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'The Ex Factor'

19 July 2021

Losses for Litigants in Person in clinical negligence claims demonstrate how essential expert evidence is. Vicki Swanton reviews two recent cases and examines the challenges that litigants in person face and present to the civil justice system.

Experts are invariably fundamental in determining if a clinical negligence claim can be successfully brought or defended either on breach of duty, causation or both.   

In two recent cases, Baidoo v Barking, Havering and Redbridge University Hospitals NHS Trust (2021 6 WLUK 227)  ('Baidoo") and Doyle v Habib (2021 EWHC 1733)  ("Doyle") the self- representing patients (Litigants in Person- LIPs) were both unsuccessful in their claims, primarily because they failed to have the appropriate expert support required.

This article examines the challenges that litigants in person face and present to the civil justice system.

Case Details

In Baidoo, the Defendant Trust were successful in their summary judgment application against the Claimant who was initially represented by solicitors but then proceeded unrepresented. His claim involved a hospital admission with a suspected stroke following which he was discharged, only to suffer a stroke resulting in injury within 24 hours. The Trust conceded a breach of duty, namely that aspirin should have been administered at his admission but disputed causation, namely their defence (supported by expert evidence) was that the stroke would still have eventuated, irrespective of that negligent omission.

The situation in Doyle involved a private consultation and liver resection procedure, where the claimant's case was dismissed at a liability only trial. The allegations revolved around an alleged  incorrect diagnosis resulting in surgery that was unnecessary and complications that should all have been avoided.  The defendant disputed breach and causation, his testimony being supported by an independent hepatobiliary surgeon.

The Essential Expert Element

In Baidoo, Judge Whyte QC identified that whilst the claimant had initially instructed 2 experts, they were no longer willing to act. The claimant had done nothing to replace them but was still seeking to pursue his argument that but for the omission of aspirin 24 hours earlier, his stroke would have been avoided. The judge identified;

  • this was an issue that required independent expert testimony to support – and yet the claimant had none. 
  • upon the Trust's application for summary judgment, it was appropriate to conclude (applying CPR r.24.2) that the claimant had no real prospects of succeeding and there was no other compelling reason for the case to proceed to a trial.
  • whilst the claimant sought to argue that a lower threshold for establishing causation to the 'but for' test should be applied, namely that of  'material contribution' that also failed as expert evidence was likewise crucial for such a proposition to be pursued.

Judge Auerbach in Doyle was presented with a claimant (assisted by her mother) who had evidence from two of her treating physicians, one of whom provided expert opinion and participated in a joint discussion with the defence expert, who, like the defendant, was a surgeon. The claimant's expert sadly died in the summer of 2020 and was not replaced. The Judge's finding on the expert issues were that;

  • the claimant would have been better served by commissioning a surgeon to advise but that her expert still fell within the type permitted in the case management order. Her selection did, however, impact upon the weight that could be attached to that opinion
  • the defendant's expert gave live evidence, that was more convincing and persuasive than the claimant's expert report facilitating a finding that there was no breach of duty (causation also failed).

Conclusions and looking to the future

The number of LIPs were predicted to rise following the implementation of legal aid reforms and specifically LASPO (Legal Aid, Punishment and Sentencing of Offenders Act 2012). On 25 January 2019 the Lord Chief Justice confirmed that data was only available from 2013 but that the numbers in civil claims were in fact relatively static, in 2013-14 69% of litigants were represented versus 71% in 2017-18. This means that c.30% of the workload of the courts and defendant solicitors (post issue) involves dealing with claimants who are unrepresented. 

The challenges for LIPs in clinical negligence claims include negotiating the protocol, identifying the correct medical expert/s, instructing them, interpreting their findings and paying them to report, discuss the claim with their opposite number and ultimately attend trial.

Defence solicitors need to ensure they comply with the Law Society LIP guidelines whilst the court is led by the Judicial College Guidance which requires a 'just and fair outcome irrespective of representation' and emphasises that LIPs should not be seen as an 'unwelcome problem'.  Often the perception is that additional leniency is granted to LIPs, generating significant additional costs for the court system and defendants. 

The two cases featured in this article highlight that after judicial scrutiny fundamental expert evidential gaps proved fatal to both LIPs' claims. The concern, however, remains as to how much obtaining these outcomes cost in court time, defence spend as well as LIP effort. The question that surely must then be asked is, could there be a better way? Sir Geoffrey Vos (Master of the Rolls) proposes that online dispute resolution will become the default option but it remains to be seen if this could encompass the world of clinical negligence.

For further information please contact the author, Vicki Swanton.

Further Reading