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.

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

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 15th 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 20th 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:

  1. Clinical suitability for ICU admission (i.e., how likely is the patient to survive to hospital discharge?)
  2. 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

Update – message from the new co-editors

A message from Lizzie Boulden and Charley Turton

Dear blog readers,

We write by way of introduction and to pass our sincere thanks to outgoing editor, Rory Badenoch, who over the past three years has done a stellar job co-ordinating the blog in collaboration with John-Paul Swoboda. Thank you, Rory.

John-Paul remains in post as editor-in-chief.

As incoming co-editors, we join you at a strange time (amid the COVID-19 pandemic) and, as such, we know that you will be relying more than ever on online resources and content. We hope to bring you information, insight and much-needed distraction.

Please be on the lookout for further resources and features from 12KBW’s Clinical Negligence Team over the coming weeks and months, in the form of webinars, Q&As, and panel discussions, which we will keep you updated on.

As always, we welcome your comments and feedback. Please feel free to get involved and stay connected.

Best wishes,

Lizzie and Charley

New book on claims arising from sepsis, meningitis and meningococcal disease

In this post Isaac Hogarth of 12KBW discusses his new book ‘A Practical Guide to Sepsis and Meningitis Claims‘, ahead of its launch later this month.

Infectious diseases (such as meningitis), and sepsis are terrifying. One of the very first clinical negligence inquests on which I was instructed involved a child who died from sepsis, with death occurring within a staggeringly short time of onset of symptoms.

Continue reading “New book on claims arising from sepsis, meningitis and meningococcal disease”