PROVING THINGS 109: WHEN A DEFENDANT IS ABLE TO OBTAIN SUMMARY JUDGMENT IN A CLINICAL NEGLIGENCE CASE

In Hewes v West Hertfordshire Hospitals NHS Trust & Ors [2018] EWHC 1345 (QB) Master Cook allowed a defendant’s application for summary judgment. It is a classic case of a claimant being unable to prove their case against that particular defendant.  It shows that when a defendant makes an application for summary judgment  with clear evidence, a claimant has to put in clear evidence in response. A general assertion by experts that they maintain their view on liability is insufficient.  There was a a need for equally clear evidence on the party opposing the application for summary judgment.  A general assertion that supportive evidence will be forthcoming was insufficient to defeat the defendant’s application.  A factor in this case  was the Master’s suspicion that two similarly written letters from experts that the claimant served in response had been drafted by the solicitor.

“I am bound to say that I find Dr Swale’s letter of 24th April 2018 far from satisfactory, as it entirely fails to identify and address this central issue in the case. It has the hall mark of being drafted by the Claimant’s solicitor, given its striking similarity to the letter from Mr Thorpe, the Claimant’s expert spinal surgeon. If Dr Swale’s evidence is to the effect that no responsible GP would have referred Mr Hewes to the Accident and Emergency Department of Watford Hospital it would have been very easy for him to say so and to give brief reasons for expressing that view.”

 

THE CASE

The claimant  suffered Cauda Equina Syndrome. He brought an action for clinical negligence against three defendants. On the morning he started to suffer symptoms he telephoned the Third Defendant, a GP, who discussed the matter with the claimant.   The claimant was transferred to hospital later the same morning. The case against the Third Defendant was that having suspected CES he failed to refer the Claimant directly to the on call orthopaedic team. The Third Defendant’s response was that his actions were all within the reasonable range of actions within the Bolam test.

THE THIRD DEFENDANT’S APPLICATION

The Third Defendant applied for summary judgment or that the claim be struck out, exhibiting an expert report in support.

THE CLAIMANT’S RESPONSE

The claimant served a supplementary report from the GP expert who reported on his behalf. This stated:

“I am a GP expert instructed by the Claimant in this case. I have been made aware that an application for summary judgment has been made on behalf of the Third Defendant. 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.”

THE RELEVANT TEST FOR SUMMARY JUDGMENT

The Master considered the test for summary judgment.

    1. The principles governing summary judgment are well known and not in dispute. I was referred to the helpful summary given by Hamblin LJ in Global Asset Capital Inc v Aabar Block SARL and others [2017] 4 WLR 163 at para 27;
“27. It was common ground that for the purpose of the present case the applicable principles concerning strike out and summary judgment may be conveniently summarised as follows.
(1) The court must consider whether the case of the respondent to the application has a realistic as opposed to fanciful prospect of success – in this context, a realistic claim is one that carries some degree of conviction and is more than “merely arguable”.
(2) The court must not conduct a “mini-trial” and should avoid being drawn into an attempt to resolve conflicts of fact which are normally resolved by the trial process.
(3) If the application gives rise to a short point of law or construction then, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should “grasp the nettle and decide it”.
See Easy Air Limited v Opal Telecom Limited [2009] EWHC 339 (Ch) at [15]: Arcadia Group Brands Ltd & Ors v Visa Inc [2014] EWHC 3561 at [19]; Tesco Stores Ltd v Mastercard Incorporated [2015] EWHC 1145 (Ch) at [9]-[10]:
  1. In the Tesco case Asplin J stated that in reaching its conclusion, the Court must take into account not only the evidence actually placed before it on the application for summary judgment, but the evidence that can reasonably be expected to be available at trial, she referred to Royal Brompton Hospital NHS Trust v. Hammond (No. 5) [2001] EWCA Civ 550 at [19].

THE MASTER’S DECISION: GOOD EVIDENCE FROM THE DEFENDANT NO ADEQUATE RESPONSE FROM THE CLAIMANT

The Master granted the Third Defendant’s application.

    1. I am bound to say that my initial reaction to the Third Defendant’s application was sceptical. I perceived considerable merit in McLeish’s submission that the summary judgment application was premature, in circumstances where the Claimant’s expert evidence was yet to be served. However, on reflection, my initial reaction does not do justice to Miss Toogood’s submissions. It is necessary to first isolate the question which the trial judge will have to resolve in relation to Dr Tanna’s breach of duty.
    2. Dr Tanna does not stand accused of failing to include CES as part of his working diagnosis. It is beyond doubt common ground that he actually suspected CES, as is clearly stated in his note of the telephone consultation with Mr Hewes. It is also important to note that the basis of his suspicion, as confirmed by the transcript, was the reported numbness in Mr Hewes’ leg and genital area.
    3. In order to establish that Dr Tanna’s actions amounted to a breach of duty Mr Hewes would have to prove that in referring him to the Accident and Emergency Department at Watford General Hospital Dr Tanna failed to act in accordance with a responsible body of general practitioners. Or to put the question the other way around, that no responsible body of general practitioners would have referred Mr Hewes to the Accident and Emergency Department of Watford General Hospital.
    4. At paragraph 5.15 of his expert report Dr Russell identifies four possible courses of action that Dr Tanna could have taken:
“He could have arranged to see the Claimant in an urgent face to face consultation, and taken a more detailed history and examination, and then arrange for the Claimant to be assessed urgently within secondary care by either contacting the accident and emergency department or appropriate secondary care specialist (be that a neurosurgeon, spinal specialist or orthopaedic surgeon).
He could have told the Claimant to attend the nearest accident and emergency department with MRI scanning facilities urgently, and contact that department himself, giving the Claimant’s details and advising them that on the basis of his telephone conversation he might be presenting with possible cauda equina syndrome.
He could have told the Claimant to attend the nearest accident and emergency department with MRI scanning facilities urgently, and contact that department himself, giving the Claimant’s details and advising them that on the basis of his telephone conversation he might be presenting with possible cauda equina syndrome. He could then have arranged the ambulance transport himself.
He could have told the Claimant to attend the nearest accident and emergency department with MRI scanning facilities with no further action taken.”
In his opinion any of the above actions would be in keeping with some responsible bodies of competent general practitioners. I would also note contrary to Mr McLeish’s submission that Dr Russell’s second course of action is that which the Claimant contends should have occurred. Dr Russell is saying that there is a range of responsible opinion on this issue, and in my judgment, he has given sound reasons (summarised at paragraph 30 above) to support that opinion.
    1. In my judgment Dr Tanna has adduced logical and credible evidence from an appropriately qualified expert and this evidence is sufficient to raise the evidential burden requiring the Claimant to prove some real prospect of success or some other reason for a trial. This approach is confirmed by the note in the White Book at 24.2.5:
“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. The language of r.24.2 (“no real prospect … no other reason …”) indicates that, in determining the question, the court must apply a negative test. The respondent’s case must carry some degree of conviction: the court is not required to accept without analysis everything said by a party in his statements before the court (ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472[2003] CP Rep 51 at [10]). In evaluating the prospects of success of a claim or defence judges are not required to abandon their critical faculties (Calland v Financial Conduct Authority [2015] EWCA Civ 192 at [29]).”
    1. It is therefore necessary to examine the material and arguments deployed by Mr McLeish with a view to determining whether Mr Hewes’ prospects of success against the Third Defendant at trial are realistic as opposed to fanciful. Whatever my decision on this issue the case will proceed against the Ambulance Trust and the Health Trust.
    2. Firstly, Mr McLeish pointed to the fact that the Claimant’s expert evidence has not yet been served. I am asked to infer that this evidence, when served, will support the contention that that no responsible body of general practitioners would have referred Mr Hewes to the Accident and Emergency Department of Watford General Hospital. I readily accept that if there is a real as opposed to fanciful possibility the Claimant’s expert evidence would support such a contention then the Claimant has satisfied the evidential burden. It is no part of my function to make a ruling on the relative merits of the respective expert’s positions on an application for summary judgment, to do so would be to ignore the established case law warning against the conducting of mini trials. That does not mean that the mere assertion that a supportive expert’s report will be served will suffice.
    3. While the Claimant has not yet served his final expert’s report he has had ample time to obtain his expert’s view on the central question in this case. Dr Tanna’s Defence served on 18 July 2018 made it very clear that he was asserting his actions were in accordance with a responsible body of medical opinion. In these circumstances I am bound to say that I find Dr Swale’s letter of 24th April 2018 far from satisfactory, as it entirely fails to identify and address this central issue in the case. It has the hall mark of being drafted by the Claimant’s solicitor, given its striking similarity to the letter from Mr Thorpe, the Claimant’s expert spinal surgeon. If Dr Swale’s evidence is to the effect that no responsible GP would have referred Mr Hewes to the Accident and Emergency Department of Watford Hospital it would have been very easy for him to say so and to give brief reasons for expressing that view. If Dr Swale was unable to address the issue in the time available, the Claimant could have sought an adjournment of the summary judgment application. As I have already observed no such application has been made. This is a striking omission, and in the circumstances, I cannot simply accept that the Claimant’s “supportive” expert evidence when served will raise a realistic Bolitho issue.
    4. I must therefore consider the remaining matters put forward by McLeish 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.
    5. The first matter was the First Defendant’s “policy for admissions” document. The first point to note about this document is that it contemplates admission to the Department of Orthopaedics via Out Patients or following direct referral from their GP. The aim of the policy is clearly set out:
“1. To provide a safe environment for patients whose neurological condition has the potential to deteriorate between admission and the delivery of appropriate surgical care (with particular regard to cases of acute cauda equina syndrome).
2. To ensure that, when patents are admitted, they are investigated expeditiously, their pain requirement are managed optimally) including early surgery when necessary and where possible they are mobilised and discharged from hospital without unnecessary delays.
3. To ensure an appropriate degree of record keeping, communication and delegation of responsibility between junior and senior staff.”
    1. I can find nothing in this policy which could realistically be deployed to undermine Dr Russell’s opinion. To the extent that the document contemplates direct admission to the Orthopaedic Department in some circumstances, it is entirely consistent with Dr Russell’s opinion.
    2. The Second matter is Dr Russell’s own opinion that CES is a surgical emergency requiring “specialist” assessment and that it would be a reasonable course of action open to a GP to telephone the hospital and advise them a CES patient will be attending. This must be read in the light of Dr Russell’s reasons for approving the course taken by Dr Tana. As I have pointed out Dr Russell’s evidence is that there were a range of responsible courses open to Dr Tanna.
    3. The third matter is reliance on the facts in the case of Oakes v Neininger and Others [2008] EWHC 548 (QB) where a GP made a direct referral to a specialist orthopaedic senior house officer. I do not think it is helpful to rely on the facts of other cases. The GP in question was not a defendant and the court was not considering that GP’s conduct. The relevant part of the judgment is contained in the first four paragraphs:
“1. Stephen Oakes, the Claimant, and his wife, Elizabeth, moved house in April 2001 to The Birches, Rigby Lane, Bradshaw, Bolton. He had suffered from back pain for some years as well as an unrelated urinary problem. Following a holiday in Italy, with increasing back pain, he visited his former GP, Dr Neininger (the First Defendant) on 14 July 2001 at about 10.30 to 11 a.m., who considered that he was still suffering from back pain or strain and prescribed anti-inflammatory and pain killer drugs.
2. Following a weekend of further pain, Mr Oakes had a very disturbed night on the 15th July. He got out of bed at about 2 am, and had difficulty in urinating (but did so). Later, Mrs Oakes telephoned the GP out of hours call out service and explained the problem but, being unable to secure a GP to come out, the first ambulance crew was called (“the 1st Call-Out”); they arrived at 4.46 a.m. The crew believed that sciatica could well have been the problem and advised Mr Oakes that calling a GP would be the best course for pain relief purposes. The crew facilitated a GP to visit.
3. Dr Brown (the Fourth Defendant) was the GP who arrived at 6.32 a.m. to visit Mr Oakes. He also considered that there was a sciatica problem and he provided painkiller and tranquiliser drugs. A second ambulance crew was called out (“the 2nd Call-Out”) and arrived at 9.30 a.m. The crew did not recommend that Mr Oakes go to hospital.
4. Mr Oakes fell asleep at about 11.30, doubtless exhausted and with the various drugs making him drowsy. At some stage, he became incontinent between about 11.30 and 2.30. He had a hot bath but was not able to urinate until he later lost bladder control as he made his way downstairs. He lay down on the floor downstairs. By about 4.30 p.m. he started to feel comfortable and felt no pain. Mrs Oakes had earlier gone out to register him at a local medical practice and arranged a home visit by a Dr Benjamin. She arrived at about 6.30 p.m. and, following an examination, formed the view that Mr Oakes had developed neurological symptoms which required urgent specialist attention. She referred him to a specialist (orthopaedic) Senior House Officer at Bolton Hospital who saw him at 9.25 p.m. that evening. He formed the view that Mr Oakes was suffering from “Cauda Equina Syndrome” (“CES”) and recommended an immediate transfer to the nearby Hope Hospital which had a specialist neurosurgical unit.”
    1. On any view this is a wholly unrealistic comparison. By 6.30 am Mr Oakes’ neurological symptoms were much further advanced, having progressed through incontinence to loss of bladder control and the GP actually conducted a physical examination before making a referral.
    2. The fourth matter is the open source literature referred to by Ms Wedgwood at paragraph 26 of her witness statement. I have carefully considered all of this material particularly the NICE Clinical knowledge survey. I can find no material which would contraindicate a referral to A & E in a case of suspected cauda equina syndrome and which could be used as a basis to attack Dr Russell’s opinion.
    3. The last matter was the existence of supportive evidence from an orthopaedic surgeon. I have already referred briefly to Mr Thorpe’s letter dated 25 April. This letter suffers from the same shortcomings as Dr Swale’s. It does not begin to set out a reasoned criticism of Dr Russell’s opinion that Dr Tanna acted in accordance with a responsible body of medical opinion.
    4. Lastly, there was some dispute between the parties as to whether I could take into account the fact that an A & E department is an appropriate place to refer an emergency, this was prompted by the comment at paragraph 12 of Mis Toogood’s skeleton argument:
“12. The purpose of an Emergency Department is to admit emergencies. There is no realistic prospect of demonstrating that it was unreasonable for the Claimant to be advised to attend the Emergency Department and that it was mandatory for him to bypass the Emergency Department.”
Mr McLeish did not really take issue with the principle that an A & E department was an appropriate place to refer an emergency. In my view he was right to do so and the statement is consistent with the literature referred to paragraph 60 above; it is just part of the background to this case.
  1. 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.
  2. In the circumstances I have concluded, not without some initial hesitation, that the Third Defendant has satisfied me that the Claimant has no reasonable prospect of success, the Third Defendant having adduced credible evidence that he acted in accordance with a responsible body of medical opinion and the Claimant having failed to persuade me that he has a realistic as opposed to fanciful chance of proving that he did not at trial.
  3. I am not satisfied there is any other compelling reason this issue should go to trial, indeed without this issue the trial judge will be able to focus on the actions of Ambulance Trust and Health Trust without the unnecessary distraction of the allegations against Dr Tanna. This will have the added benefit of streamlining the trial and saving costs.
  4. That is sufficient to dispose of the application for summary judgment and it is not strictly necessary for me to consider the parties submissions on factual causation. However, if this matter were to go further, it is right that I briefly state my conclusion on this issue.
  5. Miss Toogood’s submissions had a great deal of force. Paragraph 12 of the witness statement of Mr Langdon, who was the on call orthopaedic consultant at Watford General Hospital on 12 March 2012, states clearly that he would have required any GP to refer the patient to Accident and Emergency in circumstances where there had been no physical examination of the patient. However, it would seem that he was not on duty at the time it is alleged the telephone call should have been made and was only available on the ward from about 09.00.
  6. Dr Kirby, who was an FY1 doctor, was the on call doctor who was on duty on the morning it was alleged the telephone call should have been made. Her witness statement is silent both as to her actual hours of work and as to what she would have done if such a telephone had been made.
  7. In the circumstances, given the admissions policy document to which I have previously referred, giving rise to the possibility of direct admission to the Orthopaedic department, there is a potential issue of fact which could be resolved in the Claimant’s favour. I think it unlikely it would be resolved in the Claimant’s favour given Mr Langdon’s evidence, however I am unable to say there is no realistic chance of success on this issue. In the circumstances I would not have granted summary judgment on the issue of factual causation.”