QB-2022-001544 - [2025] EWHC 2597 (KB)

Although I have considered Dr Hassan’s opinion carefully as to the cause of Mr Hakmi’s second stroke, I prefer Dr Baldwin’s opinion that its probable cause was a clot and not atherosclerosis. He considers that he had a second thrombus in one of the adjacent lenticulostriate arteries to where he had the first stroke. It seems to me that on this issue Dr Hassan raises a possibility that falls short of a probability. In my view it seeks to find another cause, which would rule out the effectiveness of thrombolysis, which I consider to be unlikely.

It is common ground that the window for giving thrombolysis which, according to the manufacturer’s guidance, is 4½ hours after which time it would not be effective. It becomes less effective the longer the delay in treatment. Based on the Emberson paper, Dr Baldwin in his report considered that thrombolysis up to 3½ hours from the onset of the stroke will, on the balance of probabilities, have had a good outcome. Dr Baldwin accepted that after 3½ hours the outcome would probably be the same whether or not Mr Hakmi had been treated with thrombolysis.

Dr Baldwin relied initially on the Emberson paper and the DRAGON score developed in Finland to support his opinion that it would have been effective within that period. His CV sets out his extensive experience of stroke medicine from its early development as a sub-speciality. I found his evidence impressive and helpfully presented. He was ready to make concessions where appropriate. As set out above, he accepted that the Emberson paper did not show that on the balance of probabilities thrombolysis would have been effective within 3 ½ hours in Mr Hakmi’s case.

I am therefore left with reliance on the DRAGON score, and Dr Baldwin’s experience, to demonstrate that if Mr Hakmi had been treated with thrombolysis within 3 ½ hours of the onset of the stroke, he would have had a good outcome. I accept Dr Baldwin’s evidence that the DRAGON score is a useful tool to determine in advance the likely outcome of treating a patient with thrombolysis. The problem with the DRAGON score, as identified by Dr Hassan, is that it only deals with patients who are treated with thrombolysis. There is no outcome for a separate cohort of patients who have not been treated with thrombolysis. It does not seem to me that use of the DRAGON score enables me to conclude that Mr Hakmi would have had a better outcome if he had been treated with thrombolysis.

There was much discussion about the Modified Rankin Scale, which is accepted as a universal measure of stroke outcome. I accept Dr Hassan’s evidence that Mr Hakmi is properly categorised at 2. In doing so I observe that Dr Baldwin considered that the category 2 or 3 would be within a reasonable range. I find support for this conclusion in the records from the Danesbury Rehabilitation Centre who placed Mr Hakmi in category 2 on his discharge in December 2016. He was in category 3 on arrival.

I find Dr Santiullo’s questionnaire too simplistic as a box ticking exercise to be of great assistance other than in gross cases. I accept Dr Baldwin’s view that it is not sufficiently nuanced to assess the Modified Rankin Scale. I accept Dr Hassan’s evidence that for Mr Hakmi to come within category 3, he would require a greater level of assistance than he presently requires with daily living. Although Dr Baldwin did rely on other factors, I am not satisfied that his principal contention that assistance washing his back in the shower brings him within that category or indeed difficulties in walking upstairs or driving long distances are sufficient to put him into a higher category. I note that on discharge from the Danesbury Rehabilitation Centre in December 2016 Mr Hakmi was recorded as being independent in washing and dressing.

I have concluded that thrombolysis would probably not have altered the outcome in this case, in circumstances where Mr Hakmi has made a very good, if imperfect, recovery from his second stroke. I am also inclined to accept Dr Hassan’s evidence that thrombolysis did not alter the outcome of his first stroke on 26 September 2016. In my view the evidence regarding treatment with thrombolysis for lacuna strokes is lacking. I accept Mr De Bono’s submission that at best Mr Hakmi lost the chance of a better recovery. If I am wrong about that, Mr Hakmi’s Modified Rankin Scale of 2 is within the range of a good outcome from his second stroke whether he was treated with thrombolysis or not.

The outstanding issue for me to decide is fundamental dishonesty. The allegation that Mr Hakmi had been fundamentally dishonest in the presentation of his claim first surfaced in the counter schedule, which followed his examinations by Dr Bach in March and April 2024. He was seen by Dr Ford in April 2024. Mr Hakmi said that it had a caused him three months of sleepless nights and weeping. It arose because of Dr Bach’s assessment that Mr Hakmi had not put effort into his testing with the result that he had scored lowly on the IQ Test at 84 and lowly on other tests. He had also taken the Test of Memory and Malingering (TOMM) from which Dr Bach concluded that Mr Hakmi’s test results could not be relied upon. The allegation is also supported, less emphatically, by the evidence of Dr Hassan and Dr Santullo.

Similar results, but not as low were recorded when Mr Hakmi underwent his testing by Dr Ford. They were substantially below his expected level of performance before his stroke. The defendants’ solicitors requested that Mr Hakmi disclose these documents to the Responsible Officer at the Lister Hospital, on the grounds of patient safety, which he initially refused to do. After an application to the court was made and before the hearing he did so. Following inquiry by Mr Hakmi’s Trust, the Responsible Officer considered that he was safe to continue with his role, which is primarily one of educational training.

I consider that it would be useful to set out what Dr Baldwin’s report on condition following an examination is April 2022 says about Mr Hakmi’s recovery from his stroke, which, as I understand it, was before his role became mostly educational.

“Mr Hakmi has always been very keen for both professional and financial reasons to return to work as an orthopaedic surgeon, and much of the therapy was focused on achieving that aim. He was encouraged to practice writing using the right hand and this slowly improved, and he attended courses on cadaver suturing to improve his clinical skills. Although initially there was some concern about the cognitive effects of the stroke, it was deemed that he was safe to return to work and in November 2017, he was approved by the Trust's Occupational Health department to return to work, initially on a phased return seeing only outpatients and ward rounds. It was always his hope to return to theatre, but because of the reduced grip and the requirements for repetitive hand function, the hand fatigue prevented this happening, and he was not permitted to return to surgical treatment. He has more recently returned to the operating theatre but not operating on his own patients but assisting and guiding colleagues.”

“Although he desires to return to orthopaedic surgery, the impairment of hand function together with the fatigue involving the right arm, and probably the movements of the right arm, have precluded surgery. It was deemed that he had sufficient cognitive function but following my assessment, I would have concerns that he has sufficiently impaired attention and concentration and executive impairment that would make it difficult for him to adapt to a rapidly changing surgical event.”

“Mr Hakmi was able to return to work as a consultant in the Lister Hospital beginning in November 2017 and since then he has gradually increased his work such that he now works as a full-time consultant, but this does not include his own operating lists, although he has attended theatre sessions assisting colleagues. He does outpatient clinics, ward rounds, and has taken on sessions jointly in the diabetic foot clinic. In addition, he has taken on an increased role in teaching, departmental administration, appraisal, and educational supervision and job planning.”

It was agreed that based on his educational and employment history, Mr Hakmi's pre-index cognitive functioning is estimated as being in the high average range. It was also not in contention that not all subtests of intellectual functioning could be administered due to his right-sided weakness. There is no dispute that Mr Hakmi presents with global cognitive deterioration, including intellectual functioning, memory, the speed at which he is processing information and executive functioning. The issue is the extent of the deficit.

In cross-examination Mr de Bono put to Mr Hakmi that he had deliberately reconstructed the case to give it the most favourable appearance. He had deliberately failed to put the required effort into the neuro-psychological testing to produce artificially results below his actual cognitive performance. Mr Hakmi vehemently denies that this was the case and points to several matters that he had found unsettling at the time of Dr Bach’s interview at home, including the disorganised structure of the interview, familial problems and length of the interview. He maintained in cross-examination that he had always been straightforward.

Dr Bach, clinical neuropsychologist, for the defendants, currently works in the acute stroke unit of a large NHS teaching hospital in London.

She noted from the occupational health records that Mr Hakmi received good feedback from himself, juniors, and peers in all domains. His last review dated 10 May 2024 documents that Mr Hakmi has the support of his colleagues and keeps up to date on his clinical skills for good patient outcomes. He has vast experience accumulated through years of training and work. He works towards keeping himself updated with his skills and knowledge through clinical and CPD activities. Mr Hakmi works well within his clinical capabilities and is aware and practises safety measures which are in place for good clinical outcomes. He ensures a culture of safety within his team and wider organisation. He has good working relationship with his colleagues. He participates in regular clinical governance meetings. He has shown good clinical practise and maintained the GMC standards for good medical practise.

Mr Hakmi was seen by Dr Bach on two occasions. The first was at his home on 9 March 2024, when Dr Bach conducted a cognitive psychometric assessment, and the second was a remote video assessment using Zoom on 20 April 2024. Dr Bach states in her report that her neuropsychological opinion is based both on test scores and observation of Mr Hakmki’s performance in the context of other possible influencing factors, for example, clinical history, psychological/psychiatric presentation, fatigue and pain.

She states that TOMM is a widely used, reliable and valid cognitive assessment of effort/PVT. Mr Hakmi performed well below cut-off, nearly at chance level, on trial 1, and well below the cut-off for the normal range, cut-off trial 2. Her opinion is that Mr Hakmi’s strikingly poor performance on TOMM indicates that his cognitive test scores should not be taken at face validity. She accepts that there are several reasons why he may have failed this test of effort, including reduced concentration, anxiety or intentional malingering. Her view is that a low TOMM score makes it virtually impossible to arrive at a clinical diagnosis.

The results of Dr Bach’s tests showed that Mr Hakmi’s verbal comprehension fell within the low average range, perceptual reasoning fell within the borderline range, working memory fell within the extremely low range, and speed of information processing fell within the extremely low range. On 9 March 2024, he scored 20 for depression and 18 for anxiety. Each of these scores indicate moderate to severe depressive symptoms. On 20 April 2024, he scored 16 for depression and 16 for anxiety. Each of these scores indicate moderate-to-severe depressive symptoms.

Dr Bach concluded that her neuropsychological assessment found Mr Hakmi to demonstrate significant cognitive impairments in attention, memory, learning and speed of processing. He failed tests of performance validity, indicating that his cognitive performance cannot be taken at face validity.

Dr Bach considered the TOMM assessment is very robust. It is very widely used. It is considered a gold standard test. It has been extensively researched and there is a large empirical base of evidence to use it with a variety of neurological patients, including stroke patients, patients with traumatic brain injuries, and patients with mild dementia and learning disabilities. The test is not a test of malingering, it is a test of performance validity and whether somebody is putting their best effort into the test.

In cross-examination, Dr Bach did not accept that the TOMM assessment should not being used on stroke patients or with patients with moderately severe brain injury. She conceded that Mr Hakmi’s fatigue, pain and psychological features were caused by the stroke. She said she was not saying that it was inconsistent with organic brain injury but that the level of cognitive difficulties was inconsistent with the brain injury. The paper by Tombaugh was put to her in cross-examination and she agreed that diagnosis of malingering should not be made on basis of TOMM assessment alone. She agreed that on the basis of the embedded effort testing and the RFIT, Mr Hakmi was applying an appropriate degree of effort when he was assessed by Dr Ford. She agreed that Mr Hakmi’s limitations on what he can and cannot manage are plausible.

She was also cross-examined about the circumstances of the first interview. She did not accept that the structure of the first interview was disorganised or conducted in a way that made it difficult for Mr Hakmi. She said she was aware that he had undergone recent familial problems. She did not consider that he was fatigued otherwise she would have stopped the assessment. She agreed that Mr Hakmi was anxious. She said he was fixated on thrombolysis and wanted to talk at length about the topic. She accepted that inadequate effort is qualitatively different from intentional failure.

I also turn to Dr Hassan’s evidence on this issue. In cross-examination he said that he considered that there was a functional element, which was not organic, in Mr Hakmi’s cognitive presentation, however, he defers to the neuropsychologists. Mr Hakmi’s witness statement and that of a colleague Mr Mordecai was put to Dr Hassan where they both referred to Mr Hakmi’s impaired memory. He accepted that Mr Hakmi has some cognitive impairment, which is organic, but he had come concerns about elements of the Montreal Cognitive Assessment (MoCA) he performed on Mr Hakmi. He did not consider that it was conclusive, he said that it was not normal but accepted that it could be due to fatigue. I observe that he did not go as far as accusing Mr Hakmi of malingering. He accepted that there was organic impairment. He accepted that there was a problem with his gait. He accepted that his own approach to Mr Hakmi’s history of falls suggesting a functional element was incorrect. He also accepted that the way he holds his foot and ankle was inconsistent with functional overlay.

I should mention that I also heard evidence from Dr Santullo, stroke rehabilitation expert on behalf of the defendants, who assessed Mr Hakmi on 8 February 2024. She accepted in her report that he suffers with right side hemiparesis, facial weakness, chronic neuropathic pain, fatigue, memory impairment, depression. She agreed in cross-examination that the physical disabilities that Mr Hakmi suffered were because of his second stroke but she considered that he tended to exaggerate his symptoms during the consultation. Her view was that “he appeared to exert minimal effort during the evaluation, particularly noticeable when assessing the strength on his weaker side, which seemed inconsistent with his level of functioning.” She formed the impression he was not putting maximum effort when the strength in the upper limb was tested notwithstanding she agreed that he had right sided hemiparesis. She considered that exaggeration is a possibility, not a probability. She however, accepted that an assessment of cognitive impairment was outside her expertise.

Dr Ford, clinical psychologist, was instructed, on behalf of Mr Hakmi, to assess his neuropsychological functioning. She interviewed Mr Hakmi on 2 April 2024. He told her that “his concentration is not good, and he cannot concentrate. It is more of an effort to remember things. He used to have an excellent memory. Remembering details about his patients and procedures was easy, but now it is a challenge. Before the second stroke, he described himself as a high achiever and was a very busy surgeon … In addition, the speed at which he processes information is slow. This means he struggles to process information when in conversations.”

Dr Ford personally administered, scored and interpreted all the neuropsychological tests.The Wechsler Adult Intelligence Scale-IV-UK (WAIS-IV-UK) was administered. Full-Scale IQ score of 84 (14th percentile) placed him in the low average range. Verbal Comprehension Index (VCI) of 87 (19th percentile) placed him in the low average range. Perceptual Reasoning Index (PRI) of 82 (12th percentile) placed him in the low average range. Working Memory Index (WMI) of 102 (55th percentile) placed him in the average range. Processing Speed i.e. Symbol Search his scaled score of 5 placed him at the 5th percentile and in the borderline range. From this she extrapolated that his Processing Speed Index (PSI) is in the borderline range. The Beck Depression Inventory (BDI-II) was administered. His score of 40 places him in the severe depression range.

In cross-examination, Dr Ford considers that failure in testing in stroke patients is not evidence of malingering. There are genuine memory and attention problems in this patient group. She explained in some detail the unreliability of TOMM testing stroke or moderately severe brain injury patients.

Dr Ford explained that the cutoff score in the TOMM test is 45 out of 50 on the second trial or test. If the score is below 45, the participant is deemed to have failed the test. The problem with that cut-off score, Dr Ford believes, is that it is too high for patients who have had strokes or moderate to severe brain injuries. Stroke patients and severe to moderate brain injury patients really struggle and find it hard because it is genuinely difficult for most of them. They struggle to recall the data because they have genuine memory and attention problems. The cut-off scores are inappropriate for certain age groups and for certain population groups, for example, strokes, dementia, moderate to severe brain injuries.

Dr Ford believes that Mr Hakmi functions in his educational role, where there are a lot of allowances and adjustments, and he has support and supervision. It was put to her that one would not expect that degree of variation between two tests within a month of each other by competent assessors. Her answer was that it is called "practice effects". The scores are low but he should be able to cope with adjustments in some areas.

Mr de Bono referred me to the decision of Ritchie J in Cojanu v Essex Partnership University NHS Trust [2022] 4 WLR 33, where at paragraph 38, he sets out section 57(2) of Criminal Justice and Courts Act (“CJCA”) 2015. The section provides inter alia:

(1)

This section applies where, in proceedings on a claim for damages in respect of personal injury (“the primary claim”)—

(a)

the court finds that the Claimant is entitled to damages in respect of the claim, but

(b)

on an application by the Defendant for the dismissal of the claim under this section, the court is satisfied on the balance of probabilities that the Claimant has been fundamentally dishonest in relation to the primary claim or a related claim.

At paragraph 47 of his judgment, Ritchie J set out the five requirements which must be satisfied before a finding of fundamental dishonesty could be made out, namely (i) the section 57 defence should be pleaded; (ii) the burden of proof lies on the Defendant to the civil standard; (iii) a finding of dishonesty by the Claimant is necessary; (iv)  as to the subject matter of the dishonesty, to be fundamental it must relate to a matter fundamental in the claim. Dishonesty relating to a matter incidental or collateral to the claim is not sufficient; (v) as to the effect of the dishonesty, to be fundamental it must have a substantial effect on the presentation of the claim. Mr de Bono also referred me the review by the Supreme Court of the law on dishonesty in Ivey v Genting Casinos [2017] UKSC 67, Lord Hughes JSC at paragraph 62, which I have not set out in this judgment. As Mr de Bono accepts, the question in this case, which determines whether the defence is made out, is whether Mr Hakmi has deliberately exaggerated either his physical or cognitive limitations.

Mr de Bono accepts that the evidence for exaggeration of Mr Hakmi’s physical symptoms is limited and impressionistic. It relies primarily on Dr Santullo’s evidence that he was not trying as hard as he could, in particular that he was exaggerating the weakness on his right-hand side and balance. I observe that Dr Santullo had seen Dr Bach’s report when she prepared her own report. It is not possible to say the extent to which that influenced her thinking.

The focus of Mr de Bono’s submission relate to the neuropsychological testing by Dr Bach of an apparent lack of effort being relevant to the physical tests. He relies on the different results obtained by Dr Baldwin in the TOMM assessment, and the Digit Span sub-test, and Dr Hassan in the Montreal Cognitive Assessment (MOCA). He submits that the variation in test scores is highly suspicious and point to a non-organic cause. He submits that, if his performance was deliberate and self-serving, then he was dishonest and the test in section 57 of the CJCA is made out.

Having considered the totality of the evidence, I have concluded that the claim that Mr Hakmi has been fundamentally dishonest fails. I do not consider that the defendants have established to the civil standard that Mr Hakmi was dishonest whilst being examined by the defendants’ experts. I have had the advantage of observing Mr Hakmi being cross-examined for a full day. Whilst I saw that he had difficulty in answering questions, without arguing his case, I do not consider that he was trying to mislead the court in any way. He is a proud man against whom a serious allegation has been made which, if found proven, could have serious consequences on his registration and employment by his Trust.

Having carefully considered the evidence of Dr Ford and Dr Bach, I prefer the evidence of Dr Ford. I accept her evidence that the TOMM assessment, on which a large part of this aspect of the claim depends, is not suitable for all stroke patients, certainly not Mr Hakmi. I am satisfied that the poor performance in Dr Bach’s tests, and to a lesser extent in Dr Ford’s tests, can be explained by Mr Hakmi’s psychological condition at the time the assessments were made. In March and April 2022 he was exhausted following serious familial issues which were explored in evidence. I accept the particular circumstances of Dr Bach’s first examination probably explain the disparity in the results obtained by Dr Ford. There may also be an element of practice effect between the respective examinations. Mr Kellar also drew attention Dr Bach’s transposition of a table in her report, which undermines her opinion on disparity, and also Dr Hassan’s mischaracterisation of Mr Hakmi’s disability in the MCA assessment. I have taken both those matters into account in reaching my conclusions.

I do not consider that Mr Hakmi was performing badly on the tests with Dr Bach to exaggerate deliberately the extent of his impairment. I observe that there is a recognition by Dr Baldwin and Dr Hassan that Mr Hakmi’s disability may be organic as well as psychological. I consider that organic damage did not assist him in completing the assessments. If Mr Hakmi had deliberately been underperforming, it would run contrary to all that he has done to rehabilitate himself following his stroke. He has also adduced statements and letters from four colleagues at the hospital which attest to his honesty and integrity, as well as the steps that he has put in place to mitigate his disability following his stroke.

I find that Mr Hakmi honestly believes that the diagnosis and treatment he received was suboptimal and that if he had been treated with thrombolysis, then, he would have made a full or nearly full recovery. The loss of his career and the consequent fall out on other aspects of his life manifested itself in his evidence.

For the reasons set out above, however, I have concluded that the claim is dismissed.

Following the distribution of the draft judgment for typographical corrections, I have received submissions on costs from both parties, which deal with the costs of defending the claim on the issue of fundamental dishonesty. Both parties accept that otherwise costs should follow the event.

I have carefully considered the correspondence between the parties before the trial which has been provided. I do not consider it is necessary for me to set out it in detail in this judgment. It provides context for the period in the lead up to the trial, including Mr Hakmi’s solicitors putting the defendants on notice that, in the event that the issue of fundamental dishonesty failed, there would be an application for costs, and the defendants making two “drop hands” offers shortly before trial. In any event, the trial went ahead and the defendants pursued the issue of fundamental dishonesty until the end. I raised the issue with Mr de Bono during his submissions, who assured me that careful consideration had been given to making and maintaining the allegation right through to submissions.

The conclusion that I have reached is that, notwithstanding that the defendants will not be able to enforce an order for costs on the claim, I should make an order that reflects that the defendants failed to establish fundamental dishonesty on the part of Mr Hakmi. I do not accept that to make such an order, where a claimant fails, undermines the costs regime. If anything it is the converse, not to make such an order would give a defendant a free tilt at raising the issue of fundamental dishonesty. The evidence in this case was properly explored at the trial and found increasingly wanting. It would have been open to Mr de Bono to have abandoned the issue after the close of evidence, or indeed earlier, but he did not do so.

It seems to me that I should make an order for costs that reflects that the defendants failed to establish fundamental dishonesty. As Mr Kellar has pointed out there was unfavourable national press coverage on the first day of trial and the consequences for Mr Hakmi, as I have said above, if the allegation had been found proved, would have been disastrous for his reputation and career. In my view, the order I make should reflect a percentage of the costs from the time that the issue was raised in the defendants’ counter-schedule, which is dated 18 March 2025. I consider that Mr Kellar’s submission that it should be 25% is too high, and accept in part Mr de Bono’s submission that some of the costs would have been incurred in any event.

I order that the defendants pay 15% of Mr Hakmi’s costs from 18 March 2025, subject to a detailed assessment on the standard basis in default of agreement. Otherwise I order that Mr Hakmi pay the defendants’ costs of the action not to be enforced without the leave of the court.

I shall leave it to leading counsel to agree an order for my approval.