Baidoo v Barking Havering and Redbridge University Hospitals NHS Trust demonstrates that where a claimant’s clinical negligence claim is entirely dependent on expert evidence, if the Claimant has not instructed experts, and there is no realistic prospect of him or her doing so before trial, then the claim has no real prospect of succeeding, and summary judgment can be given in favour of the Defendant.
The Claimant attended the Defendant’s hospital following a suspected transient ischaemic attack. He was was discharged the following day but consequently suffered a stroke and further injury. In November 2018, proceedings were issued against the defendant NHS Trust. The Claimant alleged that had he been prescribed aspirin whilst in hospital the stroke would have been averted. At this point in time, the Claimant was legally represented, later the Claimant’s solicitors came off the record. The Defendant admitted a breach of duty in that aspirin was not administered but defended the claim on the basis that the stroke would have eventuated irrespectively.
In March 2020, case management directions were provided, with specific direction provided for a joint expert meeting and statement. One of the Defendant’s expert reports stated that the Claimant would not have avoided a stroke on the balance of probabilities even if aspirin had been administered. The Claimant relied on the expert evidence from two experts, but later informed the Defendant that they were no longer instructed, and applied for the joint expert meeting and statement to be dispensed with.
The Claimants experts subsequently confirmed they were not able to assist, and the Defendant applied for summary judgment.
Anne Whyte QC found that there was no realistic prospect that expert evidence would be available by the time of the trial. The Claimant could not prove (as he alleged) that the admitted failure to prescribe aspirin had made a material contribution to his later stroke without the assistance of expert evidence. Given the Claimant’s ability to prove the claim was entirely dependent on expert evidence the Claimant’s prospect of challenging the defendant’s expert was “fanciful”. As such following the application under CPR r24.2, the court gave summary judgment in favour of the Defendant, finding the claimant had no real prospect of succeeding on the claim.
Will Young, a barrister in Outer Temple’s Clinical Negligence team, commented on the case as follows:
This case makes abundantly clear, if there was any doubt, how crucial it is for a Claimant to have expert evidence in support of the allegations in the claim, not just of breach of duty, but also causation. It is not enough to rely on “judicial common sense” when the case is resisted by a Defendant relying on expert evidence, however obvious the Claimant thinks the question is. This point is unlikely to arise very often in cases in which the Claimant instructs solicitors, but there may more regularly be litigants in person who pursue claims on this basis. For medical Defendants, the case offers welcome reassurance that claims brought without the support of expert evidence can be disposed of by way of summary judgment without the need to incur the time and expense of a full trial.
