“SIMILAR FACT EVIDENCE” IN CLINICAL NEGLIGENCE CASES: EVIDENCE OF INCOMPETENCE IN OTHER CASES

In Laughton -v- Shalaby [2014] EWCA Civ 1450 the Court of Appeal considered the issue of whether evidence of incompetence in other cases should be admitted in a claim for clinical negligence.

THE APPEAL

The claimant was appealing a decision that a hip operation had not been carried out negligently.   Part of the claimant’s case related to alleged lack of probity; evidence of the doctor being under stress and allegations of evidence of incompetence in other cases.

INCOMPETENCE IN OTHER CASES

(C) Incompetence in other cases?

  1. Evidence of incompetence in other cases is highly problematic. First, is it admissible at all? It is only admissible if it is relevant. Traditionally it is only “similar fact” evidence that is relevant and admissible to issues in legal proceedings, see O’Brien v Chief Constable of South Wales Police [2005] 2 A.C. 534. In criminal proceedings it is now provided by s. 101(1)(d) of the Criminal Justice Act 2003 that evidence of a defendant’s bad character is admissible if it is relevant to an important

“matter in issue between the defendant and the prosecution.”

S. 103(1)(a) then provides that such matters include

“the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of an offence.”

  1. Mr Yell submitted that there should now be a somewhat similar principle in civil proceedings and formulated the proposition that “evidence of systemic failure of various types of incompetence is admissible in professional negligence cases as enabling a judge to make inferences of negligence in a particular case.” This proposition goes well beyond the statutory provisions of the criminal law. For my part, I would not accept that Mr Yell’s proposed principle represents the law; nor would I accept that the criminal law position applies to civil proceedings, since the criminal law represents a statutory change to the common law. In my judgment evidence of extraneous matters should be confined to cases of similar fact for the traditional reason that, unless the evidence is similar fact evidence, it is not probative of the issue to be determined. The question whether extraneous evidence is truly similar fact evidence is, no doubt, one of some difficulty and it may be that courts are now readier to admit evidence as being similar fact evidence than they were in the past. But that should still be the test. It will also be recalled, as stated in O’Brien that, even if similar fact evidence is admissible as a matter of law, the trial judge will still have a discretion to decide whether it is actually to be adduced at the trial, especially if it is likely to open up complex collateral issues.
  2. So much for the technical legal position in relation to other cases of supposed incompetence. But this court has to recognise that a roving cross-examination into other cases puts a trial judge into particular difficulty. Mr Yell had not sought to adduce positive evidence of other incompetence as part of the claimant’s case but he did seek to rely on documents which the defendant had, reluctantly, disclosed. Even these documents did not (technically) prove themselves but Mr Shalaby did not, of course, deny that they existed. There were for example letters of complaint from patients (which he accepted did exist) but he did not agree that he had been negligent with regard to those patients and Mr Yell did not seek to prove that he had been. The same was true of criticisms made by the Health Care Commission. The judge dealt with them pithily and correctly in para 49 of his judgment:-

“The evidence of complaints is not probative. It is merely evidence of complaints.”

  1. Mr Yell also sought to rely on the report of Mr Miller who had been asked by the GMC in 2011 and 2012 to investigate Mr Shalaby’s treatment of 7 patients including the claimant Mrs Laughton. Mr Shalaby had performed two knee operations, two foot operations, one wrist operation and two hip replacement operations, on those patients. Mr Miller concluded his report by saying:-

“I would sum up Mr Shalaby’s care as being below the standard and on occasion falling seriously below the standard expected of a reasonably competent orthopaedic surgeon.”

This is, of course, a damning general comment but, of itself, cannot prove that Mr Shalaby was negligent in Mrs Laughton’s operation. This is all the more so since Dr Miller’s comment on Mrs Laughton’s surgery was:-

“From the information before me, this patient was unlucky to suffer a detachment of the anterior gluteal flap, but, if this represents an isolated instance, this does not constitute negligence or necessarily poor performance by the surgeon involved.

I believe this to be a complication suffered by most if not all hip surgeons and I do not believe it causes the surgeon to fall below the standard of a reasonably skilful surgeon. If however it was found that a high percentage of his hip replacements suffered this complication, my conclusion would be different.”

  1. It was not found that any percentage of Mr Shalaby’s previous hip replacements suffered the complication of a gluteal detachment and the GMC did not pursue the case of Mrs Laughton any further. Mr Miller’s view gave credence to Professor Clarke’s expert evidence and no doubt helped the judge to decide to prefer that evidence to that of Mr Morrison.
  2. It is thus not open to Mr Yell to rely on the generalised comment of Mr Miller , set out in the first quotation in para 24 above, as showing that Mr Shalaby performed Mrs Laughton’s operation negligently unless he can point to other cases which could constitute similar fact evidence. This is, in my judgment, impossible for him to do. Knee, foot and wrist operation were too far removed on their facts from a hip replacement operations to constitute such evidence. The only other hip replacement considered by Mr Miller (patient EL) was criticised for insufficient discussion with the patient which again can hardly be considered to be evidence of similar fact.
  3. In the light of Mr Miller’s report (and perhaps other matters) the GMC convened a Fitness to Practice Panel between 14th-24th October 2013. It found proved various allegations in relation to the patient on whom Mr Shalaby had performed the wrist operation and recorded Mr Shalaby’s admission that on 3 occasions he had not recorded discussions with a patient and a failure to send a neuroma for histology following excision. The panel did not consider this last matter to be misconduct but did consider that Mr Shalaby’s failures in relation to the wrist operation and his poor record keeping constituted misconduct and that his fitness to practice was impaired. The panel then decided to impose conditions on Mr Shalaby’s registration for a period of 18 months (with immediate effect) even though Mr Shalaby had not practised since the original complaint made to the GMC.
  4. Mr Yell sought to adduce this Fitness to Practice Panel decision of 24th October 2013 as new evidence on this appeal. It was not available at the trial but if it had been no doubt the judge would have allowed Mr Yell to rely on it for what it was worth. In my judgment, it would only be worth anything if it disclosed similar fact evidence relevant to the existence of negligence in Mrs Laughton’s operation. It does not disclose such similar fact evidence and, as such, could not have had any effect on the trial judge’s decision. The difficulty about excluding it is that one cannot form a view as to its evidential worth without reading it in detail. I would, therefore, formally permit Mr Yell to adduce it but decide that it in fact adds nothing of any persuasive weight to his appeal.

OTHER POSTS ON SIMILAR FACT EVIDENCE

The issue of similar fact evidence was also considered in the most recent decision in the Mitchell case, see the discussion see Mitchell the case that keeps on giving: Similar Fact Evidence and Witness Statements

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