Update | Clinical negligence: Want of care, loss of chance and late test results

In Paula Thomas v Paul Curley [2013] EWCA Civ 117, the defendant surgeon appealed against the decision of Griffiths Williams J in the High Court finding him negligent in damaging the common bile duct during a laparoscopic cholecystectomy (see Solicitors Journal, 22 November 2011). The primary ground of appeal was that the judge had erred in determining breach of duty only on the basis of the principle of res ipsa loquitur, in that the mere fact of damage to the common bile duct was evidence of negligence, and that it was apparent that the claimant's case failed to meet the requirements of this principle. This was a submission that had been made in the defendant's closing submissions and which had been firmly rejected by the trial judge.

On appeal, Lloyd Jones LJ summarised the principle as describing "a situation in which it is possible for the court to draw an inference of negligence where a claimant has proved a result without proving any specific act or omission on the part of the defendant which has produced the result. ?If it is proved on the balance of probabilities that the result could not have happened without negligence and that the situation was under the control of the defendant, then it is open to the court to conclude that it is more likely than not that the result was caused by negligence. However, it is not appropriate to draw such an inference where there is evidence as to why or how the result occurred (Scott v London and St. Katherine's Docks (1865) 3 H. & C. 896)."

Want of care

The appeal court accepted that, on the basis that the claimant's expert appeared in part to be drawing a necessary inference of negligence from the mere fact of injury, this "might be considered an application of res ipsa loquitur". However, the appeal court also noted that the judge had concluded on the evidence that this particular case was one of an uncomplicated operation in which damage had been caused to the common bile duct away from the site of the operation (the cystic duct stump). This damage, which had probably been caused iatrogenically by the defendant, required an explanation and none had been forthcoming from the defendant's expert or anywhere else. If the injury had been at the site of the cystic duct stump the defendant's expert's explanation would have been that the two clips of the short cystic duct stump fell off due to mechanical failure and eroded through the cystic duct remnant as a result of ischaemic necrosis. However, given the site of the damage away from the cystic duct stump, this explanation was no longer feasible, and the likely explanation in the case was one of want of care. The claimant had, therefore, proved her case on the basis of all of the evidence.

In dismissing the defendant's appeal, the appeal court agreed with the Judge that this was not a case of res ipsa loquitur because it was not the mere fact of injury to the common bile duct during a cholecystectomy operation that inferred negligence but an inference of negligence based on the specific facts of this case and on the defendant's own expert's inability to explain how in this particular case such damage could have been caused non-negligently.

However, it remains difficult not to think that this was not a case of res ipsa loquitur, albeit in a more factually specific form than that identified by the defendant and the court: the claimant had established that damage to the common bile duct away from the site of the operation in an uncomplicated cholecystectomy was not likely to have happened without negligence; the court was inferring such negligence; and the defendant was unable to provide an adequate (or indeed any) explanation to discharge such an inference.

Correct methodology

In Kieran Doy (a child by his mother and litigation friend, Joanne Doy) v Kathleen Gunn [2013] EWCA 493, the Court of Appeal considered the appeal by the claimant against the decision of Owen J in the High Court that the defendant general practitioner had not been negligent.

The defendant had seen the claimant on the evening of 19 March 2002, had diagnosed colic but had chosen not to refer him to hospital. The claimant had subsequently developed acute bacterial meningitis causing hemiplegic cerebral palsy and moderate learning difficulties. The GP experts had concluded that, if the claimant's mother's version of events was accepted, the claimant should have been referred to hospital; and the judge had concluded that, if he had been referred, he would have been prescribed antibiotics and would not have developed meningitis.

However, the judge had not been able to accept Ms Doy's account, having tested its reliability against the evidence of the other factual witnesses and material in the period leading up to the consultation with the defendant. He had preferred: a) the witness evidence of another GP who denied having seen the claimant in the evening of 19 March 2002 prior to the consultation with the defendant, which was supported by the absence of any clinical note to that effect; b) the evidence in the medical records of a six-week check carried out by a different GP in the afternoon of 19 March 2002 that recorded the claimant as not unwell; c) the evidence of the defendant and her contemporaneous note, albeit that she could not remember the specific consultation in question; and, d) some other entries in the contemporaneous notes which were inconsistent with Ms Doy's evidence.

The appeal, although divided into eight grounds of appeal, was essentially an appeal on the facts and the judge's analysis of the evidence. The claimant claimed that the judge's methodological approach in determining breach on the basis that one of the claimant or the defendant's factual evidence was correct was too simplistic and, in any event, the overall factual evidence was inconsistent with the defendant's case and the judge's conclusions.

In finding against the claimant, the appeal court (per Maurice Kay LJ) considered that the judge's methodology was that which any judge would have adopted in such circumstances: given the passage of time, it was appropriate for the judge to have sought assistance from contemporaneous documents against which to test Ms Doy's account. Notwithstanding that the defendant could not recall the consultation, her note was substandard and she was reliant on her usual practice, the judge considered her reconstruction of events reliable and Ms Doy's account unreliable.

The judge had also not erred in the application of his methodology, in that he had not made any material errors in his assessment of the weight to be attributed to the evidence at trial, including the expert evidence, especially given that he had had the advantage of seeing and hearing the witnesses give their evidence.

Loss of a chance

In Loretta Oliver v Gary Williams [2013] EWHC 600 (QB), Simeon Maskery QC (sitting as a Deputy High Court judge) had to consider whether the defendant GPhad been negligent in failing to alert the claimant to the fact that he was making an urgent referral to hospital for investigation. The referral letter had been lost and it was alleged that the claimant's investigations into her subsequently diagnosed ovarian cancer were delayed, with surgery taking place some 5-6 months later than it should have. The claimant claimed, inter alia, for a consequential reduced life expectancy. The defendant accepted that, if it was found as a matter of fact that he had failed to alert the claimant, it was a breach, but nevertheless denied such failure. He also denied the length of any delay and any effect on life expectancy.

On the basis of the factual evidence, the judge concluded that the defendant had failed to alert the claimant and, therefore, had been in breach; further, absent the delay, surgery would have occurred some 5½ months earlier.

Te experts agreed that the staging of the cancer would still have been Stage IIIC and the management the same, irrespective of any earlier diagnosis. It was also agreed that greater residual tissue was left than otherwise would have been the case. However, the judge concluded that, while the volume of residual cancerous material does have an impact upon survival, in this case it was not known by how much the residual volume would have been reduced with earlier surgery. The judge concluded that the claimant could not claim for loss of a chance (Gregg v Scott [2005] UKHL 5) and needed to establish that the breach of duty had caused or made a material contribution to a measurable degree of loss (Tahir v Haringey Health Authority [1998] Lloyd's LR (Med) 105). She had failed to do so in relation to life expectancy. The judge distinguished JD v Mather [2012] EWHC 3063 (QB) on the basis that the negligent delay in that case changed the staging of the melanoma and there was good quality statistical information available to show the impact of such a change, which was evidence that was simply not available in this case. The claimant succeeded in claiming some general damages, however, for the delay.

Late test results

In Richard Meiklejohn v St George's Healthcare NHS Trust [2013] EWHC 469 (QB), HHJ Robinson considered whether a consultant haematologist had been negligent in 2003 in not chasing up a blood test result before treating the claimant for his presumed non-severe acquired aplastic anaemia (AA) with standard immunosuppressive treatment (IST). Such treatment included the administration of prednisolone for serum sickness, which in this case resulted in avascular necrosis (AVN) of the claimant's hips necessitating bilateral hip replacements. The blood test, which had been sent to a different hospital for analysis for a rare genetic condition, dyskeratosis congenita (DC), was reported as being positive some 2½ years later. It was alleged that, had the test result been obtained in 2003, it would have confirmed that the claimant had DC, the treatment would have been different and the damaging steroids would have been avoided.

The judge, in finding for the defendant, concluded that: there was nothing in the claimant's presentation to cause Professor Marsh to suspect the claimant had DC; the blood test had been sent for research purposes only; the claimant had given verbal consent to the test being sent for such research; there was, therefore, no reason that the test needed to be expedited and it had not been negligent not to do so. Furthermore, it was reasonable to have recommended treatment with IST and there had been no obligation to discuss alternative treatments for acquired AA or warn of the risk of AVN with prednisolone.

Knee operation

In Marc Ecclestone v Medway NHS Foundation Trust [2013] EWHC 790 (QB), HHJ Reddihough, in considering the acceptability of an orthopaedic surgeon's knee operation (percutaneous lateral retinacular release) on the claimant, concluded that the literature and the defendant's expert evidence demonstrated that the procedure was one that was performed by a responsible body of orthopaedic surgeons in 2008 (Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582) and that it was not illogical to use it (Bolitho v City and Hackney Health Authority [1998] A.C. 232, as there were also risks with the alternative procedure. Both were acceptable procedures, therefore, even if the court might on balance prefer the alternative one (Maynard v West Midlands RHA [1984] 1 WLR 634).