‘85% of claims in clinical negligence fail’

The MDU’s report for 2016 asserts that 85% of claims closed during the year were successfully defended – an impressive figure.  These claims will generally relate to doctors’ private work or the general work of GPs.  This compares with the NHSLA reporting for 2016/17 that 55% of claims were resolved without the payment of damages.  Of concern to the MDU, in addition to their expenses in defending those claims, was, in relation to successful claimants, understandably the amount in costs paid to successful claimant’s lawyers and the higher value of damages as a result of the reduction in the discount rate used to calculate the value of future losses.

But perhaps of concern to all those involved in advising in such claims, including the medical expert witnesses, is the apparent failure to sift out a much larger percentage of these claims before they were progressed.  It is in nobody’s interest to run a claim that fails or has to be abandoned – certainly not the claimant’s (or the claimant’s family’s) or the clinician’s, and very rarely in the interest of the lawyer who is effectively financing the claim on behalf of the claimant.

A careful, complete, proper and realistic assessment of the prospects of a claim and the evidence available in relation to it by the medical expert, with careful consideration of (and application of) the standard of proof, the Bolam test or the Montgomery test and all issues of causation of damage (‘did any breach of duty make a difference in outcome’) should mean that few claims are progressed that have to be abandoned subsequently.  And the claimant lawyer should be ensuring that the expert’s opinion stands up to scrutiny on all of these counts.

Perhaps too many experts and lawyers do not fully understand what their role is and what the law requires to be proved to bring a successful claim.

Interestingly in relation to professional conduct claims, the MDU reported that of those GMC cases that went to a panel hearing, their in-house solicitors ‘achieved a finding of no impairment for 54.5% of members, compared with the GMC’s most recent four-year average figure of 22% (2012–15)’.  Does this reflect an increase in unjustified complaints being made, an improvement in the quality of work of the in-house solicitors, a statistical blip, or what?

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When clinical negligence becomes criminal manslaughter

The Court of Appeal decision in R v Honey Maria Rose [2017] EWCA Crim 1168 will have brought a sigh of relief to all clinicians worrying about the consequences of an error on their part which has fatal consequences for a patient.  An optometrist was convicted of gross negligence manslaughter of a young boy when she failed properly (and in breach of a statutory duty) to examine the internal structure of his eyes in a routine examination, and he died as a consequence of an abnormality on the optic nerve which she had missed.  It was agreed evidence that had the optometrist referred the boy for medical attention, his life would have been saved. She was sentenced to 2 years’ imprisonment suspended for 2 years.

The optometrist had accepted that the failure to examine the back of the eye without good reason was a breach of her duty of care and experts agreed that a competent optometrist would have known the significance of swelling of the optic nerve. The judge directed the jury that they should convict if sure that the risk of death would have been obvious to a reasonably competent optometrist with the knowledge that the defendant would have had ‘if she had not acted in breach of her duty to investigate the position’, and if her conduct was so bad as to amount to a criminal omission.

The Court of Appeal allowed the optometrist’s appeal against conviction, emphasising that the test to be applied is objective and prospective.  Therefore in order to establish gross negligence manslaughter there must be a serious and obvious risk of death at the time of the breach, and so the test required the putative knowledge of the reasonably prudent optometrist in the clinician’s position at that time – therefore the question is whether at the moment of the breach of duty the clinician ought reasonably to have foreseen an obvious and serious risk of death.  In this case there was no ‘serious and obvious risk of death’ at the time of the breach of duty although there was the possibility that signs of potentially life-threatening disease or abnormality might be missed.

Gross negligence manslaughter requires breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the conduct of the defendant was so bad in all the circumstances as to go beyond the requirement of compensation but to amount to a criminal act or omission.

This decision emphasises the ingredients necessary to establish gross negligence manslaughter:

For a person to be guilty of an offence of manslaughter by gross negligence the prosecution must prove:

(a) the defendant owed an existing duty of care to the victim;

(b) the defendant negligently breached that duty of care;

(c) it was reasonably foreseeable that the breach of that duty gave rise to a serious and obvious risk of death; and

(i) that risk must exist at, and is to be assessed with respect to, knowledge at the time of the breach of duty

(ii) a mere possibility that an assessment might reveal something life-threatening is not the same as an ‘obvious risk of death’: an ‘obvious risk’ is a present risk which is clear and unambiguous, not one which might become apparent on further investigation.

(d) the breach of that duty caused the death of the victim;

(e) the circumstances of the breach were truly exceptionally bad and so reprehensible as to justify the conclusion that it amounted to gross negligence and required criminal sanction.

In assessing either the foreseeability of risk ((c) above) or the grossness of the conduct in question ((d) above), the court is not entitled to take into account information which would, could or should have been available to the defendant following the breach of duty in question. The test is objective and prospective.

If the test applied by the trial judge and on which Ms Rose was convicted stood as the appropriate test, then negligent omissions in carrying out routine eye tests, blood tests and other such tests which in fact would have revealed fatal conditions could amount to gross negligence manslaughter notwithstanding that the circumstances were such that it was not reasonably foreseeable that such failures would carry an obvious and serious risk of death.  Instead the decision emphasises that the situation must be assessed for such an obvious and serious risk of death on the basis of an objective appraisal of the risks at the time the failure occurred.

It was on that basis that the GP in R v Rudling [2016] EWCA Crim 741 was entitled to have the case against him for manslaughter dismissed.  He had advised the mother of a sick child on the phone on a Friday evening to bring him into the surgery after the weekend, but the child died in the early hours of the Saturday.  Expert evidence was that that the GP needed a face-to-face assessment of the child in order to fully assess the risk.  Therefore there was no obvious and serious risk of death at the time of the Friday advice.  As a result the charge of manslaughter, however negligent the GP, could not be made out.

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