MJF: a re-emphasis on statements of case and evidential rigour
MJF (a Protected Party proceeding by her mother and litigation friend, ITZ) v University Hospitals Birmingham NHS Trust [2024] EWHC 3156 (KB)
The Claimant, MJF, alleged that her surgery had been conducted negligently, causing a severe deterioration in her condition. The importance of the case to practitioners lies not in its determination on substantive law, but in the Judge’s observations on (i) statements of case; (ii) witness statements and witness evidence; and (iii) expert evidence.
Background
Material Facts
The Claimant suffered from congenital cerebral palsy, autism and epilepsy, and had extremely complex medical needs. Due to concerns about the Claimant’s oral intake, a decision was made for the Claimant to undergo surgery to insert a Percutaneous Endoscopic Gastronomy (‘PEG’) feeding tube on 22 March 2016. Following the surgery, the Claimant’s condition deteriorated.
The Claimant’s case, broadly stated, was that the Defendant had been negligent in inserting the PEG with too much tension between the internal bumper (inside the Claimant’s stomach) and the external bumper (on the surface of the Claimant’s skin). As a result, the tension between the internal and external bumpers prevented blood supply to the stomach wall at the PEG site, causing necrosis which developed into peritonitis, sepsis, and a hypoxic episode. This purportedly resulted in a significant worsening of the Claimant’s underlying neurological condition – specifically, that the Claimant suffered a loss of mobility, became doubly incontinent, had a tracheostomy, and required a PEG feeding tube.
The Defendant’s case was that the PEG had been inserted with due care and attention, i.e. with appropriate tension between the external and internal bumper. Any necrosis which resulted was simply a rare, but recognised complication of procedure. In any event, the Defendant alleged that the causative impact of any negligence was limited to a six-year acceleration of a pre-existing deterioration in the Claimant’s condition.
The case turned on two key factual disputes: (i) whether the skin to gastric lumen distance during the surgery was 2.5cm (being the Claimant’s case, which would have resulted in the relevant tension being too high) or 1cm (being the Defendant’s case, which would have suggested that tension was appropriate); and (ii) whether the Claimant’s level of functioning was already deteriorating before 22 March 2016.
Decision
Her Honour Judge Emma Kelly found liability in favour of the Claimant. The Judge accepted that on the evidence, the skin to gastric lumen distance had been 2.5cm, such that there was too much tension between the internal and external bumper. The Judge reached this conclusion on the basis of concerns regarding the reliability of the evidence of Dr Andrew, the operating surgeon, and his recollection of events.
As to causation, the Judge found that the expert evidence pointed overwhelmingly to the excessive tension being the cause of the necrosis. The late ventilation of alternative hypotheses for the necrosis undermined the Defendant’s case.
As to quantum, the Judge held that the breach of duty had caused a loss of mobility and the need for a tracheostomy. However, the Claimant’s deterioration in incontinence and feeding was ongoing prior to the surgery, and had only been accelerated by 6 years due to the breach. In reaching this conclusion, the Judge placed weight on the contemporaneous medical records rather than the accounts of the Claimant’s witnesses.
Practice Points
The judgment in MJF gives rise to important points of practice regarding statements of case and evidence.
Statements of Case
The Judge noted that the Defendant’s Defence had originally postulated several likely causes of necrosis, which had later been abandoned ([18]). The evolution of the Defendant’s case was set out in detail by the Judge at [162], including the suggestions of further possible causes of necrosis (referred to by the Judge as ‘the Alternative Theses’) which were first ventilated by the relevant expert in oral evidence.
As a result, the Judge did not permit the Defendant to rely on the Alternative Theses, which had not been foreshadowed in its statement of case. The Judge cited authorities regarding the importance of statements of case ([165]-[168]) and noted that this was “not a technical pleading point” since the Claimant was significantly disadvantaged by the delay in postulating the Alternative Theses ([169]-[170]).
Practitioners in clinical negligence will be aware that it is not uncommon for parties’ positions to develop over the course of a case as medical hypotheses are investigated, and expert opinions are obtained and revised (and re-revised). Indeed, the Claimant in MJF had also amended her Particulars of Claim to abandon an earlier allegation ([13]). Nevertheless, MJF serves as a reminder of the importance of investigating all avenues of a claim or defence early in proceedings, and the risks of a delayed reliance on a hypothesis.
Witness Statements and Witness Evidence
The Claimant’s pre-existing condition was evidenced by witness accounts from both parties. There were, however “striking similarities” in the witness statements of three of the Claimant’s witnesses, in which identical terms were used ([28], [33], [44]). The Judge noted that this was “very unsatisfactory”, and that the most likely explanation was that “these three witnesses discussed their evidence before giving what amounted to joint instruction to the claimant’s solicitor, who then drafted a statement and cut and pasted paragraphs into other statements”. This approach undermined the cogency of the evidence, as the witnesses’ actual words could not be determined ([144]).
As to the reliability of oral witness evidence, the Judge highlighted significant concerns regarding the evidence of Dr Andrew, which was internally inconsistent and unsupported by the medical records which had recorded that the skin to gastric lumen distance was 2.5cm ([55]-[58], [131]-[141]). The Judge observed that although Dr Andrew was not deliberately seeking to mislead the court, the reality was that he was being asked to recollect the detail of a 13-minute procedure over eight years ago ([134]). Similarly, on the issue of the Claimant’s pre-existing deterioration, the Judge preferred the evidence of the contemporaneous medical records to that of the Claimant’s witnesses, who did not accept that the medical records were accurate. Referring to Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) (QMLR comment here), the Judge noted the fallibility of human memory and emphasised the likelihood of medical records being more reliable ([118]-[126]). The Judge further observed that the Claimant’s witnesses were not independent as they shared a close bond with the Claimant, which risked unconscious bias affecting their answers ([143]).
This is now the second case in recent months where the a court has commented on similarities between witness statements and the unreliability of human recollection, particularly where witnesses appear to be defensive and/or evasive (see the case of Deakin-Stephenson v Behar & Anor [2024] EWHC 2338 (KB) and the corresponding QMLR update here). In light of this more rigorous approach to witness evidence, practitioners should take care to ensure that witness statements are written in the witness’ own words as far as possible, and to advise witnesses on the advantages of being candid with the court.
Expert Evidence
Finally, it is useful to note in brief that the expert evidence of Dr Bavikatte, one of the Claimant’s experts, was effectively abandoned during trial, because the expert had not referred to specific medical records to support his conclusions, and had not addressed the Defendant’s case on causation ([105]). The Judge found that the expert’s evidence was “demonstrably partisan” as the totality of evidence was not considered and only the high point of the Claimant’s case was taken ([142]). When instructing experts, practitioners should thus ensure that reports are based on the medical records available and address all relevant aspects of the case.
Conclusion
MJF highlights the importance of careful preparation of statements of case and evidence. The points raised may seem to be technical or overly rigorous, but may evidently have a significant bearing on the outcome of a case.
Matthew Barnes appeared for the Defendant in MJF. He did not contribute to this article.
