MJF V University Hospitals Birmingham [2024] – The “Holmesian Fallacy” And The Limits Of A Put To Proof Defence

I blogged previously about the risks of falling prey to the “Holmesian fallacy” in litigation. To recap, the fallacy arises from the following statement by Sherlock Holmes to Dr Watson in the 1890 story The Sign of the Four:

“How often have I said to you that when you have eliminated the impossible, whatever remains, however improbable, must be the truth?”

The fallacy arises from the fact that it is very often impossible to eliminate all possible explanations for an occurrence. Therefore, it is usually a logical leap to say that any given explanation for something is true, just because you have eliminated all impossible explanations.

There is an important lesson to be taken from this in clinical negligence litigation. In any claim, the claimant must prove on the balance of probability that any injury for which compensation is sought was caused by negligence. What the “Holmesian fallacy” tells us, is that it may be insufficient for the claimant merely to rule out non-negligent explanations for the injury complained of. If the claimant cannot establish a positive proof of negligence, the claimant’s case will remain vulnerable to the defence that they cannot realistically rule out all possible non-negligent explanations for the injury sustained and therefore the claim should fail.

However, is it really enough for the defendant simply to throw its hands up and adopt a put to proof defence in every case? A recent decision indicates otherwise.

MJF v. University hospitals Birmingham NHS foundation trust [2024] EWHC 3156 (KB)

In the recent case of MJF, the claimant was a 24-year-old with cerebral palsy. On 22 March 2016, the claimant underwent a PEG (percutaneous endoscopic gastrostomy) feeding tube insertion procedure. On 24 March 2016, the claimant was found unresponsive on the floor by one of her carers. She was rushed to hospital and underwent emergency surgery. The surgeons noted “Necrosis around gastrostomy site”. As a result of the breakdown around the feeding tube, the claimant suffered acute respiratory distress syndrome, sepsis, and multi-organ failure requiring ventilation. It was agreed by both parties that, subsequent to these events, the claimant’s level of functioning deteriorated significantly, and her care needs greatly increased.

The claimant alleged that there was negligence in the performance of her PEG procedure and that this was the cause of the feeding tube breakdown in March 2016. Specifically, the experts instructed on behalf of the claimant were of the opinion that the feeding tube had been placed with excessive tension and that this was the cause of its subsequent breakdown.

The defendant denied liability in full. In its Defence (as amended), the defendant did not provide any alternative explanations for the feeding tube breakdown.[1] The defendant’s position was that the breakdown had occurred because of a “rare but recognised complication” and that the claimant had not proved her case.

At trial, HHJ Emma Kelly was careful to balance the principle that the claimant must prove her case, against the failure by the defendant to offer plausible non-negligent explanations for the feeding tube breakdown. In that regard, she considered the case of O’Connor v. The Pennine Acute Hospitals NHS Trust [2015] EWCA 1244 which states:

“The fact that the defendant had not proffered any plausible explanation for the claimant’s injury consistent with the exercise of due care did not convert the case into one of res ipsa loquitor. Nor did it reverse the burden of proof. Nevertheless, this was a material factor, which the judge was entitled to take into account”

The judge found for the claimant on liability. The judge was careful not to assume that the claimant’s case was correct just because the defendant had not provided a more plausible explanation (and the judge thereby avoided committing the Holmesian fallacy). However, the defendant’s failure to offer any alternative plausible explanations encouraged the judge to look more favourably upon the claimant’s evidence. As the judge noted towards the end of the judgement:

“The absence of any alternative plausible explanation…is a factor that adds weight to the claimant’s experts’ opinion.”

Comment

This judgment is a warning to defendants that a mere put to proof defence may often be insufficient to mount a defence to a claim. Whilst the burden of proof ultimately rests with the claimant, this case indicates that the court may look more favourably on a claimant’s case when a defendant has not identified plausible non-negligent explanations for a claimant’s injury.

[1] The defendant did offer alternative explanations for the breakdown in its first Defence, but these were removed by a later amendment. The defendant’s experts also attempted to raise alternative explanations for the breakdown at trial in cross-examination, but these alternative explanations were rejected as inadmissible by the judge, and in obiter dicta were all found to be “implausible”