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:

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.

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