Hussain v King Edward VII Hospital [30.11.12]
 
Doctrine of res ipsa loquitur did not apply where Claimant suffered from shoulder pain following a cystoscopy.

Comment

This case illustrates the difficulty of a claimant pursuing a clinical negligence claim based upon the maxim res ipsa loquitur. The claimant is required to put forward a positive case. In this claim, the Claimant had no factual evidence indicating any negligence by the hospital and his expert could only speculate that the cause of his injury may have been due to negligence. This did not rebut the burden of proof on the Claimant, even when res ipsa loquitur was pleaded.

The hospital’s evidence indicated that all reasonable care was provided.

Indemnity costs were awarded against the Claimant. This was due to the hospital’s proactive approach to litigation and seeking an early resolution.

Whilst the hospital’s "drop hands" settlement offer was not accepted by the Court as a Part 36 offer, as it did not have the intended costs consequences set out in the CPR, general court discretion allowed indemnity costs to be ordered from its expiry.

Background

The Claimant was an electronic engineer who formerly worked for the Kuwait Oil Company. He was exposed to noxious gases following an accident at an oil refinery in Kuwait. When he was medically examined, a potentially cancerous growth was found. In April 2004, when he was aged only 32, he underwent a cystoscopy. Tests revealed that he had contracted bladder cancer and he was advised that regular investigations would be required. He was referred to the King Edward VII Hospital and saw Mr Shah, a Consultant Urologist, in December 2004.

A further cystoscopy was arranged for 5 January 2005 under the care of Mr Shah and Dr Hamilton-Davies, a consultant anaesthetist, both independent practitioners. The procedure only took a few minutes. When the Claimant woke following the operation he complained of severe pain in his left shoulder.

The claim was brought against the hospital for alleged negligent handling of the Claimant by its nursing or theatre staff resulting in trauma to his shoulder whilst under general anaesthetic. No claim was brought against the consultants.

The Claimant sought to rely on the doctrine of res ipsa loquitur (the facts speak for themselves).

Decision on liability

Mr Justice Eady dismissed the Claimant’s claim:

  • Where res ipsa loquitur is argued, the burden of proof remains on the Claimant throughout. A Defendant is only required to show a plausible alternative explanation in order to rebut a prima facie case. In practice, when it comes to medical negligence cases, a claimant is generally going to need to support his case by expert evidence that the circumstances relied upon would not ordinarily come about in the absence of negligence.
  • At the time of the cystoscopy, the Claimant had an underlying degenerative shoulder condition. This meant that, when the unremarkable relaxation of the muscles took place under anaesthesia, there was a realignment in the biomechanical environment of the joint. This triggered the onset of the acute arthropathy.
  • All the relevant witnesses spoke of the hospital’s rigour in keeping meticulous records in the event of any untoward incident liable to affect a patient’s welfare. There was no reason to reject that evidence. No such negligent incident was proved and all reasonable care had been provided by the hospital staff.

Costs

Mr Justice Eady was asked to consider indemnity costs against the Claimant on the basis that:

  • The Claimant had unreasonably ignored the hospital’s offers and failed to make any offers of his own throughout the litigation.
  • The claim was for an exaggerated amount of approximately £900,000, which was reduced to £200,000 on the opening day of the trial.
  • A round table meeting in September 2011 was unreasonably cancelled by the Claimant at the last minute.
  • The Claimant had ignored Master Roberts' previous judgment on the hospital’s application for summary judgment/security for costs. This concluded that although the claim could not be struck out, there were reasonably good prospects of successfully defending it.

Mr Justice Eady considered that the conduct of the Claimant warranted indemnity costs as his actions took the case "out of the norm", as set out in the leading case of Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden & Johnson and another [2002].

The Judge was satisfied that a "drop hands" settlement offer made by the Defendant on 23 May 2011, and headed a Part 36 offer, was inappropriately rejected. Whilst the offer was put forward as a Part 36, it did not have the characteristics of Part 36 as the Claimant’s costs were not to be paid. Nevertheless, the Court had discretion under CPR 44.3. Indemnity costs were appropriate from the expiry of the "drop hands" offer.