clinical negligence update janet sayers head of healthcare kennedys february 2009

CLINICAL NEGLIGENCE UPDATE

Janet Sayers

Head of Healthcare

Kennedys

February 2009

Consent

S v Dr Raymond Kaplan [2008] LTLPI 04.12.08

Farraj v King’s Healthcare NHS Trust [2008] EWHC 246 (QB)

• Mother claimed damages against the defendant Trust and a laboratory, for wrongful birth

• Mother and father carriers of the gene causing Beta Thalassaemia Major (BTM)

• DNA testing to establish whether the foetus would suffer from BTM

• Parents were asked to sign a consent form for termination before the sample was even taken

Consent obtained in advance

• Claimants had firmly come to the conclusion that they would abort the foetus if advised the foetus was suffering from BTM

• After his birth Claimants baby diagnosed with BTM

• The claim was that both the laboratory and the Trust should have appreciated that the quality of the sample was so poor that no confidence could be placed in the result and, mother should have provided a second sample which would have produced a reliable result

Judgment for the Claimants

Ealing LBC v S [2008] EWHC 636 (Fam)

• Local Authority considered Defendant did not have capacity to consent to removal of an ovarian cyst under general anaesthetic

• Capacity to consent to medical treatment required the Defendant to be able to comprehend and retain information material to the decision, especially as to the consequences of having or not having the treatment in question

• Local Authority granted Declaration that in Defendant’s best interests that procedure be carried out

L v Human Fertilisation and Embryology Authority [2008] EWHC 2149 (Fam)

• Claimant sought declarations that sperm of her deceased husband could lawfully continue to be stored and then used in United Kingdom or stored for export and use abroad

• Following her husband’s death, declaration was made that a hospital could lawfully retrieve sperm from him

• Sperm was retrieved and transferred to a clinic

• The Human Fertilisation & Embryology Authority intervened

Human Fertilisation and Embryology Act 1990

• Unsustainable and incompatible with European Convention on Human Rights 1950 art.8

Judgment for the Embryology Authority

STOP PRESS!

Lewis v Secretary of State for Health [2008] EWHC 2196 (QB)

• The Redfern Inquiry into human tissue analysis in United Kingdom nuclear facilities

• It was uncertain whether consent, either from the deceased before their death, or subsequently from their next of kin was ever obtained for tissue removal and analysis

• Secretary of State argued sufficient authority had already been given by virtue of the approval of the Secretary of State to a recommendation of the Patient Information Advisory Group, to the effect that confidential patient information of the kind involved should be made available to the inquiry

• Court granted the Application• The Court would use its general powers to

authorise disclosure of the material requested by the inquiry which the applicant had available for disclosure

• It was also appropriate to permit the onward disclosure of that material to other participants in the inquiry who could not assist the inquiry without the opportunity of considering and commenting on the disclosed material

• The public interest in the disclosure of the material sought outweighed the public interest in maintaining the confidentiality of medical records

Birch v University College London Hospital NHS Foundation Trust [2008] EWHC 2237 (QB)

• Consent and comparative risks

• Claimant atypical symptoms of vascular third nerve palsy

• MRI to exclude possibility suffering from either a posterior communicating artery aneurysm or cavernous sinus pathology

• Neurosurgeons decided to perform a catheter angiography

• Associated risks of angiography explained to the Claimant, who signed a consent form

Judgment for the Claimant

• Claimant would have selected the option of undergoing the less invasive procedure had she been properly apprised of the comparative risks

Bassilious v General Medical Council [2008] EWHC 2857 (Admin)

Human Rights

R (on the application of G) v Nottinghamshire Healthcare NHS Trust [2008] EWHC 1096 (Admin)

• The applicant patients applied to quash the Smoke-Free (Exemptions and Vehicles) Regulations 2007 reg.10(3)

• Applicant refused by the Court

Double Recovery

Crofton v NHS Litigation Authority [2007] EWCA Civ 71

Indexation

Tameside and Glossop Acute Services NHS Trust v Thompstone [2008] EWCA Civ 5

• Whether RPI should be replaced would depend on the alternatives available and was bound to be a comparative exercise

• It would not be appropriate to reopen the suitability of ASHE 6115 in future proceedings unless the Defendant could produce evidence and argument significantly different from, and more persuasive than, that which had been deployed in the instant cases

• The measure of carers’ earnings, in ASHE 6115, was the appropriate index to apply to periodical payments for future care and case management costs

X v A Strategic Health Authority [2008] EWHC 2727 (QB)

• Court required to assess damages relating to the future care costs of the 17 year old Claimant

• It was appropriate for the Claimant to have two top quality carers

• The annual cost of care was calculated on the basis of a 60 week year to take into account time when the carers were entitled to be paid but would not be caring for him

• Team leader• Domestic assistance• Appropriate to recover the cost of

providing training for the care team• An annual sum to cover the cost of

advertising for carers• Provision for employer pension

contributions• Carers also entitled to an agreed amount

for leisure costs incurred whilst with the Claimant

SUMMARY

CLINICAL NEGLIGENCE UPDATE

Janet Sayers

Head of Healthcare

Kennedys

February 2009