Witnesses of fact: to call, or not to call? Manzi v King’s College Hospital NHS FT [2018] EWCA Civ 1882

In this post Isaac Hogarth of 12 KBW examines the recent case of Manzi v King’s College Hospital NHS FT [2018] EWCA Civ 1882 in which the Court of Appeal considered whether to interfere with the trial judge’s findings in relation to whether there had been a negligent failure to detect and remove a portion of retained placenta following childbirth. The Court also considered in particular whether the trial judge ought to have drawn an adverse inference from the Defendant’s decision not to call a particular doctor as a witness.

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Clarity for illegality as stare decisis lives to fight another day: Henderson v Dorset Healthcare NHS Trust [2018] EWCA Civ 1841

This blog is written by Helen Waller, a pupil barrister at 12 King’s Bench Walk.

In Henderson v Dorset Healthcare NHS Trust [2018] EWCA Civ 1841 the Court of Appeal reviewed the jurisprudence on the defence of illegality in tort, having been invited to reconsider the present position in light of arguments based on the doctrine of precedent. The Court rejected these arguments and provided a clear statement of the operation of the defence.

The Factual Background

This was a tragic case with a set of facts presenting legal questions that would not look out of place in an undergraduate Law exam. The claimant, Ms Henderson, was a long-time sufferer of mental health conditions variously diagnosed as paranoid schizophrenia or schizoaffective disorder. At the relevant time in 2010 her condition had recently worsened and on 25 August of that year, whilst experiencing a serious psychotic episode, she stabbed her mother to death. Ms Henderson was, at that time, under the care of a mental health team managed and operated by the defendant Trust. An independent NHS investigation found failings by the Trust in Ms Henderson’s care and treatment. However, it also found that, “while the killing of Ms Henderson’s mother could not have been predicted, a serious untoward incident of some kind was foreseeable based upon Ms Henderson’s previous behaviour when experiencing a psychotic episode” (at [4] of the judgment). Continue reading “Clarity for illegality as stare decisis lives to fight another day: Henderson v Dorset Healthcare NHS Trust [2018] EWCA Civ 1841”

Consent, causation and Chester  – the Court of Appeal examines the modified test in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307

This blog is by Vanessa Cashman of 12 King’s Bench Walk.

Summary

The claimant underwent a total abdominal hysterectomy and bilateral salpingo-oophorectomy in order to treat extremely painful and heavy periods. She was 41 years old at the time.

The operation was performed non-negligently on 25 March 2008. Following surgery the claimant developed Chronic Post-Surgical Pain as a result of nerve damage. The issues were whether she was properly consented in respect of the risk of post-operative pain and whether she could establish causation. Continue reading “Consent, causation and Chester  – the Court of Appeal examines the modified test in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307”

Surgical consent case report: materiality of risk – Montgomery vs Bolam

B v An NHS Trust

Isaac Hogarth of 12KBW instructed by Joel Onyems of OP Law (representing the Claimant) discusses a recent case which settled at JSM. The case is of particular interest due to the arguments concerning the objective nature of the test of materiality under Montgomery v Lanarkshire Health Board [2015] UKSC 11 and its interplay with Bolam principles.

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Paying the price for an incomplete witness statement

In this post Charles Robertshaw of 12KBW examines the recent decision of Lambert J in Duncan Harrap v Brighton & Sussex University Hospitals NHS Trust [2018] EWHC 1063 (QB).

A successful defendant in a clinical negligence case was penalised in costs due to vital evidence being omitted from a witness statement and only elicited for the first time during cross-examination at trial. The new evidence was fatal to the claimant’s case and led to the claim being discontinued. The court considered that the very late emergence of the new evidence was due to unreasonable conduct on the part of the defendant and, accordingly, the defendant should only recover part of its costs.

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LOST IN TRANSLATION: the importance of ensuring that medical advice is understood by the patient.

In this post Ted Cunningham of 12KBW examines the recent High Court decision in NILUJAN RAJATHEEPAN v BARKING, HAVERING AND REDBRIDGE NHS FOUNDATION TRUST [2018] EWHC 716 (QB). The case highlights the importance of proper and effective communication between medical professionals and patients who do not have a good grasp of English. In circumstances where medical professionals believe that they have communicated effectively, that belief must be objectively reasonable.

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NOT ME, GUV: Clinical Negligence in Prison – Who is Responsible? Razumas v Ministry of Justice [2018] EWHC 215 (QB)

In this post Rachit Buch of 12KBW examines the recent decision of Cockerill J in Razumas v Ministry of Justice [2018] EWHC 215 (QB), a case concerning two distinct issues: (i) the liability of the MOJ for negligence arising out of healthcare provided in prisons and (ii) fundamental dishonesty in relation to clinical negligence claims.

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Sepsis strikes again: administration of wrongly chosen and ineffective antibiotics materially contributes to patient’s death.

Before HM Senior Coroner Christopher P Dorries OBE, Sheffield Coroner’s Court. Narrative conclusion handed down on 11 December 2017.

Rory Badenoch represented the family of the Deceased, Kay Morrison, at a 4-day inquest into the circumstances of her death at the Royal Hallamshire Hospital in Sheffield on 21 June 2015. The Coroner concluded that the failure to take and act upon a proper history of multiple antibiotic treatments in the past materially contributed to her death from sepsis.

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Smith v Lancashire Teaching Hospitals NHS Foundation Trust & ors [2016] EWHC 2208 (QB): the eligibility criteria for a bereavement award are inconsistent with the values of modern Britain

This blog is written by John-Paul Swoboda of 12KBW.

The Court of Appeal’s decision in Smith shone a light upon an inadequacy in the law which clinical negligence lawyers have long been aware of; the criteria to determine eligibility for a bereavement award pursuant to section 1A of the Fatal Accidents Act 1976 is unjustifiably discriminatory. In Smith the Master of the Rolls, McCombe LJ, and Sir Patrick Elias all agreed that section 1A of the Fatal Accidents Act 1976 was incompatible with article 14 (non-discrimination) and that article 8 (right to respect for private and family life) was engaged. A declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998 was made. Continue reading “Smith v Lancashire Teaching Hospitals NHS Foundation Trust & ors [2016] EWHC 2208 (QB): the eligibility criteria for a bereavement award are inconsistent with the values of modern Britain”