Burden of proof in medical negligence claims

Field v Medway NHS Foundation Trust [03.07.19]

Udgivelsesdato

28-11-2019

Ydelser

Sektorer

This case concerned the adequacy of a caesarean section (CS) repair leading to abdominal complications. The Trust successfully defended a claim against the obstetrician for negligence in carrying out the repair. Kennedys represented the Trust.

Background

The claimant gave birth to her second child on 1 September 2011 following a planned CS. As set out in the judgment, “the CS and birth went smoothly and a healthy son was born”. Following the CS, due to divarication of the rectus muscles in the abdomen, the claimant suffered considerable pain. The claimant’s poor outcome was not in issue and quantum was agreed pre-trial.

The claimant asserted that the severe divarication was caused by a negligent repair of the caesarean section incisions and, in particular, the repair of the incision in the rectus sheath. The claimant alleged the only explanation for the failure of the rectus sheath was poor surgical technique.

The claim was defended on the ground that the divarication is a recognised complication of pregnancy (as opposed to repair) and that the claimant’s subsequent problems have not been caused by negligence of the surgeon who repaired the CS incision.

Decision

The claimant’s claim was dismissed, with judgment for the Trust. The court held that the claimant had not proved negligence on the part of the obstetrician.

Paragraphs 39 and 40 of the Judgment set out some of the key aspects of the evidence of the obstetric experts (instructed by both parties), as follows:   

  • The obstetric experts agreed that a poor repair of the rectus sheath could be a significant contributor to or cause of symptomatic divarication. In order for them to decide if this was likely, they stated that they would need to know the site and length of the divarication, whether at the wound site or distant from it.
  • They said that they were not confident of the site or level of the divarication in this case. They agreed that poor repair was not the usual cause of divarication.
  • If the divarication was predominantly below the level of the umbilicus and extended to the level of surgical entry into the abdomen at CS, then it was agreed that a poor repair could have contributed to the significant divarication and vice versa.

The plastic surgeon, instructed by the claimant, had advised in the joint statement that the divarication ran the length of the rectus muscles and that there was no localisation around the site of the CS incision. There was no evidence therefore that a failure of the CS wound was a specific causative factor in the injury. The expert sought to clarify his position by way of a supplemental statement and by giving evidence at trial, however, His Honour Judge Simpkiss considered the further explanations were “transparently an attempt to resile from his clear opinion expressed” previously, which led “logically, to the claim failing”.

As to the obstetric experts, the Judge considered both experts “entered, to an extent, the realm of speculation and strayed from the path of logic” which “is not a basis for making a finding that the Claimant has proved that the injury was caused by negligence”. The Judge adding that the problem for both experts “is that neither can point to any reliable evidence to show that the site of the divarication was localised to the CS scar”.

Comment

It is for the claimant to discharge the burden of proof. Whilst the Judge was not convinced by the Trust’s expert witness, he was also not convinced by the claimant’s expert and ultimately the claimant had not discharged the burden of proof.