Davis -v- Mayday Healthcare NHS Trust

Clinical Negligence/Personal Injury - issue of proceedings - CPR & PD 16 para 4.3 - discretion not to rely upon medical report - no requirement for condition and prognosis report.

The Claimant was a patient who attended the Mayday Hospital in 1994 complaining of tiredness, weakness, weight loss, night sweats, dry mouth, thirst and pain in shoulder and stomach.

On 8.3.95 there was a meeting between himself and his consultant during which the Claimant was informed that his illness was incurable. He mistakenly believed that this meant the condition was fatal. In fact he was suffering from chronic nodular hepatitis. In consequence he suffered distress and psychiatric damage consequent upon a belief that his life was to end as a result of the illness.

By a date no later than 1.8.96 this belief had been communicated to the consultant. Notwithstanding receipt of that information the consultant made no effort to contact the Claimant and allay his fears. The Claimant's erroneous belief was only corrected after his wife forced a meeting on 23rd October 1996, several months later.

The Claimant's case was that he had suffered mental injury and depression in consequence of the 3 month delay in correcting his erroneous belief.

The Claimant issued proceedings on 12.3.99 the Particulars of Claim sought damages less than £5,000. The medical report disclosed with the proceedings dealt only with breach of duty and did not deal with the condition and prognosis of the Claimant's mental condition.

The Defendant wrote to the Claimant in terms seeking disclosure of "a condition and prognosis report" and then issued an application requiring disclosure of a medical report substantiating the injury. The Claimant's solicitors refused relying inter alia on the following matters:
(a) the incidents complained of were some three years old;
(b) there was no suggestion that the mental injury had persisted any longer than the 3 month period of the delay;
(c) the mental distress was such that the Defendant could perfectly properly describe his condition to the trial judge and rely upon the trial judge's experience to assess quantum;
(d) the CPR (Practice Direction 16 para 4.3) had specifically altered the requirements as to provision of medical reports and where a medical report was not going to be relied upon at trial in support of condition and prognosis it was open to a Claimant to issue and maintain a claim without reliance upon a condition and prognosis report or expert;
(e) the small amount of the claim meant that instruction of an expert psychiatrist to prepare a report would be disproportionate to the value of the claim (a quote having been obtained);
(f) in the absence of any contemporaneous medical records recounting the Claimant's mental distress the value of such a report would in any event be negligible as the expert would merely be repeating the Claimant's account of the symptoms and making a diagnosis on the basis of those accounts some three years ex post facto;
(g) in the circumstances of the case the exercise of assessing the existence and extent of the mental injury could properly be left to a trial judge without medical evidence.
The Defendant's application to strike out the claim pending service of a condition and prognosis report was dismissed by the District Judge. On appeal by the Defendant the Circuit Judge dismissed the renewed application with costs.

Held: The CPR had in certain instances changed the rules regarding civil practice. In the case of the issue of personal injury proceedings the provisions of Practice Direction 16 para 4.3 were materially different to the old CCR Order 6 rule 1(5)(a). if a Claimant did not seek to rely upon a medical expert at trial then that was prima facie a matter for him. It would however be open to the Court in appropriate circumstances to strike the claim out using its case management powers if it felt that a case could not properly be heard without medical evidence and a Claimant maintained its refusal to adduce such evidence.

In the present case the Court could assess the damages itself at trial. Furthermore the costs of instructing an expert would be disproportionate to the value of the case. The Court also had notice of the fact that the Legal Aid Board would be unlikely to grant authority for instruction of an expert in a case of this value.

The case was then settled for £1001.00
Counsel: Michael J. Mylonas of 3 Serjeants' Inn
Solicitor: Colum J Smith of McMillan Williams, Croydon, New Addington branch acting for the Claimant/Respondent.