The High Court has allowed two doctors to amend their defences in a medical negligence action brought on behalf of a child, despite both applications being made less than a week before the specially scheduled trial began.
Mr Justice Garrett Simons ruled on 1 December 2022 that the proposed changes were needed to clarify the issues for trial and did not cause prejudice to the child. The ruling concerns only amendments to the pleadings. It does not decide whether the alleged negligence occurred or determine the child’s claim.
The child, suing through his mother as next friend, alleges that medical care provided to his mother during pregnancy caused him personal injuries. The mother had epilepsy and had received care from the first defendant, a general practitioner, and the second defendant, a consultant neurologist. The claim alleges that medication prescribed to manage the epilepsy was inappropriate given the mother’s intention to have another child, and that she was not properly advised about pregnancy risks. Those allegations remain to be determined.
The proceedings were issued in February 2020. The defendants sought leave to amend their defences shortly before the trial opened on 30 November 2022. The second defendant’s proposed changes included an account of a telephone call in May 2005, an invitation for the mother to attend the clinic, and advice allegedly sent to the first defendant about the risk of teratogenesis. These are pleaded positions, not findings made in this ruling.
The child opposed the applications, citing their late timing and the defendants’ access to relevant information earlier in the proceedings. In relation to the second defendant’s expert evidence, the child’s side also alleged that the report process was delayed and criticised the latest report. The judge rejected the suggestion that the second defendant had improperly searched for a favourable expert: six of eight neurologists approached had been unable to assist or had not responded, and the change in legal representation and indemnification procedures explained the review of earlier expert evidence.
The judge described the timing as unsatisfactory but said the amendments represented an evolution of the existing defences, in part alongside changes to the child’s own pleaded case. The six-week hearing was expected to straddle the Christmas period, allowing the scheduling of witnesses to give the child’s experts time to respond. The child had been offered a short adjournment but instructed counsel to continue the hearing that week.
The court granted both defendants leave to amend their defences under Order 28, rule 1. The judge’s view on costs was provisional: he considered that the child should recover the costs of the two motions because the applications were made at the eleventh hour. Either defendant could address the court before a final costs order was made.