Medical Negligence:

Guidance on

causation and

valuation of claims

Nicola Edgar and Derek Couper

How to succeed in making a

medical negligence claim

• Negligence• Hunter v Hanley 1955 SC 200

• “true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care."

• Causation • The negligence of the doctor caused or materially

contributed to the bad outcome.

Causation

• Gregg v Scott (2005) 2 AC 176

• Delay in diagnosis by GP

• 9 month delay in treatment, during which time the

cancer had spread

• Chance of being cured (i.e. surviving 10 years)

reduced from 42% to 25% due to the delay

• Court held Mr Gregg was not entitled to recover

damages for loss of a chance

Alternative Heads of Claim

• Solatium - additional pain and suffering in the period during which diagnosis is delayed, perhaps resulting in additional treatments or investigation necessitated purely as a result of the delay;

• An award for psychiatric damage caused as a result of the delay in treatment and diagnosis, including the belief that the delay impacted upon the outcome; and

• Reduced life expectancy or 'lost years'.

Alternative Heads of Claim

• JD v Melanie Mather (2012) EWHC 3063

• 7 month delay in diagnosis of cancer by GP

• Poor prognosis

• Claimant sued GP on the basis that the delay had led to him losing a better than 50% chance of survival

• Court held chances of survival already less than 50%, even if the tumour had been detected earlier

• Successful claim for reduced life expectancy of 3 years

Alternative Heads of Claim

• Oliver v Williams (2013) EWHC 600

• Delay in diagnosis of ovarian cancer by 5 ½ months

• Court held there was no statistical evidence to

support the medical expert's view that the claimant’s

life expectancy had reduced by 12 to 18 months.

• Award for additional pain and suffering over the 5 ½

month period when symptoms were undiagnosed and

unalleviated

• Award for contribution to psychiatric damage as a

result of the delay in diagnosis

Valuation

• Loss of Survival

• J v Goodhope Hospital NHS Trust ("Failure to

diagnose bowel cancer" P & MILL June 2004, 11-

12)

• Delay in diagnosis of bowel cancer of two years

• Cure rate of cancer 85-90%

• Due to delay, no real prospect of cure

• Claimant required multiple surgeries

• Awarded £130,000, updated

Valuation

• Delay in diagnosis leading to lost years and

greater medical intervention.

• G v Lock ("Clinical negligence - bladder cancer"

PI Comp June 2006, 10-11)

• Delay in diagnosis of bowel cancer

• Claimant required multiple surgeries and

chemotherapy

• Positive response to treatment

• Case settled at mediation for £120,000, updated

Valuation – Lost Years

• JD v Mather (2012) EWHC 3063

• Delay in diagnosis by GP of a malignant skin tumour

• Reduction in life expectancy of 3 years

• Case settled out of court for £40,000, updated

• W v Basingstoke and North Hampshire NHS Foundation Trust (C Risk 2011, 17(6), 232-233)

• 4 lost years

• Settled in 2010 at £40,000, updated

Valuation – Lost Years

• Brown (deceased) (2013) EWHC 4067

• Delay in diagnosis leading to 1 year reduction in

life expectancy

• Claimant awarded £8,925, updated

Loss of Society Awards

• Damages (Scotland) Act 2011• Prescribed categories: “immediate family”

• Closeness of relationships

• Life expectancy

• Manson v Henry Robb Limited [2017] CSOH 126• Remaining life expectancy of 5.8 years

• Widow awarded £75,000 and Children £30,000

• Anderson & Ors. v Brig Brae Garage Ltd [2015]• 35 year old died in course of workplace accident

• Civil jury awarded widow £140,000 and children £80,000

Duty of Care Owed by Non-

Clinical Staff

• Darnley v Croydon Health Services NHS Trust [2018] UKSC 50

• The case emphasises the wide (and growing?) scope of duty of care placed on healthcare providers

• Accurate information on waiting times forms part of that duty and health board are vicariously liable for negligence on the part of non-medical staff

• Will this extend to those working in administrative roles in GP practices and other treatment centres?

Expert Evidence

• Kennedy v Cordia (Services) LLP 2016

UKSC 6: “as with judicial or other opinions,

what carries weight is the reasoning, not the

conclusion”

• Fundamental characteristic of expert

evidences is that it is opinion evidence

• Instruction of a single joint expert for both the

parties increasing, but still used in limited

circumstances

Joint Meetings of Experts

• Both the Sheriff Court rules and Court of Session rules provide for case management by the court

• Chapter 42A in the Court of Session / Chapter 36A in the Sheriff Court

• Increasingly parties are agreeing that joint meetings of experts is useful

• Many judges are either encouraging or ordaining parties to arrange joint meetings of experts (known as ‘hot-tubbing’) to narrow scope of issues before Proof, already popular in England

Periodical Payment Orders

• Presently discretionary in Scotland but can be enforced by Courts in other parts of UK

• Investment Returns and Periodical Payments (Scotland) Bill

• Split between lump sum and annualised payments indexed and linked to increase in care costs

• Removes requirement for Court to determine life expectancy

• Removes ability of pursuer or family to take investment decision on a significant principal award

Cost of Medical Negligence

Claims in Scotland

• Clinical Negligence and Other Risks Indemnity Scheme (CNORIS)

• Value of Claims paid in 2017/18 was 33.6 million

• Obstetric claims account for 15.8% of the number of claims but almost 40% of the total value

• Health Boards self-insure at levels up to £25,000 including costs

• Anticipated that PPO arrangements can ‘regulate’ annual sums payable to spread costs over a longer period

Claim Values by Speciality

Pre-Action Protocol for Clinical

Negligence Claims?

• Pilot scheme co-ordinated by NHS Central Legal Office

• "to avoid the need for or mitigate the length and complexity of civil proceedings“

• Proposed ceiling of case value is £100,000• Records must be provided in 40 days

• Assessment then “letter of notification” indicating a letter of claim is likely to be sent

• Letter of claim must then set out basis for claim including detail of investigations undertaken

• Proceedings should not be raised unless for purposes of avoiding time bar, with usual expenses implications