Possible Defences to a Claim

Hello. Welcome to this data loss session relating to clinical negligence. I'm Steph Barber and I'm a retired solicitor from Law Hound Limited. This session is looking at clinical negligence on the potential defences. So let's assume that negligence has been proved in a clinical negligence case. Can the defendant ever raise any potential defences on the can, Of course, be a number of defenses which could be raised on. Amongst those most likely would include the expiry off the limitation period, contributory negligence by the claimants on raising the question off consent. So in this session, we're going to have a broad overview off those three potential defences. So let's examine the expiry off the limitation period in relation to a clinical negligence claim. While the basic rule with personal injury claims is that you have three years from the date of the injury to bring a claim, there are some exceptions to this when the that time limit is extended. Firstly with Children, they have three years from start of their 18th birthday. Secondly, if someone is unable to manage their own affairs, such as a temporary mental health illness, then that time period starts on the recovery or capability of them being able to manage their own affairs. And thirdly, we have the knowledge date insofar as the injury or harm miss concerns and clinical negligence is different. In most personal injury cases, the clock for limitation starts on the date that the injury is caused. In some cases, this is going to be really obvious. For example, even in a clinical negligence case when on operation has gone wrong on the negligence is clear. The cop may start from then, however, this obviously going to your problem where the injury is not revealed when the negligence happens. So, for example, is a delayed diagnosis. The breach of duty or negligence actually happened at the point off miss diagnosis. But the negligence might be a continuing breach of duty up to the point that it is discovered or could have been discovered by reasonable inquiry and therefore in clinical negligence cases. The claimant has three years from the date of the negligence or from the date when they discovered or reasonably could have discovered the negligence to bring a claim. So the starting date for calculating the three year limitation period for clinical negligence is the earliest of the date upon which the claimant first had the knowledge which they might reasonably have been expected to acquire necessary to bring a legal action. It therefore follows that the claimant's must have known the material facts and have known that the injury caused was seriously enough to investigate. With the view to the issue of legal proceedings on must have known the identity off the potential parties to the action. This is the knowledge required to start the limitation clock running on. If any part of that knowledge is missing, then the limitation period won't have started to run in a clinical negligence case. The concept of knowledge for limitation purposes is complex and usually turns on the specific facts of each case where facts around the injury concealed, for example, could the claimants have reasonably attributed the injury to the treatment even if they didn't know the mechanism of the injury or even know that someone had bean negligence? All questions which relate specifically to the claimants own individual set of circumstances and, of course, at the court's discretion, a judge can decide that a case which is in fact out of time can actually proceed through litigation. Let's have a look at contributory negligence while it starts with the Law Reform Contributory Negligence Act of 1945 and basically a claimant whose negligence and so contributed to their injuries or harm will have their damages reduced. Onda under the 1945 act section one makes it clear that where any person suffers damage as a result partly of his own fault on partly off the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the default of the person's suffering. The damage. But the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable. Having regard to the claim and share in the responsibility for the damage. And Section four of the act makes it clear that fault means negligence, breach of statutory duty or other acts or omission which gives rise to liability in tort, or would, apart from this act, give rise to the defense off contributory negligence. And what about standard of care? Well, Dunning considered the principal off contributory negligence in the Davis and Swamp Motor Company case and the full citation is available on the screen and in that standing concluded that it depends on an assessment of whether the injured person was acting as a responsible individual on with reasonable care. On the standard of care in contributory negligence cases is judged by what is reasonable in the circumstances, as you'll see in the Harrison An M. O. D. Case again, citation is available on the screen. Therefore, if a patient is held to have acted in such a way that the behaviour falls below that which a reasonable person would exercise for his or her own protection, then he or she could potentially be found by a court to be partly responsible for the injury on DSO, his or her damages would be reduced accordingly. The test of what amounts to reasonable care in the circumstances on whether or not the claim and took such care must be approached broadly on the concept of reasonable care is objective. And in the Tompkins and Royal Mail Group case, it was held that the correct way for judge to consider the issue off contributory negligence isas follows a assess the party's causative contributions to the accident and injury on be in the light of a decide what would be just Onda Equitable. A portion mints on the Court of Appeal held that it was open to the court when considering be to consider the extent of the defendants departure from reasonable standards of care. So finding of contributory negligence is made when the Klayman's own negligence contributed to the damage of which she complains on. Therefore, in those circumstances where the claim it would have sustained the same injury even if he taken reasonable care damages won't be reduced. It would be fair to say that unlike other types of claimants in other types of personal injury claims, so think road traffic accidents, accidents at work, etcetera. Ah, patient receiving medical treatment is very rarely going to be found responsible for actions which may have contributed to an injury or a worsening of medical condition Following a finding off. Clinical negligence on the same could be said, probably in terms off them being partially responsible. I think it would be fair to save historically contributory negligence. Is the defense in clinical elected? Jin's cases has probably being used less frequently on, and probably for three main reasons. Festival that the fax of cases often don't fit as neatly as in other types of litigation. If you think about it, we've considered so far historically, ah, more paternalistic relationship, where you've got a patient looking up to the medical profession on looking to the doctor to really make everything right again on to some extent having a doctor, which on that basis on on that relationship assumed a greater responsibility. And secondly, given that more paternalistic doctor patient relationship pleading, contributing, negligence, where a patient has already suffered harm, it's likely to incur a lot of adverse publicity on Incur a lot off that feeling generally. And thirdly, of course, because the defense hasn't been so widely used, for example, as it has been in the States or in Canada. We've got more limited case law, of course, having said that, it is possible to run. It is the defense, and I think it's probably going to be increasingly so. For example, a patient entitled to damages after a negligent orthopedic operation to the leg might have damage is reduced if he added to the damage by ignoring advice against weight bearing too early on likewise a claim its lack of care for his own well being can lead to reduction in damages. However, as a defendant, if you want to run this defense, I think you need to be where it can still be quite a big hurdle to overcome. It must be, of course, specifically pleaded on. The defendant has the burden of proof on the balance of probabilities of the fault and positive effect off that false and by way of example. Let's have a look at some case law in the pigeon and Doncaster case, and you'll see the citation on your screen. In 1988 the claimant was negligently informed that a smear test for cervical cancer was normal when in fact it actually showed pre cancerous growth abnormalities. In 1997 a further test showed that she had cancer between 1988 the original test in 1997. The claim it was told on seven occasions and received four letters that she needed a further test. But she hadn't done so because she found the procedure both painful. Andi, embarrassing on the defendant, argued that the claimants conduct in failing to undergo that routine to Michael smear tests, despite repeated requests to do so amounted to a break in the chain of causation, which absolves the defendant from liability altogether or in the alternative at least amounted to contributory negligence on the past, off the claimants. And at some point you may wish to actually read the judgment if you've not already done so on. Consider the two Scottish cases, which were referred to within that. Ultimately, the court held that the claimants failure did not break the chain of causation because she didn't know that she had cancer on had received the positive assurance in 1988. How is a? Her damages were reduced by 2/3 because of contributory negligence because the claims failure to undergo testing against the warnings from her GP as to the desirability of undergoing them. Waas a cause of the failure to treat her cancer at an earlier stage onto shown unreasonable care for her own health and welfare on. In fact, she actually received 1/3 off the assessed damages. What's the current situation? Well, the relationship between doctor and patient is evolving on. Patients are increasingly more aware off their own rights on DTI tend to take more of an active role in their own care and medical treatments. It could therefore perhaps be more easily argued that a patient has more responsibility for their own decisions. What happens, for example, in situations where perhaps a patient provides false information or doesn't attend appointments or fails to follow specific instructions or a deer, too agreed treatment? Or, you know, if they ignore advice, for example, lifestyle choices such as not smoking on? I think we should see some very interesting case law emerging as the relationship between doctor and patient evolves. So let's examine the question off consent as a potential defense to a clinical negligence case. And, of course, it's accepted that medical procedures have a certain amount of risks on. Patients will be asked to sign a consent form, particularly off course, where there's an invasive action that could otherwise be on assault without consent. But, of course has its simplest. It's not sort of a no open ended consent to everything that will provide a defendant with some sort of an almost absolute defense for concerns has to be an informed consent. It needs to be a valid consent that the patient knows exactly what it is they're consenting to on. They have to know the risks that are being run. And there is some quite interesting case law that's evolving in relation to the question off consent. Let's start with a brief local reminder. If you like it, the Chester case citation is available there on your screen. In November 1994 Miss Chester had on operation on her lumbar spine, performed by a consultant, neurosurgeon, Andi. This carried a small but known risk of a serious neurological injury, which could result in partial paralysis on This was a potential complication of the operation, which wasn't necessarily associate it with inadequate or substandard care. Unfortunately, Miss Chester was not warned off the risk. So was Chester had the operation in 1994. Andi. She did develop that complication. Miss Chester's case was that had she had been warned off the complication, she wouldn't have discounted the operation out of hands and having it. It's a later date, but not at that time, because what she did say she would have got other opinions on, looked at alternatives before actually agreeing to that operation. The defense said that even had Miss Chester being warned of the risk she might well have had the operation at a later date on the occurrence of the adverse outcome was in Teleni random on not at all related to the care or skill off the surgeon, or indeed, any individual characteristics off the patient itself, and therefore the risk was the same at any subsequent operation. So the argument was there was no causal link between the failure toe worn on the damage, which materialized at the complication the House of Lords found for the claimant because the duty to warn of risk was a fundamental one affecting the right of the patient to determine what actually happens. Tooth, um, patients should be warned about risks and not exposed to risks that they're not prepared to accept. So where did that leave consent? Well, in Chester, the court were reassured that the claim and would be most likely entitled to recover if they could show that they had not been warned about particular risk off planned procedure, which later occurred. And if they have, Bean warned, they would not have gone ahead with the procedure at that time. In that case was 2004. Fast forward to 2000 and 15 on. We have the Montgomery on Lanarkshire case against Citation on the screen very briefly. The facts of that case relate to a complex in high value birth damage claim on the issue of whether a Caesarean section should have been offered to high risk. Diabetic mother on the case confirmed that apart from cases where it would damage the patient's welfare, the doctor is under a duty to take reasonable care to ensure that their patient is aware of any material risks involved in any recommended treatment on of any reasonable alternatives on when assessing whether something is material, you need to look at the particular circumstances on assess whether a reasonable person in the patient's position would be likely to attach significance to the risk. All the doctor is all should be reasonably aware that this particular patient would be likely to a chats significance to the risks. And so the significance of risk and uncertainties, including the possibility of alternative treatment, is sensitive to the characteristics off the patient on then that would allow patients to make decisions would affect their health. Ah, well being based on proper information so effectively, this erodes the strong, paternalistic relationship between the doctor and patient and leaves us in a situation where the relationship is such that the patient is treated as an adult, capable of understanding the potential benefits and the risks and the burdens and side effects of each available option on together with the doctor's recommendation for a particular option, of course, before the patient actually accept responsibility for making a decision which they will have to live with on live with the consequences off that decision and then moving to January 2007 we've got the Webster case against Citation is available on the screen, and I just want to mention it very briefly. The case involved a cerebral palsy. Birth injury claim on on appeal The Court of Appeal specifically upheld decision in Montgomery and said it was the appropriate approach in consent cases on moving to May 2000 and 17. The stuff future case thes citation is on the screen again. This case related to surgery for a current New Roma in the claimants right foot. The claimant consented to have a non operation, but claimed that she was unaware that only two parts off the operation was being carried out on was not advised of any risks relating to this. And that trial, although is found the operation happy being performed negligently. That negligence hadn't actually caused the claimant pain or suffering. The Court of Appeal concluded that to succeed the claim, it would have to show that if she had have Bean informed that the surgeon would not carry out the third part of the operation, then she would not have proceeded with surgery on. There was no evidence presented by the claimant to prove this would have been the case and then to June 2017 where we have the diamond case. Onda against Citation is on the screen on this case related to a nabbed ah minal honey repair with the claimant alleging that she hadn't really. Bean, made aware of the risks of one type of repair on, wasn't offered the alternative. The claimant alleged that she wasn't advised about a suit to repair, which had a higher risk of failure and opted therefore for a mesh repair which did have a greater chance of success than the alternative. But there was a risk of pregnancy complications. The case failed on Montgomery grounds as it was held that the claim it would not have taken that alternative route even with additional information. The claimant did try to argue a trust, a case in the alternative in that she wasn't warned off the risks. But given that the issue was incurring a risk of future complications in pregnancy rather than the actual injury, the case actually failed on that basis as well. As an aside, the claim was awarded 7500 for the delay in diagnosis of the hernia assessed it two months of culpable delay. It's therefore quite clear that we do need to watch further developments in case law in relation to the question off consents. And that concludes this session from Data Law. Thank you so much for joining me, Steph Barber on the session.