Update: clinical negligence

In Rachael Knott v Dr Alan Leading [2010] EWHC 1827 (QB), Nicola Davies J had to consider whether a defendant general practitioner (GP) had negligently failed to identify three petechial spots on the claimant's neck, failed to consider the possibility of meningococcal disease and failed to refer the claimant to hospital for admission.

The claimant's meningococcal disease resulted in her suffering with deafness, tinnitus and vestibular dysfunction. They had been assessed at home by the defendant and three tiny red or purple spots on her neck, like pin-pricks, were pointed out to him by the claimant's mother: these apparently would not disappear with pressure. The defendant's evidence was, however, that only one spot was present and it blanched on pressure.

He concluded that the claimant had a viral infection and reassured the claimant's mother it was not meningitis. A second GP visited the claimant the next day, noted a rash on her hands, which also did not blanche with pressure, and concurred that the claimant had a viral infection. This second GP did not recall the three spots on the claimant's neck being pointed out to her. Subsequent to that visit, the claimant worsened and was admitted urgently to hospital, where a note recorded a few spots on the claimant's arms and neck. A lumbar puncture was performed and a diagnosis of meningococcal disease made.

The experts in the case agreed that, if the claimant was clinically as described by the defendant and the second GP, and did not have any symptoms, it was reasonable to diagnose an upper respiratory viral infection and not refer the claimant to hospital.

However, if the claimant was as described by her mother, namely that she had three petechial spots (which would have been a specific diagnostic clue as to the presence of meningococcal disease) as well as several non-specific features, the diagnosis of meningococcal disease was likely and she required urgent referral to hospital. Further, based on the hospital records, meningeal signs would not be likely to be present at the time of the defendant's examination.

In dismissing the claim, the judge preferred the defendant's evidence to that of the claimant's parents. The latter were found not to be wholly reliable witnesses because of errors in some of their recollection and the judge also found their evidence to be inconsistent with the subsequent findings in hospital, with the progress of meningococcal disease generally and with the development of the disease in the claimant's particular case.

Doctor, doctor

In another case involving a GP, (1) Ruby Baxter (2) Rowan Baxter (3) Joyce Baxter v Dr Kirsty McCann [2010] EWHC 1330 (QB), Hickinbottom J had to consider whether a GP had performed a bimanual vaginal examination to a sufficient standard such that she had discharged her duty to her patient, who was subsequently diagnosed with ovarian cancer from which she died aged 34.

It was common ground between the parties that the defendant should have conducted a full pelvic examination at a consultation with the deceased, to include a bimanual vaginal examination. It was also common ground that, at the time of the consultation, the deceased had a tumour in her pelvis, probably behind her uterus. The tumour was detected about seven months after that consultation and removed two months later, by which time it had spread and was a stage IIIC tumour. The deceased died a little over a year later.

The claimants' argument was that no examination had been conducted or that, if it had been, it had not been performed with reasonable competence, and that, if it had been identified at that time, it is probable the deceased would have survived for at least five years.

In finding for the defendant GP, the judge accepted her 'compelling' evidence that she performed a bimanual examination, in accordance with her invariable routine. Further, the judge accepted that it could be difficult to detect ovarian masses, even those of a significant size, on bimanual palpation. In addition, ovarian cancer in a 32-year-old woman was 'vanishingly' rare and the deceased lacked relevant symptoms, such that the defendant's index of suspicion would have been very low.

While the judge did not need to determine causation, the judgment confirmed that causation was difficult and, even if the claimants had succeeded on breach, they would not necessarily have succeeded on causation.

Historical claims

In Conan Ingram v Dr Hywel Williams [2010] EWHC 758 (QB), Walker J had to consider whether, 26 years before the trial, a GP during a consultation at his surgery had been in breach of his duty of care in his management of the claimant's mother, who at the time was about 25 weeks pregnant with the claimant.

A week before this consultation at a routine antenatal appointment there had been concern about the possibility of excess amniotic fluid. Four days following the consultation at the defendant's surgery, an obstetric review for the possibility of excess fluid did not, however, elicit a history of a loss of a large amount of fluid. A further two days later the claimant was born very prematurely at home without any medical attendance or support. He was admitted to hospital several hours later but was left with significant disabilities associated with cerebral palsy.

The claimant submitted that his mother had suffered three episodes of incontinence that had occurred about a week before his birth, which should have led to the defendant GP considering that her membranes had either ruptured or might have ruptured, which, it was agreed between the parties, would have resulted in her immediate attendance at hospital; the defendant had instead diagnosed and treated the claimant's mother for cystitis (confirmed on laboratory testing).

If the claimant had been born in hospital at that time, there would have been a reduction in, rather than an avoidance of, his injuries, though the claimant claimed that the defendant should be liable for all of injuries.

In finding for the defendant on breach on the facts, the judge concluded that it was likely that a large loss of fluid occurred after the second obstetric consultation and before delivery, that the defendant had correctly diagnosed the claimant with cystitis and that there was no reason for him to have considered premature rupture of the membranes at the time of his consultation.

On causation, while the claimant would still have suffered some injuries even with earlier admission to hospital, it would not have been possible to ascertain the extent of the contribution of any breach, such that, following Bailey v Ministry of Defence [2008] EWCA Civ 883, the defendant would have been liable for all of the injuries.

Health behind bars

In Cheryl Carter v Ministry of Justice [2010] EWCA Civ 694, the Court of Appeal considered an appeal by the defendant against a decision by Sir Christopher Holland [2010] EWHC 60 (QB) that a prison doctor, Dr Premaratne, negligently failed to refer the claimant to a breast clinic following her complaint of a lump in her right breast.

The claimant was subsequently found to have a ductal carcinoma and required a mastectomy.

Dr Premaratne had seen the claimant at a third consultation, two different GPs each having seen the claimant at two previous consultations. The judge had found at trial in favour of the first two GPs in relation to these first two consultations. The judge had also found as matters of fact that, at the time of the consultation with Dr Premaratne, the claimant was no longer complaining of pain and the GP had conducted a clinical examination and no abnormality in the claimant's breast or axilla had been found. On that factual basis, the judge had accepted the defendant's expert evidence that referral for specialist opinion was not mandated by appropriate professional standards simply because this was a third consultation; however, he then found in favour of the claimant against the defendant in relation to Dr Premaratne's consultation.

The defendant submitted that the judge had failed to follow the Bolam test for clinical negligence cases and, unless he had specifically concluded that the defendant expert's genuinely held view could not withstand logical analysis and was thus unreasonable, as per Bolitho v City and Hackney Health Authority [1988] AC 232, the claimant could not succeed.

In finding for the appellant, the appeal court decided that the judge had not reached that conclusion; and that, in any event, it was not open on the evidence for him to do so.

Obstetric nightmare

In the first of two recent obstetric cases found in favour of the defendant, Jack Jones v North West Strategic Health Authority [2010] EWHC 178 (QB), Nicol J concluded that there was no negligence on behalf of the claimant's attending doctors during the course of his delivery in 1992, even though there was no doubt that his cerebral palsy had arisen out of the circumstances of his birth due to cord compression before delivery.

The claimant alleged that his mother should have been advised of the risk of shoulder dystocia and of the possibility of caesarean section, and, if told, she would have opted for a caesarean such that the claimant would have been born without difficulty.

The judge concluded that the claimant's mother should have been told of the possible risks. However, the judge found that, on the balance of probabilities, the claimant's mother would not have been one of those unusual patients who would have opted for a caesarean against the advice of her consultant even if she had been given appropriate advice about the risk associated with a vaginal birth, which was in the order of ten per cent.

The judge further concluded that the case created an obstetric nightmare for the many experienced medical staff on hand and that there was no negligence in the steps that were taken in the course of the claimant's delivery.

In another obstetric case successfully defended, Kirsty Ternent v Ashford & St Peter's Hospital NHS Trust [2010] EWHC 593 (QB), in determining a preliminary issue Tugendhat J concluded that the claimant had failed to establish that her caesarean wound had reopened because of the negligence of the surgeon in suturing it. The judge concluded that he was an experienced surgeon who was qualified to perform the surgery; that surgery, especially emergency surgery, carried a risk; and that the court should not infer lightly from the fact that there had been a rare occurrence (such as dehiscence) that it was probably because of the negligence of the surgeon.

Eye opening

Finally, in Matthew Buxton v Abertawe Bro Morgannwg University Local Health Board [2010] EWHC 1187 (QB), Judge Richard Seymour QC found for the defendant ophthalmologist in relation to the prescription of steroid eye drop medication that treated one condition but aggravated another, on the basis that, on the evidence of her own notes, the ophthalmologist had identified correctly the relevant conditions and decided how to treat each, such that the judge was not satisfied that such a decision could be characterised as one that no reasonably competent ophthalmologist could have made.