EXP (Respondent v Dr Charles Simon Barker (Appellant
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Lord Justice Henderson,Lady Justice Black |
| Judgment Date | 10 February 2017 |
| Neutral Citation | [2017] EWCA Civ 63 |
| Docket Number | Case No: B3/2015/1705 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 February 2017 |
[2017] EWCA Civ 63
Lady Justice Black
Lord Justice Irwin
and
Lord Justice Henderson
Case No: B3/2015/1705
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
Mr Justice Kenneth Parker
Royal Courts of Justice
Strand, London, WC2A 2LL
Grahame Aldous QC and Stuart McKechnie (instructed by Russell-Cooke LLP) for the Respondent (Claimant)
Angus McCullough QC (instructed by Clyde & Co LLP) for the Appellant (Defendant)
Hearing date: 31 January 2017
Approved Judgment
Introduction
This is an appeal by the Defendant Dr Charles Barker from the judgment of Kenneth Parker J of 7 May 2015. The Appellant is a consultant neuroradiologist. The judge found that the Appellant negligently failed to identify and report a right middle cerebral artery aneurysm in the course of his review of an MRI brain scan carried out on the Respondent on 6 April 1999. The Appellant submits that the judge fell into error. It is said he failed to identify and to apply the "Bolam" test ( Bolam v Friern Hospital [1957] 2 AER 118); further, that having admitted the evidence of the Appellant's expert Dr Molyneux, the judge failed to evaluate that evidence on its merits; it is submitted that the judge wrongly performed a "balancing act" between competing expert opinions and finally, that the judge erred in holding that Dr Molyneux had an interest or bias in the outcome of the case which was "sufficient of itself to dismiss his expert opinion" when set against that of the Respondent's expert, Dr Butler.
The Facts
The Respondent was born in 1965. In March 1999, whilst working as a barrister in court, the Respondent experienced an episode of visual disturbance. She was admitted to the Accident and Emergency Department at the Queen Alexandra Hospital in Portsmouth. Following attendance on her general practitioner she was referred privately to a consultant orthopaedic surgeon, Mr Harley. He made a provisional diagnosis of spinal spondylosis and he organised a magnetic resonance imaging (MRI) scan on the spine. The Respondent underwent an MRI scan of the lumbar spine and of the brain. Fortuitously, the Respondent retained the packaging for these scans, which indicated that the MRI of the brain was reviewed by the Appellant. The Appellant was then a consultant neuroradiologist, working in Southampton.
In April 1999, the Respondent saw Mr Harley once more to discuss the results of the scans. The Respondent was told that she had a specific gene for ankylosing spondylitis and that the scan of the lumbar spine had revealed degenerative changes. She was referred to a consultant rheumatologist. At the same time, Mr Harley told the Respondent that her brain scan was entirely normal and that conclusion was repeated in Mr Harley's letter to her GP of 12 April 1999.
It is the Respondent's case that the brain scan was not normal, but indicated the presence of an aneurysm on her right middle cerebral artery ["MCA"] which should have been identified by the Appellant, who had specific expertise in the reporting of brain scans. It is accepted that Mr Harley, the Respondent's GP and she herself all relied on his report.
Shortly before the trial, the Appellant conceded causation. Had the view been taken that the scan appearance was abnormal in April 1999, the Respondent would have been referred for a neuro-surgical/neuro-vascular opinion. If she had been referred, any aneurysm would have been identified. The Respondent was then 34 years of age, and active treatment would have been offered. Either of the potential procedures would have had a very high likelihood of curing the aneurysm, with an unremarkable postoperative course and outcome, and an excellent long term prognosis. Even if the Respondent had not undergone immediate surgery, she would have been subject to frequent repeat MRI imaging and continuing surveillance. It is likely that on-going surveillance would have identified progression in the aneurysm, leading to definitive surgery before September 2011.
By 2011, the Respondent had become a district judge. On 8 September 2011, she collapsed in her home and lost consciousness. She was taken by ambulance to the Accident and Emergency Department at the Queen Alexandra Hospital in Portsmouth. A CT brain scan revealed an acute parenchymal haemorrhage, 5cm x 4.5cm in extent, centred on the Respondent's right temporal lobe. The bleed had produced a 2.5cm shift in the brain from the mid-line. The bleed had been caused by a ruptured aneurysm. A CT scan revealed a partially thrombosed aneurysm originating from the right MCA. Emergency surgery was performed, clot removed and a partly calcified bi-lobed aneurysm was observed. The consultant neurosurgeon, Mr Duffill, clipped the aneurysm and evacuated the haematoma. The Respondent was discharged home on 30 September.
The Respondent has suffered significant damage from this episode. She has a left field visual field loss causing 50% blindness, left-sided hemiparesis, a degree of paralysis and weakness in the left leg, chronic pain and spasticity, weakness and imbalance, cognitive impairments, impaired speech, hearing, swallow, smell and taste; fatigue, headaches, periodic bowel and bladder incontinence; disinhibited behaviour, depression and panic attacks.
On 14 December 2011, the Respondent saw Mr Duffill at an outpatient follow-up appointment. She took with her the 1999 MRI images. Mr Duffill concluded that he could identify on one of them the aneurysm which had subsequently ruptured. He wrote to the Respondent's GP on 28 December:
"I think in retrospect one can see that the middle cerebral artery bifurcation on the right is abnormal and that this represents a small aneurysm which was present twelve years ago."
The Issue at Trial
As the judge put it, the issue at trial was "relatively narrow", namely "whether the MRI scan in 1999 did indicate the presence of an aneurysm which a reasonably competent neuroradiologist would have identified and reported". As I have said, there is a dispute as to whether the judge correctly formulated the Bolam test, and I address that below. At least conceptually, there were two issues: whether there was an aneurysm in 1999, even if smaller in dimension, and secondly, whether a competent neuroradiologist should have identified a possible abnormality on the scan warranting further investigation. However, the two issues are very closely connected, since the principal evidence bearing on each consists of the scan images, and the opinions of experts about those images.
The Expert Evidence at Trial
The Respondent relied on two experts, the first being Dr Paul Butler MRCP FRCR, a consultant neuroradiologist at the Barts and London NHS Trust. Dr Butler has been a consultant since 1986 with a range of NHS and private appointments. He has been an examiner for the FRCR examinations and has lectured in neurology. He has made, as the judge found, many presentations in his specialist area and is an author in a number of publications. The Respondent also relied on an expert report of Mr Peter Kirkpatrick, a consultant neurosurgeon at the University of Cambridge Hospital Trust since 1995.
The Appellant relied on the opinion and evidence of Dr Andrew Molyneux, an honorary consultant neuroradiologist at the University of North Staffordshire NHS Trust. As the judge acknowledged, there is no doubt as to Dr Molyneux's distinguished clinical career. He was a consultant neuroradiologist at the Radcliffe Infirmary, Oxford from 1999 to 2004. He has been an examiner for the MSc degree in radiology and an honorary senior clinical lecturer at Oxford University. He has had a particular interest in the treatment of cerebral aneurysms and of brain arteriovenous malformations. As the judge put it:
"[Dr Molyneux's] curriculum vitae provided an impressive list of articles in peer reviewed journals since 1998, a large number of which covered his special area of aneurysms."
Before the trial, the Appellant served a written report and two supplementary reports from Mr Paul Byrne FRCS, consultant neurosurgeon at the Nottingham University Hospital NHS Trust. In the event, Mr Byrne was not called to give evidence and the Appellant did not seek at trial to rely upon his reports. Nevertheless, as we shall see, the report from Mr Byrne became significant.
The Appellant's expert, Dr Molyneux, indicated that the MRI appearance indicated tortuosity ("that is to say a twisted shape or form") of that artery. Dr Molyneux marked that on copies of images 14 and 33 of study 2 from the 1999 MRI scan appended to his report. I should make clear that the Appellant's case is that this description did not imply any abnormality. In his August 2014 report, the Respondent's witness Dr Butler focussed on image 33. This image includes the right sylvian fissure, and the middle cerebral artery. Dr Butler drew an arrowhead on that image, pointing to what he considered was "an aneurysm on that artery not tortuosity of that artery".
It was agreed between the parties, and indeed agreed by the Appellant in his own witness statement, that when a neuroradiologist reviews imaging, he or she is "first and foremost influenced by the clinical details on a request form". Here, the request did not relate to the MCA. However, there follows, as Dr Barker again agrees, a general survey. It was agreed that a reasonably skilled neuroradiologist should include a perusal of the basal cerebral arteries in such a survey.
In his report of 6 August 2014, Dr Molyneux stated in relation to this scan:
"In my opinion there is no abnormality seen in the brain. I am not able to identify any clear evidence of a cerebral aneurysm on this scan. The right...
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