for their loss is trumped by the necessity of defendants not being deterred from carrying out important activities. It is submitted that again, this is applicable to the situation at hand.

This principle has also appeared in case law, for example in Marshall v Osmond [1982] Q.B. 857, which involved a police officer whose driving caused injury to a passenger of a vehicle he was pursuing. In the first instance decision in this case, it was held that the defendant’s “actions must not be judged by standards which would be applicable if the situation were such that the officer had time to consider all possible alternative courses of action that he could have taken to discharge his duty successfully“. The Court of Appeal ([1983] Q.B. 1034) upheld the first instance decision, finding that there had been an error of judgment, but considering that there was not negligence. Sir John Donaldson M.R. referred to the circumstances of the collision, including that the officer was working in stressful circumstances. Therefore, it is suggested that, as per the case of Marshall, in the hypothetical scenario of the psychiatrist incorrectly triaging a patient, this is more likely to be seen as a mere error of judgment.

(2) Modified standard of care in relation to COVID-19 wards

Looking at the case of Wilsher v Essex Health Authority, arguably the principle of healthcare professionals being “judged by reference to the post which they are fulfilling at the material time” may acquire a particular definition in relation to the treatment of COVID-19 patients.

COVID-19 wards are new entities, and are necessarily staffed by practitioners from different original specialisms. Whilst these wards may have started as respiratory wards, in the circumstances of the pandemic, particular experience or specialism is not required in order to work there. These wards have been in existence only a matter of weeks, and therefore, understandably, do not have the same reservoir of expertise which would be relevant to the standard of care in say, a specialist oncology ward. Further, whilst the standard of care to be expected would be influenced by accepted practice or treatment policy in the area, it is clear that there is much disagreement within the scientific community regarding this new virus. Therefore, in legal terms, the standard of care is likely to differ for a COVID-19 ward when compared to another specialist ward, and, in practical terms, it may well be a challenge for anyone to acquire expert evidence which expresses best practice with any certainty (there would very likely be a wide range of divergent views).

Likewise, in non-COVID wards, we suggest that comment in any expert evidence is very likely to take into account the prevailing situation. It is expected that added consideration would be given to issues about time pressures, the numbers of staff, and the increased measures needing to be taken to avoid the spread of coronavirus, for example the use of personal protective equipment (PPE).

(3) “Act of God”/Novus Actus Interveniens

Finally, there is “Act of God”, a branch of force majeure – a largely, but not entirely, contractual principle, which may alternatively viewed as a novus actus interveniens. An “Act of God” must be wholly the consequence of natural causes, be of an extraordinary nature, and be such that it would not be anticipated or provided against by the party seeking to rely on it [2]. In the law of tort, “Act of God” has been used in, for example, Ryan v Youngs [1938] 1 All ER 522, in which a lorry driver, an apparently healthy man and a competent driver, died at the wheel, the lorry then ploughing on and injuring the claimant. As to the scale of the challenge represented, it must be unprecedented or extraordinary: see Nichols v Marsland (1876) 2 Ex D1, which involved an extraordinary flood. This country has not experienced anything like COVID-19 for the last hundred years. That leaves the third hurdle that the “Act of God” could not have been provided for. In Nichols v Marsland, it was held that, although protective measures would have been capable of affording protection, the defendant could not reasonably be asked to prepare against the unprecedented. However, in respect of a hospital trust, COVID-19 may well fit within “Act of God”, whether directly or in informing the standard of the duty of care to be applied. We do acknowledge that, given a repetition of COVID-19, this argument might well crumble.

Breach of duty

None of these three principles excludes there being a duty of care. It is possible that, even within the context of COVID-19, there may still be a handful of instances of breach of duty, which, even on the most generous interpretation, would be indefensible to any right-minded person.

We also bear in mind that cases may include outcomes from a basic failure to provide for PPE, although this is unlikely to be the fault of any individual practitioner.

Modification to the test

So, to returning to our earlier example, the test becomes one of what one might expect of a psychiatrist redeployed to A&E, acting under force majeure or as a rescuer. Understandably, there would be very, very generous latitude. We would suggest that a court would have little difficulty in the vast majority of cases finding perhaps error of judgment, but not breach of duty, especially on new COVID-19 wards.

It is also worthwhile taking a more nuanced example, one where on the face of FB v Princess Alexandra Hospital, liability is harder to avoid. Let us assume, for example, two ST3 doctors are covering a busy A & E ward with no available A&E consultant and a 33% staffing-level because of COVID-19, one of whom makes a similar error to that made in FB v Princess Alexandra Hospital due to time pressure and evident fatigue. Let us further assume that the hospital is not guilty of any failure of resource management. The same principles can be applied. We would suggest that, on these facts, the claim would be unlikely to succeed.

Summary

We are suggesting that in the “rescuer principle”, modification to the standard of care for COVID-19 wards, and force majeure/”Act of God”, there is a “triple lock” of established principles that should largely reduce the burden on the health services arising from clinical negligence claims in the present emergency context. The key to use of existing principles, in a way that is almost Caparo v Dickman from the other end of the telescope, is that we are in abnormal circumstances.

The “triple lock” of tests avoids the complete abrogation of standard of care – there may well be the occasional cases where something really has gone terribly and very avoidably wrong. Additionally, it would not, on public policy grounds, seem particularly sensible to abandon all standards.

Doctors, nurses and other healthcare professionals are facing enough uncertainty in these challenging times, without the fear of their actions being unfairly judged in the future. Hopefully, some comfort can be gained from the notion that the current law provides them with these protections.

[1] Very broadly, section 11, Coronavirus Act 2020 provides for indemnification not only for those not already beneficiaries of an NHS indemnity who are dealing with a coronavirus patient/suspected coronavirus patient, but also those providing cover.

[2] Charlesworth & Percy on Negligence, 14th Edition, at 14-36

Current Affairs, Medical ethics, News

Developing an ICU Triage Protocol for COVID-19

In this blog, Daniel Sokol of 12KBW talks of his experience as a barrister and medical ethicist developing an ICU triage protocol for COVID-19. Daniel writes for the British Medical Journal on medical ethics and has also written books on the subject. His website can be accessed here.

“Stay home. Protect the NHS. Save lives.” This is the refrain of the daily briefings at No.10 Downing Street. Protecting the NHS really means protecting its intensive care capacity. The government has greatly increased the number of ICU beds, by enlarging existing ICU units and creating new hospitals, as well as reallocating healthcare staff to ICU and medical wards. At the time of writing, there remains ICU capacity and Chris Hopson, the Chief Executive of NHS Providers, told the BBC on 15^th April 2020 that it looked “increasingly likely” that the NHS would be able to cope. He added, however, “We cannot relax. We must remain vigilant.”[1]

It is possible, of course, that an unexpected surge may result in ICU capacity being overwhelmed. If that happens, clinicians will have to make difficult decisions about which patients are admitted to ICU and which are not. Those in the latter category will be unlikely to survive.

On 20^th March 2020, the National Institute for Health and Care Excellence (NICE) produced guideline NG159, which contained a critical care referral algorithm to support decision making [2]. Within 48 hours, NICE were threatened with judicial review on the basis that their algorithm risked discriminating against disabled people. NICE amended its guidance, but it still lacked sufficient detail to assist with triage decisions.

In early April, the Royal College of Physicians [3] and the British Medical Association [4] produced ethical guidance on ICU triage. The guidance set out the issues and relevant ethical principles but again failed to provide action-guiding recommendations for ICU admission. At that time, I was receiving phone calls and e-mails from clinicians seeking help with developing their local policies on ICU triage. It was apparent that these policies would not be consistent with each other. In the absence of a satisfactory protocol, I decided to create one.

As the protocol may have to be used in a crisis, perhaps in the middle of the night, with a decision to be made in minutes, the aim was to distil everything into a 2-page document, with one page of ‘punchy’ text and one page devoted to an easy-to-read flowchart. I didn’t quite manage to keep it that short.

Developing the protocol

My 6-year-old daughter has online chess lessons. I overheard her coach say that, to capture the enemy king, she should not rely on a single attacker but on several pieces working together, such as the Queen, the bishop and the knight. I heeded the chess master’s advice. Through contacts and social media, I assembled a team of ICU doctors, medical ethicists and lawyers.

The full protocol is available here: http://medicalethicist.net/wp-content/uploads/2016/06/v5-Sokol-ICU-Triage-April-2020.pdf.

In short, it contains two criteria:

Clinical suitability for ICU admission (i.e., how likely is the patient to survive to hospital discharge?)
Likely duration of stay in ICU

Clinical suitability is determined by the clinical judgement of at least two ICU doctors. They will allocate patients to a ‘high’, ‘moderate’ or ‘low’ priority group.

If more than one patient falls into the high priority group, the next criterion is how long each patient is likely to stay in ICU: ‘short’, ‘medium’ or ‘long’. So, if there are two patients deemed ‘high priority’ and one has taken an overdose (sadly, ICU doctors are expecting many of those in the coming months) and is likely to stay for one day in ICU, and the other is a COVID patient who is likely to spend 1-2 weeks in ICU, priority should be given to the overdose patient. The rationale is that this will lead to more lives saved if demand for ICU exceeds supply.

This second criterion is susceptible to suggestions of indirect disability discrimination, under s19 of the Equality Act 2010. Disabled persons are more likely to need longer periods of ICU care by virtue of their disability. Section 19(2)(d) of the Act permits such discrimination if it can be shown that this is a “proportionate means of achieving a legitimate aim.” In this case, the aim is to maximise the efficient use of scarce ICU resources to save as many lives as possible in a situation where many patients are in need of ICU.

Priority treatment for healthcare workers

Another contentious matter was the prioritisation of healthcare workers. My advisers were split on the issue. The British Medical Journal is running an online poll on the question and, unsurprisingly perhaps given the readership, at the time of writing 90% (2,213 votes) were in favour of giving priority care to healthcare workers and 10% were against (239 votes). I suspect the general public would also be in favour.

A real concern, echoed by many clinicians I have spoken to, is that this prioritisation of colleagues would happen “under the radar” even if protocols were silent on the issue. This clandestine approach would be undesirable and probably unlawful.

Although the arguments are finely balanced, I have included priority treatment of healthcare workers in limited circumstances in the Protocol.

The feedback on the Protocol has been positive.

Where we are now

Other lawyers have also called for national guidance on ICU admission and, very recently, two law firms acting on behalf of disabled campaigners have sent letters before action to the Secretary of State for Health and Social Care and NHS England challenging the failure to publish a national policy framework on ICU triage [5,6].

The government doubtless has such a framework up its sleeve. When disclosed, it is likely to attract controversy and perhaps legal challenge. We hope that such a framework will never be implemented but, in chess as in life, you need to think a few moves ahead so you are not taken by surprise. Whatever the government’s strategy on ICU triage, the decision so far not to reveal this is a poor move.

[1] https://www.bbc.co.uk/news/health-52293762

[2] https://www.nice.org.uk/guidance/ng159/resources/critical-care-admission-algorithm-pdf-8708948893

[3] https://www.rcplondon.ac.uk/file/20551/download

[4] https://www.bma.org.uk/media/2226/bma-covid-19-ethics-guidance.pdf

[5] https://1f2ca7mxjow42e65q49871m1-wpengine.netdna-ssl.com/wp-content/uploads/2020/04/Press-Release-NHS-treatment-prioritisation-Rook-Irwin-Sweeney_6.pdf

[6] https://www.bindmans.com/news/challenge-made-to-failure-to-put-in-place-national-policy-framework-covid-19-pandemic

Birth injuries, Breach of duty, Causation

NKX (By his mother and litigation friend NMK) -v- Barts Health NHS Trust [2020] EWHC 828 (QB)

In this blog post, Helen Waller of 12KBW discusses the case of NKX (By his mother and litigation friend NMK) -v- Barts Health NHS Trust [2020] EWHC 828 (QB), regarding brain damage at birth due to clinical negligence. Although it is a case largely based on its own facts, it is nonetheless an example of careful judicial analysis of complex and detailed expert evidence. It demonstrates the importance of the parties and the court having a full understanding of the medical issues in order to properly address both breach and causation.

Background

This case concerned an expectant mother who, having given birth by caesarean section to her first child, was advised to and intended to have a natural birth for a second child (vaginal birth after caesarean section, “VBAC”). During labour, she developed a uterine rupture along the caesarean scar. As a result of this, her baby, the Claimant, suffered acute profound hypoxia resulting in permanent, significant brain damage, which left him with cerebral palsy, microcephaly, and cognitive impairment.

The case pivoted on the monitoring of the foetus during labour. The two options were continuous foetal monitoring (“CFM”) or monitoring by intermittent auscultation (“IA”). In accordance with the mother’s birth plan, delivery was to take place in a birthing centre, where, on the day, CFM was not an option and so IA was undertaken. The Claimant’s case was that CFM would have detected foetal heart rate abnormalities earlier and that, as a consequence, the uterine rupture would have been detected and delivery achieved sooner, thus avoiding some of the hypoxia and resultant brain damage. The Claimant’s secondary case was that IA should have been performed more frequently from the point at which his mother was known or assumed to be in the second stage of labour, which would have again resulted in earlier detection of the uterine rupture.

The Claimant alleged that the Defendant’s midwifery staff had not taken reasonable steps, either in advance of or during labour, to inform her that monitoring by IA rather than CFM would risk slower detection of a uterine rupture putting the baby at greater risk of sustaining permanent brain damage. Both factual and medical causation were in issue.

Expert evidence was provided orally in the fields of midwifery, obstetrics, neonatology and paediatric neonatology. There was, additionally, written neuroradiology evidence, which was essentially agreed.

The Law

The legal position was uncontroversial. The parties were agreed that Montgomery v Lanarkshire Health Board [2015] UKSC 1 makes clear that medical professionals owe a duty to take reasonable care to ensure that a patient is informed of any material risks and that a patient has understood what they have been told. Further, Bolam v Friern Hospital Management Committee [1957] gave the standard of reasonable care in this case as being that of a midwife of ordinary skill and care.

The Judgment

The matter was heard by Simeon Maskrey QC sitting as a Deputy High Court Judge for a determination on liability alone.

He gave judgment for the Claimant “on the basis that but for the breaches of duty that occurred … he would have sustained mild rather than severe brain damage and thus mild rather than severe neurodisability” [123]. The parties were agreed as to what constituted mild as opposed to severe neurodisability and so no definition of those terms by the Court was necessary.

Antenatal Counselling

No breaches were found in respect of the antenatal counselling.

It was accepted that VBAC is considered to be high risk, because there is a small but real risk of a uterine rupture through the caesarean scar during labour. The Claimant’s mother had expressed an interest in having a water birth at the midwifery-led birthing centre. It was found that she had not been led to believe that this was a higher risk option, nor was she discouraged from it. Rather, she was led to understand that her birth plan would be subject to review upon her admission when she went into labour. This was relevant because it was possible – as indeed eventuated – that CFM would not be available on the day in the birthing centre, leaving only IA monitoring.

The midwife who had summarised the Claimant’s mother’s birth plan in writing had briefly noted “aware of RCOG guideline” in respect of monitoring. The midwife had in fact changed her notation practice since the index birth incident as a result of this case. Nonetheless, the Judge did not find that her approach at the time fell below a reasonable standard. He found, on the evidence, that the absence of specific reference to the risks and consequences of IA did not cause him “to doubt that the risks and consequences were discussed” (at [34(viii)]). It was found that the mother was aware of the risk of scar rupture and appreciated that there would be close monitoring of that.

Care and Counselling During Labour

The Defendant was found to be in breach of duty on this issue.

The Judge found that the Claimant’s mother was not wedded to a water birth; however, the triage and delivery suite were so busy at the relevant time that the midwives on shift “did not have the time or the incentive to discuss with the Claimant’s mother her birth plan and … they did not do so” (at [57]). The mother was not, therefore, given the chance to review or reconsider her birth plan.

Given the agreement between the midwifery experts that the birth plan required reconsideration when the mother went into labour, the Judge concluded that there was a breach of duty at that stage. He found that, with further counselling and a re-assessment of the risks, there was a very real possibility that the Claimant’s mother would have changed her mind on a water birth and IA given how busy the maternity unit was, and that there had been no assessment as to whether the relevant midwife was capable of managing a VBAC labour with IA (see [74]-[75]).

Management of Labour

The Defendant was also found to be in breach of duty in respect of the management of the index labour.

It was the Claimant’s case that his mother had entered the second stage of labour at 00:20 on the relevant day and that, thereafter, IA should have been carried out every 5 minutes. IA was in fact carried out every 15 – 20 minutes. The Judge found that the midwifery staff “should have either confirmed that the Claimant’s mother was in the second stage of labour before she entered the birthing pool or should have made that assumption and performed IA every 5 minutes thereafter” (at [79]). He found as a fact that, on the balance of probabilities, the Claimant’s mother was in the second stage of labour from 00:35.

The Judge further found that the Claimant’s mother was in continuous pain at or around 01:00. He held that it was a breach of duty not to have recognised that this was a sign of uterine rupture and called for obstetric assistance (at [82]).

The Decision Making

The Judge held the following counter-factual of what, on balance, would have occurred had the breaches not taken place [88]:

“I thus find that there should have been a re-statement of the risks to the Claimant’s parents on admission on the 23rd May; that they should have been told that Midwife Havire recommended CFM and why; that they should have been told that this was particularly the case because the unit was very busy and that there was no-one available who had the experience of caring for a VBAC mother without CFM; and that if given this information in these terms they would probably have decided to accept CFM. Accordingly, I find that in such circumstances there would probably have been continuous CTG monitoring.”

The Judge held that if there had been a vaginal examination at 00:45, as he found there should have been, it would have been appreciated that the Claimant’s mother was in the second stage of labour. Therefore, if he was wrong on his previous findings, there should instead have been IA monitoring every 5 minutes from 00:45.

The Judge then turned to consider whether continuous CTG monitoring, or IA every 5 minutes from 00:45 would, on the balance of probabilities, have resulted in the abnormal foetal heart rate being appreciated before 01:15 (when it in fact was). He then had to decide what the probable consequences of that would have been. This involved a careful consideration of conflicting expert obstetric evidence as to the nature, timing and duration of foetal heart rate abnormalities.

The Judge held that the uterine rupture probably occurred between 00:45 and 01:00, which would explain why the IAs were normal before 00:45 and why the Claimant’s mother came to be in continuous pain consequent upon the rupture by about 01:00. Although there was a normal IA recorded at 01:00, the Judge found that, despite that recording, there was in fact an atypical deceleration of foetal heartrate that was not detected. However, he held that it was not necessary to determine whether that failure in detection was itself a breach (at [101]). Accordingly, he found that, if the Claimant’s mother had been subject to CFM, it would have been apparent by 01:00 that there was a potential obstetric emergency, for which all reasonably competent midwives would have sought emergency assistance (at [103]).

The Judge did not criticise the reaction of obstetric staff that in fact took place at 01:15, and it was found that the same reaction would have taken place at 01:00, had the assistance been sought. He found that, with CFM, delivery would have been achieved at 01:31 and resuscitation by or about 01:32, and, with IA every 5 minutes, delivery would have been achieved at 01:36 and resuscitation by or about 01:37.

Causation

The Judge found that the Claimant would have sustained mild, rather than severe brain damage, if delivery and resuscitation had taken place by 01:32.

The Claimant’s experts, Dr Dear, expert neonatologist, and Dr Thomas, expert paediatric neurologist, were of the opinion that the Claimant had sustained 25 minutes of acute, profound hypoxia, following the method in the Myers at al paper (1971). Accordingly, they concluded that if delivery and resuscitation had occurred before 01:34, the Claimant would have avoided all permanent brain damage.

Dr Emmerson, expert neonatologist, and Dr Smith, paediatric neurologist, both for the Defendant, rejected that model. They opined that the Claimant sustained 35 minutes of acute, profound hypoxia, postulating that there must have been some oxygenation of the brain after 01:14 and therefore the Myers model could only be applied with an extension. Following this approach, they said that the Claimant needed to have been delivered by 01:28 to avoid all damage.

The Judge undertook a close and careful analysis of the competing opinions at [107] to [122]. On his analysis of the facts, the Judge preferred the extended Myers model, finding that the continuation of some oxygenation meant that the period before which foetal reserves were exhausted was extended (at [120]). He concluded [at 122]:

“It follows that if the bradycardia commenced at 01.14 hours damage would have started to occur at 01.28 hours. Mild damage would have resulted until 01.35 hours when it would have become moderate. On the basis of my finding that delivery and resuscitation should have taken place by 01.32 hours the Claimant would still have sustained brain damage but it would have been mild, rather than severe as is now the case.”

Comment

This was a technically involved case necessitating a close analysis of the facts and competing expert evidence. It is another reminder of the value of the legal team being on top of the fields of expertise and taking the time to get to grips with the literature upon which the experts relied. When medical causation pivots on action or inaction over just minutes and seconds, the expert and legal arguments are likely to be equally finely balanced.

Legal reform, Parties

Who to sue? Doctor held to be an independent contractor in Barclays Bank plc v Various Claimants [2020] UKSC 13

In this blog post, pupils Cressida Mawdesley-Thomas and Tim Goodwin discuss the recent case of Barclays Bank plc v Various Claimants [2020] UKSC 13. Whilst this might more appropriately fall under the definition of an employer’s liability case, it is worth noting that this case centred on the activities of a doctor, and therefore it provides useful guidance on who might be the correct defendant in a case relating to medical professionals who appear to be acting as “independent contractors”.

Background

The claims arose from a series of alleged sexual assaults committed between 1968 and 1984 by the late Dr Gordon Bates. It was said that Dr Bates sexually assaulted the 126 Claimants, some as young as 16, during medical examinations that Barclays required them to undergo as a precondition of their employment. Dr Bates’ estate had been dispersed, so the only means of redress was through the mechanism of vicariously liability against Barclays.

Although Barclays made the arrangements for the examinations and sent Dr Bates the forms to fill in, the examinations were conducted in Dr Bates’ home. Dr Bates was not paid a retainer but instead charged a fee for each report he completed and he was free to refuse to undertake an examination. Furthermore, he was a part-time employee of the health service and it was presumed that he carried his own medical liability insurance. As the Supreme Court observed, Dr Bates “was in business on his own account as a medical practitioner, with a portfolio of patients and clients”. Put another way, it was found that Dr Bates was, on the facts, a truly independent contractor. This is key to the decision.

Vicarious liability was tried as a preliminary issue. Both the High Court and the Court of Appeal held that Barclays was vicariously liable for Dr Bates’ actions. This was overturned by the Supreme Court.

The legal test

Lady Hale, delivering the unanimous judgment of the court, set out the two requirements for vicarious liability to be imposed:

There must be a relationship between two parties which makes it proper for the law to make one pay for the fault of the other. In the case of a classic employment situation, this will be the relationship between employee and employer.

There must be a connection between that relationship and the wrongdoer’s negligent acts or omissions. Again, in a classic employment relationship the courts are commonly concerned with whether the negligent acts are carried out in the course of the employee’s employment (although that has been given a wide interpretation).

The appeal before the Supreme Court concerned only the first requirement. Was the relationship between Barclays and Dr Bates such that it would be proper for the law to impose a burden on the bank to bear responsibility for the doctor’s acts?

For a discussion of the second limb of the test, see our related article discussing the case of WM Morrisons Supermarkets plc v Various Claimants [2020] UKSC 12, handed down on the same day as the decision in Barclays Bank.

The “relationship akin to employment” test

In Woodland v Swimming Teachers Association [2014] AC 537, Lord Sumption stated at paragraph 3 of his judgment that whilst recent cases had expanded the scope of vicarious liability to “embrace tortfeasors who are not employees of the defendant”, the concept of vicarious liability “has never extended to the negligence of those who are truly independent contractors”. The issue is where that line should be drawn.

The Supreme Court, borrowing from earlier decisions, held, at paragraph 27, that the appropriate question to ask is whether the relationship was one that was sufficiently analogous to employment. In doing so, it referred in particular to the Supreme Court’s decision in the Christian Brothers case.

In that case, Lord Phillips enumerated five “incidents” of employment relationships “that make it fair, just and reasonable to impose vicarious liability”. The five principles are:

The employer is usually more able to compensate (especially as it will likely be insured);
the wrongdoing usually arises from activity done on behalf of the employer;
the employee’s activity is likely to be part of the business activity of the employer;
the employer created the risk by employing the tortfeasor to carry out tasks that gave rise to the risk;
employers generally have control of their employees.

Lord Philips went on to say, at paragraph 47, that, provided they share those five factors, non-employment relationships may give rise to vicarious liability on the basis that the relationship is“akin to that between an employer and an employee”.

That was the approach adopted in a number of subsequent appellate decisions. For example, in Cox v Ministry of Justice [2016] AC 660 and Armes v Nottinghamshire County Council [2018] AC 855, Lord Phillips’ five factors were considered. However, Lord Reed, giving the lead judgment on both cases, was clear that (a) not all factors carried the same weight; and (b) that it was open to the court to give different weight to each incident depending on the case. Furthermore, the Supreme Court in both Cox and Armes held that vicarious liability does not extend to those running recognisably independent businesses of their own.

The Supreme Court in Barclays Bank held, at paragraph 27, that, whilst an analysis of Lord Philips’ five factors will be helpful in “doubtful” cases, they need not be considered “where it is clear that the tortfeasor is carrying on his own independent business.” The Supreme Court emphasised that what is required is a careful consideration of the details of the relationship.

Who is a truly an independent contractor?

The distinction between activities integrated into the business and the activities of recognisably independent contractors may not always be clearly delineated, particularly in the advent of the gig economy. There have been various debates concerning the definition of individuals as self-employed contractors, workers or employees, many of which focus on the degree of integration. In recent years, the line between employees and mere workers has become increasingly blurred, particularly following the Court of Appeal’s decision in Windle v Secretary of State for Justice [2016] EWCA Civ 459.

The blurring of these lines has not stopped with the Supreme Court’s decision in Barclays Bank. At paragraph 27 of the judgment, Lady Hale makes explicit reference to individuals who are “technically self-employed” contractors or agency workers, and suggested that an examination would have to be undertaken to establish whether they are “effectively part and parcel of the employer’s business”. It follows that there is no technical impediment to businesses being held vicariously liable for the acts of such individuals, notwithstanding that they are not employees. Certainly, this decision does not leave us with a clear, bright line delineating where various categories of working people sit on the spectrum of vicarious liability.

Lady Hale provides further guidance in her obiter comments at paragraph 29 of her judgment.

Recent cases have broken the assumption of one status in all circumstances. An individual found to be an employee for employment law purposes will not necessarily be one for tax, or even vicarious liability, purposes.

It is clear that vicarious liability will extend beyond employees to encompass, in some cases, mere workers (i.e. those who fall within the definition of section 230(3)(b) Employment Rights Act 1996). But that is not a universal rule and the contracting business will not always be vicariously liable for the acts of workers. Rather, the courts will have to consider on the facts whether the relationship warrants the imposition of vicarious liability.

Whilst it is tempting to align employment status with the principle of vicarious liability, “it would be going too far down the road to tidiness for this court to align the common law concept of vicarious liability, developed for one set of reasons, with the statutory concept of ‘worker’, developed for a quite different set of reasons”.

Conclusion and practical considerations

Pulling the various cases and principles together, Lady Hale stated that “the question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant.” It is clear from the Supreme Court’s judgment in this case that there are few, if any, hard-and-fast rules that will identify whether a business will be held vicariously liable for the acts of its contractors. Instead, a thorough examination of the true nature of the relationship will be required.

Certainly, Lord Philips five incidents continue to be helpful, although they have been relegated to ‘doubtful’ cases only. Lawyers should therefore be careful when pleading and running vicarious liability cases to establish at an early stage what they consider to be the true nature of the relationship between the tortfeasor and ‘employer’ and build a case around that. It will also be important, in less clear-cut cases, to identify at an early stage what incidents should carry the most weight and plead accordingly.

Whilst vicarious liability is often not an issue where the treatment was performed within the NHS it is often the case that when a doctor is undertaking work privately he is treated as an independent contractor working within the physical confines of a private hospital. Whether that analysis will hold true when considering whether the private hospital is liable for his/her negligence will depend on whether, on an analysis of all of the facts of the relationship, he/she was really carrying on a business on his/her own account or whether the relationship is more truly akin to employment. In those circumstances, Lord Philips’ five instances may be of particular assistance in reaching a conclusion. One can imagine such questions being particularly pertinent in case where the doctor, for whatever reason, does not have a relevant policy of insurance.

Equally, in cases involving the wave of new health start-ups, such as those providing health services remotely via apps, there will need to careful consideration of whether the service provider is the health start-up or whether the medical professionals acting under that umbrella are in fact independent contractors. Again, an analysis of the relationship between the start-up and the medical professional will be key to establishing whether the start-up can be held vicariously liable, even where the professional is in fact a self-employed contractor.

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