One of the notable clinical negligence judgments so far this year has been the case of Schembri v Marshall  EWCA Civ 358. This was another case looking at the thorny issue of causation in clinical negligence cases: in other words, what does the claimant need to prove to succeed? Philippa Luscombe, partner in the Penningtons Manches Cooper clinical negligence team, looks at the case and its likely implications.
By way of a recap on the applicable law and tests in the context of clinical negligence claims, the burden of proof in such claims is always on the claimant. The claimant has to prove:
Unlike personal injury claims, where it is usually quite clear that negligence has caused an injury and what that injury is, the situation is often much more complicated in clinical negligence claims. In most cases, the claimant is only receiving medical care in the first place because they have some form of health issue and/or injury. Being able to distinguish what would have been the outcome with proper care, and how that outcome has been affected, is often both difficult and contentious.
The starting point is that the claimant needs to prove what would have happened with proper care on the balance of probabilities (ie more likely than not). In a case involving, for example, a delay in diagnosis of cancer in which the cancer was there all along and the issue is the delay in diagnosis, a claimant has to prove that the delay in diagnosis affected the extent of treatment needed and/or their long term outcome on the balance of probabilities. If someone has passed away, then for a claim that their death was due to negligence to succeed, the claimant’s representatives need to prove that on the balance of probabilities they would have survived with proper care – and why. Sometimes this is easy, but, as above, it is often the main area of dispute between the parties.
Schembri was a case that will be useful to claimants, although in fact it confirms the law rather than makes new law. In Schembri, the claimant’s wife died as a result of a pulmonary embolism (PE). Her husband brought a claim against her GP, alleging that when his wife had attended the GP’s practice the day before her death, the GP was negligent in failing to consider the possibility of a PE and/or to refer her to hospital given her reports of chest pain, breathlessness and her history of a previous PE. Instead of being referred to hospital, she had returned home and then collapsed some 16 hours after the GP appointment. Whilst an ambulance attended and efforts were made to save the deceased, they sadly failed.
Breach of duty was admitted: it was accepted that the claimant’s wife should have been referred to hospital. The defendant further admitted that on admission to hospital, the deceased would have been diagnosed with a PE and would have received anticoagulation. The onus was then on those acting for the claimant to evidence the likely sequence of events which earlier admission to hospital would have resulted in, and how that sequence of events (and the timing) would have avoided the death. Not unexpectedly, the stance of the defence team was that the pulmonary embolism was so severe and the window of time to prevent it so small that appropriate action by the GP and earlier hospitalisation would not have made a difference: anticoagulation would have had insufficient time to work to prevent the PE. The claimant argued that either the anticoagulation alone would have been administered in time to prevent the PE, or, in the alternative, that even if the deceased had suffered the PE, she would have received thrombolysis and that would have prevented her death.
The case was heard at first instance by Stewart J. He considered the claimant’s case on causation, but made a finding that the claimant had not established that, on the balance of probabilities, the deceased would have avoided the PE or that if she had suffered the PE, she would have received a prescription of the thrombolytic drug Alteplase before she went into cardiogenic shock and subsequent arrest. He held (perhaps surprisingly) that they had not proved that on the balance of probabilities she would have been in the group of patients who survive cardiogenic shock (even though the number that do survive significantly exceeds 50%). Perhaps more significantly, he noted that less than 50% of patients survive cardiac arrest in such circumstances and that the claimant had not established that she would have fallen outside that category. In the absence of establishing either that anticoagulation would have had time to prevent the PE or that she would have received thrombolysis, the claimant’s case as presented failed on causation.
However, his judgment then went on to what some considered to be new ground, in terms of the test of causation – but in fact, it picked up a principle established in earlier case law. Having held that the claimant had failed to establish his case on the sequence of events and mechanisms by which death would have been avoided, he said in his judgment that “…the claimant has the burden of proving causation. Yet the claimant needs to prove no more than that Mrs Marshall would probably have survived had she been admitted to hospital. The claimant does not need to prove the precise mechanism by which her survival would have been achieved.”
In the absence of the claimant having been able to establish on the balance of probabilities the exact mechanism by which the deceased would have survived, the judge then simply looked at the general prospects of survival from a pulmonary embolism suffered whilst in hospital - on the basis that the difference here was that with proper care, the deceased would have been in hospital when she suffered the PE. He said that the question was “looking at the evidence as a whole, is it nevertheless more likely than not that DM would have survived had she been referred to Southend Hospital?”
This issue of taking into account that the unknowns are due to the defendant’s negligence and looking in general terms as to likely outcome was not in fact making its first appearance. Stewart J referred to the case of Drake v Harbour  EWCA Civ 25, where Toulson J had held:
“Where a claimant proves both that a defendant was negligent and that loss ensued which was of a kind likely to have resulted from such negligence, this will ordinarily be enough to enable a court to infer that it was probably so caused, even if the claimant is unable to prove positively the precise mechanism. That is not a principle of law nor does it involve an alteration in the burden of proof; rather, it is a matter of applying common sense. The court must consider any alternative theories of causation advanced by the defendant before reaching its conclusion about where the probability lies. If it concludes that the only alternative suggestions put forward by the defendant are on balance improbable, that is likely to fortify the court's conclusion that it is legitimate to infer that the loss was caused by the proven negligence.”
Experts on both sides had given evidence that deaths from PE in hospital were very unusual, particularly in patients such as in this case with no comorbidities or other risk factors. The judge therefore held that statistically, the chances of surviving a PE in hospital are high but it was not possible to give a clear mechanism as to how and why in this instance the deceased would have survived. Therefore, he simply needed to look at whether a patient suffering a PE of this type in hospital would, on the balance of probabilities, survive. As the majority of patients without comorbidities and risk factors do indeed survive, he accepted that (based on the statistics) with referral and hospital admission before the PE the deceased would, on the balance of probabilities, have survived.
The case caused some interest at the time and, probably unsurprisingly, the defendant appealed, arguing that Stewart J having held, on the basis of a detailed analysis of the evidence, that the claimant had not proved how the deceased would have survived had she been admitted to hospital, meant that the claim had failed on causation and he was wrong to then look at a general analysis of whether patients suffering a PE in hospital will survive. He should not have found for the claimant on the basis of a ‘general’ analysis that most patients do not die from PEs in hospital: it was for the claimant to prove that death would not have occurred in that particular case, and how.
Not surprisingly, the claimants in response relied on Drake v Harbour; specifically that where a breach of duty is established and the injury is of a kind likely to have resulted from that breach, in the absence of any clear evidence as to the likely outcome in that individual case, that is usually enough for the court to find the injury resulted from the breach.
The Court of Appeal held that the judge’s approach was appropriate. He had first considered whether the claimant had established a specific chain of events that, on the balance of probabilities, would have saved the deceased and how. Having decided that the claimant had not met that test because there were too many unknown factors, it was acceptable for the judge to look at general statistics. They took a (perhaps slightly patriarchal) view that in this instance, the reason that no one could say if the deceased would have survived was because of the defendant’s negligence – had the negligence not occurred, she would have been in hospital at the time of the PE and her outcome would be known. As the claimant could not prove the case on the standard basis, not because the defendant had more persuasive evidence as to the outcome but because there were too many unknowns to assess what would have happened in this individual case, a general approach was acceptable and Stewart J had been right to take a “pragmatic and common sense view” of “the evidence as a whole”.
The appeal court concluded that the judge had considered whether the claimant could establish a specific mechanism which would have saved the deceased and, having not been able to do so, had gone on to look at all the evidence to assess whether it was more likely than not that she would have survived. On the basis of all the available evidence, the judge had attempted to identify the case of what would have happened in hospital, on a balance of probabilities. The appeal court considered that the judge was entitled to reach a conclusion that on the balance of probabilities she would have survived – based on all the evidence including the facts specific to her case. The appeal was dismissed.
So what does this mean for claimants and causation? In reality, this is not a case that radically changes the test for causation nor makes it easy for claimants to establish causation. However, it does mean that on fact-specific cases where neither party can convincingly explain what is likely to have happened and why, the court can look not just at the specifics but also in general terms at whether the outcome for the claimant is one to be expected as a result of the type of negligence suffered and what their outcome ‘probably’ would have been without the negligence: a claimant does not always have to prove the precise mechanism of injury or how injury would be avoided.