Medical Malpractice and Clinical Law Insight: Winter 201903/12/19
Welcome to our latest edition of our Medical Malpractice and Clinical Law Insight for the insurance market, in which we consider the latest developments in medical malpractice and product liability, evidence and procedure, quantum and inquests.
Medical Malpractice & Product Liability
Claimants’ appeal in Seroxat group action dismissed
In Bailey & others v GlaxoSmithKline (2019) the Claimants allege that GSK’s anti-depressant drug Seroxat is defective within the meaning of the Consumer Protection Act 1967. The central issue in the case is whether Seroxat’s safety is such as persons generally are entitled to expect (s.3 CPA). In May 2019, Lambert J limited the Claimants’ case to the allegation that Seroxat is the worst in its class for discontinuation symptoms as compared with others in its class. The Court of Appeal has upheld her decision.
Comment: The decision was perhaps not surprising given that the limitation of the Claimant’s case had been the subject of earlier case management decisions by both Lambert J and Foskett J. However, the judgment includes some wider points of interest to those involved in product liability litigation. The decision represents the first appellate court endorsement of the ‘holistic approach’ to assessing product defence set out in Wilkes v DePuy International Ltd  EWHC 3096. It also serves as a reminder that the precise nature of a Claimants’ case should be scrutinised very closely. The Court approved Lambert J’s statement that there should be ‘absolute clarity’ on the Claimants’ case on defect as it ‘drives the scope of the expert evidence and the focus of the trial’. Part 18 questions can be used to good effect in seeking clarity of any aspect of a Claimants’ case
Third party costs order inappropriate
In Travelers Insurance Company Ltd (Appellant) v XYZ (Respondents) (2019) the Supreme Court overturned the decision of the lower courts that Travelers should pay the costs of 426 uninsured Claimants in the PIP breast implants group action against Transform, which entered insolvency administration during the litigation. Only 197 of the 623 claims in the action were insured. Travelers funded the whole of Transform’s defence but did not disclose that a substantial number of claims were uninsured until fairly late in the litigation. The Supreme Court considered the basis on which a liability insurer could become exposed to non-party costs: who was the ‘real defendant’ and had the insurer ‘intermeddled unjustifiably’ in the litigation. The Court concluded that the ‘real defendant test’ was inappropriate in a case like this where the claims are wholly uninsured and Travelers had not intermeddled unjustifiably in not disclosing the uninsured status of the 426 claims. All the claims were pursued within a single group action by common solicitors and involved common issues being tried together in 4 test claims. Travelers had a legitimate interest in Transform’s defence of the insured claims and consequently in its defence of the test cases and common issues. Its involvement was the natural result of its status as an insurer.
Comment: The court’s discretion under s.51 SCA is a wide one and any decision will be fact specific. No explicit guidance was given in the Travelers case on what constitutes ‘intermeddling’. Nevertheless, this is a helpful decision for insurers involved in group actions facing both insured and uninsured claims. It is worth noting that the Supreme Court considered it may be very hard to establish intermeddling where an insurer has acted within its contractual obligation. When considering whether to become involved in defending claims outside the scope of cover, insurers should check the policy to ensure their involvement is in accordance with obligations under the policy. If it is not, they run the risk of a non-party costs order.
Discontinuance does not circumvent dishonest conduct
In Zurich Insurance plc v Romaine (2019) the Respondent discontinued a claim against his employer for noise induced hearing loss after being confronted with evidence of his dishonesty. The Appellant’s application for his committal in the High Court had been refused. The Court of Appeal considered that the judge had failed to take into account the ‘mischief’ that early discontinuance of a claim could bring, even in a claim such as this where the discontinuance had been prompt. The appeal was allowed.
Comment: This case along with the committal decisions in Atwal (2018) and Elder (2019) makes it clear that there is no hiding place for unscrupulous Claimants or lawyers. For more detail on Atwal and Elder please see Clinical Law Insight September 2018and Medical Malpractice and Clinical Law Insight August 2019.
Court of Appeal confirms High Court jurisdiction to commit for contempt involving pre-action dishonesty
In Jet2 Holidays Ltd v Hughes & another (2019), the Appellant sought the Respondents committal for contempt for false statements made during the Pre-Action Protocol in witness statements containing a signed statement of truth, This was a holiday sickness claim in which review of the Claimants’ social media accounts during the holiday period demonstrated that no one had been taken ill. The Court of Appeal held that the High Court did have jurisdiction to commit for contempt as PAPs are now an integral and important part of the litigation process and the false statement had interfered with it
Comment: This decision brings the position of Defendants facing unscrupulous Claimants in pre-action matters into line with those where proceedings are issued.
Evidence & Procedure
Lack of record not fatal to defence of claim
In CXB v North West Anglia NHS Foundation Trust (2019) the High Court determined that there was no general principle in a clinical negligence case that clinical notes should be preferred for reliability and veracity over witness statements and oral testimony because of the unreliability of a witness’s recollection of events. The evidence in question was a mother’s testimony that she requested a caesarean section but this was refused, causing one of her twins to suffer a birth injury. Her alleged preference was not mentioned in any of the clinical notes and the judge decided that there was insufficient material to conclude the notes were inaccurate or unreliable. Judgment was given for the Defendant.
Comment: In many clinical negligence cases, lack of a record can lead the judge to prefer the Claimant’s evidence. This case turned on its facts and the judge clearly considered the medical records to be of a good standard overall. Good record keeping is essential for patient safety and can make the difference between being able to defend a claim or not. However, CXB reminds us that the context of a missing record should be factored into any decisions about whether a claim should be defended or settled. Read our in depth Insight on effective record keeping.
Don’t put off until tomorrow what should be done today
In the mesothelioma case of Mitchell v Precis 548 Ltd (2019) the Defendant applied to vacate the trial date due to unavailability of its expert, two working days before it was due to start. The judge considered that the application should have been made 4 months earlier when the expert informed the Defendant’s solicitor that he was not available and it was likely that there would be issues between the parties’ experts. The solicitor’s conduct in waiting 3 months to tell the expert of the trial date was described as ‘wholly unacceptable and contrary to the spirit of the CPR’. The application was refused, despite this effectively depriving it of its defence which relied entirely on the expert's evidence. The judge considered the prejudice to the 84 year old Claimant whose husband had died over four years ago to be greater.
Comment: Although a stark example this case provides a salutary tale about the consequences of decisions being left until the last minute in cases which are litigated, particularly in the run up to trial.
Future loss of earning capacity – a move away from Smith v Manchester?
The case of Inglis v MOD (2019) involved a Royal Marines weapons instructor who had suffered noise-induced hearing loss. The Claimant had left the service to take a job in maritime security and was studying for a health and safety qualification. It was agreed that had the Claimant remained in the service, he would have left in September 2019 and then worked in health and safety for 30 years. The judge determined that a one-off lump sum payment for loss of future earnings (the Smith v Manchester approach) was not appropriate and made an award based on the multiplicand and multiplier.
Comment: We have noticed a trend away from Smith and Manchester awards, save in cases where the uncertainties about future employment are significant. In Inglis the judge found that despite some uncertainty about the future it was clear that the injury had more than a minimal impact on the Claimant’s work and that evidence was available to determine the value of his future loss of earnings without having to make a broad-brush judgment. This trend will increase the value of claims.
Suicide conclusion to be determined on balance of probabilities
The Court of Appeal have confirmed in R (on the application of Maughan (Appellant) v HM Coroner for Oxfordshire (Respondent) (2019) that the civil standard of proof (balance of probabilities) should be applied to suicide conclusions at inquest. It has recommended that the position be set out explicitly in the Coroners (Inquests) Rules 2013. In obiter comments the Court stated that the criminal standard (beyond reasonable doubt) remains for unlawful killing conclusions.
Comment: This decision represents a major change in the law and is likely to herald an increase in the number of suicide conclusions. However the Appellant has been given leave to appeal to the Supreme Court. Read our in depth Insight on the Court of Appeal decision.
Witness jailed for failing to attend inquest
The late Sophie Bennett (aged 19) sadly took her own life at Lancaster Lodge, London in 2016. The care home manager, Mr Duncan Lawrence, failed to attend the inquest into Sophie’s death and was fined £650 by the West London Coroner who referred the matter to the Director of Public Prosecutions. In August 2019, Mr Lawrence pleaded guilty to the offence of failing to attend the inquest, but later applied to withdraw the plea on the basis of the criminal law ‘double jeopardy’ rule i.e. he had already been ‘tried’ and sentenced for the offence by the Coroner imposing the fine. The change of plea was refused and Mr Lawrence has been sentenced to 4 months in prison.
Comment: This is a salutary tale about the importance of attending an inquest if called as a witness by the Coroner and the potentially dire consequences of not doing so. Mr Lawrence was facing a possible custodial sentence. Although this case is an extreme example, it demonstrates the extent of Coroners’ powers and the need for witnesses to co-operate and provide evidence.
If you would like to give feedback on the Clinical Law Insight or require information about any of the issues raised, please contact Majid Hassan, Anna Walsh or Georgia Ford.