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…
THE DANGERS OF AN “ENTHUSIASTIC” EXPERT – CASTS DOUBTS ON THEIR RELIABILITY
Most clients are happy to find an expert witness who agrees with their case. Even better, it may be thought, is an eminent expert who feels very strongly about the case. However, as we have seen so often on this…
THE GESTMIN PRINCIPLES IN A CLINICAL NEGLIGENCE CASE: JUDGE DOUBTS WHETHER THEY CAN BE DIRECTLY APPLIED IN OTHER CONTEXTS
This blog has looked, many times, at the judicial assessment of evidence, particularly witness evidence. Often this is done by reference to the “Gestmin” criteria. In CXB -v-North West Anglia NHS Foundation Trust, [2019] EWHC 2053 (QB) HH Judge Gore…
PROVING THINGS 156: MEDICAL EXPERTS, CAUSATION, CLINICAL NEGLIGENCE, ABSENCE EVIDENCE
In ZZZ v Yeovil District Hospital NHS Foundation Trust [2019] EWHC 1642 (QB) Mr Justice Garnham found that there had been a breach of duty by the defendant hospital, but those breaches had no causal relevance. The case is interesting for…
A STRATEGY WHEN SETTLEMENT IS REACHED WITH SOME, BUT NOT ALL, DEFENDANTS
An earlier post dealt with the judgment in McDermott -v- Inhealth Limited (19/07/2018) in relation to costs liability when a claimant settled against some, but not all, defendants in a clinical negligence case. That judgment was sent to me by Thomas Riis-Bristow, Associate…
APPEALING FINDINGS OF FACT: THE WEIGHT OF EVIDENCE IS A CONTEXTUAL EVALUATION FOR THE JUDGE: MEDICAL RECORDS ARE NOT DEFINITIVE
We are looking, for the second time, at the Court of Appeal decision yesterday in Manzi -v- King’s College NHS Foundation Trust [2018] EWCA Civ 1882. That part of the judgment that deals with findings of fact at trial and appeals against…
CLINICAL NEGLIGENCE, ACCURATE EVIDENCE AND A REMARKABLE CHANGE OF ACCOUNT BY THE CLAIMANT’S WITNESS
The judgment in Britchford v Staffordshire And Stoke-On-Trent Partnership NHS Trust [2018] EWHC 2109 (QB) is another example of a clinical negligence claim that rested on the accuracy of medical evidence. A feature of the case is that the claimant did…
PROVING THINGS 111: CAUSATION IN CLINICAL NEGLIGENCE CASES WHERE THERE IS A FAILURE TO WARN: BURDEN OF PROOF REMAINS ON THE CLAIMANT
The judgment of the Court of Appeal in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307 deals with a number of matters. Here I want to look at the question of proving causation in a case where the…
PROVING THINGS 109: WHEN A DEFENDANT IS ABLE TO OBTAIN SUMMARY JUDGMENT IN A CLINICAL NEGLIGENCE CASE
NB THIS DECISION WAS OVERTURNED ON APPEAL SEE THE REPORT HERE In Hewes v West Hertfordshire Hospitals NHS Trust & Ors [2018] EWHC 1345 (QB) Master Cook allowed a defendant’s application for summary judgment. It is a classic case of a…
EXPERTS: THE JOINT REPORT AND THOSE TROUBLESOME “AGENDAS”
There are several passages in the judgment of Mrs Justice Yip in David John Saunders -v- Central Manchester University Hospitals NHS Foundation Trust [2018] EWHC 343 (QB) that highlight a common problem with joint reports. That is the problematic “agenda”. A …
FUNDAMENTAL DISHONESTY: INACCURATE STATEMENT OF MEDICAL TREATMENT WAS DISHONEST: NO “SUBSTANTIAL INJUSTICE”
One of the many complex issues that Mrs Justice Cockerill considered in Razumas v Ministry of Justice [2018] EWHC 215 (QB) today was the question of fundamental dishonesty. The claimant gave a misleading account of medical treatment. He was found to…
CLINICAL NEGLIGENCE AND WITNESS EVIDENCE: INFORMED CONSENT NOT GIVEN: HIGH COURT JUDGMENT TODAY
There are many posts on this blog about how, ultimately, many clinical negligence cases turn on the issue of what was said. Liability often depends on which account of a conversation the trial judge prefers. This can be seen in stark…
PROVING THINGS 80: PROVING A SUBROGATED CLAIM: HEALTH INSURANCE COSTS NOT RECOVERED IN FULL
It is not uncommon for an insurer to seek to add a claim for outlay to a claim. This is particularly the case in relation to health insurers who seek to recover outlay in a claim for damages for personal…
PROVING THINGS 77: AN UNATTRACTIVE ARGUMENT: WHEN A PARTY HAS CAUSED AN ABSENCE OF EVIDENCE IT CANNOT BENEFIT FROM IT
When a party has caused a gap in the evidence it is rarely open to that party to rely on the absence it has caused. This was made clear by Mr Justice Foskett in JMX v Norfolk and Norwich Hospitals NHS…
CLINICAL NEGLIGENCE: RECOVERABILITY OF PREMIUMS & PROPORTIONALITY: COURT OF APPEAL DECISION TODAY
In Peterborough & Stamford Hospitals NHS Trust v McMenemy & Ors [2017] EWCA Civ 1941 the Court of Appeal considered the position in relation to the payment of insurance premiums in clinical negligence cases. The Court decided that it is appropriate…
THE HIPPOCRATIC OATH AND LEGAL HYPOCRISY: WHAT WE CAN LEARN FROM DOCTORS?
Lawyers, particularly litigators, are infinitely wise. This is because we specialise in hindsight: “Why didn’t you do that?” ; “You should have done that”; “Why wasn’t that written down?” This is particularly acute in clinical negligence cases where one profession…
A CLINICAL NEGLIGENCE LAWYERS SURVIVAL GUIDE: MANCHESTER 5th DECEMBER 2017: “SCHADENFREUDE FOR CLINICAL NEGLIGENCE LAWYERS”
Along with Stephen Grime QC I am talking on the afternoon of the 5th December 2017 in Manchester. “A Clinical Negligence Lawyers Survival Guide” looks at avoiding substantive and procedure problems during the course of a clinical negligence action. Included…
CLINICAL NEGLIGENCE AND INSURANCE COSTS: POLICY OF £10,000 WAS BOTH REASONABLE AND PROPORTIONAL: HIGH COURT DECISION
In Mitchell v Gilling-Smith [2017] EWHC B18 (Costs) Master Leonard held that a £10,000 premium incurred in a clinical negligence case was reasonable and proportional. It also highlights the importance of a paying party bringing actual evidence to court if they…
A MATTER OF EVIDENCE AND A MATTER OF FACT: CLINICAL NEGLIGENCE ACTION WITH “AN OBVIOUS LACUNA IN THE DEFENDANT’S CASE”
Last year I wrote a series of posts about the seminal case of Whitehouse -v- Jordan. The aim was to point out that the essence of the decision was about findings of fact not legal principle. The House of Lords upheld…
EVIDENCE GIVEN WITH THE BENEFIT OF HINDSIGHT: MEDICAL NEGLIGENCE AND CAUSATION
In the judgment today in Diamond -v- Royal Devon & Exeter NHS Foundation Trust [2017] EWHC 1495 (QB) His Honour Judge Freedman (sitting as a High Court Judge) found that a totally honest witness was not correct in her assessment…