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Malcolm Fortune

CALLED TO THE BAR 1972

Junior Counsel


Clinical Negligence & Healthcare Profile

Background

 

1963-68      Hurstpierpoint College
1969-72      Inns of Court School of Law

1989           Assistant Recorder
1994           Recorder
                   Former Chairman of the Bar Council’s Working Party on Direct Professional Access

 

Legal Assessor for the Hearing Aid Council

 

Email: mfortune@3serjeantsinn.com

 



General Information

 


Directory Comments

 

Malcolm is recommended by leading legal directory Chambers & Partners in professional discipline:

 

'Malcolm Fortune is an "extremely experienced and able advocate" known for his ability to deal smoothly with both tribunals and clients.'.... Chambers and Partners 2011

 

Malcolm Fortune "knows how to take the fight to the opposition." Chambers and Partners 2010

 

'The “blood and thunder” style of Malcolm Fortune attracts much comment from the market. His professional discipline work has grown out of a criminal practice and is none the worse for that, with interviewees praising his “well-crafted cross-examination skills.”' Chambers & Partners 2009



Nature of Practice

 

Specialist information: Malcolm Fortune's background in handling substantial criminal cases stems from his appointment to the specialist list of counsel instructed to prosecute by the Crown Prosecution Service. He has used his experience in criminal cases to develop a broad based defence practice in medical and dental criminal and discipline related matters.

 

Tribunals

Substantial experience of representing doctors and dentists before their respective Fitness to Practise Panels and Professional Conduct Committees  Malcolm has previously advised numerous health authorities on prosecuting doctors, dentists and opticians before the late National Health Service Tribunal. He has also acted as legal assessor for the Professional Conduct Committee of the Chartered Society of Physiotherapy.

Coroners’ Inquests  Wide experience of representing doctors and National Health Service Trusts before Her Majesty’s Coroners.
Medical and dental crime  Extensive experience of representing doctors and dentists before the Crown Court in medically and dentally related crime. He has frequently appeared in the Court of Appeal (Criminal Division).

Health and Safety  Malcolm has significant experience of advising and prosecuting on behalf of the Health and Safety Executive in all aspects of health and safety law. He also has considerable experience in advising and defending national and multi-national companies on health and safety issues.



Specialist Information

 


Reported and other cases of Interest

 

General Dental Council: Mr Mohammed Siddiqui, June 2011: Single handed GDP investigated by NHS Rotherham in respect of extensive poor cross infection controls, numerous cases of poor patient treatment and numerous inappropriate claims for payment when set against a very high number of units of dental activity (UDAs). Comprehensive admissions made, misconduct proved, fitness to practise found to be impaired - Conditions imposed on his Registration for three years.
 General Dental Council: Mr Matthew Walton, February - March 2011: Associate GDP investigated in respect of numerous instances of poor and rushed treatment and inappropriate behaviour towards both patients and staff. Limited admissions made, misconduct proved, fitness to practise found to be impaired - Erased.
General Dental Council: Mr Peter Wesolowski, September and November 2010: Associate GDP investigated by Leicester City PCT in respect of numerous instances of poor and rushed treatment, inappropriate behaviour towards both patients and staff and a failure to refer an elderly female patient sufficiently early in respect of an oral lesion on the edge of the tongue, which turned out to be malignant. Limited admissions made, misconduct proved, fitness to practise found to be impaired - Erased.
General Dental Council: Mr Alexander Morton, November 2010: Associate GDP investigated by Ealing PCT in respect of convictions for drink driving and assaulting a police officer. Issues relating to the GDP's health taken into consideration. Convictions admitted, fitness to practise found to be impaired by reason of health - Conditions imposed on his Registration for eighteen months.
General Medical Council: Professor Christer Rolf, August 2010: A European trained Consultant Orthopaedic Surgeon invited to establish a Centre for Sports Medicine at a Northern University faced complaints in respect of his inappropriate diagnosis, findings and management of three patients who had all suffered injury and also in respect of his failure to report accurately and fully about such matters to their GPs. Limited admissions made, misconduct proved, fitness to practise found not to be impaired - Warning imposed on his Registration.
General Medical Council: Dr Rachel Leopold, August 2010: Young hospital doctor found to have been self medicating whilst undergoing GP training on rotation - cautioned by the Police. GMC Inquiry opened but unable to progress academically whilst awaiting the Inquiry's Determination. Caution admitted, issues relating to health taken into consideration. misconduct proved, fitness to practise found to be impaired - Registration suspended for nine months.
General Medical Council: Dr Mansukhlal Unadkat, March 2010: Retired GP, assisting a pharmacist, investigated for prescribing Viagra via the internet without satisfying himself sufficiently that 'the patient' who was in fact an investigator for Pzifer (the manufacturers) did not have any of the risk factors that would have made such a presciption contraindicated. Very limited admissions made, misconduct proved, fitness to practise found to be impaired - Registration suspended for six months. 
Pontypridd Coroners Court: The Cwm Taf NHS Trust, March 2010: Male Patient in his late forties, a smoker and heavy drinker consented for a hemi-glossectomy, tracheostomy performed but then malignancy found to have extended over the midline of the tongue. Patient awakened, findings expained. Options given - chemotherapy or a total glossectomy: former chosen. During a subsequent changing of the tracheostomy tube, a false tract established, causing in time a weakness leading to a fatal bleed. Trust criticised by the Public Services Ombudsman for Wales for numerous failings. The issue for consideration by HM Deputy Coroner for the Valleys, sitting alone, was whether there was evidence of gross negligence manslaughter based on the replacing of the tracheostomy tube, establishing the false tract.However such evidence was not supported by the Ombudsman's Surgical Expert. A Narrative Verdict returned.
General Medical Council: Miss Barbara Czaslawska, January 2010: A European trained Surgeon, recruited from Poland to work in a private hospital in the North of England as part of a Government initiative to reduce waiting times within the NHS, given a long afternoon surgical list which included a Dupuytrens finger contracture release procedure which was beyond her competence. No senior assistance available. Patient suffered serious injury requiring further and extensive remedial surgery. Surgeon found to have lied about her findings at operation to the Consultant to whom the patient was referred for that remedial surgery. Some admissions made, misconduct proved, fitness to practise found to be impaired - Registration suspended for twelve months.
General Medical Council: Dr Tapan Mukhopadhyay, December 2009: Hospital Doctor found to have countersigned falsely cremation forms necessary for registration of death of a large number of patients over several years for which he was paid and in particular since the Shipman Inquiry. No signicant admissions made, misconduct proved, fitness to practise found to be impaired - Erased.
Kettering Coroners Court: Kettering General Hospital NHS Trust, June 2009: Middle Aged Woman, severe asthmatic, heavy smoker and obese, admitted to KGH with a severe chest infection. Her condition deteriorated, taken to the theatre recovery area, as there was then no bed in ITU, for intubation and ventilation. Whilst in the theatre recovery area two Anaesthetists tried to place arterial and venous lines into her, patient suffered a cardiac arrest and associated severe Hypoxic Ischaemic Brain Damage, from which she died. The cause of death was disputed by staff at KGH, who suggested that there had been a disconnection of a section of the breathing circuit whilst the two Anaesthetists had tried to place arterial and venous lines into her. The disconnection had not triggered the alarms on the ventilator to flash and sound as the machine had been set incorrectly by the more junior Anaesthetist (the SHO) and / or checked incorrectly by the more senior Anaesthetist (the SPR). The death was referred to HM Coroner who asked the Police to investigate. A lengthy investigation, lasting almost two years, followed, involving the interviewing under caution of the two Anaesthetists. The CPS decided not to prosecute anyone for gross negligence manslaughter. HM Deputy Coroner, sitting alone, returned a Narrative Verdict, concerned about the lack of ITU beds and ageing anaesthetic equipment not designed for such a patient. 
General Medical Council: Dr Krishnan Prasad, May 2009: GP found to have examined three patients inappropriately in respect of presenting complaints of pain in breasts, chest and lower back. No signicant admissions made, misconduct proved, fitness to practise found to be impaired - Erased.
Kettering Coroners Court: Kettering General Hospital NHS Trust, March 2009: Female Patient in her mid thirties who had suffered previously from genital herpes, a sexually transmitted disease which can affect the health of a foetus, gave birth to a son. Mother warned on discharge that if her son showed any of the symptoms suggestive of or suggesting that he may have contracted genital herpes, then she should seek immediate medical advice. Mother returned to KGH where her son arrested, was revived and transferred to the Special Care Baby Unit.The Locum Specialist Registrar and a Senior Sister both later failed to recognise that the boy's blood pressure had started to fall dramatically and more importantly they failed to recognize the significance of that fall and thereafter they failed to seek immediate / effective help from a Consultant. Boy transferred to hospital in in Leicester but by then the situation was dire. The boy died at Leicester two days later, brain damaged, when the life support machine was switched off with his parents’ agreement. HM Coroner, sitting alone, returned a Narrative Verdict, critical of the care the boy had received at KGH.
Kettering Coroners Court: Kettering General Hospital NHS Trust, October 2008: Female Patient in her late twenties admitted to KGH by her GP late at night, having been generally unwell for a week. During the next four days, she was seen, examined and investigated by a number of consultants of different disciplines for what turned out to be a multifactorial condition which was to lead ultimately to her death. Viral myocarditis,given as the medical cause of death at a Post Mortem, was  called into question by a number of experts. HM Deputy Coroner, sitting alone, returned a Narrative Verdict, concerned about the procedures for recording, reporting and acting upon patient observations.
General Medical Council: Mr James Smallwood, September 2008: Consulant General Surgeon asked to look after for the weekend the patient of a professional colleague who had operated on the patient on a Friday before leaving for the weekend. The patient, a sixty one year old obese male had undergone surgery for a laparoscopic repair of a hiatus hernia. Complication of an abdominal distension arose indicating that the stomach had filled with gas, monitored appropriately. Patient developed a pain in his left calf, indicating the possibility of a Deep Vein Thrombosis but that calf pain was not drawn to the attention of the monitoring surgeon by the hospital's staff. Monitoring surgeon also not informed that the patient had suffered at least one episode or perhaps more than one of haemoptysis, coughing up blood. Further investigations followed on both Monday and Tuesday, which indicated the possibility of bowel obstruction. Patient taken back to theatre by the original surgeon but the patient died subsequently of a pulmonary embolus. Fitness to practise found not to be impaired.

Swindon Coroner's Court: The Swindon and Marlborough NHS Trust, January - February 2008: Bupivicaine, an epidural anaesthetic administered intravenously by a midwife following birth leading to a cardiac arrest and thereby causing the Mother's death (Mayra Cabrera); issues raised at the Inquest also included a general review of 'wrong route drug errors' and what could be done to minimise them in the future, a review of the responsibilties of the then Chief Pharmacist, whether the then Chief Pharmacist had failed to ensure that there was in place a safe system for the storage of all medicinal products in the Trust, whether the then Chief Pharmacist was 'a controlling or directing mind' for the Trust in terms of Corporate Manslaughter and whether any failure by the then Chief Pharmacist was therefore ascribable to the Trust: Jury returned Verdicts of Gross Negligence Manslaughter in respect of the Administration and Storage of Bupivicaine.

General Medical Council: Dr Kong Lan Keng Lun (Lan), September 2007: Consultant Radiologist, failing to diagnose and treat breast carcinomas in an NHS Hospital and failing to manage, teach and supervise effectively the staff within the Radiology Department: his Fitness to Practise found to be impaired - Conditions imposed on his Registration for two years.

General Medical Council: Mr Sohail Ahmed, June 2007: Consultant Opthalmologist, who had undergone successfully a review of his Professional Performance as directed by The Fitness to Practise Panel in August 2006, returned to face the original allegations: his Fitness to Practise found to be impaired in respect of those original allegations - Conditions imposed on his Registration for one year.

General Dental Council: Mrs Joanna Chyzy, February and July 2007: General Dental Practitioner faced numerous complaints made by patients about the standard of treatment administered; Found Guilty of Serious Professional Misconduct: Erasure of her Name directed.

General Medical Council: Mr Sohail Ahmed, August 2006, Consultant Ophthalmologist – appearing before The Fitness to Practice Panel – concerns raised in respect of his Ptosis surgery, his failure to seek within a reasonable time an ultra sound scan and a vitro-retinal opinion for a young patient with a severe penetrating eye injury and his diagnosis of and management of patients at risk of Giant Cell Arteritis: an assessment of his professional performance directed.

Winchester Coroner’s Court: Dr Ibrihim Jalloh, June 2006, GP working in an Out of Hours capacity, attending a patient suffering from the side effects of Sulphasalizine – whether GP put himself sufficiently into a position to make an appropriate diagnosis and not then to refer the patient to hospital.

General Medical Council: Dr Irfan Shah, May 2006, Junior Doctor unable to decide whether to remain in hospital medicine or to enter general practice – lies told on several occasions, both orally and in written applications – dishonesty admitted – Registration suspended for nine months.

General Dental Council: Mr Vincent Matich, April 2006, General Dental Practitioner, making dishonest claims for payment by the Dental Practice Board in respect of work not carried out – Erasure directed.

General Dental Council: Mr Glen Simons, February 2006, General Dental Practitioner accessing and downloading indecent images of children and young persons – convicted in the Crown Court but conviction set aside by the Court of Appeal, Criminal Division as Judge had admitted evidence later ruled in the CACD to have been inadmissible – Conduct Hearing before the GDC on the  evidence led before the Crown Court – and supplemented by more evidence obtained using more advanced retrieval equipment  - Erasure directed.

Ipswich Crown Court:  Mid Essex Hospitals NHS Trust, 30–31 January 2006, Health and Safety Defence – failure to have in place a safe system for the effective dissemination to medical and nursing staff of safety notices sent to a NHS hospital by the then Medical Devices Agency, such failure alleged by the Health and Safety Executive  to have caused or contributed to the death of a nine year old boy during the administration of general anaesthesia prior to routine surgery. A Newton Hearing was held by Gross J. to test the significantly different and opposing opinions of two senior consultant anaesthetists as to the actual system then in place for the dissemination to medical and nursing staff of such safety notices when the system then in place was representative of many NHS hospitals. Defence submissions upheld, death not treated therefore as an aggravating feature. A further opportunity to consider the level of both a fine and an order for costs to be imposed on an NHS Trust.

Kettering Coroner’s Court: NHS Trust, January 2006, Planned Caesarean Section at 37 weeks for Mother with a complicated past medical history of cervical adenocarcinoma, whether a paediatrician should have been present at the birth, baby in respiratory distress, complications arising and death following within seven hours.



Clients

 


Publications

 


Lectures and Seminars

 

Malcolm lectures regularly to audiences such as solicitors' firms and defence organisations. Recent lectures include:

  • "Corporate Manslaughter: How will the 2007 Act affect My Organisation?" on 5 June 2008 to EMW Solicitors
  • "Talking Practicalities: Managing the Trust at an Inquest" on 13 June 2008 to Mills & Reeve, Birmingham and 28 September 2007 to Mills & Reeve, Cambridge
  • "The Local Adviser's Role" on 7 October 2006 to the Dental Protection Society


Related Professional Activities

 


Other Information