Laughton v Shalaby

In professional negligence, proof that a recognised surgical complication is rare does not, without more, establish breach of duty. The claimant must identify evidence differentiating the particular operation from other cases in which the complication occurs without negligence. Evidence of incompetence, complaints, stress or dishonesty in unrelated matters cannot substitute for that proof. Extraneous evidence is admissible only where it is genuinely similar fact evidence and remains subject to the trial judge’s discretion, particularly where collateral issues may arise. A doctor’s general misconduct may bear on credibility but provides only a slender basis for inferring negligent performance of a particular operation. The appeal was therefore dismissed.

Mrs Laughton sued Mr Shalaby in professional negligence after a left hip replacement. The trial judge preferred the respondent’s expert evidence, found that the muscle had been re-attached during the operation and concluded that its later separation was a recognised complication. The claim was dismissed. On appeal, Mrs Laughton argued that the rarity of non-negligent avulsion, combined with evidence concerning Mr Shalaby’s honesty, stress and alleged incompetence in other cases, established negligence. She also sought to rely on later GMC Fitness to Practice decisions. The central issues were whether the evidence proved negligent performance on the balance of probabilities and whether the extraneous evidence was relevant and admissible.

Longmore LJ delivered the judgment, with which McCombe LJ and Vos LJ agreed.

1. Appeal dismissed. Once the appellant accepted that the trial judge was entitled to prefer Professor Clarke’s evidence, the remaining issue was whether the rarity of avulsion itself made negligent failure to re-attach the muscle more probable than not. It did not. The claimant had to identify something differentiating the operation from other operations in which avulsion occurred without negligence. No such differentiating evidence existed.
2. Extraneous evidence. The proposed principle that evidence of systemic professional incompetence could support an inference of negligence in a particular case was rejected. Evidence of matters outside the operation should be confined to genuinely similar fact evidence. O’Brien v Chief Constable of South Wales Police [2005] 2 A.C. 534 was relied on for that approach and for the continuing discretion of the trial judge, even where evidence is legally admissible, particularly if it would generate complex collateral issues.
3. Patient complaints were merely evidence that complaints had been made. General criticisms of treatment in knee, foot, wrist or other cases did not constitute similar fact evidence of negligence in this hip operation. The report concerning the claimant’s operation supported the view that the complication could occur without negligence.
4. Evidence of dishonesty or lack of probity could bear on credibility, but it provided only a slender basis for inferring negligent performance where the issue was competence. Stress did not, without medical evidence of impairment, make negligence on the particular occasion more probable.
5. The court admitted the relevant later GMC evidence, including the Fitness to Practice material, but it added no persuasive weight because it disclosed no similar fact evidence relevant to the alleged negligence. The appeal was dismissed.

1. Court of Appeal (Civil Division) — [2014] EWCA Civ 1450. Appeal dismissed.
2. Central London County Court — Following a four-day trial before HHJ Birtles, the negligence claim was dismissed.