Miss Jaida Mae Hopkins (a child and protected person by her grandmother and Litigation Friend, Mrs Debra Ann Hopkins) v MS Azam Akramy
| Jurisdiction | England & Wales |
| Judge | Melissa Clarke |
| Judgment Date | 15 December 2020 |
| Neutral Citation | [2020] EWHC 3445 (QB) |
| Docket Number | Case No: QB-2017-000748 |
| Date | 15 December 2020 |
| Court | Queen's Bench Division |
[2020] EWHC 3445 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
HER HONOUR JUDGE Melissa Clarke
(Sitting as a Judge of the High Court)
Case No: QB-2017-000748
Mr Simon Readhead QC (instructed by Shoosmiths LLP) for the Claimant
Mr Angus McCullough QC (instructed by Weightmans LLP) for the 3 rd Defendant
Trial date: 21 October 2020
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.
HER HONOUR JUDGE Melissa Clarke
I. Introduction
This is the judgment in the trial of a preliminary issue in relation to a claim for damages for personal injury arising from allegedly negligent medical treatment on 28 December 2008.
The question is whether on this date a Primary Care Trust (“ PCT”) owed a non-delegable duty of care to protect NHS patients from harm, including harm from the negligent provision of primary medical services by a third party. The parties believe the question is a novel one which has not previously arisen for the Court's determination.
In Woodland v Swimming Teachers Association and Ors [2013] UKSC 66 Lord Sumption, at paragraph 2, expressed reservations about the wisdom of determining the existence or otherwise of a non-delegable duty of care by way of trial of a preliminary issue. The parties have considered this. They have sought a summary determination as they agree: (i) the preliminary issue is capable of disposing of the claim against D3; and (ii) its resolution one way or another will make it easier for all parties to assess their position in the litigation. Master Eastman acceded to the request and ordered the trial of preliminary issue on 13 November 2019.
The Claimant and D3 have agreed an assumed set of facts, set out below, against which they ask for this question of law to be determined. It is important to note that the Court has not found those facts, and they may be the subject of further evidence and findings, which may be contrary findings, at any substantive trial. It is common ground that neither the substantive trial judge nor any of the parties will be fettered by the assumed facts.
The trial of the preliminary issue was heard remotely by video hearing. Mr Simon Readhead, Queen's Counsel, appeared for the Claimant and Mr Angus McCullough, Queen's Counsel, appeared for D3. I thank them for the assistance they have provided in their written and oral submissions. D1 and D2 did not participate beyond keeping a watching brief.
It is necessarily the case that the preliminary issues trial, being concerned only with issues of law, was a matter of dry legal argument. At the start of the trial the Court and both leading Counsel expressed to Mrs Debra Hopkins, the Claimant's grandmother and litigation friend who was in remote attendance, that although it would not focus on the circumstances and consequences of her young granddaughter's illness and treatment at this stage, that did not mean that she is forgotten. As Counsel acknowledged, irrespective of where liability may or may not ultimately be found to lie, the catastrophic consequences of the Claimant's illness are nothing less than a tragedy. She has been left very seriously disabled, wholly dependent on others and will require constant care and support for the rest of her life. I have no doubt that the sympathies of every participant in this case, whatever their role, are with the Claimant and her family.
II. The Parties
The Claimant is a child who was born on 19 June 2006. At all relevant times she was living with her grandmother, Mrs Debra Hopkins, and step-grandfather, Mr Hall.
D3 is the NHS body now responsible for, inter alia, the liabilities of the former South Birmingham Primary Care Trust (“ SB PCT”). In 2008, SB PCT had a statutory duty to provide or secure the provision of primary medical services to NHS patients in South Birmingham.
D2 is a group of registered limited companies which in 2008 provided, inter alia, out of hours (“ OOH”) to NHS patients in South Birmingham at the Badger Medical Centre at Selly Oak Hospital (“ the BMC”), pursuant to a contract with SB PCT dated 1 December 2006 (“ the 2006 Contract”).
D1 is a nurse practitioner who at the relevant time, being 27 December 2008, was engaged by D2 to provide OOH medical treatment and advice to patients at the BMC.
III. Assumed Factual Background
The Claimant became unwell on 26 December 2008, at which time she was aged 2 1/2. She was eating and drinking very little and was not interested in television or her Christmas presents. She was also moaning and would not talk. All this behaviour was out of character for her.
The Claimant's condition did not improve. By 27 December 2008 she was unsteady on her legs and weak. Mrs Hopkins was worried, so she telephoned the local general practitioner's surgery. An automated message provided her with a telephone number for OOH emergencies. Mrs Hopkins telephoned this number. She was advised to take the Claimant to the BMC. Mrs Hopkins had not been to the BMC before. She assumed that it was part of Selly Oak Hospital. She took the Claimant there because she was advised to do so.
Mrs Hopkins says that if the BMC had not been mentioned:
“I would have taken [the Claimant] to A&E at the hospital. I thought it was all NHS. [The Claimant] was an NHS patient. I had no knowledge that the Badger Centre was not run or managed by the NHS. I was not informed that it was managed by a private organisation separate from the NHS. I just thought “Badger” was the name of the clinic.”
Later that morning Mrs Hopkins and Mr Hall attended with the Claimant at the BMC. This was based in a unit in Selly Oak Hospital. The Claimant was initially seen for triage by Ms Pritchard, a healthcare assistant employed or engaged by D2. Subsequently the Claimant was seen and assessed by D1. During the consultation the Claimant was examined by D1 and Mrs Hopkins provided D1 with an account of how the Claimant's condition had developed.
Following the consultation D1 recorded:
“… Clinical code – Temperature … Clinical code – Upper respiratory infect(ion). N(o) O(ther) S(ymptoms) … Diagnosis entered – acute pharyngitis”.
D1 prescribed penicillin and advised Mrs Hopkins to:
“… (i)ncrease fluid intake, cont(inue) with paracetamol to control fever, if sxs (symptoms) worsen to call back for review, if sxs (symptoms) persist see own GP for review. (Patient to contact GP) (Advised to Call Badger Back if Necessary)…”
The Claimant's symptoms did not improve. On 29 December 2008 the Claimant was taken by ambulance to the Birmingham Children's Hospital.
An MRI brain scan showed hydrocephalus and multiple abnormal areas in her brain. The Claimant underwent an emergency neurosurgical procedure. She was nursed in the Intensive Care Unit and then a rehabilitation ward. She was discharged home on 6 March 2009.
The Claimant has suffered permanent neurological damage. She is now quadriplegic with a severe visual impairment, epilepsy and bulbar palsy.
The OOH service at the BMC was provided by a company within D2 pursuant to a contract dated 1 December 2006 with SB PCT. D2's company separately employed or engaged healthcare practitioners to provide OOH primary medical services to NHS patients. In particular, it engaged D1 to provide such services as a nurse practitioner at the BMC. It was in that capacity that D1 saw and assessed the Claimant on 27 December 2008.
IV. Matters leading to the Preliminary Issue trial
D1 has a policy of indemnity issued by the Royal College of Nursing, but this is limited to £3,000,000 inclusive of her own and any other party's costs and there is no discretion to extend the limit of the indemnity. It is common ground that the extent of the Claimant's disabilities arising from her illness are such that if liability is established against D1, this indemnity cover may not be sufficient to meet her claim for full damages and costs.
Although the 2006 Contract required D2 to carry “adequate insurance against all liabilities arising from negligent performance of the Services under the [2006] Contract” (‘Services’ being defined to include the OOH primary medical services provided to NHS patients at the BMC), D2 has confirmed that it is uninsured for the purposes of any liability to the Claimant. The extent of D2's assets against which the Claimant could enforce any judgment she may obtain, is unknown.
It is for these deficits in insurance provision that the Claimant sought, and obtained permission, to join D3 as a party. Both parties, rightly in my view, accept that the insurance position is mere background and should not colour my consideration of the legal question before me. I will ensure it does not.
So far as is relevant, the Claimant's case as a whole is that:
i) D1 is liable in negligence and/or breach of duty for failures in C's care. D1 denies those allegations;
ii) D2 owes a non-delegable duty of care to the Claimant for D1's acts, and/or D2 is vicariously liable for such negligence and breach of duty as may be proven against D1. D2 in its defence admits that is so;
iii) D3 is now responsible for any liabilities of the SB PCT arising out of clinical contracts entered into by the PCT in relation to ‘Alternative Medical Provider Services’, to the extent that such liabilities fall within the terms of paragraph 16(2) of the Health and Social Care Act 2012 South Birmingham Primary Care Trust Property Transfer...
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Medical Law Briefing - December 2021
...a distance to someone not already a patient was significantly different and gave rise to no such duty. 20. Hopkins v Akramy and ors [2020] EWHC 3445 (QB); [2021] Q.B. 564 postdates the Woodland case. The Claimant was severely injured due to allegedly negligent medical treatment provided at ......
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Medical Law Briefing - December 2021
...a distance to someone not already a patient was significantly different and gave rise to no such duty. 20. Hopkins v Akramy and ors [2020] EWHC 3445 (QB); [2021] Q.B. 564 postdates the Woodland case. The Claimant was severely injured due to allegedly negligent medical treatment provided at ......