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HomeHealth LawCase word: Malik -v- St George's College Hospitals NHS Basis Belief |...

Case word: Malik -v- St George’s College Hospitals NHS Basis Belief | Medical Negligence and Private Harm Weblog | Kingsley Napley

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In my weblog on 5 January 2021 I summarised the strategy the Courts take to establishing details in a medical negligence case, particularly in a state of affairs the place a claimant’s medical information don’t match his or her model of occasions.  My weblog coated the Court docket selections within the instances of Ismail and Failes that are good examples of the forensic and analytical strategy a decide will take when assessing factual proof.  The Court docket begins with the contemporaneous medical information and can analyse the context through which the information had been produced and cross reference with different sources of proof.

The current determination within the case of Malik -v- St George’s College Hospital NHS Basis Belief supplies an extra instance of this strategy.  Mr Malik required emergency spinal surgical procedure within the type of a laminectomy and discectomy at T10/11.  No criticism was product of the efficiency of the surgical procedure.  Submit-operatively Mr Malik skilled ongoing numbness and weak spot in his left leg.  His surgeon really helpful additional revision decompression surgical procedure which sadly left Mr Malik with an incomplete paraparesis.  He was categorized as a T7 ASIA D paraplegic.

The case involved the extent to which Mr Malik’s situation had deteriorated after the emergency surgical procedure and whether or not he was complaining of intercostal ache when seen by his surgeon in outpatient clinic.  Along with the sort, and period, of ache Mr Malik skilled following the emergency surgical procedure, allegations of negligence had been superior in relation as to if revision surgical procedure ought to have been carried out, whether or not non-surgical alternate options ought to have been supplied and whether or not Mr Malik was given the chance to present knowledgeable consent for the revision surgical procedure.

There was a factual dispute as to the extent of decay Mr Malik skilled within the interval between the emergency surgical procedure and the revision process.

Confronted with this discrepancy, His Honour Decide Blair QC undertook an evaluation of not solely the contemporaneous medical information, however the information produced by Mr Malik’s GP and an evaluation report ready to evaluate whether or not Mr Malik was entitled to a Private Independence Fee.  The Decide concluded that even giving Mr Malik appreciable latitude for the difficulties of recall after so a few years, the stress of giving proof at trial, his ongoing poor state of well being and a pure need to current his case in the perfect mild, there have been components of his solutions which didn’t give the Decide confidence in his reliability and accuracy as a witness.

The Court docket adopted an analytical and forensic strategy as is often the case when introduced with a factual dispute and concluded that when contemplating all the related proof and giving it the burden it was due, Mr Malik was not capable of persuade the Decide of his assortment of occasions.

The strategy taken highlights the Court docket is not going to take a claimant’s witness assertion as established reality.  Witness statements solely kind a part of the proof in a medical negligence case and are analysed within the context of contemporaneous information.  As acknowledged in my earlier weblog, the extra there’s by means of compelling contemporaneous proof supporting a claimant’s model of occasions, the extra possible the Court docket will decide findings of reality within the claimant’s favour.

Malik can also be a useful case to remind practitioners of the strategy the regulation takes to consent.  The main case of Montgomery identifies there’s a responsibility to take affordable care to make sure a affected person is conscious of any materials dangers concerned in any really helpful remedy, and of any affordable different or variant therapies.  When assessing what’s an inexpensive different, the Court docket will apply the Bolam check – would any affordable physique of medical practitioners in that exact area have been conscious of and regarded affordable different therapies within the case in query.  In Mr Malik’s case the Decide thought of {that a} accountable, competent and respectable physique of expert spinal surgeons would have fairly concluded that there have been no affordable different therapies obtainable within the context of the parameters and dialogue Mr Malik had along with his surgeon.

Lastly, the Malik case serves as helpful reminder to the medical career as to the significance of contemporaneous notes.  The Court docket will connect quite a lot of weight to contemporaneous medical information when reconstructing occasions a few years after the occasion.  The surgeon in Mr Malik’s case had a follow of dictating letters to the affected person’s GP instantly after outpatient consultations and didn’t preserve handwritten or typed contemporaneous notes of every appointment.  Commenting on this strategy the Decide acknowledged: “I used to be stunned by his follow of merely dictating a letter to his affected person’s GP after an outpatient clinic appointment to relay the main points of his affected person’s present signs, recording his medical evaluation, giving his opinion as to applicable remedy(s) however omitting to state what recommendation he has given concerning the dangers and advantages of the avenue(s) open to the affected person.  That could be a follow which it appears to me is fraught with dangers of being unable confidently to reply necessary questions a few years later with out having the advantage of a contemporaneous set of detailed notes.

This warning highlights that contemporaneous information might be of profit to each events – a claimant requires contemporaneous information to assist his/her model of occasions; a defendant requires contemporaneous information to justify their thought course of and steps taken.  Both means, contemporaneous information and the context inside which they had been produced can affect the result of a medical negligence case.

FURTHER INFORMATION

For those who would like every additional info or recommendation concerning the matter mentioned on this weblog, please contact Richard Lodge or our Medical Negligence and Private Harm workforce.

 

ABOUT THE AUTHOR

Richard Lodge is a Companion within the Medical Negligence and Private Harm follow and has been recognised inside the area of medical/medical negligence inside the Chambers UK and Authorized 500 directories.  He’s an individually ranked lawyer for medical negligence inside Chambers UK, A Consumer’s Information to the UK Authorized Occupation.

 

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