16th November 2021
Welcome to the latest edition of the TGC Clinical Negligence Newsletter.
As (some measure of) normality has returned to life, there has been an explosion of reported cases of interest to clinical negligence and personal injury practitioners.
We are all now getting used to some of the benefits of ‘mixed working’ (actually being able to work whilst waiting for a delivery!), combined with the relief of seeing friends and colleagues once more. Recent experience suggests that there will continue to be a combination of ‘in-person’ and remote conferences, JSMs/mediations and hearings but it would appear that the courts are unlikely to have as many remote trials as envisaged.
Medical negligence cases arising during the pandemic are now starting to be presented, with an added layer of complexity due to the strained resources during the pandemic. They are likely to keep practitioners busy in the months and years to come.
Whilst the volume of work dials up, however, we can at least now holiday abroad again (or, of course, somewhere equally as exciting like Kent), albeit with the novel fear of catching the lurgy just before, or during, the trip almost equalling any excitement.
Fortunately, if you have to self-isolate, you can now console yourself with this bumper edition of articles, case summaries and case reviews. This edition also includes a review of some older cases (such as Reaney) to remind practitioners of their importance, as well as a study of how the seminal case of Montgomery is being (and has been) applied by the Courts.
To help you navigate this edition, here is an overview of what you can expect: –
Procedure, Limitation & Expert Evidence
• To kick us off on recent procedural developments, Marcus Grant considers Calderdale & Huddersfield NHS Foundation Trust v Metcalf  EWHC 611 QB in which the Court handed down a six-month prison sentence against a claimant as punishment for contempt of court for signing statements of truth on court documents containing facts that she knew to be untrue.
• Ellen Robertson looks at Wilkins v University Hospital North Midlands NHS Trust  EWHC 2164 (QB), which considers the old chestnuts of ‘date of knowledge’ for the purposes of limitation and the ‘balancing exercise’ undertaken by the Court when considering whether to utilise its discretion under section 33 of the Limitation Act 1980
• James Arney Q.C. considers PAL v Davidson  EWHC 1108 (QB), an application by a 13-year-old claimant who had suffered catastrophic injuries for an interim payment of £2 million to enable a suitable property to be purchased for her long-term accommodation needs.
Fourthly – and this is itself a new development for the TGC Clinical Negligence Newsletter – we will take you through a quick-fire review of four key cases in the field.
Breach of Duty & Causation
• Turning to questions of liability, James Laughland first considers the Supreme Court’s much awaited judgment in Khan v Meadows  UKSC 21, in which the centrality of the ‘scope of duty’ principle was affirmed as a determinative factor in medical advice cases.
• I (Lionel Stride) then examine the battery of post-Montgomery case law concerning patients’ informed consent to treatment.
• Following on from the above, Robert Riddell analyses Negus (1) Bambridge (2) v Guy’s & St Thomas’ NHS Foundation Trust  EWHC 643 (QB), which concerns the extent to which a doctor is under a duty to warn a patient before surgery of the material risk which may arise from intra-operative technical decisions.
• Nicholas Dobbs examines Sheard v Cao Tri Do  EWHC 2166 (QB), which provides an instructive example of the difficulties in clinical negligence claims when resolving conflicts between witness evidence and contemporaneous medical notes.
• James Laughland analyses Davies v Frimley Health NHS Foundation Trust  EWHC 169 (QB) in which the Court considered whether the making of a material contribution to harm was sufficient to establish liability in a clinical negligence claim.
• Rochelle Powell considers Jarman v Brighton and Sussex University Hospitals NHS Trust  EWHC 323(QB), which provides an interesting exposition of the Bolam test in the context of an alleged failure to refer the claimant for an emergency MRI.
• Anthony Johnson considers Brint v. Barking, Havering and Redbridge University Hospitals NHS Trust  EWHC 290 in which the Judge’s consideration of the claimant’s lack of credibility as a witness did not equate to a finding of fundamental dishonesty for the purposes of CPR 44.16.
• James Arney Q.C. analyses XM v Leicestershire Partnership NHS Trust  EWHC 3102 (QB) in which the Court considered the standard of care to be expected from ‘health visitors’; the judgment is a practical application of the principles established in Wilsher and Darnley.
• I (Lionel Stride) then set out a quick-fire summary of some of the other interesting recent clinical negligence cases that did not (quite) make the cut for articles.
Calculation of Damages
• Turning to questions of quantum, Anthon Johnson analyses Reaney v. University Hospital of North Staffordshire NHS Trust  EWCA Civ 1119, which is significant for two reasons: (i) the Court provided guidance on the applicability of the test of causation in a case where a non-negligent injury had been exacerbated by the Defendant’s clinical negligence; and (ii) the Master of the Rolls commented obiter on the applicability of the ‘material contribution’ test in claims of that nature.
• Blowing the final whistle on this edition, James Yapp then considers Owen v Swansea City AFC  EWHC 1539 (QB), in which the Court addressed the question of how to calculate the likely career earnings of a young professional footballer.
We very much hope you enjoy this publication, and welcome any feedback.