Res ipsa loquitur in clinical negligence – Thomas v Curley [2011] EWHC 2103 (QB)

The Claimant suffered a common bile duct injury, sustained during a laparoscopic cholecystectomy carried out by the Defendant consultant surgeon. The central issue considered was whether, on the balance of probabilities, the Defendant had negligently caused the injuries. The Defendant submitted that not all bile duct injuries are negligently caused and that there was no evidence of negligence in the facts being tried. The Claimant contested this statement, submitting that the Defendant had caused an avoidable injury. The operation note stated that the gall bladder was not inflamed, meaning it was a straightforward procedure and therefore injury should not have been sustained. The Defendant attempted to argue that this, along with other statements made by the Claimant, amounted to an assertion of res ipsa loquitur in bile duct injuries sustained during a laparoscopic cholecystectomy.

In the previous case of Ratcliffe v Plymouth and Torbay Health Authority (1998), the House of Lords clearly stated that res ipsa loquitur will rarely apply in clinical negligence cases, as the parties usually have the benefit of medical records and expert evidence. It is then up to the Court to weigh up this evidence and give judgment. The Judge did not accept the Defendant’s submission that this was an assertion of res ipsa loqitur but did make the following statement:

“I do not consider [the claimant’s expert’s] opinion that bile duct injuries are avoidable by competent surgeons acting with normal care as a counsel of perfection; rather it is a statement of the obvious when the procedure is uncomplicated.”

The trial Judge went on to find in favour of the Claimant.  It appears there was no evidence of the procedure in this case being complicated by either difficult anatomy or pathology, and the injury occurred some distance from where surgery took place.  In the trial Judge’s final comment on breach of duty, he said that “… no explanation has been provided as to how such injury could have been occasioned other than due to a want of care on the Defendant’s part, my conclusion is that the Defendant negligently caused the injury.”

This case suggests if a bile duct injury is caused during a laparoscopic cholecystectomy, the Defendant will need to provide an explanation as to why this occurred, especially if there was no evidence of unusual anatomy or inflammation.

Successive causes and causation; Loss of chance - Wright v Cambridge Medical Group [2011] EWHC Civ 669

The Claimant developed a bacterial infection in hospital which, without fault, was not diagnosed before discharge home.  The Claimant brought a claim against her GP for failing to refer her to hospital for two days, as she had contacted the GP after discharge. Once referred by the GP, it took a further three days for the Claimant to be correctly diagnosed, by which time her hip had become infected causing permanent damage. The trial judge held that the GP’s negligence had caused no loss, as even if the Claimant had been admitted earlier, she would still not have been treated properly and therefore would still have suffered the same outcome.

On appeal, it was held that the GP’s acts were a causative factor in the Claimant’s injury. The hospital’s treatment of the Claimant was not such an unusual or prolonged event to break the causal link. It was held that if the Claimant had been referred earlier, she would have suffered less damage, even if she had suffered the same delay. The Court reasoned that the GP’s negligence was divisible from any poor practice on the part of the hospital and was not superseded by this. 

The case makes it clear that it is no defence for a doctor who negligently fails to refer their patient to hospital, to rely on an assertion that the patient would have been treated negligently had the earlier referral taken place. Once a Claimant has established that they should have been referred earlier, and would not have suffered the damage if treated properly, then there is a rebuttable presumption that they would be treated competently afterwards.

Causation and contribution – Dalling v Heale & Co [2011] EWHC Civ 365

The appellant company appealed against a decision that it was responsible for personal injuries sustained by the respondent. The respondent had been injured during a fall at work whilst employed by the appellant and sustained head injuries that left him with executive dysfunction. Liability for the accident was compromised by the parties on the basis that the respondent would recover 75 per cent of full damages. A number of years later, the respondent injured himself while intoxicated. The trial judge awarded the respondent damages in respect of both incidents; holding that the initial injury caused by the appellant had a disinhibiting effect on the respondent and that there was therefore a causative link between the first accident and the second one. The Judge reduced the damages for the second accident by one third, due to the respondent’s contributory negligence.

The appellant appealed on the basis that the respondent’s action in getting drunk was an act of his own volition. The Court of Appeal held that the trial judge had been correct to hold that the respondent’s injuries were causally linked to the appellant’s negligence. It was then considered whether holding the appellant liable for the respondent’s injuries from the second accident would be unfair or unjust. It was held that although the trial judge did not expressly set out his reasoning, it was clear that the judge had reasoned that the appellant’s tort had not completely destroyed the respondent’s ability to control his drinking, but it had impaired it. This made the respondent’s act of getting drunk an act for which both the appellant and the respondent were partly responsible.

Deferring assessment of damages - Cook v Cook [2011] EWHC 1638 (QB).

Where the long-term outcome for the 10 year old claimant was uncertain and speculative, the assessment of damages should be completed on a staged basis, postponing a final resolution until a point some years in the future when it was anticipated that quantum in respect of the claimant’s adult needs could be meaningfully assessed.

The trial Judge held that four general principles could be derived from the authorities: (a) it was the normal rule, and desirable practice, that all outstanding issues between the parties should, where possible, be resolved at a single hearing; (b) the principle of the public interest in the finality of litigation remained crucial; (c) a Judge should not be tempted to invent rules to make up for perceived deficiencies in statutory provision; (d) although the court had the power to postpone some issues for later resolution, that was to be regarded as a rare or exceptional course requiring some tangible reason to justify it. It was held in this case that as the issues were complex and the future outcomes were speculative, it would be necessary in order to do justice to the overriding objective to delay assessment of certain aspects of the Claimant’s claim.

This case suggests that where a long term prognosis cannot be given, it is an option for the court to make a final assessment of certain heads of loss but hold others until a future date.  This is different to a provisional damages award but similarly means a matter cannot be treated as closed for potentially many years. 

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