Your Expert Witness Issue 53

www.yourexpertwitness.co.uk

1

2

www.yourexpertwitness.co.uk

www.yourexpertwitness.co.uk

3

contents IN THIS ISSUE 7

9

Opening Statement

NEWS 8

Free guide helps experts prepare for conferences

8

Carillion loses court bid to obtain KPMG papers

9

Construction trial Zooms to a conclusion

FINANCE 10

Meeting of minds

FORENSICS

12

12

CCTV: commissioners update impact assessment requirements

12

EWI membership may provide an alternative to unsuitable standard

WORKING AT HEIGHT 13

How to keep your distance while working at height

13

Fall injury leads to million-pound fine

TRANSLATION & INTERPRETING 14

To regulate or not to regulate? NRPSI director has the answer to that question

15

Brexit still a major worry for language professionals

A to Z WEBSITE GUIDE 32 Our A to Z guide to the websites of some

of the country’s leading expert witnesses.

13

EXPERT CLASSIFIED 51 Expert Witness classified listings 54 Medico-legal classified listings

Your Expert Witness Suite 2, 61 Lower Hillgate, Stockport SK1 3AW Advertising: 0161 710 3880 Editorial: 0161 710 3881 Subscriptions: 0161 710 2240 E-mail: ian@dmmonline.co.uk Copyright Your Expert Witness. All rights reserved. No part of this publication may be copied, reproduced or transmitted in any form without prior permission of Your Expert Witness.

Views expressed in this magazine are not necessarily those of the publisher. Printed in the UK by The Magazine Printing Company Plc www.magprint.co.uk

4

www.yourexpertwitness.co.uk

2YWG

www.yourexpertwitness.co.uk

MEDICAL ISSUES 17 Medical Notes

21

VIEWPOINT The Montgomery case: Supreme Court in action or a recipe for supreme chaos?

19 NEWS 21 Statement clarifies doctors’ position on COVID death certificates 22 New contracts awarded for NHS mediation service COMPARTMENT SYNDROME 23 Compartment syndrome: What is it and what are the medicolegal consequences?

THE ROLE OF THE SURGEON AS AN EXPERT WITNESS Surgery experts rise to the challenge 25 27 Thrombosis in the time of coronavirus 29 Orthopaedics and trauma during the COVID-19 crisis ARTHROPLASTY Surgeons fit wrong-sided prosthesis during knee operation 31 31 Scottish registry shows progress over the years

25

OPHTHALMOLOGY 33 Lockdown causes sight-loss fears 34 RCOphth is ‘unable to report’ on COVID link to impaired sight 34 Don’t drive to test your sight, optometrists warn 35 Orbital cellulitis can lead to preventable blindness PLASTIC, RECONSTRUCTIVE & HAND SURGERY Various factors lead to dip in cosmetic procedures 37 37 Specialty adapts treatment app FAMILY CASES 38 Family court expert report draws two cheers DENTISTRY & MAXILLOFACIAL SURGERY Dentists’ leaders warn of dangers of ‘opening floodgates’ 39 39 GDC turns down fee reduction plea 41 Are you a troubleshooter or an expert witness, or both?

43 The dangers of healthcare tourism

50

OBSTETRICS & GYNAECOLOGY 44 COVID hospital admissions in pregnancy more prevalent among BAME women UROLOGY 45 What are the medicolegal implications of cauda equina syndrome?

CARDIOLOGY Heart attack victims delay seeking help during pandemic 47 PSYCHIATRIC & PSYCHOLOGICAL ISSUES 49 Expect a ‘tsunami’ of mental health issues, psychiatrists warn 50 Psychology body issues guidance for homeworkers – and returning psychologists www.yourexpertwitness.co.uk

5

6

www.yourexpertwitness.co.uk

Opening Statement [SINCE THE LAST ISSUE of Your Expert Witness, when we were in limbo as to where the

coronavirus outbreak was going, the COVID-19 crisis has infiltrated all aspects of life – including in the legal sector. It did not take long for the Courts and Tribunals Service (HMCTS) to suspend all but the most urgent of hearings, before devising ways of carrying out more routine hearings.

• To many people the idea of doing your job without actually needing to be in the same room as your colleagues is not a quantum leap: after all, the telephone has been around for over a century and many of us have embraced the internet as a way of working remotely for some years.

Learning to carry on the work of the justice system remotely should not, therefore, pose that much of a problem. However, the fact that the first trial in the Technology and Construction Court has been carried out via Zoom marks a milestone on the road to remote working by the judiciary.

• While remote trials in the sphere of technology and commerce may lead to savings of time and resources for the judicial system and litigators, the ability to carry out hearings without the need for witnesses to attend in person can lead to a huge step forward for vulnerable people in dire need of the protection of the law.

While it cannot be remotely said that there is a silver lining, there is a marker there for future norms.

• Getting back to work in the wake of the pandemic impacts on everyone who needs to find ways of adjusting to the new realities. Working at height has been one of the areas of activity that has been identified as needing particular attention. Maintaining social distancing is a case in point.

• An area of the law where the new reality can lead to questions concerns the regulation of interpreting services in the public service, such as courts. The body set up to ensure quality assurance in those services has hit back at those looking to undermine its role.

• Not every aspect of the judicial system is being dominated by the COVID pandemic, however. If justice were to grind to a halt during the crisis, the damage would go far beyond the mourning of those many thousands who have lost loved ones and colleagues.

• For the expert witness, attending conferences with counsel is one task that has to carry on. Many experts have little idea of what such a conference entails until they attend one. Mark Solon has some tips.

Forensics is another area of expertise that requires a strong expert input. There are differing views on what qualifications a forensic expert should be able to boast. One expert feels the EWI is the way forward.

• The construction industry has been providing more than its share of legal stories. When Carillion hit the skids in 2018 it was obvious that there were questions that needed answering. In particular, there was the sight of hospital developments put on ice. Even then there was massive indignation – before we knew how much the NHS was to be stretched. Now the net of culpability seems to be widening to ensnare a whole bunch of professionals who should have known better.

• The area of working at height in the construction industry is also still attracting the attention of the courts. Falls from height are only adding to the industry’s woes.

• Which brings us to Brexit – and back to the interpreting sector. According to the latest survey of its members, translators and interpreters still count uncertainty around Brexit among their biggest worries. Plus ça change, as we soon won’t be saying any more. q

Ian Wild

Ian Wild, Director of Business Development Your Expert Witness

www.yourexpertwitness.co.uk

7

Free guide helps experts prepare for conferences [MARK SOLON, the founder of Bond Solon – the well-known training company for expert witnesses – has produced a free guide for experts on attending conferences with counsel. There is very little information for experts on the subject, says Mark, and the guide is intended to help expert witnesses understand the purpose of a conference with counsel.

Writing on Bond Solon’s website, he says: “A conference simply means a meeting with the barrister who has been instructed by a solicitor to advise on or be the advocate in a case. There may be

two barristers if the case warrants this: a QC who will advocate at the hearing and a Junior Counsel, or just a Junior Counsel. The solicitor conducting the case will be there and sometimes assistants and trainees. The meeting is sometimes called a ‘Con’. Sometimes a conference will be by phone or conducted remotely by one of the many links available now.”

The guide can be downloaded from www.bondsolon.com/ media/169584/practical-guide.pdf. q

Carillion loses court bid to obtain KPMG papers [

THE PREAMBLE TO the negligence case that seems certain to be brought by lawyers for defunct construction giant Carillion – or rather its liquidator – against accountants KPMG took another turn on 3 June.

High Court judge Mr Justice Jacobs refused an application to force KPMG to hand over records relating to its 2014, 2015 and 2016 audits of Carillion. He instructed the lawyers to ‘get on with the case in the usual way, by setting out the case in a pleading’.

“Applications for pre-action disclosure in the Commercial Court are relatively rare, and the authorities to which I was referred contain no

8

www.yourexpertwitness.co.uk

recent examples of successful applications,” said Mr Justice Jacobs in his ruling.

He added: “Carillion’s own documents should enable it to say why, on the material available to KPMG, it acted negligently in relation to the company’s figures. Carillion is seeking a level of assurance and certainty which is inappropriate and does not justify the application which is made.

“It would be possible to say, in every professional negligence case in the Commercial Court, that pre-action disclosure would assist the claimant’s expert in coming to a fully-informed or concluded view on the issue of negligence.”

The issue of KPMG and the Carillion audits has brought the issue of corporate governance in the construction sector into the limelight.

According to trade union Unite it is an example of the ‘rotten system of bandit capitalism’.

Its assistant general secretary Gail Cartmail said: "It is for the courts to decide if there are any legal implications for KPMG over its role in the Carillion meltdown in 2018. It is obvious, however, that something was clearly very wrong with KPMG's audit of Carillion. The firm's collapse was caused by runaway greed and mismanagement at the highest levels and the UK's auditing and accounting system was powerless to stop it.

“The result was hospitals laying half built, thousands of jobs lost and a bill of a least £150m to the taxpayer. The case of Carillion, and other high-profile corporate failures where financial black holes appeared in supposedly healthy firms, exposed the UK's rotten system of bandit capitalism for what it is.” q

Construction trial Zooms to a conclusion [

THE FIRST EVER TRIAL in the Technology and Construction Court to be held entirely remotely reached its conclusion in May, having been conducted across video-conferencing platform Zoom. The case made English legal history and could help transform how future court cases are conducted, even after the threat of the COVID-19 pandemic has receded.

The settlement resulted in liability for Barnet Council of over £3m, following the repeated flooding of a family home. The case was brought by construction law specialist Barton Legal, alongside Peters & Peters and two members of 39 Essex Chambers. The Honourable Mrs Justice Jefford DBE rejected the defendant's application to adjourn the case, in favour of Zoom, after it had taken more than four years to come to trial.

The quantum expert witness was David Daly of Novus Resolve, who commented: “It was exciting to be involved in the first-ever remote TCC trial and to be participating via Zoom. It worked well in terms of the documents and I think the biggest hurdle would have been the ability to look at a very large and detailed spreadsheet on a computer screen, and not altogether at an enlarged hard copy.

Fortunately, the case settled before we had to deal with that – a problem for another day.”

With evidence supplied to the court virtually, and with Paul Darling OBE QC's cross examination conducted by video, the cyber-secure video stream was open for public viewing. Up to 40 people, including journalists and members of the public, were watching at a time: an

unusually high number for a case of that kind.

Bill Barton, director of Barton Legal, commented: “The significance of the case is huge. Technology is powering what could be one of the biggest shifts in English courtroom history. This is about more than how the trial was conducted: empowering people around the world to view cyber-secure, open trials cuts to the very core of the principle that justice should be seen to be done. The law is amongst the world's oldest professions; of course it is time it embraced change.

"Every aspect of the case went off without a hitch. Screen sharing allowed evidence to be viewed easily; the defendant saw its main witness repeatedly challenged over video and even the intimacy of the traditional courtroom remained. Hopefully, even after the lockdown is lifted, we’ll return to a new, digital normal.”

Paul Darling OBE QC, barrister at 39 Essex Chambers, commented: "Among the principal concerns when it comes to remote trials is the loss of visual cues. Any barrister will tell you that body language is invaluable in cross examination.

“What the trial has proved beyond reasonable doubt, however, is that none of the intimacy of the physical courtroom is in fact lost with a remote trial. Rather, video sharing can in fact heighten our ability to dissect testimony, whilst opening up proceedings to the public.” q

www.yourexpertwitness.co.uk

9

Meeting of minds CHRIS MAKIN looks at the shift in the role of experts from attending trials to taking part in expert meetings, and why the latter are so important to the outcome of cases.

[

IT IS NOW more than 20 years since the Civil Procedure Rules introduced ‘a new procedural code with the overriding objective of dealing with cases justly’.

As the footnote to the first edition of CPR 1.1(1) says: “For the first time, the concept of justice in civil litigation has been deconstructed into discrete strands. Notions of equality, economy, proportionality, expedition and the sharing of court resources have been added to that of fairness to make concrete and accessible what was previously instinctive.” And those words appear in later updates (103 so far) as a General Note. Fine words. But what do they mean in practice?

From my point of view as an expert accountant, the changes were quite dramatic. I speak only as an expert accountant, since I am not a lawyer; it is fundamental to the role of the expert that he expresses his opinion only within his own field of expertise.

The biggest change I have experienced is that I am rarely required to attend trial. Under the old regime, it was commonplace to be juggling up to three trial commitments at once, and normal for me to ask for a subpoena (before Latin was banned!) to avoid having to be in three places at once.

Yet now, when instructing solicitors ask for my prior commitments, my diary is embarrassingly sparse. It is as though we don’t do expert work any more.

Nothing could be further from the truth. My flow of new instructions never seems to bate, and it is the same with the other forensic practitioners I talk to.

Where have all the trials gone?

So what happened? I suggest three changes, all within the spirit of the new code.

• Firstly, there are fewer ‘dabblers’ attempting to do expert work.

Solicitors recognise the need to assess carefully the competence of experts as they choose them, both in their own discipline and in the art and science of being an expert.

There are lots of directories of experts, but solicitors know to ask how many reports the expert has written; how many times they have acted for claimants, defendants, and as joint expert; and how many times they have given expert testimony. And hot tub experience is increasingly relevant.

The expert accountant profession is a smaller one, but those who do the job seriously are much busier than before.

• Secondly, ADR. Some solicitors still think that stands for ‘Alarming Drop in Revenue’ but those who refuse ADR will be penalised in costs, and so many more cases settle before trial. And as a practising mediator, where settlement rates are high, I see the other side of this.

• Thirdly, the meeting of experts. In my experience the meeting of experts is often the turning point, leading to an early settlement. So

10 10

www.yourexpertwitness.co.uk

it is crucially important to choose an expert who knows the importance of the expert meeting, and can handle it to best effect.

Up close and personal

Of course, the ‘meeting’ need not be a meeting at all. Part 35.12 refers to ‘discussions between experts’ and that can take the form of a telephone discussion, video conference, letters or emails. The watchword is proportionality, but where the case justifies it, I always prefer to meet face to face. It is often valuable to see the body language of the opposing expert.

Discussions are without prejudice and not binding, but the expert meeting is a good opportunity to probe the strengths and weaknesses of the other side, and to assess what sort of a witness the opposing expert will make.

There is nothing wrong with the expert sowing doubt in the mind of his opponent and, since the other solicitor and counsel will want feedback from the meeting, that could be a good way to encourage settlement. Similarly, you and your counsel will want feedback, so a Part 36 offer may be crafted, or the decision taken to proceed to full trial. Such feedback is within the doctrine of dealing with cases fairly and expeditiously.

When to hold the meeting

For a complex case, one may consider having a meeting of experts long before reports are produced. Of course the experts will not discuss their opinions, because at this early stage they won’t have any – but it can be a valuable way of managing a complex case to keep the costs proportionate, since the experts can agree to limit their work to the areas which the court will expect the experts to clarify.

More normally, the meeting is held after expert reports have been exchanged. Issues of expert opinion are now known, and the next step is to prepare an agenda. CPR 35.12(2) and (3) tell us the court may decide the issues to be discussed, and may direct the preparation of a joint statement, specifying those issues on which the experts are agreed, and those on which they disagree, with a summary of their reasons. The court rarely specifies the issues to be discussed, but the fact it may do so concentrates the mind of those preparing the agenda.

Who prepares the agenda?

The agenda is crucial. Who should prepare it? CPR Part 35 itself gives no guidance, but the CPR Code of Guidance for Experts and Those Instructing Them does. The guide at 21.5 says this: “Before a discussion takes place, the claimant’s expert should prepare and agree an agenda with the other parties’ experts that will include a summary of agreed matters, and those in issue, stated as concisely as the case allows at that stage. Prior to preparing the agenda the claimant’s expert should liaise with those instructing

him and each expert should liaise with those instructing them prior to agreeing the agenda.”

The purpose of this is obvious: to ensure that the experts discuss and agree – or not, with reasons – the matters addressed in their respective reports. But in practice the differences will be apparent from consideration of the experts’ reports, and I have had minimal involvement with solicitors at this stage. Lawyers seem to respect the fact that, as an experienced expert, I do know what I’m doing.

Open questions?

The EWI says the agenda should, where possible, consist of closed questions, to which it is possible only to reply ‘yes’ or ‘no’. I am uncomfortable with that. For example, if a claim is for loss of profits, the claimant’s expert could contend that the loss is £100,000 for a period of total disruption, plus £50,000 for a period of regression thereafter. The defence expert could argue that the loss is only £20,000 for the initial period with no regression thereafter. Neither is a hired gun; both have based their opinions on sound logic from proven facts. Which expert is right?

The answer, almost certainly, is neither. And ‘yes’ or ‘no’ is certainly not the answer! The meeting must address each element leading up to the different opinions of loss. There may be agreement on one aspect, disagreement on another, and a refining of both expert’s opinion of quantum. Each expert has had their opinion rigorously challenged, and the result may be that each expert changes their opinion.

This is a very worthwhile process; the experts have not negotiated an agreement or, worse still, split the difference – that is not their function. But the court is now presented with a range of opinions which is narrower than before, and built up of defined issues to be decided by the court.

This is valuable, because the court can now make judgments on the separate issues which lead up to a total finding of quantum. Indeed, the expert accountants can often assist by providing the court with a ready reckoner.

disagreement. That statement should really be prepared during the meeting, point by point. It is unwise to leave agreement of the wording to later discussion, since that gives either expert the chance to change their mind, it lengthens the meeting, and it leads to excessive costs. And it is unwise for the experts to move on to later matters before deciding earlier ones; that results in a discussion of everything and agreement on nothing.

But there can be no objection to each expert being allowed to express in their own words the reasons for disagreement. This gives a good insight into the reasoning power of the expert, and into the sort of witness the expert will be at trial.

So the joint statement is a crucial document. The experts may have agreed so much that the remainder is not worth fighting over.

Hence, a Part 36 offer may come from either side shortly after the statement is exchanged and, although the expert meeting may have been lengthy, its cost will be substantially less than if the same issues had to be addressed at trial. The reasonings of each expert will be carefully assessed by both sides, to consider the strengths and weaknesses of the case, and to assess how each expert’s opinions may hold up at trial.

Conclusion

A well run expert meeting is so often the turning point in a case, whether it goes to trial or it settles. That is why it is so important to choose an expert who is not only proficient in their own profession, but who is experienced in the second profession, of being a competent expert witness.

Outcome: effective justice, but fewer trials. Which is where we came in… q

End result: the joint statement

The meeting must result in the production of a joint statement of matters agreed, and of matters disagreed, with reasons for

About Chris Makin [CHRIS MAKIN was one of the first 30 or so chartered accountants to become an Accredited Forensic Accountant and Expert Witness – see www.icaew.com/forensicaccreditation/register.

He is also an accredited civil and commercial mediator and an accredited expert determiner. Over the last 30 years he has given expert evidence at least 100 times and worked on a vast range of cases.

For CV, war stories and much more go to the website at www.chrismakin.co.uk – now with videos! q

www.yourexpertwitness.co.uk

11 11

EWI membership may CCTV: commissioners update impact assessment provide an alternative to unsuitable standard requirements [THE Surveillance Camera

Commissioner (SCC) and the Information Commissioner’s Office (ICO) have worked together to update the SCC’s surveillance camera-specific data protection impact assessment (DPIA).

The new template and associated guidance notes have been jointly issued by the two commissioners to reflect updated data protection requirements, as set out in the Data Protection Act 2018 and the General Data Protection Regulations (GDPR), as well as to comply with the requirements of the Protection of Freedoms Act 2012.

Where organisations are operating surveillance cameras in public places they are required to carry out a DPIA. Organisations which are introducing new surveillance camera systems or upgrading existing systems can use the template to help them ensure they are complying with relevant legislation.

Tony Porter, Surveillance Camera Commissioner, said: “Ensuring that surveillance camera systems protect communities rather than spy on them is essential in building public trust around the use of overt surveillance cameras. This joint effort between my office and the Information Commissioner’s Office will help ensure that where surveillance cameras are deployed, tools are available to help organisations meet legal requirements around privacy and human rights.” q

12 12

www.yourexpertwitness.co.uk

[APRIL SAW THE publication of guidance by the Forensic

Science Regulator that impacts upon expert witnesses in the field of forensic science.

Its Guidance on the content of reports issued by expert witnesses in the Criminal Justice System in England and Wales sets out the legal requirements for expert reports and those imposed by certain prosecuting authorities. It also provides advice in relation to the application of those requirements and more generally.

In a response to the guidance Allen Hirson, a member of the board of governors of the Expert Witness Institute (EWI) and a forensic speech scientist, set out the EWI’s response.

“One of the key instruments of the intended reform has been the imposition of the international standards, notably ISO17025,” he wrote. He noted that that standard may not be suitable for some branches of forensics.

“Forensic science is a patchwork of unrelated fields, including ballistics, facial mapping, fingerprinting, speaker identification and DNA, and these use diverse methodologies that are difficult to regulate by a single instrument. In a belated recognition of this heterogeneity, the regulator recently issued a directive (April 2020) stipulating that experts not holding ISO17025 accreditation must declare this deficit in their reports and also outline the steps taken to mitigate the risks associated with non-compliance.”

He suggests that membership of the EWI may provide the ideal route to mitigating that risk, stating: “Gaining individual membership and certification involve quality testing, the sine qua non of mitigation.” q

How to keep your distance while working at height [ONE OF THE concerns that has been raised regarding work at height during the COVID-19 pandemic

is the difficulty of maintaining social distancing rules on scaffolding or while erecting scaffolds.

The National Access and Scaffolding Confederation (NASC) has issued a Toolbox Talk on the subject which stresses the importance of carrying out risk assessments before any job is started.

The guidance states: “Where it is not possible to follow social distancing guidelines in full it should be considered whether that activity needs to continue for the site to continue to operate, and if so, all the mitigating actions possible should be taken to reduce the risk of transmission.”

The guide then lists number of actions that can be taken to minimise risk. In particular that involves: “Ensuring that you are made aware of all risks and controls, especially those relating to social distancing, which may vary from scaffold to scaffold.”

The NASC has also recommenced its programme of site audits. Wayne Connolly, new NASC Audit Committee chair, said: “We temporarily suspended all site audits whilst the industry adopted the necessary changes in order to operate safely during the COVID-19 pandemic and we feel this new document shows how site and premises audits can be carried out safely.” q

Fall injury leads to million-pound fine [A LONDON-BASED relocation and

refurbishment company has been fined £1.1m after a worker was seriously injured when he fell from height.

Luton Crown Court heard that, on 5 September 2016, an engineer was testing a sprinkler system for leaks at a site in Hemel Hempstead. He climbed onto an internal roof and was inspecting the leak from an extension ladder. The ladder slipped away from him and he fell almost three

metres into the gap between the internal roof and the external wall. The worker suffered severe blood loss, amounting to around half of his bloodstream. He required a blood transfusion and needed 14 stiches to his head. He also sustained a fractured vertebra and suffered soft tissue damage.

An investigation by the Health and Safety Executive (HSE) found that Modus Workspace Ltd, the principal contractor, had failed to discharge its duty to ensure those not in their

employment were not exposed to risks, in particular that of falling from height.

The company was found guilty after a fiveweek trial of breaching Section 3(1) of the Health and Safety at Work etc Act 1974.

After the sentencing, HSE inspector John Berezansky commented: “The engineer’s injuries were life changing and he could have easily been killed. This serious incident and devastation could have been avoided if basic safety measures had been put in place.” q

www.yourexpertwitness.co.uk

13 13

To regulate or not to regulate? NRPSI director has the answer to that question [ THE National Register of Public Service Interpreters (NRPSI)

has vigorously defended the principle of regulation in the field of court interpreting, in light of questions being raised – particularly given the impact of the COVID-19 pandemic.

In a round-robin to its website users, NRPSI executive director and registrar Mike Orlov set out the case for ‘independent regulation, free from political and commercial interest’.

“Of course, it is always justifiable to question the validity and relevance of any organisation,” he writes. “However, in times of change and uncertainty, it is also perhaps more expected and understandable. It is also the case that, particularly in current times, a regulated and registered interpreting profession is even more important.”

He continued: “NRPSI is concerned with the independent registration and regulation of public service language professionals. In this role, and free from political and commercial influence, we seek to motivate and incentivise government, public sector organisations and those private companies in the language services ecosystem to behave in an ethical and socially responsible manner.

“Such voluntary registration and regulation of public service language professionals, who abide by the NRPSI Code of Professional Conduct, has been in the UK for the last 25 years. This has ensured the continued maintenance and development of the highest public service interpreting professional ethics and standards, even in spite of what many believe to have been the negative commercial pressures that have arisen since austerity measures were imposed in the UK in 2012.”

The result, he says, has been the ability to offer long-term stability, rather than short-termism and private profit.

“Only by their commitment to independent registration and regulation can

14 14

www.yourexpertwitness.co.uk

the users and providers of language services in the public sector be assured that the delivery and quality of those services continue to be founded on long-term sustainability.

“Without such independent registration and regulation, language services would be delivered according to the often short-term thinking of those in procurement (lowest cost), as opposed to the needs of frontline public service professionals (appropriate quality), and the annual profits of language agencies at the expense of standards.”

Independent registration and regulation, he says, offer valuable controls against ‘bad actors’, adding: “They highlight poor delivery by comparing it to that of those whose practice is rooted in professionalism.”

He went on to describe the essential qualities of the NRPSI: • Maintains publicly available standards/statements of expectations • Operates a registration process that approves, and permits the operation • of, a service offered by a qualified and experienced registered interpreter • Manages the open-access register of public service interpreters who • have been validated • Promotes best practice and highlights those who deliver best practice • Offers protection for registrants • Operates a professional standards process to ensure compliance and • the reporting and management of any cases of non-compliance with • those standards • Offers an independent complaints process not influenced by commercial • necessity or political gain to manage any alleged breach of the NRPSI • Code of Professional Conduct • Operates a de-licensing process through which a registered interpreter, • if judged to be operating unsafely, is ordered to stop practising or • suffer a penalty

• Minimises ill-informed decision and policy-making by lobbying, on behalf • of registrants and in the interest of public safety, government, the public • sector and those privately-owned organisations in its ecosystem • Advocates the benefits of independent registration and regulation of • language professionals • Safeguards independent registration and regulation against 'regulator • capture', whereby either the government, public sector or another

organisation gains control of the registration and regulation process for the benefit of the ‘bad actor’ and to the detriment of all other stakeholders After reminding subscribers that there is now a National Register of Public Service Translators (NRPST), he concluded: “Over the coming months, NRPSI's value and relevance will be experienced by many. We remain resolutely open for business as usual, even though we are operating a little differently in these challenging circumstances.” q

Brexit still a major worry for language professionals [THE DISRUPTION CAUSED by the

COVID-19 pandemic has joined Brexit as the main causes of challenges to members of the Institute of Translation & Interpreting (ITI), according to its spring Pulse Survey published on 21 May. The survey revealed that 67% of ITI members have experienced a reduction in work and 15% have faced pressure from clients to reduce rates. When asked what were the most challenging aspects of their role in the current environment, factors such as Brexit and COVID-19 were referenced most frequently (65%).

Slightly more encouragingly, 16% of respondents said there had been no impact on their work, while 9% had seen more work coming through.

The Pulse Survey is the institute’s twice-yearly snapshot of what its members are experiencing in the marketplace. It also reflects how positive or negative members feel about their work and prospects in the current environment. In the latest survey, only 28% of respondents felt positive.

The ITI’s Pulse Survey project manager Catherine Park commented: “These findings highlight the downturn in work that the current situation has created for members; however with a significant minority of 25% either experiencing no change or more work in the early weeks of the pandemic.

“Further challenges have been created by some clients wanting to cut rates, but the situation as regards gaining new clients has remained fairly buoyant over the last 12 months – possibly because many of the gains

occurred earlier in this period and also some specific types of jobs may have emerged due to the pandemic.”

Two of the main questions in the survey looked at areas independent of the current COVID-19 situation: translation/interpreting technologies being used by respondents and the types of ethical dilemmas they had faced over the past three years. Interestingly, 32% of respondents had used machine translation, although translation memory software was the most commonly used (78%).

Translators and interpreters also showed themselves to be sensitive to ethical issues. Only 36% had not experienced any ethical issues over the past three years. The causes of concern ranged from opportunities that were outside their specialism to concerns over clients’ products or services. q

www.yourexpertwitness.co.uk

15 15

16 16

www.yourexpertwitness.co.uk

MEDICAL NOTES [IT IS INEVITABLE that any publication dealing with medico-legal issues – or medical issues of any sort – will be dominated by the COVID-19 pandemic in one way or another. So it is with this publication, which has been assembled at manifold addresses across three counties.

At the time of writing the medical community is beginning to restore some of the non-emergency services that had been deferred for the duration some three months ago. The precautions needed to protect not only the medics involved, but also the patients and everyone else on the premises, are unprecedented in living memory.

• Surgery is, of course, of its nature fraught with the risk of infection, and the pandemic makes it doubly so. We are lucky to have a clutch of experts explaining the sort of precautions that clinicians must take – together with a range of pitfalls that may lead to negligence cases. In the case of orthopaedics, there is a balancing act to be performed between surgical and nonsurgical procedures.

• The role of COVID-19 in severe illness is not always as straightforward as may be inferred from common assumptions of the symptoms. While we are all aware that consistent coughing and fever are the common indicators, the disease also has less obvious manifestations, such as thrombosis or even pulmonary embolisms. It is probably churlish to assume that negligence can be inferred from a failure to recognise something that has never been seen before.

• There are many fears expressed, however, on the consequences of the lockdown – and the withdrawal of everyday medical services – for vulnerable groups such as those with mental health issues. The Royal College of Psychiatrists is warning of a ‘tsunami’ of mental health emergencies as the lockdown takes its toll on those least able to deal with it.

• Another group of vulnerable people to experience particular problems is those with sight loss. A charity dedicated to helping those with failing sight has flagged up the problems caused by cancelled appointments – which only add to the everyday struggles such as getting in the shopping. That is beside the risk of serious conditions such as orbital cellulitis.

• Vision problems associated with COVID-19 have been the subject of anecdotal stories. While there is evidence that the virus may be ingested through the eyes, associated vision problems are far from proven. Ophthalmologists are not in a position to make a judgement. In any event, testing one’s vision by driving a car is not a good idea.

• In the last Medical Notes column I reported that dentists had become an early victim of the logistical problems caused by COVID-19 because of the sudden shortage of masks. Now set to resume routine examinations, there is concern that some dentists may be more ready for normal service than others.

• Not all of life is subject to COVID-ity, as it were. Life has carried on as normal in some areas. The issue of consent is still as important as ever. The judgement in the Montgomery case gives cause for much debate for those concerned with gaining consent from patients who may not be au fait with the complexities of the medical world.

• A similar dilemma is faced by orthopaedic surgeons when it comes to compartment syndrome. One of the scenarios where the syndrome can occur is with an intubated patient. How do you gain consent from someone who is heavily sedated? Such a state of intubation raises its ugly head again when it comes to – well, yes…COVID-19.

• It is no wonder, given the Slough of Despond facing medical practitioners, that fewer and fewer are offering themselves up as expert witnesses. However, the safe working of the justice system ­– particularly in family matters – relies on competent medical experts. q

www.yourexpertwitness.co.uk

17 17

18 18

www.yourexpertwitness.co.uk

The Montgomery case: Supreme Court in action or a recipe for supreme chaos?

A personal view from Professor CHARLES CLAOUÉ, head of EYE-LAW CHAMBERS, and Mr SAJ KHAN, consultant ophthalmologist and director of EYE-LAW CHAMBERS

[WE MUST START by making it clear that

we have nothing but respect for the judges of the Supreme Court, who undoubtedly have more legal expertise than ourselves – though perhaps they have less experience in the real world of obtaining consent for medical procedure. We would also like to state for the record our personal opinion that Mrs Nadine Montgomery was poorly treated and deserved the recognition of the eventual ruling.

Finally, although we do not wish to undermine the GMC in any way – despite their behaviour with regard to Dr Bawa-Garba – we feel they should have better insight into medical matters, since at least some of their staff are medically qualified and have worked or still work as doctors. Nevertheless, with over 50 years and 20 years respectively of combined experience as doctors and expert witnesses, we hope that we may be allowed an opinion.

The judgement makes interesting reading, and most experts have experience of weak or non-existent claims being ‘Montgomery-ised’ since the judgement. So what has happened to cause that?

Material risks

The Supreme Court ruled that a patient ‘must be informed of the material risks’ and then stated that the material risks were those that a ‘reasonable patient’ would wish to know. It clarified that not all risks needed to be explained, but that risk could not be reduced to a percentage or frequency of occurrence.

It is easier to deal with the last two points first. In real life clinical practice it is not possible to give ‘all risks’ and it is reasonable for the risks to be personalised to an individual patient. Any patient who asks for ‘all the risks’ presents a specific problem: since it is impossible to give ‘all’ the risks they cannot be

consented and the doctor must (and we do!) decline to treat that patient.

It is also true that telling an ‘average’ patient that they have a 1% risk of X usually doesn’t mean very much to them since, of course, if it eventuates the patient will see the risk as 100%! A very rare risk, such as death during a general anaesthetic (GA), is nevertheless likely to be considered as ‘material’ by a patient, and so always appears on our consent forms – despite post-Montgomery judgements stating that risks of less than one in 1,000 are not material.

Now, imagine a 95-year-old lady with extremely poor vision due to cataracts. She has a head tremor and so needs a GA, as surgery cannot be performed safely on a moving target. Cataract surgery is one of the safest and most successful operations, and the ‘risk’ of a successful outcome and a happy patient is in excess of 95%. The risk of death www.yourexpertwitness.co.uk

19 19

from a GA is probably of the order of one in 100,000 and likely not different from natural causes in a patient of that age.

Did the Supreme Court really want doctors to frighten elderly vulnerable patients into not having surgery highly likely to improve their quality of life by mandating that such rare risk be explicitly explained? Medicine is an art based on science, but the current law does not seem to give doctors any leeway in dealing with how to present surgical risk.

Indeed, the Montgomery ruling attributed to doctors the ability to be inside the minds of our patients – and, while flattering, even doctors cannot do this.

Understanding the risks

There is a large amount of literature on what patients recall about their consent process, and lawyers dealing with alleged clinical negligence will likely have had clients who are absolutely certain that they were given no information and certainly didn’t sign a consent form! When the contemporaneous records are examined, the story is usually rather different. How can we deal with this conundrum? Clearly, consent for emergency life-saving surgery is a different category, but most surgery is ‘elective’ and it is assumed that there is time in abundance for explanations to obtain consent.

That assumption is based on zero experience of working in the NHS, with its falling resources and increasing workload.

One of the issues is patient comprehension.

Humans have a range of intellectual faculties, and without wishing to sound patronising in any way, those with below average (but still normal) intelligence or education may have problems understanding both what is wrong and what is proposed. Should those individuals sway our working so that all patients have to sit a test to document comprehension of risk?

What happens if they fail the test? What about the fifth time they fail? Suppose they speak no English, how do you test their comprehension?

What about those who are illiterate (they still exist)? Do we have the NHS resources to test those who are illiterate, speak no English and are of below-average intelligence?

Those patients are not rare. The doctorpatient relationship is essentially about trust: without trust there is no doctor-patient relationship and the doctor should decline to treat that patient. How does a doctor both merit trust and have confidence that trust exists? More testing? Surgeons universally have the experience of patients who say: “You decide and do what’s best” – and while that demonstrates trust, should we refuse until they have passed an ‘I understand and consent’ test?

Finding the ‘reasonable’ patient

We turn next to ‘material risk’ and the ’reasonable patient’. As expert witnesses we sometimes get asked why wasn’t ‘fractured haptics’ or some other explicit complication on the consent form. That is not a material risk,

20 20

www.yourexpertwitness.co.uk

since a patient will only notice a complication if harm follows (causation). In our speciality a vast list of potential complications converges on a simple list of ‘material risks’. They include pain, no improvement, worse vision and – of course – death.

Using technical terms merely makes a consent incomprehensible, and simple English must be the way forward. Should we follow the USA with consent forms that resemble a short novel, and which patients never read? So what more would a ‘reasonable patient’ want?

The ruling in Montgomery is surprisingly silent on what constitutes a ‘reasonable patient’, which has led many doctors to assume that it means a Supreme Court judge and that as a consequence all patients have to be consented as such. That is clearly risible. Equally, we are aware of the legal fiction that a ‘reasonable’ patient is ‘the man on the Clapham omnibus’.

Leaving the gender issue aside, we have yet to find a 21st-century omnibus in Clapham on which to spy this reasonable patient.

If experienced doctors are asked about reasonable patients, many will deny ever having met one. Possibly they are confusing ‘reasonable’ with ‘average’, and given that medicine treats all patients as sovereign individuals we have great trouble with the idea of an ‘average patient’. Certainly there are patients who are unremarkable characters with unremarkable common diseases, but they are never ‘average’ – at least certainly not to us.

It is the final refuge of the academic to run to semantics; and does not ‘reasonable’ therefore mean ‘able to reason’? We then get into a somewhat circular argument that capacity indicates ability to reason and vice versa, but in real clinical practice there are many patients who clearly have capacity, but limited ability to reason. That brings us back to the idea of testing comprehension for consent and the problem of what to do if the test is failed.

Managing to litigate?

We are all subject to population bias.

A lawyer specialising in alleged clinical negligence will inevitably have a jaundiced view of the safety of medical practice, and probably doctors in general. However, modern medicine is very safe and very successful, and the overwhelming majority of doctors are supremely committed to providing excellent service. Though we have to add ‘within the limits of the environment in which they are working’, since the pressures of working in the NHS mean that what a doctor can do is frequently limited by financial and other resources, and very frequently by managers – usually less educated than the doctors they micro-manage – who are more concerned by ‘output’ than by quality concepts which they usually cannot comprehend.

The effect of working in unsupportive and under-resourced NHS environments was highlighted by the case of Dr Bawa-Garba, who was an exemplary victim of circumstances outside her control. We strongly believe that

many NHS negligence cases are the direct result of over-scheduling of doctors’ workloads by managers obsessed by ‘productivity’ at the expense of all else. Since litigation represents such a cost pressure on the NHS, it would almost certainly be more cost-effective to both remove some of those managers and also for doctors to decide their workload to allow time to work to a reasonable standard.

So, what has been the effect of the Montgomery judgement at the ‘coal face’?

Some NHS trusts have tried to educate doctors about the case, but for most jobbing doctors the effect has not been obvious. Given the perception that, as a result of Montgomery, any consent can be judged invalid, there is a feeling that trying to obtain a watertight consent is so unlikely to be successful that the effort is not worth it, when there are six patients who need consenting before the next task in 15 minutes. Is this really what the Supreme Court intended – doctors so disincentivised that they give up trying?

The future of consent

Practising medicine is not easy: if it were, everyone would do it. We are faced with a serious and growing lack of medical manpower in this country, highlighted even further in the current pandemic and compounded by doctors leaving because of Brexit, senior doctors choosing early retirement and a worryingly high drop-out rate from medicine in young graduates. Assuming that we as a community want access to medical care, we will need to find a way both for patients to be protected and for doctors to be able to practise medicine to a high standard – including obtaining consent.

We would like to finish by reiterating that this is not just criticism – of the judiciary for a ruling incomprehensible to forensic scrutiny by medical experts and unrealistic to working doctors; of the NHS for overworking too few doctors; and perhaps even of ourselves for feeling that this article might alert some people to the real issues. We believe that the question of consent in the real world needs to be revisited, with clarity on what consent entails and how it is obtained.

The NHS needs to ring-fence time for consent and must accept that some patients may need interpreters and perhaps an hour of a doctor’s time to give consent. What do we do if we feel a patient cannot give consent?

We may have to have a discussion to reevaluate capacity. Until this is addressed we will see ever-increasing amounts of NHS funding devoted to litigation, which cannot be good for the NHS, for the majority of doctors truly aspiring to provide optimal care to patients, or for the next patient that fails to proceed with necessary, life-improving medical intervention. q • For further information from Eye-Law Chambers call 020 8852 8522, email eyes@dbcg.co.uk or visit the website at www.eyelawchambers.com

Statement clarifies doctors’ position on COVID death certificates [THE Care Quality Commission, General Medical

Council and Healthcare Improvement Scotland have issued a joint statement on death certification during the COVID-19 pandemic. It was in response to a change in legislation concerning completion of the medical certificate cause of death (MCCD) by medical practitioners during the pandemic.

Deaths are still required by law to be registered within five days of their occurrence in England, Wales and Northern Ireland, or eight days in Scotland, unless there is to be a coroner’s postmortem or an inquest or, in Scotland, the death has been reported to the Procurator Fiscal.

In the statement the three organisations said: “We acknowledge and thank doctors for responding and adapting to the revised arrangements during this very difficult time. Prompt and accurate certification of death is essential and crucially important during this pandemic. Not only does a MCCD provide the family with an explanation of how and why their relative died, it enables the deceased’s family to register the death and begin to make further arrangements in challenging circumstances, and also provides a permanent legal record of the fact of death.

“We do know some questions have arisen about how doctors should complete the form when the diagnosis of COVID-19 has not been confirmed by laboratory swab testing. This joint statement makes clear our position on that point.”

The doctor issuing an MCCD has to state what they believe to be the most likely cause of death, based on their knowledge of the patient, the events surrounding the death and the medical history, and any investigations available.

With a lack of comprehensive COVID-19 swab testing of individuals in the community, the clinical accuracy of the cause of death based on clinical opinion is of key importance in the public health management of the pandemic. It determines the accuracy of data collected by the Office for National Statistics, National Records of Scotland and the Northern Ireland Statistics and Research Authority.

There may also be significant implications for other household members, or for the residential settings in which a person may have lived, when a diagnosis of COVID-19 is recorded on a MCCD. In the circumstances of there being no positive swab diagnosis, it has been deemed satisfactory to apply clinical judgement. Doctors are expected to state the cause of death to the best of their knowledge and belief; it is not required that the cause must be proven.

The statement continued: “Doctors are under a duty to complete the MCCD as accurately as possible. The inclusion of COVID-19 in any part of the MCCD is a matter for the doctor completing the form and there should be no expectation or pressure placed upon them to include or exclude it during the pandemic period.” q

www.yourexpertwitness.co.uk

21 21

New contracts awarded for NHS mediation service [NHS RESOLUTION HAS announced the

award of new three-year contracts to manage its claims mediation service.

Following a competitive retender process, four providers have been contracted to deliver the service, in partnership with NHS Resolution. The Centre for Effective Dispute Resolution and Trust Mediation Ltd have been appointed to mediate disputes arising from personal injury and clinical negligence incidents and claims, while St John’s Buildings Ltd and Costs-ADR will mediate disputes arising from the recoverability of legal costs. Providers will operate on a ‘fixed-cost’ model, helping to keep costs in check and ensuring the preservation of valuable

22 22

www.yourexpertwitness.co.uk

resources for frontline patient care.

The claims mediation service was launched in December 2016 and NHS Resolution was in the vanguard of UK indemnifiers offering such a service.

Since then the service has successfully mediated over 1,000 claims made against NHS organisations.

Even though the vast majority of claims made against NHS providers are resolved without formal court proceedings (over 70% in 2018/19), NHS Resolution is committed to reducing the number of cases going into litigation even further.

In a statement, the organisation said: “The goal of our claims mediation service is to support patients, claimants, families and NHS staff in working towards the resolution of incidents, legal claims and cost disputes without the need, expense and potential emotional distress of going to court.”

The reasons why claims continue to go to court are varied.

Research carried out by the Behavioural Insights Team – a research agency partnered with the Cabinet Office – suggests that one of the key drivers for compensation claims is poor communication and a lack of explanation as to why a clinical incident occurred in the first place.

The statement continued: “Through our claims mediation service, all parties involved in the claim have the opportunity to sit down together and talk the incident through. This provides an opportunity for claimants to have their questions answered and feel as though their concerns are being recognised and properly addressed.”

In 2019/20 alone, over 400 cases went through NHS Resolution’s claims mediation service – an increase of around 8% on the previous year – with 80% of cases being settled either on the mediation day itself or within 28 days of it. q

Compartment syndrome: What is it and what are the medicolegal consequences?

Compartment syndrome is a devastating limb threatening condition. It is infrequent and usually associated with fractures, predominantly of the tibia. It is a clinical diagnosis and if treatment is delayed or missed, it leads to significant long-term dysfunction.

In this article, MR ASWINKUMAR VASIREDDY, Consultant Orthopaedic Trauma Surgeon and expert witness, explains the condition and explores its medicolegal challenges.

[

COMPARTMENT SYNDROME occurs when excessive pressure builds up in an enclosed compartment within the body. The condition is an emergency, usually requiring surgery to prevent permanent damage and – if left untreated – can lead to loss of body function.

The condition usually develops quickly over the course of a few hours after injury. It is more common in men, in whom the annual incidence is 7.3 per 100,000, compared to 0.7 per 100,000 in women.

Age is an important risk factor in the development of compartment syndrome, with patients below the age of 35 years being much more likely to develop the condition. It can also develop in children, although the presentation can be very different to that seen in adults.

Compartment syndrome is usually the result of swelling or bleeding following injury. It usually occurs as a result of an increase in the pressure within a given compartment. That increased pressure can be caused by bleeding, swelling or a tight cast, which acts to reduce the space within the compartment. Once the intracompartmental pressure reaches a threshold, it affects the blood flow in the limb, leading to severe pain. If it is prolonged, the tissues are deprived of their blood supply and thus can be irreparably damaged.

Nearly 70% of cases are due to fractures, with the tibia being the most common site of injury. The mechanism of injury is equally distributed between high-energy and low-energy trauma. While it was once thought that open fractures carried a lesser risk of compartment syndrome, recent research has shown that that is not the case and that the intracompartment pressure is similar in open and closed fractures. It has also been shown that fracture reduction and manipulation can increase the risk of compartment syndrome.

The remainder of compartment syndrome cases usually arise following soft tissue injury, where arterial damage from high-energy trauma causes the development of a haematoma, which leads to increased pressure in the affected compartments. In that type of injury the compartment syndrome often develops in an unusual location, such as the thigh or foot.

There is also a significant risk of compartment syndrome in intubated patients, or those with a lower level of consciousness. As communication is difficult in those cases, doctors tend to maintain a high level of awareness about the possibility of the condition developing. That is also true of paediatric patients, where the presentation of compartment syndrome differs from that in adults.

Often, the only symptom is pain.

The early symptoms of compartment syndrome are non-specific, which can lead to a delay in diagnosis. Classic features of the condition, which include pain, pallor, paresthesias, paralysis and pulselessness (also known as the 5 ‘Ps’) all develop later in the course of the condition and are associated with irreversible damage.

Although all those signs have a role in identifying the condition, the overall clinical picture is more important in making a diagnosis than the presence or absence of any one particular symptom.

A diagnosis of compartment syndrome tends to be made over time, following the assessment of the evolving signs and symptoms, rather than in isolation at a single time point. Therefore, serial examinations – ideally performed by the same examiner – are crucial.

The main focus of treatment for compartment syndrome is to relieve the pressure in the affected compartment. Constricting dressings, casts and splints must be removed from the affected area.

Additionally, surgical intervention is usually required, in the form of a fasciotomy – in which long cuts are made in the fascia layer beneath the skin to release the excess pressure. UK national guidelines also exist to help provide guidance on diagnosis and treatment, including an emphasis on the importance of rapid treatment once the diagnosis has been made.

As well as the serious consequences of a missed diagnosis, an additional facet of compartment syndrome management nowadays involves minimising the risk of a negligence claim in those circumstances. While most orthopaedic surgeons will see cases of compartment syndrome during their career, medical negligence claims arising from the condition are relatively rare and account for around only 5% of all orthopaedic claims. However, those claims are much more likely to be settled in favour of the patient than other conditions, with about 50% resulting in a settlement. That compares to 25% of cases overall.

Cases in which poor communication between doctor, nursing staff and patient has been identified are likely to result in a payment, as are those in which there is a failure to intervene after documentation of an abnormal physical finding. There is also a link between the time from onset of symptoms to performance of fasciotomy and the level of payment secured by the patient: all cases in which fasciotomy was performed within eight hours have been successfully defended.

Therefore, early fasciotomy not only improves the outcome for the patient, but also decreases the likelihood of a claim and the level of settlement. q • Mr Vasireddy BSc (Hons), MB BS, FRCS is a consultant orthopaedic trauma surgeon and expert witness. He specialises in the management of complex open/closed pelvic, acetabular, upper limb and lower limb fractures and amputations. He is also one of a small group of surgeons – and the only contemporary orthopaedic surgeon in the UK – who works as a HEMS air ambulance pre-hospital care doctor.

He is available for instruction through Medicolegal Partners. To instruct him or any of their experts contact info@medicolegal-partners.com. www.yourexpertwitness.co.uk

23 23

24 24

www.yourexpertwitness.co.uk

Surgery experts rise to the challenge [IN NOVEMBER the Royal College of

Surgeons of England published updated guidance for surgeons acting as expert witnesses in court. The Surgeon as an Expert Witness – A Guide to Good Practice follows the publication of two independent reviews.

The RCS says: “Serving as an expert witness can be a fascinating and intellectually stimulating experience. However, expert witness testimony is faced with increased legal scrutiny in clinical negligence litigation. Ensuring quality and consistency of expert witnesses available to civil and criminal courts is in the interests of both the public and the medical profession.

“It is therefore fundamental that surgeons fully understand the environment in which their views are being sought, so they can navigate the process correctly and with integrity.”

Professor Neil Mortensen, RCS vice president, said at the time: “With a continuing rise in the numbers of medico-legal claims, this new guidance is very relevant and timely.

Patients, surgeons, lawyers and the courts rely on experts for independent, objective, balanced and contemporary advice.

“We hope this summary of good practice will help to improve the quality of expert evidence, in what can often be difficult and distressing circumstances for patients and surgeons.”

According to the guidance, surgeons who

act as an expert witness should: • Not give opinions to the jury upon questions that they are not entitled to answer. For example, a surgical expert would be entitled, if asked, to assert whether or not a surgeon's conduct (related to a criminal case) equated to substandard care. But whether or not that care was ‘exceptionally bad' would be for the jury to decide. While the Crown Prosecution Service might pose such a question – hoping for an affirmative reply – the expert should not answer it, since his or her role is restricted to the binary question: substandard care or not.

• Have been a consultant surgeon for at least five years.

• Only take on cases that they encounter as part of their routine practice. For example, it would not be appropriate for a vascular surgeon to give their view on

the standard of diabetic care, such as that relating to retinal surgery.

The guidance goes on to explain that: • The same applies to sub-specialisation: if the case turns on an issue lying within a surgeon's surgical speciality, but outside their own field of work, they should be wary of accepting instructions.

• Surgeons should not provide medico-legal services after three years from retirement.

• Surgeons should have indemnity: anyone who acts as an expert witness is at risk of litigation.

The COVID-19 emergency has erected added hurdles to the work of surgeons of all specialisms. The following pages offer insights into how two of those specialisms – vascular surgery and orthopaedics – have adapted to and overcome those hurdles. q

www.yourexpertwitness.co.uk

25 25

26 26

www.yourexpertwitness.co.uk

Thrombosis in the time of coronavirus

By PHILIP COLERIDGE SMITH DM MA BCh FRCS Consultant Vascular Surgeon, Medical Director of the British Vein Institute and Emeritus Reader in Surgery at UCL Medical School

[VASCULAR SURGEONS deal with the arteries and veins which

provide blood flow to and from the tissues of the body. In the arterial system, major problems arise when an artery supplying part of the body becomes blocked. Blood flow provides all the nutrition and oxygen required to maintain the tissues in good health.

Vascular surgeons most commonly deal with the peripheral arteries providing blood flow to the legs. These may become blocked as atheroma (hardening and narrowing of the arteries) progresses and slowly shuts off the blood flow to the legs.

Sometimes, thrombus (blood clot) forms elsewhere in the body and then travels in the arteries to block off the blood flow to the leg, resulting in acute limb ischaemia. The leg is cold and white and very painful. The nerves and muscles of the legs can survive for only a short period when the blood flow suddenly stops, and severe damage begins in 4 to 8 hours after acute limb ischaemia begins.

Unless emergency surgery to restore blood flow can be completed within a short period, irreversible damage to the leg arises and an amputation may be required. I have provided advice in several cases in which delayed diagnosis and treatment of limb ischaemia has resulted in avoidable amputation of a limb.

Factors leading to limb ischaemia

The factors underlying limb ischaemia include smoking, hypertension, diabetes and hyperlipidaemia. All of these contribute to the development of atheroma and narrowing of arteries.

Diseased arteries may become blocked when thrombus forms in an irregular and already narrowed region of artery.

Factors which give rise to a generalised tendency to blood clotting (thrombophilias) are occasionally responsible for ischaemia when they lead to occlusion of arteries as thrombus forms inside arteries and passes into the extremities. More commonly, thrombophilias give rise to venous thromboses such as deep vein thrombosis and pulmonary embolism.

The role of coronavirus in thrombosis

Now we can add coronavirus infection with COVID-19 to the list of factors which may provoke thrombosis. A number of reports in medical journals describe patients with severe symptoms of COVID-19 infection as suffering gangrene of the fingers and toes.

Examination of the affected tissues under a microscope showed that blood clot had formed in the small arteries leading to the fingers and toes. The tissues supplied by the arteries then suffered necrosis (death) leading to gangrene of the extremities.

The patients experiencing ischaemia of the digits were amongst the more severely affected and many did not survive their illness.

Possible treatments for this condition might include surgical removal of blood clot, anticoagulant drugs or thrombolytic (clotbusting) drugs. In general, surgical removal of blood clot is only effective in larger arteries and cannot be used successfully in the foot or hand arteries.

The usual management of this ischaemia limited to the fingers is full anticoagulation with heparin. Although this treatment does not remove blood clot directly, it allows the body’s own clot removing processes to help improve the blood flow and should prevent extension of thrombosis. Thrombolytic treatment is theoretically useful in ischaemia of the digits but carries the risk of provoking major haemorrhage and its use is more commonly reserved for the management of major limb ischaemia.

The medical literature concerning COVID-19 cases contains further references to thrombotic events affecting other organs.

Some patients have suffered stroke due to blocked arteries in the cerebral circulation. Others have experienced blocked arteries in the intestines leading to gangrene of the intestines which is commonly a fatal condition since it leads to bacterial septicaemia.

The reasons for the thrombotic events in arteries remain unclear.

It is suggested that in the more severe cases, a ‘cytokine storm’ plays a role in provoking thrombosis. COVID-19 infection provokes a severe inflammatory response affecting all parts of the body in a limited number of cases and this appears to be provoked by the release of the chemicals which cells use to signal to each other, known as cytokines. Massive release of cytokines leads to failure of many organs including lung, heart, kidneys and the liver and is a poor prognostic sign. It appears that the development of thrombosis in small arteries is one of the consequences of this particular type of cytokine storm.

As yet, there is no scientific evidence to show that these thrombotic events can be managed successfully by anticoagulant drugs.

Thrombosis in the venous system

The main feature in more severe cases of COVID-19 infection is a severe pneumonia affecting both lungs and leading to respiratory failure. This is often investigated by CT scanning of the lungs and the pulmonary vessels. In a substantial number of cases, small thrombi have been detected in the pulmonary arteries as might occur in someone affected by pulmonary embolism. The usual source of such blood clots is from a deep vein thrombosis in the lower limbs. However, in the limited clinical studies which have been done, COVID-19 patients with blood clots in the lungs were not found to have deep vein thrombosis in the legs. The thrombus had formed somewhere in the venous system and had not remained attached to the leg veins before travelling to reach the lungs.

The presence of pulmonary emboli leads to further deterioration of respiratory function and substantial mortality from respiratory failure. Conventional treatment of pulmonary embolism is treatment with therapeutic doses of the anticoagulant drug, heparin. In these particular circumstances, it is not clear how effectively full dose heparin treatment is in managing the pulmonary emboli. In general, this treatment greatly reduces death from pulmonary embolism and therefore its use in COVID-19 patients seems appropriate.

It is recognised that severely ill patients treated in hospital and confined to bed by their illness are at substantial risk of developing deep vein thrombosis in the legs. There appears to be consensus that management of this risk should be addressed in COVID-19 patients by treatment with low-dose heparin injections in keeping with standard advice provided by NICE and in other consensus statements.

Conclusions

COVID-19 infection gives rise to an unusual spectrum of thrombotic events in a pattern which is not commonly encountered in clinical practice. The efficacy of conventional methods of prevention and treatment remains to be shown in such patients.

Litigation in these cases will face significant difficulty in proving both liability and causation in view of the fact that the efficacy of currently used preventive and therapeutic techniques is unknown at present. q www.yourexpertwitness.co.uk

27 27

28 28

www.yourexpertwitness.co.uk

Orthopaedics and trauma during the COVID-19 crisis

by NIKHIL SHAH, consultant trauma and orthopaedic surgeon, Wrightington Hospital

[THE WORLD HAS witnessed an unprecedented event with the

recent coronavirus pandemic causing the COVID-19 crisis. This has caused a severe strain on all healthcare services. The initial focus has been on increasing capacity to provide testing. The NHS has had to rapidly ramp up inpatient and ICU capacity for patients who became severely unwell due to respiratory problems and needed ventilation or other forms of respiratory support.

Despite some early difficulties, the NHS responded rapidly and in an amazing manner to prepare and cope with the additional demand.

Healthcare and ancillary support staff, as well as hospital managers and other key workers, rose to the challenge working extremely hard and round the clock to meet the tremendous physical and psychological demands in this crisis.

In terms of orthopaedics, the focus during the first phase of the pandemic was to maintain a safe service to help manage emergency and urgent trauma conditions – time critical problems where delay in surgery can lead to harm such as with multiply-injured patients or hip fractures in the elderly, spinal conditions that caused neurological deficit, musculoskeletal cancer or acute bone and joint sepsis. Yet that need for early appropriate treatment has to be balanced with considerations of patient safety and the risk of operating on patients who are Covidpositive, or who may become Covid-positive after surgery.

The urgency of treatment had to be weighed up alongside individual medical risk factors, which may not only increase the patient’s risk of acquiring COVID-19 but also of having a poor and potentially fatal outcome if Covid infection develops. The risks affect medical and paramedical staff as well, and high-risk, vulnerable members of staff needed to be excluded from frontline areas to be redeployed to other tasks such as telephone consultation and supporting roles.

Elective orthopaedic operating had to be stopped in order to create extra beds, to conserve precious resources (surgical gowns, masks and gloves), to redeploy orthopaedic staff in A&E or triage or to support medical wards, to provide training for learning new skills to be able to work in a new clinical environment and to avoid sickness amongst available staff. The need for urgent orthopaedic treatment would often not allow sufficient time for adequate patient screening and testing for COVID-19. It was important for local trauma teams to develop appropriate Covid-negative or Covid-suspect pathways to maintain patient and staff safety, and barrier nursing to comply with robust infection control practices.

For all such procedures it was necessary to take robust Covidprecautionary measures which included the use of appropriate personal protective equipment, ensuring appropriate staffing levels and an experienced skill mix, and that operations were performed by experienced surgeons. It was observed that the efficiency and throughput was significantly reduced under these extenuating circumstances compared to pre-Covid times.

There was concern about whether the risk of post-operative complications and mortality would be higher after surgery for trauma in a Covid-positive patient, and while more data is still awaited there are early indications that this concern may be justified. Other considerations revolved around availability of PPE, anaesthetic and other drugs, ICU equipment, and post-surgery facilities such as rehabilitation wards, physiotherapy services, and safe discharge locations for patients.

Out-of-the-box thinking and solutions had to be developed to predict and manage unusual and varied problems, such as setting up emergency hot clinics, rejigging the trauma rota into different functional teams, movement of staff across operating theatres or sites, storage of orthopaedic implants, surgeon fatigue with PPE, infection control measures, communication problems when speaking through respirator masks, or making special follow-up arrangements and avoiding the need to remove surgical sutures post-operatively.

Central command structures were established for rapid and regular dissemination of information. Regional and supra-regional networks

were strengthened to give timely management advice and share best practices across different hospitals. On many occasions there had to be careful multidisciplinary discussions for balancing the risks and potential benefits of surgical versus non-surgical management for certain fractures and injuries where it was safe to do so. MDT discussions had to be conducted remotely to comply with social distancing. Ethical committees were formed to provide guidance to healthcare staff where serious ethical considerations arose in complex decision-making processes. Newer technologies had to be adapted rapidly to allow remote consultations and virtual clinics.

The psychological impact on healthcare workers and their families cannot be underestimated and the repercussions of it may be felt for years to come. Many hospitals have set up local support groups.

As we enter the second phase of the response, planning has already commenced to allow some return to a state of relative but cautious normality, to allow the planning for elective non-urgent orthopaedic work, while at the same time preparing for a potential second wave of infections.

For all healthcare staff, this will probably be a once-in-a-lifetime experience and for many it has been emotionally draining and physically overwhelming.

Despite the difficulty and tragedy of the situation, we have to be optimistic that things will slowly get better, whilst hopefully looking ahead to the availability of more effective treatments and an effective vaccine in the near future.

A crisis brings out the best in people. We witness this on a daily basis.

One of the most important realisations of this crisis, which hopefully will not be forgotten, is how privileged we are to have the National Health Service and the wonderful people who support it and are part of it. q

www.yourexpertwitness.co.uk

29 29

30 30

www.yourexpertwitness.co.uk

Surgeons fit wrong-sided prosthesis during knee operation [IRWIN MITCHELL have reported the case of a Cheshire woman

who was left in ‘agony’ after a hospital wrongly fitted a right-sided implant during arthroplasty on her left knee.

After suffering with knee problems for many years, it was decided that Barbara Barnes of Congleton would undergo a double knee replacement, starting with her left knee. After undergoing surgery in October 2018 she complained for several months about still being in pain, despite physiotherapy sessions.

In January last year the National Joint Registry contacted East Cheshire NHS Trust – which runs Macclesfield General Hospital – with concerns about irregularities in four cases. Following a review, the errors in Barbara’s case were identified. The other three cases were identified as inputting errors.

A Root Cause Analysis Investigation Report by the trust found that the different sided joints were stored in a box together. The right-sided joints were stored in the left of the box and the left-sided implants were on the right.

Scottish registry shows progress over the years [ONE OF THE OLDEST arthroplasty registry organisations in

the world is the Scottish Arthroplasty Project (SAP). It is a member of the International Society of Arthroplasty Registries and in comparison to many other countries is able to produce good-quality data for a very modest outlay, with the principal aim of providing quality assurance and adverse outcome monitoring of major joint replacement surgery in Scotland.

The project analyses hospital inpatient information to monitor the number of complications following hip and knee replacements in Scotland, and to ensure that surgeons performing these operations do not have a higher than expected complication rate. Where there is a higher than expected number of complications following operations performed by a particular surgeon, the surgeon is notified and asked to investigate the reasons for the increased rate in complications and to develop an action plan to reduce their recurrence. The Scottish Arthroplasty Project produces a range of reports for both the public and the orthopaedic community, including national reports, quarterly listings and ad hoc reports.

The national reports produced by SAP include information about how many hip and knee replacements are carried out each year, how many operations surgeons are performing per year, and information about the number of patients experiencing complications following their hip or knee surgery.

The latest available annual report was published in August last year and covers the period ending 31 December 2018. The report shows that, from 2001 to 2018, the number of primary hip or knee replacements performed in Scotland has almost doubled – from 7,562 in 2001 to 15,091 in 2018.

More recently, in the two years from 2016-2018, acute kidney failure – an important complication following primary hip or knee replacement – has fallen from 2.3% to 1.5%.

In line with recent developments, patients are continuing to spend less time in hospital following primary hip, knee or shoulder replacement. In 2018 the mean length of stay for primary hip or knee replacement was four days and for primary shoulder replacement 2.5 days. q

The trust said that it was standard practice for three checks to be carried out on a prosthesis: firstly by a member of the theatre team who collects the prosthesis from the storage room, then by the scrub nurse and thirdly by the surgeon. Staff would present the devices and state independently what it was.

Concerns were raised that this approach may lead to ‘confirmation bias’, with those who subsequently check the device assuming that the first one is correct. The trust deemed that the checking process was not robust enough.

The trust has admitted that there was a failure to insert the correct sided implant in Barbara’s knee and acknowledged that the mum-offour and grandmother-of-seven will require corrective surgery.

Barbara said: “I had been struggling with my knees for years, so getting the green light on the replacements was exciting. However, after the first procedure something just didn’t seem right. I was extremely worried that something had gone wrong, but kept being told that everything was fine.

“Being told that a right-sided implant had been used on my left knee was a huge shock. It’s the kind of basic error that you would not expect when undergoing major surgery. I still can’t believe it happened.”

She added: “The issues raised by the investigation were very concerning, but it is at least welcome that measures can be taken to prevent this from happening to anyone else.

“You put a huge amount of trust in doctors and something like this impacts on that massively. I just hope that the NHS prevents this issue from happening again.”

East Cheshire NHS Trust has confirmed that storage arrangements have been changed, including storing different sided implants in different colour-coded boxes. The checking procedure in theatre has also been amended to ensure the doctors and scrub nurses read the information on the item. q

www.yourexpertwitness.co.uk

31 31

Welcome to our A to Z guide of the websites of some of the Expert Witness field’s leading players.

If you are one of our many online readers simply click on any of the web addresses listed below and you will be automatically directed to that particular website.

To get your website listed on this page just give us a call on 0161 710 3880 or email ian@dmmonline.co.uk Mr Kim Hakin FRCS FRCOphth Translations and Interpreting for the Legal Profession since 1997.

Specialists in Personal Injury and Clinical Negligence.

Consultant Ophthalmic Surgeon and Expert Witness on ophthalmological matters

www.abc-translations.co.uk

www.kimhakin.com

Mr Ashok Bohra MS MPhil MFSTEd FRCSEd FRCS(GenSurg)

Mr Chris Makin

General & Laparoscopic Surgeon taking instructions on behalf of either claimant or defendant or as a Single Joint Expert.

• Chartered Accountant • Accredited Civil Mediator • Accredited Expert Determiner

www.surgeonexpertwitness.co.uk

www.chrismakin.co.uk

David Bunker Arbitrator & Mediator

Mr Stephen McCabe MBChB FRCS FRCEM

Disposal & acquisition of businesses, management buyouts, shareholder & partnership disputes, employee disputes and taxation enquiries.

Consultant in Emergency Medicine taking instructions on behalf of either claimant or defendant or as a Single Joint Expert.

www.david-bunker.com

www.mccabemedicolegal.co.uk

Dr Thomas C M Carnwath

N-Able Services Ltd

Consultant Psychiatrist and expert witness in medical negligence and personal injury cases.

• Chronic pain • Brain injury • Spinal injury • Children & young people • Neurological conditions • Amputations • Complex orthopaedic multi-trauma

www.tomcarnwath.co.uk

www.nableservices.co.uk

Mr Jeremy P Crew MA MD BChir FRCS

Dr Gerry Robins MBBS FRCP MD PGCLTHE

Consultant Urological Surgeon Medical reports on all legal aspects of urology.

Reports in some cases based on hospital notes only.

Consultant Gastroenterologist Full medico legal service in all cases relating to gastroenterology

www.oxfordurology.co.uk

www.drgerryrobins.co.uk

Dr Lars Davidsson MRCPsych MEWI

Mr Sameer Singh MBBS BSc FRCS

Consultant Psychiatrist and Accredited Mediator Reports within most areas of general adult psychiatry.

Specialist in PTSD, anxiety disorders & mood disorders.

www.angloeuropeanclinic.co.uk

Consultant Orthopaedic Surgeon • All aspects of trauma – soft tissue and bone injuries • Sports injuries • Upper and lower limb disorders and injuries • Whiplash injuries Clinic locations – London, Milton Keynes and Bedford

www.orthopaedicexpertwitness.net

Chris Dawson MS FRCS LLDip

Dr Elizabeth J. Soilleux MA MB BChir PhD FRCPath PGDipMedEd

Consultant Urologist with over 16 years experience of medico legal report writing and expert witness work in personal injury and clinical negligence cases.

Expert Witness Pathologist with a particular interest in haematopathology. Short reports on specimens, full court compliant reports and expert biopsy reporting.

Emma Ferriman Ltd

Mr Bernard Speculand MDS FDS FFD FRACDS (OMS)

www.chrisdawson.org.uk

www.expertwitnesspathologist.co.uk

Consultant Obstetrician and Fetal Medicine Specialist • Prenatal diagnosis • Obstetric ultrasound • First trimester screening • Multiple pregnancy and high risk obstetrics

Consultant Oral and Maxillofacial Surgeon. Personal injury and clinical negligence cases for claimant, defendant and as Single Joint Expert. Special interest is TMJ Surgery.

www.emmaferriman.co.uk

Yvette Young (Secretary) T: 0121 605 1884 E: info@medsecadmin.co.uk www.birminghamtmj.co.uk

FHDI - Kathryn Thorndycraft-Pope

T Clinic Dental Legal Experts

Examining documents & handwriting • to determine authenticity • to expose forgery • to reveal aspects of origin. Electro Static Detection Apparatus and Mi-Scope used.

Professor Paul Tipton is a specialist in Prosthodontics and Professor of Cosmetic and Restorative Dentistry and one of the UK’s leading dental expert witnesses.

E: experts@tclinic.co.uk

Professor Parviz Habibi MB ChB PhD FRCP FRCPCH

Target Psychology Ltd

Consultant in Paediatric Intensive Care & Respiratory Medicine.

Specialist in treating respiratory conditions and sleep disorders as well as paediatric intensive care.

Adult and Child assessments within: • Public & Private Law Proceedings • Pre-Proceedings • Immigration Proceedings • Court of Protection Proceedings • Criminal Proceedings

www.childrensrespiratorydoctor.co.uk

www.targetpsychology.co.uk T: 0161 425 1826

www.forensichandwriting.co.uk

32 32

www.yourexpertwitness.co.uk

www.tclinic.co.uk/legal-reports/

Lockdown causes sight-loss fears [

A SURVEY BY eye research charity Fight for Sight has found that people with sight loss fear their sight will further deteriorate during the COVID-19 pandemic, as they struggle to access treatment for their eye conditions.

The Fight for Sight survey, published on 4 June, found that 73% of respondents said their access to treatment had worsened during the pandemic, with some reporting cancelled surgeries as well as cancelled injections for age-related macular degeneration. Four in 10 people surveyed say they were concerned that their eyesight had or would further deteriorate as a result.

Two in five respondents with significant sight loss also reported finding it difficult to follow social distancing rules due to their eye condition, while more than half said their access to food and other products had become worse during the pandemic, including access to food deliveries.

That has been made more difficult by the fact

that blind and partially-sighted people are not classed as a vulnerable group, and therefore are not given priority delivery slots.

Fight for Sight is calling on the government to come up with an urgent plan to make sure that people do not lose their eyesight due to lack of appointments as a result of social distancing measures, and to update its advice to retailers on social distancing measures to ensure the needs of people with poor vision are not excluded or put at risk.

Blind and partially-sighted people should also be given priority delivery slots for online shopping if they want it, the charity believes.

The charity is also raising awareness of the need for more investment in eye research, which could transform the lives of over two million people with sight loss through new treatments as well as taking pressure off an already-stretched NHS. The charity’s chief executive, Sherine Krause,

said: “Our survey shows that people with sight loss are particularly affected by the pandemic, which is having a huge impact on their wellbeing and has the potential to cause long-term damage to their sight. To address this, the government must develop a plan that addresses the immediate need of people with eye conditions, so they don’t become blind because of lockdown and social distancing measures.

“Additionally, we’re calling on the government to urgently update its advice to retailers on social distancing measures to ensure the needs of people with poor vision are not excluded. In the longer term, we must continue to fund research for new, more efficient treatments and cures for the leading causes of blindness and sight loss, to help ease the pressure on our NHS.” Fight for Sight has launched an urgent appeal to help researchers cover the costs of delays to projects and returning to the lab to get eye research back on track. q

www.yourexpertwitness.co.uk

33 33

RCOphth is ‘unable to report’ on COVID link to impaired sight [THE Royal College of Ophthalmologists

has stated it is unable to report on the association of vision impairment as a result of a patient contracting COVID-19, due to a lack of evidence. A direct causal effect can only be established through the reporting of proven cases of COVID-19 patients and their symptoms, the RCOphth said in a statement issued on 26 May. In the statement the RCOphth says: “Our scientific journal EYE has recently published a collection of research papers that focus on the latest evidence and impact of COVID-19 on ophthalmology practice. Several articles in this issue discuss the latest understanding of ocular involvement by coronavirus and the risk of transmission through ocular tissue and tears.

“We believe that there have been a few cases reported on viral conjunctivitis and a statement was issued on this topic, in association with the College of Optometrists, in March.

“The Royal College of Ophthalmologists and members are continuing to recover hospital eye services to ensure that high-risk patients are receiving the treatment and follow-up appointments to manage their conditions and to reduce any potential loss of vision.”

The college urges patients to ring 111 or speak with their GP or an optometrist if

34 34

www.yourexpertwitness.co.uk

they feel that their vision has deteriorated.

If patients have experienced significant loss of vision or trauma to their eyes, they should go to their nearest A&E. Working with NHS

England and the College of Optometrists, RCOphth have developed a framework for the implementation of emergency eye care access for those patients. q

Don’t drive to test your sight, optometrists warn [

THE COLLEGE OF OPTOMETRISTS has advised anyone concerned about their vision to contact their optometrist by phone.

In a statement issued on 28 May the college stated: “Recent media reports on vision and driving have again highlighted the important role that optometrists have to play in assessing visual fitness to drive. Although optometrists are only carrying out essential or emergency/urgent eye care at the moment, we recommend that anyone concerned about their vision should contact their practice via phone for advice.”

The college’s website also has available a home sight test for use in advance of a remote consultation.

In an earlier statement the college reminded drivers that it is their legal responsibility to ensure they are fit to drive. Government guidance says that a driver must inform the DVLA or DVA if they have a condition which might affect safe driving. Drivers must be able to read a number plate in good daylight at a distance of 20m and have binocular acuity of 6/12. They must also meet certain visual field requirements.

The statement adds: “We strongly advise against taking a drive to test your eyesight. If you are concerned about your vision please contact your optometrist for advice.” q

Orbital cellulitis can lead to preventable blindness MR BRIAN LEATHERBARROW, consultant ophthalmic, oculoplastic and orbital surgeon and expert witness, explains the consequences of misdiagnosis or delayed treatment of a serious ocular condition

[

IN MY MEDICOLEGAL PRACTICE I have seen an increase in the number of patients who have suffered blindness of an eye as a complication of orbital cellulitis. Orbital cellulitis demands early recognition and aggressive management: it should be treated as an acute ophthalmic emergency. The most common cause is a primary sinus infection.

Any delay in the treatment of orbital cellulitis can result in blindness and life-threatening sequelae from the development of a brain abscess or cavernous sinus thrombosis.

Unfortunately, confusion still exists between the diagnosis of ‘preseptal cellulitis’ and orbital cellulitis. The use of the term preseptal cellulitis in the context of a sinus infection, however, is to be discouraged, as it tends to imply a more benign infective process. Instead, the term ‘stage 1 orbital cellulitis’ is preferred, as that does not suggest a more benign condition but rather one that requires immediate treatment to prevent it from becoming stage 2 orbital cellulitis, or worse.

The order of priority in the management of patients with orbital cellulitis is: 1. Immediate provision of broad spectrum antibiotics 2. Admission to hospital 3. A CT scan of the orbits and paranasal sinuses There should be no delay in the provision of antibiotics.

Patients with orbital cellulitis can deteriorate rapidly, particularly in the presence of virulent organisms such as streptococcus anginosus.

The diagnosis of orbital cellulitis is made on the history and

Conjunctival chemosis and periorbital erythema and oedema in a patient with orbital cellulitis

An axial CT scan showing an ethmoidal sinusitis with a subperiosteal orbital abscess and non-axial proptosis

clinical examination findings. The patient should undergo an urgent CT scan of the orbit and paranasal sinuses to determine the underlying cause and to exclude the development of complications such as an orbital abscess. A CT scan demonstrates the location and extent of the inflammatory process and can be repeated if the clinical situation deteriorates.

The patient must have an ophthalmic examination with a record of the visual acuity as an initial baseline, and they should be closely observed, with repeated clinical examinations on an hourly basis looking for a deterioration in visual acuity, pupillary reactions, proptosis, worsening restriction of eye movements and conjunctival chemosis.

The patient should be managed jointly by an ophthalmologist, preferably one with oculoplastic and orbital expertise, and an ENT surgeon, preferably with expertise in endoscopic sinus surgery. In my experience, all too often patients who lose eyesight from this disease have usually suffered unnecessary and avoidable delays in their management, both in and out of hospital, with the following key errors: • Failure to make the diagnosis early in the course • of the disease • Failure to administer systemic antibiotics in a • timely fashion • Misreporting of radiological images • Failure to manage patients surgically in a timely • fashion. q

www.yourexpertwitness.co.uk

35 35

36 36

www.yourexpertwitness.co.uk

Various factors lead to dip in cosmetic procedures [

AT THE BEGINNING of March the British Association of Aesthetic Plastic Surgeons (BAAPS) released its annual audit. According to the figures, nearly 27,000 procedures took place in 2019 – a decrease of 7.5% from the previous year. The decrease is put down to a combination of economic factors, awareness of mental health issues and the impact of education initiatives.

Former BAAPS president Rajiv Grover, who compiles the audit on an annual basis, commented: “The 2019 BAAPS audit is very positive from our point of view as it shows that, while the overall number of procedures has dropped, the work we’ve been doing to educate about the life-changing implications of cosmetic surgery and the need to reflect carefully before taking this route is working.

“We’re seeing greater emphasis from surgeons on psychological assessment, as mental health awareness has taken centre stage both politically and in the news agenda, which is so important when putting patients’ interests first.”

As with past years, women underwent 92% of all cosmetic procedures recorded last year. The three most popular procedures for women were breast augmentation (down 11%), breast reduction (down 2%) and abdominoplasty – also known as the tummy tuck – (up 7%).

Of the 8% of the total procedures undergone by men, the lower body lift proved to be more popular than it was last year, with 88% more men opting to undertake the procedure than last year.

Overall, the audit revealed that male cosmetic surgery dipped by 9.2% compared to the previous year.

That may in part be tracked back to the growing awareness of mental health issues.

Raj Grover continued: “There is evidence that suggests people who struggle with their psychological health can feel pressured to turn to ‘quick fix’ procedures to improve their appearance. A thorough assessment of the psychological welfare of patients before

they commit to surgery is crucial. We’ve recently introduced a BAAPS psychology course to guide surgeons through these sensitive conversations and to underline the need, whenever necessary, to advise against having surgery.”

Economic factors apply across the board.

According to BAAPS president Paul Harris: “Economic uncertainty and decrease in overall consumer spending could be contributing factors to the dip in the number of procedures, as shown by the BAAPS data. Year-on-year the cosmetic surgery industry continues to bloom, and we’re noticing that our patients’ confidence in their decision making is stronger”. q

Specialty adapts treatment app [AMONG THE RESOURCES adapted to reflect the changing circumstances during the COVID-19 emergency, the British Society for Surgery of the Hand (BSSH) has issued an edited version of its triage app for treating hand trauma.

The introduction to the app stresses that it should not be treated as forming a norm for treatment during normal times.

One of the circumstances that the app identifies is the availability of resources.

“Theatre availability may be limited and interventions involve risk for both patients and staff, so clinical judgement on what should be done will need to be adapted in an agile manner,” the introduction states. q

www.yourexpertwitness.co.uk

37 37

Family court expert report draws two cheers [CRITICISM FROM LAWYERS,

judges and the press may be deterring health professionals from being expert witnesses in family cases. Sir Andrew McFarlane, President of the Family Division, warned back in 2018 that the supply of expertise was ‘drying up’.

In autumn 2018 Sir Andrew established a working group to identify the scale of the problem, to look at the causes and to identify possible solutions.

Mr Justice Williams was appointed to chair the group with representation from the judiciary, legal profession, royal medical colleges and other interested bodies.

Mr Justice Williams said: “Providing reports to the family courts is hugely time-consuming and requires meticulous scrutiny of medical records and radiological imaging. With the complexities and demands of practising in the modern NHS, it is perhaps not surprising that few individuals are willing to take on the challenges of being a medical expert. However, the role of the medical expert in the family court can be greatly rewarding and clearly the protection of the vulnerable child is the responsibility of all.”

In November last year the working group produced a report using information gathered from surveys of the legal and medical fields and a symposium held in London last July.

The report confirms the nature and extent of the shortages of medical and other health professional as experts, identifies a wide range of causes and proposes solutions. It was followed by a consultation seeking the views of interested parties, which closed at the end of January.

38 38

www.yourexpertwitness.co.uk

One of the respondents to the report was the Law Society, which said: “The Law Society welcomed the opportunity to respond to this consultation as this is an issue that our members have raised in the past and continue to face. It is important that the president is looking to improve the current situation regarding medical experts in these proceedings as they fulfil a vital role in helping courts reach decisions that are in the best interests of all parties.

“We are also pleased to see that the consultation is looking at a crossbody approach, including proposals that will affect bodies in both the medical and professional fields. Cooperation between all those involved in these proceedings is essential and the legal aspects cannot be considered in a vacuum.

“The recommendations are thorough, well considered and would generally greatly improve the current paucity and issues around quality of medical experts. However, we are concerned about where the resources for some of the proposals would come from and recommend that this is given more consideration.”

The Expert Witness Institute was less fulsome in its praise.

The EWI said: “Whilst the EWI is pleased to see this issue being considered, we were disappointed and surprised that there is no reference at all in the report to the potential role of the EWI (or indeed any other expert witness organisations and training providers) and that there has been no engagement or formal consultation with us over this work.” q

Dentists’ leaders warn of dangers of ‘opening floodgates’ [WHILE WELCOMING the decision to allow the restoration of

routine dental services as of 8 June, the British Dental Association (BDA) has cautioned that practices will need to move at different rates, depending on availability and fitting of PPE, their ability to enact ongoing social distancing measures and the time needed to implement appropriate cross-infection control.

According to the BDA, the availability of and ability to fit-test ‘higher end’ PPE in particular may limit the universal restoration of a full range of dental care. It has expressed the view that steps should be taken to integrate dentistry into the wider government strategy on PPE supply led by Lord Deighton.

Dentist leaders have also warned the whole business model that the service is based on could change unalterably upon reopening, with social distancing and cross-infection control reducing capacity

GDC turns down fee reduction plea [THE GENERAL DENTAL COUNCIL (GDC) has decided not to

implement a reduction in its annual retention fee (ARF) – the fee it charges dentists to register to practice. There had been calls for either a reduction in the fee to reflect the pause in routine practice during the COVID-19 crisis or the introduction of instalment payments.

In an update to professionals, the GDC chair Dr William Moyes said: “By revising our regulatory approach and increasing our efficiency, we have been able to secure greater value for money and reduce the ARF – and we hope to continue along this path. But we don’t want to make changes now that we can’t sustain, and which might lead to inefficiency and increased costs in the future.

“We are looking hard at the way we deliver our services, both during the current emergency and beyond. One example of that is that we have rapidly developed ways of running hearings remotely. That could eventually lead to a permanent reduction in our costs; and if it does, that reduction will be reflected in the fees we charge in future.

“For the time being, though, significant uncertainty remains about the months ahead and it is just too early to predict what is going to happen – to the sector as a whole or to the GDC. So, it would be imprudent to make changes which might not be sustainable, or which have the potential to add further risks or cost to what we do.” q

and potentially access levels by as much as two thirds.

BDA chair Mick Armstrong said: “It is right to allow practices to decide themselves when they are ready to open. Dentists will be keen to start providing care as soon as safely possible, but we will need everyone to be patient as practices get up and running.

“Dentists can open their doors, but won't be able to provide a full range of care without the necessary kit. Longer term, practices can only stay afloat with on-going support while social distancing continues and the costs of providing care are sky-high.

“We have been pressing for a timeline to restore face-to-face care on the high street across the UK. But opening the floodgates without recognising the scale of the challenge ahead is fraught with problems.” q

39 3939 www.yourexpertwitness.co.uk 39 www.yourexpertwitness.co.uk

40 40

www.yourexpertwitness.co.uk

Are you a troubleshooter or an expert witness, or both?

by Dr DIYARI ABDAH, reconstructive dentist and expert witness

[

AS EXPERT WITNESSES in dentistry – particularly in the field of dental implant surgery – we find ourselves troubleshooting many aspects of a failed process. And unlike troubleshooting a failed periodontology case or one of endodontics – where almost the entire treatment process is usually planned and executed by one individual dentist – it is important to realise that dental implant therapy is a treatment process with many parts and individuals involved.

Distinguishing which part of the process led to the failure is crucial before pointing the finger at anyone, although the buck always stops at the treating dentist.

In general, patients rarely or maybe never point the finger at the manufacturers of the implant parts, or the makers of a bone grafting material; nor do they blame the dental technician who was responsible for making the final part of the prosthesis which the patient receives.

After spending over two decades looking at cases and troubleshooting, I have found that the responsibility is often shared between the treating dentist and the maker of the prosthesis – the dental technician.

However, the unwritten rule dictates that, once the dentist accepts the prosthetic part for the treatment and decides to fit it in the patient’s mouth, that’s where the responsibility of the technician ends.

Dealing with imported problems

But not quite so: some prostheses fail, after a certain amount of usage and time,

due to fatigue in the material, because of poor quality or poor manufacture which the dentist could not see or anticipate. I have witnessed many cases where the prosthesis has been made overseas by so called ‘dental tourism’ clinics.

Cases have indicated good surgery, possibly performed by very talented clinicians, but very poor manufacture of the prosthesis parts led to breakage or chipping and hence functionally and aesthetically compromised and substandard work.

I run a centre for such remedies and over the years have had to remove many examples of such poor work and replace them with better quality prostheses; and neither the patient nor the dentist could talk to anyone to complain about the substandard work done by substandard technicians or clinicians.

Here in the UK, when a case fails at any stage, the clinician can almost always trace it back to the possible problem that may have caused it. Unfortunately, however, many clinicians do not document everything, and as an expert witness it is difficult to troubleshoot if the clinician did not make thorough notes about every step, and possibly remedial steps, because they felt it may incriminate them later.

The expert’s contribution

This is something that could be changed – and that change should be encouraged by professional bodies and our legal colleagues, as poor data can lead to misunderstandings and will have the

opposite to the desired effect and not work in their favour.

In these cases the expert witness’s experience is paramount, in order to assess correctly what may have happened in the absence of thorough and detailed records and enable an unbiased and balanced opinion.

The concept of case troubleshooting is borrowed from engineering, where it may be more logical to trace steps back in the process. In cases involving biology, including dentistry, there are many other factors and variables that can be crucial – such as medical conditions and medications, smoking, diet, hygiene, and para-functions such as grinding. This is in addition to the host body’s response in accommodating the dental implant and finally the prosthesis – so tracing back is not as straightforward.

That is why an expert witness with a vast amount of experience can troubleshoot such cases with relatively more predictability, and narrow down the probable causes more quickly. That potentially means that fewer hours need to be spent figuring out the case – which is to everyone’s benefit. q • Dr Diyari Abdah, who currently practises in Cambridge, has drawn plaudits from across the globe for his long experience in reconstructive and implant dentistry.

Having graduated from Gothenburg University School of Dentistry in Sweden, he has achieved post-graduate qualifications at the University of Warwick, where he is a visiting academic, and the Pankey Institute in Florida. He was awarded America’s Premier Expert Award in 2013.

41 4141 www.yourexpertwitness.co.uk 41 www.yourexpertwitness.co.uk

42 42

www.yourexpertwitness.co.uk

The dangers of healthcare tourism

By TOBY TALBOT BDS MSD (Washington) FDS RCS TOBY TALBOT is a specialist in restorative dentistry, prosthodontics, endodontics and periodontics, with over 20 years experience as an expert witness and a specific interest in dental negligence litigation claims. Here he shares cautionary ruminations on overseas dental care

[WHEN A PATIENT attends a practitioner in their home country, they

are well aware of the protocols that are in place to protect them from any adverse outcome. If something goes amiss, they have access to legal litigation and there are compensation processes to allow for remedial treatment to be provided.

British-based patients have clear legal rights that allow the patient to pursue a legal course of action that is well rehearsed. Referral of the miscreant practitioner may be directed to the GMC or GDC if the safety of patients is considered at risk.

When travelling overseas, however, legislative and disciplinary protocols may vary considerably from our own. Large corporate institutions may entice patronage with attractive financial schemes, slick advertising and ‘spa clinics’ but have patients considered the action involved if things don’t work out? Would they be able to pursue a legal action in the appropriate language? Would they know where to begin? Would they have the time to attend court or afford legal representation? How accessible would it be if they had to return repeatedly for the management of complications? What would they do if the clinician involved has moved on without a forwarding address? Interpol will not help with civil proceedings – only criminal.

Swings and roundabouts: the incisive truth

Dental implants could be just the ticket for the 30 forgetful types who TfL tell us leave their dentures on the Tube every year. But what about the rest of us, unsure of whether the decision to bite the dental implant bullet will find us on the love train – or the ghost train?

Better kissing, chewing and avoiding having to get teeth filed down are three key reasons why people choose dental implants over the dreaded dentures. And the overall success rate is a pretty sleek 90-95%; so if you do your research, share your dental and medical history with your dental surgeon and uphold your part of the bargain in terms of aftercare, with a bit of luck you could be laughing and chewing and kissing without a care in the world for the next 20 years.

But as the popularity of dental implants increases, so do the horror stories that scream of life-changing nerve damage and jawbone loss.

There are certain cases where I’d advocate avoiding dental implants – like I wouldn’t suggest you take your new car for a spin on the M4 on a Friday rush hour.

What are dental implants and how much do they cost?

Let’s just make sure we know what we’re talking about: a dental implant is a titanium screw or cylinder that acts as a substitute for a natural tooth root. Once the gum has healed post-insertion, an internal screw or post is placed into the implant. A dentist can then fit false teeth, crowns and dentures.

Dental implants cost on average £2,000 per tooth, including crown provision and post-treatment follow-up. If you need bone grafting – for example if you’ve had missing teeth for some time and your bone has naturally wasted as a result – that’ll probably take another £200 per implant for a simple graft. A full set (usually 10 teeth) with no complications could cost around £10,000 to £13,000.

The car-crash implant: when it all goes horribly wrong

People often think of medicine and surgery as fixing a problem, in the same way you have your car fixed when it breaks down. Unfortunately for us, the human model is fantastically complex and doesn’t behave like a predictable piece of malfunctioning hardware. Just as we each have our own unique DNA, so too our ‘personal biology’ creates a unique response

to any sort of medical or surgical tinkering. As all biological responses range in degrees of success, it should not come as any surprise that failures occur.

The first titanium dental implant was made in 1965 and in the years since we’ve built up around 40 years of solid research on the subject.

In terms of reasons for surgical failure, a review of the clinical literature shows multiple causes which can be categorised into four main groups: iatrogenic, biological, mechanical and compliance failure.

Iatrogenic failure is when the clinician has made damaging surgical errors, whereas biological failure occurs when the patient may suffer an unaccounted immune or healing response, or a particularly aggressive virulent bacterial infection.

Mechanical failure is where components in the implants – or in the crowns or bridges attached to the implants – can fracture or break and compliance failure relates to the patient failing to maintain optimum homecare.

The results of these failures are likely to leave the patient with one or more symptoms, such as wobbly or loose teeth or implants, pain, bleeding gums around the implant or gum recession, poor cosmetics, repeated infections, bone loss or persistent nerve numbness.

Feeling nervous?

Of the 10,000 mandibular (lower jaw) dental implant procedures conducted in the UK each year, 100 of them result in chronic nerve injuries. The associated pain, facial sensation and numbness can affect everyday activities such as eating, speaking, kissing, shaving and brushing teeth. That can have a serious impact on quality of life and lead to depression and other mental health problems. According to King’s College London Dental Institute, in 1997 approximately 10% of all nerve injuries caused by dental work were associated with implants. By 2007 that figure had tripled to 30%.

In a nutshell, a clinician should follow these five steps: • Carry out sufficient radiographic planning before they operate • Use shorter implants • Immediately refer to a specialist nerve injury clinic if damage has • occurred • Recommend patients undertake a ‘home-check’ at 12 hours after • surgery. That allows them to report on-going numbness, which may • indicate early removal of the implant is needed. If they experience • severe or extreme pain post-surgically it must not be overlooked – it • could be an indicator of nerve damage.

• Remove the implants promptly, within 20 hours if required, to minimise • the chances of the patient developing post-surgical nerve damage.

People shouldn’t jump on the dental implant bandwagon if they aren’t fastidious about oral hygiene and a non-smoker – or if they have chronic gum disease.

The effects of tobacco on hard and soft tissue healing are welldocumented, so the chances of an implant securing to the bone – let alone staying put – are slim to none if they’re a smoker. If they have periodontal gum disease it could lead to losing bone, which again risks the security of their implant.

Research shows a score of bacteria associated with dental implants, and precise methodical and frequent cleaning is critical if patients want to hang onto them for a while. If an infection is allowed to take hold around an implant, the jawbone can also become affected and begin to waste. To avoid that, they’ll want to follow their dentist’s advice pretty religiously and visit their hygienist several times a year. q

43 4343 www.yourexpertwitness.co.uk 43 www.yourexpertwitness.co.uk

COVID hospital admissions in pregnancy more prevalent among BAME women, study finds [RESEARCHERS FROM THE National Perinatal Epidemiology Unit

(NPEU) at Oxford University, in collaboration with the Royal College of Obstetricians and Gynaecologists (RCOG), the Universities of Leeds and Birmingham and Kings and Imperial Colleges London, have published new research that suggests pregnant women are no more likely to become ill with severe COVID-19 than non-pregnant women. However, the majority of women who did become severely ill were in their third trimester of pregnancy, emphasising the importance of social distancing for that group.

The study looked at the outcomes of 427 pregnant women and their babies admitted to hospital with COVID-19 infection in the UK between 1 March and 14 April. The figure represents 4.9 per 1,000 of women giving birth. Around one in 10 of them received intensive care and, sadly, five women have died.

Older pregnant women, those who were overweight or obese, and pregnant women with pre-existing conditions such as high blood pressure and diabetes were also more likely to be admitted to hospital.

A disturbing finding of the study was that 55% of pregnant women admitted to hospital with coronavirus were from a black, Asian or other minority ethnic (BAME) background: 13% of the UK population identify themselves as BAME. Prof Marian Knight, Professor of Maternal and Child Population Health at the Nuffield Department of Population Health at the University of Oxford and lead investigator for the study, said: “A very small number of pregnant women do become severely ill with COVID-19 and sadly some women have died. Our thoughts must remain with their families. It is concerning that more pregnant women from black and minority ethnic groups are admitted with COVID-19 in pregnancy and this needs urgent investigation.”

44 44

www.yourexpertwitness.co.uk

Responding to the survey findings, Dr Edward Morris, president of the Royal College of Obstetricians and Gynaecologists, said: “There is a pressing need to record and analyse all coronavirus hospital admissions and deaths in detail, and to establish why this striking ethnic variation exists. We already know women from certain ethnic groups may be more likely to have pre-existing health conditions and complications, and socioeconomic inequalities impact on the accessibility of health services and lead to poorer outcomes. We need to better understand these complex factors and how to make services fully accessible and inclusive so that no woman is left behind.”

RCOG’s spokesperson on racial equality, Dr Christine Ekechi, added: “We are deeply saddened to learn of the five deaths in pregnant women and our heartfelt sympathies and thoughts are with their families during this very difficult time. The underlying causes of these deaths are currently unknown. We owe it to each woman, her family and wider society to find out why these deaths have occurred, and to prevent future tragedies wherever possible.

“It is of great concern that over half (55%) of pregnant women admitted to hospital with coronavirus were from a BAME background, and this deepens our concerns around persisting vulnerabilities of this particular group of women.

“We are updating our guidance to reflect that BAME women should be told at each contact with a health professional that they may be at higher risk of complications of coronavirus, and advised to seek help early if they are concerned about their health. Healthcare professionals should be aware of this increased risk, and have a lower threshold to review, admit and consider multidisciplinary escalation in women of BAME background.

“Pregnant BAME women who develop more severe symptoms of coronavirus, or feel their recovery is delayed, may be developing more severe illness and need enhanced care. In these cases, they should contact NHS 111, their maternity unit or in an emergency 999.” q

What are the medicolegal implications of cauda equina syndrome?

by CHRIS DAWSON MS FRCS LLDip consultant urologist

[ THE SPINAL CORD lies protected by the vertebrae and is

surrounded by three meningeal layers. It is also protected by spinal fluid in the spinal canal.

The cauda equina is the name given to those nerve roots which lie distal (furthest from the brain) to a structure known as the conus medullaris, which itself ends at the level of the intervertebral disc between the 1st and 2nd lumbar vertebrae. Those segments of the spinal cord contain nerves that supply the genital/urinary tract, and the lower gastrointestinal tract.

A number of pathological processes can cause compression of the nerve roots in that area, including spinal stenosis, trauma, metastatic or primary tumours of the spine, or infection. However, cauda equina syndrome (CES) is most commonly seen after posterior prolapse (herniation) of an intervertebral disc in the lumbo-sacral region. Estimates have suggested that cauda equina syndrome occurs in 1-5% of all prolapsed lumbar discs.

Cauda equina syndrome is the name given to the clinical picture that comprises loss of sensation to the perineal area, a loss of control of the anal and urethral sphincters, and a loss of sexual response. CES is normally divided into two phases.

Patients with ‘incomplete cauda equina syndrome’ (CESI) present with sensory changes that include loss of sensation of the perineal area. There may also be a lack of sensation of bladder filling, a loss of desire to pass urine and a poor urinary stream; but critically these patients have not yet developed urinary retention or overflow urinary incontinence.

The second phase is ‘complete cauda equina syndrome with urinary retention’ (CESR). In that phase patients proceed to painless urinary retention with or without overflow incontinence.

Early intervention is critical to the recovery of patients with CES, but the condition is often misdiagnosed as ‘back pain’ or ‘sciatica’ and the patient discharged home until they re-present with CESR. Most authors are agreed that the outcome from both a neurological and a urological perspective is improved if surgical decompression takes place before the patient has progressed to CESR. Liability in cases of CES normally revolve around the actions of GPs, A&E staff, orthopaedic staff and neurological surgeons involved in the diagnosis and management of the claimant’s condition.

From a medicolegal perspective the urologist is usually asked to provide a condition and prognosis report,

although occasionally questions will be asked in relation to causation as well.

Causation can sometimes be challenging to address, because it can be difficult based on the medical records to determine whether or not the patient developed CESR, and at what point in time it happened.

Condition and prognosis, by contrast, is usually more straightforward.

Patients who develop CESR may be left with the following urological symptoms in the longer term: • An inability to perceive that the bladder is full/empty • The patient may be unable to pass urine and/or may not completely • empty their bladder. As a consequence they may need to perform • clean intermittent self catheterisation on a daily basis to ensure that • their bladder empties fully • There may be urinary incontinence • Men may no longer be able to obtain an erection and may have an • inability to reach orgasm and ejaculate semen • Women may experience a loss of vaginal and clitoral sensation, and • thus derive significantly reduced pleasure from sexual intercourse, • as well as the loss of the ability to reach orgasm • There may be bowel problems, including faecal incontinence By the time that litigation is underway it will normally be a few years since the claimant developed CES. By that time any further recovery in urological or sexual function is unlikely. Thus, the urologist is normally able to give a clear view about the prognosis for the claimant’s symptoms.

In summary, CES is a rare syndrome, but one with devastating consequences for the claimant if the early signs are misdiagnosed. If diagnosis and successful treatment occur during the phase of CESI while bladder and bowel function remain relatively normal, then most patients retain bladder and bowel control as well as sexual function.

However, if CESR develops then recovery of urological and sexual function is significantly less likely. q

www.yourexpertwitness.co.uk

45 45

46 46

www.yourexpertwitness.co.uk

Heart attack victims delay seeking help during pandemic [PEOPLE SUFFERING HEART ATTACKS are among those

staying away from A&E departments during the coronavirus outbreak, according to data from Public Health England. And by delaying seeking medical help they are putting their lives at risk, the British Heart Foundation (BHF) says.

The data, from hospitals across England, show that the number of people attending emergency departments in England with symptoms of a possible heart attack dropped from an average of around 300 per day at the beginning of March to around 150 per day by the end of the month.

According to the BHF, the 50% drop is equivalent to approximately 5,000 of the expected people every month, or more than 1,100 people every week, with possible heart attack symptoms not being seen in emergency departments.

In another survey of six heart attack centres in London there was an average drop of 38% in the number of emergency percutaneous coronary intervention (PCI) procedures carried out to treat heart attacks in the second half of March this year compared to the same period last year.

In a further BHF survey of 167 cardiologists across all regions and all nations in the UK, 84% also reported a decrease in numbers of patients admitted with the type of heart attack needing PCI treatment.

Nearly three quarters of the cardiologists said they believe people are afraid to visit hospital during the COVID-19 crisis due to fear of being exposed to the virus, while nearly half believe people are worried about putting pressure on an already overburdened NHS. Dr Nick Linker, national clinical director for heart disease at NHS England and NHS Improvement, said: “NHS hospitals are continuing to prioritise urgent services as well as preparing and responding to the COVID outbreak, and so it remains important if someone has symptoms of a heart attack – such as chest pain or an underlying heart problem that gets worse – that they seek urgent medical attention as they normally would.

“Treating heart attacks promptly and effectively saves lives and the services to treat them are still in place for those who need them.”

Breathlessness and chest pain are also known symptoms of COVID-19, potentially making it harder to identify people whose symptoms are being caused by a heart problem and not the virus. It is also possible that changes in our behaviour caused by the pandemic are affecting the numbers.

The drop has also been seen in other countries hit hard by the coronavirus pandemic, and more in-depth research is needed to properly understand how COVID-19 is impacting on heart and circulatory disease.

Dr Sonya Babu-Narayan, associate medical director at the BHF, added: “These are uncertain times, and it’s understandable that people might feel apprehensive about having to go to hospital or putting unnecessary strain on the NHS. But heart attacks don’t stop for a global pandemic.”

The BHF is urging anyone who experiences heart attack symptoms to seek medical help immediately by calling 999. Leaving a heart attack untreated can be deadly, and the risks posed by delaying reporting are much greater than those posed by the virus.

Paramedics are often able to diagnose a heart attack straight away, taking people straight to the right hospital and department where they can receive the best treatment. q

www.yourexpertwitness.co.uk

47 47

48 48

www.yourexpertwitness.co.uk

Expect a ‘tsunami’ of mental health issues, psychiatrists warn [PSYCHIATRISTS ARE PREDICTING

a ‘tsunami’ of mental illness as a result of the COVID-19 emergency. Mental health services are already dealing with a rise in urgent and emergency cases, but are preparing for a surge in the coming months.

That is the conclusion drawn from the second COVID-19 member survey by the Royal College of Psychiatrists (RCPsych), carried out between 1-6 May. The survey found that 43% of psychiatrists have seen an increase in their urgent and emergency caseload, while 45% have seen a reduction in their most routine appointments. Psychiatrists are concerned that many patients are staying away from mental health services until they reach a crisis point. The pandemic has also made it much harder for services to offer routine appointments, despite rapid adoption of new ways of working such as remote consultations and social distancing.

With referrals and regular appointments falling, those who are being treated are often those with the most serious conditions or presenting in crisis. This

is at a time when the Office for National Statistics has found that almost half of the population of Great Britain (49.6%) has reported high levels of anxiety. Steps need to be taken so that mental health services are ready to help everyone who needs them now and following the initial peak in COVID-19 cases.

RCPsych president Professor Wendy Burn commented: “We are already seeing the devastating impact of COVID-19 on mental health with more people in crisis.

But we are just as worried about the people who need help now but aren’t getting it. Our fear is that the lockdown is storing up problems which could then lead to a tsunami of referrals.

“Mental health services will be at risk of being overwhelmed unless we see continued investment.”

The survey results suggest that the biggest drop-offs in routine care have been in mental health services for older adults, for children and young people, and within general hospitals. That is raising concerns that self-isolation and shielding, school

closures and fear of hospitals are impacting on the numbers of patients accessing treatment for mental health. Older people may also experience difficulty in using technology to video-call a doctor.

Written responses to the survey from psychiatrists included: ‘In old age psychiatry our patients appear to have evaporated, I think people are too fearful to seek help.’

‘The admitted patients have more severe psychotic symptoms, which incorporate Covid-related themes.’

‘Many of our patients have deteriorated/ developed mental disorders as a direct result of the coronavirus disruption, for example social isolation, increased stress and running out of meds.’

Dr Bernadka Dubicka, chair of the Faculty of Child and Adolescent Psychiatry, explained: “We are worried that children and young people with mental illness who may be struggling are not getting the support that they need. We need to get the message out that services are still open for business.” q

www.yourexpertwitness.co.uk

49 49

Psychology body issues guidance for homeworkers – and for psychologists going back [IN RESPONSE TO the huge change in working practices, the

British Psychological Society (BPS) has published guidance on how to create healthy sustainable homeworking conditions for both workers and their employers.

Working from home, the BPS says, has become widespread since restrictions to control COVID-19 were introduced in the UK and that has meant a major shift for individuals and organisations.

The guidelines, Working from home: Healthy sustainable working during the COVID-19 pandemic and beyond, outline the practical steps and considerations that can make homeworking a success and has advice for both workers and their employers.

Drawing on psychological expertise, the guidelines advise workers to set appropriate boundaries between their work and personal life and encourage employers to recognise and address risks to physical and mental wellbeing involved in remote working. It also recommends that employers adopt a flexible approach, because each individual’s situation will be different and may change rapidly without warning.

Professor Gail Kinman, joint author and member of the BPS COVID-19 Working Differently Group, said: “Working from home can work well, but under current conditions some people have struggled to adjust to new environments and working patterns. Managing employees is different and what works in a traditional workplace may not apply when working remotely. It’s important to get the balance right when making arrangements that aim to meet everyone’s needs.

Effective two-way communication is essential at every stage.

“We hope our new guidance will help employers and employees work together to ensure successful and healthy homeworking.”

Conversely, the BPS has also published advice for its own members

50 50

www.yourexpertwitness.co.uk

on working safely as they return to their physical place of work.

The guidance recognises that there are elements of psychologist’s workplace that may lead them to feel unsafe, and suggests that they should be addressed. It also says that if a psychologist’s workplace is considered to be high risk then they should continue to work from home or be given appropriate personal protective equipment.

According to the BPS: ”Particular things to consider include whether maintaining a two-metre distance from others is physically possible within the workplace, whether there is adequate ventilation, and the hygiene measures that are in place.”

The guidance also gives some suggestions on maintaining safe workplaces during COVID-19, such as avoiding the use of shared physical resources, using online tools where possible, and reviewing the use of waiting rooms. q

ACCOUNTANCY

COMPUTER & MOBILE FORENSICS AGRICULTURAL & HORTICULTURAL CONSULTANTS

EMPLOYMENT CONSULTANTS

BUILDING, PROPERTY & CONSTRUCTION

ENERGY CONSULTANTS

www.yourexpertwitness.co.uk

51 51

ENVIRONMENTAL HYGIENE

FORENSIC SERVICES

ERGONOMICS

FINANCIAL SERVICES

GEOTECHNICAL CONSULTANTS

52 52

www.yourexpertwitness.co.uk

HEALTH & SAFETY

MECHANICAL & PROCESS ENGINEERING

WOOD & TIMBER

www.yourexpertwitness.co.uk

53 53

MEDICO-LEGAL EXPERTS ACCIDENT & EMERGENCY MEDICINE

ANAESTHESIA

DENTAL & ORTHODONTIC EXPERTS

CARDIOLOGISTS & CARDIOTHORACIC SURGEONS

54 54

www.yourexpertwitness.co.uk

GENERAL SURGEONS

ENT CONSULTANTS

HAEMATOLOGY

HAND SURGEONS

GASTROINTESTINAL & COLORECTAL SURGEONS

www.yourexpertwitness.co.uk

55 55

LIVER SURGEONS

OCCUPATIONAL THERAPY

NEUROSURGEONS

OPHTHALMIC SURGEONS

NURSING & REHABILITATION CONSULTANTS

OBSTETRICS & GYNAECOLOGY

ORAL & MAXILLOFACIAL SURGEONS

56 56

www.yourexpertwitness.co.uk

ORTHOPAEDIC SURGEONS

PHARMACOLOGY

PHYSICIANS

PLASTIC SURGEONS

PATHOLOGY

www.yourexpertwitness.co.uk

57 57

PSYCHIATRISTS

58 58

www.yourexpertwitness.co.uk

PSYCHOLOGISTS

SPEECH & LANGUAGE THERAPY

TRICHOLOGY

UROLOGICAL SURGEONS

TOXICOLOGY

www.yourexpertwitness.co.uk

59 59

60 60

www.yourexpertwitness.co.uk