ES v Chesterfield and North Derbyshire Royal Hospital NHS Trust

LORD JUSTICE BROOKE: This is an appeal by the claimant from so much of an order of Master Ungley at a case management conference on 12 February 2003 as directed that the evidence in this clinical negligence action should be limited to a report from not more than one expert in the field of obstetrics on each side. Master Ungley granted permission to appeal and directed that the appeal should be referred to this court on the grounds that there was a point of practice and procedure of significant importance. He commented that the application by the claimant to instruct two experts in obstetrics on the grounds that the professional whose conduct was in question was always a practitioner in the field was common to every clinical negligence case.

The particulars of claim show that the claimant was born at the Chesterfield Royal Hospital on the morning of 24 November 1994. She suffers from cerebral palsy, which resulted from a short period of severe acute inter partum hypoxia at or immediately prior to delivery at 6.44am. She was a healthy fetus who had thrived successfully in utero, and it is said that if she had been delivered at any time up to 6.10am she would have been preserved intact. Although criticisms are made of the standard of care given by the midwife on duty, the main complaints in these proceedings relate to the activities of an obstetric registrar, Dr Downes, who is now a consultant, and the advice given to him at the time by a consultant obstetrician at the hospital, Mr Krishnamurthy.

The claimant's allegations of negligence are founded on a report by Mr John Hare, who is a consultant obstetrician. Her advisers have also obtained a report from another consultant obstetrician, Dr Peter Buchan, and at the case management conference they sought a direction that they should be permitted to call their two experts, but that the defendants should be limited to one such expert on the grounds that Mr Downes and Mr Krishnamurthy, who were both now consultant obstetricians, would be giving evidence on the defendants' side. After setting out briefly the nature of the claim and the issue he had to decide, Master Ungley stated that he had been told that to ensure equality of arms he should permit the claimant to call a second expert. He commented:

In order to resolve this appeal it is necessary to look at the issues in the case more closely. The claimant's mother's labour progressed normally until shortly before delivery when there appeared to be an element of obstruction. Dr Downes was called, and he attempted to effect delivery with the use of various instruments. He first tried to use a device called a ventouse, where a rubber cap is applied to the fetal head and a vacuum is created by a suction air pump, but the cap came off on each occasion as he tried to draw the fetus down.

He then tried to use forceps to effect delivery. This was also ineffective, but the attempt appears to have caused the oxygen supply to the fetus to be significantly interrupted. It is asserted that immediately after the use of forceps the fetal heart rate dropped from its normal level of 120-140 beats per minute to 60 beats per minute. The reason for the non-delivery was that the fetus was in the less favourable occipito posterior position rather than the more usual anterior position. In other words, the fetal head was facing backwards.

After these unsuccessful attempts to effect delivery, Dr Downes contacted Mr Krishnamurthy as the consultant on call, who endorsed the course of action Dr Downes then took. The claimant's mother was transferred to the operating theatre, where the claimant was delivered "easily" using forceps. About 50 minutes elapsed from the time of the attempt at instrumental delivery which failed, and the eventual delivery of the claimant. By the time the claimant was actually delivered she was in a very poor condition and had suffered damage to her brain. She now suffers from four limb cerebral palsy of the extra pyramidal type with atheto-choreic movements, including the face, but with preservation of intellect. Her claim is valued at £1.5 million on the assumption that she will be able to prove all the negligence on which she relies. Issues of causation will depend to a considerable extent on the findings as to liability at different times in the pre-birth process.

Three main complaints are made about the quality of the care the claimant received. The first is that no appropriate allowance was made for the possibility that she was in the occipito posterior position, which is an abnormal presentation that can lead to difficulties. The second is that when it was clear that there was some apparent obstruction, the claimant's mother was not transferred to the operating theatre, so that the most appropriate method of delivery could be adopted: if there were any difficulties, the claimant could be swiftly delivered without the inevitable delay due to transfer to the theatre. The third is that Dr Downes persisted with the attempts at instrumental delivery in the delivery room. If problems arose there be an inevitable delay in effecting delivery, and Dr Downes thereafter still proceeded to an instrumental delivery (rather than an emergency Caesarean section) despite the evidence of fetal distress.

It is evident from the defence and from the witness statements of Dr Downes and Mr Krishnamurthy that it is accepted that the former wrongly concluded that the baby was in the occipito anterior position. It is also evident that he takes issue with the midwife's note that there was a prolonged fetal bradycardia at 5.55am, because he did not view the fetal heart rate pattern at that time as anything other than normal. There will be an issue of fact surrounding the measurements of the fetal heart rate and whether the fetal monitoring record truly represented the correct time of the matters shown on it: the claimant has been permitted to rely on the evidence of an expert in that technology. But once the facts are established, the main issues on liability will turn on the question whether the hospital's care of the claimant fell below the standard reasonably to be expected in relation to the matters identified in paragraph 7 above.

The claimant's case on this appeal is that she has no prospect of success unless the evidence she is allowed to call at the trial satisfies the judge on the Bolam test that aspects of her care in the immediate pre-birth period fell below the appropriate standard. The central issue, as I have said, is whether the doctors' clinical judgments, and in particular those made by Dr Downes, can be impugned.

The claimant is in receipt of Legal Service Commission funding, and her certificate was enlarged to enable instructions to be given to Dr Peter Buchan as well as to Mr Hare. Mr Wheatley, who appears for the claimant, submits that there is a significant risk that the view of a single practitioner on the range of decisions which represent a spectrum of reasonably acceptable clinical choices may not be wholly representative of the voice of the profession as a whole, however hard that practitioner may try to encompass all such views. He would be confronted with the evidence of three consultant obstetricians: Dr Downes himself, Mr Krishnamurthy and an independent expert. Even though the first two of these witnesses will be called to give evidence on fact, they are both consultant obstetricians and it is inevitable that they will be asked at the trial questions relating to the reasons why they acted as they did. It is equally inevitable that they will tend to answer that what they did was consistent with an appropriate standard of care and to explain why, perhaps with reference to their own personal experience.

We were invited to determine this appeal by reference to the overriding objective in CPR 1.1. We should ask ourselves, it was suggested, "What evidence ought to be permitted or refused in order to deal with this case justly?"

Part 35 of the Civil Procedure Rules is concerned with experts and assessors. The following rules are particularly relevant in the present context:

The remaining rules in this part, and the Practice Direction to CPR Part 35, contain very much more detailed prescription and guidance about the duties of experts, and the procedure to be adopted when experts are instructed, and these are now supplemented by the Code of Guidance on Expert Evidence which is published in Volume 1 of the 2003 White Book at pages 853-858.

Another source of assistance is Lord Woolf's Final Report on Access to Justice (1996), because this contains the philosophy that led to the overhaul of the arrangements for expert evidence in our civil courts. The whole of Chapter 13 of the report touches on this difficult topic, but for present purposes I need only quote paragraph 11 (on page 139), which begins a section headed "Court control of expert evidence: a flexible approach":

The authors of the Queen's Bench Guide recognised that there were particular features of professional negligence litigation which tended to suggest that a "one size fits all" approach to questions of this kind would be inappropriate. Paragraph 7.9.5 of the Guide (see the 2003 White Book, Volume 2, page 121) states:

Earlier judgments of this court have been concerned with different aspects of the new regime, but this appears to be the first occasion on which this court has had to consider the propriety of a party instructing more than one expert in the same discipline in very heavy multi-track litigation. Needless to say, we may only interfere with the discretion of a master or a district judge in such a case if he has gone outside the generous ambit of the discretion which is allowed to him, or if he has otherwise gone wrong in law in such a way that an appeal court can properly intervene.

The governing rule, therefore, limits expert evidence to that which is reasonably required to resolve the proceedings in issue. What is reasonable in any particular context will inevitably be fact sensitive. It would be wrong to approach this question with the predetermined belief that to instruct more than one expert in the same discipline will always be excessive. In addition to considering the facts, the court will need to remind itself in any contentious case of the principles underlying the overriding objective in CPR 1.1. In the present context the most important of the considerations set out in CPR 1.1.(2) appear to be:

While the other considerations listed in CPR 1.1(2) are always important, in a case like the present they are likely to be subordinated to the particular items I have listed.

It would be difficult to under-estimate the importance of the case to the parties. To those who are used to handling heavy clinical negligence cases it might appear to be just another cerebral palsy case, but to the claimant and her family on the one hand and to the medical staff of the hospital, whose standard of professional care is being impugned in a matter which resulted in catastrophic consequences, the case is very important indeed. This was not disputed by either counsel.

As I have said, the claim is valued at £1.5 million. This places it, so far as money is concerned, close to the top of the range in heavy multi-track litigation which does not have a commercial ingredient of some kind. So far as personal injury cases are concerned, it is a very large claim.

The issues are complex, not because it may not be relatively easy for the judge to understand the main features of the processes of obstetric care immediately before a baby is born, but because he will be invited to make a judgment on the appropriate standard of care when consultant obstetricians are in disagreement.

Both the defendants and the claimant are in receipt of public funds for this litigation, so that there is nothing in CPR 1(2)(c)(iv) which creates particular difficulties for the procedural judge to consider.

Above all, however, for a case of this importance, high monetary value and complexity the parties will not be on an equal footing if Master Ungley's order is to stand. The master appreciated that it was inevitable that a witness who happened to be a professional will give evidence of his actions based upon his or her professional expertise, but he thought that it was possible to isolate this evidence from the evidence on the "vital question of whether those decisions fell short of the required standard", on which he was permitting only one expert on each side. In my judgment he was clearly wrong to do this on the facts of this case.

Anybody watching the trial would be bound to be impressed by the fact that there was only one consultant obstetrician giving evidence for the claimant, while there would be three giving evidence for the defendant hospital trust, and those three would cover a much wider spectrum of personal experience than the single expert permitted to the claimant. It is not as if the medical witness of fact for the defendants is a junior hospital doctor. We were told something of Mr Downes' professional history both as a practitioner in a number of hospitals and as a teacher, and his evidence on the reasons why he believed he acted with appropriate care will be supported by two other consultants. Against them there will be a single voice speaking for the claimant, and Mr Wheatley spoke convincingly of the danger that he might appear to a judge to have a "bee in his bonnet" or an overly academic approach to matters of day by day clinical practice.

I do not moreover consider that the extra time and expense that would be introduced into the trial by the calling of a second expert for the claimant would be disproportionate in a case of this monetary value and importance.

For these reasons I would allow this appeal and direct that paragraph 7A of the master's order be varied so as to permit the claimant to call two experts in the field of obstetrics. Whether in due course the defendants should be permitted to call two such experts is not for us to decide on this appeal. After the expert evidence has been exchanged it may be that the defendants will be able to persuade the master that despite the wealth of obstetric expertise already on their side, a further expert is reasonably required. This is for the future. For present purposes it is sufficient to say that in my judgment it is necessary to permit two experts for the claimant in this case for some real purpose (to quote Lord Woolf's language), and that real purpose is the achievement of justice in accordance with the overriding objective on the particular facts of the present case.

Nothing in this judgment must be taken to give any sort of green light to the calling of two experts in a single discipline in any case which does not have exceptional features. On this appeal the presence of three consultants on the defendants' side constitutes such an exceptional feature.

I would therefore allow the appeal.

MR JUSTICE HOLMAN: I agree that this appeal should be allowed for the reasons given by Brooke LJ.

Masters and district judges have a heavy responsibility under the Civil Procedure Rules to control the type and number of experts in all cases, and must always be vigilant of their duty under Rule 35.1 to restrict expert evidence to that which is reasonably required to resolve the proceedings. But the approach cannot be mechanistic and must remain case specific, both by the terms of Rule 35.1 itself (which refers to "the proceedings") and by the overriding objective in Rule 1.

Before the master, the application for two experts in the field of obstetrics seems largely to have been based on the argument of "equality of arms". The master rejected that argument since he drew a sharp distinction between witnesses of fact and expert witnesses. Of course that distinction does exist. It is an important one, and it underpins the scheme of Part 35 of the CPR. But in my view it should not obscure the realities of a case such as this. As the master himself recognised, "it is inevitable that a witness who happens to be a professional will give evidence of his actions based upon his or her professional experience and expertise..." It is, in my view, not only inevitable but appropriate, for no professional person can explain or justify his or her actions and decisions save by reference to his or her training and experience.

In my view this is of particular relevance to an action which alleges professional negligence, governed by the Bolam test. When a court is considering what practices may be adopted by a responsible body of medical opinion, it seems to me impossible to exclude evidence given by two doctors, now both of consultant status, of their own experience, however much they may be labelled and confined as "witnesses of fact". The reality is that they have and profess expertise and, if credible, their evidence based on their experience and expertise cannot be ignored. So in my view there is an issue of equality of footing if the claimant is only permitted to call one obstetric expert while the defendants can rely upon two consultants plus an expert. However that is not decisive, for equality of footing is only one of the considerations in the overriding objective.

We were told that the overall value of the claim in this case may be around £1.5 million. The case is a very important one to both sides. The claimant is physically impaired for her entire life by cerebral palsy. If that was the result of negligence at the very moment of her birth, the issue in the case is of the utmost importance both to her and to her family. For the doctors who face an allegation of professional negligence the case is obviously very important, too. The estimated additional fees of the second expert is around £8,500 if he attends three to four days of the trial. The estimated added length to the trial (whose overall estimate is five days) is about two hours. In my view the balance of these considerations does make it proportionate and just as between the parties that this claimant is permitted to rely upon the reports of two obstetricians, not one; and the additional costs to public funds and share of the court's resources is also proportionate and just.

I wish to stress, as I have already indicated, that I take into account that the action relates to professional negligence and that the Bolam test will apply. I do not wish to give any encouragement at all to the instruction of a second expert in a given field in other types of case which are concerned only with establishing medical facts, not making judgments about professional competence; for example, but only by way of example, in deciding disputed issues of medical fact in public or private family law cases.

LORD JUSTICE KENNEDY: I agree. The court's power to restrict expert evidence is set out in CPR 35.4 and in the note to that rule the current edition of the White Book cites this sentence from the final report of Lord Woolf on Access to Justice:

It is noteworthy that at (b) Lord Woolf clearly envisages the possibility of there being more than one expert per party in a given speciality, if as is said in paragraph 11 that is necessary for some real purpose.

In the present case we are dealing with an 8-year old child who has been affected with cerebral palsy since birth. She claims that her condition is attributable to the negligent way in which her mother was treated during labour up to and including the time of her delivery. In particular there is criticism of the midwife, the registrar, Dr Downes and the consultant whose advice he sought, Mr Krishnamurthy. Dr Downes is now himself a consultant, and we have been told by Mr Wheatley for the appellant that he undertakes medico-legal work. So Mr Wheatley contends that if both sides are restricted to one independent expert in obstetrics there will be an imbalance. In response to any criticisms which may be made by the appellant's expert the respondents will be able to deploy three consultant obstetricians and it is no sufficient answer to say that two of them are witnesses as to fact. If the case is contested they are bound to seek to justify what they did or omitted to do by reference to the practice of others of which they are aware.

As Mr Wheatley pointed out, one allegation made in the defence is that, although the fetal head position was mistakenly believed to be occipito-anterior when in fact it was occipito-posterior, "this mistake can be made notwithstanding the application of a reasonable standard of care in the course of vaginal examination by either midwife or obstetrician". It is reasonable to assume that the proposition in the defence would be supported by Mr Downes, Mr Krishnamurthy and the respondents' independent expert obstetrician by reference to a wide range of experience. If the appellant's expert gives evidence to the contrary that evidence may well be attacked on the basis that procedures he or she says should have been used are a counsel of perfection, theoretical, not widely accepted in practice, and representing at most a small minority view. If judgment were then to be given in favour of the defendants the appellant's parents could justifiably feel that in the obstetrics field there had been no equality of arms, however distinguished the obstetrician who gave evidence on behalf of the claimant may have been.

Mr Wheatley readily concedes that a major purpose of the civil justice reforms was to avoid head counting and multiplicity of experts where additional experts will not assist the court. But here he submits that a second expert for the appellant could be of real value because he would have a different perspective, and might help to achieve the aims of justice by preventing a sole expert from being side-lined in the way that I have described.

Mr Hockton, for the respondent, submitted that in reality the respondent only has one expert, that Dr Downes, and Mr Krishnamurthy being witnesses as to fact, and that if the appellant is allowed to have two independent obstetricians the respondents should also be allowed to have two independent obstetricians, otherwise there will be inequality when the experts meet.

I am not impressed by either of those arguments. The reality is that, as Mr Wheatley envisaged, Dr Downes and Mr Krishnamurthy must be allowed to justify what they did or omitted to do, and that means that their evidence strays into the field of expert evidence, so that the respondents at trial will have three expert obstetricians at their disposal even though only one of them would attend any meeting of experts.

As to the submission that if the appellant is allowed to have a second independent obstetrician at this stage the same provision should be made in favour of the respondent I propose to say very little because that is not a live issue in this appeal. It is not to be found in the appellant's notice. There is no respondents' notice and it cannot be found in any skeleton argument, so if the matter does have to be fully considered it must be considered on another day, but clearly the respondents would not need another obstetrician in order to meet the argument that their three existing witnesses represented only a narrow point of view.

In my judgment the importance of this case is that it affords an opportunity to emphasise that:

Of course when reports have been exchanged and experts have met it is to be hoped that the issues will be narrow. I do not seek to anticipate what order might be appropriate at that stage. It is sufficient to say that the reasons I have given (which reflect what have been said by my Lords) I would allow this appeal and make the order sort in the terms indicated.