10 Year Anniversary

Issue 23
June 2006

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.

 

YOUNG MOTHER DIES AFTER HAVING EPIDURAL IN HER ARM

Another one of our cases has generated much interest in the press during recent weeks. It has been widely reported both in the local and national newspapers and was the lead report on BBC Points West and BBC Oxford news on the 25 May 2006.

It concerns the very sad case of Mrs Myra Cabrera who died within 1½ hours after giving birth to her child in May 2004 at Great Western Hospital (GWH) in Swindon. Myra (who came from the Philippines) became pregnant in 2003. She was admitted to the delivery suite of GWH on the 10 May 2004. The first and second stages of labour proceeded without incident. She eventually gave birth to a boy on the 11 May 2005.

During the course of the perineal repair, she became dizzy, started fitting and eventually arrested. Resuscitation attempts were sadly unsuccessful. It later transpired that her death was caused by an accidental intravenous infusion of a very potent anaesthetic into a vein in her right hand. This should only have been given in small doses as an epidural into the epidural space of the spinal cord.

The Hospital Trust have admitted liability and apologised to Mrs Cabrera’s family for what happened. To compound matters, she was a Nurse at GWH and not surprisingly her death has had a huge impact on both her colleagues and friends at the hospital. It is a shame however that no member of staff has admitted to making this error.

A pre-hearing Inquest was held into her death last November but it was adjourned to enable the Police to investigate the circumstances surrounding her death. A decision will be made shortly by the CPS on whether anyone should be prosecuted.

Once the CPS has made a decision and provided no criminal liability attaches to any individual or the Hospital Trust itself, the Inquest will resume. We will be pressing for the following questions to be answered at this hearing:-

1. how did this terrible error come to happen? – it is even more remarkable because the bag of anaesthetic was clearly marked with the words “For epidural use only”;

2. what lessons can be learnt by both the Hospital Trust and the Department of Health to ensure that this type of error does not happen again in the future – epidurals are commonly used during childbirth to provide pain relief and women need to be reassured that systems are in place to minimise the risk of this mistake being made again;

3. further, it is important to find out why there was delay in the Hospital Trust acknowledging that this mistake had been made. Mrs Cabrera’s husband returned to the Philippines shortly after her death believing that she had died from natural causes. He only learnt that something had gone wrong over a year later. In our view, the Hospital Trust failed in their duty of candour to Mr Cabrera.

This case raises many important issues which we will revisit in future issues of our newsletter.

Clinical Negligence Cases

The recent case of Anderson –v- Milton Keynes NHS Trust heard in the High Court on the 11 May 2006 is a good example of what a patient needs to be able to prove before succeeding with a clinical negligence claim.

In this case, the Judge found that the Hospital Trust had been in breach of its duty to the Claimant by not communicating to the Surgeons performing an operation the results of laboratory tests which showed the presence of bacteria in his surgical wound. The Claimant argued that if the hospital had administered antibiotics in time this would have killed the bacteria. The Judge disagreed and took the view that the hospital was not liable to the Claimant for his injury as, on the balance of probabilities, even if antibiotics had been administered before he underwent surgery, they would have been immune to attack by that time and his eventual ongoing disability could not have been avoided. He was therefore entitled to no compensation.

This case illustrates that to succeed with this type of claim a patient needs to be able to establish the following:-

• firstly, that the standard of care provided fell below a level normally expected of a practitioner in that particular field or specialisation (this is what lawyers call breach of duty) and
• secondly that the damage suffered is a direct consequence of a negligent act or omission (this is what lawyers call causation)

Without there being a direct causal link between breach of duty and causation a patient is not entitled to any compensation as happened in this case.

Ending the postcode lottery

Judgment was handed down by the Court of Appeal in the case of Anne Marie Rogers -v- Swindon NHS PCT in April 2006.

Mrs Rogers, who suffers from early stage breast cancer, had challenged a decision by Swindon PCT refusing her application for funding in respect of treatment with a drug Herceptin. The Court found that the policy adopted by the PCT in this case had been irrational and therefore unlawful. It directed the PCT to reconsider its policy and to formulate a lawful policy upon which to base decisions in individual cases including that of Mrs Rogers. The PCT had however earlier agreed to fund Mrs Rogers next course of treatment with the drug and to pay for her reasonable legal costs.

What has been overlooked by some newspapers is that the PCT were only ordered to fund her treatment until they have formulated a lawful policy which addresses those criticisms made by the Court. The Court did not say however that the PCT should fund this treatment indefinitely.

Although, since this Judgment the National Institute of Clinical Excellence (NICE) have reappraised this drug and recommended that its license should be extended for the treatment of early stage breast cancer, we are still left with a “postcode lottery” when it comes to medical treatment for certain medical conditions. Herceptin, is a very good example of how this works in practice, in that women living in Wales could receive it for free even if they were treated in England, while women living in England had to raise the £30,000.00 costs of the treatment themselves.

What happens when the next potentially lifesaving drug comes along? We think it is time for the Department of Health (acting in concert with NICE) to have a national policy and guidelines which all PCTs can follow with new drugs so that they are available to everyone, no matter where they live and it is for the patient (and not their PCT) to decide on whether they would like to use that particular drug.

MARKET PLACE FOR LEGAL AID

Plans are afoot to replace the £2 billion Legal Aid scheme with a competitive marketplace in which lawyers will need to bid to win work have recently won minister’s approval. A report due shortly from a Lord Carter of Coles which will pave the way for a radical redistribution of Legal Aid work. It is likely to mean that hundreds of small Legal Aid firms will either go out of business or merge to form bigger practices. As many as half of the 2,500 Legal Aid firms in England and Wales could cease to operate as separate practices. Under the new market based model, criminal Legal Aid lawyers will move to a system of fixed fees rather than being paid for time spent on a case and they will need to compete for contracts for work in Police stations and Courts. Similar proposals are anticipated for civil cases.

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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 office@sjedney.co.uk Telephone 01793 600721