Healthcare - July 2010
Litigation round-up and useful lessons
Mid Staffordshire NHS Foundation Trust
Robert Francis QC published the report of his
Independent Inquiry into the care provided by the Trust on 24
February 2010. Following investigation of the care at
Stafford between 2005 and 2009, he highlighted a number of common
themes including repeated accounts of poor continence and bladder
care, particularly to frail and elderly patients; cases of falls
leading to serious injury; that there often appeared to be too few
staff to cope with the high dependency needs of elderly patients
leaving those patients at risk from harm; call bells were out of
reach; many patients experienced little or no help in washing or
attending to other personal care needs; meals were placed out of
reach or were taken away before they could be touched; there were
accounts of poor pressure area care; many witnesses commented on
the lack of appropriate cleaning. The standard of record
keeping was a frequent concern. There were areas of
misdiagnosis and inadequate communication.
He has made a number of recommendations
including that:
- The Secretary of State monitor and review the
arrangements of the training appointment, support and
accountability of Executive, non-Executive Directors of NHS Trusts
and NHS Foundation Trusts
- The Department of Health establish an
independent group to examine mortality statistics
- The Secretary of State should consider
whether the Trust should have its Foundation Trust status removed
and if not, he should keep that option under review
- Fifteen recommendations to the Trust to
improve safety and quality of care to patients
At the time of publication of the report, the
NHSLA issued a press statement confirming that it has instructed
solicitors to deal fairly and speedily with claims and would settle
those properly to be met. It was hoped that the litigation
process could be avoided.
DH Communications set up a helpline to handle
enquires from individuals, referring those who wished to make a
claim directly to us. No calls have been received.
‘Cure the NHS’ referred a number of cases to
Leigh Day & Co Solicitors. They in turn have instructed
Philip Havers QC, who represented the families at the inquiry.
The intimated claims include both Human Rights
Act claims and clinical negligence claims. Secondary victim claims
are now being intimated on behalf of family members. There is no
general admission of liability and each case is being reviewed on
its merits. Apologies have been provided by the Trust in a
number of claims.
It is hoped that a collaborative approach can
secure resolution on suitable claims promptly.
Weightmans LLP represented the Trust in
connection with the claims arising from the alleged poor care at
Stafford Hospital between 2005–2009.
Patient information upon Hospital Acquired Infections
In acting for several NHS Trusts in connection
with claims concerning hospital acquired infections, it has come to
our attention that patient leaflets may be giving misleading
information. Recently we reviewed guidelines on Control and
Management of Clostridium difficile infection the appendix
included: Clostridium difficile is a cause of diarrhoea which
is usually acquired in hospital (our emphasis). We
know from a number of experts in the field that community
associated C. difficile infection is significantly under-reported
and that some patients – even if a small minority - already have C.
difficile within their gut prior to admission to hospital. We
recommend careful consideration is given to the wording of such
leaflets and old guidance is re-visited. (We understand the leaflet
mentioned above was prepared by the Association of Medical
Microbiologists in 1998.)
Innovative methods of resolving compensation claims
Avoiding overpayment by providing for
reversion of unused compensation to the NHSLA
XY v Birmingham Children’s Hospital
NHS FT
The claim was pursued by a minor.
Breach of duty and causation were admitted and the Official
Solicitor was appointed as Litigation Friend. The Claimant suffered
numerous physical injuries and a subtle brain injury superimposed
on pre-existing learning/behavioural problems, he did not have
capacity and expressed no interest in pursuing the claim. The
Official Solicitor proposed the claim was quantified on the
evidence available and Leading Counsel recommended settlement on
condition that any unused funds reverted to the Defendant (NHSLA)
on the Claimant’s death. This mechanism was agreed. The Court
approved, in principle, a settlement (in excess of £1m) paid into a
Trust Fund with the Claimant and NHSLA as sole beneficiaries.
On the claimant’s death the Trustees will pay any remaining sum to
the NHSLA.
This was considered a pragmatic method of
resolving a claim to ensure the claimant had the security of funds
without incurring significant legal costs awaiting a Judicial
Decision in the distant future when a complete portfolio of
evidence/assessment may have become available.
A new method of resolving future loss
of earnings compensation claims
Future loss of earnings claims are usually
calculated by multiplying the annual loss (at today’s average
earnings rates) by a discounted actuarial figure (which provides
for the number of years the loss will be incurred).
In a recent claim it was asserted that the
claimant would (but for the negligently caused brain injury) have
earned considerably more than average earnings and the compensation
should be calculated by way of statistics providing for the top 90%
of female earners.
Following significant input from statisticians
and educational experts, it was asserted that the claimant was
likely to have obtained a degree. Her solicitors argued that the
annual loss of earnings figure should be paid each year (as
periodical payment rather than a one-off lump sum) and should be
reviewed annually in line with published data of graduate earnings,
rather than the average earnings figures.
In negotiations, annual payments were agreed.
However the claimant was persuaded to accept annual payments based
on average earnings rather than graduate earnings (which would have
provided a much higher level of compensation). It was agreed
the payments would be annually reviewed and amended to reflect
changes in the published data.
This settlement offered the benefit of
periodical payments (which can change from year to year depending
upon averages set out in published statistics) and preservation of
the preferred method of resolving such statistical issues thus
avoiding potentially repercussive and costly litigation. It
is hoped future claims can be managed similarly if the traditional
method of calculating a lump sum is considered
inappropriate.
Choosing the right case to defend
Consent for treatment
Saini v West Middlesex University
Hospital NHS Trust
The claimant alleged that she did
not give consent for surgery to correct bunions. Post operatively,
she suffered pain which impacted on her ability to walk, stand and
perform domestic tasks. She said she had never
received pre-operative information sheets, had never discussed
conservative options with the treating Consultant Podiatric
Surgeon and did not read the consent form before signing it.
She said if she had been made aware of the risks of on-going pain
she would have opted for conservative management or obtained a
second opinion rather than go ahead with surgery.
The hospital staff said she was given all of
the necessary written and oral advice/information for the elective
procedure, and she had exhausted conservative options without
benefit and, as such, she had been referred to the hospital for a
surgical solution.
The matter was essentially a dispute of fact.
His Honour Judge Powles QC sitting at Brentford County Court
preferred the Hospital's evidence. He had in mind that the claimant
had no cause to question the consent process until three years
after the operation and she had difficulty separating the risks
from the eventual outcome. He concluded the claimant had been given
information sheets and had genuinely forgotten that the Consultant
had discussed the risks and benefits with her. He also
concluded that the claimant would have agreed to the surgery in any
event as her friends had undergone similar surgery with
a favourable outcome.
This was an excellent outcome for the hospital
and we are keen to identify and defend claims for trusts where
there is clear evidence to support the trusts’ actions especially
when we have the benefit of supportive factual evidence from the
hospital staff involved (of course this is always easier to secure
if the staff have clear notes of discussions and/or department
policies to rely upon).
Information about risks to staff from
patients
Jordan Smith v Pennine Care NHS
Foundation Trust
The claimant (a hospital
employee) alleged that a patient had kicked his arm and that the
Hospital had breached its duty to him for failing to advise him the
patient had a history of violence. It was also alleged the patient
should not have been allowed on the ward, and should have been more
closely observed.
It was the Hospital’s case that 22 patients on
the ward presented such a risk and even with knowledge of this
particular patient’s history, the assault was so sudden that it
could not have been prevented. The court accepted that the claimant
would have wanted to know about the risks of all 22 patients but
doing this on his first shift would not be reasonable. It also
concluded the assault would have happened even if the Hospital had
given all the information. The claim was dismissed and the Hospital
awarded their costs.
If this claim had succeeded the demands on
Trusts would have been unworkably onerous and this was clearly a
sensible decision. However, it illustrates the possibility that
when new employees join the Hospital information regarding wards
and particular risks are important to pass on during health and
safety training/induction.
Slip on ward
Elizabeth Terry v Blackpool Fylde and
Wyre Hospitals NHS Foundation Trust
An auxiliary
nurse slipped on a wet floor and injured her back. The Hospital
relied on strong evidence from three members of staff on duty at
the time that the “clean as you go” policy was working well and all
staff knew what to do in the event of a spillage. The
claimant was not convincing in her evidence and gave the location
of the accident as near to a filing cabinet which did not
exist.
The Judge concluded that, despite the
inconsistencies in the claimant’s evidence, she seemed very
pleasant and was unlikely to be dishonest; the inconsistencies
arose due to her shock at having fallen. On the balance of
probabilities the accident occurred as alleged but the cleaning
policy was effective and proportionate. There was no evidence
that the hospital’s witnesses had negligently failed to implement
the system and he could not make a finding as to who had caused the
spillage or how long it had been there. The claim was
dismissed and the Hospital secured an order for payment of their
costs.
This result continued a trend of successful
defences in slipping cases where we and the Trust believed the
policy in place was appropriate, proportionate and efficiently
implemented.
Jasmine Armstrong, Associate
Weightmans LLP