Breach of duty and corona virus: not so abstract after all

Since the start of the corona virus there has, understandably, been increased speculation about the knock-on effect to clinical negligence cases. A particular concern is whether the extra pressure placed upon NHS services and the allocation of resources will lead to a surge in claims.

The typical scenario would be a patient that attends hospital for a non-corona virus illness. There is a delay in him receiving the appropriate medical treatment which results in injury. From the Claimant’s perspective, he should have been seen, diagnosed and treated in a timely manner. The Defendant’s position is that resources were stretched and therefore it was not possible to assess him earlier.

Within this scenario the standard principles of tortious liability will continue to apply. The Claimant must demonstrate a breach of duty on the Bolamtest. It is worth revisiting what McNair J said in Bolamas regards breach of duty so as to understand its application within a specified situation:

where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.

…in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards.’

McNair’s J reference to ‘at the time’ is important. It is not just a reference to the state of medical knowledge but a reference to the temporal context. A duty of care does not exist in a vacuum and breach of the same is assessed according to context. The significance of context was recognised by Green J in Mulholland v Medway NHS Foundation Trust[2015] EWHC 268 (QB) [90]:

In forming a conclusion about the conduct of a practitioner working within triage within an A&E Department context cannot be ignored. The assessment of breach of duty is not an abstract exercise but one formed within a context – which here is that of a busy A&E where the task of the triaging nurse is to make a quick judgment call as to where next to send the patient.’

The recognition of context was again made clear by Turner J in Morrison v Liverpool Women’s NHS Trust 2020 EWHC 91 (QB) [94]:

Of course, in the clinical context a balance has to be struck between the needs of any given patient and any other competing professional demands placed upon the clinicians involved. Sometimes, the seriousness and urgency of a patient’s presentation and the absence of any conflicting factors will mandate a swift and decisive response. On other occasions, it is equally obvious that the needs of the patient must be deprioritised to allow the clinicians to attend other demands on their time of as a matter of priority. This is reflected in the defendant’s Emergency Caesarean Section Guideline which recognises that the degree of promptness with which an emergency caesarean ought to be carried out on any given patient must take into account circumstances in which other pregnancies might be thereby be exposed to undue risk.’

It is fair to say that in cases where there are time and resource pressures the wider context will be of crucial importance. However, these cases are distinct to those where the treatment received fell below the standard expected. Once a patient is seen by a clinician there is an expectation that the treatment will be in line with a reasonably competent medical practitioner. Perhaps the most controversial area will be cases where a hospital seeks to defend falling below an otherwise acceptable standard; for example, a failure to monitor a patient due to pressures from corona virus patients.

It is impossible at this stage to determine whether there will be an increase in the number of claims. It is fair to assume that cases alleging negligence brought about by limited resources due to corona virus pressures will be robustly defended. The duty of care owed in these situations is not abstract and is rooted within context.

Charles Austin

Costs interim payments: to pay or not to pay?

It is clear that many law firms are feeling the pinch with the slow-down in work brought about by the current corona virus pandemic. Despite efforts to increase the number of cases being heard online the number moving through the system clearly remains low. This will inevitably impact upon firms’ cash-flow. One area where Claimant solicitors will increasingly look for relief is interim payment of costs. This note will summarise the legal position in light of the High Court decision in EXK v Hampshire Hospitals NHS Foundation Trust[2019] EWHC 2751 (QB). 

Applications for an interim payment on account of costs are common in high value clinical negligence and personal injury cases. The starting point is to consider the discretion afforded to the court under Civil Procedure Rule 44.2:

(1)  The court has discretion as to—

(a)  whether costs are payable by one party to another;

(b)  the amount of those costs; and

(c)  when they are to be paid.

(2)  If the court decides to make an order about costs—

(a)  the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

(b)  the court may make a different order.

(4)  In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including—

(a)  the conduct of all the parties;

(b)  whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

(c)  any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

(5)  The conduct of the parties includes—

(a)  conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;

(b)  whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(c)  the manner in which a party has pursued or defended its case or a particular allegation or issue; and

(d)  whether a claimant who has succeeded in the claim, in whole or in part, exaggerated its claim.

The discretion contained in CPR 44.2 is clearly wide. This was explicitly recognised by Master Cook in RXK. The case of RXKconcerned an application for an interim payment on account of costs in a high value clinical negligence case. Prior to the decision, the leading case appeared to be the County Court decision of X v Hull & East Yorkshire Hospitals NHS Trustwhere an interim payment on account of costs was allowed and permission to appeal refused by Irwin LJ. Master Cook grasped the opportunity to provide some much needed guidance in this uncertain area. Master Cook’s guidance can be summarised as:

  1. The discretion conferred by Section 51 of the Senior Courts Act 1981 and CPR 44.2 is an extremely wide one. 
  2. The meaning of ‘successful party’ or ‘unsuccessful party’ cannot be confined to a binary outcome of the whole case. 
  3. Pursuant to CPR 44.2(8), an interim payment can be made only where it has made a costs order that could be subject to detailed assessment. This is sometimes referred to as a ‘prospective’ or ‘anticipatory’ costs order. 
  4. The application should be made down to a specific date and an interim payment on account of those costs. 
  5. The court will consider the factors listed in 44.2(4) and (5) and will expect to see sufficient information to carry out that exercise. The court will not consider a test of exceptionality. The court will consider the need to preserve security for the Defendant and ensure that costs are not repaid, although an overpayment can be set-off against damages. 
  6. Relevant matters include (but are not limited to):
    1. the type of funding agreement and details of any payments made under that agreement.
    1. Whether any Part 36 or other admissible offer has been made, and if so, full details of the offer.
    1. Details of any payments on account of damages made to date.
    1. A realistic valuation of the likely damages to be awarded at trial.
    1. A realistic estimate of the quantum costs incurred to the date of the application. 
    1. Any other factor relevant to the final incidence of costs, such as the possibility of an issue-based costs order, arguments over rates or relevant conduct. 
    1. The likely date of trial or trial window.

Ultimately, in RXKthe matter was adjourned to afford the Claimant the opportunity to serve further evidence. Master Cook characterised the application as a cri de coeurfor more money by the Claimant solicitor. Practically, Claimants and Defendants should consider:

  1. Has there has been a liability admission?
  2. Has judgment has been entered on liability?
  3. Is the claim able to be quantified or is further evidence necessary? 
  4. Has the Defendant has made a realistic offer to settle the matter? In cases where significant offers have been made the court is less likely to accept a request for an interim payment. 
  5. Parties should attempt to negotiate any interim to avoid the cost of an application. 

It is clear that the court will not make an award for an interim payment on account of costs simply because a claimant asks it. Any application must be thought out and address the factors listed above. Whilst the law does allow for an award before the conclusion of litigation, pleading cash flow problems at the outset of the application is unlikely to find favour. That being said, in liability admitted cases where the security of the Defendant can be better protected such applications may increasingly find favour with judges receptive to the present difficulties. Whilst not a dilemma of Shakespearean proportions, Defendants should ready themselves for an increase in the number of applications and give careful thought to whether they can legitimately be resisted. 

Charles Austin

23rdApril 2020

Statistics: just another brick in the wall

The complex question as to when and how statistical evidence should be used in clinical negligence cases was again considered by the Court of Appeal in Schembri v Marshall[2020] EWCA Civ 358. The decision provides a helpful summary of how such evidence is to be approached and its application to individual claimants. Whilst the conclusion of the court could be read as assisting claimants through the softening of traditional rules on causation such an interpretation would be misplaced. The position remains that each case must be considered individually and that statistics amount to nothing more than one piece of evidence before the court. 

The case of Schembriwas described by McCombe LJ as being ‘highly complex, and rather puzzling’. The Claimant was the husband of the deceased who suffered a cardiac arrest and died as a result of a pulmonary embolism. The deceased had attended upon her GP (the Defendant) on the 25thApril 2014 where she was examined and informed the most probable cause of her symptoms was muscular strain affecting her hiatus hernia. The deceased died the following day at home. 

It was admitted by that the deceased should have been referred to hospital immediately. Causation was disputed by the Defendant who argued that the deceased would have died anyway even had she been referred and attended hospital immediately. 

It was common ground between the Claimant and Defendant that had the deceased been referred she would have been diagnosed as having a pulmonary embolism. Potential treatment would have been a) anticoagulation (herapin) and/or b) thrombolysis (alteplase). It was also common ground that thrombolysis would not be undertaken automatically and would only be used where the potential benefits outweighed the risks. 

Mr Justice Stewart found at first instance that had the deceased attended hospital she would have received heparin by 9pm and that this would have taken effect to prevent further clotting by midnight. 

The parties disagreed about whether the use of anticoagulation and thrombolysis would have prevented the deceased’s death. It was the Claimant’s case that if anticoagulation by itself did not resolve the pulmonary embolism thrombolysis was available and therefore on the balance of probabilities the deceased would not have died. The Defendant argued that the blood clot which embolised was present on the 25thApril and would not have dispersed with anticoagulation. 

At first instance Stewart J posed the following questions [41]:

Therefore, the central questions for the court to determine now are:

  • i)  Has the Claimant proven on the balance of probabilities that there were progressive pulmonary emboli during the night of 25/26 April 2014? [An indicator for prescribing thrombolysis]
  • ii)  If so:
    • a)  would progressive pulmonary emboli have been picked up on monitoring had she been in hospital?
    • b)  if so, would thrombolysis have been prescribed and with what effect?
  • iii)  If, the answer to (i) and/or (ii) is negative, had the deceased been in hospital, would thrombolysis have saved her? In other words, had there not been progressive pulmonary emboli, can the Claimant prove that thrombolysis would have saved her had she gone into cardiogenic shock or arrested in hospital?
  • iv)  If the answer to (i)-(iii) are negative in that the Claimant cannot prove a specific train of events or mechanism which would absent the Defendant’s negligence, have saved her. Looking at the evidence as a whole, is it nevertheless more likely than not that the Claimant would have survived had she been referred to Southend Hospital?”

Question 1 was answered in the negative therefore question 2 did not arise. The key was the answer to question 3 and this is where the court had to consider a large amount of statistical evidence. Responding, broadly, to the statistical evidence the judge reached the following conclusion [104- 105]:

a number of points can be made about [the] statistics. Nevertheless, broadly speaking, had alteplase been prescribed, say, 3 hours earlier than 8.30 a.m., Mrs Marshall would probably have survived.

That said, I have already found that it cannot be shown, the balance of probabilities, that Mrs Marshall would have reached the threshold for prescription of alteplase at any stage prior to her going into cardiogenic shock.

Addressing the evidence on cardiogenic shock the judge concluded [115 – 116]:

Looking at the evidence on cardiogenic shock in isolation, I find that:

  • i)  The Claimant cannot prove on the balance of probabilities that the deceased would have been in the 64-75% who would have survived; she may or may not have been.
  • ii)  Nevertheless, her chances of survival would have been significantly increased had she been in hospital overnight and at the time she became haemodynamically unstable.

As to the position with cardiac arrest, the Claimant submits that, because of the fact that she was relatively young and had no comorbidity, she probably would have survived with high quality CPR in hospital, and therefore have been in the group of 35% (Sekhri) – 37% (Casazza) who do not die. In my judgment, whilst this is a possibility, it is less likely than her chances of surviving cardiogenic shock – itself not a probability.

Notwithstanding the statistical evidence Stewart J found for the Claimant. The judge concluded:

The court, in looking at the evidence as a whole, must take a common sense and pragmatic approach to that evidence, in circumstances where it is equivocal. The court must also be wary of relying on the statistical evidence in the literature which has a number of variables. Had the statistical evidence, in conjunction with the expert evidence, have led to the conclusion that Mrs Marshall’s chances of dying would have been assessed on presentation as only slightly better than 50-50, I would have found for the Defendant. However, the above evidence of Professor Empey and Doctor Gomez [the Claimant’s experts], in conjunction with the medical literature, drives me to the conclusion that on the clear balance of probabilities she would have survived.

On appeal, the Defendant argued that the judge fell into error by finding for the Claimant. The Defendant submitted that the judge was wrong to find for the Claimant as it was not proven that the deceased would have survived had she been admitted to hospital. The Court of Appeal dismissed the Defendant’s appeal and concluded the trial judge was entitled to reach the decision he did. Giving the lead judgment, McCombe LJ stated:

I do not consider that the judge was in error in posing the fourth question. The Appellant’s approach would require him to have stopped at the end of question (iii), assuming that he had answered those three questions in the negative. He was entitled, in my view, to assess what he described as the “close calls” in the light of the Deceased’s overall circumstances (age, medical history, haemodynamic stability etc.) and in the light of the medical learning in cases such as this. He was right to take the “common sense and pragmatic view” of “the evidence as a whole”, as he said at paragraph 146.

In reaching this decision McCombe LJ considered in detail the appropriate use of statistics and the guidance given by Lord Nicholls in Gregg v Scott[2005] 2 AC 176 [27 – 28]:

In cases of medical negligence assessment of a patient’s loss may be hampered, to greater or lesser extent, by one crucial fact being unknown and unknowable: how the particular patient would have responded to proper treatment at the right time. The patient’s previous or subsequent history may assist. No doubt other indications may be available. But at times, perhaps often, statistical evidence will be the main evidential aid.

Statistical evidence, however, is not strictly a guide to what would have happened in one particular case. Statistics record retrospectively what happened to other patients in more or less comparable situations. They reveal trends of outcome. They are general in nature. The different way other patients responded in a similar position says nothing about how the claimant would have responded. Statistics do not show whether the claimant patient would have conformed to the trend or been an exception from it. They are an imperfect means of assessing outcomes even of groups of patients undergoing treatment, let alone a means of providing an accurate assessment of the position of one individual patient.

The Court of Appeal was also mindful of the comments of Toulson LJ in Drake v Harbour[2008] EWCA Civ 25 that a court is entitled to find that the loss ensued was probably caused by the negligence if it is of such a kind that was likely to have resulted from the negligent act. 

In the absence of any positive evidence of breach of duty, merely to show that a claimant’s loss was consistent with breach of duty by the defendant would not prove breach of duty if it would also be consistent with a credible non-negligent explanation. But where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism. That is not a principle of law nor does it involve an alteration in the burden of proof; rather, it is a matter of applying common sense. The court must consider any alternative theories of causation advanced by the defendant before reaching its conclusion about where the probability lies. If it concludes that the only alternative suggestions put forward by the defendant are on balance improbable, that is likely to fortify the court’s conclusion that it is legitimate to infer that the loss was caused by the proven negligence.

Rather than providing a sweeping change, the Court of Appeal have quietly reaffirmed the use of statistics as a means of evidence. Nothing more and nothing less. It is an approach which is consistent with the court’s overall approach to the use of statistics and epidemiology which is succinctly summed by the editors of Clerk & Lindell on Torts (22nd Edition (2018), at para. 2-30

The assessment of causation would turn upon the detailed medical evidence, both as to the overall statistical chances of survival and the particular condition and circumstances of the patient.

The decision of Stewart J, as upheld by the Court of Appeal, is an example of a blend between statistical and clinical evidence. The ultimate decision took account of the statistics but recognised the oral clinical evidence which was that it was ‘very unusual’ for a patient to die in hospital of a pulmonary embolism. Following the decision in Drakethis was sufficient to satisfy causation. Statistics therefore are just one brick in the wall of evidence before the court. 

Charles Austin

Understanding limitation moratoriums/standstill agreements

Limitation should always be at the forefront of lawyers’ minds, but this is especially so given the difficulties being faced due to COVID-19. An understanding of the tools at your disposal should help to limit the difficulties faced and one key tool is a limitation moratorium or standstill agreement. 

The first point to consider is when a claim is brought for the purpose of the Limitation Act 1980. Practice Direction 17A paragraphs 5.1 and 5.2 answers this question in clear terms:

5.1 Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.

5.2 The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.

Given the current pressures on the court staff to arrange remote hearings it is not inconceivable that a claim form is not stamped the day it is actually received by the court. Claimant solicitors would be well advised to exercise caution and to keep records as to when a claim form was posted and therefore received. The burden of showing when the claim form was sent is on the Claimant (see Page v Hewetts Solicitors[2013] EWHC 2845 which concerns evidence of service).

It is not possible for the court to extend the limitation period in advance. In addition, outside the areas of personal injury and defamation there is no discretion to extend limitation. Accordingly, in cases where limitation is approaching but the Claimant is not ready to issue proceedings it will be necessary to consider entering into a moratorium or standstill agreement. 

Two possible types of agreement are available to parties: the first that the relevant period is suspended; the second that the relevant period is extended. Guidance on the difference between ‘suspended’ and ‘extended’ was provided by Coulson J in Russell v Stone[2017] 1555 (TCC). The court held that where the agreement is framed as a suspension then limitation will resume at the date upon which the agreement ends (in effect it freezes limitation). In contrast, where limitation is extended the period will end at the expiry of the extension. 

As a standstill agreement is a contract, which often runs to several pages, it is important to remember the principles of contractual interpretation – namely that an objective approach should be adopted and the document is to be interpreted as a whole (see Arnold v Brittan[2015] AC 1619). It is therefore important to consider whether the overall meaning is clear to the objective bystander. The use of clear language and precise dates is imperative.

What are the practical benefit of a standstill agreement? Asides from the obvious that it stops limitation running or extends limitation it will enable parties to comply with any relevant pre-action protocol. For example, the Industrial Disease pre-action protocol stipulates (at paragraph 11):

a claimant who commences proceedings without complying with all, or any part, of this protocol may apply to the court on notice for directions as to the timetable and form of procedure to be adopted, at the same time as he requests the court to issue proceedings. The court will consider whether to order a stay of the whole or part of the proceedings pending compliance with this protocol.

In addition, the Clinical Negligence pre-action protocol stipulates (at paragraph 1.6.1):

if proceedings are started to comply with the statutory time limit before the parties have followed the procedures in this Protocol, the parties should apply to the court for a stay of the proceedings while they so comply. 

Adherence to the protocol will likely save costs in the long run and ensure that any case is properly investigated before incurring the cost of issuing proceedings. 

A final point to note is that a properly drafted agreement will have the effect of estopping a defendant from raising limitation in a defence. For a claimant to assert that the defendant is estopped it will be necessary to show a clear, unequivocal and unambiguous promise (see Fortisbank SA v Trenwick InternationalLtd [2005] EWHC 399 (Comm)). 

Going forward, the following guidance points can be gleaned:

  1. Proceed with caution when sending the claim form to the court. Ensure that there is evidence of when it was sent and by what method.
  2. The burden of showing that the claim form was sent and received rests with the claimant. 
  3. A standstill agreement can either suspend the limitation clock or it can extend the limitation period. 
  4. Any agreement should be in writing with clear terms. Be precise. 
  5. The agreement is a contract and so it will be interpreted objectively. 
  6. A defendant will only be estopped from raising limitation as a defence if clear, unequivocal and unambiguous. 

Charles Austin

6thApril 2020