Expert Witness Immunity

Traditionally expert witnesses have been protected in court proceedings by expert witness immunity.

In January, the Supreme Court considered the issue of expert immunity in a two-day hearing of the case of Paul Wynne Jones v Sue Kaney.

Judgment is not expected for some time but it is anticipated that the Supreme Court may take this opportunity to lift expert immunity.

Mr Wynne Jones argued that the case of Stanton v Callaghan (1998 1 Q.B 75) – case law on the subject - is no longer relevant as expert immunity is inconsistent with the right to a fair trail and is not supported by the 2000 decision to abolish a barristers immunity from suit.

The case was granted a leap frog certificate meaning that Mr Wynne could take the issue directly to the Supreme Court and bypass the Court of Appeal.

This case poses the risk that expert witness immunity could be abolished entirely or severely curtailed. This could therefore impact on the number of experts available to provide evidence in litigation. This would then impact on costs and the time frames for providing evidence. However, there may be some benefit, the ruling could lead to increased professionalism of expert witnesses and there are obvious consequences of this to both solicitors and clients.
Traditionally expert witnesses have been protected in court proceedings by expert witness immunity.

In January, the Supreme Court considered the issue of expert immunity in a two-day hearing of the case of Paul Wynne Jones v Sue Kaney.

Judgment is not expected for some time but it is anticipated that the Supreme Court may take this opportunity to lift expert immunity.

Mr Wynne Jones argued that the case of Stanton v Callaghan (1998 1 Q.B 75) – case law on the subject - is no longer relevant as expert immunity is inconsistent with the right to a fair trail and is not supported by the 2000 decision to abolish a barristers immunity from suit.

The case was granted a leap frog certificate meaning that Mr Wynne could take the issue directly to the Supreme Court and bypass the Court of Appeal.

This case poses the risk that expert witness immunity could be abolished entirely or severely curtailed. This could therefore impact on the number of experts available to provide evidence in litigation. This would then impact on costs and the time frames for providing evidence. However, there may be some benefit, the ruling could lead to increased professionalism of expert witnesses and there are obvious consequences of this to both solicitors and clients.

Birth Centre Negligence

This week's press coverage of the Theo Kramer birth centre negligence case has led me to consider the value of birthing centres and the role these centres play in the delivery of some of the 700,000 babies born in the UK each year.

Theo, who is represented by JMW Solicitors, has this week been awarded £6.4 million settlement after Barnet and Chase Farm Hospitals NHS Trust acknowledged that Edgware Birthing Centre was negligent. As a consequence of the events surrounding his birth, Theo has been left with brain damage.

There is often debate in the media about birthing centres. So what are the main differences in the care received at a birthing centre compared to a hospital maternity unit?

Birthing centres typically only accept expectant mothers who are 'low risk'. The units are often midwife-led and provide facilities such as ensuite birthing rooms, birth pools and birth balls. Partners are encouraged to stay overnight with the expectant mothers and as such beds are provided. The main advantage is that the care is, in theory, 'One -to -One’; the centres aim to achieve a relaxed atmosphere.

The major disadvantage of giving birth at a birthing centre is the lack of medical care. This limits the care they can provide, for example, caesarean sections, epidurals and some forms of pain relief can not be administered. Birth Centres may not have the same level of facilities to monitor the baby before birth as was the case with Theo. However, most are linked to a nearby hospital and transfer can me made to an obstetric unit. One of the issues with Theo's delivery was that the transfer to the nearby hospital was not as timely or smooth as would be expected. Transfer rates need to be improved to ensure that if a complication develops that an appropriate delivery is commenced as soon as possible.

There is no doubt that birthing centres are an important asset in today's NHS - providing a second tier to labour care in a particularly overstretched area of healthcare. However, appropriate staffing levels, training, transfer rates and up-to-date equipment are necessary for these centres to ensure that clinical standards are maintained, and as this case demonstrates, tragedies avoided.

We bet Katie wished she had a Pre-Nup

Now Katie Price has confirmed that she and her husband Alex Reid are separating it seems probable that a divorce will follow. If true, will she regret not having a pre-nup?
Pre-nuptial agreements are often used when celebrities and the rich marry, despite them not being legally binding in England and Wales.
There are cases though where a prenup have been upheld. In the recent case of Radmacher versus Granatino the court upheld the pre nup and Mr Granatino’s settlement was reduced from £5m to £1m. The decision being that the courts may give effect to pre-nups freely entered into by both parties with a full appreciation of its implications.
Given such a decision, Katie Price may well have protected her fortune had she had a pre-nup. Who knows why she decided against it?
Maybe she knew she ran the risk of the pre-nup being disregarded by the courts as “unfair” if Alex argued emotional duress. After all it was somewhat of a quick engagement.
Or perhaps she never thought the marriage would last long and decided to take the risk of the courts deciding a settlement based on the relatively short length of the marriage and excluding some or all of her amassed wealth.
Whatever the reason, if it had been a longer marriage the outcome could have been extremely negative for Katie simply because she hadn't entered into an agreement before marriage.

Out-of-our hours GP care

"This week's press coverage of Brian Dowsett, a JMW client currently pursuing a clinical negligence claim, serves as a reminder of the ongoing issue of out-of hours GP care in the UK. Cases such as Mr Dowsett's are becoming all too familiar in the press and indicate a change is necessary in the way such care is regulated.

Brian Dowsett was seen by two doctors who worked for the independent service provider Croydoc when in January 2007 they failed to diagnose a clot. When at last Brian was diagnosed, he required surgery to amputate his leg above the knee.

This case brings to mind last year's much publicised case of Dr Ubani, the German doctor struck off the UK medical register following the death of David Gray in February 2008. Dr Ubani administered a fatal dose of 100mg diamorphine injection- ten times the recommended amount - whilst working his first shift in the UK for a private service provider.

Since 2004, GP's have been allowed to transfer responsibility for out-of-hours care to the Primary Care Trust (PCT). Often the care is then 'contracted out' to be provided by an independent service provider.

Often these service providers employ doctors from overseas, most often from the European Union, without an adequate period of induction or training, or adequate checks to their suitability. The European Union Directive 93 allows such doctors to be accepted on the GMC primary care register without checking the individuals training, employment record, clinical competency and most importantly their language proficiency. This directive facilitates the free movement of doctors within the EU with mutual recognition of their qualifications but the death of David Gray demonstrates what can happen in the absence of such checks.

The case did provoke debate and change, such as this House of Commons Health Committee Report (The use of overseas doctors in providing out-of-hours services) http://www.publications.parliament.uk/pa/cm200910/cmselect/cmhealth/441/441.pdf demonstrates. However as long as care is provided by doctors unfamiliar with local health services, allowed to practice with their medical competency unchecked, one can not help but suspect that substandard care will occur and may result in an equally tragic outcome.

I personally feel that measures need to be put in place to regulate doctors providing out-of-hours care. I understand that the EU Directive means that the GMC's hands are tied with regards to the tests that they can enforce on GP's wishing to register. Any attempt by the GMC to restrict the free movement of medical staff would be deemed as 'unlawful' by the EU. In the absence of this, the NHS needs to establish a method of ensuring that high standards of care are met by suitable staff.

Health secretary Andrew Lansley seems keen to make steps towards this by recently announcing his wish to agree a policy which would allow all European doctors to be tested on their language and clinical competencies before entering employment in the UK. This task will be undertaken by the NHS Commissioning Board as part of the reforms proposed in the recent White Paper ''Equity and excellence: Liberating the NHS''. Change seems to be on the horizon, but will it be enough?''

Out-of hours Doctor Fails to Diagnose Blood Clot - JMW client featured on BBC news programme

JMW is currently investigating a clinical negligence claim on behalf of Brian Dowsett who featured in a recent BBC1 programme, Inside Out. Brian's story has also featured in the local and national press.

Mr Dowsett, 74, was seen by an out-of-hours doctor, Dr Hans Raj Yadav in 2007 when he developed pain in his right leg. Dr Yadav had previously been suspended by a different out-of-hours provider over concerns about his clinical competence. Dr Yadav failed to diagnose a blood clot, despite Mr Dowsett's complaint of pain and numbness in his leg, which had turned white and was very cold to the touch. Days later, Mr Dowsett was diagnosed with an arterial obstruction and underwent surgery, although it was too late to save is leg which was amputated shortly afterwards.

JMW is pursuing the claim against both Dr Yadav and a second defendant, also an out-of-hours GP. Both defendants worked for the privately run Croydoc, now known as Patient Care 24. Dr Yadav has admitted that he was negligent in failing to refer Mr Dowsett to hospital urgently. He has since been struck off by the General Medical Council (GMC). The second defendant has made an initial denial of liability. The case is ongoing.

Sally Leonards, Partner at JMW, is currently pursuing the claim on behalf of Mr Dowsett. Sally, a specialist clinical negligence solicitor commented: "This case highlights the inadequacy of the system of governance of out-of-hours GP care which has serious implications for patient safety. It is of particular concern that Dr Yadav was able to continue in practice for so long when it is clear that his performance was seriously deficient in many areas of medicine, which was the view formed by the GMC. My client's life has been seriously blighted as a result of the loss of his leg. I hope for his sake that the legal proceedings are concluded quickly and successfully.

Government reviews on the future of legal aid and the funding of civil claims

This month the Government has announced 2 reviews covering the future of legal aid and the funding of civil claims which if implemented will have wide ranging implications for claimants seeking compensation for clinical negligence.

On legal aid the Ministry of Justice declares:

"The proposals represent a radical, wide-ranging and ambitious programme of reform which aims to ensure that legal aid is targeted to those who need it most, for those cases in which legal advice or representation is justified."

In reality it will mean no legal aid for patients wishing to bring a claim for compensation with perhaps the only exception being children who have suffered massive brain injury.

The reform of conditional fee (no win no fee agreements) is also likely to result in solicitors being less willing to take on cases.

The Law Society has warned that the latest government plans to reform legal aid and civil litigation funding will:

"severely threaten access to justice."

For all of us interested in the rights of those who have suffered a medical accident and seek financial redress the coming months are bound to prove a challenging time.

Civil partnership dissolutions rising

The number of civil partnership dissolutions granted in the UK in 2009 almost doubled when compared to the preceding year, according to new figures released by the Office for National Statistics (ONS).

In 2008, 180 couples were granted a civil partnership dissolution, yet 2009 saw a 95 percent increase to 351.

Of these, 327 were granted in England and Wales and 24 in Scotland. No civil partnership dissolutions were granted in Northern Ireland.

More female couples dissolved their civil partnerships than men in both England and Wales and Scotland in 2009.

Female couples were responsible for 63 percent of the English and Welsh civil partnership dissolutions. Just over one third of the granted dissolutions in England and Wales were to male couples.

The ONS provisional statistics reveal that 2009 saw a decrease in the number of civil partnerships taking place, from 7,169 in 2008 to 6,281.

Over 40,000 civil partnership agreements have been granted in the UK since the Civil Partnership Act 2004 was enacted in December 2005. The change in the law was widely welcomed by human rights campaigners who saw the Act as a way to ensure that gay couples receive similar rights in family law to heterosexual couples in the event of relationship breakdown