Friday, 8 June 2018

Summary Justice

Cauda Equina Syndrome can be a rapidly progressing condition that may cause permanent neurological impairment. Certain "red flag" signs and symptoms, such as saddle anaesthesia, should alert medical practitioners to the possibility of CES before it becomes "complete." If a patient undergoes surgical decompression before CES becomes complete then the more severe neurological impairments may be avoided.

On 12 March 2012 Mr Hewes experienced increased pain and numbness around his upper legs and groin. As his concerned wife was arranging for an ambulance to take him to hospital, his GP, Dr Tanna, spoke to Mr Hewes by telephone. The GP recognised the possibility of CES and advised him to go to A&E at Watford General Hospital urgently. This was at just after 0600 hrs. An ambulance took C to the hospital, arriving at 0819 hrs. In A&E it was considered that C did not have CES. Nevertheless an MRI was arranged and carried out at 13.50 hrs. The findings led to the involvement of the Orthopaedic team. Arrangements were later made for transfer to a specialist hospital where decompression surgery was performed at 22.30 hrs.

The Claimant sued the the Trust for Watford GH, the ambulance service and, as D3, Dr Tanna. The allegations against Dr Tanna were that he ought to have contacted WGH and advised that C should be seen directly by the orthopaedic team, bypassing A&E.

Prior to exchange of expert reports on liability, D3 applied for and secured summary judgment, closing the door of the court on the Claimant's claim against him. That was the decision of Master Cook: Hewes v West Hertfordshire Hospitals NHS Trust [2018] EWHC 1345 (QB). I understand that it may be subject to appeal.

A summary judgment application will be defeated if the Claimant has a realistic prospect of success at trial. The Court should avoid a mini-trial on a summary judgment application but it should critically examine whether the prospects of success are more than merely arguable.

D3 relied on an expert report on liability to the effect that he had acted in accordance with a  reasonable body of GPs in practice at the relevant time. Master Cook noted at [33] that:

"Miss Toogood [Counsel for the Defendant] therefore submits that the Claimant has no real prospect of succeeding in his claim unless he can show that the opinion of Dr Russell is not capable of withstanding logical analysis." At [54] he said that given the evidence in support of the application, "I must therefore consider the remaining matters put forward by McLeish [Counsel for the Claimant] by which he sought to persuade me that there was a realistic prospect of satisfying the trial judge that Dr Russell's opinion was or might be wrong with a critical eye."

Master Cook considered the arguments raised on behalf of the Claimant and found them to be unconvincing. He concluded at [63]:

"In my judgment and having applied my critical faculties, the above issues whether taken individually or cumulatively do not raise realistic or credible grounds to undermine the opinion of Dr Russell."

Master Cook referred to notes in the White Book under CPR 24: "If the applicant for summary judgment adduces credible evidence in support of their application, the respondent becomes subject to an evidential burden of proving some real prospect of success or some other reason for a trial. The standard of proof required of the respondent is not high. It suffices merely to rebut the applicant's statement of belief.

One of the cases then cited in the notes is ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472; In that case Potter LJ said in relation to summary judgment applications, "generally the burden of proof is in practice of only marginal importance in relation to the assessment of evidence." 

Here, the judgment does not disclose any significant dispute on the facts. The application was based on expert opinion evidence. It is not a "fact" that D3's conduct was within a reasonable body of opinion. That was the view of Dr Russell, D3's expert. That view had not been subject to scrutiny at a joint meeting let alone at trial. On a summary judgment application the court is enjoined not to conduct a mini-trial and therefore there could not be detailed scrutiny of Dr Russell's opinion. Prior to exchange of expert reports the Court had not seen all the evidence the trial judge would see on liability. In a multi-defendant case the Claimant would be very reluctant to show her hand by disclosing her expert evidence on liability before the due time. 

Is it reasonable to expect C to adduce evidence to "undermine" the opinion of D3's expert, even prior to the time set by the Court for exchange of expert evidence?

Turn the tables: suppose a claimant were to apply for summary judgment prior to exchange. Would the defendant be bound to disclose expert evidence that the practitioner's conduct was not Bolam negligent?

It must be borne in mind that by giving summary judgment, a party is deprived of the opportunity of a trial of the claim. It is therefore a power the courts should exercise with great care. In clinical negligence claims that are likely to be resolved by the trial judge's determination of the expert evidence, summary judgment will rarely be given. Some clinical negligence cases will be suitable for summary judgment, but perhaps they will be those where there is no realistic prospect of the claimant establishing the facts necessary to establish liability, or where there is a clear legal obstacle. In Hewes, the issue was one of expert opinion.

The claim against D3 was a bold one. It is not hard to see the weaknesses in it, but there are points of principle arising out of this decision which are of wide importance. I know that the judgment is already causing a stir in clinical negligence circles. It would not be surprising if an appeal did follow and it will be interesting to see the outcome. 


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