Claims handlers need to be aware that it is not only those clinicians who are directly involved in the treatment of a claimant who may be material witnesses. Statements may also need to be obtained from clinicians who might potentially have become involved, but for any particular breach of duty. The full chain of what is known as ‘Bolitho causation’ needs to be investigated at an early stage.
A recent trial success demonstrates one such example of this:
The claimant was a consultant physician/geriatrician who injured his back whilst examining a patient. He suffered ongoing symptoms and arranged to be seen in the clinic of a consultant orthopaedic surgeon, at the same hospital. The claimant was anxious for an MRI scan to be performed as a prelude to possible surgery, but this was not felt to be necessary by the surgeon. Suffice to say that the claimant was not offered surgery and, in the long-term alleged he was left with symptoms that would otherwise have been avoided.
The judge ultimately found that the claimant’s case depended upon him being able to demonstrate a neurological deterioration prior to the first clinic appointment. There was no convincing evidence of this and, therefore, the claimant could not establish a breach of duty.
However, if the judge had found evidence of a deterioration, the next issue to be determined would have been whether the claimant would in fact have elected for surgery.
A significant amount of time was spent in court discussing the hypothetical consenting procedure that might have been undertaken if the surgeon had been minded to propose an operation. This included running through the precise discussion that might have occurred, including the relative risks and benefits of possible surgery. The judge actually indicated that he felt the claimant would have opted for surgery if it had been offered. It was as well that he had already included there was no primary obligation to have offered it!
Other typical examples will arise when A&E doctors fail to make referrals to other specialities. The claims handlers’ investigation must incorporate obtaining evidence about the likely outcome if the referral had been made and this will involve identifying, if possible, the actual person who would have received the referral.