Manzi v King's College Hospital NHS Foundation Trust

In a clinical negligence claim, the claimant must prove each necessary factual step on the balance of probabilities. Where liability depends on the size or nature of retained tissue, the court must assess the evidence as a whole. Symptoms, clinical findings and expert opinion may be relevant but are not necessarily determinative where the medical relationship is only a tendency or a loose one.

An adverse inference from a party’s failure to call a witness is discretionary and fact-sensitive. It is not mandatory merely because the witness could have given relevant evidence. The importance of the witness’s role, the issues in dispute and the evidence already available must be considered.

The claimant brought a clinical negligence claim arising from the birth of her second child at the defendant’s hospital. She alleged that a registrar negligently failed to identify on an ultrasound scan that a substantial piece of placenta remained in her uterus.

The defendant accepted that a small piece might have been retained, but disputed that it was substantial and denied that the registrar had been negligent. The parties also disputed causation, psychiatric injury and quantum. The trial concerned both liability and damages, with the central factual issue being whether the retained placental tissue was approximately 2 cm or approximately 7 cm in size.

The claim was dismissed. The claimant had to establish, as a necessary step to succeeding, that a substantial piece of placenta remained in her uterus after the birth. The court was not persuaded of that fact on the balance of probabilities.

1. The evidence had to be considered as a whole. The midwife’s uncertainty about whether the placenta was complete, the discharge summary referring to a 2 cm area, and the scan evidence did not establish that a substantially larger piece had been retained.
2. The later ultrasound identified an echogenic mass measuring approximately 7 cm, but the experts agreed that, with time, organised blood clot could become difficult to distinguish from placental tissue. The mass could therefore have comprised a small piece of placenta with an adherent blood clot.
3. The claimant’s pain, uterine tenderness and later haemorrhage were not determinative. The expert evidence showed only a loose relationship between retained placental tissue, bleeding and pain. The claimant also had a perineal injury capable of causing pain.
4. The operative note and histopathology did not resolve the issue. The histopathology confirmed both placental tissue and blood clot, but did not establish their proportions or the source of the sample.
5. No adverse inference was drawn from the defendant’s failure to call Dr Hooper. Wisniewski v Central Manchester Health Authority [1998] PIQR P324 CA concerned a witness whose role was central to the alleged negligence. Dr Hooper was not the allegedly negligent doctor and was not the surgeon. The decision did not make an adverse inference obligatory; the fact-finding process remained nuanced and fact-sensitive.