A Matter of Duty
Dr Jock Mackenzie highlights key clinical negligence cases from the past year
The latest clinical negligence rulings considered issues such as duty of care, risk and causation.
SCOPE OF DUTY
Early last year, three clinical negligence cases followed soon after the Court of Appeal’s February decision in Khan v Meadows  EWCA Civ 152 on the scope of the duty of care. The first case was Hazel Kennedy v Dr Jonathan Frankel  EWHC 106 (QB) in January 2019 in which the claimant (C) had Parkinson’s disease. The defendant (D) was her private neurologist who had recommended treatment with the dopamine agonist ropinirole. However, C developed impulse control disorder (ICD) from the ropinirole, which manifest as excessive shopping, hobbyism and crafting, as well as a later profound psychosis. She claimed that D should have advised her to reduce or stop taking her ropinirole once it became apparent the ICD was not under control, such that she then would have avoided further ICD and the psychosis. D argued he was not in breach and that, in any event, the psychosis was outside the scope of the duty of care to advise about ICD treatment (following Khan). Mrs Justice Yip deferred the Khan issue until after breach and causation had been determined.
The judge then found in favour of C and the case settled without the scope issue formally being decided. In the second case, Paul Pomphrey v Secretary of State for Health, North Bristol NHS Trust  4 WLUK 483 in April, C suffered a dural tear during spinal surgery which resulted in revision surgery, infection and arachnoiditis. He claimed that he had cauda equina compression and should have had surgery many months earlier. His Honour Judge Cotter determined that C had in fact had spinal stenosis; and the only breach was a 10-day delay in surgery, although such a short delay would have made no difference to C’s outcome. D also argued that the scope of the duty (to avoid unreasonable delay) did not extend to avoiding a risk (of dural tear in this case) inherent in the surgery. The judge agreed: he followed the appeal court in Khan that ‘but for’ causation did not apply; that C had sustained a dural tear was coincidental to the breach and not within the scope of D’s duty; and the duty breached was the duty to avoid unreasonable delay – not the duty to avoid a dural tear. The judge also concluded that the fact the operation would have taken place on a different day was not sufficient for causation. He distinguished Chester v Afshar  1 AC 134 as a case in which the outcome was the very risk contained within the duty to warn. In the third case, Adrian Mills v Oxford University Hospitals NHS Trust  EWHC 936, C alleged breach in both the performance of an endoscopic neurosurgical procedure for removal of a brain tumour; and in the obtaining of informed consent as to the comparative risks of endoscopic or microscopicassisted surgery. C had suffered torrential intra-operative haemorrhage and a resulting stroke.
Karen Steyn QC found for C on his informed consent case – that he would have chosen microscopic-assisted surgery if properly warned, which would have reduced the ability to control the intra-operative bleeding. The judge did not need to determine the scope issue but noted that, if she had, she would have found in C’s favour. It was a case where “the misfortune which befell the claimant was the very misfortune which was the focus of the surgeon’s duty to warn (as per Lord Walker at  in Chester v Afshar…”.
A MATTER OF FACT
Away from the scope of duty cases, a case concerning cauda equina syndrome (CES) turned almost entirely on its facts. The primary issue in dispute in Kerry Shaw v Dr Andrew Stead  EWHC 520 (QB) (March 2019) was what exactly had happened at a key consultation. Even though she concluded that neither party’s recollection was reliable, Yip J preferred C’s version of events rather than that of D, a general practitioner. She decided that D had missed the CES red flags of urinary incontinence and weak legs, had erroneously diagnosed sciatica and had caused a resulting delay in hospital referral and surgery. In another neurosurgical case, Yvonne Lesforis v Christos Tolias  EWCA Civ 487 (March 2019), the Court of Appeal upheld Martin Spencer J’s decision at first instance. D had prescribed chemoprophylaxis (CP) for deep vein thrombosis (DVT) three hours post-spinal surgery, following which C developed a compressive spinal haematoma unamenable to surgery. D’s evidence was that he routinely gave CP early in all his patients. C claimed no reasonable surgeon would routinely administer CP within six hours of surgery because of the haematoma risk. D asserted that due to C’s specific risk factors of obesity, having to lie flat for 48 hours and an anaesthetic lasting more than 90 minutes, prescription at three hours was reasonable. The judge had held that D had been negligent both in routinely giving CP within six hours of surgery and in arranging for C to have CP within six hours of surgery. D appealed on the basis that the wrong question had been answered: the issue was not whether D’s practice of routinely giving CP within six hours of surgery was a breach – but whether prescribing CP after three hours in the presence of C’s specific risk factors was a breach. The Court of Appeal concluded that the judge had considered C’s specific risk factors had not warranted a departure from the normal and safe practice of not administering CP until at least six hours after surgery. Administering it earlier than six hours was therefore unsafe and a breach of duty. SMALL RISK Marc Olloson v Dr Alan Lee  EWHC 784 (QB) was a Montgomery case concerning whether the warning of a ‘small’ risk of chronic pain post-vasectomy was a sufficient warning. Following Duce v Worcester  EWCA Civ 1307, Stewart J considered that the quantification of risk was a matter for experts; but that what the patient should have been told by the defendant was a decision for the court to make – and the Bolam test was not relevant. However, he felt there was no need for a doctor to give a percentage risk – a patient could ask if they wanted to know. In this case, the risk of chronic pain was about 5 per cent; the risk of quite severe chronic pain 0.9 per cent; and the risk of C’s severe pain was even less than that. The warning of ‘small’ for C’s risk had been adequate within the normal meaning of the word, and the judge therefore found for D. Diamond v Royal Devon & Exeter NHS Foundation Trust  EWCA Civ 585 (in April 2019) was another Montgomery case and concerned hernia mesh-based repair and D’s alleged failure to warn that such repair might affect C’s future pregnancies. C lost on factual causation at first instance on the basis that it would have been “irrational” for her to proceed with suture repair given its likelihood of failure. She appealed on the basis that it was erroneous to apply a test of rationality. However, the Court of Appeal disagreed and concluded that the judge had been scrupulous in his analysis; and there had been a proper basis for his factual finding on causation.
Finally, two cases have looked at legal causation. In Marshall v Schrembi  EWHC 283 (QB) (February 2019) the issue was whether, if a GP had admitted the deceased directly to hospital as he should have done, she would have died from pulmonary embolism (PE). Stewart J concluded that thrombolysis up to three hours before the deceased collapsed would have saved her. He felt it was not possible to determine whether she was suffering with progressive PE or one massive PE.
Nevertheless, he observed that C only needed to prove on balance that the deceased would have survived had she been referred to hospital, not the precise mechanism by which her survival would have been achieved. The deceased was not elderly, she had no co-morbidity and would have been stable on admission. Furthermore, it was extremely unusual to die of PE in hospital. Her chances of survival on arrival at hospital were high and on balance she would have done so. The case of AXO v Salisbury NHS Foundation Trust  EWHC 1454 (QB) (June 2019) concerned the admitted negligent administration of a ten times overdose of the muscle relaxant pancuronium bromide to a premature baby.
The overdose resulted in periventricular leukomalacia (PVL) which had caused cerebral palsy. The issue for the court was whether the overdose had materially contributed to the PVL. C’s case was that the overdose caused hypotension and sustained hypoperfusion, which had contributed to the PVL both during an episode at 0100 and a subsequent hospital transfer during which C had accidentally been extubated. Yip J considered that C did not have to prove the precise mechanism of harm to establish causation. However, C had not established that it was hypotension caused by the overdose that had resulted in the PVL, rather than his underlying condition of prematurity and associated factors (including severe lung disease, instability prior to the overdose and receipt of Curosurf – a surfactant which improves oxygenation).
Furthermore, C had not established that hypotension during the hospital transfer had been caused by the accidental extubation, rather than it being pre-existing. Yip J therefore found against the claimant.
Dr Jock Mackenzie is a partner at Anthony Gold anthonygold.co.uk