Yip J had to turn her mind to the question of burden of proof in the case of Saunders -v- Central Manchester University Hospitals NHS Foundation Trust  EWHC 343 (QB).
The claimant brought a clinical negligence claim alleging there had been a failure to reverse an ileostomy during surgery resulting in his colon becoming ischaemic necessitating its removal.
Of course, the claimant was completely unaware of what had happened during surgery due to having been anaesthetised. He alleged that the only realistic and plausible explanation for the ischemia was iatrogenic damage. He argued that excessive traction or torsion during the surgery caused damage to the main artery supplying the bowel. The defendant argued that the damage was the result of a naturally occurring blood clot.
The claimant’s expert relied upon the short time that had elapsed between surgery and the onset of symptoms as being indicative that something had happened during surgery.
Yip J recognised that she was faced with deciding between the only two plausible explanations as to how the injury had occurred, but both of which were rare, and she had a claimant who could not provide evidence on the matter and a surgeon who reported that the operation had been uncomplicated. She held:
“In considering the factual issue as to whether damage was done during surgery or through natural causes, care must be taken not to resort too readily to the burden of proof. In Barnett v Medway NHS Foundation Trust  EWCA Civ 235, the Court of Appeal reviewed the authorities in the context of factual causation in a clinical negligence action, citing Verlander v Devon Waste Management  EWCA Civ 835. I have in mind that, as Auld LJ stated at paragraph 19 of that case: “the judge should only resort to the burden of proof where he is unable to resolve an issue of fact or facts after he has unsuccessfully attempted to do so by examination and evaluation of the evidence. Further (paragraph 24 of Verlander):“such resort is only necessary where on the available evidence, conflicting and/or uncertain and/or falling short of proof, there is nothing left but to conclude that the claimant has not proved his case. The burden of proof remains part of our law and practice – and a respectable and useful part at that – where a tribunal cannot on the state of the evidence before it rationally decide one way or the other.”
Having analysed the facts of the case such as the timing of onset of symptoms, anatomy and post medical history, the Judge found that there was no clear answer to which of the explanations was more likely. There were facts in support of both. In the circumstances, she decided to “stand back and ask whether the Claimant has proved his case that the damage was caused by surgical negligence on the balance of probabilities.” She held that he could not. It was a real problem for the claimant that there was no clear explanation as to how surgery could have caused the injury given that the site of occlusion was remote from the surgical field (despite having pointed to literature concerning injuries at remote locations in relation to other surgery).
This case serves as a useful reminder that Judges ought not place excessive reliance on the burden of proof. However, in certain circumstances it will be the undoing on the claimant’s case. Cases need close evaluation to ensure that they can jump the hurdle of proving not only that injury was sustained but that it was sustained as a result of negligence.
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