PROVING THINGS 172: SPECULATION BY THE DEFENDANT IS NOT EVIDENCE: A CLINICAL NEGLIGENCE CASE

The judgment of Mr Justice Turner in Morrison v Liverpool Women’s NHS Foundation Trust [2020] EWHC 91 (QB) is another illustration of a party asserting something but having no evidence to support it.  This time it was a defendant whose case rested, partially, on assertions, but which neglected to call the evidence to prove them.

“In the event, the defendant called no evidence to support the suggestion that there were, in fact, any significantly competing priorities

THE CASE

The judge was considering an appeal against a decision in favour of a claimant in a clinical negligence case.  The claimant was injured whilst giving birth to a child.  One of the grounds of appeal was that the trial judge failed to take into account the “balancing factor” that a doctor on the wards would have to take into account. The defendant’s difficulty was that they called no evidence to show that the hospital was busy at the time in question.

THE APPEAL JUDGMENT ON THIS ISSUE

    1. Secondly, it is contended that the Recorder fell into error by criticising Mr Irons’ reliance upon the balancing act involved in having to accord appropriate priority to other demands likely to occupy the time of clinicians in this busy hospital. It is alleged that he thereby applied a standard of care which wrongly excluded from consideration issues of what was practicable and which led, in effect, to an unfairly favourable adjudication upon the claimant’s position in a vacuum of context.
    2. If this had indeed been the approach of the Recorder, I would have had no hesitation in concluding that it was indeed flawed. However, taken as a whole, the judgment did not seek to impose such a test. At paragraph 113, the Recorder observed: “…Mr Waterstone approached the matter from an objective, practical perspective…” [Emphasis added].
    3. He went on to conclude that: “…on occasion, Mr Irons when being asked questions moved from the specifics of this set of circumstances to general observations about the difficulties in running a labour ward, midwifery unit and delivery suite under the NHS.”
    4. It would have been helpful if the Recorder had been more explicit in defining the distinction which he drew between the approach of the experts and the reasons behind his preference of Mr Waterstone’s evidence. However, it remains possible to infer with the necessary degree of confidence that he had concluded that Mr Waterstone had taken into account the practicalities relating to the claimant’s case bearing in mind the actual evidence as to the other priorities facing those working on the ward that night whereas Mr Irons, in contrast, had placed too great an emphasis on general assumptions about what competing demands might commonly arise but which were divorced from the evidence of what was actually happening at the hospital over the relevant period.
    5. Of course, in the clinical context a balance has to be struck between the needs of any given patient and any other competing professional demands placed upon the clinicians involved. Sometimes, the seriousness and urgency of a patient’s presentation and the absence of any conflicting factors will mandate a swift and decisive response. On other occasions, it is equally obvious that the needs of the patient must be deprioritised to allow the clinicians to attend other demands on their time of as a matter of priority. This is reflected in the defendant’s Emergency Caesarean Section Guideline which recognises that the degree of promptness with which an emergency caesarean ought to be carried out on any given patient must take into account circumstances in which other pregnancies might be thereby be exposed to undue risk.
    6. There may be cases in which the risk to the patient is sufficiently low as to justify a postponement of treatment simply to allow clinicians to deal with the inevitable day to day running of a labour ward. However, where the risk is significant and increasing a closer consideration of the competing considerations will be called for.
    7. In this case, the records revealed no competing emergency coinciding with the claimant’s review at 4:10 am. The first emergency of the day resulted in a theatre being occupied from 5:53 am. This was the event which it was agreed justified the decision not to take immediate action following the review of the claimant’s condition of 5:35 am. In his report of 18 November 2018, Mr Irons had commented that:
“If the court accepts the registrar was busy as the records suggest and certainly was in theatre at times, I assume performing other deliveries then is entirely appropriate and reasonable for the registrar to prioritise the workload…”
    1. However, the records contradicted the suggestion that there were any such deliveries and Mr Irons was driven to speculation under cross-examination on what competing priorities there may have been. He was obliged to retreat into suggesting:
“The doc (sic.) was at that stage, if they had nothing else to do whatever, if they’re sitting – trust me it doesn’t happen very often, playing Scrabble or drinking coffee, and there was no other woman in labour, and nothing else going on. I think they should have got on with it.”
    1. In the event, the defendant called no evidence to support the suggestion that there were, in fact, any significantly competing priorities. Dr Saleemi, who was the Senior Registrar, provided a witness statement dated 22 October 2018 in which she made no reference to any such factors. Other members of the on call team that night including the senior House Officer, Dr Clarke, and the Specialist registrar, Dr Harris, did not provide witness statements or give evidence at trial.
    2. In these circumstances, the Recorder was entitled to conclude that the edifice of Mr Irons’ analysis had been significantly undermined by the shakiness of the foundations upon which it had been erected. His assessment that Mr Irons had over-stated the importance of unspecified and unproved competing factors was open to him on the evidence as a justification for preferring the approach of Mr Waterstone and does not validate the defendant’s criticism that he applied the wrong legal test.
    3. The Recorder made the following undisputed findings of primary fact at paragraph 120 of his judgment:
“.. the claimant was in the latent phase of labour and suffering with contractions from at least 2:32 am and these were increasing in intensity and by 4:10 am the defendant was aware that the frequency of the contractions has increased, the claimant was more bothered by them and the claimant’s own description was being in severe pain.”
    1. And at paragraph 121:
“She was in any event having to undergo a CS come what may.”
  1. Against this background, the Recorder was fully entitled to find that the failure to act at 4:10 am amounted to a breach of duty. As Mr Irons on behalf of the defendant had been forced to concede, in the absence of competing priorities (of which it transpired there was no evidence): “they should have got on with it”.