Legal Update by Hylton Armstrong.
In clinical negligence cases things change. That’s often because new expert evidence, witness evidence, or medical records come to light. So, when can you add to your existing case?
In November 2013 the Claimant’s husband was admitted for a coronary artery bypass, but his condition deteriorated, and he suffered a cardiac arrest and died.
In 2018 a claim was issued criticising the consenting process and post-operative care. In particular there were allegations about a failure to address the Deceased’s anaemia to prevent him suffering a fluid overload.
At a hearing about 4 months before a 5 day trial, the Claimant applied to amend the Particulars of Claim to add allegations about a failure to administer an oral diuretic, respond to a collapse, respond to a deterioration in oxygen saturation, and to keep adequate records including fluid balance charts.
The Defendants argued there was no power to allow the amendments as they were pleaded after limitation and arose from new facts. The Defendants also argued that the amendment would require further witness evidence, they might not be able to re-interview witnesses due to Covid-19, the trial date would be lost, and that the amendments were disproportionate in a £300k claim.
Under CPR 17.1 (Amendments to Statements of Case) if a statement of case has been served a party may only amend it with the written consent of all other parties, or the permission of the court.
Under CPR 17.4 (Amendments to statements of case after the end of a relevant limitation period) the court may allow an amendment to add or substitute a new claim, only if the new claim ‘arises out of the same facts or substantially the same facts’.
It’s important to remember that the purpose of the rule is to avoid situations whereby a Defendant has to investigate facts and obtain evidence about new issues it could not reasonably have been expected to have investigated already.
It was not in dispute that there were new claims made after the expiry of the limitation period. The issue was about whether they arose from the same or substantially the same facts as the original claim.
It was held that the new allegations related to newly particularised parts of the previous case, and that the revisions on causation had all be based on the original facts.
It was also noted that whilst the trial date would be lost, and that it was necessary for the Defendants to seek further witness evidence which might take significantly longer than normal, the trial date would not have been lost purely because of the amendments if there was no pandemic, it was not a very late application, it was common for expert opinion to be revised in complex clinical negligence cases after considering all the evidence, and that the Claimant could not be criticised for the delay.
This decision tends to suggest that if a Claimant has to change tack or add new allegations, provided they are following the evidence, acting promptly, and building on the existing case, they are likely to get the courts permission, notwithstanding real practical difficulties such as the need for further evidence or having to vacate a trial.
[Note that the full Judgment is currently unavailable, and that this short case note is based on the Lawtel summary only]