The case of Brint, which largely turns on the evidence, demonstrates that Claimants who are “wholly unreliable” are not necessarily fundamentally dishonest.
The Claimant’s claim arises following an extravasation injury following a CT scan with contrast carried out at the Defendant’s King George Hospital. The claim is for negligent treatment, alleging that proceeding without the Claimant’s informed consent as to the risks of the scan amounted to assault.
The Claimant alleges that as a result, she developed Complex Regional Pain Syndrome (CRPS), Post Traumatic Stress Disorder (PTSD), and clinical depression. In this case liability, causation, and quantum were comprehensively disputed. In addition, the Defendant alleges fundamental dishonesty.
The undisputed facts are that on the 13th December 2010, the Claimant underwent a nerve root block injection using CT scan localisation at the Royal National Orthopaedic Hospital (RNOH). On the 25th June 2012, she was seen at RNOH by Dr. Berman who noted “her current symptoms that are giving her most bother are the result of an L4 root block (para 21).
In November 2013, the consequences of the injection became increasingly concerning to the Claimant, leading to a private referral for a further opinion on her symptoms. On the 9th December 2013, she saw Dr. Wickramaratne to query a lump in her neck, leading to a referral for a CT scan at the Defendant’s King George Hospital.
The first issue pertained to the Claimant’s extant health condition before the incident. She described that she was “fit, healthy and active” before the procedure (para 9). She was in receipt of Disability Living Allowance pertaining to a prior back problem.
Claimant averred that she received no warning of any risks associated with the contrast CT scan, including the risk of extravasation injury (para 28). She averred that if she had been warned of the risks, she would not have consented to the scan going ahead. The Defendant’s case is that advice as to the risk of extravasation was provided by Mr M (para 29).
The Claimant alleged that after a number of failed attempts to insert a cannula into her left elbow region, she asked for no needles to be used due to her pre-existing Raynaud’s syndrome. She alleged that she was ignored, with Mrs S (radiographer) inserting the cannula needle into the base of her left thumb. It is alleged that that the Claimant felt a shooting pain akin to an electric shock and no tourniquet was utilised. The Claimant alleged that she requested the scan to be stopped five times due to increasing pain (para 42). Mrs S stated that she informed the Claimant that she would have to place a needle in the vein. Mrs S also asserted that the Claimant did not request the cannula to be removed or re-sited.
The Claimant alleged that she was left in a dark cold room alone, for a significant time period without any care or treatment. She further alleges that hot water was poured onto her swollen arm, that her arm was not elevated, and she was not provided with a cold compress.
After reviewing the Claimant’s extensive medical history, HHJ Platts (sitting as a Judge of the High Court) rejected that the Claimant presented as “fit, healthy, and active” before the procedure. HHJ Platts accepted the Claimant’s reasoning that she honestly did not disclose her DLA because “she was not making a direct claim” (para 101). HHJ Platts also accepted that “she considered herself to be active” and was, insofar as her “symptoms would allow her to be” relatively active (para 24). Therefore, she was not dishonest in her own assessment of her health.
HHJ Platts rejected the Claimant’s evidence that she was not aware of the reason for the scan given the significance. (36) On the issue of causation, HHJ Platts distinguished Chester v Afshar and found that even if the Claimant had been warned of the risks, her course of action would likely have been to have the CT scan in any event. In particular, the risk of extravasation injury in the procedure is low, the risk of serious complications from an extravasation injury are exceptionally low and the purpose of the scan was to investigate a possible cancer. (36) and (40)
With respect to the factual circumstances of the contrast CT scan, HHJ Platts preferred the evidence of Mrs S, citing the Claimant’s general unreliability, unsupportive expert evidence (with the experts suggesting the Claimant’s account was highly improbable), and the corroboration of Mrs S’s colleague, Mr M. Collectively, these factors diminished the credibility of the Claimant’s own account (para 53).
HHJ Platts found numerous reasons to doubt the Claimant’s account of her aftercare, finding her account of the passing of time (para 64(a)), nature of the complaint recorded in the incident report (64(b)), and the Claimant’s description of the immediate effects of the extravasation as not “accord[ing] with other evidence” (64(c)). As a collective consequence, HHJ Platts rejected the Claimant’s allegations of negligence in relation to her care after the extravasation injury occurred, casting doubt on the Claimant’s credibility of evidence (para 66).
In light of the above, HHJ Platts found that the claim failed on the issue of liability (para 67). Further in respect of causation, HHJ Platts found that given the Claimant’s complicated medical history it was difficult to conclusively attribute her PTSD or CRPS to the extravasation injury (para 96).
HHJ Platts considered the issue of fundamental dishonesty, restating the test set out in Ivey v Genting Casinos Limited. Noting that the Claimant’s evidence “has to be viewed against the background of her psychological profile” (para 101), HHJ Platts was satisfied that “despite the overall unreliability of her evidence, she genuinely believes that the case she advances is true and I am not persuaded that she has been dishonest” (para 101).
David Haines, a clinical neglgence barrister at Outer Temple Chambers, commented on the case:
This case demonstrates clearly how the resolution of claims arising from failure to consent for medical investigations and applications in respect of fundamental dishonesty are very fact sensitive.
Further, in particular this case highlights the importance of pausing and reflecting upon whether a Claimant’s account is realistic when balanced against both the contemporaneous and expert evidence.
