The case of Vinegrad highlights how important the preparation of a case and expert evidence is to the final outcome as well as the complexities and considerations of remote hearings.
On 14 August 2012, the Claimant suffered a serious head injury when struck by a car in China. He required intubation and ventilation for one week before being returned to the UK once conscious and medically stable. On arrival in the UK, the Claimant attended the First Defendant’s Emergency Department and the need for urgent neurosurgical input was excluded. He was referred to the Second Defendant for an appointment with his local neurosurgery team in Hull but, in admitted breach of duty, no appointment was provided by the Second Defendant. While waiting for it to come through, the Claimant was referred by his GP to the Third Defendant’s mental health assessment clinic, which in turn advised that the Claimant await his appointment with the Second Defendant.
Unfortunately, on 8 May 2013, the Claimant suffered an acute psychotic episode and required detention under section 2 of the Mental Health Act 1983, and thereafter brain injury rehabilitation. At trial, his parents and sister gave evidence as to marked behavioural changes that they had witnessed in the Claimant in the months prior to his breakdown, but which had gone unheeded by the Second and Third Defendants.
The Claimant discontinued his claim against the First Defendant but averred that, had he received his appointment from the Second Defendant or been adequately assessed by the Third Defendant in the interim, the behavioural changes evident to his family would have been identified. This would have led to psychiatric referral and antipsychotic medication which in turn would have prevented the breakdown in May 2013.
The trial was conducted over four days, entirely by MS Teams (judgment handed down separately). It involved examination of three pairs of experts as well as emotive and traumatic evidence from the Claimant’s family. HHJ Cooper noted how challenging the process had been, despite very considerable efforts by the parties to (1) narrow the scope of the trial to the core issues, including by making reasonable concessions on the cases advanced; (2) provide the Court with focused and easily navigable trial bundles, including a separate medical records bundle; and (3) assist the witnesses in cross-examination with opposing counsel screen-sharing records that witnesses were being asked to consider.
Balancing the Claimant’s family’s witness testimony, the medical records and the expert evidence, HHJ Cooper was not satisfied that there had been identifiable psychotic symptoms prior to the Claimant’s breakdown. Although there were behavioural changes witnessed by the family, they were consistent with the known frontal lobe injury and would not have led to a psychiatric referral or antipsychotic medication.
Although inevitably fact-specific, in reaching his conclusions, the Judge bore in mind the observations of Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm) in relation to the “unreliability of human memory”. Although the Claimant’s family’s evidence was accepted to be honest and their best effort to recall events some 7-8 years earlier, that had to be balanced against the detailed contemporaneous notes made by the Third Defendant on its assessment, which were not indicative of psychotic symptoms.
The Claimant’s case was also not assisted by the judicial assessment of his psychiatric expert, who was considered to be defensive as to his opinion and prone to giving meandering answers. More worryingly, he (1) had not reviewed all relevant mental health records before providing his report, despite saying that he had read the Defence which had pleaded references to them; and (2) he was unaware of the detail of the Bolam test.
The Judge held that the Third Defendant had not breached its duty of care in its assessment of the Claimant; and even if the Second Defendant had provided the required appointment, it was unlikely to have led to psychiatric input and the prevention of the Claimant’s breakdown and mental health detention.
Robert Dickason, a consistently ranked leading junior in clinical negligence, at Outer Temple considers the case:
This was a very sad case for the Claimant’s family, who had lost their son as they knew him and had to endure a trial by MS Teams recounting the detail of his deterioration. Three points stand out.
Firstly, real efforts had been made by the parties to facilitate a remote trial with three pairs of experts and emotive witness evidence: this was a case where many would have taken the view that it could not be satisfactorily dealt with remotely. Of particular note was the willingness of the parties to concede points in order to restrict the trial to the genuinely key issues. It is a good example of what can be achieved, providing that all parties actively and sincerely cooperate to that end.
Secondly, the Gestmin observations (and related authorities) on the unreliability of human memory when in conflict with contemporaneous records – a very common feature of clinical negligence trials – continue to be a powerful weapon in the defendant armoury and have to be weighed carefully in the balance when advising on the merits.
Thirdly, the criticisms of the Claimant’s psychiatrist in terms of poor preparation and defensive/evasive oral evidence do not make for easy reading. Even if breach of duty is not in issue, all medico-legal experts need to be familiar with the Bolam test, which is part of “a basic understanding of the legal principles” (para 72)!
