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Alder Hey Children’s NHS Foundation Trust agreed to pay £27m after a young boy suffered life-changing injuries in 2009 because it failed to diagnose that he was suffering from the HSV virus when he was admitted at the age of 17 months with a seizure.

He sustained catastrophic brain injuries, leading to profound impairments, and intractable epilepsy.

Proceedings were commenced in October 2018 and the trust admitted breach of duty. Subject to one contested point – that the boy would have suffered mild residual cognitive deficit and epilepsy in any event – it also admitted causation of loss and damage.

The questions of quantum, including the contested point, were listed for a 10-day trial due to start on 1 November 2021. However, the case settled two working days before and the agreement has now been approved by Mr Justice Fordham.

His barrister, Bill Braithwaite QC of Exchange Chambers, said: “While it is a relief for the family that this claim settled, it is unacceptable that they were kept waiting and worrying until only two days before their claim was due to start in court.

“There was ample opportunity for NHS Resolution, which is supposed to be keen on resolving claims, to grasp the nettle and admit that Alder Hey’s repeated negligence had caused catastrophic injury to an innocent baby and his family.

“The pressure on parents of children with severe brain injury, particularly as the child get older, larger and more difficult to manage, is immense, and in this case it went on for years.”

An NHS Resolution spokesman said: “At NHS Resolution, our aim is to reach the right decision as quickly as we can. We never intend to cause any harmed patient or their families’ distress or anxiety through the claims process.

“This is a tragic case where the family have provided substantial support to their child. The case was complex and required substantial expert evidence to assess the child’s ongoing needs and for the parties to reach agreement on the settlement.

“We hope the settlement provides the family with certainty for the future.”

NHS Resolution criticised for settlement delay

A leading QC has criticised NHS Resolution for “unacceptable” delays in settling one of the largest ever settlements in a clinical negligence case.

16 Nov 2021

Data from NHS Digital, which manages the register, implies that around 8500 women across England and Scotland have not been added to the register after they were fitted with an implant last year.

The register was recommended as a result of the breast implant scandal which saw some women fitted with faulty implants.

It records the details of every person who has breast implant surgery in case of a product recall or another safety concern.

But the latest figures suggest that many are being missed off the register and NHS Digital has asked women undergoing such treatment to ensure their surgeon has registered their details.

The figures show that operations on 10,500 people were recorded in 2020.

But officials have estimated this represents around 55% of the total number of cases.

This means that approximately 8485 people were not added.

PIP Scandal

The Breast and Cosmetic Implant Registry was launched in October 2016.

PIP (Poly Implant Prostheses) implants were withdrawn from the UK market in 2010 after it was found they had been filled with non-medical grade silicone intended for use in mattresses.

Estimates suggest that as many as 47,000 women in the UK have been fitted with the implants but the exact figure is not known.

A UK Government-ordered report in June 2012 found the implants were made from an unauthorised silicone filler and ruptured at twice the rate of other implants.

It was recommended that a national registry be created so that faulty implants could be efficiently tracked if products turn out to be faulty.

Since it was set up, around 60,000 breast implant patients have been added to the register.

Lee Martin, NHS breast surgeon and chairman of the Breast and Cosmetic Implant Registry steering group, said: "It is pleasing to see that the number of submissions to the registry has increased steadily over the past 5 years and now includes information from almost 60,000 patients.

"We want all patients, past and present, to be aware that the registry exists and ensure they are included by speaking to their surgeons.

"As a surgeon, I know first-hand the importance of patient information being included on the registry, it's crucial in providing good patient care and provides patients with assurance that they will be followed up with if there are issues with their breast implants in the future."

This article contains information from PA Media.

Thousands missed from breast implant registry

Thousands of women are being missed off the breast implant registry, new figures suggest.

10 Nov 2021

Hospitals are not learning from their mistakes in part because of time-consuming clinical negligence litigation, former health secretary Jeremy Hunt MP has claimed.

Hunt, now the chair of the House of Commons health and social care committee, said England and Wales should follow the likes of Sweden by taking negligence out of the equation altogether and paying compensation much sooner after the harm has been caused.

Speaking during a webinar hosted by national firm Irwin Mitchell last week, Hunt said the current adversarial system potentially causes serious harm to hundreds of babies every year because necessary changes are taking years to be implemented.

Hunt said: ‘[In Sweden] When a child is born severely disabled they are able to access compensation without having to get a court to agree there was clinical negligence… You get that compensation as long as the clinicians agree there was a mistake made [but] they don’t have to accept there was clinical negligence.’

Hunt said families were understandably desperate to get compensation because of the huge financial burden of bringing up a severely disabled child, but they are told the only way to get that compensation is by proving clinical negligence, which necessitates lawyers’ involvement. ‘For the most difficult cases it can take easily five years – that is five years when people are fighting in the courts rather than using the knowledge from that.’

Hunt’s committee has already urged the government to end the adversarial system. There continues to be speculation that the government is preparing to reform the sector.

While ministers consider legislating to encourage more cooperation and fewer cases coming to court, it would appear that the lawyers involved in clinical negligence cases are already collaborating more since the pandemic and the introduction of a new protocol for handling cases.

Jasmine Armstrong, partner with defendant firm Weightmans, told the webinar there had been a ‘culture shift’ with both parties sharing a common goal to secure earlier resolution. She added that one way of extending this could be for claimant and defendant lawyers to consider jointly instructing one expert.

‘There is a strong cohort of experts that we tend to instruct and they are well regarded and could be used for joint instruction whether dealing with liability or quantum,’ said Armstrong. ‘There is an opportunity to share evidence early. If one party has a really robust independent expert report or a really strong witness statement there would be an advantage to disclosing it early.’

Reforming clinical negligence claims could prevent infant deaths

Hospitals are not learning from their mistakes, in part, because of time-consuming clinical negligence litigation.

9 Nov 2021

ncertainty today surrounded another significant presence in the claims sector amid reports of a second collapse in the space of a week.

Employees of Pure Legal, based in Liverpool, have posted on Twitter and LinkedIn that the firm has gone into administration and that they are seeking work. The announcement was said to be made to staff on Tuesday lunchtime, with redundancies across the board.

The firm itself, which employs 200 people, has yet to make any public statement and there has been no confirmation from Companies House that administrators have been appointed.

But a recorded message on the Pure Legal phone number tells clients that their files are being transferred to another firm, and that the business is being managed for now by Recovery First, which specialises in transferring claims from firms that can no longer handle them.

Tina Flanagan, group HR manager at the firm, posted on LinkedIn that Pure had been forced into administration and staff all made redundant. She added: ‘It was just awful to see so many people’s lives turned upside down. It was an absolute pleasure to work for such amazing people and the board worked night and day to save the business and for that I thank you all.’

It is understood that Novitas Loans, a provider of loans for legal proceedings, petitioned Pure Legal for bankruptcy last month.

A spokesperson for the company told the Gazette: ‘Novitas’ primary aim is to act in the best interests of our customers who have claims being managed by Pure Legal Limited. Our priority is to ensure that our customers are receiving the highest quality of service and care. We cannot comment further on ongoing legal proceedings.’

Pure Legal is an alternative business structure that is part of the Pure Business Group. It is unclear what effect – if any – the closure of the law firm would have on the wider group. The company is owned by Phil Hodgkinson, a former director at Slater and Gordon and Compass Costs. He is also chairman of Huddersfield Town Football Club.

The most recent annual accounts for Pure Legal Limited, covering the year to 30 March, show that while turnover increase 24% to £18.1m, profit before tax fell by 24% to £3.6m. Creditors were owed £37m within one year, compared with £24m a year earlier, and the company had outstanding loans and overdrafts valued at £21m.

Pure Business Group sold York-based Pryers Solicitors earlier this year, resulting in the transfer of 70 lawyers and support staff. Pure Legal, which was once mostly reliant on personal injury claims, had moved away from that work and handled negligent wall insulation claims, mortgage mis-selling, housing disrepair and data breaches.

A week ago, it was confirmed that Liverpool firm Hampson Hughes had gone into administration, with Recovery First enagaged in finding alternative providers for ongoing work.

Second claimant Law firm goes bust in two weeks

Staff say goodbye as another claims firm reported to have gone bust

3 Nov 2021

Sandra Campbell, admitted in 1998, misappropriated £164,264 from Client A – which remains unpaid – and then misled the Solicitors Regulation Authority and a High Court judge about her purported attempts to transfer the funds, the Solicitors Disciplinary Tribunal found today.

Campbell, whose Mayfair firm Campbell & Co Solicitors was closed by the Solicitors Regulation Authority in February, also misappropriated the entirety of Client B’s £17,000 settlement of a medical negligence claim, a sum which has since been paid out of the Compensation Fund.

She did not attend the hearing and was not represented. 

Michael Collis, for the SRA, told the tribunal that Campbell ‘misled both clients as to the fact that those sums were going to be paid and then misled both the SRA and, so far as Client A is concerned, the [High] Court’.

He said Campbell was instructed by Client A in April 2020 in relation to the sale of a property, which was completed that August. £540,000 was transferred into the client account, £6,736 of which represented the firm’s fees and disbursements. Campbell paid Client A’s 'son and duly-appointed agent, Mr A' around £369,000 over the course of September 2020, which left ‘an outstanding balance to Client A of £164,264’, Collis said. However, ‘by 30 September 2020, the date of the last payment, there was only £4,678.52 left in the client account’. 

After Client A applied for a freezing injunction last October, Campbell ‘wrote directly to the court’ claiming that ‘the reason that [the sums] had not been paid was because of practical difficulties in instructing the bank’, the tribunal heard.

Collis said, however, that only £5.16 remained in the client account at that time and Campbell ‘must have known’ that there were insufficient funds to pay the sums owed to Client A.

Client B was ‘traumatised by the medical negligence that gave rise to the personal injury award in the first place’, Collis said, and the misappropriation of her settlement had caused her ‘ongoing stress and anxiety’.

All the allegations against Campbell were found proven and she was struck off the roll 'effective today'.

Chair Edward Nally said: 'The tribunal were very offended by this case and the respondent's behaviour. We feel that the harm that has been occasioned by the conduct we have found proved was extreme.

'The treatment of two lay clients was extraordinarily bad and we believe that, coupled with misleading and deception on the part of the respondent towards the clients themselves, the regulator and the court, was frankly quite extraordinary.'

Campbell was also ordered to pay £25,114.40 in costs, although the tribunal heard that the SRA would likely be in a 'line of creditors seeking to recover funds from the respondent' as a bankruptcy order was made against her in March.

Solicitor struck off for misappropriating £164,264 and lied to the SRA

A solicitor who misappropriated more than £150,000 from the sale of a client’s property and then lied to the regulator and the High Court about her ability to repay the funds was today struck off the roll.

10 Oct 2021

In a judgment handed down on 1 October 2021, Hill Dickinson LLP secured a third-party costs order against Dr Mercier, who had acted as an expert witness for the Claimant. He is now required to pay £50,543.85, representing the costs that were incurred as a consequence of his advice. 

Synopsis
Dr Mercier, a general dental practitioner, accepted instructions to act for the Claimant in a case concerning treatment provided by a maxillofacial surgeon; specifically an extraction performed under general anaesthetic. 

At trial, Dr Mercier conceded that he did not have any experience of performing an extraction under general anaesthetic over the last 20 years, had no experience of consenting a patient for extraction under general anaesthetic and that he was not as well placed as the Defendant’s expert witness (a consultant maxillofacial surgeon) to comment on the case. The Claimant discontinued her claim during the trial, following Dr Mercier’s evidence.

In her judgment, Ms Recorder Hudson concluded that “but for Dr Mercier’s report, this claim would not have been brought”. She felt that he had shown a flagrant disregard for his duties to the Court and that he did so from the outset in preparing a report on a subject matter in which he had no expertise. She rejected submissions on his behalf that the Defendant Trust could in any way be criticised for having failed to take action itself to bring the point to the attention of Dr Mercier, his legal advisers, or the Court before trial. 

Relevance
This judgment is the second significant third-party costs order made against an expert in clinical negligence litigation. It ought to serve as a further warning to experts that they must report strictly within their own area of expertise, both in terms of specialty and also having regard to their contemporaneous practice. 

It also highlights that the duty of an expert cannot be delegated either to their instructing solicitor, or to the representatives of the other party in the litigation. 

Mr Giles Colin of 1COR was instructed for the NHS Trust.

Claimant expert has costs order against him

[Robinson -v- (1) An NHS Trust and (2) Dr Mercier]

6 Oct 2021

MANCHESTER—World-renowned oncologist Justin Stebbing has been found guilty of providing inappropriate treatment to terminally-ill cancer patients, some who were just days from death.

A long-running medical tribunal, which began in January 2020, handed down its verdict today after he was accused of failing to provide good clinical care to 12 patients.

Prof Stebbing, who'd already admitted 30 of the 36 charges, was found guilty on three charges with three others not fully proved.

The decision will cause serious damage to his reputation and send shockwaves through the UK oncology community and the wider medical world.

International Reputation

Prof Stebbing - nicknamed 'God' because of his pioneering work - is a cancer medicine and oncology professor at Imperial College London and has a private practice in Harley Street.

A MPTS (Medical Practitioners Tribunal Service) tribunal heard of his "international reputation" for innovative cancer treatment, which has led to wealthy patients from around the globe turning to him in the hope of extending their lives.

They've included New Zealand multi-millionaire Sir Douglas Myers and the actor Lynda Bellingham.

But the charges, most of which he initially denied, included inappropriately treating patients given their advanced cancer or poor prognosis, overstating life expectancy and benefits of chemotherapy, and continuing to treat patients who failed to respond or were close to death.

Other charges concerned his failure to gain informed consent by not discussing the risks and benefits of treatment with patients and failing to maintain proper records.

Complainants in the case included Leaders in Oncology Care (LOC), a specialist cancer treatment centre which is part of private healthcare provider HCA Healthcare UK, BUPA and AXA PPP (now AXA Health) insurers, although Prof Stebbing faced no accusations that his actions were financially-motivated.

Oncologist guilty of inappropriate treatment

Leading Oncologist Guilty of Providing Inappropriate Treatment: MPTS

5 Oct 2021

Research by the Institute for Public Policy Research estimated 19,500 people who should have been diagnosed had not been, because of missed referrals.

If hospitals could achieve a 5% increase in the number of treatments over pre-pandemic levels, it would take until 2033 to clear the backlog.

But if 15% more could be completed, backlogs could be cleared by next year.

Too late

Increasing activity levels would require more cash for new equipment and more staff, however.

And all this is dependent on those who have not come forward for checks seeking help.

Between March 2020 and February 2021, the number of referrals to see a specialist dropped by nearly 370,000 on the year before, a fall of 15%.

Behind these figures are thousands of people for whom it will now be too late to cure their cancer, the report, with the CF health consultancy, warns.

And it estimates the proportion of cancers diagnosed while they are still highly curable - classed as stage one and two - has fallen from 44% before to pandemic to 41%.

'Poses risks'

IPPR research fellow Dr Parth Patel said: "The pandemic has severely disrupted cancer services in England, undoing years of progress in improving cancer survival rates.

"Now, the health service faces an enormous backlog of care, that threatens to disrupt services for well over a decade.

"We know every delay poses risks to patients' chances of survival.

"Clearing the cancer care backlog before the next general election looks unlikely with the way the NHS is currently resourced, staffed and organised."

Decade to clear cancer backlog

It could take more than a decade to clear the cancer-treatment backlog in England, a report suggests.

23 Sept 2021

Alison Mutch, senior coroner for Greater Manchester South, said important information missed in telephone appointments may have been acted on if they were seen in person. Ms Mutch has asked Health Secretary Sajid Javid and NHS England to take action to tackle risks associated with remote appointments, a Health Service Journal investigation found.

One woman, Fadhia Seguleh, who had phone call appointments with her GP about her anxiety and depression, killed herself in her own home on Feb 25. The coroner said the lack of access to her doctor in person made it harder to assess her needs.

The deaths of three other people, who died from a fatal blood clot in the lung, undiagnosed Covid and a drug overdose, were also the subject of Ms Mutch's concerns. A fifth patient, an elderly man with severe underlying health conditions, died after breaking a bone that was not spotted by hospital doctors and his GP in a phone call consultation.

It comes amid previous concerns that moving away from in-person appointments can lead to missed diagnoses.

One of the deaths involved Maurice Leech, who died on April 30 last year in Thorncliffe Grange Nursing Home in Manchester after A&E doctors and his GP during a virtual appointment failed to realise he had broken his femur during a virtual appointment.

He was admitted to hospital after an accidental fall and medics did not given the correct x-ray. In another case, Steven Allen died on Oct 26 in his Stockport home after taking a fatal level of prescribed medicine. He had a history of drug addiction and was prescribed medicines including strong painkiller oxycodone through a consultation with his GP that happened via a phone call as a result of Covid.

The other deaths of concern to Ms Mutch involved Stanislaw Zielinski, who died on June 2 from cardiac arrest and a blocked blood vessel in his lung, after he had been hospitalised after falling out of his window.

Mr Zielinski, who was suffering from insomnia and anxiety, told his GP of his mental state one year earlier, but his appointments were limited to phone calls because of the pandemic. Brian Mottram, meanwhile, died in Tameside on Nov 16 from undiagnosed Covid after feeling unwell for a week. Two days before he was found unresponsive, Mr Mottram had a phone appointment with his GP.

Ms Mutch sent five reports to health authorities - including local trusts, Health Secretary Sajid Javid and NHS England - asking them to take action, according to the Health Service Journal.

Earlier this month The Telegraph revealed almost 1,000 GP practices have been ordered to improve patient access, amid growing concern about the number of patients struggling to see a family doctor.

Remote GP calls may have contributed to five deaths says Manchester Coroner

Remote GP appointments may have been a contributing factor in the deaths of five people who did not see their doctor face to face, a coroner has concluded.

9 Sept 2021

Prof Sikora, who's been giving evidence for the Defence, was forced to consult lawyers when the tribunal was dramatically halted on Friday after he said he'd obtained summaries relating to three patients by "ways and means" from undisclosed sources.

It led Sharon Beattie QC, for the GMC, to raise concerns about the truthfulness of his testimony and his involvement as a witness and the tribunal today heard that he could "put himself at risk of investigation" if he continued to give evidence.

That was due to "inconsistencies" in documents he'd since provided to the tribunal, but Prof Sikora told panel chair Hassan Khan that he was satisfied with the legal advice he'd received and wanted to continue.

Inappropriate Treatment

Prof Stebbing, a cancer medicine and oncology professor at Imperial College London with a private practice in Harley Street, is appearing before a Medical Practitioners Tribunal Service (MPTS) fitness to practice hearing and is accused of failing to provide good clinical care to 12 patients between March 2014 and March 2017.

He faces 36 charges - 21 of which he's admitted - which include allegations that he inappropriately treated patients given their advanced cancer or poor prognosis, overstated life expectancy and the benefits of chemotherapy, and continued to treat patients when it was futile and they had just weeks to live.

Prof Sikora told the tribunal that his original account of how he'd obtained the patient records was incorrect and he'd "completely forgotten" about the involvement of lawyers who'd provided him with documents.

The summaries he'd referred to actually related to four patients - not three - and had been written by himself, he said.

He accepted this was a "completely different" version of events, which had happened more than 4 years ago, and blamed a "lapse of memory".

UPDATE 08.09.21

MANCHESTER—Leading oncologist Professor Justin Stebbing may have sent inappropriate messages to a vulnerable patient out of "kindness" and to "jolly her along" knowing her prognosis was poor, a medical tribunal heard.

Prof Stebbing, who's appearing before a Medical Practitioners Tribunal Service (MPTS) fitness-to-practice hearing, has admitted failing to maintain an appropriate degree of professional distance with the woman, known as Patient E.

The 47-year-old woman, who'd been diagnosed with rare ampullary cancer that spread to her liver, was treated by Prof Stebbing between November 2016 and July 2016.

The tribunal previously heard how they exchanged "flirtatious" messages, and he referred to her as LMT - or 'Little Miss Trouble'.

Many of messages were accompanied with kisses, "love to LMT" or "good LMT". 

Not Wise
Cancer expert Professor Karol Sikora, who's appearing as a Defence witness and is honorary professor of professional practice at The University of Buckingham, was questioned about the messages by Sharon Beattie, QC for the GMC.

He agreed with Ms. Beattie when she said he "would haul them over the coals" if any of his foundation level doctors engaged in similar behavior.

Prof Sikora said Patient E was "vulnerable" but also "manipulative" and commenting on the messages, he said:

"In a sense this was kindness, to keep it going towards the end."

"It's not wise to do it, I'll be the first to admit," he continued.

"But I've done it myself, now and again. Patients are all individual, if that's her way of expressing her feelings, as long as it doesn't go to anything else.

"As long as it doesn't involve a relationship a few emails with a few kisses on them probably doesn't do anyone any harm in the modern world."

Ms. Beattie said he didn't seem to accept that the messages were inappropriate.

Prof Sikora replied that he did agree they were inappropriate but Prof Stebbing had been dealing with a dying and "very demanding" patient and he'd been "jollying her along".

Ms. Beattie accused Professor Sikora of avoiding any criticism on Prof Stebbing's actions in a report to the tribunal but he claimed it was a "technical issue" that wasn't his area of expertise.

Patient D
Prof Stebbing, a cancer medicine and oncology professor at Imperial College London with a private practice in Harley Street, is accused of failing to provide good clinical care to 12 patients between March 2014 and March 2017.

He faces 36 charges - 21 of which he's admitted - which include allegations that he inappropriately treated patients given their advanced cancer or poor prognosis, overstated life expectancy and the benefits of chemotherapy and continued to treat patients when it was futile and they had just weeks to live.

Earlier, the tribunal heard about another patient who was treated by Prof Stebbing, a 44-year-old woman known only as Patient D who'd been diagnosed with breast cancer which then spread to her liver and bones.

Although she'd had previous NHS treatment, by April 2016 her condition had deteriorated and medics at The Christie hospital in Manchester decided it would be inappropriate to carry on treatment.

Prof Stebbing then attempted to obtain private funding from the Grand Masonic Lodge so he could prescribe chemotherapy but his request was turned down.

Nevertheless, he went ahead with the treatment, with her father then having to pay the £3000 bill, but she died 2 days later.

Prof Stebbing is accused of failing to obtain informed consent for the chemotherapy and "inadequately" communicating to Patient D and her family the funding position for treatment.

Ms. Beattie said there had been a clear "failure of communication" by Prof Stebbing who knew "there was a problem" with funding as a letter he sent to the Grand Masonic Lodge 3 days before the chemotherapy indicated it hadn't been authorised.

Prof Sikora said the Grand Masonic Lodge may have contacted the patient directly and the job of the doctor was to "make sure the patient understands where you're progressing to".

He said if he'd written the letter he would have "imagined in the circumstances that there was a good chance of funding being provided in the circumstances."

This prompted an intervention from MPTS panel chair Hassan Khan who said it was clear there was no funding in place prior to treatment and Prof Stebbing "surely" should have informed the patient that was the case.

"That would be wise," said Prof Sikora.

"You would expect the oncologist [to do it] or even a junior member of staff or secretary to phone up and say they haven't got approval."

Risks and Benefits
Ms. Beattie said Prof Stebbing's letter had claimed medics at The Christie "seemed to be taking an enormously long time" to make a decision on treatment, which wasn't correct, and he'd failed to check with the hospital.

Prof Stebbing is also accused of failing to discuss the risks and benefits of not having chemotherapy with the patient and failing to appropriately communicate the rationale for treatment and her likely prognosis.

Ms. Beattie said these discussions "could not be underestimated" in Patient D's case given she'd had extensive previous treatment, the progression of her cancer and her "bleak" prognosis.

She said the patient had the option of a "comfortable and dignified departure" and that should have been "spelled out" to her.

 But Prof Sikora argued that the patient had wanted to continue active treatment and there was a chance she could have got better and Ms. Beattie was using a "retrospectocope" to look at the patient's outcome.

Ms. Beattie said when doctors were faced with patients "who didn't want to hear the news" they had a responsibility to do so.

"If you remove hope, you do it at your own peril," Prof Sikora replied.

But he admitted a conversation should take place before a joint decision was taken whether to go ahead with treatment.

Ms. Beattie said there was a "slim or negligible" benefit from the chemotherapy prescribed by Prof Stebbing.

But Prof Sikora claimed there had been a "significant" chance of response to treatment - around 30% in his estimation - although Ms. Beattie described his opinion as a "gut instinct" because it wasn't based on any medical evidence.

The hearing is continuing.

Expert Witness gives "misleading" evidence in an Oncologists tribunal

MANCHESTER—Cancer expert Professor Karol Sikora has blamed "confusion" and his poor memory for providing "misleading" information to the medical tribunal involving leading oncologist Professor Justin Stebbing.

6 Sept 2021

JOHN Hector Bolam was running out of options in the summer of 1954. He had been suffering from depression for more than a decade and now voluntarily admitted himself to the Friern Psychiatric Hospital in London. What happened to him there would have consequences for medical practice both in the UK and around the world, and would define the law on negligence for decades to come.

Bolam was born in County Durham at the very start of the 20th century. Unfortunately, this meant that he belonged to the generation that found itself of age to fight in both World Wars.

During the Second World War, he had been commissioned in the Royal Engineers, but because of his depression was invalided out of service in 1942. His mental health did not improve, and in 1954 he attempted suicide and was admitted for the first time to Friern Hospital. He is reported to have made a good recovery with rest, was discharged and returned to work as a car salesman in London. However, only six weeks later he relapsed and found himself again in need of in-patient care at Friern. On this admission, he was examined by a consultant psychiatrist attached to the hospital and a course of electro-convulsive therapy (ECT) was recommended.

Treatment risks
Mr Bolam was asked to sign a consent form for the procedure, which he duly did, and his first treatment was uneventful. However, during his second treatment, which was administered by a senior registrar in the hospital, Bolam suffered serious injuries. ECT is designed to induce a seizure in the hope that this will provide relief from major psychiatric illness. During the procedure, Mr Bolam was supine with a pillow placed under his back and his chin supported, and a gag in his mouth. Otherwise, he was unrestrained, although a male nurse stood on each side in case he should fall from the couch. Importantly, no anaesthesia or muscle relaxants were administered prior to his treatment. This form of ECT is known as unmodified and even in the 1950s was falling out of favour.

During this second course of ECT, Mr Bolam sustained severe physical injuries as a result of the induced seizure. He dislocated both hip joints with bilateral fractures of the pelvis, which were caused by the head of the femur on each side being driven through the acetabula of the pelvis.

As a result of his injuries, Mr Bolam took legal action and sued the hospital management for damages. He claimed that the hospital had been negligent in allowing the doctor to perform ECT without first administering a muscle relaxant or providing appropriate restraints. He further contended that the doctor had failed to warn him of the risk of fractures during the procedure, which although small was well-recognised, especially as there had been six other cases of unilateral fracture following ECT in the same hospital.

The court case
The case came to court in February 1957 and was heard by Mr Justice McNair. A variety of medical opinion was sought by both sides and what was revealed in court were marked differences in practice. Bolam called a distinguished psychiatrist who remarked that the decision not to provide manual restraint was “foolhardy” and stated that it was his practice always to warn patients of the hazards of ECT. Other expert witnesses offered contrary views and several concurred that it was unnecessary to inform patients of the risk of fracture and agreed that Bolam’s doctor had acted appropriately.

One consultant psychiatrist said: “I have to use my judgment. Giving the full details may drive a patient away. I would not say that a practitioner fell below the proper standard of medical practice when failing to point out all the risks involved.”

Some argued that the use of muscle relaxants and any form of general anaesthesia (so-called modified ECT) rather than being desirable was in fact potentially dangerous and maybe even fatal.

Not the man on the Clapham omnibus
In the course of his summing up to the jury, Mr Justice McNair, made the following remarks on the standard of proof in a negligence suit:

“How do you test whether this act or failure is negligent? In an ordinary case it is generally said that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.”

He went on to enunciate the principle, which is at the heart of what is now called the Bolam Test:

“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. ... Putting it the other way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.”

Applying this principle, the jury, while expressing their sympathy for Mr Bolam, found for the defendants.

Criticisms of the Bolam Test
This principle underpinning the definition of clinical negligence would be used for the next 50 years and would be upheld by the House of Lords in several important test cases. However, it was not the only case to address this issue. Two years earlier in Scotland, Hunter v Hanley set down broadly similar though not identical principles. These judgements have not been without criticism and have required modification by the courts over the years. When applying the Bolam Test, as originally set down, an act of alleged clinical negligence had to be compared with what was done in standard practice, rather than what perhaps should have been done. Thus, strictly applying the Bolam Test, if bad practice was the norm, no negligence could be proved.

Some felt that this approach stacked the odds against any patient who claimed clinical negligence. In 1997, a House of Lords ruling on another case (Bolitho v. City and Hackney Health Authority) applied the Bolam Test but sought to clarify it by offering a modification. Where there are conflicting bodies of expert medical opinion, if the actions proposed by a body of responsible doctors is not demonstrably reasonable and cannot withstand logical analysis in the court, it will not necessarily constitute a defence. In other words, you cannot defend against negligence on the basis of a practice just because it is current – it also has to be reasonable or logical.

The biggest rejection of the Bolam Test came with the Supreme Court ruling in Montgomery v Lanarkshire Health Board (2015) in relation to consent. That ruling considered a clinician’s duty of care to warn of ‘material risks’. The test of materiality was defined as whether “a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it”.

Accordingly, rather than considering which risks a doctor should discuss with a patient exclusively from the doctor’s perspective, the ruling brought the law in line with contemporary guidance from the General Medical Council and refocused this aspect of consenting discussions firmly on the patient.

Hopeless condition
In that courtroom in 1957, medico-legal history was made, but one man, the unfortunate patient at the centre of it all, hobbled out despondent. The judge, who had described Mr Bolam as being in a “hopeless condition” in the witness box, where he “told the tragic story of [his] sufferings and his experience” could offer him no damages. What he did offer him, however, was a form of immortality. Mr Bolam has now been dead for several decades, but the principle that bears his name, and which deprived him of any compensation for his injuries, lives on.

How a Clapham omnibus and a man called John changed the world of clinical negligence

"A responsible body of medical men"

2 Sept 2021

Recurrent failings in the way X-rays and scans are reported on and followed-up across NHS services are highlighted in the report by The Parliamentary and Health Service Ombudsman (PHSO). It identified several cases in which signs of cancer in X-rays and scans were not reported, leading to delayed diagnoses and poorer outcomes for patients.

Another common issue was inefficient handovers between departments and services. The report documents recurrent themes of varied or poor escalation procedures and communication between hospital teams. Investigations also found that trusts did not learn from previous errors related to imaging, which meant they repeated mistakes.

Ombudsman Rob Behrens concludes that failings related to imaging are found across the NHS, in both primary and secondary care services, and not solely in imaging departments. He calls on the government to commit to a system-wide programme of improvements for more effective and timely management of X-rays and scans.

The report – Unlocking Solutions in Imaging – calls for NHS England and Improvement (NHSEI) and the Department of Health and Social Care to prioritise digital imaging system improvements as a key patient safety concern and ensure there is national guidance on radiology reporting roles and procedures. Individual NHS providers should ensure that radiology staff have allocated time for reflective learning, hospital radiology leads regularly collate and share learnings and intelligence of imaging issues, and that the RCR ensures its guidance on the reporting of unexpected significant findings is clear and continually updated.

Ombudsman Behrens, said: "Now, as the NHS recovers from the devastating impact of the pandemic, we have a vital opportunity to learn from the failings and embed system-wide changes to improve imaging in the health service.

"The evidence-led recommendations I have set out should be implemented swiftly, with collaboration across government and the health sector to strengthen the NHS’s recovery."

RCR President Dr Jeanette Dickson commented: "The Ombudsman’s call for NHS digital shortcomings to be addressed as an urgent patient safety matter is both bold and pivotal. The Covid-19 response has demonstrated the NHS can make rapid digital improvements, such as rolling out remote and networked scan reporting. Innovations in imaging IT must continue as the health service recovers, and trusts must be centrally supported to allocate the staff time and capital investment needed to upgrade IT and alert systems.

"Hospital imaging teams are under more pressure than ever, battling through Covid backlogs on top of spiralling demand for radiology scans and procedures, and it is crucial that any system and local-level efficiencies that can happen, do. Staff desperately need breathing space to implement systems change, but this will only take us so far.

"Latest RCR staffing data shows the NHS needs at least another 2,000 radiologists to meet demand and ensure safe practice. Recent training uplifts for more radiologists are welcome, but must go further to meet future demand. In the short-term Government, the NHS and trusts must work together to actively support and retain radiology teams, or risk an exodus of exhausted imaging staff."

NHS radiology systems require urgent improvement

A REPORT calling for Government and hospital trusts to prioritise improvements to NHS radiology IT systems and alerts processes has been welcomed by the Royal College of Radiologists (RCR).

1 Sept 2021