Hi. Sarah Boothby posted this on David Tuller's Trial By Error: Valerie Eliot Smith on the Inquest Findings https://virology.ws/2024/08/12/trial-by-error-valerie-eliot-smith-on-the-inquest-findings/
How do they prove damage? I was wrongfully sectioned for a month, went through a horrible ordeal, and had my condition made permanently worse but when I got out, nobody would take my case because I didn't have objective proof of damage.
It could come down to having an expert witness. When I looked at this previously it was the lack of a NHS doctor willing to get involved in legal matters or any ME doctors with the relevant experience that would be respected in court.
I haven't done any research into past ME/CFS negligence claims, but I think there are two key issues with many cases. The first is standard of care. Would a reasonable doctor in the position of your doctor have prescribed GET? I imagine that, prior to the 2018 NICE report, a court would find a reasonable doctor could prescribe GET. If the official guidelines, textbooks and leading doctors say that GET is an effective treatment then its hard to argue your doctor fell beneath the standard of a reasonable doctor. The second is causation. You have to prove that the negligence caused your damage, which is usually a permanent worsening of your ME/CFS. Patients and ME/CFS experts know that overexertion can cause a permanent worsening. But the scientific evidence behind this proposition is thinner than we'd like. There aren't any trials where they forced a bunch of patients to exercise and they were documented as becoming permanently worse. The closest we come is actually the PACE trial. The GET arm had statistically significantly more severe adverse events than the other arms. Crucially though, the authors reported there was no significant difference in severe adverse reactions between the arms. An adverse reaction is an adverse event that the doctors think is caused by the treatment. Naturally, the doctors didn't think exercise could cause these harms and therefore didn't document the adverse events as adverse reactions. So to prove causation, you would need to have your experts give evidence and the NHS/doctor would have their experts give evidence to the contrary. It comes down to who the court considers is more credible so its a bit of a gamble. These issues can be overcome. For example, if you had handed your doctor a paper saying that exercise worsens GET, I think that changes the equation a bit. Its just that your case is a bit risky. No win no fee lawyers tend to only take strong cases because they dont get paid if they lose. Maeve's case is quite different from your standard case. Causation is really clear - she didn't get a food tube so she starved and died. The question is standard of care - would a reasonable doctor have given her a food tube? The coroner found that it was unsafe to give her a food tube. I don't know if that's true. If they sued, it would be another battle of the experts. If it is true though, that would probably not be negligence. Its not reasonable to give someone an unsafe treatment. Anyway, if anyone is considering a negligence lawsuit, I encourage you to speak to a lawyer. Most lawyers offer a free initial consult to determine if you have a case. There are a lot of minor distinctions that may not be apparent to a layman. Your lawyer can figure them out for you.
just to check is there a risk of you getting landed with the legal fees for the other side in the worst case scenario, even if your own legal is on no-win no-fee (for you)?
Yep. They can dismiss survey evidence of worsening from GET as anecdotal. I would think that such legal action currently has no hope of success. The majority of people were harmed by GET when GET was the standard of care. Although the NICE guidelines have been updated, there is currently no medical evidence that forced increased activity on NHS wards or formal GET programmes cause biological damage to us. Self-reported increased symptoms can be dismissed as the imagination of people with psychosomatic mental illness.
I don't think causation is impossible to prove, I just think its risky. We don't need to prove that exercise causes harm to a scientific/medical standard. The civil standard of proof is the balance of probabilities - we just need to prove its more likely than not that exercise causes harm. I think we can prove that. I think you just need a strong lawyer and the ability to pay them. There's a mountain of evidence on our side. We can look at Appelman et al who found that exercise causes muscle damage in LC. We can argue PACE showed harm, but the authors misinterpreted the data. We can use the survey evidence. We can use testimony from ME/CFS patients who got worse. We can get the leading ME/CFS experts to testify. We can point to the IOM report as the consensus of expert opinion. What's the argument on their side? The Cochrane review looked at a number of RCTs involving GET and none of them reported any cases of permanent deterioration. This argument can be undercut by the fact the only one of these RCTs that formally reported safety data was the PACE trials. I think one or two others anecdotally mentioned there was no deterioriation but it wasn't formally measured. The other evidence they have is expert evidence. But is there any expert who believes ME/CFS is biological who doesn't believe exercise causes harm? The only one I can think of is Andrew Lloyd. He runs a GET clinic so one could undercut his credibility by pointing out his conflict of interest. I would dearly love for a highly paid KC to put Lloyd on the stand so he can shred his credibility to bits. The standard of care is a more difficult barrier, but I think it can still be overcome, particularly in Australia where the legal test is slightly different. Most of us can't afford a good lawyer (heck, given the cost most working lawyers can't afford a good lawyer), but one scenario where I can see this getting up is through insurance. If you successfully claim on your insurance, the doctrine of subrogation means the insurer can sue on your behalf against your doctor. Yes, this is a risk. The no win no fee agreement only covers costs incurred by your lawyers (billable hours, consulting doctors etc). It does not cover costs in the event you lose.
@Paraprosdokian I agree with your approach as a layman with some understanding of medical idemnity. I think being able to successfully claim on your Medical Insurance may be difficult? I know, in NZ, of one psychiatrist who is basically a "psychiatrist for hire" and is also Consultation-Liaison Psychiatrist, who writes opinions for Medical Insurers on claims eg on what illnesses are physical and what are in doubt (from his point of view)and are more likely a psychological or psychosomatic disorder. Despite having had legal challenges to his opinions, (in non-ME cases), he is still active in the Insurance industry. The Insurance Companies have then adjusted their policies to exclude psychological and psychiatric disorders from certain insurance i.e. income protection insurance for LC and ME/CFS Just wondering if this is a barrier to getting a successful claim. Are Medical Insurance companies going to realistically, fight for us? Do you know of any cases that have been successful for a pwME?
I personally have succeeded in my income protection insurance for ME/CFS. My assessor implied they get a lot of "CFS" cases. They even have a special form for fatigue disorders. When I applied, they asked "do you have legal entitlement for compensation for anyone". I ticked no (I didn't think so at the time). On reflection, I could have ticked yes. My case was a strong case, however, and I made sure I crossed every t and dotted every i. I read every word of the contract and the insurance act. Even then, I could see a nasty insurer denying my claim at first instance and forcing me to appeal through various processes. I was lucky to have a good insurer or assessor. Will insurance companies fight for us? Never. But they will fight for their money. In my case, I don't think the cost benefit ratio was favourable. I got paid two years salary. It would have cost way more to launch a risky legal action than they would have gotten in compensation. Maybe in other cases the cost benefit ratio is different. For example, I saw an Aussie diplomat got ME/CFS while on posting in India. If she had become permanently unable to work nd successfully claimed on workers comp, then her payout could be quite large. That insurance company might have an incentive to launch an action. This is a purely theoretical perspective, though. I've never worked in litigation or insurance so I don't really know how things go down in practice.
I started a personal injury claim using my house hold insurance. The problem was not finding a lawyer as the funding was in place. It was finding ME medical experts with a proven record of court processes. Back then we had very few doctors who were prepared to write court reports and act as an Expert witness. From memory one of the few cases I could find the Expert used was Professor Findley (Queens Romford). I was told that the courts in England want to see experienced local Expert witnesses and they have no interest in general developments from outside that area.
I've only just come across this post while I was doing a search for something else. I have written about the possibility and problems associated with legal action in various blog posts over the years. In case it's of any use to anyone here, I have added the link to the most relevant post (from 2020) below. As mentioned above (and as we saw at the inquest touching upon the death of Maeve Boothby O'Neill), one of the biggest obstacles is finding acceptable expert medical witnesses - and it hasn't got any better since I wrote this post. Unfortunately, the link in the post which deals with funding is no longer available. I'm looking for an alternative source and will correct it in due course. Briefly, the alternatives are "no-win no-fee", support from charities, private funding, crowdfunding or litigation funding (unlikely at this point). Scroll to about halfway down the post to the heading "Medical negligence claims" https://valerieeliotsmith.com/2020/05/05/covid-19-nice-and-me-towards-litigation/ ETA: @Yessica Also - harm caused by wrongful sectioning is a very different problem, not addressed here. There are some significant challenges involved. However, many of the evidential obstacles are the same as in more straightforward clinical negligence claims.
Perhaps @Valerie Eliot Smith could confirm, but when I did an injury no win-no fee, the other's side's costs were covered by insurance. I think that is standard in such cases.
I can well imagine, especially since the best they could probably say about treating ME/CFS is that there isn't any evidence and there aren't any experts. Hopefully, though, an evidence base will begin to build about feeding people with very severe illness. It would be good if the hospital that failed to treat Maeve could be one of the leaders. That could happen in theory, as they must be acutely aware their reputation has taken a battering and they need to do much, much better.
You're quite right, John. In this type of case, even if your claim is unsuccessful, the other side's costs are still covered. "No win no fee" cases are based on a calculated insurance risk. However, this does mean that, even if your claim is successful, you will not recover as much as if it was funded privately as there are other costs that have to be paid out. It also means that this type of funding is not necessarily available for cases that are assessed as higher risk. The full name for this type of case is a "conditional fee arangement" or "CFA". ETA: useful link HERE.
