Friday, 14 February 2014

Court of Appeal - Meikeljohn-v-St Georges Healthcare

Notes on the Court of Appeal decision in Meikeljohn-v-St Georges

 By Nigel Poole QC

In Meikeljohn-v-St Georges Healthcare NHS Trust [2014] EWCA 120 Civ the Court of Appeal has firmly dismissed an appeal from a trial judge's finding that there was no negligence in the diagnosis and treatment of a rare genetic disorder. The first instance decision is here Three particular points of interest amongst a number of issues addressed in the judgment:

Standard of Care
First, the standard of care to be expected when the particular practitioner involved on behalf of the Defendant Trust was acting on a tertiary referral and was an expert of some repute. The Court of Appeal remarked that the Claimant had sought to raise the expected standard on appeal beyond that which had been accepted as applicable at trial, and which was the correct standard. The Court noted,
  1. It is now suggested that a top-layer should be imposed upon the standard against which Prof Marsh is to be measured with the addition of "a leader in the field of AA in the UK and who has an international renown".

Third, the Court was critical of the robust stance taken at trial to the Defendant's expert (Prof Cavenagh) and to the particular practitioner who had been responsible for the management of the Claimant (Prof Marsh). The basis for the criticism of Prof Cavenagh seems to be that he had treated the Claimant on referral after having accepted instructions to advise the Defendant in the litigation. As a litigator I would comment that that is an unusual situation to say the least. However the Claimant's condition was rare and this was an area of medical practice in which the experts in their field were nearly all familiar with each other - it was a small world. The circumstances of the expert's involvement did not seem to caused undue concern to an experienced first instance judge and the Court of Appeal:

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