EWJ June 61 2025 web - Flipbook - Page 7
MJF V University Hospitals
Birmingham [2024] – The “Holmesian
Fallacy” And The Limits Of A Put To
Proof Defence
by Alex Stutt, Lawyer Injury & Medical Claims, Anthony Gold
I previously wrote 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.
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.
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.
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:
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.
“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”
MJF v. University hospitals Birmingham NHS
foundation trust [2024] EWHC 3156 (KB)
In the recent case of MJF, the claimant was a 24-yearold 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.
EXPERT WITNESS JOURNAL
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.”
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JUNE 2025
