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Bryan Thomas writes on clinical negligence trials - gambling on experts remotely

 

Personal Injury and Clinical Negligence analysis:

 

In May 2020 Richard Hermer QC (sitting

as a deputy judge of the High Court) embarked on one of the first High Court clinical

negligence trials to be held remotely. Mr Jones, a serving soldier in the British Army, was

diagnosed with HIV. The case concerned the medical consequences of a ten-month delay

in diagnosis. The Ministry of Defence, being responsible for his medical care, accepted it

had breached its duty of care and was liable to compensate Mr Jones for the ill health he

suffered during that ten-month period. Ashley Croft, a Consultant Public Health Physician,

gave evidence for Mr Jones. The judge rejected his evidence on causation far preferring

the analysis of Professor Ross, a Consultant Physician and Professor of Sexual Health

and HIV. The principles governing anonymity in the context of a remote but otherwise

public hearing were also reviewed.

 

Jones v Ministry of Defence [2020] EWHC 1603 (QB)

 

What are the practical implications of this case?

 

The case is instructive on the procedures for remote trials in both the High Court and the County

Court.

It once again highlights the importance of the right expert for the issues involved and the risk of going to trial where the expert lacks ‘hands on’ clinical experience. An additional dimension in

this case, which claimant practitioners need to be alert to, is the evidence of the treating clinicians. Even if you have what appears to be sound and logical expert evidence in support of your

claim, the judge will also be looking very closely at the treating clinicians, who are often experts in their own field. The case illustrates that great care needs to be taken over the choice of

expert and the need to review the expert evidence at critical stages such the service of the lay evidence and prior to the joint statement.

It is important to seek sufficient costs at budgeting stage to allow for this in depth review and analysis.

 

What was the background of this case?

 

Mr Jones joined the Army at 16 and had been deployed overseas on many occasions serving in Iraq,

Kosovo, Northern Ireland and Afghanistan. He had a successful career. Following the onset of

symptoms in November 2012 he was eventually diagnosed with HIV in September 2013 aged 31. He

was medically discharged in August 2015. Mr Jones alleged that the negligent delay without treatment had caused his medical condition to significantly deteriorate both physically and

mentally, resulting in his medical discharge from the Army and reduced life expectancy.

 

What did the court decide?

 

The experts

There was a very marked difference of opinion between Dr Croft and Professor Ross on the impact

that the delay in diagnosis of HIV had on the claimant. The judge found that Dr Croft was not an

expert with clinical experience of the subject of HIV. This put him at some disadvantage to Professor

Ross who is an expert in HIV. Professor Ross provided a detailed analysis to illustrate the lack of

causal impact between the delay in diagnosis and any ongoing health problem or reduced life

expectancy. This was based on his clinical experience gained over 30 years and not just data, a point

the judge found to be determinative in relation to which of the experts he preferred. The judge found that he presented as one would expect from an eminent expert in his field. He was

measured and careful in his answers to questions. At no stage did he give the impression that he was arguing for a particular party but rather gave straight and consistent evidence. In

contrast he found Dr Croft to be an unimpressive witness borne out of ‘a marked lack of familiarity with basic aspects of HIV’, its classification and its treatment (para [106]). Much of this

became readily apparent under cross examination.

His explanation for certain textbook support was described by the judge as being ‘no

more than an unedifying attempt to find any argument, however ill-informed, to justify his position. It was certainly not the result of informed, considered or well researched analysis’ (para

[143]). He was described as having a ‘cavalier approach to important evidence’ (para [164]).

 

Damages

 

The judge concluded that the ten-month delay did not cause Mr Jones’ medical discharge, a reduced

life expectancy or indeed any of his ongoing symptoms but he had suffered pain and discomfort with

significant distress during this time. He awarded damages for pain, suffering and loss of amenity of

£20,000 together with some modest gratuitous care.

 

Anonymity request

 

At the start of the case the judge received a request from a journalist from the Press Association (PA),

seeking access to the ‘Microsoft Team’s’ platform in order to watch the trial. The judge decided to

allowed access but Mr Wheatley, counsel for Mr Jones, applied for an order that his client be granted

 

anonymity.

 

The judge rejected the application for anonymity relying on the general principles stated by Moore-

Bick LJ in JX MX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96 as applied by Martin

Spencer J in the context of a clinical negligence claim in Zeromska-Smith v United Lincolnshire

Hospitals NHS Trust [2019] EWHC 552 (QB). He stated that applications for anonymity under CPR

39.2(4) should be made early on in litigation (generally at the outset) and absent exceptional reasons

should not await the commencement of a trial. It is on court papers available for public inspection at

court and this case has been listed without objection on the Daily Cause List published on the

Judiciary website.

 

The remote hearing

 

This was one of the first of many cases now being undertaken remotely all over England and Wales.

An outline of the procedure, which followed closely the author’s experience of a remote trial in South

Wales last month, was as follows:

• the parties and the court liaise over the appropriate platform. Microsoft Teams was used

• information was provided in advance as to assist swearing or affirming

• breaks were allowed after witnesses gave evidence

• images were face only with a separate screen for the e-bundle of trial documents

• the daily cause list published details of how the public and press could access the trial. Two

journalists and one member of the public requested access and were sent a Teams

invitation by the court by e mail

The hearing proceeded smoothly and costs were significantly reduced for both parties by avoiding

any lengthy travelling and London city centre accommodation costs by witnesses and lawyers. Six

experts gave evidence on HIV, Psychiatry (Dr Nabavi and Dr Kehoe), and, unusually, employment

(Mr Carter and Mr Bell-Walker), two clinicians gave evidence and also Mr Jones and his wife. The trial

lasted from 12-20 May 2020 with judgment on 22 June 2020.

Even when the coronavirus (COVID-19) restrictions are lifted, remote hearings are probably here to

stay.

 

Case details

 

• Court: Queen’s Bench Division

• Judge: Richard Hermer QC (sitting as a deputy judge of the High Court)

• Date of judgment: 22 June 2020