The claimant sought damages for severe injuries suffered by their child at birth, and now appealed finding that the doctor had not been negligent. The allegation was simply that the injury could not have occurred but for negligence in the defendant. The doctor replied that he had taken due care and that other experts at the time had failed to identify the problem.
Held: The appeal succeeded. The evidence had during the course of the trial taken unexpected directions. The judge’s conclusion was contrary to the evidence, and was overturned. ‘The claimant retains the burden of persuasion; but, given the need for an explanation the defendant must, in the first instance, produce an explanation that at least goes far enough to raise questions about the initial assumption of negligence.’ and ‘ . . There was a heavy burden on Professor Rodeck to reconcile his incorrect conclusions with the exercise of all reasonable care and skill.’
Arden LJ (dissenting): ‘In this case once it was accepted that Professor Rodeck had performed a careful scan and that he must have seen mimicking echoes, the scan which he performed, even with its incorrect diagnosis, could not without more establish a prima facie case of negligence. It all depended on what those mimicking echoes were, and how they should have been interpreted by a reasonably competent tertiary sinologist. The appellant had to adduce expert evidence about this and the respondent had to adduce expert evidence in response. The judge then had to decide, on a balance of probabilities, whether Professor Rodeck was negligent. In that assessment the respondent did not in my judgment have to show that, on a balance of probabilities, Professor Rodeck was not negligent. The onus of proof remains on the claimant.’
Judges:
Lord Justice Buxton Lady Justice Arden Lord Justice Latham
Citations:
[2005] EWCA Civ 1466
Links:
Jurisdiction:
England and Wales
Citing:
Appeal from – Lillywhite and Another v University College London Hospitals NHS Trust QBD 3-Nov-2004
The clamant’s daughter had been born with serious brain defects. The defendant’s doctor had failed to spot the defect in an ultra scan before her birth. There had been discussions about the scan, and the claimant had considered having an abortion, . .
Cited – Penney and Others v East Kent Health Authority CA 16-Nov-1999
A cervical smear screener could be liable in negligence if he failed to spot obvious abnormalities in a test result which indicated that further investigation was required. To say this is not to say that such screening tests were expected to achieve . .
Cited – Delaney v Southmead Health Authority CA 1995
The plaintiff had sustained a lesion of the brachial plexus after a successful operation to remove her gall bladder. She claimed that this must have been occasioned by hyper abduction of her left arm by the anaesthetist at some point during the . .
Cited – P v Leeds Teaching Hospitals NHS Trust QBD 18-Jun-2004
The claimant, when in mid pregnancy, had a routine abdominal ultra-sound scan. The sonographer could not visualise the foetal bladder, and referred her Leeds General Infirmary. The record of the scan taken there two days later showed the bladder . .
Cited – Ratcliffe v Plymouth and Torbay Health Authority Exeter and North Devon Health Authority CA 11-Feb-1998
The plaintiff was given a spinal anaesthetic, but subsequently suffered a serious neurological defect on the right side. The cause was a mystery. The MRI Scan showed a lesion in the thoracic spine which the plaintiff claimed must have been the . .
Cited – Penney and Others v East Kent Health Authority CA 16-Nov-1999
A cervical smear screener could be liable in negligence if he failed to spot obvious abnormalities in a test result which indicated that further investigation was required. To say this is not to say that such screening tests were expected to achieve . .
Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence
Updated: 26 November 2022; Ref: scu.237454