A review of recent clinical negligence cases
November 20, 2017
Although I only do clinical negligence claims involving the brain or spine, I enjoy reading a wider range of reported cases, because they throw up and emphasise important issues. Here are a few from this year. The case of Muller is really important because, whenever the alleged negligence relates to diagnosis, claimants’ lawyers must be very careful about the use of Bolam and Bolitho. This is a case where the Bolitho indefensibility did not relate to the logic of the medical or clinical opinions, but to the expert’s use of the wrong legal test. The costs case is also significant, because it highlights the importance of claimant lawyers making a clear and reasoned decision about when to commence proceedings, as there is a real difference on assessment between past and future costs.
Muller v King’s College Hospital  EWHC 128 (QB)
Kerr J – 1.2.17
The judge rejected an expert’s opinion because it was Bolitho indefensible, because it was underpinned by applying the wrong legal test.
The claimant had survived cancer. He was diagnosed with a malignant melanoma which was excised by surgery. Six monthly scans showed him to be clear of cancer, and it was agreed at trial that his life expectancy was normal. He claimed that his cancer should have been diagnosed earlier. The histopathologist diagnosed a non-malignant ulcer when in fact the lump was a malignant melanoma.
The parties disagreed about the application of Bolam in these circumstances, and this was the issue of significance. The judge felt that the authorities applying the conventional Bolam approach to negligence in this field do not sufficiently differentiate between two types of case.
The first type is a case such as the present, where the patient’s condition is unknown, and what is alleged to be negligent is a doctor’s diagnosis of the condition with no decision made or advice given about treatment or further diagnostic procedures. The diagnosis is either right or wrong and, if wrong, either negligently so or not. Such a case could be called a “pure diagnosis” case.
At the other end of the spectrum is the second type of case: a “pure treatment” case, where the nature of the patient’s condition is known, and the alleged negligence consists in a decision to treat (or advise treatment of) a condition in a particular manner. The second type of case is the paradigm for application of the Bolam principle.
It is its application to the first type of case which has led to some difficulty and confusion in the development of the law. A report setting out a diagnosis without any recommendation for treatment or any further diagnostic procedure, is far from what McNair J had in mind when he directed the jury in Bolam v. Friern Barnet Hospital Management Committee  1 WLR 582.
“I have had to review that case law in some detail in order to draw from it, with some regret, the conclusion that even in a pure diagnosis case such as this, the exercise of preferring one expert to another must be viewed through the prism of the Bolitho exception, rather than, as would be preferable, by rejecting the very notion that the Bolam principle can apply where no “Bolam-appropriate” issue arises….. McNair J did not have a pure diagnosis case such as this in mind when he gave his direction to the jury…. I am bound by the law as it currently stands, to approach that issue by reference to a possible invocation of the Bolitho exception. I must not, therefore, reject Dr Foria’s view unless I am persuaded that it does not hold water, in the senses discussed in Lord Browne-Wilkinson’s speech in Bolitho….: that is to say, if it is untenable in logic or otherwise flawed in some manner rendering its conclusion indefensible and impermissible.
I consider that Dr Foria’s contrary view proceeds from an application of a lesser standard than that of reasonable skill and care which the law imposes. This is, therefore, a case where the conclusion of Dr Foria is underpinned by applying the wrong legal test and, as such, his reasoning and conclusion are not defensible and fall within the Bolitho exception.”
Webster v. Burton Hospitals NHS Foundation Trust  EWCA Civ 62
Court of Appeal 13.2.2017 – the correct approach to deciding what information a patient should be given when asked for her consent to a procedure.
Ms Butler was under the care of a consultant obstetrician, but that did not protect her from negligence. At no time did he note that the foetus was small for gestational age, nor did he note the recorded asymmetry nor the polyhydramnios. It was accepted by the defendant trust that he acted negligently in failing to arrange further ultrasound scanning. The main issues before the Judge were what would have been shown if further ultrasound scanning had taken place, and what should have happened as a consequence. The judge, deciding the case before Montgomery, used Bolam as the guiding light in relation to the issue of consent.
The Court of Appeal decided that the judge had plainly erred in his approach: the issue was not whether a reasonable body of medical opinion would have been deflected from a particular course, but what advice should properly have been given to the mother and what would have happened as a consequence. “It is clear…. that the Judge followed the Bolam approach of basing his judgment on whether the obstetrician acted in accordance with a responsible body of expert medical opinion. It is now clear from Montgomery that this is no longer the correct approach.”
Harrison v University Hospitals Coventry  EWCA Civ 792
Court of Appeal 21.6 17
The difference on assessment between costs already incurred and future costs set out in the budget.
The two principal issues concerned the relationship between costs budgeting and detailed assessment.
The first issue was: where a costs management order approving a costs budget has been made in the course of civil proceedings, is a costs judge on a subsequent detailed assessment precluded from going below the budgeted amount unless satisfied that there is good reason for doing so? Or is there an entitlement to do so without any prior requirement of good reason for going below the budgeted amount?
The second issue was whether, with regard to costs incurred prior to the budget (“incurred costs”), there is or is not a like requirement of good reason if a costs judge on a subsequent detailed assessment is to depart from the amount put forward at the relevant costs management hearing.
The claim for damages arising out of a caesarean section was limited to £50,000, and was commenced in 2013. Liability was disputed. There was a costs management conference in 2014. The claimant’s total of incurred costs and estimated future costs was£197,000. The judge recorded no comment on the figure relating to incurred costs: that amounted to some £108,000 of the figure of £197,000 then being put forward. The case was settled in 2015 shortly before trial, for £20,000. The claimant’s solicitors then put forward a bill of costs of over £467,000 (for a £20k claim??!!).
Master Whalan took the view that, so far as budgeted costs were incurred CPR 3.18 precluded him from subjecting them to a “conventional” detailed assessment at the behest of the defendant unless good reason for doing so was shown. As to incurred costs, he said that it was “in practical terms” required that good reason likewise should be shown if there was to be a departure from what was set out in Precedent H.
The Court of Appeal was in no doubt that the Master had reached the right conclusion on the first issue, as had Carr J in the later case of Merrix v Heart of England NHS Foundation Trust  EWHC 346 (QB),  1 Costs LR 91.
However, the decided that incurred costs are not within the ambit of CPR 3.18 (in its unamended form) at all. Accordingly such incurred costs are to be the subject of detailed assessment in the usual way, without any added requirement of “good reason” for departure from the approved budget.
The distinction needs to be borne in mind very clearly when considering whether or not to commence proceedings.
FB v Princess Alexandra NHS Trust  EWCA Civ 334
Court of Appeal 12.5.17
“The judge’s view that there was a lower standard of care for an SHO than for a consultant in history taking in A&E was unsupported by evidence and cannot be sustained.”
This may be an obvious point, but it’s nice to have it clearly re-stated – the court is concerned with the acts and/or omissions of a doctor or other medical professional in the context of a particular task. There is often a correlation between the complexity of the task and the seniority of the doctor, but many tasks are carried out by doctors of different seniority; surgery is often performed by a consultant surgeon. When it is performed by a registrar, the standard of competence required is the same as that required of the consultant.