Update: clinical negligence

In two recent cases involving allegations of breach of duty against general practitioner defendants, the High Court had to consider the adequacy of a consultation and the possible failure to refer for further investigation and specialist opinion.

Seeking further specialist opinion

In A (The Father and Administrator of the Estate of X Deceased) v Dr A R D Enskat [2009] EWHC 1630 (QB), Mrs Justice Cox DBE had to consider whether the defendant general practitioner had been negligent in his management of the deceased, X, who subsequently died from testicular cancer.

X presented to the defendant in October 2002, aged 19, because he thought he had felt a lump in his right testicle a few days beforehand. The defendant's clinical note recorded that X presented with the thought that he could feel a lump behind his right testis and that examination of X's right testicle was normal, other than some slight thickening of the epididymis. Following the examination, the defendant reassured X and nothing further was done. X had had the clinical diagnosis of an incidental right epididymal cyst previously made in 1998 when he had presented to his GP with pain in his left testicle, though no ultrasound had been performed at that time.

Nearly two years later, X had an ultrasound scan that revealed a primary tumour in the right testis which, following orchidectomy, was diagnosed as an undifferentiated malignant teratoma with vascular invasion.

X claimed that the primary tumour had been present in his right testis in October 2002; that the defendant should have regarded the lump he discovered on examination as suspicious; that he should have referred X for an ultrasound scan at that time; and that, if X had been diagnosed then, rather than nearly two years later, on balance he would have survived. X died from his tumour four years after diagnosis, aged 25.

The judge considered that the defendant had made a careful and thorough examination in October 2002 and that there was nothing to suggest testicular cancer at that time. The defendant had also correctly considered the diagnosis of testicular cancer and had excluded it. As the experts for each side had agreed that there was no need for further investigation if the lump was outside the testicle, there was, therefore, no requirement to arrange for ultrasound scanning or specialist referral. The judge further considered that, even if X had been referred for ultrasound scanning in October 2002, the tumour would probably not have been detected as it was of a very aggressive variety and had developed rapidly. The lump which the defendant had felt was probably a small epididymal cyst of 3.8mm size, which had been identified on scanning in 2004 when the tumour was diagnosed. Judgment was, therefore, given for the defendant.

In another case in which GP care was considered by the High Court, Sara Amy Smith (by her Mother and Litigation Friend Mrs Shamim Smith) v Dr C W Dickson [2009] EWHC 1800 (QB), the court had to consider whether a breach of duty had resulted in the claimant's severe neurological handicap due to meningitis.

The claimant had been seen by the defendant GP on 19 January 1994 at some time between 5pm and 6.30pm during evening surgery. After taking a history from the claimant's parents and examining the claimant, the defendant considered that the claimant had a self-limiting viral illness and could return home with her parents. However, the next day the claimant was admitted to hospital in the late afternoon having had a febrile convulsion and, following a lumbar puncture, was diagnosed with pneumococcal meningitis at about 8.45pm.

The claimant claimed that the defendant should have referred her to hospital for assessment by a paediatrician following the evening surgery consultation on 19 January 1994, such that she would have received appropriate treatment with antibiotics sufficiently early and would have avoided severe neurological handicap. The defendant denied breach of duty and causation.

There was no issue between the parties that the claimant's disabilities of cerebral palsy, deafness, epilepsy, severe learning difficulties and developmental delay were caused by brain damage due to meningitis. However, there were significant disputes of fact in the case. Ultimately, Judge Oliver-Jones QC preferred the evidence of the defendant to that of the claimant's parents that the claimant was unwell with a viral illness on 19 January 1994 but not 'toxic', and not so seriously ill as to justify admission to hospital. In finding for the defendant, the judge considered that the defendant's examination was adequate and that he had specifically considered and excluded meningitis.

The judge also concluded that there was no practice accepted as 'proper' by a responsible body of general practitioners in respect of taking the temperature of a pyrexial patient and it was, therefore, not negligent to fail to do so. In any event, even if the defendant had taken the temperature, it was unlikely that the defendant's decision not to refer the claimant to hospital would have been any different. Further, the judge concluded that the claimant's parents did not need to be advised to consider reassessment by 10pm on 19 January 1994 and 24 hours for review was acceptable.

The judge did not need to make a finding as to what would have happened if antibiotic treatment had been commenced after bacterial invasion of the meninges, but he did conclude that it was unlikely that the claimant would have been suffering from a bacteraemia even if she had been admitted by 11pm, such that hospital admission at that time would have made no difference as antibiotics would not have been prescribed in any event.

Burden of proof in technical cases

In a third recent case also concerning breach of duty, (1) CC (2) DC v Blackpool, Fylde and Wyre Hospitals NHS Trust [2009] EWHC 1791 (QB), Sir Robert Nelson had to consider allegations of negligence against an ultrasonographer for failing to detect abnormalities in the claimants' child's (C) brain at the time of a 20-week anomaly scan carried out in July 1995 and the failure to refer for further scans at clinical ultrasound level. It was alleged that, had such further scans taken place after 20 weeks, C's condition of schizencephaly (a rare (one in 70,000) brain defect characterised by the presence of clefts lined with grey matter within the cerebral hemispheres resulting in very severe disabilities affecting C's motor, cognitive, visual and sensory functioning) would have been identified, appropriate counselling would have taken place and the pregnancy would have been terminated. The claimants' case was not that the schizencephaly should have been detected but that appearances suggestive of a brain anomaly should have been noted, which would have led to more detailed scanning and subsequent diagnosis.

The judge considered that the three key issues that required determination were: (i) was there a defect present at the time of the anomaly scan; if so, (ii) what was the nature and extent of that defect at that time; and (iii) was such a defect as was present detectable by the reasonably competent ultrasonographer at that time?

In what was a technical and medically complex case, the judge concluded that it was not possible to say, on the available evidence, that there would have been a defect present capable of detection by ultrasound scan, such as enlarged ventricles or excess fluid, or that, even if a defect had been present, its nature and extent would have been such that it should have been detected by a reasonably competent ultrasonographer.

He concluded: 'The court is left in the position of finding that there may have been a defect present or there may not have been and that even if there was such a defect present at the time it may have been detectable on ultrasonography but it may not have been,' as a reminder to claimants that the burden is on them to make out their case on the balance of probabilities.

Review of evidence on appeal

Finally, in Manning and Anr (suing as the personal representatives of the estate of Gary Richard Manning, Deceased) v King's College Hospital NHS Trust [2009] EWCA Civ 832, the Court of Appeal (Waller LJ, Laws LJ and Hughes LJ) considered the appeal by the defendant NHS Trust against the decision of the High Court (Stadlen J) ([2008] EW8C 1838 (QB)).

In the High Court, the judge had found that: (i) the defendant trust's pathologist had negligently failed to exclude that the deceased, Mrs Manning, had a recurrence of an oral cancer in 1995 and/or 1996; (ii) with further investigation, that recurrence would have been discovered; and (iii) surgery would then have been performed and Mrs Manning would not have died as early as she did. The High Court trial, listed for eight days, in fact lasted 28 days and the judgment took some eight months before being handed down, during which time the deceased's husband (the original claimant) had also died. The trial judgment was 256 pages long with 647 paragraphs.

There were 25 grounds of appeal, which included appealing against the judge's finding that oral cancer had been present in 1995 and 1996 and alleging procedural irregularity. In relation to the latter, the appellant trust argued that there was prolonged and excessive questioning of witnesses by the judge (the judge had asked more questions of the oral pathology experts than the combination of each side's counsel) and that the delay between trial and judgment must have resulted in a diminution of the judge's recollection of the witness evidence.

In finding against the appellant, the Court of Appeal judged that the trial judge had taken tremendous care with the judgment, that he had been trying very hard to understand a complex case and that his judgment demonstrated that he did understand the science and all the difficulties in the case. Further, the appellant was unable to point to any aspect of the medical science which the judge had got wrong and had to accept in relation to all the judge's findings that, if any of them were taken alone, they would not be able to attack it in the Court of Appeal. In a reminder of its role, the court was of the view that the defendants were seeking 'a total re-evaluation of the evidence' but that it would be 'very rare for the Court of Appeal to be persuaded to conduct such an exercise', and to do so an appellant would need to show the judge had gone 'plainly wrong' or had 'misdirected himself'. In this case, the court could not understand, if not a single finding of the judge could be attacked if taken individually, how cumulatively there could come a point at which an arguable case arose.

None of the grounds of appeal succeeded and the appeal was dismissed.