In this post Angela Frost of 12KBW discusses the recent decision of Foskett J in Macaulay v Dr Abdul Karim & Croydon Health Services NHS Trust [2017] EWHC 1795 (QB), yet another case involving the delayed identification of sepsis in a busy A&E department. The recent case of Darnley v Croydon NHS Trust [2017] EWCA Civ 151 was also considered and distinguished.
The Facts
The facts are complex and were subject to a great deal of judicial scrutiny over the precise sequence of events.
C started to feel unwell on 11.10.11. On 12.10.11 he reported symptoms to his GP (D1) by telephone and D1 prescribed antibiotics. There was a dispute over what was said to D1 and what D1 recorded.
The next day C felt worse and attended A&E via ambulance. He was triaged at 10.30am and various tests, including blood tests, ordered. The notes refer to C complaining of rectal pain. None of the tests had been carried out by the time he was seen by a Registrar around 12.45pm. The Registrar conducted a rectal examination and queried a perineal abscess and the plan was to refer him to the surgeons.
C was seen by an SHO around 2pm and a further request for bloods was made. He was then moved out of a cubicle and into the waiting area. His case was that he was told to wait in the waiting room for a second opinion. He appears to have asked a receptionist what was going on and was told there was no further referral. He then called his wife to come and pick him up at about 4.30pm.
C went to see D1 on 14.10.11 complaining of pain in his lower abdomen and constipation. Again, there was some dispute about what was said versus what was recorded in the notes. It appears that D1 did perform a rectal examination. He advised C to drink more fluid and take paracetamol and prescribed an antibacterial medication and a laxative. In the early hours of the morning of 15.10.11 an ambulance was called and C was taken to King’s College Hospital [“D2”] where his subsequent treatment resulted in extensive surgery and loss of a limb.
The question for the Court
The issue in the case was whether C’s GP and/or the Hospital were negligent in not identifying the underlying problem or its general nature sooner and/or in failing to take steps to bring forward treatment and surgery which would have prevented or reduced the serious consequences C ultimately suffered.
In determining this issue the Court first had to consider the aetiology of C’s condition. D1 and D2 submitted that the distinction between the aetiologies was crucial to the likely presentation of symptoms at important times in the chronology and the effectiveness of any earlier operative intervention.
C’s case was that he had an ischiorectal abscess which developed into necrotising fasciitis, i.e. an infection starting in the perineal region and tracking upwards.
The Defendants’ case was that C had a perforated diverticulum resulting in an infection which tracked down from the pelvis.
The Court’s findings on aetiology
The Court had to interpret and decipher the notes of the GP, the various A&E and ambulance staff who had attended him and the surgical notes from the preliminary and ultimate surgery at Kings College Hospital. The Court heard from multiple experts. The radiological evidence was supportive of C’s position on aetiology and as Foskett J pointed out, this was not convincingly refuted by any other evidence in the case.
The Judge looked at the totality of the evidence and on balance of probability found that the combined effect of the evidence was to diminish D’s hypotheses about aetiology. However, whilst D’s theory was rejected on the balance of probabilities this did not mean that C had established his theory on the balance of probabilities, it could simply be unexplained.
Ultimately the court found that there was clear evidence that C had complained of rectal and anal pain in hospital on 13.10.11 and on the balance of probabilities the Claimant’s condition originated in the ischiorectal fossa and developed into necrotising fasciitis tracking up into the pelvic cavity.
Foskett J accepted that not all the evidence fell perfectly into place but C’s symptoms were consistent with the way in which the ischiorectal abscess would have developed into necrotising fasciitis.
The Court’s findings on liability of D2
The Court found that the failure to carry out the blood test requested by triage within 2 hours of C’s admission fell below an acceptable standard. Foskett J took judicial notice that whilst A&E departments are very busy especially in densely populated urban areas he had heard no evidence that this day was anything out of the ordinary and on any view C was very unwell when he arrived. His findings can be summarised as follows:
- Had the bloods been done they would have either signalled infection or the need for further tests.
- As it was the SHO who saw C some 3.5 hours after he was first admitted, had to start again.
- The failure of the SHO to carry out observations fell below an acceptable standard. This did not directly cause the injury to C but was indicative of the general lack of urgency in dealing with someone exhibiting potentially worrying signs.
- This was a system failure and C had ‘slipped through the net.’ Clear evidence of an infection ought to have been available to the SHO before C decided to leave the hospital.
- Had the bloods been done C would not have left and would have remained in hospital to be seen again by a doctor.
The Court found that an ischiorectal abscess ought to have been diagnosed on 13.10.11 and would have been had a CT scan been ordered. Had this occurred C would have been admitted, given intravenous antibiotics and fluids, monitored overnight and undergone surgery the next day. The preponderance of the evidence was that had C undergone surgery on 14.10.11 he would have had a good outcome.
Based on the factual scenario that ought to have happened if D2’s system had operated correctly, it was negligent of D2 not to have arranged for C to be in theatre by the morning of 14.10.11 to deal with a suspected ischiorectal abscess.
Did Darnley v Croydon NHS Trust apply?
Foskett J found that if C had been called to give a specimen but had left, this ought to have been in the notes, the alternative was that he was never called to give the specimen. In any event either alternative represented a system failure.
On any reading of his notes C was an overweight diabetic who might have an ischiorectal abscess and was awaiting blood tests. Whilst accepting the busy nature of an A&E department Foskett J could not accept that a telephone call should not and could not have been made. C should have been called to convey to him the importance of the blood test.
The Court rejected D2’s submission that this was a Darnley case. To apply Darnley here would extend the effect of that decision beyond what was intended. C was not relying on something the receptionist said as an actionable misstatement – this case involved the ‘system’ failing. There was a duty on the hospital to check that there was a good reason for him not being there to provide a specimen and then to warn him of the risks of not having done so. Only when it discharged that duty could it be said that C had made a truly informed decision about leaving. Had they done so C may have been in difficulties pursuing his claim following Darnley.
The hospital had a duty to make contact in a case such as this and imposing a duty on a hospital to make contact would not place an unreasonable burden on them. The hospital fell below the reasonable standard by making no attempt to contact him. There was no reason to think that C would not have complied and would have done so that evening. The net effect is that C would have been in surgery by the morning of 14.10.1 and it is more probable than not that amputation would have been avoided.
The Case against D1
It was agreed between the experts that if C told D1 over the phone that he was having difficulty passing urine and was constipated then it would have been negligent for D1 not to have arranged a face to face consultation at which further details would be sought and probably a rectal examination carried out, however the Court could not be satisfied on the balance of probabilities that he did.
Did C’s presentation on 14.10.11 require D1 to arrange for his admission to hospital? Whilst the Court had ‘considerable reservations’ about the record keeping and the quality of the examination; C had not established that D1 should have referred him to hospital that day so the case against D1 failed.
Comment
This is a case that largely turns on its incredibly complicated and difficult to determine facts. Rather than attempt to make all the pieces of the jigsaw fit, Foskett J took an overarching view of the evidence and reached a decision based on a resolution of most issues on the balance of probabilities.
Foskett J was critical of the note-keeping in particular of D1 and while D1 escaped liability the issues would have been much easier to resolve had D1 made notes reflecting all that was said and done in the consultations.
The medical opinion in this case was complex and the Court heard from many different experts during the course of the trial and it is clear from the judgment that certain issues and questions were dealt with in oral evidence that the experts hadn’t been given the opportunity to discuss and debate before the trial. This left Foskett J in difficulty when trying to resolve certain issues. His suggestion of hot-tubbing seems a valid one in cases like this where the aetiology of a condition has to be determined before any question of liability can be resolved.
One can see why in this case the Defendant sought to rely on Darnley. C appears to have been given the impression by the receptionist that he was not being dealt with. However, in this case it was not a simple question and answer from the receptionist that caused C to leave. He had been in the department for over 7 hours and was no further forward in being diagnosed. The duty to C extended way beyond an exchange with a receptionist. In any event there was an additional duty to contact C once he had left.
The finding that the hospital was in breach for failing to contact C after he left is likely to strike fear into the hearts of NHS trusts. Whilst Foskett J thought this was not an unreasonable burden to impose, the implications for hospitals in terms of resources could well be significant. NHS trusts can take some comfort from the fact that Foskett J emphasised at a number of points in his judgment C’s particular characteristics (i.e. an obese man with diabetes and a suspected ischiorectal abscess) and that appears to have weighed heavily in the balance when determining that he ought to have been contacted.
Clinical Negligence Law 