f Clinical Negligence Update Nigel Poole QC 1. Judgecraft 1.1. Not a “details man”. 1.1.1. Barnett v Medway NHS Foundation Trust [2017] EWCA Civ 235 [Case 21]. 1.1.2. Difficult expert evidence was considered but not resolved by the trial judge who ultimately decided the case for the defendant on the burden of proof – the claimant had failed to prove his case to the requisite standard because the court could not resolve a key factual issue. 1.1.3. The Court of Appeal considered Stephens v Cannon [2005] EWCA Civ 222 and Verlander v Devon Waste Management [2007] EWCA Civ 835 in which Auld LJ held: When this court in Stephens v Cannon used the word "exceptional" as a seeming qualification for resort by a tribunal to the burden of proof, it meant no more than that such resort is only necessary where on the available evidence, conflicting and/or uncertain and/or falling short of proof, there is nothing left but to conclude that the claimant has not proved his case. The burden of proof remains part of our law and practice -- and a respectable and useful part at that - - where a tribunal cannot on the state of the evidence before it rationally decide one way or the other. In this case the Recorder has shown, in my view, in his general observations on the unsatisfactory nature of the important parts of the evidence on each side going to the central issue, particularly that of Mr Verlander, that he had considered carefully whether there was evidence on which he could rationally decide one way or the other." 1.1.4. In Barnett the Court of Appeal was clearly concerned about the “remarkably succinct judgment”: “The Appellant submits, in support of these Grounds, not only that the judge reached "impermissible" or erroneous conclusions, but that the judgment contains no sufficient analysis of the case, and thus the Appellant is left in doubt as to the judge's reasoning. With respect to the Judge, there appears to me to be CLINICAL NEGLIGENCE UPDATE | Nigel Poole QC force in the latter complaint. There is great virtue in writing judgments concisely. However, the parties do need to know sufficiently what led to the conclusions reached. In this instance, the judgment gave only the briefest explanation. The obligation is all the clearer in a case of such complexity, and in a case where a key issue is decided on the basis that a claimant has failed to discharge the burden of proof, as the passage from paragraph 46 of Stephens v Cannon quoted above makes clear. The learned judge is to be commended for his brevity, but on this aspect of the case at least, it went too far. Irwin LJ at [54]. 1.1.5. However, the Court of Appeal held that this was an exceptional case in which the judge was justified in his inability to resolve an issue of fact and therefore to determine the case on the burden of proof. 1.2. “I know all about that” 1.2.1. Willmott v Rotherham NHS Foundation Trust [2017] EWCA Civ 181 [Case 19] 1.2.2. Knee replacement operation. The trial Judge had had a knee operation and informed the parties that he had gained a great deal of knowledge through that experience. After several judicial interventions the claimant’s counsel asked the Judge to recuse himself which he refused to do. The Court of Appeal agreed that the Judge had not been required to recuse himself but commented: “I should say that I think it was unwise for the judge to refer so extensively to his own experience of knee treatment and to his background reading on the subject. This gave rise to a concern that the judge might not be confining his approach to the evidence adduced before him. The concern was in fact unjustified, but it fuelled the application for recusal and has fuelled this appeal.” CLINICAL NEGLIGENCE UPDATE | Nigel Poole QC 2. The Standard of Care “I predict that over the coming years there will be continuous onslaught on Bolam. The argument will be that the ordinary principles of tortious liability should apply to the professions in the same way that they apply to everybody else. There is no reason for the courts to accord special protection to the professions. Whether any of those attacks will succeed I do not know and it would be wrong for me, as a judge, to predict. I merely state where I foresee the next battles being fought.” Lord Justice Jackson, 2015 2.1. Assessing Conflicting Expert Evidence 2.1.1. In Lane v Worcestershire Acute Hospitals NHS Trust [2017] EWHC 1900 (QB) Edward Pepperall QC reviewed the authorities on the approach to the standard of care where there are conflicting expert opinions. He relied upon Green J in C v North Cumbria University Hospital NHS Trust [2014] EWHC 61 at [25]: "(vi) Responsible/competent/respectable: In Bolitho Lord Browne-Wilkinson cited each of these three adjectives as relevant to the exercise of assessment of an expert opinion. The judge appeared to treat these as relevant to whether the opinion was 'logical'. It seems to me that whilst they may be relevant to whether an opinion is 'logical' they may not be determinative of that issue. A highly responsible and competent expert of the highest degree of respectability may, nonetheless, proffer a conclusion that a court does not accept, ultimately, as 'logical'. Nonetheless these are material considerations … CLINICAL NEGLIGENCE UPDATE | Nigel Poole QC "vii) Logic/reasonableness: By far and away the most important consideration is the logic of the expert opinion tendered. A judge should not simply accept an expert opinion; it should be tested both against the other evidence tendered during the course of a trial, and, against its internal consistency." Green J’s formulations have been relied upon on more than one occasion by other High Court Judges. However, Edward Pepperall QC also warned himself that: “Bolitho is not a licence for a judge to prefer one expert's logical opinion over another. The question is not whether Mrs Lane could have received a better standard of care or whether, with hindsight, things could have been done better, but whether the treatment given by these doctors is or is not supported by a responsible body of medical opinion that withstands logical analysis.” The court scrutinizes an expert’s opinion for its logic, but if the defendant’s conduct accords with a responsible body of medical opinion that withstands logical, that is the end of the matter. It is not for the court to go on to decide whether it prefers the approach of the claimant’s expert. 2.2. The Particular Task 2.2.1. Most obviously, as confirmed in Montgomery v Lanarkshire, the task of giving advice and obtaining consent is no longer judged by the Courts using the Bolam test. Thefaut v Johnston [2017] EWHC 497 (QB) [Case 17] provides a striking example of the impact of Montgomery: a very experienced surgeon accepted that the advice he had given about proposed spinal surgery had been overly optimistic and sub-standard and that, post Montgomery, he had changed the pre-operative advice he gives to patients. 2.2.2. But are there other clinical activities for which the Bolam test is not appropriate? CLINICAL NEGLIGENCE UPDATE | Nigel Poole QC 2.2.3. Muller v King's College Hospital NHS Foundation Trust [2017] EWHC 128 (QB). [Case 13].This was a claim for delay in diagnosing cancer where the histopathologist had misreported a malignant melanoma as non- malignant ulcer. Kerr J considered what was the correct test to apply when determining whether such mis-reporting had been negligent. In an important passage beginning at [46] he said: “Mr Kellar, for Mr Muller, submitted that the application of the Bolam principle did not provide the answer here. He proposed that the governing authority was the Court of Appeal's decision in Penney v East Kent Health Authority [2000] PNLR 323, in which Lord Woolf MR gave the judgment of the court. That case, he pointed out, was like this one a case of interpreting objective data wrongly. “He submitted that Penney showed that the court must determine the objective facts about what pathological features were there to be seen on the slides - which in the present case is a matter of agreement - and then decide for itself whether, in the light of the differing experts' views, the misdiagnosis was one that must have been made without the use of reasonable skill and care. The court could not abdicate its responsibility to resolve the conflict of expert opinion by resorting to the Bolam-derived notion of a respectable body of medical opinion. “One might have thought the principles would be settled by now. In my judgment, the difficulty has arisen because, unfortunately, the authorities applying the conventional Bolam approach to negligence in this field do not sufficiently differentiate between two types of case. “The first type is a case such as the present, where the patient's condition is unknown, and what is alleged to be negligent is a doctor's diagnosis of the condition, in the form of a report, with no decision made or advice given about treatment or further diagnostic procedures. The diagnosis is either right or wrong and, if wrong, either negligently so or not. Such a case could be called a "pure diagnosis" case. “At the other end of the spectrum is the second type of case: a "pure treatment" case, where the nature of the patient's condition is known, and the alleged negligence consists in a decision to treat (or advise treatment of) a condition in a particular manner.