Report comment

I'm sorry that this quote from the judgment is rather long.
The issue in the case was whether or not the claimant should have been diagnosed and treated before he had a stroke. The factual time line was not much in issue - except D had not realised or asked one of its principle witnesses some important questions.

Read on.

"I heard evidence from the Claimant, from Dr Jones, from Professor Hildick Smith and from the Claimant's expert cardiologist, Dr Saltissi. Neither the Claimant's evidence, nor that of Dr Jones contained any surprises. The new evidence which emerged at trial was elicited by Mr Mylonas during his cross examination of Professor Hildick Smith when he put to the witness that the TOE results should have come back to him for review. In response, Professor Hildick Smith gave evidence that he had, in fact, seen the results of the Claimant's TOE shortly after the procedure was performed. He said that he thought that the test results had come across his desk on or around 6th May (2 days after the procedure) and that he had, at that time, requested the patient records. He had annotated the report of the TOE, with the words "Notes Please" at that time, that is, on or around 6th May 2012. He told Mr Mylonas that, for some reason, the notes were not provided to him and so the trail "went cold" and the Claimant was "lost to follow up" until his attention was once more directed to the Claimant by Dr Kuhn's letter (to which he responded on 18th September 2012). Having elicited this evidence Mr Mylonas was bound to follow it up. Professor Hildick Smith said that, but for the loss to follow up, he would have expected to have received the notes after about 2 weeks of his request; he said that it would take some time as the cardiology department was in a different hospital site from Dr Jones' clinic and medical notes were not centralised in 2012. He said that once he had received the notes he would probably have then written to the Claimant's GP and Dr Jones offering to review the Claimant. Putting it all together, his best assessment was that if it had all gone to plan, he would have been writing to the Claimant's GP and to Dr Jones on around 27th May 2012. He would have then awaited a response from Dr Jones and, if Dr Jones had requested a referral, only then would the 8 or 10 week waiting time have started.
This evidence was wholly new. It did not feature in the witness statement which had been signed by Professor Hildick Smith and served on the Claimant. This witness statement which was dated 26th July 2017 set out Professor Hildick Smith's involvement in the Claimant's treatment at paragraph 8 as follows: "I did not meet the Claimant but I reviewed the results of the bubble contrast echocardiogram which he underwent on 13th April 2012. I wrote to the Claimant's GP the same day to confirm the results of the contrast, this being a large right to left shunt on provocation. I arranged for the Claimant to undergo a transoesophageal echocardiogram to confirm the anatomy of the shunt. I did not meet the Claimant at any point". Professor Hildick Smith then set out the exchange of correspondence between Dr Kuhn and himself concerning the possibility of the Claimant stopping the medication which had been prescribed. At paragraph 12 of his witness statement he addressed the Claimant's allegation that the Claimant should have been reviewed by the cardiology team following the TOE. He there set out the timescales within which a cardiology consultation would have taken place and the waiting time for surgery on the assumption that the referral had been made, as was the routine practice, by the physician who requested the investigation. At no stage in his witness statement did Professor Hildick Smith suggest that he had in fact reviewed the results of the TOE personally and that he had then requested the notes with a view to offering the Claimant a referral. Nor did he acknowledge that the Claimant had, on his own assessment, been "lost to follow up".
Submissions on Costs

Mr Mylonas submits that the new evidence was fatal to the Claimant's case on factual causation. He submits that it has always been his case that the review should have been initiated by the cardiology team triggered by a review of the TOE report. The effect of Professor Hildick Smith's evidence during trial was to add several weeks to his timeline: two weeks for the receipt of the medical records, a further week for the preparation and sending of the letter from Professor Hildick Smith to Dr Jones and then a further interval for Dr Jones to consider the letter and respond. Given the expert agreement that a period of either 8 or 10 weeks was the reasonable waiting list norm for cardiology review coupled with a further 3 months' wait for the procedure, the timeline to surgery which was generated by Professor Hildick Smith's evidence was extended well beyond the stroke on 5th October 2012."

I see nothing wrong in the medical witness not appreciating the evidential significance of a long clinical history. That's the lawyer's job or that of the professional expert witness to point out.

The evidence was not in reality "withheld"; it was overlooked.