Barnett v Medway NHS Foundation Trust

In a complex clinical-negligence case, a trial judge may resort to the burden of proof only after examining and evaluating the evidence and finding that the issue cannot rationally be resolved. Such resort is exceptional, but remains proper where conflicting and uncertain expert evidence leaves no rational basis for choosing between competing factual accounts. A judgment must explain sufficiently why the evidence cannot be resolved, especially where the burden of proof determines the result. A reasonable decision to stop treatment or discharge a patient may coexist with a breach arising from inadequate subsequent monitoring. An appellate court will not interfere with findings on causation where the trial judge was entitled to conclude that the evidence did not establish the necessary facts on the balance of probabilities.

The claimant, who had a rare congenital bone disorder and a history of stress fractures, developed spinal infection, an epidural abscess and paraplegia after admission to hospital in October 2009. He alleged that the respondent hospital had negligently failed to take blood cultures before administering antibiotics, had stopped antibiotics without adequate monitoring, and had failed to detect the developing infection in time to prevent spinal infarction.

The High Court found breaches in failing to take blood cultures and in failing to arrange close monitoring of inflammatory markers, but dismissed the claim because causation was not proved. The claimant appealed on treatment and causation issues. The respondent cross-appealed in relation to amendments, expert evidence and the blood-culture causation issue. The central questions were whether the judge had lawfully resolved, or resorted to the burden of proof on, the conflicting expert evidence and whether the alleged breaches caused the paraplegia.

1. Appeal and cross-appeal dismissed. The trial judge was entitled to conclude that the claimant had not proved that infection was present in a form detectable by blood cultures on admission, or that earlier detection and later monitoring would probably have prevented the spinal infarction.
2. The judge’s reasoning on the first causation issue was too compressed. Parties must be able to understand the evidential basis for the decision, and an appellate court must be able to see why resort to the burden of proof was justified. That requirement was particularly important in a case involving complex and conflicting microbiological evidence.
3. Nevertheless, examination of the transcript showed that the experts’ evidence was shifting, internally difficult and uncertain. The judge had considered and evaluated the evidence but was unable rationally to determine whether bacteraemia or a detectable infection existed at the relevant time. This was one of the rare cases in which resort to the burden of proof was permissible. The approach in Stephens v Cannon [2005] EWCA Civ 222 and Verlander v Devon Waste Management [2007] EWCA Civ 835 supported that conclusion.
4. The judge’s breach findings were coherent. Stopping antibiotics and discharging the patient could be reasonable, while failure to arrange close monitoring of CRP and white-cell findings was negligent. The claimant’s challenge inverted that conclusion.
5. The judge was also entitled to find that closer monitoring would probably have shown improvement, would not necessarily have led to spinal MRI, and had not been shown on the balance of probabilities to have led to treatment capable of avoiding infarction. The cross-appeal concerning the late amendments and associated evidence disclosed no real injustice; the case-management decision was sensible.

• Court of Appeal (Civil Division): The appeal and cross-appeal were dismissed: [2017] EWCA Civ 235.
• High Court of Justice, Queen’s Bench Division: His Honour Judge Forster QC, sitting as a Deputy High Court Judge, dismissed the claim for damages in a judgment handed down on 23 February 2015.