Competence not credibility
Court finds that stress did not impair a surgeon’s ability to operate
The case of Laughton v Shalaby  EWCA Civ 1450 examines the extent to which the court can take into account factors of external origin when deciding a clinical negligence claim. Janet Laughton, the claimant, had a left hip replacement operation on 30 July 2007. The defendant orthopaedic surgeon used the antero-lateral approach method of hip replacement. This required the surgeon to detach the gluteus medius from the bone so that the artificial hip joint could be inserted and then to reattach the muscle.
After the operation, the claimant continued to suffer from a painful loss of mobility. During further surgery, another surgeon discovered that the muscle was not attached to the bone. The claimant therefore alleged that the defendant had negligently failed to reattach the gluteus medius properly, or at all.
At trial the judge preferred the opinion of the defendant’s expert that tearing away of the muscle (avulsion) was a recognised, although rare, complication following the antero-lateral method of hip replacement. The judge accepted that this did not imply negligence on the defendant’s part and dismissed the claim.
On appeal, the claimant argued that the risk of natural avulsion of the gluteus medius was so rare (about 1 in 200 cases) to be statistically insignificant. A much more likely alternative was that the defendant had either not reattached it to the bone or had failed to do so properly. The claimant also wished to rely on various extraneous factors to support her claim and to introduce general evidence about the defendant’s (i) lack of probity; (ii) stress-related problems; and (iii) incompetence in other cases.
The Court of Appeal found that statistics about the risk of avulsion were not clear-cut. To prove negligence, the claimant would have to show something which differentiated her operation from any other where avulsion had occurred and she was unable to do this.
As regards the defendant’s alleged lack of probity, he did not inform the court that conditions had been imposed on his registration to practise or that he had subsequently been suspended for committing an assault. Although these matters might have been relevant to the defendant’s credibility as a witness, they did not make it more probable that he had performed the operation negligently. The real issue was his competence rather than credibility.
There was no medical evidence that the defendant’s stress-related problems had impaired his ability to undertake clinical duties.
Evidence of incompetence in other cases was only admissible if relevant to the issue to be determined. Unlike bad character evidence in criminal proceedings, evidence of extraneous matters in civil proceedings should be confined to cases of similar fact. In this case, a previous General Medical Council report stated that the defendant’s treatment of seven patients had fallen below acceptable standards. However, the examples of surgery in the report were too far removed from the claimant’s hip replacement operation to constitute similar fact evidence.
The court dismissed the claimant’s appeal because it was impossible for her to prove that there had been a negligent failure to reattach the gluteus medius. General evidence about lack of probity, stress and incompetence in other areas of practice could not make up the deficiency.
This article was first published in Claims Magazine