Clinical Negligence: A Doctor’s Character & Other Complaints – Are these relevant?

Many solicitors in the field will be familiar with clients who make claims against a doctor and tell stories of friends who have suffered at the hands of the same doctor, provide newspaper articles suggesting that the doctor may not have an unblemished reputation or find that the doctor concerned has disciplinary issues.

Is this relevant?

In short - NO!

The recent case of Laughton v Shalaby 2014 WL 1450 usefully addresses the issue:

Mrs Laughton underwent 2 hip replacement operations performed by Mr Shalaby in 2007 and in 2008. She complained that, in the first of the 2 procedures, Mr Shalaby had acted negligently in failing to re-attach a muscle (the gluteus medius) to the trochanter bone at the end of the operation. The court, in preferring the evidence of the defenders' expert, held that Dr Shalaby had not failed to re-attach the muscle but that, unfortunately, Mrs Laughton had suffered a rare, but well-recognised, complication of this type of procedure and that the muscle had subsequently separated from where it had been re-attached by Mr Shelaby.

Mrs Laughtons counsel submitted that the court should consider a number of factors such as:

• Lies told by Mr Shalaby about the state of his marriage to a Consultant Psychiatrist instructed to consider his fitness to practise;
• Allegations made by Dr Shalaby about the medical centre at which Mrs Laughton's operation was performed which Mrs Laughton's counsel described as "bizarre";
• Mr Shalaby's failure to disclose in his witness statement and then in evidence that conditions had been imposed on his registration to practice and that he had subsequently been suspended following a conviction for assault.
• The fact that Mr Shalaby had been consulting his GP re stress at work problems around the time of Mrs Laughton's operation.
• The fact that 26 complaints had been made by patients of Mr Shalaby.
• Criticisms made by the orthopaedic surgeon instructed by the GMC to investigate treatment of 7 patients of Mr Shalaby.
• Criticisms made by the Health Care Commission.

The court characterised these submissions as:

1. evidence lack of probity;

2. evidence of mental health issues; and

3. evidence of lack of competence in other cases.

Re lack of probity, the court stated any proven example "might show that Mr Shalaby would be unlikely to admit to incompetence if it had occurred or that he was less likely than he asserted to have followed his standard practice. This is a slender basis upon which to advance a positive case of negligence." The failure to disclose to the court the suspension and assault, the court said, was a "very serious dereliction of his obligation to be honest with the court" but it went on to say that this did not make it more probable that Mr Shalaby had performed the operation negligently.

Re mental health issues, the court advised that stress did not, of itself, mean Mr Shalaby was more likely than not to have been negligent on a particular occasion and observed that there was no medical evidence that his ability to undertake his clinical duties was impaired.

Re incompetence in other cases the court advised that this was "highly problematic". Was it admissible at all?
"Evidence of complaints is not probative, it is merely evidence of complaints."
The court stated that extraneous matters should be confined to cases of similar fact. Knee, foot and wrist operations were too far removed on their facts. A Fitness to Practice decision would only be worth anything if it disclosed similar fact evidence relevant to the existence of negligence in Mrs Laughton's operation.

In conclusion, tales from the client about the doctor's character or other complaints against him should be treated most carefully. Only those situations on or almost on all fours with the facts of your client's case will be of any potential assistance and in very limited circumstances.