Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] EWHC 1276 (QB)
This article originally appeared in Issue 3 (November 2019).
Background
On 3 November 2012, the Claimant suffered a cerebral aneurysm rupture. She was taken by ambulance to Addenbrooke’s Hospital complaining of symptoms principally of confusion. She was discharged with advice to return if the symptoms re-occurred. The following morning, the Claimant suffered a significant re-bleed from the cerebral aneurysm and a major subarachnoid haemorrhage.
The Claimant alleged that had she been admitted on 3 November and had a CT scan, she would have avoided the re-bleed and subsequent significant disability. The Defendant admitted that she should have been admitted, and a CT scan should have been performed, however, pleaded that there was nothing that could have been done to prevent the re-bleed.
The relevant clinicians gave evidence that the appropriate surgical procedure of ‘coiling’ could never have been performed prior to the time of the re-bleed. The key issue was therefore whether anything could have been done to prevent the re-bleed from happening prior to when surgery would have been performed. The Claimant relied on a neurosurgeon expert report from a Mr Sandeman whose evidence was that re-haemorrhage whilst waiting for coiling in hospital was very uncommon and, “on the balance of probabilities, therefore, she would not have had a re-bleed before the aneurysm was coiled.”
Expert Evidence
Martin Spencer J commented that it was unusual to have a liability expert report that pre-dated the exchange of pleadings:
“I say that because, in general, an expert would not submit a final report until certain procedures have been followed through, including, not least, exchange of witness statements, and no reasonable expert reporting for a claimant would want to finalise his report until he had had an opportunity to see any witness statements submitted on the part of the defendant.”
He noted that significant and highly material witness evidence from the relevant clinicians was not therefore taken into consideration when Mr Sandeman opined on causation and was not commented on in his addendum report dealing with a different issue.
Mr Sandeman also in respect of a separate causation issue had again not addressed the implications of a particular procedure – giving as his explanation that he had not been given a full set of medical records. Martin Spencer J stated that:
“yet more astonishingly, Mr Sandeman appears not to have drawn this to the attention of his instructing solicitor and he told me that it was only in the week before trial, when he had access to the trial bundle which contained the full medical records, that he had access for the first time to the full medical records. He nevertheless went into the witness box and gave evidence affirming the accuracy and correctness of two medical reports which simply did not stand up to a moment’s scrutiny, given that they had been prepared on a false and wholly incomplete basis.”
Accordingly, his:
“evidence fell far below the standard to be expected of a reasonable, competent expert witness, both in relation to the preparation of his reports and in relation to his preparing to give evidence.”
Causation
Martin Spencer J concluded on the substantive causation issue that being admitted to hospital earlier would not have prevented the re-bleed. He pointed out that there was no comparative evidence as to the risk of a re-bleed out of vs. in hospital, and the only possible factor that could have increased the risk of re-bleeding was a raised blood pressure. However, even if he found (which he did not) that the Claimant’s blood pressure was likely to be higher at home than in hospital, he held that this would not have been causative of the re-bleed.
The Claimant had argued that such an increase in risk made a material contribution to her re-bleed and consequent subarachnoid haemorrhage. Martin Spencer J referred to Lord Hoffman’s judgment in Gregg v Scott [2005] 2 AC 76 and emphasised that:
“it is not enough for a claimant to assert that because there are gaps in the evidence arising out of the defendant’s negligence, therefore, the claimant is any way relieved of the obligation of the causation. Lord Hoffman says in terms that that is not the case. The Court can, of course, draw inferences and it may be that, in drawing inferences, the Court will be benignly favoured towards a claimant where a claimant is in evidential difficulties because of the negligence of the defendant but the inferences need to be ones which are consistent with the evidence that does exist, and the Court cannot invent past facts or hypothetical facts simply because the evidential basis for the claim is lacking…”
Martin Spencer J cited Chester v Afshar [2004] 3 WLR 297 as authority for the principle that reaching inferences of causation arising from an increase in risk could only be only be done where the ‘but for’ causation test was satisfied. He also cited McGhee v National Coal Board [1973] 1 WLR 1 as authority for the distinction between a material contribution to an increase in risk vs. a material contribution to injury, and that in certain cases:
“it may be possible for the claimant to prove that the defendant’s breach of duty made a material contribution to his injury by showing that it increased the risk of injury, whereby the Court will draw an inference that there was a material contribution.”
However, McGhee was not authority for absolving a Claimant from proving that there was a material contribution to the damage occurring where there are concurrent potential causes. He concluded that this case was not one in which he would have made the “leap of faith” to translate an increase in risk into equating to causation. There was no medical evidence on which to make such a leap of faith, in particular, there was and could be no evidence as to the relative risk of those kept in hospital, and those discharged to home.
Comment
This case is a useful reminder of the importance of ensuring that experts have not just had access to all the medical records, but more importantly have taken into consideration appropriate and relevant evidence that has come to light following their original report. Whether there is a more onerous requirement to do so formally by way of further written addendum reports is not made explicit in this judgment, but the implication is clearly that this is the safest way to proceed – albeit that this clearly comes at a cost, which should potentially be taken into consideration at the cost budgeting stage.
This case is also a robust assertion of the importance of the ‘but for’ causation test and a further reminder that pleading ‘caused and/or made a material contribution’ is not a get out of gaol free card. Material contribution is only relevant in particular circumstances and has to be carefully considered and supported by the medical evidence.
