1153
Medicine and the Law Damages award affected by decision to limit family In a successful action against Enfield Health Authority after the birth of a third child seriously handicapped with congenital rubella syndrome, the plaintiffs claimed negligent failure to diagnose rubella in the mother and to warn her that the fetus might be affected. The mother had been told at an antenatal clinic that she was free of infection. Had she known that she was infected with rubella she would have had the pregnancy terminated. The child was seriously handicapped and for his sake the plaintiffs decided not to have another child; a subsequent unexpected pregnancy was terminated. The defendants admitted negligence. Mr Justice Drake awarded a total of 68 000. The health authority appealed in respect of the 1050 a year awarded for the ordinary, basic costs of providing for and maintaining the handicapped child. The question before the Court of Appeal was whether the money saved by the plaintiffs’ decision not to have more children should be taken into account in awarding damages payable in respect of the handicapped child’s ordinary upkeep. With regret, the Court of Appeal held that it should.
Justice Butler-Sloss said that the aim in quantifying damages was to place the injured party, so far as possible, in as good a position financially as if the negligence had not occurred but in no better position. The plaintiffs had contended that the costs incurred as a result of the birth related to the handicapped child and could not be equated with equivalent costs in respect of another child. But this was to regard the child in isolation from the rest of the family, which was not the right approach. The fact that the parents would not now incur the costs of bringing up further children (they had planned to have four) had reduced their future expenditure. They had been compensated for the additional expenditure caused by the handicapped child’s special needs. Their decision not to have another child, with the consequential saving of expenditure, was a consideration that the defendant health authority was entitled to have brought into account. The trial judge had been in error when he failed to adjust the award accordingly. On the facts of this case, the deduction would extinguish this head of damages. Lord Justice Mann and Sir Christopher Slade concurred. Lord
Salih v Enfield Health Authority, Court of Appeal, March 12,1991.
Diana Brahams
clinicians and pharmacologists), from the pharmaceutical industry, and from the world of finance. Essentially the conference was an exchange that enabled workers from eastern and western Europe to learn how health care, advances in pharmaceuticals, and medical research had developed against very different political backgrounds, and how an integrated Europe could benefit from the current
political changes. A major theme was the development of pharmaceuticals in the West and how we have coped with ensuring adequate safeguards for the public against the pressures of commercial freedom-through measures such as the establishment of effective regulatory procedures, guidelines for the proper conduct of clinical trials, ethics committees, and restrictions on promotional expenditure and content. Some east European countries are already putting licensing arrangements in place and establishing links with multinational pharmaceutical companies. The availability of patients in east European countries suitable for participation in clinical trials could ease the difficulty of patient shortage in the West, provided the patients’ interests are protected and fair payment for work is negotiated. Some countries have appreciated how charging for clinical research can provide badly needed hard currency, and to this end they have lifted the prohibition of payment for clinical trials. So far the pharmaceutical industry has shown a cautious interest. A French company, Sanofi, has paid US$80 million for a Hungarian state firm, and Europe as a whole has invested$1-75 billion in joint ventures, slightly less than what the rest of the European community has invested in Spain and Portugal. However, Western industry, which faces spiralling costs for clinical trials and toxicology studies, is not unaware that in due course the East may provide less expensive options. But there are difficulties in creating a modem clinical research environment in what could still become a financial disaster area. Even Budapest, tipped as the former satellite most likely to succeed and in many ways a modem city, has a telephone system that doesn’t work well when it rains, lacks office space, air routes, banking, and transport, suffers an inflation rate of 30%, and is in some areas exposed to high levels of industrial pollution. Furthermore, people in eastern Europe are still largely ignorant of what one industrialist called "marketisation"-a process by which consumers choose, producers manufacture to satisfy market demand, and products are promoted by modem marketing
techniques.
Conference Eastern promise are a quarter of a million medical researchers in working the USSR and eastern Europe but, as admitted by their senior academics at a conference in Budapest last month, the region is not renowned for medical advances. These academics were seeking to increase cooperation with their Western colleagues and to benefit from research strategies that have led to medical and therapeutic progress. The meeting, on The Pharmaceutical Industry in an Extended Europe, was sponsored mainly by Euro Health Group, a health policy consultancy based in Copenhagen. It brought together an unusual gathering of east European health ministers, would-be entrepreneurs, and medical academics. From the West, there were senior representatives from research departments (who included
There
There is no framework for ethical committees to be set up legislation to protect intellectual property rights and, therefore, patents. Good manufacturing practice and good clinical practice are constrained by lack of organisation and finance. A speaker from eastern Europe admitted that their doctors lacked the experience, the knowledge, and above all the confidence to carry out controlled trials. But participants were keen to learn and to exchange information. One session brought together the USSR deputy health minister, the Polish minister of science and education, and the chairman of the Committee of Drugs in Czechoslovakia, the National Institute of Pharmacy in Budapest, and the Bulgarian Drug Commission. During the informal discussions that took place between them after their presentations (on drug regulation) there were indications of how ideas exchanged were being taken up in ways that could influence health policies in their respective countries. At another session Western delegates described various models on which eastern Europe could start to build a or
Medicine and the Law Damages award affected by decision to limit family In a successful action against Enfield Health Authority after the birth of a third child seriously handicapped with congenital rubella syndrome, the plaintiffs claimed negligent failure to diagnose rubella in the mother and to warn her that the fetus might be affected. The mother had been told at an antenatal clinic that she was free of infection. Had she known that she was infected with rubella she would have had the pregnancy terminated. The child was seriously handicapped and for his sake the plaintiffs decided not to have another child; a subsequent unexpected pregnancy was terminated. The defendants admitted negligence. Mr Justice Drake awarded a total of 68 000. The health authority appealed in respect of the 1050 a year awarded for the ordinary, basic costs of providing for and maintaining the handicapped child. The question before the Court of Appeal was whether the money saved by the plaintiffs’ decision not to have more children should be taken into account in awarding damages payable in respect of the handicapped child’s ordinary upkeep. With regret, the Court of Appeal held that it should.
Justice Butler-Sloss said that the aim in quantifying damages was to place the injured party, so far as possible, in as good a position financially as if the negligence had not occurred but in no better position. The plaintiffs had contended that the costs incurred as a result of the birth related to the handicapped child and could not be equated with equivalent costs in respect of another child. But this was to regard the child in isolation from the rest of the family, which was not the right approach. The fact that the parents would not now incur the costs of bringing up further children (they had planned to have four) had reduced their future expenditure. They had been compensated for the additional expenditure caused by the handicapped child’s special needs. Their decision not to have another child, with the consequential saving of expenditure, was a consideration that the defendant health authority was entitled to have brought into account. The trial judge had been in error when he failed to adjust the award accordingly. On the facts of this case, the deduction would extinguish this head of damages. Lord Justice Mann and Sir Christopher Slade concurred. Lord
Salih v Enfield Health Authority, Court of Appeal, March 12,1991.
Diana Brahams
clinicians and pharmacologists), from the pharmaceutical industry, and from the world of finance. Essentially the conference was an exchange that enabled workers from eastern and western Europe to learn how health care, advances in pharmaceuticals, and medical research had developed against very different political backgrounds, and how an integrated Europe could benefit from the current
political changes. A major theme was the development of pharmaceuticals in the West and how we have coped with ensuring adequate safeguards for the public against the pressures of commercial freedom-through measures such as the establishment of effective regulatory procedures, guidelines for the proper conduct of clinical trials, ethics committees, and restrictions on promotional expenditure and content. Some east European countries are already putting licensing arrangements in place and establishing links with multinational pharmaceutical companies. The availability of patients in east European countries suitable for participation in clinical trials could ease the difficulty of patient shortage in the West, provided the patients’ interests are protected and fair payment for work is negotiated. Some countries have appreciated how charging for clinical research can provide badly needed hard currency, and to this end they have lifted the prohibition of payment for clinical trials. So far the pharmaceutical industry has shown a cautious interest. A French company, Sanofi, has paid US$80 million for a Hungarian state firm, and Europe as a whole has invested$1-75 billion in joint ventures, slightly less than what the rest of the European community has invested in Spain and Portugal. However, Western industry, which faces spiralling costs for clinical trials and toxicology studies, is not unaware that in due course the East may provide less expensive options. But there are difficulties in creating a modem clinical research environment in what could still become a financial disaster area. Even Budapest, tipped as the former satellite most likely to succeed and in many ways a modem city, has a telephone system that doesn’t work well when it rains, lacks office space, air routes, banking, and transport, suffers an inflation rate of 30%, and is in some areas exposed to high levels of industrial pollution. Furthermore, people in eastern Europe are still largely ignorant of what one industrialist called "marketisation"-a process by which consumers choose, producers manufacture to satisfy market demand, and products are promoted by modem marketing
techniques.
Conference Eastern promise are a quarter of a million medical researchers in working the USSR and eastern Europe but, as admitted by their senior academics at a conference in Budapest last month, the region is not renowned for medical advances. These academics were seeking to increase cooperation with their Western colleagues and to benefit from research strategies that have led to medical and therapeutic progress. The meeting, on The Pharmaceutical Industry in an Extended Europe, was sponsored mainly by Euro Health Group, a health policy consultancy based in Copenhagen. It brought together an unusual gathering of east European health ministers, would-be entrepreneurs, and medical academics. From the West, there were senior representatives from research departments (who included
There
There is no framework for ethical committees to be set up legislation to protect intellectual property rights and, therefore, patents. Good manufacturing practice and good clinical practice are constrained by lack of organisation and finance. A speaker from eastern Europe admitted that their doctors lacked the experience, the knowledge, and above all the confidence to carry out controlled trials. But participants were keen to learn and to exchange information. One session brought together the USSR deputy health minister, the Polish minister of science and education, and the chairman of the Committee of Drugs in Czechoslovakia, the National Institute of Pharmacy in Budapest, and the Bulgarian Drug Commission. During the informal discussions that took place between them after their presentations (on drug regulation) there were indications of how ideas exchanged were being taken up in ways that could influence health policies in their respective countries. At another session Western delegates described various models on which eastern Europe could start to build a or
