In our recent blog “Tragedy, Mystery, Curiosity” we considered the sad case of Frances Cappuccini, the 30 year old mother of two who died when she failed to recover from anaesthesia following a caesarean section carried out at Tunbridge Wells Hospital in 2012.
Her death was clearly a tragedy but it remained a mystery to us, as medical negligence lawyers, why the doctors involved in her care and the Maidstone and Tunbridge Wells NHS Trust had been charged with manslaughter. Whilst it goes without saying that an avoidable death should be fully investigated, historically if there was a breach of a duty of care by the doctor, that breach often resulted in a civil claim for compensation rather than criminal proceedings. Even in civil compensation claims, proving fault on the part of the doctor is no simple task, requiring complex expert medical evidence to persuade the court that it is more than 50% likely that there has been a failing in the standard of care. To succeed in establishing that a crime has been committed a jury, not a Judge, has to be satisfied “beyond all reasonable doubt”, i.e. 100% certain, that the doctor is guilty, a much higher standard than in a civil claim. It appeared to us that recent trends suggest a willingness to prosecute doctors, nurses and other clinicians in the criminal courts in a way which has rarely happened in the past. In the knowledge that securing a conviction in the criminal courts is even more difficult than pursuing a civil claim for compensation and is not likely to provide recompense to the family of the victim, (although the existence of criminal proceedings does not prevent a civil claim being brought as well), the question has to arise – why spend public time and money on such actions?
Whilst the rationale for bringing criminal proceedings may have been a mystery to us, the case, as Alice might well say, has become “Curioser and curioser”. Today the trial Judge made it clear that he shared our reservations, bringing proceedings to a halt without letting the issue of innocence or guilt go to the jury.
The Judge found that there was little or no evidence that Dr Cornish, a consultant anaesthetist charged with manslaughter, had done anything wrong that had contributed to Mrs Cappuccini’s death. Mr Justice Coulson, a very experienced Judge went on to say that there was no evidence of a systemic failure at the Maidstone and Tunbridge Wells Trust.
I am firmly of the view that it would be unsafe and unfair to everyone, including Mrs Cappuccini’s family, to leave this case to the jury. Her unexpected death can only properly be described as a tragedy.”
When a Judge describes the Defendant’s conduct as, “as far removed from a case of gross negligence manslaughter as it’s possible to be” and finds that the Trust which employed him had no case to answer, the rationale behind the decision to prosecute in the first place must be open to question.
The Crown Prosecution Service (CPS) said it had “carefully considered” Mr Justice Coulson’s judgement and decided not to appeal his decision.
So Mrs Cappuccini’s family have been exposed to the distressing experience of a criminal trial and have yet to receive the answers they need. If the criminal justice system is intended to uphold the rights of patients when access to justice through the civil system becomes severely restricted by the proposed changes to the conduct of clinical negligence claims, it will need to serve them better than it has in this sad case.
If you or your family have experienced difficulties or concerns arising from medical treatment you have received, contact the Clarke Willmott clinical negligence team on 0800 316 8892