Healthcare insurers and indemnifiers: Post-2025 litigation learning

Author's Note: This article is based on detailed case analysis from the 2025 clinical negligence trials and is intended for professional audiences in healthcare insurance and indemnity. All case citations are to publicly available judgments.

The 2025 litigation landscape has delivered a series of judgments that underscore enduring principles whilst simultaneously revealing evolving judicial attitudes towards expert evidence, documentation standards, and the scope of clinical duty.

This article examines the defining cases of 2025 and distils essential learnings for those managing medical negligence claims.

1. The primacy of contemporaneous records

The importance of contemporaneous clinical records has been clearly reaffirmed in 2025, with courts consistently prioritising what was written at the time over reconstructed testimony.

Ebanks-Blake v Calder 

In Ebanks-Blake v Calder, the court found the defendant orthopaedic surgeon in breach of duty for performing arthroscopy, debridement, and microfracture on a previously symptom-free professional footballer, placing little reliance on the defendant's witness statement or trial evidence and instead concentrating on contemporaneous documentation from 8 April 2013. The defendant himself agreed that:

"if we're going to find out what the thought processes and management plan was in 2013, the best thing to do is to look at the contemporaneous material".

Critically, the court found that sections of the defendant's witness statement had been cut and pasted from the defendant’s expert's report, leading to the conclusion that the defendant's account had been unwittingly influenced by expert opinion. 

Key learning

This highlights a significant witness preparation risk.

Shaheen v Daish 

In Shaheen v Daish, there was no record in Dr Daish's appointment note of any discussion about the chest x-ray and it was not in her plan, with the court noting an obvious contrast between Dr Daish's record and her colleagues' documentation of similar actions. The court found it likely that if Dr Daish had been dealing with the chest x-ray in Mr Ahmed's presence, she would have made reference to it in the record. Despite Dr Daish's evidence about her usual practice of informing patients about x-rays, the court found, on the balance of probability, that Mr Ahmed was not told about the x-ray request.

Key learning

What you don't write can be as damaging as what you do write. Evidence that 'this is what I always do' will not overcome contrary inferences from the contemporaneous record.

2. Expert evidence under scrutiny

The quality and independence of expert evidence have faced intense judicial scrutiny in 2025, with several cases demonstrating that credentials and reputation cannot compensate for lack of objectivity or logical coherence.

In Ebanks-Blake, the defence expert provided a supportive report without having reviewed the MRI images himself, and the court found that the expert's enthusiasm for arthroscopy and respect for the defendant had "clouded his judgement" and that his evidence "lacked objectivity and balance". The court criticised the defence expert for not drawing attention to literature suggesting that larger lesions were associated with less favourable outcomes.

In Tarrant v Monkhouse, the claimant's expert's use of medical terminology was difficult to follow and seemed to shift depending on the context, and when asked to explain his understanding of the Bolam test, the expert gave an answer that did not disclose an accurate understanding.

Conway v Yeovil District Hospitals NHS Foundation Trust: The danger of shifting opinions

In Conway v Yeovil, the basis of Dr Conway's criticisms was significantly attenuated by important concessions, with changes in stance not primarily based on changes in the available information or presentation of new arguments. The court found that major concessions that are not based on new information or arguments but represent fundamental changes of position will significantly undermine an expert's credibility.

In OAJ v Dorset County Hospitals NHS Foundation Trust involving catastrophic brain injury to a child before birth, the claimant's obstetric expert went outside his field of expertise, whilst the court was critical of the defendant's obstetric expert for overlooking an entry in the records. 

Key learning

Experts must remain within their area of expertise and must master the factual matrix before opining.

3. Fundamental dishonesty: The costs of fraud

The contempt proceedings in North Lincolnshire & Goole NHS Foundation Trust v KAE Burnell-Chambers demonstrate the serious consequences of fundamental dishonesty, where the defendant claimed damages of £3,010,708 based on a dishonestly exaggerated claim, but where the court found on the evidence that she made a good recovery from cauda equina syndrome over time and deliberately chose to lie about symptoms.

The Trust found the defendant out through surveillance, which showed that she was walking fast across a car park forecourt or unaided in a wood when, on the same day, she was seeing medical experts and presenting as being highly disabled with limited mobility.

Having regard to the high culpability and harm in the case, the court found the appropriate starting point was 12 months' custody, with the final sentence being 26 weeks' imprisonment after a 20% discount for guilty plea. Even significant impact on dependent children will not justify suspension where the contempt is sufficiently serious and there is a viable care plan in place.

Key learning

Fundamental dishonesty results in the loss of the entire claim, even where there was a genuine underlying claim with an admission of breach.

In Hakmi v East & North Hertfordshire NHS Trust, the court found it would have been appropriate to expect efforts to obtain a witness statement from a key witness, and drew an adverse inference, ordering that the defendants pay 15% of Mr Hakmi's costs from when the issue was raised, finding that defendants who pursue fundamental dishonesty allegations to trial and fail may face adverse costs consequences even where the claimant's overall claim fails.

Key learning

Pursuing fundamental dishonesty allegations carries risk. Where such allegations fail, adverse costs consequences may follow even where the defendant succeeds on the substantive claim.

4. Causation: Where cases live or die

Several 2025 cases highlight that even clear breaches of duty will fail without proof of causation on the balance of probabilities.

In Hakmi the court found breach of duty in failing to expose and prepare the claimant's femoral vessels and in relation to informed consent, but the claim was dismissed on causation grounds. The claimant’s expert’s reliance on the particular literature fell away in cross-examination when he accepted the difference in principle between an odds ratio and the probability of an event occurring.

In OAJ the court found breach of duty by the consultant obstetrician but ultimately the claim failed on causation because the court found that the timing of the injury was some time before this and that there was no continuing insult.

Key learning

Proving breach is insufficient – causation must be established too. Timing is critical and theories of causation must be supported by evidence and experience, not speculation.

5. Scope of Duty: The Meadows Framework in practice

Conway v Yeovil District Hospitals NHS Foundation Trust provides a landmark application of the scope of duty principle from Khan v Meadows to clinical negligence cases. The court held that the duty on the defendant was to take reasonable care to take reasonable steps to respond to the risk of any deterioration from any ongoing condition, but there was no duty to protect the claimant from any and all consequences of being discharged regardless of whatever such consequences might turn out to be.

Key learning

Factual causation ("but for") is necessary but not sufficient. The scope of duty question acts as a prior filter that may defeat claims even with clear factual causation.

6. Breach of duty: The Bolam Test

Paul v Royal Wolverhampton NHS Trust is best known for the Supreme Court decision on secondary victims. The underlying claim concerned an allegedly negligent failure to perform an angiogram and had been stayed pending the Supreme Court decision. The claim proceeded to a 5-day trial before His Honour Judge Glen on 2 – 8 December 2025. Judgment was handed down on 15 December. The claimant’s claim was dismissed. 

Taking into account all of the evidence heard and in considering the allegations pleaded, HHJ Glen found that the defendant’s clinicians treated the Deceased as a patient at risk of acute coronary syndrome. The Judge found that the claimant failed to satisfy him on the balance of probabilities that the interventional cardiologist did not belong to a responsible body of clinicians practising at the time. A responsible body of cardiologists would probably have taken the same approach 

Key learning

Even if the claimant’s expert was right that the majority of treating clinicians would not have taken the course that the defendant’s clinicians took, the Judge found that this does not exclude the possibility that a significant minority would have taken this course and that is sufficient to satisfy the Bolam Test.

7. Informed Consent: Montgomery's expanding reach

In HQA v Newcastle-upon-Tyne Hospitals NHS Foundation Trust, the court found breach of duty in relation to informed consent for failing to ensure the claimant received advice about surgical risks in an outpatient appointment in advance of the day of surgery, finding that it was unacceptable practice for the surgeon to see the patient for the first time on the day of intended surgery.

Critically, the court found that in circumstances where it was negligent not to expose the femoral vessels given the medium to high risk of aortic injury, it followed that it was negligent not to advise the claimant that exposing and preparing the femoral vessels was a variant form of the standard procedure.

Key learning

Montgomery extends beyond disclosing material risks to disclosing variant procedures that may mitigate those risks. Surgeons cannot unilaterally decide which risk-mitigation variant to employ; the patient must be informed of the option.

8. Procedural Pitfalls: Pleading and unless orders

Read v North Middlesex Hospital Trust illustrates the requirements for pleading clinical negligence claims, where the claimant was automatically struck out for substantive breach of an unless order requiring "further and better particulars of the allegations of breach of duty and causation of injury", with the clear implied meaning being that the amendment should have the cogency and authority of supporting expert evidence on breach and present in sufficiently coherent terms the claimant's case.

It was unfortunate that the claimant had not obtained a report from an Accident and Emergency Consultant but instead a Consultant Neurosurgeon and Spinal Surgeon, with the court finding it difficult to follow how opinion from a Neurosurgeon could ever be appropriate to the question of how the claimant should have been processed in A&E, with the claimant through legal representation now accepting that A&E expertise would be the appropriate discipline.

The court held that there must be a clear allegation of breach of duty to be assessed by reference to the Bolam Test, and given the allegations focused on omissions, the claim must particularise what steps should have been taken, what diagnosis, with what referral or treatment, the consequence of that treatment and what result it would have achieved, stating what did not happen is rarely sufficient proof of what should have happened, and anything less attempts to pass the burden of proof onto the defendant.

Key learning

Early engagement with pleading deficiencies can result in strike-out before significant costs are incurred. Claims based on omissions must positively plead the counterfactual, and expert evidence must be from the appropriate specialty.

9. Indemnifier discretion and coverage gaps

Tolias v Medical Defence Union, whilst not a clinical negligence trial itself, provides important insights for practitioners, with the key question being whether an MDU decision not to grant discretionary assistance was a permissible exercise of discretion, highlighting that clinicians moving between indemnifiers face significant risk if they fail to notify potential claims before their policies cease, as 'claims made' policies require notification during the policy period, creating a coverage gap for claims that arise after leaving one insurer but relate to incidents during membership.

Key learning

The case underscores the importance of clear notification requirements and the risks inherent in 'claims made' policies. Indemnifiers should ensure members understand notification obligations before membership cessation.

Takeaways

Themes for 2026 and beyond

The trials of 2025 reinforce several enduring themes whilst revealing evolving judicial attitudes:

1. Documentation remains king: Contemporaneous records trump reconstruction, and what is not recorded is as significant as what is recorded.
2. Expert objectivity is paramount: Credentials cannot compensate for lack of independence, logical coherence, or balanced presentation of literature.
3. Causation is the battleground: Clear breaches of duty will fail without proof of causation on the balance of probabilities, and understanding the distinction between odds ratios and probabilities is essential.
4. Fundamental dishonesty has consequences: NHS Trusts are actively pursuing contempt proceedings, with immediate custody a realistic outcome.
5. Scope of duty acts as a filter: The Meadows framework provides structure, but the scope of duty question may defeat claims before causation is even addressed.
6. Breach of duty: The Bolam Test has been restated
7. Montgomery continues to evolve: Informed consent now extends to variant procedures that may mitigate material risks.
8. Pleading standards are exacting: Claims based on omissions must positively plead the counterfactual, with expert support from the appropriate discipline.

Conclusion

For healthcare insurers and indemnifiers, these cases underscore the importance of early, rigorous investigation, robust expert evidence from appropriate specialties, and realistic assessment of both liability and causation. The trials of 2025 have been instructive; the question for 2026 is whether their lessons will be learned.