The care bearers

With the NHS's legal bill spiralling, changes have to be made. Michael Leyland looks at the latest developments in clinical negligence law affecting one of the causes – future care

In April this year, the National Audit Office released figures showing that the NHS is facing a £4.4bn legal bill for clinical negligence claims. This represents an increase of £500m from the previous year, and one of the reasons for this increase is believed to be the damages paid to fund the costs of future care. While the majority of clinical negligence claims are agreed and settled without proceeding to trial, the courts have been forced to resolve a number of related issues in the past year.
Chester v Afshar (2002), LTL 27/5/2002
Chester v Afshar raised important issues about whether a doctor should be held to have caused an injury, after failing to warn a patient of the risks of medical treatment. The claimant was advised that, following severe back pain, she should undergo surgery involving the removal of three intravertebral discs. She alleged that she was never warned of the possible risks of the operation. Following the surgery, the claimant's condition was worse than it had been before and she brought an action against the defendant, alleging that he had negligently failed to advise or explain the real risks of the surgical procedure.
At the court of first instance, it was held that the nerve injury that claimant had suffered during the operation was a known risk of the surgical procedure and that the defendant had not given an adequate warning of the risks. The issue of causation was also contested, and the judge held that, had the claimant been given warning of the risk, she would have not had the operation at that time, which established sufficiently the causal link.
On appeal, the trial judge's decision was upheld. In giving guidance for the courts on the warning of injury risks, the Court of Appeal adopted the Australian Supreme Court judgment in Chappel v Hart (1994), and held that there was little difficulty in attributing causative responsibility to a doctor who had, in breach of duty, failed to draw a particular risk to his patient's attention in the event that that particular risk materialised.
Martin Spencer of 4 Paper Buildings was instructed by Hempsons for the defendant. Jaqueline Perry of Lamb Building was instructed by Eversheds (Manchester) for the claimant.
Walters v North Glamorgan NHS Trust (2002), LTL 7/3/2002
A bereaved mother received damages for pathological grief reaction awarded by the Queen's Bench Division following this judgment. The claimant's son (S) became unwell when he was 10 months old, and staff at the defendant's hospital failed to diagnose that he was suffering from acute hepatitis. The claimant witnessed S choking with large amounts of blood, and the defendant advised that he was having a seizure. S was transferred to another hospital for a liver transplant and, upon arrival at the hospital, the claimant was advised that S had suffered severe brain damage, meaning that he would have no quality of life. The claimant agreed to switch off S's life support machine.
The claimant suffered psychiatric illness in the form of a pathological grief reaction as a result of the events she witnessed and experienced prior to S's death. The defendant denied that the claimant was entitled to recover damages for her condition.
It was held that, although there was no foreseeable risk of injury to the claimant, she was a secondary victim who suffered shock within the definition of previously decided cases, in particular Alcock v Chief Constable of South Yorkshire Police (1991), relating to the Hillsborough football stadium disaster. Because of the unusual facts of the case, the claimant's claim was allowed.
Robert Weir of Devereux Chambers was instructed by Hugh James Ford Simey for the claimant. Gregory Chambers of 1 Crown Office Row was instructed by Welsh Health Legal Services for the defendant.
Rees v Darlington Memorial Hospital NHS Trust (2002), LTL 14/2/2002
A disabled mother sought damages for a negligently-performed sterilisation operation, following which she gave birth to a son. The claimant was severely visually handicapped and had originally requested sterilisation because she felt that her eyesight would prevent her from looking after a child. He son was healthy, and the difference between this case and earlier cases was that the mother had a disability.
The claimant sought damages for the extra costs of childcare as a result of her disability. The defendant NHS Trust argued that a mother whose reason for not bringing up a child was her own disability should not be treated any differently to anyone else seeking a sterilisation.
In the Court of Appeal, it was held that by being compensated for the extra costs of a disabled person bringing up a child, the claimant was not being over-compensated but was being put in the same position as an able-bodied person. There was nothing unreasonable in holding that a surgeon should assume a more extensive responsibility for the consequences of a failed sterilisation where the surgeon knew of a mother's disability, and that the disability was the reason the mother did not want children. Leave to appeal to the House of Lords was allowed in this case.
Robin de Wilde QC of 199 Strand and Joseph O'Brien of Broad Chare Chambers were instructed by Blackett Hart & Pratt for the claimant. Jeremy Stuart-Smith QC of 2 Temple Gardens was instructed by Eversheds for the defendant.
MP v Mid Kent Healthcare NHS
Trust (2002), LTL 5/11/2001
Guidance on the instruction of non-medical experts was provided in this case. The claimant was prevented from holding a pre-trial conference with a joint non-medical expert witness in the absence of the defendant, or any of its representatives. This appeal raised a point of general significance with regard to non-medical evidence that arose within clinical negligence claims.
The Court of Appeal held that the Civil Procedure Rules 1998 SI 1998/3132 were designed to promote open progress, so that both parties had full knowledge of joint experts' evidence. The Academy of Experts prepared a statement, which was approved by the court, to the effect that a single joint expert should not attend a conference with one party, unless expressly agreed by both sides. However, leave to appeal to the House of Lords was granted.
Simon Taylor of Cloisters was instructed by Alexander Harris for the claimant. Jane Mishcon of 4 Paper Buildings (Jean Ritchie QC) was instructed by Bevan Ashford for the NHS Trust.
Michael Leyland is assistant editor of Lawtel