Good experts win cases: Pickering v Cambridge University Hospitals NHS Foundation Trust

May 18, 2022

Christian Taylor

Of the more than 1.7m money claims issues in 2019, less than 3.7% went to trial. More than 96% of claims issued either settled or discontinued. In clinical negligence actions, whilst the precise proportions probably differ, it is still accurate to observe that the majority of claims either settle or discontinue. For that reason alone, those claims that fight to trial are usually highly instructive for legal advisors who need to advise their clients about the risks associated with going to Court.

The very recent judgment of Mr Justice Ritchie in the case of Pickering v Cambridge University Hospitals NHS Foundation Trust [2022] EWHC 1171 (QB) is just such a case. The Claimant attended Addenbrookes Hospital on 24 September 2015 with symptoms of her right lower leg going white and feeling cold and painful. The Defendant discharged the Claimant without administering Heparin. On the evening of 27 September 2015 the Claimant had a stroke. At the start of the trial issues of breach of duty and causation were in dispute. By the end of day 1, the nature of the oral evidence given by the Defendant’s Accident and Emergency expert led the Defendant to “rightly” (in the words of the Judge) concede breach of duty. In his report, the Defendant’s expert focussed entirely on the leg clot and ignored the “mother” clot. Furthermore, he could not explain why it would be safe to make the Claimant wait for anti-coagulation [53]. Following his evidence the Defendant admitted it had been negligent in failing to treat the Claimant with immediate low molecular weight Heparin by injection in A&E at or before 0144 on 25 September 2015.

That still left the very contentious issue of whether the Heparin would probably have prevented the Claimant having a stroke on 27 September 2015. Four experts gave evidence on this issue. For the Claimant a Neurologist and Haematologist. For the Defendant a Stroke Physician and a Haematologist. In the course of the evidence it became apparent that the Neurologist instructed by the Claimant, misquoted a paper in the joint statement, which undermined the opinion he had given [72]. Fortunately for the Claimant, the key causation evidence was from the Haematologists. The judge embarked upon a very detailed and comprehensive review of the medical literature [paras 96-131 and 140] which is likely to be very helpful for advisors and experts dealing with the same issues in a stroke case. The Judge ultimately preferred the evidence of the Claimant’s Haematologist. Whilst the Claimant’s Haematologist did not entirely escape criticism [para 133], his evidence was still preferred. The Defendant’s Haematologist was criticised for various matters including relying on a chart he had not provided to anyone (98], being “overly rigid” [118], tending to “produce rather extreme opinions” [134] and adopting “fixed thinking and questionable logic” [139]. One particular logical problem that troubled the judge was the Defendant Haematologist’s insistence that even as the clot got smaller and became dissolved (due to anti-coagulants) the clot would not be less likely to “fire off” smaller pieces (capable of causing a stroke). And this notwithstanding that he had used the word “organised” to describe the effect of anti-coagulation on clots in the joint report [139-140].

So what did I take as the key practice point from this case?

1. Good experts win cases.

Obvious but worth repeating. The Claimant succeeded because the two best experts in the case were her A&E expert and her Haematologist. The Defendant’s experts and one of the Claimant’s experts, were the subject of significant judicial criticism, much of which was easily avoidable. It underlines again the importance of using experts who have a track record of being careful and balanced in their views, who are well-prepared, and who are able to both explain and justify their opinion in a convincing way. That is, convincing to non-medics. The judges are almost always lawyers and not medical doctors. A conversation between solicitors and counsel in relation to the selection of experts, particularly where a recommended or available expert is unknown to the solicitor, takes very little time and may avoid costly lost opportunities.