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

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

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

The latest determination within the case of Malik -v- St George’s College Hospital NHS Basis Belief gives 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 manufactured from the efficiency of the surgical procedure.  Publish-operatively Mr Malik skilled ongoing numbness and weak point in his left leg.  His surgeon really useful additional revision decompression surgical procedure which sadly left Mr Malik with an incomplete paraparesis.  He was labeled 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 kind, and length, of ache Mr Malik skilled following the emergency surgical procedure, allegations of negligence have been superior in relation as to if revision surgical procedure ought to have been carried out, whether or not non-surgical options ought to have been provided and whether or not Mr Malik was given the chance to offer knowledgeable consent for the revision surgical procedure.

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

Confronted with this discrepancy, His Honour Choose Blair QC undertook an evaluation of not solely the contemporaneous medical data, however the data produced by Mr Malik’s GP and an evaluation report ready to evaluate whether or not Mr Malik was entitled to a Private Independence Cost.  The Choose 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 want to current his case in one of the best mild, there have been components of his solutions which didn’t give the Choose confidence in his reliability and accuracy as a witness.

The Court docket adopted an analytical and forensic strategy as is usually the case when introduced with a factual dispute and concluded that when contemplating the entire related proof and giving it the load it was due, Mr Malik was not in a position to persuade the Choose of his assortment of occasions.

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

Malik can be a useful case to remind practitioners of the strategy the legislation 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 useful remedy, and of any affordable different or variant therapies.  When assessing what’s an inexpensive different, the Court docket will apply the Bolam take a look at – would any affordable physique of medical practitioners in that individual subject have been conscious of and thought of affordable different therapies within the case in query.  In Mr Malik’s case the Choose 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 accessible within the context of the parameters and dialogue Mr Malik had together with his surgeon.

Lastly, the Malik case serves as helpful reminder to the medical occupation as to the significance of contemporaneous notes.  The Court docket will connect quite a lot of weight to contemporaneous medical data 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 Choose 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 small print of his affected person’s present signs, recording his scientific evaluation, giving his opinion as to acceptable remedy(s) however omitting to state what recommendation he has given in regards to the dangers and advantages of the avenue(s) open to the affected person.  That may be a follow which it appears to me is fraught with dangers of being unable confidently to reply essential questions a few years later with out having the good thing about a contemporaneous set of detailed notes.

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


In the event you would like all additional info or recommendation in regards to the subject mentioned on this weblog, please contact Richard Lodge or our Medical Negligence and Private Harm staff.



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




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