EWJ 60 April 2025 web - Journal - Page 48
Medical Malpractice
In 2024, it was expected that the government would introduce fixed recoverable costs in lower
value pre-action clinical negligence claims to drive early resolution and lower costs.
The deadline for implementation has repeatedly
slipped, with implementation originally planned for
April 2024 and then October 2024. The Civil Procedure Rule Committee did not amend the rules as
promised in the summer of 2024, and the future date
for implementation remains unclear.
credibility becomes crucial. In Deakin-Stephenson v
Behar & Anor [2024], the outcome hinged on how the
witnesses presented and how their accounts compared
with the contemporaneous evidence.
Background
The claimant collapsed with acute abdominal pain
while at the hairdressers. She was taken to A&E and
was found to have developed diverticulitis. Attempts
were made to treat her conservatively, but her disease
progressed. Eventually, she collapsed with severe abdominal pain and required an emergency Hartmann’s procedure. She continued to suffer chronic
abdominal pain and PTSD.
The 17th Version of the Judicial College Guidelines
on general damages was published in April 2024.
These provided a 22% average uplift on the previous
edition to take inflation into account.
Various developments combined to embed alternative
dispute resolution (ADR) into the claims process. In
the Japanese Knotweed case of Churchill v Merthyr Tydfil County Borough Council, the Court of Appeal found
that the court had the power to stay proceedings to
require parties to attempt a ‘non-court-based dispute
resolution process’. The Civil Procedure Rule Committee produced draft amendments that specify that
the court may order the parties to participate in ADR.
Ms Deakin-Stephenson claimed that following her
admission, she and her family repeatedly asked the
surgeon, Mr Behar, to refer her for a second opinion
from a specialist colorectal surgeon. Mr Behar failed to
do so, ignoring and obstructing reasonable requests.
The claimant argued that if Mr Behar had referred
her to a colorectal specialist, that surgeon would have
recommended a Hartmann's procedure earlier, which
she would have agreed to. The agreed expert evidence was that an earlier Hartmann's procedure
would have avoided the later catastrophic deterioration and emergency life-saving surgery.
In the landmark case of Paul and Others v Royal Wolverhampton NHS Trust, the Supreme Court significantly
restricted the scope of secondary victim claims for psychiatric injury. The majority held that a relationship of
proximity did not exist in such cases. The court concluded that doctors are not required to have in contemplation members of a patient’s close family who
might be psychologically affected from witnessing the
effects of a disease that the doctor ought to have
diagnosed and treated.
Witness performance
Faced with an apparently irreconcilable factual
dispute, the judge’s assessment of the witness's credibility was central to determining the dispute.
In December, the Lord Chancellor announced an
increase to the Personal Injury Discount Rate from 0.25% to +0.5%. This is the first return to a positive
rate since 2017 and the change will reduce the cost of
claims to insurers and the NHS.
While Ms Deakin-Stephenson had in-depth knowledge of the information in the trial bundles, she was
criticised for answering “in speeches” and for
occasional sarcasm.
A key case to watch out for in 2025 will be CCC v
Sheffield Teaching Hospitals NHS Foundation Trust where
the Supreme Court will decide whether the child
claimant, is entitled to recover for loss of earnings in
the “lost years” (i.e. the period between the end of her
actual life-expectancy and her uninjured life-expectancy).
There were also similar spelling errors in the
statements of the claimant and her witnesses which
the judge found could not be sensibly explained
except through consultation and collaboration.
The claimant had sent an email raising various
complaints after the surgery. Notably, her complaint
did not raise the two central issues that she advanced
in her claim (how she ended up in private care, or why
a request for referral to a colorectal surgeon was
refused).
Articles in this section:
l Witness credibility: A ‘five star’ review.
l Personal injury discount rate reduces the cost of
claims to insurers and the NHS.
l Permission given: A late change of experts did not
amount to expert shopping.
Her credibility was further undermined by the fact
that a month after her discharge, she had posted online a five star review of Mr Behar describing him and
the hospital as “amazing”.
Witness credibility: A ‘five star’ review
Author: Jonathan Fuggle
When there is a significant dispute on the facts, witness
By contrast, Mr Behar accepted that some of his
entries were unclear. Although his record keeping was
poor, the records that did exist were important in as-
EXPERT WITNESS JOURNAL
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APRIL 2025
