This case involves a particular type of bias called “belief perseverance”, which means holding on to an idea and trying to prove it, even though the objective evidence clearly points in a different direction.

It involves a patient who presented with acute cholecystitis associated with severe peritonitis. This 40-year-old gentleman was treated with antibiotics and circulatory support, making a reasonable recovery over 8–10 days.

The surgical team decided to let him recover and booked him for a cholecystectomy in six weeks. It so happened that the hospital in-patient capacity was overrun with winter pressures, and the date for surgery was put back for another six months.

The week before the operation had been scheduled, the patient developed cholecystitis again, this time without pancreatitis, and was admitted to hospital, having a laparoscopic cholecystectomy the following day. Unfortunately, by the following day he had developed a fulminant peritonitis, which went on to give severe abdominal pain, a degree of renal failure and – more importantly – it severely affected the lungs, requiring over two months’ hospitalisation for the patient to make a reasonable enough recovery to go home. He continued to have shortness of breath and back pain, and so he consulted a lawyer, who immediately instigated a case against the hospital.

The screening report indicated the hospital had acted reasonably in not performing the surgery on the first admission, particularly because he had developed pancreatitis. The lawyer asked, since the operation was going to be further delayed, was this an issue? However, as the patient presented again with cholecystitis within his recovery period, any possible suggestion of delay was not relevant.

On the second admission, blood tests did not reveal pancreatitis, and neither did the ultrasound. Delaying the surgery was reasonable practice, as was delaying the admission. Nonetheless, the lawyer persisted in going through the notes after the second admission. The radiology report stated one CT scan was not clear because of “respiratory artefact”, and the lawyer asked was this not a clear example of negligence. Respiratory artefact indicated that the plaintiff took a breath during the X-ray and it was not negligence on behalf of staff. The lawyer then pointed out that some fluid had been taken off the left chest cavity and a follow up X-ray had shown a “collapsed left lower lobe”, and felt this implied the collapse of lung was due to negligence in taking off fluid. This mixed up a pneumothorax from an atelectasis of the lung (basal collapse) with a pneumothorax caused by a complete collapse of the lung because of penetration of lung tissue, which did not happen in this case.

Finally, the lawyer indicated that the nurses at the second admission had stated in the records that the potential “date of discharge” was six days, and so asked did the doctors not understand the severity of his condition at the time of the second admission? A routine cholecystectomy, when there is no pancreatitis, can be discharged from hospital in a matter of one to two days, and this document was for the nursing administration to give an idea to those who managed the occupancy of beds in the hospital and had nothing to do with the length of an individual patient’s eventual stay in hospital.

These and other questions are clear examples of a lawyer reading notes specifically to find potential evidence to back up their initial suit, despite being told there was no clear evidence of negligence after their initial brief to the expert.

Belief perseverance usually occurs when there is an emotional attachment to the case or the client. Medical and legal experts need to have empathy with the client, but not sympathy, when they are professionally managing a case. They also need to read and listen for understanding, as opposed to reading, listening and phishing for other possible reasons to persist with a lawsuit.

MDU figures for 2020 show that fewer than one in six actions in medical negligence actually succeed, with the vast majority failing on the grounds of causation. It must be remembered that subsequence is not the same as consequence.

Initial screening is, therefore, essential to manage client expectations at an early stage. This avoids unnecessary effort and costs for all concerned. Too many cases are taken to Court with no chance of success. This is stressful for both the client and their legal adviser, and indeed for the medical personnel involved.

For fast and effective screening of all potential medical negligence cases, contact Peyton Medico Legal Services now on +44 (0)28 87724177, or email rpeyton@rpeyton.com