Hazel Kennedy v Dr Jonathan Frankel
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Yip DBE,Mrs Justice Yip |
| Judgment Date | 25 January 2019 |
| Neutral Citation | [2019] EWHC 106 (QB) |
| Date | 25 January 2019 |
| Court | Queen's Bench Division |
| Docket Number | Case No: TLQ17/1118 |
[2019] EWHC 106 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Yip DBE
Case No: TLQ17/1118
Claim No: HQ16C03906
Mr Jonathan Holl-Allen QC (instructed by Anthony Gold) for the Claimant
Ms Claire Toogood (instructed by Clyde & Co) for the Defendant
Hearing dates: 17,18,19,20,21 December 2018
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mrs Hazel Kennedy is a retired primary school teacher, now aged 56. She is married to Dr Philip Kennedy, who was a consultant neurologist until his retirement in 2006. In 2006, when aged 44, Mrs Kennedy developed a tremor in her left upper limb. Her husband was concerned that this was a sign of Parkinson's disease and arranged for her to see his former colleague, Dr Jonathan Frankel, a specialist in movement disorders. Dr Frankel saw Mrs Kennedy privately, but without charge. He diagnosed Parkinson's disease and advised on her treatment. Dopamine agonist medication, which the Claimant took on his advice, caused her psychiatric side effects, including an impulse control disorder (ICD) and eventually psychosis.
It is the Claimant's case that the Defendant failed to advise her of the risk of impulse control disorder associated with dopamine agonist medication and that he failed to respond in a timely or appropriate way when she developed the condition. She accepts that an appropriate warning would not have deterred her from taking the medication initially but contends that, properly advised, she would have ceased taking it far earlier and would have avoided the serious effects that developed. She therefore brings a claim for clinical negligence. It is an irony that it has since been discovered that she did not have Parkinson's disease at all. However, it is not alleged that this amounted to a negligent misdiagnosis.
Her claim relates to losses flowing from the ICD and psychosis. In addition to the more usual claims for treatment and care during her illness, she also brings claims relating to increased spending due to the ICD and for costs associated with separating from her husband as a consequence of her psychosis. Happily, the Claimant has now made a good recovery following cessation of the medication and her relationship with her husband has been restored.
The Defendant denies liability. He maintains that his treatment of the Claimant was reasonable at all times, based upon the information available to him at the time. Even if the Court finds that there should have been more detailed discussions about ICD and alternative medication, the Defendant denies that the Claimant's treatment would have been changed earlier than it in fact was.
There are live issues between the parties in relation to breach of duty, causation and quantum. Having exchanged skeleton arguments for trial, Ms Toogood for the Defendant sought to introduce an additional argument which had not previously been foreshadowed. Relying upon the recent decision of the Court of Appeal in Khan v MNX [2018] EWCA 2609, she contended that the Claimant's psychosis was a coincidental injury, falling outside the scope of the Defendant's duty, since the duty to warn related to the risk of ICD alone and did not extend to a risk of psychosis, which was an extremely rare complication.
A lively debate ensued as to whether the Defendant was entitled to raise that argument at trial and whether it required an amendment to the Defence. It is clear that if the Defendant is permitted to pursue the point, the Claimant will resist it. Mr Holl-Allen QC indicated that he did not accept that Khan v MNX had any material bearing on the principles applicable in this case. He does not accept that the development of a psychosis fell outside the scope of the Defendant's duty in any event.
Before I could rule upon the procedural arguments as to whether the Defendant was entitled to raise this issue, Counsel jointly proposed that I should defer consideration of all matters (procedural and substantive) relating to the Defendant's argument based on Khan v MNX, pending determination of the issues relating to breach of duty and causation as set out in the existing pleadings and the parties' primary skeleton arguments.
That was a sensible way forward. Hearing the arguments in full and ruling upon them risked delaying the trial, possibly to the extent that the evidence would not have been completed in the time available. Further, it was acknowledged that my findings on other issues might render the argument academic. The parties also indicated that they were hopeful, in view of the sums involved, that they might negotiate a resolution of the quantum issues once the primary arguments on breach of duty and causation had been addressed, without the need to determine this issue. Certainly, the time allocated for the trial would not have allowed for proper consideration of what was said by Ms Toogood to be a new point, arising out of the Court of Appeal's decision in Khan v MNX.
I have therefore adopted the parties' suggested approach. Accordingly, this judgment is limited to the issues of breach of duty and causation (excluding the ‘scope of duty’ argument). Quantum will be adjourned and, if necessary, will have to be determined by the court at a later stage. All arguments surrounding the Defendant's reliance on Khan v MNX (both procedural and substantive) are deferred to the quantum stage.
Legal Principles
Save for the point identified above, the applicable legal framework is essentially agreed.
A specialist is required to “exercise the ordinary skill of his specialty” (see Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634 at 638). Here, it is agreed that the standard of care to be expected of the Defendant was that of a consultant neurologist with a subspecialty in movement disorders including Parkinson's disease.
The allegation that the Defendant failed to warn the Claimant of the risk of ICD and to advise as to alternatives to dopamine agonists is to be judged according to the test in Montgomery v Lanarkshire Health Board [2015] AC 1430, as conveniently summarised by the Court of Appeal in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307, at paras 32 and 33:
“32. The nature of the duty was held at [87] to be:
‘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.’
33. In the light of the differing roles identified this involves a twofold test:
(1) What risks associated with an operation were or should have been known to the medical professional in question. That is a matter falling within the expertise of medical professionals [83].
(2) Whether the patient should have been told about such risks by reference to whether they were material. That is a matter for the Court to determine [83]. This issue is not therefore the subject of the Bolam test and not something that can be determined by reference to expert evidence alone [84–85].”
The advice which the Defendant gave is to be considered according to the well-known test set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. The advice will be considered reasonable if it was in accordance with a responsible body of consultant neurologists with a subspecialty interest in movement disorders, even though other neurologists may have given different advice, provided that the advice had a logical basis ( Bolitho v City and Hackney Health Authority [1998] AC 232).
If breach of duty is made out, it remains for the Claimant to establish causation. Mere failure to warn of a material risk as defined in Montgomery is not sufficient to give rise to liability. See Duce at paragraphs 69 and 92 and Diamond v Royal Devon & Exeter NHS Foundation Trust [2017] EWHC 1495 (QB). The Claimant must establish that if she had been given the appropriate warning / advice she would have come off or reduced the dopamine agonist medication earlier, thereby reducing the severity and/or duration of the side effects.
The involvement of Dr Kennedy
The relationship between the Defendant and the Claimant's husband is an unusual feature of the case. The Defendant agreed to see the Claimant privately and did so without charge as a favour to his recently retired colleague.
Until his retirement, Dr Kennedy was a general neurologist. He would see patients with Parkinson's disease in his clinics but, unlike Dr Frankel, he did not have a sub-specialism in movement disorders. He had identified Dr Frankel as an appropriate specialist for his wife to see because he was a specialist in the field.
Dr Kennedy was involved in making appointments for the Claimant. It was he who first suspected Parkinson's disease. He made suggestions for changes in her drug regime and provided information about her condition. However, Dr Frankel does not suggest that Dr Kennedy's involvement altered the doctor-patient relationship, or in any way removed or reduced the duty of care he owed to Mrs Kennedy. He readily accepted that decisions about Mrs Kennedy's management and the advice he gave remained matters for him. In an email dated 20 March 2013, written to Dr Kennedy, he said “I can absolutely state that you never attempted to influence me in any way”. That email can be read as a sensitive response to attempts by Dr Kennedy to resolve the marital difficulties. However, the clear impression I have is that Dr Frankel has never sought to shirk his responsibilities to the Claimant or to shift blame to Dr...
To continue reading
Request your trial