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Articles | Wed 31st Aug, 2022
Elite sport is a precarious occupation. An injury may abruptly end a promising career. Large sums of money are therefore at stake when a sports player brings a claim of medical negligence against their clinician. The stakes for those who treat such professionals are high. Accordingly, the recent judgment of Johnson v Williams  EWHC 1585 (QB) ought to be carefully studied by healthcare practitioners. It illustrates the challenges for claimants in establishing causation, and the importance of abiding by the principles of The Ikarian Reefer for expert witnesses.
Roger Johnson was a former footballer. He had played in the Premier League for Birmingham City and Wolverhampton Wanderers. In January 2017, he suffered a meniscal tear to his left knee during a training session. Surgery was undertaken, and the tear was repaired. However, the knee subsequently became infected. On 17th March 2018, the surgeon performed a synovectomy procedure to remove the infective materials.
During this period, Mr. Johnson claimed that the surgeon negligently damaged his medial retinaculum. At about 23rd March 2018, a fluid-filled lump appeared over his medial retinaculum and continued to refill despite repeated aspirations. An MRI scan performed later showed a large tear in the medial retinaculum. Mr. Johnson alleged that the only possible, and therefore likely, cause of the tear was surgical error. The surgeon argued that no damage had occurred during the synovectomy procedure. The plausible causal mechanisms of the tear were the infection, or the Claimant’s failure to follow post-operative instructions.
The court was required to determine a preliminary issue of causation. Namely, was the tear caused by a surgical error? Judge Hyam QC held in favour of the Defendant for the following reasons.
The surgeon would have had to use repeated and excessive force to create such a large tear. It was not the Claimant’s case that the surgeon had done do so deliberately, and it was unlikely that he could have done inadvertently. Further, the expert evidence indicated that if the tear had occurred during the synovectomy procedure, it was highly likely that extravasated fluid would have been immediately visible to the surgeon, drawing attention to the damage. It would have taken a high degree of inadvertence for the surgeon to have caused the tear, and failed to notice it during surgery; or indeed when he washed out the wound thereafter, or when he carried out an arthroscopy and second wash-out two days later. A surgical error was unlikely.
The Claimant’s case was that the alternative mechanisms suggested by the surgeon that they could be ruled out. The High Court approached this with reference to Rhesa Shipping Co. SA v Edmunds  1 WLR 948, a case heard at first instance by Mr. Justice Bingham (as he then was). In this case, competing theories were advanced as to how a ship came to sink. Namely, whether the ship collided with a submarine, or whether the cause was wear and tear of the shell plating of the ship. Mr. Justice Bingham set out his conclusion about the submarine theory in this way:
“I think it would be going too far to describe a collision between the vessel and a submarine, rupturing the shell-plating of the vessel, as impossible. But it seems to me so improbable that, if I am to accept the plaintiffs’ invitation to treat it as the likely cause of the casualty, I (like the plaintiffs’ experts) must be satisfied that any other explanation of the casualty can be effectively ruled out.”
Judge Hyam QC followed the same approach. While it was not impossible that a 3cm diameter tear was caused at the time of surgery, it was highly improbable. As Counsel for the Defendant noted in her skeleton argument, there was no obligation on the Defendant to prove, even on the balance of probabilities, the truth of their alternative case.
Ultimately, the evidence adduced by the Claimant was not sufficiently cogent or compelling for the court to conclude that the Defendant caused a 3cm diameter defect to the Claimant’s medial retinaculum during the course of the synovectomy procedure.
There are two points which medical negligence practitioners should draw on from reading this judgment. First, this case illustrates the importance of the burden and standard of proof when determining causation. The High Court viewed the Claimant’s case on causation as improbable because it would have required the surgeon to have a high degree of inadvertence. Without further evidence, the court was unwilling to accept that it was the likely cause of the injury. Accordingly, when setting out the Claimant’s case on causation in medical negligence, the hypothetical proposed must be realistic and bear the scrutiny of the court.
Second, this case highlights the pitfalls in which expert witnesses can fall. Both experts came under criticism during the hearing. In particular, the Claimant’s medical expert came under criticism during the hearing for the following reasons:
Accordingly, this case is a salutary reminder of the principles in The Ikarian Reefer  2 Lloyd’s Rep. 68. Namely, that experts should provide independent assistance to the court and not adopt a dogmatic view in cross-examination. They should acknowledge where there is a range of opinion and explain the reasons for the expert rejecting them. Ultimately, an expert witness who assumes the role of an advocate is not likely to impress a court.