On 21 February 2022 Recorder Paige at Plymouth County Court handed down judgment in this matter, following a two-day Trial, and dismissed the Claim. University Hospitals Plymouth NHS Trust was represented by Angela Williams of Browne Jacobson LLP and Susanna Bennett of 1 Chancery Lane.
The case concerned a staff nurse, Mrs Noble, employed by the Defendant at Derriford Hospital. On 5 August 2017 she was assigned for her night shift to an overflow ward, where JM, a recovering alcoholic, was a patient. It was accepted that JM did not meet the official criteria for entry onto the ward because of his particular care needs.
The Claimant’s evidence was that, at the start of her shift at 7.30pm, she had been informed that JM posed a risk to staff members and that there had been unsuccessful attempts to arrange “bed watch” – non-clinical supervision by a security guard – for him. It was common ground that shortly before 7.20pm JM had had a likely seizure and knocked out a tooth.
At around 8.30pm, one hour into the Claimant’s shift, JM had a further seizure and the Claimant went to assist him by placing him in the recovery position. As JM came round from the seizure, he punched the Claimant in the stomach, knocking her backwards (the “Incident”).
The Claimant consequently suffered minor physical injuries but significant psychological injuries, resulting in her taking early retirement. She claimed damages from the Defendant for breach of its duty of care to her, claiming a sum in excess of £200,000, comprising principally future loss of earnings.
The Claimant’s allegations of breach of duty centred around the Defendant’s treatment of JM. Inter alia it was argued that (a) JM had been subject to an inadequate care plan (b) his alcohol withdrawal had not been managed in accordance with the Clinical Institute Withdrawal Assessment (CIWA) tool (c) he had been placed on a ward which was inappropriate for him and (d) bed watch had not been put in place sufficiently quickly. Expanding on this at Trial, it was contended that, following CIWA scores for JM at 16.15 and 18.20, a further CIWA score should have been taken at around 7.20pm, following JM’s likely seizure, which would have prompted the prescription of Lorazepam and prevented the subsequent seizure. No expert liability evidence had been obtained.
The Defendant defended the Claim on both breach of duty and causation. In summary, the Defendant argued that, without expert liability evidence, the contentions regarding JM’s care must fail; alternatively that per Buck and ors v Nottinghamshire Healthcare NHS Trust  EWCA Civ 1576 it was trite law that there was a distinction between the duties owed to JM and to the Claimant, and in the circumstances of the present case a breach of the duty owed to JM did not amount to a breach of the duty owed to the Claimant.
Recorder Paige accepted that the allegations of breach within the Particulars of Claim which were purely clinical required expert evidence, and therefore fell away. But he went on to consider JM’s medical records including the CIWA scores. He noted that JM had been seen by registrar Dr Beasley at 7.20pm and 8pm and that the doctor had not chosen to calculate JM’s CIWA score at either time; he concluded that this point was, in any event, fatal to the Claimant’s contention that a further CIWA score ought to have been taken by a nurse at around 7.20pm.
The Recorder also accepted that a possible breach of duty to JM in placing him on an overflow ward was not a breach of the duty owed to the Claimant, who was an experienced staff nurse. Finally, he concluded that whilst there had been a delay in arranging bed watch for JM (which ought to have been in place by 8.30pm) this had not caused the Incident, as bed watch staff were non-clinical, and so the Claimant’s medical assistance would still have been required.
This case is a salutary reminder of the need for expert medical evidence in all cases in which there are allegations of a breach of a clinical duty to a patient. Although the Recorder was willing to consider JM’s medical notes and hear evidence regarding CIWA scores from the lay witnesses, he ultimately found that expert medical evidence was required for the Claimant to prove a breach of duty on a Bolam test basis. Such evidence needs to be applied for at an early stage: in this case the Claimant applied for permission to adduce expert liability evidence shortly before Trial, but this last-minute application was dismissed.
Finally, this case is a clear demonstration of the distinction between the duty of care owed by an NHS Trust to its patients and to its staff – and the need for litigators on both sides not to conflate the two.
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