CLINICAL NEGLIGENCE SUCCESS: LIABIITY FOR DOWN’S SYNDROME ARISING OUT OF SYSTEM FAILURE FOR ORGANISING URGENT APPOINMENTS FOR A COMBINED TEST AND INDEMNITY COSTS FOR FAILING TO MAKE AN OFFER AT A JSM
EAXB v. University Hospitals of Leicester NHS Trust: 4-8th November 2019 and 6th January 2020
This is a decision of the High Court where the Claimant was successful in a number of respects in establishing liability for the Defendant’s failure to identify that the Claimant was carrying a fetus with a high risk of Down’s Syndrome and ultimately having a child with Down’s Syndrome.
The matter proceeded upon the basis of a determination of liability only in which the Claimant was successful.
The case is also important in that the Claimant secured indemnity costs upon three bases. Firstly, and most importantly, that at a Joint Settlement Meeting (JSM) between the parties the Defendant took the position of making no offers and the Claimant successfully argued that such an approach was entirely inappropriate. Secondly, the Defendant made a late application introducing further statistics; the Claimant’s position was that she would accede to the application as she was concerned that the Court might be concerned that it had not seen extensive new statistical material which the Defendant sought to introduce but which the Claimant would contend would not substantiate the defence. As the application was made very late, the same formed the basis of an indemnity costs order. Thirdly, that this was an all or nothing case, the Claimant had made a Part 36 offer of 80% of liability which the Claimant beat by establishing liability in full.
The judgement has not previously been circulated as the Defendant was seeking to appeal to the Court of Appeal; permission to appeal has now been refused by the Court of Appeal.
The brief facts were that as a result of various failings of the Defendant the Claimant was not offered an urgent appointment for combined test (CT) to be undertaken and as a consequence the Claimant missed the window for such a test.
Although the Claimant subsequently underwent a quadruple test (QT), such a test was nearly but not quite as sensitive as a CT test and in the Claimant’s case did not identify that she was at a high risk. It was accepted that on a balance of probabilities if she had a CT then that would have indicated a high risk of Down’s Syndrome.
The Judge reminded herself that a Court needed to be cautious when considering a clinical system, particularly as here a system for providing a CT but nevertheless the failings of the Defendant were such in this case that she concluded that the system was illogical, inadequate and did not make appropriate provision for organising an urgent appointment for someone such as the Claimant.
It is clear that organising systems for healthcare and prioritising appointments is challenging and there are limited resources; nevertheless, it is not the case that they are not open to challenge and a Claimant can, as happened in this case, demonstrate that a particular system was inadequate and illogically organised – in dealing with system cases, there needs to be particularly careful consideration to the expert evidence and in the present case the Claimant had thoroughly covered the position.
An additional point of interest in this case was the second basis upon which the Claimant eventually succeeded in her claim which was that a ventricular septal defect (VSD) should have been suspected at routine anomaly scanning. If it had been suspected then even though the Claimant could not ultimately prove that that VSD was actually ever present, the Claimant nevertheless succeeded in the claim as that suspicion would have resulted in further investigations which would have resulted in either the Claimant not wishing to take any further risk on her carrying a fetus with Down’s Syndrome or opting to have a termination or the fact that she was carrying a fetus with Down’s Syndrome would actually have been identified.
It was important to distinguish this situation with Penney v. East Kent Health Authority  EWCA Civ 3005, where it was held that if no abnormality was actually present then the Claimant could not succeed in the context of cervical screening. The important distinction in the present case was that the breach of duty at the routine anomaly scanning was that the breach was failing to suspect that a VSD may be present but not that it could be diagnosed and such suspicion would trigger further investigations.
As for the awarding of indemnity costs, the most important aspect is the fact that indemnity costs were ordered against the Defendant for failing to make any offer to the Claimant. The JSM had in fact been instigated by the Defendant (although that was not the basis for such a decision). Arguments advanced by the Defendant that in the light of the Claimant’s position the parties were too far apart were not considered to be sufficient to make no offer at all.
Many clinical negligence practitioners will have experienced the situation where, at a JSM, the position has been taken of making no meaningful concessions at all; such JSMs are a waste of time, trouble and money