Iqbal v Whipps Cross NHS Trust: the doctrine of Stare Decisis proves fatal to claims for “Lost Years”

In Iqbal v Whipps Cross NHS Trust, the Claimant was born suffering from cerebral palsy as a result of a birth injury. Liability was admitted and life expectancy was agreed at 41 years. At trial the Claimant sought damages for the earnings that, but for the Defendant’s negligence, he would have earned in the “lost years” between the age of 41 and state retirement age 65. At first instance the claim succeeded and the Judge (Sir Rodger Bell) awarded the Claimant £42,402 for this head of loss.

The Trust appealed arguing firstly that a claim for lost earnings in the lost years by a young Claimant with no earnings record and no dependants was too remote and secondly that the Judge was bound by a previous Court of Appeal decision in Croke v Wiseman, which had held that a “lost years” claim in respect of a young child was impermissible.

The Claimant argued that the earlier House of Lords decisions in Pickett v BREL and Gammell v Wilson established the principle that damages for lost years could include compensation for loss of earnings in that period regardless of the age of the claimant and that Croke had been wrongly decided.

The Court of Appeal accepted that the decision in Croke was inconsistent with the decisions in Pickett and Gammell. However, they were not prepared to find that Croke was manifestly wrong. The doctrine of “stare decisis” therefore applied. As Croke had been decided by a higher court, it remained a binding precedent. Consequently the principle that loss of earnings for the lost years should not be awarded to a young claimant with no dependents was one that could only be corrected by the House of Lords.

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Comment

Permission to appeal to the House of Lords was given but it remains to be seen whether the Claimant will in fact appeal bearing in mind the further costs and the relatively small sum that is at stake (the lost years claim is only about 1% of the total damages award).

For the time being Defendant insurers and the NSHLA will be able to successfully resist these claims. If the Claimant does risk an appeal in a bid to overturn Croke, it will still be open to the Defendant to argue that Pickett itself was wrongly decided.

Reimbursement of Medical Treatment under Article 49

In European Surgeries v Cambridgeshire Primary Care Trust, the Claimant, a private medical service provider applied for judicial review of a decision by the Defendant PCT to refuse to reimburse the cost of an out-patient procedure carried out by its German Sub Contractor.

The patient, a 78 year old gentleman called Mr Cooper, had undergone a private operation, carried out by a German Ophthalmologist called Dr Schock to remove cataracts in one of his eyes. The operation was arranged by the Claimant and Mr Cooper paid them a fee of £1,475. In turn the Claimant then paid Dr Schock his fee.

Sometime later the Claimant wrote to the PCT stating that in accordance with its obligations under Article 49 of the European Treaty it should reimburse Mr Cooper the "tariff" cost of the operation (i.e. the domestic rate for carrying out a cataract operation).

Mr Cooper had never asked the Defendant PCT for reimbursement. Indeed up until the Claimant requested payment, the PCT was unaware that the operation had even been carried out.

The PCT refused to pay. The Claimant then applied for a mandatory order requiring the PCT to reimburse Mr Cooper and a declaration that the PCT was obliged to reimburse patients under its care for treatment by European Union providers.

In response the PCT argued that any right to claim the cost of the operation lay with Mr Cooper and that as he had never made a claim, the PCT was not obliged to pay him the tariff cost of the operation.

The court decided that the Claimant had no claim. Any right to reclaim the tariff cost lay with the patient and not with the Claimant. As Mr Cooper had not sought reimbursement, the PCT were not obliged consider the Claimant’s request.

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Comment

In bringing this claim, the Claimant’s objective was clear. It wanted to be able to tell prospective customers in its advertising material that the PCT would be forced to reimburse them for the tariff cost of the private operation.

The court would not make a general declaration in these circumstances because whether or not there was a liability in future cases involving different patients depended entirely on the precise issues in each case.

No Double Jeopardy Defence to Suspension – Fida Mohammed v General Medical Council

Dr Mohammed had been working as a doctor in a hospital in Ireland and was registered with the Irish Medical Council. He was requested by a firm of solicitors to prepare a report outlining the injuries suffered by a boy who had attended Accident and Emergency. Dr Mohammed agreed to provide the report in exchange for payment. Although the solicitors made the payment, Dr Mohammed did not provide the report.

Having failing to provide the report for more than15 months, the solicitors eventually complained about Dr Mohammed’s conduct to the Irish Medical Council, and he was suspended for six months.

Dr Mohammed was also registered with the General Medical Council in the UK. They were informed of the action that the Irish Medical Council had taken and as a result they referred Dr Mohammed to the Fitness to Practice panel. As a consequence Dr Mohammed was suspended from practicing in the UK for a further period of 3 months.

Dr Mohammed appealed against that decision. He submitted that the panel had failed to have regard to the fact that he had already been suspended for six months in Ireland and that a further period of suspension of three months in the UK was disproportionate and infringed the principle of double jeopardy.

The court found that the period of suspension was not disproportionate. Indeed as Dr Mohammed had been guilty of behaviour which constituted a serious departure from the standards to be expected of a registered medical practitioner a longer period of suspension would have been imposed had it not been for the fact of the earlier suspension in Ireland. Section 35c of the Medical Act 1983 provided that a finding of misconduct by a regulatory body in another country was one of the bases upon which the GMC must find that fitness to practise was impaired. Given that statutory provision, the principle of double jeopardy could not apply.

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