Thursday, 7 November 2019

Chain Chain Chain

When a primary healthcare practitioner, such as a GP, negligently fails to refer a patient for specialist investigation, then proving that proving that the negligent failure resulted in injury involves establishing links in a chain. But for A, B would have happened, If B had occurred, C would likely have followed and so on.
like a hurdle race. 

In the recent High Court judgment in Younas v Okeahialam [2019] EWHC 2502 Ms Rowena Collins Rice, sitting as a Deputy High Court Judge, had a whole host of chain links to consider, and she deployed the principle of judicial benevolence to help the claimant establish some of them (see Martin Spencer J in JAH v Dr Matthew Burne & Ors [2018] EWHC 3461 (QB)).

Aretha Franklin singing Chain of Fools

The claimant's GP negligently failed to refer the claimant urgently for specialist cardiological investigation following an abnormal ECG. The Judge found that the claimant probably had intermittent AV block at the time. The questions for the judge were when the claimant would have been seen in out-patients, what would have been found when seen, what investigations would have been performed and when, what would the investigations have revealed, had they revealed intermittent AV block what would have been done about it and when, had a pacemaker been fitted, when would this have been listed and when would it have been done, and would the fitted pacemaker have prevented the claimant collapsing and falling in January 2014 so as to cause him a spinal cord injury which was the subject of the claim for compensation?

The claimant succeeded in persuading the court that all the links in the chain were solid. 

Judicial Benevolence

The judge considered the principle of judicial benevolence. The claimant's counsel:

"...drew my attention to the decision of the Court of Appeal in Keefe v Isle of Man Steam Packet Co [2010] EWCA Civ 683, and the principle that "a defendant who has, in breach of duty, made it difficult or impossible for a claimant to adduce relevant evidence must run the risk of adverse factual findings." (paragraph 19). In these circumstances, "the court should judge a claimant's evidence benevolently and the defendant's evidence critically."

She understandably held that this principle cannot subvert the necessity to prove causation, or links in the chain of causation, on the balance of probabilities, but held:

"[46] I must also bear in mind that it is the fault of the defendant that we are having to undertake this exercise at all, and it would be unfair for the defence to seek to capitalise on the absence of the very evidential audit trail of which the claimant has been wrongly deprived. The claimant starts at a disadvantage inflicted by the defendant; it is right both that that disadvantage should not be unfairly exacerbated, and also that a degree of minimisation of the disadvantage should be looked for, to level things up as fairly as possible. That is what 'claimant benevolence' tries to achieve.

[47] I cannot, however, simply assume that the diagnostic process, or any part of it, would have happened as quickly as the claimant needs it to in order to win his case. Nor can I disregard relevant evidence that is not in his favour, even in this hypothetical space. I have to build up the picture as best I can on the materials before me. Where I am satisfied that the evidence points to a decision within a range, but cannot otherwise discriminate within that range, then I should incline to the point in the range favouring the claimant. But it is the claimant's obligation to satisfy me as to that range. I must give him the benefit of the doubt, but he must persuade me to doubt in the first place. These are fine distinctions, but real ones, in conducting a difficult exercise fairly."

So, when the expert evidence suggested a range of waiting times for the fitting of a pacemaker of 1 to 4 weeks, the Judge applied "judicial benevolence" to make a finding that the time would have been 1 week. [paragraph 57].

The fact is that in many clinical negligence cases involving omission, there will be a lack of direct evidence as to what would have happened but for the negligence. I suspect some twitchiness amongst defendants if judicial benevolence becomes ever more common: not that anyone would approve of judicial malevolence. There may be many cases in which it could be deployed when previously other solutions have been found. For example, another approach might have been to take the mid-point of the 1 to 4 week range for waiting times, or to get actual evidence from the local Trust as to average waiting times. On the other hand, why should a defendant who is responsible for the claimant not being able to adduce direct evidence have the benefit of doubt?

I am grateful to Anna Higham of Stewarts, solicitors for the claimant, for bringing the case to my attention.