11 September 2020 | Comment | Article by Ruth Powell

My landmark lockdown trial: The biggest ‘white knuckle’ ride of a case in my 25 year career as a Clinical Negligence Lawyer

As a clinical negligence lawyer for the last 25 years, I’ve seen a lot and have worked on my fair share of high profile and complex cases.

But this summer, in the midst of lockdown, I received judgment on a case that had more twists and turns than I have ever witnessed in my entire career.

The case itself was heart-wrenching and I wrote about the judgment at the time. It was the first clinical negligence trial to take place ‘in person’ during lockdown.

But what I didn’t write about was the unprecedented circumstances of the trial and the series of tragic events leading up to it that felt like something out of a soap opera.

The trial centred on the case of a child, named SC – her real identity being subject to an anonymity order.

In 2006, at the age of 15 months, the child was displaying the signs and symptoms of a serious bacterial infection. Her GP suspected meningitis and sent her to hospital in an ambulance after giving her penicillin. But, doctors at University Hospital Southampton NHS Foundation Trust did not take sufficient notice of the GPs concerns and instead diagnosed tonsillitis. Her meningitis was therefore left partially treated. She subsequently developed hemiplegic cerebral palsy and has severe and complex needs.

The progression of the case through the Court timetable was lengthy, stormy and beset with unexpected challenges.

Firstly, in May 2015, the Paediatric Neurologist, originally instructed on behalf of SC, was the subject of a Daily Mail sting in which he was caught on camera abusing Class A drugs just before he went on duty at his NHS hospital.

Then, the Neonatologist who had been involved with the legal investigation was tragically killed in a bicycle accident in August 2016.

Dr Maggie Bloom, the barrister who had worked on the case from the outset, was then diagnosed with cancer and sadly died in the summer of 2018.

In November 2019, the microbiologist instructed by SC was diagnosed with a malignant brain tumour and required urgent surgery, which meant that the trial which was listed for January 2020 had to be vacated. It was re-listed for June 2020 but then COVID-19 hit and the country went into lockdown.

The COVID-19 restrictions meant that the trial at the Royal Courts of Justice in London was ordered to be heard remotely. Shortly before the trial was due to start, the Defendant applied for an adjournment on the grounds that a remote hearing would be unfair. But the judge, the Honourable Mr Justice Johnson, rejected that application and directed that the trial should take place in court.

As I’ve said in my previous article on the case, it would be rare for a complex clinical negligence case to go to trial even before the coronavirus. The ‘in person’ ruling during lockdown, with important implications for the hearing of trials in the COVID-19 era, made it even more unusual.

In total, 4 experts provided evidence, one remotely because he was shielding whilst recovering from brain surgery and the others appearing at court. There were also 5 lay witnesses who appeared in-person. Social distancing measures were enforced in the courtroom. Lawyers had to use separate bundles to avoid the risk of cross-contamination. Solicitors were not permitted to pass notes between the family, experts and barristers. Instead, they communicated important messages via WhatsApp and mobile phone texts, with special permission granted for this purpose. The judgement was also handed down remotely rather than in person.

Mr Justice Johnson found University Hospital Southampton NHS Foundation Trust liable for all SC’s injuries and other loss and damage that she has sustained. After such a long and dramatic journey, it was a huge relief to her parents and legal team.

The case had dominated the lives of all involved and had been all-consuming. Lockdown and the tragic side-stories added to an already intolerable burden.

I’m not sure whether I’ll ever experience such a white knuckle ride of a case again. I hope not for everyone’s sake.

This blog is a shortened version of a longer article, written by Ruth Powell, for ‘PI Focus’ – a magazine for members of APIL and published in September 2020.

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