PROVING THINGS 98: AN EASY AND OBVIOUS ROUTE TO REFUTE ALLEGATIONS OF NEGLIGENCE (WHICH WAS NOT DONE)
I am returning to the decision of Mr Justice Martin Spencer today in Lesforis v Tolias  EWHC 1225 (QB). This time in the context of proving, or refuting, allegations of negligence. There was a simple route by which the defendant could have established that clinical decisions were not negligent. The fact that such evidence was not obtained led the judge to prefer the evidence from the claimant’s expert.
The claimant brought an action for clinical negligence. It was alleged that the defendant was negligent in his treatment of the claimant who underwent spinal surgery. One of the allegations was that it was negligent for the defendant to arrange the administration of chemo-prophylaxix within 6 hours of an operation. She was left with incomplete paraplegia.
The judge had to determine which of the experts’ evidence on this point he preferred. The judgment points out that there was a simple factual route by which the defendant could have refuted the allegations of negligence.
“The resolution of this issue depends principally upon my assessment of the respective experts. In this regard, on this issue, I prefer the evidence of Mr Leach to that of Mr Cadoux-Hudson. I was impressed by Mr Leach’s approach to this question and in particular his concession that if someone were to present him with evidence that there is a body of surgeons who routinely give chemo-prophylaxis after spinal surgery within six hours, for example by reference to a protocol from a respected spinal unit such as that at King’s College Hospital, then he would be prepared to change his opinion. Indeed, this would have been an obvious and easy way for Mr Cadoux-Hudson to refute this allegation of negligence but he did not do so despite the fact that there are many spinal units across the country who must have protocols for the giving of chemo-prophylaxis after spinal surgery. I accept Mr Leach’s evidence that he is not aware of spinal surgeons in the UK who, in 2013, were giving chemo-prophylaxis as early as within six hours of surgery and in my judgment this is likely to be because there was no such body of surgeons.”
For these, and other, reasons, the defendant was found to be negligent.