Medical Negligence Litigation Pitfalls (And How To Avoid Them)

This text of this presentation is reproduced with the kind permission of Mr Liam McCollum QC. The presentation was originally made to the AVMA Lawyers Support Group Meeting which took place in Belfast on Tuesday 19 June 2007

Introduction
Medical Negligence litigation is one area of personal injury work which, if not increasing, is at least, not contracting. For a Plaintiff’s practitioner it can be a very rewarding experience. It is the classical David/Goliath struggle. The lone patient takes on the might of the medical profession backed by the considerable administrative manpower and resources of the hospital trusts. The Plaintiff’s representative takes on the case, knowing from the start, that it is an uneven battle. There is no doubt that the Defendants in medical Negligence actions are formidable opponents but there is no need to feel inferior on behalf of the Plaintiffs nor is there any reason for fear. The secret to medical Negligence litigation is hard work and preparation. If these two principles are adhered to, then the Plaintiff will generally be in a better position for a trial than the Defendant. In managing a medical Negligence action to trial, the solicitor and barrister should try to avoid the many pitfalls which can impede and at times fatally impair the Plaintiff’s chances of success.

The First Steps
Instructions
The first step in any litigation is the receipt of instructions from the client. It is more important than ever to ensure that a full set of instructions is taken in a medical Negligence case. The purpose of the first statement from a prospective Plaintiff is primarily threefold; firstly, to screen the case, secondly to target the right hospital/doctor and thirdly, to provide sufficient information for pre-proceedings discovery. These instructions should not only focus on the events giving rise to the medical complaint. They should include investigation into the Plaintiff’s working and family life and also as much pre-medical history as possible. Any discussions which took place between the Plaintiff and the doctors involved should be recorded in detail. It is vital that the Plaintiff provides full details of every doctor attended and every hospital or clinic which was visited. Furthermore, the solicitor should find out whether any formal complaint has been made.

There are many problems which can arise if the instructions are not properly taken. Some examples are as follows:

Suing the wrong Defendant.
Obtaining insufficient medical notes and records. For example, the solicitor can miss vital test results because the instructions do not inform the solicitor of the formal investigations which were carried out.
Failing to secure full Discovery. For example, there could be statements taken from doctors and nurses which are missed because instructions are no detailed enough.
Failing to obtain previous medical notes and records which could have a significant bearing on the case.
I emphasise these but some of the problems which can arise and the importance of taking full instructions cannot be over-stated.

Funding
The issue of funding should be addressed at the earliest opportunity. The lack of funding can be a very serious disadvantage to a Plaintiff in a medical Negligence action. If the case is a very strong one, then the issue of funding is not so important. If, however, there are meaningful issues on either causation or liability, a Plaintiff may well be forced to compromise more than he or she ought to because of the costs’ implications. It is vital therefore to consider funding as soon as possible. There are four possible sources or funding apart from private funding.

• Legal aid.
• Trade Unions.
• Insurance cover, under a house insurance or other policy.
• Independent litigation insurance.

You should consider all of these options with your client in an attempt to obtain funding if at all possible. Even if the case looks watertight, funding should be maintained. The Defence is always capable of pulling a rabbit out of a hat at the last moment which can bring pressure to bear to settle on terms which would otherwise not seem attractive if there is funding available.

Value
At an early stage, the case value should be assessed. This will give some idea as to the amount of time and resources the office can justifiably give to the case. For example, if the case is of a very high potential, it is very likely to involve a greater workload. You might have to consider involving more than one solicitor in the firm to deal with such a case. If it has a very low value, you might have to consider whether it is worthwhile pursuing at all and whether it would ever be cost effective to prosecute. It is important to have a broad idea of the case value before embarking on litigation. Furthermore, the value of the case could have implications from the point of view of case funding.

Pre-proceeding Preparation
Discovery
If time limits permit, and I will deal with that in a little more detail below, full pre-proceedings disclosure must be obtained. There are many pitfalls which can occur at this stage which can affect the future conduct of the litigation. The Discovery can be unknowingly incomplete. There can be a tendency to think disclosure is confined to medical notes and records. In fact, disclosure should include all notes and records, all notes of relevant meetings, all documents relating to any previous similar incidents, all test and investigation results, any statements by doctors or nurses in relation to the incident, any documents relating to complaints and any documents relating to internal investigations. The way to avoid pitfalls in this regard is fivefold:

Ensure you have taken full instructions.
Thoroughly read the Discovery provided.
Insist on inspection of the original records and documents. It is essential that copy notes and records are compared with the original notes and records to ensure that full discovery of the factual information is obtained. In practice this means that you should request that a copy of the notes and records be available at the same time as the inspection of the notes and records takes place.
Ask for transcripts of any notes and records which are illegible.
Have a general check list of documents and make specific requests of the proposed Defendant in relation to anything you think should be disclosed.

Independent Review
In conjunction with any pre-proceedings Discovery application, if the case is sufficiently serious, you should ask for an independent review of the case. Before one can avail of an independent review, the internal complaints procedure must be exhausted. All trusts operate a complaints procedure. Whilst the procedure is in many cases unsatisfactory and will often not lead to a vindication of a client’s complaint, it does often produce information which would not otherwise be available. It is unlikely in trivial or very modest value cases that such a review would be undertaken. If it is a serious injury/complication or a death, then a review will take place if requested. The Review Council is appointed by the Health and Social Services Board and is an entirely independent Review Tribunal. They take their role very seriously and are extremely hard-hitting in their criticism of medical treatment. This sort of review can be of tremendous value to a Plaintiff’s practitioner. It can give a real insight into the likely outcome of litigation. Generally its documents, including statements from the Defence witnesses, will be obtainable on behalf of the Plaintiff prior to the litigation. This will, of course, pre-warn the Plaintiff of the likely Defence put forward in any litigation. It can also throw up issues which hitherto were unknown to the Plaintiff. An example of that is a case in which I was involved. The Plaintiff had sought plastic surgery on her nose. She was extremely unhappy with the result. She sought legal advice and the case she put forward was that the surgery had been negligently carried out. Coincidentally, an independent review concluded the surgery was adequately carried out but the Plaintiff ought to have been psychiatrically assessed before the surgery. She therefore had a genuine and meritorious case but on entirely different grounds from the complaint which she had made to the solicitor. This type of review can also inform the solicitor about the type of medical expert who is needed in the particular circumstances of any case.

Opinion
In the first instance, armed with your instructions and Discovery, an opinion should be sought from a medical expert. Unfortunately, it is still the case in Northern Ireland that the expert should be from outside the jurisdiction. Identifying the correct medical expert or experts is obviously important. Very often it will be obvious. If it is an obstetric case then an expert in obstetrics will be needed. If it is an orthopaedic case, an expert in orthopaedics will be needed. It is not always as straightforward. For example, something may go wrong in the course of the operation. There may be no immediate identification of the cause. A number of different areas of expertise may be needed which may include physicians, surgeons, anaesthetics and pharmacology. If any review has been held, this may help you. You should also consider at an early stage whether causation is likely to be an issue and obtain a causation report if it appears necessary. Often, you will get advice from your liability expert about what other reports will be necessary. It is important the expert has access to all the relevant notes and records and other documents and you should liaise with him or her to ensure you are both satisfied all relevant documents are available. If all documents have not been made available and it is missed, it can have drastic consequences. It is not known for a document to be produced on the morning of trial which completely undermines the point of view expressed by the Plaintiff’s expert. When the late disclosure is challenged, the Defendant points to the original notes and records which were always available for inspection and points out that the document could have been copied at any time. It is probably useful to emphasise that all tests and investigation results are vital in this regard and they are often overlooked. When instructing the expert to prepare a report in any particular case, it is not enough simply to dispatch notes and records to the expert with a brief letter of instruction. The solicitor must understand the chronology of the treatment recorded in the medical notes and records. The medical notes and records and other documentation should be paginated. If appropriate scans or films should also accompany the medical notes and records.

It is important that neither you nor your expert takes the notes and records and test results at face value. You must ask your expert to consider whether the commentary on X-rays, CAT scans, etc, is accurate. The interpretation of such tests is often controversial. One can find oneself relying on a seemingly favourable interpretation of a radiological scan within the notes which turns out to be entirely contradicted by the Defence medical opinion. This indeed is what led to the controversy in the Algie case in which the Defence relied on a radiological opinion which was at completely at odds with the interpretation which the notes and records. This of course took the Plaintiff entirely by surprise at the trial which then had to be adjourned. So, if the test results are likely to be important, do not taken them at face value and ask your experts if some independent opinion on those results would be beneficial for the prosecution of the case. The greatest pitfall of all in medical Negligence action is taking things for granted.

When requesting an expert to prepare an independent opinion in a case of clinical negligence, it is the solicitor’s responsibility to ensure that the expert explains succinctly in the report the conclusion reached and the grounds for that view. An expert should be requested to refer to appropriate texts and learned articles in support of the conclusion. Corroborative independent information can often be of vital importance in determining liability. If the expert refers to parts of the anatomy in the course of the report, the expert should be requested to provide diagrams and recognised medical drawings. Complex medical terminology should be explained.

If the medical report or reports give grounds for believing that the case may be meritorious, Counsel should be briefed for his advices and draft proceedings if appropriate. What I have said about preparation and care about reading papers, applies equally to Counsel of course. If satisfied that there is a reasonable case, Counsel’s main role at this stage should be second-guessing what the Defence might be so all avenues of investigation can be explored.

Our host this afternoon, AVMA, provides an excellent service if help is needed in identifying or retaining the appropriate medical expert.

Statute of Limitations
This is always a difficult area in medical Negligence. Often the instructions are not received until close to or after the expiry of the primary limitation period. The date of knowledge is therefore relied upon by Plaintiffs’ practitioners to try to overcome the statute of limitations Defence. One has to be very cautious about this. The date of knowledge is not the date of actually knowledge of medical Negligence but the date when the Plaintiff ought reasonably to have had knowledge of the facts giving rise to the cause of action. This is determined by when it is considered reasonable that the Plaintiff ought to have obtained independent legal and medical advice. So, if the Plaintiff, without justification, has not sought advice for two years nine months, then that time will run against him or her.

There are two ways of protecting the Plaintiff’s position. One is to issue a protective writ. This has its drawbacks because the writ must be served within twelve months of issue. It does not give very much time to prepare. I am reliably informed the average time between receipt of instructions and receipt of a medical liability report, is in the region of twelve to eighteen months. The preferred option is to get the Defendant’s agreement that the limitation point will not be taken if the delay is not excessive.

This is attractive from the Defendant’s point of view because Defendants do not want proceedings issued against hospitals and doctors if there is no merit to them. Often they will agree to this course. It is always a difficult question as to when the statute of limitations can pose a difficulty. It is a matter of applying one’s good judgement and commonsense to any given set of circumstances. If in doubt, the views of Counsel should be sought.

Trial
The secret in medical Negligence practice is to follow the steps which I have emphasised above in relation to pre-proceedings preparation. If these steps are properly followed, then the trial process itself should be a smooth process (Famous last words). There are four areas in relation to trial preparation that deserve close attention. The pleadings, special damage, consultation and properly prepared trial bundles.

The Pleadings
This is obviously the responsibility of Counsel but the pleadings should be as clear and accurate as possible. It is important that they are reviewed after each medical report is received and after any consultation. You do not want the Defence to be able to take the case out of the list at the last moment because of a pleading deficiency. It is not enough simply for the solicitor to receive the draft pleading from Counsel and direct same to the other party’s representatives. It is incumbent upon the solicitor to critically review the contends of the pleading to ensure the accuracy of the document.

Special Damage
This is an area of great irritation to the Queen’s Bench judges. How often has the Queen’s Bench judge expressed disapproval about the late itemisation of claims for special damage and the late pleading of such claims. It is important that fully instructions are taken about such matters as early as possible and that they are fully set out in the pleadings at the appropriate stage. The solicitors should ensure that all potential elements of special damage are claimed. The main, but not exhaustive, areas of special damage are as follows: (a) medical expenses; (b) services; (c) equipment; (d) earnings; (e) travel expenses; (f) care. In high value cases, a special damage consultation/conference will often be required to ensure consistency between the experts in respect of what is being claimed. Thus for example, if nursing care forms part of the Plaintiff’s case, the nursing care report should be disclosed to the medical expert retained to provide an opinion in respect of condition and prognosis. There is nothing more damaging to a Plaintiff’s claim if heads of damage advanced on behalf of a Plaintiff are undermined by the Plaintiff’s own witnesses in the course of the evidence.

Usually in larger cases, all of these items are set out in an accountant’s report but not every case merits the involvement of a forensic accountant.

Consultation
A pre-trial consultation with your medical experts is now an imperative in a medical Negligence action. This is where many of the pitfalls which can arise at the trial can be avoided. It is important that the solicitor and Counsel fully brief themselves before any such consultation. They should also fully consider all of the potential issues which might arise in the case. They should ask their medical expert to provide any relevant medical literature in advance of the consultation. This is the opportune time to test the strengths and weaknesses of their experts’ evidence. Well-directed questions can expose serious weaknesses in an otherwise seemingly watertight case. We have all had experiences of medical experts who have expressed a view on paper which has fallen apart during the pre-trial consultation on the morning of trial. The early consultation helps the legal advisers to identify the real strengths and weaknesses of the case. It also enables the medical experts to focus on the potential defences which might be offered on behalf of the hospitals or doctors.

In terms of the timing of the said pre-trial consultation, ideally such a consultation should take place as early in the litigation process as is possible. Whilst it often the case that a pre-trial consultation would be organised on the eve of a hearing, Solicitors, Counsel and Experts are recommended to consult much earlier in the proceedings. An ideal time for such a consultation to take place is after the preliminary liability report has been obtained. Often such a consultation can be arranged in advance of the provision of a direction of proofs. It is too late, on the eve of the hearing, to identify outstanding issues.

Other interrogatories can be of considerable value in medical Negligence actions. In determining the type of questions which one might like to pose to the Defence, the medical experts can be extremely helpful. This is another issue which should be addressed at the consultation.

Trial Bundles
It is a laborious and thankless task but the preparation of properly indexed and paginated trial bundles is of extreme benefit to those presenting the case in Court. More importantly, significant you will definitely endear yourself to the trial judge. In terms of organising the documents for trial ensure that all bundles are absolutely accurate, clear and consistent in pagination and indexation. All medical notes should be made available and should be accompanied by any drawings provided by the experts on either side which clarify the medical opinion. A separate bundle of medical literature upon which the experts seek to rely should also be provided. The literature should be page numbered and indexed.

The Great Debate
Should trial by ambush be replaced by the disclosure procedures followed in England and Wales and the Republic of Ireland? This is of course a significant difference between England and the Republic of Ireland because in the Republic of Ireland the reports do not form part of the Court papers. Would a change in practice be of benefit to Plaintiff’s practitioners in this area of law? This is the question, which I am opening to the floor for debate.