Success against Barts Health NHS Trust in tragic fatal claim centred on consent

Russell-Cooke has secured an out-of-court settlement in a fatal claim against Barts Health NHS Trust. Partner Dominic Fairclough and associate Amy Anderson in the personal injury and clinical negligence team recently negotiated an out-of-court settlement of £100,000 in a fatal claim against Barts Health NHS Trust centred on the complex issue of ‘informed consent’.

An action for compensation arose following the tragic death of the client’s wife at St Bartholomew’s Hospital in early 2017. She had gone into hospital to have a diagnostic ‘pressure wire’ test following a heart attack in late 2016.  Complications arose during and after the pressure wire test, sadly leading to her clinical decline, multi-organ failure and untimely death.

Russell-Cooke’s involvement in the clinical negligence case followed an inquest held at City of London Coroner’s Court in late 2018, which heard that the client’s wife had sadly died as a recognised complication of an investigative medical intervention.

Based on the evidence heard, the Coroner made a Regulation 28 report highlighting concern regarding a risk of future deaths.  Specifically, the Coroner was concerned that there had been insufficient discussion with her to properly enable her to consider alternative non-invasive treatment options, aside from the pressure wire test.

The clinical negligence case that followed was centred on the issue of ‘informed consent’.  In a nutshell, doctors have a duty of care to their patients to ensure they are aware of any material risks involved in any recommended treatment, and of any reasonable alternative treatments. The client alleged that the Trust had breached the duty of care owed to his wife, and that their negligence caused or materially contributed to her death.

The ‘pressure wire’ test was an invasive, diagnostic procedure. The client alleged that the Trust failed to provide his wife with sufficient information the regarding non-invasive alternatives to the ‘pressure wire’ test, and that had his wife been properly consented, she would not have undergone the ‘pressure wire’ test in late 2016 and would have survived.

The Trust admitted that there was a failure to obtain informed consent from the client’s wife in relation to the ‘pressure wire’ test carried out in late 2016.  However, the Trust denied causation, and argued that even if the client’s wife had been properly consented, she would have agreed to undergo the pressure wire test as she had already consented to coronary stenting – a higher risk coronary intervention. The difference was that the stenting was urgent, whereas the diagnostic testing was not.

The Russell-Cooke team obtained and disclosed evidence from family members indicating that the client’s wife was risk averse by nature, including with regards to medical issues. Furthermore, she had private insurance in place, which would have meant that she would have had quick and free access to the non-invasive treatment options.

The team argued that the client’s wife would not have undergone the pressure wire test had she been properly consented and would, instead, have used her private medical insurance to undergo one of the non-invasive alternatives.

Although the Trust initially indicated they had no settlement offers to make as causation was denied, the parties ultimately agreed to settle the claim for £100,000. The client’s claim for damages included compensation for his wife’s pain and suffering, as well as compensation for funeral expenses, bereavement damages and dependency losses, both financial and service-based.

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