FRAUD IN THE CONTEXT OF CLINICAL NEGLIGENCE CLAIMS – AN UPDATE SINCE AUTMUN 2019

In his welcoming comments to the Annual report and accounts 2019/20 Ian Dilks, Chair of NHS Resolution writes:

“I commented last year on the more robust action we were taking on the thankfully rare examples of exaggerated claims that had resulted in custodial sentences for claimants and action against a solicitor by the Solicitors Regulation Authority (SRA). This action continues, with claimant posts on social media and judicious and tightly controlled use of surveillance identifying a number of exaggerated claims, and we continue to work with the SRA on issues of concern. …. However, it is important to recognise that, contrary to some media reporting in the last year, our role is not to “defend” the NHS at all costs”

This demonstrates the ongoing commitment within the clinical negligence context to the identification and defence of claims involving fraud. Firm but fair remains the order of the day for Defendant bodies. Below are summaries of a number of recent cases on the subject which illustrate this approach both in defending claims on the basis of fundamental dishonesty but also in pursuing committal to prison in cases in which such dishonesty is established.

Carol Summut v The Dudley Group NHS Foundation Trust (2019 QB)

The Defendant had admitted liability for some loss to the Claimant as a result of a delay in diagnosing a bowel perforation after two attendances at hospital with abdominal pain resulting in the Claimant being sent home. The Claimant ultimately required a laparotomy and Hartmann’s procedure and alleged had she been diagnosed sooner she would have recovered with antibiotic treatment only. The Defendant contested this on the basis that by the time of her second attendance surgery would have been inevitable.

Whilst at trial the Judge preferred the evidence of the Claimant’s expert witness, to the effect that conservative measures would have been successful, and damages were assessed at £123,540.46 the Claimant was never to see this money due to fundamental dishonesty.

Concerns surrounding the Claimant’s truthfulness at an expert examination had triggered investigations which revealed social media profiles with photographs of the Claimant visiting pubs, restaurants and dance venues, in contrast to what she had told the medical experts. The Claimant’s claim that she had lost the ability to obtain a new job with additional hours and a final salary pension scheme was scrutinised and the Judge eventually concluded that there was no such job. The Claimant was found fundamentally dishonest given the effect was to create an additional loss of £130,000. The Claimant’s claim was dismissed, and she was ordered to pay the Defendant’s indemnity costs in accordance with s57 of the Criminal Justice and Courts Act 2015.

Simpson v Payne September 2020 – His Honour Judge Murdoch

A claim was brought by the Claimant, a glamour model, for alleged negligent breast augmentation surgery. The Claimant alleged that she had been unable to undertake her glamour work for seven months had had required revision surgery. She also made a claim for livery and stabling costs.

Social media evidence was obtained which demonstrated that the Claimant had been working and riding her horses during the relevant period. Fundamental dishonesty was pleaded in the counter schedule and the Claimant discontinued her claim 7 days before trial.

Notwithstanding this, the Defendant pursued the issue of fundamental dishonesty. Photographs had been obtained demonstrating the Claimant working before her breast revision. The Claimant suggested she had meant she had been unable to work as much. She did not respond to the allegation that she had been able to continue riding her horses. She failed to comply with a disclosure order requiring her to disclose further medical records and bank statement evidencing her loss of earnings claim and suggested she had signed her witness statement without reading it.

Ultimately the judge did not accept that the Claimant was unable to work as she had suggested, and he accepted the Defendant’s evidence that photographs were taken after the surgery had been performed. The Claimant’s suggestion that she had signed her witness statement without reading it was not accepted. Permission was given to enforce the costs order for the action including the application and hearing relating to fundamental dishonesty.

Calderdale & Huddersfield NHS Foundation Trust v Linda Metcalf [2021] EWHC 611 (QB)

The Claimant pursued a clinical negligence claim against the hospital trust on the basis of a delay in the diagnosis of her cauda equina syndrome. The Trust admitted liability at an early stage and there was a formal apology and an interim payment of £75,000.

The matter proceeded as to quantum and in due course the Claimant filed a schedule of loss totalling approximately £5.7m. As part of her claim, she suggested that she could not walk unaided, and was unable to go out socially unless to places she was familiar. She suggested that she was unable to travel or go on holiday. Subsequently she presented her case as even worse, suggesting she could not drive and was only able to stand without walking sticks “for a few seconds”.

The Defendant undertook covert surveillance of the Claimant along with internet searches. These revealed that she was travelling easily and frequently within the UK and overseas. She was also caught walking without sticks or other assistance.

Upon presentation of the evidence the Claimant initially denied fundamental dishonesty in a Reply to Defence. In due course, however, following a joint settlement meeting which failed to reach settlement, she agreed her claims should be dismissed on the basis of fundamental dishonesty and she repaid the interim payment by instalments.

In March 2020 committal proceedings were brought by the Trust for contempt and the Claimant admitted contempt almost immediately. She admitted all the grounds for committal save that she suggested she did not follow any plan to deceive. Referencing a staged appearance of disability the Claimant had presented at an expert examination, surveillance demonstrating the Claimant driving to her parents’ house (whereupon she told an expert she could not drive), and surveillance capturing the Claimant walking into a hotel and standing for half and hour before attending an expert appointment in a wheelchair, Mr Justice Griffiths found against the Claimant and concluded that that she acted deliberately and systematically.

Mr Justice Griffiths noted the number of contempts, the range of deliberate conduct, the false statements of truth, the period of time over which the contempts took place along with the millions of pounds at stake and concluded that his starting point was a period of 18 months in custody.

In mitigation he noted there was an element of genuine claim and that the interim payment had been paid back and that the Claimant was in poor health due to her underlying condition. He further noted her previous good character and that the lies were admitted relatively swiftly along with there being some level of remorse. He also took regard to the fact that the Claimant had a 2 year old child at home. For this reason, he reduced the sentence to 9 months and gave credit for the full admission, further reducing the sentence to 6 months. Ultimately of the 6 months the Claimant would be entitled to release at half of the sentence.

Iddon v Warner [2021] 3 WLUK 432

The Claimant brought a claim for negligent delay in identification of breast cancer against her general practitioner which she claimed resulted in an unnecessary mastectomy and axillary dissection. She alleged she had continuing ongoing chronic pain. The Defendant admitted breach of duty and causation and made interim payments in a total of £105,000. By the time the matter reached trial, however, the defence had been amended and the claim was defended the on the basis of fundamental dishonesty.

The Claimant’s schedule of loss had initially totalled £941,182 with approximately half of the figure being for past and future loss of earnings. Approximately £250,00 was claimed for past and future care. This was revised slightly downwards after receipt of the counter schedule alleging fundamental dishonesty accompanied by intelligence material.

The fundamental dishonesty issues surrounded the Claimant’s ongoing pain with the main focus of the allegations being on the Claimant’s sporting activities.

Prior to the injury it was accepted the Claimant was a keen open water swimmer and runner. The Claimant alleged that after her operations the pain was such that, she was unable to continue with her open water swimming and was unable to run as before. The intelligence material demonstrated that, in fact, the Claimant had returned to sporting activities. In due course the Claimant provided a reply to Defence which accepted that she had been involved in 8 events, which was the entirety of the events she had participated in. She explained she had not revealed this for fear of being prosecuted for taking cannabis oil to help with her pain. She thereafter responded to a notice to admit facts served upon her, admitting she had taken part in 10 events. During her evidence to the Court the Claimant accepted that she had recruited her husband and her friend into supporting her dishonest account of her activities, inter alia, in that they supported her contention her friend had taken her place at some events. His Honour Judge Sephton QC found:

“in my judgment it is fair to characterise Mrs Iddon’s conduct as inciting, and then participating in, a conspiracy to pervert the course of justice”.

His Honour Judge Sephton QC made 9 findings with respect to fundamental dishonesty allegations. These included that she represented in a witness statement she had given a full account of her sporting activities when she had not and verified with a statement of truth two schedule of loss which advanced a claim for an amount exceeding £900,000, along with continuing to advance her account in the witness box. Summarising the relevant case law, he found the Claimant to be fundamentally dishonest, and that, despite having bought a house with the interim payment, the Claimant would not suffer substantial injustice were the Defendant not required to pay damages. The claim was dismissed with an order pursuant to s57 of the Criminal Justice and Courts Act 2015.