England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
SOUTHAMPTON DISTRICT REGISTRY
(Mr Justice Cooke)

		Royal Courts of Justice Strand London WC2 Thursday, 12th September 2002

Thursday 12th September 2002

1. LORD JUSTICE KAY: This is an application for permission to appeal from a decision of Cooke J given on 16th January 2002 dismissing Mr Moore's claim for damages for medical negligence at the Southampton University Hospital. The claim relates to a biopsy carried out on 31st August 1994. Mr Moore makes a number of supplementary applications. He applies for an extension of time in which to lodge his Appellant's Notice. He also applies for permission to rely on additional evidence.
2. On 24th March 1992 Mr Moore attended the Rheumatology Department at the hospital having developed persistent pain and swelling in his left ring finger as a result of an accident at work. During the course of the treatment of this injury it emerged that Mr Moore showed signs of inflammatory arthritis in other joints.
3. On 4th March 1993 he visited the hospital where he was seen by a doctor, Dr Wong. The evidence before Cooke J established that by this time Mr Moore was complaining of pain in both knees as well as stiffness in both hands. Dr Wong wrote to Mr Moore's general practitioner stating that Mr Moore may have had mild inflammatory arthritis, but there was no sign of progressive disease and that a further examination was necessary in a year.
4. On 26th August 1994 Mr Moore attended the hospital again. The notes of the meeting record pain in both knees and an effusion to the left knee. Mr Moore was diagnosed with sero-negative spondolo arthropathy. A biopsy was proposed on 31st August. That biopsy was duly carried out on the left knee. A light yellow transparent moderately viscous fluid was drawn off. Mr Moore was also administered a steroid anaesthetic and sedatives.
5. On 7th September Mr Moore's left knee became severely painful and inflamed. His evidence was that he contacted the hospital, explained that he had received a biopsy but was told by a nurse that he could not be re-admitted. Mr Moore, instead, contacted his general practitioner, Dr Pal, who prescribed antibiotics and painkillers. After a second call out on about 11th September 1994, Dr Pal wrote to the hospital recommending Mr Moore's re-admission to hospital. This was arranged and Mr Moore was diagnosed with sceptic arthritis. Mr Moore remained in hospital for 40 days during which he received various antibiotic treatments, although no infection was present by 23rd September.
6. In October 1996 he left his job and he attributes his having to leave his job to the sceptic arthritis that he suffered in September 1994. In December 2000 he was still complaining of pain in his left knee and loss of mobility.
7. On 16th September 1998 proceedings were commenced on Mr Moore's behalf against the hospital for alleged medical negligence by Dr Wong in August and September 1994. By the time the matter came for hearing before Cooke J only two particulars of negligence remained in issue. They were:

(a) Dr Wong failed to warn Mr Moore that there was a risk of infection following the biopsy of the order of 0.5%;

(b) Dr Wong failed to warn Mr Moore to return to hospital if infection occurred.

8. The judge heard evidence on both sides in relation to the matter and made clear findings of fact in relation to those allegations. It is right to say immediately that Mr Moore's complaint now is essentially different from that which was run at trial. He complains now that the procedure carried out by Dr Wong was carried out negligently. That was not an allegation that the judge was invited to consider at the trial below. Mr Moore explains that he did make that allegation at that time and it was the result of the solicitors, who had originally acted for him but were no longer acting for him by the date of trial, that the allegation was not clear, and he had not appreciated that fact.
9. Accordingly, he has addressed me today essentially upon issues which were not issues that were raised by the pleadings. I have endeavoured to explain to him that the case has to be considered on the basis that he put forward. I do not know anything as to the circumstances in which no allegation of negligence relating to the way in which the procedure was carried out came to be made, but were he right (and I do not know for a moment whether he is or is not) that that was due to some action on his solicitors' part, if that failure was in fact negligent he would have some remedy against his solicitors. However, it cannot possibly be a basis for suggesting that the decision of Cooke J was wrong, who dealt with the matter on the basis that had been pleaded before him and made his decisions accordingly.
10. So far as the decision is concerned as to the risk of infection, Mr Moore's medical expert, Dr Bourke, conceded in cross-examination that there was a respectable body of medical opinion that there was no need to advise of the minimal risk of infection following biopsy. Accordingly, following the clear authorities on the matter, Cooke J found that Mr Moore could not succeed on this point. Further, Cooke J found as a fact that, even if a warning had been given, Mr Moore would have proceeded with the treatment in any event, so that omission had no causative effect.
11. As to the other allegation, in cross-examination Dr Bourke accepted that it would not be negligent not to hand to a patient a specific telephone number so that they could contact the hospital in the event of problems following treatment. Dr Bourke conceded that it was sufficient if the patient was told to contact the hospital in those circumstances, and the phone number then would be available without difficulty. On that basis Cooke J considered the question as to whether Dr Wong told Mr Moore to contact the hospital in the event of problems following treatment.
12. One complaint made today by Mr Moore is that Dr Wong had made a supplementary statement, which was only filed on the morning of the trial, which dealt specifically with these matters. That is undoubtedly right. It clearly was within the discretion of Cooke J to admit such evidence, and no complaint can be made in that regard. Cooke J considered the matter. He specifically referred to the fact that the detailed evidence of Dr Wong came in his supplementary statement, but he concluded, at the end of the day, that Dr Wong's evidence of his usual practice to give such a warning following a biopsy where steroids were administered was in fact truthful evidence. He rejected Mr Moore's evidence and that of his wife that no warning had been given. He said that Dr Wong was, so he found, an essentially reliable witness, whereas Mr Moore's evidence had been unsatisfactory in several respects. In particular, Cooke J found that if Mr Moore did speak to a nurse on 7th September, he could not have explained clearly the circumstances to her.
13. Cooke J also rejected evidence from Dr Pal, the general practitioner, that he had spoken to Dr Wong on 7th September 1994 and followed his advice. He explained quite clearly why it was that he found himself unable to accept the evidence of Dr Pal. Dr Pal at first made that suggestion at a time when he himself was the subject of complaint made about his conduct.
14. In the circumstances Cooke J had concluded that neither of the allegations of negligence which he was called upon to decide were made out. There is no prospect whatsoever of the Court of Appeal being persuaded that those were decisions that he was not entitled to reach. Further to that, Cooke J found that Mr Moore could only have succeeded on causation if any delay in treatment between 7th and 12th September had exacerbated the damage to the knee. He found that the oral antibiotics prescribed by Dr Pal on 7th September had suppressed the infection in the interim, and it was entirely speculative to say that the delay in administering intravenous antibiotics rather than oral antibiotics caused any exacerbation of the condition. He therefore dismissed the claim.
15. Mr Moore, as I have indicated, really wishes to run the case on a basis different to the case as pleaded in the court below, and to complain that the reason he has had so many problems is because of the negligent treatment given him by Dr Wong. That was not an allegation made in the court below. It is not an allegation that can now be made. In so far as he seeks to rely on further evidence, none of that evidence touches upon the issues which were determinative in the court below. It goes really to the matters that he now wishes to raise which he cannot raise. Further to that, it is material which, it would appear, was available below, although he says he simply had not appreciated its significance because it was buried away in the medical evidence. That would cause immense difficulties even if it were relevant in persuading the court to admit that evidence.
16. However, I am satisfied that none of the grounds of appeal he raises can succeed and accordingly permission is refused.
Order: Application refused.