In this article...

• Introduction
• Factual statement or expert opinion?
• Out of time
• “Sufficiently Serious”
• Narrowing the catergory

Introduction

In this month’s case update Julie Charlton reviews the “ten-minute rule” in obstetric delivery claims, factual statements and opinions from witnesses and a further tightening of the law on limitation.

Many cerebral palsy claims turn on the timing of the birth, with every minute being scrutinised and fiercely fought over by both parties. The so-called “ten-minute rule” is well established amongst medico-legal practitioners and this rule is considered in the case of Purver v Winchester and Eastleigh Healthcare NHS Trust [2007] All ER (D) 89 (Jan). Giving evidence on behalf of the Trust, Dr Lewis Rosenbloom explained the “ten-minute rule” stating that “an otherwise healthy term fetus can survive a period of around ten minutes of profound hypoxic stress [lack of oxygen] before brain damage begins”. For obvious reasons, this rule is based upon animal models rather than human clinical trials and does not pretend to be exact!

The Judge held that the obstetrician was negligent because he was not aware of this rule during the Claimant’s birth in 1997 and the delay had caused the Claimant’s brain damage and disabilities. He said a reasonably competent and well-informed obstetrician’s objective would be to deliver a child within 10 minutes. The Judge went on to qualify this by saying that there was no golden rule that all deliveries must be achieved within the 10 minute period; there may be situations where the objective simply cannot be achieved in practice.

Whilst the decision can be criticised by some, it is important that all obstetric staff are aware of the “ten-minute rule” as this case emphasises that ignorance of the rule may itself be considered to be negligent. As an interesting aside, the Judge was a deputy High Court Judge who has a successful practice at the Bar as a QC specialising in clinical negligence claims, mainly on behalf of the patient. The obstetrician was probably less familiar with medico-legal terminology than the Judge was but there was no suggestion he was unaware that the earlier delivery is achieved the better.

Factual statement or expert opinion?

It is well established that opinion evidence will usually only be accepted by the court when given by expert witnesses and that factual witnesses must stick to the facts. But what is fact and what is opinion?

The case of Kirkman v Euro Oxide Corporation (CMP Batteries Ltd.) [2006] EWCA Civ 1051 examined this issue and held that there may be situations where the opinion of a factual witness can be taken into account.

The Claimant was injured in an accident at work and underwent reconstructive surgery on his knee. He developed an infection and had an above knee amputation. The issue in this claim was whether the surgery had been necessitated by the accident or as a result of previous knee problems.

The Directions Order stated that each party could rely on one expert witness in surgery. The Claimant sought to rely on the factual evidence of a surgeon who had treated him for several years before the accident at work and expert evidence from a surgeon, in accordance with the Order. The first surgeon’s factual witness statement asserted that he “would not have advised surgery if it had not been for the accident”. The Court refused permission to rely on this evidence at trial, holding that it was an expert opinion rather than a factual statement and the Claimant appealed.

The Court of Appeal held that the surgeon’s statement was not an “expert” opinion and that he was only expressing what he would have done as a matter of fact. The accuracy of his evidence was not in issue and it was allowed as evidence of fact. So factual medical witnesses can give opinion evidence of what they would (or would not) have done in a hypothetical situation, or opinions they remember forming at the time upon facts directly perceived by them, a point worth considering when the outcome of a particular course of treatment depends upon the involvement of third parties. However, this can be a grey area and a statement that strays too far into opinion evidence still risks being excluded.

Out of time

Claimants in personal injury claims have 3 years from the date of injury or from the date of knowledge to bring a claim. Many Claimants seek to rely on this “date of knowledge” as it is invariably a later date. Broadly speaking, the clock starts running from the date on which the Claimant first had knowledge that the injury was significant and attributable to a negligent act (s.14 Limitation Act 1980).

In McCoubrey v Ministry of Defence [2007] EWCA Civ 17 (24 January 2007), the Claimant was a soldier who suffered a hearing impairment following an explosion on a training exercise in 1993. He continued his army career until 2003 when he was told that he would be permanently excluded from active service due to his hearing problems. In 2004 he issued proceedings against the Ministry of Defence.

“Sufficiently Serious”

To rely on a later date of knowledge, the Court of Appeal considered the date on which the Claimant first had knowledge that his injury was “significant”. “Significant” is usually defined as “sufficiently serious to justify instituting proceedings” but one patient may have a different threshold for serious than another and this has been the subject of uncertainty. The Judges decided that the test for “sufficiently serious” was an objective test, looked at objectively from the viewpoint of a reasonable person in the Claimant’s position with his knowledge of the injury (but not the Claimant’s subjective traits). It was the reaction to the injury and not all its possible consequences that had to be considered.

On the facts of this case, the Claimant was unsuccessful as the Court concluded that the requirements of “sufficiently serious” were not met to allow him to rely on a later date of knowledge. This was because he had not pursued the claim in 1993 when he knew of the injury and he only pursued the claim in 2004 when he saw the consequences of the injury, i.e. exclusion from active service. The hearing loss had not deteriorated since the accident and his knowledge of the injury had not changed. In any event, the claim proceeded as the Court applied its inherent discretion under s33 of The Limitation Act 1980 to allow it to continue out of time.