piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Costs Budgeting: reforms on their way…

Jackson L.J. delivered a speech on costs budgeting on Wednesday. For many of us engaged in CCMCs who encounter inconsistency, courts overwhelmed by the volume of hearings, unnecessary costs incurred and often the thinly disguised frustration of judges with the process, his conclusion that ‘costs management works’, may come as a surprise. His proposals for reform, including fixed costs in some multi-track cases, may not. In his speech he gave 7 benefits of costs management (see below) but he also dealt with objections and problems and made recommendations. I pick out a few: First, he mentioned the costs of the process in low value multi-track cases which he defined as up to ‘about £50,000’. Leeds District Judges recommended fixed costs for such cases and Jackson L.J. endorsed the recommendation for fixed costs in the lower reaches of the multi-track ‘strongly’. Secondly, the issue of judicial inconsistency, unduly long hearings and micro-management he thought should be dealt with by better compulsory judicial training. Thirdly, the problem of the wide variation in the forms of costs management orders he recommended should be dealt with by a standard form of costs management order. Fourthly, he thought that the time for filing and exchanging budgets should be increased so that they are lodged 14 days before the CCMC although there must be a discretion for the court to specify a different period. Fifthly, he was of the view that Precedent H could be improved but he recognised that solicitors had been developing their IT systems for the purpose of completing Precedent H and therefore he did not want to make successive changes. Sixthly, the problem of delays and backlogs of CCMCs he thought should be tackled by repealing PD 3E which says that courts will generally make a costs management order under rule 3.15 where costs budgets are filed and exchanged. The PD should be replaced with a judicial discretion on whether to make a costs management order and criteria to guide its exercise. Seventhly, he acknowledged the backlog of clinical negligence cases in London and suggested that all London Clinical negligence cases with CCMCs listed between October 2014 and January 2016 be released from costs management and called in for short old-style CMCs. He thought a similar solution might be required in Birmingham and Manchester. Eightly, he addressed the issue of incurred costs and the practice of doing as much work before the CCMC in order to shelter costs within the ‘incurred’ column. He did not think that it was appropriate for judges at detailed assessments to treat absence of ‘comment’ on incurred costs as approval. He suggested powers to comment on incurred costs, summarily assess them or set a global figure for any phase to act as an incentive not to put forward excessive incurred costs. In clinical negligence cases he thought that there was a need to introduce pre-action costs management. Ninthly, Jackson L.J. expressed concern about the increase of court fees introduced in March 2015. He thought they should be disregarded when considering whether a party’s costs are proportionate. These are just some of the areas touched upon in Jackson L.J.’s speech which can be read in full by following my hyperlink. He ended his talk by arguing that Costs Management was in the public interest. He thought that lawyers disliked it because it meant more work and required us to develop new skills. He predicted that within the next 10 years costs management would be accepted as an entirely normal discipline and people would wonder what all the fuss was about. For the time being Costs Budgeting is here to stay – but reform is now overwhelmingly likely to occur and we can expect to hear from the Coulson Committee in due course on what form the new rules are likely to take.   The benefits of Costs Management (refered to above) Both parties to litigation know where they stand financially It encourages early settlement It controls costs from an early stage It focuses attention on costs at the outset It stops CMCs from being formulaic leading to debate about what is really required It is fair to give your opposition notice of what you are claiming It prevents losing parties from being destroyed by costs  

Records of Inquest: the conclusion is... use your boxes correctly and keep it succinct

For those of you practising in coronial law, the Chief Coroner's Guidance No. 17 was published on 30 January 2015. It contains some useful and succinct guidance on short form conclusions and narrative conclusions, including: how and when they should be used (as alternatives or together); the correct approach to the three stages of the conclusion (i.e. fact finding, box 3 of the Record of Inquest and box 4 of the Record of Inquest); standards of proof; and a summary of the 'ingredients' of the common short form conclusions. The guidance is by no means a full and comprehensive review of the law, but it certainly provides clarity and is likely to be a useful reference when dealing with submissions on conclusions.   The guidance can be downloaded at http://judiciary.go.uk/related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/coroners-guidance/ 

“ .. Friends, Romans, personal injury lawyers ...!”

Or so Mark Antony might have said if Shakespeare had been around to reflect on the amendments to the CPR which come into effect on 6 April 2015. All the talk is of the changes to Part 36. But what of the new Part 87 which is being introduced as part of the continuing drive to replace Latin terms with simpler English language.   I confess to a fondness for Roman law having been made to study it as a student. I dutifully worked through “ius civile” (law of citizens), ius gentium (law of peoples) and other concepts. I learned about “ferae naturae-propter privilegium” (qualified property in animals) on which some modern legislation such as the Bees Act 1980 is based. Sadly I have not yet had the opportunity in practice to deploy this knowledge or what Justinian had to say about the sale of chariots and other “res corporalis”.   That is not to say that Roman law is irrelevant to personal injury lawyers.   Fairchild v Glenhaven Funeral Services Ltd and others [2002] UKHL 22; [2002] 3 All ER 305; [2003] 1 AC 32 is the seminal authority on indivisible injury in negligence cases. The claimants were negligently exposed to asbestos by multiple employers but were permitted to “leap the evidentiary gap” such that their employers were held jointly and severally liable.   Less well known are the references in Lord Rodger’s judgment to Roman jurisprudence and his observation [at §157] that “in a certain form, problems with unidentifiable wrongdoers had begun to exercise the minds of Roman jurists not later than the first century BC”. Lord Roger comments [at §158] on “D 9 2 51 Julian 86 digesta” written in the second century AD in which Julian discusses the “Lex Aquilia” and [at §159] on the later writer Ulpian in “D 9 2 11 2 Ulpian 18 ad edictum” both of whom considered the situation where a slave was killed by a number of people in such a way that it was impossible to say whose blow had caused his death.   On his way to finding causation proved in Fairchild, Lord Rodger notes [at §160] that “classical Roman jurists of the greatest distinction saw the need for the law to deal specially with the situation where it was impossible to ascertain the identity of the actual killer among a number of wrongdoers”.   The new Part 87 continue the process set in motion by Lord Woolf in June 1996 when he published his review of the civil justice system and writs gave way to claim forms, plaintiffs became claimants (although they remain plaintiffs in other jurisdictions such as Hong Kong) and hearings in camera would hence forth be hearings in private. Now, from 6 April 2015, habeas corpus “ad subjiciendum” becomes habeas corpus “for release”.   In “Beyond the Fringe” the great Peter Cook reflected that “I could have been a Judge but I never had the Latin for the judgin’”.   There is no longer any need for Peter or for others to worry.

Retiring gracefully ... and gradually?

Most personal injury lawyers think a lot about retirement. This can be their own, in my case usually when grappling with costs budgets, but is more likely to be that of the party whose claim they are advancing or opposing. The date of retirement is crucial to the value of a loss of earnings claim.   Most personal injury schedules claim full time working to age 68 or even 70. Most counter schedules contend for retirement at age 65.   However, new research shows the way people view retirement is changing. Nearly two-thirds of people aged over 50 no longer think that working full time and then stopping work altogether is the best way to retire and around half would still like to be in work aged between 65 and 70.   YouGov surveyed more than 2,000 retired and non-retired people aged over 50.   https://yougov.co.uk/news/2014/11/05/concept-gradual-retirement-attracts-non-retired-ad/   The survey showed:   39% of over 50s not currently retired said that working part time or flexible hours before stopping work altogether would be the best way to retire. 48% of those under 65 and not currently retired would still like to be in work between 65 and 70. 36% of retirees say their advice to others would be to “consider switching to flexible or part time work for a period first” before stopping work altogether. 33% of those over 70 and still working said they did so because they enjoyed it.   The survey also suggests that some non-retired people over 50 both in and out of work were ready to learn new skills. Nearly half (47%) said they were interested in attending training courses to learn new or to update existing skills.   There are lessons here for both schedulers and counter schedulers. An absolute retirement age of 65, 68 or even 70 may now be unrepresentative. Gradual retirement is increasingly the trend at least in England and Wales.   In “The Later Years of Thomas Hardy” (Macmillan, 1930), Florence Emily Hardy reports the author’s observation that:   “The value of old age depends upon the person who reaches it. To some men of early performance it is useless. To others, who are late to develop, it just enables them to finish the job”.   I cannot promise still to be working beyond age 70. If I am, I can promise it will not be on costs budgets!  

Schedules, Counter Schedules and the Gadget Generation

    No self-respecting Schedule of Loss is now complete without a hefty claim for “Assistive Technology” items. The response in most Counter Schedules is that the Claimant is likely to have possessed all or some of the items being claimed in any event. The fact is that UK parents now spend a combined £2.25 billion a year or just under £300 per year per household on technology for their children.   This information comes from research on behalf of E.ON UK, one of the UK’s large energy providers.   http://pressreleases.eon-uk.com/blogs/eonukpressreleases/archive/2014/07/25/2376.aspx   We are truly the “gadget generation” in that today’s children possess an average of 4 gadgets each.   Staggeringly, parents with children aged under 5 spend even more. On average a “techie tot” is given gadgets costing £395 per year. Not surprisingly, it is teenagers aged 15-17 who are the most “plugged-in” typically owning 7 devices each.   The trend continues into adulthood. From age 18, parents of males spend over £717 a year on gadgets for their sons. Females aged 18 and over have just under £1,000 worth of gadgets bought for them by their parents per year.   It will come as no surprise to readers not in these age groups to learn that most (56%) of parents acknowledge using their children's “technology hand-me-downs”. 32% of parents also confessed to not being as “tech-savvy” as their children. Most worryingly of all, 14% of parents admitted that they could not even match their “techie tots” when it comes to knowing their way around the latest gadgets.   Perhaps the Counters Schedulers have a point?

Handle with Care!

  “Handle with Care” will be best known to fans of the Traveling Wilburys as the first track on the group’s 1988 album, “Traveling Wilburys Vol.1”. It is also the key message of the fifth annual “State of Care” report by the Care Quality Commission (CQC) issued on 17 October 2014.   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/364440/CQC_StateOfSocial_2014.pdf   The report which looks at 40,000 services and provides a useful, if rather worrying, insight into the state of care in England concludes that the variation in the overall quality of care is unacceptably wide.   The report covers adult social care, hospitals, mental health care and community health services and primary medical services and integrated care.   The CQC found some instances of “outstanding” care and it also rated many other services as “good”. However, it also found many services that are “inadequate” or “require improvement”.   As a result of the latter, people are being failed by the “numerous” hospitals, care homes and GP practices which are unable to meet the standards achieved by other services.   The CQC found many instances where the particular problem has existed for years. However, the CQC makes clear this is not an excuse. In fact it is “quite the opposite”.   More worryingly, the CQC concludes that too many service providers have still not got to grips with the “basics of safety”.   The CQC is now “calling time on this unacceptable lottery”.   The challenge to every health and care provider is to deliver the “high standards of care that each person has a right to expect”.   Or, as Roy Orbison and Bob Dylan sang in the bridge to the 1988 track,   “Won't you show me that you really care?”

A Judgment for What? The Effect of Default Judgments

Where a defendant admits breach of duty but wishes to contest causation, injury and quantum, it has in the past been common practice for it to allow judgment to be entered in default of Acknowledgment of Service or of Defence and to proceed to contest the remaining issues at an assessment of damages hearing.  An alternative course of action, which in the short term is more expensive, is to file a Defence making appropriate admissions and then for the claimant to seek entry of a judgment for damages to be assessed. In Symes v St George’s Healthcare NHS Trust [2014] EWHC 2505 (QB), the claimant was referred to hospital in October 2008 by his GP with a lump on his face which turned out to be a malignant tumour.  In January 2009, a consultant decided that he should have an urgent superficial parotidectomy, but that was not carried out prior to May 2009, when it was found that the tumour had invaded the facial nerve and there had been metastasis to the lungs, leading to the need for a total parotidectomy and the loss of the left facial nerve and inoperable lung cancer.  In 2011, an open admission was made that there had been a breach of duty in failing to identify that the lump was suspicious of malignancy and in the delay in operating, but the defendant’s solicitors made it clear that its view was that the invasion of the facial nerve and the metastasis to the lungs were not attributable to either breach of duty. Proceedings were initially struck out for non-service, but on re-issue, the claimant pleaded his causation case in detail in the Particulars of Claim.  The defendant did not enter an Acknowledgment of Service or a Defence.  Master Roberts entered judgment in default of Acknowledgment of Service and set a date for a directions hearing.  The parties agreed the terms of an order before the hearing and the Master ordered that the parties would have permission to rely on expert evidence on “quantum, condition and prognosis” from experts in oncology and care.  The defendant continued to reiterate in discussions between solicitors that the claimant’s case on quantum was in dispute, save that it was accepted that there was a liability to pay damages for pain and suffering during the delay in treatment.  However, it was not until the claimant sought an interim payment of £50,000 that his advisers expressly asserted that the default judgment precluded the defendant from contesting the pleaded allegations of causation.  Whether or not the claimant was entitled to that interim payment depended largely on whether the claimant was correct as to the effect of the default judgment. At first instance, in a judgment given on March 21st 2014, the Master upheld the claimant’s contention.  He ruled that the Particulars of Claim stood as a template for the default judgment and that the defendant accordingly could not contest causation.  He castigated the defendant for having acted in a manner contrary to the overriding objective and having failed to comply with the obligation in CPR 16.5 to respond properly to the Particulars of Claim by serving a Defence. On appeal, Simon Picken QC, sitting as a Deputy High Court Judge, allowed the appeal.  In his judgment, the deputy judge reviewed the case law in some detail.  In particular, he closely examined the leading case on the subject, Lunnun v Singh [1999] CPLR 587, which had followed an earlier decision of the Court of Appeal refusing permission to appeal in Turner v Toleman [1999] unreported, January 15th.  The judge held at [62]-[63] that he was bound by the decision of the Court of Appeal in Lunnun to conclude that the default judgment established no more than that the defendant was in breach of duty and that the breach had caused some damage.  There was no special rule applicable to clinical negligence cases: at [64].  Lunnun remained good law following the introduction of the CPR: at [65].  He also said that as a matter of principle that since the defendant admitted part of the claimant’s pleaded case on causation (that the delay in treatment led to pain and suffering) there was no basis to construe the default judgment as extending to the other consequences which were said to follow from the breaches of duty: at [66]-[68]. The deputy judge then went on to consider whether the defendant had acted contrary to the CPR.  The rules did not state that the effect of a default judgment for damages to be assessed precluded a claimant from contesting a pleaded case as to causation: at [83].  It followed from the decision as to the effect of the default judgment that the defendant had been entitled not to serve a Defence and so there was no breach of CPR 16.5: at [84]-[85].  Accordingly, while it “would have been more sensible” for the defendant to serve a Defence, it was not in breach of the rules for failing to do so: at [86]-[87].  Nor was the defendant in breach of the overriding objective, since it had made its position clear in correspondence to the claimant’s advisers, if not to the court: at [89]-[91].  The claimant’s advisers accepted that they had known that the defendant’s solicitors were under what they regarded as a misapprehension.  In those circumstances, both parties should have brought the misunderstanding before the court at an earlier stage: at [92].  In Parkhouse v North Devon Healthcare NHS Foundation Trust, at a hearing on May 6th 2014, this course had been taken where default judgment had been entered but at a directions hearing, the defendant had made it clear that causation was in dispute.  Master Roberts himself denied that there was any need for the directions order to make clear that it was open to the defendant to contest causation, although in the event a recital was inserted to that effect. The extent to which, in clinical negligence cases, the practice of allowing default judgment to be entered in this way is followed is not clear.  Anecdotally, it appears that both courses of action are utilised by defendant’s solicitors.  Even though the practice has been legitimised (subject to any further appeal to the Court of Appeal) by the decision in Symes, nevertheless the modest cost savings in not serving a Defence in a case where there is a clearly pleaded case in causation are surely outweighed by the need to ensure that both parties are absolutely clear about the extent to which the critical issue of causation is being contested.

Vicarious liability for associate or locum clinicians: Whetstone v Medical Protection Society Ltd

The question of whether practice partners or principals are vicariously liable for negligent treatment provided by associates or locums is one which has frequently exercised the medical defence organisations in recent years.  The issue ought to be academic, because such associates or locums are usually required, under the arrangements made with a practice, to have cover with one of the recognised organisations.  However, it is not unknown for associates or locums to fail to comply with such an obligation, or at least to notify their practices of where they have obtained their cover so that the benefit of it cannot be obtained when the associate or locum has left the jurisdiction and cannot be traced. The absence of any case law dealing with the issue has made it difficult for practitioners to predict with confidence the court's reaction to any attempt to impose vicarious liability for the actions of associates or locums.  The judgment of HHJ Richard Seymour QC in Whetstone v Medical Protection Society Ltd [2014] EWHC 1024 (QB) contains the first detailed examination of this issue in our jurisdiction. The claimant was a sole principal in a dental practice.  Between 1998 and 2009, he engaged a Mr Sudworth as an associate dentist within the practice.  A contract in 2008 provided the basis of their relationship.  Allegations by patients of inadequate treatment by Mr Sudworth began to be made in early 2009, and resulted in the termination of the agreement later that year.  A number of claimants intimated claims against Mr Whetstone on a vicarious liability basis.  Mr Whetstone sought indemnity from the MPS, and the majority of the judgment contains an interesting analysis of the legal basis of discretionary cover by medical defence organisations.  In the latter part of his judgment, however, the judge considers whether Mr Whetstone was, in fact, vicariously liable for the actions of Mr Sudworth.  He first examined some of the features of the contractual relationship between the two dentists at [116]: .... there was a degree of artificiality about the Sudworth Contract. It had been carefully constructed so as to ensure that, as between themselves, Mr. Whetstone and Mr. Sudworth were not in an employment relationship. However, to the outside world, unaware of the actual terms of the Sudworth Contract, how some of those terms worked was likely to create a different impression. By clause 1 Mr. Sudworth was to follow the policies of the Practice as laid out in the Whelby House procedures and policies folder. A copy of those policies was adduced in evidence. They were highly prescriptive. By way of example, the first section was "Greeting the patient and communication", and the first item was, "Greet the patient whilst standing facing them, be polite and put them at ease". The equipment and materials provided pursuant to clause 5 of the Sudworth Contract apparently included a uniform which Mr. Sudworth was required to wear. By clause 7a Mr. Sudworth was to make himself available for work during agreed hours, rather than work whatever hours he chose. By clause 8 Mr. Sudworth's holiday entitlement was limited, rather than a matter entirely for him. The effect of clauses 15 and 17 of the Sudworth Contract was that Mr. Whetstone collected the fees for work done by Mr. Sudworth and refunded Mr. Sudworth's share, notwithstanding that the contract was structured as a payment of a licence fee by Mr. Sudworth for the opportunity to earn fees. The actual fees charged were fixed by Mr. Whetstone, not by Mr. Sudworth. Clauses 24, 25, 26 and 27 of the Sudworth Contract were extraordinary if, in truth, Mr. Sudworth were an independent contractor providing services to his own patients, rather than to the patients of Mr. Whetstone. If Mr. Sudworth were an independent contractor one would not expect that he should hand over his patients' books and records to Mr. Whetstone (clause 24), not have any goodwill in relation to his own patients (clause 25), not be able to treat his own patients wherever he liked (clause 26), and not be able to treat his own patients after the termination of the Sudworth Contract (clause 27). Provisions of those types are normally only found in contracts of employment. He concludes that the relationship was one "akin to employment". He summarised the circumstances which led him to that conclusion in the following terms at [123]: .... In the circumstances of the present case, as I have pointed out, Mr. Whetstone exercised a high degree of control over Mr. Sudworth and his activities. Not only was Mr. Sudworth bound to follow the policies prescribed by Mr. Whetstone, but he was to attend to provide his services at times prescribed by Mr. Whetstone, and to charge fees for his services fixed by Mr. Whetstone. Mr. Whetstone certainly had an organisation, the Practice, which undertook the provision of dental treatment to patients, and Mr. Sudworth participated in that organisation and was integrated into it. He was provided with the physical means to undertake the provision of dental services, both in terms of the necessary equipment, but also in terms of the necessary support staff. In no meaningful sense was Mr. Sudworth an independent dental practitioner merely taking advantage of premises provided by Mr. Whetstone. Mr. Sudworth could not decide of his own choice when to work, or what to charge for his services. When the Sudworth Contract came to an end he could not take "his" patients or their records with him. It seems to me that the relationship between Mr. Whetstone and Mr. Sudworth was as "akin to employment" as one could get in a relationship deliberately structured by contract to avoid an employment relationship. Experience suggests that the contractual relationship in this case was one in which the principal regulated the conduct of the associate in an unusually tight manner.  The judge's reasoning, set out above, suggests that his decision might have been different if Mr Sudworth had simply been renting accommodation within Mr Whetstone's practice.  Nor does the decision consider the implications of the decision in Woodland v Swimming Teachers' Association [2013] UKSC 66, [2013] 3 WLR 1227 and whether a practice principal might owe a non-delegable duty of care to patients treated within his premises.  Nevertheless, the judge's approach is likely to inform any future litigation on this topic.

A defendant's nightmare?

  A Defendant’s Nightmare?   Sarah Davison would normally get to her desk by 6 a.m., work for twelve hours and often head out thereafter to meet and entertain clients. Sleep felt like it was secondary to achievement. She worked in a macho environment and her boss was a man who, in the words of Andrews J, “does not suffer fools gladly, or indeed at all”. But Mrs Davison was well-paid: at the time she left on maternity leave to have her first child she was earning over £200,000 a year. When, after giving birth to that child, she suffered a career-ending injury as a result of clinical negligence, the resulting claim was always going to be of the size that makes defendants and their insurers wake up in a cold sweat in the middle of the night.   Andrews J’s judgment on damages (Sarah Davison v Craig Leitch [2013] EWHC 3092 (QB)) makes interesting reading. A court called upon to assess loss of earnings in such a situation is engaged in a difficult exercise, perhaps best characterised, to borrow one of my favourite judicial dicta of Lindsay J, as “a glance at a crystal ball of, so to speak, only a low wattage” (see Douglas v Hello! Ltd (No.5) [2003] EWHC 786 (Ch)). There are often a number of variables and changing any one of them can have a significant effect on the ultimate award.   One approach is to consider a number of possible scenarios, determine the probability of each of them occurring, and then multiply that figure by what would have been earned in each scenario; that can sometimes be the only way to do justice, particularly where a person had a chance of a “big break” which, had it occurred, would have lead to very significant rewards. The kick-boxing claimant in Langford v Hebran [2001] PIQR Q13 is a good example of this approach being applied; it works best where there are a limited number of clearly defined possible scenarios; where they are more numerous, or the lines between them more blurred, the calculation can become unwieldy.   The more traditional approach, and the one adopted by the court in Davison, is simply to make a best guess as to how the claimant’s career would have progressed absent the tort. This will inevitably involve scrutiny of the claimant’s pre-accident career and abilities. Andrews J was clearly impressed by the evidence on this point of Mrs Davison’s ex-boss, a man so busy he had to give evidence “via video link ... en route to catching a plane”. There may also be a need, particularly in a volatile or cyclical industry such as financial services, to assess what the future demand would have been for a person’s services.   Andrews J broadly accepted the Claimant’s evidence on these two points; where she differed was as to the likelihood of the Claimant continuing in her pre-accident role as an equities trader once her three children were born, holding “it highly unlikely that when Mrs Davison returned to work after her maternity leave ... she would have had the appetite to return to the stresses of the trading floor and face the prospect of never seeing her three small children during the week ... However much she would like to believe otherwise, in my judgment it is far more likely that she would have moved to a less stressful position within the bank, involving shorter working hours.”   The judgment is also interesting for its award of £6,500 for loss of congenial employment. Given the description of Mrs Davison’s working life at the start of this post, one may well question whether it can really be described as “congenial”. Andrews J justified the award on the basis that Mrs Davison’s “future is uncertain and any work she does undertake in future is likely to be fairly solitary and considerably well paid”. This is curious reasoning. The fact that the Claimant was likely to be paid less was, of course, compensated by an award for future loss of earnings. It might be said that her earnings are relevant to what was in effect an award for loss of status, but here again surely one has to look at all the circumstances of her pre-accident employment. Andrews J found as a fact that the most likely future for the Claimant would be running her own small business, possibly as an interior designer. Of course, that would lack the stimulus and status of a job in the City, but it would also lack its stresses and uncertainties. Can it really be said, taking everything into account, that the Claimant’s overall quality of life would undoubtedly be the poorer? Less well-paid, certainly; but less congenial? - it is perhaps to be doubted. There is a danger that awards under this head will become routine in all cases where a claimant is unable to pursue their chosen career. Perhaps the Law Commission’s suggestion that this should not be a separate head of damage at all, but rather should be considered as part of the award for PSLA, deserves reconsideration.        

Never say never again... "Never events" and NHS Performance

Most people don't know that the NHS has a list of "never events", being a list of preventable events that should never happen.  The October 2012 Never Events Policy Framework defines never events as "serious, largely preventable patient safety incidents that should not occur if the available preventative measures have been implemented by healthcare providers".  The Framework contains a list of 25 never events.  These range from wrong site surgery, retained foreign objects post surgery and misidentification of patients to entrapment in bed rails, misplaced naso or oro-gastric tubes and maternal death due to post partum haemorrhage following elective caesarian section.   There has been coverage in the news this week following the disclosure that there have been 750 such incidents reported in the NHS in the last four years.  The BBC website has produced an interactive table letting you explore the reported incidents by Trust: http://www.bbc.co.uk/news/health-22466496 What is more interesting in many ways is the breakdown of the number of incidents by "event".  The October 2012 Framework makes very interesting reading, containing a table of the 2011/12 results.  Of the 326 incidents for that year (which seems remarkably high considering the overall statistic for four years), the overwhelmingly common category was retained foreign objects post operation, with 161 reported incidents.  Wrong site surgery followed with 70 cases, then 41 cases of wrong implant / prosthesis.   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/127087/never-events-policy-framework-update-to-policy.pdf.pdf