Clinical negligence round-up

In Jacobs v King's College Hospital NHS Foundation Trust [2016] EWHC 121 (QB), Mr Justice Jay had to determine whether the defendant's surgeon (K) was in breach of duty in the performance of inguinal hernia surgery. The claimant (J) asserted that K had failed to perform appropriate surgery on her indirect hernia, operating instead only on her direct hernia, and stated that immediately post-operatively she had noticed she still had a right groin lump, requiring further hernia repair a year later. However, during a review of J a month after surgery, a nurse had recorded no evidence of hernia recurrence, although J also alleged that the nurse had been negligent in failing to identify and record a persisting hernia.

While accepting the experts' evidence that K may have overlooked an indirect hernia, the judge concluded it was not likely, and, if J had advised the nurse that the hernia had not disappeared, the latter would have written as such in her clinical letter. Accordingly, either there had been no indirect hernia at the time of the first operation (it had developed later) or it had been repaired in that operation. The judge was fortified in his conclusion because J had only returned to her GP eight months later: if she had believed the operation had gone wrong from the outset, she would not have waited so long.

In another surgical case, Long v Western Sussex Hospitals NHS Trust [2016] EWHC 251 (QB), Judge Collender QC had to determine, first, whether the defendant (W) had been in breach of duty in discharging the claimant (L) following the surgical repair of a fracture of L's right femoral head without arranging for a re-test of his inflammatory markers beforehand; and, second, whether the alleged delay in diagnosis of his post-operative septicaemia and consequent delayed treatment had caused L's injury. Although the judge concluded that W had been in breach of duty, there was insufficient evidence to find that any breaches had caused damage to L, as L had failed to demonstrate that the delay had caused him to be 'appreciably worse off' (Johnston v NEI International [2007] UKHL 39).

In Hunt v Nottingham University Hospitals NHS Trust [2016] EWHC 47 (QB), the claimant (H) succeeded in his claim against a surgeon. Mrs Justice Patterson found that the defendant had been in breach for carrying out a low fistulotomy in the particular circumstances of the case and, absent the negligence, H would have avoided his colostomy.

In XYZ v Warrington and Halton NHS Foundation Trust [2016] EWHC 331 (QB), Mr Justice Dove dismissed the claimant's (X) case against the defendant's (W) orthopaedic surgeon regarding X's cauda equina syndrome following a microdiscectomy. At the time of surgery, X was receiving psychiatric treatment, but the judge concluded that W had not needed to consult with X's psychiatrist before surgery and had given adequate and proper advice in relation to the risks and potential complications of surgery. Additionally, the treatment offered had been reasonable, bearing in mind all the risks and benefits.

Delayed treatment

In Arkless v Betsi Cadwaladr University Local Health Board [2016] EWHC 330 (QB), Dove J found for the claimant (A), holding that the defendant's A&E senior house officer had failed to examine A's wrist appropriately after A had fallen on it, and accordingly had failed to order appropriate x-ray views to exclude a scaphoid fracture, such that A's scaphoid fracture went undiagnosed. On all the evidence, the doctor had not carried out the three accepted tests, in particular the scaphoid tubercle test, for a possible scaphoid fracture, in breach of duty. Had he done so, the fracture would have been correctly diagnosed and treated, and the subsequent complications avoided.

In Jaciubek v Gulati and Royal Free London NHS Foundation Trust [2016] EWHC 269 (QB), Mr Justice Foskett dismissed the claimant's (J) case that a GP (G) and an A&E senior house officer (R) were in breach of duty on separate occasions for failing to identify signs that J had suffered a subarachnoid haemorrhage (SAH) and required further examination. J asserted that, had either of the two medical practitioners acted as they should have by ensuring appropriate examination, the SAH would have been identified and operative intervention would have prevented a subsequent, more serious, SAH, with a better outcome.

However, on the facts, J had seen four GPs, paramedics, emergency staff, and R, yet not one of them had recorded a presentation that would lead to a suspicion of SAH. The judge concluded it was impossible to accept that all these practitioners would have failed to pick up significant warning signs if they had existed: there likely had been two small bleeds but insufficient features to warn of SAH. Accordingly, J could not succeed.

In John v Central Manchester and Manchester Children's University Hospitals NHS Foundation Trust [2016] EWHC 407 (QB), a GP claimant (J) succeeded in a claim concerning a delay in performing a timely CT brain scan following his fall onto his head and, once his subdural haematoma had been diagnosed, a delay in calling for an ambulance for urgent transfer for neurosurgery, such that surgery should have occurred an hour earlier than was in fact the case. Mr Justice Picken held that J could recover for all of his injuries caused by raised intracranial pressure that had been materially contributed to by the delays.

In Lillington v Ansell and Jennison [2016] EWHC 351 (QB), Mr Justice Hickinbottom held that there had not been any negligent delays in the defendant GPs referring the claimant to hospital for diagnosis of her dilutional hyponatraemia, which had led to cerebral oedema, encephalopathy, and cognitive damage.

Claims for injuries at birth

Jackson Ireland v Secretary of State for Health (sued as South Tyneside NHS Foundation Trust) [2016] EWHC 194 (QB) concerned a case of cerebral palsy caused by hypoxic ischaemia due to the umbilical cord being wrapped around the claimant's (JI) neck three times. JI asserted that his mother should have been offered the possibility of turning him by external cephalic version (ECV) prior to delivery. On the facts, the defendant (S) had not offered ECV and, on the expert evidence, it should have been offered in 1992 (the year of JI's birth). However, even if it had been performed, it likely would have been unsuccessful because of an abnormally short cord, such that a vaginal breech delivery or caesarean section would not have been avoided, and the outcome would have been no different.

JI further asserted that he should have been induced at term. However, Mr Justice Coulson concluded that, although some of S's care of JI's mother could be criticised, it could not be said that there had been negligence: different doctors in 1992 might have approached the problem differently but a responsible body of medical opinion (and possibly a majority) would not have induced any earlier at that time.

In another cerebral palsy case, SB (a child by her mother and litigation friend Ms TM) v Sandwell and West Birmingham NHS Trust (2016), Judge McKenna considered the claimant's (SB) allegations of a negligent delay by midwives in securing the attendance of a registrar, which allegedly would have resulted in an earlier delivery and the avoidance of an acute hypoxic ischaemic insult. The defendant (S) denied breach of duty by the midwives and that delivery would have occurred sufficiently early, asserting the damaging insult in any event had occurred before the commencement of fetal heart-rate monitoring.

The case revolved around timings, and a critical factual issue arose regarding the clock timing on the cardiotocography (CTG) machine: the difference between the parties of three minutes was crucial as, if S's version was right, SB could not succeed on causation, as the longest period available for a sustained circulatory collapse would be 14 minutes, which, on the expert evidence, was insufficient to have caused SB's injuries. The judge found for S on the facts and, accordingly, SB's claim failed. However, even if the CTG timings had been found in favour of SB, the period would still have been insufficient to cause SB's injuries.

In Bajraktari v Barts Health NHS Trust (18 March 2016), Patterson J dismissed the claimant's (B) claim of a delay in attendance at hospital resulting in brain damage due to placental abruption. On the facts, B's mother had been properly advised to attend hospital when she had started bleeding, but had delayed in doing so.

Witness evidence

Finally, in an appeal case, Synclair v East Lancashire Hospitals NHS Trust [2015] EWCA Civ 1283, Lord Justice Tomlinson, Lord Justice Floyd, and Mr Justice Cobb found the trial judge had properly conducted a fact-finding exercise, and had been entitled to prefer the claimant's (S) evidence over the medical notes and find the hospital negligent for inappropriately discharging S following parastomal hernia repair surgery.

The court emphasised that when assessing witness evidence about what they said, what was said to them, or what they saw or heard, it was essential to test their veracity or reliability by reference to objective facts proved independently of their testimony, in particular by reference to contemporary documentary evidence (see
Onassis v Vergottis [1968] 2 Lloyd's Rep 403 and
Grace Shipping Inc v CF Sharp (Malaya) Pte [1987]
1 Lloyd's Rep 207), as the judge appropriately
had done. SJ

Dr Jock Mackenzie is a dual-qualified doctor of medicine and solicitor. He is also a partner at Anthony Gold