Medico-Legal Magazine Issue 4 by Iconic Media Solutions

MEDICO LEGAL M A G A Z I N E I SS U E 4

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Medico-Legal Magazine Welcome to the fourth issue of the Medico-Legal Magazine, produced by SpecialistInfo and publishing partner Iconic Media Solutions Ltd. As predicted in the last issue at the end of 2016, we are still in a period of uncertainty for the industry, with the soft tissue injury claims reforms which will be in place by 1 October 2018, and an ongoing fixed recoverable costs consultation announced at the end of January. In this issue we present pertinent articles, including a summary of the changes to soft tissue injury compensation in road traffic accidents, by Jonathan Dingle, and the challenges faced because of clinical negligence claims inflation, as discussed by Michael Devlin from the MDU. We continue to look at the growing use of mediation to settle medical claims, with several articles on this topic, including the endorsement of alternative dispute resolution by the NHS Litigation Authority, now renamed NHS Resolution from April 2017. We also include articles on the risks involved in the use of robotics and artificial intelligence in medical procedures; the continuing source of claims involving hand arm vibration syndrome; and a summary of injuries of the pelvic ring, which are also a common cause of personal injury claims. Once again the magazine will be circulated to more than 40,000 people in the industry, including doctors, insurance companies, law firms and medico-legal agencies. It is published on the Medico-Legal Section of the Specialistinfo.com website, and printed copies can be ordered from Iconic. Specialistinfo maintains a database of contact details for 90,000 UK consultants and GPs, including 8,800 consultants and 2,700 GPs who undertake medico-legal work. We also provides medicolegal training courses for expert witnesses. We welcome feedback from our readers, so please contact us with any suggestions for areas you would like to see covered in future, or share your news and experiences with us.

Lisa Cheyne SpecialistInfo Medico-Legal Magazine

Contents: 06

SpecialistInfo Medico-Legal Courses By Lisa Cheyne

Case Study - Mediation Helps Parties Discover What Matters Most By Jane Gunn

Understanding the Unsaid Signals By Andrea Gordon

New Industry Body Launched to Represent Medical Reporting Organisations By Paul Collin

Medico-Legal Aspects of Hand Arm Vibration Syndrome By Mr Michael Gaunt

An Invitation to Mediate? Accept! By Mark Field

Robotics and Artificial Intelligence in Healthcare By Greg McEwen

Mediation in Clinical Negligence Claims the New NHS LA Scheme By Brian Dawson

A Perfect Storm – the Spiralling Cost of Claims By Dr Michael Devlin

SpecialistInfo Medico-Legal News By Lisa Cheyne

Fractures of the Pelvic Ring By Mr Nikhil Shah

Hype and Flexion - “Whiplash Reforms” to Personal Injury Claims By Jonathan Dingle

Medico-Legal Magazine is published by Iconic Media Solutions Ltd. Whilst every care has been taken in compiling this publication, and the statements contained herein are believed to be correct, the publishers do not accept any liability or responsibility for inaccuracies or omissions. Reproduction of any part of this publication is strictly forbidden. We do not endorse, nor is Iconic Media Solutions Ltd, nor SpecialistInfo affiliated with any company or organisation listed within.

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Standard (Personal Injury) Medico-Legal Course General Overview (for anyone starting a medico-legal practice):

MEDICO -LEGAL COURSES: By Lisa Cheyne, Medico-Legal Manager, SpecialistInfo

Tr a i n i n g C o u r s e s for Expert Witnesses The dates and locations for the types of ML courses that we are holding during 2017 are listed opposite with links to our booking page.

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8th June 2017 – Birmingham

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13th September 2017 – London

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£330 (plus VAT) For further information about the Standard course, please visit: www.specialistinfo.com/a_ml_standard.php

Advanced Medico-Legal Course (for those who want to update their knowledge): •

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6th December 2017 – London

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Mediation Training Course (5 days or can be split into 3 Modules - please call for details): • •

15th-19th May 2017 – London

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12th-16th June 2017 – London

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10th-14th July 2017 – London

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2nd-6th October 2017 – London

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11th-15th December 2017 – London

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Clinical Negligence Medico-Legal Course (we recommend moving onto this course only after some basic training has been completed): •

9th June 2017 – Birmingham

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14th September 2017 – London

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23rd November 2017 – Manchester

£355 (plus VAT) For further information about the Clinical Negligence course, please visit: www.specialistinfo.com/a_ml_clinicalneg.php

Court Room Skills Medico-Legal Course (mock court sessions with realistic cross examination): •

15th September 2017 – London

For further information about the Mediation course please visit: www.specialistinfo.com/a_ml_mediation.php

To book your place on one of the above courses please complete the booking form on our website by clicking on one of the above links (discounts are available for multiple bookings – please call Lisa to discuss or to book over the phone). Please contact me, Lisa Cheyne, on 01423 727721 or email me at lisa@specialistInfo.com Numbers are strictly limited so early booking is advised to make sure you do not miss out on these enjoyable and highly informative courses. I look forward to hearing from you soon. Kind regards Lisa Cheyne Medico-Legal Course Manager

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CASE STUDY - MEDIATION HELPS PARTIES DISCOVER WHAT MATTERS MOST By Jane Gunn, In Place of Strife The key to resolving any conflict or dispute is to discover what matters most to the people involved. Mediation can help parties to move away from defending positions to uncover their real concerns and motives and find out what each person really needs to find a solution. Mary Odds was full of grief, following the death of her son Danny (a known drug user). She was also very angry and decided to sue Hopevale Hospital for an alleged error in diagnosis. She consulted a lawyer who advised her that she had a strong case. She also spoke with a national newspaper and with a local radio station to discuss publishing the story and naming and shaming the hospital. The lawyers commenced legal proceedings and the expensive job of preparing the case for trial began. After a while however, it was suggested that the parties might be prepared to work with a mediator to see if a settlement could be reached outside court. Mrs Odds’ position was that the hospital had been negligent, they had misdiagnosed Danny’s illness and, as a result, he had died. She was claiming a substantial sum of money in compensation and her lawyer had advised her that she had a very good chance of winning in court. Hopevale’s position was that the doctor had made the correct diagnosis at the time and that any other doctor would have made the same decision. Their lawyer also advised that they had a very good chance of winning in court. By relying only on their positions and the possibility of ‘winning’, it was impossible for Mrs Odds and Hopevale to move any closer to resolving their dispute. What came out in the mediation, however, was that, apart from the misdiagnosis, which was not clear-cut, there were several factors in Danny’s treatment that added to Mrs Odd’s sense of anger.

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In particular, she felt that the doctors and nurses looking after Danny were nervous about treating a known drug user. She felt very strongly that they needed to know how exactly to treat a similar patient in the future. What had really broken down was the relationship with the patient and his family because of fear and lack of knowledge and experience. The outcome to this case was that both the hospital and Mrs Odds needed more than to agree over a sum of money to be paid. What was more important was to make sure that, if such a situation should happen in the future, the hospital would be prepared to deal with it; that the staff would have the skills to manage the patient and any relatives. Mrs Odds found a far more creative solution that met both her own need to do something in memory of her son and the hospital’s need to learn from past mistakes. She offered her services to the hospital to become their first Champion for Drug Users, a role that involved her in teaching the medical staff of the particular problems and requirements of a drug user entering hospital for treatment.

Based on a true case but names are fictitious. Jane Gunn is a mediator with In Place of Strife. She is FCIArb, CEDR accredited, CMC Registered and IMI Certified Mediator and is also an International Speaker and Author of a popular book on conflict management “How To Beat Bedlam In The Boardroom And Boredom In The Bedroom". In Place of Strife is the Chambers for many of the UK’s most experienced mediators. To find out more please visit our website, www.mediate.co.uk or call our office on 0333 014 4575.

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UNDERSTANDING THE UNSAID SIGNALS By Andrea Gordon

Andrea is a professional actor and body language coach, well known for her current role as Bren Lee in Doctors on BBC1. As a fully qualified mediator, and after seeing there were a lot of crossover skills involved, she now presents and teaches mediation, role playing and communication skills to a wide variety of business corporations, including medical, law and media professionals. There is an old saying, "It's not what you say, it's the way that you say it" and, like many old things, it has become hackneyed and overlooked with time, but paying attention to the above adage is a huge factor in our success in communicating with each other, in all aspects of life... Up to 93% of our communication is non-verbal, yep, you read that right. Below is the breakdown for those that like figures: Our communication consists of approximately •

55% Body Language: facial expressions, body gestures, postures etc.

•

35% Voice

•

10% Words

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We are trained in what we say, but rarely trained in how we say it. Thinking about how we say what we say, and reading others’ non-verbals for clues on their thoughts and intentions, gives us an extra insight - a great tool to have in your kit bag as a professional, giving you that edge. Apart from this, it can be rather fun, putting you in the driving seat when you are in the hot seat! For example, if you find yourself called as expert witness in court, your whole presentation relies on your credibility. How you give your evidence is extremely important, bearing in mind the above figures. So how do you defend the report that you have been up all night, for several nights, writing? Or indeed how do you present yourself as an expert with gravitas? The first point I teach, in my body language seminars and classes, is to find your neutral spot. It's the spot where physically we are relaxed, confident but neutral. It is a powerful position because it enables you to calm the limbic system and to react with time for thought. A neutral stance is one where, if standing, the weight is evenly distributed on both feet, the arms are loosely by sides and head is on the level plane; if sitting, the weight is still evenly distributed and hands come to

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rest on mid-thigh or, if behind a desk, hands are visible, unclenched and still, head on the level plane. These are incredibly hard postures to maintain if we are stressed, as the limbic brain will hijack us, we will see weight transference - shifting from foot to foot, fidgeting or pacifying behaviour (more on that later), as nervous energy is released. The overall impression given is someone lacking credibility. If adopting a neutral stance calms the limbic system then "power poses" turbo charge it - as was proved in a Harvard Business School study by Professor Amy Cuddy. She made waves, and indeed a career, out of her TED Talk on power poses (https://www.ted.com/ speakers/amy_cuddy). Again for those who like statistics, a power pose increases testosterone, the "leadership hormone" by up to 20% and lowers cortisol, the stress hormone, by around the same amount, powerful indeed! I use these frequently as an actor on those days when I simply don't "feel it". Putting my face and body into the requisite expressions and poses has an instant effect on my brain chemistry and voila! I am suddenly genuinely overjoyed or devastated, as the script dictates! These are important behaviours to look out for in yourself, not only when being interviewed or cross-examined, but also when you are doing the interviewing. For example, say you are about to take on a claimant who professes certain after effects of a given injury and you want to check their authenticity... Though it must be said, no one can be a human lie detector, we can use a method that establishes "baseline" behaviour. We do this by asking a series of innocuous questions where the answers are already known, i.e. name, address, what they do for a living, the weather today etc. By focusing on the potential client's body language, one can establish what is normal for them - what their baseline behaviour is, what tics do they have, do they blink rapidly, do they gaze middle distance when thinking or do they twirl a piece of hair? If this is their usual behaviour, then anything deviating from this when asking the more probing questions, will warrant more investigation on your behalf. As in

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all of body language, look for context. Also take into consideration gender, culture, and age differences. For example, eye contact for a few seconds with someone signals interest of some kind in Western culture, but in some Asian cultures this same level of eye contact can be considered rude... so do your homework. When stressed, we see the above-mentioned pacifying behaviours apparent. I'm including fear, anxiety, nervousness and anger when I say stressed, the behaviours include, but are by no means limited to: stroking the back of the neck, touching the suprasternal notch, or base of the throat where the hollow is, rapid eye blinking, very slow blink (blocking), hands through hair, hair flicking, hands wiping down front of thighs you get the picture. These occur literally to sooth or pacify ourselves when stress levels heighten. Finally, we have voice. It is said that “a laugh or a growl says more to a human than a joke or an angry word, and we pay more attention when we hear an emotional sound than we do if someone puts the feeling into words”. We also interpret emotions much faster than words, within a tenth of a second.1 Obviously this is best delivered when being demonstrated, but a couple of points to think about are tone of voice and varying the speed of delivery both can make for engaging dialogue. Think how many times a lecture with great content has become stale when the presenter has a monotonous tone, or how an email can be misinterpreted without the human voice to emphasize and give colour and empathy to the points being made - voice really matters! These are only some of the basics of body language, if you are intrigued to delve further, I hold private classes and am involved with various courses, and can be contacted at: www.andreagordon.uk/body-language.html 1. Preferential decoding of emotion from human non-linguistic vocalizations versus speech prosody. MD Pell, K Rothermich, P Liu, S Paulmann, S Sethi, S Rigoulot. Biological Psychology. Volume 111. pages 14-25 (2015)

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Advocating mediation in the workplace

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NEW INDUSTRY BODY LAUNCHED

TO REPRESENT MEDICAL REPORTING ORGANISATIONS By Paul Collin, Secretary of the CMA

The Confederation of Medical Agencies, launched in March, aims to offer a true voice and representation for the smaller Medical Reporting Organisations who currently have no voice within the industry and no presence at MedCo meetings. It is clear that The Association of Medical Reporting Organisations (AMRO) have failed to step up to the mark of representing the interests of all MROs, as they only have members from Tier 1 companies on their executive committee and whilst their website claims they represent 21 companies, research has shown that a large number of those companies either do not exist, or haven’t heard of AMRO or paid them any membership fees for a number of years. Ben Elsom, the Managing Director for Medical Reports Limited, a Tier 2 company and a previous AMRO member that has been trading for 16 years is to become the confederation’s inaugural president. He comments “I have no grievances in Tier 1 companies having a voice, but AMRO does not represent the interests of ‘all’ as a Trade Association should and therefore in my opinion has become irrelevant and defunct as an industry representative body.” The goals of the confederation are to be: A. A central representative body to put the views of Medical Reporting Organisations companies to the appropriate Government departments, MEDCO, agencies, and other relevant organisations.

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B. To be a research and statistical centre, to aggregate and publish statistics, and to provide analysis on MROs and other relevant market information. C. To be a technical centre providing commentary, guidance and advice on all legal and other regulatory developments of relevance to MROS. D. To provide a forum for the exchange of non-competitive information. E. To promote its MRO members. The Confederation will have 6 executive committee members. Paul Collin, who has recently retired having spent 20 years in the medico-legal industry has agreed to be the Confederation’s secretary. Other members of the inaugural committee include Peter Laithwaite of Citimedical and Simon Munro of Med Report Services Ltd, both senior figures with a longstanding involvement in the industry. Over 50 MROs have already committed to joining the organisation and other members are welcome to apply. The CMA intends to make a formal representation to the Chair of MedCo following its inaugural general meeting later this month. All enquiries can be made to CMA Secretary Paul Collin at secretary@c-m-a.org.uk www.c-m-a.org.uk

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MEDICO-LEGAL ASPECT OF HAND ARM VIBRATION SYNDROME By Mr Michael Gaunt MD(Dist), MA (Cantab), FRCS. Consultant Vascular Surgeon

Hand Arm Vibration Syndrome (HAVS) is a medical syndrome of symptoms and signs affecting the vascular, neurological and musculoskeletal systems of the upper limb associated with occupational exposure to hand transmitted vibration. HAVS has become one of the commonest prescribed diseases of the industrial world and is a frequent source of claims. Many occupations are associated with significant exposure to vibration and it has been estimated that 1.2 million men and 40,000 women in Britain have weekly exposures high enough to justify health surveillance 1,2.

History of Hand Arm Vibration Syndrome The first condition recognised to be associated with vibration was a form of secondary Raynaud’s phenomenon characterised by abnormal vasospasm of the palmar and digital arteries in response to cold. Maurice Raynaud first described the condition in 1862 3. The high prevalence in workers using

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vibrating tools was first described in Italy by Loriga in 1911 and confirmed in the USA in 1918 by Dr Alice Hamilton who undertook a US Government commissioned study of Stone Cutters 4,5. In these early years progression of the condition to gangrene and loss of fingers was not uncommon. Subsequent reports confirmed this association which came to be known as Vibration White Finger (vWF) and its severity classified using the Taylor-Pelmear scale 6. Further research identified neurological and musculoskeletal vibration related conditions which could occur either in conjunction with vWF or independently. In recognition of this multisystem involvement affecting the upper limb, an international consensus agreed to the condition being renamed Hand Arm Vibration Syndrome (HAVS) and the Stockholm Workshop Scale replaced the Taylor-Pelmear scale for the assessment and staging of the condition 7,8. A recent review identified over 8000 scientific publications related to HAVS 9. In 1985 HAVS became a prescribed disease in the UK under the National Insurance (Industrial Injuries)

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Act with sufferers entitled to compensation and disability benefits 10. Requirements were placed on employers to control exposure to vibration and monitor workers for the development of the condition. Common tools associated with HAVs include pneumatic drills and hammers, chainsaws, handheld grinders and polishers, concrete breakers, metal polishers, power hammers and chisels, needle scalers, scabblers and powered sanders but any tool imparting vibration may be implicated including lawnmowers and even motorcycle handlebars 11.

Estimating Vibration Exposure Vibration can be described as an oscillatory motion characterised by three main factors: frequency, magnitude and direction. The potential for vibration to cause injury is related to the average intensity of energy imparted to the tissues 11. The dose of vibration is calculated using a mathematical formula based on a specific relationship between duration and magnitude which allows the daily vibration exposure to be re-expressed in terms of the equivalent energy that would be imparted over an 8 hour reference period – a value known as A(8) expressed in units of m/s2 r.m.s. This allows the dose of vibration from different tools to be compared and cumulated and ‘safe’ daily exposures to be calculated. Using A(8) two exposure limits have been calculated and recommended to employers by the Health and Safety Executive (HSE) and specified in UK legislation12, 13. 1. The Exposure Action Value (EAV) – A(8) of 2.5m/s 2 rms - above which employers are required to control exposure 2. The Exposure Limit Value (ELV) – A(8) of 5.0m/s 2 rms - which is the maximum exposure for any one day. A low safe dose for all workers has never formally been defined although it is generally accepted that adverse effects below an A(8) of less than 1.0m/s 2 rms are rare 9. The Health and Safety Executive requires employers working with vibration to know the A(8) exposure

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of their employees and institute a programme of education, exposure limits and health surveillance for workers who could be potentially harmed. The A(8) value is often provided by the manufacturer of the vibratory tool but this value can change if the tool becomes worn or is not serviced appropriately. The ELV can be exceeded by the use of hammer action tools for above 1 hour/ day and 2 hours/ day for some rotary-action tools. The EAV can be breached by as little as 15 minutes/day of exposure to certain hammer action tools 11.

The Clinical Features of Hand Arm Vibration Syndrome The clinical features of HAVS can be divided into three main categories 1. Vascular – secondary Raynaud’s (vWF) 2. Neurological – a polyneuropathy affecting the upper limb nerves 3. Musculoskeletal – carpal tunnel syndrome, Dupuytren’s contracture, tendonitis, muscle disorders, arthritis. Of these, it is generally accepted that there is good evidence of an association between vibration and vibration white finger, digital neuropathy and carpal tunnel syndrome, less extensive evidence for Dupuytren’s and tendonitis and limited evidence for osteoarthritis of the elbow and hands 9. A difficulty in diagnosing HAVS is that each of these clinical components can occur spontaneously or have alternative causes. Therefore, diagnosis is based on detailed clinical history, examination and interrogation of the medical records to assess alternative causes and establish the typical features associated with HAVS which include: 1. History of occupational exposure to vibration of sufficient duration and magnitude. 2. A latent asymptomatic period between initial exposure and the development of HAVS. 3. Exclusion of alternative causes. In the clinic room it is unusual to have detailed information on the A(8) of each tool used but

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a working calculation can be made as to the total hours of exposure. Clinically, as a rule of thumb, the development of HAVS is unusual below 1000 hours’ exposure but if a claim proceeds it is usual to obtain a more accurate engineer’s report to determine a range of A(8) values based on claimant and defendant estimates of exposure 6.

Vascular Symptoms The main symptom is finger blanching on exposure to cold. The amount of cold needed to precipitate an attack can be mild and can occur in summertime. All the fingers can blanche but not all fingers may be affected every time. Occasionally, the distal palms may be affected. In classical Raynaud’s a tri-phasic colour change, white to blue to red, occurs, but variations have been described and the only constant feature is blanching. It is very rare to witness an episode during the consultation, therefore, the description of the blanching by the claimant is an important feature of any claim and a range of medical opinion exists as to the what constitutes a diagnostic description. Typically, a claimant describes the blood draining out of the fingers until the fingers become deathly white and numb. There is often a clear demarcation line between normal coloured skin and the white areas, and the fingers pass through the tri-phasic colour change. Some experts argue a strict adherence to this classical description while others accept there are variations which still qualify as Raynaud’s (see Figure 1)14.

Figure 1: This picture illustrates how pallor develops irregularly in the fingers. The little fingers of both hands show the classical distribution of pallor, albeit with a diagonal demarcation line rather than a horizontal one, but the pattern of blanching is variable in the other fingers. The ring finger of the subject’s right hand shows a variegated appearance and the middle finger of the same hand almost complete blanching of the proximal and middle phalanx while the distal phalanx is predominantly pink. This variation in blanching pattern is very common and it is easy to see how a lay person’s description of their own blanching may vary from the classical description. Increasingly, medical experts are requesting claimants provide photographs of blanching to aid diagnosis. Given the widespread availability of digital cameraphones in modern societies this seems a reasonable requirement.

Neurological Neurological symptoms consist of sensory symptoms of numbness, tingling and pins and needles. These symptoms are very common immediately after using vibratory tools but once they persist beyond 30 minutes after cessation of vibration then they are becoming abnormal. As the condition progresses the symptoms become more persistent and interfere with work, sleep and other daily activities of daily living. Currently accepted theories indicate that vibration initially affects the nerve receptors in the skin and the

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small nerves leading from them. Results from animal studies and human nerve biopsies indicate that as the condition proceeds, demyelination of the larger nerves occurs which are similar pathological changes seen in other polyneuropathies such as diabetic ‘glove and stocking’ neuropathy15. HAVS is a polyneuropathy that can affect all the nerves (median, ulnar and radial nerves) that supply the hand and claimants can complain of symptoms in all these nerve territories i.e. all fingers and all areas of the hand15. Carpal tunnel syndrome (CTS) is a mononeuropathy caused by compression of the median nerve at the wrist which causes similar neurological symptoms to HAVS. This can lead to a difference in medical opinion as to the diagnosis. Further debate occurs because vibration can be one of the causes of CTS so the two conditions can co-exist in the same claimant6. Carpal

tunnel syndrome developing in vibration workers is a reportable condition under RIDDOR and is a prescribed disease for industrial injuries compensation16. Anatomically, the median nerve does not supply sensation to the little finger but, clinically, a recognised proportion of patients with CTS complain of symptoms affecting the little finger. Neurophysiological tests such as nerve conduction studies can help clarify which condition is dominant but false positive and negative occur in CTS and standard nerve conduction studies do not measure the function of nerve receptors and small nerves commonly affected in HAVS15. Ultimately, it can be a matter of opinion whether the clinical features are more suggestive of CTS or HAVS and whether CTS is caused by vibration or one of the other causes of CTS including idiopathic.

Vascular Assessment

Sensorineural Assessment

Stage

Description

Stage

Description

No attacks

0SN

Exposed to vibration but no symptoms

2V (early)

2V (late)

Occasional attacks affecting only the tips of one or more fingers. Occasional attacks affecting the distal and middle (rarely also proximal) phalanges of one or more fingers. Frequent attacks of whiteness affecting the distal and middle (rarely also proximal) phalanges of one or more fingers.

Frequent attacks affecting all phalanges of most fingers.

1SN

Intermittent numbness with or without tingling

2SN

Intermittent or persistent numbness

(early)

reducing sensory perception

2SN

Persistent numbness and/or tingling,

(late)

reduced sensory perception

Constant numbness and/or tingling 3SN

reducing sensory perception and manipulative dexterity in warmth.

As in stage 3 with trophic changes in the finger tips

Table 1. The Stockholm Workshop scale

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Musculoskeletal A range of musculoskeletal conditions have been associated with exposure to vibration including Dupuytren’s contracture, various muscle and tendon pathologies and arthritis affecting joints of the wrist, elbow, shoulder and cervical spine 11. Epidemiological studies have reported a higher prevalence of Dupuytren’s in workers exposed to vibration than would be expected but there is a strong genetic element and other well recognised causes which leads to a range of medical opinion 11. Currently, the scientific evidence for vibration as a cause of arthritis is not considered robust enough for compensation in the UK but it does qualify in France, Germany and Italy 11.

Conclusion The regulations for control of exposure to vibration have been in place for over 30 years so all employers should be aware of their obligations. The reduction in heavy industry in this country and the success

References 1. Palmer KT, Coggon DN, Bendall HE et al. Hand-transmitted vibration: Occupational exposures and their health effects in Great Britain. HMSO; London 1999.HSE Contract Research Report 232/1999 2. Palmer KT, Griffin MJ, Bendall H et al. Prevalence and pattern of occupational exposure to hand-transmitted vibration in Great Britain: findings from a national survey. Occup Environ Med. 2000;57:218-228 3. Raynaud M. On asphyxia and symmetrical gangrene of the extremities. (Translated by Thomas Barlow). In Selected Monographs,1888, The New Sydenham Society, p9) - based on Raynaud M. De L’ Asphyxie Locale et de la Gangrène Symétrique des extremétés. Paris: Rignoux 1862. 4. Loriga G. Il Labora Coi Martelli Pneumatici. Boll Ispett Lavoro 1911; 2:35 and 1913; 6:524 5. Hamilton A. A study of spastic anaemia in the hands of stonecutters. Bulletin 236; US Bureau of Labour Statistics 1918; 19: 53-66 6. Chetter IC, Kent PJ, Kester RC. The hand arm vibration syndrome: a review. Cardiovasc Surg 1998; 6: 1-9. 7. Gemne G, Pyykko I, Taylor W, Pelmear PL. The Stockholm workshop scale for the classification of cold-induced Raynaud’s phenomenon in the hand arm vibration syndrome. (Revision of the Taylor-Pelmear Scale). Scand J Work Environ Health 1987; 3:275-8 8. Brammer AJ, Taylor W, Lundborg G. Sensori-neural stages in the hand-arm vibration syndrome. Scand J Work Environ Health 1987; 13: 279-83 9. Hewitt S, Mason H. A critical review of evidence related to hand-arm vibration syndrome and the extent of exposure to vibration. Prepared by the Health and Safety Laboratory for the Health and safety Executive 2015; Research Report 1060. 10. Taylor W. Vibration white finger: a newly prescribed disease. BMJ 1985;291: 921-2

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of the regulations in reducing industrial exposure means that it is unusual to see the more severe cases of HAVS that were common in the 1980-90s but significant disability still occurs. The overwhelming majority of medical experts recognise the association of vibration with the development of HAVS but determining the diagnosis in an individual claimant with mild/moderate symptoms and the presence of alternative causes can give rise to a range of medical opinion. Ultimately, not all the pieces of the diagnostic jigsaw may fit and causation is decided based on the balance of probabilities. In this regard the 2005 appeal court judgement in the case Montracon vs Whalley (Neutral citation number: (2005) EWCA Civ 1383), provides useful guidance where paragraph 34 of the judgement states “Where the civil standard of proof applies, it is not necessary for every piece of the evidential jigsaw to fit. To require that is too high a standard of proof”. 17

11. Palmer KT, Bovenzi M. Rheumatic effects of vibration at work. Best Pract Res Clin Rheumatol 2015; 29(3): 424-439 12. Health and Safety Executive.[accessed 05/03/2017] Hand-arm vibration exposure calculator. http://www.hse.gov.uk/vibration/hav/ vibrationcalc.htm 13. The control of Vibration at Work Regulations 2005. [accessed 05/03/2017] http://www.legislation.gov.uk/uksi/2005/1093/contents/ made 14. Hallet JW (Jr). [accessed 05/03/2017] Raynaud syndrome – Cardiovascular Disorders. Merck Manuals Professional Edition 2017. Springer Science+ Business Media. https://www.msdmanuals.com/ en-gb/professional/cardiovascular-disorders/peripheral-arterialdisorders/raynaud-syndrome 15. Dahlin LB, Sandén H, Dahlin E et al. Low myelinated nerve-fibre density may lead to symptoms associated with nerve entrapment in vibration-induced neuropathy. J Occup Med Toxicol 2014; 9:7 16. Kozak A, Schedlbauer G, Wirth T et al. Association between workrelated biomechanical risk factors and the occurrence of carpal tunnel syndrome: an overview of systematic reviews and a meta-analysis of current research. Muscul Dis 2015; 16:231 17. Montracon vs Whalley Case No: B3/2005/0017 Neutral Citation Number: [2005] EWCA Civ 1383 in the supreme court of judicature court of appeal (civil division) on appeal DN300866 Royal Courts of Justice. Strand, London, WC2A 2LL. 21st November 2005: Before : Lord Justice Chadwick, Lady Justice Smith and Lord Justice Wilson. Between: Montracon Ltd Appellant and Gregory Whalley Respondent. Transcript of the Handed Down Judgment of Smith Bernal WordWave Limited, 190 Fleet Street, London EC4A 2AG

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AN INVITATION TO MEDIATE? ACCEPT! By Mark Field. Mark Field is a solicitor and mediator (www.markfieldmediation.co.uk) who has worked both in private practice and for an insurer. He has extensive experience of mediation, both as a party’s representative and as a mediator. In issue 3 Linda Patterson wrote (“Mediation within the NHS in Scotland”) that the use of mediation within the NHS in Scotland is “proving to be a slow burner”. The same could be said of the use of mediation south of the border. But change is on the horizon. In 2014, the NHSLA published “Mediating claims in the NHS”. It runs to four pages, in which the NHSLA states its commitment to mediation. Disappointingly, the aspirations expressed were not translated into widespread action. However, the NHSLA (now "NHS Resolution" from April 2017) subsequently displayed a renewed vigour to embrace mediation and in December 2016 it launched its two mediation panels, the first dealing with clinical negligence and personal injury claims and the second with costs. So claimant practitioners will very soon be receiving invitations to mediate. Those unfamiliar with mediation will be wondering how to respond. They may think that unless the court has ordered that a mediation take place, they can ignore the invitations; if the NHSLA is offering it, there must be a “catch”. But take care, because however dubious a claimant practitioner may be about an invitation to mediate in an NHLSA case (or indeed any other kind of case), the courts have made it clear that the judiciary regards mediation as having an important role in resolving disputes. Mediation is a concept that many have heard of but far fewer have practised. For civil litigation

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practitioners, it really came into focus following the introduction of the Civil Procedure Rules in 1999 and the requirement to complete an Allocation Questionnaire. The first section of the Allocation Questionnaire, “Settlement”, encouraged settlement of the case at an early stage (as does its replacement, the Directions Questionnaire). A party’s legal representative was required to confirm that “… I have explained to my client the need to try and settle; the options available; and the possibility of costs sanctions if they refuse to try to settle”. Legal representatives however soon began to regard completion of this section of the Allocation Questionnaire as merely a tick-box exercise: “Sure I’ll think about settlement, but not yet. After all, the case has only just begun, I have a good case and my client expects to win”. The “possibility of costs sanctions”, if they refused to try to settle was not of concern to practitioners because that possibility never became a reality. In Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576, the Court of Appeal stated that a party that unreasonably refused to mediate could be penalised in costs. The court then set out relevant factors to be considered when deciding whether a party that refused mediation had acted unreasonably. These included the nature of the dispute, the merits of the case, consideration of other settlement methods that had been attempted, whether the cost of mediation

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would be disproportionately high, any delay in the trial of the action if mediation was attempted late in the day and whether mediation had a reasonable prospect of success. Halsey was seized upon by both the pro- and antimediation lobbies as support for their respective positions. The pro-mediation lobby was encouraged by the court’s general support for mediation and by the fact that the CPR itself was in favour of it and other forms of alternative dispute resolution. The anti-mediation lobby was comforted by the fact that whilst there was a risk in unreasonably refusing, it would not generally be too difficult to show that any refusal was reasonable by being able to satisfy the court that one or more of the factors set out above applied to the case. But there has been a change in the judicial approach since Halsey which practitioners need to be aware of because consideration of mediation is no longer a “tick-box” exercise. In PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288, the Court of Appeal made it clear that parties to a dispute must consider mediation. In that particular case, offers to mediate had been ignored. At first instance that silence was found by the judge to amount to unreasonable behaviour and this was confirmed by the Court of Appeal. In PGF, months after the defendant had made a Part 36 offer, the claimant accepted it. In such circumstances the defendant would ordinarily have expected to be awarded its costs from the date that the claimant could have accepted the Part 36 offer until the date that it was actually accepted. At first instance the court found that the defendant’s unreasonable behaviour in ignoring the claimant’s offers of mediation warranted a sanction and it deprived the defendant of its costs for this period. The Court of Appeal did not interfere with that finding. In doing so the Court of Appeal swept aside the usual operation of Part 36 in circumstances where the defendant had made, months earlier, a “good” Part 36 offer. There could hardly have been a clearer warning to practitioners but not all heeded it, for PGF was followed by a number of decisions where an offer to

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mediate did not meet with a positive response, such as Garritt-Critchley v Ronnen [2014] EWHC 1774 (Ch), Northrop Grumman v BAE Systems [2014] EWHC 3148 (TCC) and Laporte v Commissioner of Police for the Metropolis [2015] EWHC 371 (QB). In Laporte, the defendant declined to engage in mediation. It successfully defended the case at trial and cited the emphatic nature of its victory as justification for its refusal to mediate. Mr Justice Turner did not agree and reduced the defendant’s entitlement to costs by one-third. What these decisions demonstrate is that it is increasingly difficult, if not impossible, to bring oneself within the criteria laid down in Halsey so as to justify a refusal to mediate. In fact, it is difficult to understand why any practitioner, certainly following PGF, would want to resist an invitation to mediate. A refusal to mediate that the court subsequently finds is unreasonable will more than likely result in a greater financial penalty for the refusing party than the cost of attending a mediation. But more than ten years after Halsey the “message” from the judiciary was still not getting through. In the cases of Reid v Buckinghamshire Healthcare NHS Trust [2015] EWHC B21 (Costs) and Bristow v the Princess Alexander Hospital NHS Trust & Ors [2015] EWHC B22 (Costs), Master O’Hare and Master Simons respectively applied to costs the same principles regarding mediation that had hitherto applied to substantive actions. In both cases the court found that there had been an unreasonable refusal to mediate and indemnity costs were ordered in favour of the receiving party – in Reid from the date that the defendant had received the offer to mediate and in Bristow, on the whole of the assessed costs. So the message to practitioners is clear: the justifications that could be relied upon post-Halsey no longer hold good. If you receive an offer to mediate, you should accept it and do so promptly. Better still, issue the invitation yourself. For if your opponent is not as wise as you and does not accept your invitation, you may ultimately find yourself in an advantageous position when the order for the costs of the action is made.

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ROBOTICS AND ARTIFICIAL INTELLIGENCE IN HEALTHCARE By Greg McEwen, Partner, BLM Law BLM is a leading insurance and risk law firm, instructed on a broad spectrum of legal issues and acting for customers in key sectors such as healthcare, insurance and indemnity, leisure, technology, and public sector. With robotics and AI playing an ever-increasing part in the way healthcare is managed and conducted, Greg McEwen, partner at insurance law specialist BLM, explores the potential for the technology and how the ‘friend or foe?’ equation will affect medical claims.

The idea of ‘robotic surgery’ is not a new one. The first robot assistant for surgery, the Arthrobot, was developed in the early 1980s and first used in 1984, in an orthopaedic procedure. Since then, robots have been developed and deployed in increasing numbers, to perform all types of surgery from bowel and bladder procedures to eye operations and neurosurgery. One of the most well known systems is the da Vinci Surgical System, approved since 2000 by the US FDA. The system accepts a variety of different surgical instruments, allowing it to be used in different surgical settings. It’s not just the US however that has led the charge in the field of robotic surgery. The PROBOT, developed at Imperial College London, was used in a world-first to perform robotic prostate surgery at Guy’s & St Thomas’s Hospital in 1992. As AI has progressed, so too have we in its adoption into ever more complicated procedures – you need only look at the first ophthalmic surgery carried out by a miniature robot within the eye, which took place just a few months ago, here in the UK. However, with the greater ubiquity of robots have come greater concerns and reports of errors. Researchers from the University of Illinois, Michigan Institute of Technology and Rush Medical Center published a manuscript in 2015 entitled Adverse Events in Robotic Surgery: A Retrospective Study of 14 Years of FDA Data, utilising data from the Manufacturer and

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User Facility Device Experience (MAUDE). The study noted that, from 2007 to 2013, 1.74 million robotic surgical procedures were performed in the US - the majority of which were urological or gynaecological. In the thirteen years preceding, the data recorded 8,061 ‘device malfunctions’, 1,391 patient injuries and 144 patient deaths. Adverse incidents included electrical arcing, sparking or charring of instruments and the falling of broken or burnt pieces into the patient’s body. Such incidents were said to have contributed to 119 injuries and one patient death. Clearly, operations utilising robotics are not without their risk. However, it should be noted that incidents relating to broken and/or retained instrumentation are by no means exclusive to robotic surgery, and herein lies one of the difficulties in interpreting the data. It cannot tell us whether a complication is solely or partly attributable to the use of a robot, whether it is patient related, or whether it represents a complication of the surgery itself. As a result, there remains a debate amongst medical professionals over whether the perceived advantages of robotic surgery outweigh the costs, both financial and otherwise. Some studies have suggested that surgical outcomes for robotic procedures are as good as the nonrobotic alternative, but is “as good as” good enough? In fact, there have in recent years been reports of a decline in the sale of surgical robots. Amongst the disadvantages sometimes cited are longer setup times as well as the time that may be required during surgery to change instruments. Surprisingly perhaps, some surgical procedures may therefore take longer to perform with robot assistance, with the knock on effect of longer periods under anaesthesia. On a practical level, robots also lack the sensation or

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‘feedback’ that experienced surgical hands may rely on to apply just the right level of traction or force, and can lead to inadvertent trauma and resultant injury. There have been a number of lawsuits in the US arising from robotic surgery, some involving fatalities. Assuming however that robotic surgery is here to stay, particularly with private investment growing in markets such as China and Brazil, what does the future hold? Could we see the rise of remote surgery, where the operator and patient are not even in the same place? This is not the stuff of science fiction. The technology already exists, developed for situations where a patient was inaccessible to a surgeon, and was being considered as far back as the 1970s by NASA in the context of space travel. In 2001, the first transatlantic surgery was performed by surgeons in New York, on a patient in France. In 2006, a robot was used remotely to sew up a cut on an inhabitant of the Aquarius underwater base, 70 feet under the sea. A faster, more robust internet has made the technology more viable, but obvious pitfalls remain such as the potential for a sudden power failure (at either the patient or the surgeon end of proceedings), or a loss of communication.

abroad for surgery for reason of cost, expertise or availability. Should remote surgery become more widespread, the patient would not even need to travel to their surgeon. Treatments that are not available (or not approved) in one country could become available without the patient even needing to find their passport. Obvious questions that arise here include: •

In the event of an adverse outcome, which legal jurisdiction would apply – that of the surgeon or that of the patient?

•

How would the duty to ensure the patient is properly consented be discharged, where doctor and patient never meet?

•

How do you ensure the patient receives appropriate post-operative follow up? What happens in the event of a serious complication?

These are all issues that the legal, medical and insurance industries are going to have to iron out between them, and we are likely to see more and more ‘precedent’ cases in the coming years. AI clearly has the potential to revolutionise the way we work and play, but it’s fair to say there will be some teething issues along the way, which will inevitably come at some human cost.

There are ethical considerations too. Medical tourism already exists, with some patients choosing to travel

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MEDIATION IN CLINICAL NEGLIGENCE CLAIMS THE NEW NHS LA SCHEME By Brian Dawson, Director Trust Mediation The NHS Litigation Authority (now renamed NHS Resolution from April 2017) recently launched its new Claims Mediation Service following a successful pilot and a public tender. The tender specification demonstrated that quality was a high priority for the NHS LA: “Delivery of high quality mediation services for the resolution of disputes arising from incidents, litigated and pre-action clinical negligence and personal injury claims and/or the high quality delivery of mediation services for the resolution of disputes arising from the recoverability of legal costs.” Independent mediation organisations, Trust Mediation Limited and the Centre for Effective Dispute Resolution (CEDR) were appointed to mediate disputes arising from clinical negligence and personal injury and incidents and claims. Costs Alternative Dispute Resolution (CADR) was appointed to mediate disputes arising from the recoverability of legal costs. These organisations were awarded a 2 year contract commencing 5th December 2016.

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CEDR is a long established, well respected organisation able to offer a depth of experience. Trust Mediation believes that specialist knowledge in the subject matter of a mediation enables them to quickly understand and overcome the issues between the parties. For this reason their panel of Clinical Negligence Mediators are all specialists in the field. It is a fundamental principle of mediation that the mediator is impartial so that he or she can discuss confidential matters without reservation and assist the parties in identifying the issues between them and overcoming them to arrive at a mutually beneficial solution. The mediation organisations are independent and well established and, further, independence is integral to the role of the individual mediator. It follows that the parties can have total confidence in the independence of the mediators involved in providing high quality mediation services under this scheme. Lawyers are trained, and some would say very well trained, to prosecute or defend a claim for

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compensation for loss and injury arising out of alleged negligence. The fact remains that at the end of the day both parties cannot win the same case at the same time. There are many reasons why a case is unsuccessful, but it is suggested that significant reasons are that an adversarial system means that the parties are preparing their cases independently of each other and are often reticent about exchanging too much information and revealing their hand. To do so is often regarded as implying a lack of confidence in the case. It is this failure to communicate, particularly by expert witnesses, which led to the addition of experts’ meetings to the claims process. These meetings have resulted in improved settlement rates between the date of the experts’ meeting and the Trial of the action. However some cases can often be pursued for years before discussion takes place, whereas it is suggested that earlier discussion would frequently enable the parties to make a realistic estimate of their chances of success and resolve the matter much earlier on in the process. Then there are the cases which do not settle at all. There may be good reason why some of them needed to go to trial. Most people would accept that the adversarial system, with its concentration on financial benefit, sometimes does not assist a Claimant, who is looking for an explanation or vindication, or simply wishes to be taken seriously. In those cases financial reward was never the driving feature and the Claimant may be frustrated that he / she have no opportunity to explain the real issue. The medical professional, whose reputation is at stake, may also be frustrated by the lack of dialogue and in the meantime trust between doctor and patient can be destroyed and both the patient and the medical professional will suffer considerable stress. Experience shows that the vast majority of cases, which go to mediation, are resolved as a result. Experience also shows that clients like it. They are involved, they get the opportunity to address some issues, which are really bothering them, but which

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are not strictly relevant to their legal case and indeed they can achieve outcomes which the Court would not have authority to provide. For example, the writer’s own experience is that in a recent case the NHS Trust offered to put a plaque on the wall of the garden to commemorate the sad death of a child. The culture of litigation is changing and some Lawyers are now very keen on mediation and happy to support it in appropriate cases. Others remain less enthusiastic. The writer has heard a number of reasons for this including bad experiences of mediation, which are largely due to the choice of mediator. Others have suggested mediation means compromise and they see no reason why their client should have to compromise their case. The answer to that is actually there are no rules to mediation. Parties are urged to attend with an open mind, but otherwise it does not necessarily follow that both parties will have to compromise. Sometimes it is an opportunity to persuade the other party to discontinue whilst they still can. Usually however it is unhelpful for a matter to proceed to Trial with both parties feeling they cannot lose, because inevitably one of them will do so and an opportunity for each party to explain that compromise is appropriate seems to be an opportunity, which should not be casually dismissed. Of course there is also a possibility that the Court might take a dim view of what is actually a breach of the parties’ duty to the Court, which may result in sanction. The writer is not suggesting that mediation is appropriate in all cases and if the parties are able to discuss the issues between them, narrow down those issues and ultimately settle the case at an appropriate stage without the need for a mediator, then clearly they should do so. The writer is however suggesting that parties should embrace this new NHS LA scheme and mediate in appropriate cases. www.TrustMediation.org.uk

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A PERFECT STORM – THE SPIRALLING COST OF CLAIMS By Dr Michael Devlin, MDU head of professional standards and liaison explains why the staggering rises we are seeing in the cost of compensation should provide a warning of a perfect storm ahead. When a patient receives a multi-million pound compensation claim, it often makes headlines. But few of us stop and think about the effect the rise in such claims is having on NHS finances. It is vital that we look at and understand how large the NHS liabilities are and what needs to be done to address the underlying rate of increase.

Clinical Negligence Claims Inflation Clinical negligence inflation is currently running at 10% and this has been the case for several years, with no indication that it is likely to decrease. This means total NHS liabilities will double in about seven years, if the current claims inflation rate remains steady. Given the NHS Litigation Authority’s (NHSLA’s) liabilities for clinical negligence claims, reported in July 2016, stood at £56 billion (bear in mind this is just the figure for England), you will probably be shocked that this figure could well be £112 billion by July 2023.

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To put it in some context, £56 billion would cover a year’s entire expenditure for all 153 NHS foundation trusts in England plus the total annual health spend in Wales. Now that we have a sense of scale, can we continue to ignore the problem? At this point let me put my cards on the table. I have worked for the MDU for nearly 20 years, and it will be no surprise to anyone that I care deeply about things like claims inflation. The MDU provides indemnity to GPs, doctors in independent practice and other healthcare professionals in return for a subscription. And the subscription they pay is largely determined by the cost of meeting claims. Bear in mind indemnity is not an optional extra for UK doctors. The General Medical Council has legal powers to check whether doctors have adequate and appropriate indemnity in place, covering their full scope of practice. The spiralling costs of litigation against GPs, for example, is placing an unsustainable burden

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on them because they are responsible for their own indemnity costs. So it matters a great deal to doctors that damages payments are rocketing, and ignoring the problem is not an option.

The Perfect Storm The reasons for claims inflation are poorly understood. The Department of Health in its triennial review of the NHSLA, published in 2015i, stated that the increasing numbers of patients being treated in the NHS, more complex (and costly) healthcare, an increasingly litigious society, and changes to the legal marketplace with non-specialist lawyers moving to clinical negligence work, are all factors contributing to the cost of claims increasing. But there is a further, hugely important legal change in the wings, which could force up compensation payments overnight: the lowering of something called the discount rate. The discount rate is the figure used to calculate how much lump sum compensation awards can be reduced (discounted) to account for expected investment returns over time. The Lord Chancellor recently announced a reduction in the discount rate from 2.5% to minus 0.75%, adding billions to the cost of NHS claims. In his budget statement, the Chancellor announced he had set aside £5.9 billion across the forecast period to protect the NHS from the effects of the changed rate. The rate change increases the costs of compensation awards dramatically and immediately for known claims which have already been reported but not yet settled. It also has retrospective effect on incidents from past years where the claim is not yet reported. Speaking of GPs, the MDU’s chief executive noted in a statement following the announcement: “We are considering the impact of this decision on our subscriptions and working with the Department of Health and NHS England to find a solution to protect our GP members from the otherwise catastrophic impact this will have on them, the sustainability of general practice and on the public.”

do what it can to prevent negligence, but this is not a problem caused by clinical standards, which remain highii. The only sensible option is reform of the law. In particular, the starting point should be repeal of section 2(4) of the Law Reform (Personal Injuries) Act 1948iii. The Act means that the cost of NHS or local authority care must be disregarded when calculating the cost of future care. Future care costs are usually the major component of high-value claims, such as birth injury cases. Were section 2(4) of the 1948iii Act repealed it would mean that patients who are negligently harmed could be cared for by the NHS and local authorities. And the effect of this change could result in additional billions of pounds, which might otherwise be lost to the public sector, being reinvested in NHS and local authority care. Which is surely a good thing. It must be stressed that there would be no loss of quality of care provided – patients would still have their needs met, but in a way that is fairer and more affordable. The time for action is now. It is important that the MDU’s message about fair compensation is read and understood by as many people as possible who care about the future of the NHS, and are determined to tell their MPs what needs to be done to ensure a perfect storm does not become an enduring crisis. Find out how to add your support to our call for law reform at www.themdu.com/faircomp

i Department of Health (2015) Triennial Review of the NHS Litigation Authority, available at www.nhsla.com/CurrentActivity/Documents/ NHS_LA_Triennial Review_2015.pdf ii See, for example, Illingworth, J (2015) Is the NHS getting safer? The Health Foundation, available at www.health.org.uk/publication/nhs-getting-safer iii Law Reform (Personal Injuries) Act 1948, available at: www.legislation.gov.uk/ukpga/Geo6/11-12/41

The Solution The question is what can be done about the cost of damages paid out in claims? Of course the NHS must

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Curian Medical have worked within the medico legal sector for over 5 years and have an excellent track record of supporting insurers, solicitors, medical reporting organisations and the occupational health industry with their rehabilitation needs. We have a portfolio of treatment services that we co-ordinate nationwide including physiotherapy, pain management and diagnostic imaging. Curian Minds is the psychological arm of our business delivering talking therapies such as CBT and EMDR across the country. Our commitment is to provide an exceptional personal service to both the patients and clients we work with, in a timely manner, with communication being key in the process. For more information about our treatments or how Curian Medical can assist please contact us: t: 0121 732 9860 e: enquiries@curianmedical.co.uk w: www.curianmedical.co.uk

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MEDICO -LEGAL NEWS: By Lisa Cheyne, Medico-Legal Manager, SpecialistInfo

The Department of Health launched: Introducing Fixed Recoverable Costs in Lower Value Clinical Negligence Claims - A Consultation.

A round-up of news in the industry this first quarter of 2017, with links to further information.

The consultation, launched on Monday 30 January 2017, aims to seek views on proposal for a mandatory system of fixed recoverable costs for lower value clinical negligence claims in England and Wales.

NHS Litigation Authority launches mediation service The NHS LA launched its new mediation service last December with the announcement of its panel following a public tender. The service follows a successful pilot and has been designed to support injured claimants, their families and healthcare staff in working together towards resolution without the need to go to court. The contracts have been awarded to the Centre for Effective Dispute Resolution (CEDR), Trust Mediation, and Costs Alternative Dispute Resolution (CADR) for an initial period of two years. Helen Vernon, Chief Executive of the NHS Litigation Authority says: “Mediation is an excellent forum for dispute resolution and provides injured patients and their families with an opportunity for faceto-face explanations and apologies when things go wrong and reducing the need for unnecessary litigation.” Visit www.nhsla.nhs.uk for more information.

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The proposed fixed recoverable costs scheme aims to improve the efficiency and costeffectiveness of clinical negligence claims by supporting: •

quicker and more cost effective resolution for all parties

•

greater opportunities for early learning of lessons from harmful incidents to inform safer clinical practice

•

access to justice for those claimants bringing clinical negligence claims of a low monetary value, but complex nature

•

patients’ access to justice by streamlining the system and incentivising earlier resolution of such claims

The consultation closes at 11:45pm on 1 May 2017. More information can be found on the www.gov.uk website on the GOV.UK Fixed recoverable costs for clinical negligence claims webpage.

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The GMC have released new guidance for doctors on Confidentiality: good practice in handling patient information Revised guidance on confidentiality will come into effect for all doctors practising in the UK from 25 April 2017. The updated guidance, released in January 2017, contains information relevant to doctors acting as expert witnesses, for example when disclosure of confidential medical information is required by law or to help a coroner, procurator fiscal or other similar officer with an inquest or fatal accident inquiry. You can find the latest version of this guidance on the GMC website at www.gmc-uk.org/guidance

MOJ announces it will increase the small claims limit for 'RTA-related personal injury' claims to £5,000 in 2018 Announcing the Prisons and Courts Bill on 23 February 2017, the Ministry of Justice said it will impose a new threshold of £2,000 for all other personal injury claims. The original proposal was to increase the limit across all small claims, but the reform is still likely to be unpopular with claimant lawyers who face being effectively removed from low-value whiplash claims altogether. There will also be a ban on any offers to settle whiplash claims without providing medical evidence. The ban and compensation tariffs will both require primary legislation and will form part of the Prisons and Courts Bill. Justice minister Sir Oliver Heald said: 'We are determined to get a grip on the widespread compensation culture that unfairly impacts millions of motorists through higher premiums. So we are cracking down on minor, exaggerated and fraudulent whiplash claims. And we expect insurers to fulfil their promise and put the money saved back in the pockets of the country's drivers.' The amounts cover both whiplash claims and 'minor' psychological claims – for example travel anxiety or shock. The impact on MedCo and the amount of work for experts could be severe, if these changes lead to an increase in accident victims being forced to act for themselves, and could result in experts needing to demand their fees upfront. Read more at www.lawgazette.co.uk/law/personal-injury

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The GMC have released new guidance for doctors on Confidentiality: good practice in handling patient information On 2 March 2017 the CQC presented their findings from their programme of NHS acute comprehensive inspections since late 2013. In this time, they completed inspections of all 136 NHS acute non-specialist trusts and all 17 specialist trusts. They found that most hospitals are delivering good quality care and encourage trusts to follow good practice to improve their own services. But they also found that some trusts have problems with the quality of care they are delivering in a particular core service, even in some trusts rated good overall. All hospitals told the inspectors that patient safety was their top priority, but too often they did not have an effective safety culture or reliable systems to ensure this. Many of the inefficiencies flagged could be avoided, such as hospital acquired infections, or are caused by poorly coordinated care.

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When something does go wrong, the CQC recommends that a sincere and timely apology should be offered, and any actions taken to improve processes to prevent the same happening again should be communicated. Staff should understand and fulfil their responsibilities to raise concerns and report incidents and near misses, and should be fully supported when they do so. In hospitals rated good or outstanding, the CQC noted that the trust boards had worked hard to create a culture where staff felt valued and empowered to suggest improvements and question poor practice. Where the culture was based around the needs and safety of patients, staff at all levels understood their role in making sure that patients were always put first. The full report can be downloaded as a PDF from: www.cqc.org.uk/sites/default/files/20170302b_ stateofhospitals_web.pdf

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FRACTURES OF THE PELVIC RING By Mr Nikhil Shah Mr Shah is a Trauma and Orthopaedic Surgery Consultant at Wrightington Hospital in Lancashire with special interests including long bone and joint periarticular fractures, pelvic and acetabular fractures, hip and knee replacement. He has extensive medico-legal experience, including multiple/polytrauma accidents and catastrophic injury, clinical negligence, work-related accidents, low velocity impact whiplash and fraud and injury overseas. The pelvis is the strong and sturdy ring of bones located at the base of the spine. It links the bottom of the spine to the lower limbs. Fractures of the pelvis are relatively uncommon. But they can be life threatening injuries. Management of pelvic ring has evolved and advanced over the last 4-5 decades due to the efforts of many pioneering surgeons, particularly Letournel and Judet in France and Pennal and Tile in North America, to name just a few. Most pelvic fractures are caused by some type of trauma, a high-energy event, such as a car collision or

Sp o n s o re d by:

a fall from a height. The pelvis contains and protects major blood vessels, nerves, and important organs, and so pelvic fractures may cause extensive bleeding and other injuries that require urgent treatment. Treatment for a pelvic fracture varies depending on the severity of the injury. While lower-energy fractures can often be managed without surgery, treatment for high-energy pelvic fractures usually involves surgery to reconstruct the pelvis and restore stability of the ring, so that patients can regain the ability for early walking and return to function.

Medico-Legal Relevance Most pelvic fractures are caused by some type of traumatic, high-energy event, such as a car collision. Some of them occur from crush injuries at work, fall from ladders, fall through a roof, pedestrians hit by vehicles, and hence these injuries give rise to quite a few personal injury claims. In some cases, a lower-impact event—such as a minor fall—may be enough to cause a pelvic fracture in an older

MEDICO LEGAL M A G A Z I N E

person who has weaker bones. These too can sometimes form part of a claim, due to the injury having occurred in a public place or after a simple fall due to trips and slips. It is important to appreciate the features of the injury and arrive at a prompt diagnosis to allow timely appropriate management of the injury. Occasionally the fractures are difficult to spot on simple plain x-rays, particularly undisplaced fractures or sacral fractures, and rarely can be missed at the initial assessment in a busy casualty environment. A high index of suspicion is required for diagnosis. Missed injuries or inappropriate / inadequate treatment can often develop into liability and causation / breach of duty type claims. Whilst the anterior ring lesion- involving the pubic ramus or pubic symphysis is rarely missed, it is the posterior ring lesion in the sacrum or sacro-iliac joint that is not always appreciated by plain x-rays.

Anatomy The pelvic bones include the following components: 1- Sacrum (the large triangular bone at the base of the spine which forms the sacro-iliac joints). The coccyx (tailbone) joins the lower end of the sacrum. 2- Each hemipelvis or innominate bone contains the ilium, ischium, and pubis—that are separate during childhood but fuse together as we grow older. 3- These three bones meet to form the acetabulum —the socket for the ball-and-socket hip joint. There are strong ligaments in the front and rear part which join the pelvis to the sacrum, and the pubic bones to each other, thus providing the pelvis with its uniquely stable ring structure. Major nerves, blood vessels, and portions of the bowel, bladder, and reproductive organs all pass through and lie within the pelvis which protects these important structures from injury. The pelvis also serves as an attachment for the muscles of the spine, hip, thigh, and abdomen.

is often accompanied by a fracture or damage to ligaments at another point in the ring. It is important to get appropriate X-rays and sophisticated imaging such as CT scans to ensure that all components of the injury are correctly diagnosed. Fig 1 showing 3 D CT scans of a pelvic injury Orthopaedic surgeons like to classify injuries to make it easier to describe them, communicate with each other, and help plan treatment. It is important to recognise the common patterns and not underestimate the severity of the injury. Particularly it is important to diagnose the injury at the posterior or rear part of the pelvic ring. There are many types of pelvic fracture patterns. The specific pattern of the fracture depends upon the direction and the amount of force that caused the injury. Common mechanisms include forces from the front (anteroposterior compression as in a motorcyclist colliding against a wall), from the side (lateral compression as in a side impact collision, or a pedestrian hit from the side) or in a vertical direction (vertical shear as in fall from a height). There can also be combination of these mechanisms (such as being hit and then roll-over). This was described in detail by Young and Burgess. Pelvic ring injuries are usually described as mechanically "stable" or "unstable," (Pennal and Tile) based on how much damage has occurred to the structural integrity of the bones and ligaments that make the ring stable. In stable patterns, the ring structure is maintained despite the fracture. The broken bones usually remain undisplaced or minimally displaced and well-aligned. The key feature is that the ring is stable. In unstable fracture patterns, there is often displacement of the broken components, leading to either partial rotational or complete (multidirectional) instability. This type of fracture is more likely to occur due to a highenergy event. A mechanically unstable injury can be lifethreatening and requires urgent surgical treatment to stop internal bleeding. A pelvic fracture may also occur due to weak or insufficient bone. This is most common in older people

Description of the injuries

whose bones have become weakened by osteoporosis. In

A ring usually breaks in two places. So a fracture or disruption / dislocation in one part of the ring structure

a standing height, or similar low energy trauma. These

these patients, a fracture may occur even after a fall from

Sp o n s o re d by:

injuries are typically stable fractures that do not damage

MEDICO LEGAL M A G A Z I N E

the structural integrity of the pelvic ring, but may fracture an individual bone. Some sacral insufficiency fractures are only diagnosed after MRI scans Less commonly, one sees an avulsion fracture where

a piece of the pelvic bone attached to a strong muscle such as the anterior inferior iliac spine, or the ischial tuberosity gets pulled away due to sudden muscular contractions. This is most common in young athletes who are still growing. An avulsion fracture does not usually make the pelvic ring unstable or injure internal organs. Many of these may heal without need for surgery, but some displaced fractures may need surgery.

Treatment principles Patients with high-energy fractures will almost always be brought to a major trauma centre or trauma unit for initial treatment. In the UK trauma system most patients are now brought to the casualty with a pelvic binder applied by ambulance personnel on the scene of injury. This circumferential binder wrapped around the pelvis and hips at the scene of injury, helps to keep the pelvic ring closed and can save lives by controlling internal bleeding. These patients may also have additional injuries to the head, chest, spine, abdomen, or legs. If their injuries cause significant blood loss, it could lead to shock—a lifethreatening condition that can result in organ failure. A multidisciplinary approach to their treatment with input from a number of medical specialists is required. Life threatening injuries must be addressed promptly. Airway, breathing, and circulatory problems are treated as a priority. Various specialised x-rays and imaging studies such as CT scans are required to comprehensively analyse the fracture patterns. In many low energy cases nonsurgical treatment may be appropriate for stable fractures in which the bones are nondisplaced or minimally displaced. This usually involves a short period of rest untill pain can be controlled and gradual supervised mobilisation with the help of walking aids. If there is no risk of serious bleeding, in most cases some form of anti-coagulant, or blood thinning medications are given to reduce the risk of blood clots forming in the veins of the legs and pelvis and travelling to the lungs. Surgical Treatment is usually required for unstable and displaced pelvic fractures. In the emergency scenario, an

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external fixator can be used to temporarily stabilise the pelvic ring and control bleeding. In this operation, metal pins or screws, projecting through the skin externally, are inserted into the bones through small incisions on both sides of the pelvis and then connected to connecting bars outside the skin using clamps. In some cases, an external fixator is used as the main definitive method until healing is complete. Fig 2 external fixator applied to the pelvis In other cases it may have to be combined with skeletal traction to the leg. In this technique a metal pin is inserted through the distal femur (above the knee joint area) or proximal tibia and connected to weight via a system of pulleys. This is used temporarily before surgery, and also during surgery to help realign the pelvic bones. The definitive treatment of unstable pelvic ring injuries consists of closed, mini-open (percutaneous) or open (making a formal incision) reduction (correct repositioning and realigning of the broken bony fragments) and internal fixation using a combination of different types of plates and screws inserted into the pelvic ring, both in the front and also in the back of the ring, to stabilise it completely. Fig 3 and 4 showing some of the pelvic fixation techniques There are risks associated with any surgical procedure such as wound healing problems, infection, malalignment, damage to nerves or blood vessels or internal pelvic organs amongst several other risks. These are recognised complications which are explained to the patient before surgery. Medications are administered after pelvic surgery to prevent clots in the legs and lungs. After surgery, the aim is to appropriately rehabilitate the patient and help return to as normal a function as possible. This is done by trained physiotherapists by means of specific exercises to help regain flexibility, strength and movement. A period of protected weight bearing is also usually required after surgery in many cases. In many litigated cases, increasingly nowadays a case manager is appointed to oversee and coordinate multidisciplinary rehabilitation requirements. Pelvic fracture surgery is a specialised branch of orthopaedic trauma surgery performed in regional pelvic trauma centres by trained orthopaedic surgeons and teams who handle a high volume of such cases. Other vital members of such trauma teams include vascular surgeons, plastic surgeons, Urologists, general surgeons,

MEDICO LEGAL M A G A Z I N E

interventional radiologists, Anaesthetists, pain specialists, and intensive care specialists amongst others. With correct diagnosis, timely intervention in life threatening injuries, expert definitive management, and active rehabilitation, good functional results can be obtained in these severely injured patients, who are often in the young age group. However a complete recovery may not necessarily occur in all the patients, particularly after significant injuries. Some may continue to have varying degrees of residual discomfort or pelvic pain or functional problems such as a limp in the long term. Particularly, injuries to the neurological structures within the pelvis and also urological injuries (the bladder and

urinary passage) can be responsible for poor long term results. Many patients also suffer from sexual dysfunction, because of damage to nerves within the pelvis. Most regional centres have specialist urologists who deal with the urological injuries that occur in association with pelvic fractures. Recent changes to the manner in which trauma services are configured and delivered within the UK, over the last few years, and an emphasis for severely injured patients being promptly taken to regional trauma centres with multidisciplinary trauma teams, has resulted in improved outcomes and reduced mortality from such injuries. Mr Shah can be reached on: Nikhil.shah@consultantcare.com

Fig 1- a 3 D - reformatted CT scan which creates a virtual image of the pelvis and allows accurate assessment of the injury in 3 dimensions to plan treatment. In some cases of difficult fracture patterns, 3 D printed models can be made to help plan the surgical technique.

Fig 3 - an unstable type C pelvic ring injury being fixed with plates on the front to the symphysis pubis and percutaneous screws to stabilise the fracture of the sacrum on both sides.

Fig 2 - external fixator applied to the pelvis to try and close the unstable pelvic ring.

Fig 4 - an unstable pelvic ring injury treated with symphysis plates and plates to stabilise a right sacro-iliac joint disruption at the back of the ring.

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HYPE AND FLEXION - “WHIPLASH REFORMS” TO PERSONAL INJURY CLAIMS By Jonathan Dingle FRSA, Barrister and SpecialistInfo Course Leader Many readers will have read diverse headlines in February to the effect that the Government had announced the result of its consultation into personal injury “reforms”. These can be accessed at the footnote link1. The aim of this article is to summarise the changes which will be in place by 1st October 2018. A future article will look at the impact for expert witnesses.

The Headlines •

•

The personal injury small claims limit will rise from £1,000 to £5,000 in relation to all road traffic accident matters. This matters because the legal costs that are payable by compensators are trivial and will restrict the availability of solicitors to injured people in what amounts to 80% of road accident cases. For all non-RTA personal injury matters the small claims limit will rise from £1,000 to £2,000. This will affect al lot of other minor cases including clinical negligence matters. There will again be a reduction in the number of solicitors advising those who have suffered injury or negligence.

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Historical and Future Perspective In fairness to the insurance industry, and the government, the personal injury small claims limit last went up in 1991. This new limit for non-RTA matters represents a slightly below inflation increase. Some commentators suggest that this move is likely to end further debate about the small claims limit for a generation. Whilst many claimant-orientated critics have complained about this increase, it is not so much the increase that will see changes in the way that solicitors can act, but rather it is the valuation of whiplash claims.

“Whiplash” Tariff Rather in the same way that armed forces personnel2 and criminally injured victims3 are compensated under a tariff system, but a much lower level, the Government has now announced the tariff for whiplash injuries. It has decided on a unified figure that will cover both soft tissue claims and minor psychological claims. There will be no separate figure for minor psychological injuries.

MEDICO LEGAL M A G A Z I N E

It is probably a fair comment that it is intended to make such claims unattractive – and to reduce insurance premiums. That said, the latter consequence will be significantly abated by the unrelated but parallel changes to the calculation of future loss in serious accident cases4. This article is, however, concerned with the majority of cases that are relatively minor: minor that is, unless you happen to be the person who has suffered four months of neck and shoulder pain, causing you (as it did the author) to miss a major sporting event; to have wasted over 18 months of training; to be unable to ride a motorcycle on holiday; and to be unable to lift your grandsons into their bunk beds. Minor is a relative matter. So, what is a “whiplash injury”? It is defined as an injury, or set of injuries, of the neck or the neck and upper torso that is of a description specified in regulations made by the Lord Chancellor. The provisions only apply to people injured while using or being carried in or on a motor vehicle - other than a motorcycle. It follows that pedestrians, cyclists, and motorcyclists are not covered by these provisions and are not subject to the tariff system. There has been a very substantial reduction for the pain, suffering, and loss of amenity to be paid for injuries that are within the definition of whiplash. At the bottom of the tariff they are down by up to 75% on court awards in 2015. At the top by about 40%. The figures are: Injury Duration

New tariff amounts

0–3 months

£225

4–6 months

£450

7–9 months

£765

10–12 months

£1,190

An uplift in damages may be allowed in exceptional circumstances, and all of that is to be dealt with by regulations made by the Lord Chancellor.

Medical Experts are Still Necessary There are detailed provisions on the prohibition of settlement before a medical report. These make it a breach of the Act, but not a criminal offence, to settle a claim without a medical report. It will not be a criminal offence but action may be taken against a regulated person by the appropriate regulator as professional disciplinary action. That said, unregulated insurers dealing with unrepresented claimants might find this a tempting route. Generally, however, experts who provide GP or orthopaedic reports through MedCo5 will continue to be needed. There is likely to be downward pressure on fees and there may be a temptation for some solicitors, hard pressed by the fee cuts, to seek arrangements with experts: MedCo offers help if experts are so approached – see the link6.

Reaction For those lawyers, and medico-legal experts not dealing with road traffic matters, the reforms represent very little in the way of a change. For those who do, there will be real pressures on economics and it is difficult immediately to see who will be instructing experts in cases that have less than 24 months of pain – either insurers on a unilateral basis or solicitors who develop a cunning business model. A fuller analysis will be offered in the next article. In the meantime – don’t believe all the hype but be flexible!

https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/593431/part-1-response-to-reforming-softtissue-injury-claims.pdf

2 https://www.gov.uk/government/collections/armed-forcescompensation

https://www.gov.uk/government/uploads/system/uploads/ attachment_data/file/243480/9780108512117.pdf

13–15 months

£1,820

16–18 months

£2,660

19–24 months

£3,725

Sp o n s o re d by:

The Discount Rate change – see: https://www.gov.uk/government/ speeches/justice-update

http://www.medco.org.uk/

http://www.medco.org.uk/home/faqs/

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MEDICO LEGAL M A G A Z I N E

Medico-Legal Magazine Issue 4

Articles inside

Fractures of the Pelvic Ring By Mr Nikhil Shah

SpecialistInfo Medico-Legal News By Lisa Cheyne

An Invitation to Mediate? Accept! By Mark Field

New Industry Body Launched to Represent Medical Reporting Organisations By Paul Collin

Robotics and Artificial Intelligence in Healthcare By Greg McEwen

A Perfect Storm – the Spiralling Cost of Claims By Dr Michael Devlin

Medico-Legal Aspects of Hand Arm Vibration Syndrome By Mr Michael Gaunt

Mediation in Clinical Negligence Claims the New NHS LA Scheme By Brian Dawson

Case Study - Mediation Helps Parties Discover What Matters Most By Jane Gunn

Understanding the Unsaid Signals By Andrea Gordon