Evidence problems continue

In my last piece, I identified the issues with providing evidence to support a claim.  It is the claimant’s burden to establish a case in clinical negligence on the balance of probabilities.  However the need to provide evidence is not simply a matter for the claimant.  Both sides have to provide evidence of any allegations or hypotheses which they are putting forward.

By way of example there is the recent case of Morrison v Liverpool Women’s NHS Foundation Trust .

In essence this was an obstetric case in which the claimant was injured during the course of giving birth.  It involved a delay in dealing with problems as they arose .The issues included the workload and practical running of an obstetric unit. The two experts came before the court to provide opinions on how hospitals work in real life.

The defendant’s expert emphasised the difficulties in running a labour ward, midwifery unit and delivery suites.

The claimant’s expert appears to have approached the matter from “an objective, practical perspective” according to the Judge.

The defendant’s expert (in dealing with what was obviously a difficult situation and a delay) determined that there must be some other additional cause that might affect patient care.  Clearly in an NHS environment there are conflicting factors and additional needs from other patients.  Everyone accepts that there are other patients who may be given priority because of their particular circumstances. This dealing with priorities issue was however reflected in the defendant’s emergency caesarean section guideline, as could be expected.

The suggestion was that the registrar dealing with the claimant was probably busy and certainly in theatre at times during the period in question. As a result of this, he prioritised his workload. placing the claimant somewhat down the list.  This appears to be more speculation than fact.

No evidence of such an extremely busy obstetric unit was put forward in support of this hypothesis.  What records were available contradicted the suggestion that there were additional deliveries. The defendant’s expert in fact was speculating about what possible conflicting and competing priorities there may have been but there was no evidence to support this view. It seems that the expert made an assumption about the workload of the department without actually knowing whether this was the case.

The senior registrar who did provide witness evidence made no reference to a particularly difficult time. There were other members of the on-call team that night, but they were not called to provide witness evidence or give evidence at trial.

The claimant succeeded and the matter went to appeal. One of those grounds of appeal was that the trial judge had failed to take into account the balancing factor of the practicalities of a doctor on the ward.  There appears to have been an assumption that the difficulties in dealing with numerous patients with conflicting priorities at all times was a fact. However, the defendant had not called any evidence to demonstrate that the hospital was busy at the time in question.  It was noted that presumably the defendant legal team knew this was an argument upon which they would rely given the opinion of their expert but had not sought to support it with evidence.  As such there was no reason to interfere with the decision made by the original judge.

This case further supports the contention that unless evidence is produced in support it cannot be assumed that an argument will be successful. Whilst the burden of proof in establishing a case rests with the claimant, this does not mean the defendant has no need to provide evidence in support of their contentions.  Speculation by an expert (even if not unreasonable in its assertions) is simply that. Without supporting evidence, it is of little assistance to the court or indeed to the party.