Expert Witness Journal Issue 66 April 2026 - Flipbook - Page 11
The natural history of the injury and its recovery
should be clearly elucidated in any reports, and clear
comparison drawn with the evidence on the relevant
contributory factors.
The “consolation” prize defence
Too often, contributory negligence appears to be
a consolation prize when breach is di昀케cult to deny
and causation is strong. It reduces quantum without
confronting the clinical record’s weaknesses:
thin documentation, vague safety netting, slow
escalation, or one size 昀椀ts all pathways for high risk
injuries. That move may be tactically attractive but
it does not prove good medicine, and it is rarely
persuasive when the expert analysis is rigorous.
4.
Adjustment: What changed in the plan because
of the risk factor? (follow up, thresholds,
strategy)
5.
Predictability: Was the behaviour predictable
given pain, context, and human factors?
6.
Materiality: What is the plausible proportion of
outcome attributable to the behaviour?
7.
Alternatives: Would the same outcome likely
have occurred anyway given injury severity and
care decisions?
If these answers are weak, contributory negligence
is likely a shortcut rather than a sound conclusion.
Conclusion: raise the standard
A composite anonymised example
My view is simple - risk factors impose a duty to adapt
care. They do not grant permission to downgrade
it, nor do they provide a ready made defence when
complications arise. Patient behaviour matters,
but so do decision-making, quality of intervention,
pathway design, communication, follow up plans,
and clinical judgment under pressure.
A 61-year-old man falls from a ladder at work and
sustains a hip fracture. Surgery is undertaken,
and it is noted during the procedure that there is
signi昀椀cant comminution. What is not noticed is that
the 昀椀xation construct is suboptimal, meaning that
the chosen implant is at higher risk of failure. The
patient is discharged with no further follow-up and
re-presents the following year with agonising thigh
pain and minimal ability to bear weight.
Contributory negligence is not “low hanging fruit”.
It is a narrow, evidence based conclusion reached
after we have asked the harder questions about
standards, systems, and decisions.
An X-ray showed that the fracture hadn’t united, the
bone density of the proximal femur had plummeted
and that the 昀椀xation had failed. The patient went on
to need complex total hip replacement, from which
they had an uneventful recovery that nevertheless
precluded a return to work, occasioned 2 years of
gratuitous care and left them needing mobility aids
at all times outdoors.
Professor Piers Page is a consultant orthopaedic
trauma and limb reconstruction surgeon at Swansea
Bay University Health Board, National Clinical Lead
for Trauma in the Wales Orthopaedic Network
and Specialty Lead for Musculoskeletal Disorders,
Health and Care Research Wales. He holds the
Diploma in Legal Medicine, with Distinction, and
LLM Healthcare law and medical ethics.
A letter of rebuttal to the breach and causation
report noted the bone resorption and asserted that
it demonstrated the Claimant’s smoking “rendered
union impossible.” On this basis, it was argued that
the choice of implant and the standard of surgery
were irrelevant.
His caseload is managed by Emily Fallick at TLA
Medicolegal (emilyf@tla-medicolegal.com).
The Claimant’s expert was able to demonstrate
clearly from the literature that the contribution of
poor 昀椀xation with the wrong implant, and failure
to provide enhanced follow-up to a high-risk patient
was an order of magnitude more contributory than
C’s smoking.
A practical checklist for experts and solicitors
When contributory negligence is asserted, test it
against the record:
1.
Speci昀椀city: Is the behaviour precisely described,
dated, and evidenced?
2.
Communication: Were risks and red 昀氀ags
explained in plain language and documented?
3.
Accessibility: Was the route back to care realistic
(timely, reachable, a昀昀ordable)?
EXPERT WITNESS JOURNAL
9
APRIL 2026
