Medico Legal News, Issue 14

Defendant and claimant lawyers agree relaxed litigation rules during Covid19 restrictions

Both sides in the personal injury sector have collaborated to create a new set of standard practices for dealing with coronavirus disruption.

The Association of Personal Injury Lawyers (APIL) and Forum of Insurance Lawyers (FOIL) often disagree about issues of policy, but have agreed the new guidance which members will be encouraged to abide by.

Measures which will impact on expert witnesses include accepting evidence by email and agreeing to use some form of video conferencing for medical examination (video diagnosis has already been allowed for soft tissue injuries by MedCo).

Many of the proposals agreed are not covered by civil procedure rules.

Gordon Dalyell, president of APIL, said: 'These are unprecedented times and both APIL and FOIL want to ensure that cases run smoothly across the UK so far as possible. Our members told us their concerns about remote working and how they might adapt to the new way in which the courts are operating. Defendants are also going to have their own difficulties. Both organisations feel it is important to do what they can to help to resolve these issues together.’

Read more: https://www.lawgazette.co.uk/news/defendant-and-claimant-lawyers-agree-relaxed-litigationrules/5103737.article

The Medico-Legal Conference has been postponed from 11th June 2020 and will now take place on 21st October 2020 (subject to ongoing Covid19 restrictions). The venue will still be The Con- gress Centre, 28 Great Russell St, Bloomsbury, London WC1B 3LS.

Please visit the website for details and to book yourself an early bird deal: www.medicolegalconference.com

Please contact craig.kelly@iconicmediasolutions. co.uk. for further information if you are interested in hosting a stand at the event.

Footballer Rees Welsh wins landmark injury claim

The football chairman of Ossett United, based in West Yorkshire, says non-league clubs fear for their futures after a court decision on an injured opponent. They face a £135,000 court order after a Manchester court recently found in favour of a semi-professional player who suffered a broken ankle playing for Radcliffe Borough in 2015.

In a statement, Ossett said the club’s insurance policy does not protect them from damages or legal fees in the case. It said not only does the potential losses put the entire club in jeopardy but also opens the floodgates for all injured sports participants to sue and win damages from the person who injured them.

Ossett chairman Phil Smith said: ‘I urge all sports clubs to check their insurance policies immediately, however, that will only protect future events, not the ones in the past like the one that now threatens our club.’

The club says its only option may be to sell the ground and has started a Gofundme fundraising campaign.

Clubs or players being sued for injuries suffered on the pitch has been rare. One successful claimant was former Manchester United youth player Ben Collett who was awarded more than £4.3m in 2008 after a tackle which ended his career.

Lady Justice Simler has granted Dr Chris Day leave to appeal the settlement in his whistleblowing case against Lewisham and Greenwich NHS Trust and Health Education England (HEE)

In 2013 Dr Chris Day was training in Emergency Medicine and was placed by HEE in the ICU of Queen Elizabeth Hospital Woolwich, where a single junior doctor, with no intubation training, was expected to be responsible for up to 18 ICU patients on a night shift. When he raised a concern that this was unsafe, it went unheeded on the grounds that the system had worked well that way for years. In November 2013 core standards published for ICUs stated that there should be no more than 8 patients per doctor with immediate access to an anaesthetist skilled in advanced airway techniques.

Later that year 2 patients died on ICUs with non- aesthetic trained junior doctors and these were flagged as serious untoward incidents (SUIs). Safetyinvestigations still concluded that night-time ICU staffing was acceptable. In 2018 the CQC report on the QEH was damning with the critical care and emergency departments still requiring improvement.

Dr Day’s career path to become a consultant was disrupted by his refusal to keep his head down and his determination to fight for whistleblowing protection for fellow junior doctors. He now works as an A&E locum and recently said, “The U.K has to fight Covid19 with half the Intensive Care beds per capita of Italy. My crime in 2014 in my whistleblowing case was trying to secure more ICU resources for South East London. Instead of spending 5 years and £700k fighting /smearing me and damaging whistleblowing law they could have fixed the problem.”

Read more: http://54000doctors.org/index.html

Online Personal Injury portal to go live

From late spring lawyers will be able to use and test the online system for claims involving one claimant and one defendant in order to submit a claim, pay the court fee, upload documents and receive notification of the issue date digitally. The case will then be transferred to a local court to continue on paper, as per the current process, but eventually most of the process will become digital.

The system dovetails with the RTA claims portal, now set to go live in August after the April deadline was recently extended, for claims worth up to £5,000. The MoJ has announced that litigants in person (LiPs) will not now be offered free mediation, where liability has been denied, in these cases. Claimants who are represented will be able to issue a court claim through the online PI service if they need to, having progressed first through the portal.

Read more: https://www.justice.gov.uk/courts/procedure-rules/ civil/pdf/low-value-personal-injury-sceheme/rta1-claim-notification-form.pdf

Civil Procedure Rule Changes for Expert Witnesses from 6 April 2020

The 113th Civil Procedure Rule Update makes changes to various Practice Directions, but the main change to note for expert witnesses is the wording of the Statements of Truth.

From 6 April 2020, the following words need to be added to the existing statement of truth:
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“I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth”.

This applies to all statements of truth except on a costs budget, therefore, it applies to an expert’s report.

Additionally, the statement of truth must be in the witness’s own language and it must now be dated on the day it was signed.

Because the statement of truth may well be signed several weeks after the particulars, witness statement, expert report etc have been drafted, consideration needs to be given to making the changes now.

Read more: https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/update/cpr-113th-pd-update.pdf

Court of Appeal judgment in the “holiday sickness” case of Jet2 Holidays Limited v Hughes [2019] EWCA Civ 1858.

The Court of Appeal has held that a witness statement containing false statements made before the issue of proceedings can give rise to contempt of court and can be susceptible to an application for committal for contempt, despite no claim ever being issued.

The unanimous decision of Sir Terence Etherton MR, Hamblen LJ and Flaux LJ was to allow the appeal of Jet2 against the first instance decision of HHJ Owen QC.

The decision is of interest to all personal injury practitioners as well as those who specialise in travel sickness claims, and serves as a reminder of the gravity of statements backed by signed statements of truth in line with CPR 22.1.1(c), 32.4(2) and 32.8. Rather than drawing a distinction between the Pre-Action Protocols and the Civil Procedure Rules themselves, the Court has instead considered the PAPs to be closely integrated into the litigation framework, such that alleged contempt could be committed within witness statements made without any claim ever being issued.

Read more: https://www.casemine.com/judgement/uk/5dcce4372c94e061c29a21a3

Menstrual cup misuse can cause pelvic organ prolapse

Incorrect use of menstrual cups could be resulting in some women suffering pelvic organ prolapse.
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The Chartered Society of Physiotherapy wants some manufacturers to include better safety advice.

Menstrual cups fit into the vagina and collect period blood. They are not currently regulated in the UK, and there is no safety testing.

The government said the NHS was improving pelvic health clinic access.
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