Summary: The High Court has today handed down judgment in Marc Traylor and Kitanna Traylor v Kent and Medway NHS Social Care Partnership Trust, a clinical negligence case full of interesting legal issues including the application of the illegality doctrine, voluntary assumption of risk, contributory negligence and Human Rights Act claims.  Although the claims ultimately failed, the Claimants were successful on a number of the legal arguments, bringing some welcome clarity to the scope of the illegality defence, among other things. The basic facts are that on 9 February 2015, in the m ..read more

Today, 13 January 2022, the Court of Appeal handed down judgment in the long awaited nervous shock appeals in Paul v Wolverhampton, Polmear v. Royal Cornwall and Purchase v. Ahmed. The issue was whether a gap in time between the breach of duty and a subsequent shocking event prevents a nervous shock claim.   As the Court of Appeal recognised this is a particular problem in many clinical negligence claims.  In Paul the breach of duty was 14 months prior to Mr Paul’s sudden death whilst out shopping with his daughters on the streets of Wolverhampton. The Court of Appeal clearly w ..read more

The determination of life expectation in cerebral palsy litigation must always be driven by the expert evidence in the particular case.  What is set out below is an approach driven by the evidence received from experts in reported decisions, but – be warned – great care must always be taken to ensure that in each case the court has available to it up to date (i) literature and (ii) experienced clinical expert views specific to the particular claimant. The key High Court cases which have considered life expectancy in cerebral palsy cases are Whiten v  St George’s Healthcare NHS Trust ..read more

“Indivisible Injury” has more than one meaning so make sure you’re not at cross purposes with the judge The essential facts are that the Claimant had chest pain and needed angiography (an investigation of the blood vessels to the heart). He stopped warfarin (a long term anticoagulant) on 23 April, had the angiogram on 27 April and restarted warfarin on 29 April.  The next day he suffered an ischaemic stroke which has resulted in permanent and severe physical and cognitive disability. There was a dispute on breach of duty as to whether the total period for which warfarin was stopped shou ..read more

Am I the only one who thinks that the legal tests in clinical negligence are sometimes harder to understand than they should be ? The case law on my favourite topic – Bolam and other tests for breach of duty – is littered with confusion. And it strikes me that Material Contribution is too. The But For test is, thankfully, beautifully simple and easy to understand. But what if your experts can’t tell whether the outcome would probably have been avoided or the same and you have to use the causation test of Material Contribution ? The case of Davies v Frimley Health NHSFT 2021 EWHC 169 QB earlier ..read more

This is a strange read. The issue on appeal to the Supreme Court was: “If a child born with more than one disability would not have been born but for a doctor’s failure to advise of the risk of their being born with one of those disabilities, can the mother sue the doctor for the costs associated with all of the child’s disabilities, or only for the costs associated with the disability the doctor was consulted on?” The High Court’s answer was that a claim lies for all of the costs. That was reversed on appeal. The Supreme Court upheld the Court of Appeal. For the underlying facts, see the brie ..read more

A very common scenario in clinical negligence and personal injury claims is that the claimant’s negligent injury occurs on a background of pre-existing disability  – how does the court assess the damages for care in the claim? Examples of pre-existing disability in my own cases have included- Hydrocephalus; Spina bifida; Significant learning disability; Partial spinal cord injury at C5 resulting in tetraparesis. The cases of Sklair and Reaney give some guidance as to the correct approach ..read more

Summary: The Supreme Court in Ms Ecila Henderson v Dorset Healthcare University NHS Foundation Trust [2020] UKSC 43 (‘Henderson’) held that a claimant cannot recover damages in tort for losses that flow from their own criminal act. Where the claimant killed her mother and then claimed damages for losses related to her detention in hospital, the Supreme Court was guided by the principle of consistency in the law and held that the claim was precluded by the illegality doctrine. This Supreme Court judgment is worth reading for an interesting overview of the illegality doctrine and its c ..read more

There has been a revolution in genetic testing over the past decade. Technological advances have greatly increased the scope and use of testing. Testing is now faster and cheaper. This has meant that it has become easier to analyse a whole, or large sections of a genome in detail.[1] This innovation brings with it ethical challenges, most notably in terms of consent and disclosure to other family members who may be affected by information identified.[2]  These developments are beginning to ripple out to clinical negligence litigation. As they do, the courts will be asked to conduct a sens ..read more

The much-anticipated judgment in Swift v Carpenter [2020] EWCA Civ 1295 provided a neat and just approach to the valuation of capital costs in accommodation damages claims. Helpfully the Court of Appeal provided an easy to apply formula for accommodation claims where claimants have longer life expectancies thereby providing much needed litigation certainty – and also substantially reducing potential expert costs in future cases. Whilst the most usual type of claims were addressed, the Court could not provide answers to all of the more complex capital accommodation claims which may come before ..read more