William Audland QC and Isaac Hogarth of 12KBW achieve online mediated settlement of catastrophic blindness claim secondary to raised intra-cranial pressure

William Audland QC and Isaac Hogarth of 12 King’s Bench Walk, instructed by Stewart Young of Stewarts successfully represented the claimant (“C”) in his claim against Imperial College Healthcare NHS Trust (“D”), achieving a settlement of £4.3 million at a video mediation.

The claim arose from a delay in treating raised intracranial pressure secondary to cerebral venous thrombosis (CVT).

C was a young man in his early thirties. In July 2015, he had been referred to hospital by an optometrist who noted that he was suffering from raised optic discs. He had also suffered from migraine-like symptoms including debilitating headache and blurred vision. 

He was then seen by a consultant ophthalmologist in September 2015, who noted bilateral swollen nerve heads, but no other ongoing symptoms. The ophthalmologist made an ‘urgent’ referral to neuro-ophthalmology at the defendant trust.

In late October 2015, C was ultimately seen by a consultant ophthalmologist employed by D. An examination of the eyes confirmed bilateral papilloedema (optic disc swelling). C was sent for a CT head scan, which came back clear. C’s case was that it was mandatory at this point to perform a CT venogram, and lumbar puncture. Either would have diagnosed raised intracranial pressure, and a CT venogram would have confirmed the presence of CVT. A lumbar puncture would also have relieved the elevated intracranial pressure, and would have prevented his loss of sight.

C was discharged to the care of his GP, who was asked to make a neurology referral. There was also a plan for ophthalmology follow-up in four weeks.

When C returned in November 2015, the notes from his previous attendance had been lost. He was increasingly symptomatic and reported headaches, dizziness and some blurring of vision in the previous week. The ophthalmologist recorded that the optic discs were less swollen and with early “champagne cork” appearance. He made a non-urgent neurology referral, but did not arrange any urgent investigations.

In December 2015, C suffered a catastrophic deterioration. He started to experience headache, followed by light sensitivity, dizziness and vomiting. He subsequently awoke to find he was unable to see properly.

When he was assessed in hospital, an MRI and lumbar puncture were performed, both of which demonstrated significantly raised intracranial pressure. A CT venogram demonstrated CVT.

In January 2016, C had a ventricular peritoneal shunt inserted. Unfortunately, his vision continued to deteriorate. He is severely sight impaired with visual acuity of 6/36 in his right eye, and 6/48 in his left eye, and very narrow tunnel vision in both eyes. It was likely that his vision would continue to deteriorate over the next 10 years. He also suffered from a significant psychiatric injury in the form of a severe major depressive episode.

He would require a significant level of care, aids and equipment and adapted accommodation.

Liability was disputed.

The Mediation

The mediation took place over a period of six hours via Microsoft Teams. The mediator had invited both sides to participate in an initial joint meeting for the purposes of the mediation, and had created multiple channels or rooms that allowed each party to hold confidential talks, and a separate room for joint sessions. Each party’s own virtual ‘conference room’ was locked so that the other side was unable to enter.

The technology allowed a mediation that was very close to ‘the real thing’ and allowed C to attend from home. Even when the Covid-19 crisis is over, it will be worth remembering that some catastrophically injured claimants, particularly those who are very anxious about leaving their homes, may prefer to attend remotely.

Quantum

Although liability was disputed, the key battleground was quantum. The most contentious heads of loss were future care and case management, and accommodation.

Whilst D had accepted a lifelong need for care, there was a dispute over the number of hours and the level of case management required. There was also a dispute about whether C would use an agency carer or would directly employ his own carer.

A periodical payment of £40,000 for care and case management was ultimately agreed. This essentially reflected a directly employed carer at four-and-a-half hours per day, and approximately 50 hours a year of case management.

It was agreed that C required adapted accommodation, and would benefit from the use of assistive technology.

One of the aids that C was most excited about was the Orcam MyEye (https://www.orcam.com/en/myeye2/). This is a small device with a smart camera that attaches to a glasses frame. It helps sight impaired people to understand text, recognise faces and identify objects. 

Settlement

Overall, the claim settled for a lump sum and periodical payments with a total value of approximately £4.3 million.

COVID-19 and Clinical Negligence Claims

Here, Henry Charles, Michael Brace and Lizzie Boulden explain why they consider that COVID-19 related clinical negligence claims arising out of redeployed healthcare professionals are unlikely to succeed on the present law. This should provide considerable comfort to healthcare professionals who are not only bravely risking their lives, but who are also working in unfamiliar roles in the national effort to fight the pandemic.

We acknowledge and applaud the brave and selfless work being done by support staff, nurses and clinicians. Neither they nor the NHS should be looking over their shoulders for claims in these difficult times. The emergency powers provide for indemnity for personal injury claims in tort arising out of the current circumstances [1]. However, whilst there are presently no claims, it still leaves the providers of the indemnities i.e. NHS Resolution, private hospitals and others exposed, and the clinicians, nurses and support staff would still be faced with the burden of a claim if one was brought.

Sadly, we hear that some lawyers may be trying to create interest in clinical negligence claims arising out of COVID-19, in particular, we presume, from the redeployment of clinicians and nurses, and the use of junior clinicians and nurses and support staff offering related services in more senior or very different positions. We suggest that those claims are likely to fail, and rightly so, even without any change in the law.

It is worth pointing out that, even before we get to the legal principles likely to protect clinicians in these circumstances, there is, in any event, little scope for clinical negligence claims in this period. Treating COVID-19 patients and preventing transmission of the virus are the priority: elective surgery had been cancelled until last week, A&E admissions are said to be decreased, and the general public is wary of attending medical institutions due to fear of virus spread combined with a desire to ease the burden on the NHS. Quite rightly, the public is aware that the NHS is working in difficult and unprecedented times.

Why COVID-19 related claims are likely to fail on the current law

We would suggest that a “triple lock” of three legal principles are available to be deployed which give considerable comfort: the “rescuer principle”, a potentially modified standard of care in relation to COVID-19 wards, and the “Act of God” principle.

Let us take an example where it is feared that proceedings could successfully be pursued. Assume the case of a consultant psychiatrist who has to be deployed to A & E because otherwise there would be no medical cover; however, the psychiatrist has not worked in A & E for 30 years. A patient is wrongly triaged and suffers a worse outcome than s/he would otherwise have done. In ordinary terms, there has been Bolam negligence.

The starting point is that any patient in a hospital is owed a duty of care. The issue is the standard of care required. The issue of the experience of the clinician in relation to the standard of care to be expected in his or her given role has occupied the Courts for many years. In Wilsher v Essex Health Authority [1987] Q.B. 730, it was held that the length of experience of the clinician was not relevant, and the duty of care related not to the individual but to the post they occupied. A houseman had failed to reach this standard by failing to notice a patient’s spitting and pooling of saliva, in simply accepting what the patient’s representative said and failing to obtain a proper case history, thereby failing to elicit details of a difficulty in swallowing which would reasonably have required him to detain the patient pending examination by an ENT specialist. It was probable that such further investigation would have revealed the condition and that treatment at that stage would have avoided brain damage.

In FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334, the Court of Appeal overturned Mr Justice Jay’s decision that only a senior doctor would have had the expertise to apprehend the claimant’s developing problem. At paragraphs 59-60, Jackson LJ noted:

“59. In Wilsher v Essex AHA [1987] 1 QB 730 the Court of Appeal for the first time gave detailed consideration to the standard of care required of a junior doctor. (This issue did not arise in the subsequent appeal to the House of Lords). The majority of the court held that a hospital doctor should be judged by the standard of skill and care appropriate to the post which he or she was fulfilling, for example the post of junior houseman in a specialised unit. That involves leaving out of account the particular experience of the doctor or their length of service. This analysis works in the context of a hospital, where there is a clear hierarchy with consultants at the top, then registrars and below them various levels of junior doctors. Whether doctors are performing their normal role or ‘acting up’, they are judged by reference to the post which they are fulfilling at the material time. The health authority or health trust is liable if the doctor whom it puts into a particular position does not possess (and therefore does not exercise) the requisite degree of skill for the task in hand.

60. Thus in professional negligence, as in the general law of negligence, the standard of care which the law requires is an imperfect compromise. It achieves a balance between the interests of society and fairness to the individual practitioner.”

That view was reiterated in the context of the facts of the case at paragraph 63: “The conduct of Dr Rushd in the present case must be judged by the standard of a reasonably competent SHO in an accident and emergency department. The fact that Dr Rushd was aged 25 and “relatively inexperienced” (witness statement paragraph 5) does not diminish the required standard of skill and care. On the other hand, the fact that she had spent six months in a paediatric department does not elevate the required standard. Other SHOs in A&E departments will have different backgrounds and experience, but they are all judged by the same standard.”

The law thus requires a standard no higher, and no lower, than a reasonably competent healthcare professional of the role which is being fulfilled.

The “triple lock”

Having considered the existing formulation of the standard of care in clinical negligence cases, we will turn to consider how the law allows for variations in the standard of care, as well as other protections, which we suggest would apply to the current emergency circumstances.

(1) The “rescuer principle”

The “rescuer principle” is a term that we use to indicate modifications to the standard of care which arise from the fact that currently redeployed NHS healthcare professionals are acting for the public good in the face of an emergency. In essence, this principle allows for a relaxation of the standard of care where individuals are working in an unprecedented emergency; its purpose being to prevent a fear of liability acting as a brake on such activity.

The legal source of this principle is the Social Action, Responsibility and Heroism Act 2015. Section 1 of the Act states that it applies “when a court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care”. Sections 2-4 detail matters which the court must have regard to, relating to the circumstances of the alleged breach of duty: whether it occurred when the person was acting for the benefit of society or any of its members, whether the person demonstrated a predominantly responsible approach towards protecting the safety or other interests of others, and whether that person was acting heroically by intervening in an emergency to assist an individual in danger. It is suggested that all 3 of these criteria are met in the situation of healthcare professionals redeployed during the COVID-19 crisis; it is difficult to contemplate how this Act would not apply to the current circumstances.

Assistance can also be drawn from section 1 of the Compensation Act 2006, which provides that, when considering breach of duty, the court may have regard to whether the steps that should have been taken by the defendant to meet a standard of care might either prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or discourage persons from undertaking functions in connection with a desirable activity. Whilst this does not strictly apply to the current circumstances, in that healthcare professionals clearly do not fail to carry out desirable activities in respect of treating patients, it does give a clear indication that the standard of care has limits. It suggests that in certain cases, the rights of individuals to be compensated for their loss is trumped by the necessity of defendants not being deterred from carrying out important activities. It is submitted that again, this is applicable to the situation at hand.

This principle has also appeared in case law, for example in Marshall v Osmond [1982] Q.B. 857, which involved a police officer whose driving caused injury to a passenger of a vehicle he was pursuing. In the first instance decision in this case, it was held that the defendant’s “actions must not be judged by standards which would be applicable if the situation were such that the officer had time to consider all possible alternative courses of action that he could have taken to discharge his duty successfully“. The Court of Appeal ([1983] Q.B. 1034) upheld the first instance decision, finding that there had been an error of judgment, but considering that there was not negligence. Sir John Donaldson M.R. referred to the circumstances of the collision, including that the officer was working in stressful circumstances. Therefore, it is suggested that, as per the case of Marshall, in the hypothetical scenario of the psychiatrist incorrectly triaging a patient, this is more likely to be seen as a mere error of judgment.

(2) Modified standard of care in relation to COVID-19 wards

Looking at the case of Wilsher v Essex Health Authority, arguably the principle of healthcare professionals being “judged by reference to the post which they are fulfilling at the material time” may acquire a particular definition in relation to the treatment of COVID-19 patients.

COVID-19 wards are new entities, and are necessarily staffed by practitioners from  different original specialisms. Whilst these wards may have started as respiratory wards, in the circumstances of the pandemic, particular experience or specialism is not required in order to work there. These wards have been in existence only a matter of weeks, and therefore, understandably, do not have the same reservoir of expertise which would be relevant to the standard of care in say, a specialist oncology ward. Further, whilst the standard of care to be expected would be influenced by accepted practice or treatment policy in the area, it is clear that there is much disagreement within the scientific community regarding this new virus. Therefore, in legal terms, the standard of care is likely to differ for a COVID-19 ward when compared to another specialist ward, and, in practical terms, it may well be a challenge for anyone to acquire expert evidence which expresses best practice with any certainty (there would very likely be a wide range of divergent views).

Likewise, in non-COVID wards, we suggest that comment in any expert evidence is very likely to take into account the prevailing situation. It is expected that added consideration would be given to issues about time pressures, the numbers of staff, and the increased measures needing to be taken to avoid the spread of coronavirus, for example the use of personal protective equipment (PPE).

(3) “Act of God”/Novus Actus Interveniens

Finally, there is “Act of God”, a branch of force majeure – a largely, but not entirely, contractual principle, which may alternatively viewed as a novus actus interveniens. An “Act of God” must be wholly the consequence of natural causes, be of an extraordinary nature, and be such that it would not be anticipated or provided against by the party seeking to rely on it [2]. In the law of tort, “Act of God” has been used in, for example, Ryan v Youngs [1938] 1 All ER 522, in which a lorry driver, an apparently healthy man and a competent driver, died at the wheel, the lorry then ploughing on and injuring the claimant. As to the scale of the challenge represented, it must be unprecedented or extraordinary: see Nichols v Marsland (1876) 2 Ex D1, which involved an extraordinary flood. This country has not experienced anything like COVID-19 for the last hundred years. That leaves the third hurdle that the “Act of God” could not have been provided for. In Nichols v Marsland, it was held that, although protective measures would have been capable of affording protection, the defendant could not reasonably be asked to prepare against the unprecedented. However, in respect of a hospital trust, COVID-19 may well fit within “Act of God”, whether directly or in informing the standard of the duty of care to be applied. We do acknowledge that, given a repetition of COVID-19, this argument might well crumble.

Breach of duty

None of these three principles excludes there being a duty of care. It is possible that, even within the context of COVID-19, there may still be a handful of instances of breach of duty, which, even on the most generous interpretation, would be indefensible to any right-minded person.

We also bear in mind that cases may include outcomes from a basic failure to provide for PPE, although this is unlikely to be the fault of any individual practitioner.

Modification to the test

So, to returning to our earlier example, the test becomes one of what one might expect of a psychiatrist redeployed to A&E, acting under force majeure or as a rescuer. Understandably, there would be very, very generous latitude. We would suggest that a court would have little difficulty in the vast majority of cases finding perhaps error of judgment, but not breach of duty, especially on new COVID-19 wards.  

It is also worthwhile taking a more nuanced example, one where on the face of FB v Princess Alexandra Hospital, liability is harder to avoid. Let us assume, for example, two ST3 doctors are covering a busy A & E ward with no available A&E consultant and a 33% staffing-level because of COVID-19, one of whom makes a similar error to that made in FB v  Princess Alexandra Hospital due to time pressure and evident fatigue. Let us further assume that the hospital is not guilty of any failure of resource management.  The same principles can be applied. We would suggest that, on these facts, the claim would be unlikely to succeed.

Summary

We are suggesting that in the “rescuer principle”, modification to the standard of care for COVID-19 wards, and force majeure/”Act of God”, there is a “triple lock” of established principles that should largely reduce the burden on the health services arising from clinical negligence claims in the present emergency context. The key to use of existing principles, in a way that is almost Caparo v Dickman from the other end of the telescope, is that we are in abnormal circumstances.

The “triple lock” of tests avoids the complete abrogation of standard of care – there may well be the occasional cases where something really has gone terribly and very avoidably wrong. Additionally, it would not, on public policy grounds, seem particularly sensible to abandon all standards.

Doctors, nurses and other healthcare professionals are facing enough uncertainty in these challenging times, without the fear of their actions being unfairly judged in the future. Hopefully, some comfort can be gained from the notion that the current law provides them with these protections.


[1] Very broadly, section 11, Coronavirus Act 2020 provides for indemnification not only for those not already beneficiaries of an NHS indemnity who are dealing with a coronavirus patient/suspected coronavirus patient, but also those providing cover.

[2] Charlesworth & Percy on Negligence, 14th Edition, at 14-36

NKX (By his mother and litigation friend NMK) -v- Barts Health NHS Trust [2020] EWHC 828 (QB)

In this blog post, Helen Waller of 12KBW discusses the case of NKX (By his mother and litigation friend NMK) -v- Barts Health NHS Trust [2020] EWHC 828 (QB), regarding brain damage at birth due to clinical negligence. Although it is a case largely based on its own facts, it is nonetheless an example of careful judicial analysis of complex and detailed expert evidence. It demonstrates the importance of the parties and the court having a full understanding of the medical issues in order to properly address both breach and causation.

Background

This case concerned an expectant mother who, having given birth by caesarean section to her first child, was advised to and intended to have a natural birth for a second child (vaginal birth after caesarean section, “VBAC”). During labour, she developed a uterine rupture along the caesarean scar. As a result of this, her baby, the Claimant, suffered acute profound hypoxia resulting in permanent, significant brain damage, which left him with cerebral palsy, microcephaly, and cognitive impairment.

The case pivoted on the monitoring of the foetus during labour. The two options were continuous foetal monitoring (“CFM”) or monitoring by intermittent auscultation (“IA”). In accordance with the mother’s birth plan, delivery was to take place in a birthing centre, where, on the day, CFM was not an option and so IA was undertaken. The Claimant’s case was that CFM would have detected foetal heart rate abnormalities earlier and that, as a consequence, the uterine rupture would have been detected and delivery achieved sooner, thus avoiding some of the hypoxia and resultant brain damage. The Claimant’s secondary case was that IA should have been performed more frequently from the point at which his mother was known or assumed to be in the second stage of labour, which would have again resulted in earlier detection of the uterine rupture.

The Claimant alleged that the Defendant’s midwifery staff had not taken reasonable steps, either in advance of or during labour, to inform her that monitoring by IA rather than CFM would risk slower detection of a uterine rupture putting the baby at greater risk of sustaining permanent brain damage. Both factual and medical causation were in issue.

Expert evidence was provided orally in the fields of midwifery, obstetrics, neonatology and paediatric neonatology. There was, additionally, written neuroradiology evidence, which was essentially agreed.

The Law

The legal position was uncontroversial. The parties were agreed that Montgomery v Lanarkshire Health Board [2015] UKSC 1 makes clear that medical professionals owe a duty to take reasonable care to ensure that a patient is informed of any material risks and that a patient has understood what they have been told. Further, Bolam v Friern Hospital Management Committee [1957] gave the standard of reasonable care in this case as being that of a midwife of ordinary skill and care.

The Judgment

The matter was heard by Simeon Maskrey QC sitting as a Deputy High Court Judge for a determination on liability alone.

He gave judgment for the Claimant “on the basis that but for the breaches of duty that occurred …  he would have sustained mild rather than severe brain damage and thus mild rather than severe neurodisability” [123]. The parties were agreed as to what constituted mild as opposed to severe neurodisability and so no definition of those terms by the Court was necessary.

Antenatal Counselling

No breaches were found in respect of the antenatal counselling.

It was accepted that VBAC is considered to be high risk, because there is a small but real risk of a uterine rupture through the caesarean scar during labour. The Claimant’s mother had expressed an interest in having a water birth at the midwifery-led birthing centre. It was found that she had not been led to believe that this was a higher risk option, nor was she discouraged from it. Rather, she was led to understand that her birth plan would be subject to review upon her admission when she went into labour. This was relevant because it was possible – as indeed eventuated – that CFM would not be available on the day in the birthing centre, leaving only IA monitoring.

The midwife who had summarised the Claimant’s mother’s birth plan in writing had briefly noted “aware of RCOG guideline” in respect of monitoring. The midwife had in fact changed her notation practice since the index birth incident as a result of this case. Nonetheless, the Judge did not find that her approach at the time fell below a reasonable standard. He found, on the evidence, that the absence of specific reference to the risks and consequences of IA did not cause him “to doubt that the risks and consequences were discussed” (at [34(viii)]). It was found that the mother was aware of the risk of scar rupture and appreciated that there would be close monitoring of that.

Care and Counselling During Labour

The Defendant was found to be in breach of duty on this issue.

The Judge found that the Claimant’s mother was not wedded to a water birth; however, the triage and delivery suite were so busy at the relevant time that the midwives on shift “did not have the time or the incentive to discuss with the Claimant’s mother her birth plan and … they did not do so” (at [57]). The mother was not, therefore, given the chance to review or reconsider her birth plan.

Given the agreement between the midwifery experts that the birth plan required reconsideration when the mother went into labour, the Judge concluded that there was a breach of duty at that stage. He found that, with further counselling and a re-assessment of the risks, there was a very real possibility that the Claimant’s mother would have changed her mind on a water birth and IA given how busy the maternity unit was, and that there had been no assessment as to whether the relevant midwife was capable of managing a VBAC labour with IA (see [74]-[75]).

Management of Labour

The Defendant was also found to be in breach of duty in respect of the management of the index labour.

It was the Claimant’s case that his mother had entered the second stage of labour at 00:20 on the relevant day and that, thereafter, IA should have been carried out every 5 minutes. IA was in fact carried out every 15 – 20 minutes. The Judge found that the midwifery staff “should have either confirmed that the Claimant’s mother was in the second stage of labour before she entered the birthing pool or should have made that assumption and performed IA every 5 minutes thereafter” (at [79]). He found as a fact that, on the balance of probabilities, the Claimant’s mother was in the second stage of labour from 00:35.

The Judge further found that the Claimant’s mother was in continuous pain at or around 01:00. He held that it was a breach of duty not to have recognised that this was a sign of uterine rupture and called for obstetric assistance (at [82]).

The Decision Making

The Judge held the following counter-factual of what, on balance, would have occurred had the breaches not taken place [88]:

I thus find that there should have been a re-statement of the risks to the Claimant’s parents on admission on the 23rd May; that they should have been told that Midwife Havire recommended CFM and why; that they should have been told that this was particularly the case because the unit was very busy and that there was no-one available who had the experience of caring for a VBAC mother without CFM; and that if given this information in these terms they would probably have decided to accept CFM. Accordingly, I find that in such circumstances there would probably have been continuous CTG monitoring.”

The Judge held that if there had been a vaginal examination at 00:45, as he found there should have been, it would have been appreciated that the Claimant’s mother was in the second stage of labour. Therefore, if he was wrong on his previous findings, there should instead have been IA monitoring every 5 minutes from 00:45.

The Judge then turned to consider whether continuous CTG monitoring, or IA every 5 minutes from 00:45 would, on the balance of probabilities, have resulted in the abnormal foetal heart rate being appreciated before 01:15 (when it in fact was). He then had to decide what the probable consequences of that would have been. This involved a careful consideration of conflicting expert obstetric evidence as to the nature, timing and duration of foetal heart rate abnormalities.

The Judge held that the uterine rupture probably occurred between 00:45 and 01:00, which would explain why the IAs were normal before 00:45 and why the Claimant’s mother came to be in continuous pain consequent upon the rupture by about 01:00. Although there was a normal IA recorded at 01:00, the Judge found that, despite that recording, there was in fact an atypical deceleration of foetal heartrate that was not detected. However, he held that it was not necessary to determine whether that failure in detection was itself a breach (at [101]). Accordingly, he found that, if the Claimant’s mother had been subject to CFM, it would have been apparent by 01:00 that there was a potential obstetric emergency, for which all reasonably competent midwives would have sought emergency assistance (at [103]).

The Judge did not criticise the reaction of obstetric staff that in fact took place at 01:15, and it was found that the same reaction would have taken place at 01:00, had the assistance been sought. He found that, with CFM, delivery would have been achieved at 01:31 and resuscitation by or about 01:32, and, with IA every 5 minutes, delivery would have been achieved at 01:36 and resuscitation by or about 01:37.

Causation

The Judge found that the Claimant would have sustained mild, rather than severe brain damage, if delivery and resuscitation had taken place by 01:32.

The Claimant’s experts, Dr Dear, expert neonatologist, and Dr Thomas, expert paediatric neurologist, were of the opinion that the Claimant had sustained 25 minutes of acute, profound hypoxia, following the method in the Myers at al paper (1971). Accordingly, they concluded that if delivery and resuscitation had occurred before 01:34, the Claimant would have avoided all permanent brain damage.

Dr Emmerson, expert neonatologist, and Dr Smith, paediatric neurologist, both for the Defendant, rejected that model. They opined that the Claimant sustained 35 minutes of acute, profound hypoxia, postulating that there must have been some oxygenation of the brain after 01:14 and therefore the Myers model could only be applied with an extension. Following this approach, they said that the Claimant needed to have been delivered by 01:28 to avoid all damage.

The Judge undertook a close and careful analysis of the competing opinions at [107] to [122]. On his analysis of the facts, the Judge preferred the extended Myers model, finding that the continuation of some oxygenation meant that the period before which foetal reserves were exhausted was extended (at [120]). He concluded [at 122]:

It follows that if the bradycardia commenced at 01.14 hours damage would have started to occur at 01.28 hours. Mild damage would have resulted until 01.35 hours when it would have become moderate. On the basis of my finding that delivery and resuscitation should have taken place by 01.32 hours the Claimant would still have sustained brain damage but it would have been mild, rather than severe as is now the case.”

Comment

This was a technically involved case necessitating a close analysis of the facts and competing expert evidence. It is another reminder of the value of the legal team being on top of the fields of expertise and taking the time to get to grips with the literature upon which the experts relied. When medical causation pivots on action or inaction over just minutes and seconds, the expert and legal arguments are likely to be equally finely balanced.

Falling outside the principles of “pure diagnosis” cases: Brady v Southend University Hospitals NHS Foundation Trust [2020] EWHC 158 (QB)

In this post, Henry King of 12KBW examines the limited application of so-called “pure diagnosis” cases in the context of a case where failure to diagnose a patient’s abdominal mass as an actinomycosis infection was found to be non-negligent on traditional Bolam / Bolitho principles.

The cases of Bolam v Friern Hospital Management Committee [1957] 1 W.L.R 582 and Bolitho v City and Hackney Health Authority [1997] UKHL 46 concerned treatment and whether the doctor has acted within a reasonable, respectable and responsible range of medical opinion. As such, there is room for a genuine difference of opinion. There are, however, cases in (say) radiology or histology where a diagnosis is likely right or wrong. This is termed a “pure diagnosis” case. 

Brady v Southend University Hospitals NHS Foundation Trust [2020] EWHC 158 (QB)  was a case where the alleged negligence was a failure to perform a biopsy to confirm a specific diagnosis given that, on the Claimant’s case, there were a range of diagnoses. As such, Andrew Lewis QC found that consideration of the claim as a “pure diagnosis” case was of limited effect, preferring to categorise it as follows:

  • First, to find as a fact what the correct diagnosis at the time was likely to have been;
  • Second, and despite any confliction with the Court’s finding, whether the treating team’s assessments were negligent or not in accordance with the principles of Bolam, Bolitho, and Penney v East Kent HA [2000] Lloyds Rep Med 41,. 

The Facts and the Parties’ Respective Cases

The Claimant presented to her GP and then to the Defendant’s trust complaining of central abdominal pain and in the upper left quadrant following an appendectomy that had taken place some months previous. 

The First Scan

On 05.08.13, The Claimant underwent a CT scan (“the First Scan”). Dr Tam reported a mass in the upper right quadrant consistent with an omental infarction. Given the Claimant’s recent appendectomy, this made the diagnosis of omental infarction “most likely”. This diagnosis was accepted and the Claimant was therefore discharged. 

The Claimant’s case was that this should have been diagnosed either as a malignancy or an infective process and that these matters should not have been ruled out. The Defendant’s case was that this was a reasonable diagnosis in all the circumstances. 

The Second Scan / Failure to Biopsy

On 20.09.13, following two presentations to outpatients, a second CT scan was performed (“the Second Scan”). It was agreed that this scan showed that the mass had “grown considerably”. The treating radiologist was uncertain as to the diagnosis but kept open the options of omental infarction, malignancy and infection. The treating team recommended further urgent evaluation. In evidence, the treating doctor stated that she would have recommended surgery or a biopsy in discussion with her superior, but that the diagnosis was uncertain. On the basis of the uncertainty, a secondary specialist opinion was obtained from a tertiary care unit. 

On 25.09.13, the specialist stated that it looked like an omental infarction and therefore urgent gastroscopy was not required. 

Again, the Claimant’s case was that this was not an omental infarction and should have been diagnosed as a malignancy or infective process, whilst the Defendant’s case was that the course of action taken was reasonable and in line with Royal College of Radiologists (“RCR”) best practice. 

Issues for the Court to Decide

The Judge found there to be five issues to be resolved:

  • Was the First Scan reported in a reasonable manner?
  • If the First Scan was incorrectly reported, had it been correctly reported – would this have lead to a biopsy? 
  • Was the Second Scan reported in a reasonable manner? 
  • Was it mandatory to perform a biopsy in September 2013 to investigate the mass?
  • Would said biopsy have confirmed actinomycosis? 

The Judge’s Application

In respect of the first scan, whilst the diagnosis was wrong, it was not negligent. This is because it accorded with a myriad of other factors (see [36]) and RCR guidance. As such, it was reasonable in all the circumstances. Further, the judge concluded that had a malignancy or infection been reported, a biopsy was unlikely to have been taken at that stage (at [44]).

In respect of the second scan, the treating team recommended “further urgent evaluation” in line with RCR guidance. Thus, and despite being labelled at “sub-optimal” in the joint statement between the radiological experts, Andrew Lewis QC did not find that this was negligent, and indeed pointed to what the Claimant wanted, further differential diagnoses. At this point, the treating team did not biopsy and the judge found this to be in accordance with a reasonable body of medical opinion. Whilst the Claimant’s expert in this matter gave “refreshingly honest” evidence that a surgeon who is uncertain of a diagnosis should biopsy, this was rejected by the Court. This was on the basis that a biopsy is an invasive procedure with extremely rare but potentially catastrophic complications and seeking a second opinion when in doubt of a diagnosis is a reasonable course of action. 

Analysis

This was a case that largely turned on a mixed question of law and fact, given that the judge held that it was a partial pure diagnosis case. 

Had this been a pure diagnosis case (and indeed should the pure diagnosis dictum be applicable) this is a case in which breach and causation would likely have been established on the Judge’s findings of fact. However, the Claimant encountered stumbling blocks in that two of her experts were not preferred, and the current law adopts a Bolam / Bolitho approach to this kind of case. As such, whilst it was expressly held as a fact that an earlier diagnosis and biopsy would have made all the difference, on the law as it stands this was not negligent. 

Of note is the judge’s extensive quotation from the dictum of Kerr J in Muller v Kings College Hospitals NHS Foundation Trust [2017] EWHC 218 cited at paras [26]. The judge neither endorsed nor disavowed Kerr J’s reservations in Muller, yet set them out at length. As such, this takes practitioners no further forwards in respect of pure diagnosis cases, save to serve as a warning that such cases may well be characterised entirely otherwise by the Court. 

ABC v St George’s Healthcare NHS Trust & Ors [2020] EWHC 455 (QB)   Does a doctor owe a duty of care to disclose a hereditary disease to a patient’s child?

In this post Helen Waller of 12KBW discusses Mrs Justice Yip’s dismissal of a claim that sought to establish that a doctor owed a duty of care to disclose a patient’s hereditary disease to his child.

An earlier appeal of a strike out application in this tragic case has already been reported on by Rachit Buch of 12KBW. That report can be found here:

The Factual Background

In brief summary of the facts, the father, XX, had killed the claimant’s mother in 2007, for which he was made subject of a restricted Hospital Order pursuant to the Mental Health Act 1983 following a conviction for manslaughter by reason of diminished responsibility. It transpired that XX had Huntington’s disease, a hereditary choreic syndrome. XX made it clear that he did not want the claimant and her sister to know. This remained true when XX learnt that the claimant was pregnant. XX knew that his status meant that the claimant might have Huntington’s disease and her unborn child also. He was aware that this might influence her decision about whether to continue with the pregnancy. Continue reading “ABC v St George’s Healthcare NHS Trust & Ors [2020] EWHC 455 (QB)   Does a doctor owe a duty of care to disclose a hereditary disease to a patient’s child?”

Causation in hypothetical scenarios: the interplay between Bolitho, Bolam & Montgomery

In this post, Christopher Fleming of 12KBW discusses the recent decision in Metcalf v Royal Devon and Exeter NHS Foundation Trust [2019] EWHC 3549 (QB).

The case concerned a hypothetical situation that would have existed had the Claimant been referred for necessary investigations sooner. The test to be applied was set out by Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority [1997] UKHL 46. The two-stage test, as applied to this case, was:

(a) what would the treating clinicians have done had the breach of duty not occurred? And

(b) if the treating clinicians had not discussed with the Claimant the option of surgery or radical radiotherapy, would that have been negligent?

The Court held that the Bolam test has no relevance to the first of those questions but was relevant to the second question, however, it should now be considered by reference to the decision in Montgomery v Lanarkshire Health Board [2015] UKSC 11.

Continue reading “Causation in hypothetical scenarios: the interplay between Bolitho, Bolam & Montgomery”

The difficulty in establishing negligence when an unrecognised complication arises: Collyer v Mid Essex Hospitals NHS Trust [2019] EWHC 3577 (QB)

In this post Charley Turton of 12KBW discusses the recent decision of HHJ Coe QC (sitting as a High Court Judge) in Collyer v Mid Essex Hospitals NHS Trust [2019] EWHC 3577 (QB). The Claimant suffered permanent nerve palsy of the hypoglossal nerves during laryngectomy. In 145 years of the operation being conducted such an injury had never been reported. C argued that in these circumstances human error was the most likely cause and a “presumption of negligence” arose.

Continue reading “The difficulty in establishing negligence when an unrecognised complication arises: Collyer v Mid Essex Hospitals NHS Trust [2019] EWHC 3577 (QB)”

“But for” vs Material Contribution and the burden of proof – Andrews v Greater Glasgow Health Board [2019] CSOH 31

In this post Vanessa Cashman of 12KBW examines the recent decision of Lord Pentland [siting in the Outer House of the Scottish Court of Session] in Andrews v Greater Glasgow Health Board [2019] CSOH 31.

Summary

The deceased attended hospital with vomiting and diarrhoea, both black in colour and was discharged with a diagnosis of gastroenteritis. She was taken back to hospital the following day where extensive necrosis of her bowel was discovered. She died the next day.

Breach of duty, principally in relation to whether she should have been admitted on her initial attendance, and causation were in issue. D’s case on causation was that C couldn’t prove when her acute deterioration occurred and therefore couldn’t prove that admission would have prevented her death.

The Court considered the relevant test for causation and considered that both “but for” causation and the material contribution test were satisfied.

Continue reading ““But for” vs Material Contribution and the burden of proof – Andrews v Greater Glasgow Health Board [2019] CSOH 31”

Fact-finding in consent cases and confirmation, no free-standing claim for damages arising from a failure to warn: Lucy Diamond v Royal Devon & Exeter NHS Foundation Trust [2019] EWCA Civ 585

This blog is by Helen Waller and John-Paul Swoboda of 12 KBW

The Court of Appeal held that there was no free-standing claim for damages arising from a failure to warn of risks associated with a procedure that, on the facts, the Claimant would have undergone in any event.

The facts giving rise to this appeal were that the Claimant had had an abdominal hernia repaired using surgical mesh, which was then liable to affect future pregnancies. She was not advised of the possible alternative of a suture repair.

At first instance HHJ Freedman, sitting as a High Court Judge, held that the Claimant was entitled to damages in respect of a two-month delay in identifying and treating her hernia. The Judge also concluded that the operating surgeon had not provided appropriate information for the purpose of informed consent, but that there was no causation such as to give rise to an action for damages. This was so since, on the facts as held, had the Claimant been so informed then she would have chosen to proceed with the same mesh repair which in fact took place. The evidence before the Court was that the operating surgeon’s view was that a suture repair would be liable to fail, with a very high recurrence risk of the hernia and that the vast majority of surgeons would elect to repair the Claimant’s hernia with a mesh.

There are two points of particular interest. Firstly, the Court of Appeal’s approval of the trial judge’s approach to factual causation, which involved a consideration of the rationality of the decision about treatment. Secondly, the reiteration that the line of case law stemming from Montgomery v Lanarkshire Health Board [2015] 2 WLR 162 and Chester v Afshar [2005] 1 AC 134 does not give rise to a free-standing claim for damages arising from a failure to obtain fully informed consent without more.

The trial judge, in considering what the Claimant would have chosen to do had she been properly informed, considered the rationality of each possible decision: opting for the mesh repair or a suture repair. He found that to opt for the suture repair would have been irrational and that the Claimant herself was not a person who would act irrationally ([2017] EWHC 1495 (QB) at [49]). This was so even though at trial the Claimant gave evidence that she would have chosen the suture repair. In the Judge’s view, this evidence was coloured by her being (possibly erroneously) told in the interim period by another medical professional that it would be inadvisable for her to become pregnant because of the mesh (at [46]). Lady Justice Davies, giving the judgment on appeal, held at [22] that,

The judge met the requirement set out in Montgomery in that he took account of the reasonable person in the patient’s position but also gave weight to the characteristics of the appellant herself. He did not apply a single test of “rationality” without more to the issue of causation. No valid criticism of the judge’s approach, still less his assessment of the factual evidence can be made.

The Appellant abandoned her challenge to the Judge’s finding that there is no free-standing right to claim for damages to compensate her for an invasion of her right to personal autonomy or choice but did contend a right to damages on the basis that her shock distress and consequent depression was “intimately connected” to the failure to obtain informed consent. The Court of Appeal set out the relevant case law reiterating that the “but for” test still applies to causation in consent cases (at [15]) but also reiterated that this is not usually sufficient as it is also normally necessary to show that the breach was an effective cause (which is to say a cause whereby the claimant would have altered the risk s/he exposed themselves to): cf Duce v Wostershire Acute Hospital NHS Trust [2018] EWCA Civ 1307. In this case the appellant did not cross the first hurdle in showing that but for the breach the injury would not have occurred as she would nevertheless have undergone the surgery. Further if the appellant wanted to fit themselves into the exception in Chester v Afshar [2005] 1 AC 134 they would have needed to show a) that the breach was a ‘but for’ cause (on a probabilistic analysis) and b) that the operation would have been deferred had there been full disclosure of risk. In this case there was no evidence the appellant would have deferred the operation on full disclosure of risk but rather that the Claimant would have proceeded with the operation. The appellant’s argument that it was sufficient to show that injury was intimately connected with failure to fully disclose the risks was dismissed as being ‘without merit’.

This is, therefore, a helpful decision confirming the ability of first instance judges to take a logical and pragmatic approach to questions of fact, even when that goes against what a party is subjectively telling the court at trial and in providing clarity around the contours of causation in cases where there has been a failure to provide full disclosure of risk and/or alternative treatments.

Early Chemo-prophylaxis in Neurosurgery and The Battle of The Experts: Lesforis v Tolias

In this post Daniel Sokol of 12KBW examines the recent decision of the Court of Appeal in YVONNE LESFORIS v CHRISTOS TOLIAS [2019] EWCA Civ 487.

In May 2018, Mr Justice Spencer found that Mr Christos Tolias, a consultant neurosurgeon, had been negligent in giving his patient heparin too early following spinal surgery. This led to the patient suffering a haematoma which, in turn, compressed the spinal cord and resulted in incomplete paraplegia.

Mr Tolias obtained permission to appeal on a single ground: that the judge failed to address the key question, namely whether giving antithrombotic medication to this particular patient within 3 hours of surgery was a breach of duty.

The appeal was dismissed.

Continue reading “Early Chemo-prophylaxis in Neurosurgery and The Battle of The Experts: Lesforis v Tolias”