Getting The Evidence For A Life Changing Injury Claim

What evidence do you need aside from the medical records?

And how do you get it?

Clinical injury claims need a lot of documentary support.  Medical records are the obvious first port of call.   But there are other records which sometimes exist but often are hidden which can support a claim.  Such a case was the Turner & Another v Sheffield Teaching Hospitals NHS Foundation Trust & Another [2023] EWHC 3452.

The claimant was bringing an action against the trust relating to negligence shortly after he was born.  Statements were made by the employees of the trust to the Healthcare Safety Investigation Board at some point after that date.  The Healthcare Safety Investigation Board was a statutory body which was set up to investigate adverse outcomes in clinical practice.

The claimant applied for the statements, which would not normally be made available or indeed confirmed as existing. The matter came before Master Brown.   Master Brown decided to allow an application by the claimant for disclosure of statements made in a separate investigation by the Healthcare Investigation Board. It wasn’t clear whether the statements belonged to the Trust or to the Investigation Board itself. If it was the latter, this would then be an application against a third party, not impossible but not commonly granted.

Applications for disclosure against third parties are an exception rather than a rule

Both the Trust and the Healthcare board challenged the disclosure.

The NHS Trust argued on the basis that these were not documents in its own custody or control.  The Healthcare Board said it could not disclose the statements because that would undermine their further investigation.

The master did hold that the Trust’s employees were not in the Trust’s control and therefore an order had been made in essence against a third party. Applications for disclosure against third parties are an exception rather than a rule.  There are a number of issues to be considered before such an order could be made.

1. The first requirement is to demonstrate that the documents support or adversely affect the case of one or either of the parties.
2. The second hurdle is that the disclosure of the documents is necessary in order to fairly dispose of the claim and save costs.
3. Lastly the court retains a discretion as whether to make an order in any event.

Both the trust and the board thought this would be an intrusive order to make. The court considered there was no doubt that they would assist with the case. The court on balance thought that these were necessary for the case to proceed because they were further recollections and information which may not be available and they were likely to be of interest to the court.

The judge further confirmed that because there is no property in witnesses it was also possible that the claimant’s solicitors could write to the witnesses and ask for a statement although the witnesses would be unlikely to cooperate.   Given that these documents had been prepared and were of intrinsic value to the claim there was no particular reason why they should not be disclosed.

Seek everything you can

These documents are often prepared in an investigation.  Sometimes they are routinely released. Often they are not and are not referred to by the Trust.  Occasionally a claimant obtains the outcome of an investigation but not what was reviewed by the investigating group.  In this instance the solicitors obtained an order which allowed valuable statements to be available for review, in the face of significant opposition.

All documentation is required for a claim but often it is a struggle to get all that is available and needed.  This case highlights what we here practice –   seek everything you can, apply to court if not and keep pressing for anything which might support the claimant’s case.