10 Year Anniversary

Issue 22
March 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.

DELAY IN DIAGNOSING LUNG CANCER

One of our cases has generated much interest from the press during recent weeks. It was the lead report on BBC Points West news on the 25 January 2006. It involved a delay on the part of the Royal United Hospital in Bath (RUH) in diagnosing lung cancer in one of our clients which had very tragic consequences for her.

Briefly, she first attended the RUH in December 2002 following repeated chest infections. She had been a smoker for 20 years and there was a history of lung cancer in her family. Various tests were undertaken at the hospital including a CT scan of her right lung.

She was told at this time that she had a hamartoma (which is similar to a cyst). She was reassured that she did not have a malignant cancer as she herself suspected. She was promised an early follow-up appointment which sadly never materialised.

Due to her ongoing health problems, she was eventually seen again at RUH and during March 2004 following further tests and scans she was told that she did in fact have lung cancer. She was then referred to the Bristol Royal Infirmary and underwent surgery to remove the tumour.

Sadly, the tumour returned and the cancer progressed into her lymph nodes. She then had to undergo an extensive course of chemotherapy and radiotherapy at Bristol.

In subsequent proceedings bought by her at Court, RUH through their solicitors admitted that there had been a breach of duty ie. the CT scan taken during December 2002 had not been properly interpreted and a diagnosis of lung cancer should have been made by no later than March 2003. They disputed however causation. They maintained that a delay of 12 months in diagnosis did not make any difference to the eventual outcome for her. They maintained that she still had a greater than 50% chance of survival in March 2004 when the diagnosis was made.
Our own causation expert (a well known Oncologist) disagreed with their position. In simple terms, he felt that if a diagnosis had been made in March 2003 our client would have had a 66% chance of surviving 5 years as opposed to a 38% chance of surviving 5 years once a diagnosis had been made 12 months later. The tumour would have been much smaller and it would have been operable.

There was exchange of causation reports in this case and the causation experts then discussed the issues. The Hospital Trust then reconsidered their position and after lengthy negotiations put forward an offer to compensate our client which ran into tens of thousands of pounds. The case was settled just before Christmas 2005 but sadly our client passed away on the 11 January 2006.

She was a very brave and determined woman and we were pleased that the case was resolved in her favour before she died. It was disappointing however that the Hospital Trust did not concede liability much earlier which would have given our client more time to enjoy her damages with her family without the worry of this ongoing litigation.

The Embryo Case

Another case which has been widely reported in the press during recent weeks is Natallie Evans attempt to persuade the European Court of Human Rights (ECHR) to rule that she should be able to use embryos created in 2001 with her former partner notwithstanding that he had since withdrawn his consent.

She had been unsuccessful in her appeal to use the embryos in the UK and this was very much her last chance especially as the five year statutory storage period for the embryos is due to expire in October 2006.

The Court ruled by a majority of 5 to 2 against Ms Evans who claimed that the UK law, in allowing her former partner to withdraw his consent for the embryos to be used, had interfered with her right to a private and family life under the Human Rights Act.

“The Court did not accept that the............... rights of the male donor would necessarily be less worthy of protection than those of the female; nor did it regard as self evident that the balance of interest would always tip decisively in favour of the female party" it said.

The 7 European Judges also ruled unanimously that an embryo has no independent right to life and that Ms Evans had not been discriminated against for being infertile.

Her only hope now is to apply to a panel of 5 new ECHR Judges for her case to be considered by the Grand Chamber, the ultimate European Court, which is presided over by 17 Judges.

Her solicitors will now be inviting the Grand Chamber to hear her application as a matter of urgency and the ECHR has indicated that the embryos should stay in storage until any application to it has been decided upon.

 

Parents in Court to try to stop doctors ending their sick child's life

Another case currently in Court and much reported in the press is the very sad case of the parents of a terminally ill boy who are trying to persuade a Judge to stop his doctors withdrawing their child's life support. Their 18 month old son has a severe degenerative muscle condition and is virtually paralysed.

His doctors say that the boy is so severely ill that by keeping him alive on a ventilator they are condemning him to an "intolerable life". His parents disagree. They believe that he is able to recognise them and he should be kept alive as long as possible. The Judge in this case acknowledged that this is the first time a Court has been asked to make a life or death ruling on a child who has "near or full" cognitive function.

In this Judgment, he ruled in favour of the parents. Although terminally ill, their son should be kept alive on a life support machine against the wishes of his doctors although he did give the doctors the right to withhold painful emergency treatment.

This case contrasts with another baby, Charlotte Wyatt, who clings to life. She was born 3 months prematurely 2 years ago with serious brain, lung and kidney damage. In her case, where again the parents have argued for keeping her alive, a Judge has ruled that doctors need not resuscitate her if she enters a medical crisis.

 

 

COST OF INJURY

Government proposals to change the Criminal Injuries Compensation system (CICS) could force insurance premiums to rise for many small firms according to the Federation of Small Businesses. A Government consultant proposes that businesses insurance policies pay for compensation to workers who are victims of crime rather than the Government backed CICS.

 

Asbestos & Pleural Plaques The ongoing dispute between Claimant's solicitors and insurers on whether a Claimant is entitled to compensation once they are diagnosed with pleural plaques (a scarring of the lungs resulting from asbestos exposure) recently came before the Court of Appeal in the case of Rothwell -v- Chemical - Insulating Co Limited (2006).

Pleural Plaques are generally symptomless. They can only be diagnosed by either an x-ray or CT scan. They are not associated with the more serious conditions like asbestosis or mesothelioma. There were three possible heads of damage:- 1. Injury in the form of pleural plaques 2. Risk of future development of disease 3. Anxiety caused by the pleural plaques

For 1. the Court of Appeal held that a change in the body which produced no symptoms and was not apparent save for an x-ray or CT scan did not amount to an injury.

For 2. the Court held that there was no connection between the pleural plaques and the risk of future disease. Pleural plaques were evidence of asbestosis exposure and there was no causal link with more serious conditions.

For 3, anxiety alone is not a recoverable head of damage. English law does not recognise fear of future disease as a loss which can be recovered.

This decision effectively now puts an end to this type of litigation in the future.

 

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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