Victory for defendant in High Court clinical negligence claim
June 2010
In Buxton v Abertawe Bro Morgannwg University Local Health Board, Alice Nash of Hailsham Chambers acted for the NHS Local Health Board in successfully defending a claim for damages arising from allegedly negligent ophthalmologic treatment, winning on both breach of duty and causation.
The brief facts were that Mr Buxton had attended the ophthalmology department of Swansea Hospital with a history of herpes simplex virus infection in one eye. The virus causes ulceration of the corneal surface and is treated with antiviral ointment. Mr Buxton was also suffering from stromal keratitis, a complication of the infection whereby the substance of the cornea becomes inflammed. It was common ground that stromal keratitis can be very damaging to vision and is most effectively treated with steroids, but that steroids carry the risk of aggravating the corneal surface ulceration. Mr Buxton was given steroids and antiviral ointment. He returned to the hospital a week later with a large area of ulceration. His condition took some time to settle and he was left with impaired vision.
The claimant's case, supported by expert evidence, was that steroids should not have prescribed until the original ulcer had completely healed, with no remaining gaps in the corneal epithelium. The steroid had aggravated his ulcer, causing his visual impairment. The expert evidence for the defendant was that a clincian confronted with the two co-existing conditions would have to balance the risks and benefits of treating each, and it had been reasonable to prioritise treatment of the keratitis despite the risk of aggravating the healing ulcer.
The judge accepted the defendant's evidence: logic and common sense supported it. It had not been negligent to prescribe the steroid. He further held that the claimant had not proved that the cause of the later ulceration was the prescription of steroid. The judge went on to say that had he been awarding damages, he would have accepted the defendant's main arguments on special damages, and would have awarded less than the amount claimed for general damages and disadvantage on the open labour market.
The case is particularly encouraging for defendants for two reasons: firstly, although the treating doctor was not available to give evidence, the combination of what she had recorded in her notes and the expert evidence was sufficient to refute the allegation that she had been negligent. Secondly, it demonstrates, in case a reminder were needed, that the burden is on the claimant to prove every aspect of his case. The temporal association between the prescription of steroids and the later ulceration was not sufficient to demonstrate that the one had caused the other. The defendant did not need to prove that there was a non-negligent cause.
The case is reported on Lawtel and the judgment is available to download.
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