Remoteness - Clinical Negligence: Rmoteness PDF

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Clinical Negligence: Rmoteness...

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MEDICAL LAW: CAUSATION [CONTINUED]

Remoteness 1. There is another hurdle to overcome once a claimant has succeeded in proving factual causation: it is also necessary to establish that the type of damage is not too remote. 2. According to the Wagon Mound (1961) test for remoteness, the type of damage must be foreseeable, although its extent, and the manner in which it occurred, need not be. 3. Normally in clinical negligence cases the type of damage will be some sort of physical injury, which is obviously a foreseeable consequence of negligent medical care. As a result, there are few medical cases where remoteness has been an issue. 4. One exception is R v Croydon Health Authority.  The claimant had undergone a pre-employment chest X-ray, an d the radiographer failed to alert her to an abnormality (primary pulmonary hypertension or PPH), which would be exacerbated by pregnancy. She argued that if she had PPH, she would not have become pregnant.  The Court of Appeal dismissed her claim because, as Kennedy J held that the damage was too remote. The chain of events had too many links. 5. In Hyde v Tameside AHA, the claimant was being treated in a general hospital for a physical disability. He subsequently jumped out of the window, leaving him permanently disabled.  The Court of Appeal held that the hospital staff were not on notice that he was a suicide risk, and hence they were not under a duty to prevent him from attempting to commit suicide. 6. Kirkham v Chief Constable of Great Manchester: The court rejected the claim that the deceased’s suicide had been a novus actus on the ground that it was the very act that the defendants had been under a duty to prevent. 7. Eggshell skull rule will apply.  Reaney v University Hospital of North Staffordshire NHS Trust & Anr [2015] EWCA Civ 1119  The Court of Appeal has restated a fundamental principle; that a defendant can only be liable for damage that it has caused.  Claimant lawyers will no longer be able to argue that where a preexisting condition has been worsened, a defendant should be liable for all of the consequences. However, if the loss is qualitatively different from that which would have occurred in any event, then damages may be recoverable in full.  Practitioners need to ensure that judges give a ruling on whether a qualitatively different loss has occurred or whether it is just more of the same.  The extension of the “egg-shell skull rule” by the High Court has not been endorsed by the Court of Appeal. The egg-shell skull rule is therefore applicable only where there is a pre-existing vulnerability to damage and not pre-existing injury.

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MEDICAL LAW: CAUSATION [CONTINUED]

DEFENCES A. Break in the chain  By the claimant:  Emeh v Kensington AHA [1985]  A sterilisation operation had been performed negligently and failed and the claimant was born.  Corr v IBC [2008]  The claimant’s husband had committed suicide. He had suffered a severe and debilitating injury working for them leading to his depression and suicide. The employers said that these damages were too remote.  Lord Bingham: It is in no way unfair to hold the employer responsible for this dire consequence of its breach of duty, although it could well be thought unfair to the victim not to do so.  ‘The law does not generally treat us as our brother’s keeper, responsible for what he may choose to do to his own disadvantage. It is his choice.  Maher v Pennine Acute Hospitals NHS Trust Unreported June 23 2011  By a third party:  Prendergast v Sam & Dee [1989]  an illegible prescription resulted in a patient being dispensed the wrong drug resulting in harm.  ‘It was the duty of the doctor to write clearly and legibly so that anyone could read this without misunderstanding or making a mistake'.  In this case the court held that the Dr was 25% liable for the patient harm in that he did not write a readable prescription and the pharmacist was 75% liable in that he could not read the prescription clearly and dispensed the wrong drug.

B. Contributory negligence  Partial defence  Section 1 of Law Reform (Contributory Negligence) Act 1945 : Damages can be  

reduced in proportion to the extent of the claimant’s responsibility for her injuries. Crossman v Stewart (1977) Badger v Minister of Defence [2005]  D employed the deceased as a boiler maker. During the course of his employment, he had been exposed to asbestos, which caused him to develop asbestosis he developed lung cancer which eventually killed him. D smoked and so contributed to the negligence that caused his death.  D did not take reasonable care for his own safety.  Continuing to smoke amounted to contributory negligence which was causative of lung cancer. A reasonably prudent man, warned that there was a substantial risk that smoking would seriously damage his health, would stop smoking.  C won damages reduced by 20%.

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MEDICAL LAW: CAUSATION [CONTINUED]  Pidgeon v Doncaster HA [2002]  P (Deceased) v Sedar [2011]  Should the patient be responsible for lifestyle choices? C. Volenti Non Fit Injuria  This defence is extremely unlikely to affect clinical negligence claims.  It is difficult to imagine a case in which the patient could be said to have voluntarily assumed the risk of being injured by their doctor’s negligence. D. Defence of Illegality/ ex turpi causa non oritur action  In Clunis v Camden and Islington Health Authority, a man with mental health problems who had killed a fellow tube passenger argued that the health authority had failed to treat him with reasonable care and skill, and that if they had, he would have been detained and would not have killed Jonathan Zito.  The Court of Appeal applied the defence of illegality to reject his claim. [Beldam J]

Omissions and causation: Bolitho  Bolitho v City and Hackney HA [1998]  Bolam test introduced at causation.  Simon Brown LJ:  “No doctor in this case ever took a decision whether or not to intubate the plain fact here is that no doctor ever arrived at Patrick’s bedside. It is that want of attention that constitutes the undoubted negligence in this case.”  Bright v Barnsley District Hospital [2005]  Gouldsmith v Mid Staffordshire General Hospitals NHS Trust [2007]

The Correct Application of Bolitho: “The fact established by the appellant, namely that most specialists would be likely to have operated on her, prima facie justified the conclusion that the specialist to whom the respondents should have referred her would be likely to have done so….in other words, her establishment of the fact shifted the evidential burden of proof onto the respondents. It was open to them to have countered had they had the material with which to do so, with evidence that the reference would likely to have been to a particular specialist who would not have operated…In the absence of credible evidence of that character, the answer to the first question [detailed in Bolitho] proffered on behalf of the appellant should have secured judgment for her.” Per LJ Wilson in Gouldsmith

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Subjective or objective test? Reibl v Hughes (1980)  The test is whether a reasonable person in the appellant's shoes would have elected to have the surgery or not when the proper information was known (an objective test). Smith v Barking, Havering & Brentwood HA [1994]  On the balance of probabilities, the claimant would have consented to the operation even if properly advised as to the risk of tetraplegia. The defendant was not liable. Chapman v Mid-Essex Hospital Services [2002] Chester v Afshar [2004]  3:2 decision (Lord Bingham & Lord Hoffman dissenting) appeal dismissed.  Lord Hope: “To leave the patient …. without a remedy…would render the duty useless in cases where it is needed most.”  Lord Hoffman: the question is “whether one would have taken the opportunity to avoid or reduce the risk, not whether one would have changed the scenario in some irrelevant detail”

Policy (Chester v Afshar)  “A narrow and modest departure from traditional causation principles”  “This result is in accord with one of the basic aspirations of the law, namely to right wrongs” per Lord Steyn  “I would hold that justice requires Miss Chester be afforded the remedy she seeks” per Lord Hope  Where is causation?  (Lord Hope para 87)  “The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one stripped of all practical force and devoid of content.”  Remember Fairchild  “when a decision departs from principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law.”  Chappel v Hart  Mason CJ: “Thus a factor which secures the presence of the plaintiff at the place where and at the time when he or she is injured is not causally connected with the injury unless the risk of the accident occurring at the time was greater.”

Case law after Chester? 1. White v Paul Davidson & Taylor [2005] ( solicitors)

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MEDICAL LAW: CAUSATION [CONTINUED]  “ I would like to add a few observations on Mr White’s supplementary written submissions in which he places reliance on the recent decision of the House of Lords in Chester v Afshar [2004] WLR 927. In my judgment, this case does not establish a general rule in causation. It is an application of the principle established in Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 that, in exceptional circumstances, rules as to causation may be modified on policy grounds.” per Arden LJ at para 40 2. Meiklejohn v St George's Healthcare NHS Trust 3. Less v Hussain [2012] EWHC 3513 4. And now Chester or Montgomery?  Webster v Burton Hospitals NHSFT [2017] (Simon J)  “accept that there was a body of consultant obstetricians who would not be deflected from their normal conservative course by the emerging but recent and incomplete material showing increased risks of delaying labour in cases with this combination of features.” Para 86[G]  “If a course were to be unusual, or attended by unusual risks, then discussion of the specific risk would be required” Para 88[C]  “However, once he is not taking an unusual course, I would not expect a detailed discussion, for example of statistical risk, or of the risk of adverse outcomes which the management of labour could not avoid.” Para 88[E]  “…Judge followed the Bolam approach of basing his judgment on whether Mr Hollingworth 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.”  Correia v University Hospital of North Staffordshire NHST [2017]  Not every judge would have concluded that the appellant failed on the issue of causation, but unlike this court the recorder had heard the entirety of the evidence and was very much better placed to form an overall view of the issue. (paragraph 50)  Diamond v Royal Devon & Exeter NHSFT [2017]  failure to ensure that the Claimant had given informed consent before proceeding to repair the hernia with a mesh ("second issue"). (paragraph 3)  Montgomery and Chester considered and not applied.  “...whilst I have found that D was negligent in his pre-operative counselling, no consequences flowed and, accordingly, causation is not established.” (paragraph 60)

 Shaw v (1) Kovac (2)University Hospitals of Leicester NHST [2017] – conventional /compensatory award?

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MEDICAL LAW: CAUSATION [CONTINUED]  Permission to appeal was granted to the claimant on the basis that the case raised questions as to whether a doctor’s failure to obtain the informed consent of a patient.  The claimant argued that death resulted from a procedure the patient would not have undergone if properly warned. In the alternative it was claimed there should be a 'conventional' award, such as that ordered in Rees v Darlington Memorial Hospital [2004] (to recognise the pain and inconvenience of childbirth where sterilisation had failed).  Allowing the appeal would open the floodgates to patients who had been given excellent care but there had been an accidental omission of a risk in the consent process (which would not have deterred or delayed their treatment)  Lord Justice Davis agreed the risk of a proliferation of such claims would have “very real, even if unquantifiable, financial, practical and other implications.” Webster v Burton Hospitals NHSFT [2017]

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“I think that had the mother been advised that she should proceed to induction or that there were increased risks in waiting until 6 or 7 January, she would have wanted to be delivered. I think she was fed up with the pregnancy and with the lack of well-being and it was the due date that she had in mind. She would not have wanted it to be put off, since the prospect of induction was looking in any event.” Court of Appeal para 41

Final thoughts…Chester, Gregg, Montgomery and Policy I. II. III. IV. V.

The nature of the duty The make-up of the judiciary The labelling of the case Statistics and risk Policy, policy, policy – where there is fault should there be liability?

Further reading:          

Stauch Chapter 6, Brazier Chapter 7 Khan, Robson & Swift :Clinical Negligence Chapter 6 Jackson: Chapter 3 Mason & McCall Chapter 5 Herring: Chapter 3 Pattinson, Medical Law and Ethics Chapter 3 Shaw: “Sick Pay” SJ 29/10/04 p 1228 Foster: “Last chance for lost chances” NLJ 18/2/05 Edis “Gregg v Scott” SJ 11/2/05 p 166

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MEDICAL LAW: CAUSATION [CONTINUED]  

Gemma Turton, A care for clarity in causation? Medical Law Review 2009(17)1:140147 SH Bailey: “Causation in Negligence: what is a material contribution?” Legal Studies Vol 30, Issue 2 pp167-185

To think about ….. 1. Critically assess the decisions in Bonnington, McGhee and Wilsher. Are the decisions reconcilable? Do you agree with the causation rule(s) they lay down? What is the effect (if any) of the ruling in Fairchild v Glenhaven Funeral Services Ltd and Others on these decisions? 2. What was the House of Lords justification for dismissing the claimant’s appeal in Bolitho? Further on what basis was the Bolam rule introduced into the area of causation and negligent omissions?

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