Co-editor of the 12KBW Clinical Negligence blog Rory Badenoch considers the recent Court of Appeal case of Barnett, one of the rare cases in which a judge’s inability to resolve an issue of fact had been justified (Stephens v Cannon  EWCA Civ 222 and Verlander v Devon Waste Management  EWCA Civ 835 applied). Also of note was the Court of Appeal’s criticism of the brevity of the judgment at first instance. This criticism was held to be of particular importance where a key issue is decided on the basis that a claimant has failed to discharge the burden of proof.
In this blog Tim Petts of 12 KBW considers the recent Court of Appeal case of Willmott where the judge at first instance was accused of bias.
It is always slightly unnerving to appear in front of a judge who says something to show that they have personal expertise in a topic, particularly when drawn from their own medical history. Will the judge with a bad back be overly sympathetic to a fellow-sufferer, or take the view that the claimant is making a meal of things? Will the judge be influenced by their own experience – good or bad – while undergoing treatment, or even perhaps use (even subconsciously) what they have been told by their treating doctors as extra-special expert evidence against which the parties’ experts’ opinions will be evaluated? Continue reading “Willmott v The Rotherham NHS Foundation Trust  EWCA Civ 181; Cement, shaking heads and arthritic knees”
In this blog Thea Wilson of 12KBW considers the recent judgment of Thefaut v Johnston in which Green J provides his characteristic clarity of thought on informed consent, materiality in the context of consent and how to deal with medical experts whose independence is called into question.
The Claimant developed back pain in late 2011. Although it resolved relatively speedily, it reoccurred at the end of January/start of February 2012. After having some treatment through the NHS, the Claimant consulted the Defendant privately in March 2012. The Defendant was described by the Court as a surgeon of long standing, good repute and vast experience. At a consultation on 15th March 2012, the Defendant recommended conservative treatment. He later wrote to the Claimant’s GP noting that her real concern was back pain rather than slight numbness in her left leg. Continue reading “Thefaut v Johnston  EWHC 497 (QB) (14 March 2017); informed consent, materiality and experts whose independence is called into question”
In this blog Vanessa Cashman of 12KBW considers Darnley v Croydon Health Services NHS Trust where the Court of Appeal considered what, if any duty, is owed by a receptionist of an A&E department to a patient in respect of the provision of information. By a majority it was held that no duty is owed to provide correct information about waiting times.
On 17 May 2010 the claimant was the victim of an assault, in the course of which he received a violent blow to the head. He was taken to A&E by a friend and they arrived at 8.26pm. On speaking to the receptionist on his arrival, she told him that he might not be seen for up to 4 or 5 hours. The claimant was in significant pain and after 19 minutes of waiting, he decided to go home and take paracetamol. He left at 8.45pm, without notifying the receptionist. Continue reading “Darnley v Croydon Health Services NHS Trust  EWCA Civ 151; Court of Appeal divided over whether an A&E receptionist owes a duty of care”
This post is by Isaac Hogarth of 12 King’s Bench Walk. Isaac appeared on behalf of AJ’ parents and was instructed by Rosie Nelson and Emily Palmer of Penningtons Manches.
AJ, a 5-year-old boy died from sepsis, following treatment received at Hillingdon Hospital on 22 December 2015. Based on his initial presentation, AJ was treated for croup. However, when he failed to respond positively to that treatment, he was not properly reassessed. There was therefore a significant delay in IV antibiotics being prescribed. HM Coroner gave a narrative conclusion with a rider of neglect, finding that AJ’s death was avoidable and that there were gross failings in the care he received. Continue reading “Inquest touching the death of AJ; unreported 23 March 2017: hospital inquests and findings of neglect”
This blog post by Lois Aldred considers the decision in Crossman v St George’s Hospital Trust which raises interesting issues relating to the applicability of the decision in Chester v Afshar.
The Claimant was a 63-year-old man who sought treatment for a numb arm and painful, stiff neck. Investigations revealed widespread degenerative changes and constitutional narrowing of the spinal canal. He was referred to a neurosurgeon, Professor Papadopoulos, who advised a conservative treatment plan that included physiotherapy for three months with an outpatient review with him thereafter. Continue reading “Rodney Crossman v St George’s Healthcare Trust  EWHC 2878 (QB) ; Chester v Afshar revisited”
This post considering the standing of the Bolam principle is by David Sanderson of 12 King’s Bench Walk.
Two judgments handed down this month explore the boundaries of the Bolam principle and limit its application. In the first, Kerr J doubted that Bolam was apposite where the court is concerned, not with a choice between two courses of treatment, but instead with a missed diagnosis. In the second, the Court of Appeal rejected the judge’s application of Bolam, in circumstances where a patient had been entitled to information about risks before deciding between treatment options. Continue reading “Bolam under attack: Muller v Kings College Hospital and Webster v Burton Hospitals”
An important decision in the changing world of cost budgeting.
The Appellant bought a claim against the Respondent for damages for clinical negligence. Proceedings were commenced and the Appellant’s budget was approved at a CCMC. Following the exchange of lay and witness evidence, but before the parties had prepare for the trial, the parties compromised the claim. The Appellant produced a costs bill that was less than the total approved budget (unsurprising given the matter had settled before trial). Continue reading “Merrix v. Heart of England NHS Foundation Trust  EWHC 346 (QB); Costs budgeting”
In this post Henry Charles of 12 King’s Bench Walk considers the implications of the recent change to the discount rate.
The initial reaction: claimant nirvana …and if so for how long?
The Lord Chancellor’s statement heralded the new rate with the assertion that minus 0.75% was the only answer on a gilts based assessment: Continue reading “The Discount Rate Decision: Right or Wrong, Gilt Edged or Double Edged?”