Healthcare Brief: latest decisions June 2019

A roundup of recent court decisions raising issues in relation to tertiary centres’ duty of care, patient consent and failure to warn, vacating a trial to aid assessment of future needs, and the prescription of antithrombotic medication.

Tertiary centres’ duty of care

EP (Deceased) v Kings College Hospital NHS Foundation Trust [22.05.19]

HHJ Burrell found for the defendant trust (represented by Kennedys) on both breach of duty and causation, following alleged negligent management of EP post-operative complications following pancreatic surgery.

It was alleged that EP should have been transferred from the District General Hospital (DGH) to the defendant trust (a tertiary centre at which she had had her original surgery) as they were best placed to deal with any further bleeding, should this occur. Sadly, despite signs of improving, EP did suffer a further re-bleed and died at the DGH.

Whilst there remained a risk of re-bleed, this was not ignored by the defendant trust. It was well within the ambit of reasonable practice to manage conservatively at the DGH with communication between the centres. HHJ Burrell found that on balance, the outcome would have been the same even if the bleed had occurred at the defendant trust.

Contact: Katie Stone

Related item: The duty of care of tertiary centres

What was in patient’s mind at time of consent is key

Lucy Diamond v Royal Devon & Exeter NHS Foundation Trust [08.04.19]

This was an appeal by the claimant against the trial judge’s decision that there was no self-standing claim for damages arising from the failure to warn her that a mesh-based hernia repair procedure may affect future pregnancies.

In upholding the trial judge’s finding, the Court of Appeal referred to the case of Montgomery v Lanarkshire Health Board [2015], finding that even if the appellant had been warned of the relevant risk, she would still have proceeded with the mesh repair.

This case serves as a reminder that the rationality test - what was in the patient's mind at the time of consent for an operation - is key, and not what the patient thinks with the benefit of hindsight several months or years later, once their personal circumstances have changed.

Contact: Ed Glasgow

Trial date vacated to aid assessment of future needs and losses

Buckley v Guys & St Thomas’ NHS Foundation Trust [08.04.19]

The court granted the claimant’s application to vacate a trial date on the basis that the court would be better equipped to assess the claimant’s quantification of future needs once he had started secondary school.

The claimant (nearly 13 years of age), had suffered a serious brain injury during his birth in 2006, leading to mild dystonic cerebral palsy and epilepsy. The trial had been listed for December 2019 and the claimant submitted that it should be put back for three years.

Satisfied that there was a sufficiently high risk that starting secondary school would affect the claimant’s likely future needs and pecuniary losses, the court vacated the trial date, with a case management conference to be held in October 2020 (following a full year for the claimant at secondary school).

Contact: Amanda Mead

Patient’s risks factors were no reason to depart from routine safe practice on prophylaxis

Yvonne Lesforis v Christos Tolias [25.03.19]

The appellant consultant neurosurgeon appealed against the finding at first instance that he had been negligent in giving an inappropriately early prescription of antithrombotic medication for the patient, following spinal surgery.

The Court of Appeal did not agree with the appellant’s submission that the effect of the patient’s risk factors for venous thromboembolism - the patient was overweight, had an anaesthetic or surgery time of greater than 90 minutes, and was expected to have post-operative immobility - on the decision to administer the drug had been wrongly dismissed.

The Court held that the judge had addressed the relevance of the three risk factors and whilst they were reasons for giving the patient post-operative chemo-prophylaxis “they did not speak to the timing of the prophylaxis”. The judge had been entitled to rely on expert evidence that to do so within six hours of surgery was a breach of duty and that the three risk factors did not justify any departure from what he found to be routine safe practice.

Contact: Christopher Malla

Court of Appeal highlights relevance of “scope of duty” test

Hafshah Khan v Omodele Meadows [15.02.19]

The Court of Appeal held that a judge had erred in finding a doctor liable for a type of loss that was not within the scope of their duty. At first instance, the doctor (negligent in failing to ascertain that the claimant was a carrier for haemophilia), was held to be liable for the losses arising from raising the child the claimant subsequently gave birth to, who suffered from both haemophilia and autism.

The issue at trial and on appeal, was whether the doctor’s liability was limited to additional losses associated with the child’s haemophilia (agreed at £1.4 million) or for the additional losses associated with both the child’s haemophilia and autism (agreed at £9 million).

It was held that the judge had not applied the SAAMCO “scope of duty test” (South Australian Asset Management Corporation v York Montague Ltd [1997]) and in this case the development of autism was a coincidental injury and not one within the scope of the doctor’s duty to exclude haemophilia. The parents were only entitled to recover for the losses associated with haemophilia.

Contact: Avinder Sidhu

Read other items in Healthcare Brief - June 2019