England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE BIRTLES

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th November 2014

Lord Justice Longmore:

Introduction

1. Mrs Janet Laughton complains that Mr Shalaby acted negligently while performing a left hip replacement operation on 30^th July 2007 at the Horder Centre in East Sussex. Mr Shalaby said in evidence that he had no recollection of the operation itself which is unsurprising since he has performed about 3000 such operations in the course of his professional life. His notes show, however, that he used what is called the antero-lateral approach method of hip replacement. This requires the surgeon to reflect (detach) the muscle (or abductor) known as the gluteus medius from the bone called the trochanter so that the artificial hip joint can be inserted; once this insertion has taken place it is necessary to re-attach the gluteus medius to the trochanter at the conclusion of the operation. It was Mrs Laughton's case at trial that Mr Shalaby had negligently failed to re-attach the gluteus medius properly or at all as he should have done.
2. On 3^rd March 2008 Mr Shalaby performed a right hip replacement operation on Mrs Laughton about which no complaint is made and which seems to have been successful.
3. The left hip operation was not so successful and Mrs Laughton continued to have a painful loss of mobility. Mr Buchanan, another surgeon at the Horder Centre saw her on 20^th April 2008 but did not recommend any action. On 30^th August 2008 she returned to the Horder Centre and saw another surgeon, Mr Fordyce, who recommended further surgery which he carried out on 24^th October 2008. During this surgery, Mr Fordyce discovered that the gluteus medius was not attached to the trochanter but was stuck to an adjoining muscle called the tensor fasciae latae. Mr Fordyce then attached the gluteus medius to the trochanter and Mrs Laughton's left hip has become somewhat more comfortable but by no means painless.
4. HHJ William Birtles conducted a 4 day trial between 16^th and 19^th September 2013 at the Central London County Court. Mrs Laughton had instructed Mr Peter Morrison as her expert orthopaedic surgeon. He took the view that Mr Fordyce's observations of October 2008 were conclusive evidence that Mr Shalaby either failed to re-attach the gluteus medius at all (his original expert report) or had failed to re-attach it properly (his oral evidence). Mr Shalaby instructed Professor Clarke of Southampton Hospital as his expert. He took the view that avulsion (tearing away) of the gluteus medius was a recognised (although rare) occurrence after the antero-lateral method of hip replacement. Such avulsion was not in his view, the result of any negligence on the part of Mr Shalaby.
5. The judge preferred the evidence of Professor Clarke to that of Mr Morrison partly because Mr Morrison had not personally done a hip operation or, indeed, been involved in orthopaedic surgery since 2000 whereas Professor Clarke was currently in practice and had performed his last hip replacement six weeks before he gave evidence at the trial; and partly because Mr Morrison gave his evidence in an exaggerated manner showing emotional sympathy with Mrs Laughton whereas Professor Clarke was more impartial and had the support of textual authority.
6. The judge found as a fact that Mr Shalaby did re-attach the gluteus medius in accordance with his normal practice at the end of the operation. He rejected the evidence of Mr Morrison that Mr Fordyce's observations were evidence of negligence and preferred the conclusions of Professor Clarke in the opinion section of his expert report:-

"34. Every surgical approach to the hip has a list of complications. A lateral approach to the hip does risk abductor avulsion because of course the abductors are reflected and elevated in order to dislocate the hip and are then reattached. No surgeon would leave the abductors unattached and the fact that they were found to be separated at the time of the secondary procedure indicates that they had avulsed, or separated from the reattachment rather than had not been reattached.

35. Unfortunately this is a well known complication of this approach to the hip. It does not in any way imply a breach of duty by the initial surgeon unless he intentionally did not attach the glutei which would be most unlikely.

…

37. In summary I find no evidence of any breach of duty in the performance of the hip arthroplasty. Unfortunately abductor separation is a well known and recognised complication."

7. The judge accordingly held that Mrs Laughton had not shown on the balance of probabilities that Mr Shalaby had been negligent and he dismissed the claim. There is now an appeal.

Submissions of the appellant

8. Mr Nicholas Yell for Mrs Laughton accepts that he cannot complain that the judge preferred the evidence of Professor Clarke to that of Mr Morrison but he submits that the judge should nevertheless have been satisfied that Mr Shalaby was negligent because the risk of natural avulsion of the gluteus medius was so rare as to be statistically insignificant; the only realistic (and much more likely) alternative was that Mr Shalaby had either not re-attached it to the trochanter or failed to do so properly.
9. Mr Yell also relied on a number of extraneous factors:-

1) lies told by Mr Shalaby to Dr Burnett in November 2009 in relation to the state of his marriage; Dr Burnett had been instructed by the General Medical Council ("GMC") as a consultant psychiatrist to assess Mr Shalaby's fitness to practice;

2) lies told to Dr Wilkins another consultant psychiatrist in June 2008;

3) allegations made about the Horder Centre by Mr Shalaby which Mr Yell characterised as "bizarre";

4) failure by Mr Shalaby to disclose in his witness statement of 19^th August 2011 (which said merely "I am not currently in practice") and, later, in his oral evidence at trial that conditions had been imposed on his registration to practice, and that he had been subsequently suspended;

5) the fact that, in December 2006 and during the period "late 2007" (according to Dr Burnett) to July 2008, Mr Shalaby suffered from stress and had been consulting his general practitioner for stress related problems at work; these problems were said to give rise to sub-standard care to various patients between 2006 and 2008;

6) the fact that in all 26 separate complaints had been made by patients about Mr Shalaby;

7) criticisms made by Mr David Miller the consultant orthopaedic surgeon instructed by the GMC, to investigate treatment afforded by Mr Shalaby to 7 patients; and

8) criticisms made by the Health Care Commission.

10. There is also an application to adduce as further evidence (1) the decision of GMC's Fitness to Practice Panel made in October 2013, (since the judge's judgment) upholding complaints about patients D, E, F and G and (2) a subsequent decision of another Fitness to Practice Panel of 10^th April 2014 relating to Mr Shalaby's assault on a bus driver on 8^th December 2011 which led to his conviction at Sevenoaks Magistrates Court on 27^th September 2012 and an interim suspension by the GMC on 30^th January 2013. We permitted Mr Yell to make submissions about those decisions and left over to be decided in this judgment whether he should be entitled to adduce these further facts as evidence before this court.
11. Mr Yell then summarised his criticisms of the judgment made on behalf of Mrs Laughton in the following way:-

1) the judge failed to quantify the recognised risk of avulsion occurring without negligence after a hip operation;

2) the judge failed to consider and assess the criticisms of Mr Shalaby enumerated at paragraph 9 above;

3) the judge failed then to balance those criticisms against the rarity of an avulsion occurring without negligence; and

4) if the judge had done that balancing exercise, he would had to have held that Mr Shalaby had been negligent.

He submitted that this court should therefore reverse the judge and hold that Mr Shalaby had been negligent.

Rarity of risk of avulsion

12. Both experts (and indeed Mr Fordyce) said that avulsion was a known and recognised risk in hip replacement operations. The statistical evidence as to the frequency of its occurrence was not clear-cut. There was, for instance, a paper in evidence from a doctor at the Mayo clinic to the effect that repair was carried out in 0.08% of cases (1 in 1250 cases). Professor Clarke's evidence was that that was an under estimate of occurrence; he put it at 0.5% of cases (1 in 200 cases) and before us Mr Yell accepted that figure. (Coincidently it had happened to Professor Clarke himself in the very last operation he had done six weeks before the trial). Mr Yell submitted that that figure of 0.5% showed that avulsion was very rare; when considered with the other factors, the probability was that Mrs Laughton's avulsion arose from Mr Shalaby's negligence.
13. This argument cannot succeed on its own. There were, unsurprisingly, no data about how many of Professor Clarke's 1 in 200 cases occurred as a result of negligence but even if the figure for non-negligent avulsions were 1 in 1000, the argument goes nowhere in the case of a doctor who had performed about 3000 hip replacements in the course of his professional life. Before a judge could say that Mrs Laughton's operation had been negligently performed, there would have to be something which differentiated her operation from any other operation where avulsion had occurred. As the judge said in para 53 of the judgment Mr Morrison could point to nothing to support such differentiation. In these circumstances the fact that the judge did not in terms quantify the risk of avulsion as being 1 in 200 is not a relevant criticism of the judgment.

Extraneous factors – relevance?

14. These factors fall into 3 broad categories (A) evidence of lack of probity (factors 1-4); (B) evidence of stress or mental health issues (factor 5); (C) evidence of incompetence in other cases (factors 6-8).

(A) Lack of Probity?

15. Insofar as there is extraneous evidence of lack of probity that would be relevant to the credibility of any witness. But it was Mr Shalaby's competence that was in issue not his credibility in any real sense. Mr Yell accepted that Mr Shalaby could not remember this particular operation and characterised Mr Shalaby's account of his natural procedure as something that could be extracted from any surgical textbook. It was not suggested that he could in fact remember the operation perfectly well or that he did not normally adopt the procedures which he described. The most that can be said (as McCombe LJ said in the course of argument) is that any examples of lack of probity or "bizarre" conduct which were proved to the judge's satisfaction might show that Mr Shalaby would be unlikely to admit to incompetence if it had occurred or that he was less likely (than he asserted) to have followed his standard practice. This is a slender basis on which to advance a positive case of negligence.
16. The actual examples of Mr Shalaby's lack of probity are, moreover, not of the most serious kind. Of course any doctor being investigated by the GMC has a duty to be frank and honest with his professional body and any example of lack of frankness or dishonesty will be troubling to any judge. It is no doubt right to categorise a statement made by a doctor to an investigating psychiatrist that there were no difficulties in his marriage, when there were, as a lie. The true position, if what was recorded in Mr Shalaby's general practitioner's notes of 22^nd October 2009 is correct (and, of course, no court has heard from Mrs Shalaby), that Mrs Shalaby was often inebriated and subjected her husband to physical and mental abuse. The fact that Mr Shalaby concealed the difficulties with his marriage from the GMC inquiries in June 2008 and November 2009 can hardly count as iniquity of a high order.
17. The so-called "bizarre" allegations against the Horder Centre were elicited by Mr Yell in the course of his cross-examination of Mr Shalaby. They included allegations that the Centre had altered his contract of employment without his agreement, that Mr Shalaby had been subjected to racial and religious discrimination and threats to ensure that he would not become a consultant, that the Centre had falsified records to put blame on Mr Shalaby during the investigation which it undertook and that the Centre had disciplined him for failing to inform the Medical Defence Union about a complaint from a patient when the patient was in fact a national health service patient rather than a private one. It may be doubted whether the judge found this cross-examination particularly useful; no doubt Mr Yell hoped that inducing Mr Shalaby to make those accusations would somehow discredit him in the eyes of the judge. But the judge could have no idea whether or not there might be some truth in the allegations which Mr Shalaby was making. It is difficult to see how this advanced a case of negligence in the performance of Mrs Laughton's operation. Mr Yell criticised the judge for not referring to those "bizarre" allegations and not taking them into account. The fact that the judge did not refer to them in his judgment, apart from a throwaway remark about the length of the cross-examination, is entirely understandable. His duty was to assess Mr Shalaby as a witness of fact. He concluded that Mr Shalaby gave his evidence in a dignified way and this court cannot conceivably go behind that assessment and the rejection by the judge (para 19) of Mr Yell's attack on his honesty and probity.
18. The judge seems to have been aware that Mr Shalaby was "unable to practise". I am not sure how the judge became aware that he was "unable to practice" but it was common ground that Mr Shalaby did not inform the court that there had been an interim decision to impose conditions on Mr Shalaby practising as a result of the incompetence investigation being conducted by the GMC. As a result of these conditions he did not in fact practise. There was then the incident of assault on the bus driver which gave rise to an immediate suspension from practice. That was not disclosed to the court.
19. That was a very serious dereliction on the part of Mr Shalaby of his obligation to be honest with the court. He confirmed his written statement when he gave oral evidence. That statement just said he was not currently in practice. In the circumstances we think it right to admit the evidence of the relevant GMC decision suspending him so that the court can know the full position. Now the court knows about the assault and, more importantly, that Mr Shalaby sought to conceal it from the court, the court has to assess whether those factors make it more probable than not that Mr Shalaby performed Mrs Laughton's operation negligently. I can only say that, to my mind, they do not, even when they are combined with the other factors on which Mr Yell relies.

(B) Stress?

20. The fact that a doctor is under stress does not of itself mean that he is more likely than not to have been negligent on a particular occasion. Moreover as the judge pointed out (para 48), there was no medical evidence showing that Mr Shalaby's ability to undertake his clinical duties was likely to have been impaired. It is also important that Mr Shalaby's first indication of stress to his general practitioner was in December 2006, 7 months before Mrs Laughton's operation and that he did not consult his general practitioner again concerning stress until March 2008, 8 months after that operation. Even Dr Burnett does not put the resurgence of stress any earlier than "late 2007".

(C) Incompetence in other cases?

21. 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 AC 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."

22. 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.
23. 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."

24. 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."

25. 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.
26. 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.
27. In the light of Mr Miller's report (and perhaps other matters) the GMC convened a Fitness to Practice Panel between 14^th-24^th 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.
28. Mr Yell sought to adduce this Fitness to Practice Panel decision of 24^th 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.

Conclusion

29. Once Mr Yell accepted (as he had to) that the judge was entitled to prefer the expert evidence of Professor Clarke to that of Mr Morrison, the only true point left in the appeal was whether the rarity of the phenomenon of avulsion of the gluteus medius was such that, on the balance of probability, Mr Shalaby negligently failed to re-attach it to the trochanter or did not re-attach it sufficiently firmly. Mrs Laughton is, unfortunately for her, unable to show that and that is the end of the appeal.
30. Mr Yell asks forensically how a patient is ever able to prove such a matter on the balance of probabilities. The answer to that was given unintentionally by Mr Miller when he said his view would change it if it was found that a high percentage of Mr Shalaby's hip replacements suffered this complication. One might quarrel with word "high" but if there is no evidence even of a second instance of this complication, it is impossible to say that Mr Shalaby was negligent. General evidence of lack of probity, stress and incompetence in other areas of practice such as wrist surgery or record-keeping cannot make up the deficiency.
31. I would dismiss this appeal.

Lord Justice McCombe:

32. I agree.

Lord Justice Vos:

33. I also agree.