Duce v Worcestershire Acute Hospitals NHS Trust

The appellant, Mrs Duce, is the claimant in proceedings against the respondent, Worcestershire Acute Hospitals NHS Trust. I will refer to the parties respectively as “the claimant” and “the defendant”. In March 2008 the claimant underwent a total abdominal hysterectomy and bilateral salpingo-oophorectomy at Worcester Royal Hospital. Her case is that she suffered neuropathic post-operative pain as a result of the surgery and she claims damages for negligence in failing to warn her of the risk of developing such pain.

The procedural history reveals a muddle. The claim was struck out by District Judge MacKenzie as having no real prospect of success, in circumstances where that issue should not have been before the court at all. Thereafter the question whether there was a real prospect of success became the focus of attention on an application to reinstate the claim. The application was dismissed by District Judge Khan. An appeal, with a linked application to amend the particulars of claim, was dismissed by His Honour Judge Pearce-Higgins QC. A second appeal is now brought to this court against the judge’s order, on limited grounds for which permission was granted by Gloster LJ.

The claim form was issued on 21 March 2011. It was served with the particulars of claim on 18 July 2011. The particulars of claim set out details of the pain allegedly suffered by the claimant as a result of the surgery, together with her understanding that it constituted neuropathic chronic post-surgical pain (“CPSP”). There was alleged to have been a negligent failure to warn the claimant prior to surgery of the risk of CPSP, and it was alleged that she would not have consented to the surgery if she had been properly informed of that risk.

Paragraph 4.3 of Practice Direction 16 supplementing the Civil Procedure Rules (“CPR PD 16”) provides:

“Where the claimant is relying on the evidence of a medical practitioner the claimant must attach to or serve with his particulars of claim a report from a medical practitioner about the personal injuries which he alleges in his claim.”

It is common ground that the medical practitioner’s report so required is a “condition and prognosis” report about the alleged injuries, not the expert medical evidence relied on in support of allegations of breach of duty and causation.

The required report of a medical practitioner was not attached to or served with the particulars of claim. On 11 October 2011 the defendant applied for an order that the claimant serve a report within 7 days or be debarred from relying on such evidence. The terms of the application make clear that what was sought was a condition and prognosis report.

On 13 December 2011 DJ MacKenzie made an order that included the following:

“5.

On the Defendant’s application dated 11.10.11 it is ordered that the claimant must file and serve the medical evidence on which she proposes to rely within 14 days of service of this order. Unless she does so she will be debarred from relying on such evidence in the absence of any further order of this court.

6.

In the absence of any such medical evidence it is difficult to see how the claim can succeed and if no such evidence is filed the court may consider striking out the claim on request.”

One sees in that order the beginnings of the subsequent muddle. On its face, paragraph 5 of the order was not limited to service of a condition and prognosis report as required by CPR PD 16 paragraph 4.3 but appeared to direct the claimant to serve all the medical evidence on which she proposed to rely, including evidence relating to breach of duty and causation. Whilst the former would have been an entirely appropriate order, there was no justification for the latter. Further, paragraph 6 of the order blurred the distinction, considered below, between the conditions for a strike-out and the conditions for summary judgment. It may also be noted that it envisaged action “on request” rather than on the court’s own initiative.

On 21 December 2011 the claimant sent to the court a report by Dr Charles A Gauci, a consultant in chronic pain management, going to the issue of breach of duty. Dr Gauci had not at that stage seen the claimant herself but he considered the general risk of developing CPSP and the specific risk factors present in the claimant’s case, based on her clinical notes. He expressed the opinion that all patients, especially those who display the claimant’s risk factors, should be advised about the risk of developing CPSP. There were three main problems about his report: (1) it was not a condition and prognosis report and did not therefore cure the failure to comply with CPR PD 16 paragraph 4.3; (2) it did not include the expert’s declarations required by CPR PD 35 paragraphs 3.2 and 3.3; and (3) Dr Gauci was a pain specialist whereas, as was subsequently identified, expert evidence on the question whether there was a duty to warn should have come more appropriately from a gynaecologist.

To add to the problems, owing to an administrative error Dr Gauci’s report did not get through to DJ MacKenzie by the time when he made a further order, on 6 January 2012, in the following terms:

“(1)

Subsequent to the order of 13^th December 2011 it is noted that there is still no medical evidence and the claimant’s AQ [allocation questionnaire] simply says they will want expert evidence but gives no indication as to who has or will be used. Under those circumstances and bearing in mind the nature of the claim THIS CLAIM IS STRUCK OUT as having no real prospect of success.

…

(3)

Because this Order has been made by the Court without considering representations from the parties, the parties have the right to apply to have the order set aside, varied or stayed ….”

Contrary to the indication given in the order of 13 December 2011, that strike-out order was made on the court’s own initiative, not at the request of the defendant.

On receipt of the order the claimant drew attention to the fact that Dr Gauci’s report had been sent to the court, and a further copy was provided. This resulted in the District Judge reconsidering his order of 6 January but with the same result. His order of 17 January 2012 provided:

“The order dated 6 January 2012 striking out these proceedings shall stand for the following reasons:

1.

Although there is now a medical report it is not CPR compliant.

2.

There remains no real prospect of success.”

CPR 3.4(2) provides that the court may strike out a statement of case if it appears to the court (a) that the statement of case discloses no reasonable grounds for bringing the claim, (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the court proceedings, or (c) that there has been a failure to comply with a rule, practice direction or court order. The power to strike out under that provision is to be distinguished from the power under CPR 24.2 to give summary judgment against a claimant if the court considers that the claimant has no real prospect of succeeding on the claim. In striking out the claim and confirming the strike-out, the District Judge appears to have confused the two provisions. Despite the reference to the medical report not being CPR compliant, the ground of the strike-out was not that the claimant had failed to comply with a rule, practice direction or court order but that the claim had no real prospect of success, which is the test under CPR 24.2 not under CPR 3.4(2). If the District Judge took the view that the claim could not succeed without the medical evidence which the claimant was now debarred from relying on, he was wrong to proceed on that basis in circumstances where the only medical evidence that the claimant was or should have been required to produce at that stage was the condition and prognosis report required by CPR PD 16.

None of this, however, was raised on behalf of the claimant when an application was made on 19 January 2012 to reinstate the claim. The application to reinstate (which appears to have been an application pursuant to CPR 3.3(5) to set aside the District Judge’s orders on the basis that they had been made without hearing representations from the claimant) was supported by a witness statement of the claimant’s solicitor, Mr Richard Prescott. He set out the steps he had taken to try to obtain expert evidence, from which it was apparent that the first supportive report received had been that of Dr Gauci in December 2011, many months after service of the claim form and the particulars of claim. Mr Prescott apologised for the non-compliance of Dr Gauci’s report with CPR PD 35 and said that steps were being taken to remedy that error: Dr Gauci’s report was in fact re-served on 13 February 2012 in a form compliant with CPR PD 35 (though, as already stated, it went to the issue of breach of duty and was not a condition and prognosis report of the kind required by CPR PD 16 paragraph 4.3). Mr Prescott then dealt with the prospects of success, relying on the substance of Dr Gauci’s report in support of the allegation that the claimant should have been warned of the risk of CPSP. He apologised for the fact that the allocation questionnaire had not specified the experts to be used, and he requested that the claimant be permitted to rely on Dr Gauci, a psychologist “and an expert gynaecologist”. The witness statement concluded with a section on CPR 3.9 concerning relief from sanction, but it did not identify the sanction in issue. In so far as it was directed at the strike-out it was misconceived, since the strike-out had not been by way of sanction for breach of a rule, practice direction or court order but on the ground that the claim had no real prospect of success. The only sanction to have been imposed was pursuant to the debarring provision of paragraph 5 of the order of 13 December 2011, which had been engaged by the failure to serve a CPR-compliant medical report within the time laid down; but little attention seems to have been directed to that as a separate matter.

The claimant’s skeleton argument for the hearing of the application relied on Mr Prescott’s witness statement and likewise concentrated on the question whether there was a real prospect of success.

The application was heard by DJ Khan on 5 April 2012. Immediately prior to the hearing there was served a second substantive report by Dr Gauci. This second report was based on an examination of the claimant and was a condition and prognosis report of the kind required by CPR PD 16 paragraph 4.3. It concluded that the claimant had developed neuropathic pain as a result of surgery and had also experienced a recurrence of pre-existing low back pain. There was no specific application under CPR 3.9 for relief from sanction to enable the claimant to rely on that report out of time. On the other hand, it appears that there was no objection on the part of the defendant to the claimant’s reliance on the report.

DJ Khan said in his judgment that the application before him appeared to be a two-fold application in some respects: “firstly it is an application for relief from sanctions in terms of the medical evidence not having been filed, or CPR-compliant medical evidence not having been filed; and secondly, an application to reinstate the claim on the basis of it having been struck out under CPR 3.4(2) as having no real prospect of success”. He dealt first with the second aspect, which seemed to him to be the real crux of the issue. He referred to the existence of an overlap with CPR Part 24 but noted that the claim had been struck out on the basis that there was no real prospect of success. He said that he was “quite clear that the claimant must, in a medical negligence case of this nature, have the medical evidence to support the claim in respect of a breach of duty, without which a claim could not succeed” (paragraph 10). He was not satisfied that Dr Gauci was a suitable expert, observing that an obstetrics and gynaecological expert would be the appropriate professional. He concluded that “on the evidence the claimant brings (there is no other evidence)” he was satisfied that the claimant had no real prospect of success. He therefore declined to set aside DJ MacKenzie’s order.

In relation to the question of relief from sanction under CPR 3.9, DJ Khan went through the checklist of factors set out in the version of CPR 3.9 then in force. He seems to have proceeded on the assumption that a sanction had been imposed for failure by the claimant to serve medical evidence in support of the allegation of breach of duty. He must therefore have understood CPR PD 16 and/or DJ MacKenzie’s order of 13 December 2011 as imposing such a requirement. He said that “in an action of this nature the medical report is the crucial matter or a crucial matter in proving a breach of duty” (paragraph 17), and he made a further reference to “the need to prove a breach of duty of care on the part of the defendant” (paragraph 22). Consistently with that view, he evidently regarded Dr Gauci’s first report (on breach of duty) to have been the relevant report, observing in relation to the order of 13 December 2011 that the medical evidence was served “but it was not compliant” (paragraph 19). Having considered the various factors, and “bearing in mind there is no real prospect of success” (paragraph 26), he declined to grant relief from sanction.

The order giving effect to DJ Khan’s judgment provided simply that “the Claimant’s application to reinstate the claim is dismissed”. The claimant appealed against that order. The focus of the grounds of appeal and the claimant’s skeleton argument was on the question whether the claim had a real prospect of success.

The appeal came on for hearing before Judge Pearce-Higgins on 10 August 2012. The hearing proceeded in substance as a hearing under CPR Part 24. Thus, at an early stage the claimant’s counsel submitted to the judge: “… when you are considering striking out, the authorities seem to be that you should really apply the consider[ations] under, and the approach, under part 24. … Because it is the real prospect approach which you should apply”. The argument was as to whether Dr Gauci’s first report (once put into CPR-compliant form) established a material risk of CPSP and, if it did, whether it was adequate for a pain consultant, rather than a gynaecological expert, to give that evidence and express the opinion that there should have been a warning.

In the judgment he gave on that day the judge concluded that the evidence of a gynaecologist was needed. He noted that the claimant’s documents contemplated the acquisition of a gynaecological report and that he had been told that an expert had been instructed. In his judgment, “the claim, with the evidence currently available is arguable, but has no real prospect of success” (paragraph 35). He said that once the decision had been made that the claim had no reasonable prospect of success “there is no basis upon which the court can reinstate it pursuant to CPR 3.9” (paragraph 37). But he decided to allow the claimant a short further time in which to produce a further expert report, preferably from a gynaecologist.

The claimant duly availed herself of that opportunity, obtaining and serving an expert report dated 13 October 2012 by Mr Hisham Abouzeid, a consultant obstetrician and gynaecologist. The report drew a distinction between CPSP specifically and post-operative pain or chronic post-operative pain in general, though there was stated to be no universally agreed definition of CPSP and the report did not make the nature of the relevant distinctions entirely clear. The report included the following conclusions:

“There has been growing evidence that the risk of developing CPSP after hysterectomy is considerably high to warn the patient before abdominal hysterectomy. However, many of the publications about this particular risk are relatively recent ones. In March 2008, there was not enough evidence in the literature about the postoperative risk after hysterectomy of developing CPSP. Therefore, it is accepted from a respectable body of gynaecological opinion that a warning of the risk of developing CPSP was unnecessary in the case of a patient having the claimant history and who was a candidate for abdominal hysterectomy. However, the risk of chronic postoperative pain in general in her case was considerably high enough to recommend warning the claimant of that risk before her surgery.

…

In March 2008, in the light of the claimant’s medical history there was not enough evidence in the literature about the claimant’s specific risk of developing CPSP. However, there was enough evidence that the risk of postoperative pain is high enough to warrant warning the claimant about it before surgery.

…

The direct relation between the surgical procedure (abdominal hysterectomy) and the development of chronic neuropathic postoperative pain is clear in this case ….

…

The defendant breached the duty of informing the patient about the risk of developing postoperative pain. However, in relation to the specific risk of developing chronic post-surgical pain (CPSP), my judgment is that there was no breach of duty, as there was no clear evidence of that specific risk in March 2008.”

The report was summarised by the claimant’s counsel in a document supporting an application to amend the particulars of claim. Mr Abouzeid confirmed by email that his opinion was as indicated in counsel’s summary. Judge Pearce-Higgins relied on the agreed summary as qualifying what was said in the report but, to the extent that anything turns on it, I think it better to rely on the report than on the summary.

The application to amend the particulars of claim was made on the basis of Mr Abouzeid’s report and in broad terms involved the deletion of references to the risk of CPSP and the substitution of references to the risk of post-operative pain, particularly in the light of the claimant’s history. For example, the proposed amendment to paragraph 12 of the particulars was as follows:

“At no time prior to signing the consent form … was the Claimant informed of the risk of developing CPSP post operative pain or that, because of her past medical history, that risk, in her particular case, was increased.”

The adjourned hearing of the appeal against DJ Khan’s order came back before Judge Pearce-Higgins, together with the application to amend, on 13 December 2012. The judge does not appear to have been troubled about the admission of the fresh evidence relied on by the claimant, no doubt because this was evidence of the kind envisaged by him when adjourning the appeal part-heard on the previous occasion.

In his short judgment on 13 December the judge said that in the light of Mr Abouzeid’s report the claim as currently framed could not be sustained. As to Mr Abouzeid’s view that there should have been a general warning about the existence of post-operative pain, the judge thought that the doctor had confused matters by talking in one of the passages quoted above about “chronic” post-operative pain: in the light of the doctor’s confirmation of counsel’s summary, the judge thought that what the doctor meant was “any” pain. He referred to the draft amended particulars of claim alleging that the claimant “should have been advised about pain generally and told that, after the operation, she might suffer pain” and that “had she known that, she would not have had the operation”. He continued:

“5.

That all strikes me as very speculative. My conclusion is that, as currently framed, it seems to be common ground that the claim cannot be sustained and should be struck out. On the basis of the proposed amendment, in my judgment it has no real prospect of success and is hardly even arguable. There is no other reason to permit it to proceed to a hearing and indeed every reason why it should be struck out at this stage. On that basis in my judgment the claim must be struck out.”

Mr Benjamin Browne QC, who did not appear below, advances two grounds of appeal on behalf of the claimant. In the order in which he developed them at the hearing, the first arises out of the procedural confusion to which I have referred and is to the effect that DJ Khan and Judge Pearce-Higgins both considered the issues on a mistaken basis. They both proceeded on the basis that there had been an obligation on the claimant to adduce expert evidence as to breach of duty and/or causation, whereas the only obligation had been to serve a medical report in respect of the claimant’s condition and prognosis (and whilst there had been a breach of that obligation, belated compliance had been achieved by the time of the hearing before DJ Khan, without causing any real prejudice). Further, they both concentrated on whether the claim had a real prospect of success, whereas that was not a valid basis for the strike-out which they affirmed, and if that issue was to be considered it should have been following an application under CPR Part 24 and/or on proper notice to the claimant.

The second ground is essentially that Judge Pearce-Higgins was wrong to find that the claim had no real prospect of success. Mr Browne submits that the judge was wrong even in relation to the claimant’s case as originally pleaded: the general thrust of the evidence was that there should have been a warning of the risk of post-operative pain, and the claim should not have been struck out just because the terminology of CPSP was incorrect. But in any event it is submitted that the judge should have found that Mr Abouzeid’s evidence supported the claimant’s case as pleaded in the proposed amendment to the particulars of claim and he should therefore have allowed the case to proceed on the basis of the amended pleading.

For the defendant, Mr Philip Havers QC acknowledges the existence of a degree of procedural muddle in this case but he makes the robust submission that “we are where we are” and that it is too late to go back over the old ground. He says that it was the claimant who chose to serve medical evidence (in the form of Dr Gauci’s first report) on the issue of breach of duty; and following the strike-out the claimant concentrated not on the procedural issues now raised by Mr Browne but on whether the evidence relied on established a real prospect of success. Neither DJ Khan nor Judge Pearce-Higgins can be criticised for concentrating on that question. They cannot sensibly be expected to have addressed the matter solely by reference to the failure to serve the required condition and prognosis report. The focus now, submits Mr Havers, should be on the state of the evidence and the draft amended particulars of claim at the end of the hearing before Judge Pearce-Higgins. The judge was right to find that the claim even as reformulated had no real prospect of success; and if he was right on that, to have allowed the appeal on any other basis would have been pointless.

In support of his submission that the judge was entitled to find that the claim had no real prospect of success, Mr Havers draws attention to a tension within Mr Abouzeid’s report: Mr Abouzeid’s opinion was that the claimant should have been warned of the risk of post-operative pain, yet the report’s case summary states that the claimant’s pain was categorised as “neuropathic chronic post-surgical pain (CPSP)” and Mr Abouzeid considered there to be no duty to warn her of the risk of CPSP. More generally Mr Havers makes two broad points. First, he says that it is very difficult to see why the surgeon or clinical staff should have specifically advised the claimant of the risk of some post-operative pain. That risk must have been obvious to the claimant herself, especially given the serious nature of the operation. It is fanciful to suggest that she would have been unaware of the risk of pain without such warning. But even if the claimant should have been warned, Mr Havers submits secondly that there is no real prospect of her establishing causation, that is to say of her persuading the court that she would not have had the operation if she had been warned about the risk of post-operative pain. In that connection he points to evidence or pleaded allegations to the effect that she was determined to have the operation despite recommendations of alternative options.

It is difficult to disagree with Mr Havers’s proposition that we are where we are. But it is right to stress that where we are is not where we ought to be. If clearer thinking had been applied at the earlier procedural stages, I would have expected the claim to proceed without a strike-out and therefore without the need for an application and subsequent appeals (including the present second appeal) directed towards reinstating the claim following a strike-out.

The correct focus of attention early in the proceedings should have been on the claimant’s failure to serve a condition and prognosis report from a medical practitioner with the particulars of claim, as required by CPR PD 16 paragraph 4.3. If DJ MacKenzie’s order of 13 December 2011 had been limited in terms to the requirement to serve such a report, rather than being expressed in terms of a requirement to serve “the medical evidence on which [the claimant] proposes to rely”, there would have been no reason to serve Dr Gauci’s first report (relating to breach of duty) at that time and the issues that arose concerning its non-compliance with the CPR and concerning real prospect of success would not have arisen. There would still have been a failure, of course, to serve a condition and prognosis report as required. That failure would have triggered the sanction in the order of 13 December 2011 that the claimant was debarred from relying on such evidence in the absence of further order of the court; and the claimant would have needed relief from sanction pursuant to CPR 3.9 to enable her to rely on such evidence. But if that had been the only issue when the case came before DJ Khan on 5 April 2012, the likelihood is that relief would have been granted. A condition and prognosis report, in the form of Dr Gauci’s second substantive report, had been served by that time (albeit only just before the hearing), little prejudice can have been caused to the defendant by the delay, and the general approach to CPR 3.9 in its then existing form was less rigorous than is now required in relation to the version introduced with effect from 1 April 2013 (as to which, see Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537).

In practice, however, as I have explained, matters proceeded very differently. The claim was struck out as having no real prospect of success; and whatever led DJ MacKenzie to take that action in the first place, by the time the application to reinstate came before DJ Khan on 5 April 2012 the primary question had become whether Dr Gauci’s first report (by this time re-served in CPR-compliant form) constituted sufficient medical evidence to support the claim in respect of breach of duty. Arguments that the claimant had not been, or should not have been, under any requirement at that stage of the proceedings to serve her expert evidence in respect of breach of duty were not advanced. Nor were arguments that “no real prospect of success” was not the proper test for a strike-out. Similarly, in relation to the question of relief from sanction under CPR 3.9, the court proceeded on the basis that there had been a requirement to serve medical evidence in respect of breach of duty and that a sanction had been imposed for failure to comply with that requirement; and no arguments were advanced to the effect that matters should not be approached in that way.

From its outset the appeal before Judge Pearce-Higgins had the same focus on the part of all concerned, and by the time of the adjourned hearing on 13 December 2012, when the claimant had a fresh medical report and a draft amended pleading, an appeal against a strike-out had turned in practice into a rehearing under CPR Part 24 in which the sole issue was whether the claim had a real prospect of success.

What this all means is that Mr Browne’s procedural arguments would have been valid arguments if they had been raised at the right time but unfortunately it is too late to raise them now. The determinative question now is whether Judge Pearce-Higgins was wrong to find that the claim had no real prospect of success on the evidence and draft amended pleading as they stood at the end of the hearing before him. I therefore turn to consider that question.

Mr Abouzeid’s report is not free from difficulty. It expresses the opinion that there was no duty to warn against the risk of developing chronic post-surgical pain (CPSP) but there was a duty to warn against a risk variously described as “the risk of chronic postoperative pain in general” or simply “the risk of postoperative pain”. It is easier to understand a distinction between CPSP and post-operative pain in general than it is to understand a distinction between CPSP and chronic post-operative pain in general. There is moreover a lack of clarity about how the claimant’s own condition is to be characterised: the report refers in its case summary to the categorisation of her condition as neuropathic CPSP but states later that the diagnosis is called CPSP “by some clinicians”, and in expressing conclusions about the duty to warn it describes her condition as chronic post-operative pain rather than as CPSP. Such matters may provide material for cross-examination of Dr Abouzeid but the fact remains that at its lowest the report concludes that there was a duty to warn the claimant of the risk of post-operative pain, and it does so on a basis consistent with the undisputed principles laid down in cases such as Bolitho v City & Hackney Health Authority [1998] AC 232 and Pearce v United Bristol Healthcare NHS Trust [1999] PIQR 53. Thus in terms of medical evidence it cannot in my view be said that the claim, as amended in draft to reflect Mr Abouzeid’s report, has no real prospect of success.

There is some force in Mr Havers’s argument that the defendant cannot have been under a duty to warn about the risk of post-operative pain since that risk must have been obvious to the claimant herself. In my view, however, the argument does not provide a knock-out answer at this stage to Dr Abouzeid’s opinion that there was a duty to warn. The issue depends on factual questions that would need to be explored at trial. Moreover Judge Pearce-Higgins did not refer to this point as a reason for finding that the claim had no real prospect of success, and I do not think that one can infer from observations he made in the course of argument that he must have had it in mind as a reason.

Similar considerations apply to Mr Havers’s argument that there is no real prospect of the claimant establishing causation even if there was a breach of a duty to warn. The issue of causation had been touched on at the hearing on 10 August 2012, though it was not relied on as a ground for the claim having no real prospect of success. The specific evidential matters now relied on as showing that the claimant was determined to have the operation do not appear to have been canvassed before Judge Pearce-Higgins at the hearing on 13 December 2012, let alone to have been included in a witness statement to which the claimant had an opportunity to respond. This is another issue that would need to be explored at trial. Here too the judge did not refer to the point as a reason for his decision and I do not think that one can infer from observations he made in the course of argument that he must have had it in mind as a reason.

For those reasons I have reached the conclusion that Judge Pearce-Higgins was wrong to find that the claim in its amended form had no real prospect of success. It may not be a particularly promising claim but I do not think that there was a sufficient basis for stopping it from going forward.

I would therefore allow the appeal and set aside DJ MacKenzie’s strike-out order dated 6 January 2012. I would also grant the claimant permission to amend her particulars of claim in accordance with the draft that was before Judge Pearce-Higgins. In addition, for the avoidance of doubt in relation to a subsidiary issue that got lost in the proceedings below, I would grant the claimant relief from sanction so as to permit her to rely on the condition and prognosis report represented by Dr Gauci’s second substantive report.

I agree.

I also agree.