Lessons from the first Clinical Negligence RCJ trial in Lockdown

September 11, 2020

SC (a child suing by her mother and litigation friend AC) v University Hospital Southampton NHS Foundation Trust [2020] EWHC 1432 (QB) concerned a child who had been seen by a GP who had suspected meningitis and had administered intramuscular penicillin and sent her to hospital.  The hospital doctors found symptoms of tonsillitis and so rejected meningitis as a diagnosis and sent her home.  A subsequent visit the next day prompted no further investigations.  Many days later, after a further referral to hospital and a lumbar puncture, pneumococcal meningitis was discovered.  Ultimately, further complications ensued and neurological injury followed, such that the child now has a hemiparetic cerebral palsy.

One of the critical findings of the judge, Mr Justice Johnson, was that the hospital doctors should have taken further account of the effect the intramuscular penicillin (administered by the GP) would have had upon the child by the time of arrival at hospital.  It was not appropriate to consider simply the condition of the child at the moment of the hospital examination (since by that stage the intramuscular penicillin would have had some beneficial effect) and it was necessary to take account of the serious symptoms the GP had found, which could not be explained by tonsillitis.   In that regard, contemporary paediatric textbooks, all setting out the symptoms to be expected in tonsillitis on the one hand and a serious bacterial infection on the other hand, were critical in establishing that the doctors ought to have considered (and indeed treated) the serious bacterial infection.

It was essentially on that basis that Johnson J found the defendant liable.  What is perhaps more noteworthy is the Court’s preference for and the experience of an in-person trial during the current pandemic.  At a pre-trial hearing at the beginning of June, reported as SC (a child suing by her mother and litigation friend AC) v University Hospital Southampton NHS Foundation Trust [2020] EWHC 1432 (QB) Johnson J ruled that a (liability only) trial could proceed in person and gave directions (by way of a protocol) to ensure that the hearing of the trial could take place while adhering to government COVID guidelines.  That protocol is attached to this note and is of general interest.  It was accepted that one expert had to give evidence by video-link (due to his own health reasons) but the remainder of the evidence was to involve live witnesses.

In a striking passage as to whether a remote hearing would have been desirable, Johnson J said this:

A hearing that is wholly remote lacks many of the features and benefits of a hearing that takes place in court.  The solemnity, formality and focus of the courtroom is not easily replicated by a remote hearing.  More importantly, the complex multi-layered human communications and observations that take place during a substantial witness trial are significantly impeded when the hearing is conducted remotely.  A video-conference is necessarily two-dimensional and permissive only of bilateral communication and observation.  …  In this case a remote hearing would be possible. However, having regard to the likely length of the hearing, the nature of the issues, the volume of written material and the complexity of the lay and expert evidence, a remote hearing would be undesirable.”

The trial went ahead in June 2020 and is reported as SC (a child suing by her mother and litigation friend AC) v University Hospital Southampton NHS Foundation Trust [2020] EWHC 1610 (QB).  The evidence of the one expert who had to give evidence remotely was very different in character from the evidence given by those present in person.  With additional preparation (and subject to some technical problems) it was feasible, but it was not easy.  There was less interaction with the witness giving evidence and, for instance, the witness could not turn and address the Judge.  It would also have been difficult for the witness to gauge whether those in court had fully understood what was said.  As a consequence of the difficulties, there was a tendency to abbreviate the questions posed via video-link to an absolute minimum.

It would have been unsatisfactory and very troublesome indeed to have conducted the whole trial by video link for the reasons foreseen by the Judge.  The evidence was not straightforward and entailed difficult recollections for the family in particular. A trial by video-link would have made it much more difficult to arrange the extremely important discussions with one’s experts while cross examining the other side’s witnesses; neither would it have allowed, to the same extent, for discussions with one’s client, particularly while the other side is giving evidence.

Furthermore, a family who is facing such a trial should have the opportunity to have continued assistance from their legal team throughout the trial and it is unlikely that that would have been possible to the same extent had the trial gone ahead via video link.  Perhaps the possibility of having to do things via video link (because of COVID) has caused us all to appreciate the importance of an in-person trial and all that that brings in terms of ensuring that justice is done.  As the judge put it: “the complex multi-layered human communications and observations that take place during a substantial witness trial are significantly impeded when the hearing is conducted remotely.”

Please click here to read protocol.

Catherine Ewins, of Hailsham Chambers, successfully represented the Claimant in the trial on liability.

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