Clinical negligence update

In Chantelle Pringle v Nestor Prime Care Services Ltd [2014] EWHC 1308 (QB), the claimant, P, aged two, became unwell with a high temperature, vomiting and some other symptoms. Her mother telephoned her GP shortly after midnight and was passed on to the defendant ‘out of hours’ service, N. P’s mother spoke for 15 minutes to a triage nurse at N, who assessed P as being “lethargic” but advised that it was likely to be an upper respiratory tract infection. He did not arrange for either a home visit or admission to hospital.

P remained unwell overnight and, by the next morning, a non-blanching rash had appeared on her body and she was admitted to hospital at 11.10am. Unfortunately, despite the best efforts
of the hospital, P developed gangrene in both
feet and had to have bilateral amputations.

The High Court held that the triage nurse at
N, having assessed P as lethargic, should have admitted her to hospital. It had already been admitted that he should have arranged a home visit by a GP and that, if he had, the GP would
have arranged admission to hospital.

The court further held that, if P had been admitted to hospital between 1/1.30am and
4am, a differential diagnosis of possible bacterial sepsis would have been made because of the presence of a fever, tachycardia, poor perfusion and an impaired conscious state. Treatment with intravenous fluids and antibiotics would have been started by 4am at the latest and gangrene and the consequential amputations would have been avoided, but not the hospitalisation or
the scarring.

Although the judge found for P on her primary case on causation, he also accepted that, even
if he had not, he would have found for her on the secondary causation case following Bailey v Ministry of Defence [2009] 1 WLR 1052. Medical science was not able to determine the crucial time by when treatment would have been effective but the delay had materially contributed more than negligibly to the gangrene and amputation.

Secondary arguments

In Julia Coakley v Dr Henrietta Rosie [2014] EWHC 1790 (QB), the High Court also considered a case of bacterial meningitis. C, aged 42, had presented to her GP with headache, lethargy, loss of appetite, “pressure in her head” and a dark pink, non-itchy, non-blanching rash on her arms, hands and midriff. It was agreed that C had raised the issue of meningitis with R, the defendant GP, at this consultation.

R recorded that C complained of an itchy rash and had developed “urticarial patches” on her skin, diagnosed a respiratory tract infection and did not instigate any treatment.

However, C went home and shortly thereafter lost consciousness; an ambulance attended and administered antibiotics. On admission to hospital, C was diagnosed with meningococcal meningitis and suffered with total loss of sight, damaged hearing and some other minor neurological injuries.

The court accepted C’s factual evidence and considered that R must have misinterpreted the skin signs as no itchy rash is associated with meningitis. The rash must have been a meningococcal rash (a petechial/purpuric rash) such that R had negligently failed to correctly identify it. R had also negligently failed to examine for neck stiffness and suspect, diagnose or exclude then consequently treat for bacterial meningitis.

On causation, C’s primary case was that, “but for” the negligence, she would have avoided all of her injuries. Her secondary case sought to rely on Bailey and referred the court to the case of Pringle. The court held that C was in the early stages of meningitis when she saw R such that, had she been treated, she would have avoided any injury.

However, the judge also concluded that, even if C had not succeeded on the “but for” test, she would have succeeded in establishing that the delay materially contributed to the injuries, applying Bailey.

Terminal illness

In Melissa Cutting v Dr Asim Islam [2014] EWHC 720 (QB), the High Court had to consider whether the defendant GP (A) had been negligent in failing to diagnose rectal cancer in 2005. G had attended a consultation with A complaining of rectal bleeding in 2005. A diagnosed haemorrhoids and prescribed suppositories and cream. However, G continued to bleed despite treatment and returned about two years later in 2007. A treated
G for constipation with lactulose.

G saw A for a third time about two weeks later. On this occasion, A referred G to a colorectal surgeon, who, after prompt investigation, diagnosed terminal rectal cancer with liver metastases.

The court considered that A had initially appropriately performed a digital rectal examination and it had been reasonable for him
to diagnose haemorrhoids but that they had negligently failed to advise G to return if the symptoms had not resolved with treatment.

If this advice had been given, referral to a surgeon and diagnosis would have occurred about two years earlier. However, even with
earlier treatment, the court concluded that G would still have had micrometastases, which would not have been cured by adjuvant chemotherapy, such that he would have
lived only for an additional four months.

Wait and see

The High Court in Michael v The Royal Free Hampstead NHS Trust (LTL 13/5/2014) had to consider whether a surgeon’s post-operative “wait-and-see” policy had been negligent. The claimant, M, had undergone a cholecystectomy
for gallstones, shortly following which he complained of abdominal pain.

The surgeon (S) considered he might have a perforation and arranged a CT scan, which, however, was inconclusive. M’s condition deteriorated such that he eventually required a laparotomy, which confirmed a perforation. An anastomosis was performed, which subsequently broke down and M required further surgery.

In finding against M, the court held that S had kept a very careful eye on M, had managed him in accordance with accepted published guidelines and, therefore, his “wait-and-see” approach could not be considered to be negligent, even though subsequent surgery had confirmed a perforation.

In any event, on causation, even if S had carried out the laparotomy earlier, he was unlikely to have seen the injury because of the presence of dense adhesions. Additionally, the anastomosis had failed because of a number of factors and there was no evidence of a negligent technique.

Failure to recognise

In Malcolm Atkinson v South Tees Hospitals NHS Foundation Trust [2014] EWHC 1590 (QB), the High Court had to consider whether damage to the claimant’s ulnar digital nerve (UDN) and palmar cutaneous nerve (PCN) during surgeries for Dupuytren’s contracture had been negligent.

The court held that, as a matter of fact based on the subsequent findings of a lack of sweating, a positive recording of neurogenic changes and a positive Tinel test, the UDN had been divided.

However, while dividing the UDN was not negligent per se, it was negligent to fail to recognise the division during surgery and repair
it. Additionally, there was no evidence that the PCN had been divided at subsequent surgery although, if there had been, that, too, would
have been negligent. The claimant, therefore, succeeded in part.

In Ulucesme v Goel (LTL 11/6/2014), the court favoured the evidence of the defendant community GP, G, that a report from Turkey confirming a positive triple test for Down’s syndrome had not been given to him at a consultation with the claimant, U, such that he could not be negligent for failing to diagnose
the condition.

G’s evidence was preferred to U’s evidence on the basis that it was implausible that G had acted in the extremely rude manner alleged by U and, in any event, there was no mention of the report in G’s contemporaneous notes.

Further, U’s assertion that she had attended
with her husband was neither the recollection
of G nor what he had recorded in his notes. The court, therefore, considered on the facts that G had never seen the positive Turkish report and
was not negligent.

Manufacturer misrepresentation

In Kathleen Webster & Ors v Mark Liddington & Ors [2014] EWCA Civ 560 the Court of Appeal had to consider, inter alia, whether clinicians were responsible for statements in a manufacturer’s brochure for a skin rejuvenation treatment,
which they had given to prospective patients without any disclaimer.

The court considered that the extent of a clinician’s responsibility for a manufacturer’s information contained within a brochure was
that which a reasonable person in a prospective patient’s position would (a) understand from the clinician’s words or (b) infer from the clinician’s conduct and all the circumstances.

In the instant cases, and in rejecting the clinicians’ appeal, the court held that a reasonable person standing in the shoes of any of the claimants would conclude on the facts that the clinician was adopting the manufacturer’s brochure’s contents.

The court also rejected the defendants’ appeal against the lower court’s finding that certain sentences in the brochure were misrepresentations. SJ

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