Telephone triage and a doctor’s duty of care

A recent decision illustrates how a court may rely on evidence and on lack of evidence to resolve the issue of whether a practitioner fell below the standard reasonably to be expected of a competent practitioner (Bolam).  In Payne v Jatoi [2018][1] a High Court judge heard an appeal from the trial judge as to whether the finding that a GP’s failure to diagnose a fractured hip during a telephone triage was not negligent could be sustained.

The claimant had multiple sclerosis and walked with the aid of a frame.  She fell in the bath, but with the assistance of her carer was able to get up and walk with her frame.  She rang her GP and told her that she could walk with a frame and that she had pain in her leg and bottom.  In answer to a question from the GP she was unable to say if one leg was shorter than the other as she could not straighten her leg.  She was advised to obtain over-the-counter pain relief and call back if matters deteriorated.  2 weeks later she was admitted to hospital and diagnosed with a fractured hip for which she required a partial hip replacement.

The GP’s expert’s evidence was that the combination of a hip fracture and the ability to weight-bear was very rare, and as the claimant had MS and did not have full mobility one would look for very serious pain, of which there was no evidence.  The appeal judge noted that the expert did not say that the claimant’s inability to straighten her leg interfered significantly with her mobility, there was no evidence given at trial that the claimant was not walking normally (for her) when the call to the GP was made, and that the absence of prescribed pain killers confirmed the low level of pain.

The GP was unable to recall the questions that she had asked during the triage call and the claimant was not asked in evidence what questions she had been asked, and therefore the appeal judge found the trial judge entitled to make no findings about that aspect of the evidence.

Learning points

The court hearing a dispute does the best it can on the evidence presented to it to resolve the dispute on the balance of probabilities.  Sometimes the evidence presented is incomplete leaving the judge to make inferences from such facts as are established.  Here the judge relied on the absence of evidence that the claimant’s walking was not normal, and the evidence of an absence of prescribed pain killers, combined with the expert’s opinion that a combination of hip fracture and the ability to weight-bear in the absence of very serious pain was very unlikely, to conclude that it was not proved that the GP was negligent in her telephone diagnosis.

A wise doctor (and perhaps a cautious patient) would ensure a detailed record of such a discussion was made during or immediately after the phone call.

The decision of a trial judge based on findings of fact is rarely overturned on appeal.

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[1] Lambert J, 26/1/18  Lawtel AC5001603

Are you up to date with ‘concurrent evidence lite’ or ‘luke warm tubbing’?

Everyone involved with the giving of expert evidence in civil claims is of course familiar with paragraph 11 of the Practice Direction to Part 35 of the Civil Procedure Rules.  That will be so even if they have not seen or taken part in the giving of concurrent evidence, or ‘hot tubbing’ as it is commonly called.  In fact, in injury litigation it is rarely experienced in this country.  The idea of concurrent evidence is to put opposing experts in the witness box together; then the judge, as inquisitor, asks questions based on an agenda setting out points of disagreement between the experts, invites the experts to ask questions of each other, and then hands over to the lawyers for further questioning, before summarising the experts’ evidence (and obtaining the experts’ approval of that summary).

If you have read (and ingested) paragraph 11, then it is time to re-read it.  It has changed!

In July 2016 the Civil Justice Council produced a report ‘Concurrent expert evidence and ‘hot tubbing’ in English litigation since the ‘Jackson Reforms’ – a legal and empirical study’.  This recognised that ‘hot-tubbing’ could take a number of forms, as a number of experts have by now found out, with some judges applying their wide case management powers to hear expert evidence in a way that suited them best but did not necessarily involve them in having to ask the questions.

This has been codified in the new (replacement) paragraph 11.2 of PD35 and other consequential amendments in para 11, and while it still appears under the heading ‘Concurrent expert evidence’ it is expressly not concurrent expert evidence (hence my describing it as ‘concurrent evidence lite’ or ‘luke warm tubbing’:

11.2 To the extent that the expert evidence is not to be given concurrently, the court may direct the evidence to be given in any appropriate manner. This may include a direction for the experts from like disciplines to give their evidence and be cross-examined on an issue-by-issue basis, so that each party calls its expert or experts to give evidence in relation to a particular issue, followed by the other parties calling their expert or experts to give evidence in relation to that issue (and so on for each of the expert issues which are to be addressed in this manner). [My emphasis]

For example in the case of care experts there may be a number of areas of disagreement in their assessments of care needs.  Both experts may be sworn in, and then each be asked to give evidence and to be cross-examined by the parties’ advocates in turn on each of the issues in dispute, one by one.  In that way, all of the expert evidence on a particular issue will be given in one go, before moving on to the next issue.  The judge however maintains her normal role, clarifying issues from time to time, but leaving the questioning principally to the advocates.

It is important to emphasise to the expert that there may be flexibility required as to how the expert issues in any particular case are dealt with, and that by this amendment to PD35 judges are encouraged to consider the route most likely to be beneficial to them and most expeditious on the facts of the case.

PD35 is also amended in relation to the preparation of an agenda for the giving of such evidence, which it recognises may even be prepared by the judge:

 11.3 The court may set an agenda for the taking of expert evidence concurrently or on an issue-by-issue basis, or may direct that the parties agree such an agenda subject to the approval of the court. In either case, the agenda should be based upon the areas of disagreement identified in the experts’ joint statements made pursuant to rule 35.12.

But in either event whoever prepares the agenda we come back to the importance of the joint discussion and the experts’ joint statement recording the areas of agreement, disagreement and reasons for disagreement.  To facilitate the giving of evidence, particularly if it is concurrent or issue-by-issue, the joint statement needs to provide a clear list, defining the areas of disagreement together with a summary of the brief reasons for the disagreement.

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