Issue 17
December 2004

S.J. Edney solicitors were established in 1996 and are a niche Clinical Negligence and Personal Injury Practice. Seamus Edney is a member of the Action against Victims of Medical Accidents Solicitors Panel, the Law Society's Clinical Negligence Panel and the Law Society's Personal Injury Panel. The firm holds a Legal Aid Franchise in Clinical Negligence.

As a firm we are committed to acting for victims of accidents and Seamus Edney has 20 years experience of Clinical Negligence and Personal Injury work.

What we have achieved for our clients during 2004:-

2004 has been another good year for S J Edney's clients with a number of good settlements being achieved for our clients including the following:-

 

A failure on the part of a GP to treat a client's "frozen shoulder". She went on to develop an infection after an injection had been administered inappropriately by her GP which left her with reduced mobility in her arm	£70,000.00
An RNLI Volunteer who sustained an injury on a lifeboat whilst working in Cornwall due to the carelessness of a fellow volunteer leaving him with multiple fractures in his right arm.	£55,000.00
A client who sustained a soft tissue injury in an accident at work, who unfortunately, went on to develop chronic pain syndrome. Her future work prospects were much diminished.	£250,000.00
A failure on the part of a GP to diagnose or even suspect that a client may have had a melanoma (skin cancer) and as a consequence, there was a delay in her referral to hospital which resulted in treatment and surgery which could have been avoided with a prompt referral.	£20,000.00
A woman who sustained a very minor injury in an accident at work but because of a pre-existing medical condition, she required extensive hospital treatment but unfortunately she died not long after being discharged by the hospital for an unrelated reason. Her family instructed our firm to pursue a claim against her employer.	£50,000.00

 

S J Edney wish their readers a
Happy Christmas
and
a prosperous New Year.

May our good results continue for our clients during 2005.

_________________________________________________

Legal Aid Consultation Paper - comments
As a specialist clinical negligence practice, we are very worried about proposals emanating from the LSC with regard to Public Funding and clinical negligence cases. It appears to us that the Treasury is lurking in the background and they are putting pressure on the LSC to make substantial cuts (up to £41 million) across the Legal Aid budget and unfortunately clinical negligence appears to be the main target for these cuts.

One proposal which causes us particular concern is the suggestion that once a solicitor has completed his preliminary investigation into a potential case (this normally involves obtaining a copy of the relevant medical records and an expert's report) public funding should cease and the claim should then continue on a No Win No Fee CFA basis. This is all very well in theory but in our experience obtaining ATE insurance for a clinical negligence client is very difficult even where they appear to have a strong prima facie case against the clinician. Further, most policies available do not fund disbursements on account (unlike the LSC) which can run into thousands of pounds.

The second proposal which we are unhappy with is the removal of the equity disregard (currently up to £100,000.00) in a person's house when assessing their means to see if they satisfy the financial criteria for Public Funding. This proposal would basically disenfranchise the majority of house owners from qualifying for Public Funding. There is a suggestion that these clients should fund the preliminary investigation themselves by way of a loan.

So much for access to justice. It is our fear that if these proposals are implemented many more people will be denied redress in the Courts if they have been victims of sub-standard care.


Legal Update - Case Reports

Dorothy Emily Pike-Wolferstan (as Mother and Administratrix of the Estate of Jamie Peter Comer) (Deceased) -v- the Northern Birmingham Mental Health NHS Trust Mental Health Unit - failure to provide a safe system: claim under Article 2 of the European Convention (Everyone's Right To Life Should Be Protected By Law) The Claimant's son had a severe form of schizophrenia for which he was detained at the Highcroft Hospital, Birmingham on 3 July 2000 under Section 3 of the Mental Health Act 1983. Various admissions and absconsions followed and on 25 October 2001 he absconded again from the ward and was found dead at a railway line, having been hit by a train. The Inquest returned an open verdict. The deceased was a single man over the age of 21 with no dependents and therefore there was no claim under the Fatal Accidents Act 1987. As the impact with the train was sudden, it was also unlikely that he would recover anything more than minimal damages in respect of pain and suffering on behalf of the estate. The family was advised, however, the circumstances of the deceased death gave rise to important considerations under the Human Rights Act 1998, in particular that he died in violation of his Article 2 rights. The case was pleaded solely on the basis of breach of the Human Rights Act. Where a breach of Article 2 or 3 had occurred, the relatives would have a viable claim for their own psychiatric damage, notwithstanding the rules regarding the secondary victims. It was also considered whether there was some other remedy in relation to the inquest in terms of the requirement of the estate to carry out an effective investigation where there had been a breach of Article 2 of the Convention.
Ms Jacqueline King (Administratrix in the Estate of Robert Dadd) (Deceased) -v- Milton Keynes General & NHS Trust (2004) The Court when assessing the costs of civil proceedings did have jurisdiction to award the costs of attendance at an Inquest if a material purpose of that attendance was to obtain information or evidence for use in the civil proceedings.	Fairlie -v- Perth & Kinross Healthcare NHS Trust NLC 1145 (Scotland: CT of Session OH, Lord Kingarth) July 8 2004 Medical Negligence: Psychiatry - duty of care - whether psychiatrist assessing claims made by child about alleged sexual abuse could owe duty of care both to child and to alleged abusers (child's father and others).
N Harding (Widow & Administratrix of the Estate of Christopher Harding) (Deceased) -v- Nigel Scott-Moncreff (2004) A general practitioner had breached his duty of care to his patient who had suffered heart failure by failing to summon a "blue light" ambulance, failing to administer aspirin and a diuretic, and failing to remain with the patient.
Lewis Frederick Norman Smithers (a minor) by his Father & Litigation Friend Aaron Smithers -v- Taunton & Somerset NHS Trust (2004) Obstetricians were not in breach of their duty of care to an expectant mother and her baby for failing to attend her whilst conducting an emergency operation on another patient in the labour ward. A serious foetal defect (a small exonphalos, a defect of the anterior abdominal wall and possibly coloacal exstrophy, a rare and more serious condition which included extrusion of the bladder and bowel and deformity of the male genitalia) required repetitive operations without any prospect of full correction of the exstrophy. Routine ultrasound picked up the defect and therefore, the hospital ought, on the facts, to have included in its advice to the patient predictions about the potential physical and psychological damage that would affect the life of the child as well as warn of the potential strains on family life. Its failure to do so in the case amounted to failure to exercise due care and skill.	Julia Ward -v- Leeds Teaching Hospital NHS Trust (2004) The Claimant sought damages from the Defendant Trust for psychiatric injury. The Claimant's daughter died in hospital 48 hours after a routine dental operation. The Trust admitted liability for the daughter's death and settled a claim brought on behalf of the Estate. W also brought her own claim alleging psychiatric harm as a secondary victim. Although the circumstances surrounding W's daughter's death were distressing, the diagnostic criteria for a finding of a post traumatic stress disorder required a shocking event of a particularly horrific nature. The death of a loved on in hospital does not meet that description unless also accompanied by circumstances that were wholly unusual. In W's case, her abnormal grief reaction was in response to the death of her daughter rather than anything that happened at the hospital.
Jahan Rashid (a child) by his Father & Litigation Friend (Shamin Rashid) -v- Essex Rivers Healthcare NHS Trust (2004) The Defendants medical team were not liable for the Claimant's brachial plexus injury which occurred following his birth as it was most likely torn by the force of the contractions. A serious foetal defect (a small exonphalos, a defect of the anterior abdominal wall and possibly coloacal exstrophy, a rare and more serious condition which included extrusion of the bladder and bowel and deformity of the male genitalia) required repetitive operations without any prospect of full correction of the exstrophy. Routine ultrasound picked up the defect and therefore, the hospital ought, on the facts, to have included in its advice to the patient predictions about the potential physical and psychological damage that would affect the life of the child as well as warn of the potential strains on family life. Its failure to do so in the case amounted to failure to exercise due care and skill.
Chester -v- Afgar (04) House of Lords The Claimant underwent a back operation. There was a 1% to 2% chance of a partial paralysis. Negligently, the Surgeon did not warn the patient during the pre-op consultation about this risk. The operation itself was carried out competently but unfortunately the risk materialised and the Claimant suffered paralysis. She argued that she would not have gone ahead with this procedure if she had been advised of the risk beforehand. The Court decided in her favour.	Hussein -v- William Hill Group (2004) EWHC 208 QB Expert duty to the Court (CPR 35.3) A personal injury claim, two doctors who were friends of the Claimant, provided medical reports late in the proceedings to support his claim. The Judge found that the Claimant had greatly exaggerated his injuries and the experts were criticised. Their reports were disregarded and their conduct was referred to the GMC.

 

NHSLA - latest figures show drop in claims and costs
Figures just released by the NHSLA show that the number of clinical negligence claims received in England in 2003-2004 dropped by 20% on the previous year to a total of 6,251. The total expenditure (damages and costs) on clinical negligence in England dropped by 5% to £422.5 million. Other interesting statistics from the NHSLA: since its inception in 1995, 35% of clinical negligence claims were abandoned by the Claimant; 43% settled out of Court; 1.5% settled in Court in favour of the Claimant; 0.5% settled in Court in favour of the NHS and 20% remain outstanding. See www.nhsla.nhs.uk

New Complaints Procedure ‘Kicks in' in England
The NHS Complaints Procedure for England changed on 30 July. The most significant change is the responsibility for considering requests and handling independent review of NHS complaints once attempts at local resolution have been concluded has transferred to the Healthcare Commission for Health Audit and Inspection -CHAI). S J Edney, with others, have welcomed this change which introduces much more independence. Complaints referred to the Healthcare Commission will now be screened and, if necessary, investigated by specialist staff employed for that purpose. Another welcome change is that complainants will be able to take their complaint direct to the Healthcare Commission if an NHS body drags out local resolution for six months or more.

For details about the Healthcare Commission's role in complaints, tel : 0845 601 3012 or visit their website : www.healthcarecommission.org.uk.

Stop Press - Mental Capacity Bill
The Mental Capacity Bill is an attempt to clarify the law over the treatment of the dying.

It will give legal force to "living wills", in which people can express a wish in advance to have life-prolonging treatment withheld if they become severely incapacitated. Such documents are backed by case law already, but the aim of the Bill is to back them by statute as well.

The presumption in the Bill is that everybody is entitled to make decisions about treatment unless proved mentally incapable of doing so. It also provides for individuals to give others a lasting power of attorney (LPA) to make such decisions on their behalf and give doctors the right to challenge such decisions if they disagree with them. LPAs could cover welfare, healthcare and financial matters.

Any concerns about the validity of living wills by doctors could also be taken to the courts, with any doubts resolved in favour of preserving life. The Bill, which would apply in England and Wales, would make neglect or ill-treatment of a person lacking capacity a criminal offence, with a maximum sentence of five years.

It would also create a system of court-appointed deputies, who could perform the same functions as LPAs. Deputies would be able to take decisions on welfare, healthcare and financial matters as determined by the Court.

The Bill would establish a court, with jurisdiction over applications for financial decisions and serious healthcare cases, such as decisions to undertake irreversible treatments such as sterilisation, which are currently dealt with by the High Court.
It will also establish a public guardian, in whose care LPAs will be registered, and who will also supervise deputies appointed by the Court. The Bill also includes a code of practice, to provide guidance on working and dealing with people who lack capacity.

The contentious element covered living wills, critics arguing that patients might make hasty or unwise decisions, or their representatives might claim to be acting for them on the basis of a single casual conversation, or might have a pecuniary or other interest in seeing them dead.

 

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This newsletter was produced by S J Edney Solicitors, at Alexander House, 19 Fleming Way, Swindon, Wiltshire. SN1 2NG - e-mail sjedney@supanet.com
Telephone 01793 600721