Law Report: Retrial of medical claim ordered: Cunningham v North Manchester Health Authority - Court of Appeal (Lord Justice Neill, Lord Justice Staughton and Lord Justice Beldam), 2 February 1994

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A health authority's failure to give proper discovery of X-rays in a medical negligence claim where radiological evidence was important had resulted in the plaintiff's expert radiologist relying on inadequate and misleading copies of the X-rays and giving wrong evidence to the court. The radiologist's further report based on the original X-rays was admissible fresh evidence and a new trial was ordered.

The Court of Appeal (Lord Justice Staughton dissenting) ordered a retrial of Francis Cunningham's claim in negligence against the North Manchester Health Authority.

On 22 October 1985, Mr Cunningham, then aged 18, injured his left leg. X-rays were taken at the casualty department of the North Manchester General Hospital. The senior house officer showed the X- rays to the registrar who said there was a tibial plateau fracture and a plaster of Paris cylinder should be fitted. Mr Cunningham attended the fracture clinic the next day where he was examined by the same registrar who treated the case as routine.

Mr Cunningham experienced increasing pain and was admitted as an emergency on 29 October. His leg was partially amputated in November and in April 1986 amputated below the knee. He brought a claim against the health authority, which informed his solicitors that the original X- rays had been destroyed and replaced by miniaturised copies. His medical experts, including a consultant radiologist who relied heavily on the miniaturised copies, considered that the plaintiff's popliteal artery was injured at the time of the initial injury and should have been detected clinically on 22 or 23 October 1985.

On the second day of the trial, counsel for the authority informed the court that the original full size X-rays and arteriograms existed. Copies had always been available to the authority's experts, who criticised the value of the miniature copies of the X-rays. Mr Justice Henry dismissed Mr Cunningham's claim.

Mr Cunningham sought a new trial relying on a fresh report from his consultant radiologist based not on the miniature copies, which photographic experts found to be very poor, but on the arteriograms disclosed at the trial.

Mr Cunningham in person; Terence Coghlan QC and Margaret Bowron (North Western Regional Health Authority) for the authority.

LORD JUSTICE NEILL said that at the trial evidence of the radiologist would have been of great importance. The further evidence should be admitted. It could not have been available at the trial. It required careful consideration of the fresh material and expert advice as to the inadequacy of the miniaturised films. The consultant radiologist would have given quite different evidence if he had seen the original X-rays and arteriograms at the proper time.

The judge was uneasy about the evidential value of the miniaturised copies and attached importance to the radiological evidence, but through no fault of the judge, it was the wrong evidence. The fact that it was the wrong evidence was largely the fault of the health authority, which had failed to a lamentable degree to comply with its duty to give proper discovery. In the special circumstances, a new trial would be ordered.

LORD JUSTICE STAUGHTON, dissenting, said that the fresh evidence could not be admitted in accordance with ordinary principles and practice and the appeal should be dismissed.

LORD JUSTICE BELDAM said that the authority was grossly negligent in dealing with Mr Cunningham's advisers' requests for the X-rays, and mispresented that the originals had been lost or destroyed and further represented the miniatures as being proper and careful copies of the originals. The effect of the authority's blatant and inexplicable failure to comply with the ordinary rules of disclosure influenced the presentation of Mr Cunningham's case.

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