Supermarket Mental Patient!

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Case Background

Today’s press coverage of a well known supermarket selling a costume of a blood soaked mad man and labelling it a “mental patient” is a good example of the difficulties businesses face when dealing with mental health. Mental health problems still carry stigma and businesses find it increasingly difficult to know how to manage staff with mental health issues whilst trying to run a viable business.

Contributor Notes

Anyone that represents businesses in the Employment Tribunal knows how many problems are created when a claimant appears in person. A claimant in person usually has a limited understanding as to what is expected of them in the Tribunal and can turn up on the day of the hearing with new witnesses; without witness statements; with new documents; or seeking permission to rely upon that evidence.

Whilst experienced litigators know how to tackle such problems, there are occasions when even the most experienced are pushed to the limit. I have appeared before Employment Tribunals for over 14 years but in 2011, and into 2012, my skills as a litigator were tested to the limit.

The case involved a former employee of a NHS Trust who had been dismissed by reason of capacity. The claimant had spent many years being moved from one job to another in an attempt to accommodate an apparently growing mental health problem. The facts of the case, therefore, spanned several years. The claimant raised allegations covering those years and, as a claimant in person, the metaphorical kitchen sink was thrown in. This approach only increased the cost to the Trust at a time when public funds would have been better served saving lives.

The respondent Trust had to address those issues through witness evidence which meant that there were a significant number of witnesses.

The hearing took place over three weeks; split between 2011 and reconvened in 2012 because the claimant’s health problems caused a long adjournment.

So why was this case different than any other? First, the claimant took over ten minutes to ask each and every question or to make a note of an answer; even if the answer was a simple ‘yes’ or ‘no’.

Second, the claimant became aggressive and made inappropriate comments when questioning witnesses and this caused great upset to those witnesses.

Third, the claimant took constant breaks and made multiple daily unmeritorious applications which meant the hearing had to stop so the Tribunal could hear each and every application. This required my response and then a Tribunal decision. This caused significant delay and further distress to the witnesses.

Why did the Tribunal accommodate such behaviour and why did I not object? The difficulty in this case was that it was almost impossible to differentiate between unacceptable behaviour and behaviour linked to the claimant’s mental health problems. The case highlighted the tight rope all organisations face in trying to manage mental health whilst not tolerating poor behaviour and protecting other staff.

The Tribunal and I were both concerned to ensure the claimant had a fair hearing and so, absent clear evidence as to what was part of the behaviour was linked to the claimant’s mental health and what was just an example of poor behaviour, there was little choice but to accommodate the behaviour. That was extremely difficult as an advocate as I had to make many decisions during the hearing as to matters I would take issue with and those I would not because of the claimant’s mental health. It was a difficult balancing act which caused significant frustration to all involved. I have no doubt that in inexperienced hands the case had potential to go disastrously wrong. Not because the respondents had done anything wrong but because when cases are handled badly by advocates in a hearing setting it can set the case, and the Tribunal, off on the wrong footing and that tends to be the beginning of the end.

After three testing weeks of long pauses, interruptions and aggression the Tribunal finally heard all of the evidence. The result? The Tribunal produced a 50 page judgment unanimously in favour of the Trust.

Was this a victory? Yes and No. No, because the case had cost the Trust; the costs were paid through public funds and the witnesses’ distress was unacceptable. Yes, because the Trust had behaved impeccably and as a result of careful handling the Tribunal vindicated that in the judgment.

Mrs Harrison v St Helens Borough Council

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Case Background

The Claimant was employed as a Curriculum and Support Manager in the 14-19 team of the Children and Young People’s services department (CYPS). She commenced a period of maternity leave and was still on maternity leave when she was dismissed the following year. Whilst the Claimant was on maternity leave the Respondent re-structured the CYPS, which involved the replacement of the existing staff structure with a new one.

The Respondent used a process of assimilation and ring-fencing to put some staff members in posts within the new structure and made others compulsorily redundant. The Claimant was ring-fenced for a teaching position, which the Respondent conceded was not a suitable alternative vacancy pursuant to Regulation 10 of the Maternity and Parental Leave Regulations 1999 (the ‘Regulations’). As such, when she declined to take up the position she was made redundant. Throughout the restructure and redundancy process there was little consultation. Despite this the Claimant, through her trade union, sought to bring to the Respondent’s attention that whilst her job had been displaced under the new structure she was capable of performing some of the new roles and that, in accordance with the Regulations, she should be given one of these roles in preference to other employees.

The Respondent took the view that these new roles were never available or vacant as there had been assimilation/ring-fencing for employees whose positions were materially identical or closely matched to their old posts. This led to the Respondent’s belief that there was no requirement to consider the Claimant for the roles. In the alternative they sought to argue that the Claimant would not have been suitable for these roles and/or that other employees were more suitable for the roles. The Claimant’s claim consisted of a claim for automatic unfair dismissal and sex discrimination.

The key issues for the tribunal to determine were: 1) did any of these roles constitute vacancies; and 2) if they were vacancies, were they suitable for the Claimant. The tribunal found that it was clear that the Respondent knew that the Claimant’s existing post was to be dispensed with and that she was at risk of redundancy before they made decisions about allocation of posts in the new structure, including the posts in issue. As such, there were vacancies and the Claimant should have been considered ahead of other employees who were not afforded protection under the Regulations. Whilst other employees may have been more suitable for the roles this was not test under the Regulations. The fact of the matter was that the Claimant would have been suitable for two of the roles. Further there had been a failure to consult, part of which was due to the Respondent taking a conscious decision not to involve the Claimant as she was on maternity leave. The Claims of automatic unfair dismissal and sex discrimination succeeded.

Contributors Comments

This case is of particular importance given that many local authorities use assimilation and ring-fencing in redundancy situations. Despite their frequency there are little, if any, reported decisions looking at whether this is a fair mechanism. The reasoning behind the finding that there were vacancies before the assimilation/ring-fencing process took place is relevant to cases involving ordinary unfair dismissal (in particular where there is a failure to consult) and potentially as regards the need to make reasonable adjustments. The case also provides assistance in relation to considering whether a vacancy is suitable where suitability was not considered by the Employer at the time. The tribunal stated as follows:

‘The Respondent now says that it does not consider that the vacancies were suitable, and refers us to the case of Simpson v Endsleigh Insurance as authority for the proposition that it is for the employer to decide whether or not a vacancy is suitable… we are therefore invited to accept the Respondent’s ex post facto assessment as to suitability. As there is no contemporaneous decision as to the suitability of the posts for the Tribunal to review the Tribunal can only, therefore, make its own objective assessment of the matter-taking account, of course, of the Respondent’s ex post facto views.’

The proposition to be taken from this case is that ring-fencing/assimilation is not necessarily an easy shortcut through the redundancy process and that further consideration and consultation will be required in most situations.

Billingham v (1) John Barnsley and Sons (2) Lloyds British Inspection Services Ltd. (3) Vaughan Brothers (Drop Forgings) Ltd. (2013): A legal and scientific commentary

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Case Background

The executrix in this action brought a claim for personal injury on behalf of the deceased (Mr Billingham). Mr Billingham contracted mesothelioma as a result of asbestos exposure while at work and died. Mr Billingham was employed by Lloyds British Inspection Services Ltd., a company that specialised in testing the strength of industrial installation. As part of his role, Mr Billingham was testing the strength of steel girders at Cottram Power station between 1968-1969; this involved throwing chains over the girders and attaching weights to the end to see how much it could withstand. It was accepted at trial that the power station was a dusty place and that each time a chain was thrown over a girder it would shower Mr Billingham with dust.

The defendant sought to argue that the strength of the girders were not tested by throwing chains over them; that the work undertaken by the defendant was conducted before the installation of the lagging; that the claimant had not worked in close proximity to any lagging; and that the level of asbestos exposure was unlikely to have breached the concentration guidance contained in HM Factory’s Inspectorate’s Technical Data Note (TDN) 13.

Bean J concluded that the girders were tested by throwing chains over them and that each time this was done Mr Billingham would have been showered with dust; that the lagging took place on a rolling basis and that at the time of Mr Billingham’s work there would have been asbestos present; that the dust on the girders was likely to contain asbestos; and that Mr Billingham had been allowed to work in an area where asbestos dust had been allowed to form. The court was unable to be precise about the amount of asbestos Mr Billingham had been exposed to but that did not matter in light of the fundamental question: did the defendant employer take reasonable steps to prevent its employees being exposed to asbestos. On the facts it was decided that reasonable steps had not been taken and that the defendant should have known this exposure presented a risk to employees. Bean J explained that comments by Aikens LJ in Williams v University of Birmingham [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2011] EWCA Civ 1242 were not inconsistent with the earlier case of Maguire v Harland & Wolff [2005] EWCA Civ 1.

Contributors Comments

At first blush it might appear that it is difficult to square the results in this case with the decision of the Court of Appeal in Williams v University of Birmingham; reflecting similar difficulty in reconciling the Court of Appeal’s decision in Williams with earlier judicial comments which appears to treat 1965 as a date of knowledge of risk from all asbestos exposure however slight.

The latter difficulty reflects judicial comments such as those of Judge LJ in requiring cases where exposure post-1965 was not an issue and there was no detailed analysis or argument as to the position in this period of time.  In reality, the use of 1965 as a definite watershed for appreciation of asbestos-related risk can be seen to be an over-simplification.  That low levels were not dangerous or not sufficiently dangerous to require prohibition of use was accepted authoritatively throughout the 1970s.  The Factory Inspectorate and then the Health and Safety Executive did enforce the Asbestos Regulations 1969 in accordance with the guidance in TDN 13 of 1970.  There is evidence that they commended employers who were complying with these standards.

The basic question in every case is whether any employer or other person causing exposure could reasonably consider that they might be creating a reasonably foreseeable risk of injury.  The level of exposure established retrospectively is clearly relevant to this question but is not the only factor.  To the extent that the Court of Appeal’s approach in Williams focussed primarily on the level of exposure, it is potentially misleading and has encouraged a view that if exposure can be shown not to have exceeded the levels in TDN 13 of 1969 then no question of breach of duty can arise.

However in Williams, there was the additional consideration that the context in which the exposure arose that is disturbing invisible residues in a contained area was simply not viewed at the material time as a situation in which risk might arise.  Similar considerations arose in other data knowledge cases such as McGuire in relation to secondary exposure and Pinder v Cape plc in relation to environmental exposure.

Whilst the risks of secondary and environmental exposure were clearly identified by the Newhouse and Thompson research published in 1965, the risks arising from the presence of asbestos containing materials in buildings not directly subject to activity was not considered or publicised until much later.  In the early 1970s no one would in fact have considered the risk of Williams  being exposed to asbestos at all.

The Judge therefore was correct to draw distinctions with Williams on the basis that in that case there was no obvious disturbance of asbestos containing materials (paragraph 35) and on the basis that although the guidance in TDN 13 was not overall exceeded, there was nonetheless exposure to levels within the guidance (paragraph 36).  Against this background, he considered that the deceased would have been considered to have been exposed to asbestos and that a prudent employer considering the exposure would conclude that it ought to be voided even if it did not strictly exceed the guidance in TDN 13.

A more difficult case will no doubt arise when it is shown as is known to be the case that an employer effectively complied with the guidance in TDN 13.  In this context, the victim was likely exposed to a very significant amount of asbestos but nonetheless the employer would be shown to be complying with the law and appreciation of risk as understood at the time.  It is difficult to see on the current state of the law following Baker v Quantum and then Williams v University of Birmingham why the Defendant would be held to be in breach in this situation.

Dr Alan Jones, Senior Physicist/ Head of Proficiency Testing, Institute of Occupational Medicine, comments

The judge was unable to be precise about the amount of asbestos that Mr Billingham had been exposed to.  On the judge’s findings, lagging had taken place on a rolling basis and the dust on the girder would have contained some asbestos dust.  Therefore, the Defendant  was found liable because it failed to prevent exposure to a hazard which might have contributed a very small risk that anyone so exposed would develop a mesothelioma.   Both the duration and the concentration were not determined by the judge’s findings of facts.  However, by way of example, if the exposure had amounted to a total of 2 weeks of exposure to a concentration near the exposure limits in TDN 13, then the cumulative exposure would have been about 2 fibres/ml ×  1/24th of a year = 0.08 fibre/ml.years, if the asbestos present was either amosite =or chrysotile.

The asbestos was very unlikely to have been crocidolite (blue) asbestos as the Power Stations were aware of the greater risk from crocidolite and had therefore specified that it should not be used for new lagging – and this case referred to lagging taking place on a rolling basis.   However, if the Court had found that exposure had been to crocidolite and yet accepted that the exposure had been below the limits specified in TDN 13, then the cumulative exposure might have been about 0.2 fibres/ml ×  1/24th of a year = 0.008 fibre/ml.years, if the asbestos present was crocidolite.    By 1968, the Power Stations were instructed to follow a code of practice that specified particular care with blue asbestos, so if exposure was to crocidolite then it would probably have been at a lower concentration (than for other types of asbestos).

The significance, in terms of likely risk to those exposed, may be estimated from the findings of occupational epidemiological studies in the traditional asbestos industries where there were substantial exposures. Estimation of risk from the exposures estimated above (about 0.1 fibres/ml.years of amosite or chrysotile or about 0.001 fibre/ml.years of crocidolite) is an extrapolation to exposures much lower than the average exposures in the industrial cohorts that provide the data for the exposure risk relationships.   Hodgson and Darnton (2000), who undertook an analysis which combined the data from multiple published studies, produced a summary of their estimates of risk (Table 11 in their paper).  It is interesting to quote from that Table 11 of Hodgson and Darnton (2000), as below:

Risk summaries for cumulative exposure of 0.1 fibre/ml.years.

“Chrysotile
Risk probably insignificant, highest arguable estimate 4 deaths per 100 000 

Amosite 

Best estimate about 15 deaths per 100 000 exposed. Highest arguable estimate 80,”

Risk summaries for cumulative exposure of 0.01 fibre/ml.years.

Crocidolite

“Best estimate about 20 deaths per 100 000 exposed. Highest arguable estimate 100, lowest 2”.

The above estimates of risk were based upon the premise that the exposure took place between age 30 to 35.  Essentially, the risk predictions are the estimates of how many deaths from mesothelioma would be expected if 100,000 persons had that cumulative exposure while in that age bracket.  There would be additional risks from any other exposures that may or may not have been recognised.   If the exposure took place earlier in a person’s life, say from age 20 to 25, then the risk estimates would be approximately doubled.

With the benefit of the modern information (which was not available to the Defendant at the relevant time), it is apparent that the risks from a short period of exposure at levels approaching the limits set in TDN 13 leads to a non-trivial risk.

TDN 13 was entitled “Standards…” etc for asbestos and then in the second edition “Hygiene standards”.   Subsequently, the Advisory Committee on Asbestos (1979)  recommended that the terminology be changed to “Control Limits” because “Hygiene standard” implied or was misunderstood as a level that was “safe”.   It is now generally accepted that there is no known safe threshold of exposure below which there is no risk (of mesothelioma), and it would be extremely difficult to prove the existence of such a threshold.  It is generally accepted that the lower the exposure, the lower the risk becomes and extrapolation of models (such as that of Hodgson and Darnton) give a reasonable indication of the risk from an estimated level of exposure.

Health and Safety at Work regulations require that asbestos hazards be managed so as to prevent (in so far as is reasonably practicable) exposure to asbestos.

As Charles Feeny commented:

“A more difficult case will no doubt arise when it is shown as is known to be the case that an employer effectively complied with the guidance in TDN 13.  In this context, the victim was likely exposed to a very significant amount of asbestos but nonetheless the employer would be shown to be complying with the law and appreciation of risk as understood at the time.”

The above estimates of levels of risk from exposure that were relatively short (weeks), and at the “standards” or  “hygiene standards”  set in TDN 13 indicates that a more difficult case is indeed likely to arise.  There may have been many jobs which involved some incidental contact with an asbestos hazard, that was controlled properly by the standards of the time but gives rise to a non-trivial risk of mesothelioma which may develop some 40 to 50 years later.

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2013/520.html&query=title+(+billingham+)&method=boolean [/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

Habeas corpus? Body or evidence? The AvMA Medical & Legal Journal (2013) Vol. 19 Issue 2 pages 42-45

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Ana Samuel was recently published in the AvMA Medical & Legal Journal. In her article Ana analyses what rights, if any, exists in relation to possession of body parts. In addition the article discusses the legal implications for retention of body parts and disposal where the part may be of evidentiary value.

To read Ana’s article in full please follow the link (above) to her St Johns Buildings profile page.

The Dust Settles? Fairchild to Williams (2013) 21 Tort L Rev 87

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Charles Feeny was recently published in the Tort Law Review. In his article Charles comments on the Supreme Court decision in Sienkiewicz v Grief UK Limited [2011] UKSC 11 and the Court of Appeal decision in Williams v University of Birmingham [2011] EWCA Civ 1242, and in doing explores the concepts of material increase in risk and the de minimis principle.

Paula Thomas v Paul Curley [2013] EWCA Civ 117: A clinical and legal commentary on the judgment of the Court of Appeal

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Clinical commentary

Professor Graeme Poston

Professor of Surgery, University of Liverpool

Consultant Hepatobiliary Surgeon, Aintree University Hospital, Liverpool

The facts

The Respondent was diagnosed in 2005 as suffering from a symptomatic gallstone in her gallbladder and was referred to the Appellant, a consultant general and vascular surgeon, who advised her that she would benefit from a laparoscopic cholecystectomy. As he Respondent had the benefit of private health insurance, the Appellant offered to undertake this operation at the private hospital to which he had admitting privileges.

At surgery on the 10th October 2005, the Appellant found a non-inflamed gallbladder containing a single gallstone. He documented that the Respondent’s biliary anatomy was such that the cystic duct (which would need to be clipped and divided in order to facilitate the procedure to remove the gallbladder) connecting the gallbladder to the biliary ductal system entered the right hepatic duct, which in turn joined with the left hepatic duct to form the common bile duct, the Respondent therefore having no common hepatic duct (see Figures 1 and 2). The Appellant applied two clips to the cystic duct, one proximally, close to the right hepatic duct, and the other distally towards the gallbladder, and then divided the cystic duct between these two clips. He then repeated this procedure on the cystic artery (blood supply to the gallbladder) before removing the gallbladder. The Respondent was the discharged from hospital the following day.

The Respondent was readmitted to hospital on the 14th October with sudden onset severe abdominal pain, and the working differential diagnosis was between non-specific abdominal pain, a postoperative bile leak, and acute pancreatitis. A CT scan shortly after readmission did not demonstrate any free fluid in the abdomen at that time, pointing away from a bile leak. Following admission the Respondent’s blood liver function tests deteriorated and the Appellant arranged for an ERCP (endoscopic retrograde cholangio pancreatogram, an X-ray examination of the bile ducts performed through an endoscope under sedation) which was attempted, but abandoned on the 18th October. A further ERCP on the 20th October was interpreted by the Appellant as showing a leak from the cystic duct stump and a biliary stent was placed in order to decompress the biliary ductal system.

Thereafter, the Respondent’s condition continued to deteriorate, with increasingly abnormal liver function tests, and the onset of acute renal failure. She was therefore transferred to the regional hepatobiliary centre where she underwent a further laparoscopy on the 26th October at which several litres of bile were extracted from the abdominal cavity, and following conversion to an open laparotomy, the operating surgeon identified bile leaking from a hole in the bile duct through which the stent placed at the ERCP of the 20th was visible, and not due to a failure of the clip on the cystic duct. Surgical drains were placed against the hole and following completion of the operation the Respondent was transferred to the Intensive Care Unit. The biliary stent was removed the following February, but the Respondent subsequently developed an incisional hernia in the scar of the operation of the 26th October.

Issues of Liability

Bile duct injury is a well-recognised complication of cholecystectomy, regardless of whether it is carried out laparoscopically or as an open procedure1. The Respondent developed biliary peritonitis 4 days after her laparoscopic cholecystectomy which was not identified until 6 days later, and was inadequately managed at the ERCP of the 20th since the bile was allowed to continue to drain into abdominal cavity causing her to develop renal failure. Although it was possible that the bile leak was due to the failure of the clip on the cystic duct, the operative findings of the 26th were otherwise, that the bile was leaking directly from a hole in the common bile duct. There were only 2 mechanisms for this injury, a full thickness puncture due to direct trauma during the cholecystectomy, or a subsequent hole developing as a consequence of a full thickness burn to the bile duct wall, due to inappropriate use of diathermy cautery during the dissection of the gallbladder away from the bile ducts. In this case, although all possible mechanisms were discussed in Court, it was almost certainly the latter since the Respondent was well for 3 days after the index cholecystectomy, indicating that the hole (and thus the biliary peritonitis) did not develop until the 14th when the bile duct wall disintegrated.

Injudicious use of diathermy during surgery in general 2, and laparoscopic cholecystectomy in particular, is well described in the literature, especially as a cause of iatrogenic bile duct injury 3, 4, 5. While I have not had sight of the Appellant’s operation notes of the index cholecystectomy, surgeons have a duty of care when performing a cholecystectomy to avoid the use of diathermy cautery in the region of Calot’s Triangle (see Figure 1, between the gallbladder and bile ducts, bordered inferiorly by cystic duct and gallbladder, medially by common hepatic duct, and superiorly by the undersurface of the liver), and the bile duct in general, as diathermy is well-recognised to arc unintentionally and uncontrollably over distances >1 cm to adjacent organs, thereby causing damage, in this case to the common bile duct. Even if diathermy cautery is used at some distance from the bile ducts to dissect the gallbladder from the liver, only the lowest power settings should be employed, and documented as such 3.

There are a number of further clinical issues that are pertinent to this case. The first of these addressed by Mr Justice Griffith Williams at the original trial relates to variation in biliary anatomy (Para. 20 of the Trial Judge’s judgment). The ‘usual’ disposition of biliary anatomy referred to by Mr Justice Griffith Williams, of the right and left hepatic ducts joining to form the common hepatic duct, which in turn is joined by the cystic duct to form the common bile duct (see Figure 1) is found in less than 50% of people. The Respondent’s anatomical variant (cystic duct joining the right hepatic duct which in turn joined the left hepatic duct to form the common bile duct, in which case there can be no common hepatic duct, see Figure 2) is found in 4- 5% of people, and is therefore a common anatomical variant. Any surgeon performing a cholecystectomy has a duty of care to be aware of the commonly occurring anatomical variants and take steps to establish the biliary anatomy beyond doubt before clipping and dividing any structure. The most frequently seen iatrogenic bile duct injury occurs when the surgeon mistakenly identifies the common bile duct as the cystic duct, clipping and dividing it. While this injury has never been successfully defended in any English Court, some American courts have been persuaded that such an mistake is an excusable error of misperception,6 and therefore successfully defended. However, there is an alternative view in the US that holds that such an opinion reduces surgery to a mindless game of chance, and that patients should expect more from their surgeons 7. However, the Appellant correctly identified the Respondent’s biliary anatomy, and in this case, no bile duct structures were inappropriately divided.

image

Figure 1. The ‘conventional’ biliary anatomy seen in just under 50% of people.

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Figure 2. The Respondent’s biliary anatomy in which the cystic duct connecting the gallbladder to the biliary ductal system enters the right hepatic duct. This is seen in 4-5% of people.

With regard to the views of the two Expert Witnesses, Professor Parks and Mr McDonald disagreed as to the site and mechanism of the injury, I agree with Professor Parks’s view that the injury arose because of injudicious use of diathermy during the dissection of the gallbladder. Mr McDonald argued that the bile leak came from a failed clip on the cystic duct (as interpreted by the Appellant at the ERCP of the 20th), but he did not appear to have a grasp of the anatomy of the injury. It wasn’t helpful to the Court that neither side had sought a witness statement from Mr Prasad, the surgeon who operated on the 26th, to determine exactly what he meant by ‘loss of bile duct wall anteriorly’, which at face value places the injury below the confluence of right and left hepatic ducts, as the form the start of the common bile duct. It is not uncommon with this particular anatomical variant for the Hartmann’s pouch of the gallbladder (where the cystic duct meets the gallbladder) to abut the common bile duct, and be attached by folds of peritoneal membrane which will need to be divided in order to access the anatomy of Calot’s Triangle, and complete the operation. If the Appellant had used diathermy cautery to assist such a dissection, then on balance, the bile duct was going to be inadvertently burnt (resulting in the observed injury), and such an action would not be supported by any responsible body of surgical opinion.  In my opinion, it would have been extremely helpful for the Court to have had the opportunity to examine Mr Prasad (an experienced biliary surgeon) and ascertain his exact findings and his thoughts on the mechanism of injury. As I state above, the only possible mechanism in these circumstances of an injury to the anterior wall of the bile duct that resulted in the development of a hole in the bile duct 3 days later was a full thickness diathermy cautery burn to the wall of the bile duct, which can only occur if the surgeon employs diathermy cautery too close to the bile duct, which would constitute substandard care.

Issues of Causation

While the Appellant appears to have considered biliary peritonitis within the differential diagnosis following readmission, the delay of 6 days in confirming the diagnosis at the ERCP of the 20th, and simply placing a biliary stent and taking no other action, cannot be supported by a responsible body of surgical opinion. During that time the Respondent was developing biliary peritonitis and renal failure. There was a duty of care to laparoscope the Respondent at the earliest opportunity, which would have identified the hole in the common bile duct, allowed evacuation of the bile in the abdomen, and facilitated the placing of surgical drains (as Mr Prasad did on the 26th), followed by an ERCP and biliary stent. Therefore, on balance, appropriate early action would have prevented the onset of renal failure, the laparotomy of the 26th, the period in intensive care, and the subsequent incisional hernia.

With regard to the other rejected grounds for appeal on causation, there is considerable literature demonstrating that this injury is associated with loss of life expectancy 8,9, and if survived, long-term loss of quality of life 10, and exposure to further chronic life-long and life-threatening complications 11, 12.

In conclusion, I am surprised that this case ever made it to Court, for which, in my opinion, the responsibility in part remains with Mr McDonald’s opinion on the site and mechanism of the injury.

Legal commentary

Wendy J Owen- Barrister, St John’s Buildings

The case is a good example of how a case for clinical negligence can develop over the course of time and how, by the time of the trial itself, the issues have often narrowed quite considerably.

At first instance, the trial judge, whose judgment was subsequently upheld by the Court of Appeal, noted that the issues had narrowed from 5 allegations of negligence to just two, namely:

  1. damaging the claimant’s common bile duct during laparoscopic surgery to remove the claimant’s gallbladder; and
  2. failing to ensure adequate monitoring of the claimant for two days post operatively by failing to arrange for her fluid balance and renal function to be monitored.

The main issue between the parties at first instance was determination of the location of the bile leak, the parties having agreed that the claimant’s symptoms were consistent with such a leak.  The claimant submitted that the leak was from the common bile duct,  the defendant submitted that it was a cystic duct stump leak.

The other issue was determining  the cause of the leak.  The claimant argued that it was caused by an iatrogenic injury to the common bile duct.  It was accepted that such injury could be caused by a sharp instrument or diathermy.   The defendant submitted that it was due to two clips falling off the cystic duct, either through mechanical failure or ischaemic necrosis.  It was accepted that if the latter had occurred, this would not be negligent.

The judge at first instance found that the leak was from the common bile duct and that it was caused by an iatrogenic injury. He concluded that this was a result of a breach of duty on the part of the defendant.  He noted the medical literature relied upon and concluded that as the defendant was apparently carrying out an uncomplicated procedure some distance away from the site of the common bile duct injury and that no explanation had been given for how such an injury could be caused by a breach of duty on the defendant’s part, the injury must have been caused by negligence on the defendant’s part.

The defendant had submitted that, in terms of the allegation relating to the bile duct injury, the claimant was trying to run the case on the basis that it was one of res ipsa loquitur, that, in essence, as the bile duct was damaged, the surgeon must have been negligent.  The trial judge was well aware that the Court of Appeal had held in Ratcliffe v Plymouth and Torbay Health Authority and others (1998) Lloyd’s Med Rep 162 that res ispa will rarely apply in clinical negligence where medical records and witness statements and expert evidence will normally be available to assist the Court to make a find of negligence where appropriate.  In this case, the claimant had never pursued the matter on the basis of res ipsa.   It was, however, this point which the defendant pursued, unsuccessfully, before the Court of Appeal. The other grounds of appeal were also dismissed by the Court of Appeal.

At appeal, the negligent surgeon’s barrister argued that in essence the trial judge had erred in not regarding her case as a res ipsa case, as according to him the claimant’s case had been that as there was evidence of bile duct injury this must have been negligent.  The Court of Appeal dismissed the appeal.

It is interesting to see how the Court of Appeal dissects the judgment of the trial judge and is particularly impressed with the manner in which the trial judge considered the medical literature relied upon at trial.  In terms of the res ipsa argument, the Court of Appeal noted that the trial judge had not erred, finding that “the judge was not drawing an inference of negligence from the mere fact of injury to the common bile duct during an operation. He was addressing the particular circumstances of this particular case in the round, having regard to all the evidence and having assessed its weight. This is apparent from his reference to the fact that this was an uncomplicated procedure some distance removed from the site of the common bile duct injury.”

So what can lawyers involved in clinical negligence cases learn from this case? Firstly, that it is very risky to run a case for a claimant on the basis of res ipsa alone. It is quite common for an expert to say that as certain damage was caused then the surgeon must have been negligent. That is generally not enough. It is important that the expert is specific and that the allegations of negligence are specifically pleaded.  Take, for instance, a laporoscopic cholecystectomy, many an expert  would criticise the surgeon for damaging the bile duct, but the question the expert should also answer is why he is critical?  Has the surgeon failed to identify the Calot’s triangle, for instance?  If so, that would be a valid allegation of negligence on his part and would explain why the anatomy has been misidentified.  Such a specific allegation of negligence might well prove difficult to defend.

There was much discussion at first instance as to the precise location of the damage.  Time was spent trying to interpret the operation note of Mr Prasad, the surgeon who operated on the claimant on the 26th, after the breaches occurred. (No criticism was made of Mr Prasad.) In his medical commentary, Graeme Poston expresses surprise that Mr Prasad was not called as a witness to explain his findings in more detail.  I do not know if Mr Prasad was contacted or not.  However, it can be very useful to contact the surgeon who essentially “sorts out the mess” to ask for clarification of his operative findings.  Even with a good and clear operation note, the evidence of the operating surgeon can carry much more weight with the Court and one then avoids the risk of an expert witness interpreting the operating surgeon’s notes in the wrong way.

The case is also interesting in terms of the manner in which Counsel for the defendant sought to undermine the credibility of the claimant’s expert witness as he criticised him for failing to address the defendant’s case, presented by way of its defence and witness evidence prior to exchange of expert evidence.  The judge dismissed this criticism on the basis that the claimant’s expert had subsequently dealt with the defendant’s case in the joint statement.  This type of experience is, however, likely to have been unnerving for the claimant’s expert and could have been relatively easily avoided by the claimant’s expert having the opportunity to formally consider, by way of a report, the defendant’s case as it stood prior to the exchange of expert evidence. It essential that parties to litigation consider the other side’s case with its experts prior to exchange of expert evidence with great care.  Whilst the expert may find it difficult to work out the pleadings, it is important that the legal team goes through them with the expert as well as the, usually, more easily comprehensible witness statements. The Judge will look at the pleadings first.  The importance of ensuring that each party’s case is properly pleaded in the particulars of claim and defence respectively cannot be underestimated.

Footnotes:

  1. Connor S and Garden OJ. Brit J Surgery 2006; 93: 158-168
  2. McAnena O and Wilson P. Brit J Surgery 1993; 80: 1094-6
  3. Strasberg S. J Hepatobilary Pancreat Surg 2002; 9: 543-7
  4. Strasberg S.  J Am Coll Surg 2005; 201: 598-603
  5. Strasberg S.  J Am Coll Surg 2005; 201: 604-11
  6. Way L et al. Annals Surgery 2003; 237: 460-9
  7. Lillemoe K. Annals Surgery 2003; 237: 470-1
  8. Flum DR et al. Archives Surg 2001; 136: 1287-92
  9. Tornqvist B et al. Brit Med J 2012; 345:18
  10. Gouma DJ and Obertop H. Brit J Surg 2002; 89: 385-6
  11. Schmidt SC et al. Brit J Surg 2005; 92: 76-82
  12. Sarno G et al. Brit J Surg 2012; 99: 1129-36

http://www.bailii.org/ew/cases/EWCA/Civ/2013/117.html

Young Austen & Young Limited v Bucon Heating & Ventilation Limited

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The claimant in this case made a claim pursuant to the Civil Liability (Contribution) Act 1978 and Section 3 of the Compensation Act 2006 for indemnity against or contribution in respect out their outlay in prior proceedings. In earlier proceedings, the claimant was among a number of defendants in an action for personal injury arising out of Mr Stratford’s death. Mr Stratford contracted mesothelioma and it was alleged that this was caused through exposure to asbestos during the course of his employment with several employers.

It was agreed that the deceased had probably worked for the claimants in the tax years 1968/69 and 1969/70 and for the defendants in the years 1975/76, 1976/77 and 1977/78. The court was asked to determine whether it was more likely than not that Mr Stratford was exposed to asbestos during his employment with the defendants.

The claimant sought to rely upon the witness statement of the deceased and Mr Bloxham who worked with the Mr Stratford and also died of mesothelioma. The defendant relied upon the evidence of Mrs Ling, a secretary at the firm and subsequently a director, who stated that the deceased was probably not exposed to asbestos as alleged. The court held on the evidence available that the deceased was not exposed to asbestos during the course of his employment with the defendant. Accordingly, the claim was dismissed.

Contributors Comments

Whilst a decision on fact, this case is nonetheless interesting in terms of the logistics of mesothelium litigation.

The claimant seeking contribution, Young Austen, had been one of a number of defendants in the original mesothelioma action and was subject to a show cause procedure as developed in the central registry.  Such procedure is conducted on the basis that unless the Defendant can show some credible evidence or argument to rebut plausible evidence of asbestos exposure, Summary Judgment will be entered.  As Defendant Young Austen was subject to Summary Judgment on this basis.

Bucon Heating and Ventilation Limited were able to produce evidence to challenge the allegations of asbestos exposure which meant that they were not subject to summary judgment and the judge at the trial, the contribution proceedings accepted this evidence as being likely true.

It therefore followed that the Judge considered the evidence of the deceased insofar as it related to Bucon Heating and Ventilation Limited to be unreliable.  It will be appreciated that judgment was entered on a summary basis against Young Austen, as Defendant, as they could not challenge the deceased’s evidence.  It does not follow automatically from this that the deceased’s evidence was inaccurate in relation to Young Austen, nor that they were incorrectly made subject to summary judgment.  However, this situation does indicate the potential for inconsistency and injustice to arise  if there is an overuse of Summary Judgment.

A similar, if not identical, situation arose in the case of Pugh v James Parkes & Sons (2008) EWHC 2964 (QB) where a claim was made against a third party after Summary Judgment had been entered against the Defendant.  On trial of the contribution proceedings, the Judge rejected the claim against the third party, which related to exposure at the third party’s premises where the original claim had been brought, in respect of the same alleged exposure having regard to the Defendant’s status of the claim as employer.  In other words there was clear inconsistency between the finding and Summary Judgment and the finding in the contribution proceedings.

Whether a number of parties and the Claimant is essentially relying upon the same evidence against each party, there is clear danger in entering Summary Judgment against such Defendants who cannot produce evidence if there are some who can.  Whether at a point in time, distant by many years from exposure, a Defendant can produce evidence to challenge exposure may be a matter of happenstance but the fact that one Defendant at least can challenge the Claimant’s account arguably makes the case unsuitable for Summary Judgment.  It might be thought more appropriate in this situation that interim payments be ordered which can be adjusted at final adjudication

Singh v Sheffield Teaching Hospitals NHS Trust

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The Claimant was employed as a specialist registrar on the Yorkshire & Humbar obstetrics and gynaecology training programme. As part of the position it was necessary to rotate between different hospitals; this entailed a degree of travelling. Prior to joining the respective NHS Trust the Claimant suffered with pain in his cervical spine. The pain grew to such an extent that he required an operation on a prolapsed disk at C5/6. After completing his employment the Claimant required a second operation at C6/7.

The Claimant alleged that the Defendants’ actions led to a worsening of his neck which ultimately resulted in a damaged neck and prevented him from pursuing his chosen career as a consultant in obstetrics and gynaecology. The Claimant’s particular complaint was that the Defendants failed to take sufficient notice of his neck problems when assigning him to hospital. This, he maintained, led to excessive driving to and from work which exacerbated his neck. The court was asked to decide whether there was a breach of duty and if the driving, as opposed to his underlying condition, caused the second prolapse.

The court took the opinion that there had been a breach of duty by the defendants in not following up the concerns of Occupational Health, but that this was not a continuing breach. The court, however, did not believe the claimant’s neck deterioration was caused by the requirement to drive to work and that the pain was constitutional. As such, the claim was dismissed.

Charles Feeny comments,

In effect, the issue in this case was causation.  The Defendants had failed to follow their own recommendations in relation to the Claimant’s return to work after neck surgery and a degree of breach was inevitable.  The Judge made a limited finding as to breach and in effect considered that the Defendants did not remain in breach once the Claimant had in effect settled into a working pattern.  This finding might have become relevant if the Judge had taken a different view in relation to causation.

Whilst the Judge’s acceptance of the Defendant’s case on causation essentially involved a preference for the evidence of the Defendant’s expert, Mr Dyson, over the Claimant’s evidence, Mr Jamile, consideration of the issue did involve the topical issue of the Court’s approach to epidemiological evidence.  An important plank of the Claimant’s case on causation was that deterioration in neck pathology could follow from excessive driving and the Claimant relied upon a paper by Jensen et al in the journal ‘Spine’.  It was therefore in issue as to whether this paper really did bear comparison with the circumstances of the Claimant’s case.  The Learned Judge held, not for good reason, that is that the Jensen paper concerned all day professional drivers who would have a number of other risk factors to include manual work and risk of accident.  The Learned Judge was therefore following although not explicitly cited to him, Lord Phillips’ approach and Sienkiewicz v Greif [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2011] UKSC 10,

“the Court must be astute to see that the epidemiological evidence provides a really sound basis for determining the statistical probability of the cause of the disease or the causes of the disease” (at paragraph 91).

It is also perhaps relevant that the Claimant could only produce one paper to support his case on causation.  Given the prevalence of driving and, given the prevalence of degenerative neck disease, if there was a real association between the two it would be reasonable to expect that much stronger evidence from the epidemiology.

Law report

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