Hewes v West Hertfordshire Hospitals NHS Trust & Ors (3) [2018] EWHC 2715 (QB) (18 October 2018)

…appeal from the decision of Master Cook… The Master’s decision was to dismiss C’s claim against D3 by way of summary judgment… [2]

…C was the victim of Cauda Equina Syndrome (‘CES’)… [6]

C’s case is that each D contributed to an unreasonable delay in getting him to the operating table and that, had he been operated on earlier… he would have avoided a complete CES and the permanent consequences… [8]

…there has been no reported decision of a successful summary judgment application in a clinical negligence case. As a matter of principle there is no reason why clinical negligence cases are any different from any other case and an obviously weak case on liability or causation is vulnerable to such an application. That said, there will be few cases, in my view, where such an application could ordinarily be contemplated before the relevant experts’ reports have been exchanged and, in most cases, until after the experts have discussed the case and produced a joint statement. Experts do from time to time change their views in the light of discussions with their counterparts and, whilst it is not to be encouraged and is ordinarily unsuccessful, there are occasions when a party will make a credible application to substitute another expert at some stage. This means that the task of considering, on a summary judgment application, evidence “which can reasonably be expected to be available at trial and the lack of it” … is one that needs to be undertaken with caution… [45]

…once CES was suspected, time became of the essence and that, accordingly, any reasonably competent medical practitioner should take steps to minimise delay… in my view it was an obvious inference that this would be the argument advanced by the GP expert for C given the Letter of Claim and the pleadings to which I have referred. I say nothing about whether the argument will succeed – that is a matter for the trial judge – but it would, in my judgment, be impossible to say that the proposition is unarguable and clearly doomed to fail. [46]

Appeal allowed… [58]