Clinical Negligence Law

Pneumococcal meningitis judgment: SC v University Hospital Southampton NHS FT [2020] EWHC 1610 (QB)

In this post, Isaac Hogarth summarises the recent case of SC v University Hospital Southampton NHS FT [2020] EWHC 1610 (QB), which involved a failure to diagnose pneumococcal meningitis.

Introduction

This is the first High Court judgment in a meningitis case in over three years. On 26 January 2006, a GP examined C, who was then aged 15 months. Being concerned by what he found, he sent C to hospital in an ambulance with a detailed referral letter identifying his findings and diagnosing “ ?meningitis”. At hospital, the clinicians diagnosed tonsillitis and sent C home. C in fact had a pneumococcal meningitis, and developed a right hemiparetic cerebral palsy and permanent neurological deficit.

In his introduction, having set out the above facts, Johnson J makes clear that the case is in fact far more nuanced and complex than those facts make it sound. He urges caution on the reader not to pre-judge on the basis of those incomplete facts, and notes that D had supportive expert evidence that the diagnosis of tonsillitis and discharge were reasonable.

The Facts

The relevant timeline is as follows:

Frequent contact with other children

Fully immunised

On examination: alert, miserable, walking around play area

Temp 40 ↓37.2 Normal respiratory rate No neck stiffness

Large inflamed pussy tonsils, ears not examined

Impression: tonsillitis

Plan: 5 days oral penicillin

Encourage fluids

Home, review tomorrow John Atwell Day Ward 2.15pm

Reviewed

Better

Drinking a little  Wet nappies

Still lethargic ++

On examination: awake and alert

            Chest – clear

            Pulse 120 Respiratory rate 28

            Throat not examined

            Impression: Resolving viral illness

Home

No follow up

The Issues

There were various issues of fact which fell to be determined, including whether there was neck stiffness on 26 January, and how alert C was throughout that day. The judge found that there was no clinical neck stiffness, and that although C was unresponsive to pain when injected by the GP, and arguably unresponsive in the ambulance, that, by the time she was examined in hospital (having been given antibiotics and Calpol), she was alert.

In their joint statement, the expert microbiologists agreed that C was suffering from both a viral tonsillitis and a pneumococcal bacteraemia, and that various of her symptoms were non-specific and could be attributed to either illness. However, they agreed that symptoms of floppiness and having a glazed expression could not be accounted for by viral tonsillitis and were consistent with pneumococcal bacteraemia. The Defendant’s expert was nevertheless of the view that these symptoms were not caused by pneumococcal bacteraemia, but by a high temperature.

On balance, the judge found (preferring the evidence of C’s expert) that C’s floppiness and glazed expression on 26 January were attributable to pneumococcal bacteraemia, and that the clinical improvement was down to the antibiotics.

The Judgment

The judge performed a helpful review of various clinical textbooks and guidelines. In relation to guidelines or toolkits that were not yet in place at the material time, he did consider them, but only on the basis that compliance with such guidelines would be evidence of the absence of negligence.

The judge recognised that the central question was whether the SHO and the Consultant on 26 January 2006 should have suspected that C had a serious bacterial infection so as to necessitate further investigations (including LP) and administration of intravenous (IV) antibiotics. This required an assessment of the weight to be attached to the findings made by the GP compared to those made in the hospital, in the context of the medication that had been provided.

It was found that the care by the SHO did not fall below the standard of a reasonably competent SHO. The plan which she formulated for admission and observation was reasonable. The level of observation thereafter was not reasonable, but was not causative of harm.

The judge carefully considered whether Dr Roe’s examination at 18:40 on 26 January 2006 was substandard. Whilst it was not unreasonable for Dr Roe to diagnose tonsillitis, he also had a duty, against the earlier findings of the GP, to rule out a serious bacterial illness. The earlier findings of possible photophobia, poor feeding, floppiness, lethargy, vacant expression, vomiting and high fever (at a level above that ordinarily associated with tonsillitis) are all identified by the textbooks as being associated with meningitis, and are not typically associated with tonsillitis.

The judge accepted the evidence of the Claimant’s expert paediatrician (Dr Ninis) that the only safe way to proceed was to perform an LP. The balance of evidence also suggested that IV antibiotics should have been administered, either the same day, or once pneumococcus had been cultured from the CSF within 24 hours.

At paragraph 116-117, the judgment reads:

“Once it is appreciated that there were signs of bacterial infection then not only did the textbooks mandate the use of intravenous antibiotics, the clear balance of risk pointed in that direction. There were potential disadvantages to their use if it turned out that they were unnecessary: they would commit C to staying in hospital rather than allowing her to be discharged home, they can have minor side-effects (commonly rash and diarrhoea) and inappropriate prescription is a major cause of antibiotic resistance. However, these potential disadvantages were limited. As against that, the potential disadvantages of not prescribing antibiotics if it turned out that C did have a serious bacterial infection were very significant, as the events of this case show […]

“Accordingly, assessed against the background of the textbooks and scientific literature of the time, and without reference to the guidance that was subsequently provided by NICE and by the Thames Valley & Wessex Screening Tool and by the UK Sepsis Trust screening tool, I consider that the standard of medical care fell below that which was required.”

The judge was unimpressed by the suggestion of the Defendant’s counsel that, if C’s case succeeded, it would have wide-ranging implications for the practice of paediatrics and the NHS, requiring more widespread use of admission, IV antibiotics and LP.

Causation was agreed between the parties, and therefore, the finding of breach on 26 January 2006 was determinative.

Learning Points

Whilst all such cases turn on their own facts, there are general points of interest to be drawn out from the judgment.

The judge placed a lot of emphasis on the guidance in place at the time in the leading paediatric textbooks, and the APLS training materials that were in place at the time. He referred also to NICE guidelines which post-dated the index events as a safety net, working on the basis that if the care fell within those guidelines, it was unlikely to be negligent.

It is often the case that experts (unless prompted) place more weight on their own experience and less on the literature. In cases such as this, and where eminent and experienced experts disagree, it is all the more important that there is material the Court can look to which is objective. It is advisable when instructing the experts to request a full literature review, particularly in reference to such materials as were available at the time of the alleged negligence.

The other key point is that the diagnosis of tonsillitis was not, in itself, wrong or negligent, but it did not, when carefully considered, properly explain all the signs and symptoms that were present. It will often be the case that a serious bacterial infection will ‘piggy-back’ on a less serious or resolving viral illness, as in this case, and on balance that is something the defendant clinicians failed to consider. In meningitis cases where a less serious illness is suspected or diagnosed in the first instance, the key question will be whether, in all the circumstances, that diagnosis can be maintained.

Isaac’s book, ‘A Practical Guide to Sepsis and Meningitis Claims’ is available here [http://www.lawbriefpublishing.com/product/sepsisandmeningitisclaims/]