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||Neutral Citation Number:  EWHC 3441 (QB)
||Case No: HQ10X01407
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||30 November 2012
B e f o r e :
THE HONOURABLE MR JUSTICE EADY
Philip Jones (instructed by Mackrell Turner Garrett) for the Claimant
Richard Mumford (instructed by Kennedys) for the Defendant
Hearing dates: 15–16 November 2012
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Eady :
- The Claimant, Mr Hani Hussain, is by profession an electronic engineer who formerly worked for the Kuwait Oil Company. He was exposed to noxious gases following an accident at an oil refinery in Kuwait. When he was medically examined a potentially cancerous growth was found. In April 2004, when he was aged only 32, he underwent a cystoscopy. Tests revealed about two months later that he had contracted bladder cancer, and he was advised that regular investigations would be required. He was referred to the King Edward VII Hospital and saw Mr Julian Shah, a consultant urologist, in December 2004. A further cystoscopy was arranged for 5 January 2005.
- The procedure took only a few minutes, from approximately 10.50 to 10.55 a.m. A general anaesthetic had been administered under the supervision of Dr Hamilton-Davies. Unfortunately, when he woke following the operation about 20 minutes afterwards, the Claimant found that he was experiencing severe pain in his left shoulder. For this he was prescribed morphine and again became unconscious. Mr Shah advised him, after spending two nights at the hospital, not to return to Kuwait but to remain in England to recuperate. He was also to see a consultant orthopaedic surgeon, Mr Lambert, in connection with the shoulder pain. He thereafter underwent a number of tests and investigations in relation both to his bladder and to his shoulder.
- On 6 March 2005, the Claimant was admitted to the Princess Grace Hospital suffering from pain in his loin. A CT scan the next day revealed kidney stones, for the removal of which an operation took place on 9 March. On that occasion, his bladder was also checked and found to be free of malignancy. Meanwhile, the shoulder pain was still troubling him. Mr Lambert recommended surgery and for this purpose he entered the St John and St Elizabeth Hospital on 9 April. After two or three days in intensive care, he was discharged on about 12 April. He remained in pain and required constant medication. Although he was able to return to Kuwait that same month, he was placed on sick leave and the oil company was asked to await an "all clear" from Mr Shah before he resumed his duties. For the next six months much of his time was spent in bed on medication.
- Following a CT scan in Kuwait, on 20 November 2005, a further growth was found in the Claimant's bladder. Tests in due course confirmed that cancer had returned. He was given another cystoscopy on 4 February 2006 at the Lancaster Hospital.
- In the same month, the Claimant had to take retirement on medical grounds. The oil company explained that its insurers would no longer maintain cover because of the bladder, kidney and shoulder problems from which he had suffered. Nonetheless, when he returned to England he was able to live in a flat paid for by the company between March and July of that year. He remained in a poor state, still suffering pain, sleeplessness and depression. Another cystoscopy took place at the Lancaster in July. He then returned to Kuwait until February 2007. During this period there seemed to be no improvement and medication continued.
- The Claimant returned to England in February 2007 and had a further growth removed from his bladder. He was able to return home the following May but, before doing so, he instructed solicitors who wrote a letter before action dated 17 May to the King Edward VII Hospital relating to the onset of his persistent shoulder pain while he had been under its care on 5 January 2005. The bladder cancer then recurred, necessitating an urgent operation in Kuwait in August 2007. In March 2008, he returned for a further growth to be removed at the Harlesden Hospital and was not well enough to return home until 4 July 2008.
- Yet again, he returned to the Harlesden Hospital during the following September, when a yet further growth was removed from his bladder. He remained in intensive care for some five days thereafter, partly because of heart problems which had been originally diagnosed in July 2006.
- In March 2009, while in Kuwait, more growths were removed from his bladder and he had to spend 18 days in hospital because of complications exacerbated by his heart condition. Further tests and operations took place, but by January 2010 the Claimant found that he was becoming better able to cope with his chronic health problems and medication. He had finally begun to accept that he would never lead a normal life. Not surprisingly, over the years he was so preoccupied that his prospective claim against the King Edward VII Hospital was not given priority. In due course, however, proceedings were issued in April 2010. Although points were taken on limitation, by the time the matter came before me for trial on 14 November 2012 these were no longer pursued.
- I have rehearsed the history in a little detail partly to explain the delay and partly to make clear that the shoulder injury is simply one aspect of a wider pattern of misfortunes.
- The Claimant had not been aware of any shoulder problem prior to his operation on 5 January 2005 and certainly had not suffered pain from it. Yet he has had continuous pain and discomfort from the moment he recovered from the anaesthetic. He therefore pleads res ipsa loquitur.
- There is no mystique about the doctrine of res ipsa loquitur. It does not represent a principle of law: nor can it be invoked as giving rise to a presumption of any kind. It is simply a conventional way of saying that the facts, as known to the claimant at the time he pleads his case, give rise in themselves to a prima facie case of negligence. This may or may not be upheld at trial, but at the pleading stage it has the effect of compelling the defendant to respond. Once the defendant has done so, the question will be whether the court has been satisfied in the light of all the evidence at trial that negligence and causation have been proved. Each case will depend upon its own facts. In the course of reaching a conclusion, the judge may or may not be prepared to draw the inference originally invited by the claimant. This was fully explained by the Court of Appeal in Ratcliffe v Plymouth & Torbay HA  Lloyd's Rep Med 162, 172-3 (Brooke LJ) and 174-7 (Hobhouse LJ).
- Doubts have been expressed from time to time as to the utility of this doctrine in medical negligence cases, for example by Stuart-Smith LJ in Delaney v Southmead Hospital Authority  6 Med LR 355, at 359. He went on to point out that it would always be open to a defendant to put forward a possible explanation for what had occurred that was inconsistent with negligence. It would not be necessary to demonstrate such a causal explanation on the balance of probability – provided always that it was plausible. Furthermore, a defendant could seek to show that all reasonable care had been taken. This Defendant has sought to pursue both these lines of argument. One should never lose sight, however, of the simple fact that the burden of proof remains on the Claimant throughout: see e.g. Ratcliffe, cited above, at p.174. That is why a defendant is only required to show a plausible alternative explanation in order to rebut a prima facie case.
- In practice, when it comes to medical negligence cases, a claimant is more often than not going to need to buttress his case by expert evidence to the effect that the circumstances relied upon as giving rise to a prima facie case would not ordinarily come about in the absence of negligence.
- Neither of the consultants responsible for the Claimant's care during the cystoscopy, Mr Shah and Dr Hamilton-Davies, was in fact an employee of the Defendant. Nor has either of them been made a defendant personally. The claim is based on the proposition that one or more members of the Defendant's staff (e.g. a nurse and/or porter) must have done something, or omitted to do something, during the period while the Claimant was anaesthetised. More specifically, he invites an inference that one or more of them "pulled hard" on his left arm, left it "hanging off the side of the operating table or the trolley for an extended period", dropped him or allowed him to be knocked or to fall off the trolley. This case based on inference is, strictly speaking, raised as an alternative to res ipsa loquitur.
- What has emerged clearly, and is confirmed in the joint expert report now before the court, is that the unfortunate Claimant had an underlying degenerative shoulder condition prior to his entering the King Edward VII Hospital. It was most unusual for a man of his age and no one knew about it before he first experienced the pain. It only emerged from the subsequent investigations.
- The expert instructed by the Claimant's solicitors is Dr A Hussaini, a consultant physician and rheumatologist at BUPA Cromwell Hospital. The expert relied upon by the Defendant is Mr C J McCullough, who is a consultant orthopaedic surgeon at the Clementine Churchill Hospital. Their joint report, dating from October 2012, contains the following passages:
" … Mr Lambert requested an MRI scan of the left shoulder which was undertaken on the 15th February 2005 and reported by Dr Sarah Burnett. The experts have quoted Dr Burnett's report in their respective medical reports. The acromio-clavicular joint was degenerate and there was a high signal suggesting a degree of instability. The joint was seen to impinge on the musculotendinous junction and the supraspinatus tendon. There was also a substantial subacromial spur. There was fluid in the subacromial bursa and also in the subcoracoid space. There was an extensive high signal within the supraspinatus tendon indicating a tendonitis. These findings indicate chronic degenerative change in the joint (often referred to as the subacromial joint) between the superior pole of the humeral head and the shoulder girdle represented by the lateral clavicle, the acromion and the acromioclavicular joint … There was fluid within the subacromial bursa and evidence of inflammation of the supraspinatus tendon. The findings were typical of an acute impingement syndrome in the subacromial joint, which showed evidence of chronic degenerative change. The MRI scan findings therefore are entirely compatible with the diagnosis of an acute exacerbation of a chronic degenerative condition.
… The experts agree that the cause of the Claimant's shoulder pain was an acute impingement syndrome complicating a pre-existing but asymptomatic degenerative condition involving the subacromial joint. The question arises as to what was the cause of the acute impingement syndrome?
The experts agree that there is a range of opinion. At one end of the scale the experts agree that on occasion degenerative joints can present acutely as an acute arthropathy; this can occur without preceding trauma. Thus even in the absence of trauma Mr Hussain's left shoulder could have become acutely painful. The general anaesthetic would have produced some degree of relaxation of the shoulder musculature, altering the anatomical alignment of the degenerative structures; this could have been the trigger for the onset of an acute arthropathy. Mr McCullough considers, on the balance of probabilities, that this is what occurred.
The experts agree that had Mr Hussain's shoulder been normal at the time of surgery then a very significant force would have been required to injure the rotator cuff muscles. Investigations would have shown a severe sprain or tear of the rotator cuff, but no radiological signs of chronic degenerative change of the subacromial joint.
The experts agree that a degenerative joint can become acutely painful following injury, but the forces required would be very much less than those necessary to injure a normal joint.
Dr Hussaini has noted the arthroscopic findings of Mr Lambert's arthroscopic examination on the 9th April 2005. The coracoacromial ligament was thickened with an anteromedial acromial spur. There was a partially ruptured inferior coracoacromial ligament and a prolapsing acromioclavicular disc.
Dr Hussaini has questioned whether the partial rupture of the inferior coracoacromial ligament and the prolapsing acromioclavicular disc were manifestations of an acute traumatic event i.e. injury.
Mr McCullough is of the opinion that the partial rupture of the inferior coracoacromial ligament had resulted from chaffing upon the anteromedial acromial spur. In other words the partial rupture of the coracoacromial ligament was a further manifestation of the degenerative change of the subacromial joint. The same is true of the prolapsing acromioclavicular disc.
The experts agree that the radiological appearance of acromioclavicular joint osteoarthrosis is not an uncommon incidental radiological finding. Frequently wear and tear change in the acromioclavicular joint is asymptomatic and never gives rise to symptoms. However, Mr Hussain's symptoms were very acute and he has failed to make a good recovery following appropriate treatment; this combination of factors indicates that the degenerative joint would have become symptomatic in any event. Mr McCullough has suggested a period of between one and five years and Dr Hussaini has suggested a period of three years.
Both experts agree that Mr Hussain's shoulder is now in a steady state and any significant improvement in the left shoulder is unlikely. They note that the majority of cases of impingement syndrome of the left shoulder will respond well either to conservative or operative treatment; the fact that Mr Hussain's shoulder has not responded to treatment indicates the severity of the degenerative condition of the joint."
- I conclude without difficulty that something occurred during the period of anaesthesia on the morning of 5 January 2005 to cause the degenerative joint to become acutely painful. It would be too much of a coincidence to suppose that it would have occurred spontaneously that morning in any event. As Mr McCullough put it in evidence, something changed in the biomechanical environment of the joint. It by no means follows, however, that any such change occurred through negligence.
- It is important to remember that no one knew that any additional or special caution might be required in handling the Claimant, since the degenerative changes had been asymptomatic. As the experts agree, the onset of acute pain could be brought about by forces very much less than those necessary to injure a normal shoulder. Thus, it is possible that even careful handling in accordance with good practice could have exerted sufficient pressure. Indeed, the relaxation of the shoulder musculature produced by the general anaesthetic could itself have altered the anatomical alignment of the degenerative structures in such a way as to cause an acute arthropathy. I was reminded here of the observation of Dillon LJ in Delaney, cited above, at p.360:
"I cannot for my part accept that medical science is such a precise science that there cannot in any particular field be any room for the wholly unexpected result occurring in the human body from the carrying out of a well-recognised procedure."
- That is a plausible explanation such as to rebut any prima facie case of negligence. By the time of the joint report, Mr McCullough actually considered this to have been the probable explanation. Dr Hussaini did not suggest that trauma was the likely or probable cause: he merely questioned whether it might have been. Mr McCullough explained in cross-examination that, in most cases where degenerative change leads to an impingement syndrome, this will develop naturally and without being prompted by trauma.
- In this context, I need to address the issue of bruising. If there was a contusion of the skin around the shoulder joint, this could have given rise to bruising within a few hours. A deeper haemotoma might have shown visible signs after a longer interlude. The Claimant has given evidence of observing a bruise himself on the surface shortly after he came round from the anaesthetic. At paragraph 26 of his witness statement dated 1 June 2012 he said that he noticed bruising on waking and at the same time as he spotted that he was wearing a cryocuff (a blue bag containing ice). His account relates to the middle of the day on 5 January. But in cross-examination he suggested he had seen the bruising the following day when the cryocuff was removed. At all events, bruising might suggest that the arthropathy was caused by a knock or blow of some kind rather than merely by the anatomical realignment caused by relaxation. It is thus necessary to consider the full extent of the evidence on this issue.
- As so often, it is helpful to consider the contemporaneous documents. It is important to recall that the Claimant's severe shoulder pain did not go unnoticed at the time. It was carefully investigated, not only to identify the seat of the pain and to attempt to alleviate it, but also in order to determine whether anything had occurred to bring it about in the course of his care or handling by the hospital staff. This was why, for example, an adverse incident form came to be completed the following day by Sara Jones, a registered general nurse, who gave evidence in the course of the trial. It was later confirmed and signed by Sister Isabelle Nichol.
- There was criticism of Ms Jones' evidence on the basis that it consisted largely of hearsay and that she had not been present during any of the critical manoeuvres during and following the period of anaesthesia. Its value, however, is to show what enquiries and records were made at the time. It is recorded, for example, that the Claimant was observed at half-hour intervals. One entry was made recording that there was "tenderness in the left triceps but no associated redness or lumps". If one puts to one side the possibility of dishonest reporting at the time, it seems clear that the Claimant was examined specifically with reference to any surface signs of contusion. There is nothing surprising about that. One would expect nothing different. Indeed, he was examined by a number of people in the course of the day. All were concerned to establish the nature and cause of the pain from which he was suffering. They would be looking out for any sign of injury.
- The first to see him after recovery was Dr Hamilton-Davies, who also gave evidence at the trial. Having prescribed the painkilling drugs, he examined the Claimant at about 11.50 a.m. and addressed the possibility of spasm or cramp. He then referred him for a physiotherapy assessment. He made no record of any surface signs: it is overwhelmingly likely that he would have done so in attempting to identify the cause of the pain. The nursing expert, Professor Palmer, confirmed that it would be most unusual not to record bruising on such an examination – if any were present.
- An ECG was carried out in order to eliminate any cardiac explanation. This was for the obvious reason that cardiac pain can radiate out towards the left arm or shoulder. Nothing was revealed.
- At Dr Hamilton-Davies' request, the senior medical officer Dr Kojo Ndenecho reviewed the Claimant at about 2 p.m. Approximately three to four hours had elapsed by this time since the relevant incident (whatever it was). It was this examination which led to the note recording the absence of "redness or lumps". Dr Ndenecho also confirmed in cross-examination that there were no such signs at the time of his examination. Inevitably, of course, he was refreshing his memory from the contemporaneous documents.
- It is significant that the physiotherapist, Bridget Duffy, examined the Claimant on the afternoon of 5 January, following the recommendation of Dr Hamilton-Davies. She did not give evidence in the course of the trial but her contemporaneous note was before the court. She would surely have looked for bruising, contusions, redness or surface injury in making her assessment. None was recorded.
- The Claimant told me in cross-examination that he had not been seen following his operation on 5 January by anyone other than Mr Shah. That is not consistent with the contemporaneous documents. It thus seems to me that he must be confused in his recollection – possibly because of the sedatory effect of the drug regime prescribed.
- Mr Shah would have seen the Claimant in his own room during his round at about 5.30 p.m. He confirmed that there was no evidence of trauma then. Ms Jones stated that a cryocuff was applied at 6 p.m. to cool the shoulder. Had any bruising been apparent at that stage, it would have been recorded as potentially relevant to the investigations being carried at the time.
- Mr Shah saw the Claimant again on 11 January 2005 and on the following day he referred him by letter to Mr Simon Lambert, a consultant orthopaedic and shoulder surgeon, specifically to address the continuing shoulder pain. Mr Lambert saw him on 28 January 2005 and an MRI scan was requested of the left shoulder. This took place on 15 February when Dr Sarah Burnett (the consultant radiologist) reported that the acromioclavicular joint was degenerative. There was a high signal suggesting instability. It was recorded that there was impingement on the musculotendinous junction and supraspinatus. There was also a substantial subacromial spur (sometimes also referred to as an osteophyte). There was no evidence of a tear but there was an indication of tendonitis. As I have already pointed out, these findings were all picked up in the joint expert report.
- In February 2005, Mr Lambert recorded not only that he had found no evidence (some three weeks afterwards) of bruising or bleeding, but also that the Claimant did not himself at that stage recall any such evidence. It seems clear, therefore, that Mr Lambert had asked him about this. If he had indeed seen evidence of bruising as recently as on either 5 or 6 January, it is difficult to see why he would not have mentioned it.
- At no point in these contemporaneous records is there any reference to anyone having seen bruising or contusion. The first recorded mention came on 14 January 2006 when the Claimant was examined by Dr Hussaini, his expert in these proceedings, for the first time. On that occasion, the Claimant said that he had observed bruising on his shoulder a year earlier.
- This is a very tenuous basis upon which to invite the court to conclude that the trigger for the realignment of the bone and tissue was, probably, an extraneous impact to the surface of the shoulder or that this occurred through negligent handling during the period of anaesthesia. On the totality of the evidence before me, I am not satisfied, on a balance of probabilities, that bruising was present at any material time. That is a significant point in this case, since bruising would at least provide some evidence of a possible trauma. Also, in the context of res ipsa loquitur, it could arguably have given rise to a prima facie case of negligence. Without such a finding the doctrine has no application.
- As I have recorded already, it is agreed between the experts that the forces required to bring about the critical realignment would be very much less than in the case of a normal joint. I am thus driven to conclude that the underlying degenerative changes in the Claimant's left shoulder meant that when the unremarkable relaxation of the muscles took place under anaesthesia there was a realignment in the biomechanical environment of the joint which, in itself, triggered the onset of the acute arthropathy. As Mr McCullough confirmed, the underlying degenerative changes meant that there was no need for trauma to trigger the pain.
- In cross-examination it was suggested to Mr McCullough that he had changed his mind between a letter he wrote on 31 August 2012 and the completion of the joint report at the end of October. I do not myself see any inconsistency. He noted in the letter the temporal link between the anaesthesia and the onset of shoulder pain – without at that stage expressing a view on causation. Later he appears to have come to the conclusion, in the light of everything he had seen, and by a process of elimination, that the most likely explanation for the realignment was the relaxation induced by anaesthesia.
- I do not consider that the evidence here, when properly analysed, gives rise to a prima facie case of negligence. The Claimant simply has to discharge the burden of proving negligence without that initial advantage. Accordingly, the doctrine of res ipsa loquitur would have no application. Because the claim was pleaded in that way, however, the Defendant's case was presented by way of having potentially to rebut a prima facie case. Its evidence would have succeeded in rebutting any prima facie case of negligence by reference to the plausible alternative I have identified.
- I go on to consider further the second limb of the rebuttal argument; namely, the positive case that all reasonable care was taken of the Claimant in his handling prior to, and following, the cystoscopy of 5 January 2005.
- It is quite possible that a hospital porter was involved in handling the Claimant at some point during his transfer to and from the theatre. It is true that no such person has been called to give evidence; nor yet was the unidentified nurse who fulfilled the role of "runner". Yet the mere fact that not every person in attendance was called does not mean that I should give less credence to those who were.
- I attach particular importance to the evidence of two witnesses who were present and participating in the transfer. I have already referred to Dr Hamilton-Davies who, as the anaesthetist, had responsibility for securing the airways and was, at all material times, no more than two or three feet from the Claimant's head. I find it impossible to accept that anything untoward would have happened to the Claimant, while under his care and supervision, without it being observed by him. If any such mishap occurred, he would have noted it meticulously.
- Also present was Mr Christopher Scrivener, who gave evidence at trial. He is, and was, a very experienced general nurse who qualified in February 1982. He is familiar with the requirements when handling unconscious patients. The standards are general and acknowledged throughout the country, although some hospitals (as here) have their own individual policies setting out good practice. Mr Scrivener gave the following evidence in the course of his witness statement:
"Shortly before 10.45 hours the Claimant was transferred from the anaesthetic room next door into theatre without incident. I was already in theatre. The practice of the Hospital was regimental in all aspects of care. Extreme care was taken when transferring patients from the anaesthetic trolley to the operating table. A PAT slide would have been used, with a minimum of four people involved. Dr Hamilton-Davies, as Anaesthetist, would have been positioned at the Claimant's head, one person would have been at the Claimant's feet with at least one other person at either side. The Claimant's arms would have been controlled on transfer and not handled or left to hang at any stage. Particular care was always taken to ensure that no part of the Claimant's body was bumped during the transfer.
Once on the theatre table, the Claimant's legs would have been placed into Lloyd Davis stirrups. The Claimant's arms were not left hanging. It was usual practice that a patient's arms would be folded across their chest and carefully secured by wrapping their gown around them. The Claimant was supported by Gel Arm Supports which was optimal practice, particularly for such a short procedure. The Claimant was appropriately positioned. There was no possibility that the Claimant's left arm would have been allowed to hang without it being noticed by a member of the surgical team and noted in the records. The record-keeping at the Hospital was always meticulous.
The procedure began at 10.45 hours and was completed by Mr Shah at 10.55 hours. The Claimant was transferred back to the trolley in the same way as he had been transferred from it. The Claimant was then accompanied by Dr Hamilton-Davies and myself to recovery without incident at 11.00 hours. This was adjacent to the theatre. I did not see the Claimant again subsequent to the operation."
I find Mr Scrivener's evidence credible and compelling. Again, I cannot believe that he would have witnessed a knock or blow to a patient for whom he was responsible without his taking it seriously and recording it.
- His evidence also contained the following passages:
"I confirm that the Claimant was not dropped during the course of transferring between the trolley and the operating table in theatre or when transporting the Claimant to and from theatre. Had the Claimant been dropped in the anaesthetic room or during the transfer between the anaesthetic room and theatre, I would have heard it through the double doors connecting the two rooms and immediately offered to assist. It would also without doubt have been documented in the Claimant's medical records. It was the strict practice of the Hospital to fully document any untoward occurrence, however minor this may have been. I have seldom worked in a hospital with such good practice and systems of reporting and recording incidents.
I can categorically say that nobody moved or otherwise handled the Claimant by pulling on his left arm, hard or otherwise. This would not have happened at the Hospital or in my sight in any situation. No patient under anaesthetic can be moved without the approval of the anaesthetist, and the procedure for transferring patients from the anaesthetic trolley to the operating table never involved pulling on a patient's limbs.
I have been involved with many hundreds of cystoscopy procedures. I have not known of a single patient to suffer injury at the Hospital through mishandling during a cystoscopy, or any other procedure. This was an entirely routine and uneventful procedure. The Hospital staff and I were well rehearsed in carrying out this procedure and were extremely precise in both our practice and our record-keeping.
If there were any complications or incidents, these would have been recorded in the records or in the Incident Report. The Hospital had a strict Policy of recording any incidents, which we all adhered to. There is no doubt that any fall, mishandling, incorrect positioning or other problems would have been recorded if they had occurred. No such complications occurred."
This evidence is cogent and persuasive and was not in any way undermined in cross-examination.
- Anusha Moodley is an operating department practitioner who was working at the King Edward VII Hospital at the material time. She assisted Dr Hamilton-Davies during the operation and would have first encountered the Claimant when he was handed over to the theatre team in the anaesthetic room. She was thereafter present throughout when he was on the trolley, transferred to the operating table and afterwards transferred back on to the trolley and thence to the recovery room. She said that correct handling procedures would have been followed and any adverse incident would have been carefully recorded. This would include any knocking, bumping or pulling of the patient's arm.
- Objection was taken to some of Mr Shah's evidence. Specifically, in some parts of paragraphs 22 to 24 of his witness statement, he expressed himself generally in words that might appear to be opinion evidence or to be pre-empting the court's conclusion. I will naturally ignore those passages, but it does not invalidate what he had to say about hospital practice at the time. For example, he said this at paragraph 23:
" … Any indication of the Claimant being physically injured during the transfer would have resulted in an Adverse Incident Report being completed and/or myself being informed. The Hospital are proactive in the reporting of all incidents. If there was an incident whilst the Claimant was under anaesthetic, an Adverse Incident Report would have been completed and/or a reference in the medical records would have been made. The fact that an Adverse Incident Report was prepared following the Claimant waking in pain after the surgery illustrates this."
I see no reason to exclude that evidence. At paragraph 22 he also said:
"The Claimant was transferred by the Pat-slide with a drawer sheet and board. The left arm was controlled in the drawer sheet at all times. There would have been no physical pulling or manoeuvring of the Claimant's limbs."
I see nothing inadmissible in this evidence either. It seems to me to be credible and consistent with that of other witnesses.
- Objection was also taken to paragraph 14 of Dr Ndenecho's statement, which appears to stray into opinion evidence or speculation. That does not seem to me a good reason, however, to discount any of his other evidence.
- All the relevant witnesses spoke of the hospital's rigour in keeping meticulous records in the event of any untoward incident liable to affect a patient's welfare. I see no reason to reject that unanimous evidence, and indeed the compiling of an adverse incident record by Sara Jones, subsequently endorsed by her superior, bears this out.
- No such incident was recorded here. If there had been an occurrence in the presence of any of the witnesses to whom I have referred, I cannot believe that they would have failed to record it in accordance with the hospital's practice or that they would have been party to any sort of "cover up". Nor was anyone directly accused in cross-examination of any such omission.
- It was not put to any of these witnesses that he or she had observed any impact on the Claimant in the course of his handling or transfer; nor that he or she did anything which could have caused surface contusion or other injury. In particular, it was not put to Dr Hamilton-Davies who was at the Claimant's head throughout the relevant period. If such an incident had occurred, he could hardly have missed it. Thus, the case appears to depend on the need for the court to draw an inference that some negligence, on someone's part, must have occurred, even though it was not witnessed or recorded at the time. That is very difficult to maintain in the light not only of the evidence of the factual witnesses, but also of the conclusions to which I have referred in the joint expert report.
- It was suggested by the Claimant in the course of his evidence that he heard Mr Shah shouting at members of staff and telling them to take more care in handling him. Obviously, this could only have occurred at some point when he was conscious. Having heard from Mr Shah and the other witnesses who were present, I do not find this credible. Mr Shah was in the operating theatre. I do not believe that the Claimant would have been conscious while in the theatre. Nor do I accept that Mr Shah shouted at anyone, in any event, or had any reason to lose control of himself.
- I have concluded that the Defendant's evidence has demonstrated convincingly that all reasonable care was applied and that the operation took place routinely and without any untoward incident. Although there was a realignment of the Claimant's musculature at some point while under anaesthetic, I am satisfied that this occurred without anyone present being aware of it. No one knew, or could reasonably have been expected to know, of the unusual degenerative condition in this young man's shoulder. It predisposed him to tendonitis and to the unfortunate impingement syndrome from which he suffers.
- In the result, I am bound to dismiss the claim in negligence, for which there is simply no convincing support.
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