Clinical Negligence Case Law for Medical Practitioners

SC v University Hospital Southampton NHS Foundation Trust (Rev 2) [2020] EWHC 1445 (QB) – application for adjournment due to Covid-19 (rejected). Substantive hearing:-

SC v University Hospital Southampton NHS Foundation Trust [2020] EWHC 1610 (QB)– Hospital doctors were held to be negligent for failing to explore whether a child had meningitis. The diagnosis was missed as the child was diagnosed with tonsillitis and insufficient steps were taken to explore the referring GP’s concerns, and take into account that antibiotics they had administered could mask symptoms of meningitis. (June 2020)

Muller v King’s College Hospital NHS Foundation Trust [2017] EWHC 128 (QB)  – the court confirmed the correct legal test to identify negligence where a consultant histopathologist failed to identify early signs of malignancy in a biopsy slide containing human tissue. Damages were awarded. (February 2017)

MARGUERITE HENDERSON AGAINST BENARTY MEDICAL PRACTICE [2022] ScotCS CSOH_28 – a Scots case, where the claimant’s recollection of a telephone call was said to be akin to “wishful thinking”. Clinical negligence claim unsuccessful. (March 2022)

McCabe v Hall [2015] EWHC 260 (QB) – The Claimant succeeded in establishing liability in negligence against a GP (the third defendant GP in the case) in relation to failure to act on signs and symptoms that warranted urgent referral to hospital. The claimant suffered a stroke as a consequence of undiagnosed infective endocarditis. (February 2015)

Doy v Dr Gunn [2011] EWHC 3344 (QB) – [see full law report] The GP was not negligent in not referring a baby to hospital, where the baby was not showing any signs of meningitis. The baby was later admitted to hospital and was found to have meningitis. The child suffered a disability as a consequence of the illness. The mother sued the GP. Held: GP was not negligent. The evidence did not disclose at the time signs and symptoms that would lead a competent GP to refer the baby to hospital. No breach of duty of care. The Claimant subsequently appealed to the Court of Appeal (CA): Doy v Gunn [2013] EWCA . The first instance decision on the High Court, that the GP had not been negligent, was upheld by the CA. (May 2013)

Audrey Burnett v Dr Lynch [2012] EWCA Civ 347 – [see full law report] GP appealed, to the Court of Appeal (CA), a judgment of a County Court Judge (HHJ Gosnell) on grounds of defective reasoning and wrong decision. The judge had found that the GP negligently failed to diagnose a breast lump (which turned out to be cancer). The GP had instead believed that it was a blocked milk duct. Held by CA: Judge had correctly assessed both side’s cases and made a proper determination on the issues. A judge did not have to deal with every point raised by Counsel. The case turned wholly on oral evidence. While the doctor’s recollection was truthful, that did not mean that it was accurate, and the claimant’s recollection of events was to be preferred. [DDS Commentary: As always, a good note of a clinical examination and doctor’s reasoning may assist a doctor who is sued to show that they are accurate in their recollection.] (March 2012)

Dr Maguire v North West Strategic Health Authority [2012] EWHC 3272 (QB) [see full law report] A GP (Dr Maguire) sought to prove that a hospital had been negligent for providing unsuitable discharge advice to parents of a two year old child who had sustained a head injury, and for the hospital’s failure to arrange an early follow up appointment in the out patients department to check on the child’s health. The child later contracted meningitis and as a consequence suffered brain damage, contributed to by an undiagnosed cerebral-spinal fluid (CSF) leak. The child visited the GP with his concerned parents but the GP did not properly explore the possibility that a nasal discharge was CSF. Prompt referral to hospital would have been indicated if a CSF leak had been identified. The GP sought a contribution or indemnity from the hospital to cover the settlement that had been made on his behalf by his insurers, asserting that he had not been negligent. HELD: The court held that the hospital had not been negligent. The child’s claim had previously been settled by Dr Maguire and another doctor, for several million pounds in damages and costs, without admission of liability.  (November 2012)

Sims v MacLennan [2015] EWHC 2739 (QB) – a doctor who had examined patient for the DVLA recorded high blood pressure. Some nine years later the patient died from a stroke. The doctor was sued in negligence for a failure to refer/send to a GP to explore the high blood pressure. Negligence not proved, causation not proved (too many variables). The judge held (par 79):-

‘I find that there is no proper basis for finding that it is probable that the stroke was not caused by the failure to treat the hypertension but, equally, it is not possible to find that it was probable that it was caused by the failure to treat.‘

and in conclusion (paras 92 to 94):

‘I find that the Defendant was not in breach of his duty of care to Mr Sims and therefore that the claim is dismissed.

‘Had this not been the case, then I would have found that factual and medical causation have not been proved and that the “but for” test was the appropriate test to apply.

‘If I had found the Defendant liable, then I would have reduced any damages claimed by 25% on account of contributory negligence on the part of Mr Sims in failing to attend in 2007 to have his blood pressure checked.’

(October 2015)

Rabone and Anor (Appellants) v Pennine Care Foundation Trust (Respondent) [2012] UKSC 2 [see full law report] – Informal patient allowed to go home in circumstances that no consultant psychiatrist should have allowed – patient committed suicide – Article 2 claim, separate from other negligence claim that had settled: Award of damages (“just satisfaction”) in the sum of £5,000 for the parents of the deceased. Article 2, both operational and general obligation owed to informal patients. When assessing whether there is a risk of suicide, the relevant mental health professional should determine whether there is a real and immediate risk of the patient committing suicide, which is present and continuing, and more than remote and fanciful.  The same degree of protection should be afforded to informal patients as that afforded to detained patients – detained under the Mental Health Act. [Inquests that examine the deaths of patients with mental health difficulties, where the deceased had been in a healthcare setting (or should have been in a healthcare setting), will now adopt an approach similar to that applied where a patient has been detained, to identify whether there has been a breach of Article 2 of the European Convention on Human Rights – which requires States to take procedural and other steps to protect life. Doctors are now much more likely to have to answer more detailed questions in both civil proceedings and at inquests, to demonstrate that that took all reasonable steps in the circumstances to protect life. A consequence of this case is that doctors may now become much more cautious about allowing a patient to have home leave. Patients may well find themselves having longer periods in psychiatric hosiptals, while the clinicians make their best judgement as to whether it is safe to allow a patient to have home leave, or to leave the hospital for periods of time without an excort. The Rabone case may also lead to a greater use of the formal powers to detain, where a patient seeks to leave the care facility. Local and national protcols will necessarily have to change as a consequence of this court judgement.] (February 2012)

Ludwig (by her mother) v (1) Oxford Radcliffe Hospitals NHS Trust (2) Gloucestershire Hospitals NHS Foundation Trust [2012] EWHC 96 (QB) – negligence of maternity and obstetrics staff – no causal link established. Cause of disability could be any unidentified pathogen. Even if the established errors (lost swab, results not passed to an obstetrician) had not been made, the care would have been the same. (February 2012)

Spencer v NHS North West [2012] EWHC 2142 (QB) [see full law report]- A hospital was found not to have been negligent in not diagnosing that a newborn baby was infected with  Group B haemolytic streptococcus, which went on to cause permanent brain damage (because it caused meningitis). (July 2012)

Azam v University Hospital Birmingham NHS Foundation Trust [2020] EWHC 3384 (QB)

An appeal to the High Court relating to the limitation bar being disapplied by the lower court. Decision upheld, despite the surgeon being dead and the surgery having taken place some 25 years previously. The claim of a failure in informed consent was not given permission. However, despite the arguments that the defendant Trust was prejudiced, the discretion exercised to allow the case to proceed was upheld. The medical records were in good shape and the surgeons technical approach could be scrutinised. (December 2020)

David John Saunders v Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 (QB) No negligence found in a case where blood supply to the bowl failed some five days post-op, following surgery for the reversal of an ileostomy. (23 February 2018)

Silverstone v Mortensen and Oxford University Hospitals NHS Trust [2012] – no negligence in abdominal surgery, where the patient died. (October 2010)

Johnson v Fourie [2011] EWHC 1062 (QB) – Significant disfigurement and disablement caused by negligent cosmetic surgery. The negligent surgeon admitted the nature of the injuries his patient had sustained. The court awarded damages. General damages (for pain, suffering and loss of amenity) were awarded in the sum of £80,000. Special damages (including loss of past and future earnings) were awarded in the sum of approximately six million pounds. The full schedule of the award is as follows (May 2011):

Hussain v King Edward VII Hospital [2012] 3441 (QB) – Post-surgery a patient suffered from shoulder pain, alleged to have been caused by mishandling of the patient during surgery. Held: tendonitis and impingement syndrome in the patient’s shoulder was not caused by negligent handling of the patient. (November 2012)

Woodward v Leeds Teaching Hospitals NHS Trust [2012] 2167 (QB) [see full law report]- An (admitted) failure to diagnose a tumour within the pituitary gland of a child (which caused acromegalic gigantism) led to an assessment of damages in the sum of £120,000  (2012)

Indemnity Costs

Costs are usually awarded on the standard basis. However, costs can be determined on the indemnity basis in certain circumstances. Where a cases is determined on the indemnity basis, the paying party will pay more to the winning party.  In the case of Igloo Regeneration (GP) Ltd & Ors v Powell Williams Partnership [2013] EWHC 1859 (TCC) the judge stated, obiter: ‘Obviously, the fact simply that one party loses the case, and maybe loses it on the basis of a firm judgment, does not mean, as such, that the losing party should pay costs on an indemnity basis. There must be some conduct which takes the case out of the normal run of the mill.’ (June 2013) 

In Clarke v Dr K and Others [2022] EWHC 488 a surgeon and his clinic were ordered to pay damages in the sum of £155k sterling to a UK citizen who had undergone surgery in Poland. Costs were to be additionally determined.

(March 2022)

Klifa v Slater & Anor [2022] EWHC 427 (QB) – dismissal of the application for a stay on “forum non conveniens” grounds. Injury occurred in France. UK resident claimant and UK insurer. Case to be heard in England and Wales jurisdiction. (February 2022)

Getting a Part 36 Offer Right – Drop Hands – Risks

Akinola v Oyadare & Anor [2020] EWHC 2038 (Ch) (July 2020) – A drop hands Part 36 offer was defective. While this was not a clinical negligence case, the decision has implications for the way cases are compromised.

Pre-Action Costs – Are they Recoverable?

Once a case is issued (even if not served) there is a possible route to recover costs pursuant to the CPR. Where a case has not been issued, pre-action costs will not be recoverable: Citation Plc v Ellis Whittam Ltd [2012] EWHC 764 (QB) (March 2012)