The Plaintiff suffered from epilepsy from six years of age. In 2010, at the age of 20, the Plaintiff underwent electroencephalographic monitoring, a telemetry testing procedure requiring sleep deprivation and the withdrawal of medication to induce a seizure to determine if surgery would be suitable to address her epileptic episodes.

During the telemetry procedure the Plaintiff experienced a prolonged period of seizure activity called complex partial status epilepticus (CPSE). The Hospital admitted that it had breached its duty of care to the Plaintiff by not treating this event in a timely manner, not properly instructing the staff monitoring the Plaintiff as to appropriate care and treatment and by not treating the seizure event appropriately. However, the Hospital maintained that the burden of the Plaintiff’s epilepsy was not made worse by the telemetry event and the only damage that she suffered was transient distress in the immediate aftermath of the event. It was the Hospital’s position that if the Plaintiff’s epilepsy was worse after the telemetry event, this was due to the natural progression of her pre-existing condition.

The Hospital relied upon expert evidence to the effect that CPSE of 2 hours and 44 minutes would not cause any cognitive deterioration. This opinion was based on the expert’s own experience of over 200 patients with CPSE and his review of the scientific literature which showed no clinical evidence that CPSE produced brain damage or neurological injury and enduring cognitive dysfunction in people with epilepsy.

The Plaintiff’s expert was of the view that there were two possible explanations for the increase in her seizure activity: either the prolonged CPSE during the telemetry event caused subtle brain damage that led to the increased number of seizures; or the Plaintiff’s condition deteriorated according to the natural history of her drug resistant epilepsy. However, the expert stated that he preferred the former view.

Whilst the trial judge found that the Plaintiff’s condition was progressive, he also accepted the Plaintiff’s expert opinion that the CPSE contributed 50% to her worsened condition.  Damages were therefore assessed accordingly.

On appeal, the Hospital argued that the Plaintiff’s expert’s estimation that the CPSE in early 2010 would have been responsible for at least 50% of her subsequent deterioration was a mere ‘ipse dixet’ that was unsupported by any reasoning and was not shown to have been an opinion wholly or substantially based upon his training, study or experience. In essence, it was said that it was a statement with no foundation except for the fact that the expert had said it.

The Court of Appeal rejected this submission finding that the opinion was substantially based on the expert’s specialised knowledge based on his training, study and experience. It also incorporated elements that a lay person would use as a matter of common sense or intuition. The Court found that an expert can use common sense in reaching his or her opinion, provided that opinion is substantially based on study, training or experience which may well include elements of common sense. Whilst the estimate of 50% was not exact, it was more than sufficient to demonstrate that the contribution was material – exactness was not required.

The Court of Appeal concluded that the trial judge was correct in finding that the Hospital’s negligence materially contributed to the increased burden of the Plaintiff’s epilepsy, notwithstanding that her epilepsy was a progressively deteriorating disease.

To read the full decision, click here.