Last month, the High Court handed down its judgment in Richins v Birmingham Women’s and Children’s NHS Foundation Trust  EWHC 847 (QB). Bevan Brittan LLP instructed John Coughlan QC on behalf of NHS Resolution and the Birmingham Women’s Hospital. The decision clarifies how ‘Claimant benevolence’ should be applied in clinical negligence cases where there is missing evidence due to a Defendant’s breach of duty.
The Claimant sought damages in relation to the psychiatric injury and consequential losses she had sustained as result of the stillbirth of her son following a placental abruption on 7 July 2008. The Claimant alleged that there were failings in the midwifery care provided at 6pm, 10pm, 11pm and overnight on 6 July. She claimed that, had she been referred for an obstetric review during the evening of 6 July or overnight, she would have been transferred to the delivery suite prior to the abruption and her son would have been born alive. The omissions included the failure to escalate for medical review and also to test the urine for protein at various points in the evening.
HHJ Kelly found for the Claimant on breach of duty and held that there were various failures to test for proteinuria on 6/7 July.
Following Keefe v Isle of Man Steam Packet Company  EWCA Civ 683, the Judge was asked to apply a “benevolent approach” to the determination of whether protein would have been present in the urine. Essentially this applies in certain very specific circumstances and means viewing the Claimant’s evidence benevolently and the Defendant’s evidence critically.
The Claimant’s position was that the Judge should approach the Claimant’s evidence with “Keefe benevolence” as it was “the Defendant’s breach of duty that has deprived the Claimant of evidence she would otherwise have had to prove her factual case and causation”. The Defendant’s position was that the Claimant had not been prejudiced by the lack of urine sample analysis, as she did not need the sample to be positive for protein for her case to succeed. The Court also had the benefit of expert evidence from the parties’ obstetricians, without having to rely on inferences (as the Judge had held in ZZZ v Yeovil District Hospital NHS Foundation Trust  EWHC 1642).
HHJ Kelly held that Claimant benevolence does not reverse the standard of proof and that, by definition, most clinical negligence claims involve some construction of the hypothetical as far as causation is concerned. In her judgment, while Claimant benevolence did have a role to play in determining whether or not protein would have been present in the urine, it had limited application, saying: “the notion of Claimant Benevolence does not undermine the reasoned explanation provided by the expert evidence”. She went on to say that Claimant benevolence could not “provide a bridge to causation”, particularly in the face of contrary expert evidence. She preferred the Defendant’s obstetric evidence and held that protein would not have been present in the urine at either 6pm or 11pm.
The Judge took a slightly different approach to this determination for the early hours of the morning. At this point, the Claimant was deprived of all evidence as she was not reviewed at all overnight. She said “Claimant Benevolence does have a role to play when determining whether it is probable that proteinuria would have been present at in the early hours of the morning. The Claimant is deprived of data as to both blood pressure and proteinuria.” However, to fill in the gaps, she still looked to the experts, who agreed that there was an increasing likelihood that protein would have been present.
Ultimately, however, the Claimant’s claim was unsuccessful on causation. HHJ Kelly was not persuaded that, even if one was to apply Claimant benevolence to the issue of whether or not protein would have been detected in the urine overnight, the Claimant’s own expert could only conclude that there may have been a decision to deliver in the early hours of the morning. The Judge concluded that “the hard, medical evidence does not demonstrate that it was probable as opposed to possible”.
The circumstances of this case are undeniably tragic, but the Judge still approached the necessary legal tests forensically. Whilst the case emphasises the potential pitfalls for Defendants who are unable to fill evidential gaps because of their own negligence, it also reinforces the principle that in clinical negligence cases ‘Claimant benevolence’ is of limited application. Where expert evidence is available to address those gaps, drawing adverse inferences becomes essentially redundant.