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Monday, 17 November 2014

Is a surgeon negligent because he's having a bad day at the office?



How about a nice tricky legal question to start the week?

I have to confess that I am not at my best on Mondays. I wouldn’t say that I am in the Boomtown Rats league but it is not normally my favourite day! So let’s say I bump my car on the way home. And let’s say it isn’t clear whether or not it was my fault. Could the other driver say it must be my fault? Could he say that everyone knows I’m not at my best on Mondays, so that that must be taken into account?

In other words; to what extent can external factors influence a decision as to whether I have or haven’t been negligent? The answer might appear obvious but that very problem has exercised the Court of Appeal in a recent Medical Negligence case.

Mrs Laughton underwent a left hip replacement operation on 30th July 2007. The surgeon was Mr Shalaby. The operation was not a success. She needed a further operation about 18 months later. It was necessary for the second surgeon to re-attach the gluteus medius muscle to the trochanter bone. Mrs Laughton’s case was that Mr Shalaby had negligently failed to do this at the time of the original surgery.

The case went to trial and experts for each side had differing opinions. The expert for Mrs Laughton said that it was self evident that Mr Shalaby had not re-attached the muscle and therefore he was negligent. The expert for Mr Shalaby said that the muscle could have come away after the surgery, that this was a known complication and did not in itself indicate negligence. The judge preferred the evidence of the latter. He decided that there no negligence and Mrs Laughton lost. She appealed to the Court of Appeal.
 
At the appeal hearing an attempt was made to rely on extraneous factors. The surgeon had been made subject to conditions by the GMC. This was due to complaints about the standard of his surgery in other cases. He had also, allegedly assaulted a bus driver and been suspended from practice. It was suggested that all of those factors would have put him under stress and more likely to make a mistake.

This was dismissed by the Court of Appeal. Mr Shalaby should been open about these matters. But they made no difference to any assessment of the standard of surgery offered to this particular patient on this particular day. There was no evidence of any similar problems in other hip replacement operations carried out by Mr Shalaby.

Lord Justice Longmore said -

‘The fact that a doctor is under stress does not of itself mean that he is more likely than not to have been negligent on a particular occasion.

Those who are interested can see the full decision here –




This is a significant decision. It means that in a Medical Negligence case the court has to focus on the incident itself and cannot take into account unrelated factors in the absence of evidence of negligence. That doesn’t mean that the court will never consider other factors. If Mr Shalaby had a habit of failing to attach the gluteus muscle then that might be used against him. But a claimant cannot rely on unrelated factors to try and swing the pendulum their way.

All of which means that if I bump into your car tonight, you can’t say it’s my fault just because it’s Monday!


Thursday, 13 November 2014

The Courts v The State The next round!

I said last week that it was unthinkable that the state should be able to bring an action against its citizens and then deprive them of representation. That argument should be even stronger in cases where the state wrongly interferes with their liberty. But this has not stopped the current government from trying.

In 2013 legal aid was virtually wiped out in this country. In that small number of cases where it is still available it is very tightly restricted. Getting blood out of a stone comes to mind.

This was the problem faced by Sunita Sisangia who was wrongly detained by the police for over 13 hours. She was denied legal aid to bring an action against the police for false imprisonment. A Claimant can only get public funding for this type of case if they can show that the police have been guilty of a deliberate or dishonest abuse of power. The Legal Aid Agency ruled that this meant that there had to have been an element of malice. Simply to deprive somebody, wrongly, of their liberty was not enough.

This shocking decision has been overturned by the High Court which has ruled that she is entitled to legal aid. The Court held that protection from imprisonment is an important right. It was enough to show that the arrest was deliberate. No further 'abuse' was needed. 


This is further evidence of the increasing tension between the Judiciary and a Government which walks rough shod over the rule of law. What sort of state are we in? Is it a state where the police can wrongly arrest and detain somebody who then has no right to bring a claim for damages? That is the world of Kafka. It is not the world of a modern democracy.  This seems far removed from simply the saving of money. It seems to be an ideological attack on our civil liberties.

What is alarming is that the Minister of Justice wants to restrict the rights of citizens to Judicial Review.

Last week we saw the anger of the President of the Family Division where a person with learning difficulties was refused legal aid. I can see more and more of these occurring where judges – often accused of being out of touch – are left to protect our liberties.


I do not hold out much hope that the legal aid cuts will be reversed by whoever wins the next election. But we must at the very least protect the remnant from further attacks.



Tuesday, 4 November 2014

Concerning a heroic lawyer, an angry judge and washed hands!



In yesterday’s blog I mentioned the massive amounts of free work carried out by lawyers, and which barely gets a mention in the mainstream media.

There can be no greater example than the heroic efforts of Rebecca Stevens of Withy King, Solicitors. She has represented the parents of a child in adoption proceedings. It is a case where there are plans to place the child for adoption. Both parents have learning difficulties.  This is a case which is crying out for independent representation. Rebecca Stevens has been acting free of charge and it is estimated that she has done at least 100 hours of unpaid work. I cannot see the tabloid press queuing up to tell the world!

The case came before Mr. Justice Munby last week. He is the President of the Family Division of the High Court. He paid tribute to the remarkable efforts of Ms Stevens referring to her  

‘devotion to the client far above and far beyond the call of duty’

He then went on to deliver a judgment which should send shock waves through the Ministry of Justice. He said that the government has ‘washed its hands’ of the problem of ensuring that these parents are properly represented. 

“Thus far the state has simply washed its hands of the problem, leaving the solution to the problem which the state itself has created – for the state has brought the proceedings but declined all responsibility for ensuring that the parents are able to participate effectively in the proceedings it has brought – to the goodwill, the charity, of the legal profession.
This is, it might be thought, both unprincipled and unconscionable.’”

http://www.theguardian.com/law/2014/oct/31/government-washing-hands-legal-aid-chris-grayling

He said that it is unfair that representation is only available if a lawyer is willing to work for nothing. He has ordered that there be a hearing to decide who should fund the representation. He has invited the Justice Secretary, the Legal aid Agency, The Courts’ Service and the Local Authority all to attend to make representations.

In National Pro Bono week there cannot be a stronger example of the shocking state of Access to Justice in this country.  

The High Court’s most senior Family Judge has now said it – enough is enough. This cannot continue. It should be unthinkable that the state can bring a court action against citizens and then deprive them of representation.


Monday, 3 November 2014

Who needs Legal Aid when Lawyers do it for free???



My last blog touched upon the culture of blaming claimants and, particularly their lawyers, for pretty well everything. Politicians, government bodies, the media and insurers just love to dish it out in huge helpings.

One thing that hardly ever features in the news is the huge amount of free work done by lawyers in order to maintain some access to justice for ordinary people.

According to the Law Society Gazette, firms provide free or Pro bono work worth an average of about 3% of turnover of all firms - £601m. This is largely done by smaller firms or sole practitioners but large commercial firms also play their part.


Indeed, we are the start of National Pro bono week –


This sort of work can range from attending advice clinics in CABx or Law Centres to conducting heavy litigation at no cost to the client. These statistics will not include the hours of unrecorded free work by way of telephone advice etc. I have mentioned previously that up to 60% of lawyers have provided free advice at some time –



This barely merits a mention in mainstream media. Lawyers and Judges have also been seen walking through our major cities raising funds for agencies providing free legal assistance to support the stalwart work of North West Legal Support Trust and London Legal Support Trust.

The Legal Profession is doing as much as it can to plug the gaping hole in Access to Justice, caused by recent cuts to Legal Aid. But it cannot and should not be seen as the answer. There is a danger that politicians will see what the lawyers are doing for nothing and see that as a ‘job well done’. Why should the state fund Access to Justice if lawyers are doing it anyway? This is a real dilemma. If we do nothing people are left unrepresented. If we do something then the cuts will not be reversed.

Free work by lawyers can only do so much. It can never come close to replacing a properly funded legal aid scheme. It is no exaggeration to say that the advice sector is now a waste land. Agencies are closing by the day. Others are having to turn away all but the most urgent of cases.

Why should ordinary people with a genuine case have to find a lawyer who will do it for free? In what other profession would that sort of expectation exist? It is very disheartening that none of the major political parties have shown the slightest interest in reversing these cuts.
 
The profession will do what it can. But this can only scratch the surface.

It is time that the mainstream media and politicians took responsibility for an issue where there is desperate need even if there are few votes…




Wednesday, 29 October 2014

The tragic case of Mrs K and the real cause of medical disasters



In about October last year Mrs K had a heart attack at home. She was 40 years old and the mother of a young child. Paramedics arrived at her house and noted that she was not breathing. They attempted to ventilate her. There then followed a catalogue of errors. When she arrived at hospital it was discovered that the endotracheal tube was in the oesophagus. This meant that any oxygen was going into her abdomen and not into her lungs.

The shortage of oxygen caused her to suffer massive brain damage and she died a few days later. But for this mistake, she would probably have survived. An independent report found that wrong equipment had been used, no proper tests had been done to check that the oxygen was going to the lungs and that all but one of the paramedics, had not had clinical training for cardiac arrest management.

This was a tragic and avoidable death. I am currently dealing with the clinical negligence claim on behalf of the family. This is just one of many similar cases. It is almost two years since I posted my angriest blog of all, and the one which has had the most visits - by a mile.

http://thestevecornforthblog.blogspot.co.uk/2013/02/unashamed-rant-from-one-angry-lawyer.html

A recent report from the Public and Health Service Ombudsman makes for disturbing reading. This document reported in today’s Guardian reviews 161 incidents between April and June 2014.

In one case a male patient died of a heart attack whilst on holiday. Doctors were aware that he was at high risk if he was to fly, but failed to warn him. In another case a mother gave birth at home after a junior midwife wrongly advised her that she was not in labour and sent her home from hospital. Perhaps the most tragic case concerns a new born baby who suffered brain damage after a nurse and two doctors failed to properly carry out a blood transfusion.

The Ombudsman, Dame Julia Mellor talks of the ‘devastating impact’ that these failures have on peoples’ lives – people like Mr K and his young family.


In its annual report, earlier this year the NHS Litigation Authority reported an 18% increase in Clinical Negligence Claims between 2013 and 2014. In time honoured fashion they laid the blame at the door of lawyers acting for victims and their families –


The NHSLA might wish to read the Ombudsman’s report, or speak to the families of victims. If the government wishes to see a reduction in claims, they should focus their
efforts on reducing the numbers of avoidable catastrophes. Ensuring resources are available for essential training seems to be a good staring point.

What is not acceptable is to blame the victims. Mr K has done nothing wrong. Why should he, and others, be made to think that the NHS is short of money because of him or his legal advisers? 

I hope that the Ombudsman's comments will see the start of a shift from passing the blame to victims to addressing the true causes of a serious problem.






Saturday, 25 October 2014

My Top 5 Legal Blogs

This blog is just over two and a half years old.

One great benefit has been the discovery of other legal blogs which have become an important resourse both for my writing and for the day job!

So here are my top 5 blawgs, in the style of Strictly Come Dancing, they are in ‘no particular order’!

I have included a link to their websites and also the twitter ID which is a great way to receive updates to their regular blogs.

Civil Litigation Brief


@CivilLitTweet

Gordon Exall is a busy barrister from Leeds. How he finds the time to produce this remarkable blog beggars belief. It is probably the most comprehensive collection of articles and links in relation to Civil Practice and procedure. If I need to check a tricky procedural point I will look here before anything else – including the White Book. In particular it has been a good friend through the traumas of Mitchell, Dental and Relief from Sanctions.

A quick visit now will take you to articles about Indemnity Costs against Funders, Solicitors’ Retainers and of course, relief from sanctions.

For any Civil Litigator it is a worth the visit at the start of each day.

Kerry Underwood


@kerry_underwood

Kerry has been around for a few years, writing and speaking on law and procedure. The first time I came across him followed the introduction of Conditional Fees with his book – No Win No Fee No Worries. This was in the days before ‘No Win No Fee’ lawyer became a favourite tabloid insult!

This very detailed blog deals with most areas of civil litigation but with a particularly emphasis on funding issues. He writes as he speaks – direct, provocative and pulling no punches. Kerry is happy to respond to comments and questions. He is currently touring the country speaking on Jackson. So how he manages to keep this up to date is a mystery. But then he does support QPR which explains many things!

Go there now and the top post discusses the impact of The Criminal Judtice and Courts Bill and the impact of ‘fundamental dishonesty.’



Legal Cheek


@legalcheek

Legal Work can be stressful, laborious and often unrewarding. There is no better antidote than a visit to this great, irreverent site.

The Legal Cheek team take neither themselves not the law too seriously. A visit to the site today includes a review of the movie The Judge – ‘pissing all over legal accuracy’, a look at this week’s episode of The Apprentice, with a focus on lawyer Felipe and the problems faced by a US Lawyer who took her baby to court. Some of it is hilarious and some of it is very serious, particularly in relation to the hurdles faced by anyone starting off in the law. I was drawn to one headline – ‘Become a Lawyer because you are passionate about it, not to please your parents.’ Hmm if I had read that 40 years ago!

Law and Lawyers – Obiter J


@obiterJ

This blog looks at serious issues of legal and constitutional importance, with a strong emphasis on Human Rights. There has been a lot of talk about the Human Rights Act in the last few weeks. It seems to have become the target of a Conservative Party which needs to more euro sceptic than UKIP. Obiter J provides a detailed explanation of the importance of the Act.

I was particularly touched by the link to a reflection on the 1966 Aber Fan disaster. I was 11 years old at the time and still remember the tragedy as being the first time the time that I shocked and upset by official incompetence. These were children of about my age.




The Justice Gap


@justicegap

Any regular reader of my blog will know about my worries about Access to Justice for all. For anyone with a similar concern, or who just wants to find out more, this is the place to go.

A strong team of experienced and committed writers keep producing provocative and challenging material. This week, there was an article from Michael Mansfield QC on the case of Tony Stock – A Massive Blot on the Judicial Landscape. Hands up if you nothing about this case. Well you should go to The Justice Gap now. Not only will you learn something, you will want to add your voice to those who want to see this terrible miscarriage of justice overturned.



So there we have it. They are the 5 blogs that I visit almost on a daily basis. There are many others including - http://legalchap.blogspot.co.uk/  http://ilegal.org.uk/ and



Reading blogs has certainly overtaken the reading of law books for keeping up to date about what is happening in the world of law and lawyers. They will not replace the classic publications. But they are accessible, readable and up to date – often to the minute!

Wednesday, 15 October 2014

Mr Downton's unfortunate joke and modern freedom of speech

Back in the 1890s Mr Downton decided to play a joke on Mrs Wilkinson. He told her that her husband had been seriously injured in an accident and that she needed to go to him urgently. She suffered psychological damage – no surprise there! Mr Downton’s conduct was found to be outrageous and to be the cause of her harm or distress. Mrs Wilkinson succeeded in her claim for damages because –

  • He had willfully done the act causing injury,
  • There was no doubt that the act would cause distress and
  • He must therefore have intended this outcome.

This all sounds like the interesting basis of a University exam question. But the case of Wilkinson v Downton has been at the heart of a major decision of the Court of Appeal this week. It concerns the publication of a book.

Mr. A has written about his experience of childhood sexual abuse. That is nothing new. Many similar books have appeared in recent years and they have become a important encouragement for victims to come forward. They have also enabled the authors to articulate the horrors of their experience and have contributed greatly to the public understanding of what used to be hidden pain. Surely books like this should be encouraged.

But the spanner in the works is that Mr A’s own son suffers from Aspergers Syndrome, ADHD and other medical conditions. There is expert evidence that if the son was to read the book, it could have a massive effect on his mental health. It seems that Mr A and his ex-wife had agreed that they would try to prevent the son becoming aware of events in their lives which could have a detrimental effect. It was the ex-wife who brought these proceedings for an injunction, to prevent publication.


The issue before the Court of Appeal was whether there was any legal basis to even ask for publication to be blocked. There was no claim in negligence as a parent does not owe a child any duty of care in these circumstances. There was no law to prevent Mr A from publishing private information about himself. The Court of Appeal clearly had major concerns and felt that there should be a full hearing. So Mr Downton’s unfortunate joke came to the rescue.

Arden LJ said that the case of Wilkinson v Downton applied. 

Publication of the book is a deliberate act. It is highly likely to harm Mr A’s son. She described this as an obscure tort, but a tort none the less. So publication has been blocked for now, pending a full hearing.

This case raises an issue of great interest to us all. Where is the line between freedom of speech and the protection from harm? Any restriction on freedom of expression must be a concern. The facts of this case of unusual. But could the principle be used in relation to anybody who is likely to be traumatised by somebody else’s work. All that has been decided so far is that there is a right to ask for an injunction. Publication has been stopped for the time being. The final hearing will be watched across the world.

This case also demonstrates the power of our common law system. We do not have all of our laws written down in one place. Courts can look back at decisions made in the past – however distant – and use the legal thinking in a creative way to seek remedies to modern issues.

For those who are interested the full decision is here –