Gregg v Scott (2005)

English Medical Law

The Doctor by Sir Luke Fildes
‘The Doctor’ by Sir Luke Fildes

Loss of chance, the balance of probabilities, and legislative reform become the focus of discussion in a matter bearing the superficial hallmarks of a linear tort claim, but that upon closer inspection, was approached in all the wrong ways.

Having consulted his local GP with concerns over a swollen lump beneath his armpit, the appellant was told that it represented little more than a lipoma (soft fatty lumps), and that no further investigation was needed, however a year later the appellant relocated before presenting the same symptoms to his new doctor, who despite reaching  a similar conclusion, took the step of referring him to submit a biopsy for examination.

Upon inspection of the sample it was quickly established that far from being harmless, the appellant was in fact suffering from Anaplastic Lymphoma Kinase Negative, the more aggressive of two types of non-Hodgkin’s lymphoma, in which the typical prognosis for this complex form of cancer offered a life expectancy of little more than ten years following successful observation and established treatment.

Unfortunately due to the protracted period between diagnoses, the appellant had missed any opportunity to undergo preliminary and less invasive therapies, while the infection had since spread across his chest, resulting in increased pain and suffering and an inability to continue working or have any reasonable quality of daily life without a constant fear of death.

When seeking remedy for the negligent breach of his original doctor, the appellant argued that while his initial chances of a relapse-free ten years were estimated as resting between forty-two to forty-five percent, the abject failure to properly diagnose or even refer the appellant for examination had reduced that figure to around twenty-five percent, along with the increased levels of pain and discomfort suffered during the time between healthcare professionals.

Relying upon the maxim ‘damages are the gist of negligence’ the appellant adopted an unorthodox approach to damages based upon his loss of chance of recovery, as opposed to a straightforward claim for full damages in direct relation to the injurious nature of the tumour growth and accompanying pain, while arguing that had the disease been correctly identified it might not perhaps have occurred.

Using expert testimony and statistical data to contest the degree to which the appellant was entitled to damages, the first court held that there was inconclusive evidence to suggest that a delay in diagnosis would have made any lasting impact upon the progression of the cancer, and so no greater an outcome could be found to exist besides than the one faced by the appellant during trial.

Upon challenge the Court of Appeal upheld the previous judgment, and so it was presented to the House of Lords, who examined the facts surrounding Hotson v East Berkshire Area Health Authority, wherein the House had been able to distinguish the nature of this particular medical error, and thereby evaluate the argument that the grievousness of miscalculation around terminal illness ought not to rely upon the balance of probabilities, but should instead rest upon any dramatic reduction in life expectancy when such an oversight was avoidable through proper conduct and the rigorous application of research. 

By close scrutiny of the statistical data the House further noted that despite the forecasted levels of survival, the patient had since confounded the figures through his continued lifespan in the aftermath of intense chemotherapy, which by extension defeated his theory that had the treatment been undertaken earlier he would have been alive longer than expected, and so dismissed the appeal while explaining that:

“Doctors do not cause the presenting disease. If they negligently fail to diagnose and treat it, it is not enough to show that a claimant’s disease has got worse during the period of delay. It has to be shown that treating it earlier would have prevented that happening, at least for the time being.”

ANH, Sterilisation, IVF and Patient Confidentiality within English Medical Law

Academia

Medical Law
Image: ‘Sterile Processing’ by Khara Oxier

ANH, Sterilisation, IVF and Patient Confidentiality within English Medical Law

Chester v Afshar (2004)

English Medical Law

Chester v Afshar
‘No Full Disclosure’ by Robert Burridge

‘But for’ causation and the principles of tort, while reminiscent of criminal procedure, can fall foul to policy loopholes when a duty of care is involved. In this matter, the actions (or inactions) of a neurosurgeon left a patient paralysed and angry after full disclosure had not been established prior to her operation.

After suffering for a number of years with lower back pain, the respondent had reached the point that regular injections were no longer of relief, and had now given serious thought to surgical intervention, despite long standing fears around the field of operative medicine. Having consulted her rheumatologist at length, she was confidently advised to procure the services of a Harley Street practitioner with a solid reputation for the proposed kind of operation.

The recommended procedure involved delicate removal of a number of vertebrae that would by extension, bring an end to her pain, but not without associated risks inherent to the work. Upon her first visit with the appellant, the two individuals took time to discuss the course of action, along with the known side-effects and possible nerve damage. Having consented to undergo the surgery, the respondent was treated a few days following the meeting; after which her recovery was less positive than had been anticipated, and which had in fact left the respondent immobile and diagnosed with cauda equina syndrome.

Having sought damages for what the respondent considered to be negligence through a breach of duty to inform her of the known (and well documented) risks associated with the operation, the first judge found that in order to reach a balanced decision, it was important to address both the breach of duty to fully disclose, and the liability for the subsequent injury arising from the procedure. On this occasion, and relying upon the evidence presented, the court took time to debate the principal function of causation, in which the defendant is not required to establish exemption, but that the claimant must take the necessary steps to demonstrate how their breach caused either injury or loss, and that where adherence to policy and procedure had occurred, the results would have prevented any need for legal remedy.

With judgment found in favour of the respondent in the first hearing, the surgeon moved to appeal, before finding his challenge dismissed for the same reasons. It was then after granting permission to appeal to the House of Lords, that the finer details of causation and right to damages became of greater significance.

While the discussion revolved around similar medical cases applying tortious doctrines of causality, the named risk attached to lumbar stenosis removal ran within a very narrow margin of around one to two percent, and it had been proven as well as agreed, that irrespective of the performing surgeon, the potential for the syndrome remained equally viable. This translated that a lack of absolute disclosure by the appellant, while disconcerting in the immediate sense, could not be held as contributory to the injurious outcome experienced by the respondent.

However, the division between the House was such that enough case material had amassed to instigate a reconsideration of the logic of causality; and that when embracing the autonomous rights of the patient, it was simply unethical to allow minimal disclosure and a weakness of causative proximity to remove access to knowledge, which on this occasion might have led to alternative solutions to pain and discomfort. By then mindfully broadening the duty of care principle, the judges found (by a similarly narrow margin) in favour of the respondent and awarded accordingly, while holding that:

“In modern law medical paternalism no longer rules and a patient has a prima facie right to be informed by a surgeon of a small, but well established, risk of serious injury as a result of surgery.”

 

R (C) v Berkshire Primary Care Trust (2011)

English Medical Law

R(C) v Berkshire Primary Care Trust
‘The Danish Girl’ by Gerda Wegener

Psychological dependence upon a surgical procedure to establish a definite sense of identity, lies within the heart of this matter when a transgender patient experiences disappointment with the outcome of hormone treatment and seeks remedy from the National Health Service (NHS).

Having experienced a life of emotional turmoil and unrelenting conflict with the gender nature afforded him, a man takes the steps required to adjust his gender to that of a woman, inasmuch as reassignment procedures will allow. While not yet at the point of invasive surgery, the appellant elected to follow course of therapy that by its own methodology, would increase his existing breast tissue to that of an average woman; thereby removing any fears that members of society would, on a superficial level, ever confuse him with a man.

At the conclusion of the programme, the appellant was left with only a minimal increase in tissue growth, and the inadequacy felt lingered to the point of mild depression and disillusionment with both himself and the future. Following consultation with his consultant psychiatrist, his case was put forward to the relevant Primary Care Trust, in the hope that both the poor outcome of the biological intervention and the circumstantial criteria of the Gender Dysphoria and Cosmetic Breast Surgery Policies would allow funding for breast augmentation (augmentation mammoplasty) to redress the balance.

Having had prior experience of transgender applications for the mammoplasty, and in the knowledge that current policy considers the procedure to be low priority, the Primary Care Trust conducted independent research to establish if there was sufficient data to support the claim that breast augmentation was important enough to have a positive impact upon a patient’s life and mental health, in claims where such surgical adjustments are compellingly argued.

Despite previous case discussions around the subject, the results of the investigative report concluded that there remained insufficient justification to amend the policy, and so unless in the case of extreme symptoms, the funding could not be provided, and that the patients would need to seek their own source of revenue. When first refused, and in consideration of two complaints to the Health Commission, the second application failed again, before a request for judicial review was presented. On this occasion, the application for review was dismissed, before the appellant moved to argue for funding on grounds of human rights violations and discrimination.

Citing art.8 of the Human Rights Act 1998 (right to respect for private and family life) and art.14 (prohibition of discrimination), it was contested that denial of surgery was a breach of that right, and constituted excessive demands for an emotionally distressed transgender to suffer beyond that of an equally unhappy natural woman when determining eligibility for funding; and that such distinction resulted in nothing less than discrimination between the two types of patient.

Having evaluated the history behind the matter, and the recent investigatory methods used by the NHS, it was concluded that great attention had been placed upon the equality of a patients emotional well-being, and that unilateral guidelines were exacting enough to determine when funding was appropriate. This decision was supported in the decisory notes, which read that any patient seeking to obtain funding for policy procedures must demonstrate (i) that the patient’s case constitutes exceptional circumstances, (ii) that there is evidence of significant health benefit from the requested treatment, and (iii) there is evidence of the intervention improving health status.

On this occasion, the court quickly agreed that despite evidence of ‘chronic mild to moderate distress’ conveyed by the patient’s doctor, there was simply nothing to suggest that his situation was any more exceptional than a patient denied the resources, or that his symptoms were similar to those qualifying, transgender or otherwise, thus the court upheld the claim dismissal while also holding that:

“[G]ender and clinical needs are both relevant characteristics. Their aetiology is relevant diagnostically, but what are more critically relevant are the ethical and clinical judgments of the PCT, provided these do not transgress the law.”

R (Condliff) v North Staffordshire Primary Care Trust (2011)

English Medical Law

R (Condliff) v North Staffordshire Primary Care Trust
‘Daniel Lambert’ by Unknown Artist

Accusations of human rights violations and irrationality of policy, lay behind this failed judicial review hearing, after the denied care trust funding of laparoscopic gastric surgery upon a morbidly obese patient.

While often difficult to draw absolute clarity from NHS guidelines and framework policies, the matter dealt with on this occasion stemmed from a number of misapplications, breakdowns in communication, and unwillingness to pursue a claim through the accorded channels.

As may, or may not be common knowledge to many, it is operationally agreed that the associated Primary Care Trusts (PCT’s) of the United Kingdom are given the freedoms to set (within reason) their own thresholds and qualifying criteria for certain procedures, one of which includes preventative gastric surgeries to patients seen as most in need.

Unfortunately on this occasion, the patients BMI fell short of the required level, despite neighbouring counties demonstrating more lenient grading for the same treatment. Subsequently, when his application for an individual funding request was refused on grounds that his condition failed to meet the prescribed eligibility, the call for judicial review commenced.

Resting upon four reasons for review, the claimant cited (i) that the policy guidelines set by the issuing body were discriminatory in that they precluded social factors relevant to a claim for exclusivity,  (ii) that as a result of such prohibition, art.8 of the Human Rights Act 1998  (right to respect for private and family life) was in contravention, (iii) that the same breach impacted upon art.6 of the HRA (right to a fair trial), and (iv) that the conclusive argument against funding, lacked clarity enough to satisfy the patient and acting representatives.

Upon closer examination of the facts, it was agreed that while no interferences of human rights could be seen to exist in art.8, the resulting decision of art.6 would have remained the same regardless, while this position was supported by the observation that social factors were immaterial when deciding the award of funds, and that the prerequisite medical evidence for exception was balanced enough to remain within the two articles presented.

In closing, it was also found that the written opinion of the key adjudicating panel consultant was determinable enough to uphold their decision to reject the application, and that in light of those collective arguments, a judicial review could not stand, while the court held that:

“[P]rovided that it acts rationally, a PCT may set policies allocating medical resources and treatments even though the effect thereof is that some people will be denied treatment from which they would undoubtedly benefit.”

R (Rogers) v Swindon NHS Primary Care Trust (2006)

English Medical Law

 

R (Rogers) v Swindon NHS Primary Care Trust
‘In the Pink!’ by Shelley Ashkowski

Irrationality and subsequent weakness of policy become the key ingredients of this appeal case between an individual and local NHS trust when a breast cancer patient is diagnosed with a particular form of metastasis and the consultant responsible for their treatment prescribes a medicine that while proven to significantly prevent the progression of this specific virus, is a brand still yet to undergo full inclusion within the regulatory core of acceptable National Health Service medicines.

After the patient volunteered to self-fund her course of treatment, the spiralling costs quickly proved overwhelming, at which point she applied to her regional Primary Care Trust to request funding (an action not frowned upon in certain circumstances).

When the trust refused to provide any financial assistance on grounds that the drug used was not officially recognised and therefore subject to certain qualifying criteria, the appellant sought to challenge the refusal through judicial review, citing an inherent failure to properly establish sound reasons for non-funding, despite statistical supportive evidence, first-hand testimony and a general position of endorsement by the Secretary of State for Health.

When examined in the Court of Appeal, the emerging facts showed a lack of collective agreement as to exactly why funding for this specific treatment would be prohibited, along with an erring of caution to offer those funds. However this proved a baseless hesitation when held against the ‘ethical over monetary’ line taken by the Health Secretary (and regulatory bodies) and their drive for swift inclusion of this new weapon in the fight against breast cancer.

Upon ruling in favour of the patient, it was advised by the Court that far from being in any position to ‘rubber stamp’ the uninterrupted sponsoring of the appellant’s course of treatment, it was left to the Primary Care Trust and ruling bodies to further refine their criteria for approved patient administration in order that future prescriptions would avoid undue objections during the uptake of other medicines, while holding that:

“People have equal rights of access to health care, but there may be times when some categories of care are given priority in order to address health inequalities in the community.”

R (Watts) v Bedford Primary Care Trust and Secretary of State for Health (2006)

English Medical Law

R (Watts) v Bedford Primary Care Trust and Secretary of State for Health
‘Arthritic Hands’ by Tim Benson

Finally decided within the European Court Of Justice (COJ), this protracted and game-changing case determines well the principle of unreasonableness, whether individually or in this instance, as exercised through the actions (or inactions) of the National Health System (NHS) of Great Britain.

When diagnosed as having severe osteoarthritis in both hips, an elderly lady was duly assigned a slot in a typically lengthy waiting list, on the provision that her operation would at least begin inside a twelve-month period, and that no other adjustments could be made under the existing policy framework.

Clearly distressed and left in constant pain, the patient took it upon herself to request a permission form that could enable her to seek medical treatment in another EU Member State at cost to herself, before claiming back those costs under the umbrella of art.49 of the EC.

When authorisation for her application was refused on the grounds that the inherently free infrastructure of the NHS prevented such claims as a matter of course, the applicant went ahead and secured an operation in France regardless of the setback.

During the period between the successful operation and her application for authorisation, the patient’s condition worsened to the degree that her consultant elevated her need for surgery, an action that reduced the waiting time from twelve months to three to four months. Unfortunately, this still rendered her unable the receive the care (and ultimately adequate pain relief) she needed, and so her paid surgery went ahead two months before any provisional opening was made available to her in the UK.

When pursuing the right to seek judicial review in order to recoup her costs under her individual EU rights, the High Court dismissed her claim under constitutional grounds, while her subsequent appeal against such immediate objection escalated matters to the Appeal Court, who themselves referred it to the COJ.

There, after much scrutiny and comparison with similar EU cases, the Court held that any refund issued in respect of treatment sought in another Member State did not contravene s.152(5) of the EC, which provides that:

“Community action in the field of public health shall fully respect the responsibilities of the member states for the organisation and delivery of health services and medical care.”

And furthermore, any excuse offered with regard to waiting times and the limitations of such healthcare provision failed to satisfy the individual rights offered under art.49 of the EC, while also holding that:

“[T]he special nature of certain services does not remove them from the ambit of the fundamental principle of free movement.”

H v Associated Newspapers Ltd and N (A Health Authority) (2002)

English Medical Law

H (A Healthcare Worker) v Associated Newspapers Ltd and N (A Health Authority)
‘HIV Aids’ by Judy Seidman

Balancing the need to protect individual privacy against those of public interest is both difficult and often painful for the party that loses, and so when a healthcare worker retired through ill-health, it was later discovered that HIV infection was the primary cause for their departure.

On this occasion the employer followed procedural rules during the ending of the relationship, but later found themselves torn between performing an obligatory ‘look back’ exercise that required contact with former patients assigned the retiree’s care when carrying our their duties while assisting with the request that the former healthcare worker’s privacy be respected (the former element was still uncertain due to a change of guidelines and therefore such actions may have proven unnecessary pending the revised policy).

However the escalating factor in this appeal case was the knowledge that while the infected worker was contractually obliged to submit the medical records of those treated under the NHS, a reasonable percentage of the remaining patients were seen privately, and thus liable for protection against disclosure under the Data Protection Act 1998.

Shortly after the ‘look back’ request was made, the former employee secured a court order preventing any publication of patient records that might allow for disclosure of the infected party on grounds of unlawfulness and a fundamental right to individual privacy.

After a newspaper learned of the matter, it published an article on grounds of public interest while breaching a previously issued restraining order, and aware that disclosure of the health authority at least would soon allow readers to make educated guesses as to the identity of the infected party.

This led to action being taken against the newspaper on the footing that the previously published article had indirectly disclosed the identity of the healthcare worker through disclosure of the gagging order and the subject to which it applied.

There were of course a number of other factors that required diligence from the courts, but the essence of the argument also addressed very sensitive and fear-laden concerns that threatened disproportionate cost implications upon the State, along with a risk of flagrant sensationalism.

On this occasion, the court ruled that until such time as the new guidelines were issued, the newspaper must reduce the identities of both the employer and employee to initials so as to allow the nature of the matter to become publicly accessible while concealing the names of the two parties involved, while holding that:

“[I]f healthcare workers are not to be discouraged from reporting that they are HIV positive, it is essential that all possible steps are taken to preserve the confidentiality of such reports.”