Issue 18
March 2005

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.

 

Injury Costs Plan is postponed

• The Government has recently backed down on plans to recover the cost of treating workplace injuries from insurers after the industry gave warning that the £150m costs would raise Employer’s Liability premiums.
• Instead of being implemented on April 1 2005 the plan to extend the NHS recovery service will now not come into affect until October 2006.
• The NHS is already able to recover part of the costs of treating road accident victims from motor insurers. The Department of Health had planned to extend this to people involved in workplace accidents.
• The Association of British Insurers (ABI) are pleased with this postponement. This year they expect the cost of Employer’s Liability cover to rise by between 10% to 15%. “An extension of the NHS Recovery Service would have pushed the rise up to 20% the Association” said in a press release.

 

Insurers fail in quest to put an end to compensation for pleural plaques

People diagnosed with pleural plaques – a scarring of the lungs resulting from asbestos exposure, can continue to claim compensation, a High Court Judge has ruled.

The failed attempt by the Insurance Industry in Grieves –v- Others to block payments for the condition has been hailed as a victory for justice over greed by Claimant’s Solicitors. Insurers had argued that the condition was without symptoms and therefore suffers should not be compensated.

This case looked at whether or not pleural plaques should be an “actionable injury” and whether the level of damages awarded was too high.

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MRSA INFECTIONS ARE DOWN

The Government announced in March that cases of MRSA, the hospital superbug, are now at the lowest ever recorded after a crack-down on poor hygiene standards.

The most recent data for methicillin-resistant staphylococcus aureus show that there were 3,519 cases in NHS hospitals between April and September last year, down from almost 4,000 over the preceding six months.

However, the current level is only 79 cases lower than in April 2001, when recording of the antibiotic resistant bug began. Opposition politicians questioned how cases could be falling when the number of MRSA-related deaths had risen markedly over the same period. This could, of course, be explicable by reference to the virulence of prevalent strains. More worryingly still, it could reflect growing drug-resistance in the bacillus.

Hospital-acquired infections are responsible for about 5,000 deaths a year in the NHS, with 1,000 related to MRSA alone.

Michael Howard, the Tory leader, has made the Government’s record on MRSA a key plank of his pre-election assault on Labour’s stewardship of the NHS, “Cleaner Hospitals” is one of his five key election pledges.

 

LEGAL REFORM Barristers and solicitors may soon cease to belong to self regulating professions and are facing a major shake up of the ownership of legal practices. The Lord Chancellor has recently committed the Government to a White Paper that will strip the legal profession of control of its own complaints handling and he is also expected to announce plans to allow lawyers to go into business with non legal professionals such as accountants. The Lord Chancellor wants to press ahead with proposals put forward last December by Sir David Clementi, the Chairman of the Prudential, to sweep away restrictive practices and make the legal profession more “consumer focused”. The Clementi report proposed that a single Office for Legal Complaints should handle all complaints against lawyers and that a “Legal Services Board” with a lay majority, chaired by a non lawyer and accountable to Parliament, should oversee all lawyers. Sir David also recommended that barristers and solicitors should be free to go into business with each other, outside companies or individuals who should be able to own or manage law firms – an idea that has been dubbed “Tesco Law”. There would have to be a “fitness test” to ensure that criminals or undesirables could not become investors. What this means in practice is that high street retailers, such as supermarkets or chains such as Marks & Spencers, could set up their own law firm and offer legal services to the public – a practice currently prohibited. Customers could then shop for food or clothes alongside buying a will or obtaining advice on a house purchase. The RAC has already come out strongly in favour of this proposal. It wants to be able to offer a range of legal “car related” services to its customers. These proposals threaten to divide the legal profession and are resented by the Bar, whose system for handling complains against barristers is regarded as working well – in contrast to the Law Society’s troubled service for grievances against solicitors. The Bar also opposes allowing lawyers to join partnerships with other professionals.
PERIODICAL PAYMENTS As from 1 April 2005, the Courts will now have power to award damages in respect of personal injury in the form of periodical payments instead of the traditional “lump sum” method of compensating injured people. This is only where it is likely to be more appropriate for all or part of an award for damages. It is important to establish beforehand what best meets the Claimant’s needs. For example, that person with a very serious disability, might be better off if the annual sum agreed for care or loss of earnings is paid to them every year until they die. They would then have some certainty knowing that this money could not run out as sometimes happens with a “lump sum” payment. The disadvantage is that an injured person would be tied to the periodical payment for a very long period. Their situation could change in ten to twenty years and they might wish to have access to a capital sum. There are good tax reasons for a Periodical Payments Order in that they are exempt of income tax and the insurers will be given a tax break.
Causation : clinical negligence The law says in a personal injury or clinical negligence action, a Claimant has to prove that the Defendant’s breach of duty has either caused or made a material contribution to the damage they have suffered. This is sometimes called the “but for” test. In two recent cases the House of Lords has had the opportunity to consider causation again in clinical negligence cases. In one case (Chester –v- Afshar) they have created another exception to meet the justice of the case, in another (Gregg –v- Scott) they have held back from changing the law, for now. It is worth examining these two cases in a little more detail.
Chester –v- Afshar In this case the surgeon had failed to advise the Claimant of a 1-2% risk of a complication during a routine back operation. Unfortunately the risk materialised and she was left partially paralysed as a result of the operation. No criticism was made of the surgery only the surgeon’s failure to warn of this risk. In simple terms, it was the Claimant’s case that if she had been advised of the risk, she would not have had the operation on that particular day but it is likely that she would have had it at some other time. Any future operation would have carried a similar risk of the same complication. This had not been created by the surgeon’s failure to warn. She therefore (it was argued) did not satisfy the “but for” test. The House of Lords nevertheless found in her favour. On policy grounds, causation had been established. The majority of Judges concluded that the surgeon had violated the Claimant’s right to choose for herself and he had been in breach of his duty to her. Unless this right was upheld, the duty to warn would be a hollow one. For a Claimant to succeed, he or she will need to show that there was a failure to warn him or her of a particular risk. They will also need to establish that if they had been warned, they would not have consented to that treatment on that particular day by that particular doctor. The practical upshot of all this is that the doctor’s duty to warn is to be more strictly enforced. Members of the medical profession must ensure that they have informed their patient of the risks involved in treatment and that they gain informed consent from their patient.	Gregg –v- Scott (why the NHS can breath a huge sigh of relief) This is a complex case. Briefly, the Claimant complained to his GP in 1994 of a lump under his left arm. He was told that this was a collection of fatty tissue. In fact the lump was non Hodgkin’s lymphoma. The correct diagnosis was not made until 1995 and as a result of the delay the Claimant was advised that there was no prospect of a cure but that the prospect of a cure had always been less than 50% in any event. This case raised the complex issue of whether damages are recoverable in a clinical negligence case where there is a loss of chance. This issue is one that very frequently occurs in clinical negligence cases in which a “window of opportunity” for successful treatment is lost. The majority of the House of Lords held that causation had to be shown by the Claimant on the balance of probabilities. The Defendant is only obliged to compensate somebody for something that would probably have happened in any event. With respect to their Lordships, this decision appears to us to be bizarre. In this case when the Claimant first consulted his GP he had a 40% chance of survival from his cancer had it been treated diligently but as a result of this delay he now only had a 20% chance of survival. In other words, the admitted negligence on the part of the GP had halved his chance of life which had caused a loss which we believe should have been compensated. If on the other hand, the chance of survival had been reduced from 51% to 49% he would have been compensated.

 

A & E ADMISSIONS – recent statistics

The Department of Health has recently released figures as to the type of accidents causing people to attend their local A & E department.

• The natural world played a small part: 451 people were stung by hornets, 6 were bitten by scorpions, 46 by snakes, 24 by rats and 2 were struck down by centipedes.
• Hobbies and household objects contributed to A & E admissions: 22 people suffered mishaps with their pyjamas, 9 had accidents with their beds and 4,533 were injured by a mélange ice skates, skis, skateboards and roller skates.
• At the more unusual end of the scale, exposure to noise and vibration accounted for 8 admissions, while one child had to attend hospital after a “prolonged stay in a weightless environment”. Forces of nature also took their toll, according to the official statistics, with 37 people admitted as “victims of volcanic eruption”, 7 because of earthquakes, 8 after avalanches and 25 due to “cataclysmic storms”. Lightning put 54 Britons in hospital.
• A further 107 people suffered exposure to “unspecified forces of nature”, 239 experienced incidents with “animate mechanical forces” and 9 suffered “accidental suffocation and strangulation in bed”.
• As many as 207 people had to spend time in hospital after “coming into contact with plant thorns, spines and sharp leaves”. Contact with “a non powered hand tool” – such as hitting your hand with a hammer – claimed 4,115 victims, while 299 people were hurt by lawnmowers.
• Almost 2,000 people, mostly children, had to go to hospital after falling out of trees.
• The figures for the 12 months to last April also take into account 138 people who had foreign objects left in their bodies during surgery.

According to the Royal Society for the Prevention of Accidents, accidents in the home account for an estimated 4,000 deaths a year.

 

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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