Clinical Negligence Case Law

Audrey Burnett v Dr Lynch [2012] EWCA Civ 347 – [see full law report] GP appealed, to the Court of Appeal (CA), a judgment of a County Court Judge (HHJ Gosnell) on grounds of defective reasoning and wrong decision. The judge had found that the GP negligently failed to diagnose a breast lump (which turned out to be cancer). The GP had instead believed that it was a blocked milk duct. Held by CA: Judge had correctly assessed both side’s cases and made a proper determination on the issues. A judge did not have to deal with every point raised by Counsel. The case turned wholly on oral evidence. While the doctor’s recollection was truthful, that did not mean that it was accurate, and the claimant’s recollection of events was to be preferred. [DDS Commentary: As always, a good note of a clinical examination and doctor's reasoning may assist a doctor who is sued to show that they are accurate in their recollection.] (March 2012)

Rabone and Anor (Appellants) v Pennine Care Foundation Trust (Respondent) [2012] UKSC 2 [see full law report] – Informal patient allowed to go home in circumstances that no consultant psychiatrist should have allowed – patient committed suicide – Article 2 claim, separate from other negligence claim that had settled: Award of damages (“just satisfaction”) in the sum of £5,000 for the parents of the deceased. Article 2, both operational and general obligation owed to informal patients. When assessing whether there is a risk of suicide, the relevant mental health professional should determine whether there is a real and immediate risk of the patient committing suicide, which is present and continuing, and more than remote and fanciful.  The same degree of protection should be afforded to informal patients as that afforded to detained patients – detained under the Mental Health Act. [Inquests that examine the deaths of patients with mental health difficulties, where the deceased had been in a healthcare setting (or should have been in a healthcare setting), will now adopt an approach similar to that applied where a patient has been detained, to identify whether there has been a breach of Article 2 of the European Convention on Human Rights - which requires States to take procedural and other steps to protect life. Doctors are now much more likely to have to answer more detailed questions in both civil proceedings and at inquests, to demonstrate that that took all reasonable steps in the circumstances to protect life. A consequence of this case is that doctors may now become much more cautious about allowing a patient to have home leave. Patients may well find themselves having longer periods in psychiatric hosiptals, while the clinicians make their best judgement as to whether it is safe to allow a patient to have home leave, or to leave the hospital for periods of time without an excort. The Rabone case may also lead to a greater use of the formal powers to detain, where a patient seeks to leave the care facility. Local and national protcols will necessarily have to change as a consequence of this court judgement.] (February 2012)

Ludwig (by her mother) v (1) Oxford Radcliffe Hospitals NHS Trust (2) Gloucestershire Hospitals NHS Foundation Trust [2012] EWHC 96 (QB) – negligence of maternity and obstetrics staff – no causal link established. Cause of disability could be any unidentified pathogen. Even if the established errors (lost swab, results not passed to an obstetrician) had not been made, the care would have been the same. (February 2012)