1. On 4 November 2019 Master Cook struck out a nervous shock claim by the children of Mr Paul who collapsed and died from an untreated heart condition whilst out on a shopping trip with them in the centre of Wolverhampton. This is the latest skirmish in a long running battle between claimants and defendants over the ‘material gap’ cases where there is a gap in time between the breach of duty and subsequent injury.  

  2. Master Cook held that the case was bound to fail because: “I cannot sensibly distinguish the facts of the current case from those in Taylor v Somerset Health Authority. 

  3. There are two problems with the Master’s approach. First, he did not acknowledge in his judgment that ‘material gap’ cases such as this are novel or that there is an as yet undecided legal principle.  An application to strike out should not be granted unless the court is certain that the claim is bound to fail. See Hughes v Colin Richards & Co [2004] EWCA Civ 266. Peter Gibson LJ emphasised that this was particularly so in an area of law subject to some uncertainty and which was developing.  If the issue in Paul had been identified correctly i.e. ‘does a gap in time between the breach of duty and the consequent injury to the primary victim operate as a bar to a nervous shock claim?’, then there is a question as to how the claim was ‘bound to fail’ given the absence of authority on the point.

The recent case of Arksey v Cambridge University Hospitals 2019 EWHC 1276 QB is a useful reminder of the pitfalls of finalising expert reports for disclosure. The Judge criticised the Claimant’s expert neurosurgeon, in a number of respects, most of which stemmed from his disclosed report predating the pleadings and therefore not taking account of the pleaded Defence or the statements from the treating doctors.

Arksey is a useful case to read anyway (quite short and concerns the negligent discharge from the Emergency Department of a patient suffering a sentinel subarachnoid bleed who then suffers a major re-bleed at home – a well trodden path in clinical negligence) but in particular as a learning exercise on expert evidence for lawyers and experts alike.

It made me think of other potential pitfalls on expert reports which I have learnt over the years – here is my ten point checklist for getting it right when it comes to finalising expert reports for exchange.

CXB v North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB)

There is no general principle that the courts should prefer assertions contained in clinical records over factual accounts in witness evidence. That was the view of His Honour Judge Gore QC (sitting as a Deputy High Court Judge), rejecting the Defendant’s submission based on Gestamin SGPS SA v Credit Suisse (UK) Limited (‘Gestamin’ [2013] EWHC 3560).

The facts

The decision was the product of a liability-only trial in a birth injury case. The hearing centred on a single issue – whether the mother asked for delivery by elective caesarean section. The Defendant accepted that if she had, her choice would have been agreed. Had she had a caesarean section, she would have avoided the damaging event.

In this article Simon Fox QC reviews the Bolam test for breach of duty in clinical negligence in the light of recent case law and asks – is it still the test for breach?

Since I transferred from medicine to law 25 years ago, I have always thought that the Bolam test cannot logically apply to many scenarios of alleged clinical negligence. The scenario which has always struck me is the iatrogenic surgical bowel injury; a surgeon inadvertently and unknowingly perforates the bowel with a surgical instrument during a routine and otherwise uncomplicated laparoscopy. Can we logically apply Bolam as the test of negligence to that?

I have never thought so.

After a long wait I find some judicial support for my concern from Kerr J in Muller v Kings College 2017 EWHC 128 QB.

Before we go any further in a discussion about Bolam, it is important to be very clear exactly what we mean by the use of the term “the Bolam test”.

McNair J actually described a number of tests for a doctor’s negligence in Bolam v Friern Hospital Management Committee 1957 1 WLR 582.

Liverpool Victoria Insurance Company Limited v Dr Asef Zafar [2019] EWCA 392 (Civ) -and- George Eliot Hospital NHS Trust v Elder (2019), QBD, 5 April 2019

Introduction

Dr Zafar ran his own medico-legal company, producing over 500 expert reports a year. In February 2012, he examined Mr Iqbal 11 weeks after a road traffic accident. The other driver involved was insured by Liverpool Victoria Insurance Company Limited (‘LVI’). Dr Zafar concluded that having taken analgesia immediately after the accident, Mr Iqbal had made a complete recovery within one week of the accident. Dr Zafar signed this report with a statement of truth, in accordance with CPR Part 35.

The instructing solicitor then asked Dr Zafar if he could amend the report to reflect that Mr Iqbal had ongoing moderate to severe pain in his neck and shoulders. He requested Dr Zafar review his examination notes, and in light of this ongoing pain amend his report to the effect that Mr Iqbal would recover over the next six to eight months. Without any further re-examination of Mr Iqbal, Dr Zafar obliged. Although the content of the expert report changed, the report date remained the same, as did the statement of truth.

The short answer is no but feel free to keep reading.

In Pomphrey v. Secretary of State for Health the Claimant’s claim for damages in respect of the non-negligent complications of spinal surgery failed. His argument was that for a period of 10 months prior to surgery he had symptoms of cauda equina syndrome and should have had decompressive surgery earlier. Had he done so he would probably have avoided the dural tear which he sustained when his operation eventually took place. HHJ Cotter QC rejected the Claimant’s argument, preferring the evidence of Richard Stacey to Nick Todd. He found that the Claimant had been suffering from intermittent spinal claudication caused by spinal stenosis, not CES, and that there was no requirement for earlier surgery.