New Part 36 really does have teeth - High Court awards uplift on cancer patient’s damages in clinical negligence trial

Posted: 24/02/2016

The High Court has given judgment in favour of our client in a claim against an NHS trust in early January 2016. An award of damages has been made and our client has been awarded a 10% uplift on his damages for beating his own Civil Procedure Rules (CPR) Part 36 offers made prior to trial. Indemnity costs and interest were also awarded to our client under the provisions of Part 36. This was one of the first costs budgeted clinical negligence cases to have reached trial following the Jackson reforms brought into force in April 2013. As the claimant came within budget, the court saw fit to award a significant interim payment on account of costs.

This claim relates to the admitted negligence of oncology doctors in failing to carry out a venous thromboembolism (VTE) risk assessment of the likelihood of developing a blood clot when our client was admitted to hospital in June 2010 following bladder cancer surgery the previous month. NICE guidance on “venous thromboembolism: reducing the risk for patients in hospital” requires all patients to be assessed for their risk of blood clots when admitted to hospital.

The claimant was 59 when he developed bladder cancer and had surgery to remove his tumour in May 2010. Prior to the surgery, he was correctly assessed for his VTE risk and, as a result of being assessed as high risk of developing blood clots, was given low molecular weight heparin (LMWH) over the course of a week. He suffered no ill effects from the heparin and did not have any issues with blood clots. He was discharged and commenced chemotherapy treatment as an outpatient.

After his first dose of chemotherapy, our client was re-admitted to hospital with abdominal pains. A history of pain and also of a peptic ulcer from 30 years previously was noted, but the impression of those assessing him was that the pain was probably chemotherapy-induced constipation. A gastrointestinal ulcer was also thought possible but unlikely. An abdominal X-ray showed constipation and nothing else. Further assessments concluded that the likely explanation for the abdominal pain was chemotherapy-induced constipation with dehydration. However, an oesophago-gastro-duodendoscopy (OGD) was ordered to rule out the possibility of ulceration or abdominal bleeding.

The trust admitted that it was negligent for failing to carry out a VTE risk assessment by the second day of his admission to hospital, in contravention of the NICE guidelines and its own VTE policy. No documented consideration was given to prescribing heparin to our client to prevent or reduce the risk of blood clots despite the presence of a number of high risk factors. Our client subsequently underwent his OGD which confirmed that there was no peptic ulceration or bleeding. Peptic ulcers or active bleeding would be a contraindication to the prescription of heparin. There is no evidence that the results were reviewed in the context of a VTE risk assessment or considering heparin by those managing the claimant and the trust negligently continued to fail to do a VTE risk assessment. 

Two days later, the claimant’s condition seriously deteriorated and he was diagnosed as having a pulmonary embolism. He subsequently underwent a number of interventions and, although the pulmonary embolism was successfully treated, he has been left with a number of permanent after-effects including the breathlessness, chronic leg swelling and the need for warfarin medication.  As a result of these, he has been left significantly restricted in his day-to-day activities and requires daily care and assistance.

Our client pursued a claim against the trust for its failure to carry out the VTE risk assessment and the hospital has admitted that it was negligent in failing to do this over a number of days. There is little dispute as to the nature of the problems that he then suffered and his condition following the pulmonary embolism.

Between the medical experts on both sides there is also a large measure of agreement that, at the time of the events, a VTE risk assessment would have revealed that the claimant had a number of significant risk factors, including the death of his mother to a pulmonary embolism.

What was in dispute between the parties is what would have occurred if the hospital had not been negligent and had done the VTE risk assessment. Our client’s case was that his level of risk factors for VTE should have resulted in the provision of heparin and that, had he been given heparin, this would have prevented the development of his pulmonary embolism. 

The trust argued that he would not, in any event, have been given heparin because of a concern about abdominal ulceration or bleeding and that, even had he been given heparin, this would not have prevented the development of the pulmonary embolism. It therefore admitted negligence but argued that our client would have suffered the same outcome even with non-negligent care. 

The parties and their experts were unable to reach agreement as to whether heparin was mandated or whether it would have prevented the development of the pulmonary embolism. The case therefore proceeded to trial mainly on these issues.

Having heard evidence from the claimant, the sole witness called on behalf of the trust, and the various experts, the judge found in favour of the claimant. She found that our client was a patient at high risk of developing VTE and a proper risk assessment carried out as required would have identified this. The judge found that, in the face of a patient at high risk of VTE, while there may have been some valid concern about the risk of ulceration or bleeding, the risk in these respects was far less to our client than the risk of not prescribing heparin. She found that, if the trust had acted with appropriate care, it would have prescribed heparin the day after admission to hospital. Having considered the available expert evidence, the judge further found, that on the balance of probabilities, our client’s pulmonary embolism would have been avoided if he had been given heparin. On that basis, our client has succeeded in his claim.

Commenting on the case, Lucie Prothero, a member of the clinical negligence team at Penningtons Manches LLP who had conduct of the case, said: “This is a sad case where a patient who should have been subject to an assessment of his risk of developing blood clots did not undergo that mandatory risk assessment during his admission. The very thing that our client alleges he was at high risk of developing without preventative measures subsequently happened and he has been left with lifelong disability as a result.

“The case was unusual in that, although the parties agreed on many points in respect of breach of duty, there were very strong arguments by both sides as to whether heparin would have been given with a proper VTE risk assessment and as to the benefit of giving heparin.

“We are pleased with the result and the damages will go some way towards assisting our client in his day to day life with his disabilities. But it was unfortunate that, in the face of its admitted failings, the trust chose to take this case all the way to trial rather than engage in any settlement negotiations. We had hoped that the trust would accept the consequences of its failures and an early settlement could be reached on good terms.

“Our client was not keen to litigate against the hospital and sought to try to settle his claim at several points in the case by making reasonable Part 36 offers. No Part 36 offers were received from the trust and it refused to engage in a joint settlement meeting. Our client therefore had no option but to see his case through to trial. Consequently, the loss of this case has resulted in costs penalties for the trust and an increase in our client’s damages. This case demonstrates the importance of all parties in litigation taking the new provisions of Part 36 of the Civil Procedures Rules seriously as it proves they really do have teeth.”

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