March 2017 - Pro VIDE Law

Come to our Chronic Pain Seminar

30th March 2017/in Events/by Pro VIDE Law Admin

Chronic pain is a controversial presentation in PI claims. Claimants often seek damages for what are said to be life-changing conditions, which are not always wholly explained by established pathology and which Defendants and insurers frequently dispute. Issues as to vulnerability and causation cause further complication.

Pro-Vide Law, in association with Complete Counsel, are presenting an interactive seminar on chronic pain at 2pm on Friday 5th May at The Doubletree Hilton Hotel, 6 Sir Thomas Street, Liverpool.

We have a great line up of Speakers to include Dr Andreas Goebel – Associate Professor at the Liverpool Walton Centre and Assistant Professor for Pain medicine at The University of Liverpool, Dr Eric Ghadiali – Clinical Neuropsychologist, Professor Gus Baker – Emeritus Professor and Clinical Neuropsychologist, and Barristers Charles Feeny and Tom Goodhead from Complete Counsel.

The seminar will explain the various pathologies which can be implicated in a chronic pain disorder by reference to a fictional case and discuss the criteria for diagnosing such a disorder. The alternative possibilities of a factitious disorder or malingering will be explored.

The seminar will include an interactive “hot tubbing session” where the experts will present conflicting views as to credibility, diagnosis and prognosis.

The audience will be given the opportunity to raise issues and questions with the experts. Spaces are limited for this event. Tickets are £35.00 per person.

Registration – 2:00pm
Seminar – 2:15 – 4:30pm

Seminar followed by drinks and a chance to discuss the issues.

To book a place, please email claire.labio@completecounsel.co.uk

“Successful” claimant’s costs recovery restricted to 6.7% of budget

26th March 2017/in Case Notes, Clinical Negligence/by Michelle Fanneran

See link here for discussion of facts and judgment on liability by Charles Feeny

PD -v- RLBUH NHS T

Key points

Successful claimant’s costs recovery restricted after fully contested trial to a fixed sum reflecting just
6.7% of the budgeted base fees and disbursements; and
Claimant ordered to pay all of the defendant’s costs following a Calderbank.

The claim and result at trial

The claimant (C) underwent surgery on 11 November 2010. During that surgery C’s spleen was torn or incised but this was not recognised until 36 hours later when C underwent an emergency laparotomy and splenectomy. As a result of the surgery, C was left with an incisional hernia plus other significant sequelae. Damages were agreed eventually, subject to liability at £150,000.

Four months after surgery, C entered into a conditional fee agreement(CFA) and on 1 October 2012 sent a letter of claim (LOC) which alleged that the initial laparoscopic surgery should have been converted to open surgery which would have obviated the need for splenectomy.

The letter of response (LOR) contained a full denial and NHSLA’s file was closed.

The particulars of claim (POC) (March 2014), which predominantly advanced a case alleging negligent failure to avoid the need for splenectomy also alleged, for the first time, delay in identifying the need for laparotomy. The defence (served July 2014) admitted some delay, albeit five hours less than C had alleged.

In September 2015, D served its expert evidence, which conceded the full period of delay alleged by C. The defence was amended in June 2016 to reflect this concession. All other allegations remained in issue.

In October 2015, D made a Calderbank offer of £5,000 plus £20,000 costs. C rejected that offer and in March 2016 made a £167,000 part 36 offer. C then offered alternative dispute resolution (ADR), which D refused at the time as being inappropriate (agreed by the Judge) and in July 2016 D offered £5,000 under part 36. C counter-offered eight days later at £110,000.

After a four-day trial in September 2016, C was awarded £2,500 for the pain and suffering and avoidable blood transfusions during the agreed period of delay but the rest of C’s case was rejected.

Arguments on costs

C contended that he was entitled to costs as the successful party. He referred to guidance in the White Book and to recent judgments of Jackson LJ suggesting that if D wanted to protect its position it ought to do so by way of part 36. C said that D had been slow to make a part 36 offer and had initially made only a partial admission on delay. He argued that the case had been reasonably pursued with expert evidence in support.

C said that the £20,000 costs in the Calderbank offer was not attractive, hence being reasonably rejected. C’s budgeted ‘incurred’ base costs and disbursements alone were already around £50,000 by Feb 2015. C also argued that D had been unreasonable in failing to consider ADR.

At the eleventh hour, in oral submissions, C accepted that any failure on part of its case should result in a reduction of C’s own costs of not more than 5%.

Judgment on costs

HHJ Parker found that C was the successful party but agreed with D that the extent of C’s success was very small and limited indeed as he ran issues of greater substance and importance to trial, on which he was unsuccessful. He accepted D’s argument that, even if C had succeeded, under CPR 44.2, the proper exercise of discretion ought to lead to C recovering significantly reduced costs and D recovering a substantial proportion of its costs.

HHJ Parker therefore found it was logical to consider and award costs as appropriate over the following three periods:

Letter of claim to Calderbank – Defendant do pay the claimant’s costs in the fixed sum of £10,000.
Expiry of Calderbank to part 36 – Claimant do pay the defendant’s costs to be assessed.
Part 36 to Trial – Claimant do pay the defendant’s costs to be assessed.

HHJ Parker accepted D’s arguments that, in reality, the great majority of the costs incurred by both parties were in relation to C’s main case (the splenectomy) and that C had lost every contested issue at trial. He accepted D’s argument that the delay in amending the defence was irrelevant to costs since C knew from service of the expert evidence that D’s expert would concede that point. The judge accepted D’s argument that the failure to allege delay in the LOC was relevant conduct under CPR 44.2 because D had been given no opportunity to avoid litigation. Had delay been alleged pre-issue, it would have been admitted. C would however have incurred some costs in any event in valuing the delay.

The judge was persuaded by D’s submission that, having regard to the new formulation of the proportionality rule, (i.e.in a case that straddled 1 April 2013, the Court should have regard to the fact that the Lownds test would apply only to pre-April costs and that the new rule applied thereafter) when considering the effectiveness of the Calderbank (i.e. whether C would have done better to accept it), the Court should consider not just the costs that C had in fact incurred but also the costs which, on assessment, would be proportionate to the sum of damages awarded. £20,000 was clearly more than reasonable and disproportionate in respect of a claim for £2,500.

Moreover, he agreed it was reasonable to use a Calderbank offer because a part 36 would have exposed D to all of C’s reasonable costs, which may have been disproportionate to the sum recovered (the claimant’s ‘approved’ budgeted costs to trial were in the sum of £150,628.55 plus additional liabilities). The judge agreed with D that C ought to have accepted the Calderbank and that C’s failure to accept was not related to the costs offered. If it were, C would have accepted D’s subsequent part 36 offer rather than counter-offer £167,000. Moreover, if costs really were the issue C could and should have counter-offered in respect of costs.

ADR

HHJ Parker rejected the C’s argument that D’s costs should be reduced for a failure to engage in ADR. He accepted there was no reasonable/realistic prospect that ADR would have achieved settlement or any real narrowing of the issues. Had D agreed to ADR, HHJ Parker recognised this would have only increased costs substantially and the cost of ADR would have been more than what the claimant was actually awarded.

Claimant’s limited costs award

HHJ Parker considered the potential injustice that might arise if he found C should have accepted the Calderbank but C subsequently recovered more than the £20,000 on assessment. In making his order HHJ Parker followed the submission of counsel for D that only judgment for a fixed sum equal to or less than the costs on offer in the Calderbank could prevent the risk that C might recover more on assessment.

C was awarded a fixed sum of £10,000 to reflect the costs C would have incurred in any event had the delay issue been investigated and settled pre-issue but C was ordered to pay all of D’s costs from the last day for accepting the Calderbank. The fixed sum included additional liabilities and VAT.

Practice points

Use Calderbank offers where appropriate.

DOWNLOAD THE CASE NOTES PDF HERE

Contact information

Suzanne Maher, Associate, Hill Dickinson LLP
Counsel – Michelle Fanneran and Charles Feeny, Complete Counsel

PD v RLBUH NHS T (2016) – Reasonable Reconstruction or Speculation in Surgical Negligence?

23rd March 2017/in Case Notes, Clinical Negligence/by Charles Feeny

Facts:

On 11^thNovember 2010 the claimant, Mr PD, underwent a laparoscopic subtotal colectomy and end ileostomy, which involved removal of the colon and diversion of the small bowel to an opening in the stomach.

Following the procedure it emerged that the claimant had suffered an intraperitoneal haemorrhage to the bowel during the first surgery, and that further surgery was required. Following the second surgery, the claimant developed a wound infection, pneumonia and an incisional hernia.

It was undisputed that the claimant had suffered greatly as a result of two rare surgical complications, injury to the spleen and damage to the bowel, and undoubtedly attracted the sympathy of the courtroom. But, as the judgement made explicit, mere sympathy does not equate to a legal finding of negligence.

Claim:

The claimant alleged negligence in the following ways. First, that after 3 hours of failing to remove the colon laparoscopically, the surgeons should have converted to an open surgery.

Second, that they damaged the colon by removing it through an incision that was too small. Third, that the surgeons tore the hilum of the spleen, failing to notice that this had happened and consequently not remedying the tear during the operation.

Finally, that there was a delay in detecting the complications following the first surgery and as a result, the second surgery was delayed.

The experts and their evidence:

The evidence before the judge was as technical as it was specific. This section aims to provide an overview of the salient information in order to highlight how the case turned on events that took place in the heat of the moment.

In doing so it is hoped that the paramount importance of the evidence given by the doctors in court and the information they committed to their notes during surgery is apparent. Where there is no allegation that a doctor is being dishonest, and any possible negligence is far from clear-cut, a judge should exercise great caution before going behind a doctor’s account of a highly technical operation.

Professor Keighley:

The expert put forward by the claimant was Professor Keighley, who was not involved in the claimant’s operation. He had retired from the NHS in 2004. He had never been personally involved in laparoscopic colorectal procedures, but had been involved in major publications on the subject.

Professor Keighley stated that, on the basis of the pathology report of the spleen after its removal, he felt that the tear in the spleen would have been visible during the procedure and that the tear should have been detected. When asked why the surgeons would not have seen it, he stated:

“…if having removed the colon…we do not know if they turned the camera and looked at the spleen…they would have seen a tear”.

He preferred the histopathologist’s evidence on the location of the tear (that indicated it was in a visible place) to that of the surgeon’s note in the second operation (which indicated that it was not in a visible place), because the surgeon was a junior member of staff working under pressure and late at night, whereas the pathologist had the benefit of daylight and time.

He stated that he was concerned about the size of the incision, but admitted that the appropriate size was a matter of clinical judgement, and that his own clinical judgement was not always right.

When asked about whether the laparoscopic procedure should have been converted to an open one, he stated:

“This is difficult. We are dealing with complex calls in the heat of an operation…there is a huge range of how people do things when they decide to make a change in the decision…conversion is a judgement call…I cannot find a specific reason for conversion.”

In relation to the delay in the second surgery, Professor Keighley stated that he was “straying outside my expertise…I am struggling to inform the court…I am not sure where we are up to.”

Dr A:

Dr A was the lead surgeon in the claimant’s case. He had carried out laparoscopic procedures approximately 280 times.

He confirmed that the operation note contained no reference to bleeding of the spleen, and stated that any visible bleeding would have impaired the operation by saturating the lens of the camera they were using, so would have caused them to abort the procedure.

At the point that the spleen was removed, Dr A explained that he had not made a note of any bleeding, and did not remember the specific operation. Any bleeding that occurred must have therefore taken place either after the operation or in a place that was not visible during the operation. Otherwise, Dr A explained, he would have seen the bleeding and recorded it.

As for converting to an open procedure, Dr A stated that there were no known complications justifying such a conversion, which carried with it other risks.

In relation to size of the incision used to remove the colon, Dr A explained that the surgeons never reached a stage where the exterioration of the colon was not progressing. In other words, there was never any perceived need to use a bigger hole.

Dr B:

Dr B was the other surgeon performing the laparoscopic procedure. He asserted that the surgery took longer than usual due, amongst other things, to the fact that he was a slow surgeon and the high degree of difficulty of the surgery.

In relation to the lack of detail in the operation notes, Dr B explained that generally only important things are noted during surgery, and such notes are prepared for the surgeons’ own eyes, without any litigation in mind.

Mr Scott:

Mr Scott appeared as an expert on behalf of the Defendant. He had been performing the colorectal laparoscopic surgery since 2007. He stated that he did not see any damage to the spleen due to any lack of care, and that despite the best care, damage can occur.

In relation to the length of the operation, Mr Scott told the court that he had seen some operations go on for eight hours. He also preferred the operation note to the pathology report in deciding where the splenic bleeding had occurred, and that even if it a defect to the spleen had been detected, it would not justify a conversion to open surgery.

Finally, he confirmed that the size of the surgical incision looked adequate to him, and that there was no good reason to lengthen it.

The decision:

HHJ Parker made it clear that Professor Keighley was at a disadvantage in giving evidence, stating that:

“written experience can never be a substitute for actual hands-on experience…of a difficult and complicated surgery…this does effect the weight that I feel able to attach.”

The judge commented on the manner in which Professor Keighley gave evidence:

“his willingness to put forward theories and express views outside of his expertise left me feeling less than confident in what he was saying.”

In relation to the conversion point and the length of the surgery, HHJ Parker accepted that if the surgery was longer than usual, this was justifiably due to its complexity and because Dr B was a slow and careful surgeon.

As for the size of the incision, HHJ Parker acknowledged that it was a matter of clinical judgement, and that here had been no positive indication that widening the incision would have been justified.

Addressing the visibility of the tear to the spleen, HHJ Parker preferred the surgical note to the pathology report. This was a further nod to the competence, expertise and firsthand view of the doctor who was dealing directly with the patient. Furthermore, the judge accepted the straightforward point that if there had been visible bleeding, than the surgeons would have seen it and noted it down.

However, it was accepted that the delay in commencing the second surgery had caused a significant degree of suffering to the claimant and the need for an additional blood transfusion. An award was made for £2,500 for pain, suffering and loss of amenity.

Comment:

The difficulty of proving breach of duty in the context of an operative complication which occurred unwittingly with the Claimant obviously unconscious often presents a dilemma for a Judge. On the one hand, as here, the Court is confronted by a straightforward Claimant who has suffered significant and indeed life changing injury and disability. On the other hand, again as here, the surgeons were apparently competent and the relevant events are known to occur, despite reasonable care.

The Court of Appeal in Ratcliffe v. Plymouth & Torbay Health Authority (1998) PIQR P170 made it clear that the principle of res ipsa loquitur is unlikely to apply in such cases, except in very obvious circumstances such as a retained swab or operating on the wrong part of the body. In most cases of alleged surgical negligence, it will be known that a given complication can occur despite reasonable care; although equally it can be caused by negligence. Claims of negligent performance of surgery are generally advanced on the basis of expert evidence, which is essentially of a reconstructive nature, indicating how in the opinion of the expert an avoidable mistake occurred.

The legal analysis is complicated by the Court of Appeal in Ratcliffe and subsequent cases, whilst disavowing the application of res ipsa loquitur, nonetheless indicating that the absence of reasonable explanation by the surgeon is a factor which can be weighed in the balance. In practical terms, this approach can sway the Court towards a speculative reconstruction by an expert, resulting in an outcome which does not appear to be markedly different to the application of res ipsa loquitur as occurred in the case of O’Connor v. Pennine Acute Hospitals (2015) EWCA Civ 1244.

Unsurprisingly against this background, the results in individual cases show no clear pattern and each appears ultimately to be fact or even Judge sensitive.

In the present case the resolution was ultimately not problematical. The Judge was confronted by an expert on behalf of the Claimant, a retired Professor of Surgery who admitted to limited experience of laparoscopic surgery and who also admitted, or indeed volunteered, that much of his evidence was speculative. As against this, the operating surgeons and a suitably experienced expert, Mr Scott, were able to provide clear explanations in relation to the Claimant’s allegations, and in particular as to how the damage to the spleen could occur without negligence and without being noticed.

From a Defendant’s perspective, in terms of deciding whether to contest a case, it is likely that the decision will ultimately turn on the degree of confidence in being able to provide a plausible explanation consistent with reasonable care having been displayed.