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Hewes: Claimant in a Clinical Negligence Claim Successfully Appeals Against Summary Judgment

Fri, 26 Oct 2018

Barrister - Henry Pitchers 2018

Hewes v (1) West Hertfordshire Hospitals NHS Trust; (2) East of England Ambulance Service NHS Trust; (3) Dr Pankaj Tanna [2018] EWHC 2715 (QB)

On 18 October 2018, Mr Justice Foskett granted the claimant’s appeal against the decision of Master Cook, in which he gave summary judgment for a GP defendant.

This was a case involving a cauda equina syndrome (CES).  After becoming symptomatic, the claimant had spoken to an out-of-hours GP and was later taken to hospital by ambulance, where he ultimately underwent surgery.  He was left with a poor outcome, with ongoing bowel and bladder problems.  As those advising in these cases will know, time is of the essence.  Delay in treatment of CES often leads to significant and sometimes avoidable disability.

The claimant sued three defendants whom he alleged had negligently contributed to the delay in him being treated: the GP, the ambulance trust and the hospital trust.  For the purposes of analysing this decision, we are principally interested in the case against the GP.  In summary, the claimant alleged that the GP should have made immediate contact with the hospital after the telephone consultation, which would have ensured that his assessment at hospital was expedited.  This, in turn, would have brought forward the timing of the definitive surgery.

The GP applied for summary judgment on the basis that the claimant had no reasonable grounds for bringing the claim against him.  Essentially, the GP suggested that the claim was bound to fail, so summary judgment should be given.  The application was made on 28 February 2018.  The date for simultaneous exchange of expert evidence was not until 3 July. So, the defendant made the application well in advance of the time set by the court for the parties to disclose their evidence.

The GP elected to disclose the strongly supportive expert report of Dr Russell, who concluded as follows (note that Foskett J questioned the appropriateness of the observation):

I am strongly of the opinion that the allegation against [D3] has no foundation, and would go as far to say that of the many medicolegal reports that I have written, I can think of very few with an allegation as unfounded as this.

The claimant in response declined to provide advance disclosure of a full report, but rather served a short letter from his expert, Dr Swale, which read:

I am a GP expert instructed by [C] in this case.  I have been made aware that an application for summary judgment has been made on behalf of [D3].  I have read the statements of case and I can confirm that, from my perspective as a GP I continue to remain supportive of the case set out in the Particulars of Claim and notwithstanding the Defences.”

It did not address directly the report of Dr Russell.

Master Cook heard the application for summary judgment and found for the GP.  He concluded that the claimant did not have reasonable prospects of successfully establishing breach of duty against the GP.  Master Cook accepted that all that was required was a real, as opposed to fanciful, prospect of success.  Further, he agreed that there should not be a “mini trial” and the court should not make a ruling on the relative merits of the respective experts’ opinions.  However, he concluded that the claimant had had ample time to obtain his expert’s view on the central question in the case and that the letter provided (as set out above) was “far from satisfactory”, and that a fuller answer was required.

On appeal against the decision of Master Cook, Foskett J concluded that there would be few cases where an application for summary judgment could be properly contemplated before exchange of expert evidence and, in most cases, until after joint statements.  In this case, it was clear that the claimant had a GP expert who supported his case against the GP.  The allegations were set out in the letter of claim and pleaded in the Particulars of Claim.  They were reiterated in the Reply.

The judge well understood the reluctance of the claimant’s advisers to permit their expert to tie himself to a hastily-produced, but more detailed response.  He also noted the costs implications, with the production of such a report normally falling outside what was budgeted.  In conclusion, “an expectation that Dr Swale should produce even brief reasons in response was an unreasonable expectation.”

The appeal was allowed.

At the appeal, the claimant’s team had understandably sought permission to introduce fresh evidence in the form of the full report from Dr Swale.  Foskett J concluded that the appeal would succeed irrespective of the introduction of such evidence.  However, he would have given permission to introduce it had it become necessary.

What can clinical negligence practitioners take from this decision?

  • Successful applications for summary judgment in clinical negligence cases are likely to remain extremely rare.
  • In cases where the parties’ positions are adequately pleaded (otherwise an application to strike out might be considered), applications for summary judgment should only be considered by either side, after exchange of expert evidence and probably not before the relevant joint statements have been prepared.
  • At that point in time, however, the case is likely to be relatively close to trial and there may be insufficient time to prepare, list and determine an application.
  • Given the effect of qualified one-way costs protection, defendants may, in an exceptional case, still elect to make such an application if the expert evidence served by the claimant either does not support the pleaded case or is so fundamentally and obviously misconceived that a judge may properly conclude that there are not real prospects of the claim succeeding.

Henry Pitchers
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Clinical Negligence Group

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