October 29, 2018

Don’t look back in anger…

Judge dismisses claimant’s case and finds their expert was “overly influenced by hindsight”

Acting on instructions from NHS Resolution, Clyde & Co have successfully defended a clinical negligence claim brought against East Kent Hospitals University NHS Foundation Trust.

The claim arose out of the sad death of a patient who had been discharged from A&E the day before his death. It was accepted that the patient should have been admitted to hospital, but there was a dispute between the parties as to what would have happened if he had been admitted. The claimant’s case was based on expert evidence from Mr Jack Collin which was ultimately found by the Judge to be based on hindsight. Mr Collin started his analysis with the end result, knowing that the patient had died from an ischaemic bowel. He then attempted to explain what signs and symptoms would have been present at various stages had the patient been admitted to hospital. Mr Collin suggested that examinations would have revealed tenderness, guarding, rigidity and distension, and it was said that if those symptoms had been identified, doctors would have concluded that the patient was suffering from peritonitis due to an ischaemic bowel, and they would have made the decision to perform an emergency, life-saving laparotomy to remove the section of ischaemic bowel.

The claimant’s theory was however, dismissed by the Judge who concluded that the correct and proper way to approach the evidence was to examine the clinical signs that would have been present at the time, and to consider what decision would have been made on the basis of those symptoms. The Judge noted that when the patient was readmitted on the day of his death, he was examined, and none of the symptoms which the claimant’s expert had said would be present were actually identified, and thus it was illogical to suggest that they would have been present if the patient had been admitted the day before.

In reaching his conclusion, the Judge noted that the claimant’s expert had reached a view which “was overly influenced by hindsight”, and where he had “taken the end result and extrapolated back to establish the signs that he says would have been present at various earlier points”. The Judge found this to be speculative, and contrary to the evidence of what actually happened. It was plainly wrong in law, and it was rightly rejected by the Judge.

In summing up, the Judge stated that the correct approach was to consider what a competent surgical team would have done based on the information that would have been available to them at the time. Sadly, in this case, the inevitable conclusion was that even if the patient had been admitted to hospital earlier, he would not have survived, and therefore the claimant failed to establish causation and the claim was rightly dismissed.