Chadwick v Hollingsworth
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix |
| Judgment Date | 02 November 2010 |
| Neutral Citation | [2010] EWHC 2718 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: B3/2010/0299 6WT02805 |
| Date | 02 November 2010 |
[2010] EWHC 2718 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
His Honour Judge Knight QC
Before: Lord Justice Rix
Case No: B3/2010/0299
B3/2010/0299 (C)
6WT02805
Mr Simon Butler (instructed by Stone Rowe Brewer Llp) for the Appellant
Ms Katie Gollop (instructed by Brachers Llp) for the Respondent
Hearing dates: Monday 4 th October
Approved Judgment
Lord Justice Rix:
This is an appeal from the judgment and order of HH Judge Knight QC dated 8 January 2010, whereby he gave permission to the claimant, Mr Donald Chadwick, to amend his particulars of claim in medical negligence, but on terms that he pay all the costs of the action to date (other than costs ordered on a previous occasion). His judgment is contained in the following brief passage of the proceedings:
“I disagree for two reasons. I think that the way this case has been repleaded does advance a substantially new case on both the allegations of breach and causation. I also accept the defendant's point that the particulars of claim in so far as the causation evidence is concerned, would have failed. I will not say anything more about the extent to which the amended particulars of claim do or do not give rise to a claim based on Bowman [sc Bailey] and the correct causation test. Those are probably issues to come, but it does seem to me that the inevitable consequence of the amendments you make mean that the defendant now faces a substantially different case with the inevitable result that the trial must go off, but I will give you permission to appeal.”
The consequent appeal was made, as the judge had himself anticipated, to the court of appeal. However, the question arose whether it should have been made to a high court judge, on the ground that the judge's decision had not been a “final decision” for the purposes of the Access to Justice Act 1999 (Destination of Appeals) Order 2000. At the hearing of the appeal on 4 October 2010, the court of appeal held that it had no jurisdiction and remitted the appeal to the high court (see the judgment of Lord Justice Moore-Bick [2010] EWCA Civ 1210). I was presiding over that hearing and then directed, with the consent of the parties, that, sitting as a member of the high court and exercising its powers, I would complete the hearing of Mr Chadwick's appeal then and there.
This is my judgment on that appeal.
On 11 July 2003 Mr Chadwick, to whom I will refer as the appellant, underwent a replacement of his left knee under the care of the defendant, Mr Robin Hollingsworth, a consultant orthopaedic surgeon (the “respondent”). The wound became infected, and this led to further complications, including a two-stage revision of the replacement in November 2003 and January 2004, and to the appellant's allegation of chronic infection, on-going pain and disablement.
The appellant commenced his claim in these proceedings on 29 June 2006. His claim form was served on 25 October 2006, at that time based on the expert advice and a report from another consultant orthopaedic surgeon, Mr Sean Curry FRCS. No complaint was then made about the original operation, but the alleged negligence was said to have commenced from 19 September 2003, when the appellant saw the respondent again as an outpatient. There was swelling under the scar on the knee which had been operated on. The swelling was aspirated and found to be infected by coagulase-negative staphylococcus aureus. The appellant was admitted for a course of intravenous antibiotics. This was not successful and on 24 October 2003 the appellant was admitted again for a debridement, washout and the insertion of a drain, and for a further course of intravenous antibiotics. On 18 November 2003 the respondent performed the first stage of a second knee replacement, by removing the components inserted in July; and on 22 January 2004 the respondent performed the second-stage of that second replacement or “revision” as it is called, when the new components were inserted.
In his original particulars of claim the appellant, basing himself on the advice of Mr Curry, complained (a) of the respondent's failure to move directly on discovery of the infection in September 2003 to a debridement and washout of the knee and the removal of the then present insert; and (b) of the respondent's further failure to ensure that the infection had been eliminated before proceeding to the second-stage of the revision in January 2004.
The respondent had instructed his own expert orthopaedic surgeon, Mr Andrew Jackson FRCS. Mr Curry and Mr Jackson met and produced a joint report dated 13 November 2008. As a result it became clear that Mr Curry had changed his mind and no longer felt able to support the appellant's case. He now conceded that even if a debridement and washout had been performed immediately in September 2003, there would only have been a “small chance of success” in eradicating the infection; and secondly, that the decision to proceed with the second-stage replacement would have depended on the appearance of the soft tissues but that it was unlikely that the respondent would have proceeded in the presence of a suspected wound.
Following the joint report, the appellant's solicitors attempted to obtain an explanation from Mr Curry for his change of mind, but there was no response to any of their letters. They therefore approached another orthopaedic surgeon, Mr John Newman FRCS, who produced a first report dated 21 September 2009. This was favourable to the appellant, essentially reinstating Mr Curry's original opinion. Mr Newman concluded his report as follows:
“In conclusion, Mr Chadwick was unfortunate to develop infection following his original knee replacement. His management was unsatisfactory in that once the acute infection was recognised an urgent wash-out was not performed. In addition, when debridement and a wash-out were carried out, this was done in an inadequate way. His management was also unsatisfactory in that the second stage of the revision procedure was performed too early and I believe a wrong decision about the timing was made, though to be fair, it did seem as though his treating surgeon was exercising reasonable care in his decision-making but succumbed to the temptation to move matters forward when further delay would have been wiser. This has resulted in recurrent infection with a substantial increase in Mr Chadwick's ultimate disability.”
In the meantime, well after the particulars of claim had been served but before Mr Curry had departed the scene, the litigants had also instructed consultant microbiologist experts. The respondent had instructed a microbiologist first, Professor K A V Cartwright, whose report is dated March 2008. He supported the respondent's defence, which was that the infection could not be cured other than by a two-stage revision of the knee, which had been properly performed. The appellant's microbiologist, Professor S J Eycken, produced her report on 21 August 2008. She opined that the original operation had not been carried out with an acceptable prophylactic regime, but she doubted that this would have altered the outcome. She agreed with Mr Curry that there should have been an urgent debridement and washout in September 2003. She also said that the second-stage revision had been performed too soon, when the wound had barely healed and thus was prone to infection: this went beyond Mr Curry's criticisms. The microbiologists' disagreement survived their joint report dated 14 October 2008.
Following Mr Curry's non-cooperation and the obtaining of a new report from Mr Newman, the appellant applied on 28 September 2009 for permission to substitute Mr Newman and his report for Mr Curry and his, and also for the vacation of the trial date which had been fixed for 30 November 2009.
That application came before HH Judge Bailey on 5 November 2009, and he granted it. It was contemplated that the trial might only have to be postponed for some two months, and it was relisted for 25 January, for 2 days (the previous listing had been for four days). Directions were given to accommodate that timetable, which included an updated report from Mr Newman, and a joint report. It was not then expressly contemplated that the particulars of claim might have to be amended. Judge Bailey awarded the respondent 75% of the costs of the application in any event, but the appellant was awarded 25% in the case, ie if he won at trial. The total costs were summarily assessed at £7,000. There was no request for costs thrown away as a result of the adjournment of the trial, then imminent. One reason for the shorter trial estimate was that it was then agreed that the microbiologist experts need not be called.
On 12 November 2009 Mr Newman produced his second report. He now recast his opinion somewhat, and in particular added new allegations of negligence dating back to the original operation in July 2003 and encompassing fresh inadequacies of the debridement procedure of October 2003 and the second-stage revision of January 2004. He concluded:
“Mr Chadwick developed infection following a knee replacement which has resulted in him having suffered substantially for a number of years and being left with major permanent disability. Although no one specific element of his management has caused the infection, there are five aspects of his management which I believe have not been in accordance with good practice, all of which have contributed to increasing the risk of him developing major infective problems. These are:—
...1. Failure to provide adequate and timely prophylactic antibiotics at the time of his primary knee operation.
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...helpful clear and focused submissions, referred me to the judgment of Rix LJ, sitting it seems in the High Court in the case of Chadwick v. Hollingsworth (No. 2) [2010] EWHC 2718 (QB). The issue there was that the claimant was allowed to amend his pleadings only so long as he paid all the c......
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...of a much larger claim did not make the claimant the successful party: see page 156." 62 That approach was endorsed in the case of Chadwick v Hollingsworth [2010] EWHC 2718 where Rix LJ cited Stuart-Smith LJ in Beoco (154B): "25 … As to that, Stuart-Smith LJ said (at 154B): "As a general ru......
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R Parkinson v Royal Bolton Hospital Nhs
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