A “LACK OF OBJECTIVITY” IN AN EXPERT’S APPROACH: CLINICAL NEGLIGENCE AND CAUSATION CONSIDERED IN THE HIGH COURT

In Leach v North East Ambulance Service NHS Foundation Trust [2020] EWHC 2914 (QB) HHJ Freedman (sitting as a Deputy High Court Judge) made some telling observations about the lack of objectivity of the defendant’s expert.

THE CASE

The claimant  suffered a subarachnoid haemorrhage.  There was delay in an ambulance arriving. It was admitted that there was a 31 minute period of negligent delay. The claimant went on to suffer PTSD. The issue at trial related to causation.  Both sides called expert witnesses.

THE JUDGE’S OBSERVATION ON THE EXPERT EVIDENCE

The doctor considered the expert evidence called by both parties.
    1. Thus far, I have considered only the minor criticisms made by Mr Found, some of which were perhaps justified. What I do not accept, and what I reject out of hand, is that Dr Smith did not genuinely hold the views which he expressed. Mr Found suggested that he was an “advocate of the cause”: I saw no evidence whatsoever of that being the case. It was said that he failed to make appropriate concessions: to my mind, that was not so and I note, in particular, that he was prepared to accept that the view expressed by Dr Bowers was within a reasonable range of opinion. Generally, I consider that Dr Smith was a thoughtful, balanced, and careful expert witness who was doing his best to provide the court with his genuinely held opinion.
Dr Bowers
    1. I regret to say that the observations which I have just made about Dr Smith do not apply in equal measure to Dr Bowers. Dr Bowers is a Consultant psychiatrist. He also has extensive experience of diagnosing and treating PTSD.
    2. Before Dr Bowers gave evidence and before he was cross-examined by Mr Dean, there were aspects of his written report which caused me some concern. Those concerns became more significant when I heard and observed him being cross-examined. It is only necessary to give a couple of examples, by way of illustration. At page 180, in the joint report, Dr Bowers was at pains to point out that the claimant had (apparently) significantly minimised the extent of her pre-existing mental health problems. In fact, having heard Mr Dean cross-examine Dr Bowers about this, I am unpersuaded that she had under -reported her previous mental health difficulties. Be that as it may, what to my mind was unacceptable was the suggestion that the claimant was deliberately attempting to minimise her psychiatric history for the purposes of the litigation. There was no evidential basis for such a suggestion and it should not have been made. True it is, in his oral evidence, Dr Bowers essentially accepted that there was no evidence of the Claimant attempting to be devious or deceitful but, to my mind, without more, this should not have been floated, even as a possibility, in his written evidence. It has never been in doubt that the claimant has suffered very significant PTSD in consequence of the trauma she suffered on 18 September 2016; and that it was that ‘event’ which was solely responsible for her PTSD.
    3. Another illustration of Dr Bowers adopting a less than fair approach was at page 52 of his report where he notes that the claimant, in her witness statement, said that she “did everything right and everything … to get help and make sure I was safe” but in the same paragraph, Dr Bowers observes that the claimant’s telephone was not adequately charged, thereby preventing the emergency services from being able to contact her. The clear and obvious suggestion is that, in fact, the claimant did not do everything to help herself. Such a comment, in my view, is unfair: she is surely not to be criticised for not having charged up the battery on her mobile phone so that she may thereby be said to have somehow contributed to the mental illness which she went on to suffer.
    4. A third matter of concern arose in the course of the cross-examination of Dr Bowers about the incidence of PTSD. He made no reference to any literature in his report but whilst being cross-examined, he said this, initially:” the literature shows that up to 60% of patients who develop SAH go on to suffer PTSD”. That was a startling assertion which, if true, should have featured in his written report with reference to the supporting literature. On closer questioning, it emerged that, in fact, the range of patients who develop PTSD following SAH is somewhere between 20 percent and 60 percent. It seemed to me that the initial statistic provided by Dr Bowers was capable of being misleading. Moreover, he produced no literature to support any of this data.
    5. Generally, it seems to me that Mr Dean’s cross-examination of Dr Bowers to the effect that he was deliberately attempting to present a negative view of the claimant was justified. I do feel constrained to conclude that there was a lack of objectivity on the part of Dr Bowers and that there was an attempt, certainly at times, to present an assessment which was less than favourable to the Claimant. I should make it clear that I do not lightly come to this conclusion but it seems to me that it was irresistible in the face of the written and oral evidence given by Dr Bowers.
    6. The other feature of his evidence which was somewhat disturbing was the answer which he gave to me at the very end of his evidence to which I have already referred. Reading his report and, in particular, the joint statement, Dr Bowers gave the very clear impression that whilst the period of negligent delay was not a causative factor, the delay in the earlier period, cumulatively was a cause of the PTSD. What Dr Bowers said in answer to question 10 of the joint statement was this:
“Dr Bowers did not consider the negligent delay period to have caused any material contribution to the claimant’s PTSD. This opinion was based on his view that the claimant would have developed PTSD in any event prior to the negligent delay, that time is not a necessary factor for the onset of PTSD, that the presence of her mother during the delay period would have attenuated any distressing experiences she had and her overall experience was not pervasively distressing as there was a period of feeling calm and peaceful during the delay period.”
    1. It was to be expected that Dr Bowers would express a similar opinion in his oral evidence but, as noted above, he said, unequivocally, that his view was that she would have suffered PTSD in consequence of the SAH itself. Legitimately, the question can be asked that if that was his considered view, why was it not spelt out in his written evidence? I regret to say that the approach adopted by Dr Bowers in trying to paint a negative picture of the claimant as well as the radical change in his view as to when the PTSD was triggered undermines, to a significant degree, the confidence which the court can have in his conclusions.

THE RESULT

The judge’s assessment of the evidence led him to determine the issue of causation in favour of the claimant.
Discussion
    1. Although Mr Found accepted that he could not go behind the answer given by Dr Bowers at the conclusion of his evidence, nevertheless, he sought to persuade me that reliance could not be placed on the opinion expressed by Dr Smith. As well as relying upon the matters set out at [27-29] above, Mr Found also contended that there were two fallacies in the view expressed by Dr Smith. In the first instance, he says that there is no diagnostic criteria which places weight on duration of trauma. I agree that that is so but it does not follow that it can be said, even on the balance of probabilities, that a short period of trauma should be taken as the trigger for PTSD, in the context of a much longer period of trauma. In other words, just because a short period of trauma can result in PTSD, it does not mean that the whole period of trauma has not made a material contribution to the PTSD. Mr Found also submitted that there was incongruity between Dr Smith being able to say that the negligent period of delay undoubtedly made a contribution to the PTSD whereas he was not able to express a view on the ‘but for’ test. It does not seem to me that there is any inconsistency in the stance adopted by Dr Smith. It is often very difficult, particularly in the case of an indivisible injury to apply the ‘but for’ test but much less difficulty arises where the question which is posed is whether events have made a material contribution to an injury. That is why the Common Law has embraced the concept of material contribution in looking at causation where an indivisible injury has occurred.
    2. Although, in a sense, as I said at [20], the court is left with a binary decision, nevertheless, it is necessary to consider whether Dr Smith’s opinion is sustainable by reference to what occurred prior to the 31-minute period of negligent delay. Undoubtedly, what occurred prior to the negligent period of delay was traumatic and, in particular, the fact that the claimant felt that she was going to die; and that she was suffering intense physical pain. Nonetheless, it does not follow that it is possible to identify a specific cut-off point when it could be said that whatever happened thereafter, PTSD was going to evolve. To the contrary, it seems to me that to look at the matter in that way is to adopt an artificial approach. It is, to my mind, in the realms of speculation to attempt to identify a fixed time when the claimant had suffered sufficient trauma such that she was likely to go on to suffer PTSD. Accordingly, I think there is considerable force in the proposition advanced by Dr Smith to the effect that medical science is not capable of dissecting that 31-minute period from the rest of the period of delay, so as to enable the inference to be drawn that PTSD would have occurred irrespective of the 31-minute delay.
    3. Notwithstanding the observations which I have made about Dr Bowers’ expert evidence, consideration needs to be given as to whether the theory that the PTSD would have arisen as a direct result of the SAH alone is sustainable. As it seems to me, it is certainly possible that from the moment when the claimant suffered her SAH, she was destined to go on to develop PTSD but to come to such a conclusion, on the balance of probabilities, is a step too far. Put simply, medical science does not permit such a conclusion to be drawn.
    4. In support of the above proposition, it is not unhelpful to have regard to the judgment of Globe J in the case of Ceri Leigh v London Ambulance NHS Trust [2014] EWHC 286 (QB). In that case, the claimant dislocated her right kneecap whilst on a bus. An ambulance was called but it was some 50 minutes before it arrived. There was an admitted negligent delay of 17 minutes. The claimant went on to suffer PTSD. It was agreed that the PTSD was a consequence of the incident. It was the defendant’s case that irrespective of the period of negligent delay, the claimant would have developed PTSD. At [28] of his judgment, Globe J said this:
“…There was no injury that was caused on the bus. There were merely circumstances that arose which later led to the onset of the disorder of PTSD. There are innumerable variables in the circumstances that will give rise to the development of such a disorder and in the people who are likely to suffer it. It is impossible to predict on any scientific or mathematical basis the moment after which someone will go on to suffer it. Adopting the Bailey test, I am unable to find on the balance of probabilities that the PTSD would have occurred in any event before 19.33… I am satisfied that this is a case where medical science cannot establish the probability that ‘but for’ the negligent failure of the ambulance to arrive before 19.33, the PTSD would not have happened, but it has been established that the contribution of the negligent failure was more than negligible. It made a material contribution to the development of the claimant’s PTSD. The claimant therefore succeeds on the first issue.”
    1. Despite the obvious factual differences as outlined by Mr Found, it seems to me that the reasoning of Globe J is particular apposite in the context of this case. Indeed, and with respect, I adopt what the Judge said as to the impossibility of predicting on any scientific or mathematical basis (whether prospectively or retrospectively) when a person exposed to trauma is likely to go on to suffer PTSD.
    2. Having adopted that reasoning, it inexorably follows that I am wholly unpersuaded that it can be said, even on the balance of probabilities, that at the point of onset of the SAH, it was likely that the claimant would develop PTSD. Equally, it cannot be said, on a balance of probabilities, at what point during the 109 minutes when she waited for an ambulance to arrive that the PTSD was likely to develop. To the contrary, it is, to my mind, pure speculation. In a similar vein, it cannot be said that the 31 minutes of negligent delay was of no importance. Although duration of trauma may or may not be a relevant diagnostic factor, the reality is that the period of delay was approximately one third of the overall delay. It would be verging on the absurd, in my view, to suggest that that period of delay when the claimant was in acute distress, believing that the ambulance was not going to come, did not make a material contribution to the onset of her PTSD.
    3. It is submitted by Mr Found, however, that even if I were to find that the 31-minute period of negligent delay material contributed to the onset of the PTSD, nevertheless, I should undertake an apportionment exercise. I have already observed in the course of this judgment that I regard PTSD as an indivisible injury. It is far removed from, for example, industrial diseases such as noise induced deafness or asbestosis which are known to be dose related. That is simply not the case with PTSD. If I cannot say when the trigger for the PTSD occurred, it would not be logical to go on to conclude that, nevertheless, there can be an apportionment exercise. In any event, such would not be legitimate if my assessment is correct that this is an indivisible injury.
Conclusion
  1. In conclusion, I find that the period of the 31-minute delay made a material contribution to the claimant’s PTSD and that an apportionment exercise is not permissible in these circumstances. Accordingly, there will be judgment for the claimant in the sum of £40,000.