Simmons v City Hospitals Sunderland NHS
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leggatt |
| Judgment Date | 13 October 2016 |
| Neutral Citation | [2016] EWHC 2953 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: 1HQ/16/0551 |
| Date | 13 October 2016 |
[2016] EWHC 2953 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Leggatt
Case No: 1HQ/16/0551
Adrian Hopkins QC appeared on behalf of the Claimant
John Whitting QC appeared on behalf of the Defendant
(As Approved)
The defendant has applied to vary an order dated 15 November 2015 by which judgment was entered for the claimant by consent in relation to certain admissions of breach of duty and causation made in the defence. The order expressly recorded that other issues of liability remained to be assessed. By this application the defendant seeks to withdraw some of the admissions made in its defence and to vary accordingly the order giving judgment based on those admissions.
The claim alleges negligence by staff of the defendant's hospital following the claimant's admission to hospital on 18 October 2009 when she was delivered of a baby by emergency caesarean section. Although she was discharged home on 20 October 2009, the wound did not heal and in the following days the wound broke down. However, it was not until 6 November that any action was taken by the defendant to treat the problem. On that date the claimant underwent debridement of the wound based on a diagnosis of necrotising fasciitis. That procedure did not resolve the problem and she underwent six further operations during the course of that month involving the removal of further tissue from the wound. She was ultimately discharged home on 23 November 2009.
However, she went on to develop a recurrent incisional hernia, presumably as a result of the repeated operations which she had undergone, for which she needed surgical repair in September 2011. On that occasion a diagnosis was made of pyoderma gangrenosum, a different condition which also causes tissue to become necrotic. The claimant also developed pulmonary embolism, which was diagnosed on 12 October 2011.
This action was begun in 2014. In the letter of claim and particulars of claim the claimant contended that the diagnosis of necrotising fasciitis should have been made much sooner – on 26 October 2009. It is the claimant's case that, had that diagnosis been made sooner than it was, necrosis would not have spread and the claimant would not have undergone repeated surgery in the way that she did in November 2009. It is further contended that in those circumstances the claimant would not have suffered incisional hernia and would not then have developed pyoderma gangrenosum and pulmonary embolism two years later in 2011.
In its letter of response and defence to the claim the defendant made the admissions on which judgment was subsequently entered. In particular, the defendant admitted that necrotising fasciitis ought to have been suspected by 29 October 2009; and, further, that, had necrotising fasciitis been diagnosed then, the claimant would not have suffered a further progression of that condition but would, on the contrary, have undergone surgery which would have prevented further necrosis and avoided incisional hernia. The defendant did not, however, admit that its negligence had caused the subsequent pyoderma gangrenosum or pulmonary embolism.
After the defence was served in late March 2015 there was correspondence between the parties' solicitors in May and June in which the claimant's solicitors suggested that it was appropriate for the defendant to submit to a judgment based on the admissions made in the defence and the defendant agreed in principle to such a course. It was agreed that there would at the same time need to be directions given for the determination of the remaining issues of liability – the principal issue being the causation of the pyoderma gangrenosum and pulmonary embolism which were diagnosed in 2011.
In connection with those remaining issues the defendant's solicitors instructed an expert dermatologist in August 2015, Dr McGregor. She gave a preliminary opinion in September 2015. She expressed the view that the pyoderma gangrenosum was not caused by the earlier necrotising fasciitis. More unexpectedly she also suggested that the original condition diagnosed as necrotising fasciitis in November 2009 might not have been necrotising fasciitis at all, but might in fact have been an earlier occurrence of pyoderma gangrenosum. Her opinion at this stage was provisional, dependent on seeing certain microbiology and histology records relating to the claimant. It also plainly needed to be considered by the other experts previously instructed by the defendant who had been advising on the basis that the claimant had indeed suffered from necrotising fasciitis in October/November 2009.
A case management conference had been listed for 19 November 2015. At that point, although the defendant had received Dr McGregor's provisional opinion, it did not feel able to adopt that opinion as a positive case. On 19 November 2015 the defendant consented to the entry of judgment in the manner that I have already described. An order was made for disclosure, but otherwise the question of what further directions should be made was adjourned to a further hearing.
In January 2016 a conference was held between the defendant's legal advisors and all the experts instructed by the defendant at which, according to a witness statement made by the defendant's solicitor, Ms Calder, the experts agreed that the claimant had in fact suffered from pyoderma gangrenosum in 2009. In the light of that view the claimant was informed on 3 February 2016 that the defendant intended to apply to vary the order by which judgment had been entered and to withdraw some of its earlier admissions.
There was a hearing before Master Cook on 8 February 2016. At that hearing Master Cook made an order requiring the defendant to serve the report of its dermatology...
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