Jones v Royal Wolverhampton NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 26 June 2015 |
| Neutral Citation | [2015] EWHC 2154 (QB) |
| Court | Queen's Bench Division |
| Date | 26 June 2015 |
| Docket Number | Case No: TLQ/14/0644 |
[2015] EWHC 2154 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Green
Case No: TLQ/14/0644
Mr R Clancey QC (instructed by Pattinson and Brewer) appeared on behalf of the Claimant
Mr J Whitting QC (instructed by Browne Jacobson) appeared on behalf of the Defendant
(As Approved)
There is before the court an application by the claimant for permission to amend the particulars of claim to introduce a new test in law for breach and new particulars thereof. The issue arises in the context of a claim alleging a failure by a nurse employed by the defendant to warn the claimant of what is said to be a small but identifiable risk that the possibility or risk of a stroke could be prevented or greatly reduced by anti-coagulation and that she would have to wait two to three weeks for treatment in the hospital but that she could have the treatment far sooner at her GP's.
In brief, the claim arises in the following way. The claimant's daughter is a nurse. She realised that the claimant had an abnormally fast heart beat in July 2008. In consequence, the claimant sought medical advice. In the first instance this was from her GP but she was then referred and seen in the arrhythmia clinic at the New Cross hospital in August 2008. At this time a nurse employed by the defendant confirmed the existence of atrial flutter. It was recommended that the claimant should have D C cardioversion, namely an electric shock administered under sedation or anaesthetic to return the heart to its normal rhythm. It was also recommended that the claimant should be anticoagulated. However, anticoagulation was not immediately commenced.
Shortly thereafter, on 27 August 2008, the claimant suffered a severe stroke. That affected the right side of her body. Subsequent CT scanning revealed that she had an occlusion of the left middle cerebral artery and in consequence the claimant now suffers from a significant degree of disability. The nub of the allegation of negligence focuses upon the failure to start anticoagulation within a reasonable period of time in order to curtail the risk of stroke.
On 11 March 2015 the Supreme Court handed down its judgment in Montgomery v Lanarkshire Health Board [2015] UKSC 11 in which the court modified the well-known Bolam test for negligence.
The claimant submits in the light of Montgomery that in order to prove liability prior to that case practitioners had to establish that a warning of a particular risk should have been given. However, given that the Bolam test applied if there was a practice to the contrary accepted as proper by a reasonable and responsible body of professional medical opinion then a failure to warn or inform would not be negligent. That meant establishing to the court's satisfaction that any reasonably competent nurse in the position of the nurse in question would have told the claimant of the additional risk of stroke if not anticoagulated immediately and that in order to avoid that risk she should go to her GP and start treatment forthwith or as soon as possible go to the acute service for anticoagulation to be commenced; but if there was a body of reasonable or responsible opinion which would not have given this advice then the claim would fail.
Mr Clancey QC has explained to me that it was not the view of the claimant's advisers at the time that she could succeed upon a Bolam type argument. It is now, however, submitted that Montgomery has altered the legal landscape. The court there decided that a medical professional had a duty to take reasonable care to ensure that the plaintiff is informed about any material risks involved in recommended treatment and of reasonable alternatives. That the test for materiality focused upon whether a reasonable person in the same position as the patient would be likely to regard a particular risk as significant or the doctor is or should reasonably be aware that the patient would be likely to attach significance to it: see the judgment in Montgomery at paragraph 87. As a caveat to this, which does...
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Clark v Greater Glasgow Health Board
...proposed new case does require to be supported, at least to that extent, by expert opinion [cf. Jones v Royal Wolverhampton NHS Trust [2015] EWHC 2154 (QB)]. Since the proposed new case appears to make separate criticisms of the decision to offer VBAC, the decision to augment VBAC and also,......
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Alexander Georgiev (by his mother Mrs Georgiev acting as litigation friend) v Kings College Hospital NHS Foundation Trust Appeal
...further particulars of the amended claim, following the approach taken by Green J in the case of Jones v. Royal Wolverhampton NHS Trust [2015] EWHC 2154. He submitted that the Master was wrong to distinguish that case. In my view the Master was right to take the view he did about Jones: the......