By Nigel Poole QC
In Meikeljohn-v-St Georges Healthcare NHS Trust  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,
- 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".
The Court rejected that submission and accepted "the correct comparator was that advanced before the Judge, a tertiary specialist in AA [aplastic anaemia"].
Second, the Court of Appeal considered the application of Chester-v-Afshar, a striking decision of the House of Lords, and said, "Chester is at best a modest acknowledgement, couched in terms of policy, of narrow facts far from analogous to those we are considering." That approach is in accordance with many commentators' expectations of how the courts would view Chester-v-Afshar.
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:
"112. Prof Cavenagh had been obliged to answer the charge that he was a disgrace to his profession. The basis for the slur appears to be that having accepted instructions before he met the Claimant he ought not to have treated him on referral by Prof Dokal or he should have withdrawn from the case. It was put to him that he sought to abuse the relationship of doctor and patient so as to advance the case for Prof Marsh, suppressed the fact that he had sent blood samples to Prof Dokal for active testing in a clinical situation, was not impartial, was too close to Professor Marsh, and was not independent of Prof Dokal, working in the same institution as and accepting referrals from him.
114. It seems to me noteworthy that the Judge not only rejected the criticisms absolutely but went on to express how helpful and reliable he found Prof Cavenagh and to exculpate Prof Marsh from any suggestion of untruthfulness."