Personal injury update

In Joseph Michael Beech (by his litigation friend Joanne Mounsey) v (1) AP Timney (2) AW Paterson [2013] EWHC 2345 (QB), Turner J. had to consider whether the claimant's (B) cerebral haemorrhage had been caused by the defendants' negligence. In essence, B claimed that the first defendant (T), B's general practitioner, should have measured and recorded his high blood pressure (BP) at an early stage such that B would have embarked upon a treatment regime that would have prevented the haemorrhage.

On 21 March 2003, B, aged 35 at the time, attended T's surgery complaining of headaches. T took and recorded B's BP as 110/80, which was marginally lower than normal. He attributed B's headaches to ergonomic factors and recommended postural exercises and analgesia. In May 2003, B attended the second defendant, an oral surgeon, for a wisdom tooth extraction under local anaesthesia; no BP was taken during this procedure.

On 28 October 2003, B returned to T with a number of problems, including headache, haematuria and haematospermia. T did not take B's BP but did refer him to a consultant urologist. However, on 6 November 2003, B suffered with a large left frontal intracerebral haemorrhage. Subsequent investigations revealed a very high BP, left ventricular hypertrophy, a mildly dilated aortic root and grade II changes to B's optic fundi.

Determining reasonable care

The judge considered that the central issues in the case for the court to determine were first, whether the BP reading on 21 March 2003 was taken and recorded by T with reasonable care; and, second, if not, whether a reading that was taken and recorded with reasonable care would have resulted in treatment that would have avoided the stroke.

B asserted at trial that on 21 March 2003 he did have a very high BP of 180/100 but that T, albeit that he had measured it correctly, had recorded it inaccurately as 110/80, a relatively low level, and had failed therefore to act upon the high level. Notwithstanding that the judge considered that such a mistake would be a 'very serious mistake indeed', as a competent GP would be expected to act upon a BP elevated to such a degree, regardless of what they subsequently recorded, B sought to demonstrate that evidence of other legitimate shortcomings by T meant that it was likely that he had made an inaccurate note. B relied in particular on the following:

(i) T had failed to examine B's optic fundi for inadequate reasons, those reasons being because it was too light in the day and he had not dilated B's pupils as it could be uncomfortable;

(ii) T's record-keeping had been poor and inadequate; and,

(iii) T had been confused about the correct hypothetical treatment for B's raised BP.

Assessing practitioners' ability

Notwithstanding B's assertions, the judge concluded that it was inherently unlikely that an experienced GP could be so careless as to fail to respond to a BP reading of 180/100, and then record it as being significantly lower; and, further, that the examples of T's shortcomings were not so egregious as to cast doubt on his ability to take and record a BP measurement.

B additionally asserted that the presence of particular features meant that, on balance, his BP had been elevated on 21 March 2003. However, the judge dismissed the relevance of each feature, having considered the expert and scientific evidence available at trial, concluding that:

(i) headaches were not linked with any degree of confidence to a raised BP;

(ii) neither left ventricular hypertrophy nor the mildly dilated aortic root found subsequent ?to the stroke said anything about B's BP in ?March 2003;

(iii) neither the haematuria nor the haematospermia had any proven link to a raised BP; and,

(iv) Grade II retinopathy was a poor indicator of very high BP and its chronicity.

The judge also concluded that the likely cause of the haemorrhage was an arteriovenous malformation and that a low normal BP in March 2003 was not inconsistent with this diagnosis.

The judge further determined that, even if the BP had been treated, a reduction in the risk of stroke by more than 50 per cent would have taken three to five years, and B, therefore, also failed on causation, applying Gregg v Scott [2005] AC 176.

Issue of timing

In Denise Orwell (Executrix of the Estate of David Orwell, Deceased) v Salford Royal NHS Trust Foundation [2013] EWHC 3245 (QB), Dingemans J. had to consider the issue of timing in a case of compartment syndrome.

The deceased (O), underwent an abdominoperineal (AP) resection for rectal cancer on 18 December 2007, which required that he lie on his back for nine hours, which it was agreed could cause compartment syndrome as a recognised complication. For the syndrome to be treated effectively, intervention would have to occur within eight hours of it developing.

At some point post-operatively, O developed compartment syndrome, although it was not clear exactly when. Several hours after his AP resection on 18 December, O had complained his left leg was numb and sore. On 19 December, a physiotherapist note recorded reduced sensation and power in O's left leg. On 20 December, at 04:00 O complained of pain, redness and swelling in his left leg, relieved by removal of his thrombo-embolus deterrent stocking. A doctor, the defendant (S), failed to review O within an hour, which he later admitted was in breach of duty.

Admitted breach of duty

At 08:05 a house officer questioned a possible deep vein thrombosis (DVT) or cellulitis, but did not instigate any treatment. At 10:00, a senior surgical registrar also suspected a DVT but failed to consider compartment syndrome, in a second admitted breach of duty. At 14:20, an ultrasound scan excluded a DVT and at 15:00, a CAT scan excluded a pulmonary embolus. At 15:45, an orthopaedic registrar considered, in a third admitted breach of duty, that no surgical intervention was required. At 18:00, compartment syndrome was diagnosed and at 21:00, O underwent a fasciotomy.

However, by this time some muscles in O's leg had already become necrotic. Two further operations took place on 22 December and 24 December 2007 to debride more extensive necrotic muscle. O was left with a permanent foot drop and could not return to work. He died of causes unrelated to ?either his rectal cancer or his compartment syndrome in 2010.

The judge determined that, while it had been reasonable for the S to consider that O's pain and redness in his leg post-operatively might have been due to DVT, it had not been necessary or reasonable for S to exclude a DVT before considering compartment syndrome. He concluded that the diagnosis should have been considered by 06:00 on 20 December 2007 and that S should have operated upon O by 12:00 on the same day, and was in breach of duty for not having done so.

The evidence, however, pointed to compartment syndrome having started to develop shortly after the original operation on 18 December 2007, which was consistent with the symptoms reported by O, the medical literature and what had been found when O's leg was eventually operated upon. O's leg had already suffered unavoidable irreparable damage by the time that S ought to have diagnosed compartment syndrome and intervened, such that S's breaches of duty had not in fact caused any loss and damage.

Issue of causation

In Appleton v Medway NHS Foundation Trust [2013] All ER (D) 93 (Nov), Judge Hampton also had to consider the issue of causation, but in relation to the claimant's (A) below-knee amputation (BKA).

A suffered from diabetes and had been given antibiotics for a foot infection on 4 July 2008. Three days later he attended A&E because his foot had not improved, but was discharged home; he returned the next day and this time was admitted. However, he was not seen by a consultant vascular surgeon, only being seen by junior doctors, and was not put on broad spectrum antibiotics. On 13 July, A had to have one of his toes amputated, followed shortly after by two further toes and then eventually he underwent a BKA.

The defendant trust (M) admitted that it should have admitted A on 7 July when he presented himself to A&E, and he should have been seen by a senior vascular surgeon at that time. M asserted, however, that at that point his infection was superficial and that the cause of his BKA had been his diabetes rather than the infection. A argued that it was the infection that had caused his BKA, which would have been avoided if he had received appropriate antibiotic treatment on 7 July 2008.

In his finding against A, the judge concluded that he had an impaired blood supply to both legs due to his diabetes and he was, therefore, unable to fight off the infection. He agreed with M that the ?infection had not initially been deep and concluded that A had failed to establish that the infection had ever become deep, on the basis that it was not ?deep at the subsequent surgeries. Thus, it could not be said that it was the infection that had caused ?the BKA; earlier antibiotics would, therefore, have made no difference. The judge considered Bailey v Ministry of Defence [2007] EWHC 2913 (QB), but distinguished A's case on the basis that it was not a case in which there were two potential ?sequential causes with the negligent cause making a material contribution. SJ