EWJ June 2024 web - Journal - Page 74
Getting The Evidence For
A Life Changing Injury Claim
by Ali Malsher - www.anthonygold.co.uk
What evidence do you need aside from the medical records?
And how do you get it?
Clinical injury claims need a lot of documentary
support. Medical records are the obvious first port of
call. But there are other records which sometimes
exist but often are hidden which can support a claim.
Such a case was the Turner & Another v Sheffield Teaching Hospitals NHS Foundation Trust & Another [2023]
EWHC 3452.
3. Lastly the court retains a discretion as whether to
make an order in any event.
Both the trust and the board thought this would be
an intrusive order to make. The court considered
there was no doubt that they would assist with the
case. The court on balance thought that these were
necessary for the case to proceed because they were
further recollections and information which may not
be available and they were likely to be of interest to
the court.
The claimant was bringing an action against the trust
relating to negligence shortly after he was born. Statements were made by the employees of the trust to the
Healthcare Safety Investigation Board at some point
after that date. The Healthcare Safety Investigation
Board was a statutory body which was set up to investigate adverse outcomes in clinical practice.
The judge further confirmed that because there is no
property in witnesses it was also possible that the
claimant’s solicitors could write to the witnesses and
ask for a statement although the witnesses would be
unlikely to cooperate. Given that these documents
had been prepared and were of intrinsic value to the
claim there was no particular reason why they should
not be disclosed.
The claimant applied for the statements, which would
not normally be made available or indeed confirmed
as existing. The matter came before Master Brown.
Master Brown decided to allow an application by the
claimant for disclosure of statements made in a separate investigation by the Healthcare Investigation
Board. It wasn’t clear whether the statements belonged to the Trust or to the Investigation Board itself.
If it was the latter, this would then be an application
against a third party, not impossible but not commonly
granted.
Seek everything you can
These documents are often prepared in an investigation. Sometimes they are routinely released. Often
they are not and are not referred to by the Trust. Occasionally a claimant obtains the outcome of an investigation but not what was reviewed by the investigating
group. In this instance the solicitors obtained an order
which allowed valuable statements to be available for
review, in the face of significant opposition.
Applications for disclosure against third parties
are an exception rather than a rule
Both the Trust and the Healthcare board challenged
the disclosure.
All documentation is required for a claim but often it
is a struggle to get all that is available and needed. This
case highlights what we here practice – seek everything
you can, apply to court if not and keep pressing for
anything which might support the claimant’s case.
The NHS Trust argued on the basis that these were
not documents in its own custody or control. The
Healthcare Board said it could not disclose the statements because that would undermine their further
investigation.
* Disclaimer: The information on the Anthony Gold website
is for general information only and reflects the position at the
date of publication. It does not constitute legal advice and
should not be treated as such. It is provided without any
representations or warranties, express or implied.*
The master did hold that the Trust’s employees were
not in the Trust’s control and therefore an order had
been made in essence against a third party. Applications for disclosure against third parties are an exception rather than a rule. There are a number of issues
to be considered before such an order could be made.
About the author
Ali Malsher
ali.malsher
@anthonygold.co.uk
1.The first requirement is to demonstrate that the
documents support or adversely affect the case of one
or either of the parties.
2. The second hurdle is that the disclosure of the documents is necessary in order to fairly dispose of the
claim and save costs.
EXPERT WITNESS JOURNAL
Ali Malsher is a Partner on
the Medical Claims team
and an expert in surgical,
72
JUNE 2024