Kevin Grealis advises on cases involving multiple defendants and how one might approach them in this article that originally appeared in the Clinical Risk Journal by SAGE Journals – available here.

One of the first cases I dealt with when I came to Stewarts almost 20 years ago involved a horrific accident, which was made worse by subsequent medical treatment. In that case, a young man’s clothing became entangled in an unguarded rotating power take off (PTO) shaft at the rear of a tractor. This gentleman suffered life-threatening injuries, including a below knee amputation of one of his legs. As one would expect, he was kept in intensive care for several weeks. Unfortunately, when cervical spine x-rays were performed on admission, they did not include the C7 level (where there was an unstable fracture). The missed fracture resulted in the claimant coming out of ITU tetraplegic.

Since then, I have been involved in a number of cases where a claimant has had a “double whammy” or a “double setback”, so to speak, from which cases one can seek to distil some common themes which may be of interest to fellow practitioners.

Subsequent medical treatment

Some personal injury practitioners might argue that there is no reason to look at the appropriateness of the claimant’s treatment by medical and other “quasi-medical” practitioners (e.g. Paramedics, Police officers, Lifeguards) when you have a strong case on liability against a primary tortfeasor, say, a situation where the principal defendant is the driver and the claimant a passenger or where the claimant is an employee of the defendant. However, in certain scenarios I believe such an investigation is necessary:-

1. Contributory Negligence
Some years ago, I acted for a young man (JB), who was a front seat passenger. He was rendered a T8 complete paraplegic. All of the evidence pointed to him not wearing a seatbelt at the time of impact, and thus liable to a deduction of up to 25% from his damages. Investigation of the medical treatment identified that his paralysis developed several hours after admission. He had been on a spinal board but was removed from this without spinal clearance having been completed. After settlement discussions with both defendants, namely the defendant driver and the hospital trust, judgment was entered for 95% of the full damages award against the hospital trust defendant with a substantial lump sum and periodic payments order being secured. Anecdotally the defendant driver’s insurers “bought” themselves out of the litigation for several hundred thousand pounds whereas they had originally thought that they would have to pay at least 75% of the Claimant’s final award.

2. The chain of causation
We are all well-versed in looking at the facts of each case and considering whether the medical treatment was so culpable as to constitute gross negligence. See Webb v Barclays Bank [2001]1. This was a consideration in the following case. A client of mine, (AB), a middle-aged woman, was a pillion passenger on a motorcycle, driven by a family member whilst on holiday abroad. Due to the defendant driver’s fault, she came off the motorcycle and fractured her spine. At the time she had surgery, she had no neurological deficit, but due to the fact that the pedicle screws used were too long and inappropriately placed, she was rendered a complete paraplegic. On the facts, it seemed a strong case for the RTA defendant to argue that there had been a break in the chain of causation. However, just after exchange of expert evidence, the Personal Injury defendant’s expert later “backtracked” from describing the surgeon’s conduct as reprehensible such as to suggest gross negligence. However, both defendants, did provide for full settlement on a lump sum and periodic basis, this being especially important given that the RTA defendant’s insurance only provided cover up to a maximum of 500,000 Euros.

3. The Defence
The Defence can often be where fresh allegations are made against a third party; if one investigates matters early, the Defence should carry no new surprises. However, if it does, and the personal injury defendant alleges negligence on the part of a treating doctor or other professional, e.g. a GP or a treating hospital, then one has to hope that primary limitation has not passed. To ameliorate the situation one should seek to obtain as full a set of medical records as one can and ask the independent medical expert that has been asked to consider the Claimant’s condition of prognosis if there are any areas of concern in the medical treatment. If there are such concerns, it may be worth writing to the Defendant asking them on a ‘without prejudice’ basis if they intend to blame a third party and if they do flagging up the costs consequences of their stance. The latter step may not be appropriate in all situations, for example, when proceedings are well within ‘the Claimants’ 3 year limitation and thus where it is best not to raise a complicating factor that the Defendant might not have picked up!

4. Causation generally
Notwithstanding the defendant’s position on primary liability and, indeed, the claimant obtaining judgment for 100% liability as in the case of Piccolo v Larstock Ltd et al [2007]2, it is always open to a defendant to argue that the claimant’s injuries were only partially due to the original injury or, indeed, to argue that the fall/slip, as in Mr Piccolo’s case, had no lasting implications, thereby seeking to drastically reduce the quantum of the claim. Thus, liability issues involve both breach of duty and causation. If one is in the fortunate position of having agreed various breaches of duty, it is helpful to spell out the actual consequences that the parties have agreed have been caused by the admitted negligence.

In the Piccolo case, the claimant’s case was that his fall precipitated a prolapsed disc with resulting cauda equina syndrome, which developed over a period of days and which was missed by his treating GPs. As the claim had also been brought against his treating GPs, who delayed in referring him to hospital, judgment was eventually obtained against those GPs as well as the occupier and a lump sum settlement agreed.

5. The Criminal Injuries Compensation Scheme and limits on insurance cover
A situation may arise where a person has been assaulted and the original assessment is lacking in some respect so that a major injury is missed. Head and neck injuries, if not treated correctly (immobilisation, oxygen and blood pressure maintenance) at the scene and/or in the Emergency Department, can result in full paralysis and a lifetime of dependent care. Given that the maximum award under the current CICA Scheme is £500,000.00, it is essential to give consideration to whether medical treatment has been adequate. This same situation also arises where an insurance policy has an indemnity limit. For example, occupier liability policies and foreign road traffic accident policies often carry woefully inadequate levels of cover and will lead to under compensation of the claimant.

6. “Two bites of the cherry”
It is important to remember that, in many cases, one is effectively dealing with two separate causes of action. One of those causes of action may ultimately have a successful outcome whilst the other fails. In addition, as mentioned above, there may be limits on the insurance cover which mean that the claimant will go under compensated if only the one claim is pursued. Such a situation arose in Kylie Grimes v David Hawkins and Frimley Park Hospital NHS Foundation Trust [2011]3. In that case, the young Claimant dived into a swimming pool at a friend’s home and was paralysed. At Trial, that claim ultimately failed but judgment was entered and substantial lump sum damages agreed in respect of the clinical negligence claim arising from inappropriate mobilisation of the Claimant in the Emergency Medicine Department. I hope to have given you, in the above examples, instances of why claims against multiple defendants should be investigated and proceedings possibly commenced. Now let us look at some of the practical considerations that might apply.

Considerations in running a claim against multiple defendants

There are many different issues one can look at but I will concentrate on the following three:-

(i) Strategy;
(ii) Costs;
(iii) Risks.

(i) Strategy
I have already made reference to the need to utilise an independent medical expert. In addition the recruitment and instruction of the right type and quality of medical experts is no less crucial. To give an example, I had a 64-year-old client who was driven into, on his side of the road, by a Land Rover. He suffered a fractured pelvis and other orthopaedic injuries, but he also suffered a cervical spine fracture. Because the admitting hospital did not scan his spine, this went undetected for almost 3 months, causing him to suffer irretrievable loss of hand function. An eminent neurologist was able to concisely identify the additional injuries caused by the negligent hospital (against whom the claimant had judgment for 100% liability), as opposed to the personal injury defendant against whom he had only a 75% judgment.

In that case, we were quite precise in identifying the injuries flowing from each defendants` negligence. Choosing the right counsel for a case is crucial. Counsel who is chosen needs to be familiar with the running of personal injury and clinical negligence claims and how they overlap. Gone are the days when issues involving costs are delegated. Counsel must have a good working knowledge of the principles of costs law and how it will impact on any possible outcome. How one approaches joint settlement meetings (JSMs) or mediations can be determinative. Frankly, any planned meeting between the claimant and the defendants, where the co-defendants have not met or discussed their joint approach, is virtually doomed to failure. In a case which is mediated, if there are multiple defendants, the mediator may need to work hard to establish how a package can be formulated between the co-defendants so as to conclude an agreement with the claimant. Sometimes that will involve cash contributions from some defendants or a liability split. One should not underestimate the time and effort involved at this stage. Obtaining a mediator with the right skill-set is fundamental. JSMs involving multiple defendants always have a different dynamic from case to case. I recollect one JSM, a case where the claimant suffered head injuries in a motorbike accident as well as an undiagnosed spinal injury, where the claimant accepted a compromise on liability which was to be split equally between the personal injury and hospital trust defendants within an hour of the start of the JSM, only for the next 4 hours to be spent eventually agreeing and then incorporating the costs aspects into the order. That was even where the claimant’s junior counsel was also a costs specialist!

On a general note, and I do not apologise for repeating it given that I have mentioned it earlier, it is crucial to have addressed causation. I am not talking have a fully worked up case against a third party, since to do so might well lead to accusations of waste at a later stage of the litigation. What is normally sufficient is to get a good set of medical records and to then get your independent expert view on them with those issues being discussed in more details at a conference with the expert. If there are any notes or transcripts from criminal or other proceedings be sure to get hold of these and compare them with what the records say.

(ii) Costs
There are three key issues in multiple defendant cases. These are costs, costs and costs!! This point cannot be emphasised enough. Right from the very start, one will be thinking about funding arrangements and adverse costs provision. Correspondence with a primary defendant will, at an early stage, set the scene that if they choose to blame another party or parties where, for example, they are alleging that there has been a break in the chain of causation, there will be cost consequences further down the line. If the case is one where the claimant has to make a conscious decision to join a defendant because there will be a shortfall in the personal injury damages (e.g. a seatbelt case), then one should seek counsel`s advice on whether to join that defendant. Remember, here, you will probably not get a second chance so you have to make the best possible decision. Where a defendant blames a third party in his Defence and or launches third party proceedings against another (something Defendants will themselves think long and hard about following the Court of Appeal decision in Wagenaar v Weekend Travel Ltd t/a Ski Weekend 4), this will usually allow the claimant some degree of costs protection in joining in the additional defendant, if the claimant subsequently wins against the principal defendant who blamed that additional defendant in his Defence and/or issued the third party proceedings. Sometimes, for tactical reasons, one might issue separate proceedings in the second clinical negligence action which might run alongside the personal injury action and which might, at a later stage, be consolidated with the main personal injury action. On occasions, I have made it a provision of the settlement agreement with the personal injury defendant that the costs of those separate proceedings are covered by themselves .The personal injury defendant then gets the benefit of the claimant’s investigations on that front, if the personal injury defendant wishes to contemplate third party proceedings at a later stage.

(iii) Risks
Earlier in this article, I sought to identify potential areas of opportunity to seek to add value to a claimant’s case. At the same time as posing an opportunity, such scenarios may pose a danger. These include:-

The facts may suggest a separate claim, e.g. when an unstable fracture in an incomplete paraplegic or tetraplegic is converted by inappropriate mobilisation into a complete paraplegic or tetraplegic.

Where, for example, it is clear that there has been a breach of duty by, say, an employer, it can be anticipated that medical causation will be fought and, thus, if there is a potential second claim against a GP or hospital defendant, it should be investigated.

Where there is a complex factual scenario where the original accident occurred, it may be essential to “unravel” the causative effect of each incident. It may be that the trauma is not responsible for resulting symptoms and/or that medical treatment is excluded as a causative factor.

Where, for example, an accident or assault arises where there is only limited compensation available, this necessitates consideration of all other options. I would just ‘flag’ two additional points. First, one should be careful, if investigating a subsequent clinical negligence claim, to retrieve a copy of any agreement that might have been concluded by, say, separate personal injury solicitors. It is important to identify what exactly the claimant has been compensated for in the agreement, whether this was concluded prior to the issue of proceedings or afterwards. It may well be that any clinical negligence defendant might be able to argue that the claimant has already concluded their agreement for all their injuries, rather than those limited to the original personal injury.

Secondly, one should not overlook the original ‘accident’. It may be easy to write off the possibility of a claim arising from the original accident where there is a strong claim for clinical negligence. Such an approach may be adopted where, for example, the claimant blames himself for walking out into a road or, indeed, is unable to recollect the true circumstances of the accident. However, one should not exclude the possibility of a claim until the facts have been evaluated using all available sources of information. The whole area of claims involving multiple defendants is a fascinating one in terms of law and practice and the interplay with medical causation. The case examples I have mentioned will I hope assist readers, especially those readers advising Claimants, to appreciate that ‘simple’ personal injury claims may be anything but, and that if they wish to avoid the spectre of professional negligence claims themselves they should be vigilant and seek good counsel.


Acknowledgements: Frank Burton QC ( 12 King’s Bench Walk) and Roger Mallalieu ( 4 New Square)

References:

1. Webb v Barclays Bank [2001] EWCA Civ 1141
2. Brian Piccolo v Larstock Ltd ( t/a Chiltern Flowers) et al [2007] All ER (D) 251 (Jul)
3. Kylie Grimes v David Hawkins and Frimley Park Hospital NHS Foundation Trust [2011] EWHC 2004
4. Wagenaar v Weekend Travel Ltd t/a Ski Weekend [ 2014] EWCA Civ 1105

Guarantor: Nicholas V Todd

 


 

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