On 6 May 2016 Mr Justice Jay handed down judgment in the matter of Andrew Stucken v East Kent Hospitals University NHS Foundation Trust. After a 3 day trial judgment was given for the Defendant which resulted in the NHS saving £220,000 in damages alone. Clyde & Co acted for the Defendant Trust on the instruction of the NHS Litigation Authority.

The Claimant suffered an irreversible loss of visual acuity in his right eye at the age of 17 and had been diagnosed with Ehlers Danlos Syndrome, a rare connective tissue disorder. In August 2010 the Claimant was diagnosed with a retinal detachment in his left eye and treatment resulted in a poor outcome.

It was alleged that the retinal detachment should have been treated by way of a primary vitrectomy operation rather than a corrective cryo buckle operation. It was agreed that in the absence of the alleged negligence the Claimant would have retained good visual acuity in the left eye. If the Claimant succeeded it was agreed that the case was worth £220,000.

The issues that fell to be determined were (a) whether the Claimant had a condition known as a Post Vitreous Detachment (PVD) prior to surgery. It was agreed that if there was no PVD there was no negligence; and (b) if a PVD was present was it Bolam negligent to have performed a corrective cryo buckle operation.  

It was found as a matter of fact that the Claimant did not have a PVD prior to surgery. In the circumstances the Claimant's claim failed. The court also determined the alternative issue and found that a corrective cryo buckle operation was reasonable in any event.

The judgment is 28 pages in length and it is difficult to summarise all the pertinent issues in what was a complex case. However, the key point to note in this case is that one should not underestimate the importance of the treating clinicians in clinical negligence proceedings.

Whilst ultimately the Judge preferred the Trust's expert evidence, it is clear from the judgment that the factual evidence of the two treating consultants was also vitally important to the successful defence of this case. 

The case of ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust [2003] EWCA Civ 1284 (which was applied in this case) confirms that opinion evidence from the treating clinicians is admissible, and it is simply a matter for the court as to what weight should be given to such evidence.