How to win your clinical negligence trial
June 28, 2021
This article was originally published in AvMA Lawyers Service Newsletter June 2021.
David Knifton QC draws on his long experience of both conducting clinical negligence claims as an advocate and trying them as a Recorder, to examine the factors most likely to lead to success.
Clinical negligence claims are rarely straightforward. On the contrary, they are frequently time-consuming, require a review of extensive medical records, involve a good deal of technical scientific evidence, and sometimes raise challenging issues of law. The prospects of success are often difficult to assess, and depend heavily on the quality of your experts. Having recently conducted a clinical negligence trial (in which judgment is awaited), and heard a trial whilst sitting as a Recorder, I thought it might be helpful to draw on those and other experiences as a guide to the factors which, in my view, are likely to bring success.
Get the Law Right
This may seem obvious, but it is important to ensure that the correct legal test is applied to the circumstances of your case. Any allegation of negligence requires proof of a failure to take reasonable care. In cases of diagnosis and treatment, involving an exercise of professional skill and judgement, that involves application of the well-known Bolam test (Bolam v Friern Hospital Management Committee  1 WLR 583 at 587), as explained and analysed in Bolitho v City & Hackney Health Authority  UKHL 46). A clinician is not negligent if he/she has acted in accordance with a practice accepted as proper by a reasonable, responsible or respectable body of medical opinion. Thus, to establish liability in such a case, it must be shown that no reasonably competent clinician would have acted as the defendant did.
Where, however, the criticism does not relate to a matter of clinical judgement, it is arguable that the Bolam test does not apply. If, for example, the criticism is of an allegedly negligent interpretation of a histology slide (Muller v Kings College Hospital NHS Foundation Trust  EWHC 128 (QB); Penney v East Kent Area Health Authority  Lloyd’s Rep Med 41), the first question to be determined is one of fact: what could be seen on the slide? Whilst that requires expert evidence, it is for the judge to make his own finding of fact on the balance of probabilities. The Bolam test does not apply. Only thereafter does the judge have to address the question whether a reasonably competent cyto-screener could have failed to see what was on the slide, or could have treated it as negative. Similarly, where there has been a disastrous failure to interpret ultrasound scan images, which in fact show abnormalities, it will be difficult for a defendant to maintain that the scan was interpreted with reasonable care unless it can present a reasonable and plausible explanation for the failure (Lillywhite v University College London Hospitals NHS Trust  EWCA Civ 1466; XXX v King’s College Hospital NHS Foundation Trust  EWHC 646 (QB)). In such “pure diagnosis” cases the court may be willing to infer a failure to exercise reasonable care and skill, without resort to the Bolam test.
The same would also be true in the case of obvious medical errors, such as amputating the wrong leg or leaving surgical forceps inside a patient.
In cases concerning consent, Montgomery now establishes that the Bolam test no longer applies. A doctor is under a duty to take reasonable care that the patient is aware of any material risks involved in treatment and of any reasonable alternative treatments. That is because the question whether a risk of surgery, or the availability of an alternative form of treatment, ought to be discussed with the patient is not a matter of purely professional judgement (Montgomery v Lanarkshire Health Board  UKSC 11). If, therefore, a claim can properly be characterised as one involving a failure to obtain the patient’s informed consent (ie by discussing the risks and benefits of treatment and any reasonable alternatives) it may be easier to establish liability than if you are alleging Bolam negligence.
In cases involving unusual types of loss, it is important to consider the scope of the duty. As Lord Hope stated in Chester v Afshar  UKHL 41 at : “damages can only be awarded if the loss which the claimant has sustained was within the scope of the duty to take care.” For example, in wrongful birth cases, there is no claim for the costs of raising a healthy child (McFarlane v Tayside Health Board  2 AC 59), but the additional costs of bringing up a disabled child are recoverable, where the disability arose from genetic causes or foreseeable events during the pregnancy (Parkinson v St James and Seacroft University Hospital NHS Trust  EWCA Civ 530). On the other hand, where the doctor’s duty was to advise the claimant that she was a carrier of the haemophilia gene, the doctor was liable for the additional costs of raising a child with haemophilia, but not for any other risks of pregnancy, including the risk that the child might suffer from autism (Khan v Meadows  EWCA Civ 152).
It is thus essential to determine at the outset the basis upon which you are alleging negligence, and to ensure that your expert is addressing the correct test in their report. Equally, do not assume that the judge will necessarily be familiar with the legal principles. In most cases, there is no better starting point than Green J’s excellent summary in C v North Cumbria University Hospitals NHS Trust  EWHC 61 (QB) at -.
Limit the Number of Issues
Avoid a scattergun approach. Your client may have numerous complaints about his/her treatment, many of which may have made no difference to the outcome. It can, moreover, be tempting for experts to raise issues about which they are critical, sometimes as the case develops, which add little to the claim. Whilst the case plan needs to be sufficiently flexible to accommodate changes resulting from new information, it is important not to allow the experts to determine how the case is to be run. My preference is to obtain a draft expert’s report, prepared on an advisory, rather than a Part 35, basis. This can be subjected to careful analysis and discussion in conference, taking into account issues raised in the letter of response, in order to formulate the claim. If the expert’s views do not withstand rigorous testing, an alternative expert could be instructed at that stage, without the risk of having to disclose the initial report (cf Edwards-Tubb v JD Wetherspoon PLC  EWCA Civ 136 at ). Otherwise, draft Particulars of Claim can then be prepared for approval by the expert, and used as a template for the Part 35 report. Everyone should then have a clear picture of how the case is put.
Consider also whether there is an alternative presentation which would make the case easier to prove. The more unusual the presenting condition, the harder it will be to show that it ought to have ben recognised by a reasonably competent clinician. For example, I am currently dealing with a case involving a failure by a paediatrician to deal with a longstanding, but rare, vascular malformation, leading to tumour growth and compressive damage to the spinal cord. Rather than alleging a negligent failure to diagnose the condition (which would be outside the knowledge and experience of a reasonable paediatrician), we have alleged a failure to refer to a specialist multi-disciplinary team, on the basis that there were sufficient concerns regarding the patient’s condition to merit tertiary referral.
Ensure Causation has been Considered and Pleaded
The claimant must prove that the defendant’s breach of duty caused or materially contributed to the injury (Bailey v Ministry of Defence  EWCA Civ 883; Williams v The Bermuda Hospitals Board  UKPC 4). Merely adding a potential risk factor is insufficient (Wilsher v Essex Area Health Authority  AC 1074), nor it would seem is the loss of a chance of a better outcome (Gregg v Scott  UKHL 2). Obviously, if the outcome would have been the same but for the defendant’s negligence, the claim fails on causation (Barnett v Chelsea & Kensington Hospital Management Committee  1 QB 428). If the claimant alleges that she was not properly informed about the risks of treatment and the availability of alternatives, it is necessary for her to plead and prove what she would otherwise have done. In particular, if the claimant relies upon a surgeon’s failure to warn of the risks of surgery, it is normally necessary for the claimant to prove that, properly warned, she would never have undergone surgery. Where, however, there has been a negligent failure to warn of a particular risk, and the injury is intimately connected to the duty to warn, then the injury is to be regarded on policy grounds as being caused by the breach of the duty to warn (Chester v Afshar  UKHL 41). If that extension to the established principle of causation is to be relied upon, it is necessary to plead the point and support it by evidence (Correia v University Hospital of North Staffordshire NHS Trust  EWCA Civ 356).
I sometimes find that it is easier to consider issues of causation before breach of duty. In cases of obstetric negligence resulting in cerebral palsy, for example, it is usually critical to determine the latest time by which the baby would need to have been delivered, in order to avoid hypoxic brain damage. Once that has been established, the enquiry may solely focus upon breaches of duty prior to that time.
What Facts Need to be Proved, and How?
Cases are invariably won or lost on the quality and strength of the evidence. Clinical negligence claims are no exception. In any such claim it is essential to obtain and carefully review the clinical records. Contemporaneous evidence in medical records, made pursuant to a professional duty to inform the care and treatment of a patient, is by its nature likely to be reliable, and will frequently be preferred where it conflicts with the recollection of witnesses. For example, in a case I recently tried concerning an allegedly negligent delay in diagnosing a Clostridium difficile infection, careful review of the nursing records and prescription charts confirmed the entries in the clinical records regarding the time of onset of the claimant’s diarrhoea. Where, however, there is uncertainty concerning the circumstances in which a critical note was made, it will be less persuasive (Synclair v East Lancashire Hospitals NHS Trust  EWCA Civ 1283).
Given the fallibility of human memory, it is essential to obtain detailed instructions from your client and any witnesses, and to incorporate their accounts into signed witness statements at an early stage, even though those statements may need to be refined and redrafted prior to trial. The reliability of those accounts should be assessed against the contemporaneous clinical records. If it is suggested that the records are inaccurate, how can they be successfully challenged? It may be that a witness has a particular reason for recollecting that an event occurred on a particular date or in a particular manner (for recent examples, see Henderson v Hillingdon Hospital NHS Foundation Trust  EWHC 3281 (QB) and Shaw v Stead  EWHC 520 (QB)). If so, that needs to be clearly explained in their witness statement. Are there any other sources of reliable evidence? I am currently involved in a cerebral palsy case involving a failure to expedite delivery when shoulder dystocia occurred, in which the timings recorded by the midwife in the notes were demonstrated to be wrong by producing metadata from footage of the labour and delivery filmed by the patient’s mother on her mobile phone. Having been presented with such evidence, the hospital has admitted both breach of duty and causation.
Can Adverse or Benevolent Inferences be Drawn?
In Wisniewski v Central Manchester Health Authority  PIQR P324, an obstetric negligence case where the doctor who should have attended the patient declined to return from Australia to give evidence at trial, the Court of Appeal indicated that a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue, provided there was a case to answer. Such an inference might strengthen the evidence adduced on that issue by the other party, or weaken the evidence adduced by the party who failed to call the witness.
Similarly, where a defendant’s breach of duty has made it difficult or impossible for a claimant to adduce relevant evidence, the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically. In Raggett v Kings College Hospital NHS Foundation Trust  EWHC 1604 (QB), where the Defendants’ breach of duty had resulted in early amputation of the Claimant’s leg, the judge took a benevolent approach to the evidence when determining for how long the leg would have remained viable, but for the negligence. Likewise, in JAH v Burne  EWHC 3461 (QB), a doubt as to whether anticoagulation treatment would have been effective in avoiding amputation was resolved in the Claimant’s favour, as it was the Defendants’ admitted breach of duty which deprived her of this opportunity.
I recently relied on those cases in circumstances where a defendant failed to call evidence from the doctor who undertook the allegedly inadequate consent process, and where, owing to a failure to ask for how long a claimant had experienced a new symptom, there was no evidence as to its onset and duration, and accordingly as to the likelihood of a non-surgical cure.
Ensure your Experts are Prepared
Most clinical negligence claims are won or lost on the quality of the expert evidence. Choosing the right expert is essential, as is ensuring that they have complied with their duties under Part 35 of the CPR and The Ikarian Reefer  2 Lloyd’s Rep 68. It is the responsibility of the legal team to ensure that the expert has the necessary expertise, is aware of their duties, and has seen all relevant factual material, whether supportive or not (Kennedy v Cordia  UKSC 6 at  and ). Essential guidance as to the principles and considerations applying to the assessment of expert evidence are set out by Green J in C v North Cumbria NHS Trust  EWHC 61 at . By far and away the most important consideration is the logic of the expert opinion tendered, whether it accords with the inferences properly to be drawn from the clinical notes and other evidence, and whether relevant clinical guidelines or literature have been considered and addressed.
Whilst experts will be assisted in their joint discussions by preparation of a well-drafted agenda, it is important that attempts to agree the agenda should not become a battleground. In the vast majority of cases, any disagreement ought to be capable of resolution through a bit of give and take, or the insertion of some additional questions (Welsh v Walsall Healthcare NHS Trust  EWHC 1917 at -).
What carries weight is the expert’s reasoning, not the conclusion. An expert’s bald statement of opinion is of no real assistance, unless the process of reasoning which led to the conclusion is carefully set out. This was well illustrated in a case I recently tried, in which two eminently qualified and experienced surgical experts disagreed upon whether an entero-cutaneous fistula and bowel rupture had been caused by inadvertent but unrecognised injury to the small bowel during earlier surgery (as contended by the Claimant), or by subsequent herniation of the bowel through the abdominal wall (as contended by the Defendant). Each expert accepted that either theory was possible, but maintained that their version was more probable. In oral evidence, however, two important factors emerged, which led me to prefer the evidence of the defence expert:
- Whilst both experts considered the CT scan findings to be important, the Claimant’s expert had not viewed the images themselves, but had relied upon the radiologist’s report, the wording of which was somewhat equivocal. In contrast, the Defendant’s expert had viewed the images for himself.
- The Defendant’s expert justified many of the assertions made in his report by references to the medical literature, when the Claimant’s expert did not. Such literature strongly supported the suggestion that, even if an undetected injury to the small bowel had occurred during surgery, this was a rare but recognised complication of this type of operation.
If Possible, Keep it Simple!
It goes without saying that, if you are able to provide the judge with a straightforward and logical route to a verdict in your favour, you are likely to win. The most skilful advocate will distil an apparently complex case into its essential elements, concentrating attention on the key points and filtering out the unimportant.
I can think of no better example than the well-known case of Darnley v Croydon Health Services NHS Trust  UKSC 50. The Claimant attended at hospital with a head injury. Having been told by a receptionist that he would have to wait 4-5 hours to be seen, when he would in fact have been assessed by a triage nurse within 30 minutes, he went home and later suffered a deterioration in his condition resulting in permanent brain damage. At 1st instance and before the Court of Appeal, there were extensive arguments regarding the scope of the receptionist’s duty, whether there had been an assumption of responsibility to give accurate information, whether this was a case of negligent misstatement, whether it would be fair, just and reasonable to impose a duty (Caparo Industries v Dickman  2 AC 605), whether the Claimant’s decision to leave broke the chain of causation, and so on. Only when the case reached the Supreme Court (and in the light of the recent decision in Robinson v Chief Constable of West Yorkshire Police  UKSC 4) was there a fundamental shift in the presentation of the Claimant’s case. The duty of care was owed by the hospital, not the receptionist. Once the claimant attended hospital and was booked in, the hospital owed a duty to take reasonable care not to cause him foreseeable physical injury, a duty which extended to the provision of misleading information. The Claimant succeeded.