John Whitting QC was successful in a key High Court case involving City Hospitals Sunderland NHS Foundation Trust in a liability decision of the High Court v Kelly Marie Simmons. Mrs Simmons was represented by Adrian Hopkins QC.
Mr Justice Leggatt presided over the case which considered the circumstances in which an admission of liability, which had been formalised in a consent order, could be withdrawn and the judgment revoked.
John appeared for the Defendant Trust in a key decision of the High Court in which Leggatt J. considered the circumstances in which an admission of liability which had been formalised in a consent order entering judgment could be withdrawn, and the judgment revoked.
In Kelly Marie Simmons v City Hospitals Sunderland NHS Foundation Trust , the claimant developed a wound infection following caesarean section. She went on to require a number of surgical debridements of what was thought to be necrotising fasciitis and, two years later, developed pyoderma and pulmonary emboli.
She commenced proceedings alleging that if the necrotising fasciitis had been diagnosed earlier, necrosis would not have spread, she would not have had to undergo repeated surgery, and she would not have developed an incisional hernia, pyoderma gangrenosum or pulmonary emboli. The trust admitted that necrotising fasciitis should have been suspected by 29 October 2009, and that if it had been diagnosed promptly she would have undergone surgery which would, in turn, have prevented further necrosis and the incisional hernia. It denied that the admitted delay had caused the pyoderma gangrenosum or pulmonary emboli.
Before judgment was entered, the Defendant instructed an expert dermatologist to consider the issue of causation of the pyoderma gangrenosum. She produced a provisional opinion to the effect that the original condition diagnosed in November 2009 as necrotising fasciitis might in fact have been pyoderma gangrenosum. However, she said that she required further histology and microbiology records to provide a final opinion, as well as the opportunity to discuss the issue with the other experts instructed in the case.
Before either of those steps were taken, the Claimant applied to enter judgment on the basis of the existing admissions, to which the Defendant consented. Within a couple of months thereafter, and in the light of disclosure of the relevant records and a conference with those other experts, the dermatologist confirmed her provisional opinion. She also expressed the view that, if that had been the correct diagnosis in retrospect, then the admitted delay in surgery had no causal effect: this in turn meant that the admissions made by the Defendant had been on a false premise and were no longer correct.
The Defendant therefore applied to withdraw its earlier admissions and to revoke the judgment which had been entered against it. Leggatt J. held that the trust had not failed to exercise reasonable diligence in obtaining the expert evidence. The proceedings had not yet reached a stage where any directions with regard to expert evidence had been given. More importantly, given the way in which the issues had arisen in the statements of case, the need for any dermatological evidence had appeared to be of only secondary importance. Until the dermatologist had given her preliminary opinion, the parties had been proceeding on the basis that it was a matter of fact that the claimant was suffering from necrotising fasciitis in 2009, and the only potential relevance of dermatological evidence was in relation to one aspect of causation, namely whether the pyoderma gangrenosum diagnosed in 2011 was a consequence of the trust’s negligence. There had been no reason to anticipate that the dermatologist’s evidence would cast an entirely new light on the original question of negligence and causation concerning the events in 2009. The trust could not be criticised for not immediately adopting the dermatologist’s provisional opinion as a basis for seeking to withdraw its admissions, or for first ensuring that all experts in the case were consulted before a considered view was taken on whether a change of case was warranted.
Despite the fact that it might have been open to the trust to seek to postpone consenting to the final judgment on the basis of the expert’s provisional opinion, it was not appropriate as a matter of justice to prevent the order from being varied on that basis. There was a material difference between a provisional opinion of the kind that had been expressed before the order was made, and the concluded opinion that was shared by all the experts and which the trust had subsequently adopted and put forward as its case.
Further, it was highly relevant that the admissions which the trust was seeking to withdraw related to issues which were inextricably intertwined with issues that remained in dispute. As an example, the cause of the pyoderma gangrenosum in 2011 was still in dispute, and it could not be right to conduct a trial of that issue on a basis which, if the dermatologist was correct, was factually false, Atkins v Co-operative Group Ltd  EWHC 80 (QB),  Med. L.R. 169 applied. It was appropriate to vary the order in the manner sought.