LCA Medico-Legal Morning Reports

with Hempsons solicitors

JUNE 2020

The LCA held its June Medico-legal Breakfast Club via Zoom conference on 3rd June 2020. The event was kindly attended by Hempsons partner Gautam Chawla with guest Barrister Eliot Woolf QC of Outer Temple Chambers, who had kindly attended the December 2019 meeting.

The following issues were discussed:

  1. The impact of the COVID-19 pandemic on medico-legal practice. 

There might be a drop off in patients claims vs NHS due to cancelling of elective treatment, the availability of “resource” defences in the context of the current pandemic and the current genial climate for all healthcare workers. Employee claims may be a big issue, particularly in light of the problems with PPE and the BMA interventions on it.

Hempsons Employment Team’s advice:

Ultimately, managers have a right to issue the employee with a “reasonable management
instruction” to attend work, or else be subject to a disciplinary process. But the key word is
“reasonable”. If the employee is dismissed and brings an unfair dismissal claim, or resigns and brings a constructive dismissal claim, then an employment tribunal will look at the circumstances of the case and whether the employer acted reasonably, taking account of the
employee’s circumstances at home as well as at work.

Furthermore, if an employee is classed as disabled, a tribunal may consider it discriminatory to take disciplinary action against them (or withhold pay) for not attending work. An employee who is found to have been dismissed because they raised a health and safety concern, or because they refused to work in a workplace found to be dangerous, may be able to claim unfair dismissal without the usual qualifying service of two years’ employment. These circumstances could conceivably apply where there is shortage of appropriate PPE, or where they are dismissed for bringing their own PPE to work. A complaint that the workplace is unsafe could also amount to a protected disclosure, and so the employee would have the additional protection against detriment and dismissal on the grounds that they are a whistle-blower.
Disciplinary action in these difficult circumstances is inevitably high risk. Cases should be carefully documented, and expert advice sought at every stage.

Links to that advice and advice from GMC/BMA on PPE:
https://www.hempsons.co.uk/app/uploads/2020/04/Coronavirus-and-PPE-SC.pdf
https://www.hempsons.co.uk/app/uploads/2020/03/Coronavirus-PPE-Guidance.pdf

There were also difficulties noted in providing condition and prognosis reports with virtual examinations and which digital platforms would be considered as reasonable by the Court.

  1. Joint statements – discussion re recent cases and responsibilities as an expert:

Welsh v Walsall Healthcare NHS Trust [2018] EWHC 1917; Yip J

Solicitors are required to do their best to agree a single agenda. In the vast majority of cases, any disagreement ought to be capable of resolution through a bit of give and take. It should not become routine to provide two versions which travel over much of the same ground. If the trend continues, parties may find that courts begin considering costs consequences.

Mayr v CMS Cameron McKenna [2018] EWHC 3669 (Comm); Males J

Whilst the laywers may properly assist the experts by ensuring that they focus on the issues which the court will need to determine, neither clients nor lawyers have any role in dictating to the experts what they can or cannot agree.

BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC); Judge Stephen Davies

A case in the Technology and Construction Court. It was quite inappropriate for independent experts to seek input from their client’s solicitors into the substantive content of their joint statement or for the solicitors either to ask an expert to do so or to provide input if asked, save in the limited circumstances of (a) identifying issues which the statement should address (ie, agreeing an agenda); or (b) in exceptional circumstances to consider amending any draft where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement.

Any such concerns should be raised with all experts involved in the joint statement (per the Technology and Construction Court Guide at para 13.6.3). From the above, the TCC Guide envisages that an expert may, if necessary, provide a copy of the draft joint statement to the solicitors. However, the expert should not ask the solicitors for their general comments or suggestions on the content of the draft joint statement and the solicitors should not make any comments or suggestions save to both experts in the very limited circumstances identified in the TCC Guide. That is consistent with the fact that any agreement between experts does not bind the parties unless they expressly agree to be so bound (CPR 35.12(5)).

“There may be cases, which should be exceptional, where a party or its legal representatives are concerned, having seen the statement, that the experts’ views as stated in the joint statement may have been infected by some material misunderstanding of law or fact. If so, then there is no reason in my view why that should not be drawn to the attention of the experts so that they may have the opportunity to consider the point before trial. That however will be done in the open so that everyone, including the trial judge if the case proceeds to trial, can see what has happened and, if appropriate, firmly discourage any attempt by a party dissatisfied with the content of the joint statement to seek to re-open the discussion by this means.”

  1. Case report

Dr Vanderpump presented a case of Cushing’s syndrome due to a pituitary tumour in a young woman who died at home unexpectedly. The Coroner’s verdict was that hypoglycaemia due to inappropriate glucose-lowering therapy was the cause of death and this was challenged.

Issues included: unreliability of capillary blood glucose (CBG) measurements in the home; resuscitation by paramedics; and absence of laboratory measurements.

  • The sudden death at home was unexplained with alternative explanations including hypokalaemia and cardiac arrhythmia.
  • The CBG levels in hospital prior to discharge did not justify home glucose monitoring post-surgery and low-dose Gliclazide has not previously reported to result in death from hypoglycaemia.
  • The GP expert stated that the hospital, not the GP, was responsible for management of diabetes as pre-existing condition prior to pituitary surgery which was outside the GP expertise.

Discussion followed re the Coroner’s verdict being challenged and how the expert had been asked to “reopen the inquest and revisit verdict”.

There was a convincing narrative and plausible case to explain sudden death in young person although the absence of laboratory measurement of glucose and Gliclazide data at low dose as an aetiology. The Primary vs Secondary care teams could blame each other. There was a danger of becoming too involved in a long-running case where the expert had highlighted poor management but was unable to produce evidence of causation on the balance of probability.

Future meetings in 2020

 2nd September 2020 and 2nd December 2020.

All LCA members with an interest in Medico-legal work as expert witnesses are invited. The format may remain virtual given the current restrictions regarding meetings.

The LCA is very grateful to Gautam and Eliot for contributing to an excellent discussion.

MARCH 2020

The LCA held its 2nd Breakfast Club Meeting at Hempsons’ on 4th March 2020.

Duncan Dymond discussed a recent case where he had provided expert evidence in an Irish court. The Claimant (now Deceased), aged 55 with no known CVD risk factors, had been seen by a private GP having presented with non-specific symptoms and referred to a private hospital as an emergency. Over the next 9 hours there was evidence of an evolving inferior myocardial infarction and a previous silent anterolateral infarction. There was evidence of breach of duty in the delay in diagnosis, inappropriate investigations, a delay in referring to a specialist centre for PCI and then, once PCI was performed, the blocked right coronary after was not identified. The Claimant died on the day after admission due to cardiogenic shock. 

Issues discussed included: 

  1. Providing oral evidence, including visual evidence in an Irish Court;
  2. The absence of CPR in Irish Courts, specifically lack of disclosure with other experts;
  3. No joint statements with other experts pre-trial to facilitate a settlement with clear breaches of duty; and
  4. Medical insurance eligibility for UK experts in Irish Courts.

Gautam Chawla presented 2 recent cases, in which medical experts were strongly criticised:

  1. Thimmaya v Lancashire v Jamil in a judgement on 3rd party costs. This was a negligence claim in a spinal case where a poorly qualified expert made spurious claims in a poorly written and not well argued report. In Court the expert was unable to articulate the Bolam Test in determining breach of duty. Mitigiating factors, including a psychiatric history, are insufficient to prevent the Judge awarding costs of £95k against the expert; and
  2. Liverpool Victoria Insurance v Zafar in a contempt case. The expert was a GP who altered an original report on the extent of soft tissue injuries following a RTA. The Insurer of the Defendant brought proceedings for contempt and the High Court Judge found 10 grounds for contempt arising from the 2nd report and subsequent witness statements. The sentence was 6 months imprisonment suspended for 2 years. The Insurer appealed as they felt the sentence was too lenient, but the original sentence was upheld. 

At the next meeting, on 3rd June 2020 from 7am, specific training was requested regarding the preparation and writing of joint statements. 

DECEMBER 2019

The LCA held its inaugural Medico-legal Breakfast Club at Hempsons in Wood Street EC2V on 4th December 2019. The event was kindly hosted by Hempsons partner Gautam Chawla with guest Barrister Eliot Woolf QC of Outer Temple Chambers

Recent decisions on Consent from 2019 were discussed:

  1. David Price v CWM Taf University Health Board re whether arthroscopy was appropriate for arthritis;
  2. Lucy Diamond v Royal Devon & Exeter NHS Foundation Trust re mesh repair for abdominal surgery and implications for pregnancy;
  3. Marc Ollosson v Alan Lee re risk of testicular pain post vasectomy
  4. Mordel v Royal Berkshire NHS Foundation Trust re screening for Down’s syndrome

Discussion points:

  1. The implications of departing from NICE guidance
  2. Montgomery decision did not support the proposition that a failure to warn of risk gave rise to a freestanding claim for damages
  3. Explanation of magnitude of risk with use of everyday words v percentages
  4. Informed consent for a screening procedure

Ellis Downes presented an unusual case where he had been instructed to defend the management of a case of placenta accreta which had been complicated by inadvertent removal of  the bladder. The case raised generic learning points for all specialties.

Discussion points:

  1. The value of SUI reports and how to address their findings in reports
  2. The significance of being managed in a specialist centre and how that increased the expectation of quality of care
  3. Sub-specialisation of Consultants within a specialty managing a complex case
  4. Reporting of imaging by a non-radiologist
  5. Assessment of risk of the eventual outcome in settling the Claim.

The Group were reminded regarding the recent Academy of Medical Colleges advise for Medical Experts

Future meetings in 2020 are schedule on March 4th, June 3rd,  September 2nd and December 2nd. All LCA members with an interest in Medico-legal work as expert witnesses are invited. Breakfast is provided from 7am with the meeting from 7.30-8.30.

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