Naraji v Shelbourne MD & Ors

In medical negligence claims, the court assesses whether the treatment fell outside the range regarded as acceptable by a responsible body of professional opinion. A court may reject professional opinion only where it cannot withstand logical analysis, including proper consideration of comparative risks and benefits.

Where tunnel placement in anterior cruciate ligament surgery involves a range of acceptable positions, the claimant must prove both the appropriate range and the actual position used. Evidence of symptoms may be consistent with negligent placement without being indicative of it.

A foreign dismissal with prejudice may bar a tort claim by res judicata, while a contractual claim requires separate analysis of cause of action and issue estoppel. Foreign limitation rules apply where selected by the applicable-law rules unless their application causes undue hardship contrary to public policy.

The claimant, a professional footballer, claimed in contract and tort against Dr Shelbourne and Mr Jari. He alleged that Dr Shelbourne negligently reconstructed his anterior cruciate ligament by placing the femoral tunnel incorrectly and thereafter failed to diagnose the problem or recommend re-revision surgery. He alleged that Mr Jari negligently failed to identify the same problem during consultations in 2007 and 2008.

The claim was tried as preliminary issues concerning liability, causation, applicable law, limitation, res judicata and an alleged damages cap. Dr Shelbourne relied on an Indiana claim dismissed with prejudice. The central questions were whether the operation and aftercare were negligent, whether the alleged breaches caused the loss claimed, and whether the claims were barred or governed by Indiana law.

1. Liability of Dr Shelbourne. Applying the principles in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 and Bolitho v City & Hackney Health Authority [1998] AC 232, the acceptable vertical position for the femoral tunnel extended from about 10 o’clock to 12 o’clock, provided there was no posterior cruciate ligament impingement. A tunnel centred about 6–7 mm from the posterior femoral wall was the standard position. A tunnel at least 5 mm anterior to that standard was outside the range of acceptable practice.
2. The imaging established that Dr Shelbourne’s tunnel was at about 12 o’clock and centred about 15 mm from the posterior femoral wall. Its vertical position was at the limit of acceptability, but its anterior position was negligent. The post-operative history was consistent with, but neither indicative nor suggestive of, malpositioning. The aftercare allegation failed because the history known to Dr Shelbourne did not require further investigation or advice to undergo re-revision.
3. The claimant failed to prove causation. Even with an appropriately positioned tunnel, he had not shown on the balance of probabilities that he would have returned to his pre-injury level of football. The same conclusion applied to the hypothetical re-revision operation.
4. Res judicata and applicable law. The Indiana dismissal with prejudice was final and conclusive on the merits within Indiana and barred the tort claim, applying The Sennar (No 2) [1985] 1 WLR 490. It did not bar the contract claim by cause of action estoppel because the contractual cause of action was not identical to the Indiana tort cause of action. Issue estoppel also failed because the unpleaded consent dismissal did not establish that negligence had been determined adversely to the claimant.
5. The tort and contract claims were governed by Indiana law. The tort claims fell within the general rule in sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995, and the contract fell within article 4 of the Rome Convention as given effect by the Contracts (Applicable Law) Act 1990. The Indiana limitation period barred the claims. Applying the Foreign Limitation Periods Act 1984, its application did not cause undue hardship or offend English public policy. The Indiana damages cap was procedural and therefore did not apply, following Harding v Wealands [2006] UKHL 32.
6. Liability of Mr Jari. His duty was limited by his role as a consultant assisting Dr Shelbourne’s continuing treatment. He had to advise of tunnel malposition if his examination and MRI interpretation indicated it, or if those matters would have led any competent orthopaedic surgeon to that conclusion. The evidence did not establish that the April 2007 MRI made malposition obvious, and he was not negligent.

The claimant therefore failed on causation against Dr Shelbourne and on negligence and causation against Mr Jari. The court directed that the parties be heard on the form of order and consequential matters.