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APIL Clinical Negligence

FROM £67.50

This practical work focuses on the key and developing areas of clinical negligence

  • Published: November 2014
  • Edition: 2nd
  • Format: Paperback / eBook (ePDF) / eBook (ePub) / Online
  • ISBN: 978 1 84661 822 2
  • Authors/Editors: Paul Balen
  • Category: PI and Civil Litigation Law
APIL Clinical Negligence podcastListen to Paul Balen explain how this guide will help the experienced and inexperienced practitioner deal with clinical negligence cases.

APIL Clinical Negligence focuses on the key and developing areas of clinical negligence including medical product claims. It combines know-how about conducting these claims with the latest thinking on new and developing areas of practice.

 This new edition has been substantially revised to take account of:
  • New Coroners Rules 2013
  • Funding post-Jackson
  • Causation – recent case-law such as AB & Others v MoD
  • Medical Products - O'Byrne v Aventis Pasteur MSD
  • Case Management – new standard directions for clinical negligence
  • Changes to CPR affecting chapters on Experts, Part 36 and Damages
The Appendices include a glossary of medical abbreviations, suggested Model Directions in Clinical Negligence cases, and a comprehensive list of useful contact addresses.

 The result is a highly practical work, offering detailed guidance and expert legal analysis that will be essential reading for all active and potential clinical negligence lawyers and should be of interest to those medical practitioners interested in the role of the expert witness in these cases.

10% discount for APIL Members, to take advantage of this offer please call Customer Services on +44 (0)117 917 5085.
  • Dealing with trauma victims
  • Medical records
  • Complaints
  • Funding
  • Inquests
  • Medico-legal ethics
  • Duty of care
  • Causation
  • Limitation
  • Liability for Defective medical products
  • Case Management
  • Experts
  • Experts’ meetings
  • Instructing experts
  • Offers to settle
  • Mediation and ADR
  • Care Regimes
  • Damages
  • Medical Glossary
"this book is ... like having an expert adviser methodically and calmly leading you through the various stages of case management, whether an interview, a meeting, or the complex task of obtaining, sorting and checking documents ... a source of time-saving information for the busy practitioner ... an essential purchase."
Click here for the full review 
Watch the full review on YouTube or Flickr
Phillip Taylor and Elizabeth Taylor of Richmond Green Chambers
Jalil Asif
Paul Balen
David Body
Dr Tom Boyd
Simon Cridland
Rob Dickason
Claire Fazan
Christopher Gibson QC
Philip Havers QC
Adrian Hopkins QC
Jeremy Hyam
John McQuater
David Marshall
Jon Nicholson
Aaron Rathmell
Rosamund Rhodes-Kemp
Suzanne Staunton

In this chapter Paul Balen explores how to use the inquest system to help bereaved relatives understand how their loved one died and to garner evidence to advise them on the merits of a clinical negligence claim.

Relatives of deceased patients are unlikely to understand the mechanics and limitations of the inquest system unless you can explain some of the historical background to them. Preparing them for the ordeal of the inquiry (and make no mistake about it an inquest can be an ordeal) is an important part of a clinical negligence lawyer’s armoury of skills.

Although historically the courts have ruled that inquests are not the appropriate forum at which to consider questions of clinical negligence, the advent of the Human Rights Act has, as we will see, given greater impetus to the use of the inquest as the state’s method of providing an investigation following a sudden death during medical treatment.

A coroner’s inquest can be an extremely useful part of the evidence gathering exercise prior to presentation of a claim. It is however a mediaeval system struggling to exist in the 21st century world and as a result all parties agreed that the system was ripe for reform. This culminated in the passing of the Coroners and Justice Act 2009 and its associated Rules and Regulations which apply to all uncompleted and new coroner’s investigations from 23 July 2013.However these reforms left many features of the coronial process untouched.

5.1.1 History
The office of coroner dates back to 1194 when officers were appointed by King Richard I to help him administer justice and raise money. These officers were known as custos placitoreum coronae or custodians of the pleas of the Crown.Their names became abbreviated to coroners. A coroner was elected by a meeting of freemen of the county and was an independent officer, the status which carries down to the present day.

In the Middle Ages the coroner was a revenue collector for the Crown, one of whose most important duties was the investigation of death. Deaths were a profitable source of revenue for the Crown.

As a judicial officer, the coroner administered justice and raised revenues for the Crown by fining criminal offenders. It was also the coroner who supervised the practice of trial by ordeal. If a suspected criminal was unharmed then he was innocent. The coroner would record the event and preserve forfeited property for the Crown.

The coroner’s role evolved into an inquiry and evidence taking position originally principally involved in recording criminal events. From the sixteenth century onwards he was almost exclusively concerned with the investigation of sudden death.

In 1836, the coroner became responsible for registering all deaths and for arranging medical witnesses to examine bodies in cases of sudden death.

5.1.2 Statute
Coroners Acts were passed between 1897 and 1980 setting out the rules and regulations governing the coroner’s jurisdiction. These were eventuallyconsolidated in the 1988 Coroners Act. The Coroners Rules of 1984 remained unaffected by the Consolidation Act until the Coroners and Justice Act 2009 when they were replaced in 2013 by the Coroners (Investigations) Regulations 2013; the Coroners (Inquests) Rules 2013; and the Coroners Allowances, Fees and Expenses Regulations 2013. These are set out in the Appendix and are essential reading for all those advising a client on the inquest process.

The Coroners Rules set out a framework for inquest case management but frequent reference also needs to be made to the Regulations and occasionally the Act. This new regime for the first time recognised the holding of pre-inquests hearings; advance disclosure and specified target time limits for the completion of the investigation. The bereaved relatives are now placed at the centre of the investigation and have to be informed of, and given reasons for, every step or decision taken by the coroner. Verdicts are replaced with determinations or conclusions and a new standard form is completed at the end of the inquest to replace the old inquisition.

A chief coroner, who must be a judge of the High Court or a circuit judge under the age of 70, now coordinates and supervises the coronial system aiming to improve the quality of performance and to standardise procedure and training. The original intention to give interested parties a right of appeal to the chief coroner, although contained in the Act, have not, however, been implemented. The chief coroner may request information from a coroner in relation to an inquest and the coroner concerned must respond, so it may well be worthwhile making representations to the chief coroner if communication with a coroner about a particular inquest falls on deaf ears. A system of medical examiners to assist in vetting death certificates is to be implemented shortly.

5.1.3 Office
Nowadays the coroner still retains his independence as an independent judicial officer under the Crown appointed and paid for the by the local council or group of councils. To qualify for the office of coroner in the future the candidate must be a qualified lawyer with five years or more experience.

Section 1(2) of the Act sets out the jurisdiction for the holding by a coroner of an inquest. The coroner has compulsory jurisdiction if there is reasonable cause to suspect that the deceased died:

(a) a violent or unnatural death
(b) a sudden death whose cause is unknown
(c) in custody or otherwise in state detention.

A death which appears to be due to natural causes can still be one in which the coroner’s jurisdiction is invoked. In Touche an unnatural death was described as ‘where it was wholly unexpected and it would not have occurred but for some culpable human failing’ where death resulting from inadequate monitoring of the deceased’s blood pressure after giving birth was an unnatural death for the purposes of s 8(1)(a). ‘An inquest should be held whenever a wholly unexpected death, albeit from natural causes, resulted from some culpable human failure, or, more strictly, whenever the coroner had reasonable grounds to suspect that such was the case.’

In other words a death may be unnatural for the purposes of the coroner’s jurisdiction even though the determination or conclusion whether medical, legal or both may well be one of natural causes. Neglect or human failing may well be an issue in such cases as indeed might the unexpectedness of the death. To persuade a coroner that he has jurisdiction requires ‘reasonable cause’ to be demonstrated but that refers to the suspicious circumstances of the death and not proof of a confirmed causative link between any act complained of and the death.

Somewhat oddly there is still currently no statutory duty on anyone to report a death to the coroner. There is, however, a common law duty which applies to everyone. This means that anyone can report a death to the coroner. If instructed by a family whose relative is dying or has died in circumstances which it is believed warrant investigation no coroner will object to being contacted and warned of the death or impending death. This may indeed spur the coroner to appoint a truly independent pathologist or indeed to call for more information to be provided to the pathologist than would otherwise be the case.

In the medico-legal context deaths will be reported to the coroner if a doctor cannot give a cause of death, the death occurred unexpectedly or if the death occurred after an operation.

When a case is first reported to a coroner more usually by a GP or a hospital doctor the first decision for the coroner is whether to investigate the death at all. If he decides that one of the criteria for his involvement is invoked he will first of all order a post-mortem.

When a coroner accepts jurisdiction over a body he can insist on a post-mortem being carried out. Relatives may need this to be explained to them as they may not wish the body to be ‘cut up’ but the coroner has the absolute power if he has decided that the death comes within his jurisdiction. These days, however, coroners and pathologists should be sensitive to the family’s wishes and will aim to carry out their investigations with a minimum of intervention and with as much respect for relatives’ views and religious and cultural sensitivities as the law and their professional judgment allows them.

The coroner has a duty to inform any person who has notified him of his or her interest that there is to be a post-mortem. Interested parties will include relatives; the deceased’s regular medical practitioner and hospital doctor; an enforcing panel or government department in any relevant case and the Chief of Police. Any of these interested parties can be represented at the post-mortem but (apart from the Chief Constable who can be represented by a police officer) only by a qualified medical practitioner.

That medical practitioner must not interfere in the post-mortem. He or she is there merely as an observer. Any other person may attend with the permission of the coroner but a person complained of giving improper or negligent treatment cannot attend the post-mortem personally but can be represented. The coroner’s control over a body arises as soon as he decides to hold an inquest and lasts at common law until the inquest itself is determined. But the body must be released as soon as practicable and if it cannot be released within 28 days the next of kin must be notified and the reason for the delay explained to them. The body must be released when it is no longer required for the investigation.

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