Clinical Negligence: Tins of beans, gang warfare and attempted murder

Tuesday 22nd March 2022

Can you claim for clinical negligence after attempting to murder your wife? This was the question posed in the recent case of Cojanu v Essex Partnership University NHS Trust. Well, the question was a bit more nuanced: the Claimant, Mr Cojanu, had attacked his wife with a knife and stabbed her in a drunken frenzy. The attack took place at the couple’s home, whilst their children were in the house. A horrendous event which led to Mr Cojanu being convicted of attempted murder.

At some point during either the attack itself or the resulting arrest, Mr Cojanu suffered deep cuts to his right hand. He was taken to Hospital and was scheduled to have surgery, however this was cancelled due to security issues. The Hospital then failed to fax an urgent referral letter to rearrange the operation, and by the time the lack of surgery was highlighted, it was too late for Mr Cojanu to have surgery. The delayed/lack of treatment of his injuries led him to being worse off, and he instructed solicitors to investigate a claim for clinical negligence.

Mr Cojanu provided a statement during his clinical negligence case claiming that he had acted in self-defence at the time of sustaining his injuries, and that his wife had in fact attacked him. The NHS Trust argued that he had been fundamentally dishonest in his statement. The Trust also advanced a defence of ‘illegality’; arguing that as his injuries were caused by his own criminal conduct they should not carry any liability.

The Judge found that the circumstances of the injury were separate to the issues of negligence: the mechanism of injury had no impact on Mr Cojanu’s treatment path. The Judge said ‘it matters not whether he had suffered the injury opening a tin of beans, in gang warfare or whilst attempting to murder his wife’. The defence of illegality failed for similar reasons: the criminal act was a separate act to the negligent treatment. The Judge found that if the illegality defence had succeeded there would in effect be a two-tier healthcare system, where those convicted of crimes would not be entitled to the same standard of medical treatment as the rest of society. As an aside, the Judge also quite rightly pointed out that, at least at the time of the treatment itself, Mr Cojanu had not been convicted of anything.

Mr Cojanu was able to recover compensation for the negligent treatment provided to him. Our Head of Compensation, Joseph Norton, said of the case: ‘Despite the Claimant’s conviction for an abhorrent act, he was entitled to receive the same standard of treatment as the rest of society. His dishonesty about the event in question had not impacted upon the treatment provided to him. If that dishonesty had affected the likely treatment path, there would likely have been a very different outcome for the Claimant.’ So to answer the question posed at the start of this article, yes you can claim. It is, however, eminently more sensible to avoid the criminal conduct in the first place.