PROVING THINGS 244: WHERE THERE IS A “GENUINE DIFFERENCE OF OPINION” BETWEEN EXPERTS : CLAIMANT FAILS TO ESTABLISH LIABILITY IN A CLINICAL NEGLIGENCE CASE

Many of the cases on this blog that consider experts feature judicial criticism of those experts. Sometimes because of a failure to take into account the duties owed by those experts.  However litigation is more complicated than that. It is possible (and common) for opposing experts to come to court  both holding logical and defensible positions and fully cognisant of the duties owed to the court.  This can be seen in the case of PXE v University Hospitals Birmingham NHS Foundation Trust [2024] EWHC 2023 (KB) whre HHJ Sarah Richardson (sitting as a High Court Judge) found that a claimant had not established a case in negligence. The claimant did not fail because their expert misapplied the rules,  but because the defendant’s expert had experience more closely akin to the situation faced by the defendant trust at the time of the alleged negligence.

“Mr Tuffnell’s (and Dr Sparey’s) opposing approach to that of Mr Denbow amounts to a genuine difference of opinion. It has a logical basis and the conclusions reached are defensible when one looks at all of the evidence available to the court.”

THE CASE

The claimant brought an action for clinical negligence. The claimant suffered serious brain injury when he was born in 2008.  It was alleged that the defendant Trust failed to take appropriate steps to monitor his mother’s health during her pregnancy. In particular failed to classify the mother’s pregnancy as high risk due to her history of kidney scarring, to perform growth scans and to deliver him early so as to avoid issues.

THE ISSUES

The lay witnesses obviously faced the major difficulty of remembering what they did in 2008.  Similarly the experts had to look back at the standards that existed in 2008 in an area of practice where there had been significant developments.

BOTH EXPERTS WERE CREDIBLE

The key point about this case was that both experts were accepted as credible.

1. 1. I have carefully considered the evidence from Mr Denbow and Mr Tuffnell. Both were thoughtful and considered expert witnesses. They each have a wealth of experience and clearly approached their tasks from their respective clinical backgrounds, which do vary somewhat. Mr Denbow is and has always been a consultant in a large teaching hospital and very fairly acknowledged the greater depth and breadth of resources that were available to him as a result. Mr Tuffnell was a consultant in a large District General Hospital; he was clearly more familiar with the working conditions that Ms Hutchon was facing in 2008 than Mr Denbow, who expressed genuine surprise in the witness box about the information that Mr Tuffnell shared with him at the experts’ joint meeting about the lack of scanning and other resources (such as access to nephrology colleagues) in a District General Hospital in 2008.

1. 1. Mr Tuffnell gave evidence that whilst he did not have any first-hand knowledge of the availability of ultrasound resources in the West Midlands in 2008 the description in the 2009 paper by Jason Gardosi et al of “an acute shortage of ultrasound resources” and “a lack of trained ultrasound staff” did not sound surprising to him and that in 2008 there were fewer sonographers available than today. That, together with an expansion of regular 20-week fetal abnormality scans in about 2008 meant “there was less sonographer time to scan women who had a different risk threshold for growth.” The decision that Ms Hutchon took in 2008 must be looked at in the real world that she worked in at the time. That world was far closer to the one that Mr Tuffnell worked in in 2008 than Mr Denbow did. I have no doubt that the first option posited by Mr Denbow in his evidence (to assume that this was a case of reflux nephropathy with a risk of IUGR and to proceed down the route of fetal scans from 28 weeks) was a genuine opinion and, as Mr Tuffnell stated in his evidence, not unreasonable. However, it was a view borne out of a different clinical experience to that facing Ms Hutchon in 2008.

1. 1. Mr Tuffnell’s view that it was reasonable for Ms Hutchon to have reviewed the Claimant’s mother’s pregnancy as being suitable for the low risk (or standard prescription) pathway without holding face to face consultation was based on the clinical presentation of the Claimant’s mother; despite reporting kidney scarring she did not have any signs of renal impairment, had no proteinuria, no hypertension or urinary problems with infection and if she had been checked her renal function would have been normal. Those are all reasonable factors for Mr Tuffnell as an expert witness to take into account. There is nothing illogical or indefensible about this opinion unless it can be shown that Mr Tuffnell had omitted a materially relevant factor i.e. a known association in 2008 between a pregnant woman with reflux nephropathy but no renal impairment and IUGR.

1. 1. Mr Tuffnell was very clear that his views would have been different if the Claimant’s Mother had been experiencing renal impairment and explained the possible effect of renal impairment in the earlier stages of pregnancy on placental development. However, there was no evidence at all at the time that Ms Hutchon undertook her assessment that the Claimant’s Mother had any renal impairment.

1. The medical literature available in 2008 and which I have already reviewed did not paint a clear picture on the issue of whether reflux nephropathy absent impaired kidney function posed an elevated risk of IUGR. I have already commented in detail on the 2006 edition of the Handbook of Obstetric Medicine by Catherine Nelson-Piercy and the lack of details and clarity in the context of the statement that “there is a particular association between reflux nephropathy and severe IUGR”. The fact that this section, and Table 10.3, were interpreted differently by Mr Denbow and Mr Tuffnell is in my view not as a result of one of them obviously being correct in their interpretation of what the text says and the other not being, but rather in the lack of clarity in the textbook itself…

CONSEQUENTLY THE CLAIMANT COULD NOT SUCCEED

As a result the claimant’s action did not succeed.

1. For all the reasons that I have given Mr Tuffnell’s (and Dr Sparey’s) opposing approach to that of Mr Denbow amounts to a genuine difference of opinion. It has a logical basis and the conclusions reached are defensible when one looks at all of the evidence available to the court. It follows that the view taken by Ms Hutchon when reviewing the Claimant’s Mother’s case and agreeing that it was suitable to be managed on the low-risk pathway was reasonable and was one that it was open to a reasonably competent obstetrician working in a District General Hospital in 2008 to make. In all the circumstances, the Claimant must fail on establishing breach of duty and the claim must be dismissed.