Lucien Pearce (by his mother and litigation friend, Isabel Pearce) v East and North Hertfordshire NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lambert |
| Judgment Date | 11 June 2020 |
| Neutral Citation | [2020] EWHC 1504 (QB) |
| Date | 11 June 2020 |
| Docket Number | Case No: QB/2018/006845 |
| Court | Queen's Bench Division |
[2020] EWHC 1504 (QB)
THE HONOURABLE Mrs Justice Lambert
Case No: QB/2018/006845
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Gerwyn Samuel (instructed by Medical Solicitors) for the Claimant
Ms Helen Wolstenholme (instructed by Clyde & Co.) for the Defendant
Hearing dates: 20 May 2020
Approved Judgment
THE HONOURABLE Mrs Justice Lambert
This is an application by the Defendant to amend the Defence in this action for damages for personal injury arising from clinical negligence. The application is contested on the grounds that the application is made very late and, if granted, would require the trial to be vacated; that there is no good reason for the late timing of the application and the amendment raises an argument which, in the context of this claim, carries no realistic prospect of success.
Mr Gerwyn Samuel represents the Claimant and Ms Helen Wolstenholme the Defendant. I am grateful to them for their helpful submissions. The hearing was conducted via Skype for Business; both Counsel were able to raise and develop their arguments fully in spite of some connectivity problems (affecting Mr Samuel in particular).
Background
The claim arises from a delay in performing an ultrasound examination of the Claimant's hips following his delivery in the breech position by Caesarean section on 15 April 2012. The full new-born examination undertaken by Dr Sigdel on 16 April 2012 demonstrated no hip instability but, given that breech presentation is a risk factor for congenital hip dysplasia, a further examination by way of ultrasound hip scan was mandatory. It is the Claimant's case that the timing of the further examination is critical as, if an early diagnosis of hip dysplasia can be made, then it is likely that conservative measures (gentle manipulation and the use of an abduction brace) will enable the ball of the hip joint to grow normally with no long term problems. In the Particulars of Claim dated November 2018, it was pleaded that a favourable outcome could be achieved “ with prompt treatment following a scan at the six week mark (or alternatively at any time up to the age of 12 weeks)…”
It is common ground between the parties that Dr Sigdel did not inform the Claimant's mother that the timing of the ultrasound scan was critical. Although an appointment for a scan on 19 June 2012 (at 9 weeks and 2 days of age) was sent to the Claimant's mother on 16 June 2012, the Claimant's mother was unable to keep the appointment and the appointment was re-arranged for the 17 August 2012 (at 17 weeks and 4 days of age). The scan demonstrated bilateral congenital hip dysplasia and the Claimant ultimately underwent surgery to his right hip on 11 April 2013 and to his left on 25 April 2013. His orthopaedic recovery has been good. He is now able to walk and run without asymmetry with only a mild tendency to external rotation of the hips when running. The long-term prognosis is however more guarded and it is the Claimant's case that a reasonably confident prognosis cannot be given until skeletal maturity at 17 or 18 years of age and depending on assessment at that time the Claimant may need bilateral hip replacements in his 50s with further revisions later on in life.
The Claimant's pleaded case raises a number of allegations of negligence. They can however be distilled down into two main criticisms: the failure by the Defendant to adhere to its own protocol and arrange for an ultrasound scan to be performed within a period of around 6 or 8 weeks of birth and the failure to inform the Claimant's mother that the timing of the ultrasound scan was critical. It was further alleged that, had the Claimant's mother been informed that the scan must be done within 6 weeks or so of birth, then far from cancelling the appointment which she was given at 9 weeks, she would have chased the hospital and ensured that one was provided even earlier and within 6 weeks of birth.
In its Defence, the Defendant admitted breach of duty in failing to adhere to its protocol which required ultrasound appointments to be arranged within 6 weeks. It also admitted, so far as it related to the Claimant, that the Defendant's system failed “ to ensure that children born in the breech position were given appointments within the six week period.” The Defence denied that the Claimant's mother should have been informed that the investigation was time-sensitive. The Defendant also denied causation, asserting that, even if the diagnosis of hip dysplasia had been made at 6 to 8 weeks, the outcome would have been similar: although a closed reduction in conjunction with the use of a harness might have been attempted, on balance, surgical intervention with all of its long term potential complications, would still have been required.
Given the terms of the proposed amendment, I need also mention as part of the background that, at a case management conference on 19 August 2019, the Claimant's legal advisors (following, as I understand it, some discussion with the Defendant's legal team) elected to proceed to a liability trial on the basis of the admitted breach of duty only. The Order of Master Yoxall records that the Claimant did not intend to pursue the allegations of breach of duty which had been denied. I understand fully why this course was adopted. Given the Defendant's pleaded case, and its admission that the ultrasound scan should have been undertaken within 6 weeks or so of birth, the only real remaining issue between the parties was causation. Nothing turned upon the contents of the discussion between the Claimant's mother and Dr Sigdel or upon whether it was a breach of duty by Dr Sigdel not to spell out that the ultrasound scan should be performed within a prescribed time-scale or why. Following the case management conference in August 2019 the only issue for trial was causation and, specifically, whether a diagnosis at 6 weeks with prompt treatment would have led to successful conservative treatment and a better long-term outcome.
The Proposed Amendment
The amendment focuses upon the Defendant's offer of an appointment for an ultrasound scan at 9 weeks and 2 days of age. On the Claimant's case the timing of the offer fell within the window (which extended up to 12 weeks) within which a diagnosis and prompt treatment would have been associated with conservative treatment and a good outcome. The Amended Defence maintains the Defendant's primary argument that diagnosis and treatment at or around 6 weeks would not have altered the outcome. It raises a further and alternative argument which denies the causative potency of the admitted breach of duty. The amendment asserts that the Claimant's injury was not reasonably attributable to the Defendant's admitted breach of duty (which amounted to a delay of 3 weeks in offering an appointment); and/or that the breach of duty was not the proximate cause of the Claimant's loss which was the Claimant's mother's failure to attend the appointment at 9 weeks; and/or the failure to attend the appointment offered at 9 weeks was a novus actus interveniens which broke the chain of causation.
The amendment was first proposed by the Defendant on 14 April 2020. When, on 28 April 2020, the Claimant's solicitor indicated that he did not agree to the amendment, this application was issued on 5 May 2020. The trial is listed in mid-July.
The Legal Framework
The legal framework is not in dispute and can be stated succinctly here. The starting point is CPR 17.3 which confers on the Court a broad discretionary power to grant permission to amend. The case-law is replete with guidance as to how that discretionary power should be...
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