AN “EMBARRASSING” EXPERT WHO USED AN EXPLETIVE WHILST GIVING EVIDENCE: GUESS WHERE THIS CASE IS GOING?

The judgment of Mr Justice Martin Spencer in Arksey v Cambridge University Hospitals NHS Foundation Trust [2019] EWHC 1276 (QB) is interesting on the subject of causation and medical negligence.  However the claimant’s problems came largely  from reliance on an expert who was the focus of criticism from the judge. The case raises some issues in relation to the duty of the lawyer to ensure that the expert report is (at the very least) compliant with the rules prior to being served and relied upon.

“… I do not altogether exonerate the lawyers who have represented the claimant because they allowed Mr Sandeman to go into the witness box despite these clear and obvious deficiencies in Mr Sandeman’s written evidence, and this was something which should have been addressed by the lawyers long before the trial.”

THE CASE

The claimant brought a medical negligence action in relation to the defendant’s failure to admit her to hospital after she had suffered from a cerebral aneurysm.  The defendant had admitted negligence to a degree, however it was denied that the negligence made any causative difference to the outcome.

ENTER THE CLAIMANT’S EXPERT…

The claimant’s case on causation rested on expert evidence.  The judge found that this evidence was subject to some shortcomings.

1. The particulars of claim were based upon a medical report by the claimant’s expert consultant neurosurgeon, Mr David Sandeman, who had reported on 13 April 2016 and it was this report which proffered the opinion that had Mrs Arksey’s condition been managed according to the protocol, she would have been less likely to have suffered the catastrophic haemorrhage that she did on 4 November 2012, but he acknowledges it is still possible she could have had the haemorrhage when she did. He says re-haemorrhage whilst waiting for coiling in hospital is uncommon, comprising 2-3% of neurosurgical cases and, ‘on the balance of probabilities, therefore, she would not have had a re-bleed before the aneurysm was coiled’. He expressed the opinion that in his view it would have been highly unlikely that she would have had the second haemorrhage if the first had been diagnosed and she was still being managed in hospital. Mr Sandeman referred to the literature suggesting that an initial misdiagnosis is associated with a fourfold increase in the chances of poorer outcome, referring to study by Kowalski and others from 2004.

2. It has to be said that it is surprising to find disclosed as part of the liability evidence a report on liability from an expert which pre-dates the exchange of pleadings to. I say that because, in general, an expert would not submit a final report until certain procedures have been followed through, including, not least, exchange of witness statements, and no reasonable expert reporting for a claimant would want to finalise his report until he had had an opportunity to see any witness statements submitted on the part of the defendant.

3. The importance of that in this case is obvious. Significant and highly material information was contained in the statements of Dr Antoun and Mr Santarius, which would have informed Mr Sandeman’s report on causation and the consequence of Mr Sandeman’s report not being revised and being served in its original form is that those statements were not referred to at all and the contents of them were not taken into account.

4. The report of Mr Sandeman made no allegations in relation to the treatment of Mrs Arksey after the coiling procedure and, in particular, did not suggest that the hospital had been in breach of duty in delaying the insertion of the VP shunt.

5. The claimant has disclosed an addendum medical report from Mr Sandeman dated 4 June 2017 in which he states that, in response to a neuroradiology report addressing breach of duty from Dr Andrew Molyneux dated May 2017, he had been asked to review the notes again to consider the treatment of hydrocephalus in Mrs Arksey’s case and whether there was a delay in instigating treatment for this, and what impact that delay might have had on her eventual outcome. This report then considered the treatment and concluded that the deterioration in Mrs Arksey’s mobility had been due to the development of hydrocephalus and suggested that there had been a negligent delay in the treatment of the hydrocephalus by the insertion of the VP shunt. As a result, amended particulars of claim were produced enlarging the allegations of breach of duty to include delay in treating the claimant’s hydrocephalus between November 2012 and May 2014, it being alleged that this resulted her suffering a longstanding, chronic hydrocephalus causing increased pressure and secondary brain damage. It was pleaded that the delay was a material contributing factor to her pain and suffering during the periods of delay, and her overall ongoing disability.

6. In its amended defence, the defendant has addressed the additional allegations and it was pleaded that it was not mandatory for the defendant to have offered surgery for the insertion of a VP shunt prior to November 2013. However, the defendant admitted that, having made the decision in November 2013, the procedure should have been undertaken by the end of January 2014, and that there was, therefore, delay between end of January 2014 and 13 May 2014, when the shunt was in fact inserted. This amended defence was served on 1 December 2017 and Mr Trivedi provided his statement, to which I have already referred, in July 2018, to deal with the allegations of negligence effectively aimed at him or his team alleging a wider or longer delay than that which had been admitted by the defendant.

7. Clearly, Mr Trivedi’s statement and the information contained therein setting out his reasoning for his treatment was highly important information and evidence for the experts to consider. However, and astonishingly, again Mr Sandeman’s addendum report was served as his evidence on liability in relation to the additional allegations of breach of duty in its original form and without any consideration of the evidence of Mr Trivedi. In particular, had Mr Trivedi’s statement been taken into account, Mr Sandeman would have seen the reference to the lumbar puncture on 20 November 2012, which formed an important part in informing Mr Trivedi’s management decisions.

8. The lumbar puncture was a procedure which Mr Sandeman had missed altogether in both of his reports. In his evidence he explained this to me on the basis that he had not been given a full set of the medical records. However, this did not wash. Mr Sandeman met his opposite number, Mr Battersby, for the purpose of a joint expert report in December 2018, by which time Mr Sandeman had seen Mr Battersby’s reports of May 2017 and September 2018. Those reports not only referred appropriately to the witness statements of the relevant witnesses, which Mr Sandeman’s reports did not, but also set out the full medical history, including reference to the lumbar puncture of 20 November 2012.

9. It must, therefore, have been obvious to Mr Sandeman well before December 2018 that Mr Battersby had access to medical records which he, Mr Sandeman, said he had not had access to and which, therefore, meant that he had reported on a false, or at least incomplete basis. However, again, yet more astonishingly, Mr Sandeman appears not to have drawn this to the attention of his instructing solicitor and he told me that it was only in the week before trial, when he had access to the trial bundle which contained the full medical records, that he had access for the first time to the full medical records. He nevertheless went into the witness box and gave evidence affirming the accuracy and correctness of two medical reports which simply did not stand up to a moment’s scrutiny, given that they had been prepared on a false and wholly incomplete basis.

10. I regret to say that, in my judgment, Mr Sandeman’s evidence fell far below the standard to be expected of a reasonable, competent expert witness, both in relation to the preparation of his reports and in relation to his preparing to give evidence. I could see no excuse for this whatever.

11. I should say, though, that I do not altogether exonerate the lawyers who have represented the claimant because they allowed Mr Sandeman to go into the witness box despite these clear and obvious deficiencies in Mr Sandeman’s written evidence, and this was something which should have been addressed by the lawyers long before the trial.

12. In the end, the continual apologies from Mr Sandeman in the course of his evidence, as the magnitude of the deficiencies became apparent, were embarrassing.

13. Whilst I am considering Mr Sandeman’s evidence I can also indicate that his oral evidence was unimpressive. It was intemperate, at one stage he even used an expletive, and there was a failure on his part to address the questions that he was being asked: recognising the difficulties of some of the questions, not just from Ms Vickers for the defendant but also from the bench, he would stray into other areas and different areas so as to avoid answering the questions. I had no doubt, listening to Mr Sandeman’s evidence, that this was a deliberate ploy on his part to avoid answering the questions, rather than any kind of misunderstanding on his part as to what he was being asked, and the technique was adopted by him because of the difficulty he found himself in, in addressing the questions.

14. By contrast, I found Mr Battersby to be a wholly straightforward and reliable witness, who had prepared reports which fully complied with Part 35 of the Civil Procedure Rules and the Practice Direction to Part 35, which set out the full documentation to which he had had access, and which addressed the lay evidence, making appropriate concessions to those questions which were for the Court to decide. I had no difficulty in preferring Mr Battersby’s evidence to that of Mr Sandeman on every point of dispute between them.

THE RESULT: CLAIMANT FAILS TO PROVE CASE ON THE “BUT FOR TEST”

The judge held that this was not a material contribution test but the claimant had to prove causation on the basis of the “but for test”.

“The consequence is that there will be judgment for the claimant only for the admitted breach of duty in relation to the failure to carry out the VP shunt for a period from 31 January 2014 to 14 May 2014, a period of three and a half months, but otherwise the claim fails. In relation to the admitted breach of duty, the longer-term outcome has been no different, in my view, to what it would have been had the VP shunt been carried out when it should have been. The only effect in causation terms is that this has put back the recovery process, which otherwise would have started on 31 January, to 14 May 2014, and it will be for the parties either to settle, or for the Court to conclude on another occasion, how that delay translates in terms of damages.”