PI Brief Update

Legal Mind Case and Commentary No 30: The Joint Report and Agendas - Koch HCH, Sutton E, Fernandez-Ford L and Jansen F, (June 2020)

Background:

A clinical negligence case concerning adverse events during surgery raised issues of how expert evidence was provided and the elements which were not helpful to clarifying issues for the judge.

Case: Saunders v. Central Manchester University Hospitals NHS Foundations Trust [2018 EWHC 343 (QB)

A 60-year-old claimant sought damages for personal injury arising out of alleged clinical negligence during surgery to reverse an ileostomy at Trafford General Hospital in March 2020. The claimant’s case was that the surgery was negligently performed resulting in damage to the blood supply to the bowel. The outcome was removal of colon, a permanent ileostomy, protracted infection and further surgery.

Each party called eminently qualified experts in colorectal surgery, who differed on causation. Mrs Justice Yip found the experts to have very different styles (robust/unwilling to reflect on alternative views vs. reflective/vague). Resolving the issues required detailed analysis not a dependence on stylistic impressions.

Despite clear reports, the joint statement was ‘disappointing’ due to the lack of a clear and concise agenda. The presence of two agendas, and repetitive questions, lack of focus and a 60-page joint statement was not helpful.

The issues emerging from the expert evidence included:

1. The temporal association between surgery and symptom onset

2. The proximity of the operation site to the affected area

3. The claimant’s past medical history and risks

4. The possible mechanisms of injury.

The judgment was unable to conclusively exclude the possibility of certain rare events suggested by either expert. The effect of the expert evidence is that there are two competing explanations, namely surgical injury or natural causes, neither of which has been previously reported in the medical literature as a complication causing catastrophic injury to the colon following an ileostomy reversal.

The claim failed and was dismissed.

Commentary:

Further to other discussions about the use of joint statements (Koch 2016, 2018), it would appear from experience that the success of joint statements can be particularly affected by personality and logical/use of language skills.

For a joint statement to be of use to the Court, and the judge’s deliberations, it needs to be more concise and logically acute than the two original expert reports, otherwise it offers no additional value over and above the original reports.

For the summarising process to stand a chance of succeeding, the experts need to collaborate on a working agenda, or alternatively the two parties need to do this collaboration and provide the experts with a single agenda, albeit with some additional issues or questions from each side. The role of the judge is crucial with insuring the joint statement takes place within an efficient time scale.

Within the joint statement and then, if and when, the experts are questioned in Court, the experts need to argue their corner and be open to discussing the merits of alternative views, in a concise and logical manner.