Luc Jones (by His Mother and Litigation Friend Mrs Lynn Harris) v Taunton and Somerset NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 10 June 2019 |
| Neutral Citation | [2019] EWHC 1408 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17C00379 |
| Date | 10 June 2019 |
[2019] EWHC 1408 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stewart
Case No: HQ17C00379
Derek Sweeting QC & Adam Korn (instructed by Sharp, Jackson & Proctor) for the Claimant
Angus Moon QC & Eleanor Morrison (instructed by Bevan Brittan Solicitors) for the Defendant
Hearing dates: 1st, 2nd, 3rd, 4th, 8th & 22nd May 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The Claimant is aged 23 years, having been born on 5 th February 1996. His claim is based on an allegation of brain injury caused by negligence in his mother's antenatal care at Musgrove Park Hospital, Taunton. The alleged negligence concerns the administration to the Claimant's mother, Mrs Harris, of a drug known as Nifedipine during an admission on 25 th/26 th November 1995 when Mrs Harris was just short of 31 weeks pregnant.
Nifedipine is a tocolytic drug, that is to say its purpose is to suppress or postpone pre-term labour. The Claimant's case is that it was negligent to administer Nifedipine. This is denied by the Defendant.
The case was listed for trial on breach of duty only. Should the Claimant succeed in respect of breach of duty, there will be a further trial in respect of causation of the Claimant's injuries. In outline the Claimant alleges that the administration of Nifedipine was followed by a fall in maternal blood pressure, leading to a hypoxic episode which caused periventricular leukomalacia (PVL).
The Claimant alleges that:
i) his mother was not in preterm labour;
ii) Nifedipine should only have been administered as part of a clinical trial and the safety of the drug was not confirmed;
iii) the drug was administered contrary to the Defendant's own protocol. 1
Witness
The following witnesses were called:
• Doctor Bett. Her witness statement is dated 22 nd November 2017. Doctor Bett is now a general practitioner. In November 1995 she was a senior house officer (SHO) at the Defendant hospital.
• Mr Eki Emovon. Mr Emovon is a consultant obstetrician and gynaecologist. In November 1995 he was a registrar at the Defendant hospital. His witness statement is dated 17 th April 2018.
• Mr John Hare. Mr Hare qualified as a medical practitioner in 1964. He was a consultant obstetrician and gynaecologist from 1976 until April 1998 when he took early voluntary retirement. He has provided reports dated 22 nd June 2018 and 1 st March 2019.
• Professor Steven Thornton. Professor Thornton has been a clinical academic since 1986. He spends about 50% of his working week on clinical work and the remainder on academic work. He is an obstetrician and gynaecologist. At present he is Vice Principal (Health), Queen Mary University of London, and Executive Dean of the Bart's and London School of Medicine and Dentistry. His report is dated 4 th February 2019.
In addition, there is a joint statement of the two experts dated 12 th April 2019.
Authorities
Breach of Duty 2
In Bolam v Friern Hospital Management Committee 3 McNair J set out the classic test as follows:
“…he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art……Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”
In Maynard v West Midlands RHA 4 Lord Scarman said:
“Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other: but that is no basis for a conclusion of negligence.”
In Bolitho v City and Hackney Health Authority 5: Lord Browne-Wilkinson explained and refined the Bolam test in this way:
“……the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice……The use of these adjectives — responsible, reasonable and respectable — all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter…….
…… if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.”
In C v North Cumbria University Hospitals NHS Trust 6 Green J, as he then was, gave a helpful analysis of the case law on breach of duty. He said:
“25. ……….It seems to me that in the light of the case law the following principles and considerations apply to the assessment of such expert evidence in a case such as the present:
i) Where a body of appropriate expert opinion considers that an act or omission alleged to be negligent is reasonable a Court will attach substantial weight to that opinion.
ii) This is so even if there is another body of appropriate opinion which condemns the same act or omission as negligent.
iii) The Court in making this assessment must not however delegate the task of deciding the issue to the expert. It is ultimately an issue that the Court, taking account of that expert evidence, must decide for itself.
iv) In making an assessment of whether to accept an expert's opinion the Court should take account of a variety of factors including (but not limited to): whether the evidence is tendered in good faith; whether the expert is “responsible”, “competent” and/or “respectable”; and whether the opinion is reasonable and logical.
v) Good faith: A sine qua non for treating an expert's opinion as valid and relevant is that it is tendered in good faith. However, the mere fact that one or more expert opinions are tendered in good faith is not per se sufficient for a conclusion that a defendant's conduct, endorsed by expert opinion tendered in good faith, necessarily accords with sound medical practice.
vi) Responsible/competent/respectable: In Bolitho Lord Brown Wilkinson cited each of these three adjectives as relevant to the exercise of assessment of an expert opinion. The judge appeared to treat these as relevant to whether the opinion was “logical”. It seems to me that whilst they may be relevant to whether an opinion is “logical” they may not be determinative of that issue. A highly responsible and competent expert of the highest degree of respectability may, nonetheless, proffer a conclusion that a Court does not accept, ultimately, as “logical”. Nonetheless these are material considerations….The following are illustrations…. “Competence” is a matter which flows from qualifications and experience. In the context of allegations of clinical negligence in an NHS setting particular weight may be accorded to an expert with a lengthy experience in the NHS……..This does not mean to say that an expert with a lesser level of NHS experience necessarily lacks the same degree of competence; but I do accept that lengthy experience within the NHS is a matter of significance. By the same token an expert who retired 10 years ago and whose retirement is spent expressing expert opinions may turn out to be far removed from the fray and much more likely to form an opinion divorced from current practical reality…..A “responsible” expert is one
who does not adapt an extreme position, who will make the necessary concessions and who adheres to the spirit as well as the words of his professional declaration (see CPR35 and the PD and Protocol).vii) Logic/reasonableness: By far and away the most important consideration is the logic of the expert opinion tendered. A Judge should not simply accept an expert opinion; it should be tested both against the other evidence tendered during the course of a trial, and, against its internal consistency…….There are 2 other points which arise in this case which I would mention. First, a matter of some importance is whether the expert opinion reflects the evidence that has emerged in the course of the trial. Far too often in cases of all sorts experts prepare their evidence in advance of trial making a variety of evidential assumptions and then fail or omit to address themselves to the question of whether these assumptions, and the inferences and opinions drawn therefrom, remain current at the time they come to tender their evidence in the trial. An expert's report will lack logic if, at the point in which it is tendered, it is out of date and not reflective of the evidence in the case as it has unfolded. Secondly, ……..it is good practice for experts to ensure that when they are reciting critical matters, such as Clinical Notes, they do so with precision……Having said this, the task of the Court is to see beyond stylistic blemishes and to concentrate upon the pith and substance of the expert opinion and to then evaluate its content against the evidence as a whole and thereby to assess its logic. If on...
To continue reading
Request your trial
-
Mrs Marion O'Brien (Administratrix of the Estate of Mr John Berry (Deceased)) v Guy's & St Thomas' NHS Trust
...including expert opinion and medical textbooks etc, even if NICE had not produced a guideline. However, as in Jones v Taunton NHS [2019] EWHC 1408, a later guideline ‘codifying’ a Bolam-compliant practice may also evidence such a practice at an earlier point. After all, NICE, BNF and other ......
-
Bolam, Bolitho, And Back To The Future Of Clinical Negligence
...in treatment prove them right? These were the question facing the court in Jones v Taunton and Somerset NHS Foundation Trust [2019] Med LR 384 Can a doctor really be liable for being ahead of their time when treating patients? What if they are not following a recognised practice, but time a......