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How failing to gain proper, informed consent before spinal surgery can lead to negligence claims

Doctors have a duty to obtain proper, informed consent from you, as their patients. Where, through the doctor’s failure to provide sufficient information, a procedure or treatment is carried out without your informed consent, an action may lie in negligence for breach of duty.
There are two essential elements to such a claim:

  1. The doctor was negligent in the provision of advice and/or information on the proposed treatment; and, 
  2. The negligence has caused you to suffer pain, suffering, loss and damage.

Inherent to this second requirement is that but for the defendant’s negligence, it is unlikely you would have suffered the adverse outcome for which the claim is brought. In other words, if you were given the correct advice, you would not have gone ahead with the procedure at that time and/or not at all. 

How do I give informed consent?

Signing a consent form is not necessarily conclusive on the issue of consent. In cases where the prospective claimant has suffered an adverse consequence following treatment, circumstances surrounding the consent process usually form part of the pre-action investigation, including what was said at the time and by whom.

The Supreme Court’s decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11 reaffirmed the nature of doctors’ duties in advising and obtaining informed consent to medical treatment.

Mrs Montgomery, diabetic and of small stature, was expecting a child. It was well known at that time that diabetes mellitus in the mother carried a risk of a larger baby. The case therefore concerned the failure in the duty owed by the defendant doctor to Mrs Montgomery to advise of the particular risks of shoulder dystocia if her baby were born by vaginal delivery, and to provide her with alternative options in respect of the delivery of her baby. During the natural delivery, the baby’s shoulders became lodged in the birth canal and as a result the baby boy was starved of oxygen, suffering a brachial plexus injury and later being diagnosed with cerebral palsy.

The Court found, in Mrs Montgomery’s favour, that she should have been advised of the risk of shoulder dystocia, and had she have been, she would have opted to give birth by caesarean section.

“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, 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. [87]”

Montgomery reaffirmed three important points: 

1. The importance of patients’ autonomy. Patients have the right to be involved in discussions and make informed decisions about their care; as such decisions affect their lives and bodies. It is for the doctor to advise, and the patient to decide.

“A rule requiring a doctor to abstain from performing an operation without the informed consent of a patient serves two purposes. It tends to avoid the occurrence of the particular physical injury the risk of which the patient is not prepared to accept. It also ensures that due respect is given to the autonomy and dignity of each patient. (Chester v Afshar, [18])”

2. That doctor’s duties extend further than providing their patients with percentages; it involves a dialogue between him and his patient. The information given to patients should reflect: the nature of risk, the likely effect such risk could have on the life of the patient, the benefits of the treatment, any alternative treatments, and the risks associated with those alternative treatments. The doctor’s advisory role will only be performed effectively if the information provided is comprehensible.

3. The test of materiality. The assessment of the materiality of a particular risk is dependent on both the specific facts of the claim and on the individual patient. It is therefore important that a doctor considers what a reasonable person in the patient’s position would be likely to attach significance to, and what that particular patient would want to know about or relating to the proposed procedure. This includes, but isn’t simply confined to, the chances of risks materialising, but also:

  • Advice on alternative (conservative) treatments (Montgomery, Hassell v Hillingdon Hospitals NHS Foundation Trust)
    There will always be alternatives, even if the alternative is no treatment. For instance, In Hassell, there were alternatives in the form of conservative management with painkillers or physiotherapy which the surgeon failed to advise. 
  • Changes to the treatment (Crossman v St George’s Healthcare
    Doctors are under a duty to fully involve patients in decision-making and not make paternalistic decisions without consulting the patient.

In Crossman, the patient suffered from numbness in his arm as well as pain and restriction of movement in his neck. Minor compression of the spinal cord was visible upon an MRI scan. In light of the scan, various options were discussed and the consultant advised conservative treatment, physiotherapy and a review within 3 months. Subsequently, a letter was sent to summon the claimant for operative treatment. The claimant queried this, but complied, as otherwise he would go to bottom of the waiting list. The claimant therefore had the operation and, although it was not performed negligently, suffered nerve damage. It was agreed that the risk of this result was less than 1%, and further agreed that, if the management plan had been followed as intended, the claimant would have had the same surgery 3 month later with the same level of risk. The case is one of very limited cases which have succeeded on ‘but for’ causation, discussed further below in reference to Chester.

  • Who would be operating (Jones v Royal Devon and Exeter NHS Foundation Trust)
    In Jones, the patient was referred to a particular consultant for her back pain. However, when she later underwent bilateral decompression surgery it was performed by a different surgeon. As a result of the surgery, she suffered a dural tear and damage to the nerve roots in the cauda equina. This was a recognised risk of the operation and was not in itself negligent; however, she succeeded in her claim on the basis that she had not consented to the operation being performed by the particular surgeon that performed it. 
  • The timing of the advice (Thefaut v Johnson; Hassell v Hillingdon)
    There must be adequate time and space for there to be a reasonable dialogue between doctor and patient, and time for the patient to consider the options and advice. This is not satisfied by a short telephone call, nor is it appropriate to give new information to the patient on the morning of the surgery (save if it is an emergency).
    In Hassell, the patient was asked to sign a consent form just as she was taken into surgery. Although the consent form warned of the risk of spinal cord surgery (which the experts agreed was sufficient warning of the risk of paralysis), it was given first a few moments before surgery and did not allow the patient an opportunity to reflect.

The ‘therapeutic exception’ is maintained. If a doctor reasonably considered that the disclosure would be seriously detrimental to the patient’s health, they are entitled to withhold information.

In addition to expert evidence, the claimant’s own factual evidence of his/her personal circumstances and evaluation of the nature, magnitude and potential consequences of the relevant risk, are likely to play an important part in whether or not the defendant’s failure to provide information amounts to a breach of duty. 

What will help my claim to succeed?

An essential part of any claim in negligence is to satisfy causation in both fact and in law. The considerations are two-fold: 

  • Whether the defendant’s conduct actually made a difference in reality, usually through the ‘but for’ test: but for the defendant’s negligence, would the claimant have suffered loss or injury? 
  • Whether any such difference is fairly attributable to the defendant, usually through ‘reasonable foreseeability’ considerations. 

In consent cases, what is often crucial in establishing causation is the claimant’s factual evidence as to the decision they would have made had they received proper advice.

However, the decision in Chester v Afshar [2005] 1 AC 134 infamously represents a “departure from traditional causation principles” (Chester, [24]). 

The case concerns a neurosurgeon’s failure to warn the claimant of a small but unavoidable risk of surgery. The 1-2% risk was neither created nor increased by the defendant’s failure to warn. Although the surgery was performed competently, the risk eventuated, and the claimant suffered nerve damage.

The claimant established at trial that, had she been properly advised, she would not have had the same surgery on the day itself, but neither did she allege that she would never have had the surgery at all. Accordingly, the court proceeded on the basis that she would have had the same surgery at an unknown later time. While the risks might have been the same in any future operation, the likelihood of that risk materialising was not the same; it was more likely than not that the same damage would not have been suffered by the claimant at a later date. 

The claim would have failed on traditional causation principles, establishing factual causation but failing to show legal causation. In Duce v Worcestershire Acute Hospitals NHS Trust, Hamblen LJ explained this as follows: 

“That modification was to treat a “but for” cause that was not an effective cause as a sufficient cause in law in the “unusual” circumstances of the case. [66]”

In allowing the claim on policy grounds, the House of Lords emphasised how the duty of a surgeon to warn of the dangers inherent in an operation is intended to minimise the risk to the patient and enable them to make an informed choice whether to undergo the treatment, at whose hands, and when. On the facts, the surgeon’s failure to do violated the claimant’s right to choose for herself, even if he did not increase the risk to her. 

The function of the law was to enable rights to be vindicated and to provide remedies when duties have been breach. Unless that was done in the instant case the duty to warn would be a hollow one. On policy grounds the test of causation was satisfied in the instant case. The risk that eventuated was within the scope of the duty to warn so that the injury could be regarded as having been caused, in the legal sense, by the breach of that duty.

In subsequent cases, the Court of Appeal has consistently confined it to its own facts, declining attempts to extend it to further factual scenarios.

In summary, recent case-law tells us… 

  • A negligent non-disclosure of information by the doctor cannot of itself create a free-standing claim (Diamond v Royal Devon & Exeter NHS Foundation).
  • The principle in Chester is a narrow decision with little application to further cases. It can only apply where a claimant proves only that, if advised correctly, they would have undergone the treatment complained of but at a later time, with an identical risk of harm. 
  • Where a claimant would have had the treatment at the same time, Duce confirms the claim would fail. 
  • If the claimant would not have had the treatment at all, then causation succeeds on conventional principles, as in Montgomery.

The duty to warn only extends to material risks.

There must be a close nexus in fact between the initial wrongful advice and the ultimate injury.
If the claimant would have suffered the injury in any event, or if there was a break in the chain of causation, the claim will fail.

How can Boyes Turner help?

Spinal injuries have a devastating effect on lives. A significant period of readjustment and support is required to adapt to the life changing event. At a distressing time, our specialist spinal injury lawyers can offer straightforward and clear advice and assistance. There is no cost to our clients, should the claim be unsuccessful, and our approach is to work with our client and their family as necessary to ensure maximum compensation to help rebuild their lives.

If you have suffered a spinal injury and would like to enquire if you have a claim, you can contact our team at mednegclaims@boyesturner.com.

How failing to gain proper, informed consent before spinal surgery can lead to negligence claims

Doctors have a duty to obtain proper, informed consent from you, as their patients. Where, through the doctor’s failure to provide sufficient information, a procedure or treatment is carried out without your informed consent, an action may lie in negligence for breach of duty.
There are two essential elements to such a claim:

  1. The doctor was negligent in the provision of advice and/or information on the proposed treatment; and, 
  2. The negligence has caused you to suffer pain, suffering, loss and damage.

Inherent to this second requirement is that but for the defendant’s negligence, it is unlikely you would have suffered the adverse outcome for which the claim is brought. In other words, if you were given the correct advice, you would not have gone ahead with the procedure at that time and/or not at all. 

How do I give informed consent?

Signing a consent form is not necessarily conclusive on the issue of consent. In cases where the prospective claimant has suffered an adverse consequence following treatment, circumstances surrounding the consent process usually form part of the pre-action investigation, including what was said at the time and by whom.

The Supreme Court’s decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11 reaffirmed the nature of doctors’ duties in advising and obtaining informed consent to medical treatment.

Mrs Montgomery, diabetic and of small stature, was expecting a child. It was well known at that time that diabetes mellitus in the mother carried a risk of a larger baby. The case therefore concerned the failure in the duty owed by the defendant doctor to Mrs Montgomery to advise of the particular risks of shoulder dystocia if her baby were born by vaginal delivery, and to provide her with alternative options in respect of the delivery of her baby. During the natural delivery, the baby’s shoulders became lodged in the birth canal and as a result the baby boy was starved of oxygen, suffering a brachial plexus injury and later being diagnosed with cerebral palsy.

The Court found, in Mrs Montgomery’s favour, that she should have been advised of the risk of shoulder dystocia, and had she have been, she would have opted to give birth by caesarean section.

“An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, 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. [87]”

Montgomery reaffirmed three important points: 

  1. The importance of patients’ autonomy.  Patients have the right to be involved in discussions and make informed decisions about their care; as such decisions affect their lives and bodies. It is for the doctor to advise, and the patient to decide.

“A rule requiring a doctor to abstain from performing an operation without the informed consent of a patient serves two purposes. It tends to avoid the occurrence of the particular physical injury the risk of which the patient is not prepared to accept. It also ensures that due respect is given to the autonomy and dignity of each patient. (Chester v Afshar, [18])”

  1. That doctor’s duties extend further than providing their patients with percentages; it involves a dialogue between him and his patient. The information given to patients should reflect: the nature of risk, the likely effect such risk could have on the life of the patient, the benefits of the treatment, any alternative treatments, and the risks associated with those alternative treatments. The doctor’s advisory role will only be performed effectively if the information provided is comprehensible.
     
  2. The test of materiality. The assessment of the materiality of a particular risk is dependent on both the specific facts of the claim and on the individual patient. It is therefore important that a doctor considers what a reasonable person in the patient’s position would be likely to attach significance to, and what that particular patient would want to know about or relating to the proposed procedure. This includes, but isn’t simply confined to, the chances of risks materialising, but also:
  • Advice on alternative (conservative) treatments (Montgomery, Hassell v Hillingdon Hospitals NHS Foundation Trust)
    There will always be alternatives, even if the alternative is no treatment. For instance, In Hassell, there were alternatives in the form of conservative management with painkillers or physiotherapy which the surgeon failed to advise. 
  • Changes to the treatment (Crossman v St George’s Healthcare
    Doctors are under a duty to fully involve patients in decision-making and not make paternalistic decisions without consulting the patient.

In Crossman, the patient suffered from numbness in his arm as well as pain and restriction of movement in his neck. Minor compression of the spinal cord was visible upon an MRI scan. In light of the scan, various options were discussed and the consultant advised conservative treatment, physiotherapy and a review within 3 months. Subsequently, a letter was sent to summon the claimant for operative treatment. The claimant queried this, but complied, as otherwise he would go to bottom of the waiting list. The claimant therefore had the operation and, although it was not performed negligently, suffered nerve damage. It was agreed that the risk of this result was less than 1%, and further agreed that, if the management plan had been followed as intended, the claimant would have had the same surgery 3 month later with the same level of risk. The case is one of very limited cases which have succeeded on ‘but for’ causation, discussed further below in reference to Chester.

  • Who would be operating (Jones v Royal Devon and Exeter NHS Foundation Trust)
    In Jones, the patient was referred to a particular consultant for her back pain. However, when she later underwent bilateral decompression surgery it was performed by a different surgeon. As a result of the surgery, she suffered a dural tear and damage to the nerve roots in the cauda equina. This was a recognised risk of the operation and was not in itself negligent; however, she succeeded in her claim on the basis that she had not consented to the operation being performed by the particular surgeon that performed it. 
  • The timing of the advice (Thefaut v Johnson; Hassell v Hillingdon)
    There must be adequate time and space for there to be a reasonable dialogue between doctor and patient, and time for the patient to consider the options and advice. This is not satisfied by a short telephone call, nor is it appropriate to give new information to the patient on the morning of the surgery (save if it is an emergency).
    In Hassell, the patient was asked to sign a consent form just as she was taken into surgery. Although the consent form warned of the risk of spinal cord surgery (which the experts agreed was sufficient warning of the risk of paralysis), it was given first a few moments before surgery and did not allow the patient an opportunity to reflect.

The ‘therapeutic exception’ is maintained. If a doctor reasonably considered that the disclosure would be seriously detrimental to the patient’s health, they are entitled to withhold information.

In addition to expert evidence, the claimant’s own factual evidence of his/her personal circumstances and evaluation of the nature, magnitude and potential consequences of the relevant risk, are likely to play an important part in whether or not the defendant’s failure to provide information amounts to a breach of duty. 

What will help my claim to succeed?

An essential part of any claim in negligence is to satisfy causation in both fact and in law. The considerations are two-fold: 

  • Whether the defendant’s conduct actually made a difference in reality, usually through the ‘but for’ test: but for the defendant’s negligence, would the claimant have suffered loss or injury? 
  • Whether any such difference is fairly attributable to the defendant, usually through ‘reasonable foreseeability’ considerations. 

In consent cases, what is often crucial in establishing causation is the claimant’s factual evidence as to the decision they would have made had they received proper advice.

However, the decision in Chester v Afshar [2005] 1 AC 134 infamously represents a “departure from traditional causation principles” (Chester, [24]). 

The case concerns a neurosurgeon’s failure to warn the claimant of a small but unavoidable risk of surgery. The 1-2% risk was neither created nor increased by the defendant’s failure to warn. Although the surgery was performed competently, the risk eventuated, and the claimant suffered nerve damage.

The claimant established at trial that, had she been properly advised, she would not have had the same surgery on the day itself, but neither did she allege that she would never have had the surgery at all. Accordingly, the court proceeded on the basis that she would have had the same surgery at an unknown later time. While the risks might have been the same in any future operation, the likelihood of that risk materialising was not the same; it was more likely than not that the same damage would not have been suffered by the claimant at a later date. 

The claim would have failed on traditional causation principles, establishing factual causation but failing to show legal causation. In Duce v Worcestershire Acute Hospitals NHS Trust, Hamblen LJ explained this as follows: 

“That modification was to treat a “but for” cause that was not an effective cause as a sufficient cause in law in the “unusual” circumstances of the case. [66]”

In allowing the claim on policy grounds, the House of Lords emphasised how the duty of a surgeon to warn of the dangers inherent in an operation is intended to minimise the risk to the patient and enable them to make an informed choice whether to undergo the treatment, at whose hands, and when. On the facts, the surgeon’s failure to do violated the claimant’s right to choose for herself, even if he did not increase the risk to her. 

The function of the law was to enable rights to be vindicated and to provide remedies when duties have been breach. Unless that was done in the instant case the duty to warn would be a hollow one. On policy grounds the test of causation was satisfied in the instant case. The risk that eventuated was within the scope of the duty to warn so that the injury could be regarded as having been caused, in the legal sense, by the breach of that duty.

In subsequent cases, the Court of Appeal has consistently confined it to its own facts, declining attempts to extend it to further factual scenarios.

In summary, recent case-law tells us… 

  • A negligent non-disclosure of information by the doctor cannot of itself create a free-standing claim (Diamond v Royal Devon & Exeter NHS Foundation).
  • The principle in Chester is a narrow decision with little application to further cases. It can only apply where a claimant proves only that, if advised correctly, they would have undergone the treatment complained of but at a later time, with an identical risk of harm. 
  • Where a claimant would have had the treatment at the same time, Duce confirms the claim would fail. 
  • If the claimant would not have had the treatment at all, then causation succeeds on conventional principles, as in Montgomery.

The duty to warn only extends to material risks.

There must be a close nexus in fact between the initial wrongful advice and the ultimate injury.
If the claimant would have suffered the injury in any event, or if there was a break in the chain of causation, the claim will fail.

How can Boyes Turner help?

Spinal injuries have a devastating effect on lives. A significant period of readjustment and support is required to adapt to the life changing event. At a distressing time, our specialist spinal injury lawyers can offer straightforward and clear advice and assistance. There is no cost to our clients, should the claim be unsuccessful, and our approach is to work with our client and their family as necessary to ensure maximum compensation to help rebuild their lives.

If you have suffered a spinal injury and would like to enquire if you have a claim, you can contact our team at mednegclaims@boyesturner.com.

Launch of new mesothelioma support group for Cumbria and Lancashire

Receiving a diagnosis of mesothelioma is undoubtedly one of the most heart-breaking things a patient can hear. Though mesothelioma is responsible for around 2,500 deaths per year, it is still for most people a relatively unknown cancer.

It is vitally important for patients to have access to support from professionals such as the expert Mesothelioma UK lung cancer nurses, advice on benefits and compensation and the support of other people in a similar situation to themselves. The support provided by asbestos disease support groups is invaluable in helping patients through what can be an incredibly difficult time.

Cumbria and Lancashire Asbestos Support Advice Group

It is wonderful to see a new advice centre for asbestos victims in Cumbria and Lancashire, CLASAG (Cumbria and Lancashire Asbestos Support Advice Group) which was launched on 21 January 2019.

Barrow-in-Furness is considered to be one of the areas in the UK where Mesothelioma deaths are higher than the national average and is therefore considered an area with significant numbers of Mesothelioma victims.

Barrow is no stranger to asbestos support. A support group was originally set up in 2006 by Bob Pointer. Bob volunteered in 2004 to take over as the Secretary of Barrow Trades Council with asbestos being his prime focus, as he considered that it was a serious local issue. He attended an asbestos seminar at the Abbey House Hotel which led him to network and later attend a union conference on the issue of asbestos. He became involved in two public meetings and launched the Barrow Asbestos Related Diseases Support Group (BARDS) in 2006 on the first ever Action Mesothelioma Day. BARDS was founded by Dr Helen Clayson and others. The support group later changed its name to CARDS (Cumbria Asbestos Related Disease Support). 

In an effort to re-organise the group and provide as much support as possible to those with Mesothelioma and other asbestos-related diseases in the local area, the Asbestos Forum UK and Mesothelioma UK assisted Bob to re-organise the group and the Blackpool-based charity Disability First stepped in to support and run the group. The result is the newly created CLASAG, which replaces CARDS.Having provided support for asbestos victims for over a decade, Bob will now be taking a step back and retiring from his involvement with the support group. At the launch of  CLASAG, Bob gave an emotional speech. Taking a step back from the support group is a significant decision for Bob who has been heavily involved in the support of asbestos victims in Cumbria and Lancashire for over a decade. 

The launch was supported by Mesothelioma UK, the UKs leading mesothelioma charity. Lorraine Creech, a specialist Mesothelioma UK lung cancer nurse spoke about the work of Mesothelioma UK.  Speeches were also given by Graham Dring from the Asbestos Forum UK and Rachel Minshull of Cancer Care. 

Asbestos support groups are invaluable to the communities they serve. CLASAG will be run by Disability First and will hold meetings on the third Monday of every month at the Barrow and District Disability Association. The support group will provide advice about welfare benefits and compensation at meetings and also through its home visiting service.

Local asbestos disease support groups

There are a number of asbestos disease support groups across the UK. It is wonderful to see those running the support groups dedicating so much time and energy to the asbestos cause. It is thanks to people like Bob that the dangers and knowledge of asbestos is more prevalent in the minds of the general public. It is so important for those with Mesothelioma and other asbestos diseases to have a community to fall back on

Can cervical cancer make you infertile?

Cervical cancer is the most common type of cancer for women under 35 in the UK. While 99.8% of cervical cancer cases in the UK are preventable, the disease only has a 63% 10-year survival rate post-diagnosis, according to research published by Cancer Research UK.

Cervical cancer can also cause issues with fertility, leaving many survivors requiring fertility treatment or entirely unable to become pregnant. For many women, especially those under the age of 35, infertility can be devastating.

Where cervical cancer is diagnosed quickly and the right treatment given, serious health consequences are usually avoidable. However, where cervical cancer is misdiagnosed or diagnosed late, infertility or even death may be unavoidable.

Why do delays in diagnosing cervical cancer increase the risk of infertility?

If cervical cancer is caught at an early stage, treatment may consist of a cone biopsy (where tissue is removed from the cervix) and radical trachelectomy (removal of the cervix). Both of these procedures preserve fertility.

If there are delays in identifying and treating cervical cancer (whether negligent or non-negligent) it is more likely that treatment will consist of a hysterectomy, chemotherapy, radiotherapy and brachytherapy. These can cause infertility and is just one reason early diagnosis is so important. It is also why charities such as Jo’s Trust work tirelessly to raise awareness of the disease and the need for women to attend their smear test regularly. 

Who can claim compensation for cervical cancer negligence?

If there has been a negligent delay in diagnosing cervical cancer which has resulted in more aggressive treatment than otherwise would have been required, and where fertility has or may be affected, it is our view that a claim may need to be investigated.

For many of our clients where fertility has been affected it is imperative that this is considered as part of any legal claim.  This is because it may be possible to include fertility related costs for treatment like IVF as part of any claim for compensation. 

Whilst we know that money cannot restore fertility, it may still be able to go some way to helping women achieve the family they wanted before any cancer diagnosis.

What compensation can you claim for misdiagnosis or late diagnosis of cervical cancer?

If you wish to bring a claim, we will always consider the emotional impact infertility may have had on you. We recognise that we may not be able to offer a solution immediately which is why we work alongside charities like Jo’s Trust to make sure you are offered the support you need alongside any legal action.

If we take on your case and can obtain an admission of liability from the Defendant, interim payments can be sought to cover the cost of private counselling and fertility investigations where appropriate.

Can cervical cancer compensation be used to fund fertility treatment?

Some fertility treatments are available through the NHS to women facing infertility as a result of cervical cancer. However, there are certain criteria that women have to fulfill in order to be eligible. These criteria can vary from one NHS Trust to another and often only particular types of treatments can be covered. It may be that women wish to explore private fertility treatments, including surgical removal of eggs from the ovaries which can be extremely expensive.

In the case of XX v Whittington Hospital NHS Trust the Claimant recovered the costs associated with commercial surrogacy in California. As specialist lawyers in this area we will assess each case and the circumstances of each carefully before advising you on the ability to recover these costs.

Get specialist legal help to claim compensation for misdiagnosis or late diagnosis of cervical cancer

As specialist cervical cancer solicitors, we know the impact this devastating disease can have. Whether you are faced with infertility due to negligent treatment of cervical cancer or have lost a loved one as a result of the disease being misdiagnosed or diagnosed late, claiming compensation make a real, practical difference to your quality of life and that of your loved ones.

If you have been affected by a delay in diagnosis of cervical cancer, please contact our specialist medical negligence solicitors to discuss your case by email at mednegclaims@boyesturner.com.

Dementia - planning for the future

What is dementia?

Dementia is caused by a number of diseases that affect the brain. The most common is Alzheimer’s.

Most people associate memory loss with dementia and this is one of the symptoms. Other common symptoms of dementia include changes in mood or behaviour, misplacing things and disorientation to time and place. Different types of dementia affect the brain at different rates and in different ways. Dementia can affect every aspect of a person’s life including dealing with their own property and finances.

Why does dementia matter?

Dementia is one of the greatest challenges faced by society today. One in three people will develop dementia in their lifetime and one in nine people will have caring responsibilities for someone with dementia.

Whilst dementia typically affects people over 65, younger people can get dementia too.

There are currently over 850,000 people in the UK living with dementia. 225,000 people will develop dementia this year – that’s one person every three minutes.

It’s clear from the figures that dementia is a challenge which we have to face; it is not going away.

Planning for the future

Managing day to day money can be difficult for someone living with dementia. For example, a person living with dementia might forget to pay their phone bill or renew their house insurance. Imagine living with dementia and trying to deal with a bank, insurance company or utility company. Without support or understanding from the provider you are in contact with, this can often be upsetting.

Mental capacity is the ability to make decisions. As dementia progresses, the person living with the condition is likely to become unable to make some decisions for themselves.

If a person lacks the mental capacity to make their own decisions then the Mental Capacity Act 2005 is the law in England and Wales that supports these people and outlines who can and should make decisions on that person’s behalf.

If a person is no longer able to make their own decisions, and has not made a Power of Attorney, then an application should be made to the Court of Protection for the appointment of a Deputy.

A Deputy is a person appointed by the Court to manage the affairs of someone who lacks the capacity to manage their own affairs. A Deputy can be a relative or friend of the person who lacks capacity. In some circumstances, it may be appropriate to have a Professional Deputy, for example a solicitor.

How can we help?

It’s clear that there is a lot to think about when supporting a person with dementia who lacks the mental capacity to make their own decisions or might lack capacity in the future to make their own decisions.

Our specialist Court of Protection team has a wealth of experience in supporting individuals who lack capacity and their families either through assisting a lay deputy in making an application to the Court of Protection or in representing the individual as a professional deputy.

If you have any queries or questions about how to support someone to make their own decisions then please contact our Court of Protection team by email on cop@boyesturner.com.

Mesothelioma - the Stories of Hope

We often write about the sad stories of people who pass away from mesothelioma; of women like Nellie Kershawe, a mother who died from ‘pulmonary asbestosis’ in her early thirties as long ago as 1924. It is right and fitting that we should not forget those people and their journeys.

But what about the stories of positivity and hope? What about the people living now with mesothelioma? As shocking and sad as it is to see children and young adults diagnosed with mesothelioma, there are countless positive news stories which we can draw upon to offer hope to those who are living with and fighting this asbestos-related cancer.

Macie Greening – teenage inspiration

Macie Greening was just 14 years old when she was diagnosed with peritoneal mesothelioma in spring 2018. ‘Macie’s Army’ was swiftly formed by her friends and family to raise money for a family holiday to Florida. Macie’s family have now booked the holiday and will be going in a few months. Spurred on by Macie’s Army’s efforts, Macie has decided to continue fundraising to help children in a similar situation. Just humbling.

Macie is taking part in a clinical trial which is not usually available to children but the results are looking promising, with scans showing that the tumour as shrinking. Long may this continue and how amazing it is that Macie is inspired to help others whilst undergoing her treatment. To donate to Macie’s fund please click here.

Mags Portman – leading from the front-line

A consultant in sexual health and HIV with a particular interest in the prevention of HIV, this mum to two boys was diagnosed with mesothelioma in 2017.

Mags shares her belief in the importance of research and the hope that clinical trials provide. She had some success with first line chemotherapy but, when her disease progressed following the second cycle, she began privately funded immunotherapy. She draws parallels between her own healing journey and that of her patients, who have been diagnosed with HIV - an entirely preventable disease, but one that has had greater funding for research over the years than mesothelioma. Whilst, undoubtedly, she has been through some difficult times, Mags continues to live her life to the full and blogs about the pain and discomfort, but also the laughter, meals out and trips away with family, whilst flying the flag about the importance of research and clinical trials.

“We were delighted to see that just a couple of months ago, after switching to platinum-based chemotherapy, Carboplatin and Gemcitabine, Mags’ physical symptoms seemed to have vastly improved and there has been some tumour shrinkage. Once she has completed the six cycles of chemotherapy, she will look at clinical trials again.

Back in 2004 when I began working with mesothelioma patients, clinical trials were not on the radar. It’s encouraging to see that mesothelioma research has come so far in a decade. Mesothelioma UK are a fantastic source of information about current clinical trials, which are developing constantly.”

For more information click here and telephone Mesothelioma UK if you are interested in participating in any clinical trials to find out whether you could be a suitable candidate.

Mavis Nye – Mesowarrior!

“Mesowarrior” Mavis Nye probably needs little introduction; she and husband, Ray, have done so much to raise awareness of mesothelioma, clinical trials and the health and safety concerns about asbestos that still affect the UK. Diagnosed almost 10 years ago, Mavis continues to support mesothelioma sufferers and their families, travelling up and down the country between treatments to give presentations, attend industry events and support group meetings. Whilst continuing to live life to the fullest, she has set up the Mavis Nye Foundation, a charity which will provide research grants to fund clinical research into treatment for mesothelioma and other asbestos-related diseases. The first application process is open from January to 31 March 2019. For more information, and to apply for this grant, please click here. We are behind you Mavis!

Liam Bradley- cracking on with life

And if it’s a male role model you’re looking for, meet Liam Bradley. Diagnosed at 30 years old, Liam commented,

“The first few months were a blur, always wondering if this would be my last Christmas or my last birthday but, as time went on, I learnt to basically stick two fingers up at the cancer. After the first six months or so, I became mentally much stronger. The main reason for that is my three-year-old daughter – I’m determined that nothing is going to stop me seeing her grow up.”

Liam challenged himself to raise £100,000 for Mesothelioma UK, by cycling from Nottingham to Alicante, a mere 100 miles a day! Completely committed to the charity, he also cycled to the patient and carer day at Mesothelioma UK’s event in October in Burton upon Trent. What an achievement and an inspiration!

For every inspirational story that is featured on social media or the local news, there are many more who are carrying out their inspirational yet humbling work away from the glare of the limelight.

There is no doubt about it; mesothelioma is a disease that devastates the lives of individuals and their families, but medicine is advancing, help is at hand and, as these courageous people have proven, where there’s hope there’s life, and there is always room for hope.

If you or a loved one have suffered from an asbestos-related disease and you would like to find out more about making a claim, contact us by email at idclaims@boyesturner.com.

Spinal injuries and assistive technology

Injuries to the spinal cord are life-changing. Spinal cord injuries can result in an extensive period of adjustment and rehabilitation for the injured person.

In addition to development in the physical recovery and rehabilitation process, there have been advances in assistive technology which can help the spinally injured patient improve their mobility and regain their independence after what is often a seriously debilitating injury.

Assistive technology covers a wide spectrum of different devices and equipment, so it is necessary considering the type of spinal cord injury to understand which type of technology could help. Whilst communication aids such as Eyegaze are becoming more commonplace, the technology to assist people to walk is less developed and, therefore, costly.

What is quadriplegia?

Quadriplegia occurs where there is a spinal cord injury above the first thoracic vertebra or within the cervical vertebrae C1-C8. A person with quadriplegia will have paralysis in both the legs and arms. The type of injury and rehabilitation will have a bearing on the extent of the paralysis. For example, a person with quadriplegia may be able to control some of their fingers or part of their hands. In more severe cases, quadriplegia can impair a person’s ability to breathe unaided.

What is paraplegia?

Paraplegia occurs where there is a spinal cord injury below the first thoracic spinal levels of T1-L5. An injury of this nature does not impact on a person’s ability to use their arms but will result in partial or complete paralysis of their legs. Again, the extent of the disability will depend on the type of injury.

Any injury to the spinal cord can result in ongoing permanent symptoms affecting the arms and legs and may involve paralysis, numbness and altered sensation.

 How can assistive technology help at home?

Adjusting from being fully independent to relying on family members or carers can be frustrating. Independent movement, which was previously taken for granted, disappears completely.  Assistive technology can help an individual to regain a degree of their past independence. It can enable a person confined to a wheelchair to be able to open doors, windows and curtains in their home, and move themselves throughout their own accommodation safely. Even simple things, such as turning on a light switch, can be done from a wheelchair by using an application on a mobile phone.

As with any significant debilitating injury, spinal injury increases vulnerability. It may be possible to insert a video surveillance system to control who is coming and going, or remotely operate electronic gates and garage doors, providing additional reassurance.

In preparing a claim for a client with a significant spinal injury it is necessary to consider and understand the various ways that technology may be of use. Lightweight computers or tablets are suitable for a person in a wheelchair to carry around, which will enable them to influence the world around them despite the significant restrictions they still face. Someone with a quadriplegic injury may need speech recognition software for communication, whereas a person with a paraplegic injury may be able to use a conventional keyboard and mouse.

How can assistive technology help in the outside world?

Losing the ability to drive can significantly curtail a person’s independence but vehicles can be adapted to allow the driver to drive from their own wheelchair, avoiding the need to transfer from wheelchair to car seat. Modern technology has developed so that voice activated controls can also be included in some adapted vehicles. A person with the use of their arms and/or hands can position themselves behind the wheel by accessing the vehicle from the back.

Social isolation is a significant hurdle for disabled individuals to overcome but assistive technology can help here too. For example, adapted golf clubs and specialist wheelchairs which support a person from seated to standing could enable a keen golfer to return to the sport they once loved. Such wheelchairs also help in social as well as sporting situations. For the more adventurous, organisations, such as The Scuba Trust, also enable people with quadriplegia, paraplegia and spinal injuries to scuba dive in a supported environment. There have also been great advances in assistive technology and gaming.

The Future

Assistive technology for those with a spinal injury continues to develop at a fast rate. Technology is becoming more accessible and the cost of such technology is likely to decrease as developments continue.

The future of assistive technology is exciting, constantly demonstrating that it is possible to expand the boundaries for disabled people, such as the participant who completed the London Marathon 2018 with the assistance of an exoskeleton.

Recently, electrical spinal implants enabled three men with spinal cord injuries to walk again. As specialist spinal cord injury solicitors, we would encourage our clients to consider the annual disabilities exhibition, Naidex, which showcases a range of new and upcoming technology to assist with every aspect of life.

The driving principle behind any claim is that compensation should, in so far as money can do so, put the injured person back in the position they would have been but for the negligent treatment which caused their injury. In cases of severe disability, this might appear to be an unrealistic exercise, but assistive technology can go some way towards improving independence, whilst ensuring that additional provision is made in the usual way for the costs of necessary care.

If you have suffered a spinal injury as a result of medical negligence and would like to discuss a potential claim, contact our spinal injury specialists by email at mednegclaims@boyesturner.com

Delay in diagnosing spinal tumours - Do I have a claim?

Spinal injuries have a devastating effect on lives. At a distressing time, our specialist spinal injury lawyers can offer straightforward and clear advice and assistance. Our approach is to work with our client and their family as necessary to ensure maximum compensation to help rebuild their lives.

What is a spinal tumour?

There are a range of different tumours which can affect the spinal cord including meningiomas and schwannomas. There are also other tumours which can affect the bones around the spinal cord such as Ewing’s sarcoma.

Surgery to remove a spinal cord or spinal bone tumour is usually the first line of treatment but it may also necessary to have radiotherapy and/or chemotherapy depending on the type of tumour. We obtained a six figure sum in compensation for a 17 year old boy following a delay in diagnosis of a Ewings sarcoma tumour of the spine.

Do I have a claim?

Our spinal injury claim specialists have helped clients who have experienced delays in diagnosis of a spinal tumour, resulting in a delay in treatment of their cancer. Delays in treatment can occur as a result of misinterpreting scans or a failure to investigate the symptoms of spinal cord compression, as well as other reasons.

Early diagnosis and treatment is essential for spinal tumours. The longer a tumour is present and pressing on the nerves in the spine, the more extensive any neurological symptoms will be and it will become less likely that a person will make a good recovery. In some cases, earlier treatment of the cancer by even a few hours or days can make a difference to recovery.

Where someone has experienced a delay in diagnosis of a spinal tumour, it is necessary to establish what injuries have been caused as a result of a delay in diagnosis and treatment of their cancer.

Demonstrating the extent of the damage caused by a delay can be challenging. In cases involving spinal tumours, even with an earlier diagnosis and treatment, often surgery is necessary to relieve any pressure on the nerves in the spine. Different tumours also grow at different rates. If a tumour is slow growing, it could be present for some time before any symptoms become apparent and some nerve damage could have occurred before the point of any potentially negligent treatment.

How we can help

Spinal tumours press on the nerves in the spine and this can result in neurological symptoms. The symptoms can vary depending on where the tumour is on the spine and the period of delay. The symptoms can include altered sensation such as numbness and pins and needles in the arms and hands and legs and feet. Tumours affecting the lower part of the spine can cause bladder and bowel dysfunction.

Following treatment there is a significant period of readjustment and adaptation to ongoing symptoms such as mobility issues. Compensation can help to provide therapies during rehabilitation, private care and specialist aids and equipment which may include assistive technology.

Complications arising from the treatment of spinal tumours can also occur for non-negligent reasons. If you would like to discuss whether you have a potential claim for medical negligence, we can assist you with this and advise whether you may be entitled to compensation which could help with your rehabilitation and recovery.

What happens when someone is found to be impersonating a vulnerable person for financial gain?

The recent case of Dudley Metropolitan Borough Council v Hill [2018] EWCOP 35 resulted in the Court making an order for committal to prison after the respondent was found guilty of impersonating P and incurring costs on P’s behalf that he was not authorised to do.

Background

P was a gentleman of 82 years of age living with dementia. P lived at home with support and the local authority was heavily involved in his affairs. During the proceedings, a provisional declaration was made that P lacked capacity and a deputy for property and financial affairs was put in place from January 2018.

What was the case about?

The case concerns an application for the respondent’s committal to prison for breach of certain injunctive orders made on 13 October 2017. The respondent was the son of P.

The respondent had previously been ordered not to contact P, directly or indirectly, or come within 100m of his house. This hearing was to determine whether he had breached those orders.

The respondent did not attend the hearing. As these were committal proceedings, the onus on proving the breach was on the local authority, the applicant.

The Court’s decision

Whilst the Court was not satisfied that some of the breaches had been proven to a criminal standard, it did find the respondent guilty of some of the breaches.

The breaches the respondent was found guilty of were:

  • Visiting P’s house when an injunction was in place
  • Arranging for the order and installation of a BT phone line and broadband without the authority of P and using the equipment at P’s property which meant further visits to P’s house when an injunction was in place.

When the BT order was placed, the caller purported to be P, giving his details including name, address and date of birth. The numbers the BT phone line was used to call were examined and the numbers were found to have links to the respondent – on many occasions it was used to call the respondent’s girlfriend. Therefore, the Court felt certain beyond reasonable doubt that the person who had placed the order with BT was the respondent.

In terms of the BT order, records show this was placed after the appointment of a deputy and therefore, the deputy was the only person with authority to incur place orders or make purchases on behalf of P. The Court found that the respondent had impersonated P in placing the BT order and had also incurred costs on P’s behalf that he was not authorised to do.

The respondent was sentenced to 4 months in prison.

What if I have concerns about a vulnerable person?

If a person is no longer able to manage their own property and financial affairs, and has not made a Power of Attorney, then an application should be made to the Court of Protection for the appointment of a Deputy.

What can be seen from this case is how important it is that the person’s money is properly managed and that decisions are made in the person’s best interests. Our specialist Court of Protection team has a wealth of experience in supporting individuals who lack capacity and their families.

For more information on deputyship and how we can help please contact our Court of Protection team by email on cop@boyesturner.com.

Asbestos Sub-Committee Meeting, House of Commons

It was rather exciting to attend the all-party Parliamentary group on occupational safety and health, the Asbestos Sub-Committee on Wednesday 12 December 2018 in Room 11 in the House of Commons, just a few doors down from room 14 where Mrs May’s political fate hung in the balance. The atmosphere was buzzing, but the Asbestos Sub-Committee were focussed upon their important Agenda regarding asbestos issues.
 

Asbestos Victims Charter for Justice 

The Asbestos Victims Support Groups for UK updated us on the new draft Asbestos Victims Charter for Justice. It is a shocking statistic that in the UK this year more people will die of mesothelioma than will be killed on the roads. Every year the number of people affected by asbestos diseases continues to rise. The aim of the Charter is to set out a number of reforms that help achieve the aim of justice to asbestos disease sufferers and their families.
 
The Forum remind us that the UK has the highest mesothelioma incidents in the world. The main changes to the Charter since four years ago relate to fair compensation. 
 
We certainly support a new military veteran’s charter; especially that bereaved spouses can make an application for a lump sum, in the same way as under the Diffuse Mesothelioma Scheme and that lifetime payments ought to be increased to reflect the average civil claims pay-outs (which are increasing in themselves). 
 

Fair compensation 

Fair compensation was a common theme throughout the meeting. It was of some concern that posthumous awards made under the Pneumoconiosis etc (Worker’s Compensation) Act 1979 and the 2008 Diffuse Mesothelioma Scheme are not made at the same rate as in life payments. It was said that this mostly put women at a disadvantage as it is usually women (although not always) who are making claims following the death of a husband due to mesothelioma. The Scheme is a tariff and based on age. For example, someone suffering with mesothelioma that makes the application during life who is aged 75 (under the 1979 Act) will receive £14,995 whereas if the same application is made following their death under the 2008 scheme), the spouse will only receive £7,763.
 
Whilst the Diffuse Mesothelioma Payment Scheme 2014 appears to be working well, there are still some real deficiencies with the system. One such problem is that whilst payments are now said to be 100% of the original award in all cases, tariff payments should still be increased in line with CPI each year at the same time as social security benefits. The Sub-Committee heard that there should be a review of the Scheme every two years, using the most recent annual figures available to ensure tariff payments accurately reflect average civil compensation awards.
 
The point was made that the average that was previously applied in civil cases is no longer up to date. Mesothelioma awards in civil claims are often typically higher in recent months to allow for the costs of private treatment (not always available on the NHS) such as immunotherapy. The tariff for the Diffused Mesothelioma Payment Scheme should therefore increase accordingly. 
 

What about other asbestos related diseases?

The Sub-Committee didn’t just focus on instances of mesothelioma. It was recognised that there is also a need for a scheme, similar to the Diffuse Mesothelioma Payment Scheme, but for other asbestos related diseases such as asbestosis, lung cancer and diffuse pleural thickening. The only recourse for patients suffering with these diseases, where there is no applicable employers’ liability insurers, is via the Pneumoconiosis Workers Compensation Act Scheme (where the amount are substantially lower than under the 2014 scheme) and if they contracted the disease through means other than employment, there is no recourse. 
 
There is also a difference with the way in which claims for mesothelioma and those for other asbestos related diseases such as lung cancer can be funded. Mesothelioma claimants have always been able to recover their success fee and after the event insurance premiums from the losing defendants in successful cases. This was the case previously for other asbestos related disease claimants, but since April 2013, claimants are no longer able to do this. If a claim is successful, then a lung cancer claimant for example may have to have their success fee and insurance premium deducted from their compensation. There was a call therefore to bring about equality in terms of asbestos related diseases and justice for all people suffering from asbestos disease and to return to the previous position of recovering success fees and insurance premiums from defendants.
 

Report on the Forum’s case against Cape

Action had been taken to stop Cape destroying vital evidence from previous cases and that all disclosure of these documents was in the public interest. The High Court ruled in favour of the Forum against Cape, but Cape appealed and the case was heard again at the Court of Appeal over the summer. The Master allowed disclosure of a number of documents but provided that if there were further documents needed, the claimants would have to come back to Court to obtain permission for those further documents. There is now an appeal to the Supreme Court which is going to be heard on 18-19 February 2019. 
 

Asbestos in schools

Always an emotive topic, we were pleased to hear that there has been some progress regarding asbestos in schools. The Department of Education is seeking assurances that asbestos in schools is being identified and managed appropriately. There is a newly appointed Chief Inspector responsible for education at the Health & Safety Executive who has instigated the undertaking of proactive inspections in 50 schools across England, Wales and Scotland. We were told that the chosen schools will not get more than a week’s notice of the inspection and the process is not intended to be a paper exercise with inspectors tasked with spending a whole day looking at the relevant building. There is still, of course, a long way to go, but we see this as a really positive development.
 
For more information about any of the above applications and wards please contact our mesothelioma and asbestos claims at idclaims@boyesturner.com .
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