Willmott v The Rotherham NHS Foundation Trust

In a clinical negligence claim, a treatment choice is not negligent where it is supported by a reasonable body of medical opinion and the alleged contraindication was not present, or was not reasonably appreciable, at the time. The claimant must prove the relevant clinical condition on the balance of probabilities. A trial judge may use background knowledge, question experts and require relevant literature, provided the case is decided on the evidence, the judge retains an open mind and each side has a fair opportunity to respond. An appellate court will respect a trial judge’s evaluation of competing expert evidence where the reasons are properly grounded and procedurally fair.

The appellant claimed damages from the respondent NHS Trust for negligent treatment by an orthopaedic surgeon. The surgeon had performed a cementless knee replacement in 2008. The replacement later loosened, and inflammatory arthritis was diagnosed in 2013.

His Honour Judge Moore QC dismissed the claim after finding that inflammatory arthritis had not been shown to be present in 2008. Alternatively, he found that there was no evidence which should have led the surgeon to suspect it, and that the choice of a cementless implant was reasonable. The appeal challenged the conduct of the trial, the assessment of the expert evidence and the surgeon’s explanation for sending tissue for histopathological examination.

1. Disposition. The appeal was dismissed. The first-instance judgment gave a full answer to the claim.
2. Bias and trial conduct. A judge is not disqualified merely because the judge has personal experience or background knowledge of the subject matter. The judge must decide the case on the evidence heard, retain an open mind and explain the decision by reference to that evidence. The judge was entitled to question witnesses, maintain focus on the real issues and require expert opinions to be supported by relevant literature. The appellant and her expert had a fair opportunity to address the issues, and the judge’s treatment of the experts was even-handed. There was no objective appearance of bias or predetermination ([18], [24], [27]–[30], [34], [38]–[40]).
3. Expert evidence. The judge was entitled to criticise the appellant’s expert where the criticism had been put to him in cross-examination and properly explained. He was also entitled to prefer the Trust’s expert evidence. The late emergence of the histopathology report did not make the process unfair, since the experts were given warning and an opportunity to address its significance ([40]–[43]).
4. Clinical negligence. The appellant had to prove on the balance of probabilities that inflammatory arthritis was present in the knee when the operation occurred. The judge was entitled to conclude that the available clinical evidence, including the surgeon’s observations and the histopathology report, did not establish that it was present. Alternatively, even if it had been present, there was no evidence which ought to have led the surgeon reasonably to suspect it. On a reasonable diagnosis of osteoarthritis, and applying the Bolam v Friern Hospital Management Committee approach, the choice of a cementless implant was supported by a reasonable body of orthopaedic opinion and was not negligent ([17], [22], [43]–[45]).
5. Histopathology evidence. The judge was plainly entitled to accept the surgeon’s explanation that the biopsy was sent as a final cross-check, consistently with his evidence that he had not suspected inflammatory arthritis and would not have used a cementless implant if he had ([45]–[46]).

1. Court of Appeal (Civil Division): The appeal was dismissed: [2017] EWCA Civ 181.
2. Sheffield Combined Court Centre: His Honour Judge Moore QC dismissed the appellant’s claim for damages following a trial on liability on 6 March 2015.