Clinical Negligence Newsletter Winter 2010

When is ethical to withdraw life-sustaining treatment from a child? 

In a recent article, Simon Elliman reviewed both the case law and the current clinical guidelines surrounding this highly sensitive and contentious issue.

Simon notes that in a recent case (Wyatt – v – Portsmouth Hospital NHS Trust [2005]), “intolerability” was nominally overturned as the primary factor by which to determine when to withdraw treatment. In the previously leading case on this issue, the Court was called upon to judge whether the child’s quality of life was actually so poor as to be intolerable. In Wyatt, it was held that the focus should be upon the child’s best interests rather than “intolerability”, although it was then clarified that “the latter may be encompassed within the former”. What is “intolerable” is necessarily a subjective judgement: the language, if not necessarily the substance of the judgement in Wyatt, imparted a veneer of objectivity to the judges’ deliberations.

Simon compares the law with the current guidelines on this issue from the Royal College of Paediatrics and Child Health (RCPCH). These state as follows:

“It may be ethical and legal to consider withdrawing or withholding treatment in the following situations:

1. the ‘brain dead’ child;
2. the ‘permanent’ vegetative state;
3. the ‘no chance’ situation;
4. the ‘no purpose’ situation, or
5. the ‘unbearable’ situation.”

Whilst these are nominally distinct situations, any one of which could result in the withdrawal of treatment, children about whom legal judgements on “intolerability” have been made have, in practice, satisfied more than one of the tests. Moreover, it is probable that the judges in these cases would have been guided by the “no purpose” criterion, which itself states that it may be undesirable to prolong future treatment if the child’s life will be “impossibly poor”. It is difficult to see how the judgement that a life will be “impossibly poor” is actually that different from the judgement that it is “unbearable”: it simply refers to an intolerable situation in the near future, rather than the present.

The notion of “intolerability” is problematic for the judiciary, because it is a qualitative and hence a subjective judgement. As Simon suggests, the test also implies its conclusion. However, “intolerability” may, in practice, be the ultimate test when considering such a drastic step.

Simon Elliman is a Partner and Head of the Clinical Negligence Department. Please click here to read the full article (reproduced with the permission of Solicitors Journal).

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The Jackson Review

Sir Rupert Jackson has recently published a review of the costs of civil litigation. Amounting to several hundred pages in length, this is a major study, and its implications are still being digested by the legal profession. However, several points are worth highlighting at this stage.

The Jackson review concludes that the costs of civil litigation are too high, with conditional fee agreements (“No Win - No Fees”) and ‘After the Event’ insurance premiums singled out for particular criticism. After the Event Insurance (ATEI) is generally required for cases taken on as “No Win - No Fees”, because these agreements only guarantee the Claimant a measure of protection against the costs of their instructed solicitors. The agreements rarely, if ever, offer any protection against either the associated costs of litigation (“disbursements” – in clinical negligence, these usually consist of things such as the copying costs of medical records, expert report fees and professional record pagination), or the legal costs of the Defendant. If the Claimant does not have an existing insurance policy that will cover the costs of litigation and is not financially eligible for Legal Aid (“Public Funding”), it would be advisable to obtain ATEI certainly by the point of issuance of proceedings.

The Jackson review contends that the ATEI premiums currently set are so high that the practical effect is that defendants are funding claimants who lose their cases. The review proposes instead that those claimants who wish to insure their cases (Sir Rupert considers they will be in a minority) should pay for their own insurance premiums themselves. This seems unfair in several respects. Firstly, virtually all defendants in clinical negligence claims are either indemnified against the costs of litigation, or can easily afford to insure themselves: this is not the case for most claimants. Secondly, it is becoming ever harder to obtain legal aid, even for claimants whose means are limited. This is because the Legal Services Commission is becoming increasingly reluctant to fund cases in which damages do not exceed costs by set margins. Thus, claimants with lower value claims, whose cases therefore do not meet these stringent criteria, are effectively being pushed towards entrance into “No Win - No Fee” schemes. It is difficult to see why such claimants should risk losing some or even all of their damages to insurers, particularly given that they are likely to have been financially vulnerable to begin with. We are concerned that this recommendation risks penalising claimants with lower value claims, rather than the insurers whom the report actually criticises. Would not a simpler and rather more equitable solution be to cap the premiums that insurers can charge?

The Jackson review is also critical of the success fees that solicitors can charge under “No Win - NoFee” schemes. It is suggested that these are too high, and that they should come out of the damages of successful claimants. In order to ensure fairness to claimants, the Jackson review proposes a 10% rise in the level of general damages (damages for pain and suffering, as opposed to actual financial losses) awarded.

The above proposals seem open to question on a number of points. In the first instance, the 10% rise in general damages is proposed in all cases, not just those in which the claimant has entered into a “No Win - NoFee” agreement. It therefore disadvantages those claimants who have entered into such an agreement – other litigants would simply receive a 10% hike upwards in their general damages without any downside. This hardly seems fair. In the second place, there is already a perfectly good system in place for dealing with those firms who charge excessive fees, called “detailed assessment”. If at detailed assessment costs, are assessed by a Court as being excessive, they will then be reduced in any event. Thirdly, a 10% increase in general damages, coupled with a liability for a success fee, is very unlikely to produce anything other than a reduction in overall damages awarded in all but the very highest value cases. Certainly, if overall damages awarded were less than £100,000, the claimant could very well lose out. Once again, it seems that these proposals risk prejudicing the interests of claimants with less valuable cases.

The Jackson review proposes a database for valuing cases of less than £10,000, thus cutting out the role of claimant law firms in such cases. There seem to be two problems with this approach: firstly, who decides upon the value of the case? If the system is overseen by a government, rather than an independent body, then it seems very unlikely – particularly in the current economic climate – that there will not be a cost-cutting agenda. This hardly seems a good basis upon which to conduct a realistic valuation of claims. Secondly, who should decide on the merits of these claims? Depressingly frequently, the role of the NHS Litigation Authority appears to be simply to ignore claims, no matter how meritorious, apparently in the hope that they will go away: what guarantee is there that this proposed body would not adopt a similar approach? What happens to claimants with perfectly good claims, who are met with blank denial from an organisation with a remit to cut costs? Should claimants be denied access to justice because their cases are not “valuable” enough? Is this not part and parcel of the sort of “commodification” of litigation (which, in clinical negligence, necessarily concerns people who have been physically damaged) which the report elsewhere complains of?

The Jackson review criticises the litigation process for clinical negligence as being slow, cumbersome and unwieldy. In this regard, attention is drawn to several failings:

• Trusts do not always notify the NHS Litigation Authority of claims
• The NHS Litigation Authority do not obtain independent evidence early enough – the upshot of which is that, if the clinicians complained of refuse to admit that they were in the wrong (as not infrequently happens), the matter is simply “stonewalled” until proceedings are issued and served
• Defendants are too slow to get to grips with issues
• There is no provision in the Pre-Action Protocol to settle a claim without an admission of breach of duty.

None of the above comes as much of a surprise, and whilst we would question the validity of much of the review, we do welcome proposals which would streamline the litigation process and facilitate access to justice for claimants. One way to cut the costs of clinical negligence would be to force defendants in these matters to engage in dialogue with claimants far earlier in the process. In practice, it is very difficult to keep costs down (and, for that matter, to minimise the stress of litigation for claimants) when one’s opponent not only refuses to address the issues, but in many cases will not accept that there is anything to discuss. 

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Over the next year or so, important reforms to Legal Aid will be put into effect and new contracts are being allocated. The Law Society is still in dialogue with the Legal Services Commission regarding the above changes and we would hope that there is still room for negotiation in those areas about which we are most concerned for our clients. While the precise effect upon legal aid in clinical negligence cases is not yet entirely clear, it is becoming apparent that some smaller law firms are likely to lose their contracts to undertake legally aided work. It is thus probable that contracts will promote a form of “streamlining”, in which fewer contracts are awarded to specialist service providers. Broadly, we welcome any measure that ensures that claimants receive an appropriately specialised service, but since it is not yet clear precisely what indicators of performance are being evaluated by the Legal Services Commission, it is difficult to say whether the current proposals are likely to foster this. One measure of success previously used by the Legal Services Commission has been the number of cases won by individual firms. This has been criticised widely, since such a simplistic analysis takes no account of the complexity and consequently the risks of the cases which are being assessed: unless the methodology is appropriately risk-adjusted, firms that cherry-pick easy cases are likely to appear to be extremely high performers. By contrast, firms that take on more challenging work can appear to be performing poorly, even if they are providing a far better service for their clients.

Under the new contract, the Legal Services Commission appears to have modified the above approach somewhat, albeit in a manner which we feel is perhaps rather peculiar. The Legal Services Commission has announced that it will be looking at the costs on the public fund of all firms with a current contract to provide clinical negligence work. They will then compare these with the damages returned to claimants over a 3 – month period. Those firms who can demonstrate a 2:1 ratio favouring damages over costs will be deemed to have met this performance “indicator” (presumably, as opposed to a performance target). This seems bizarre: clinical negligence cases generally take years to conclude. Because this is the case, the performance of any firm which does this sort of work simply cannot be assessed accurately by a “snapshot” of this sort.

Several sorts of legally-aided work will now be allocated geographically (this applies only to a limited extent for clinical negligence). The practical upshot of this is that legally-aided claimants may only be able to choose from firms based in their area. For many types of work, this is not likely to cause problems to claimants. However, the spread of legal services providers over the country is not even, and neither is the spread of specialisms offered by regional law firms. We are concerned that this new approach may lead to some claimants in less well-represented areas receiving a poorer service than they should get.

We have been advised by the Law Society that the new contracts contain a clause which states that we have to use our best endeavours to provide an environmentally friendly service. It is rather difficult to see how doing legally-aided work materially contributes to global warming. However, if it would help, we would be very happy to buy some more potted plants; having to fill in fewer Legal Aid forms would also be nice, and just might save the odd tree … 

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The Wrong Sort of Lung Cancer 

In this very unusual case, the Claimant developed a cough in 1989. At the time, he was a smoker, and worked with toxic spray paints. He was referred to hospital, where a shadow was found on his lung. A biopsy was taken, and the pathologist diagnosed a small cell carcinoma (a highly aggressive type of lung cancer), for which the prognosis is bleak. The Claimant was told that he had months to live and was given radiotherapy and chemotherapy. Miraculously, considering his dire prognosis, the Claimant recovered. However, rather than checking back the original diagnosis, his clinicians simply recorded him as a “cure”. The Claimant did give up smoking, but thereafter developed type II diabetes in 2002.

In 2005, the Claimant suffered an episode of haemoptysis (coughing up blood) and went to his GP. He was referred to hospital, where diagnostic tests were performed. A shadow was again found on the same lung, in the same position as that which had been seen in 1989. A further biopsy was performed and it was found that the Claimant was suffering from a carcinoid tumour. To his considerable surprise, he then discovered that it was highly likely that the tumour with which he had presented in 1989 and his current cancer were one and the same. Carcinoid tumours are slow-growing, and far less aggressive than small cell carcinomas. They should also be treated with surgery, rather than radiotherapy or chemotherapy.

The Claimant was offered surgical excision of the tumour. However, following diagnostic studies, it was found that he required heart surgery first, due to the poor state of his coronary arteries. The Claimant’s heart surgery was made far more technically difficult than would otherwise have been the case due to the damage done to his chest cavity by the radiotherapy he received. Having recovered, the Claimant underwent an operation on his affected lung. The tumour was successfully excised, but the radiotherapy-related scarring made this procedure extremely challenging. The Claimant was unfortunate enough to suffer a stroke as a consequence of this surgery.

The Claimant claimed that the hospital at which he was treated in 1989 was negligent in failing either correctly to diagnose his tumour, or to check back the diagnosis once he had made an apparently miraculous recovery. It was alleged that these failures had led to avoidable radiotherapy, which in turn caused damage to the Claimant’s chest wall, thoracic vasculature, and coronary arteries. It was the Claimant’s case that the radiotherapy also materially impacted upon his life expectancy, in that it was not possible to use his internal mammary artery during his cardiac surgery, as a result of radiation-related scarring. It was further alleged that, had surgery been appropriately performed in 1989, then it would have been most unlikely that he would have suffered the stroke that he in fact did, since he would have been, at that juncture, nearly twenty years younger, and consequently far more vascularly healthy.

The medical issues raised in this case were exceptionally complex, and required highly detailed analysis. Somewhat surprisingly, whilst the defendant admitted breach of duty in respect of its failure to diagnose the tumour correctly, the failure to check back the diagnosis in the setting of a very improbable recovery was not admitted to be a breach of duty. Proceedings were issued, and the claim eventually settled in the sum of £65,000.

This claim was handled by Joachim Stanley, Legal Claims Manager.

MW (on her own behalf and as administratrix of the estate of AW, deceased) vs Great Western Hospitals NHS Foundation Trust 

The Claimant suffered a miscarriage, and therefore required an operation known as evacuation of the retained products of conception (sometimes also referred to as a D&C). Unbeknownst to the Claimant, her womb was damaged during that procedure. Following this, she suffered some unusual shoulder tip pain. However, she did not understand the significance of this, as there was a lack of aftercare advice: in fact, this symptom indicated there had been damage to the womb. The Claimant quickly became pregnant again, but as a result of the damage to her womb, at approximately 24 ½ weeks of pregnancy, the womb split open with the result that the Claimant required emergency treatment, and her daughter unfortunately died a few weeks later. The Claimant was given medical advice that the risks of getting pregnant and going through a “natural” pregnancy again would be high and therefore the Claimant was only left with the option of surrogacy to have her planned family, which was initially successful and was to be repeated again in the future.

The Claimant brought a claim alleging that the damage to her womb at the time of the original surgery should have been diagnosed and treated, and that if it had been, her womb would not later have split open with resulting death of her daughter. It was further alleged that she would be able to conceive and have a “near-natural” pregnancy in the future and alternatively that if she had been given appropriate advice after the original surgery, the Claimant would have recognised that the shoulder tip pain she had afterwards was unusual and that she should have sought further medical attention for that which would have been a further opportunity to diagnose and treat the damage to her womb.

There was a claim for pain and suffering on behalf of the Claimant in terms of the damage to her womb and the fact that she was unable to have children “naturally”. In addition the claim covered the pain and suffering and funeral expenses associated with the death of her baby daughter and also her financial loss including the costs of past and future surrogacy.

The claim settled for the sum of £50,000 which exceptionally included a sum towards surrogacy costs, which had not been reported as being recovered in a claim before.

This claim was handled by Paul Rumley, Partner and Head of the Swindon and Marlborough Clinical Negligence Team. 

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 Withy King represented the family of Mrs Anna McKenna who died on 18 April 2006 following having been prescribed and dispensed four times the maximum dose of her chemotherapy treatment drug, Idarubicin.

Mrs McKenna was prescribed Idarubicin to treat myeloma on 15 March 2006. Despite the error in the dosage written on the prescription sheet, the pharmacist failed to pick up this error when screening the prescription and was given the drug as an excess dose. Mrs McKenna quickly deteriorated and was admitted to the Bristol Royal Infirmary on 26 March 2006 and diagnosed with a virtual complete absence of white blood cells. Despite attempts at treatment at the hospital, she passed away in April because of a simple bacterial infection, which her body could not fight, the drug having wiped out her immunity. The Pathologist recorded the cause of death as 1a) aspergillosis, 1b) neutropenia and 1c) Idarubicin overdose, multiple myeloma.

The police questioned under caution the Haematologist who prescribed the drug and subsequently undertook extensive investigations into the pharmacy, questioning a number of pharmacists on potential charges of gross negligence manslaughter. Unfortunately, the prescription sheet in question went missing and the medication bottles did not detail who had screened the prescription, only those who had dispensed it. No pharmacist came forward and took responsibility for having screened the drug.

Following their investigations, the police decided there were insufficient grounds on which to refer the mater to the CPS and the Coroner therefore listed the Inquest to take place on 21 September before a Jury, for five days. A wide variety of witnesses were called to give oral evidence at the hearing, including an independent medical expert in haematology. The jury heard evidence that the family had expressed repeated concerns about the level of drug given, however the drugs had been destroyed by the hospital. A junior doctor, on certifying the death, did not make a referral to the Coroner and signed a cremation form, which the family had never requested. Thereafter, there were further disappointments in the investigation of the death. Originally the family were informed that the drug overdose was unrelated to the death, and that the cause of death was the cancer. The McKenna family, therefore had a battle in trying to bring the matter before the Coroner, and for a full investigation to be undertaken.

The Jury at the Inquest found a verdict of manslaughter by gross neglect, i.e. unlawful killing.

The solicitor with conduct of this case was Kerstin Scheel, a solicitor in the Clinical Negligence & Inquest Department.

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