The Hon. Mr Justice Popplewell:
Introduction
- The Claimant, whose name is Shahrooz Naraghi, but who is generally known as Sharu Naraji, was a professional footballer who had signed for Sheffield United Football Club. He claims that his incipient career as a footballer at the highest level was destroyed at the age of 22 by the negligent performance of a surgical operation to reconstruct the anterior cruciate ligament of his right knee, and by negligent medical aftercare.
- Mr Naraji was born on 7 February 1984 in Bolton to an Iranian father and English mother. He lived in the United Kingdom until the age of five when the family relocated to Iran because of his father's commercial interests. There football was his passion from a young age. When twelve he was signed by the Esteghal Football Academy, and progressed successfully through the ranks at Esteghal FC, being a regular member of the U17 and U20 teams, and training with the first team; he was also a member of the Iranian national youth team. In the 2003/2004 season he spent three months on loan to Torino FC in Serie A in Italy and three months of the 2004/2005 season with Real Zaragoza of La Liga in Spain, although he did not play for the first team on either occasion. He was signed for the 2005/2006 season by Sheffield United Football Club ("SUFC") who had newly won promotion to the Premier League. He was 21 and on the verge, so he hoped, of a successful career in professional football with SUFC or at an equivalent level with other clubs in England or elsewhere.
- On 18 August 2005 Mr Naraji injured his right knee whilst doing a bounding exercise during a training session at SUFC, rupturing the anterior cruciate ligament ("ACL"). On 14 October 2005 he underwent an operation to repair it performed by a consultant orthopaedic surgeon, Mr. Bickerstaff. Following rehabilitation he resumed training with a view to regaining match fitness in time for the 2006/2007 season. On 5 September 2006, whilst playing in a reserve team match, he was crossing a ball and felt his right knee give way. He had suffered a rupture of the ACL graft inserted by Mr Bickerstaff.
- He resolved to have his ACL reconstructed by another surgeon. To this end he sought out the First Defendant, Dr. Shelbourne. Dr Shelbourne is an orthopaedic surgeon who qualified in 1976 and has specialised in purely knee surgery since 1987. He carries out approximately 200 ACL reconstructions per year and has published extensively in this area. He practices in Indianapolis through a limited liability company which is named as the Second Defendant. He there runs The Shelbourne Clinic at Methodist Hospital. Although named as the Third Defendant, it is not a legal entity, but rather the trading name of the Second Defendant; it is the name of the clinic Dr Shelbourne runs and at which he conducts his practice. Before me no one drew a distinction between the First and Second Defendants and I shall refer to them simply as Dr Shelbourne. It was SUFC who contracted with Dr. Shelbourne for Mr. Naraji's treatment and who paid for it, in each case on Mr Naraji's behalf.
- Dr. Shelbourne performed an ACL reconstruction operation on Mr Naraji on 1 November 2006 at the clinic in Indianapolis. Mr Naraji was initially pleased with his progress towards getting back to full fitness, but in the early part of 2007 had problems in training to which I shall refer more fully below. Despite further intensive work in training he was not fit by the summer of 2007, when his contract with SUFC was not renewed. He has never succeeded in regaining full match fitness and has not played professional football since.
- The Fourth Defendant, Mr Jari, is a consultant orthopaedic surgeon practising at the Hope Hospital in Manchester, and privately under the banner "Kneedoc" and "Manchester Sports Medicine". He specialises in particular in treating sports injuries. He saw Mr. Naraji, at Dr Shelbourne's request, in April 2007, with SUFC again being the agent instructing Mr Jari and paying him on Mr. Naraji's behalf. Mr. Naraji again consulted Mr Jari in January 2008 and September 2008.
- In these proceedings, commenced on 22 October 2009, Mr Naraji claims against both Dr Shelbourne and Mr Jari in contract and tort. The essential complaints against Dr Shelbourne are that he performed the ACL reconstruction surgery negligently by misplacing the femoral tunnel; and that he was negligent in his aftercare in failing to advise Mr Naraji of the misplacement of the femoral tunnel and to advise that the only way Mr Naraji would return to playing professional football would be by having a re revision operation. The essential complaint against Mr Jari is that he was negligent in failing to advise Mr Naraji that the femoral tunnel was misplaced and to advise that that the only way he would return to playing professional football would be by having a re revision operation.
- Dr Shelbourne and Mr Jari each deny negligence. They also deny causation (I shall return to identify the causation issues more fully below). In addition Dr Shelbourne advances the following defences to the claim against him:
i) the claim is barred by res judicata by reason of a claim having been filed on 3 November 2008 against him in the Indiana Department of Insurance and having subsequently been dismissed with prejudice by an order of the Marion Superior/Circuit Court;
ii) the claim is time barred under Indiana law which is the applicable law;
iii) any damages he would be liable to pay are capped under Indiana Law.
- This is the trial of issues of liability, causation and proper law which were ordered to be tried as preliminary issues by an Order of Master Yoxall dated 13 October 2010 in the following terms:
"A preliminary issue shall be tried between the Claimant and the Defendants as to whether or not the Defendants are liable to the Claimant by reason of the matters alleged in the Particulars of Claim and, if any such injuries were so caused, the extent of the same. Further, as between the Claimant and the First, Second and Third Defendants, there shall be a trial of a preliminary issue as to whether or not the law of the state of Indiana is the applicable law and, if so, the extent to which the law of Indiana applies to the Claimant's claim and the effect of that law (including whether or not the claim is statute barred under that law)."
The witnesses
- I heard factual evidence from each of Mr Naraji, Dr Shelbourne and Mr Jari. The latter two, although called as factual witnesses, were also qualified to give expert opinion evidence on matters in issue, and inevitably did so to some extent; but they were not tendered or cross examined as expert witnesses, of which there was no shortage, and I have taken their expert opinions into account, to the extent identified below, with those limitations in mind.
- Mr Naraji was a witness whose emotional distress and frustration at what he saw as the destruction of his dreams was evident. This led him to be a digressive and combative witness who often ignored the questions and sought to argue his case. At times his fervour led him to make allegations of fabrication of documents or their misdating which were unsupported and unjustified; indeed in one case they were aimed at what were his own emails. I do not doubt his sincerity in giving his evidence, but in my judgment his recollections had been influenced by his passionate attachment to his cause. Where his evidence was contested I only felt able to rely on it if it was inherently probable or borne out by the contemporaneous documentation.
- Dr Shelbourne and Mr Jari each gave evidence in a dignified and straightforward way.
- The orthopaedic expert evidence on behalf of the Claimant was given by Professor Fairclough and Mr. Strover (just retired), consultant orthopaedic surgeons practising in England with extensive experience of knee surgery including in particular ACL reconstructions. Professor Fairclough also had considerable experience of knee injuries in sportsmen, including Premiership and international footballers and his Chair was in Sports and Exercise Medicine at the University of Wales, Cardiff ("UWIC"). Professor Fairclough allied himself too closely with the Claimant's case and at times lost objectivity. This led him to seek to interpret or explain evidence in the way best suited to support the Claimant's case which when pressed he was unable to justify by any objective medical or logical reasoning. My assessment is that he became an advocate who felt that he had to argue not only Mr Naraji's case, but the wider issue of stopping Dr Shelbourne's approach being given the seal of approval by the court. Such an agenda should play no part in the conduct of an expert witness, whose role is to assist the court by giving an independent and objective assessment. Professor Fairclough's apparent crusade was doubly misplaced because it was based on his mischaracterisation of Dr Shelbourne's evidence, as I explain below. Accordingly whilst I found Professor Fairclough's evidence of considerable assistance in explaining the relevant anatomy and the surgical and radiological techniques and imaging, I felt less able to place reliance on it when it contained subjective opinion which was not supported by medical literature or other evidence which was put before me.
- Mr Strover was forthright in his views, using epithets such as "bizarre" and "absurd" to coruscate the Defendants' conduct. However the assistance I derived from these opinions was diminished by the fact that he did not articulate with any clarity the underlying reasons for his judgments, nor any objective basis upon which they were founded, whether in medical literature or elsewhere.
- For Dr. Shelbourne, the orthopaedic expert evidence was given by Dr Howell. He has been a specialist knee surgeon practising in California since 1986 with a clinical practice involving over 100 ACL reconstructions per year. He is an adjunct professor of mechanical engineering at the University of California at Davis and has co authored about 60 to 70 papers on ACL reconstruction. The Claimant's radiology expert, Dr Lyons, described him as one of the world's experts on ACL reconstruction, on whose published papers she relied. I found his evidence measured and helpful.
- For Mr Jari the expert orthopaedic evidence came from Professor King, a consultant orthopaedic surgeon at the Royal London Hospital with extensive experience of knee surgery including many elite athletes. He is an honorary professor at Barts and The London and a past Chairman of the British Association of Sports Medicine. Although he expressed various views in his report about the placement of the femoral tunnel in this case, he conceded in cross examination that he was not an expert on the question since his own "over the top" technique did not involve the use of a femoral tunnel. He also found himself in the uncomfortable position of trying to downplay the significance of his comments to Mr. Naraji when he had consulted him clinically in September 2010. Despite these unsatisfactory aspects of his evidence, I found other aspects helpful.
- Radiology expert evidence was given by Dr Lyons on behalf of the Claimant and Dr Hansen on behalf of Dr Shelbourne. Both were well qualified. Whilst Dr Lyons was to a small extent infected by the crusading attitude of her long time colleague, Professor Fairclough, which led her to give lengthy and sometimes digressive answers, she was able to explain her opinions by reference to objective features of the imaging, as was Dr Hansen. Where I had to choose between the opinions expressed by them I was able to do so by examining the underlying reasoning they gave for their opinions and the evidence on which they based it.
- There was also put before me expert evidence of the law of Indiana from Mr Oyebanji on behalf of the Claimant and Mr Zeigler on behalf of Dr Shelbourne. The experts did not agree the content and application of all the aspects of Indiana law which are potentially relevant to the issues I have to decide. Nevertheless the parties agreed that the experts should not give oral evidence; and that where there was a conflict between them, I should resolve it on the basis of their written evidence.
The Claim against Dr Shelbourne
Negligent Operation
- It is convenient first to consider the allegation that Dr Shelbourne carried out the operation negligently. I can do so without addressing whether the claim against Dr Shelbourne is governed by English or Indiana law because it was common ground before me that there was no material difference in the duty or standard of care to be applied under each system of law.
Negligence: the law
- In English law the standard of care is reflected in what is often called "the Bolam" test after the celebrated passage of McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, 586:
"The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. ………..in the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent. ……….the real question ………is whether the defendants, in acting in the way they did, were acting in accordance with a practice of competent respected professional opinion……………. he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art…………..Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."
- Lord Scarman in Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871, formulated it thus at page 885F:
"a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though other doctors adopt a different practice."
- In Maynard v. West Midlands Regional Health Authority [1984] 1 W.L.R. 634 Lord Scarman said at page 639:
". . . I have to say that a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge's finding, he erred in law even though elsewhere in his judgment he stated the law correctly. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate specialty, if he be a specialist) is necessary."
- In Bolitho v City & Hackney Health Authority [1998] AC 232, Lord Browne-Wilkinson giving the only speech said at page 241:
"…. in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of the opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J. [1957] 1 W.L.R. 583, 587 stated that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of medical men." Later, at p. 588, he referred to "a standard of practice recognised as proper by a competent reasonable body of opinion." Again, in the passage which I have cited from Maynard's case [1984] 1 W.L.R. 634, 639, Lord Scarman refers to a "respectable" body of professional opinion. The use of these adjectives - responsible, reasonable and respectable - all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter."
And later at page 243:
"These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.
"I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed."
- The position in the law of Indiana is reflected in the joint experts report of the Indiana lawyers as follows:
"The experts agree that clinical negligence cases (referred to in the United States as medical malpractice) are governed by state law, as are most other tort cases in the United States. To prove medical malpractice in Indiana, a plaintiff must show that the physician in question breached the standard of care and that such breach proximately caused injuries to the plaintiff. All of the elements in this test are governed by the Indiana Medical Malpractice Act, which provides that each such element must be proven, with narrow exceptions not applicable in this case, by expert medical testimony. The "standard of care" as defined in medical malpractice cases in Indiana is that a physician must exercise that degree of care, skill and proficiency exercised by reasonably careful, skilful, and prudent practitioner in the same class to which he or she belongs, acting under the same or similar circumstances: Vergara v.Doan, 593 N.E.2d 185 (Ind. 1992). A "breach" of the standard of care means a failure to conform one's conduct to the appropriate standard of care. However, Indiana courts have recognized that often a range of possible treatments, rather than a single course of action, may meet the standard of care and fall within appropriate medical judgment. Once the plaintiff proves that the standard of care has been breached, the plaintiff is required, also by expert medical testimony, to prove that the breach proximately caused the alleged damages. "Proximate causation" in this context means that the damages must have been of a type reasonably foreseeable to the defendant as a likely consequence of the negligent act or omission. Expert testimony on the issue of proximate causation has to be expressed in terms stronger than mere possibility, though such testimony need not reach "a reasonable degree of medical certainty." Essentially, all elements described above must be proven by a preponderance of the evidence, or in other words, that it is more likely than not that such elements existed."
Alleged misplacement of the femoral tunnel: the anatomy
- The ACL runs transversely between the lateral posterior part of the femur and the anterior medial part of the tibia. Its function is to restrain translation between the femur and tibia and to provide rotational stability whilst allowing for flexion. One very common, although not universal, form of ACL reconstruction surgery involves connecting a substitute for the ACL by fixing it at each end in appropriately placed tunnels drilled in the femur and tibia respectively. Mr. Bickerstaff's reconstruction involved creating two tunnels, one in the tibia and one in the femur. Dr Shelbourne created only one tunnel: he used the old tibial tunnel which Mr Bickerstaff had drilled, but created his own new femoral tunnel in a different position from that of Mr Bickerstaff. Mr Bickerstaff used a piece of hamstring which was pinned in the tunnels; in Dr Shelbourne's operation he used a bone to bone graft utilising a patellar tendon and its bone attachments taken from the other knee. Both are well recognised and appropriate techniques.
- This case is concerned with where the orifice of the femoral tunnel was located and where it should have been located. It is not concerned with the width of the tunnel or its depth or the angle at which it was drilled. The allegation of negligence is of misplacement of the orifice of the femoral tunnel. The significance of the placement of the orifice of the femoral tunnel is that it constitutes the point of attachment of the ACL replicant material to the surface of the femur, which is the substitute for the point of attachment of the native ACL to the femur.
- The femoral tunnel is placed within the intercondylar notch of the knee. When viewed from the front of the knee with the knee in 90 degrees of flexion, the intercondylar notch can be described in layman's terms as approximately apse shaped, save that the horizontal edge of the apse is not flat but cut away in an arch. The point at which the arch meets the bottom of the apse is, in layman's terms, the bottom of the back edge of the femur, that is the distal end of the posterior femoral cortex. This is referred to as the posterior femoral wall.
- Viewed from this angle there are two points of reference which are used to identify where a tunnel is placed:
i) One is how far round the apse it is from side to side, which is described in the literature by reference to its position on a clock. Whilst the clock analogy is almost universally used in the literature to which I was referred, the positioning of the point of the hands of the clock was not always identified consistently. The clock face is centred either on the tibial plateau as the 9 to 3 axis (which was the point taken by Professor Fairclough in his evidence on behalf of the Claimant to me) or somewhere a little higher in the centre of the notch (which was the point identified in a number of the papers, including that of Dr Markolf to which I refer below). Although it might make some difference in theory, it was not of significance in this case. The range of positions for the orifice of the femoral tunnel discussed in this case was between 10 o'clock and 12 o'clock. 12 o'clock describes a position in the middle of the intercondylar notch, in other words on the central vertical line of the apse in my layman's description.
ii) The second point of reference for the location of the tunnel is how far up the apse it is. This can be identified by reference to its distance from the posterior femoral wall (our bottom edge of the apse). The further from the wall it is, the higher up in the notch.
- These are the points of reference which are used surgically. As it was put in the paper by Dr Markolf referred to below
"Although this description of the target site is somewhat lacking in a strict engineering sense, these are surgically accepted working coordinates which are functional for surgeons performing the procedure. Other descriptive terms, such as deep and shallow within the notch (as viewed by the arthroscopist facing a knee flexed to 90 deg) could also be used to describe what we refer to as AP location."
Alleged misplacement of the femoral tunnel: the issues
- The Claimant's case was that there were two aspects to the misplacement of the orifice of the tunnel. First it was too vertical; secondly it was too anterior. By "too vertical" was meant too far round the hands of the clock towards 12 o'clock or beyond (or using my layman's description, too far centrally in the apse when it should have been further to the left). By "too anterior" was meant too far away from the posterior femoral wall (or in my layman's terms too far up the apse in the dome). The ideal placement was said on behalf of the Claimant to be at about 10.30 and as close to the posterior femoral wall as possible, of the order of 1-2mm. Dr Shelbourne's tunnel was said to be at 12 o'clock and 10mm from the posterior femoral wall (measured from the wall of the tunnel: or 15mm measured from the centre of the tunnel, the tunnel having a diameter of 10mm and radius of 5 mm).
- There was at times some confusion in the use of both the terms "vertical" and "anterior". At times in the evidence the concept of verticality was used to mean the angle of the tunnel rather than the location of its orifice. More confusingly, it was sometimes used to mean too far up the apse in the intercondylar notch ie the sense in which too anterior was also being used. "Anterior" was also used on occasion by reference to other points than the posterior femoral wall: of course a hole may be posterior to one point in a plane and anterior to another point in a different plane. By the end of the case the terminology was being used and understood consistently but I am conscious of the need to address some of the evidence in the light of earlier confusion or scope for confusion.
- There are three questions, the answers to which determine whether there was negligent misplacement of the femoral tunnel:
i) Where was the place or range of places in which a reasonably skilled knee surgeon should have placed the orifice of the tunnel?
ii) Where was the orifice of the tunnel placed by Dr Shelbourne?
iii) Was Dr Shelbourne's tunnel in the place or within the range of places identified in answer to question (i)?
- Issue (i) is an issue of medical or surgical opinion on which there may be different opinions held by different practitioners. My task is therefore to identify the range within which a placement of the tunnel could be said to be regarded as appropriate by a reasonable responsible body of surgical opinion. By contrast issue (ii), the issue of where the tunnel was placed, is an issue of fact which falls to be decided as a question of fact, notwithstanding that there was a difference in view between the experts.
- There was a substantial measure of agreement on where the tunnel should have been placed. Surprisingly, what was hotly contested was where it was in fact placed by Dr Shelbourne. I found this surprising since the tunnel has not moved, and Mr Naraji has subjected himself to CT scans and MRI scans allowing a plethora of imaging to be made available to assist in determining the question. One might have thought that such imaging would leave little room for dispute as to the location of the orifice of the tunnel. But not only did the two radiological experts disagree, there was also substantial disagreement between the six orthopaedic surgeons who gave evidence, who between them have some considerable experience in interpreting imaging.
Alleged misplacement of the femoral tunnel: where should it have been?
- As to verticality, reliance was placed by the Defendants on a paper by Keith L Markolf and others in the Journal of Orthopaedic Research 20 (2002) 1016 which I found particularly instructive. This paper was also relied on by the Claimant in cross examination of Dr Shelbourne and in final speeches as being authoritative. Both Professor Fairclough and Dr Howell cited and relied upon it in their reports. Dr Markolf was described by Dr Howell as one of the premier authorities on biomechanics (just retired) whose views are widely influential. Professor Fairclough, and Mr Strover agreed that he was a respected worldwide authority on the subject and Dr Lyons confirmed that his views commanded respect. The paper described the standard orientation as at 11 o'clock and with the centre of the tunnel 6-7mm from the posterior femoral wall. It reported a study on the effect of varying the placement by 1 hour each way, ie at 10 o'clock and at 12 o'clock, as well as the effect of moving the tunnel anteriorly further from the posterior femoral wall. The conclusion in relation to verticality was expressed in these terms:
"Varying graft placement along the arc of the intercondylar notch had no significant effect upon any of the measured biomechanical parameters. However there were apparent trends towards decreased laxity and increased graft forces as the tunnel was moved from the 10 o'clock to the 12 o'clock position. This could be explained by impingement of the graft with the PCL but PCL impingement was not observed directly. While this effect was not statistically significant it might be worthy of consideration by a surgeon performing a revision procedure in which the optimal 11 o'clock position is not available. Our findings suggest that it may be biomechanically safer to err towards the 10 o'clock position as a graft that is subjected to lower forces may be less likely to stretch out during the remodelling process. The range of tunnel positions studied (1 h clockwise and counterclockwise from the standard 11 o'clock orientation) represent the maximum error in notch orientation which would be reasonably expected in clinical practice. Therefore we would not expect this variable to be important on a strictly biomechanical basis." ...my emphasis)
- Dr Howell provided statistical evidence that the adverse effect of placement at or nearer the 12 o'clock position was to be explained not by the positioning as such, but by impingement on the posterior cruciate ligament ("PCL") which runs transversely behind the ACL from the medial part of the intercondylar notch. This was the explanation which the Markolf paper left open as a possibility. Dr Howell's evidence in this respect was uncontradicted and convincing. He said that 12 o'clock was within the range of normal clinical practice and was appropriate provided that impingement on the PCL was avoided. Mr Strover agreed with the views expressed in the Markolf paper; that anywhere within the range 10 o'clock to 12 o'clock was acceptable; and that the reason for not going too vertical is to avoid PCL impingement. Dr Lyons also agreed with the views expressed in the Markolf paper. Mr Jari said that his practice was to place it at about 10 o'clock but that the range of tunnel positions in clinical practice is from 10 to 12 o'clock. Dr Shelbourne explained that so far as verticality was concerned his practice was to try to get within about 1mm of the PCL and that 11.30 to 12 o'clock would be reflective of his normal position which had a clinically proven high success rate.
- Only Professor Fairclough was out of line with these views. He said that in the UK the standard position was now 10.30 and that the farthest clockwise one could properly go was 11 o'clock. He not only disagreed that 12 o'clock was within an acceptable range, but refused to concede even that this was an area in which views might differ or that the Markolf paper demonstrated at the lowest that there might be a body of respected opinion which put 12 o'clock within an acceptable range. I am unable to accept these views, which conflict with those of all the other experts and the Markolf paper.
- I find that a tunnel placed at 12 o'clock, without PCL impingement, would be within the range of normal clinical practice, and would be regarded by a reasonable and responsible body of medical opinion as appropriate and proper. It is common ground that there was no PCL impingement in the case of Dr Shelbourne's graft. 12 o'clock is, however at one end of such range, and anything significantly further clockwise would be beyond the range.
- This conclusion is not undermined by two arguments advanced on behalf of the Claimant:
i) It was contended on behalf of the Claimant that if, as was accepted on behalf of the Defendants, the femoral tunnel drilled by Mr. Bickerstaff was in the correct position, then ex hypothesi Dr Shelbourne's tunnel must have been in the wrong position. This argument was advanced dogmatically by Professor Fairclough. The difficulty with it is that it assumes that there is only one exact position in which a tunnel can properly be placed, which was not the effect of the evidence before me. In the end Professor Fairclough conceded that a range of positions could be justified, as is borne out by the Markolf paper.
ii) It was further suggested that a tunnel at 12 o'clock must be too vertical because it was non anatomical and non isometric and so could not perform the function required of an ACL to control rotational stability. By "non anatomical" was meant that it did not replicate the point of attachment of a native ACL. By "non isometric" was meant that the ACL replicant material would not retain the same tension during the flexion of the knee. Dr Shelbourne drew a picture which identified the native attachment of an ACL in a vertical position close to 12 o'clock. Professor Fairclough disagreed that that was the point of attachment of a native ACL. The only literature I was referred to on the subject was the clockface at figure 4 of a paper by Giron et al Knee Surg Sports Traumaol Arthrosc (2006) 14 250 which suggested a range between about 8.30 and 11.30. This appeared to confirm that ACL reconstruction is not concerned to be exactly "anatomical". All the experts who addressed the question of isometricity explained that a native ACL was not in fact isometric in all its strands, but was made up of strands of differing lengths which would have different degrees of tension at various stages of the flexion of the knee; so that "isometric" was an expression used to describe the average, rather than to describe a state of affairs in which there was no change of tension within any part of the ligament. The difficulty for the Claimant with these arguments is that ACL reconstructions are obviously carried out regularly and successfully without being able to be described as "anatomical" or "isometric" in the sense in which the Claimant's argument is using the terms. That is borne out by the Markolf paper and the other evidence to which I have referred above.
- As to the distance between the tunnel and the anterior femoral wall, it was common ground that the objective was to achieve the smallest possible gap between the edge of the tunnel and the posterior femoral wall without risking breaching the wall with the orifice. In practice this meant a 1-2mm gap, which for a 5mm radius tunnel meant centring the tunnel 6-7mm from the femoral wall. What is meant here by the posterior femoral wall is the point at which the distal end of the posterior femoral cortex wall meets the intercondylar notch. Dr Shelbourne explained that this was his practice and was where he sought to place this tunnel and all his femoral tunnels. His practice in this respect was recorded in his published papers which identified the 6-7mm measurement.
- Because the case for the Defendants was that the tunnel was indeed in this standard location in its distance from the posterior femoral wall, the expert evidence did not explore what margin of deviation from this standard would be within the limits of acceptable clinical practice. It was not disputed on behalf of the Defendants that if the tunnel was where the Claimant's experts said it was, centred 15mm from the wall with a distance of 10mm between the edge of the tunnel and the wall, it was outside any acceptable margin of deviation.
- Some guidance is again to be found in the Markolf paper referred to above. The paper recorded the 6-7mm positioning as the standard tunnel location and studied the effect of moving it further anteriorly from the femoral wall by distances of (i) 2.5 mm and (ii) 5 mm, in each case taking an 11 o'clock orientation. The paper contained the following passages:
"A femoral tunnel centred on a point 6-7mm anterior and distal to the posterior femoral wall…..is commonly accepted as the correct tunnel location for all individuals."
"Although the exact location of the posterior wall is difficult to describe accurately in anatomical terms it is readily identified by arthroscopists who perform this procedure. As in clinical practice, we located the posterior wall by sliding a probe posteriorly along the notch until an edge of demarcation was felt; the standard tunnel location was located 6-7mm anterior to this point. Henceforth we shall refer to an anterior tunnel as one that is anterior and distal to the standard location."
"Varying AP tunnel placement had a more significant biomechanical impact [than varying the o'clock position in the arc of the notch]"
"….in terms of biomechanical parameters measured in this study, a tunnel placed 2.5 mm posterior to the standard tunnel location should be just as satisfactory as the standard….location."
"….a femoral tunnel placed 5.0 mm anterior to the standard tunnel produced a knee which was on average 1.7 mm more lax than normal at 0 deg of flexion and 4.2 mm less lax than normal at 90 deg."
- The conclusion was that, in contrast to the position when only 2.5mm from the standard position, the adverse biomechanical effect of straying 5mm from the standard position was significant, both because of the increase in laxity when the knee is extended (which affects stability) and the increased tension when the knee is flexed (which could predispose the graft to stretch out or fail).
- My conclusion is that if the tunnel is placed 5mm or more anteriorly from the standard position centred 6-7mm from the posterior femoral wall, it would thereby be outside the range, and would not be regarded by a reasonable and responsible body of medical opinion as appropriate or acceptable. Such misplacement would be beyond the range to be expected of a reasonably competent knee surgeon. In other words, if as the Claimant contends, the femoral tunnel drilled by Dr Shelbourne were centred at a distance of 15mm from the femoral wall, and if its edge were 10mm from the wall, or something of that order, then it was negligently misplaced.
The positioning of the tunnel
- Each side relied on two sources of evidence to support their case as to the positioning of the tunnel. One was the imaging obtained by X rays, CT scans and MRI scans taken at various points of time. The other was Mr Naraji's post operative history of instability, or the lack of it. For the Claimant it was argued that this history was suggestive of a negligently misplaced tunnel; for the Defendants it was contended that it was inconsistent with a negligently misplaced tunnel and such feelings of instability as occurred were explicable by degenerative changes in the knee, which were already present before the operation, and developed naturally irrespective of the operation. The aspects of the history particularly relied upon were:
i) Mr Naraji's contemporaneous complaints of instability or lack of them;
ii) the results of such tests as were performed on his knee from time to time post operatively; and
iii) the views of surgeons whom he consulted in 2008.
- There were three forms of test which are relevant:
i) The pivot shift test. This involves the examiner manually seeking to dislocate the knee in a way which should be restrained by the ACL. It is a subjective test, in the sense that there is no objective measurement of the degree of movement which amounts to a shift, and therefore of when the degree of movement justifies a finding of a positive pivot shift. It was generally agreed between the experts that this was the best test of stability. The Claimant's experts suggested that it was the only one of the three which was a good test for rotational stability. Dr Howell explained that it was laxity at 30-35 degrees of flexion which would allow a positive pivot shift. He also explained that sometimes the reason a positive result would not be obtained was simply because the patient was not relaxed. He therefore regarded a negative result as being an unreliable guide to stability, whereas a positive shift result is a reliable indication of rotational instability. Dr Howell also referred to a "pivot slide" as the lowest grade of a positive pivot shift, which he said was "not what you want, but I have plenty of athletes with grade one pivot shift (pivot slide) who go back and play". Mr Jari referred to a "pivot glide" as a mild form of positive pivot shift. Professor King described a pivot glide as a small component of a positive pivot shift in which the outer side of the tibia moves in relation to the femur. He regarded it as benign, and indeed said that he used an operative technique which whilst preventing pivot shift allowed a little movement, which is a pivot glide, so as to avoid the risk of arthritis from over tightening of the knee. Professor King said that he often saw reconstructions using a femoral tunnel (although that was not his own method) and that a pivot glide was normal. Professor Fairclough, on the other hand, said that a pivot glide was the same as a pivot shift and indicative of rotational instability, although he only introduced this allegation late in his evidence. I prefer the views of Dr Howell and Professor King.
ii) Lachman's test. This involves determining whether an end point of movement is detected.
iii) KT1000. This is a portable machine whose results record objectively measured movement. There is imposed a known load of 30lb and a "manual maximum" load and movement is measured. The evidence before me suggested that a movement of up to 3mm was regarded as satisfactory and a movement of 5mm or more was unsatisfactory. Mr Jari suggested that in between the two, a movement of between 3mm and 5mm was "a grey area". Dr Howell's opinion was that anything below 5mm on "manual maximum" was typical of there being no problem of stability.
- In the ultimate analysis I found the imaging a surer guide in identifying the placement of the tunnel than seeking to draw conclusions from the post operative history. But it is convenient at this stage to set out the narrative of that history and my findings in relation to it, which is also necessary for a consideration of the allegations of negligence against Mr Jari and the allegations of negligent aftercare made against Dr Shelbourne.
A narrative of events following the operation
- The operation by Dr Shelbourne on 1 November 2006 revealed some existing degenerative change to the knee which Dr Howell described as follows:
"The video of the diagnostic arthroscopy portion of the revision surgery by Dr Shelbourne observed that Mr Naraji had a full thickness defect in the 'anatomic' tunnel. He also documented that the prior repair of the lateral meniscus was ineffective as the meniscus looked abnormal and was soft consistent with Dr. Bickerstaff's observation at the time of the first ACL reconstruction after suture repair. The degenerative changes in the trochlear groove noted by Dr Bickerstaff had progressed to had (sic) Grade III changes. The cartilage on the medial femoral condyle that was treated with a microfracture by Dr. Bickerstaff was soft, incompletely filled and abnormal."
- The Claimant was put through a post operative rehabilitation programme at the Shelbourne Clinic following the operation on 1 November 2006. Throughout that process, the Claimant reported that his knees were doing well. He hoped to return to his pre-injury level of fitness but acknowledged that this was 'dependent on my being given a new contract at [Sheffield United]'.
- On 17 November 2006, a series of X-rays were taken of the Claimant's knees. They are recorded in Dr Shelbourne's clinical note as showing the femoral and tibial tunnels to be in an 'excellent position', with the bone plug in the femur crossing through the posterior aspect of Blumensaat's line and in straight line orientation with the tibial tunnel. The tibial tunnel was said to be parallel and posterior to Blumensaat's line showing no sign of impingement. Dr. Shelbourne reassured the Claimant that his knees looked 'great' for close to two weeks after surgery. On clinical assessment, Lachman's test was negative.
- On 28 November 2006, Dr. Shelbourne saw the Claimant in consultation at his clinic. There was good stability on Lachman's test and full extension and near full flexion on his knee. The plan was to work on a rehabilitation programme with focus on swelling control and regaining full motion in the right knee.
- On 9 January 2007, the Claimant was seen again for review at the clinic. He told Dr. Shelbourne that both knees continued to improve and that he had "been surprised by how good he feels with balance and footwork when doing ball drills on an individual basis" although he also said "he has less confidence in his right knee than his left knee at this point as far as being more comfortable kicking the ball with his left foot" The plan was gradually to increase the intensity of his rehabilitation programme. Despite Professor Fairclough's inclination to argue the contrary, there was nothing in Mr Naraji's account of his progress at this stage to suggest instability. The notes record that Dr Shelbourne performed a pivot shift test with a negative result. Mr Naraji suggested in evidence that no such test had been carried out. I prefer the contemporaneous record and find that it was.
- The notes prepared by the SUFC Club doctor, Dr Muggleton, recorded that on 23 January 2007 Mr Naraji said that he had suffered no locking or giving way. They recorded that negative results were obtained for Lachman's and pivot shift tests. Professor Fairclough sought to dismiss this and other pivot shift test results obtained by Dr Muggleton on the basis that he was just a GP who would not have had the experience or expertise to perform them competently. I found this unconvincing. He was the club doctor to a Premiership Club who could be expected to be knowledgeable and competent about treating and assessing professional footballers and their injuries. That was Mr Jari's evidence of his experience and expectation of club doctors, from whom he received many referrals of sportsmen. A pivot shift test was a well known test for assessing stability, which it is apparent Dr Muggleton administered to Mr Naraji frequently (and no doubt to others). I do not regard the results he obtained as being capable of being dismissed on the ground of incompetence. I bear in mind, however, the subjective nature of the test and Dr Howell's reservation that a negative test result may involve masking of the true position by the patient's failure to relax or by muscle control.
- The Club notes for 2 February 2007 record "no locking or giving way" and a negative Lachman's and pivot shift test results. For 19 February 2007 they record that Mr Naraji was happy with his progress, there had been no locking or giving way, very little pain. Negative Lachman's and pivot shift test results were obtained.
- The first recorded occasion on which Mr Naraji complained of extra movement in his knee was 27 February 2007. According to the note made by Mr Murphy, Dr Shelbourne's assistant at the clinic who was responsible for Mr Naraji's rehabilitation plan, Mr Naraji called "concerned with feeling of movement to his ACL knee (right knee) during soccer agility drill today. P[atien]t states that he planted right foot and felt 'extra movement' to his knee but denies that knee gave way or buckled." The note of 2 March 2007 referring back to the same call records that Mr Naraji also stated that "he could feel his ACL working and stopping the knee giving out but he was nervous because he hadn't felt that movement in his knee since surgery."
- Mr Naraji visited the clinic on 2 March 2007 for a review with Dr Shelbourne. A Lachman's test was negative; no pivot shift test is recorded as having been carried out. Dr Shelbourne explained to Mr Naraji in relation the incident of the previous week "that the feeling of movement to his right knee from last week's impact drill should decrease as his timing improves and his strength and coordination return to normal……..his right knee should be slightly looser than his left because if we make his right knee tighter than normal, then in our experience with prior patients, he will not obtain normal motion or function of his knee and be more likely to develop arthritic issues."
- Mr Naraji claimed in his evidence that he had been suffering instability constantly from early January and throughout February and March and that the inconsistency between the true position and what appeared in the Club notes was to be explained by an unwillingness to tell the Club of anything which might jeopardise his career. I accept that he felt it necessary to downplay or conceal any problems when consulting the Club doctor, for the reasons he gave, as is apparent from what he was subsequently saying to Dr Muggleton about having no problems whilst at the same time raising his concerns with Mr. Murphy. But I am unable to accept his evidence that he was suffering constant instability at this stage. He was on good terms with Mr Murphy and was quick to ring him whenever there was anything of concern. Had he had any significant concern about instability over this period he would have raised it with Mr Murphy and it would have been recorded in Mr Murphy's meticulous notes. In fact the 2 March note records him saying that the 27 February incident was the first time he had felt movement in his knee since his surgery.
- He called Mr Murphy again on 16 March 2007 to say that he was concerned with the feeling in his right knee when doing soccer drills. He stated that he planted his right foot to kick the ball with his left foot and felt a twinge to the inside of his right knee. The knee did not give way, and there was no loss of motion to the knee or swelling, but the feeling made him nervous and he returned to drills at a lower level due to a decrease in confidence. Mr Murphy passed on advice from Dr Shelbourne which included advice that Mr Naraji's right knee was not normal due to "the wear changes in the knee along with meniscal injuries in the past."
- On 26 March 2007 the Club notes record Mr Naraji as telling Dr Muggleton that he was happy and had had no problems. The knee was recorded as stable with a full range of motion. Lachman's and pivot shift tests were negative.
- On 7 April 2007 there were uploaded to You Tube (it is thought by a fan) two clips of Mr Naraji exhibiting his footballing control skills: in one case he was performing "tricks" in keeping up a small ball and in the other dribbling and controlling a full size ball. They show an apparent full range of movement and an ability to twist and turn the knee when loaded and with dexterity. Mr Naraji said in evidence that they were not inconsistent with a lack of stability in intensive training because he was tailoring the exercises to what he knew his knee could manage. In order to illustrate this point he had arranged to be filmed performing similar exercises at the beginning of October this year, shortly before commencement of the trial, in order to show that he could replicate that dexterity even now when it was clear that he had a positive pivot shift and lacked rotational stability. This, it was contended on his behalf, disproved the theory that his current restrictions could be attributed to degenerative changes over time. Dr Howell expressed the opinion that he was not performing with anything like as much agility and dexterity in the October 2011 video clip as the April 2007 You Tube clips. That was very much my own impression from watching the clips. What Mr Naraji was exhibiting in the 2007 You Tube clips was what appeared to be a good degree of stability and dexterity in skills which required rotational pressures on planting the right leg, a facility which appears in the recently taken footage to be diminished.
- On 11 April 2007 Mr Naraji again called the clinic to report that he had been doing a bounding/jumping drill that day and when he had come down on his right foot he had felt "a little movement" to his right knee. He stated that this had not happened "for a few weeks" with impact activities, but that when it did his confidence decreased somewhat for impact activities. He stated that his knee did not give out and felt "stable but a little loose with certain impact activities". The note records Mr Naraji as asking "whether it is his ACL that's a little loose or the roughness of his joint causing the feeling of movement to his knee." The note records Mr Murphy as passing on Dr Shelbourne's advice that the feeling of movement to the knee could be the combination of roughness in his joint and the fact that the ACL reconstruction should be "a little on the plus side to insure full motion and return of function which cannot occur if the ACL reconstruction is made too tight". In evidence Mr Naraji vehemently denied that he had made the inquiry about roughness in the joint or that Dr Shelbourne had mentioned it in his advice, whilst accepting the rest of the note as accurate; he suggested that those passages had been deliberately added to the note so as to falsify it for the purposes of the litigation. I see no basis for treating this as anything other than an accurate contemporaneous note, and it would have been a perfectly natural inquiry in the light of Dr Shelbourne's reference in his previous advice on 16 March to wear changes and meniscal injuries to the knee.
- Dr Muggleton's Club notes for Mr Naraji's review on 16 April 2007 again record that he said he was happy with progress with no specific problems, that the knee was stable with a good range of movement and that Lachman's and pivot shift tests were negative.
- On 17 April 2007 Mr Naraji's knee gave way when carrying out one on one drills. He rang the clinic and Mr Murphy recorded his report of the incident in the following terms
"… he planted R[ight] foot to move to left and felt like R[ight] knee "gave way". He states it did not feel like his ACL tore when he compares episode (sic) to prior ACL tears but it did feel like his knee was unstable when it gave way. He states he fell to the ground and was able to get up and walk off the field unassisted. P[atien]t inquires whether giving way feeling to knee is due to roughness in joint or if knee is unstable."
Again Mr Naraji accepted the accuracy of this note save for the reference to an inquiry from him about roughness as a possible cause, which he vehemently denied and alleged was a subsequent doctoring of the document. I reject that allegation and find that the note is an accurate record. Dr Shelbourne's response was that an MRI scan should be obtained and that Mr Naraji should then contact the clinic for further discussion and recommendations in the light of the scan results.
- Because Dr Shelbourne was in Indianapolis and Mr Naraji was in Manchester, arrangements were made for the latter to see Mr Jari in Manchester. One of Mr Naraji's reasons for not going to Indianapolis was that he did not want to lose training time. Mr Jari had worked with Dr Shelbourne for a year as a "fellow" in 2000/2001 assisting him with operations and was familiar with his methods, but was practising in England independently and had not had other patients referred to him by Dr Shelbourne. When Dr Shelbourne was made aware of Mr Naraji's call on 17 April, he rang Mr Jari and asked him if he would see Mr Naraji and address the question of whether the graft was intact as well as getting an MRI. It was envisaged by Dr Shelbourne and Mr Jari that armed with his scan results Mr Naraji would go back to see Dr Shelbourne for advice, and this suggestion was made to Mr Naraji when he first saw Mr Jari on 18 April.
- On 18 April 2007 Mr Naraji had a consultation with Mr Jari at his Manchester clinic. Mr Jari took a history and examined him. The history he was given, the results of his examination and the advice he gave Mr Naraji are recorded in a letter of the same date to Dr Muggleton, copied to Dr Shelbourne. The essential features are these:
i) Mr Naraji confirmed what had happened the previous day which had involved feeling his knee shift but come back into place, causing him to fall to the ground, but no pain or swelling. He said that otherwise his rehabilitation had been progressing well. He did not suggest to Mr Jari that he had had any cause for concern or instability prior to the previous day.
ii) He brought his kinetic test results for Mr Jari to see, which recorded a KT 1000 maximum manual reading of 4mm and a 30lb reading of 3mm. He also told Mr Jari that previous MRI scans had shown chondral damage to his patello-femoral articulation as well as to his lateral femoral condyle.
iii) On examination, the Lachman's test indicated the right knee was looser than the left but it had an end point so that the test result was negative. A pivot shift test was recorded as finding that "he had a pivot glide but not a true pivot shift".
iv) Mr Jari's explanation for the incident on the previous day was that it sounded like his tibia might have moved abnormally but then returned into place without rupturing the graft, and that this can happen in the early stages of return to activity while neuromuscular coordination is not yet up to speed.
v) It was agreed that Mr Jari would arrange for an MRI scan to be performed in order to assess both the graft and the articular cartilage damage which he had been told about.
- An MRI scan was undertaken and the results provided to Mr Jari together with a report from the consultant musculoskeletal radiologist, Dr Harris. Dr Harris recorded that the graft was intact and made no comment on the positioning of the tunnels. He recorded the detail of degenerative changes shown by the scan which were summarised in his concluding paragraph as:
"Under surface far peripheral tear body lateral meniscus associated with focal severe chondrosis of the L[ateral] F[emoral] C[ondyle] and lateral tibia and early arthrosis. Mild to moderate chondrosis of the M[edial] F[emoral] C[ondyle]; moderately severe focal chondrosis of the patello femoral joint."
A KT1000 test was performed on 21 April by a physiotherapist giving a result of 4mm at manual maximum and 2mm at 30lb, which she told Mr Naraji were figures which "look great and it's in the stable range".
- Mr Naraji had a further consultation with Mr Jari on 23 April 2007. Mr Jari told him that the MRI showed that the graft was intact and also showed the degenerative changes. He gave him the result of the KT1000 test. They had a long discussion, the upshot of which was that Mr Jari explained that in the long term it was a question of getting his sports specific training coordination back so that he could get dynamic control over the knee before returning to full training. He gave Mr Naraji copies of the scan, radiology report and KT1000 results so that he could take them to Dr Shelbourne to discuss with him. He wrote to Dr Muggleton, again copied to Dr Shelbourne, to record these aspects of the consultation. He also referred Mr Naraji to a sports psychologist. He did not expect to see Mr Naraji again because he remained under Dr Shelbourne's care.
- On the same day, 23 April 2007, Dr Muggleton performed a pivot shift test and Lachman's test with negative results.
- Contrary to Dr Shelbourne's expectation and Mr Jari's suggestion, Mr Naraji did not provide the scan to Dr Shelbourne or arrange to go and see him to discuss the results. In the following days he initially took steps to arrange an appointment, but the reasons for his change of plan were explained in an email of 29 April 2007 to Mr Murphy. His agent had heard from SUFC that his contract was unlikely to be renewed now that he had missed two seasons, and if he was to persuade a new club to sign him for the following season in July he would need to be back to full fitness by then. He did not think he could afford to lose a week's training in order to travel to the United States. In evidence to me Mr Naraji denied in forthright terms that he had ever contemplated going back to see Dr Shelbourne at the beginning of May. But the emails in which he seeks to make an appointment and the email referred to above plainly demonstrate the contrary.
- On 3 May 2007 Mr Naraji emailed Mr Murphy to say that he did not feel confident in his knee when twisting and turning in training to mimic shielding the ball from an imaginary opponent. He did not know how to describe the feeling: "it just isn't as solid and strong as the other side". He felt he was turning and twisting in a way that he knew his knee could handle rather than doing what he wanted to instinctively; and that that wouldn't be sufficient for his level of competitive football. In a phone call the following day with Mr Murphy he explained he was concerned with his decreased confidence in the knee.
- On 10 June 2007 he reported in an email to Mr Murphy that having gone to the running track to do four sets of 800m runs "….I did one set and my knee felt absolutely horrible, it just felt too loose, abnormal and all the way through the run it felt shaky ….. and I was that unsure about it I stopped the run. I haven't done a track run yet so I'll just wait to see Dr Shelbourne and Scott on Tuesday before doing much else as my confidence in this knee is decreasing rapidly."
- The reference to seeing Dr Shelbourne was because in June 2007 Dr Shelbourne was attending a conference in Harrogate. At Mr Naraji's request Dr Shelbourne found time to see him in the hotel lobby on 12 June 2007 shortly before he was to give a lecture on ACL surgery. Mr Naraji brought a KT1000 machine which Mr Jari had arranged to be lent for the purpose and Dr Shelbourne examined him. There is no note of that examination, for which Dr Shelbourne did not charge, which is not altogether surprising in the light of the circumstances in which it took place. Dr Shelbourne (or possibly a physiotherapist colleague) measured the laxity on the KT1000 as 3mm at 30lbs which he regarded as acceptable after ACL re revision. He says that the examination revealed a full range of motion and good stability with no impingement on extension, no swelling and good quadriceps tone. He could not find any difference in condition since his last examination. Mr Naraji's recollection was that the KT1000 reading for manual maximum was 4mm. No pivot shift test was undertaken. Mr Naraji's account was that he wanted an explanation as to why his ACL reconstruction had not enabled him yet to return to professional football at what was now 7 months postoperatively, when a number of footballers had succeeded in doing so within that time frame; and that Dr Shelbourne had become defensive.
- On 11 July 2007 Mr Naraji sent Mr Murphy an email in upbeat terms stating that he had stepped up the intensity of his training significantly and was experiencing no problems. But on 25 July 2007 he emailed to express frustration that he couldn't tackle opponents as he used to be able to and wondered when he would be able to twist and turn to tackle opponents with 100% commitment as well as he had before the injury. He repeated his dissatisfaction at a lack of trust in his knee in a call to Mr Murphy on 2 August 2007. On 5 September 2007 he reported to Mr Murphy a "feeling of looseness" to the right knee with impact activities and an incident the previous day when he had planted his right foot and felt a pain to the inside of his knee.
- On 27 November 2007 he sent an email to Mr Murphy explaining that he had started training with a third division club [Tranmere Rovers] but that he was unable to twist and turn aggressively as he used to be able to.
- It was at around this time that he filled in a questionnaire for Dr Shelbourne's clinic in which he awarded himself top points for stability and commented that his control of his knee was excellent and that he felt confident in using it at 100% intensity. In cross examination he explained that this did not represent the true position, which was that expressed in his emails to Mr Murphy, but that he had wanted to be kind to the clinic knowing that the questionnaire was to assist in their recording of results. I accept this explanation. It is clear from the totality of the material before me that at this stage, 5 November 2007, he was far from confident in using the knee at 100% intensity.
- An email of 2 January 2008 records that he was training with his brother whilst waiting for his agent to find him a lower division club with which to get training time. He explained that on some days he felt good, on others not so good, all due to whether he felt confidence in his knee or whether he was having to battle negative thoughts of his knee collapsing. He concluded: "I am certain the root to all these problems I'm still having regarding my knee a 100% functionally stable knee (sic) is due to the 1 giving way episode I had in April." On 18 January 2008 he emailed to say that he was now in his third day of training with a second division team and whilst doing sprints he felt a strong pain in his right knee which caused him to drop from 5th gear to 3rd gear as the pain was really bad. He reported that the knee now made a big clicking sound and was tender to the touch on the medial side of the knee cap. He said this was the first time pain in his knee had stopped him continuing.
- Three days later, on 21 January 2008 he called Mr Murphy to express concerns that his knee did not feel normal with impact activities. He said he had not had any instability episode but did not fully trust his knee. He explained that the club doctor of the team with which he was training had said that his knee was too loose to perform at elite level: it showed looseness on Lachman's test (although there was an end point), it showed a pivot glide, and it had a KT reading of 4mm when (so the club doctor reportedly said) a normal reading was 3mm or less. Mr Murphy passed on Dr Shelbourne's advice that his KT measurements were of a stable knee. Dr Shelbourne advised that he should see Mr Jari again for evaluation and progression on the basis that the Indianapolis clinic had done as much as they were able to; that improvement could only come with team training; and that it might never feel normal given the degenerative changes which had been observed.
- The Claimant had a consultation with Mr Jari on 25 January 2008 which was arranged by making an appointment with the hospital administrative staff. Mr Jari had had no communication from Mr Naraji since the previous consultation in April 2007 save for the purposes of arranging the KT 1000 machine for Mr Naraji to take to Harrogate when he went to see Dr Shelbourne there, and a brief exchange of emails, in June 2007. He had no referral letter or forewarning of Mr Naraji's attendance other than as a name in his list for the day. He therefore had no notes to consult; nor did he have the April 2007 MRI scans available to him. He was given a brief history by Mr Naraji in which the latter simply explained that he had reached a level of training with his brother (also a high level footballer) which his brother regarded as being that he was playing as well as he had been prior to his ACL tear; but that when he had gone to training with a local team, his knee did not feel right in six sessions of training with them. Mr Jari found on examination that his right knee was looser than his left on a Lachman's test but still had an end point. He concluded that the knee itself was doing fine but that Mr Naraji's problems related to his psychological confidence in his knee. He advised that there were three options: the first was to give up playing football, the second to have his ACL revised and the third to accept that his knee was as it was and "basically go for it and accept the fact that that there is a risk he will retear his ACL" but to try to free his mind from worrying about it.
- On 12 February 2008 Mr Naraji told Mr Murphy that he was back in training after 10 days off with an achilles tendon problem. But the following day he sent an email saying that he had decided to give up trying to get back to professional football because despite training extremely hard for over 14 months his knee was simply not stable enough and would not allow him to perform at a good enough level to make a living out of the game.
- At about this time Mr Naraji started seeking advice elsewhere. Following an email to Dr Fu, who was described by Mr Naraji as an eminent surgeon practising in Pittsburgh, a response was received from Dr Fu's "fellow", a Dr Pombo, whose understanding may have been less than perfect, referring as it did to his having had a double bundle graft and of his having returned "to full scrimmages". It was lengthily non committal in answering the questions asked but suggested that he send MRIs and X rays with a view to further discussion/recommendation. It did express the view that as an elite athlete "a KT measurement of 4mm with a pivot glide is concerning".
- Mr Naraji sent a long email to Dr Shelbourne on 18 February 2008 complaining bitterly about the inadequacy of his surgery and saying that it had finished his career and ruined his life.
- Between March 2008 and September 2008 Mr Naraji says that he consulted various specialists from whom he says he received advice criticising Dr Shelbourne's operation:
i) Mr Naraji says that in March 2008 he had a conversation with Dr Fu himself, who advised him that the femoral tunnel and ACL graft used by Dr Shelbourne were far too vertical and should be redone. I was not shown any documented record of such a conversation, although this is what Mr Naraji reported to Mr Jari six months later in September 2008.
ii) Mr Naraji says that in May 2008 he sought the views of Dr Kevin Stone of San Francisco, a leading knee surgeon, who confirmed in a telephone conversation that Dr Shelbourne's femoral tunnel was malpositioned and that further knee surgery would be necessary to stabilise the knee. Again I was not shown any documented record of such a conversation.
iii) On 3 September 2008 Mr Naraji said in an email to Mr Murphy:
"….I have shown my MRI to a number of surgeons and they have stated the following. The femoral tunnel is too anterior, typically the femoral tunnel should be more posterior. The tibia is more anteriorally relative to the femur than it should be. The graft I have is not ideally stabilising my knee. The MRI shows some evidence of instability as my tibia should line up with my distal femur. My tibia is fairly significantly displaced anteriorally relative to the distal femur. The MRI shows the outcome of the surgery is not desirable."
In his witness statement, Mr Naraji says that this diagnosis came not from a surgeon but in a telephone call from a Dr Mark Awh, described by Mr Naraji as a prominent US radiologist from Radsource, to whom he had shown the imaging. Again there is no documentary record of that conversation and the matter was not explored in the oral evidence.
iv) I do not feel able to place any reliance on what is Mr Naraji's reportage of these undocumented conversations. They are persons whose status and expertise were not explored in the evidence. They were not before the Court to express their views or to have the basis for them explored or tested.
- During this period, on 25 June 2008, Mr Naraji also had a consultation in St Albans with Mr Beacon, a consultant orthopaedic surgeon, who produced a report for the purposes of a claim Mr Naraji then proposed to make against Mr Bickerstaff. The report recorded a history of considerable problems in the aftermath of the Bickerstaff operation in the autumn of 2005, and throughout 2006, which meant that even by the time of the match on 5 September 2005 when the ACL ruptured, the knee was still painful to the extent that he couldn't single hop or leg press. Paragraph 3 of the report reads as follows:
"Mr Naraji told me that after the operation with Dr Shelbourne he recovered well. His right knee is now satisfactory for his every day normal activities. He has noticed marked improvement in his right knee since his second reconstruction and has returned to training in a gym and having physiotherapy sessions. He feels his knee is fairly steady but does not have the strength and sureness he enjoyed before the first major injury. It is however improved as compared to the condition after the first reconstruction which was never right."
In cross examination Mr Naraji denied saying what was in the last sentence. But I have no reason to think that Mr Beacon's contemporaneous record is inaccurate. Mr Beacon carried out a Lachman's test with a negative result and a "jerk test" with a negative result. A jerk test was said by the Defendants' experts to be a pivot shift test and reliance was placed on the negative result.
- Mr Naraji had his third and last consultation with Mr Jari on 8 September 2008. The appointment was made in the same way as that in January 2008 so that again Mr Jari had no notes to consult, nor did he have the April 2007 MRI scans available to him. Mr Naraji told him that he had further concerns with his knee which were that he did not have any confidence in it in training; that he had no actual giving way but felt that he was unable to rotate and control it appropriately. Mr Jari's advice was that if he wanted to get back to professional football he had the other two options he had outlined before. One was to have revision surgery. The other was to get back to playing (by conquering his fear of a rerupture) and recognising that a rerupture would require re revision surgery if it occurred.
- Mr Naraji says in his witness statement that on or after 17 November 2008 he had a conversation with a Dr Burton Elrod, whom he described as a surgeon in Tennessee who is highly experienced with professional athletes and the team physician for the Tennessee Titans American Football team. He says that Dr Awh had forwarded the scans to Dr Elrod and that Dr Elrod said that he agreed with Dr Awh that "the femoral tunnels were severely malpositioned and this malpositioning was causing instability in my knee joint". This conversation was undocumented and was not explored in the oral evidence. For the same reasons as expressed above in relation to Dr Fu, Dr Stone and Dr Awh, I do not feel able to place any reliance on the reported views of Dr Elrod.
- Mr Naraji says that by this stage he no longer trusted the opinions of either Dr Shelbourne or Mr Jari and so resolved to consult other UK surgeons. He saw four surgeons in November 2008 whose findings are documented in letters following the consultations:
i) On 3 November 2008 he saw Mr Spalding, a consultant orthopaedic surgeon at the Warwickshire Nuffield Hospital, who carried out a repeated pivot shift test on the knee, giving positive results. Mr Spalding reviewed the April 2007 MRI scan images and expressed the view that the femoral tunnel position by Dr Shelbourne was "placed high in the notch and in a different place to where a primary ACL would be put in place", but that "the exact tunnel position is not determined on the MRI scan and would need to be assessed on a CT Scan".
ii) On 19 November 2008 he saw Professor Nicola Maffuli who recorded a positive Lachman's test result, a 4mm shift on the KT1000 and a positive pivot shift. He ordered radiographs to be taken, which he reported on 24 November showed degenerative joint disease of the patello femoral joint and femoral tibial joint. As to the position of the tunnels he said; "Although it is difficult to evaluate precisely the position of the tunnels, given the original surgery and the revision surgery out there, it appears that at least one of the tunnels in the femur is too anterior. In the tibia the tunnel is somewhat posterior".
iii) On 25 November 2008 Mr Naraji saw Mr Jonathan Webb, a consultant orthopaedic surgeon and former international rugby player. He recorded that a Lachman's test had increased travel on the right knee with a soft end feel. He found a "grade1/2" pivot shift. As to tunnel positioning he said "Plain X rays performed recently demonstrate……a suspicion of a slightly anterior femoral tunnel position on the lateral view. Most recent MRI scan demonstrates tunnels that are satisfactory in the tibia but anterior in the femur, and although not significantly anterior, the graft seems to be coming from the anterior aspect of the tunnel and therefore is almost in mid femoral position…………….It does appear that the second [ACL reconstruction] failed because of malpositioning of the femoral tunnel….."
iv) On 28 November 2008 he saw Mr McNicholas, a consultant orthopaedic surgeon at Spire Cheshire Hospital. Mr McNicholas elicited a pivot glide, which he suspected would have been a pivot shift if carried out under anaesthetic but was masking a pivot shift due to Mr Naraji's apprehension. He ordered a further MRI scan and CT scan to be carried out and those took place on the same day, 28 November 2008. Mr McNicholas' letter is dated 12 December 2008 but was obviously drafted on 28 November; it records that as the date on which Mr Naraji was seen and is also the date marked on the scans, which the letter contemplates as yet to take place. The letter ends by saying that there is intended to be a further consultation with the benefits of the result of the imaging, but I have not seen any record of a further consultation. In his witness statement Mr Naraji describes a single consultation which he dates as 12 December 2008 and refers to what Mr McNicholas apparently said about the positioning of the tunnels based on "the imaging". The letter of 12 December 2008 says nothing about the positioning of the tunnels based on imaging, which it treats as yet to occur. I am unable to place reliance on Mr Naraji's uncorroborated account of what Mr McNicholas purportedly said about the positioning of the tunnels, which is not contained in any document I was shown.
- The other evidence which needs to be mentioned in the current context is the Claimant's consultation with Professor King on 14 September 2010, some two years later. Mr Naraji's account of the meeting was this: "I attended an examination by the fourth Defendant's orthopaedic expert Mr John King in September 2010. At this examination Mr King confirmed that he had examined the MRIs and he told me that Dr Shelbourne's surgery was "bloody crap". He said he had shown the imaging to many other people and had used it as a teaching tool in demonstrating how not to perform an ACL reconstruction. After his physical examination of the knee he stated that I had as clear and obvious pivot shift as you could possibly have. This is a pivot shift he would grade as a +3 and a clearly unstable knee……." In cross examination Professor King accepted that he had said that that Dr Shelbourne's surgery was "bloody crap", because, as he contended, "he had a big Lachman's and a big pivot shift". He accepted that he had put the imaging on a memory stick and passed it to colleagues (as he said in cross examination "I said to colleagues how does this look it looks a bit odd"), and he did not deny that he had used it as a teaching tool of how not to do things. It is not clear whether the imaging he was referring to was that of April 2007 or November 2008 or both.
The positioning of the tunnels: conclusions from the post operative history
- There was a good deal of dispute between the experts about whether instability was an objective term fulfilled only by a knee giving way or whether it was properly used to describe any subjective feeling of lack of confidence in the knee. I did not find the debate helpful in seeking to draw conclusions about the positioning of the femoral tunnel. It is clear that from 27 February 2007 Mr Naraji felt physical symptoms which he characterised at the time as instability of his knee, and which recurred at least intermittently throughout his rehabilitative training. There was a single episode of it giving way causing him to fall to the ground in April 2007. It is also clear that this episode resulted in a lack of confidence in his knee's ability to perform the necessary rotational function at the speed and with the dexterity that full match fitness would require, and that his concerns over the instability of his knee were at times no more than a lack of confidence rather than some objectively verifiable symptoms.
- My conclusion about the post operative history is that it could properly be described as an intermittent history of feelings of instability with a single episode of giving way on 17 April 2007. That incident involved no pain or swelling and was not the classic picture of a knee giving way described by Dr Howell and by Mr Jari himself. Mr Jari's explanation for it, described above, was a perfectly reasonable one and is supported by the evidence of Professor King. The intermittent instability, such as it was, was not of a frequency or scale as itself to suggest malpositioning of the tunnels. The history is not inconsistent with malpositioning but nor is it indicative or suggestive of it. It does not assist me in deciding where the femoral tunnel was placed by Dr Shelbourne.
- As to the test results recorded from time to time:
i) No pivot shift was elicited by anyone prior to November 2008. Mr Jari elicited a pivot glide, which I find is not of itself indicative of rotational instability, still less tunnel malpositioning. I accept Professor King's description of it and his categorisation of it as benign; and Mr Jari's evidence that it was not uncommon to have a pivot glide after revision surgery. Professor Fairclough's late evidence to the contrary was apparently an afterthought and was not put to Mr Jari when he was cross examined. Mr Naraji had received advice from Mr Bickerstaff that it was normal to have more laxity in the knee after an ACL reconstruction and that it would never feel the same as the other knee, advice which Professor Fairclough accepted in cross examination as reasonable. Pivot shift tests, with negative results, were carried out in the earlier part of the post operative period by Dr Shelbourne and Dr Muggleton. The latter recorded a negative result on 23 April 2007, shortly after Mr Jari's pivot glide result. I reject the Claimant's attempt to dismiss Dr Muggleton as incompetent in this respect. Mr Beacon got a negative pivot shift result in his jerk test in June 2008. So all the testing was of a piece prior to the summer of 2008. On the other hand in November 2008 all four surgeons whom Mr Naraji consulted elicited a pivot shift (or in Mr McNicholas' case a pivot glide he suspected of masking a pivot shift). The apparent inconsistency in these findings is to my mind to be explained by a combination of three factors. The first is that the test is a subjective assessment in which two practitioners performing on the same patient may get a different result. I do not however consider that this can fully account for the disparity between the results. The second is that there may have been some increase in laxity due to continuing degenerative change. This is a possibility, but again one which I do not think can wholly account for the disparity in the results. The third is Dr Howell's reservation that a negative result is not to be regarded as being as significant as a positive result, because apprehension in the patient or muscle control can result in a negative result which is masking a shift. This is consistent with Professor King's reasoning for saying that the laxity he found in 2010 would not necessarily have been there in 2007 or 2008 because secondary restraints might no longer be operating. He conceded that there was no evidence of deterioration in any of the ligamental restraints he was talking of, but maintained that a deterioration in muscle control might account for the difference. Mr Strover's evidence in cross examination also supported the view that muscle control might affect the pivot shift result. If this is the explanation for the earlier negative results, the positive results obtained in 2008 would provide some support for the allegation of malpositioning of the tunnel because they suggest underlying rotational instability was potentially present in the earlier period but was masked by muscle control. This is a factor which I take into account in support of the Claimant's case, but to which I attach less weight than the conclusions I draw from the imaging evidence.
ii) As to the Lachman's and KT1000 results, I feel unable to say that a reading of 4mm is suggestive of malpositioning. Again I find these results consistent with malpositioning but not of themselves supportive of it.
- On Dr Shelbourne's behalf it was suggested that any looseness after the operation was to be explained by the degenerative changes identified on the MRI scans in April 2007 and November 2008. Whilst I do not rule out that these may have been a contributory cause to an increasing looseness, I do not consider that they can account for the looseness which was observed in the earlier stages of rehabilitation. They do not, as the Defendants contended, rule out malpositioning of the tunnel.
- As to the opinions on tunnel positioning expressed by the surgeons who have not given evidence before me:
i) I gain no assistance from the reported views of Dr Fu, Dr Stone, Dr Awh or Dr Eldrod, for the reasons I have already given.
ii) I gain no assistance from the reported view of Mr McNicholas again for the reasons I have already given.
iii) I take account of the views of each of Mr Spalding, Professor Maffuli and Mr Webb that the tunnel was placed too anteriorly. However I bear in mind that these views were expressed for the most part in cautious terms, that the surgeons have not identified the images on which their views relied, and that they have not been subjected to cross examination for their views to be explored and tested. I treat them as lending some but only very limited support for the Claimant's case on malpositioning.
iv) I treat the evidence of Professor King's views in September 2010 as lending some support to the Claimant's case on malpositioning. As I have already indicated, his concession that he had no experience of carrying out operations using a femoral tunnel rather undermined his expertise to opine on the question for which he was being put forward as an expert on behalf of Mr Jari, namely as to what the latter should or shouldn't have concluded about tunnel placement. But he has the experience of having seen the result of many such operations even though he does not carry them out himself. I treat his views expressed at the consultation on 14 September 2010 as lending some support to the Claimant's case on tunnel placement.
The positioning of the tunnel: the imaging
- There was no consistency or clarity during the course of the trial as to exactly which images were being put forward on behalf of the Claimant to demonstrate the positioning of the femoral tunnel. What follows is my assessment following clarification in final speeches.
- The single image which is most supportive of the Claimant's case is the three dimensional image of the femur from the CT scan taken at Spire Cheshire Hospital on 28 November 2008. It is three dimensional in the sense that the CT scans can be processed by a software program to recreate an image of the bone which can be rotated and viewed from different angles in three dimensions. I was provided by Dr Lyons with an electronic version in movie form which portrayed the reconstruction rotating, as if one were seeing the bone itself moving in three dimensions. Professor Fairclough had referred to it in his reports, but only reproduced two dimensional stills during his evidence, from which the distance of the orifice from the posterior femoral wall was difficult to judge. Cross examination of Dr Howell and Dr Hansen took place on these two dimensional stills which was not particularly helpful. Dr Lyons relied heavily on this CT Scan to support her opinion of malpositioning and Professor Fairclough relied on this CT scan as the evidence which led him to conclude the tunnel was misplaced. Having viewed it, I agree with Professor Fairclough and Dr Lyons that it indicates that the tunnel is centred at about 12 o'clock and is a considerable distance from the posterior femoral wall up in the arch of the notch. The distance from the femoral wall has not been measured on the CT scan as such, and indeed as Dr Markolf's paper suggests, the exact point of the posterior femoral wall is difficult to define anatomically because it is a rounded edge not a sharp one. Nevertheless the distance between the tunnel wall at the orifice and the femoral wall was said by Dr Lyons to be 1cm based on this image, and to the naked eye it looks like something of that order. It is certainly not of the order of 1-2mm. I accept Dr Lyons' evidence on this image.
- The measurements of distances from the posterior femoral wall were also made by Dr Lyons from Image 12 of the MRI scan taken at Spire Cheshire on 28 November 2008. This was a sagittal image. Dr Hansen said that this was not a true sagittal image but at an oblique angle of 10 to 15 degrees which distorted the measurement. Dr Lyons accepted that it was at such an angle but maintained that that did not significantly affect her measurement. This was convincing. Her conclusion on this image was supported by reference to where the orifice should appear to cross Blumensaat's line. It was common ground, and confirmed in the literature, that it should appear in the posterior quarter of Blumensaat's line. But image 12 showed it close to the middle of Blumensaat's line in the second and third quarter.
- A further indication that the tunnel was about 1cm too anterior came from one of the November 2008 CT images relied on, paradoxically, by Dr Hansen. This was what he regarded as a true sagittal image. In his report he had conducted measurements on it to identify a distance of 1.9mm. This was not, however, the distance between the tunnel orifice and the posterior femoral wall at the point of the orifice, as is clear both from his report and the image identifying the measurement. It is the distance between the tunnel wall and a line drawn along the line of the posterior femoral cortex distally from the intercondylar notch which is then extended to run to the distal end of the femur. This runs well inside the actual posterior femoral wall at the point of the intercondylar notch because the posterior wall of the femur curves posteriorly towards the intercondylar notch. In other words the back of the femur is relatively straight further up but curves significantly as it reaches the lower end where it meets the notch, which is where the femoral wall we are concerned with is to be found: if the line which is taken from the straight part further up the femur is drawn as an extension, it will inevitably be further within the notch than the femoral wall at its end. Measuring the distance from this notional line to the orifice of the tunnel does not therefore identify how far it is from the femoral wall. What the image does however show, is that if one were to measure the distance on that image between the wall of the femoral tunnel and the actual point of the posterior femoral wall (which Dr Hansen did not measure) it is clear that it would greatly exceed the 1-2mm which is the standard distance, probably by a margin in excess of 5mm.
- Dr Lyons also relied on a sagittal image on the X rays (her slides 9&10). These had been relied upon by Dr Hansen who had drawn on them black lines to represent where Dr Shelbourne's tunnel was located; and white lines to show where it would have had to have been located if 1cm too anterior. But Dr Lyons pointed out that in fact one could see from the image that the tunnel was where the white lines had been drawn, not the black ones. This was not apparent from the copies reproduced in the bundles but was to my mind borne out by the electronic copies produced during the course of Dr Lyons' evidence in which the resolution was sharper.
- The Defendants relied heavily on an axial image number 20 from the April 2007 MRI scan. Dr Howell said that he had identified this as the most distal axial image showing the tunnel; and that it must therefore be at the mouth or at least within 2.5mm which was the distance between images. On it he measured the tunnel wall as being 1.75mm from the femoral wall. In response Dr Lyons was able to locate where image 20 had been taken by reference to where it fell on a sagittal image, which was not near the base of the intercondylar notch but well up in the notch. What was being measured therefore was not the distance from the posterior wall (ie the point where the posterior part of the cortex meets the intercondylar notch: the bottom edge of the apse in layman's terms); what was being measured was its distance from a point on the posterior cortex further up the femur. It was somewhere around Blumensaat's line. Again I found this persuasive and consistent with the other imaging evidence. It follows that axial image 20 is not indicative that the wall of the femoral tunnel was only 1.7mm from the posterior femoral wall at its orifice.
- Dr Shelbourne gave evidence by reference to this image that he had put the tunnel where he had wanted to put it. Taking this answer out of the context in which it was given (namely that if positioned 1.7mm from the posterior femoral wall as purportedly shown on this image it was where he wanted to put it) gave rise to two false arguments, one on each side. On Dr Shelbourne's behalf it was said that it showed he had done what he had been doing 400 times a year and that the Claimant's case involved condemning Dr Shelbourne's entire practice as unvaryingly negligent, a proposition which could be swiftly disproved by his results. The fallacy in this argument is, of course, the assumption that the image represents where he put the tunnel. If it represented the mouth of the tunnel by reference to the femoral wall, then it was indeed where he wanted to put it as his own published literature showed. If however this image was not a safe guide to where he had put the tunnel by reference to the femoral wall, his answer provided no guide to his general practice in other cases. The answer was also taken out of context by Professor Fairclough, who misinterpreted it as a freestanding assertion that Dr Shelbourne just put the tunnel hole where he felt like it rather than by reference to fixed placement criteria. This then became the subject of (unfair) criticism, with Professor Fairclough arguing that if Dr Shelbourne's normal practice was to put the tunnel where this one was, there was a public danger in the view being promulgated that a practice of putting it there was acceptable. This of course involved assuming, contrary to the context in which the evidence was given, that Dr Shelbourne's practice was to put it where Professor Fairclough was saying it was, not where Dr Shelbourne was saying it was on the basis of the axial image he was referring to.
- Dr Lyons also relied on a number of other images as showing "secondary signs" of misplacement. I need not rehearse the evidence on these in detail. Their interpretation and significance was disputed and I found them inconclusive.
Tunnel position: conclusions
- For the above reasons, the imaging evidence leads me to the conclusion that Dr Shelbourne's tunnel was at about 12 o'clock and centred about 1.5cm from the posterior femoral wall. This conclusion is consistent with and to a small extent reinforced by the post operative history.
Conclusion on Shelbourne negligent operation.
- It follows from my findings as to the placement of the tunnel that it was not too vertical, although it was at the limit of the acceptable range of verticality. It was, however, too anterior and negligently so, being in that respect beyond the range which would have been regarded as proper and acceptable by a respectable and responsible body of surgical opinion.
Dr Shelbourne: negligent aftercare
- The second basis of claim against Dr Shelbourne is that in the light of the post operative history of which he was made aware, he should have investigated the positioning of the tunnels, and that had he done so he would have seen that the femoral tunnel was misplaced and would have recommended a re revision. I reject this allegation. The post operative history known to Dr Shelbourne, although consistent with tunnel misplacement was not suggestive or indicative of it. No pivot shift was elicited in any test prior to November 2008. There had been one incident of the knee giving way, in April 2007, which as far as Dr Shelbourne was concerned had been investigated by a competent colleague with the benefit of an MRI Scan, who had concluded that the graft was intact and had not raised any cause for concern about the tunnel placement. His (Mr Jari's) conclusions were those set out in his letters of 19 and 23 April 2007. At the informal consultation in Harrogate in June 2007 (which was informal because Mr Naraji had declined to travel to the United States for his own reasons), the KT1000 reading was not such as to cause alarm. In his communications with the clinic thereafter, Mr Naraji's complaints were primarily of a lack of confidence rather than any physical symptoms and in his email in January 2008 Mr Naraji attributed this lack of confidence to the single incident of giving way the previous April. The patient relationship with Dr Shelbourne effectively ceased in February 2008.
Dr Shelbourne Causation: the issues
- In respect of the allegation of negligence which I have found established against Dr Shelbourne, the causation question arises on the hypothesis that in November 2006 Dr Shelbourne had used a femoral tunnel in an appropriate position. In order to do so he would either have had to use Mr Bickerstaff's tunnel (if necessary widening it to enable bone graft adhesion) or drilled a new tunnel more vertically on the clockface. Since there was room to drill a new tunnel more vertically but still well within the acceptable 10 o'clock to 12 o'clock range, it does not matter which.
- For the Claimant, Mr Hunjan QC defined the causation question as being whether Mr Naraji would have been able to return to the same high level as before. By "before" he meant not just before Dr Shelbourne's operation in 2006 but before Mr Naraji's first ACL rupture in 2005 prior to Mr Bickerstaff's operation. For Dr Shelbourne Mr Whitting QC contended that the issue was whether Mr Naraji would have been able to "to return to top flight football", meaning at Premiership or Championship level. Mr Miller QC for Mr Jari supported this formulation. No one suggested that I should form a view as to the precise extent of Mr Naraji's footballing ability and I was not provided with the evidential material in order to do so. Prior to the first rupture of his ACL he had not in fact played a competitive match for the first team at any of the clubs at which he had played, although his signing with SUFC was clearly an indication of his perceived potential. In addressing the causation issue I am only therefore able to answer the question on the medical evidence whether he would have been able to return to the same level of playing ability as before, rather than express a view couched by reference to what level of ability that was by reference to the kind of team in which he would have played. Those would be questions for any quantum hearing in the event liability and causation were established. It seems to me that strictly speaking the question is whether he would have been able to return to the same level as before the ACL rupture in 2006, not whether he would have been able to return to the same level as before the ACL rupture in 2005, the repair of which was undertaken by Mr Bickerstaff. But I have been able to address the issue by reference to the pre 2005 position and pre 2006 position without needing to resolve whether he retained the same level of ability after the Bickerstaff repair as before.
- In relation to the allegation of negligent aftercare, which I have rejected against Dr Shelbourne, the causation question would have arisen on the hypothesis of a third ACL operation. This would not have been so straightforward, given the presence now of two tunnels. Professor King's evidence, which I accept, was that on balance the sensible advice would have been that two operations would have been necessary, the first to clean out the tunnels and pack them with bone graft, followed by a 9 month delay for it to consolidate, before a second operation to drill a new tunnel. In relation to this causation issue it was contended on behalf of Dr Shelbourne and Mr Jari that there was an additional factual question to be asked and answered, as well as the medical one: if they had advised Mr Naraji to undertake re revision surgery, would he in fact have done so, bearing in mind that he was given that advice in or by November 2008 at the latest and chose not to do so.
- The causation issues can therefore be defined as follows:
i) if Dr Shelbourne had carried out the operation without negligence, would Mr Naraji have been able to return to the same level of playing ability as before the ACL injuries in 2005 and 2006?
ii) if Dr Shelbourne had advised that a re revision operation was the only option if Mr Naraji wanted to get back to professional football:
a) would Mr Naraji have had the operation; and
b) if so, would he have returned to the same level of playing ability as before the ACL injuries in 2005 and 2006?
Dr Shelbourne negligent operation causation
- I have not found this an easy question, and very little attention was paid to it in the evidence by comparison with the issues of liability. The background is that prior to Dr Shelbourne's operation, Mr Naraji's ACL had ruptured twice and Mr Bickerstaff's reconstruction had been unsuccessful on its first testing under match conditions.
- Professor Fairclough in his second report (at paragraph 3.50) opined that had Dr Shelbourne or Mr Jari not provided substandard care Mr Naraji would have been able to return to professional football. He did not distinguish between the case based on a negligently performed operation, which posits a competent second ACL operation (which I am calling a revision operation) and the case based on negligent after care by Dr Shelbourne and Mr Jari, which posits a third operation (which I am calling a re revision). There was nothing more put forward to support this opinion than its simple articulation, although in a passage of his report addressing negligence he had said that the failure rate for competent ACL graft operations was considered to be in the region of 10%; and that there was a "less optimum" outcome for an ACL revision, saying that there are a number of papers which confirm that revision surgery has a less successful outcome than primary surgery. These papers were not identified and Professor Fairclough did not identify what if any numerical value could be put on this increased failure rate. He was here addressing the proportion of cases in which the ACL graft failed, not the number of cases in which sportsmen were or were not able to return to their previous level.
- Mr Strover's report expressed his opinion that if further re revision surgery had been undertaken, Mr Naraji would on the balance of probabilities have been able to return to a career as a professional footballer; it is implicit that he would be of the same opinion if Dr Shelbourne's surgery had not been negligent. He too put forward nothing more to support this opinion than its simple articulation.
- Dr Howell opined in his report that a revision on 1 November 2006 (which he treated as equivalent to Dr Shelbourne not misplacing the femoral tunnel) would not have resulted in a stable knee which would have functioned properly and allowed Mr Naraji to return to high level professional football. That conclusion appeared to be based on or supported by the following:
i) Mr Naraji had a fragile knee which was predisposed to ACL injury. This was exemplified by the fact that he suffered two ruptures and that they were both low energy, non contact injuries which occurred simply on planting his foot, the first in a bounding injury in training, the second during a game which had been captured on film; neither had involved cutting or twisting at high speed or energy. The same was true of his giving way episode in April 2007 notwithstanding that his knee had regained full motion by then.
ii) By the time of Dr Shelbourne's operation Mr Naraji was already suffering the degenerative changes recorded earlier in this judgment as a result of the previous trauma to his knee. These had progressed by April 2007 as was apparent from the MRI scan taken then, which was not due to Dr Shelbourne's operation. These would predispose to instability.
iii) It was well documented that there "was a low rate of return to full activity on ACL reconstruction, let alone a revision ACL." Dr Howell referred to a paper showing the likelihood of an American Football player in the NFL returning to sport after a first ACL reconstruction as 63%.
iv) Dr Howell concluded that "the likelihood of a performance soccer player returning after an ACL revision with a soft, extruded lateral meniscus and degenerative changes on the medial and lateral femoral condyles and the trochlear groove is much lower". His reasoning that patients with degenerative changes fare worse in ACL reconstructions was supported by a paper he referred to and another paper by Dr Shelbourne.
v) Mr Naraji's performance in the April 2007 You Tube clips was in my judgment more agile than his attempt to reproduce it in 2011. This suggests that degenerative changes have taken their toll on the knee over time, irrespective of any question of rotational stability which Mr Naraji contended was not tested in the activities shown in the clips.
vi) Professor King said in his second report that "very very few players actually get back to a high demand cutting sport after 3 anterior cruciate reconstructions". He was addressing on behalf of Mr Jari the counterfactual hypothesis of a third, re revision operation, and expressed no views on a second, revision operation which is the counterfactual hypothesis for the claim against Dr Shelbourne of a negligently performed operation.
- Professor Fairclough responded in his third report that there are several Premiership footballers with significant osteoarthritic changes in their knee who continue to play football and that he had operated on several Premiership footballers with worse knees than Mr Naraji (in terms of degenerative changes) who continued to play at that level. He did not address Dr Howell's statistical evidence, although he did say that over 50% of professional players have significant osteoarthritis in later life (my emphasis). Post career osteoarthritis does not assist on the issue in question.
- I prefer the evidence of Dr Howell which was reasoned, measured and not challenged in cross examination. I find that even had Dr Shelbourne placed the femoral tunnel in the optimum position (or used Mr Bickerstaff's tunnel), the Claimant has not established on the balance of probabilities that he would have been able to play football at the level of which he was capable prior to the rupture in 2005, or for that matter prior to the rupture in 2006 even assuming in his favour that his ability was not diminished by the Bickerstaff operation.
Causation: Dr Shelbourne aftercare negligence
- It follows from my finding above that the Claimant has not established on the balance of probabilities that he would have been able to play football at the level of which he was capable prior to the rupture in 2005, or that in 2006, if he had had a re revision operation.
- The factual causation issue does not therefore arise. Had it done so, my conclusions would have been as follows. The reason given by the Claimant for not having a re revision operation following the advice he received in November 2008 was that after two years of hardship and fruitless rehabilitation, having faced advice from the defendants that the problem was psychological and that he should press on, he was physically and mentally overwhelmed and suffering from stress from which it took many months to recover. Thereafter he was just concentrating on the litigation. The view of Professor Fairclough and Mr Strover was that his chances of successfully returning to professional football were diminished after this further two years out of the game, plus the 6 to 9 months for surgery and rehabilitation, because of his loss of opportunity to develop muscle memory. I can understand this decision, which contrasts with his enthusiasm in the earlier stages of his rehabilitative training. My assessment is that he would have undergone a third re revision operation if at any time up to February 2008 he had been advised that that was the only option which would enable him to continue to play professional football; but that thereafter he had effectively given up hope of returning to professional football and did not have the emotional stamina to face another operation and rehabilitative training.
Res Judicata
- Dr Shelbourne relies on the doctrine of estoppel per rem judicatam. This doctrine has two branches, "cause of action estoppel", and "issue estoppel". Cause of action estoppel precludes a party from re-litigating the same cause of action. Issue estoppel precludes a party from denying any matter of fact or law necessarily decided by the earlier judgment. Dr Shelbourne relies on each in the alternative.
Res Judicata: the facts
- On 3 November 2008 the Claimant filed a proposed complaint for damages with the Department of Insurance for the State of Indiana against the First and Second Defendant. The filing of such a complaint is a necessary part of proceedings in Indiana to claim damages for medical malpractice. No claim can be pursued directly in the courts without first filing such a claim with the Department of Insurance. The complaint identified the Defendants and that the operation took place on 1 November 2006. It alleged simply that: "the previously described surgery was performed by K Donald Shelbourne MD in a fashion which was below the standard of care applicable to that surgery and as a proximate result thereof the Plaintiff has been injured and damaged".
- Mr Naraji's evidence was that he caused that complaint to be filed because he was advised that it was necessary to do so in order to protect the time limit in Indiana. In due course the defendants to those proceedings (whom I shall again call Dr Shelbourne) made an application to strike out the complaint. That strike out application was made not to the Department of Insurance but to the Indiana Court. Against that background Mr Naraji's solicitors wrote to Dr Shelbourne's attorneys on 25 June 2009. In that letter they indicated that they were contemplating bringing a claim jointly against Dr Shelbourne and Mr Jari. Although they did not expressly say so, the tenor of the letter implicitly suggested that the intention was to bring proceedings in England. The letter concluded:
"we are unfamiliar, of course, with the procedures followed by the Indiana Department of Insurance but on the condition that there are no costs consequences for our client it is possible we could avoid the need for a hearing of your application to the Marion Superior/Circuit Court and consider the possibility of agreeing to a consent order agreeing to the dismissal of the claim."
- That led to the signing of a "stipulation of dismissal with prejudice". The document was headed with the title to the claim and read as follows:
"STIPULATION OF DISMISSAL WITH PREJUDICE
Comes now Plaintiff Sharu Naraghi, pro se who hereby withdraws the claims against the Defendants K Donald Shelbourne, MD and K Donald Shelbourne MD, LLC as set forth in her (sic) Proposed Complaint. Plaintiff further agree (sic) to a stipulation of dismissal, with prejudice, as to the Defendants K. Donald Shelbourne, MD and K. Donald Shelbourne, MD, LLC. Plaintiff further stipulates that there has been no payment or settlement to them on behalf of defendants, …in exchange for this voluntary dismissal…."
This stipulation was signed by the attorneys for Dr Shelbourne, and by the partner of Mr Naraji's English firm of solicitors. It was recorded as having been distributed to, amongst others, Mr Naraji. It bears a stamp indicating that it was filed with the Indiana Department of Insurance on 20 July 2009.
- The relationship between the Marion Superior/Circuit Court and the Department of Insurance is that the Court does not have a full role until the Department of Insurance has expressed its view on the claim. It nevertheless has a supervisory role in the meantime whilst the matter is before the Department of Insurance. It has a power, for example, to determine points of law which may arise, or to determine applications such as that which was made by Dr Shelbourne to seek dismissal of the claim.
- On 11 July 2009 the attorneys for Dr Shelbourne issued a motion before the Marion Superior/Circuit Court which was described as a "motion to approve stipulated dismissal and to dismiss preliminary determination of law and motion to dismiss." It attached the signed copy of the Stipulation of Dismissal With Prejudice and sought an order approving the withdrawal of the claim in the terms of that stipulation. At paragraph 3 it purported to record that "since the filing of Dr Shelbourne's May 18, 2009 motion, the Plaintiff has agreed to withdraw and dismiss all claims against Dr Shelbourne, including his claim pending before the Indiana Department of Insurance." The motion sought an order amongst other things "ordering the Plaintiff's proposed complaint against the Defendant be dismissed with prejudice (emphasis in original) and that this claim be expunged from their record." The motion bears a signed certificate of service to the effect that a copy of the document was sent by first class US mail on 11 July 2009 to Mr Naraji at his address in Bolton, England.
- On 3 August 2009 the Marion Superior/Circuit Court made an order of dismissal in the following terms :
"ORDER OF DISMISSAL
The Court being duly advised in the premises, now finds that said stipulated dismissal is proper and should be and is hereby GRANTED
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED… that the underlying medical malpractice claims of Sharu Naraghi against K. Donald Shelbourne MD and K. Donald Shelbourne, MD. LLC be and are hereby Dismissed With Prejudice (emphasis in original). It is further ordered that these records be expunged from the Indiana Department of Insurance…."
The order was signed by the Judge, Hon. Heather Welch and dated 3 August 2009.
- In fact there had been correspondence with the Claimant's solicitor who had expressed unhappiness with the wording of paragraph 3 of the motion and proposed an amendment. The amendment was to make clear that the Claimant was only agreeing to withdraw and dismiss his claim against Dr Shelbourne pending before the Indiana Department of Insurance, and not all his claims against him which might be pursued elsewhere. Accordingly a revised motion was agreed and drawn up by Dr Shelbourne's attorneys on 5 August 2009. This revised motion was identical to the previous motion save that paragraph 3 now read: "since the filing of Dr Shelbourne's May 18 2009 motion, the Plaintiff has agreed to withdraw and dismiss all claims against Dr Shelbourne pending before the Indiana Department of Insurance." It is not clear whether this revised motion was filed with court, and the document before me did not bear any stamp showing that it was filed. Nor is there any suggestion that in fact a fresh order was made on the basis of an amended motion by the Marion Superior/Circuit Court. However it is common ground that the order of the court would have been the same, whichever version of the motion was before it, and the argument put forward on behalf of Dr Shelbourne was put forward on the basis that the order should be treated as having been made on the basis of the amended motion as agreed.
Res Judicata: the law
- Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties and their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged so as to justify setting aside the earlier judgement. The principles upon which cause of action estoppel is based are expressed in the maxims "nemo debet bis vexari pro una et eadem causa", and "interest rei publicae ut sit finis litium". Cause of action estoppel extends also to points which might have been, but were not, raised and decided in the earlier proceedings for the purpose of establishing or negativing the existence of a cause of action (Henderson v Henderson (1843) 3 Hare 100). Issue estoppel is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the Claimant in order to establish his cause of action and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was. Issue estoppel too has been extended to cover not only the case where a particular point has been raised and specifically determined in the earlier proceedings, but also that where in the subsequent proceedings it is sought to raise a point which might have been but was not raised in the earlier. See Dicey Morris and Collins on The Conflict of Laws 14th edition 2006 at 14-112, Arnold v National Westminster Bank plc [1991] 2 AC 93 at 104D to 107C; Thoday v Thoday [1964] P 181 at 198.
- Both forms of res judicata apply to foreign judgments provided such judgments are:
i) given by a court of competent jurisdiction; and
ii) final and conclusive on the merits.
- As to whether a judgement is final and conclusive on the merits, it has long been recognised that a judgment disposing of a case by consent is just as capable of being final and conclusive on the merits as one given following the determination of disputed issues (see Re South American and Mexican Co [1895] 1 Ch 37).
- The House of Lords considered what was meant by "final and conclusive on the merits" in The Sennar (No 2) [1985] 1 WLR 490, a case concerned with issue estoppel. At page 494, Lord Diplock said:
"It is often said that the final judgment of the foreign court must be "on the merits". The moral overtones which this expression tends to conjure up may make it misleading. What it means in the context of judgments delivered by courts of justice is that the court has held that it has jurisdiction to adjudicate upon an issue raised in the cause of action to which the particular set of facts give rise and that its judgment on that cause of action is one that cannot be varied, re-opened or set aside by the court that delivered it or any other court of co-ordinate jurisdiction although it may be subject to appeal to a court of higher jurisdiction."
- Lord Brandon said at page 499:
"The argument in relation to the first contention was that the judgment of the Dutch Court of Appeal was procedural in nature, in that it consisted only of a decision that a Dutch court had no jurisdiction to entertain and adjudicate upon the Appellant's claim, and did not pronounce in any way on the question whether the claim itself or any substantive issue in it, if it were to be entertained and adjudicated on, would succeed or fail. In my opinion this argument is based on a misconception with regard to the meaning of the expression "on the merits" as used in the doctrine of issue estoppel. Looking at the matter negatively a decision on procedure alone is not a decision on the merits. Looking at the matter positively a decision on the merits is a decision which establishes certain facts as proved or not in dispute; states what are the relevant principles of law applicable to such facts; and expresses a conclusion with regard to the effect of applying those principles to the factual situation concerned. "
There is no conflict or inconsistency between these two different formulations, both of which were concurred in by each of the other three members of the Judicial Committee in that case.
Res Judicata: analysis and conclusions
- In Indiana law a dismissal with prejudice is a determination on the merits and is conclusive of the rights of the parties. Such a dismissal within Indiana is res judicata as to the questions litigated and any questions that might have been litigated (see Ilagan v McAbee 634 N.E 2d 827). The Indiana law experts agreed that the effect of the with prejudice dismissal in Indiana in this case is such as to preclude the Claimant from bringing another claim in Indiana relating to his allegations of medical malpractice against Dr Shelbourne, both of negligence in the operation and negligent aftercare. The agreement between the experts was recorded in these terms:
"Mr Zeigler's view is that under Indiana law, there is a distinction between a case dismissed "without prejudice" and a case dismissed "with prejudice". If a case is voluntarily dismissed by the Plaintiff without prejudice, the situation simply reverts to the status quo existing before any law suit was brought. However, when a case is dismissed, voluntarily or otherwise, with prejudice, the Indiana Courts have held: "a dismissal with prejudice is on the merits and is conclusive of the rights of the parties and is res judicata as to any questions which might have been litigated" Hodge v Johnson MD 853 NE 2d 650 (Ind. App 2006), citing Ilagan v McAbee 634 N.E 2d 827 and 829 (Ind App 1994)
Mr Zeigler's opinion is therefore that the dismissal with prejudice by Mr Naraji in the Indiana Department of Insurance, later ratified in court, ends any potential cause of action in Indiana. In Mr Zeigler's view, it also ends any potential action in the United States, whether based on contract or otherwise, and whether based on the surgery or the aftercare. Mr Zeigler believes that the doctrine of res judicata applies not only to the original surgery, which was specifically mentioned in the case filed in Indiana, but also to the aftercare, up to the time that Dr Shelbourne or any of his staff had anything to do with this patient, because that aftercare was inextricably woven to the claim regarding the surgery, and because Mr Naraji was aware, before the Indiana case was ever filed, of the entire course of the aftercare; and was obviously also aware of that course when electing to dismiss the claim "with prejudice" in Indiana.
Mr Oyebanji agrees with Mr Zeigler that the effect of the "with prejudice" dismissal is to preclude Mr Naraji from litigating the underlying merits of his medical malpractice claim in Indiana. To the extent that there is disagreement between the experts, it is simply that Mr Oyebanji does not believe that Mr Naraji's "with prejudice" dismissal creates a res judicata effect in Indiana for all purposes and in all circumstances. "With prejudice" dismissals do not create untrammelled res judicata effects. The scope of res judicata is bounded by the intent underlying the order of dismissal see e.g Arrow Gear Co v Downers Grove Sanitary Dist. 629 F 3d 633,638 (7th Circuit 2010); Armes v Noble County Sheriff Department 215 F Supp. 1008, 1014-1016 (N.D.IND. 2002).
The experts do wish to emphasise, however, that regardless of their disagreement as to the effect of Mr Naraji's "with prejudice" dismissal under Indiana law, it is not their intent to opine as to the effect that it should have on the English proceedings. Both experts agree that the effect of the Indiana dismissal on these proceedings is a matter of English law and therefore beyond the remit of Indiana law experts."
- Given Mr Oyebanji's agreement that the effect of the with prejudice dismissal is to preclude Mr Naraji from litigating the underlying merits of his medical malpractice claim in Indiana, the extent of his reservation based on the intent underlying the order for dismissal is unclear. The Claimant argued that the intent underlying the order for dismissal was that the Claimant intended to, and should be free to, commence proceedings against Dr Shelbourne in England. In Mr Oyebanji's report he had specifically agreed that;
i) the Indiana judgement was rendered by a court of competent jurisdiction; and
ii) the matter now in issue was, or might have been, determined in the former suit; and
iii) the controversy adjudicated upon in Indiana was between the parties to the present suit or their privies (the third defendant in the present claim is just a trading name and not a legal entity, so nothing turns on the fact that in the Indiana claim only the first and second defendants were named).
- Given those matters and the specific agreement that Mr Naraji would be precluded from litigating the underlying merits of his medical malpractice claim in Indiana, it does not matter, in my judgment, what the subjective intent was underlying the order of dismissal. The English court is concerned with whether the foreign judgment is final and conclusive on the merits in the country in which it was given. There is agreement that it was. That is the only question on which the foreign law experts can properly opine. It is for the English court to decide whether the ingredients of the English doctrine of res judicata are fulfilled by a foreign judgment which has that effect in the jurisdiction in which it was given.
- If I were wrong in this view, and it were necessary to examine the decisions relied upon by Mr Oyebanji, I would not have derived from them any rule that if a party agreeing to a dismissal has at that time an intention to bring the same or a related claim in another court, that intention prevents the consent judgment being final and conclusive on the merits or giving rise to res judicata as a matter of Indiana law. Neither the Arrow Gear case nor the Armes case compel that conclusion. What matters in Indiana law, if intention is relevant at all, is whether it was intended to preclude further Indiana proceedings. It is common ground that the effect of the dismissal with prejudice is to preclude such proceedings in this case, so that any importance which Indiana law may attach to the intention of the parties is irrelevant on the facts of this case.
- In my judgment it is clear from the Indiana law put before me that the dismissal of the claim "with prejudice" was a decision on the merits within the meaning of that expression as laid down by the House of Lords in The Sennar (No 2) for the purposes of the English doctrine of res judicata.
- The Claimant raises a number of arguments by which he seeks to defeat the plea of res judicata. First the Claimant submits that the Indiana dismissal of the claim did not constitute a decision on the merits but was a procedural decision: it did not decide in Indiana the issue which is the issue which arises in these proceedings; all that was decided in Indiana, to the extent that anything was decided, was that the Claimant's claim was withdrawn and that it could not be refiled in Indiana. This, it is said, is the only effect of the with prejudice language used in the consent orders presented to the Marion Superior/Circuit Court and Indiana Department of Insurance. This argument is misconceived. It is clear from the Indiana law experts' opinions that dismissals by a claimant are not governed by procedural trial rules but by the common law, which accords a res judicata effect to with prejudice dismissals on a common law basis which is similar to that underlying the English law doctrine of res judicata. It is because dismissals with prejudice are treated as being a determination on the merits that they have the effect in Indiana which it is agreed between the Indiana experts that they have. The Claimant suggested that the decision in Small v Centrocore 731 N.E. 2d 22; 2000 Ind.App Lexis 957 shows that the Indiana law as to the effect of dismissals is contained in Trial Rules and "is therefore obviously procedural". In fact what that case shows is that the power to dismiss for failure to comply with the Trial Rules is a power which involves the dismissal being a dismissal with prejudice and being treated as a determination of the claim on the merits for the purposes of barring any subsequent proceedings. It does not contradict Mr Ziegler's evidence, which I accept, that the voluntary dismissal of a claim by a plaintiff is not provided for by the Trial Rules but gives rise to res judicata because at common law it too is treated as a determination of the claim on its merits.
- Secondly it is said that the Indiana court was not a court of competent jurisdiction because proper in personam jurisdiction could only be established by the physical presence of Mr Naraji in Indiana during the currency of proceedings, and there is no evidence of such presence; indeed, so it is said on behalf of the Claimant, the inherent probabilities are that he was not in Indiana since he would have no reason to be there. However Mr Naraji was not a defendant to the proceedings in Indiana; he was the claimant in those proceedings. A claimant who brings proceedings confers upon the court jurisdiction to determine those proceedings either for or against him. There is therefore nothing in this point.
- Thirdly the Claimant argued that the Indiana court dismissal with prejudice has a meaning only in the context of Indiana procedure and does not mean and was not intended to mean that the Indiana court intended to prohibit the Claimant from pursuing his claim in England. The submission was that the Indiana courts cannot bind the English courts in such a fashion. This is true but is of no significance. A court when dismissing a claim is not ordinarily directing its orders to the courts of another country. The question is not whether the Indiana court had it in mind to preclude English proceedings, but whether its decision was final and binding on the merits within its own jurisdiction so as to preclude any re-litigation in that jurisdiction.
- Fourthly, the Claimant relies on the doctrine of estoppel. It is contended on his behalf that Dr Shelbourne is estopped from relying on res judicata by reason of his conduct. The conduct relied on in the Amended Reply to support such estoppel relates solely to the issuing (on 1 April 2010) and subsequent withdrawing of an application by Dr Shelbourne to strike out the claim in these proceedings and/or challenge jurisdiction. Before me this was not maintained as a basis of estoppel. Instead the basis of the estoppel put forward was two different aspects of Dr Shelbourne's conduct. No objection was taken to their being advanced without being pleaded. They were these:
i) Dr Shelbourne was aware that the Claimant intended to commence proceedings in England at the time of the dismissal with prejudice in Indiana, both from the terms of the correspondence between the parties and from the negotiation of the amendment to the terms of paragraph 3 of the motion; and/or
ii) the proceedings here were conducted on Dr Shelbourne's behalf without taking the res judicata point until a late stage which was by way of an amendment to the Defence on 30 June 2011.
- As to the first it is important to note that it is not suggested by the Claimant that Dr Shelbourne or anyone on his behalf agreed that proceedings could be brought in England. Nor is it suggested that he or they made any express representation to that effect. As to Dr Shelbourne's state of mind, he was not asked any questions as to what he or his attorneys intended. There has been no allegation that he or his attorneys knew or intended that the effect of the dismissal with prejudice would be to preclude proceedings in England. There is no allegation of sharp practice. What is said is that because he or his attorneys were aware of the Claimant's intention to commence proceedings in England it would be unfair to allow him to treat the dismissal with prejudice as having an effect which he knew the Claimant did not intend.
- The Claimant wished to put before me, at the close of the trial, further correspondence passing between the Claimant's solicitor and Dr Shelbourne's attorneys in relation to the circumstances leading up to the making of the order. Objections were taken on behalf of Dr Shelbourne. It was not suggested by the Claimant that that correspondence constituted an agreement on the part of Dr Shelbourne that the Claimant should be permitted to commence proceedings against him in England. It was submitted that it went as far as establishing (but no further) that:
i) the Claimant had made clear prior to agreeing to the stipulation and to the dismissal with prejudice that he intended to bring proceedings against Dr Shelbourne elsewhere, and in particular at least by implication in England;
ii) that Dr Shelbourne, through his attorneys, was aware of that intention prior to the signing of the agreed stipulation and the filing of the notice of motion before the Marion Superior/Circuit Court and the order being made by the court.
- That the Claimant had expressed such intention, and that Dr Shelbourne was through his attorneys aware of it, is to my mind already apparent from the documents that were in the evidence during the course of the trial, and I so find. Accordingly I have not looked at the additional correspondence, which for reasons advanced on behalf of Dr Shelbourne might have prejudiced Dr Shelbourne if introduced for other purposes at this very late stage of the trial.
- In those circumstances the first basis for the estoppel can not succeed. Conduct may give rise to an estoppel by representation if the conduct is sufficiently unequivocal to amount to a representation of fact or a promise. But here there was no conduct on the part of Dr Shelbourne which could be construed as a promise that he would not object to being sued in England. The legal consequences for the Claimant's claim of the Claimant agreeing to a dismissal with prejudice were not a matter for Dr Shelbourne's Indiana attorneys. Taking that step was, so far as they were concerned, a matter for the Claimant and his legal advisers, not Dr Shelbourne. Dr Shelbourne had no duty to advise the Claimant of any adverse consequences, even had he been aware of and intended those adverse consequences (which in this case he was not). He did not do or say anything to induce the Claimant to proceed in some mistaken frame of mind. The mere fact of Dr Shelbourne being party to the dismissal with prejudice is neutral as to what he intended to flow from it outside Indiana, and a knowledge on his part of an intention on the Claimant's part to commence proceedings in England could not turn such a neutral stance into a positive commitment not to object.
- The second basis for the estoppel rests on equally unsure ground. Failing to take a point by way of Defence in proceedings is not an unequivocal representation that the defendant is irrevocably undertaking not to rely on the point in the future. In any event the Claimant can not show that he has relied on any representation to his detriment or that it would be inequitable to allow Dr Shelbourne to advance the defence by reason of it not having been pleaded at the outset. The Claimant did not and could not suggest that the proceedings would have been conducted any differently if the plea had been advanced in the Defence when first served.
- Fifthly and finally it is said on behalf of Mr Naraji that res judicata can not apply to the claim in contract. The Indiana claim was pursued only in tort, whereas in England it is pursued both in contract and tort; therefore, it is said, the Indiana proceedings can have no res judicata effect on the claim in these proceedings in so far as it is brought in contract.
- Dr Shelbourne advances several answers to this point. He says that no contract claim lies under Indiana law, which is the governing law of the contract claim, so that it does not assist the Claimant to restrict the res judicata effect of the dismissal with prejudice to tort claims. For the reasons I explain below when dealing with governing law, the contract claim is governed by Indiana law, but the unavailability of such a claim in Indiana is due to a procedural bar which does not preclude the substantive Indiana law contract claim being pursued in England. This therefore provides no answer to the point.
- Next it is submitted on behalf of Dr Shelbourne that cause of action estoppel applies to the contract claim because it is the underlying factual substratum which constitutes the cause of action, not the way it is framed legally, and the underlying factual substratum for the claim in contract is the same as, or at least substantially similar to, that in tort. Reliance is placed by Dr Shelbourne on passages in Spencer Bower and Handley on Res Judicata 4th edition 2009 and in particular at paragraph 7.05 where it is suggested that : "A passenger with causes of action for personal injuries against a carrier who failed in an action in tort could not bring an action in contract and vice versa. An employee with causes of action against his employer in tort and contract is in the same position". This bears some analysis.
- Cause of action estoppel is so called because it is concerned with causes of action. For English causes of action pursued before a Court of Record it operates to preclude suit on the cause of action by the doctrine of merger. For foreign proceedings it operates by way of estoppel. But in either case what matters is identity of the causes of action. Brett J said in Cooke v Gill (1873) LR 8 CP 107, 116: " 'Cause of action' has been held from the earliest time to mean every fact which is material to be proved to entitle the plaintiff to succeed—every fact which the defendant would have a right to traverse." In Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400 , 405 Millett LJ cited that definition and added:
"only those facts which are material to be proved are to be taken into account. The pleading of unnecessary allegations or the addition of further instances or better particulars do not amount to a distinct cause of action. The selection of the material facts to define the cause of action must be made at the highest level of abstraction."
See also the reference by Robert Walker LJ in Smith v Henniker-Major & Co [2003] Ch 182 at page 210 to "the bare minimum of essential facts".
- In Hills v Cooperative Wholesale Society Limited [1940] 2 KB 435 a claimant employee who had brought and had recovered on a claim under statute for personal injuries caused by negligence was estopped from bringing at common law a claim based on the same facts. That was a case of true identity of the essential facts.
- The authority cited for the above quoted passage in Spencer Bower & Handley is Matthews v Kuwait Bechtel Corporation [1959] 2 QB 57. In that case an English plaintiff suffered an accident whilst working in Kuwait for his employers under a contract governed by English law. The Plaintiff sought leave to serve the writ out of the jurisdiction relying on a contractual basis of claim under Order 11 Rule 1(e). The decision was that he had a claim in both tort and contract and that he could choose to sue in either. It does not touch the question of identity of causes of action for the purposes of cause of action estoppel. The authors also place reliance on a decision of Maugham J in Green v Weatherill [1929] 2 Ch 213. In that case a Mrs Ellis had drawn out a sum of money from the bank on the day she died and handed it to one of her daughters, Mrs Weatherill. Her husband died a few years later and his executor claimed that the sum formed part of his estate having belonged to him. The plaintiff as executor of the father's estate sued Mrs Weatherill in the King's Bench Division in an action for money had and received, on the basis that the money was the father's, it having been handed by the mother to the daughter to keep for the father. Mrs. Weatherill claimed the money was a gift. The plaintiff succeeded and obtained judgment for £198 against Mrs Weatherill. The judgment went unsatisfied. The plaintiff then sued the daughter again in the Chancery Division and also her sister to whom £135 of the money had been paid during the earlier proceedings. This claim, which was for the £135, was based on the allegation that the transfer to the sister was a breach of trust designed to defraud the plaintiff and prevent him being able to execute any judgment. Maugham J held that the claim against Mrs Weatherill was barred by res judicata and said this at page 221:
"In my opinion it must be admitted that the cause of action in the two cases is strictly speaking not the same. On the other hand the plea of res judicata is not a technical doctrine, but a fundamental doctrine based on the view that there must be an end to litigation."
It is important to note, however, that he went on to support the decision by reference to the Henderson v Henderson principle that the doctrine applies not only to causes of action already adjudicated upon but also those which ought to have been brought forward and adjudicated upon in the earlier proceedings.
- My conclusion is that for the purposes of cause of action estoppel the ingredient of identity of causes of action means just that: identity, not substantial similarity. It is a strict test which is only met by true identity by reference to the essential facts necessary to support the claim at the highest level of abstraction, in just the same way as the exercise is required to be performed for the purposes of s35 of the Limitation Act 1980. If there are different facts which are necessary ingredients of the second cause of action, there will not be identity of causes of action. This will not, however prevent the doctrine of cause of action estoppel applying in many cases of substantial but not true identity, because of the principle in Henderson v Henderson, which extends the doctrine to causes of action which ought to have been brought before the court in the first proceedings. I have little doubt that if an English professional negligence claim were pursued against a doctor solely in tort, a subsequent claim for the same negligence brought in contract would be barred by cause of action estoppel. But this is not because of identity of causes of action. The contractual claim requires a contract. The tortious claim does not: it requires an assumption of responsibility but not necessarily a valid contract. The point is well illustrated by the facts of this very case. Dr Shelbourne has challenged the existence of a contract with Mr Naraji, as an issue which arises in relation to the claim in contract; but it is accepted on his behalf that there is a duty of care in tort in the absence of any contract. The absence of a contract is not said to affect the existence of the duty of care in tort. The reason why a second claim would normally be barred in these circumstances is not that it is brought on the same cause of action as that in the first proceedings, but rather that the separate cause of action ought to have been brought in the first proceedings. It is the Henderson v Henderson extension of the doctrine at work.
- The distinction is a crucial one for the argument under discussion in this case. It is common ground that no contract claim could be pursued in Indiana or could have been included in the complaint filed by Mr Naraji. There is therefore not available to Dr Shelbourne the Henderson v Henderson extension of the doctrine of cause of action estoppel where there is no true identity of causes of action. I did not have drawn to my attention any evidence of the juridical basis for the duty to exercise reasonable care in the Indiana claim. It is reasonably clear, however, from the material before me that it was no part of the necessary ingredients of the claim in Indiana to assert the existence of a contract and none was in fact asserted. That is sufficient to defeat the plea of res judicata as cause of action estoppel in relation to the contract claim.
- That does not dispose of the defence as it applies to the contract claim, because Dr Shelbourne relies in the alternative on issue estoppel. The standard of care to be applied by Dr Shelbourne in an English contractual claim is the same as that in an English tort claim; and the experts have agreed that that is the same as the standard to be applied in the Indiana claim. The issue of whether Dr Shelbourne was negligent is the same in each. So, it is argued, the dismissal with prejudice determines that issue against the Claimant and precludes the Claimant from seeking to aver such negligence in these proceedings, which would be fatal to a claim in contract.
- When considering issue estoppel in relation to foreign judgments, it is necessary to proceed with caution for the reasons explained by the House of Lords in Carl Zeiss Stiftung v Rayner & Keeler Ltd & others [1967] AC 853. Lord Guest stated in the context of foreign judgments at page 938:
"while perhaps not all estoppels are odious, considerable caution, in my view, should be exercised before the principle is extended any further. In operating issue estoppel it may be necessary, in order to ascertain what issues have been inferentially or incidentally decided, to look, not only at the judgment, but also at the pleadings and, it may be, the evidence. We are not familiar in this country with the practice and procedure in foreign countries, and it may be a matter of considerable nicety in certain cases to find out what issues were determined and whether they were incidental or collateral to the main decision". Lord Upjohn stated at page 947: "…there may be many reasons why a litigant in the earlier litigation has not pressed or may even for good reason have abandoned a particular issue. It may be most unjust to hold him precluded from raising that issue in subsequent litigation and see Lord Maugham's observations in the New Brunswick case. All estoppels are not odious but must be applied as to work justice and not injustice and I think the principle of issue estoppel must be applied to the circumstances of the subsequent case with this overriding consideration in mind." Lord Wilberforce stated at page 967 "I think it would be right for a court in this country, when faced with a claim of issue estoppel arising out of foreign proceedings, to receive the claim with caution in circumstances where the party against whom the estoppel is raised might not have had the occasion to raise the particular issue. The fact that the court can… examine the pleadings, evidence and other material, seems fully consistent with its right to take a broad view of the result of the foreign decision. But with these reservations, where after a careful examination there appears to have been a full contestation and a clear decision on an issue, it would in my view be unfortunate to exclude estoppel by issue decision from the sphere of recognition".
- The caution is apposite in the current context where there was no pleading out of the various issues. Submitting to a dismissal is not consistent only with a concession that negligence could not be established. It would be consistent, for example, with being able to establish negligence but unable to establish causation. It would be consistent with being able to establish negligence and causation but finding the damages cap a sufficient disincentive to continuing with the claim. I am not in a position to judge what issues would have emerged had the matter been fully pleaded out and evidence adduced on the various issues. It would not be fair to treat the dismissal with prejudice as having determined the particular issue within the proceedings as to whether Dr Shelbourne conducted the surgery negligently adversely to Mr Naraji. The issue estoppel basis for res judicata in relation to the contract claim fails.
- The reliance on res judicata by Dr Shelbourne therefore succeeds as a bar to the claim advanced against him in tort but not to the claim in contract.
Limitation
- Dr Shelbourne contends that the claim against him is time barred under Indiana law. No such time bar would apply under English Law. I must therefore determine whether the claims in contract and tort are governed by English or Indiana Law because questions of limitation are governed by the proper law of the substantive claim: section 1(1) of the Foreign Limitation Periods Act 1984.
Governing Law
- The question of what law governs the claim falls to be addressed separately in respect of the claim in tort and the claim in contract.
Governing law Tort
- There is a dispute as to whether the governing law question should be addressed separately or compendiously to the two allegations of negligence made against Dr Shelbourne, that of negligent surgery and that of negligent aftercare. My view is that the claims fall to be considered separately for these purposes, constituting as they do separate causes of action with potentially different outcomes, raising different factual issues not only in relation to the relevant acts and omissions but also to issues of causation. Ultimately it makes no difference to my decision on governing law whether they fall to be considered separately or compendiously.
- Governing law in tort for events at the relevant time was governed by Part III of the Private International Law (Miscellaneous Provisions) Act 1995 ("the 1995 Act"). The general rule under section 11 as far as relevant is as follows:
"(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur.
(2) Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being--
(a) for a cause of action in respect of personal injury caused to an individual or death resulting from personal injury, the law of the country where the individual was when he sustained the injury;
…………..
(3) In this section "personal injury" includes disease or any impairment of physical or mental condition."
- The law selected by the general rule may in certain circumstances be displaced in favour of another law. Section 12 provides:
"(1) If it appears, in all the circumstances, from a comparison of--
(a) the significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and
(b) the significance of any factors connecting the tort or delict with another country,
that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country.
(2) The factors that may be taken into account as connecting a tort or delict with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events."
- In Roerig v Valiant Trawlers Ltd [2002] EWCA Civ 21, [2002] 1 WLR 2304 Waller LJ said:
"In my view the word 'substantially' is the key word. The general rule is not to be dislodged easily."
- In the Court of Appeal in Harding v Wealands [2004] EWCA Civ 135, [2005] 1 WLR 1539, Waller LJ said (in a passage unaffected by the subsequent appeal to the House of Lords):
"... where the general law, by virtue of section 11 being the law where the tort occurred, is also the national law of one of the parties, it will, I suggest, be very difficult to envisage circumstances that will render it substantially more appropriate that any issue could be tried by reference to some other law."
- So far as negligent surgery is concerned, the injury alleged in the present case is the substandard knee said to have been caused by the surgery. The injury was sustained in Indiana. The words of section 11 of the 1995 Act make it clear that the court is directed to considering the injury as one of "the events constituting the tort" rather than consequential loss (upon which the Claimant seeks to rely). The Claimant suggested that the relevant question is where the injury manifests itself, and that in Mr Naraji's case that was in England. I disagree. The misplacement of the femoral tunnel gave rise to an immediate impairment of Mr Naraji's physical condition which was what, if he had proved causation, would have prevented him from returning to football. The time and place at which the injury occurred was the surgery in Indiana. The Claimant relied on a passage at paragraph 35-085 of Dicey, Morris & Collins on The Conflict of Laws 14th edition which states
"it might not be so easy to determine the country in which the injury occurred where the injury is brought about by an individual's consumption of, eg a drug, which consumption takes place in more than one country and the resultant injury is as a result of the cumulative effects of the consumption, In such cases it is likely that it will be concluded that the country in which the injury is suffered is that in which the injury manifests itself." [Paragraph 35-085].
The example given is not analogous. It is of ingestion of a drug in one country leading to an injury not merely manifesting itself but actually occurring in another country. The injury is the development of the illness or disease itself. In the Claimant's case, what he has suffered in England is not the injury but the consequences of the injury.
- Under the general rule, the law of Indiana applies to the claim in tort for negligent surgery. There is nothing in the factors to be considered under section 12 to make it substantially more appropriate for the applicable law for determining that claim to be the law of England. On the contrary the following factors reinforce the applicability of Indiana law:
i) It is the place of residence of one of the parties, Dr Shelbourne, who has no connection with England. By contrast Mr Naraji, although resident in England, sought out Dr Shelbourne to have the surgery performed in Indiana. Against that background, the fact that the claimant has suffered the consequences of the injury in England is a factor of little significance in favour of the law of England.
ii) Dr Shelbourne is a doctor licensed in Indiana, and practising in Indiana. He performed the surgery at his clinic in Indiana. He could reasonably expect that the standards and obligations governing his medical practice would be those of the place in which he was carrying out that practice. A doctor in one country who is visited by a patient from another would not ordinarily or reasonably expect that his actions would be judged by the laws and standards of the patient's country.
iii) That is all the more so where, as here, the patient has specifically sought out the doctor in the latter's home jurisdiction. The ordinary and reasonable expectations of the doctor in those circumstances would be shared by the patient.
- Had it been necessary to consider the proper law governing the Claimant's negligent aftercare claim against Dr Shelbourne, I would have found that it too was governed by Indiana law for the following reasons:
i) Under section 11 the general rule points to English law. The position is different from that which governs the negligent surgery claim. Here the claim is based not on the negligent creation of the deficient knee but the failure to treat it so as to rectify it. The claim is based upon the Claimant having a deficient ACL which was not rectified as a result of the alleged negligence. The personal injury complained of in this claim is the continued and unrectified deficient condition of the Claimant's knee. That injury existed and was suffered in England. The place of that injury in respect of that allegation of negligence is not determined by where the antecedent injury was first suffered. The position is analogous to a patient who has broken his leg skiing abroad and whose broken leg is negligently treated in England. The injury suffered from that negligence is the continued existence in England of the unhealed leg, irrespective of the place in which the leg was broken.
ii) However that presumption is displaced by the following factors which make it substantially more appropriate for the applicable law for determining the negligent aftercare claim to be the law of Indiana:
a) The Claimant did not suffer any fresh injury while in England. His case is that his knee was substandard from the moment of surgery and was doomed to stay that way until re-revised. The surgery in Indiana, which is where Mr Naraji sought out Dr Shelbourne, is the important context for the claim for negligent aftercare.
b) What is alleged against Dr Shelbourne after the surgery is a continuing omission to rectify his own negligence. Save for the one meeting in Harrogate, any failure by Dr Shelbourne occurred while he was in Indiana (and for the two reviews at the clinic the Claimant was in Indiana too).
c) In relation to the aftercare Dr Shelbourne was again performing his functions as a doctor licensed in Indiana, and practising in Indiana. He gave the relevant advice and provided the relevant aftercare almost exclusively from Indiana. He could reasonably expect that the standards and obligations governing that aspect of his medical practice would be those of the place in which he was carrying out that practice. Mr Naraji was consulting him in relation to the aftercare predominantly in Indiana and could reasonably have the same expectation.
- It is apparent from these findings on proper law that I would have found Indiana law to be the governing law of both claims had I been of the view that they should be considered compendiously rather than separately for that purpose.
Governing law Contract
- Choice of law in contract was at the relevant time governed by the Rome Convention, given force of law in England by the Contracts (Applicable Law) Act 1990. There is no express choice of law in this case. In the absence of express choice, Article 4(1) provides that a contract is governed by the law of the country with which it is most closely connected. Article 4(2) provides:
"Subject to the provisions of paragraph 5 of this Article, it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence, or, in the case of a body corporate or unincorporate, its central administration."
- Where one party provides a service and one party pays for it, the party providing the service is effecting the performance characteristic of the contract. The presumption makes Indiana law the applicable law by virtue of the habitual residence of Dr Shelbourne, or in the case of his body corporate, the central administration of that body, in Indiana.
- Article 4(5) provides that the above presumption may be displaced "if it appears from the circumstances as a whole that the contract is more closely connected with another country." In the present case, the presumption cannot be displaced. It is reinforced by the same factors as I have identified above as applying to the claims in tort. Any claim in contract is governed by the law of Indiana.
- The Indiana law experts agree that Indiana law does not recognise a claim in contract in a case such as the present unless the contract is in writing and signed by the doctor or his authorised agent. There was no such contract signed by Dr Shelbourne or an authorised agent on his behalf. The Claimant contends that the bar on such contract claims in the law of Indiana is merely procedural and should not therefore be given effect by an English court. This is not accepted on behalf of Dr Shelbourne. In his first report on behalf of the Claimant, Mr Oyebanji opined that the rule is one of evidence and procedure which does not make the contract invalid or unenforceable for all purposes (for example it would be no bar to the right to sue for payment) but only unenforceable for the purposes of a medical malpractice claim. In his responsive report for Dr Shelbourne Mr Zeigler did not specifically address, and so did not take issue with, this characterisation. In the joint report their agreement was characterised as being that "there is ... no basis under Indiana law for a claim based on breach of contract in this matter." They did not give evidence. On this evidence I accept the Claimant's submission and conclude that the bar is procedural and does not preclude a contract claim under Indiana law from being pursued in England.
- It is also contended on behalf of Dr Shelbourne that there is no pleading of a relevant contractual obligation under Indiana law. This is a false point. What is pleaded is a contractual claim, and if a defendant does not assert that it is governed by a foreign system of law which is in a material respect different from English law, the Court assumes that the foreign law is the same as English law.
- The upshot is that the Claimant may pursue a claim in England in contract and tort, and the substantive law applying to each is Indiana law (which in the case of the contract claim does not include unenforceability for want of writing and signature).
Limitation in Indiana law: the law
- The relevant Indiana law of limitation is for present purposes as follows:
i) The Indiana Medical Malpractice Act lays down a two year limitation period running from the date of the negligent act or omission, in this case the allegedly negligent surgery. It is therefore an "occurrence based" limitation period, rather than one beginning on the date of injury or knowledge.
ii) The Indiana Supreme Court in Herron v Anigbo 897 N.E.2d 444 (Supreme Court of Indiana, November 13, 2008) held the occurrence based limitation period constitutional, so long as it did not bar a claim by a person who could not learn of the injury within the two year period or by a person who knew of the injury but was unable even exercising reasonable diligence to attribute it to malpractice. The date on which such actual or constructive knowledge arises is called the "trigger date."
iii) However contrary to the impression which this tag might give, the trigger date does not generally constitute the beginning of the running of the two year period. If the trigger date falls within the two year limitation period, then time does not start to run on the trigger date. "Rather, it is the date on which a fixed deadline becomes activated." (Herron page 7 at top of right hand column). The claim must still be brought within the two years from the allegedly negligent act or omission if that is possible with the exercise of due diligence. If it is not possible to bring the proceedings within the two years they must be brought within a reasonable time after the trigger date. It is only if the trigger date falls outside the two year period from the occurrence that a two year period begins from the trigger date. Since the statute is an occurrence based one, the trigger date exception is intended to protect the constitutional right of access to the court and not to go any wider than necessary for that purpose.
iv) The burden of establishing that the action was commenced more than two years after the relevant occurrence rests on the defendant asserting it. If this is established, however, the burden passes to the claimant to establish the relevant facts which would avoid the defence.
v) The trigger date is to be identified as the time when the claimant knew or should have known of the alleged symptom or condition and facts that in the exercise of reasonable diligence would lead to discovery of the potential of malpractice.
vi) Indiana law recognises a concept of "continuing wrong." This doctrine applies when an entire course of conduct combines to produce an injury. When the doctrine applies, the occurrence date from which the limitation period starts to run is the end of the continuing wrongful act. A continuing wrong cannot as a matter of Indiana law extend beyond the last time the doctor treated the patient. The doctrine of continuing wrong will not prevent the statute of limitations from beginning to run when the patient learns of facts which should lead to the discovery of his cause of action even if his relationship with the tortfeasor continues beyond that point.
vii) There is an equitable doctrine of "fraudulent concealment" under the law of Indiana which can suspend the running of limitation for a period. Mr Zeigler describes the concept in an undisputed passage as follows:
"Fraudulent concealment may consist of an active and deliberate effort to conceal relevant information or, where a fiduciary relationship exists, may exist because of a failure to disclose information which should have been disclosed. In Indiana the two types are sometimes called active and passive fraudulent concealment."
viii) A party seeking to invoke fraudulent concealment must establish that the concealment of material information somehow prevented them from inquiring into or investigating the medical condition in respect of which the claim is brought.
ix) Fraudulent concealment may toll the limitation period until the patient discovered or should have discovered facts leading to the potential cause of action. Once those facts have been discovered, however, the claimant must still file within the two year limitation period if sufficient time remains for that to be reasonably possible. To that extent, the doctrine works in the same way as the "trigger date" doctrine.
- The salient facts relevant to this issue are as follows.
i) The surgery was undertaken by Dr Shelbourne on 1 November 2006.
ii) There was, as I have found, no subsequent negligence on Dr Shelbourne's part.
iii) The Claimant's final face to face consultation with Dr Shelbourne was on 12 June 2007.
iv) On 13 February 2008 Mr Naraji sent an email to Mr Murphy saying that he had decided to give up trying to get back to professional football because despite training extremely hard for over 14 months his knee was simply not stable enough and would not allow him to perform at a good enough level to make a living out of the game. At about this time Mr Naraji started seeking advice elsewhere and contacted Dr Fu. On 18 February 2008, he emailed Dr Shelbourne saying among other things that given doubts as to the success of the surgery he had taken medical advice from other experts and that the surgery should be considered a failure. He said that Dr Shelbourne had finished his career.
v) The patient doctor relationship between Mr Naraji and Dr Shelbourne effectively ended in February 2008.
vi) Mr Naraji says that in March 2008 he had a conversation with Dr Fu himself, who advised him that the femoral tunnel and ACL graft used by Dr Shelbourne were far too vertical and should be redone. Mr Naraji says that in May 2008 he sought the views of Dr Kevin Stone of San Francisco, a leading knee surgeon, who confirmed in a telephone conversation that Dr Shelbourne's femoral tunnel was malpositioned and that further knee surgery would be necessary to stabilise the knee.
vii) On 3 September 2008, the claimant emailed Mr Murphy, purporting to set out conclusions of Dr Awh, a radiologist, to the effect that the femoral tunnel was too anterior, the tibia too anterior relative to the femur, and that the surgery carried out by Dr Shelbourne was poor.
viii) On 3 November 2008, the Indiana claim was commenced. This was within time according to Indiana law as 1 November 2008 was a Saturday and Monday 3 November 2008 was the first working day thereafter.
ix) The claim form in the present proceedings was issued on 22 October 2009.
- Applying the Indiana law principles to the facts of this case I find that:
i) The two year limitation period in respect of the negligent surgery began to run on 1 November 2006 and would expire on 3 November 2008.
ii) As to a trigger date later than the date of surgery:
a) By February 2008 the Claimant had taken alternative medical advice and was telling Dr Shelbourne in unequivocal terms that the surgery was a failure. Then, or shortly thereafter, he was advised, so he says, of misplacement of the tunnel and the need for corrective surgery. The Claimant's written opening suggested that the Claimant's awareness of the claim "could be as late as February 2008." It further avers: "The time limit did not start to run until February 2008." The Claimant's advisers realistically accept that no later trigger date can convincingly be put forward. The post-February 2008 history merely confirms that the Claimant had more than enough information to commence proceedings within two years.
b) The trigger date was within the two years following the allegedly negligent occurrence (the surgery), so that the Claimant had to commence proceedings within two years of that occurrence unless it was not possible for him to do so exercising reasonable diligence; and if it was impossible with reasonable diligence to do so, he had in any event to commence proceedings within a reasonable period from the trigger date. I find that the Claimant could with reasonable diligence have commenced proceedings by 3 November 2008; and in any event well before these proceedings were in fact commenced on 22 October 2009. In Herron the Supreme Court of Indiana held four months from trigger date sufficient to commence proceedings. The fact that the Claimant issued the Indiana claim before the Department of Insurance within the two year period demonstrates that it was possible for him with reasonable diligence to commence the claim timeously.
c) Accordingly the claim for negligent surgery is time barred unless saved by the operation of the doctrine of continuing wrong or fraudulent concealment.
iii) As to continuing wrong:
a) There was no continuing wrong. There was no negligence by Dr Shelbourne in the aftercare. The doctrine can not therefore avoid the application of limitation to the claim for negligent surgery.
b) The continuing wrong can not extend beyond the last date of the patient doctor relationship. It was contended on behalf of Dr Shelbourne that this was the date of the last face to face consultation on 12 June 2007. That would mean that the two year period expired in June 2009, several months before these proceedings were commenced. The Claimant submitted that the end of the doctor patient relationship is not to be identified with the last face to face consultation, and points to the continuing communications with the clinic through to February 2008 and advice given on behalf of Dr Shelbourne up to that time. Had I concluded that there was negligent aftercare, I would have concluded that the negligent aftercare claim would not have been time barred because it was a continuing wrong up until the end of the doctor patient relationship which continued after October 2007; but the continuing wrong doctrine applicable to the negligent aftercare claim would not have extended the time in relation to the negligent surgery claim or prevented limitation applying to that claim. The nature of the "continuing wrong" after the surgery was not a continuation of the wrong comprising the surgery. The negligent surgery consisted in creating the defective knee; the allegation of negligence in the aftercare was of failure to diagnose that defect and advise as to its remedy. It is not an allegation of a continuing wrong but an allegation of a distinct and separate wrong with a different factual basis and different causative consequences.
c) As to fraudulent concealment, only the passive kind could potentially be relevant, namely a failure to disclose information which ought to have been disclosed. But in the light of my finding of absence of negligence in the aftercare, there can have been no such failure. In any event, if there were passive concealment it would not have lasted beyond the end of the doctor patient relationship in February 2008 and therefore would be insufficient to save the claim from being time barred.
- The Claimant seeks to invoke another argument to defeat the time bar. He contends that if the claim is prima facie time barred under the law of Indiana, then Indiana limitation law should be disapplied as being contrary to English public policy, in accordance with sections 2(1) and (2) of the Foreign Limitation Periods Act 1984 which provide:
"(1) In any case in which the application of section 1 above would to any extent conflict (whether under subsection (2) below or otherwise) with public policy, that section shall not apply to the extent that its application would so conflict.
(2) The application of section 1 above in relation to any action or proceedings shall conflict with public policy to the extent that its application would cause undue hardship to a person who is, or might be made, a party to the action or proceedings."
- There is nothing contrary to English public policy in the features of the Indiana limitation provisions as they apply to this case. They do not deprive the Claimant of his claim in circumstances where he did not have a reasonable opportunity to pursue it timeously if acting with reasonable diligence. He commenced proceedings timeously in Indiana. The application of the time bar arises from his decision to commence proceedings there and his subsequent abandonment of them, not from any undue hardship imposed by the foreign time limit itself. The case of Harley v Smith, [2010] EWCA Civ 78 is in point. In that case the trial judge disapplied a one year limitation period in the law of Saudi Arabia, relying on the fact that the claimants had been wrongly advised as to the time limits and that they would therefore suffer undue hardship. The Court of Appeal held that the one year limitation period did not apply, but went on to consider whether the trial judge would have been right to disapply it as causing undue hardship. Sir John Chadwick said at paragraph 53:
"... the factor relied upon by the judge is not that undue hardship arose from the fact that the relevant limitation period under Saudi law was twelve months (if that was, indeed the case); but rather from the fact that the lawyers in the United Kingdom whom the claimants consulted in June 2003 did not appreciate that that was, or might be, the position. But that cannot be a relevant factor. The question is not whether undue hardship is caused by wrong advice; but whether it is caused by the application of the foreign limitation period. There is nothing to suggest that, on the basis of the advice which they had received, the claimants chose to delay the commencement of proceedings until after the period of twelve months had expired; or that, if they had appreciated the need to commence proceedings within the twelve month period, there would have been any difficulty, in the present case, in doing so."
- The fact that the Claimant brought timeous proceedings in Indiana demonstrates that he has not suffered undue hardship by reason of the foreign limitation period. If he has suffered hardship, it is because he issued in Indiana and then abandoned those proceedings before issuing too late in England. Whatever the reason for the decision to abandon the Indiana claim and reissue in England outside the two year period and whatever the advice on which it was based, the inescapable fact is that the Claimant was aware of the two year limitation period, issued proceedings in Indiana within that period, and could had he so chosen have issued proceedings in England within that period.
- Accordingly the limitation defence succeeds in barring the claims.
Damages cap
- Applying the decision of the House of Lords in Harding v Wealands [2006] UKHL 32, [2007] 2 AC 1 the damages cap in the law of Indiana is a matter of procedure and is not to be applied by reason of the substantive claim being governed by Indiana law.
Conclusion in relation to the claim against Dr Shelbourne
- For the above reasons, against Dr Shelbourne, the Claimant
i) succeeds on the issue of negligent surgery;
ii) fails on the issue of negligent aftercare;
iii) fails on the issue of causation;
iv) succeeds in part on the issue of res judicata: the dismissal with prejudice of the Indiana claim is a bar to the claim in tort but not to the claim in contract.
v) fails on the issue of limitation;
vi) succeeds on the issue of damages cap.
The claim against Mr Jari
Negligence
- The Claimant's case against Mr Jari is that on each of the occasions on which he saw Mr Naraji, in April 2007, January 2008 and September 2008 respectively, he should have concluded that the femoral tunnel was misplaced and that he should have advised that the only option was to have re revision surgery if Mr Naraji wanted to get back to playing professional football at the highest level. At the heart of this case is the allegation that the misplacement of the femoral tunnel was obvious from the April 2007 MRI scan, which Mr Jari had and examined in April 2007, and which it is said he should have obtained in January and September 2008. It is also said that the post operative history which Mr Jari was given on each occasion should have led him to the same conclusion.
- It is necessary to define Mr Jari's duty of care to the Claimant. The context of his involvement is central to an understanding of what that duty was. Dr Shelbourne had been, and was going to continue to be, Mr Naraji's treating doctor. On 17 April 2007 the need arose for facilities in the UK for a physical examination of the knee and an MRI scan to test the integrity of the graft. Mr Jari was contacted by Dr Shelbourne by telephone, told of the fact that there had been two previous repairs, that there was a degree of co-existing degenerative change in the knee and that there had been an incident that day which might have compromised the graft. The Claimant was sent to Dr Jari for this purpose by Dr Shelbourne; he was not going to him for a second opinion. The principal purpose of the first consultation (18 April 2007) was to obtain at first hand a history of the incident, to examine and test the knee to see whether there was clinical evidence of a rupture, to arrange for an MRI and a mechanical test for laxity. The purpose of the second consultation (23 April 2007) was to put all the findings together, to advise the Claimant that the graft was intact and to provide him with the material obtained in the UK (the MRI, the radiologist's report and the KT1000 test results) to take back to Indianapolis to discuss with Dr Shelbourne at the visit which it was anticipated would take place in the next few weeks. At the two subsequent consultations, Mr Jari believed that the Claimant was still under the care of Dr Shelbourne, which he was for the first (25 January 2008). At no time did Mr Jari take over Mr Naraji's care. Nor was he ever asked to.
- Against that background, it was submitted on Mr Jari's behalf that Mr Jari's duty to Mr Naraji was that he was obliged in April 2007 to use his skill as an orthopaedic surgeon to:
i) elicit the circumstances in which the incident on 17 April happened;
ii) examine and test the knee for function and the presence or absence of laxity;
iii) analyse the probable cause of the incident on 17 April and advise Mr Naraji of that cause and whether it was likely to happen again;
iv) interpret the MRI and the radiologist's report, once obtained, primarily to confirm that the graft was intact, but also to see whether there was any other pathology in the knee which might have contributed to the 17 April incident;
v) provide Mr Naraji with all of the material and information that had been obtained to take with him to see Dr Shelbourne;
vi) advise him on any restriction on the type of training he should undertake between then and when he saw Dr Shelbourne.
- I accept this as an accurate description of his duty but with one further important aspect to it. He was under a duty to advise the Claimant that the tunnel was misplaced if
i) his clinical examination and interpretation of the MRI scan led him to believe that it was; or
ii) the results of his clinical examination and the MRI scan would have led any competent orthopaedic surgeon to believe that it was.
- As far as the subsequent consultations are concerned he had a duty to:
i) identify what it was that the Claimant was complaining of;
ii) in the absence of clinical evidence of laxity and/or complaints of instability, advise the Claimant of what his realistic options were.
- He did not have a duty on 25 January 2008 to obtain a copy of the MRI scan of 20 April 2007 if clinical signs of excessive laxity were not present and the Claimant made no complaint about instability. He did not have a duty on 8 September 2008 to obtain the MRI scan from the academic department of the University, rather than taking up the Claimant's offer to provide him with it. He could not have been expected to have recalled it from 17 months previously.
- I have already expressed my conclusion that the full post operative history was not such as to be suggestive or indicative of tunnel misplacement. Mr Jari was not of course aware of the content of the fairly extensive communications between Mr Naraji and Dr Shelbourne's clinic which formed the greater part of the post operative history relied on by the Claimant; he could only go on what he was told by Mr Naraji at the consultations, the extent of which was limited to what I have set out earlier in my judgment. There was nothing in that history to indicate that he should have suspected tunnel misplacement. Nor did his clinical examination so dictate. I have rejected the suggestion that a pivot glide should have done so.
- What remains of the case against him therefore rests solely on the allegation that he negligently failed to interpret the April 2007 MRI scans as showing obvious tunnel misplacement. In my judgment the Claimant has not made out this allegation:
i) It will be noted that none of the images which have led me to conclude that the tunnel was misplaced come from the April 2007 MRI scan;
ii) Professor Fairclough's evidence in support of the allegation was unconvincing and flawed. At one stage in his evidence in chief Professor Fairclough suggested that "the only way you can show where the tunnel is located is by the 3D reconstruction using the CT Scan". In answers to questions by Mr Whitting QC asking him to identify the image which showed misplacement of the tunnel he identified an image which turned out to be of the tibia. In answers to questions by Mr Miller QC on behalf of Mr Jari he said that an MRI does not show an exact image because of the water content which was why one got ill defined banding. When pressed by Mr Miller QC to identify the core radiology in the April 2007 scans which he contended showed the tunnel to be misplaced, he chose an image at F/13, but when pressed as to what about it showed misplacement his answers became evasive and incoherent. When I asked him at the conclusion of his evidence which were the April 2007 MRI images which should have made it obvious to Mr Jari that the tunnel was misplaced, he relied solely on that same image, which he said showed the misplacement of the tunnel because the orifice was in the middle of Blumensaat's line.
iii) Mr Jari was not taken to this image or indeed any image from the April 2007 MRI scan in cross examination as demonstrating malpositioning, nor had it previously been identified as "the core radiology" upon which the Claimant was relying for this purpose. In a case of professional negligence resting on an allegation of this nature, it is only fair that the specific image of which it is alleged the defendant negligently failed to take account should be put in cross examination, in order to give him the opportunity to explain and meet the criticism of his conduct that is being made. Had I regarded there as being any force in the Claimant's reliance on this image, I would have been very reluctant to allow it to found Mr Jari's liability in negligence without his having had an opportunity to deal with it. As it is, I do not regard the image as lending any significant support to the Claimant's case, and infer that had it been an image which made malpositioning of the tunnels obvious it would have been in the forefront of the evidence relied on by Dr Lyons and Professor Fairclough and would have been identified long before Professor Fairclough's answers in cross examination as the "core radiology" for this point, which it was not.
iv) Mr Strover's opinion that Mr Jari had been negligent was expressed in bald terms in his report without any supporting analysis or reasoning in the following terms:
"7.4 Mr Jari was in breach of duty and negligent for failing to observe and advise his patient that the femoral tunnel in Mr Naraji's right knee was malpositioned and that the malpositioning of the femoral tunnel was the cause of the instability experienced by Mr Naraji……….7.7 It is my opinion that advising Mr Naraji that his problems were due to a lack of confidence and psychological was a breach of duty and negligent as a reasonably competent orthopaedic surgeon and knee specialist should have recognised that the femoral tunnel was misplaced and that this malpositioning would cause instability in the knee joint."
His oral evidence did not elucidate the basis for this conclusion. In those circumstances I found it of little assistance.
v) Mr Jari, who is a surgeon, not a radiologist, had a radiological report from a musculoskeletal radiologist which did not comment on the position of the tunnels.
- For these reasons I find Mr Jari did not act negligently in any of the respects alleged against him.
Jari causation
- Given my finding on liability in respect of Mr Jari, causation questions do not arise. Had they done so, the questions would have been whether if Mr Jari had advised that a re revision operation was the only option if Mr Naraji wanted to get back to professional football:
i) Mr Naraji would have had the operation; and
ii) if so, would have returned to the same level of playing ability as before the ACL injuries in 2005 and 2006.
- Had the causation questions arisen for decision in relation to the claim against Mr Jari, my conclusions would have been that for the reasons given above in relation to causation issues affecting the claim against Dr Shelbourne:
i) Mr Naraji would have undergone a third re revision operation if at any time up to February 2008, but not thereafter, had he been advised that that was the only option if he wished to continue to play professional football;
ii) had Mr Naraji had a re revision operation, he has not established on the balance of probabilities that he would have been able to play football at the level of which he was capable prior to the rupture in 2006 or the rupture in 2005.
Conclusion on the claim against Mr Jari
- As against Mr Jari, the Claimant
i) fails on the issue of negligence;
ii) fails on the issue of causation.
- I will hear the parties on the form of the order and any consequential matters.
