Sam Aynsley was instructed in a clinical negligence matter which has recently settled on favourable terms.

The Claimant underwent surgery, prior to which her right middle finger was asymptomatic. She awoke with an acute mallet deformity to her right middle finger, but the surgery was unrelated to her hand. It was the Claimant’s case that the mallet deformity was consistent with blunt trauma and must have been caused by the culpable act of a treating clinician during her surgery.

The Claimant faced an obvious potential evidential difficulty in proving her claim. Having been under general anaesthetic, the cause of her injury was outwith her direct contemplation. The Claimant contended that the facts, as known to the her at the time she pleaded her case, gave rise in themselves to a prima facie case of negligence i.e. res ipsa loquitur.

The health board Defendant had denied liability. It had interviewed those present in the operating theatre who had all denied culpability. The Defendant somewhat breezily referred to ‘countless other potential causes’ in correspondence, without any particularity.

Where a claimant makes such an allegation, it is always open to a defendant to put forward a possible explanation for what had occurred that was inconsistent with negligence. In successfully defending such a claim, a defendant need not demonstrate such a causal explanation on the balance of probability, provided always that it was ‘plausible’ – a much easier hurdle for a defendant overcome.

The Claimant obtained liability evidence from a leading orthopaedic expert who ruled out a host of hypothetical innocent competing causes as being ‘not plausible’. The expert concluded that the most likely cause of the injury would have been a rough application of a pulse oximeter, perhaps whilst a clinician was distracted. The Defendant then made a favourable commercial offer after the service of proceedings.

The claim had previously been rejected by a different firm of solicitors given its perceived evidential difficulties. It is however possible for a claimant to succeed in such matters, particularly when aided with thorough expert evidence which specifically rules out potential innocent competing causes at the outset.