Author Archives: Liz Lennard

Failure to treat kidney stones leads to sepsis and admission to intensive care

In November 2016, Mr K was diagnosed with bilateral renal stones and was advised that due to the size of one in particular, he would require treatment as it was very unlikely to ever pass on its own.

Unfortunately, he was then diagnosed with bladder cancer for which he required surgery which was performed in March 2017.

In November 2018, Mr K consulted his GP with left loin pain which was felt to be related to his renal stones.  The GP chased up treatment of this with urology but unfortunately before this could be actioned, Mr K developed urosepsis as a result of a large stone causing a blockage.  He was admitted to intensive care at hospital where he underwent insertion of a nephrostomy.  Following discharge and after he had recovered from sepsis, he underwent definitive treatment following which he was noted to be stone free.

The hospital accepted that Mr K should have had treatment for his stones as soon as his cancer treatment was complete and this would have successfully treated them before they became troublesome.  He would have therefore avoided the episode of severe left loin pain, urosepsis and acute kidney injury which necessitated emergency admission to hospital.  He required intravenous antibiotics, resuscitation with ITU care and insertion of a nephrostomy.  He subsequently required definitive treatment with a left percutaneous nephrolithotomy, all of which would have been avoided with timely treatment of his renal stones.

Fortunately, as the hospital admitted liability at an early stage, we were able to secure a 5 figure settlement for Mr K quickly.

Kathryn Watson, June 2022

Imprisonment for Claimant dishonest during her clinical negligence claim

In our article “Surveillance and Fundamental Dishonesty” from April 2018, we explained that the Court has power to dismiss the entirety of a claim if it is satisfied, on the balance of probabilities, that the Claimant has been “fundamentally dishonest” in relation to any aspect of the claim.

In addition to this, proceedings for contempt of Court may be brought against a person who makes or causes to be made a false statement in a document prepared in anticipation of or during proceedings and verified by a statement of truth without an honest belief in its truth.  If found guilty of contempt of Court, the Court has the power to impose:

  • Imprisonment, either immediate or suspended, for a maximum of 2 years;
  • A fine, either on its own or in combination with imprisonment;
  • The confiscation of assets;
  • Any other punishment permitted by law.

The recent case of North Bristol NHS Trust v White [2022] EWHC 1313 (QB) heard last month involved a lady who, during her clinical negligence claim, “dishonestly and intentionally made false statements to four experts who were reporting to this Court on her physical condition… those statements were made knowing that they would interfere with the administration of justice by potentially increasing her entitlement to compensation arising from her increased clinical negligence claim.”  The Trust, who reportedly spent in the region of £350,000 as a result of her claim, brought proceedings for contempt of Court.  She was found to be in contempt of Court and sentenced to 6 months immediate imprisonment.

This case highlights that there are serious consequences for Claimants who are knowingly dishonest.  This is not the case for the vast majority of Claimants who are honest and genuine and is no reason not to pursue a clinical negligence claim.  The irony with Claimants found guilty of fundamental dishonesty is that they often have a valid claim and would have received compensation had they simply told the truth.

If you would like to discuss this further or think you may have a claim for medical negligence and would like some advice from one of our solicitors, please contact us on 01642 231110.

Kathryn Watson, June 2022

AvMA Annual Clinical Negligence Conference 2022

Two of our Partners attended the Annual Clinical Negligence Conference which took place in March at The Royal Armouries in Leeds. It is hosted by the charity, Action Against Medical Accidents known as AvMA. The 2 day conference is an opportunity for Solicitors and Barristers who specialise in Medical Negligence law to attend talks given by legal and medical experts dealing with key issues, developments and changes in polices in the field of clinical negligence. All Solicitors in the firm are members of the charity and our Kathryn Watson is a member of their Clinical Negligence Panel. This achievement is a result of detailed assessment of her work and an interview following which she was appointed to the Panel in recognition of her expertise in this area.

The 2-day conference was extremely interesting and we were fortunate enough to experience talks given by leaders in the field of medicine and law. Keeping up to date with recent cases and judgements can only serve to further our specialist knowledge in this area and to enhance the service we can provide to our clients as specialists in medical claims.

You can find more details of AvMA and the work they do to further the rights of patients, promoting patient safety and justice at They have been advising and supporting thousands of people affected by clinical negligence for 40 years and remain committed to improving patient safety, they have been very influential over that time in bringing about changes not only in the healthcare system but also the field of clinical negligence. We hope to continue to support this charity and to attend these conferences for years to come.

Joanne Davies, April 2022

Delay in diagnosis of breast cancer

Most cases we see involving GPs arise out of their failure to refer patients to hospital sooner.  This issue is often compounded when you get seen by the Nurse Practitioner instead.

This happened here.  A lady in her early 50’s found a lump on her breast.  She tried to see her GP but instead got the Practice Nurse.  She was assured it was a benign cyst.  It wasn’t.  By the time she returned and saw the GP and was then referred to hospital, there was a delay of over 6 months in diagnosing the cancer.  Thankfully, it was not too late to save her.  However, her treatment was more severe, and her outlook not as optimistic as if she had been seen sooner.

The case was defended on the basis that even if she had been referred sooner it would have made no difference.  A common tactic.  We sued and shortly before a Trial got an acceptable offer of compensation to settle. We don’t think the Defendants wanted to risk a Judge blaming them.

Hilton Armstrong, March 2022

Avoidable fall in hospital results in death of 81 year old man

B was admitted to hospital with suspected infection.  He had poor mobility following a stroke and only ever walked with a 3 wheeled walker.  He was known to be at high risk of falls, his GP having only referred him to the falls team for assessment earlier that day.  It was also documented that he was confused and forgetful.  Despite all this, he was not provided with any walking aid (his wife had not taken his usual frame into hospital when he was taken in by ambulance as she had previously been told not to as the hospital would provide any equipment needed).

The following day, B was taken to the toilet by a nurse and then left alone.  He attempted to walk back to his bed unaided, fell and fractured his hip which necessitated surgery.  Unfortunately, following this he developed pneumonia and he sadly died 7 days after the fall.

The hospital admitted they breached their duty of care to him by failing to provide him with a walking frame but denied this would have prevented his fall.  They did however accept he would not have died but for the fall.  Whilst we thought this case should have been resolved much earlier, disappointingly, the Defendant stood by their denial of liability and it was necessary to issue Court proceedings and settlement was achieved only a few months before trial.

At the outset, this case looked very straight forward and one we expected to conclude swiftly. However, as a result of the Defendant’s position, we had to pursue this claim through the Court system, relying upon the independent evidence of our nursing expert.  This case goes to show that all clinical negligence cases need to be handled by a specialist solicitor as it is impossible to predict how Defendants will deal with such claims.

If you suspect you or a member of your family has been injured by negligent medical treatment and would like some advice on pursuing a claim for compensation, please telephone us on 01642 231110 to speak to one of our specialist and highly qualified clinical negligence solicitors.

Kathryn Watson – February 2022


Success rates when you sue the NHS – 2021 update

“Comment is free, but facts are sacred” CP Scott 1921.

Each year the NHS publishes its figures on the number of claims it has against it and how many it pays out on.  These paint a picture quite different from the give-a-way comments we sometimes read in the press or hear on the news.  The most recent report shows us:

  • It settled 12,000 claims, paying out on about 7,000 of them. This means 5,000 (40%) were unsuccessful.  These are cases where letters of claim have been sent by solicitors.
  • These figures have hardly changed over the last 6 years, the average is 11,750 claims, with 4,900 unsuccessful (41%).

Hilton Armstrong – January 2022

What to do if you’re not happy with treatment from your GP

When people are not happy with the treatment being provided by their GP, they often contact us for advice.  If the treatment appears to have caused an injury, we look to see if we can get compensation for these injuries by bringing a claim for clinical negligence.  However, prevention is better than cure and we are often contacted by people who are concerned the treatment being provided (or lack thereof) will lead to harm.

Unfortunately, we can only bring a claim after the fact for any compensation that is due.  We are unable to force a doctor to give you the treatment you feel you need.  Understandably, this is frustrating for people who don’t know where to turn.

If you have concerns about the treatment being provided, it may be worthwhile considering the following steps:

  1. If you can, arrange an appointment with your doctor to discuss your concerns. It may be that after talking it through, your doctor agrees to take further action or you now understand better why they don’t think this is necessary.
  2. If you’re still not happy, or the problem is you are unable to get an appointment with your doctor, you can make a complaint to the practice manager of the surgery. Whilst you can do this verbally, we suggest it is better to send a letter of complaint so aspects can’t be forgotten/misunderstood.  The practice manager will then initiate an investigation into your concerns and provide you with their response.
  3. If you do not feel comfortable complaining to the practice, you can make a complaint to NHS England who will investigate the complaint and provide you with their conclusions regarding the treatment you have received.
  4. If the relationship between you and your doctor has broken down, you can look to register with another GP practice.

We are always happy to offer our advice if you have concerns regarding treatment from any medical professional.  If you would like to speak to one of our solicitors, please call us on 01642 231110.

Kathryn Watson, September 2021

Delay in Diagnosing Gall Bladder Cancer

This is another sad case where an avoidable error started a chain of events that led to a tragic conclusion.

Simon was 56 years of age when he had his gall bladder removed.  As is usual, this was then sent to the Pathology labs to check if there was any evidence of cancer.  He returned to see the Consultant a few weeks later and was told that the operation had been a success; he had been given the ‘all clear’ and so could return to work.  Unfortunately, as later transpired the Consultant had read the pathology report wrongly – he should have told Simon that there was evidence of cancer in the removed organ and immediately referred him to a specialist for extensive surgery.

Two months before his death Simon suffered severe abdominal pains and investigations were undertaken.  However, it wasn’t until a month before his death that the full details of the Pathologists report were realised.  By that time Simon was very poorly and his condition was inoperable.  He died 7 months after being given the ‘all clear’.

The hospital could not avoid admitting that the Pathologists report had been “incorrectly interpreted” by the Consultant.  However, they defended the claim on the basis that even if they had acted immediately, it would have been too late to operate – they were saying Simon would have died anyway.  This was most distressing to the family.

Luckily, the Surgeon we retained for the claim, Mr Poston from Liverpool, was a national expert on gall bladder cancer and could say with real authority that had Simon been operated on he would have survived with a normal life expectancy.  The claim settled a few days before the trial was due to start.

Hilton Armstrong – July 2021

So farewell then Legal Aid

When we started this Firm in 1992, over 95% of the claims we handled had the benefit of Legal Aid.  The remaining 5% were private paying clients.  Back then there weren’t any ‘no win no fee’ agreements (CFA’s) – they didn’t come in until 1998.

Slowly and over time, successive Governments have reduced the eligibility for legal aid so that now only children injured at birth (or very shortly after) are entitled to apply for it.  Everybody else is left either paying the legal fees themselves or much more commonly getting their solicitor to act on a CFA.

From 95% in 1992 we are now down to about 1%.  Most cases nowadays are funded by CFA’s.  This is a national trend as well.  Figures published by the Government show that in 2019 only 118 cases out of about 11,000 of the claims lodged had legal aid.  This is just under 1%.  The rest were mainly on CFA’s

Legal Aid did work, it enabled access to justice for those that could not afford it.  However, with the advent of CFA’s and the lack of political will to properly fund legal aid, its decline was inevitable.  This trend is not going to reverse.

Hilton Armstrong – June 2021

Mistake in hospital records results in loss of driving licence and job

M, an ordinarily fit and healthy 49 year old, was admitted to hospital with chest pain and vomiting.  During his admission, he was asked about his usual alcohol consumption and he estimated this to be about 8 to 9 units a week.  However, when this was electronically transcribed, it was mistakenly recorded as 89 units a week.  This erroneous information was used to form a diagnosis of alcohol induced pancreatitis and was sent to M’s GP in the discharge summary.

M is a heavy lifting specialist and shortly after his discharge from hospital, he attended his GP for a medical review in order to renew his HGV licence.  His GP noted the information from the hospital about M’s alleged alcohol abuse and reported this to the DVLA.  The DVLA then revoked M’s driving and HGV licences which forced him to hand in his notice at his job where he could not work without a valid HGV licence.

M’s treating doctors at the hospital were helpful in investigating what had happened.  They discovered the mistake and were also of the view M had never had pancreatitis but instead was suffering from gallstones.  They confirmed that:

  • His average consumption was within the normal acceptable levels.
  • Alcohol had not played a part in the development of his condition.
  • Blood tests and scans did not indicate he had consumed alcohol on a chronic and regular basis for a long period of time.
  • There was no evidence that he was consuming excessive amounts of alcohol.

In addition to this, M’s manager confirmed to the DVLA that due to M’s role at work, he had to undertake a breathalyser at the start of every shift which he had always passed.  Despite this, it was 10 months before the DVLA reinstated M’s driving licence (but subject to a medical review and not his HGV licence).

The effect on M was sizeable.  He was no longer able to work as a mobile crane driver and had to find alternative employment.  He suffered from symptoms of chronic depression and anxiety as a result of the loss of his licence and its traumatic impact on his life for which our psychology expert recommended a course of Cognitive Behavioural Therapy.

Fortunately we were able to resolve the claim relatively quickly for M which settled for a 5 figure sum.

This case shows that mistakes by medical professionals can affect people in a variety of ways.  If you have been injured in any way by medical treatment, please get in touch for some free, no obligation advice by one of our specialist solicitors.

Kathryn Watson – May 2021

Recurrent miscarriages caused by APS

Miss H suffered a miscarriage when she was 15 weeks pregnant in 2011.  On examination of the baby at her local hospital there was no evidence of any congenital anomaly or infection.  No further tests or investigations were carried out and no cause for the miscarriage was identified.  Miss H and her partner continued to try and conceive naturally but without success and in 2014 she underwent IUI, a type of fertility treatment, which was provided by the NHS at another NHS Trust.  This treatment led to a positive pregnancy but sadly this ended in an early miscarriage.

To continue with fertility treatment Miss H was advised that she would need to pay privately and so she paid over £3,000 for two further cycles of IUI.  The second treatment again was successful but ended in miscarriage and the third treatment failed.  Shortly afterwards Miss H and her partner ‘s relationship broke down.

In 2018 Miss H discovered she was pregnant again but tragically this also ended in her miscarrying a fourth baby.  However, this time she was referred to a Miscarriage Clinic.  Various blood tests were performed which confirmed that she had a positive antibody, Anti-Beta-2 glycoprotein-l (aB2GPl), for Antiphospholipid Syndrome (APS), an autoimmune condition of hypercoagulation which is a treatable cause of recurrent miscarriage.  To prove the diagnosis, Miss H had a further blood test taken some 12 weeks or so later and again the result was positive.  It was confirmed that APS may be the cause of her repeated miscarriages and so in any future pregnancies she would need blood thinning treatment in the form of heparin and aspirin.

Miss H asked us to investigate the standard of care she had received from two NHS Trusts.  With the assistance of an expert in Obstetrics and Fertility medicine we confirmed that all women with recurrent first-trimester miscarriage and all women with one or more second trimester miscarriage should be screened before pregnancy for antiphospholipid antibodies.  Therefore, we could say that Miss H should have been tested and diagnosed with APS in 2011 and before she was offered fertility treatment.  As a result of these breaches of duty, she suffered 3 heart breaking miscarriages causing psychological injury and she endured and incurred the cost of invasive and uncomfortable fertility treatment which was always bound to fail.

Formal Letters of Claim were sent to both Trusts involved in Miss H’s care.  The Trust responsible for the fertility treatment denied that the treatment they had provided was negligent.  We disagreed with this view and the claim was ultimately settled in Miss H’s favour on behalf of both Trusts and she recovered a five figure settlement.

In this case there were multiple opportunities to diagnose Miss H’s condition over a number of years but this was not a bar to her bringing a claim as she sought our assistance as soon as she learned of her diagnosis.

Ashleigh Holt – May 2021

Accreditation with Law Society and AvMA

For many years, Hilton Armstrong’s experience in handling clinical negligence claims has been recognised by accreditation with The Law Society and AvMA.

We are very pleased that Joanne Davies has now also been accredited by the Law Society and is now a member of their Clinical Negligence Accreditation.  This accreditation is a recognised quality standard for practitioners representing claimants in clinical negligence matters.  Joanne became accredited on the basis of a detailed portfolio of her recent work and the accreditation will last for 3 years.

Following review of her recent work and a lengthy interview, Kathryn Watson is now a member of AvMA’s Specialist Clinical Negligence Panel.  AvMA is a charity for patient safety and justice and their panel “has come to represent an essential quality mark for those clinical negligence practitioners who place clients at the centre of their practice.”  Her accreditation will last for 5 years.

We are pleased that the hard work and expertise of our solicitors has been recognised by the Law Society and AvMA as we continue to strive to provide the best service possible to our clients.

Kathryn Watson – April 2021

Debilitating neurological condition allowed to deteriorate after medical team disagrees on treatment

Mr G was admitted to hospital with weakness in both of his arms and legs in November 2016.  A stroke was ruled out but an MRI scan showed that in addition to some arthritis in his hips, Mr G’s cervical cord in his spine was being squeezed and compressed due to ageing and wear and tear.  The only treatment as surgery.  The only treatment available was surgery.  This is complex and risk surgery but without it, Mr G was told that his symptoms would progress and he so agreed to have the operation.

Over the next three weeks, Mr G remained an inpatient in hospital and the same surgeon would come to discuss the spinal decompression surgery with him almost daily.  Mr G was led to believe that the operation could happened at any time and they were just waiting for a suitable date.  However, unbeknown to Mr G, the team who were making the decision as to whether to offer Mr G surgery were in dispute because they were not all in agreement as to the cause of Mr G’s symptoms.

One senior Surgeon in particular thought the cause of Mr G’s symptoms was pain caused by arthritis in his left hip.  It was his view that if he underwent a hip replacement operation, Mr G would be able to mobilise again.  Decompression surgery would not help with this.

Ultimately, Mr G had hip surgery but when he was reviewed afterwards his neurological position was found to be the same.  He was still unable to mobilise but he was now also without enough power in his arms to help with his own transfers.  When he was discharged from hospital, in addition to a wheelchair, he also needed an electric stand aid and a hoist.

Over the next few weeks, Mr G had less and less function in his arms.  He became unable to sit in a chair without assistance and he was losing the ability to feed himself and do other every day tasks with his arms and hands.  Arrangements were made for him to have a further MRI scan which was not materially different to the previous scan.  Further discussions took place between the Surgeons and this time the dissenting Surgeon was over-ruled.  Mr G’s surgery was eventually carried out after a 3 month delay in which he had lost further function in his upper limbs which could not be recovered.

Mr G did a complaint to the hospital about the delay in his treatment.  The response to the complaint suggested that the delay was caused by Mr G’s reluctance to have the necessary surgery.  Mr G then instructed us to investigate his treatment further.  When we undertook a review of his medical records, they revealed the true nature of the delay in his operation was due to the disagreement between the surgeons on how to treat Mr G when Mr G had already consented to the spinal surgery very early on.

Investigations were commenced with a specialist and allegations of an unnecessary delay were put to the Hospital Trust.  The Trust admitted that the hospital had breached their duty of care to Mr G in failing to operate on his spine earlier and this had allowed his condition to deteriorate unnecessarily.

Tragically Mr G passed away from an unrelated condition before his claim could be settled.  His wife inherited his right to sue for the pain, suffering and loss of amenity he had experienced and we were able to negotiate a significant 5 figure settlement.

It is worth saying that it is not always unreasonable or negligent for medical professionals to have differences of opinion but on this occasion when time was of the essence and earlier surgery would have afforded Mr G a more comfortable life, it was unacceptable not to treat the more severe and threatening condition first.

Failures in medical treatment or lack of treatment can cause existing injuries or conditions to worsen and injured patients are entitled to be compensated for this.  If you would like to discuss any type of injury caused by medical treatment please get in touch with us for free specialist advice.

Ashleigh Holt – March 2021

Premature death of a young Mother

Gail was only 38 when she contracted chicken pox from her 4-year-old daughter.  She began to feel unwell over the next few days and so her Husband telephoned NHS 111.  It was a Saturday afternoon, and she was advised to go to an out of hours GP service about 20 minutes away.

At the time Gail had a sore throat, was unable to keep any food or water down and had a temperature of over 40 degrees centigrade.  The Nurse Practitioner thought she was suffering from a bad case of chickenpox and that she needed to go home and “tough it out” and let it “ride its course” and that “all would be fine”.  Gail went home.

She died on Sunday evening.

Chicken pox in adults is extremely dangerous and usually requires immediate treatment in hospital before sepsis sets in and the vital organs shut down.  All GP’s are aware of its seriousness and have protocols in place to deal with such occurrences.  Unfortunately, in this case the Nurse Practitioner although making a correct diagnosis did not follow the protocol that was in place – she should have urgently referred Gail to hospital.  Had that happened she would have survived.

The out of hours service did not admit fault until after proceedings were started.  They did not offer compensation until a Trial date was fixed.  This is how some Defendants work.

Gail had a good job and was the main breadwinner in the Family with her husband Geoff staying at home to look after their young daughter.   The case settled a few weeks before Trial.  The settlement will go some way to help the Family pay for what is needed, but of course it is no compensation for the loss of a Mother and Wife.

Hilton Armstrong – March 2021

Charity Bike Ride – C2C2C

I have been meaning to do something ‘worthwhile’ for charity other than donate, which to date it’s all I have done.

So, a dozen cyclists from Cleveland Wheelers decided to do the C2C2C (East coast to West and back) on the shortest day or thereabouts, to raise funds for a bowel cancer charity.   It’s about 200 miles and we did it on Saturday 13th December setting off at 5am from Saltburn by the Sea going over to Morecombe on the West coast and returning, getting back to Saltburn at about 8am.

The weather was not too good for most of the ride and without a support vehicle with our food, dry clothes and to help with a couple of mechanicals (including a spare wheel for someone’s broken spoke) it would have been intolerable!

Bowel cancer is close to my heart.  My Brother is currently battling it, very bravely.  We have raised about £13,000 which far exceeded our expectations and thank you to all who donated.  Below is the link which has some nice pictures of the training and actual ride and explains why we chose to do it in December rather than in the sensible Summer months.  Andy is the man who started the challenge and set up the page.  His Sister is in the same position as my Brother:


Hilton Armstrong – February 2021

Hospital admits its staff did not have “requisite experience or competence” to treat patient

R was pregnant when she attended hospital at 17 weeks gestation.  Due to complications, she was advised to terminate the pregnancy.

She was initially offered medical termination of pregnancy which was unsuccessful.  She then underwent 3 different attempts to try and terminate the pregnancy, none of which worked.  Finally, she was taken for surgery during which there was massive bleeding and she required a hysterectomy rendering her infertile.

Our expert was hugely critical of the treatment provided in that:

1.The medication given to bring about medical termination of pregnancy was half the recommended dose so wasn’t going to work.

2. 2 of the other methods used are known to be ineffective and can cause other problems.

3. She should have been transferred to a specialist unit as the staff in question did not have the necessary expertise.

4. The surgeon did not have the requisite experience to perform the procedure required.

Whilst the claim looked strong on breach of duty, our expert thought causation was difficult as a hysterectomy may have been required in any event.  However, he was of the view that, on the balance of probabilities (the legal test to establish causation), this would have been avoided.

Breach of duty was admitted but causation was denied.  However, the Defendant was keen to settle, presumably in light of the catalogue of errors in R’s treatment.  The claim settled, not only for the physical injuries as a result of the deficiencies in treatment, but also the psychological effect this incident had on her.

Kathryn Watson – January 2021

Public support for Clinical Negligence Claims during Covid-19

At the beginning of the outbreak of Covid-19 there were calls by some medical defence organisations for doctors not to face liability for negligence occurring during the pandemic.  This approach has been adopted by some States in the USA however it has not garnered much endorsement and in response to this, the Association of Personal Injury Lawyers (APIL) commissioned YouGov to undertake research on the topic of Covid and clinical negligence claims.

The results confirmed that there is strong public support for the principle that those injured by the NHS should be compensated by the NHS and that the standard of safety should not change.  In fact, the level of public support for compensation has increased and few support the proposal that compensation should not be available during the pandemic.

The most recent information from one particular defence union for doctors and GPs (not including hospitals) is that they have received over 2,500 complaints and notifications of adverse incidents.  Some of these have been accelerated to the GMC to investigate.

Unfortunately unacceptable and substandard treatment is still occurring irrespective of the pandemic and any patient injured as a result of such treatment should be appropriately compensated.  Claims are continuing to be handled and commenced and we would advise anyone contemplating bringing a claim not to delay contacting a specialist solicitor for advice.

Ashleigh Holt – January 2021

Another High Court trial, another win for the Claimant

Clinical negligence claims rarely go to trial for a judge to determine the outcome.  The benefit of the length of these claims is that there is plenty of opportunity for the claim to settle and over the 28 years Armstrong Foulkes has specialised in clinical negligence claims, we have only had a handful of trials.  2020 has been an extraordinary year for a variety of reasons including the unprecedented number of trials we have had – 3; the latest being a claim for M arising out of the care she received from the local ambulance service in 2016.

M was at home alone when she suffered a subarachnoid haemorrhage from a ruptured aneurysm.  She was in excruciating pain, vomiting and in and out of consciousness.  Despite this, she had the presence of mind and strength to crawl downstairs to unlock her front door and get her mobile phone to call 999.  The ambulance service told her they would send an ambulance.  Unfortunately, after the call, her phone battery ran out and as she was collapsed in the hallway of her home, she was unable to get to her landline telephone which was in another room.

The ambulance failed to arrive.  M, feeling like she was being left to die, managed to crawl to her front door and open it, despite her condition deteriorating as each minute passed.  Approximately an hour after she had called for an ambulance, she managed to attract the attention of her neighbour who called 999 to chase for an ambulance.  The ambulance service confirmed an ambulance would be sent.  A further half an hour passed and the neighbour called 999 again.  Again the ambulance service confirmed an ambulance would be on its way.  Shortly afterwards, M’s mother and son arrived at the house and a fourth call was made to 999.  Finally an ambulance arrived, nearly 2 hours after M first called 999, and M was taken to hospital for emergency surgery.

Fortunately, following her surgery, M made a very good recovery from the haemorrhage.  However, she developed severe Post-Traumatic Stress Disorder (PTSD) from the ordeal as she felt the ambulance service had left her to die.

The ambulance service admitted very early on that there was a substandard delay in the ambulance arriving to take M to hospital.  However, they disputed this caused any injury to her.  It was the evidence of our expert psychiatrist that the incident as a whole caused M’s PTSD and it is beyond the limits of medical science to establish whether or not she would have suffered PTSD in any event even if the ambulance had arrived on time.  Therefore, as the delay in the ambulance arriving made a material contribution to her PTSD, we could claim for the entirety of her injury.  The Defendant’s expert psychiatrist disagreed with this.  He was of the view the events of that day were so traumatic, M would have likely suffered PTSD even if the ambulance had arrived earlier.

The Claimant made repeated attempts to settle the claim before trial but the Defendant was unwilling to engage in negotiations.  The claim was therefore listed for a 2 day trial in the High Court in October.  The judge found in favour of the Claimant and agreed with our expert who he described as “a thoughtful, balanced, and careful expert witness who was doing his best to provide the court with his genuinely held opinion.”

On the other hand, the Judge was not convinced by the evidence of the Defendant’s expert.  Whilst experts are instructed by a party to the claim, ultimately their duty is to the Court and their evidence should be objective and impartial i.e. it should be the same regardless of whether they are instructed by the Claimant or the Defendant.  Unfortunately, this could not be said of the Defendant’s expert.  The Judge was of the view “there was a lack of objectivity” and that “there was an attempt, certainly at times, to present an assessment which was less than favourable to the Claimant”.

This case highlights why it is paramount claims such as these are handled by solicitors who specialise in clinical negligence.  Firstly, although many claims settle well before trial, some do not and it is important to instruct a solicitor who has experience pursuing claims through to trial.  Secondly, as demonstrated by this case, these cases stand or fall on expert evidence.  We spend a great deal of time and effort locating the best experts in each specialty and scrutinising their evidence throughout so we get the best results for our clients.

If you would like to discuss a potential claim with one of specialist clinical negligence solicitors for some free, no obligation advice, please contact us on 01642 231110.

Kathryn Watson – December 2020

Awards for Armstrong Foulkes!

I am delighted to say that despite a very difficult year for everyone in the UK our staff and solicitors have worked tirelessly to progress current client’s claims and to advise new clients as they approach us. The quality of our advice and service has been recognised again by both clients and others we work with. I am proud to confirm in the last few months we have received the following awards:

Chambers & Partners

The Chambers & Partners Guide to the best lawyers in the UK is released annually. We have been included for many years and recommended as a Top Ranked and Leading Firm in Clinical Negligence work in the North East. You may have seen this logo on the home page of our website. We are proud to announce that we have once again been recognised in this Guide as the only Band 1 (top ranked) firm for Clinical Negligence in the Tees Valley Area and all 4 of our Partners have been individually recognised as specialists in their field of work. Joanne Davies now joins Hilton Armstrong as a Band 1 specialist, Ashleigh Holt & Kathryn Watson as Band 2 Specialists.

The firm is described as a “Stellar boutique firm with outstanding expertise in clinical negligence claims” and Solicitors at the firm are ‘brilliant, friendly and easy to access’,…….Sources praise team members for ‘really putting clients at ease regarding the whole process,’ also adding that they ‘definitely provide a good, personal service’”.

Our solicitors are equally individually recognised for their work with very positive reviews from those interviewed:

Ashleigh Holt is “very capable and has good relationships with clients.”

Joanne Davies is  a “’well-organised solicitor who runs cases very well’….Sources also appreciate her ‘very close attention to detail’.”

Kathryn Watson “receives acclaim for being ‘a solicitor who really thinks about and understands her cases with a level of depth’.”

Hilton Armstrong is “empathetic, approachable and very understanding,”.

The full review of the firm can be found at

Legal 500

Again in this prestigious guide to the UK Legal Profession, following interviews with clients and barristers all of whom have experience of our firm’s work we received praise for the quality of our advice and service. We are ranked as one of only three Tier 1, top rated firms in the North of England for Claimant Clinical Negligence work. Both Hilton Armstrong & Joanne Davies were also recognised as “Leading Individuals” in their speciality and the firm is applauded for being a “Highly specialised boutique” where “There are many solicitors in this practice who are very knowledgeable, professional, understandable and reachable.They also confirm that “They give you a very personal service and have a professional yet caring attitude.

Kathryn Watson is praised as a “Next Generation Partner” who “genuinely cares about her cases and engages in the fine detail. She really understand the needs of clients, and is skilled at steering them through some tough decisions” and Joanne Davies is noted to be a solicitor who “thoroughly understands the needs of her clients”.

Again the full review can be found at

A message from us

We are very pleased and proud to be included in these directories recognising experts in their field of law in the UK especially as the reviews come direct from clients and from other legal professionals who have particular experience of our service. We strive hard to provide each client with a personal approach and to recognise that at the time they approach us it is often a very stressful and complicated period in their life and we do our very best to support each client in every way possible. If we can be of any assistance to you please do not hesitate to contact us.

Joanne Davies – November 2020

Death from delay in treating a stomach injury

Jack, a Husband and father of two young children died aged 29.  He had been injured in a car accident a week earlier when he was a back seat passenger and wearing a seatbelt.  The car was driven by his cousin.

The car overtook on the brow of a hill, resulting in a head-on collision with another car.  The Police and Ambulance were called and Jack who did not appear too badly injured, was taken to Hospital.  He was examined and discharged home.  In the following days he deteriorated quite quickly and was admitted to a different Hospital.  The diagnosis was a perforated bowel, which was operated on.  However, he never recovered and sadly died  just over a week after the accident.  The cause of death on the Death Certificate was cerebral injury due to cardiac arrest (during the operation), and peritonitis as a result of perforation of the small bowel, and a blunt force injury of the abdomen (both sustained in the road traffic accident).

The cousin was charged with causing death by dangerous driving.  He pleaded guilty.    He admitted liability for the accident but not the death.  In respect of the death he blamed:-

  • The A&E Department who saw the Deceased immediately after the accident and did not diagnose the perforation of the small bowel.
  • Jacks GP – he was telephoned a few days prior to admission to Hospital.  He should have examined and admitted Jack to hospital.
  • The second Hospital – who failed to diagnose and treat the perforated bowel soon enough and so prevent the death.

After starting Court proceedings the second Hospital admitted legal blame and responsibility for the death.

The case was settled for £300,000 shortly before the trial.  The 2 children received a total of £46,000 and the balance was paid to his Widow.

Hilton Armstrong – November 2020

NHS Resolution Annual Report – costs of clinical negligence claims down for 2019/20

NHS Resolution, the body responsible for managing claims on behalf of hospital Trusts and now GP practices, released their Annual Report in July for the period 2019/20.  The figures have not been widely reported so despite what we are often told by the press, you may be interested to learn that the total cost of clinical negligence claims in this period, including both sides’ legal costs, VAT, court fees, experts fees and compensation, was down from the previous year by almost £36 million and the entire cost of claims made up less than 2% of the entire NHS budget for the same period.  It remains the case that the majority of the cost of all claims arises from babies who have suffered brain damage at birth due to negligence and need a lifetime of care and support.

In 2019/20 11,682 claims were reported and 15,550 were settled.  Usually, there is a significant time lag of anywhere between 1 – 4 years between a case being reported to it being settled.  In this recent period, almost 2/3 of cases were settled on behalf of the Claimant.  As an experienced claimant clinical negligence litigator, one of the reasons for such a delay between reporting the claim and it being settled is because of the Defendant’s behaviour and in particular early denials of liability.

By the time the Claimant’s legal team is ready to notify NHS Resolution of a claim, in most cases they will be confident of their case having already carried out the necessary investigations with their medical experts.  Therefore these early and probably unjustified denials of liability simply result in the Claimant playing the only hand left available to them and starting formal costly court proceedings.  The claim then falls into the quagmire that is the court’s case management process with the most common outcome being that the claim settles in the Claimant’s favour.

In 2019/20, NHS Resolution introduced a new performance measure specifically to consider their “Repudiation Failure Rate” i.e. how many claims they initially denied and then went onto admit or settle in the other party’s favour.  NHSR did not meet their target but accept this is still a work in progress. Unsurprisingly they also did not meet their target to resolve claims without the need for court proceedings.

While every effort is being made to reduce Claimant legal costs by way of costs budgeting and the rolling debate of fixed costs, NHS Resolution is still failing to properly assess risk and trying to battle on at the tax payers expense.

Clinical negligence claims are complicated and can be lengthy and drawn out but in many cases the injuries caused by clinical negligence are life changing and injured patients are left with no prospect of the situation being reversed.   If this happens to you, a friend or family member, you should look to get specialist legal advice.  While we may not be able to restore your health, we may be able to make you more comfortable and afford you the means to cope and manage.  Please don’t hesitate to get in touch.

Ashleigh Holt – October 2020

Success Rates when you sue the NHS – 2020 update

The latest NHS Annual Report provides some interesting facts that don’t always make it into the mainstream media.  For example:

  • The number of claims made in 2020 was just over 11,000 and virtually identical to the previous year and down from a high of 12,000 in 2013.
  • About 60% of claims made result in the payment of compensation.
  • If a case settles before court proceedings are started then the success rate is 50%.
  • If proceedings have started this increases to about 80%.
  • However if the case goes as far as a Trial the chances of success are only about 20%.

The figures are more or less in line with the previous year with one notable exception; Defendants are winning more cases at Trial.  The number of cases going to Trial is the same (about 60) but the Claimant only won 13 as opposed to 22 the year earlier.

Hilton Armstrong – October 2020

GP fails to recognise serious foot condition leading to irreversible deformity

Mr D is a diabetic who, when aged 52, saw his GP because of redness, warmth, tenderness and swelling of his right foot.  He was diagnosed with cellulitis and prescribed repeated courses of antibiotics.  These did not help and he continued to suffer from problems with his foot.

5 months after originally seeing his GP about his foot, he decided to go to the diabetic foot at the hospital.  Here he was diagnosed with Charcot foot, a rare but serious condition where the bones in the foot weaken and fracture causing permanent deformity and disability.  His foot was immobilised but unfortunately by that point, permanent deformity had occurred.

Mr D’s claim was that his GP should have suspected Charcot foot and referred him urgently to hospital where the foot would have been immobilised before the deformity occurred.  This was admitted very early on by the Defendant but it then took some time investigating how much the case was worth as it was the evidence of our expert that Mr D was at risk of further problems with his foot, developing Charcot in his left foot and being unable to work again.  Once these investigations were complete, the parties attended a meeting where a 6 figure settlement was agreed.

This case shows that it is not always proving the treatment was substandard that is the hardest and most time-consuming part of a case.   Here, that was admitted early but the claim continued to ensure Mr D received appropriate compensation.  If you think you or a family member has received substandard treatment, it is important to instruct a specialist solicitor to deal with the claim to ensure you receive the most amount of compensation possible.  If you would like to speak to one of our clinical negligence solicitors for some free, no obligation advice, please contact us on 01642 231110.

Kathryn Watson – September 2020

Symptoms of a heart attack confused with soft tissue injury from blood pressure monitoring cuff!

Mrs F was an elderly lady under investigation for hypertension by her GP.  On 15 June she was given a 24 hour blood pressure cuff to wear.   During the evening of 17 June she developed aching pain down the left side of her neck; around her left breast;  and down her left arm.  In the early hours of 18 June she was woken up with pain in her back and left shoulder;  and under her left armpit and she took two Paracetamol.

When she woke in the morning, the symptoms, while a little less, were still there and so Mr F took his wife to a Walk-In centre attached to the local hospital.  Mrs F was seen by a Nurse Practitioner who noted the history regarding the blood pressure cuff and concluded that Mrs F’s symptoms were as a result of the repeated light compression of the soft tissue by the blood pressure cuff and that they should ease over the next day or two.

The symptoms were constant for the next few days but on 23 June her condition worsened and Mrs F went to the Emergency Department.  She was diagnosed as having suffered  a heart attack but due to late presentation, the clinicians were unable to offer any other treatment save for medication.  As a consequence, of the heart attack Mrs F had suffered a significant degree of ventricular dysfunction which left her extremely breathlessness and limited in terms of her activities and her mobility.  Her condition deteriorated and she suffered a further heart attack less than 2 years later.  She required assistance with dressing and food preparation.  She was unable to look after her home and her life expectancy was reduced.

Mrs F asked us to investigate the standard of treatment she had received.  With the help of specialist medical experts in the fields of Nursing and Cardiology, we established that Mrs F should have been sent to hospital by the Nurse Practitioner as she was going through the initial presentation of an acute coronary syndrome.  She would have been placed on an acute coronary syndrome pathway to carry out coronary angiography and stenting and on the balance of probabilities, she would have avoided a heart attack altogether.

We presented this case to the Defendant.  Their initial response, after 6 months, was to deny that they were responsible for the Nurse Practitioner at all.  We disagreed and persisted with the claim and prepared the necessary documents to begin formal court proceedings.  The Defendant responded to the claim with a reasoned but illogical denial of liability and before we could issue the claim at court, a settlement was reached between the parties for a five figure sum.

At Armstrong Foulkes we continue to fight claims where we have clear evidence of wrongdoing and substandard treatment.

Ashleigh Holt – September 2020

Amputation of the arm

Bill is a charming 78 year old retired seaman.  He fell at home and dislocated his left shoulder.  He went to hospital but didn’t receive the proper treatment.  The doctors failed to diagnose what is known as a false aneurysm.  This is where blood is left and then clots in an area where it shouldn’t be. In Bill’s case, the internal bleed was from his left shoulder into his left upper arm.

Over the following weeks/months his left arm became very swollen and painful.  When he was eventually referred to the Orthopaedic Surgeons, action was taken.  Unfortunately this was too late to save his left arm which had to be amputated at the shoulder.

His Consultant at the hospital was very honest with him and said that had he seen him sooner he probably could have sorted out the problem without the arm being lost.  We took the case on and secured an admission of blame from the hospital.  We settled the claim for a six figure sum shortly after starting court proceedings.

Bill, whilst delighted with the settlement would – if given the choice – have preferred to keep his arm rather than have the compensation.

Hilton Armstrong – July 2020

Progressing Claims in a time of Coronavirus

As lockdown begins to be lifted,  everyone wonders what will be the new “normal” and the same applies to the legal system and clinical negligence claims. We are pleased to say that it is now possible  for all procedural aspects of claim up to an including a Trial can be completed, but with some slight changes. I will set out below the changes we have noted, to give you an idea of what to expect:

  • Appointments – whilst we all prefer face to face appointments, in the current pandemic this is not possible and even when this restriction is fully lifted we appreciate our clients, many of whom have medical issues, may not feel comfortable with this for some time. As a result we have the facility to arrange video calls or to conduct appointments by telephone and can offer this to any clients. Please feel free to ask about this.
  • Delays – some steps in a case such as applying to a hospital for records can take a little longer. Under the circumstances we will continue to chase these up but are finding these steps are taking longer than expected due to the demands on the NHS, GPs and other medical professionals. We are not concerned by this and will keep you updated on when we apply and when the records come in.
  • Medical Evidence – In the course of investigating the case we need to obtain the views of independent medical experts and as many of these doctors and nurses also work in NHS roles and are in high demand at the moment getting their reports and views on the case can take a little longer than usual. Again this is entirely manageable but just may take a little longer than usual. We will keep you updated on when these reports are due.
  • Medical Examinations – As part of the investigation into cases our medical experts often need to meet with our clients to assess injuries and medical needs. Many of our experts have now started to offer these appointments again, albeit socially distanced and with appropriate Personal Protective Equipment [PPE]. However, if as a client you are concerned about this you should speak to your solicitor as there are many ways in which this can be handled, including some experts assessing you by video call, depending on your injuries. In other cases it may be possible to simply delay the examination until a later date.
  • Court Hearings – all hearings whether they are short or full trials have been continuing in lockdown, conducted by telephone or in some cases for more important hearings by video conferencing. If your attendance is required we will make all of the arrangements to ensure that this is possible.

I can therefore reassure you that there is no reason why a clinical negligence claim cannot progress in this unprecedented time. We are well aware of the uncertainty surrounding life and the concerns our clients have in this unusual time are important to us. You should not hesitate to tell us about your worries and we wish to reassure you that they will be taken into consideration and we can work with you to ensure that we can find a solution that works for both you and your claim. If you have any questions at all or require any reassurance about how your claim will proceed please do not hesitate to contact us on 01642 231110.

Joanne Davies – July 2020

Second Opinions – how to get them

A lot of what Doctors and lawyers tell you is their opinion and not necessarily factual.  As professionals we need to exercise our judgment based on our experience.  Often what we say is not what you want to hear, but it is our job to tell it as we see it.

So, for example your doctor may tell you that after looking at the scans your cancer is inoperable and only palliative care is required.  Or, the slipped disc in your back requires surgery that may result in you having to give up sport or work.

From the patient or client’s point of view sometimes this can be hard to comprehend and accept.  So what can you do if you are not convinced by what your doctor has told you?  You need to follow these steps:

  1. Ask the doctor to explain again. Step by step, and slowly.  Are they absolutely certain that their view is correct?  At this point your doctor will probably accept that there is a range of opinion but go on to explain why they think they are right.
  2. If you still feel unconvinced by their explanation ask them if they would object to you obtaining a second opinion. They are unlikely to disagree.  Usually they will recommend one of their colleagues, or alternatively you may have your own idea of who to go to.
  3. If your treatment is under the NHS it is even possible to choose a doctor from outside the hospital you are being treated at. If that is the case you would need to contact them and make arrangements for a consultation.  If you are paying privately then you would have to pay for the second opinion.
  4. When you see the new doctor after a discussion they will give you their own opinion. It may be the same as your original doctor or it may be different. If different you will need to talk about transferring your care to the new doctor.

It is important to understand that by asking for a second opinion you are not falling out with your doctor.  They will not be offended at all.  On the contrary they will probably encourage it as they will feel a lot more comfortable about your intended treatment if another doctor agrees with them.

Hilton Armstrong – June 2020

Three month delay in diagnosing dislocated shoulder leaves Carer needing care herself

A dislocated shoulder is usually easy to treat and in many cases there is no need for surgery.  While it can take months for the injury to resolve, it rarely results in a significant permanent disability however in the case of Mrs E, a failure to diagnose and treat her dislocated shoulder for over 3 months, has left her with virtually no function in her dominant arm and has rendered her unable to continue to care for her ill husband.

When Mrs E suffered a fall onto her right arm she attended her local hospital.  The entire arm was painful.  An injury to her elbow was ruled out in A&E and an Orthopaedic Surgeon arranged for wrist x-rays but did not arrange for any x-rays of the shoulder despite noting that Mrs E had restricted movement in the shoulder

Mrs E was referred for Physiotherapy but made such little progress that her Physiotherapist referred her for an ultrasound scan which took place over 3 months after Mrs E had first attended hospital.  The scan showed that the shoulder was chronically dislocated shoulder and she now needed surgery to try and resolve it.  Over the next 18 months Mrs E had 4 surgeries, the last being an attempt at a shoulder joint replacement.   All of the surgeries failed and Mrs E was left with a persisting dislocation which was painful and restricted her movement.

At the time of her fall Mrs E had been her husband’s carer but she was unable to continue to provide care to the same level and carers had to be employed to look after her husband and her son had to leave his job to help care for both of his parents.

Mrs E came to us when her first surgery failed and we quickly established with independent medical experts that there was a substandard failure to examine her shoulder and arrange to have it x-rayed.  Had the dislocation been diagnosed shortly after it happened, Mrs E would have had a successful reduction procedure and been able to return to caring for her husband as before within a few weeks.

When we approached the hospital, NHS Resolution who manage claims on behalf of their hospital members, denied liability for Mrs E’s injuries.  They suggested that either she could not have had a dislocated shoulder for over 3 months because it would have been too painful for her to manage for so long or she had had a previous dislocation and not known about it!  This was of course nonsense and court proceedings were issued in the Royal Courts of Justice.  The hospital maintained their Defence of the claim but before we could even proceed to the early step of exchanging witness statements, the hospital made an offer in settlement which led to a series of negotiations settling the claim in Mrs E’s favour some 4 years after her original injury.  Mrs E recovered a 6 figure sum in compensation for her injuries but was left without any option to restore her damaged limb.

The attitude taken by the Defendant’s in this claim is not unusual and it was disappointing that court proceedings needed to be brought before the Defendants would compensate the patient they had injured by failing to carry out an examination of her entire arm.  The allegations we put to the Defendant did not change and the matter could have been resolved earlier to the benefit of both parties. 

When you have independent expert evidence advising you that you did receive a standard of care below that which you should have and that it has caused you an injury, it is important and essential that you have specialist Solicitors you can trust to fight your claim on your behalf and get the justice you deserve.  Armstrong Foulkes are specialists in medical negligence claims and we will take that fight for our clients. 

Ashleigh Holt – June 2020

Hospital fails to diagnose appendicitis on 2 occasions leading to its rupture

R was 30 when he started to suffer from acute abdominal pain.  He saw an out of hours GP who suspected appendicitis and referred him to the surgical team at the local hospital.  Here he was noted to have a raised temperature, an increased heart rate and, after blood tests were performed, an increased white cell count.  Despite this, he was diagnosed with constipation and discharged home with laxatives.

By the following day, R’s pain had worsened and he returned to the hospital, this time to the Emergency Department.  He was again diagnosed with constipation and discharged home with laxatives.

R struggled on despite being very unwell and sought advice from his GP.  As R’s condition was getting worse rather than better, 10 days after last being seen at hospital, his GP arranged for him to have further blood tests.  These were very concerning showing high inflammatory markers.  R was sent straight back to hospital where he underwent a CT scan, revealing a burst appendix and pelvic abscess.  He required emergency open surgery to remove the appendix, which had by that point liquefied, and an ileostomy.  This was reversed 14 months later although he continues to suffer from urgency which restricts his social life as he always needs a toilet close by.

It was the evidence of our experts, a surgeon and a specialist in emergency medicine, that on both occasions R presented to hospital, he should have been admitted for further investigations which would have shown him to be suffering from appendicitis.  His appendix would not have ruptured by this point so it would have been a straight forward operation to remove the appendix which would have been performed by keyhole surgery.  He would avoided the need for an ileostomy and the associated scarring from this and the open surgery he underwent.

The hospital denied liability and it was necessary to issue Court proceedings.  They again reiterated their denial of liability in their Defence but shortly after, accepted R’s offer to settle his claim for £50,000.

Mistakes in healthcare have a profound effect on every aspect of a person’s life.  Not only did R have to struggle with the pain of his injuries and the difficulties with his stoma, he was also unable to work for a considerable amount of time which affected him financially.  Whilst the damages he received will never fully compensate him for what he has gone through and continues to have to deal with, it has helped him get financially back on track and gives him the opportunity to undergo further surgery to improve the significant scarring from his operations.

If you or a family member think you have received substandard care from a medical professional and would like some free, no obligation advice from one of our solicitors, please do not hesitate to contact us on 01642 231110.

Kathryn Watson – May 2020

Hospital tells unsuspecting parents we may have caused brain damage to your baby during birth!

Since 1 April 2017 all NHS Trusts have been required to report to NHS Resolution, the body which has responsibility for managing clinical negligence claims against Trusts, of any incidents of babies born at term (from 37 weeks) with a potentially severe brain injury diagnosed in the first 7 days of life following labour.  These reports have to be made within 30 days under what is known as the Early Notification Scheme.

This relates to any baby who falls into the following categories:

  1. Was diagnosed with grade III hypoxic ischaemic encephalopathy (HIE) or
  2. Was therapeutically cooled (active cooling only) or
  3. Had decreased central tone AND was comatose AND had seizures of any kind

It is up to the clinical teams to advise the Trust’s legal department within 14 days of any such cases and then for the legal department to file the report.

NHS Resolution reported on their findings of the first year of the Scheme and published them in September 2019.  This confirmed that over 800 cases were reported of which 746 of which were eligible.  This represented 0.12% of all births.  In February 2020, Armstrong Foulkes LLP were told by a representative for NHS Resolution that there had been 50 admissions of liability to date.  The report concluded that most of the injuries to these babies were caused by problems with fetal monitoring.

What has become apparent is that in many cases, families do not know that their case has been reported or that the treatment they received is being investigated despite each Trust being required to comply with the duty of candour and keep families updated and offer apologies.  In fact, less than half of the 746 cases were reported to the families at the same time as they were to ENS.  Armstrong Foulkes is aware of instances of families only learning of the Early Notification Scheme some two years after the birth of their child.  This is particularly worrying and it is concerning to us that families are not being invited to be part of the investigation process.

The initial risk assessment on whether there is likely to be a finding of negligent care is done by the Trust.  If the Trust assesses a case as ‘likely’ to have involved negligent treatment then NHS Resolution will pass the matter directly to Solicitors who work for the NHS to begin a liability investigation.  Only 9% of cases were reported under ENS as likely in the first year.

For those cases assessed as ‘unlikely’ to have involved negligence or where it is ‘possible’ that there was negligent treatment, then NHS Resolution will do a review.  If a case is re-categorised as ‘likely’ or ‘possible’ it will go to NHS solicitors.  45% of cases were re-categorised in the first year!

Once a decision is made whether to admit liability or not then the decision is communicated to the family by the Trust.  Under the Scheme, families should be advised to get independent advice and should be signposted to Action against Medical Accidents, known as AvMA which is the UK charity for patient safety and justice.  In February 2020 however, a spokesperson for AvMA said that they were not aware that AvMA had been contacted by anyone who had been signposted to them under the scheme.

The aim of the scheme is to identify cases involving negligent care as early as possible and provide answers and support, including financial support to families earlier as cases involving significant brain injuries at birth do take a notoriously long time to investigate and conclude.  However, it is imperative that families are a) involved and b) have access to independent legal advice and representation to ensure that the scheme is transparent and fit for purpose.  This remains to be seen.

As a specialist clinical negligence firm, our concerns are that this scheme does not go far enough and is not being adequately publicised.  Also, we are concerned that families are made aware that they have the option of seeking legal advice irrespective of the scheme and regardless of what the scheme concludes.

You do not need to wait to be contacted by the Trust or someone on their behalf.  If you are concerned about treatment that you or your child received at the time of their birth or any time then you are still entitled to take matters into your own hands and get independent advice from specialist solicitors.  We are here to help.

Ashleigh Holt – May 2020