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Absent Witnesses and Adverse Inferences - Claire Christopholus, Hill Dickinson LLP

19/09/18. Even during an uncomplicated surgical admission, a patient can expect to see a host of professionals, including nursing staff, the junior and senior surgical team and anaesthetists, all of whom are on regular shift rotation. The idea that the failure to call the entire medical cast as witnesses might lead to adverse inferences at Trial would present defendants in clinical negligence claims with an obligation so disproportionate as to be ridiculous.

Fortunately, common sense has prevailed and the Court of Appeal has reaffirmed the principle that the absence of a witness will not necessarily lead to an adverse inference being drawn.

Background

In Manzi v King’s College Hospital NHS Foundation Trust[1] the Claimant invited the Court to draw an adverse inference against the Defendant because it did not call evidence from Dr H, a junior doctor.

The case concerned an alleged failure to identify a piece of retained placenta, which the Claimant argued was substantial, whilst the Defendant averred it was small. Dr H only became involved in the Claimant’s treatment after she had undergone surgery for removal of the placenta, having briefed the Claimant following surgery and informed her that 8cm of ‘products’ had been removed.

It was this statement that the Claimant relied upon in alleging that the...

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