Fatal accident litigation can give rise to very specific problems in the context of clinical negligence. All fatal accidents always throw up their own unique problems. Recent cases have demonstrated a number of particular areas of concern for all practitioners, but particularly those instructed where medical negligence has caused, or hastened, death.
WHAT THE CASES SHOW
The cases highlight a number of issues:
- Pain and suffering prior to death.
- Knowledge of reduced life expectancy.
- Causation: there could be clear negligence but it has to be proven that this negligence caused the death.
- The burden of proof and causation.
- Damages when the negligence “accelerates” the death.
- Funeral expenses when death is accelerated.
- Psychiatric injuries to others arising from the death.
These cases demonstrate the real difficulties for those undertaking fatal accident litigation in the context of clinical negligence.
(This post is adapted from an article that originally appeared in Personal Injury Focus).
PAIN AND SUFFERING HAS TO BE PROVEN: KADIR –v- MISTRY
In Kadir –v- Mistry  EWCA Civ 1177 the Court of Appeal made it clear that the burden is on a claimant to prove increased pain and suffering as a result of clinical negligence, even when that negligence had led to early death.
The action was brought on behalf of the estate of a women who had died aged 32 of gastric cancer. The negligence of the GPs meant that treatment that should have taken place in June 2007 did not take place until March 2008.
The defendant was arguing that the deceased suffered less because of the negligence. The gruelling treatment started later. Indeed the defendant was arguing that there should be some sort of “set off” for the decreased period of pain and suffering.
The trial judge declined to award damages for the pain and suffering sustained by the deceased on the grounds that the claimant had failed to establish that that the deceased suffered from any symptoms which she would not have suffered in any event. There was no evidence to establish that the symptoms lasted any longer.
The Court of Appeal upheld the decision not to award damages for pain and suffering. However it was held that the Court could, even in the absence of specific evidence, the court could infer knowledge of reduced life expectancy. Lord Justice Laws held that damages of £3,500 could be awarded on that basis.
“It seems to me plain on the material that we have seen that the evidence gave rise to a proper inference that Mrs Begum feared on good objective grounds that her life had been or may have been curtailed by the respondent’s failure to diagnose her condition earlier. The appellant was not required to prove that his wife knew her life expectancy had been reduced because the respondents had been negligent”
It is important to note that this was not a finding that pain and suffering cannot be awarded in these circumstances. It was a finding that pain and suffering has to be proven by evidence. The trial judge had this to say in relation to the evidence in relation to pain and suffering.
“It [the evidence of pain and suffering] is extremely limited. It
falls far short, it seems to me, of the evidence which one would normally
expect to see from somebody suffering from a terminal illness giving
evidence about how they feel being in that position and the distress and
anguish to which that has given rise. The fact of the matter is that
ultimately this is for the claimant to prove upon the balance of
possibilities and there has been ample opportunity to do so, and the
evidence in relation to that is extremely thin indeed, too thin to establish a
claim upon the balance probabilities.”
PAIN AND SUFFERING FOR ACCELERATED DEATH: HEADS OF DAMAGE AWARDED AND REFUSED
In Brown –v- Hamid  EWHC 4067 (QB) death was accelerated by a period of 12 months due to a failure to diagnose a pulmonary embolism. Damages took into account the following factors:
- The deceased would have been suffering from relatively mild symptoms due to the pre-existing condition. However he would not have gone on to develop the severe symptoms.
- It was apparent from Mrs Brown’s witness statement that her husband suffered significant distress and anxiety as a result of the delayed diagnosis.
- Damages of £8,000 for pain and suffering were awarded.
- Awards were made for loss of earnings (for a 12 month period) and diy.
- The sum of £250 for the costs of medical consultations with the defendant was awarded.
However no award was made for
- Care; travel; accommodation and other expenses as they would have been incurred soon afterwards in any event.
- Loss of value of home (due to forced sale).
- Loss of consortium.
No award of funeral expenses
Controversially the judge declined to award funeral expenses:
“However although damages for the recovery of funeral
expenses “may” be recovered and indeed usually are recovered under s.3(5) of the1976 Act, in the circumstances of this case, namely the acceleration of the symptoms associated with a pre-existing condition by a relatively short period of time, I do not consider that it would be appropriate to make such an award.”
This begs the question – how long must the period of acceleration be before funeral expenses will be awarded (since we will all die eventually).
ESTABLISHING THAT THE NEGLIGENCE CAUSED THE DEATH: DAVIES –v- COUNTESS OF CHESTER HOSPITAL
Matters of evidence and causation were at the fore in Davies –v- Countess of Chester Hospital  EWHC 4294. Here the claimant established breach of duty in the wrongful administration of magnesium.
“The pharmacology experts have agreed that the immediate cause of Mr Davies’ death was the administration of magnesium, and that the administration was a serious clinical failure. However, the Claimant, to succeed on this claim, would have to show, on a balance of probabilities, that Mr Davies would have survived for a substantial period if the magnesium had not been administered.”
Put bluntly the claimant failed to establish that appropriate treatment would have led to survival for a substantial period.
APPROPRIATE AMBULANCE TREATMENT WOULD HAVE LED TO SURVIVAL: HAYES –v- SOUTH EAST COAST AMBULANCE SERVICE NHS FOUNDATION TRUST
The claimant was more successful in Hayes –v- South East Coast Ambulance Service NHS Foundation Trust  EWHC 18 (QB). The judge found that the patient should have been given ipratropium, salbutamol and adrenaline by the ambulance crew. (There are interesting observations about the nature of the defendant’s expert evidence in that case)
- If the administration of adrenaline in a life-threatened asthma patient would have no additional beneficial effect over and above the inhaled salbutamol than it is very difficult to see why the guidelines, Dr Scott, Dr Moore and Professor Empey all support it albeit in varying circumstances.
- It seems to me that the reason behind this view is that Professor Barnes focused very heavily on the contrast between these guidelines and the UK Asthma Guidelines and the latter’s emphasis on evidence-based recommendation. The evidence I have heard was to the effect that in an out of hospital situation where there can be no randomised controlled trials not least for ethical reasons there could not be truly evidence-based guidelines. Professor Barnes’ view would arguably lead to a situation in which since there could only be a very limited number of evidence-based guidelines for ambulance technicians they would not have a complete set of guidelines to follow. The UK Asthma Guidelines themselves refer to an injected beta-2 agonist and adrenaline is a beta-2 agonist. It is perfectly correct to say that the UK Asthma Guidelines suggest there is very limited evidence to support the benefit of such treatment. It is apparent that this is correct. However, the logic here is that like salbutamol and ipratropium the aim in such a severe asthma attack is to open up the airways. Injected adrenaline would achieve this to some degree. Professor Barnes accepted that injected adrenaline would reach the airways and would do so in 30 seconds. In his view, it would have some, albeit “very small” beneficial effect.
- I had some concerns about Professor Barnes’ evidence. It seemed to me that by failing to specifically point out that he had been Mr Hayes’ treating doctor (indeed referring to himself in the third person), by commenting on breach of duty and by devoting so much of his opinion to the issue of compliance he gave the appearance of trying very hard to support the Defendant’s case rather than assisting the Court as an independent expert should.
- The question therefore is whether or not Mr Hayes would on a balance of probabilities have survived had the crew taken the steps which I have identified they should have done. Professor Empey is clear that the prospect of survival would have been 60%. On that analysis the Claimant would succeed.
NO CLAIM FOR SECONDARY VICTIM: WILD –v- SOUTHEND UNIVERSITY HOSPITAL NHS TRUST
In Wild –v- Southampton University Hospital NHS Trust  EWHC 4053 (QB) the judge rejected a claim for damages for a father. The father’s child had died in the womb as a result of clinical negligence. A claim by the mother was admitted and damages agreed. The claim by the father failed. The judge concluded:-
“The authorities have driven me to conclude with reluctance that Mr Wild cannot on the facts succeed in his claim for damages which must therefore be dismissed. It would be difficult to argue that that is a logical outcome but, as Lord Oliver said in Alcock at page 417 in relation to the submission that a visit to the mortuary several hours after the tragedy should be treated as part of the immediate aftermath: “To extend the notion of proximity in cases of immediately created nervous shock to this more elongated and, to some extent, retrospective process may seem a logical analogical development. But … the law in this area is not wholly logical.” The same may be said about an extension to a clinical negligence case where the first possible manifestation of the consequences is when medical staff discover that the baby has already died in the womb.”
NO CLAIM FOR DISTRESS: BROCK –v- NORTHAMPTON GENERAL HOSPITAL NHS TRUST
In Brock & Brock –v- Northampton General Hospital NHS Trust  EWHC 4244 (QB) the judge rejected a claim for “nervous shock” brought by parents who were alleging negligence on the part of two hospital trusts. One of the trusts (Birmingham) admitted negligence but denied causation. The judge found that:-
- The claimants’ case rested on events following a telephone call.
- The call itself could not give rise to liability.
- The grief and sense of loss that every parent will suffer when a child dies is insufficient to found liability. There has to be a traumatic experience akin to witnessing an accident.
- There was no such traumatic experience in this case.
- Although the parents but suffered psychiatric problems brought about by their daughter’s death this was insufficient to establish liability.
FINALLY: IF YOU HAVE A LIVING VICTIM OF CLINICAL NEGLIGENCE WHOSE DEATH IS ACCELERATED THING CAREFULLY BEFORE SETTLING THE CASE
The issue of damages to a living claimant whose death has been greatly accelerated due to negligence is one that is always particularly troubling. Be very wary of settling such cases. In particular be very aware that there is only one cause of action. If a living claimant settles their case for negligence it is not possible for that claimant’s estate to bring a later action for fatal accident damages following the death. This is precisely what happened in Thompson –v- Arnold  EWHC 1875 (QB). The claimant’s solicitor settled an action for a living claimant, the victim of clinical negligence. The solicitor was unaware that it was not possible to bring a second action after death. The defendant, well aware of the claimant’s solicitor’s mistaken belief, readily settled the action in the victim’s lifetime. The second action was struck out. The defendant had taken advantage of the claimant’s mistake but the conduct was not unconscionable.