the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Stroke Caused By Beauty Facial Case Settles

Claims against negligent beauticians and the like are not altogether uncommon. The injuries tend to be dermatological in nature consequent of some allergic reaction to an untested product. But who would have thought it possible, let alone likely, for someone to suffer a stroke as a result of a beauty facial treatment? Tragically that is what happened to Elizabeth Hughes after her visit to the spa at the Eastwell Manor Hotel. What should have been a weekend treat resulted in a serious stroke that left her disabled for life. Her claim, which otherwise would have been tried in the High Court this week, settled for an undisclosed amount. How did it happen? The medical experts on both sides were agreed that the stroke occurred as a result of a dissection to the carotid artery. The dissection was in all probability caused when beauty cream was massaged onto the sides of her neck by the beauty therapist. The issue was whether she was negligent or had applied an excessive degree of force. Unlike sports injury or deep tissue massages, where there are reported cases of stroke, this was a novel situation. This type of injury had not been encountered previously by beauty therapists. Mrs Hughes who was employed by the NHS as a nurse was left significantly disabled. Her disabilities prevented her from returning to employment in the nursing sector. The case has been watched closely by the beauty industry and the press. (http://www.mirror.co.uk/news/uk-news/nurse-disabled-stroke-after-allegedly-6798935) Elizabeth Hughes was represented by Edward Bishop QC and Kiril Waite at 1 Chancery Lane, instructed by Ciaran McCabe at Moore Blatch Legal Resolve.

Quantity not quality

The decision of Foskett J in Reaney v University Hospital of North Staffordshire NHS Trust  [2014] EWHC 3016 (QB) (rightly) caused some excitement in the legal blogosphere when it was handed down in October 2014. It appeared that he had extended the familiar eggshell skull rule by holding that a Defendant who had injured a woman with pre-existing care needs was liable to compensate for her full care needs not just the additional needs. That decision has now been overturned by the Court of Appeal [2015] EWCA Civ 1119  who draw a useful distinction between qualitatively and quantitatively different care needs. The Facts Mrs Reaney, was admitted to hospital in December 2008 with transverse myelitis. As a result she was permanently paralysed below the mid-thoracic level and classified as a T7 paraplegic. It was common ground that this was not caused by any negligence. As a result of a prolonged hospital stay she suffered pressure sores. It was admitted that this was caused by the Defendant’s negligence. As a result of the transverse myelitis she was always destined to be confined to a wheelchair for the rest of her life. It was found that but for the development of the pressure sores, the Claimant would have required some professional care, increasing as she got older. But as a result of the pressure sores and their resulting complications, she would require 24/7 care from 2 carers for the rest of her life. The Decision of Foskett J Foskett J with reference to Paris v Stepney Borough Council [1951] A.C. 367 held at ¶69 that while a Defendant is only liable to compensate for damage which he has caused or to which he has materially contributed, where he has made the Claimant’s position substantially worse he must make full compensation for that worsened condition. He therefore concluded that she was entitled to full compensation for all her care, physiotherapy and accommodation costs, including the care she would have required but for the negligence. The Decision of the Court of Appeal This conclusion was firmly rejected by the Master of the Rolls who held at ¶18 that the tortfeasor must compensate for the condition in which the Claimant finds herself only to the extent that it has been worsened by the negligence. The rule that a Defendant must take his victim as he finds him is, as the Defendant had argued before Foskett J (¶53), sometimes to a Defendant’s disadvantage and sometimes to their advantage. A Defendant who injures someone with a pre-existing vulnerability, such as the famous eggshell skull, is liable for the full loss flowing from his negligence. However, in this case, it was right that the loss should reflect that the Defendant had injured a T7 paraplegic who already had significant care needs. In fact before the Court of Appeal it was, perhaps surprisingly, common ground between the parties that if the Defendant’s negligence gave rise to substantially the same kind of care and other needs as her pre-existing needs, then the damage caused by the negligence was only the additional needs. However, if the care needs flowing from the negligence were qualitatively different from the pre-existing needs, then those needs were in their entirety caused by the negligence. This view was endorsed by Dyson MR at ¶19. The Claimant’s unsuccessful case on appeal was, therefore, that Foskett J had found the care needs arising from the tortious act to be qualitatively different and so there was no need to disturb his overall conclusion. The Master of the Rolls dealt with the question raised as to the position where there was no means of recovery of the underlying loss. He was firm that the ability to recover for the underlying loss was irrelevant and that a person can only ever be liable for the loss they have caused. Comment At first blush the Court of Appeal’s decision appears to have brought welcome clarity. Foskett J’s judgment, while perhaps giving an attractive result, was not easy to reconcile with the earlier authorities. However, as shown by the point taken by the Claimant before the Court of Appeal, it leaves open significant scope for argument as to when a care need is qualitatively different from pre-existing needs. Those advising both Claimants and Defendants will in future cases of this sort want to scrutinise carefully the differences between the care packages and be ready with arguments as to why those differences should be found to be qualitative or quantitative as appropriate. Finally, as unattractive as this result might seem, there is still nothing to stop a court applying the principle in Paris v Stepney Borough Council and making a higher award for PSLA to reflect the fact that the consequences of injury may be substantially worse for an already injured person.

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/ 

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?”

Coroners, Consistency and Change

  Harold Macmillan is famously said to have observed that:   “There are three bodies no sensible man directly challenges: the Roman Catholic Church, the Brigade of Guards and the National Union of Mineworkers”.   To this list should perhaps be added the Royal British Legion.   The Coroners and Justice Act (CJA) 2009 contained legislation to reform the process of death investigation and certification in England and Wales to deal with the shortcomings of single doctor death certification identified in the Shipman Inquiries. It also created the new office of Chief Coroner (CC).     In October 2010, Jonathan Djanogly, then Parliamentary Under-Secretary of State for Justice announced that some of the provisions of the CJA 2009 would not be implemented. These included the office of CC.   Following widespread public criticism, including a message to all members of parliament from the Royal British Legion which appeared prominently in a number of national newspapers, the government relented.   Kenneth Clarke, then the Justice Secretary, announced that he had “listened and reflected on the concerns” and the office of CC would be created after all.   In May 2012 the Lord Chief Justice in consultation with the Lord Chancellor appointed Judge Peter Thornton Q.C. as the first CC of England and Wales.   On 1 July 2014 the CC presented to the Lord Chancellor his first annual report which can be downloaded free of charge from the government’s website:   https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/330652/chief-coroner-annual-report-july-2014.pdf   The report covers the period from 25 July 2013 to 30 June 2014 and contains information which will be of interest and help to all lawyers doing coronial work. In particular the report includes sections on:   The training of and the guidance now provided to coroners. The appointment of coroners and the merging of certain coroner areas. Investigation and inquest processes. Delays in investigations. Prevention of future death reports.   As the report recognises much work still needs to be done. But the CC can take credit for the fact that more hearings are now held in public, all hearings are recorded, most inquests are or soon will be held within six months and there is now better and earlier disclosure to interested parties.   Currently in England and Wales there are 99 separate coroner areas. We await with interest next year’s report to see if the CC’s stated intention to reduce these to about 75 areas, each being an appropriate size in terms of numbers of deaths reported geographically and special work - prisons, major hospitals, mental health institutions and airports – will result in further improvements to the coronial service overall.

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