As we reported in the last issue of our newsletter (37), Great Western Hospital have been prosecuted by the HSE for a breach of the Health & Safety at Work Act 1974 arising from the death of Mayra Cabrera in May 2004.

The full wording of the charge faced is:-

That you, on and before May 11, 2004 at Great Western Hospital, Marlborough Road, Swindon in the county of Wiltshire, whilst being an employer within the meaning of the health and Safety at Work etc Act 1974 (‘The Act’) you contravened the duty imposed by section 3(1) of the Act in that you failed to conduct your undertaking, namely the management and organisation of services at the Great Western Hospital, in such a way so as to ensure, so far as was reasonably practicable, that persons not in your employment, namely patients exposed to risks to their health and safety, namely in relation to risks arising from the storage of drugs and drugs errors, whereby you are guilty of an offence contrary to section 33 (1)(a) of the Act and liable to a penalty as provided by section 33 (1A) as amended.

The hospital pleaded guilty to this offence at Swindon Magistrates Court on the 5 March 2010. The District Judge deemed the case to be too serious to be dealt with at the Magistrates Court and he committed it to the Crown Court for sentence. Arnel Cabrera, Mayra’s widower, is pleased that the hospital pleaded guilty to this offence.

In a statement to the press he said:-

“It has now been almost 6 years since my wife, Mayra died and 2 years since the Inquest into her death was concluded and I would like to thank the HSE for bringing this prosecution and I am pleased with its outcome. It reinforces the importance of the health and safety of patients attending hospital and in particular the safe storage of dangerous drugs. Now this case has been concluded I am hoping that my young son and I can have some closure and put this terrible tragedy behind us”.



In his Civil Litigation Costs : Final Report of December 2009, Lord Justice Jackson has made a number of recommendations that, if adopted, will have a significant affect on how personal injury, clinical negligence and other civil litigation is funded and conducted. The report follows a year-long review of many aspects of funding and costs, which included consultation, comparative study of other jurisdictions and a substantial preliminary report in May 2009.

It is a 557 page report and makes 109 formal recommendations a number of which are described as strong suggestions. The proposed reforms are a genuine attempt to try and reduce the level of legal costs in civil litigation especially with regard to personal injury and clinical negligence cases. We welcome many of the proposals especially the abolition of “referral fees” and an introduction of “one-way costs shifting” – whereby a Claimant will not need to contribute towards the Defendant’s costs if a claim is unsuccessful (as long as they have behaved reasonably). This will hopefully remove the need for an expensive ATE insurance premium which covers the Defendant’s costs (as is the system now).

We disagree, however, with Lord Jackson’s recommendation that a successful Claimant should pay their lawyers success fee. Even allowing for a 10% increase in their damages, almost inevitably there will be a shortfall and many lawyers will seek to recover this from the Claimant.

Lord Jackson’s key recommendations are set out below:-

  • Damages in personal injury and other civil claims to be increased by 10 per cent
  • Success fees charged by lawyers in “no win, no fee” cases and ATE insurance premiums should cease to be payable by an unsuccessful Defendant.
  • Success fees to be capped at 25 per cent and paid by claimants from their damages.
  • Referral fees paid by lawyers to claims companies to be scrapped or if still permitted, capped at £200.00.
  • The principle of “loser pays” goes. Unsuccessful Claimants do not pay defendant’s costs if they behave reasonably. This is intended to link in with the abolition of a success fee and insurance premium being recovered from the other party
  • UK-style contingency fees allowed
  • Fixed fees for accident claims up to £25,000.00
  • Lawyers’ hourly rates and fixed costs to be reviewed annually


Duty of Candour – a patient’s right to know

We fully support Action against Medical Accidents (AvMA) campaign for a statutory duty of candour to be introduced into English law following a medical accident. As the readers of our newsletter will know, in the case of Mayra Cabrera, there was a delay in some 14 months before her husband (Arnel) was advised of the real cause of her death (bupivacaine toxicity). During this time, he mistakenly thought that she had died from natural causes. The true cause of her death only came to light after he instructed our firm to investigate her death.

Unfortunately, Mayra’s case is not an exception to the general rule. Medical accidents are very common. There are estimated to be over one million patient safety incidents in English hospitals each year; half are thought to cause avoidable harm. The Department of Health estimates that one in ten NHS patients will be unintentionally harmed. Nevertheless, the NHS reports receiving only 5,000 clinical negligence claims a year ie.1% of cases.

The good news is from April 2010, new regulations are being introduced which will require NHS bodies to report patient safety incidents to the National Patient Safety Agency. There is still, however, no statutory duty to tell individual patients.

AvMA and others would like to see this duty extended so patients or their next of kin are informed of errors or incidents which might have caused them harm. Although there is a professional duty of candour on the part of the doctor, there is no such legal duty at present. The professional duty is not enforceable by patients and does not extend to non clinical staff. In our experience, it is still rare for patients to be advised of an avoidable medical error as happened in the case of Mayra Cabrera. Patients and their families should be dealt with honestly when things go wrong.

Client Referral Scheme

If a former or an existing client recommends either a friend or a member of their family to our firm for advice about an accident or medical negligence claim and we are able to help them, as a token of our thanks we would give that client a £100.00 worth of Marks & Spencer vouchers or alternatively make a donation of this value to their nominated charity.

Swindon – we have a problem

We were pleased to note that the 230 million UK Space Agency is to be based in Swindon. Following its recent twinning with the Walt Disney World in Florida, this certainly puts the town on the map and will ensure it has a much bigger profile in the future.

This newsletter was produced by S J Edney solicitors Telephone: 01793 600721

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