A case brought against University College London Hospitals NHS Foundation Trust was thrown out on the evidence of the Trust’s expert witnesses.
University College London Hospitals NHS Foundation Trust was accused by a patient of negligence in a total knee replacement operation on 22 May, 2019, and of failure adequately to diagnose, treat or act upon the claimant’s presentation.
In the case, highlighted by NHS Resolution, judgment was given in favour of the Trust.
In her decision, Judge Heather Baucher noted that neither the claimant’s significant co-morbidities – her medical records constituted some 14,000 pages – nor her failure to engage with treatment post-operation had been addressed by the claimant’s expert.
His evidence, she said, “did not provide the degree of balance” that the judge would have expected.
On the other hand, she described the surgeon as clearly “eminent” with a significant track record. His evidence, she said, was reinforced by his contemporary note of the operation and was backed by the Trust’s expert orthopaedic witness.
Divorced from reality
Judge Baucher found that the surgeon’s surgery did not fall below the requisite standard and that he had acted in accordance with a responsible body of orthopaedic surgeons.
Turning to the post-operation history, the judge noted that the claimant had “a whole myriad of other medical issues”, and in particular fibromyalgia. It was therefore entirely reasonable for the Trust to delay consideration of any further surgery until twelve months after the initial operation.
By then, the COVID-19 pandemic had arrived and surgery was not urgent. Consequently, the fact that revision surgery was delayed until 7 October, 2020, was not unreasonable.
Insistence by the claimant’s expert that a 3D scan should have been conducted in 2020 was “divorced from the reality of life in NHS practice and indicative of the fact that he has not been engaged with such work for 23 years, apart from some NHS outsourcing”. In any event, such a scan was not available at this Trust.
The law of negligence
Commenting on the case (Morawiec v. University College London Hospitals NHS Foundation Trust) NHS Resolution highlighted the failure of the claimant to use the services of a suitable expert witness.
The orthopaedic expert instructed on behalf of the claimant was “arguably… the wrong selection”. Although he is an orthopaedic surgeon of long standing, he had not been employed by the NHS since 2001 and had never personally performed the procedure that was at the heart of the case. He also failed to address certain aspects of the case, including the claimant’s numerous co-morbidities.
“It is interesting to note the judge’s comments concerning the COVID-19 pandemic. She made it clear that the law would take into account circumstances pertaining on the ground in the NHS when determining whether a particular course – in this case delaying a revision operation – was reasonable in all the circumstances,” NHS Resolution said.
The law of negligence hinges to a great degree upon the concept of reasonable care; and what might be reasonable in normal times might not be such when there is a national emergency, it concluded.
