All that glitters is not gold

Clyde & Co LLP was instructed by NHS Resolution to represent the Defendant in the case of Ms Jacqueline Beatty v Lewisham & Greenwich NHS Trust [2023] EWHC 3163. The Claimant’s case was dismissed at trial by Mr Justice Jay and serves as a reminder that one must select an expert carefully even where that expert has a history of a very distinguished career in the NHS and private practice.

Background

A link to the judgement is here. In April 2016 the Claimant was an in-patient at the Queen Elizabeth Hospital, Greenwich which was run by the Defendant. It was her case that a vascular surgeon failed to diagnose an embolism. By the time this was diagnosed it was too late to save the Claimant’s right leg, and in May 2016 a below-knee amputation was carried out at a different hospital.

The main issue before the Court was whether it was mandatory to arrange a CT angiogram. The Claimant relied upon expert evidence from Mr John Scurr, Consultant Vascular Surgeon whereas the Defendant relied upon expert evidence from Mr Jonothan Earnshaw, Consultant Vascular Surgeon.

Causation had been conceded by the Defendant and damages agreed, subject to liability.

Andrew Hannah, Senior Associate in our healthcare team, instructed Anna Hughes of 2 Temple Gardens to represent the Trust at trial.

Outcome

The case was heard in the High Court on 4 and 5 December 2023; judgment was handed down on 8 December 2023.

The Court found that the Defendant’s surgeon was a thoughtful, careful clinician who did not rush to judgment in the Claimant’s case. Whilst a diagnosis of vasculitis was incorrect, it was considered that it was reasonable to have concluded the Claimant’s presentation was unlikely to be embolic and / or that the chances of this being an embolic presentation were very low.

In the circumstances it was not mandatory for the Defendant surgeon to have ordered a CT angiogram which would have ultimately diagnosed vascular disease and avoided the amputation.

Expert evidence

The Court was critical of Mr Scurr. Several flaws in his evidence were identified which included:-

• Wrongly asserting that it was not clear that a vascular assessment ever took place in his original report;
• Mistaking one vascular surgeon for another in the joint statement;
• Providing answers in the joint statement which were unacceptably terse;
• Failing to analyse anywhere the witness statement of the Defendant’s surgeon; and
• Failing to identify the key issue in the case or to supply any reasoning directed to his conclusion that the standard of care was inadequate

It was also said by the Court that Mr Scurr showed a degree of partisanship.

By contrast Mr Earnshaw was said to be a measured and careful witness who made concessions where appropriate and answered questions directly and without emotion. In virtually all respects, his evidence was said to be compelling and could immediately be accepted.

Summary

We consider the common-sense and non-legalistic approach set out in paragraph 89 of Mr Justice Jay’s Judgement is eminently sensible.

This case serves as a reminder of the importance of expert selection. One must not only ensure as far as possible that an expert is suitably qualified but also that throughout the case, whether in the served report, joint statement or in the witness box, he or she gives detailed, accurate and cogent evidence.