By the day we see growth and increasing complexity in the compensation culture that surrounds us, and although the moral standing is arguable, the law exists to protect people, businesses and their productivity. But is this the truth for all nations? In the case of German product liability law, justice really grits its teeth and in most scenarios, consumers or businesses are able to achieve a just resolution, but on the other hand, manufacturers are strongly in need of experienced and knowledgeable insight from a specialized lawyer.

Here Philipp Reusch, Founder and Managing Partner of Reuschlaw, talks to Lawyer Monthly about the changes the German and EU landscape has experienced in recent years, the dominant themes surrounding product liability throughout Germany, and about the impact of alternative dispute resolution methods in this legal segment. Philipp also talks about trends in the sector, his experiences that led to this practice, and the laws he would change if he had the power.

What systems of product liability are available in Germany?

Let me first draw your attention to the fact that product liability law has undergone profound changes in recent years. As the European Union focuses on a high level of consumer protection, product liability related legislation has evolved into a complex system of interacting requirements that manufacturers face today. Issues may already arise in determining which directive is applicable, whether technical standards are legally binding.

German law adopted and extended the European legislative input. Civil law infringements may consist in manufacturers’ fault or even “simple” negligence during the placement on the market.

Public authorities determine whether manufacturers met the safety and labelling requirements, which differ regarding the products’ types. Manufacturers can be personally held responsible according to criminal law. Hence, it may seem that product liability law is a minefield for any manufacturer. This is why we want to assist our clients on their way to a fully compliant yet profitable production. My team and I will not be satisfying ourselves in pointing out the risks in boring legal opinions. Presenting a selection of feasible and reasonable options not only for the present situation but also anticipating future business challenges is what our clients can expect. Mutual trust, our knowledge and our experience create the synergy that makes us business partners instead of spoilsports.

What have been the key areas of litigation in the German product liability sector in recent years?

Product liability litigation can occur between customers and manufacturers as well as between manufacturers themselves. Customer-related cases often involve safety aspects and get more publicity. For instance, when you buy a mountain bike, you expect it to be suitable for driving in rough terrain without falling apart. Another case led to the conclusion that even extremely cheap products, though they may not reach a high quality level, should nonetheless match the safety levels required by law. As such, litigation involving customers often recurs to interpretation of rules and by that produce the opportunity to deduce manufacturers’ particular requirements.

As product liability is also strongly related to labelling and safety requirements, disputes on the B2B level often arise with regard to manufacturers’ tort, damage or recall responsibilities. At this stage, rules of law rather serve to determine the scope of duties and responsibilities as such, whereas contracts and contract law clarify internal settlements.

What do businesses need to be particularly mindful of, in terms of product liability, in order to avoid litigation?

From a manufacturers’ point of view, prevention is the key. As long as a product is not defective, no litigation is looming. On this account, the responsibilities begin with a quality management system covering every stage of production – encompassing the production’s organization, development, production and observation. Nevertheless, a quality management system reaches its limits when it comes to relations with other businesses. A simple advice, though often hardly to achieve: a good contract avoids disputes. Most of the time, the parties’ horizon is limited to the future business opportunity. In that situation, no one wants to discuss potential conflicts – a lawyer’s alert is often considered to be embarrassing or even exaggerated. However, clear and legally valid liability clauses contribute to a fair and effective management in the event of critical situations.

Furthermore, both parties should not lose sight of the big picture: although conflicts may arise out of business relations, the relation is still something that both sides want to keep alive. Bearing this in mind, agreeing upon solving issues by the means of discussion, mediation or ADR may be the key to a mutual understanding.

What role do alternative dispute resolution methods such as arbitration and mediation play in resolving product liability disputes, as opposed to litigation? What would you say are the advantages of ADR?

Even though the German Civil Procedure Code stipulates a conciliation hearing, it still takes places within a court litigation. De facto, ADR or mediation are not very popular in Germany, probably due to the parties’ lack of understanding. I think that German mentality is aiming for something reliable – a need only a court’s judgement can satisfy.

The main advantage consists in maintaining a cooperative spirit between the parties. In particular when it comes to the automotive sector, the market is relatively narrow. Both OEM and supplier cannot afford to totally break up their business relations. However, it would be splendid if the parties would work together ahead of possible conflicts and therefore recognize that a synergy of efforts to prevent product liability cases is the route to take – rather than litigate afterwards.

In product liability-related court proceedings, does the court have power to appoint technical specialists to sit with the judge and assess the evidence presented by the parties (i.e. expert assessors)?

German Civil Procedural Law provides that a claim’s decisive facts may only be substantiated by certain means of evidence. Among these evidences, rules of law not only provide the court with the power of their appointment but also with the authority to issue directives regarding the experts’ scope of analysis. This means that there are no direct ways for an attorney to impact on the experts’ work. Although the court cannot yield a decision to an expert, it practically often does. It is therefore crucial to lead the proceeding in a manner that the court will set clear guidelines to the expert in a way that the analysis – and favorably also the result – support your own argumentation and the client’s point of view. However, regardless of the expertise, a specialist is considered as a “normal” witness and an opinion’s value does not increase by labelling it “specialist”. A clear, carefully arranged and consistent procedural strategy will.

There is an increasing awareness of liability and fault when it comes to an organization, institution or a business falling into financial jeopardy, but it is often unclear who is liable for what, and what protections exist against liability. Is a company guilty of poor management? Should the individuals be held accountable for the fall-shorts of a company?

Here to answer some of these questions, and shed light on the matter of individual liability, is Ellen Zimiles, Head of Navigant’s Global Investigations and Compliance and the Financial Services Advisory and Compliance segment leader. at Navigant.

Ellen talks to Lawyer Monthly about the establishment of the Yates Memo, and the impact that has had in this legal segment in the US so far, but also touches on the foundations of what makes a both a business and its individuals accountable.

Currently, who is liable in a company when something goes wrong financially?

It isn’t uncommon to see third party shareholder suits against directors and officers, and this is mainly due to the fact that the role of the director is to provide oversight, and if there is no oversight, or a lack thereof, then that is a breach of their fiduciary duty.

There is also such thing as a shareholder derivative suit, but the issue would have to meet a very high standard” to hold a director liable.

The question is how systemic, or how rampant is the issue in question? Is it one rogue issue that the director or officer wouldn’t see, or is it a systemic and consistent issue that the director or officer should be aware of, or should have made efforts to enquire about?

From a civil point of view, liability will often fall on the company itself, but it is becoming more and more normal for the Department of Justice and other authorities to want to hold individuals accountable.

For example, in 2014 in the UK, the banking regulators set forth rules for the first time that allow firms to claw back any compensation due to managers if they find the manager accountable for inappropriate activity or inadequate supervision. The US has had more flexibility in this area. Pensions, however, cannot be clawed back, as there are many specific restrictions and protections therefor.

How is the evaluation of appropriate sanctions logistically investigated and measured?

In September 2015 Deputy Attorney General Sally Quillian Yates issued a memorandum, called the ‘Yates Memo’. This predominantly involves individual liability legislation, and in relation to criminal or civil procedures, has now allowed the Department of Justice to adopt the following position: a corporation cannot have their financial issues resolved until they have given all evidence required and all cooperation they can relating to individuals involved.

The only way that a corporation can now resolve an issue, whether through prosecution, settlement, or otherwise, is by fully cooperating and handing over all requested information about their managers and employees.

Prior to the Yates Memo, there was a sense that the US government wanted to distinguish between criminal and civil liability, because they didn’t want anyone to accuse the United States Department of Justice (DOJ) of using a criminal case to impact a civil case inappropriately. What then took precedence was the idea that all pieces should be working together, with a lot more coordination and collaboration on liability issues in question.

There is now a team in DOJ dedicated entirely to ‘kleptocracy’, which focuses on the US assets of corrupt foreign government officials. The team uses civil asset forfeiture in addition criminal remedies and coordinates the criminal and civil sides.

In March 2016, a Senior Managers Regime was introduced in the UK (CMA), allowing the FCA to hold senior management more accountable. What similar legislation exists in the US?

Financial regulators in the US, whether it’s the Options Clearing Corporation (OCC), the Federal Reserve, or the Department of Financial Services (DFS) want to see much more individual accountability. If you look at the steps that have been taken over the last several years, there have been calls for the terminations of employees, and increasingly, actions against compliance officers.

What are the challenges and fall shorts of such regimes in holding management accountable?

Sometimes the issues cut across so many different parts of the organization that it’s more a problem of silos, or one hand not knowing what the other hand is doing, rather than one person being the sole evil genius behind the issue.

So understanding accountability, and making sure that senior managers know that they are liable for a process or an issue, is very important. At times, in matrixed organizations people don’t see the end to end process, or maybe they don’t have authority or supervision over the end to end process; they just see a piece of it. This makes it hard for them to be accountable, especially when they have no control over other parts of the business process.

That is now the oversight governance challenge, whereby an entity is dedicated to oversee the A to Z trail of operations and identify and understand where there may be a flaw.

On the other hand, is it possible that individuals could be sanctioned unfairly following an investigation that concluded by the successful defence/avoidance strategies of the corporate entity?

Often times, depending on the status of the individual, there is director and Individual Liability officer liability insurance that covers them. In addition, there has been a great deal of back and forth also regarding the payments of fees when individuals have been held liable, for example one of the questions that has arisen has been whether the institution or company is permitted to pay the legal fees of an individual held liable or whether it is appropriate for the company to do so.

The problem now is who gets indemnified? Can the organization indemnify the individual if they are found liable? But also, can the individual come against the organization, on the grounds that they were simply doing their job and acting according to their role or instructions. One way of resolving this is to identify whether the actions of the individual held liable were in furtherance of the company’s interest, or in furtherance of their own interest.

There are also usually contract clauses that include the indemnification of the individual for acts taken in their official capacity. Still the question remains, when is an act outside of said capacity, and not just part of the individual’s job?

So if you have a rogue employee that is clearly doing things illicitly or hiding behaviour from the organization, it may be difficult to understand where the fine line is, and it may not be down to the organization to indemnify the employee for those actions. But if the actions are part of a company’s plan, and go to further the interest of the company, then it’s a different story. Scrutinizing the actions taken and differentiating between the two is the key.

In the way criminal investigations are carried out in regards to individuals vs corporate entities, what do you believe needs to be further improved on?

One step that needs to be taken is establishing a way of clarifying whether an individual’s actions have been taken in their official capacity or individual capacity. Another step would be to determine what the oversight governance looks like in an organization and how the individuals and the end to end process are monitored. US authorities also need to determine whether an organization has taken all the necessary measures to ensure the oversight governance has been proper.

Individuals will still often seek to beat the system, outsmart the government, or de-fraud their employer; that happens. You can’t protect against every wrong doer, but you can establish a foundation of protection with thorough oversight across the organization. You can’t manage every single person’s behaviour, but you can manage oversight.

Do you have a mantra or motto you live by when it comes to helping your clients on white collar crime?

Things will go wrong. It is how you address and remediate that wrong doing that matters most.

Our next thought leader is Mike Appleby, Partner at Fisher Scoggins Waters, a UK Law firm specialised in construction, engineering and manufacturing litigation. Here, Mike talks to Lawyer Monthly about the health & safety matters he deals with in criminal prosecutions, about the types of incidents he encounters in his work, and about the complexities therein. He also gives several recommendations for businesses looking for counsel on health & safety matters.

Given your extensive experience in the construction, engineering and manufacturing sectors, what has been your biggest legal challenge to date? How did you navigate this issue?

When there has been an industrial accident where people have been badly injured or killed then the immediate reaction from those unfamiliar with that industry is that someone or an organisation has done something terribly wrong.

Prof. James Reason in his seminal work ‘Managing the Risks of Organizational Accidents’ observes; “The best people can make the worst mistakes. The greatest calamities can happen to conscientious and well run organizations.”

Prosecutions often rely heavily on hindsight, which distorts their approach to risk. Prof. Lofstedt, who the government tasked with reviewing our health & safety laws, often refers to the work of Dr. Daniel Kahneman and in particular his book ‘Thinking, fast and slow’. In this book Dr. Kahneman says: “We are prone to overestimate how much we understand about the world and to underestimate the role of chance in events. Over confidence is fed by the illusionary certainty of hindsight.”

The challenge is therefore to present your case so that the judge and jury get to understand the industry and the context of the risks involved. What they will be looking for is an explanation as to how and why the events occurred. In the cases we deal with, it is not so much the evidence that is in dispute but the interpretation of that evidence. As to how you overcome this challenge will depend on the nature of the case, but approaches to take can include:

a) Many of the prosecution witnesses are likely to be employees of the organisation being prosecuted. The statements taken by the HSE (or police in a manslaughter case) are likely to concentrate on the incident and a narrow topic such as risk assessment rather than consideration of the wider issues. Therefore, in appropriate cases it can be worthwhile interviewing some of these witnesses to explore their evidence. This further evidence can then be brought out when the witnesses are questioned at trial.

Also it may be a situation of asking the witness to clarify what they have said. For example, an employee may correctly say he or she has never seen a risk assessment relating to an aspect of their work. However, what may not have been explored is whether he or she has had a toolbox talk on the risks. In the construction industry, frontline workers are more likely to have toolbox talks on the risks and control measures, than see risk assessments.

b) Finding the right witnesses from the company to give evidence as part of the defence case.

c) Instructing experts who are knowledgeable and have worked in the particular industry involved. HSE tend to rely on specialist inspectors who while they may have a particular expertise (e.g. in mechanical engineering), may have little or no experience of the industry in which the incident has occurred.

d) The use of film/animation to help explain processes.

What would you say is the most common incident or damage related type of claim you deal with?

In reference to criminal prosecution cases, we deal with all types of incidents including falls from height, trench collapses, electrocutions, collisions between plant and collisions between plant and pedestrians, overturning plant, crane collapses, incidents involving machinery and guarding, exposure to noxious gases and legionella cases as well as occupational health cases e.g. Hand Arm Vibration Syndrome.

Across all types of incident there are some common failings that we encounter. These include: • Inadequate training of frontline workers;

• Procedures not being properly followed by frontline workers;

• Poor management at operational level;

• Organisations believing that health and safety can be contracted out;

• Inadequate definition of contractor’s role;

• Poor communication with workforce /contractor;

• Inadequate management, audit` and review of safety systems contractors;

• Poor control of contractors; • Senior management being told what senior management wants to hear;

• Senior management making decisions on incomplete/wrong information;

• Senior management not getting out onto the shop floor to see for themselves how the organisation operates.

There is a changing climate that brings with it new challenges for business.

The new Sentencing Guidelines for health and safety offences and corporate manslaughter make it clear that sentences will be based on the risk of potential harm and not just the harm that actually occurred. For companies, fines are related to their turnover. Big fines used to be reserved for fatal cases, but not anymore. C Ro Ports was fined £1.8 million when an employee’s arm was caught in a powered capstan used for mooring a ship. This represented approximately 8% of its annual turnover.

There is an increased trend of investigating directors and senior managers to consider whether any failings by them amount to a criminal offence. The concern with the new guidelines is that for an individual convicted of a health & safety offence, the threshold for a custodial sentence has been lowered.

Criminal courts are not used to dealing with the concept of risk. Therefore Health & Safety explaining the complexities of the risk involved can be a challenge. Because of this, and the higher stakes, expect to see more contested trials in the future.

What kind of protection can businesses resort to in defendant cases surrounding health & safety claims?

In reference to criminal prosecution cases, the key thing is to not put your head in the sand and just hope it will all go away. Even the best managed companies can have a terrible accident. Don’t take the attitude it can never happen to you.

It is well worth putting together a protocol which covers what to do in the event of an incident.

Companies should get specialist legal advice from the outset. There is a temptation to think that major health & safety incidents need large teams of lawyers and paralegals to manage their aftermath. However, in all of the many big cases in which we have been involved over the past decade, experience shows these are best managed by teams of two or three outof-house lawyers. A smaller team stays tight-knit and opportunities to establish links between emerging pieces of information and evidence are greatly enhanced.

Companies need to be vigilant about gathering/retaining evidence, as it may be some years before a prosecution is brought. Take legal advice on HSE requests for documentation/information and consider whether to challenge FFI notifications of contravention and improvement/prohibition notices. Not challenging them may have an adverse impact if prosecuted later.

Other things to consider include: (i) whether its accident investigation should be made subject to legal professional privilege (ii) identifying potential experts and retaining them (iii) if requested by the investigators, whether it is in an organisation’s best interests, to attend an interview under caution/ supply written submissions.

Can you talk LM through your involvement in the Cullen Inquiry into the Ladbroke Grove Rail Crash of October 1999 and the challenges therein?

This is where I first met Mark Scoggins and Charlotte Waters (FSW partners) who were acting for one of the train operating companies while I represented the families of the deceased train drivers involved and their trade union ASLEF.

I had represented the driver in the earlier Watford train crash, in which one passenger died, who passed a red signal, known in the industry as a SPAD – signal passed at danger. He was acquitted of gross negligence manslaughter. I discovered that the signal he passed had been passed on four other occasions in two years, after there had been changes to the signalling layout. In the industry this type of signal became known as a multi SPAD signal.

Ladbroke Grove was similar in that the signal passed at danger had been passed on eight previous occasions. While the initial focus was on the driver and his employer (the company Mark and Charlotte represented) the inquiry moved to looking to the infrastructure for explanations as to why the crash had happened.

The global nature of today’s economy makes the process of recovering the assets of fraud and other business crimes all the more difficult. The legal benefits provided by different jurisdictions are often used illegitimately by individuals to hide the proceeds of criminal actions, making it more difficult for the victims of fraud to recover their assets.

Here to talk to Lawyer Monthly about this intricate legal segment is Menelaos Kyprianou, the Managing Partner of the law firm of Michael Kyprianou & Co. LLC. Menelaos discusses the challenges involved in asset tracing, his perspective on the EU’s steps in tackling fraud, and the cases and experience behind his thought leadership on this matter.

You have dealt extensively with international litigation; what are often the challenges involved in such cases that involve fraud or asset tracing?

The main challenge is that in cases of this nature it is necessary to work with other foreign firms and investigation companies. So it is important that these are chosen carefully and I believe that only through years of experience can you make the correct selection. Another challenge is the speed with which you have to act. Many times ex parte interim orders have to be sought freezing assets, prohibiting various activities or obtaining information from banks or other bodies. So the firm has to have the depth to be able to react immediately.

How do your years of experience help navigate these issues?

Through the years our firm has forged close cooperation with very competent firms abroad, with whom we work on these cases. We are also members of exclusive networks with which we not only cooperate on pending cases but also share information and contacts. An example is the International Fraud Group which is comprised by leading global law firms in the field of fraud and asset tracing.

What is your view regarding actions taken by the EU to combat fraud?

Action to combat fraud in the EU is still hampered by differences in rules and practices in member countries which results in differing degrees of protection.

I expect that the EU will manage to further align the definitions of offences and penalties and provide a legal basis for the operation of the proposed European Public Prosecutor's Office which is currently being discussed by EU governments. If established, the EPPO should improve the investigation and prosecution of offences affecting the EU budget. Given the complexity of many types of large-scale fraud, which often involve more than a single country and so go beyond national jurisdiction, it is necessary to provide EU-wide enforcement at least on this issue.

How would you say your experience with the Board of the Cyprus Securities and Exchange Commission has contributed towards your thought leadership in the fraud segment?

I think the main point here is that through a large number of real life examples I understand better the sophisticated methods that fraudsters will use to further their criminal activities.

From the challenges confronted in the organizations of courts, to the laws behind police officers lying under oath, this thought leader has some deep insight into the judicial system, private and public defense, and attitude towards criminal law in the state of New Mexico, US.

You have been practicing in the criminal defence field for a few years now; what has been your biggest challenge so far? How did you overcome this?

My biggest challenge has been the lack of organization among the courts. There is no central docket among the different courts - specifically, between the magistrate court and district court. In Roswell, we were small enough that all the courts were in one building. In Las Cruces, this is no longer true. The attorney has to be flexible and organized. It was a common occurrence that on Mondays in Roswell I could be required to be in two different courts at the same time and frequently more than once on the same day.

We had to work as a team to handle the situations as they arose. I would have detailed notes for other attorneys to use in covering my cases. As a matter of practice, I visited all my clients in the county jails so the client was aware of what was going on with their case. I documented those visits so that I could pass the notes on to other attorneys.

My second challenge has been the lack of the internet connectivity for Public Defenders in the court room. In Roswell, the Assistant District Attorneys has access to the internet in the courtroom. However, the Public Defenders do not. This is not true in Las Cruces which is a welcome change.

I used e-mail and thumb drives whenever possible - especially with jury instructions. I would e-mail the ADA with my proposed jury instruction and have it saved on a thumb drive prior to court. It allowed us to work as a team and use the court’s resources for any necessary changes. This saves time. Internet access should be a requirement in every courthouse. It should be the court’s responsibility to ensure that every attorney has access to the internet in the court room.

A third challenge has been electronic discovery. I have found that the Assistant District Attorneys frequently do not have authority to close a deal. The Public Defender defence attorney has to acquire the entire discovery and then make an offer to the ADA and his superior if necessary - prior to the final pre-trial. Acquiring the entire discovery, downloading it and viewing the CDs takes a lot of time. It takes much longer to watch a video than it does to read a document. As a result, one is never sure that he has the entire discovery.

What have been the major turning points in legislation for the Mexican criminal justice system over that time? How have they affected your work?

Recent case law has forced public defenders to act as immigration attorneys. Public Defenders have to fully advise our clients of any and all implications of taking a plea on their immigration status. This often also requires a Spanish translator. I speak Spanish but use the translator due to recent changes in the law. The case law is specific. One cannot be speculative. The public defender must acquire knowledge of the case law. One has to check constantly to see what crimes requires an automatic deportation prior to taking the plea. This is time consuming because immigration laws and regulations are constantly changing and are sometimes retroactive.

There is the philosophical approach of Holistic legal representation. Quite often, my clients either are in bankruptcy proceedings or need to file bankruptcy. Sometimes, their destitute finances are the cause of their crimes. As a Public Defender, all I can do is refer the client to a bankruptcy attorney.

The same is true for social security benefits. Many of the indigent clients that qualify for Public Defender representation are in need of attorneys to assist them to acquire social security benefits.

A true Holistic approach would allow a public defender to open a small business to assist clients with these matters and others like DMV hearings and wills. I was under the impression that Texas allows this, why doesn’t New Mexico?

What differences do you find between your role in private practice, and as a public defender?

I believe that the role is the same for private or public representation - effective representation for your clients. I am a Public Defender; however, I have seen that private attorneys struggle with the same problem of the lack of technology available in New Mexico courthouses. Travel time and costs are obstacles that need to be addressed. In my mind, Skype and telephonic court appearances could be and should be made the standard operating procedure as it is in the state of Arizona. The attorneys would welcome the change.

In private practice, the attorneys have to pay their bills. Many private attorneys eventually refuse public defender contracts because it is not economically feasible due to travel costs and the high number of court appearances required in criminal cases. This is easily rectified by management by paying the attorneys more or spending some money to improve connectivity in the court houses. Much of the court communication with the attorneys could be done via e-mail.

I always help out the private bar if and when they need coverage in court or have legal questions. It is common that a private attorney does not have the time to do the proper legal research. The private attorney is consistently on the road. Many private attorneys understand that the Public Defenders deal with certain issues more often than they, and thus have more expertise. Frequently, I receive phone calls from private attorneys especially on DWI and juvenile related issues because I created a 150-slide Power Point attorney education presentation for the Law Office of the Public Defender that is still in use.

• From lobbyists in the State legislature when it is in session. It is very important that legislators hear from the Defense Attorney Bar both public and private.

The Legislature must stay abreast of the issues in the court system. They need feedback as to how the laws are being applied in the courts. The Lobbyists acquire the information by talking with Public Defenders and then pass it on to the legislature. The NMCDLA has a list where an attorney can volunteer to receive phone calls from the legislators.

What special difficulties lie in performing the role of a public defender?

Public Defenders have a legal obligation to provide representation for indigent citizens. The state, with the current economic downturn, has less tax money. The Public Defender offices are always short on financing their needs for staff. The needs are:

• Staff to support the Public Defenders is short. Each staff member in the offices that I have worked in is required to do the work of three people. The staff does an excellent job but there is too much work and not enough staff to do it.

• When I served as an assistant District Attorney, each attorney had his own secretary. In most Public Defenders offices, each attorney shares a secretary with a number of other attorneys. This often forces the Public Defender to do their own secretarial work and paralegal work.

• In most Public Defenders offices, each attorney shares the paralegals. The paralegals are often required to do secretarial work.

• In most Public Defender offices, we do not have enough social workers and investigators to do a thorough job. A Public Defenders office may have one of each. In comparison, the District Attorney’s office may have two or three of each position.

Electronic discovery is a step in the right direction. However, it is only as good as the information that is uploaded to its databases and the system that supports it. This means that there is a consistent issue with electronic discovery. The information may have been disclosed to the public defender’s office but this does not always mean that the attorney has access to the discovery or that he has the proper software to view the discovery.

A Public Defender is forced to do multiple jobs in multiple disciplines. A public defender is forced in today’s reduced resource environment to fill multiple roles:

• Counsellor,

• Social worker,

• Absentee parent.

The case is not closed at the entry of the judgment and sentence or order revoking probation. A Public Defender should follow through with the client and assist the client in:

• Getting into rehabs,

• Getting into residential treatment centers or outpatient counselling.

The Public Defender must be flexible in servicing the client - depending on the needs of the client. If this is not done properly, the client often violates his or her probation and a new case is filed.

I provide service to my clients which means:

• More work assisting the client to do what the court has required him or her to do.

• Providing a common sense approach to counselling my clients.

o Listening to the client either via a jail visit or a phone call can really help. It shows that you care. A practical example is to participate Drug Court. It is worth the extra time invested in your clients.

o Filing paperwork for a client to have furlough to attend a family member’s funeral. When the client sees that you care, it is remembered and respected.

In 2016, I was awarded one of the “Top Ten Attorney’s in the State for Customer Satisfaction.”

Could the way liability crimes are dealt with be improved? How does the requirement for ‘mens rea’ come into this?

The law should be changed. Zero tolerance laws and no tolerance probation are both extremely problematic. This means that someone who makes a mistake or has an accident is treated the same as the person who fully intended to do a crime. They are not the same types of clients. It removes discretion from the Courts to use judicial discretion in sentencing.

The definition of a crime requires an actus rea and a mens rea. An accident can often be a mistake that has caused harm but does not rise to the level of a crime. No mens rea means that there was no intent so there was no crime. It was just an accident. These laws have changed the definition of a crime which was created in Common Law. The definition of a crime requires a mens rea for a reason. Without a mens rea, it may be just an accident.

Do you think the judicial management of prosecutorial discretion could be better? Please explain.

Criminal procedure has inherent teaching methods built into the system. When a case does not survive past motion for directed verdict, then it often should not have gone to trial in the first place. Foulenfont motions serve the same purpose. The act of dismissing a case teaches the Assistant District Attorney that he should not have filed the case or should have dismissed the case prior to trial because the witnesses were not reliable.

In my view, the Judges need to be given the discretion to dismiss more cases at every stage of the system. For instance, the act of charging an individual with a crime is very serious regardless of the nature of the crime. In civil practice, when one files a frivolous law suit, there can be rule 11 sanction filed against the attorney.

The national average is supposedly around 10% for Public Defender victories. It is not uncommon today in New Mexico that Public Defender offices average a 50% to 75% win ratio or higher. This shows that the District Attorney in those jurisdictions have a serious problem. Cases that often should not have been filed and many times should not have made it past the motion for directed verdict are going to jury. I have litigated approximately 150 trials. Over 100 jury trials. My win ratio is extremely high.

A simple procedural change is required by having the Judges control this by requiring that the District Attorney’s office have their witnesses properly served by the final pre-trial. At that point, the District attorney should ‘nolle prosequi’ a case. The Judges cannot require this. However, the Judges can dismiss a case with prejudice if the state’s witnesses have not been properly served, do not show up on the day of trial or prove to be unreliable.

Prosecutors should be given authority to handle their cases. A District Attorney should allow his assistant District Attorneys to make decisions. It some jurisdictions in New Mexico, the assistant District Attorney has no authority to approve counter offers or make the slightest change to their offer. It all has to be approved ahead of time and by a superior. This micromanagement constraint causes major issues at pre-trial. When this happens, the Public Defender should not be blamed. It is a known fact that micromanagement does not work and slows the system down.

Is there anything else you would like to add?

The roles of probation and parole need to be revaluated. The probation officers have an immense amount of power. In juvenile court, the merits’ hearings require beyond a reasonable doubt as the burden of proof. Adult probation and parole merits’ hearings should also use beyond a reasonable doubt. Currently, a District Attorney can litigate a new charge the client picks up on probation in a merits hearing under a lower burden of proof then he would if the new charge was filed as a normal cause of action. The client may often also end up with more jail time than he would have gotten otherwise via a violation for the remainder of his probation; which could include any suspended time.

In juvenile court, the use of social workers as psychologists needs to be addressed - Psychological Evaluations should only be used when there is specific need or to fund an out of home placement.

The number of evaluations has sky-rocketed. They are often not evidence based. They also provide the judge with unreliable hearsay, the damage of which cannot be reversed once it on the record. HIPPA laws are sometimes involved but not enforced. A social worker is doing the evaluations. They are not psychologists. The evaluations are not given to the Defense attorneys in sufficient time to get a second evaluation if they disagree with the results. Being handed the evaluation at the sentencing hearing is completely unacceptable, and is also against specific procedural rules. However, criminal procedure is only as good as it is enforced.

Moreover, the reason that this occurs is that evaluations are used entirely too often. The only time they should be used is to fund out of home placement like a residential treatment center. A sentence of probation or a commitment should not require an evaluation. YDDC does their own set of tests once a juvenile arrives at their facility; it is a waste of state resources.

Police Officers Caught Lying Under Oath - When a Police officer is caught lying under oath, why is this police officer not disciplined? The discipline made public and any cases that this police officer is involved seriously suspect?

In some cases, there is a long history of this behaviour with specific officers. These police officers have violated their public duty and need to be terminated from their positions. Honest police officers often welcome the use of cameras. It proves that many do their job exceptionally well. It also promotes professionalism and the concept of protect and serve. This helps public moral and improves the image of the criminal justice system.

Defendants feel tainted by a witness who lies under oath. They never forget it. The whole system suffers. It is a much bigger problem than the general public and the court system recognizes. How often do you hear the term the Justice system? It is now called the legal system because many people - my defendants in particular - do not believe that justice exists anymore.

As part of our thought leader focus on Intellectual Property, Lawyer Monthly has been talking to Jackie Johnson, a Partner at D Young & Co. specialized in trademarks. Jackie provides us with an update on the latest regulatory developments in the UK’s design landscape, with a particular excitement about the implementation of the UKIPO’s latest fee changes, procedures and the prospect of new opportunities following the recent Brexit vote.

What is the benefit in registering a design?

A Registered Design can protect the whole or part of your product and enable you to prevent competitors from selling or making products using the same or a closely similar design. Features that can be protected include the lines, contours and the shape of the product, colours and patterns, texture and/or ornamentation, packaging, getup, graphic symbols and typographic typefaces. As a design registration can protect packaging, getup and other symbols, it can provide an additional means to protecting certain trademarks.

Why would I register a design in the UK when I could register a Community Design across the European Union?

UK Registered Designs appeared to become less popular with the introduction of the Registered Community Design, which gives protection across the European Union (EU), obviously including Jackie Johnson, Partner at D Young & Co. the UK. However, the national UK route may now be heading for a renaissance in light of new guidance provided by the UK Intellectual Property Office (UKIPO), new procedures and reduced fees, as well as strategies for protection, following the UK’s decision to leave the EU.

What new procedures have been introduced?

The UKIPO introduced electronic filing for Registered Designs in the UK in September 2015, which is not only a welcome development for users but, owing to the associated cost savings, has resulted in reduced fees taking effect from October 2016.

How have the fees changed?

There is a relatively small discount for the filing of an application for one design via the online application service, as opposed to the paper service. However, where the applicant is filing an application for multiple designs, to ensure that different aspects of their design are protected, use of the electronic service gives significant discounts; for instance the fee for filing via the paper route is £60 for the first design and £40 for any subsequent design, whereas the new fee, via the electronic service, is £70 for up to 10 designs. Significant reductions are also being introduced for renewal of a UK Registered Design representing great savings, with an average saving of 59% for each five year renewal fee. We recommend that owners of UK Registered Designs carefully plan payment of renewal fees that are due on or after the 1st October 2016 to ensure that they benefit from the reduced rates.

You mentioned the UKIPO also introduced new guidance?

Yes - quite unusually for the UKIPO when it comes to designs, a practice note was issued in June 2016, primarily as a result of the judgment in the Supreme Court case PMS International Limited v Magmatic Limited ([2016] UKSC 9 March 2016). The guidance includes tips such as confirming that line drawings are best for representing shape alone and that an applicant is also advised to submit a written disclaimer or limitation in such cases confirming that “protection is sought for the shape and contours alone.”

Of course, it is always prudent to seek advice in connection with protection of a design to ensure that the most appropriate representations are filed to give the best ambit of protection.

What about reliance on existing Community Design Rights?

Similarly to existing registered EU trademarks, existing Registered Community Designs will no longer be effective in the UK after the UK’s exit from the EU. It is anticipated that transitional provisions will be introduced so as to allow for the opportunity to extend the Registered Community Designs to the UK. However, for best practice, it is advisable now to consider filing both Registered Community Designs and UK Registered Designs simultaneously for all new design filings. It is also important to remember that Community unregistered design rights will cease to apply in the UK. Whilst there is already a separate UK national unregistered design right, this differs from the Community right in a number of respects. In particular, the UK right protects the shape and configuration of a product, whereas a Community unregistered design right covers the appearance of a product, including features such as colours, texture and ornamentation. The UK Government will therefore need to consider whether to legislate to extend the national right to include the additional features currently covered by the Community right, thereby closing this gap in protection.

Do you have any closing points?

The introduction of reduced fees by the UKIPO has come at an ideal time, bearing in mind that businesses and designers are now having to consider separate protection in the UK in light of Brexit. Design law is constantly developing, but often subject to less press coverage. We encourage people to take advice as regards protecting important designs at an early stage. For those with an interest in design law, please contact us for a copy of our recently published European Design Law book - an invaluable reference guide to key decisions in this fast-moving area.

Patent protection, whether it be for an invention, a process, or a design, is like the armour and shield of a business; without it, the future of the business is at risk. But patent prosecution and maintenance is not as simple as some might think it is.

Here, Troy Groetken, a shareholder with McAndrews, Held & Malloy, Ltd., answers a brief Q&A on the complexity of patent law in the US and gives thought leader insight on the advantages and disadvantages of patenting your IP in the States.

Your firm works on an international level, but are there any issues US patent legislation causes in the establishment of IP protection in the US?

Currently, IP protection in the US has been diminished by the dual standard of review between the IPR (inter partes review) procedure (broadest reasonable interpretation) and that of US litigation (ordinary meaning as well as abuse of discretion and clear error on appeal). As a result, there is an unfortunate advantage to the petitioner in the IPR process due to the broader standard. Further, to balance such an outcome, it is fortunate for patent owners to see the Supreme Court’s Halo decision allowing for greater clarity and ease of use of the treble damages assertion. Finally, the PGR (post-grant review) procedure represents a new opportunity for those wishing to challenge patents in the US, but both the petitioner and patentee will need to consider the broader estoppel effect via that process versus that of an IPR. In light of these developments, the US Patent & Trademark Office has become a secondary and less costly “litigation center” in the US, and has caused opposing parties to find settlement solutions more efficiently and effectively than through traditional litigation.

How do you work daily to expand your exploration of patents law and push the boundaries of your work?

On a daily basis, there are always new issues, new interpretations, and new applications of US patent law. To stay current, I constantly and consistently review recent District Court, Federal Circuit and Supreme Court decisions to help my practice assist clients with new IP opportunities and scopes of protection. Additionally, I regularly follow various IP publications and blogs to garner additional insights from other peers in the field to help improve my practice. Like the saying goes: “You can always learn from someone else and learn something new every day! By employing this approach to my practice, I am able to provide up-todate advice and counsel to my clients. Additionally, by staying current on key IP topics, I am able to offer potential new clients additional insights and skillsets that could assist them with their respective IP needs. Finally, being a thought leader and contributor in the IP space can only be achieved by constant vigilance as to case law, strategic tactics, and global patent approaches both in prosecution and litigation.

What is the most important piece of advice you give your clients when working on establishing patent protection over several jurisdictions?

The one piece of advice I provide to clients attempting on establishing patent protection over several jurisdictions is to try and keep the claim sets and arguments of the respective regional or local patent applications consistent. In doing so, clients have a better understanding the scope of protection for their respective patent portfolio on a global basis. Additionally, inconsistent arguments and contradictory positions are avoided. In doing so, negative outcomes in the patent application process, advanced USPTO procedures process, or patent litigation can be avoided. Consistency is always a key part of establishing a global patent portfolio.

What are the most common patent cases you encounter in your work with chemical, pharmaceutical and biotechnological patents? What particular challenges do these present and how do you navigate them?

The key patent cases that I have to address and consider currently in the chemical, pharmaceutical and biotechnological cases (however, it should be appreciated there are several more) are the recent Alice (patent subject matter eligibility), Shaw Industries Group, Inc. (accused infringers can use AIA review procedures without undermining their case in later litigation), Merck & Cie (PTAB AIA review decisions must be reviewed with deference on appeal) and In re Cuozzo Speed Technologies, LLC, (broadest reasonable interpretation for IPR versus ordinary meaning for litigation is appropriate) decisions as well as the USPTO’s ever developing guidelines as to patent subject matter eligibility and obviousness determinations. I navigate these various decisions and guidelines by working in collaboration with my clients as to various ways to claim their respective inventions (e.g., claiming non-natural claim elements where needed to illustrate patentably eligible subject matter, or alternatively looking for appropriate arguments that meet the USPTO’s guidelines), proper development of a patent specification that can be used for prosecution and litigation purposes (e.g., good actual, prophetic and comparative examples to illustrate the novelty and nonobviousness of the invention while still maintaining a broad claim scope of protection for future enforcement), and continual review of the client’s patent landscape (via competitive and white space analyses and updates) to look for additional IP opportunities. In doing so, I have a good grasp of the client’s technology platform and inventions from both the scientific personnel and inhouse IP and regulatory counsels, which leads to more proactive and effective patent portfolios.

Excitingly, IP laws are different in almost every country, and while the EU has its own directives for member states, Russia boasts its own procedures, regulations and harmonization in this respect. Here to give Lawyer Monthly her thoughts on the Russian IP landscape is Olga Bezrukova, European Partner at Squire Patton Boggs Moscow LLC.

What IP matters do you find are most commonly disputed in Russia?

The most relevant issues debated in relation to IT are the following.

A specific concern for the trademark owners in Russia is the issue of socalled ‘parallel import’. Unlike many other jurisdictions, Russia adheres to the principle of national exhaustion of exclusive rights to a trademark - even if the goods were lawfully purchased outside Russia, importation of such goods and other actions related with the introduction of the goods into circulation in Russia are subject to consent of the trademark owner. Presently the Russian anti-monopoly authority and business associations are lobbying to make parallel imports legal. Amendments are being drafted that would make the parallel imports of drugs, medical products and auto parts legal.

In addition, another relevant topic is the one of improvement and harmonization of the regulatory framework and enforcement practices within the Eurasian Union, which now includes Armenia, Belarus, Kazakhstan, Kyrgyzstan and Russia. The Eurasian Economic Commission is currently drafting: (1) the Trademark Agreement, which provides for the establishment within the EEU of the Union-wide system for registration of trademarks and service marks; (2) Agreement on common process for administering copyrights and neighbouring rights on a collective basis, to establish the process for administration of copyrights and neighbouring rights within the EEU member states; and (3) Agreement on the coordination of activities to protect intellectual property rights, regulating the cooperation between the law enforcement agencies of EEU member states in the area of IP rights protection.

Is there particular IP legislation under Russian jurisdiction which you believe impedes your work? How would you see this changed?

Overall, in our view, Russian legislation on the protection of IP rights has been largely harmonized with the relevant international rules over the past few years. The principal issues that arise relate to the subordinate legislation needed for implementing the procedures in accordance with the new law or describing the technicalities of the document flow process, which have been delayed or have sometimes been inconsistent.

As a thought leader in this field, what are your aims for the development of further IP regulation in relation to patents?

Given that many companies that develop IT products, including international ones, are active in the Russian market, we believe that Russian patent law should be amended to permit patentability of certain ITrelated items.

What are the particular disadvantages of the IP legal frameworks in Russia and how do you think this can change?

We believe that the key issues with Russia’s IP protection laws have to do with the unstable and frequent changes, in particular, with regard to technicalities and procedural matters. At the same time, in certain areas which should be in focus due to their current relevance, new rules have not been introduced in a timely manner, leaving entire areas with gaps. While IT has been developing at a fast pace, relevant legislation has been updated insufficiently and its development fails to keep pace with the development of technologies and the appearance of new products.

In the years you have been practicing, how has the advent in IP technology and infrastructure changed the way you work in this field?

IP-related technology has developed now to the point where it is possible to track the current status of proceedings on applications. The Russian Patent Office permits reviewing public databases on many IP types, which show their current status. In addition, electronic filing of applications and exchange of documents with applicants is now available, which to a great extent has facilitated and expedited the IP registration and administration process.

What are your key points for clients to avoid waste and make the most of their IP protection in terms of value across jurisdictions?

Most of our clients are major international companies doing business in Russia and having significant IP assets. The efforts, which we consider advisable to protect our clients’ interests, including protection of their IP assets, comprise the registration of rights to such IP assets in Russia, including the registration of trademarks and patents, etc. as the rights to such patents can only be protected if the same are registered. Also we consider it important to perform special patent research to identify patents, which may be infringed by our clients’ products, when they start marketing these products in Russia. Our recent experience shows that the latter is most relevant for pharmaceutical companies.

An entrepreneurial spirit, an awareness of presentation and a deep understanding of specialist property sectors is what make our next guest a formidable expert witness in his field. Ruaraidh AdamsCairns BSc (Est Man) FRICS is a director of Savills and head of Litigation Support for the firm. Here he talks to Lawyer Monthly about the role of a chartered surveying expert witness, the challenges and rewards therein, and about the range of processes involved in assisting in dispute resolution.

“Savills plc is a global real estate services provider listed on the London Stock Exchange. We have an international network of more than 700 offices and associates throughout the Americas, the UK, continental Europe, Asia Pacific, Africa and the Middle East, offering a broad range of specialist advisory, management and transactional services to clients all over the world.”

“In the UK we have a pool of over 125 surveyors trained and regularly acting as experts but in all probability we could find and train an expert for almost any type of property in any part of the country. We also have a research department which researches our three main markets commercial, residential and agricultural in many cases on a local basis which can be seen to add to our credibility.”

What kind of legal cases are you commonly appointed for and what principal issues do these present?

We probably produce more expert witness reports acting as Single Joint Experts in matrimonial cases than in any other. The demand for these reports has grown massively over the last 10 years but in the 6 years following a recession (such as 1988/89 and 2007/8) this was exceeded by cases involving professional negligence. In the main these have now worked their way through the system but matters such as covenants, rights of way, dilapidations, and easements including rights to light help provide a reasonably continuous source of work combined with boundary and development disputes. To a certain extent all professionals are consistently negligent so even in a rising market we still see some professional negligence cases such as structural surveys, issues missed or miss-reported during conveyancing and building matters.

Do the difficulties differ when instructed on commercial property based cases as opposed to residential surveying cases?

Whilst the type of properties may be dramatically different the fundamentals of arriving at a considered opinion for quantum are the same. This normally relies on good comparable evidence but finding this, years after the event when records and memories are poor is often far from straight forward. It can take as long to carefully research a transaction which turns out to be irrelevant as one which is ideal but when you start the exercise you usually have no idea which is which!

As a member of the Royal Institution of Chartered Surveyors, what is your secondary remit as an expert witness, after your responsibility to the court?

The two are totally aligned in as much as the Institution publishes a mandatory Practice Statement which must be followed by RICS members. They spell out surveyors obligations in accordance with the Civil Procedure Rules and also give guidance for example on the form of instructions, content of expert reports and meetings between experts.

In cases of professional negligence, what actions can be taken towards the chartered surveying team and what does the expert witnesses’ role involve?

We see a wide variety of cases involving professional negligence. The key task for the expert witness valuer is to try and put him or her self in the shoes of the practitioner at that time. Whilst obviously the benefit of hindsight must be put to one side SURVEYING it is also important to remember that professional standards and operational procedures have also changed. When I started practicing over 35 years ago a valuation report might be no more than 3 or 4 paragraphs! Today, setting out the instructions alone might take up more space than this!

How would you say the role of an expert witness chartered surveyor has evolved over the past 20 years?

I think the biggest change has been with regards to fees. 20 years ago it was adequate simply to quote hourly fees. Today one is almost always asked for a quote. These can be difficult to estimate accurately. One is often asked to give a view before the papers are delivered and it is always easy to underestimate the time which will ultimately be involved, especially if the papers turn out to be extensive or there is a need for a lot of research.

Is there any legislative change you believe could facilitate the work of chartered surveyors acting as experts?

The biggest problem with expert witnesses is that they inevitably become entrenched in their initial opinion. In reality the correct opinion is likely to fall within a range and if the bottom line is based on a number of earlier opinions this range can be very wide.

If experts met before exchange of reports and were able to agree the nature of the instructions and the evidence (for example the comparables to be relied upon) then I would expect reports to be shorter and the likelihood of agreement at an earlier point in the exercise higher.

Talking to Lawyer Monthly on the complexities of vascular surgery, the processes involved in the role of an expert witness, and the evolution of this medical field over the years, is Professor Charles McCollum, representing the University of Manchester, UK, and Isobar Compression, a UK-based developer of garments purposed for alleviating and preventing deep vein thrombosis and similar conditions.

Prof. McCollum explains the ins and outs of clinical negligence in this field, reveals the background behind his longstanding expertise, and gives insight on the solutions available for DVT and PE, including the development of Isobar Compression and its highly effective use in a variety of sectors.

When did you first provide advice as a medical expert?

In 1989 I was asked by now Lord Daniel Brennan QC, acting for the Claimant, to offer a second opinion on a case where an eminent Vascular Surgeon was accused of undertaking a ‘research procedure’ without seeking informed consent. The original advice received from a well-known expert in vascular surgery was that the Claimant had suffered a serious injury, with a marked deterioration in venous function, as a consequence of ligating an incompetent deep vein (at that time this was an unusual thing to do!). I advised that it was common at that time for renowned academic surgeons to carry out new and/or unusual procedures in a bid to push back the frontiers of medicine. As I walked down Middle Temple Lane with the well-known vascular expert after council’s conference, I was informed that my role was to get this case to Court and then to do my best to support the Claimant once there. Perplexed, I telephoned my instructing solicitor to find out if I had misunderstood her instruction. I was greatly relieved to be told that instructing solicitors required independent medical advice whether or not the case had merit. I am immensely grateful to her and, as a result of this approach, built up a substantial and intellectually rewarding medico-legal practice.

What have been the principal changes in the range of advice that you been asked to give in the 17 years since then?

During the first 10 years of working as a medico-legal expert, I received large numbers of personal injury instructions; often involving injuries that caused deep vein thrombosis (DVT) and/ or pulmonary embolism (PE). As my reputation steadily increased, I was increasingly asked to consider clinical negligence. It quickly became clear that I could not expect general surgeons with the vascular interest to have the same level of experience that I had in treating rare, complex or unusual vascular problems. However, any competent clinician should be able to recognise when they are out of their depth and need to refer a patient to a specialist centre in order to avoid disabling complications.

As my medicolegal practice increased, I made the difficult decision that I should discontinue personal injury work so that I could still focus on my academic role as Professor of Surgery. I appointed Richard Williams-Lees, an unregistered Barrister, to establish Cardiovascular Advisors Ltd (CVA) with experts in cardiology, stroke medicine, haematology, thrombosis and diabetes, to provide solicitors with access to specialist advice on all areas of cardiovascular medicine.

From your experience, what are the most frequent types of clinical negligence claims?

Overall, 21% of my clinical negligence practice relates to the failure to prevent, diagnose or promptly treat DVT or PE. Many young adults die unnecessarily of PE, or suffer debilitating life-long symptoms due to irreparable damage to leg veins. Clinical assessment alone is unreliable and the consequences of delayed diagnosis are serious for patients and their families.

The next most frequent negligence claims in my practice (12%) are failures to diagnose arterial disease or thrombosis in limb arteries resulting in amputation and significant disability. Unfortunately, and often tragically, symptoms that would be diagnosed as peripheral artery disease or thrombosis in the elderly are often missed in younger adults. GPs, who receive brilliant training in the UK, simply forget to attribute calf or foot pain in young adults to artery disease. Common errors are that GPs or trainee doctors feel pulses that are not there or mistake the cause of a red foot as infection or gout. In the ‘sunset foot’ (indicating appearance and prognosis) the microcirculation has dilated and filled with blood to try to compensate for blocked arteries in the legs, giving the forefoot a red appearance. Our medical schools should teach students to measure ankle arterial pressure using inexpensive Doppler ultrasound rather than feeling foot pulses and to elevate the red foot (it will turn white if ischaemic).

What are the major changes that you have seen in clinical negligence claims and what changes do you expect to see in the future?

The developing bureaucracy of treatment protocols, guidelines and serious untoward incident reports has aggravated the explosion in clinical negligence claims over the last decade. I also think that the scandal surrounding the Mid Staffordshire NHS Foundation Trust (The Francis Report, 2013) was fundamental to changing patients and their families’ attitudes to clinical errors they previously accepted as mistakes. Any breach in a guideline may now be the subject of claim, with many claims based on the serious untoward incident reports prepared by nurses at the defending hospital. Nursing experts in particular treat the Nursing and Midwifery Guidelines as minimum standards of care when the reality is that these are standards of excellence. As an example, a nursing expert is unlikely to accept that a patient at high risk of developing a pressure sore developed such as sore as a consequence of this increased risk rather than negligent care.

Regrettably, the advances in care promoted by the National Institute of Clinical Excellence (NICE) are becoming a “rule book”. Fifteen years ago, it was unusual for diabetic patients to claim breach of duty when they suffered amputation of a toe, foot or even leg. As NICE guidelines state that any new ulcer requires immediate referral to a multidisciplinary diabetic foot clinic, there are now multiple claims based on breaching these guidelines. There is little recognition that poorly controlled Type I diabetes, particularly in heavy smoking patients, carries a high risk of major limb amputation in the third and fourth decades of life. The experience of vascular surgeons is that referral to a vascular unit indicates vascular problems and a deteriorating prognosis. Diabetic specialists have a more optimistic view on prognosis for diabetic foot ulceration based on their practice in patients without diabetic vascular problems. Forefoot or major limb amputation is the most rapidly growing sector in my clinical negligence practice: It represented 9% of my last 100 clinical negligence cases and may well rise to 15-20% in the next decade.

You said that DVT and PE are the most common conditions leading to litigation in the UK, is this also changing?

In the past, the vast majority of personal injury instructions have related to DVT or PE caused by injury in the work place or in road traffic accidents. However, in recent years I have received a number of instructions where employees have suffered DVT or PE as a consequence of frequent or long-haul flights during the course of their employment.

There has been a consistent increase in the number of clinical negligence claims caused by failures to prevent, diagnose or effectively treat DVT or PE. These frequently involve young adults, such as young women taking the combined oral contraceptive pill, who suffer a fatal PE after tell-tale signs of DVT have been missed by a GP or by hospital staff. Regrettably, it is well known that the clinical signs of DVT and PE are entirely unreliable and this diagnosis must be considered in any patient with unexplained calf or leg pain, particularly if there is swelling. A great deal of weight is placed on the ‘Wells Score’, which is used to stratify the patient’s individual risk; but as this score is based on clinical symptoms and signs, it is inevitably unreliable. Doctors should have a very low threshold for taking venous blood to measure D-dimer, which is a non-specific measure of thrombotic activity that rises in patients with VTE, but also may be raised following surgery, injury or inflammation. Generally, doctors should initiate anticoagulation on any suspicion of VTE and arrange definitive investigation by high-definition colour duplex ultrasound or, in the case of PE, with CT pulmonary angiography (CTPA). Delaying treatment until after the diagnosis has been confirmed is a frequent cause of long-term sequalae or even death from PE.

What are the treatments for DVT/PE?

The principal objective of treatment is to prevent a DVT extending to cause long-term symptoms or detaching to become a PE. Providing full, immediate anticoagulation is achieved intravenously, followed by adequate oral anticoagulation using warfarin or one of the novel oral anticoagulants, most patients are protected from complications. There is good evidence that wellfitting elastic stockings delivering 25 mmHg compression at the ankle (equivalent to class II BNF on our NHS) reduces the risk of long-term symptoms, particularly in those patients where treatment is initiated early after the onset of symptoms. Long-term symptoms are associated with delayed diagnosis or treatment. We also know that carefully-fitted elastic stockings worn for two years following DVT reduces the risk of long-term disability.

How did you get involved in Isobar Compression?

I was invited to review a major grant application by the Wellcome Trust a little over a decade ago. This application proposed 3-D imaging of the limb to guide the production of elastic garments that fit perfectly, and deliver whatever pressure is prescribed by the doctor. I recognised that this was the only technology in the world that would allow research on the ideal pressures needed for each clinical indication: Including, the prevention of DVT in frequent or long-haul flight and the treatment of varicose veins, venous insufficiency, lymphoedema and venous ulceration. It is also the only technology able to precisely manufacture Isobar stockings to the exact profile of each leg using computer-controlled knitting machines. It recognises that there is a difference between the right and left leg and that the leg is not round. The Textiles Department’s application did not include a clinical partner and the Wellcome Trust agreed with my suggestion that they resubmit their application with me as a co-applicant. We were awarded a £0.5 million grant that initiated what has become our unique Isobar Compression technology that should become the world leader in preventing DVT while travelling and in hospital inpatients. In my opinion, it will also become the most effective treatment for varicose veins, venous insufficiency, venous ulceration, lower leg wounds, ankle fractures and sprains and for the control of swelling in the elderly and patients with lymphoedema.

Finally, there was much talk of compression at the Rio Olympics. What use has compression in elite sport?

There is growing evidence to show that compression socks and arm sleeves reduce delayed onset muscle soreness (DOMS), allowing athletes to quickly recover and return to training. Isobar is working with many national sports governing bodies, as well as elite and amateur athletes to supply compression socks to enhance performance, recovery after training and to prevent DVT as a result of travel. Wearing compression during travel also reduces leg swelling, allowing athletes to resume training as quickly as possible after a long journey.

Elite athletes travel widely by coach within their own country for matches or competition or by air for overseas training camps and international competition. They are at high risk of DVT due to stagnant venous blood flow in well-developed calf muscles. Amateur athletes who compete in cycling or running races are also at risk as they return, often dehydrated, to their day jobs sitting in an office or driving long distances. Isobar supplied over 100 athletes in Rio with exact-fit, bespoke compression socks to mitigate the risk of DVT during flight. The gold and silver medal winning Brownlee Brothers commented: “Coming from a medical family, we know a DVT isn’t worth the risk and could end our careers. Isobar socks fit perfectly and are comfortable enough to wear all day. The precise compression level is based on clinical research, so we know they work really well.” Isobar Compression offers a 3D scan service to customers, using the scan data to stitch custom-fit, bespoke compression socks and set the correct pressure grade to mitigate DVT risk. Find out more at www.isobar-compression.com.