Malcolm Fortune

Clinical Negligence & Healthcare

experience & expertise

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 dental and medical crime and discipline related matters.

Malcolm has substantial experience of representing dentists and doctors before their respective Professional Conduct Committees and Fitness to Practise Panels. Malcolm has previously advised numerous health authorities on prosecuting dentists, doctors 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.

He has extensive experience of representing dentists and doctors before the Crown Court in dental and medical related crime. He has frequently appeared in the Court of Appeal (Criminal Division).

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.

Cases & work of note

Mid-Kent and Medway Coroner’s Court, September 2019:
Representing the local Ambulance Service, which responded on numerous occasions to calls from a young female in the care of social services who had moved from child to adult care. The young female, diagnosed not only as suffering from a Mild Learning Disability (MLD) but also with an Emotionally Unstable Personality Disorder (EUPD), tended or pretended to self-harm by claiming that she had overdosed on insulin. The police were invariably called out: they would then detain her pursuant to Section 136 of The Mental Health Act 1983 (MHA) so that she could be assessed appropriately. However the young female would thereafter refuse to co-operate. Unfortunately on one such call-out, the young female did not meet the criteria for detention under the MHA and so she was released by the police. Thereafter on what was to be the day of her death, the local Ambulance Service was called out to her three times in response to an assertion by her that she had taken an overdose of insulin, even though she did not suffer from diabetes. The young female again refused to co-operate and there was nothing more that could be done as she was assessed by Paramedics as having capacity within the terms of the MCA. Subsequently the young female was found in her flat, unresponsive and was then taken to a local hospital, where she was declared dead, due to a hypoxic brain injury following the unnecessary and uncontrolled self-administration of insulin. HMAC, in a Narrative Conclusion, determined that the young female had not intended to commit suicide on the balance of probabilities.

South London Coroner’s Court, July 2019:
Representing the Commissioners of Care for a mentally ill patient in a community hospital, who, when non-compliant with the conditions of his conditional discharge status, stabbed a nurse to death in the course of his employment. The mentally ill resident was subsequently sentenced to imprisonment for manslaughter.

Inner West London Coroner’s Court, April 2019:
Representing the Family GP, whose elderly female patient was diagnosed as suffering from an abdominal entero-cutaneous fistula. She was placed on the local hospital’s waiting list  for surgery but was not recalled in a timely manner for her pre-operative assessment and consequently she was removed from the waiting list. Following a visit to her GP and on enquiry by him, the female patient was placed back onto the waiting list but not reinstated to her original place on that waiting list. However, overall, it took some eighteen months before surgery was carried out, during which period insufficient attention was paid to the female patient’s weight loss. The delay in surgery treatment caused by the female patient’s removal from the waiting list and the hospital’s failure to reinstate her to her original place on the waiting list, together with a failure to act upon the clinical signs of deterioration in the female patient’s condition upon her pre-operative assessment were found by HMC to be gross failures in the provision and procurement of basic medical care and contributed to her ultimate demise and as such constituted neglect.

County Durham and Darlington Coroner’s Court, February 2019:
Representing a local hospital, where a middle aged female resident in a care home was taken following a fall. The resident, who was quadriplegic with limited ability to communicate and who lacked capacity within the terms of The Mental Capacity Act 2005 (MCA), was not appropriately examined by a Junior Doctor in A & E, when she should have undergone a full neurological assessment. The female resident died two years later from complications arising from her quadriplegia, due to a spinal cord injury as determined by the Jury in returning a Narrative Conclusion.

Pembrokeshire and Carmarthenshire Coroner’s Court, January 2019:
Representing the Family’s GP, whose middle aged male patient suffered from mental health issues decided, contrary to advice, to stop his medication. Following a RTA, the patient was detained under Section 136 Mental Health Act 1983, taken to a local hospital, examined and later discharged. Overnight, back at home, the patient assaulted his mother. The police arrested him and took him to a local police station, where in a cell he became extremely violent and needed to be restrained by five police and two detention officers. The Jury, in returning a Narrative Conclusion, determined that death had been caused by Positional Asphyxia due to Restraint following Acute Behavioural Disturbance.

Oxford Coroner’s Court, October 2015:
Representing one of two named nurses responsible for the care of an 18 year old male resident in a care home, diagnosed as an epileptic and suffering from a learning disability, found to have drowned in a bath. The male resident was known by the staff to have a habit of taking not showers but long baths and at times when there was little or minimal supervision of him. Both the NHS Mental Health Trust that owned and managed the care home and the staff were heavily criticised by the Jury as the death was preventable. Neglect was found to have contributed to the death in numerous respects, including a failure by the staff to carry out an adequate assessment of the care and risk management of a resident diagnosed as an epileptic with a learning disability, a lack of clinical leadership and a lack of adequate training and guidance by the management for the nursing staff.

Manchester South Coroner’s Court, April 2015:
Representing The Priory Hospital at Cheadle Royal where a 17 year old female adolescent patient with a known history of self-harm tied a ligature of a wire from a spiral bound notebook around her neck following an extended and brilliant period of home leave and at a time where her observation levels had been reviewed and reduced on clinical grounds by her multi-disciplinary team and at a time when NHS England and others were seeking to find the adolescent patient a suitable therapeutic placement in the community.

Cumbria Coroner’s Court, February 2015:
Representing The North Cumbria University Hospitals NHS Trust on behalf of the West Cumberland Hospital, where a 19 year old female patient with a significant cardiac history underwent an appendicectomy during which an intra-abdominal haemorrhage was caused but not recognised immediately leading in a matter of hours to a cardiac arrest and death from hypoxic brain damage.

Maidstone and Tunbridge Wells NHS Trust, December 2014:
Representing the Trust which pleaded guilty to a breach of Section 3 of The Health and Safety at Work etc Act 1974 for placing at risk a male patient undergoing routine laparoscopic left sided renal cyst deroofing surgery by failing to properly plan the surgery safely when a warming mattress known as ‘Hot Dog’ caused life changing burns to the patient’s right side. Sweeney J imposed a fine of £160,000.00 having given the Trust a discount of 33% for its plea indicated at the earliest possible opportunity and for its cooperation with the HSE.

South Yorkshire Coroner’s Court, November 2013:
Representing a spinal surgeon, who whilst performing a discectomy on a middle aged female patient, entered the spine at the wrong level, at L4/5 and not L5/S1, damaging an artery in the process and causing an intra-peritoneal haemorrhage which was not recognised immediately and which led in a matters of hours to a cardiac arrest and subsequent death.

Inner London West Coroner’s Court, July 2013:
Representing two ambulance paramedics called to attend a patient who had collapsed in a London street whilst in police custody and who was later to die whilst in police custody at a nearby police station.

The Inquiry into Hyponatraemia Related Deaths, Belfast: March 2012 and presently ongoing as the report is still due:
An Inquiry, chaired by Mr Justice O’Hara, into five deaths of children and young persons at The Royal Belfast Hospital for Sick Children during the years 1995-2004. Deaths said to have been caused by or related to hyponatraemia, representing in turn two Consultant Paediatricians.

Pontypridd Coroner’s Court, The Cwm Taf NHS Trust, March 2010:
Male patient in his late 40s, 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 explained. 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.