By Dr Sophie Haroon, Medicolegal Consultant, and Alison Clarke, Solicitor, Medical Protection

Mrs Y was 32 years old when first pregnant, during which time she developed gestational diabetes and needed insulin. Two years later, the same occurred in her second pregnancy. Postnatally the hospital advised her general practice surgery of this. Three years later Mrs Y had a raised glucose on some screening bloods prior to elective surgery, which was also flagged to the general practice.

Issues arose in relation to follow up on both occasions and no further action over Mrs Y’s glucose arose.

Eight years later she was diagnosed with type II diabetes. This included peripheral neuropathy for which she required a variety of pain management medication including gabapentin and opiates.

Allegations

Mrs Y brought a claim against the GPs for delayed diagnosis of diabetes so leading to diabetic peripheral neuropathy. She alleged that had she known of the risk of diabetes following her pregnancies, she would have taken lifestyle measures to reduce this, so delaying the onset of diabetes, the need for treatment by 10-20 years, and the risk of peripheral neuropathy.

When Mrs Y brought her claim, she pleaded she had bilateral foot pain, an inability to walk for more than ten minutes due to pain and fatigue, sensory issues in her feet leading to instability and frequent falls, the need to use a stick, loss of dexterity and sensation in her hands, problems driving and undertaking activities of daily living, depression and anxiety. She said her physical activity had declined substantially from walking 20 miles a week to no activity at all.

Initially she sought damages amounting to a seven-figure sum, focusing on her inability to work due to her symptoms, reduced life expectancy from the diagnostic delay, an increased risk of diabetic foot complications including amputation, the help she required in activities of daily living, and the mental health effects of her condition and management.

Expert opinion

This was an interesting claim in many ways. Liability for breach of duty was complicated by factual disputes and Mrs Y’s alleged contributory negligence through nonattendance for healthcare appointments in the months after her pregnancies, and poor lifestyle factors. Causation was complicated by debate over whether earlier diagnosis and better glycaemic control would have prevented the peripheral neuropathy. Percentage risks for other diabetic complications were also hotly debated.

Surveillance

Due to the size of the damages claimed, areas of expert contention on breach and causation, and the fact that Mrs Y’s pleaded condition was unlike what was reported in her medical records, surveillance of Mrs Y was conducted. It showed Mrs Y independently out and about, carrying shopping rather than using her walking stick, walking her dog, using transport and moving refuse bins.

The incongruence between the surveillance and the alleged significant motor and sensory neuropathy was noted. Mrs Y and her solicitors were put on notice about this. They rebutted the stance that Mrs Y had been dishonest and had sought to consciously exaggerate her claim with a long list of answers mitigating the evidence.

Outcome

This case was scheduled for a trial but a Round Table Meeting was planned beforehand. At this, the defendants challenged Mrs Y’s case with a pleading of fundamental dishonesty. However, there were several complicating issues with this and it was not clear-cut. For the defendants their case was diluted by Mrs Y being on large amounts of opiates and suffering from undeniable mental ill health (as a result of her diabetes, she pleaded). But for Mrs Y, elements of the surveillance like not using a stick all the time, bending and shopping, stretched her functional ability.

A series of offers vacillated until the seven-figure sum of damages was reduced substantially to that of five figures. This was divided between Medical Protection and the other medical defence organisation involved. The utility of surveillance in a claim where breach and causation were highly debated was financially very respectable.

Commentary

We live in an era of increasing rights and protection around our data.^1,2,3 Concerns have been raised about the rise of technology and surveillance in our society⁴ and there have been significant enquires into the same.⁵ So, can surveillance be legitimately used in clinical negligence claims? Quite simply, yes. Despite the concerns, an individual’s protected rights do not outweigh public interest in dealing effectively with potentially fraudulent or exaggerated claims. Instead, there is a balance to be struck with appropriate guidance, processes and procedures in place to demonstrate good practice.⁶

Furthermore, in Douglas v O’Neill [2011] EWHC 601, HHJ Collender (sitting as a Judge of the High Court) noted that: “Surveillance evidence has long been a legitimate weapon, when properly obtained and legitimately used, for a defendant to put before a court that may demonstrate that a claimant’s evidence is false” (para 42).⁷ The law states that a claim can be dismissed if the court is satisfied that on the balance of probabilities the claimant has been fundamentally dishonest in relation to their claim.⁸ Surveillance evidence would have applicability in a liability-only trial where there are factual issues in dispute (as in this case) as the credibility of a witness is important. Surveillance capturing this is therefore important. However, of note, for a claim to be classified as fundamentally dishonest, the court needs to be satisfied that the claimant’s dishonesty went to the root of either the whole claim or to a significant part of it. Therefore, it is not a decision that is taken lightly.

Other examples of the successful use of surveillance have been demonstrated by NHS Resolution. In two separate cases of cauda equina involving different Trusts, surveillance activity showed the claimants to have exaggerated their case. The result was a custodial sentence for each and a requirement to pay back monies already provided to them.^{9, 10} Both cases serve as a cautionary reminder that the courts will not deal lightly with fundamental dishonesty and that defendants will, where necessary, deploy surveillance.

Learning points

• Alleging fundamental dishonesty is not a light decision.
• Judiciously used surveillance is increasing and carries legitimacy for the purposes of corroborating or disputing injury in medical negligence claims.
• The courts take fundamental dishonesty and also surveillance seriously.
• The success of surveillance has been demonstrated in many ways, from the overturning of claims to significant reductions in settlement.

References

1. The Human Rights Act 1998 - https://www.legislation.gov.uk/ukpga/1998/42/contents
2. The Data Protection Act 1998, Schedule 1 - https://www.legislation.gov.uk/ukpga/2018/12/schedule/1 and now GDPR 2018 - https://www.gov.uk/government/publications/guide-to-the-general-data-protection-regulation
3. Regulation of Investigatory Powers Act 2000 - https://www.legislation.gov.uk/ukpga/2000/23/contents
4. A Report on the Surveillance Society For the Information Commissioner by the Surveillance Studies Network - Full Report, September 2006 - https://ico.org.uk/media/about-the-ico/documents/1042390/surveillance-society-full-report-2006.pdf
5. The Leveson Inquiry – an inquiry into the culture, practices and ethics of the press - Report - The Right Honourable Lord Justice Leveson, November 2012 - https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/270943/0780_iv.pdf
6. For example: Guidelines on the instruction and use of private investigators, September 2014 - https://www.ipitraining.org.uk/Media/IPITrain/pdfs/guidelines-on-the-instruction-and-use-of-private-investigators-and-tracing-agents.pdf
7. Douglas v O’Neill [2011] EWHC 601 (QB)
8. Criminal Justice and Courts Act 2015 section 57(1) - https://www.legislation.gov.uk/ukpga/2015/2/section/57/enacted
9. https://www.hempsons.co.uk/news-articles/6-month-custodial-sentence-for-exaggerated-medical-negligence-damages-claim/
10. https://resolution.nhs.uk/2021/07/07/attempted-clinical-negligence-fraud-lands-claimant-with-jail-sentence-and-an-order-to-repay-damages-and-costs/?utm_medium=email&utm_campaign=Resolution%20Matters%20July%202021&utm_content=Resolution%20Matters%20July%202021+CID_491e079fa8456e6876accb18befba272&utm_source=Email%20marketing%20software&utm_term=Fraud%20lands%20claimant%20with%20jail%20sentence