Fundamental Dishonesty in Clinical Negligence Cases: Unreliable Does Not Necessarily Mean Dishonest

In Brint v Barking, Havering and Redbridge University Hospitals NHS Trust [2021] EWHC 290 (QB), HHJ Platts, sitting as a High Court Judge, declined to make a finding of fundamental dishonesty following the dismissal of the Claimant’s claim for damages, arising from an extravasation injury sustained following a CT scan with contrast carried out at the Defendant’s hospital Trust.

The Claimant’s Allegations

The Claimant alleged that as a result of the extravasation injury, she developed Complex Regional Pain Syndrome, Post Traumatic Stress Disorder and clinical depression causing her significant disability as a result of which she required assistance with many aspects of daily living. The Claimant’s main allegations of negligence were that the Defendant Trust:

• Failed to warn the Claimant of any material risk associated with a CT scan including the risk of extravasation injury.
• Ignored the Claimant’s request not to inject a needle into her left thumb in order to administer the contrast.
• Failed to remove the needle after the Claimant complained of pain or ask the Claimant if she wanted it removed.
• Failed to provide the Claimant with appropriate care or treatment after the injury.

The Defendant Trust’s Case

The Defendant Trust denied each of the allegations made by the Claimant, save that, for reasons that were not entirely clear, the Defendant Trust admitted in its Defence that the “risks and benefits of a full body CT scan with contrast were not discussed with the Claimant”. This was not however the Defendant Trust’s position evidentially or at trial, where it argued that the Claimant was warned of the risk of extravasation before the procedure was carried out.

The Findings of HHJ Platts

The Judge preferred the evidence given on behalf of the Defendant Trust in respect of each material dispute of fact pertaining to the issue of liability. He found the Claimant’s evidence on the whole to be “unconvincing and unreliable”, primarily for the following reasons:

• The Claimant’s suggestion that she was “fit, healthy and active” before the incident was inconsistent with her extensive medical history and the fact that she had been in receipt of the highest rate of Disability Living Allowance (DLA) (mobility component) since 1992.
• The Claimant’s account of the incident was in many respects at odds with the agreed expert evidence and was in other respects, inherently improbable. Two stark examples of this were that:
• The agreed expert evidence was that the images obtained from the CT scan indicated that the Claimant remained still and was thus co-operative during the scan. This was inconsistent with the Claimant’s evidence that she was in severe pain and that she shouted out at least five times requesting that the procedure stop.
• The Claimant’s affected limb was reviewed in A&E following the extravasation. It was recorded on examination that there was “swelling to the hand and fingers … bruising to proximal third of the forearm … full range of movement in wrist and finger joints.” This was wholly at odds with the Claimant’s evidence that her “arm was hanging by my side, enormous in size, black and blue in colour with clearly no circulation or sensation in the hand and the fingers.”

Notwithstanding the admission in the Defendant Trust’s pleadings, the Judge considered that the Defendant’s “broad denial” of the allegation that it failed to take reasonable care and the evidence, permitted him to find that the Claimant probably was warned of the risk of extravasation injury before the procedure was carried out. He further found that if he was wrong about that, even if the Claimant had been warned she would probably have agreed to proceed with the scan in any event.

The Judge noted that just seven weeks prior to the extravasation injury, the Claimant had made a very similar complaint about a radiologist who had carried out a nerve root block injection using CT scan localisation. The Judge stated that those events were still dominant in the Claimant’s mind when she underwent the index scan and that in the circumstances, he could not discount the possibility that she had somehow in her mind, conflated the two events.

The Defendant Trust’s Application for a Finding of Fundamental Dishonesty

The Defendant Trust sought a finding of fundamental dishonesty on the basis of the Claimant’s “incredible or unreliable” version of events at the time of her scan, her “failure to give a satisfactory account of her benefits claim” and her “failure to give a satisfactory account of her long-standing multiple prior health conditions in her witness statement and to the experts instructed in her case”.

In considering the application, the Judge reminded himself of the test of dishonesty as set out by the Supreme Court in Ivey v Genting Casinos Ltd [2018] AC 391 per Lord Hughes at [74]:

“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.” 

The Judge found that despite the overall unreliability of the Claimant’s evidence, she genuinely believed the case she advanced to be true. He was not therefore persuaded that she had been dishonest. In reaching this decision, the Judge had regard to the following matters:

• None of the experts in the case and none of the Claimant’s treating clinicians had accused the Claimant of being dishonest in her presentation (save for a very late change of stance by one expert, whose evidence the Judge rejected in any event).
• None of the expert witnesses considered the Claimant to be motivated by money or financial reward, and this accorded with the Judge’s impression of the Claimant as a witness.
• The Claimant’s complaints about her treatment were promptly made and remained consistent.
• Given the probability that the Claimant had conflated the events of the index incident with her previous nerve root injection, the Judge was sure that she genuinely believed that what she said happened in fact happened.
• The Claimant genuinely perceived herself to have been “fit, healthy and active” prior to the index incident when judged within the context of the limitations to her health. The Judge’s carefully expressed finding had been however that when viewed objectively, the Claimant’s evidence in this regard was unreliable and inaccurate.
• The Judge accepted the Claimant’s explanation for her failure to disclose that she was in receipt of DLA, which was that she thought it was irrelevant because it related to a back problem about which she was not making a direct claim. Furthermore, the Claimant had volunteered that she received this benefit to the Defendant’s care expert.
• The Claimant’s evidence had to be viewed against the background of her complicated psychological profile, which had been the subject of lengthy expert discussion.
• The Judge did not consider the Claimant to be a dishonest person.

Comment

This decision, although highly fact-sensitive, is a helpful reminder that a finding of unreliability does not necessarily equate to a finding of dishonesty. Moreover, this decision demonstrates that in cases, which involve Claimants with an undisputed protracted and complicated psychiatric medical history, Defendants may well face an uphill struggle in persuading the Court that the Claimant’s complaint is motivated by dishonesty, as opposed to a genuinely held belief.