'A Letter of Advice to Nhs Litigation Authority on Clinical Neglgence Case of Missed Fractured Scaphoid Bone\r'

'To: NHS litigation Authority, Re: Chandler Bing v Friends wellness NHS metrical unit leave Dear Sir/ Madam, Thank you for your referral of the look concerning Mr. Chandler Bing’s mixed-up shatter scaphoid study received on 31 August 2010. The followers is the Letter of Advice to the NHSLA concerning the above-menti peerlessd grimace. The Claimant: 1. The Claimant was born on 8 April 1969. As a result of the events referred to in their particulars of seize the lay claimant is now represented by Bloomingdale Solicitors to frame to launch a civil action against Friends Health NHS chthonianstructure put on 31 August 2010.\r\nThe suspect: 2. The suspect was at all applicable times responsible for(p) for the management control, and administration of Friends Health NHS Foundation self-assertion, and for the employment of resorts, nurses, and anformer(a)(prenominal) medical specialist s including fatality medicine, radiology and orthopaedic surgeons at and for the invention of the said hospital. Duty of c argon: 3. Each of the doctors, nurses, and other staff employed at the hospital who case-hardened the Claimant at the hospital owed the Claimant a trade of care. This barter acceptd a duty in valuate of: a. The advice granted to the Claimant; . The diagnosing made in esteem of the condition of the Claimant; c. The discussion prescribed for the Claimant and advice as to the effect of the treatment; d. The monitoring of the Claimant whilst treatment was given to the Claimant. 4. The Defendant is vicariously liable for every such reveal of duty on behalf of all of its employees. Procedural locomote: 1. Protocol Steps: a. Obtaining health records: to house comfortable propoundation to alert the healthcare supplier where an untoward startcome has been serious; to request for specific medical records involving the case. . Request for copies of unhurried’s clinical records with approved standard forms. c. Make sure the copy records to be provided within 40 eld of the request and for a cost not exceeding changes permissible under the Access to Health Records Act 1990. d. If the healthcare provider fails to provide health records within 40 days, their advisers disregard accordingly apply to court of justice for an order for pre-action disclosure. e. If health care provider leases additional health records are inevitable from a third political party, these should be bespeak through the unhurried.\r\nThird party healthcare providers are judge to co-operate. 2. The response: Letter of response: a. Provide requested records and invoice for copying. b. Comments on events and/or chronology. c. If breach of duty and causation are accepted, suggestions for resolving the claims and request for only information convolution to settle. d. If breach of duty and/or causation are denied, outline explanations for what happened by Healthcare provider suggests shape up steps like upgrade investig ations, commenceing expert differentiate, meetings, negotiations or mediation, or an invitation to issue proceedings. e.\r\nHealthcare provider should acknowledge receipt of letter of claim within 14 days of receipt. f. Healthcare provider should, within 3 months of letter of claim, provide a reasoned answer. g. If claim is admitted, then the Healthcare provider says so. h. If any part of claim is admitted, then Healthcare provider makes clear which issues of breach of duty and/or causation are admitted and which are denied and why. i. If claim is denied, include specific comments on allegation of negligence, and if synopsis or chronology of relevant events provided and is repugnd, Healthcare provider’s edition of events provided. . Additional documents, for instance, internal protocol, copies provided. k. If patient made an offer to settle at this stage as a counter-offer by supporting medical bear witness, and/or other evidence in addition to claim in healthcare provide r’s possession. l. If parties reach contract on liability, but time is require to subside claim, then aim to agree a logical period. Witness Evidence: The seees concerned in this case include: 1. Claimant’s family members and colleagues concerning the acc ingestiond waiver of go bad in daily activities of living. . Healthcare providers beside the medical doctor in adventure and Emergency part, including accident and emergency doctors and consultants, radiologists, orthopaedic specialists, nurses, family doctors, etc, who have treated the Claimant. 3. The Claimant himself. Where a witness recital or a witness stocky is not man fourth-year, the party result not be able to call that witness to give oral evidence unless the motor hotel allows it. Matters to be covered in the witness’s statement allow include: 1.\r\nOccupation and working ability of the Claimant, if this has changed, since the blemish, previous business organisation of the Claimant. 2. Brief description of marital and family circumstances including dates of nativity of all the family members of the Claimant. 3. The Claimant’s amount of the sequence of events relating to the treatment in question. Care should be pretendn to reduce importing text and phraseology from medical records or reports that the Claimant would not use in the normal frame of discussing the case. 4.\r\nIf the witness’s factual recollection of events differs in any strategic respect from the medical records, or from the version of facts set out in the Defendant, the statement should acknowledge this and comment upon these differences. 5. The witness should describe the personal effects of the injury; this leave include the effects on his physical condition, emotional condition, the practicalities of everyday life, the Claimant’s pecuniary affairs, family life, and future plans and projects. Additional witnesses should state their proportionship to the Claimant. If a amily member is providing a statement which is collaborative of the Claimant’s amount of events, the witness should confirm that he or she has read the Claimant’s statement and state that he or she agrees with its contents, insofar as those within his or her knowledge. The statement should then deal with issues of which the witness arse give primary evidence. Where a party is unavoidable to serve a witness statement and he is unable to obtain such a statement, for recitation because the witness refuses to communicate with the Defendant’s solicitor, he whitethorn apply to the Court for the permission to serve only a witness summary instead.\r\nThis industriousness should be made without notice. The witness summary is a summary of the evidence which would otherwise go into a witness statement, or if the evidence is not known, matters virtually which the party serving the witness summary go out question the witness. Expert Evidence: 1. In clinical negligen ce disputes, expert opinions whitethorn be contended: a. On breach of duty and causation. b. On the patient’s condition and prognosis. c. To assist in valuing aspects of the Claims. The of import expert witnesses to be considered include: a.\r\nOrthopaedic specialists. b. accident and Emergency specialists. c. Radiology specialists. 2. The new civilised mental process Rules testament encourage economy in the use of experts and a less adversarial expert culture. It is recognized that in clinical negligence disputes, the parties and their advisers get out require flexibleness in their approach to expert evidence. Decisions on whether experts should be instructed jointly; and on whether reports might be let out sequentially or by exchange, should rest with the parties and their advisers.\r\n overlap expert evidence may be provide on issues relating to the value of the Claim. However, this protocol does not guarantee to be prescriptive on issues in relation to expert e vidence. 3. Obtaining expert evidence will oftentimes be an expensive step and may take time, especially in specialized areas of medicine, where there are limited comes of suitable experts. Patients and Healthcare providers, and their advisers, will therefore need to consider carefully how trump to obtain any necessary expert garter quickly and cost effectively. . Assistance in localization a suitable expert is visible(prenominal) from a number of sources. Here the NHSLA has already supplied a number of experts for this case. 5. This is a case of lost prison-breaking of the cannon of the scaphoid, for a patient initially seen in the adventure and Emergency surgical incision, is often a clinical diagnosis rather than a radiological diagnosis, because this fracture may not become apparent on an roentgenogram until often a period of 10 days, and sometimes konger, has elapsed. . Tenderness in the anatomical snuffbox at the base of the dorsal aspect of the thumb, or pain produc ed by proximal pressuring on the articulatio radiocarpea joint in radial deviation by comparison to the uninfluenced side, together with diminished power of grip, is an indication for the fortify to be put into a scaphoid be be plaster over of Paris. 7. The patient must have the plaster checkered the following day and will need to be roentgen rayed again in 10 to 14 days if a fracture line was not initially visible. 8.\r\nWhen a fracture of the scaphoid is suspected, â€Å"scaphoid views” should be asked for. 9. The doctor at Accident and Emergency Department must ensure that 4 views have been carried out: Anterior-Posterior, Lateral, Supination oblique, and Pronation oblique. 10. If there is doubt about the diagnosis or the fracture is displaced, then a more ranking(prenominal) or orthopaedic opinion must be sought forthwith, otherwise a scaphoid plaster must be applied, and the patient referred to the next Accident and Emergency review clinic or fracture clinic. 11. \r\n there is a component of contributory negligence by the Claimant who insists to remove the plaster in the follow up clinic despite he was strongly advised not to do so. The effect of this contributory negligence on the Claims should be further explored and evaluated. Quantum of stultifications: The means to numerate the quantum of modify made in this case of clinical negligence include various heads of the following wrong: 1. Pain, suffering and loss of amenity; 2. Loss of net profit; 3. Care and assistance; 4. Travel and parking; 5. multifarious expenses.\r\nThe Claims on items (1), (3), (4) and (5) are measured quite subjectively by the patient affected. The calculation of loss of earning could be done by using the Ogden tables, which are involving a set of statistical tables for use in Court case in the United Kingdom. Beside the age of this patient (Date of Birth=08/04/1969) being 41 years obsolescent on the date of claim (that is 12-11-2010) is known, we still need to know about the patient’s earning per annum, what is his occupation, whether he had any disability resulted, his qualifications, and his planned age for retirement.\r\nIn case where the period of loss of earnings will continue for many years into the future, it is particular important to ensure that amount is taken of probable hebdomadal changes to the Claimant’s income. The Claimant will want to point to expect career progression. In such cases, the Court will either: 1. Determine the average multiplicand, based upon the apt(predicate) earnings throughout the period of loss, which will be applied to the full period of the loss, or; 2. use up stepped multiplicands for each stage of the Claimants career.\r\n world(a)ly, this will result in a lower multiplicand at the beginning and perhaps at the very end of the period of loss, with one or more higher multiplicands to represent the likely career progression that would have been followed. There is a need to intervi ew the Claimant in more flesh out to decide these uncertainties for a more comprehensive evaluation. depart but not least, the importance of expert evidence in such a case is vital. medical exam evidence can provide an indication as to what work the Claimant will be capable of undertaking, two at present and in the future.\r\nThis, together with evidence of the Claimant’s employment prospective, will assist the Court in determine what will happen to the Claimant in the future. Another means to calculate for the approximate quantum of the damage in this patient is to look into common impartialitys and journals for confusable cases for comparison and a rough estimation of quantification of resembling claims. In Johns v Greater Glasgow Health Board1, a 44 years old lady stone-broke her scaphoid bones in both wrists in a fall. The fractures were only diagnosed three months later. As a result the fractures would not unit, causing continuous stupidity and pain.\r\nBone gra fting was contemplated, despite an earlier scoreless attempt. Held, that solatium was properly valued at 11,000 pounds with wage loss to date and for a further 4 years. In W v Ministry of Defence2, which is a case of trial to diagnose fractured scaphoid from clinical Risk 2010; deal 16: p. 198 (by Collier et al). The case was settled concerning damages awarded to the Claimant pursuant to the delay in the diagnosis of the fracture of his hand, without which the Claimant could have avoided undergoing surgery and regained his complete and normal wrist function.\r\nW made an offer to settle in the sum of 15,000 pounds. The amount awarded to the Claimant was reduced to 9,000 pounds by and by further negotiation. 1. Johns v Greater Glasgow Health Board (1990) SLT 459. 2. W v Ministry of Defence (2009) MLC 1652 In B v Norfolk & antiophthalmic factor; Norwich University Hospital3, the Claimant, a male nurse aged 29 years, had go to the Norfolk & angstrom unit; Norwich University Hospit al NHS Trust after falling off his bike in July 2004. His left fractured scaphoid bone wad missed and a non-united scaphoid fracture with humpback flaw and associated ligament damage had occurred.\r\nThe Claimant thus made a exposit 36 disco biscuit for the sum of 14,000 pounds that was agreed with the Defendants in March 2006. In N v Pontypridd & Rhona NHS Trust4, the Claimant injured his right wrist in a fall whilst ice-skating on March 14, 1998. He attended the Hospital’s Accident and Emergency Department and was noted as having a tender scaphoid. An X-Ray of the wrist was taken which was interpreted as disclosing no fracture. Nonetheless the wrist was set in plaster of Paris and the Claimant released. On March 19, 1998, the Claimant re-attended the Hospital’s Accident and Emergency Department still in pain.\r\nThe cast was removed; no X-Ray was repeated. The Claimant was given tubi-grip dressing and told to exercise the wrist. On April 29, 1998, the Claimant attended a different Hospital complaining pain and pompousness over scaphoid region. X-Ray showed a fracture of scaphoid bone in his right overriding hand. On whitethorn 29, 1998, the fracture showed sign of hold up union. As a result, a resolving power of get damage of 12,500 pounds; general damage of 8,000 pounds, and special damage for income loss and care of 4,500 pounds were awarded.\r\nIn P v United Bristol Healthcare NHS Trust5, the Claimant was involved in a fracas at nightclub in Bristol and arrested for punching warrantor camera. The Claimant attended Accident and Emergency Department at the Bristol Royal Infirmary on 27 May 2000 and he experienced problems relating to his right wrist. The SHO treated the injury as being a sprain and no X-Ray was taken. The Claimant’s GP then place tenderness in anatomical snuffbox. An X-Ray corroborate fracture through scaphoid being missed by Accident and Emergency Department. The Claim was eventually settled for 40,000 pounds with causation proved. 3.\r\nB v Norfolk & Norwich University Hospital (2006) MLC 1350 4. N v Pontypridd & Rhona NHS Trust (2003) MLC 1031 5. P v United Bristol Healthcare NHS Trust (2004) MLC 1159 QBD Settlement Where a Claimant has received State Benefits as a result of a disease and is later on awarded compensation, the Department for Work and Pension (DWP) will test to recover these benefits from the Defendant via a system operated by the Compensation Recover Unit (CRU). The CRU is in like manner responsible for collecting from a Defendant the cost of any NHS treatment that a Claimant has received following a clinical negligence.\r\nNotifying the DWP: Section 4 of the 1997 Act requires the compensator to inform the DWP not later than 14 days after receiving the Claim. The Notification should be made on figure out CR1 which is sent to the DWP. On receipt of Form CRU1, the CRU will send Form CRU4 to the Defendant. The Claim then progresses to the settlement stag e. When ready to make an offer of compensator, the compensator submits form CRU4 to obtain a present. The CRU acknowledges receipt of form CRU4 within 14 days. The CRU sends the Certificate to the compensator- a copy will also be sent to the Claimant’s solicitor.\r\nThe compensator will then settle the compensation claim and pay the relevant amount to the DWP within 14 days of the settlement. The compensator will also complete and send to the DWP Form CRU102 flesh out the outcome of the Claim. The rules relating to recovery of benefit apply to clinical negligence claims. Due to their complexity, especially relating to causation, the CRU has set up a specialist group to deal with the claims, and makes a special request their compensators inform the CRU about clinical negligence claims as soon as the pre-action accord is received.\r\nPart 36 Offer: A party who wishes to make a Part 36 Offer must first apply for a Certificate of Recoverable Benefit from the CRU. Although Part 36 does not spell it out , guidance from case law suggests that the offer should therefore particularize the various heads of damage, and request the amount of benefits to be deducted against each head. intermediation: The parties should consider whether some form of Alternative Dispute colonisation Procedure would be more suitable than litigation, and if so, elbow grease to agree which form to adopt.\r\nBoth the Claimant and Defendant may be required by the Court to provide evidence that alternative means of resolving their dispute were considered. The Courts take the view that litigation should be a last resort, and that claims should not be issued prematurely when a settlement is still actively being explored. Parties are warned that if the protocol is not followed, then the Court must have regard to such conduct when determining costs. Mediation is one option for resolving disputes without litigation: it is a form of facilitated negotiation assisted by an independent neutra l party.\r\nThe Clinical Disputes Forum has publish a guide to mediation which will assist, available at www. clinicaldisputesforum. org. uk The Legal Services Commission has produce a booklet on â€Å"Alternatives to Courts”, CLS Direct selective information Leaflets 23, which lists a number of organizations that provide ADR services. It is expressly recognized that no party can or should be forced to mediate or enter into any form of ADR. (Total: 3000 words) Bibliography: 1. Lewis: Clinical Negligence: A functional Guide, 6th edition, Tottel Publishing. . Khan M, Robson M, Clinical Negligence, 2nd edition, Cavendish Publishing. 3. Powers and Harris: Clinical Negligence, 3rd edition, Butterworths. 4. Woolf S (1995) Access to arbiter †lag Report HMSO. 5. Woolf S (1996) Access to Justice †final exam Report HMSO. 6. (1999) The Civil Procedure Rules HMSO. 7. â€Å"Making amend”, at www. dh. gov. uk 8. ”NHS compensate Bill” at www. publication s. parliment. uk 9. Civil judicial proceeding Handbook by Woolf, Lord Justice; Burn, Suzanne; Peysner John (2001), The Law Society. 10. A. A. S.\r\nZuckerman, Ross Cranston (1995), Reform of Civil Procedure- Essays on â€Å"Access to justice”, Oxford University Press. 11. The Judicial Studies Board, Guidelines for the Assessment of everyday Damages in face-to-face Injury Cases, 9th edition, Oxford University Press. 12. Personal Injury & Clinical Negligence: street fighter Conditions †The attorney 10/10/05, www. lexisnexis. com 13. Opinion: Edwina Rawson: The Lawyer 26/09/05, www. lexisnexis. com 14. Butterworths: â€Å"Risk Assessment in Litigation: Conditional Fee Agreements, Insurance and Funding”, David crank 15.\r\nThe Law Society: â€Å"Conditional Fees: A endurance Guide”, Napier and Bawdon 16. The Law Society: â€Å"Civil Litigation Handbook”, Peysner. 17. â€Å"Mediating Clinical Negligence Claims”, Roger Wicks, www. medneg. com articles 18. â€Å"Guide to Mediation”, www. clinical-disputes-forum. org. uk 19. â€Å"Guide to Mediating Clinical Negligence Claims”, www. clinical-disputes-forum. org. uk 20. Kemp and Kemp The Quantum of Damages, saucy and Maxwell. 21. aesculapian Litigation Online, www. medneg. com 22. AvMA Medical and Legal Journal 23. â€Å"General Damages †the NHS Case”, Philip Havers Q.\r\nC. and Mary O’Rourke, Quantum, Sweet & Maxwell (2000) 24. Practice Direction at www. justice. gov. uk 25. NHSLA website www. nhsla. com 26. Civil Procedure Rules at www. justice. gov. uk 27. Pre-action Protocol for the firmness of Clinical Disputes and Practice Direction †Protocols, www. justice. gov. uk 28. â€Å"Guidelines on Experts’ Discussions in the Context of Clinical Disputes”, Clinical Risk (2000) 6, 149-152 29. The â€Å" brief Guidelines On Experts’ Discussions in the Context of Clinical Disputes” (published by the Clin ical Disputes Forum) 30.\r\nPart 36 and its Practice Direction, www. justice. gov. uk. 31. The NHS Redress Act 2006 can be found online at www. legislation. gov. uk/ukpga/2006/44 32. Johns vs Greater Glasgow Health Board, (1990) SLT 459, www. medneg. com 33. W v Ministry of Defence, (2009) MLC 1652, www. medneg. com 34. B v Norfolk & Norwich University Hospital (2006) MLC 1350, www. medneg. com 35. N v Pontypridd & Rhona NHS Trust (2003) MLC 1031, www. medneg. com 36. P v United Bristol Healthcare NHS Trust (2004) MLC 1159 QBD, www. medneg. com\r\n'