Defendant obtains Summary Judgment in Clinical Negligence Claim: Hewes v West Hertfordshire Hospitals NHS Trust & Ors [2018] EWHC 1345 (QB)

In Hewes the Third Defendant (GP) was able to obtain Summary Judgment against the Claimant who had suffered with Cauda Equina Syndrome.

Update: The Master’s Decision in this claim was successfully appealed by the Claimant on 18 October 2018. An updated article will follow.

It is fact specific but it shows that when a Defendant makes an application for summary judgment, provided it is submitted with clear evidence, a Claimant has to put in clear evidence in response. In that situation a general assertion by experts that they maintain their view on liability is insufficient. There is a need for clear evidence opposing the application for summary judgment.

During a telephone consultation the Third Defendant, a GP, had noted the Claimant’s symptoms and advised he attend the Accident & Emergency Department at Watford General Hospital for urgent review.

The Claimant had alleged the Third Defendant failed during the telephone call to refer him directly to the on-call Orthopaedic team at Watford General Hospital thereby by-passing A&E and avoiding delay caused by assessment and referral to the orthopaedic team.

Master Cook’s nineteen-page Judgment can be found at http://www.bailii.org/ew/cases/EWHC/QB/2018/1345.html. Litigants may wish to consider the factors which influenced the Master’s decision to enter Summary Judgment for the Third Defendant before considering their own application for Summary Judgment.

Points of note

1. The Third Defendant had applied for Summary Judgment after the first CCMC with the application being heard after exchange of witness statements. The Third Defendant had also disclosed their expert report on breach of duty of care, before the Court ordered due date, to ensure it was before the Court during the hearing.
2. The Claimant’s solicitors had not disclosed their expert report. They had instead served a short letter from their GP expert which confirmed he, having reviewed the Defence, remained supportive of the claim as set out in the Particulars of Claim. The letter did not contain a critique of the conclusions reached in the Third Defendant’s GP report.
3. Master Cook was hesitant to accept the Third Defendant’s application given the hearing of an Application for Summary Judgment should not amount to a mini-trial. It was of great benefit to the Third Defendant that the facts of the telephone consultation were not in dispute, a transcript of the call being before the Court, so there was no need for cross examination of the lay witnesses on those issues.
4. The GP report disclosed by the Third Defendant was considered by Master Cook in detail, he held that it was “logical and credible evidence from an appropriately qualified expert and this evidence is sufficient to raise the evidential burden requiring the Claimant to prove some real prospect of success or some other reason for a trial.” [Paragraph 50 of Judgment].
5. The expert evidence disclosed by the Claimant was considered insufficient and did not prove there was a real as opposed to a fanciful possibility that the Claimant’s expert evidence would support the claim. At Paragraph 52 of his Judgment Master Cook made clear the mere assertion that a supportive expert’s report will be served would not suffice. The fact the due date for exchange of expert evidence was yet to pass did not rebut this position.
6. Whilst the Claimant sought to draw comparisons with one of the leading cases on Cauda Equina Syndrome (Oakes v Neininger and Others [2008] EWHC 548 (QB)) Master Cook held it was “not helpful to rely on the facts of other cases”. He held that the evidence and the submissions before the Court for the Claimant did not raise realistic or credible grounds to undermine the opinion of the Third Defendant’s expert GP evidence.
7. Master Cook found no other compelling reason the issue should go to trial, instead concluding the trial judge would in the absence of the “unnecessary distraction” of the claim against the Third Defendant be able to focus on the case against the other two Defendants. That would in turn streamline the trial and save on costs.
8. Whilst the Third Defendant’s application also sought Summary Judgment on Causation (details of which I have not set out in this note) Master Cook considered there was a potential issue of fact which could be resolved in the Claimant’s favour, even if he himself considered that unlikely. On that basis Master Cook stated he would not have entered Summary Judgment on Causation.
9. Master Cook’s judgment provides an overview of the case law on Summary Judgment and is a useful reminder for those considering such an application.
10. The threshold to obtain Summary Judgment in clinical negligence claims remains high. If you know when serving a Defence that the Claimant has not obtained expert evidence to support the Particulars of Negligence then the Claimant may well be on the backfoot when served with an application for Summary Judgment. That would not prevent them improving their hand before the application is heard and it is important to remember an evidential gap on the part of the Claimant alone is insufficient. The Applicant must first adduce credible evidence in support of their application in order for the Respondent to become “subject to an evidential burden of proving some real prospect of success of some other reason for a trial. The standard of proof required of the Respondent is not high.” (The White Book, 24.2.5)
11. In Hewes the Third Defendant’s application was helped considerably by the lack of debate as to his telephone consultation with the Claimant, which was his only involvement in the facts of the claim. Had there been a dispute as to the Claimant’s presentation or the advice provided then it may be the application would not have been on such a strong footing.