Sick to the back teeth …

Photo by Quang Tri NGUYEN on Unsplash

In the last few months, I’ve discussed two medical negligence cases involving the NHS in Scotland. Since last week, I now have a hat trick with the decision of Lady Wise (sitting in the Court of Session) in respect of Derek Hamilton v Lanarkshire Health Board [2020] CSOH 24.

The facts of the case are pretty straightforward:

In 2013, Mr Hamilton had been playing with his grandson when he swallowed his dental plate. Now, it may seem facetious of me to say this, but Mr Hamilton’s grievance was not directed at his grandson’s high jinks. The issue was with what happened next. He attended the local NHS hospital for treatment and he was informed that he would have to undergo surgery to have the plate removed.

Mr Hamilton duly underwent an operation where Martin Downey, an experienced surgeon, removed said plate via the patient’s oesophagus. Unfortunately, while doing so the surgeon’s actions caused a tear or a perforation in the oesophagus and Mr Hamilton’s condition worsened rapidly. Consequently, the patient spent a total of 45 days in hospital as a result of complications arising from the botched procedure.

Mr Hamilton alleged that Martin Downey, had breached his duty of care to him and that he had carried out a procedure which “all general surgeons know is a catastrophe to be avoided.”

In finding Martin Downey liable for negligence, Lady Wise bluntly observed that:

Mr Downey departed from usual and normal practice … and acted in a manner that no ordinarily competent general surgeon with colorectal speciality exercising ordinary skill and care would have done.

Her Ladyship went on to state that:

“I have found that, but for the taking of that easily avoidable risk, the patient’s oesophagus would have remained intact as it was the act of removing the plate that caused the perforation. The pursuer [Mr Hamilton] has therefore established both breach of duty and causation.”

Mr Hamilton will receive £195,000 (plus interest) in compensation from Lanarkshire Health Board in settlement of his claim for personal injury.

A link to Lady Wise’s decision in the matter can be found below:

A link to a report on the BBC website about the case can be found below:

Man who swallowed his false teeth wins NHS damages

Derek Hamilton wins £195,000 damages after surgery to remove a dental plate left him seriously ill.

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Copyright Seán J Crossan, 2 March 2020

Where there’s blame, there’s a claim?

Photo by Kevin Grieve on Unsplash

Where there’s blame, there’s a claim? Not if you try to fake an accident there isn’t, as one woman from West Yorkshire has found to her cost.

Trip and slip claims are very common types of delict actions (tort in England), but they have to be genuine if the pursuer (claimant) is to have any chance of success. In Chapter 3 of Introductory Scots Law, I discuss the most common type of delictual claim – negligence – and the fact that the pursuer generally must prove that the defender was at fault.

On 2 April 2019, the BBC reported that Farida Ashraf of West Yorkshire had been successfully convicted in a private prosecution, at Bradford Crown Court, brought by the insurance company, Aviva. Ms Ashraf had submitted a personal injury claim for £3,000 in relation to an alleged accident at a Bradford supermarket. This civil claim had been dismissed because it was basically fraudulent. Aviva then commenced a private prosecution against Ms Ashraf, which resulted in her receiving a 21 month prison sentence (suspended for 2 years).

As a point of comparison between Scotland and England, it’s interesting to note that this was a private prosecution brought by Aviva. Such an action would not have happened in Scotland because the Crown Office and Procurator Fiscal Service decide whether criminal proceedings should have been initiated – not a private party like Aviva. In Scotland, insurance companies can, of course, report their suspicions to the Police that a claim may be fraudulent. The Police can investigate and a report will then be submitted to the Procurator Fiscal.

The private prosecution brought against Ms Ashraf is thought to be one of the first successful types of such actions in England.

A link to the BBC article can be found below:

Woman staged fall at Bradford store to claim payment

Farida Ashraf tripped over a crate placed by accomplices and tried to claim £3,000 for injuries.

Copyright Seán J Crossan, 3 April 2019