Hewes v West Hertfordshire Hospitals NHS Trust & Ors

On an application for summary judgment in a clinical-negligence claim, the claimant must show a realistic, rather than fanciful, prospect of success. The court must avoid a mini-trial, but may determine a short legal or evidential issue where the material is sufficient and the parties have had a fair opportunity to address it.

Under the Bolam and Bolitho principles, a doctor is not negligent where the treatment accords with a responsible body of medical opinion having a logical and defensible basis. A competing expert view is insufficient by itself. Where the defendant produces credible expert evidence supporting that standard, the claimant assumes a low evidential burden of showing a realistic prospect of undermining it or another reason for a trial.

The claimant brought clinical-negligence proceedings arising from delay in diagnosing and treating suspected cauda equina syndrome. The claim against the third defendant, a general practitioner, alleged that he should have contacted the hospital’s orthopaedic team so that the claimant could bypass the accident and emergency department.

The third defendant applied for summary judgment under Civil Procedure Rules 1998, rule 24.2(a)(i). The application relied on expert evidence that referring the claimant urgently to accident and emergency was within a responsible range of general-practitioner practice. The claimant relied on prospective expert evidence, hospital policy, medical literature and a comparison with Oakes v Neininger and Others. The issues were whether the breach case had a realistic prospect of success and, alternatively, whether the alleged referral delay was causative.

1. Summary judgment granted. The claim against the third defendant was dismissed. The claim continued against the first and second defendants.

2. The relevant breach issue was whether referring the claimant to the accident and emergency department, rather than contacting the orthopaedic team directly, was outside the practice accepted by a responsible body of general practitioners. The third defendant’s expert identified several responsible courses of action, including urgent accident-and-emergency referral with or without advance telephone contact. The expert gave logical and credible reasons for that opinion.

3. The claimant’s supportive expert letter did not address the central question or explain why the defendant’s expert opinion lacked a logical basis. The hospital admissions policy was consistent with a range of responsible practice. Medical literature did not contraindicate accident-and-emergency referral. Oakes v Neininger and Others was not a useful comparison because the GP in that case had physically examined a patient whose neurological symptoms were considerably more advanced.

4. Applying [1957] 1 WLR 582 and [1998] AC 332, the court held that the claimant had not shown a realistic prospect of proving that the defendant’s conduct fell outside a responsible and logically defensible body of medical opinion. There was no other compelling reason for a trial on breach.

5. The court considered causation briefly as an alternative. Evidence concerning the hospital’s admissions policy left a potential factual issue about whether a direct orthopaedic referral would have been accepted. Although the claimant was unlikely to succeed, summary judgment would not have been granted on factual causation alone.

This was a first-instance application for summary judgment in the High Court. The judgment does not state any prior appellate decision in the same proceedings.