Patient fault and contributory negligence in clinical negligence

January 12, 2023

By Matthew Stockwell

Background

One of my first clinical negligence cases involved a young man who had driven carelessly into a wall whilst showing off in a car. Administrative error led to delay in reporting and review of medical imaging, which in turn led to delay in treatment of the fractured forearm he suffered in the collision. Proceedings were commenced and, whilst breach of duty and causation were admitted, a plea of contributory negligence was raised, the first such allegation I had seen.

It took a considerable amount of time, not to mentioned additional cost, for the defendant to grudgingly accept that my client was 100% responsible for his self-inflicted injury, but it was 100% responsible for the additional suffering and sub-optimal recovery he had made by reason of the delay in his treatment. Contributory negligence had no application here.

Since that early experience, I have seen sporadic attempts to raise contributory negligence allegations in clinical negligence cases. Enthusiasm for such arguments appears to wax and wane. This article is intended as an aid memoir of the relevant principles and cases, and a practical guide for when you next encounter one.

Breach, Causation and Contributory Negligence – intertwined

Professional experience and the reported cases (considered below) suggest issues of breach, causation and contributory negligence are invariably intertwined. The advisor’s role is to carefully unpick the strands. Whilst there is a factual and legal overlap, the issues need to be considered separately on their individual merits. When undertaking this exercise, it is useful to go back to first principles:

‘Joint’ & ‘Several’ liability

Where damage is caused as the result of torts committed by two or more defendants, these may be: (1) joint tortfeasors; (2) several tortfeasors causing the same damage; or (3) several tortfeasors causing different damage.

Defendants are said to be ‘joint tortfeasors’ where the cause of action, damage and evidence required in support is the same in each case. Joint tortfeasors may be working jointly towards a common purpose. Some legal relationships give rise to joint liability (employment, partnership and agency etc). If a joint or several tortfeasor who has caused the same damage is sued alone, that person is liable for the whole damage, even if only contributing to a small degree. In the case of several tortfeasors causing different damage, each is liable only for the discrete damage which he or she has caused.

Where two or more defendants cause different damage to the same claimant, the causes of action against each tortfeasor are entirely distinct from one another and the claimant can recover from each tortfeasor only that part of his or her damage for which the tortfeasor is responsible (Holtby v Brigham & Cowan (Hull) Ltd).

‘Divisible’ or ‘Indivisible’ injury

Indivisible’ injury is harm of the same kind caused by an unbroken chain. Any tortfeasor will be liable to compensate for all the damage caused. A ‘divisible’ injury is one where the type of harm is discrete, or the extent of the tortfeasors’ contribution can be determined (e.g. in NIHL). In clinical negligence, a claim may arise where an injury or illness (or its effects or consequences) have been made worse by negligence. There are cases where the tort or the harm are coextensive (e.g. suicide prevention claims).

Supervening Events

Often ‘contributory negligence’ and ‘chain of causation’ arguments are rolled-up together, but how do they differ? A novus actus interveniens or supervening event is (a) an intervening act or occurrence, (b) which may or may not be tortious that (c) breaks the chain of causation, i.e. brings the liability of the first or primary defendant to an end.

In the leading case of Webb v Barclays Bank plc [2001] EWCA Civ 1141, C had mobility problems associated with polio. C tripped and fell at work suffering injury to the left knee and then sued her employer. Unfortunately for C, she was then negligently advised to undergo an above knee amputation by an orthopaedic surgeon, who was joined as second defendant to the claim. The Court held that the latter’s negligence did not ‘eclipse the original wrong-doing’ and liability was apportioned between the employer and the surgeon.

The Court of Appeal expressly approved the editorial in Clerk & Lindsell at [55]: “Moreover, it is submitted that only medical treatment so grossly negligent as to be a completely inappropriate response to the injury inflicted by the defendant should operate to break the chain of causation” (18th ed., 2-55). Logically then, only “a completely inappropriate response” by a patient would operate to break the chain of causation in a clinical negligence claim.

Most cases will, instead, be concerned with whether apportionment is appropriate with reference to general principles. For example, two or more parties may be responsible for an accident giving rise to a need for treatment. C may receive negligent treatment from one or more party. Negligent treatment may worsen C’s outcome from the injuries sustained or cause discreet injury (e.g. a surgical error or hypoxic event). C’s own actions (e.g. failing to seek prompt treatment or to follow advice) may prolong recovery or worsen the outcome. If you can separate out responsibility and outcome in such cases you do. If not, you are more likely to be looking at apportionment or contributory negligence as appropriate.

Patient Fault (or shared responsibility)

This is a hugely important and far reaching issue in healthcare. One study suggests that the relative contribution made to our health and wellbeing by access to and the quality of healthcare received is only up to 15%, whereas health behaviours or lifestyle factors (40%) and social circumstances and environmental factors (45%) have a much more substantial role (McGinnis et al, 2002).

Background factors commonly arising in clinical negligence claims include: illicit drug use, smoking, alcohol, obesity, inactivity, long term conditions (e.g. diabetes, mental health). Successful medical treatment frequently depends upon cooperation or compliance by patients, and health providers place ever increasing emphasis on engagement, prevention and health surveillance.

Experience would suggest these factors introduce a danger of subconscious or cognitive bias. Every seasoned clinical negligence lawyer will have come across examples where, it might reasonably be inferred, a patient’s lifestyle or comorbidities have influenced the timeliness and standard of care the patient received.

Adverse lifestyle factors (or poor patient compliance) are potentially both a sword and shield. It is a general principle of both medicine and law that you take a patient or person as you find them. The risk profile of a patient may be highly relevant to breach. It will also commonly have implications for causation (for example, the likely ‘but for’ outcome or prognosis of the patient), condition and prognosis (especially future morbidity and life expectancy). Against this background, an obvious question for a Defendant is whether fault arguments are more effectively deployed in a different way.

Contributory Negligence: General Principles

There is no special rule for clinical negligence. The three essential ingredients for any allegation in this context are:

• Was there fault on the part of the patient?
• If so, was this causative of damage; and
• If so, to what extent would it be just and equitable to reduce damages (apportionment).

It is always necessary to prove all three ingredients and the burden of proof remains with the Defendant throughout.

The apportionment is a balancing or comparative exercise between ‘blameworthiness’ v. ‘causal potency’. Likewise, there are three stages:

• Stage 1 (often missed) – consider the relative blameworthiness of defendant and patient.
• Stage 2 – consider the effect that each party’s actions have had on the patient’s outcome.
• Stage 3 – conduct a balancing exercise based on the outcome of Stages 1 and 2.

Relevant factors specific to assessment of contributory negligence in a clinical negligence context include:

• Paternalism and imbalance of relationship (cf. employees, children, pedestrians etc) – these factors tend to militate against findings of responsibility and inform the relative blameworthiness of the parties.
• Bolam / Bolitho – in keeping with employers’ liability claims, the Courts will not readily exculpate defendants for fear of emasculating the standard of care (and patients having to overcome a relatively high hurdle to establish negligence in the first place).
• Patient specific behaviours and characteristics (stoicism, gender, age, education, anxiety etc) – these can operate both ways.
• Principles underpinning access to healthcare and patient fault – the notion that you take your patient as you find them, where appropriate.
• Knowledge and appreciation of harm on the part of the patient – this is key, particularly against a background of inadequate advice.

Clinical Negligence: The Cases

Contributory negligence has been consider in the following judgments. Each case turns on its own facts, they span a period of over three decades in which treatments have changed and the relationship between doctor and patient has evolved, but the following themes can be gleaned:

• Allegations of this nature are relatively rare.
• Judicial disinclination to arguments of this nature is clear.
• Allegations of contributory negligence tend to be combined with arguments over breach of duty and causation.
• Contributory negligence allegations are time consuming and costly to deal with.
• Allegations of this type invariably anger or upset clients (especially in bereavement claims).

Pidgeon v Doncaster Health Authority [2002] Lloyd’s Rep. Med. 130

This case involved a cervical smear test wrongly evaluated in 1988. In 1997, following gynaecological referral, an ovarian carcinoma was discovered. Between 1991 and 1997, C rejected the urgings of her GPs to have further smear tests on seven occasions and ignored two letters from a screening programme. The Judge rejected argument that C’s actions broke the chain of causation. However, damages were reduced for contributory negligence by two thirds, a deduction having been accepted in principle by her representatives. This seems an exceptionally harsh result. C had explained she found the smear test very painful and embarrassing, and that she had already been traumatised by a miscarriage at full term in December 1987. Moreover, the Judge accepted that at no point had a GP explored the reasons for her ongoing reluctance. Notwithstanding, the Judge felt able to substitute his own assessment, in the apparent absence of direct expert evidence on this issue, about her likely embarrassment and anxiety regarding intimate examination.

P (Deceased), Re [2011] EWHC 1266 (QB)

P visited her GP in Jan 1999 with a mass in her breast. No abnormality was detected on referral to a breast clinic. P visited her GP again in Jan 2000 and was again referred to a breast clinic. P was sent two appointments, which she failed to attend and her GP was advised. Unbeknown to anyone, the appointment letters had been sent to the wrong address. P moved house and saw her new GP in Jan 2001, and was then referred to hospital. In the meantime, bone metastases had occurred and P died in 2003. Causation was established in favour of P’s estate. Allegations of contributory negligence were dismissed, having been based on P’s alleged failure to follow up about appointments. In so doing, the Judge described the facts in Pidgeon as “extreme”.

Spencer v Hillingdon Hospital NHS Trust [2015] EWHC 1058 (QB)

C underwent surgery for repair of an inguinal hernia. He subsequently suffered a deep vein thrombosis, followed by a pulmonary emboli on each lung. The Hospital had not advised of this risk and he had not been made aware of the associated signs and symptoms (a good example of the ‘safety netting’ duty). Breach of duty and causation were established. Contributory negligence was alleged on the basis C failed to seek advice in connection with calf pain, which arose a few days later. The Judge held C reasonably attributed his pain to immobility, given surgery to other body parts, temporal delay and having regard to the Hospital’s own advisory failings.

Darnley v Croydon Health Services NHS Trust [2015] EWHC 2301 (QB)

The facts here should need little or no introduction. This is the leading case (following successful appeal to the Supreme Court) establishing that Trusts have a duty to take reasonable care not to provide misleading information (in this case, regarding waiting times), C having left A&E without being seen in ignorance as to the severity of his head injury. Contributory negligence was alleged as a fallback position to the Trust’s primary case that no duty was owed and C’s actions broke chain of causation. This allegation was not dealt with by the Judge given his finding on causation. In the Court of Appeal, the Trust effectively conceded that this allegation stood or fell with its causation argument. As with Spencer above, C’s actions were intertwined with the Trust’s failure.

Sims v MacLennan [2015] EWHC 2739 (QB)

This was another fatal claim involving S who suffered a stroke in 2011. S underwent a private medical examination in 2002, where his blood pressure was raised. There was a factual dispute as to whether the doctor advised S to consult his own GP for follow-up. Breach of duty and causation were disputed. Contributory negligence was alleged on the basis that S’s own GP had advised him to have a BP check in 2007. The case failed on both breach of duty and causation. If the claim had succeeded, the Judge indicated he would have reduced damages by 25%.

Spearman v Royal United Bath Hospitals NHS Foundation Trust [2017] EWHC 3027 (QB)

In this case, the Hospital had breached its duty to take reasonable steps to keep a vulnerable patient reasonably safe whilst on its premises, when he fell from a roof terrace after gaining access to it via an unsecured fire door. The Trust pursued four allegations on contributory negligence. The first three allegations fell away with the Judge’s findings of fact. The fourth allegation, relying on the patient’s own actions in climbing on to the roof terrace, failed owing to his state of mind at the time. The Judge accepted that the law does not “penalise a person for being ill or of unsound mind” and here the duty, breach and patient’s actions were coextensive.

Dalton v Southend University Hospital NHS Foundation Trust [2019] EWHC 832 (QB)

This was another case involving alleged delayed diagnosis and management of breast cancer. Breach of duty and causation were disputed. Contributory negligence was originally pleaded based on C’s alleged failure to seek earlier re-referral, but the allegation was abandoned at trial. Whilst the case failed on breach of duty and causation, the Trust’s original plea of contributory negligence attracted criticism from the Judge, Yip J at [33]:

“I consider that the circumstances in which a finding of contributory negligence can properly be made in a clinical negligence claim will be rare. Certainly, they do not arise here. I imagine that the allegation was a difficult one for Mrs Dalton to read (particularly at a time when the prognosis was less optimistic than it is now). I am not entirely sure that there was a sufficient evidential basis for it to be made. However, I commend Mr Kennedy for not persisting with it and make it clear that I find Mrs Dalton blameless.”

Plant v El-Amir [2020] EWHC 2902 (QB)

This case involved eye surgery performed on a 79-year-old patient, who was partially sighted and whose vision was worse in her left eye. Breach of duty and causation were disputed. The Judge held the surgeon had failed to explain that surgery on C’s right eye would not achieve her aim of reading again and carried a risk of complications, hence liability was established. The Judge rejected various allegations that C had been non-compliant with medication or acted against advice.

Otu v Datta [2022] EWHC 2388 (KB)

This was another fatal claim by the wife of O, who died of colon cancer diagnosed in 2016. There was an admitted breach in failing to arrange a colonoscopy in 2014, but a dispute about whether earlier diagnosis would have altered O’s outcome. Causation was established in favour of O’s estate. In like manner to P (Deceased), Re above, contributory negligence allegations based on O’s alleged failure to follow up about a colonoscopy appointment were dismissed. The Judge held O had reasonably understood the investigation to be precautionary, not urgent or particularly important. The possibility of cancer had not been mentioned to O and administrative responsibility for follow-up had been that of the Defendant alone in all the circumstances.

The Defendant had emphasised that medical treatment is not a matter for the doctor alone and prayed in aid the concept of patient autonomy. A handful of commentators have suggested the latter should weigh more heavily in a post-Montgomery world, inviting more regular consideration of contributory negligence. The logic of this argument is unclear. It appears to conflate the concepts of negligence and informed consent, and it is difficult to identify a single example where Montgomery has or might affect the determination of an allegation of contributory negligence one way or the other.

Practical Considerations

What might practitioners do when considering contributory negligence in a clinical negligence claim? Here are a few pointers:

• Investigate allegations early and thoroughly.
• Chronologies and timelines are key (to assist with the unpicking exercise outlined above).
• Obtain and scrutinise every potential document at the earliest opportunity (as contributory negligence allegations may arise from material that is not directly related to breach of duty and causation).
• Proofing of the client and other witnesses should cover this ground (and involve gentle, but firm challenge of people’s actions and understanding).
• Make sure experts (as to breach of duty, causation and quantum) cover the relevant issues.
• Respond robustly and promptly to contributory negligence allegations.
• Make effective use of Part 36 offers.
• Make sure contributory negligence is reflected in budgeting and case plans.
• Reassure and support clients throughout, anticipating that additional upset is likely.
• If acting for a Defendant, raise allegations sparingly, only in clear cut cases, and think about the wider implications for litigation of a claim (e.g. effect on cooperation, settlement and judicial impression).

There will be cases in which patients reasonably attract criticism for failing to take reasonable care for their own safety, but these cases will be rare and deductions should only be agreed or imposed on a principled and properly evidenced basis.

This article was first published in the AvMA Lawyers Service Newsletter, November 2022