Alarm bells

In William Shortall v Mid Essex Hospital Services NHS Trust [2014], Judge Nicholas Cooke QC had to consider whether two surgeons should have performed a ‘bicycle tyre’ test on the claimant’s bowel to ascertain whether there was a leak from an anastomosis during laparoscopic bowel surgery. The anastomosis leaked and emergency surgery was required some eight days later, resulting in a permanent colostomy and other problems. The judge concluded that the evidence showed that the bicycle tyre test was, at the very least, highly desirable, and that, in 2008, a reasonably competent surgeon would have performed the test.

The fact that there was a small group of surgeons who did not adopt the test did not help the defendant trust, as they could not be regarded as a responsible body of professional opinion. On causation, the judge considered that the most likely cause of the anastomotic leak was a non-negligent defect during the first operation; it was likely that this and the leak would have been discovered had the bicycle tyre test been carried out, it could have been repaired at the time, and the serious consequences could and should have been avoided.

Patient’s consent

The Court of Appeal in Border v Lewisham & Greenwich NHS Trust [2015] EWCA Civ 8 considered the claimant’s (B) appeal against the decision that a patient’s lack of consent to the insertion of a cannula in her arm was not a breach of duty. B attended A&E with a suspected fractured right humerus. The duty senior house officer (SHO) inserted a cannula into her left arm for intravenous access, even though B had told him that she had recently had a left mammectomy and axillary node clearance, and that inserting a cannula into that arm carried the risk of oedema. B subsequently developed an infection at the cannula site, resulting in oedema and permanent disability.

The trial judge had concluded that the SHO had acted in accordance with accepted practice and was not negligent when making a quick and silent decision that the left arm was the only viable cannula site, notwithstanding that he failed to communicate his decision in any detail to B. The appeal court held that, based on the factual evidence preferred by the trial judge, the SHO had inserted the cannula without B’s consent, express or implied. However, the judge had been wrong to regard the issue of consent as unimportant: a finding of absence of consent to the cannula insertion led inexorably to a finding of breach of duty in inserting it, as the duty to obtain a patient’s consent to treatment was a fundamental tenet of medical practice. The Court of Appeal remitted the case to the trial judge to determine whether B would have consented to the cannula insertion, had she been given a fuller explanation of the relative risks.

Reliable evidence

In another appeal court case, Welch v Waterworth [2015] EWCA Civ 11, the Court of Appeal considered an appeal by a defendant surgeon (W) against a decision that he had performed an arterial bypass procedure negligently, resulting in acute and irreversible kidney failure and lifelong dialysis. The judge, relying on W’s own operation notes, concluded that the damage had been caused by W clamping the aorta closed before the blockage was removed rather than placing the clamp over the aorta in an open position, ready to close it once the blockage was removed. W had asserted at trial that it was the latter that had happened, and that his own surgical notes did not accurately describe what he in fact had done. W submitted on appeal that, if he had in fact made the error as concluded by the judge, a number of “alarm bells” would have alerted him to it.

The appeal court held against W on the basis that none of these apparent alarm bells had formed part of W’s own evidence at trial, they had not been raised as an issue for discussion between the experts pre-trial, W had never suggested that such alarm bells would have alerted him even if he had made the error suggested, and the truth of the matter was that he had simply never appreciated the impact of what had occurred in the surgery. The judge was perfectly entitled to rely on evidence which he found to be a reliable pointer to what had in fact occurred.

Inappropriate treatment

Her Honour Judge Rosalind Coe QC had to consider in Hayes v South East Coast Ambulance Service [2015] EWHC 18 (QB) whether an ambulance crew should have appreciated that an asthma attack suffered by a ‘brittle’ asthmatic was life-threatening, requiring specific emergency treatment. As it was, notwithstanding that he could not speak and had difficulty breathing, the crew only gave the patient oxygen and a single dose of salbutamol, shortly after which he collapsed and died from a respiratory arrest. The judge considered that the crew had negligently failed to take basic observations, including respiratory rate, pulse rate, blood pressure, peak-flow rate and oxygen saturation levels; had they carried out these simple steps, the life-threatening state would have been confirmed, requiring the administration of oxygen, salbutamol, ipratropium and adrenaline; had the patient appropriately received this treatment, he would on balance (60 per cent) have survived.

Delayed transfusion

In ST v Maidstone & Tunbridge Wells NHS Trust[2015] EWHC 51 (QB), Mrs Justice Swift considered whether an NHS trust had breached its duty of care to a child (ST), who had congenital haematological conditions including hereditary spherocytosis, by delaying a blood transfusion, failing to administer intravenous fluids promptly and giving a diuretic drug. The defendant trust admitted that there was a near nine-and-a-half hour delay in transfusing ST, and the judge also concluded that there had been a breach of duty in failing to administer fluids during the delay in transfusion, and that it was inappropriate to administer a diuretic once the transfusions were taking place, given that ST was already dehydrated. On causation, ST claimed that the failures resulted in brain injury caused by strokes. However, the judge concluded that ST had in fact suffered strokes due to a focal cerebral arteriopathy resulting from an upper respiratory tract infection, rather than due to any of the breaches of duty, and further that the breaches did not even materially contribute to the arteriopathy, such that the case of Bailey v Ministry of Defence [2008] EWCA Civ 883 did not help ST, whose claim was dismissed.

Excessive dose

In Davies v Countess of Chester Hospital NHS Foundation Trust [2014] EWHC 4294 (QB), Mr Justice Kenneth Parker considered that a hospital registrar had breached the duty of care to a patient (JR)by mistakenly administering a fourfold excessive dose of magnesium, which was intended to treat a persistent ventricular tachycardia following cardioversion, but in fact caused JR to suffer a fatal cardiac arrest. However, the judge held that notwithstanding the breach, JR’s condition had already deteriorated seriously due to the ventricular tachycardia before cardioversion began, and accordingly it was unlikely that he would have survived for any significant time, even if the fatal dose of magnesium had not been administered. The claim was, therefore, dismissed.

Emergency surgery

In Gardner v Northampton General Hospital NHS Trust [2014] EWHC 4217 (QB), Sir David Eady had to determine how a patient (S), who subsequently was discovered to have necrotising fasciitis, should have been treated by a hypothetical competent medical team following her emergency admission to hospital, and whether it was probable that emergency surgery could have been carried out in time to avoid her death. The defendant trust had admitted some breaches of duty but maintained that S would have died even with earlier diagnosis. The judge held that a reasonably competent emergency physician ought to have addressed the possibility of infection at an early stage, and on that basis provided a hypothetical time line for what would have happened: a period of about five to five-and-a-half hours would have elapsed before the diagnosis of necrotising fasciitis would have been made and surgery started, such that on balance S would have survived.

Body of professional opinion

In Davies v University Hospital of North Staffordshire NHS Trust and another [2014] EWHC 4004 (QB), Mr Justice Lewis determined as a preliminary issue that an NHS trust had not been in breach of duty in failing to arrange for a brain scan, on the basis of the expert evidence that the paediatricians had acted in accordance with a responsible body of professional opinion.

Nervous shock

Finally, the High Court emphasised in two “nervous shock” cases that a secondary victim can only recover if they have witnessed a sudden horrific event leading to death or serious injury: in Wild v Southend University Hospital NHS Foundation Trust [2014] EWHC 4053 (QB), a father was not able to recover after witnessing midwives ascertain his baby was stillborn, and in Brock v Northampton General Hospital NHS Trust [2014] EWHC 4244 (QB), parents could not recover for grief following the death of their daughter from a paracetamol overdose, as there had not been psychiatric injury caused by witnessing a traumatic experience akin to an accident. SJ

Dr Jock Mackenzie is a partner and solicitor-advocate at Anthony Gold Solicitors

@AnthonyGoldLaw