[2020] EWHC 1610 (QB)
The Facts
C had developed normally, her health had been good up the age of 15 months and she had met all her developmental milestones. She initially become unwell in January with a slight temperature and seemed a bit withdrawn and her parents wondered if she was teething.
On the morning of 26/01/2006 her mother called NHS Direct and C was given an emergency appointment with a GP. The mother’s position was that C was very lethargic, lifeless and had glazed eyes at that time.
The GP noted C had been unwell for 2-3 days and that morning had become lethargic, floppy and had vomited. Her pulse was fast and her temperature raised. There was no neck stiffness or rash. He could not detect any abnormality on visual examination of her throat. He recorded his impression as “?meningococcal”. He gave an intramuscular injection of antibiotics, advised her mother he suspected meningitis and arranged transfer to hospital by ambulance. He also telephoned ahead with information.
On arrival at hospital at 1.15 it was noted that the reason for admission was “pyrexia? cause”. She was reviewed by a junior doctor who recorded that the impression was tonsillitis and that meningitis was unlikely. It was also noted that C had received intra muscular benzylpenicillin [1]. The plan was to admit for observation. Both parents stated that they questioned the diagnosis of tonsillitis and repeatedly sought reassurance that meningitis had been ruled out.
At 6.40 C was reviewed and a decision was made to discharge her by Dr Roe with review the following day. The parents took C to hospital the following day and she was reviewed by Dr Roe and he discharged her. The impression was a resolving viral illness.
C continued to be unwell and on the 29th January C’s mother telephoned and asked if she could bring her back into hospital and she was told to wait. On 30th January C was seen by another GP who was concerned that she might have meningitis and arranged for her to be seen in A & E. She was admitted to hospital at 2.20 and the parents asked about meningitis and asked for a lumbar puncture to be performed [2]. They were advised that C had tonsillitis.
C’s condition had deteriorated by the following morning and she was seen again by Dr Roe who agreed to perform a lumbar puncture. Bacteria was seen in the spinal fluid and it was confirmed to be pneumococcus. Dr Roe diagnosed a partially treated meningitis.
C’s condition deteriorated and the agreed medical evidence was that as a result of pneumococcal meningitis C developed vasculitis leading to an infected perforator infarction with oedema which probably occurred between the 7-9th of February. C developed a right hemiparetic cerebral palsy with permanent neurological deficit.
Allegations of fault
The claimant argued that when C attended hospital on 26th January there was a failure:
1. to take account of the concerns of the GP
2. to take account of the concerns of the parents that C had meningitis and was behaving abnormally
3. to take account of her clinical presentation that included a high temperature, vomiting and the fact she was lifeless and lethargic
4. to admit to hospital for observation, perform a septic screen, continue antibiotic treatment
5. to appreciate that these symptoms were unlikely to be related to an uncomplicated tonsil infection.
These failures were also repeated in respect of 27th of January.
The defendants argued that in fact when she presented to the GP and hospital C had tonsillitis and they had provided appropriate treatment. The first GP had not found any abnormality in the tonsils although both doctors at hospital had found large inflammed tonsils.
Decision of the court
The court found that a lumbar puncture should have been performed and that had this been done antibiotics would have been administered. The court found that there was evidence of infection and on that basis, antibiotics should have been commenced pending the results of culture of the fluid.
The diagnosis of tonsillitis was reasonable however the doctor failed to appreciate that the intramuscular antibiotics that C had been given may have masked her symptoms and that a truer picture of C’s condition could be found in the GP assessment.
Comment
This case was due to be heard remotely due to the restrictions imposed by COVID-19 and shortly before the trial was due to start the defendants sought to adjourn the trial on the basis that it would be unfair to proceed remotely. Defendant’s Counsel argued that a remote hearing would be unfair as it would be virtually impossible to assess witness demeanour, and that it would be impossible for instructions to be taken. Neither party had experience of conducting a case remotely. The claimant’s Counsel opposed the application. The Judge did recognise that there could be some circumstances where a remote hearing would not be fair but felt that any disadvantage fell evenly on the parties. However, having said this it was directed that the trial should take place in court [3].
At the outset the GP suspected meningitis and immediately and appropriately referred C to hospital. It is recognised that meningitis is a difficult diagnosis to make but where there is suspicion of meningitis it would seem reasonable to use tests available to exclude the diagnosis given the fact it is life-threatening. The tonsils were enlarged when C was examined at hospital and this appears to have re-assured the doctors in the case. One weakness in the argument that C did not have meningitis was the way the parents described her presentation and also the fact that when the GP examined C she was floppy and lethargic and did not respond to the injection of penicillin.
Another feature of this case was that this occurred in 2006 and it is not surprising that the clinicians involved required to rely upon clinical notes made at the time. The child’s mother had kept a near-contemporaneous diary of events. This again highlights the importance of clear contemporaneous and accurate clinical note taking.
The Consultant involved in C’s care was a new Consultant and the court confirmed that in law the skill to be expected of a doctor is that of reasonably competent member of the profession who has the same level of seniority, irrespective of the length of experience in that post with reference to FB v Princess Alexandra Hospital NHS Trust [4]. The court also emphasised there is a duty to ensure that patients are seen by clinicians of the appropriate specialism and the appropriate level of seniority [5].
In Jackson & Powell on Professional Liability [6] it is argued that it is unrealistic to demand identical standards of competence from persons who come from different ranks of the same profession. It is suggested that there should be a combined objective/subjective test namely the:
“…skill and care which is ordinarily exercised by reasonably competent members of the profession, who have the same rank and profess the same specialisation (if any) as the defendant.”
Jones[vii] states that it is not clear why a patient’s claim to legal redress should differ where he receives the identical treatment from Dr A who is a consultant and from Dr B a SHO and that if a defendant cannot exercise reasonable care, he should not undertake the task at all [8]
A single standard of care is achieved by assessing the conduct to the task undertaken and what is objectively reasonable does not change with the experience of the doctor. The duty engages when the doctor undertakes the act and by doing so professes that he has the competence to perform it with skill and care. Undertaking work which is beyond a doctor’s competence will constitute negligence [9].
In Jones v Manchester Corporation [10] a patient died from an excessive dose of anaesthetic administered by a doctor who had been qualified for 5 months. The Court of Appeal made it clear that it was no defence to an action by a patient to say that she did not have sufficient experience to undertake the task.
In Wilsher v Essex Area Health Authority [11] the majority of the Court of Appeal adhered to an objective standard and Mustill LJ said that the notion of a duty tailored to the actor, rather than the act which he elects to perform has no place in the law of tort. However, having said that if a professional person assumes responsibility to perform a task, he must bring to it the appropriate skill and care. It was then said that the standard should be related not to the individual but the post he occupies.
Glidewell LJ applied the Bolam test and said:
“In my view, the law requires the trainee or learner to be judged by the same standard as his more experienced colleagues. If it did not, inexperience would frequently be urged as a defence to an action for professional negligence.” [12]
In McKeachie v Alvarez [13] a surgeon was held liable for severing a nerve despite the fact it was the first occasion he performed the procedure. It was found he should have been aware of the existence of the nerve and he could have seen and avoided causing damage.
In Freeman v Marshall & Co [14] Lawton J observed in respect of an estate agent who was not a qualified surveyor that “if he held himself out in practice as a surveyor he must be deemed to have the skills of a surveyor and be adjudged upon them.”
Doctors must recognise their limitations and where necessary seek the advice or supervision of more experienced colleagues, or refer a patient to a specialist [15]. In Payne v St Helier Group Hospital Management Committee [16] a casualty officer was found to be negligent in failing to arrange for a patient to be examined by a consultant and in Dillon v Le Roux [17] a doctor assisting in an emergency room with no emergency room training was found liable for failing to arrange review by a doctor with suitable experience. In R v Lanarkshire Health Board [18] Lord Brailsford provided that if a less experienced doctor considers that the application of a guideline is inappropriate, he/she should consult with a more senior colleague.
Inexperienced doctors will discharge their duty of care by seeking the assistance of more experienced doctors. In Wilsher v Essex Area Health Authority the junior doctor was found not negligent but the Registrar was negligent. In Anderson v Queen Elizabeth II Health Sciences Centre [19] the more senior doctor supervising a junior in a procedure was found to be negligent because he was aware of his inexperience. In Drake v Pontefract Health Authority; Wakefield and Pontefract Community NHS Trust a Consultant Psychiatrist was found to be negligent in permitting an inexperienced SHO to treat a patient who was a suicide risk without supervision. In Greenhorn v South Glasgow University NHS Trust [20] the supervising consultant had failed to satisfy himself that the specialist registrar had sufficient recent experience.
It is recognised that expert witnesses should ground their opinion in literature and in this case reference was made to clinical guidance issued by NICE in 2007 titled “Feverish illness in children:assessment and initial management in children younger than 5 years”. This came into force in January 2006. The court felt that considerable caution required to be applied before criticising any clinician for not adopting its practice and the court preferred to consider the extracts from textbooks provided and use the guidance as a cross check.
It is interesting that the defendant’s argued that if the case succeeded this would have wide ranging implications for the practice of paediatrics and the NHS because it would mean that every child assessed by a GP as floppy, lethargic, glazed and vacant referred by ambulance to hospital would require to be admitted treated with IV antibiotics and given a lumbar puncture even if they were alert on arrival. The suggestion appeared to be that in some way this was a fact the court should take into account in determination of the question of negligence in law. The response by the court to this argument was to refer to the NICE Guidelines which require this and it was said that there is no evidence that compliance with the NICE Guidelines would have wide ranging deleterious implications for the practice of paediatrics.
This type of argument was also advanced in Hughes v Turning Point [21] where it was suggested that the court should not make a finding of liability against a charity because this would lead to the closure of a facility important to homeless people. This argument appeared to find some favour with the court however it is unclear where this defence to an action of professional negligence is found in a law.
[1] Benzylpenicillin (Penicillin G) is a narrow spectrum antibiotic used to treat infections caused by susceptible bacteria. It is a natural penicillin antibiotic that is administered intravenously or intramuscularly due to poor oral absorption.
[2] A lumbar puncture is a medical procedure where a doctor removes a small amount of cerebrospinal fluid for testing. The fluid is taken to the lab and analysed to determine if the patient has meningitis
[3] [2020] EWHC 1445 (QB)
[4] [2017] EWCA Civ 334 [63]
[5] Ibid per Thirwall LJ at [30] and Jackson LJ at [59]
[6] 8th Edition, 2017 Sweet & Maxwell
[7] Medical Negligence, 5th Edition
[8] Bova v Spring [1994] 5 Med.L.R. 120; Jabang v Wadman [2017] EWHC 1894 (QB) where it was observed that the objective standard is not dependent on the knowledge and experience which the particular defendant has actually acquired.
[9] FB v Rana [2017] EWCA Civ 334
[10] [1952] Q.B. 852
[11] [1987] Q.B. 730
[12] [1987] Q.B. 730 at 774; see also FB v Rana [2017] EWCA Civ 334; Djemal v Bexley Health Authority [1995] 6 Med.L.R. 269
[13] (1970) 17 D.L.R. (3d) 87, BCSC
[14] (1966) 200 E.G. 777
[15] Wilsher v Essex Area Health Authority[1987] Q.B 730 at 777; Fraser v Vancouver General Hospital (1951) 3 W.W.R. 337
[16] The Times, 12 July 1952
[17] [1994] 6 W.W.R. 280 BCCA
[18] {2016] CSOH 133; 2016 G.W.D. 31-556
[19] 2012 NSSC 360
[20] [2008] CSOH 128
[21] [2019] CSOH 42