England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
(HIS HONOUR JUDGE MCKENNA)

		Royal Courts of Justice Strand London WC2 Wednesday, 6th February 2002

Wednesday, 6th February 2002

1. LORD JUSTICE TUCKEY: This is an application by Sharon Jones for permission to appeal from a decision of His Honour Judge McKenna, made after a two-day trial in the Birmingham County Court, in September 2001 in which he dismissed her claim for damages for medical negligence against the respondent health authority. The applicant also applies for permission to appeal against the judge's earlier refusal to strike out the defence because the respondents had failed to disclose all her medical records, and to allow her to amend her claim.
2. The claim arose out of the birth of the applicant's fifth child in 1996; but what happened when she gave birth to her third child is also relevant. As with all her children she gave birth by caesarian section. The surgeon concerned in the birth of her third child was a Mr Sharif. He closed the wound caused by the caesarian section with nylon stitches but unfortunately it re-opened later at a deep level and no doubt this caused the applicant much pain and distress. With her fifth child the applicant was admitted to hospital two months prematurely. Mr Sharif was the senior registrar on duty, assisted by a locum, Dr McBean. The operation was performed, as the judge found, by Dr McBean, with the applicant anaesthetised by means of spinal block which is administered by injection between the lumbar vertebrae. The wound was closed by means of staples. However, after about 30 hours the wound re-opened at a shallow level along about a quarter of its length. It was successfully closed in a further operation under general anaesthetic.
3. The applicant's case was that she was not warned of the risks associated with the spinal block and that the wound should have been closed with nylon stitches, rather than staples.
4. After hearing expert evidence the judge found that the use of staples was proper and in accordance with contemporary practice. As Mrs Jones had admitted that she would have chosen spinal block if the risks had been explained to her any failure to explain was not causative of loss. The judge dismissed the applicant's claim for those two reasons.
5. The applicant's legal aid certificate was discharged in February 2001, seven months before the trial. Discovery had already taken place whilst solicitors were on the record, but in August the applicant sought further documents from the respondent maintaining that her medical records which had been disclosed were incomplete. A few days before trial she applied for all her records to be disclosed, failing which she asked for the defence to be struck out. She also complained that the person who dealt with her request for documents at the end of August, who described herself as the respondent's legal services manager, was not in fact an employee of the authority at that time and therefore various rights of hers had been breached, including her right to confidentiality and rights under the Data Protection Act. At the same time, apparently by error, the respondent had disclosed, so the applicant maintains, records of other patients.
6. The applicant says that the court ought to have dealt with her discovery application before the hearing; that at the hearing the judge gave her and her expert insufficient opportunity to look at the records which the respondent brought to court; and that he did not make any ruling on her application on the first day of trial as he should have done, but did not do so until just before he gave judgment at the end of the case.
7. In his ruling on the discovery application (of which the court does not have a transcript, but a fairly full note prepared by the respondent's solicitors) the judge said:

"During the course of the evidence Mr Johnson, [that, as I understand it, is the respondent's consultant expert] was taken to a list of supposedly missing documents. He was able to identify in the trial bundle the vast majority of notes the claimants said are missing. To the extent they are missing I am satisfied the defendant has done all possible to find them; and secondly, they are not relevant. I dismiss her application."

8. As the judge said the applicant was only entitled to see relevant documents. In none of the material I have seen has she been able to point to any document or class of documents which might have been relevant to the issues at trial. The method used by Dr McBean, or for that matter whoever it was that carried out the operation to close the wound, was not in doubt; nor could it have been. The issue was whether use of that method was negligent. That was a matter for expert medical opinion and not a matter which any amount of documents would have shed any light on. Nor can I see anything which would have assisted the applicant at the end of the day on the anaesthetic issue. As I have already said, that part of the claim was dismissed simply on the basis of the applicant's perfectly fair and honest admission that if she had been given the relevant warning she would nevertheless have agreed to have a spinal block.
9. There was no obligation on the court to hear the applicant's application before the trial given the date it was made. Perhaps the judge should have ruled on it on the first day of the trial, but the fact that he did not do so does not seem to me to have prejudiced the applicant in any way. The point about the status of the signatory of the letter is, as I attempted to point out to Mrs Jones, a complete irrelevance in the context of this litigation. At the beginning of the trial the applicant applied to amend her claim to add allegations that the defendants had failed to remove a hernia and perform a sterilisation when they performed this operation. The judge rejected this application because it was too late to add these entirely new allegations outside the limitation period and because it would have been grossly unfair on the respondent authority to have to defend itself against these allegations at such short notice so long after the event. The judge's decision on amendment was, in my judgment, entirely justified.
10. Next, the applicant says that the result of the trial was affected by the fact that the judge limited her questioning of the witnesses to the issues in the case, whereas the respondent were allowed to question her expert witnesses about other cases he had appeared in and ask her about another expert she had consulted. In short, she complains generally, that she did not have a fair trial.
11. I have read the note of the trial, to which I have referred, and I am afraid to say I do not think there is anything in this complaint. The judge was entitled to confine the questioning to the issues in the case. Questions about an expert witness' previous experience are relevant to his credibility as an expert as are general questions about who the claimant has consulted.
12. Finally, in the earlier material submitted by the applicant she complains that the trust did not call the two anaesthetists who performed the spinal block. But, as the judge explained, this was because of her admission, which made it unnecessary for him to decide what she had actually been told. Again, this would not have affected the result; but in any event it was for the respondent to decide which witnesses they called. The judge could not have forced them to call the anaesthetists.
13. This morning Mrs Jones has put before me a ten-page document which firstly contains a number of largely uncontentious submissions about the law. But the law relevant to this case is not in issue. If the doctors had been negligent in the way in which this operation had been performed the applicant would have been entitled to succeed in her claim and the court would have awarded her damages for the consequences of any such negligence. It is as simple as that.
14. The document to which I have referred concludes with a list of the main points which it is said the applicant wishes to raise. Some of them I have already dealt with; some of them are variations on points which I have dealt with. I will deal shortly, however, with those which did not feature anywhere in the papers so far lodged.
15. The first is that the expert witness - presumably that is the expert witness called by the hospital - was allowed to put in foreign literature that no one, not even the judge, could understand. An expert witness is entitled to support his views by reference to published literature on medical matters. If no one understood what this literature said then that cannot have helped anyone in the case. But as a matter of principle there is nothing wrong with an expert doing that.
16. It is said that this witness changed his statement several times. That was a matter for the judge to consider when evaluating his evidence. This was the witness who said that the method of closure of the wound was perfectly proper. The judge accepted his evidence; but if he had changed his statements about anything then that was a matter which obviously the judge would have taken into account if the point was made, as I am sure it was, by Mrs Jones.
17. There are then some complaints about other people's medical records, to which I have already referred. Obviously the applicant should not have been provided with copies of other people's records; but that has nothing whatsoever to do with this claim.
18. In the course of these submissions, with which I think I have now substantially dealt, and indeed in the other material put before the court, the applicant at several points invokes her rights under the Human Rights Act. Nothing which I have seen in this case indicates that the applicant has any right to rely upon her human rights in a way which would assist her in this claim.
19. Ultimately, the grounds which the applicant relies on, both in the material which she submitted to the court and in the new material which I have referred to, do not, it seems to me, in any way seek to challenge the judge's two simple reasons for rejecting her claim - that is to say that there was nothing wrong with the method of closing the wound, and the applicant's admission about what she would have done if she had been told of the risks of a spinal block. Unless either of those findings can be challenged any appeal is hopeless.
20. For the reasons which I have explained at some length now I can see nothing in the grounds put forward by the applicant to justify permission to appeal being given in this case and her application for permission must therefore be refused.
(Application refused; no order for costs).