Charles Feeny published in the European Journal of Risk Regulation

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Charles Feeny has published the article, ‘Epidemiological association, evidence of legal causation?- a view from the front line‘ in the forthcoming issue of EJRR.

In his article, Charles discusses the development of epidemiological evidence and its value as a means of proving causation. In addressing this, the article comments of the so-called ‘doubles the risk test’ and whether it has any place in English law.

For further details please contact editors@pro-vide-law.co.uk.

Complete Counsel: shedding the unnecessary…

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From 5 January 2015, I will continue my practice as a Barrister, with support from Complete Counsel.

Complete Counsel is an innovative project which will operate as a sister company to Document Direct.  It is anticipated that instructions through Complete Counsel will be electronic via a portal.  The management of my practice will use the software package “Briefed”, which will provide electronic management in relation to document production, deadlines, basic diary management, billing and fee collection.  So as to ensure efficiency, the use of Briefed will be supplemented by 24/7 PA support, with constant alerts as to any unfinished tasks or lack of response.  At a high level, the operation of Briefed and the PA support will be overseen by a Practice and Business Development Manager, who will supervise the day to day functioning and undertake a troubleshooting role.  The Practice and Business Development Manager will also take responsibility for client care and contact and be receptive to the reporting of any problems or suggestion as to how the service can be improved.

The clear objective of this approach is to provide a form of practice management which could be considered more efficient and appropriate in a rapidly changing market for legal services.  Whilst the traditional Chambers model will no doubt continue to satisfy many Barristers, as Lord Judge commented recently in Counsel magazine, it is vital that the Bar is prepared to consider and embrace new ways of working if the Bar is to maintain its traditional virtues of independence and quality.  There is no necessary correlation between the traditional structures and the traditional virtues; in fact the converse could be more easily argued.  The word “Chambers” refers only to a building and from that the traditional model reflects a building with the support, and staff structures, that go within a building.  The great opportunity for individuals in the digital age is that they do not need to encumber themselves with the expense necessary to maintain the traditional models.  The digital model with its much lower base costs creates opportunities for more expenditure in areas which really bring quality and allows much greater scope for independence.

Since I gave notice of my intention to work in this way, I have become aware of many rumours circulating of my likely approach to practise.  Whilst the repetition of such rumours rapidly becoming factual statements is one of the traditions of the Bar, I feel I have to disabuse any of you who have chosen to believe the following: First, that I am easing off, downsizing, semi-retiring etc.  Whilst I have to admit to having attained a reasonable age, Mr Osborne has it in mind that I should work for many years to come.  I am very happy to go along with him on this issue at least.  I am enjoying my work more than ever.  I cannot imagine anything better than being a Barrister.  I believe that you can only properly practise the Bar if you do so with energy and passion.  If I ever felt I was losing that energy and passion, I would not ease off or anything like, but out of respect to myself and others, stop completely.  I therefore intend to practise for the foreseeable future, to at least the same level and with the same standards I have tried to display throughout my career.  If you were in any doubt about this, you should know that Claire Labio has agreed to work as the Practice and Business Development Manager of Complete Counsel and I am sure I will be made rapidly aware of a slipping in my standards or approach.

Second, that I am practising from my garden shed.  There are a number of reasons why this is not the case, not least because there is no heat, light or electricity in the garden shed.  It is true that I, like many Barristers, probably a clear majority, now work increasingly remotely, in particular from my study at home.  However, in practical terms given the use of IT, there is no difference between working in a room in Chambers or in a study at home.  The Complete Counsel model, I think, best suits the working life of a specialist civil counsel such as myself, where a significant amount of work relates to document production, where I am capable of working largely remotely, and where my conference and court work is peripatetic.

Thirdly, that this is a cost-cutting exercise.  It is true that the basic support service at Complete Counsel operates at a fraction of the cost of being a member of a traditional chambers.  However, it is not my intention that my overall level of expenditure shall reduce.  Rather I intend to deploy more resource into areas which will transmit better value to my clients.  I will continue to employ a paralegal, for support, in particular, in relation to research.  The services of a paralegal are not charged directly to clients, but are subsumed within my own fees.  I will continue to provide education and training, in particular by participating in the web-based project Pro-VIDE Law.  I intend to develop and extend my activities in these respects.

It is also planned that Complete Counsel will involve a parallel project, Complete Mediation, whereby mediation services will be offered, in particular in relation to clinical negligence.  The move towards mediation is inevitable and we intend to offer access to skilled mediators with vast experience of litigation.

This is therefore a new approach, but clearly necessary in this challenging and fast developing market for legal services.  The project will have to be considered experimental in its first few months and I would encourage all those who instruct through Complete Counsel to offer such help and advice as they feel appropriate.  There is nothing that we do not want to hear.  The service will initially be most suited to civil barristers in the North West of England.  If you are interested, or would like to know more, please email on charles.feeny@completecounsel.co.uk.

Charles Feeny

Alkaline metal and the heart: Davies v Countess of Chester Hospital [2014] EWHC 4294 (QB)

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Case Background

The Claimant in this action sought damages from the Defendant for the wrongful death of her husband, Mr John Davies, for the events which occurred during his time in hospital in early January 2010. Mr Davies attended hospital in the early morning of the 4th January 2010 having felt unwell on the drive to work. Upon admission to Accident & Emergency he complained of chest pain and was sweating. An ECG was performed which showed Mr Davies was in ventricular tachycarida with a heart rate of 235bpm.

Mr Davies was 57 years old when he died and had a number of risk factors for cardiac illness. His father had died of a myocardial infarction; he had been morbidly obese since at least 1998; he weighed over 20 stone at the time of death; his body mass index was 48.2kg/㎡; he was a persistent smoker; he had previously had an acute myocardial infarction; and in 2001 he developed atrial fibrillation.

Upon admission Mr Davies was reviewed by Dr Khan (a specialist registrar in A&E). Dr Khan noted the ventricular tachycardia and at this time Mr Davies was alert and awake to the extent that he was able to give a full history and accurate description of his symptoms. In light of the chest pain and abnormal cardiac rhythm, Dr Khan made the decision to treat by way of synchronised cardioversion. Dr Khan sought assistance from an anaesthetist, Dr Fanning, who considered Mr Davies to be a high risk  of anaesthesia because of his body mass index, large neck (which rendered intubation difficult), large face and goatee beard (which impedes a mask to the face).

During the treatment in A&E Dr Fanning was called away to a different patient with an impending upper airway obstruction (considered to be an anaesthetic emergency). At this time Dr Khan informed Dr Fanning that in view of Mr Davies’ condition he would carry out cardioversion under sedation. The first cardioversion of 50 joules was delivered but was not effective; a second cardioversion of 100 joules was administered but was also in effective. At this stage, Dr Khan sought the assistance of Dr McClement (the on call medical registrar) who arrived approximately as the third cardioversion at 100 joules was being delivered. Dr McClement sought advice from Dr Reid (the on call consultant cardiologist) who advised that magnesium should be administered. As a result of an error 8mg of magnesium was administered which was four times the appropriate dose. Mr Davies immediately complained of a burning sensation and went into cardiac arrest. Subsequent efforts were made to resuscitate Mr Davies, including the use of two defibrillators simultaneously, but none were successful. Mr Davies death was confirmed at 10.36 am.

The judge, Mr Justice Kenneth Parker, was asked to determine whether Mr Davies’ condition was rapidly deteriorating to an extent which necessitated the decision to carryout cardioversion. The judge rejected the Claimant’s assertion that the condition upon arrival in A&E did not necessitate cardioversion. In rejecting this, Kenneth Parker J went further and concluded that the cardioversion, as carried out by the Defendant, did not fall below the level expected of a reasonable practitioner. In reaching this conclusion the judge accepted the Defendants’ argument that the serious deterioration in Mr Davies’ condition was the result of the ventricular tachycardia and that notwithstanding the magnesium dose Mr Davies would not have been successfully resuscitated.

Contributor Comments

This case provides an interesting twist on a fairly common scenario which was, unfortunately, for the purpose of academic understanding, not pursued by the Claimant: namely, acceleration of death.

The facts of the case are not complex in that Mr Davies had a number of risk factors for cardiac arrest and the Defendants followed established guidelines for cardioversion. The difference of opinion between the expert cardiologists- Dr Cooke for the Claimant and Prof. Channer for the Defendant- while noteworthy is not unexpected and provides little guidance for future cases. Ultimately, the court was persuaded by Prof. Channer’s opinion that Mr Davies’ history, combined with his physical state when admitted to A&E, meant that cardioversion was unlikely to have been successful and his cardiac arrest, and subsequent death, could not be prevented. While the reader’s eye may be drawn to the admitted negligent overdose of magnesium this does not, in the sense of pure causation, play any significant role as the factual matrix already had all the component parts before the dose was administered.

What is interesting for future cases is the question of acceleration under the Fatal Accidents Act 1978. It is uncontroversial that under section 1(1) of the FAA a death must have been caused by the breach and that, in normal circumstances, acceleration is does not satisfy causation. However, comments to the contrary in Brown v Hamid [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”][2013] EWHC 4067 (QB) appear to question this principle. In Brown the Claimant argued that the Defendant was negligent in failing to prescribe Warfarin. The Claimant ultimately died due to the effects of his pulmonary hypertension and the Defendant argued that the failure to prescribe Warfarin only had the effect of accelerating the Claimant’s death. Jeremy Baker J found for the Claimant stating that, on the evidence, the failure had accelerated the onset of more severe symptoms. While this may be true on one level, at the fundamental level the symptoms are only a manifestation of the underlying condition which ultimately caused the death. It is a fact of life, and litigation, that death is only ever accelerated which leads to the question: ‘to what extent must acceleration take place for causation to be satisfied?’ This question will be answered by the author in the up-coming article: “She should have died hereafter? When is death caused by breach of duty?”

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