EVIDENCE IN A CLINICAL NEGLIGENCE CASE: MISSING WITNESSES AND ERRANT EXPERTS: LIABILITY SHOULD HAVE BEEN ADMITTED EARLIER: ATTEMPT TO BACKTRACK FROM JOINT REPORT NOT SUCCESSFUL

The case of Palmer v Portsmouth Hospitals NHS Trust [2017] EWHC 2460 (QB) is one where the defendant was, ultimately, successful on the issue of causation. However the judge had some interesting observations as to the expert evidence called by both parties.

THE CASE

The claimant brought an action for damages following injuries she suffered at birth. Her case was that the midwife should have called for medical evidence earlier than she did. Liability and causation were denied.  However breach of duty was admitted part way through the trial.

THE LATE CONCESSION OF BREACH OF DUTY

The judge noted that there was an admission of breach of duty made on the second day of trial.

1. “The following morning on the second day of the trial on 27 June 2017, Counsel on behalf of the Defendant, Katie Gollop QC, formally conceded that the time Kim Wadey was transferred to the delivery room was the time when the midwife should have asked for the doctor to be called, and conceded that the Defendant was thereby making an admission of breach of duty. Miss Sommerville, the Defendant’s midwifery expert confirmed her agreement with that concession, stating that the midwife should have asked for medical assistance as she passed the midwives desk on her way from the labour room to the delivery room. Professor Bennett withdrew in evidence his outlying proposition that even at 20:48 there was no need to call medical assistance, and said that having heard the evidence he accepted that it was correct that a doctor should have been called when Kim Wadey was moved.”

THE JUDGE’S COMMENTS ON THE DEFENDANT’S EXPERTS

1. I found both the Midwifery experts to be of assistance to the court and have used the evidence of both of them in reaching my conclusion in this Judgment. My only reservation is that the admission of breach of duty confirmed by Ms. Sommerville in evidence in chief after the Defendant’s counsel had formally admitted a breach, should have been admitted earlier, before it was forced by concessions in cross examination of Midwife Piper, given the number and nature of the decelerations which the notes and the CTG revealed.
2. The latter comment applies equally to the obstetric evidence given by Professor Bennett. His evidence as to how the CTG operated was valuable and conceded by Dr. Thomas, but in many other respects, Professor Bennett’s evidence was unhelpful. His contention that it was reasonable not to call for medical assistance even by 20:48 was an outlying proposition and on the basis of the evidence given and indeed recorded, very difficult if not impossible to sustain. His report contained a number of errors which were all significant, and all in favour of the Defendant. He omitted to refer in the first part of his report to the clear two and a half minutes of the first CTG trace. He accepted that this was a significant omission as the first trace showed the decelerations. In spite of the fact that he had appreciated the night before he gave his evidence that this omission had been made, he did not correct it in his evidence in chief. When he did refer to the decelerations later in his report, he did not do so accurately. Thus in referring to a deeper deceleration at 20:44, he said it descended to 85 bpm and took a longer time to recover to 110 bpm. In fact the deceleration was to 75 bpm and not 85 bpm. When referring to the CTG after it had been reattached in the delivery room, Professor Bennett stated that the foetal heart rate was around 80 – 90 bpm whereas in fact it was 70 – 80 bpm. He accepted that his figure was wrong and that he was not sure why he had done that.
3. Professor Bennett also failed to make reference to the entry relating to 20:40 when Midwife Piper’s note referred to the word “variable”. Professor Bennett accepted that the interpretation of this word was relevant as to what had been heard at 20:40 and what significance that had. He accepted that it was a material fact, which he had omitted but should have set out. He stated it was not done to deceive.
4. Professor Bennett also referred to a report by the Audit Committee of the Royal College of Obstetricians and Gynaecologists (RCOG) as if it were from RCOG itself, which it was not.
5. Jane McNeill QC, counsel for the Claimant, did not suggest that Professor Bennett was intending to deceive the court but submitted that his omission had the effect of his report crossing the boundary from objective comment to advocacy. For my part, I concluded that the omissions were careless, and significantly reduced the report’s reliability.
6. By contrast, Dr. Gareth Thomas’s report and evidence was expressed in a fair accurate and reasonable manner and in his evidence he showed a willingness to concede points against him in an open fashion. Where the evidence of Professor Bennett and Dr. Thomas differs, I prefer that of Dr Thomas.

THE MISSING WITNESS

One issue was whether a registrar was available. The defendant made, what was described as “a somewhat purist submission”.

1. In its defence, the Defendant Trust pleaded that the second registrar was called (Paragraphs 8 and 11.11 B/10, 13). The Defendant does not plead that the second on call registrar was unavailable. No documents in relation to the gynaecological wards upon which he might have been working have been disclosed, nor anything else to show where he was or what he was doing that evening, i.e. whether he was available or unavailable. Having discovered for itself for the first time during the trial the identity of the second on call registrar, the Defendant trust asserted that there was no property in witnesses and as the burden of proof remained upon the Claimant it was the claimant’s task to discover from the documents who the registrar was, make enquiries and call him as a witness. Given that it did not discover for itself until the trial the identity of the second on call registrar from its own documents, this is a somewhat purist submission. The Defendant itself made no attempt to contact Dr. Perkins being unaware until Ms Gollop’s announcement in court of his identity.

BACKTRACKING FROM THE JOINT REPORT

Another issue arose when an expert (instructed on behalf of the claimant) took a different view to that set out in the joint report.

1. Dr. Thomas expressed the view that the mean times set out in the articles produced by Professor Bennett were not particularly helpful when one was considering what would actually happen in the given set of circumstances. He conceded, as he had in the joint statement, that the mean time may be relevant to determining whether there had been Bolam negligence, and accepted that, in that context it would have been reasonable care for a registrar to deliver within fifteen minutes.

2. When asked for clarification of this answer by the Court, Dr. Thomas changed his mind and said that it would have been Bolam negligent to have taken longer than six minutes.

3. I prefer the view that he expressed in the joint statement namely that if Bolam negligence were being considered, failure to deliver within six minutes would not necessarily be negligent when mean times were taken into account.