‘Hybrid’ Trials – Are We Ready?

June 30, 2021

This article was originally published in AvMA Lawyers Service Newsletter June 2021.

Lee Speakman

In this article, Lee Speakman candidly draws on and shares his own experience of representing a claimant in a complex clinical negligence case.

I’ve recently had the privilege to represent at trial a man who sadly became completely blind as a result of complications arising from his treatment for a giant and invasive pituitary adenoma. Whilst we wait for our judgment to be handed down, it is worth reflecting on the particular case and lessons to be learned, both from the trial itself and from the way that the case evolved.

The first that the Claimant was aware of any problem was, as is typical with pituitary tumours, when he noticed changes to his eyesight. As the tumour grows, it presses upwards against the optic nerve. In time, the pressure can result in permanent and irreversible damage. The Claimant consulted his optician who in turn referred him to a neurosurgeon for scans.

The Claimant’s neurosurgeon advised him to undergo an endoscopic procedure to remove the tumour by approaching transsphenoidally; that is, by cutting through the back of the nose and removing the tumour through the sphenoid sinus. The tumour was only partially removed and post-surgically the Claimant’s sight deteriorated dramatically. Whilst surgery via the transcranial route (i.e., removing part of the skull) was scheduled for the following morning, it was too late to save any of the Claimant’s sight. The exact mechanism of the deterioration is disputed, but is argued by the Claimant to have been swelling of the residual tumour.

The parties obtained expert advice from consultants in neurosurgery, radiology and ophthalmology. My involvement came rather late in the day, just before the PTR, as a result of the Claimant’s previous counsel withdrawing from the case.

The Claimant’s case, pleaded by counsel, was that the neurosurgeon had been wrong to elect for a transsphenoidal approach initially, and that in view of the scans available to him, he should have chosen the transcranial approach. Had he done so, it was likely that the tumour would have been entirely removed on the first attempt, and the Claimant’s sight would have been preserved. In the alternative, a return to surgery should have been prioritised as an emergency when the dramatic and progressive loss of the Claimant’s sight was noted in the hours that followed surgery.

The first problem for the Claimant was contained in his own neurosurgical evidence. The height of the neurosurgeon’s evidence in his own report was that he personally would not have chosen the transsphenoidal route, and it was notable that although he had criticised parts of the care as being ‘negligent’ and ‘not within a range of reasonable opinion’, he had avoided doing so in respect of the initial choice of surgery. A conference clarified that the expert not only knew the Bolam test, but did not think it was met. Quite why the decision was made to plead the case in the way it was is still something of a mystery. A decision was made to concede that part of the case and to concentrate on the delay in returning the Claimant to surgery.

The second notable feature of this case was that it was run as a hybrid trial; a novelty to counsel, solicitors, expert witnesses and judge. It was agreed in advance that the legal representatives, the expert neurosurgeons and all but one of the lay witnesses would attend in person. The allegedly negligent neurosurgeon and the ophthalmologists would give evidence remotely. By trial, it was agreed that there was no need for the radiologists to attend.

The court had arranged a CVP link which meant that those at court could watch on screens the evidence of remote witnesses. It quickly became apparent that the technology was not up to the job. Audio feedback resulted in ear-piercing screeching. The witness was asked to wear headphones, which meant that the feedback issue was resolved for those in court, but the witness had to listen to his own voice echoing back at him a second after he had started to speak. At times, the audio quality in court was extremely poor, which meant questions and answers had to be repeated, resulting, to my mind, in different answers on the second attempt. Although we had breaks to allow for technical staff to try to fix the problem, it remained a constant feature of the remote evidence. Many hours were spent preparing a composite note of the key witness’ evidence by counsel and solicitors as a result of dips in the audio. By Day 3 of 5, all of the other ‘remote’ witnesses had elected to come to court.

Amongst the many interesting questions requiring answers in this case are;

  1. Was too much reliance placed by the operating surgeon on radiology which had suggested no overall increase in the size of the tumour post-operatively rather than the clinical signs and symptoms demonstrated by the patient in recovery?
  2. Was the patient’s presentation post-operatively unique, and if it was, did it require a tailor-made approach? Was the Defendant’s expert wrong to draw a parallel with a different condition?
  3. Should dramatic and progressive loss of sight over a few hours be considered an ‘emergency’?
  4. If so, how quickly should an emergency case return to theatre in a major teaching hospital with a dedicated neurosurgery unit in the middle of the night?

We expect judgment to be handed down soon. As social-distancing measures are reduced, many of us anticipate a return to attended hearings but there may remain good reasons for trials, or parts of trials, to be conducted remotely. Witnesses may need to shield and there may be practical benefits and costs savings in expert witnesses giving evidence by video link. The experience of this writer is that, sadly, hybrid hearings are an inferior alternative to either entirely attended or entirely remote hearings. It seems to require a leap in technology that currently looks like wishful thinking to be able to run a complex trial of this kind as a hybrid hearing. Our friends in the Crown Court may have much to teach us.

Note: Since this article was first published, judgment has been handed down and is available on Westlaw.