Clinical Negligence Masterclass: 10 Key Principles for Legal Practice

[00:00:01]okay hopefully that's recording right well welcome this is the first King's chambers seminar by zoom that I've done it's also the first man I've called Manchester civil law master class I'm sorry about the name master class it wasn't my idea but what what was an idea was born of a very pleasant lunch involving heads of chambers of chambers that do civil law in Manchester and we were trying to explore ways in which we you know could help each other even though we're as it were competitors and one way that came up in the discussion was to have master classes where by those who after many years might pretend to be expert in the subject could share some of their knowledge with pupils and more junior tenants so this is the first one and Chris Kennedy QC from ninth John's Street is going to give hopefully the second one which is going to be on the subject of of drafting counter schedules so we don't know a date for that yet because obviously because of the virus we'll had to reschedule everything so my specialty is clinical negligence and that's what I'm going to talk about today it's at a sort of fairly introductory level but what I want to do is just talk about ten key concepts of clinical negligence for those of you who are either brand new to it or are in the early stages of your career dealing with clinical negligence cases and what is clinical negligence I think of it sometimes is like a tree it's a it's a it's a creature of common law predominantly and so you have in the trunk as it were all the basic principles of common common law judge made law access to justice fair trials and so on these sorts of principles and then branching out of that you have contra act administrative law taught we go up the tort branch and we get trespass and nuisance and negligence and the negligence branch we then have employers negligence and professional negligence and within professional negligence we have clinical negligence so clinical negligence is one small branch of the tree but it's grown out of all the other the trunk and the main branches that I've talked about and of course it feeds off them as well so you have to put it in context now I'll be honest with you one of the things that's expected of you if you're gonna be a barrister practicing in this area when you sit down in a conference with medical experts who are professors of this and that and your solicitor and your client they sort of expect you to know what you're doing and if you haven't got a medical background which I haven't some practitioners do but most don't part of the trick if you like you have to pull off is that breezy self-confidence when you're dealing with medical terms and jargon which you may not be familiar with so this is the quiz part of today so you can unmute for this purpose and these slides okay so I'm just going to test your knowledge the same car so if you can see this slide the bullet points in terms so each row something in common so you can tell them what they've got in common and what these terms are so about the first row what are they got in common does anyone dare pronounce the first word this is what clinical negligence really is tabular it's not a set of ulam acetabular where's your acetabulum no ticket no pic well I don't know if you can see me without your acetabulum and that that's the top of your femur so it's the hip it's part of the hip joint the scapula so Brown rampion scaphoid ooh common clinical negligence case is a myth scaphoid fracture in A&E so that's that's in your hand l4 is the fourth lumbar vertebra in your back what about this what about the second row when would you see these abbreviations someone be brave okay I'll tell you so when you're looking at medical records if someone goes say into AV or they've got a an appointment at all with a hospital doctor for example these are the headings that you see OPC means presenting complaint and see /oh means complains off so it might be presenting complaint headache okay HPC is hit to accepting complaint so that might be two days ago fell in stands for diagnosis and then the plans so usually they say full CT scans right next days are om etc where where would you can only see those an examination another so r om means well done SLR and plant ours with a lapel that's when lose my house when your feet we tickle up at the bottom of your feet goes as it will go up like that might be a sign of neurological dysfunction next room where do you see these abbreviations anyone there in blood tests so schema globin white cell count see reaction routine I'll climb phosphatase liver pump what about the next these having common types of doctors you know so specialist registrar first first year and sometimes you see our mo resident medical officer next row yep temperature respiratory rate so these are vital signs so often in an observation chart you'll see these the nurses that's a score for newborn babies so it's a measure of their things like their skin color and so on so it's a score out of 10 usually assess one minute of age is 5 minutes and 10 minutes so you might see in the nose 1 / sorry 9/1 10/5 that means the afghan score of 9 which is really good at 1 minute 10 5 days for a very poorly baby maxi 305 for attend something like that and so these are all scoring systems and TS is a commonly used scoring system for cancer tumors and then a small number indicating this size on stage of the trauma and meaning the number of nodes lymph nodes that are involved so that would indicate a nearby spread and which is easiest one perhaps the ultimate row so tend to write for days or one week or three months in that fashion and then the last one is to do with prescription so you'll have antibiotics 50 milligrams BD class today analgesia PRN what does that mean you might have seen it on the water abyss crystals so it's Latin is pro rain art or what it means as required so you might be given pain relief medication to take as you need it to do 50 times a day qds times money means warning take okay so you can mute again now while I plugged my board so I'm going to talk I'm going to talk about ten key principles and I've taken them from a chapter of this book what I wrote which is an introduction for healthcare professionals and patients and lawyers to clinical negligence and for those of you don't know to write a blog about clinical negligence so you can find a list on on the blog of a recent important cases in fact by now it goes back to about 2016 I think and I try and keep a tab of cases in the High Court Court of Appeal and Supreme Court to this week to do with clinical negligence and put those on the block so that's that's a plug in it's only 19 pounds ninety-nine this book remarkably good value so let's look at the key principles first one the purpose of clinical negligence law is to compensate the injured or buried not to punish those responsible for causing injury it some of these as I say these are basic principles but they're important and what what does it mean it means if there's no injury there's no claim and that that's something that I've been saying to clients for 30 years and sometimes it's difficult for people to accept because they say what do you mean the doctors got away with it and you say well the system is compensate reor words that effect and if you haven't suffered any injury litigation is not the means by which you're going to get any satisfaction because it is designed to provide compensation for the injury it's not an inquiry into what happened it's not a regulatory process or a disciplinary process that there are other processes than clinical negligence litigation for that and very often causation is the difficult point in clinical negligence case so a difference between clinical negligence and say a road traffic accident is that 99 times out of a hundred the person injured in a road traffic accident was fine to begin with well let's say nine times out of ten whereas nine times out of ten or 99 out of 100 the claimant in the clinical negligence action was injured already because by definition that's why they were seeking medical assistance so in terms of compensating them you're always looking in clinical negligence or the difference between what they would have been like the outcome they would have had without the negligence and the outcome as it now is with the negligence okay so that's a difference and a significant feature of clinical negligence that you have to come to terms with in terms of full conversation you're therefore always looking out as well as options such as PPOs or provisional damages at life expectancy because life expects is often a very important issue in clinical negligence litigation section two four of the law reform personal injuries Act 1948 that's the act or the provision that says that the court shall disregard for the purposes of assessing compensation for future expenses and losses the fact that provision might be available within the NHS so if someone says I don't want the NHS to care for me a future treatment for my hip replacement for example because they're the ones who missed it when I was a baby that I had dislocated hips or I want to have the choice of private treatment in the future that acts that provision says the court should disregard the fact that the NHS may have may be able to provide that for free various organisations want that Act be repealed the claimant always has to prove that they are likely to choose private care in the future or treatment rather than the NHS some if you like exceptions to the where there's no injury there's no claim and wrongful birth so within clinical negligence you have cases where as a result of medical negligence it's alleged that a birth occurred that would not otherwise have occurred you know in other words the parents would have elected if it weren't for the negligence to have terminated the pregnancy the child would not have been born in those cases so-called wrongful birth cases the claimants are the parents not the child who is born with injury and it's only those who are parents of child's that have a disability that have a substantial claim in these cases but the claim isn't the injured or disabled child's it's the parents claim and the claim is an economic loss claim it's not a personal injury claim I could talk about wrongful birth for another hour but we we're not going to do that there are other exceptions so human rights act for example it is possible arising out of what you might normally term clinical negligence particularly in a psychiatric setting to claim damages under the Human Rights Act and they're not strictly compensation arey compensate or e damages they have a different flavor and likewise it is possible although extremely rare to claim aggravated or exemplary damages so that's the first principle second health care professionals owed their patients our duty to exercise reasonable care and skill in their management and treatment so this is again a fairly basic principle in other areas of tort or negligence law you sometimes have to think quite hard about whether someone owed another a duty of care I had a case once was representing someone who had one of these sort of go carts and went out with some friends for you know supposedly some fun racing there go carts around and one of the friends who suffered a serious injury and amongst other things sued my client who owned the go-cart in damages and there were interesting questions about whether he owed her a duty of care doctor-patient relationship is usually no question about that doctors Oh their patients duty of care but more interestingly and sometimes you do get the question who is the patient so this really interesting recent case I say recent it went to the court the defendant tried to strike it out succeeded went to the Court of Appeal who decided that it shouldn't have been struck out it recently was decided so it went back to the court for the substantive issue and mrs. Justice Yip recently decided it this is a B C and so Georgia's health care to say that the defendants were not liable this was a case where a man had Huntington's disease which is a very serious and progressive condition he had his wife the mother of the claimant was also his daughter and he was made subject to the hospital order so he was then diagnosed with this disease and he made it plain he did not want his daughters to know about it about his condition even though it's a hereditary condition the daughter later found out she in fact was pregnant and later gave birth to a child and said I should have been told and sued in negligence was she a patient of the hospital that was treating her father so you do get these these questions and ultimately the judge decided that there could have been a duty of care in certain circumstances but there was no breach of that Duty in this case and that so far as those were actually treating her father there was no duty of care to the daughter who was not their patient you also get issues of secondary victims people who witnessed a horrifying event and the whole law of secondary victimhood arose out of Hadley influenced by the Hillsborough disaster and people who saw loved ones or saw a crowd in which their loved ones were obviously in great distress and trauma in a hospital setting it's much more difficult to establish a duty to to someone as a secondary victim that is someone who is not the patient the doctor partly that because the courts have said in a hospital setting you should expect awful things to happen and therefore it's different from say being in a crowd at a football match so sometimes there are questions of whether the person is a patient and sometimes there are questions of whether the defendant or the person responsible is if not a doctor a health care professional so is an act acupuncturist or a recent case of mine a chiropractor are they health care professionals that are subject to the same principles that we're going to talk about later that apply to a doctor or an do they apply to a chiropractor are they professionals or are they as some my expert clearly thought in the case quacks and are they do they have a professional body that sets standards if so are those standards the standards that the court should apply will come on to the bolan test later but issues like that do arise there's a case called Shakur and c2 which is useful in showing how the court at least in that case approach the question of the standard of care to be expected and the duty of care on someone who practiced alternative medicine and finally as well as the duty of care you also have to think about a contractual duty in some cases that doesn't apply to NHS cases but of course there is private medicine and looming large within that is cosmetic surgery has nearly always provided through the private sector and questions of what the contract was between the patient and the clinic or the patient and the surgeon or indeed the surgeon in the clinic what the contractual arrangements were and what the duties were under that contract can arise so it's not all just negligence and breach of duty but the basic takeaway point is in most cases you're not going to be worried it's obvious that a doctor owed a patient of duty of care but you must also always think about this question this is the third point the extent of a health care professional healthcare professionals legal duty of care is to save their patients from avoidable harm attributable to their wrongful acts and emissions so this is a short way of saying always be aware of the scope of the duty of care so these are some cases you need to be up to speed with as a basic principle was stated by and I'll come to it in a moment by Lorde bridge in Caparo a famous non clinical negligence case called Samko in which there's a hypothetical example of a mountaineer who goes to the GP which I'll explain to you and it's also quite interesting to look at missus just to see its recent decision in a BC ensign George as as well as everything else but she concerns herself with the scope of the duty of care so what a doctor Mayo patient YouTube cab but you must always ask what is the scope of that duty what was the extent of the duty of care hmm so that's the question the law bridge in Khepera said always must be asked what is the kind of damage from which a must take care to save be harmless a being the doctor B being the patient I mentioned in the Mountaineers knee it was a hypothetical example given by Lord Hoffman in this Samko case so the the Mountaineer is due to go on an expedition to the Alps he's worried that he'll be fit enough to undertake the expedition he goes to his GP the GP gives him a clean bill of health negligently giving his the Mountaineers knee only a cursory examination the Mountaineer goes on his expedition to the Alps he's halfway up a mountain when he's crushed by an avalanche is the doctor liable for the injuries cost the Mountaineer in the Avalanche okay and Lord Hoffmann said no it wasn't within the scope of the duty of care of the doctor to advise about the risks of avalanches now people struggle with this but this was the analysis of Lord Hoffmann the where a person is under a duty to take reasonable care to provide information on which someone else would decide on a course of action ie your knee is fine that's information that the Mountaineer then took away and fed into his decision which had other factors involved in it the weather conditions the equipment he needed to take who's climbing with which route he was going to take all of these things the risks of avalanches in the forecast so the doctor was just giving information to the patient on which the patient made a decision for themselves and if negligent the doctor is not responsible for everything that then happens but only for the foreseeable consequences of the information being wrong in this other non clinical nations case lord sanction said that principle applies even if the doctor knows that the patient is going to act on the information in a certain way so when is a doctor giving advice and when is a doctor giving an information in certain cases you really need to think hard about that to determine what the extent of the doctors duty of care is in advice cases generally and again the case here Manchester balloon society is not a clinical negligence case so I've adapted it to medical negligence in an advice case the doctor is responsible for guiding the whole decision-making process they effect effectively make the decisions for the patient in an information case all they're doing is giving information to the patient and the patient then makes a decision for themselves and the doctor is not responsible for all the facilities of everything that happens next or everything that goes wrong so people tend to wrongly think of causation and clinical nations cases is a bit like a row of dominoes I hope you can see all those four in other words you might say the doctor gave negligent information to the Mountaineer as a result of that the Mountaineer made a decision to go on the expedition as a result of that decision he climbed a mountain as a result of climbing a mountain he was crushed in the Avalanche so didn't the doc the doctor Road the patient duty of care the doctor was negligence negligent and as a result of that negligence these things happen and the Mountaineer was injured or killed in the Avalanche so why is the doctor not negligent so the better way of thinking about these cases is this the patient suffers an injury is that the kind of injury which the doctor and I music dr. short-form for all healthcare professionals that the doctor owed a duty of care to the patient to protect them from did the doctor either have a duty to give information to the patient to allow them to protect themselves against that injury or did the doctor have did the doctor have a duty to actually take action to prevent the injury as opposed to just giving information about it did the doctor breach their duty of care and then you ask but for that breach would the injury have occurred okay so that last question does not come at the beginning as it were so if we apply that to the Mountaineer the patient suffers an injury will what was the injury it was being crushed in the Avalanche did the doctor have a duty to give information to the patient to allow the patient to protect themselves against being crushed in an avalanche but when you ask that question it seems more obvious the answer is no did the doctor have a duty to take over the decision-making for the patient or to protect them against avalanches to take direct action themselves or no did the doctor breach their duty well it's no longer applicable because it wasn't within the injury in the injury concerned that being crushed in the ambulance wasn't within the scope of the doctors duty of care as it happens the doctor was negligent but it wasn't him in breach of that relevant duty and so neither is it applicable consider causation okay so principal for the law requires the health care professional to exercise a reasonable standard of skill and care so this is a warning to you when you get expert reports however eminent the experts are sometimes are then usually not qualified lawyers one or two are but they sometimes haven't had the training or don't have the knowledge of how the law works and so you see expressions like in this case the care afforded to the patient or to the claimant was suboptimal it was below par it was less than desirable those are pretty useless phrases to you as a lawyer and I'll go into that in a little bit more detail but the standard is is is the same in all negligence cases its to exercise reasonable care we're looking at the next principle of what that means in a medical context but it's always just reasonable care suboptimal care is everything below being the best is everything below gold standard isn't it well that's that's not negligent you're going to have to be aware in many cases of guidelines and protocols now they are not the law we're nonetheless they very often set a standard or an acceptable standard for health care professionals to follow so look out for any national guidelines and there are plenty of them nice guidelines and sometimes within the trust in which the doctor was working there will be protocols in place so you may need to say is there a trust protocol for the use of antibiotics after a leg amputation operation or something of that kind so that it may be that you can judge what was done or was not done in a particular case by reference to a local standard I'm very often of course in clinical negligence there are no absolutes you're always as a doctor and you have to be aware of this as the lawyer dealing with these cases balancing risks and benefits so there's no very rarely that everything points one way a doctor is having to balance whether they do this investigation or not and that's something you have to be aware of when judging the standard of care so the fifth principle is this if the health care professional acts in accordance with the practice of a reasonable body a relevant professional opinion they're not negligent so this is the well-known bowline test this is the most basic case of all you have to know this um just breaking it down a little bit you're looking at what is a responsible body of opinion what is a body of opinion may vary from case to case so if you're dealing with a GP who is presented with a child with a severe sudden onset headache well there was a lot of GP s-- who deal with that sort of problem there's probably guidance available it can be pretty clear what a reasonable body of opinion would think of course the whole point of Boleyn principle is that there may be more than one reasonable body if you're dealing with a very innovative brain surgery technique there may be only five neurosurgeons in the country who have ever done it or practiced it so you have to be aware that a reasonable body might be a very small number of practitioners what what is the practice that is being talked about well again in most cases you'll be dealing with the practice of examination of diagnosis of deciding upon treatment and of implementing that treatment in some cases the courts have wondered whether the bolan test should apply to other aspects of medical practice such as histopathology so looking at a sample under a slide and saying it has cancer in it the temptation is thing that's either correct or incorrect and if they've got it wrong isn't that negligence then courts have not gone that far they still apply a Boleyn test I think in those cases and actually when you talk to history pathologists they may say in certain cases actually there would be a range of reasonable opinion as to whether that was a showed a malignancy or not what's a relevant body the body has to be relevant so if you're dealing with an accusation that a GP is being negligent you don't want an orthopedic surgeon to tell you the GP has been negligent you want a GP so the body in question it has to be relevant and what you need is an expert who has that relevant expertise to say what the body of general practitioners would consider reasonable it also has to be relevant in terms of time so if you're dealing with an obstetric case where the child is now 18 years old and was born in 2002 you need to know what the standards of care were at the time in 2002 it's no good knowing what they are in 2020 and what a reasonable body would do now you need to know what they would have done it 2002 sono retrospective scones and and the standard of care is also referable to the role which the medical practitioner was fulfilling at the time important point is this they might not have the qualifications of say a consultant so it might be an specialist registrar or a senior house officer as they used to be called so more junior doctor but if they're fulfilling a role that is a role properly fulfilled by a consultant they have to meet the standards of the consultant okay so the standard is set not by the qualifications of the individual involved or their own experience it doesn't let someone off the hook that it's their first ward round they have to fulfill the standard that is set by the role in a useful case on that as well as the recent well known case of Darnley really which dealt with a receptionist is FB and Princess Alexandra Hospital so principles six even if a practice is considered proper by a recognized body of professional opinion the court should also consider whether it's logical rational unreasonable is another way I think of saying that it's not a reasonable body of opinion if if the opinion they have and hold is irrational or illogical so the court is enjoined and the case is belief though the authority for it the case the court is enjoined to consider and scrutinize whether the practice that a body of orthopedic surgeons for example consider to be reasonable is actually logical does it bear scrutiny is it rational so in some but only a few cases the court will as it were override what is common practice or the practice of a group of otherwise competent practitioners and say their practice is irrational and therefore it's not a reasonable or responsible body and it's negligent but it's rare the courts are very reticent understandably to take that position number seven when obtaining a patient's consent to treatment a health care professional has to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment and of any reasonable alternative or variant treatments so this is a principle that was articulated in Montgomery and lenitra Health Board which is now the case on consent and if you have listened to podcast I did an interview with Nadine Montgomery who is the mother of the child involved in the case and you can hear what she has to say about her journey through litigation in that King's chambers website but the principle is that the Boland test does not apply to issues of consent to treatment so in Montgomery laning sure the court said a doctor has a duty not to act in accordance with a responsible body of medical opinion but to provide the advice about risks that is material to that patient now there's a gloss on that from juice and Worcestershire which is a court of appeal a more recent Court of Appeal decision where the Court of Appeal said well there are two stages to this the first stage is whether the medical practitioner concern ought to have known about the risks of treatment so that seemed to me to be a Bolam test what or the practitioner to have known about the risks of the proposed procedure but once they know or ought to know of those risks then if they're material to the patient's decision they have to be communicated to the patient and the same principle appears to apply and there's a First Instance decision called Bailey which in the handouts that are sent to you seems to apply also to questions of alternative or variant treatments I have been asked by medics well what if I know there's some treatment was only available in California do I have a duty to tell the patient about that and the fact is there might be in certain certain circumstances but it's only there is a Boland test as to whether a doctor would consider alternative treatment as both feasible and perhaps reasonable in the circumstances so there is a it's not as if you have to list every quack therapy that might be out there when advising a patient as to the alternatives and so on Johnson was an example where a I think it was a neurosurgeon was found negligent not to have advised the patient of a 5% risk that their back condition might be exacerbated by surgery in other cases Hustle & Hillingdon the High Court found the day doctor had been negligent not a patient of a one in 1,000 risk the same judge in another case banned it hadn't been negligent or had have advised that patient of a one in a thousand risk and what that shows is that you can't reduce the materiality of risk to a bear statistic all depends on the context and all depends on the patient involve the timing of consent is also important just signing the consent form is not giving consent necessarily it's evidence that the patient gave consent so in cases where a patient and this has happened has literally been handed a consent form on the trolley as they're being wheeled into theatre for their surgery that isn't giving consent that's not informed consent okay the next principle if I can't get it up NHS trusts allowable for the negligent acts and emissions of their employees and other staff concerning the management of treatment patients so vicarious liability and this week the Supreme Court has been considering vicarious liability for an organization for of an organization for a doctor that's Barclays Bank embarrassed claimants which was decided by the Supreme Court this this week in that case Barclays Bank engaged a doctor to examine employees or applicants for employment and he indecently assaulted a number of them and the Court of Appeal said the buffy's Bank were vicariously liable for that doctor Supreme Court said no they're not in the vast majority of cases that you get involved in it's not really an issue it is accepted that an NHS Trust is vicariously liable is liable for the acts negligent acts and omissions of all the medical and surgical personnel etc who work there so I usually start up leading by saying you know the defendant is responsible for the management and role of Smith Street hospital and for the acts and emissions of the medical surgical and other personnel at the hospital concerning the care treatment and management of patients something's about there and it's never been challenged so trusts are vicariously liable for the acts and missions of the doctors and nurses etc sometimes a hospital will contract out services and to a private company and surprisingly there is no absolutely definitive decision authority on whether they can delegate those those duties and avoid liability or whether that sort of thing is a non-delegable duty there is the case of Faraj in King's health care where the Court did consider it you know in a rather sort of unusual set of circumstances and if you look at the case of cassidy for example it looks very much like the court would find that most of the core duties of the hospital towards the patient are not eligible woodland of course is the swimming pool case that you may be familiar with but you can see how you could apply the principles in woodland to say that a hospital has a non-delegable duty to its patients and so if it contracted out a service that was then negligently performed it might be difficult for the trust to wriggle off the hook in those circumstances Annamma 9 liability only arises when negligence causes or materially contributes to injury or death as I said earlier causation is often one of the most difficult issues in a clinical negligence case you can start with a basic but four proposition what would have happened but for the negligence and medically that can be very very difficult to determine you know because as I said earlier the patient is ill in the first place and so you have to predict what would have happened if they being treated non negligently but life though is also authority for the woulda shudder principle which is that if but for some negligence a patient would then have been treated in a certain way a first question is what would have happened so would that patient have been given antibiotics for example to cure their infection if they're being referred to hospital and if the defendant says no they wouldn't because dr. Smith here says he never gives antibiotics to someone with that particular condition and so they wouldn't have been cured the court were gone to consider will was would dr. Smith have been negligent in not giving that treatment so you would plead a case on this basis but for the negligence of the defendant the claimant would or should have undergone an MRI scan or would or should have been given antibiotics which would then have cured their infection Wilshire's authority for the obvious principle that if there are if there is a series of possible causes for the injury that was suffered by the claimant one of which is a negligent cause the claimant can't just say well there are five possible causes and the injury occurred which is just the sort of injury you'd expect from the negligence the claimant has to prove on the balance of probabilities that it was the negligent cause that caused the injury in hots industy if the claimant would have probably come to the same harm in any event there's no causation Chester and Afshar I'm tempted to say is a unique decision which is never now going to be repeated but for those of you don't know it the patient was due to and/or with her byes recommended spinal surgery there was a small real risk that she could suffer from paralysis as a result of that and she wasn't warned of the risk she went ahead with the surgery and and suffered the injury and she said if I'd been warned of the risk she could have said if I'd been warned of the risk I would not have gone ahead with the surgery well then you're in the realms of well what would have been the outcome for her because if she needed this surgery presumably she was going to deteriorate anyway but she didn't say that she said I would have gone away and thought about it and maybe got a second opinion so the defendant said well you haven't proved that you would have avoided the operation and therefore avoided the injury but the House of Lords as then was said note as the principal autonomy here the defendant is liable even though the most she could say is I would have gone away in full thought about it that decision is being strongly doubted it since including by the Court of Appeal induce where Lord Justice Leggett order lots of cold water over it but you need to know about it Balian mo D is about material contribution so if the state of medical science is such that it can't be said the buck for the negligence the injury would either have been avoided or would have occurred anyway but the experts say on persuade the court that the negligence made a material contribution to the injury that is a contribution that's more than negligible then the claimant will succeed the claimant will win and that was articulated I thought very well but in a very short judgement in Williams and Bermuda which is a Privy Council case so the Privy Council said you've got to look at some injuries and in that case that injury as a result of a process so if you have a process of infection for example which then leads to brain damage and there's a period of time whilst that infection is ongoing and building where there was negligent delay in administering treatment for it and you can't say actually without that delay they would or would not have suffered the brain damage but you can say that that period of delay made more than a negligent negligible contribution to the brain injury then the is liable so that's a key case on material contribution sometimes clinical negligence acts as a alleged to have acted as an intervening cause but it's only where the clinical negligence has been very significant almost gross negligence that it acts as an intervening cause between say a leg injury and a road traffic accident and the amputation of that leg so in webinar police band the doctors have been negligent in the way they treated the leg but it didn't act as an intervening cause breaking the chain of causation between the original tort feasor and the amputation an in right and Cambridge Medical Group GP had been negligent in delaying I think it was referral to hospital well the hospital then being negligent when it treated the patient and the doctor said that lets me off the hook and the court said no it doesn't in the last 10 principle Oh negligently injured claimants entitlement conversation may be reduced or extinguished by their own fault dishonesty or criminality so some of these principles apply of course to all all kinds of negligence case but it's quite interesting contributory negligence traditionally has been hardly ever argued by defendants in clinical negligence but it's much more common now the case of pigeon and doncaster was a case of a woman who'd negligently be had had a smear test cervical smear test and it was negligently reported as all clear she should have been asked to come back for a further testing so there was negligence and there's obvious causation there as well but she then subsequently failed to attend later smear tests in the years afterwards and she was found to have been contributory negligence and reduced her damages significantly below what they would otherwise be lookout for illegal 'ti so if someone is negligently treated for a psychiatric condition they then go out and murder someone there is a question about whether their incarceration thereafter and any damages they may claim is due to illegalities rather than the original negligence and do look out for dishonesty which the courts of you know generally much more prone to look at these days and an example of that in a clinical negligence context is a resume as' and the Ministry of ministry of justice the defendants name it was a clinical negligence case but the defendants identity giving clue to the criminality of the claimant in that in that case who was found amongst many other things to have been fundamentally dishonest when bringing their claim just on contributory negligence I can tell you I've had cases where people have attempted suicide because of psychiatric condition but have suffered very severe injury rather than rather than actually taking their own lives where the defendant has alleged contributory negligence so contributing negligence against someone who blew after their face off with a shotgun while they were in a psychiatric state someone who jumped off hospital roof in psychiatric state nonetheless that if the NHS claimed that they had contributed to their own injuries in those cases and there is some Authority for it which called Reeves Reeves and Metropolitan Police Commissioner there is authority to support that you need to ask in all those cases did the claimant have the capacity to judge their own interests in terms of Health and Welfare and if they didn't have mental capacity that's a good start for defeating an allegation of contributory negligence so just a few do's and dont's and then I'll turn off the recording and happy to take any questions haven't done is we've gone along so that we could have a clean recording of the of the seminar so I just say this for dues learn how to pronounce acetabulum and similar you can always use Google there are even some probes some pages on Google where you can actually hear the pronunciation of words like drugs names with 12 syllables so have a go with that when you are in conference you just have to have the confidence to take a lead it's you who would be presenting the case of trial I say in the slide no you won't because I'm afraid trials are very very rare in clinical negligence but you have to prepare a case as if it's gonna go to trial you're the one who's gonna be explaining it to a judge so you take a lead it's it you've got to know what you need to know okay so obviously when you're dealing with professors of surgery and so on they have a natural inclination to want to take a lead in any meeting especially the men I'm tempted to say well you need to take a lead and it's you who needs to know the key legal points that you you would have to have in mind when you present it at trial keep it simple stupid so if you don't understand something you ask and try to there'll be a lot of complications in a lot of clinical entrance cases a lot of technicalities a lot of medical complications try to distill it into was there a duty of care was there a breach of that Duty but for that breach what would have happened you know was there a material contribution keep those things in mind and try to distill the evidence to meet those key points that you have to prove so try in your own mind to keep it simple don't get too distracted in all the detail that will inevitably be there so I prefer to see a 10 or 15 page particulars of claim where you refer to the essential information in the medical records than a hundred page particulars a claim that's thrown in everything from from the records you one of your jobs to try and keep it simple and one of the reasons is that eventually will be seen by a judge who highly likely will not have any medical brag around themselves so you're gonna have to explain it to a judge there's another layperson in these in these in this context keep it consistent so this is difficult because experts have to present a case to the court they are reporting to the court and their opinion has to be obviously honest but you have to look out for inconsistencies always be alert to that other inconsistency on the facts so is that is the expert basing their opinion on a consistent set of facts or that is consistent with whatever everyone else in the case is taking to be the facts so keep that keep it consistent as well I say worry you know part of our job is to worry what can go wrong in a case so look out for the traps ahead and and you have to be consistent constantly worrying about what can go wrong whilst trying to maintain the confidence of your client can solicitor that it's all going to go well so don't Bluff it is tempting surrounded by your medical experts on the client and the solicitor when you don't understand it to think I'm the only one here who doesn't understand this I can't ask it would be embarrassing to ask because I'm gonna make a fool of myself well I I adopted a practice of saying quite early on in a conference to define please ask questions yourselves and don't worry about asking a stupid question because I've made a career out of asking stupid questions it may not be a stupid question it may be a vital question it's much better not to bluff and pretend you know what spins everything that's going on much better to just be open about it and ask the question okay bluffing or end in disaster um so don't be embarrassed to ask questions and continue asking them until you understand if you don't understand it's probably because you're all intelligent people it's probably because the expert hasn't explained it very well and if they can't explain very well to you they're not gonna be able to explain it very well to the judge accord so keep asking the questions if you don't understand don't be afraid to do so and don't lose your objectivity a lot of typical engines cases they're to do with you know the essential points of life from birth to death and they can be very emotional and you can feel very very sorry for your clients if you are proclaiming I'm very sorry for the doctors if you're for a defendant because very often they are competent and hard-working people and diligent who may have made a mistake on one occasion or which may have terrible consequence it's way beyond the sorts of consequences that we as lawyers are used to dealing with if things go wrong or we make a mistake or they may be part of a system that's let them down and they may feel they're being made a scapegoat so it's on both sides you can fall into the trap of wanting to fight a case because you feel really sorry for a claimant or for a defendant but don't lose your objectivity okay that's important to hold on to that okay so that's just about an hour and so I'll stop screenshare so I can see you all again and I'll stop record I think how do I stop it store