The recent High Court decision of Kelly Marie Simmons v City Hospitals Sunderland NHS Foundation Trust (2016) is worthy of note for those practising in the clinical negligence and/or personal injury field. It concerns whether admissions (made on the basis of preliminary expert opinion) can be withdrawn after they have been formalised in a consent order approved by the court.
The Claimant required an emergency caesarean section. Her wound failed to heal after she was discharged and approximately two weeks later, one of the Defendant’s clinicians made a diagnosis of necrotising fasciitis (a serious bacterial infection affecting the soft tissue under the skin). The Claimant then underwent appropriate surgery.
Unfortunately the surgery failed to remedy the problem and she necessitated further operations. Subsequently, over the following years, she developed a recurrent incisional hernia, pyoderma gangrenosum (a skin condition that causes painful ulcers) and pulmonary emboli.
The Claimant commenced proceedings. She claimed that the necrotising fasciitis should have been diagnosed earlier and, that if it had, the necrosis would not have spread/she would not have gone on to develop the others conditions. The Defendant admitted liability in respect of the delayed diagnosis and its casual effect on the spread of the necrosis/ the incisional hernia but not in relation to the pyoderma gangrenosum/the pulmonary emboli.
Before judgment was entered, the Defendant then instructed an expert dermatologist to consider the issue of causation in respect of the other conditions. The expert opined that the original condition, diagnosed as necrotising fasciitis, may have actually been pyoderma gangrenosum. However, she stated that her opinion was subject to discussing the matter with other experts in the case/ having sight of further records. The Defendant then consented to judgment being entered in relation to the previous admissions and the Claimant applied to enter judgment.
However, after several months the expert confirmed in a final report that her preliminary opinion had been correct. Importantly, she added that, there would have been no causal effect in this case even if the proper diagnosis of pyoderma gangrenosum had been made at the outset. The Defendant therefore applied to revoke the Order and withdraw its admissions.
At the hearing, the Claimant, relying on Ladd v Marhsall  EWCA Civ 1, sought to argue that the Defendant had failed to show that the evidence could not have been obtained with reasonable diligence before consenting to the Order. Further, that the Defendant was not seeking to rely on ‘fresh’ evidence as the expert had already expressed a preliminary view.
Mr Justice Leggatt sided with the Defendant and the admissions were allowed to be withdrawn. The following factors were material to his decision:
- The proceedings had not yet reached a stage where any directions on expert evidence had been given.
- The parties had both agreed as a matter of fact that the Claimant was originally suffering from necrotising fasciitis such that there was no reason for them to anticipate that the expert would throw new light on this issue.
- The Defendant could not be criticised for waiting until the final report was prepared and other experts were properly consulted before knowing whether a change of case was warranted.
- The contents of the final report were materially different from the preliminary report.
- It was not right to conduct a trial on the basis of an issue which was factually false i.e on basis that there was a delayed diagnosis of necrotising fasciitis, Atkins v Co-operative Group Ltd  EWHC 80 (QB),  Med. L.R. 169.
In summary, it is clear that Defendants in clinical negligence disputes are not left with the binary choice of making admissions based on preliminary expert opinion or waiting until a final report is prepared. Instead they will be afforded a degree of flexibility in shaping their case.