Sutcliffe v BMI Healthcare Ltd

This is a truly tragic case in which, whatever the outcome of this appeal, huge sympathy pours out towards all those involved, but especially towards Julie Sutcliffe, who brings these proceedings on behalf of her husband, Barry Sutcliffe, the claimant. The tragedy is that he has no remaining appreciation of what has happened to him or what is going on.

He was a healthy, fit 33-year-old, who enjoyed playing rugby football, when he was admitted to the defendant’s Princess Margaret Hospital at Windsor on 7^th November 2001 for a routine knee operation. The operation was successfully performed under general anaesthetic that evening by an orthopaedic surgeon, Mr Unwin. After the operation, Mr Sutcliffe was taken first to a recovery room and then to a single room in a ward. During the night he was successively under the care of a number of nursing staff. Subject to one matter observed in the recovery room, which I shall come to later in this judgment, he was observed during the night to be making a normal, satisfactory recovery from his operation. He did not sleep much and he was naturally in some pain from the operation. He was able to relieve the pain by controlled self-administered doses of morphine delivered by a standard device for Patient Controlled Analgesia for which the acronym is PCA. At around 6.00 a.m., he was asleep and nurses took a considered decision not to wake him because he had not slept much during the night. Shortly before 8.00 a.m., Mr Unwin, the surgeon, went into his room, observed him to be asleep, and satisfied himself that he appeared to be making a normal satisfactory recovery. He looked “totally well to me”, said Mr Unwin in evidence. Nurse Hammond went into his room at 8.15 a.m. and observed him to be asleep on his right side and snoring. His colour and respiration gave her no cause for concern. His snoring was unremarkable – much the same as that of 30 per cent of the healthy male population – not the laboured snoring, noticeable as such to an experienced nurse, of a person with breathing difficulties. Nurse Hammond left him to sleep.

Shortly after that, as His Honour Judge Reddihough, from whose decision of 5^th July 2006 in the Queen’s Bench Division this appeal is brought, found, Mr Sutcliffe vomited in his sleep. Normally, if a person vomits in their sleep, they wake up immediately and cough by reflex action. This is known medically as a gag reflex. The gag reflex and coughing clear the person’s airway and, unpleasant though it may be, their breathing is not materially affected. However, tragically, Mr Sutcliffe’s gag reflex was impaired, as the judge found on the basis of expert evidence, because he was in deep sleep and because of the effect of the morphine he had taken during the night. The result was that he breathed in the vomit and his airway was blocked. He suffered what subsequent radiological examination shown to have been a “whiteout” in one of his lungs and there was a sudden catastrophic reduction in the oxygen supply to his blood. This resulted in massive brain damage from which he will not recover. His wife, herself a nurse, found him in this state when she went into his room at about 10.40 a.m. that morning. An intervening short observation by a nurse had not, as it happened, detected his condition, but nothing turns on that.

Mr Sutcliffe, through his wife, brought this claim against the hospital alleging that his brain damage was caused by negligent nursing care between the time when he was in the recovery room and the time when he vomited. The judge found that the nursing had been negligent in a number of respects, but he found that none of these caused the catastrophic event and its consequences. He dismissed Mr Sutcliffe’s claim, and this is his appeal, brought with Sir Henry Brooke’s permission, against that decision.

Each party called a number of expert witnesses, among whom consultant anaesthetists were prominent, Dr Simpson called on behalf of the claimant and Dr Davies called on behalf of the defendant. They gave opinion evidence as to the cause of the catastrophic event. The judge preferred the evidence of Dr Davies and gave convincing reasons for doing so (see paragraph 88 of the judgment). Also of importance were nursing experts, Mrs Hallett on behalf of the claimant and Mrs Johnson on behalf of the defendant. They were agreed on certain matters, if not on others. The main area of disagreement was whether it was a reasonable nursing decision to allow Mr Sutcliffe to continue to sleep at and after about 6.00 a.m. The judge preferred the evidence of Mrs Johnson that the nurses exercised reasonable clinical judgment in accordance with a responsible body of nursing opinion, and, so far as they disagreed, he rejected Mrs Hallett’s view that it was sub-standard nursing not to perform observations at or after 6.00 a.m. He gave persuasive reasons for this conclusion in paragraph 118 of the judgment. Mrs Johnson’s opinion was that nursing staff would not have expected a young patient who had undergone a routine operation to have lapsed into unconsciousness and respiratory obstruction on the morning after the operation when the indications were that he was sleeping, his breathing rates were normal, his colour was unchanged and his operation wound was unremarkable. The judge also accepted evidence to the effect that observations or actions to rouse Mr Sutcliffe at or after 6.00 a.m. and up to very shortly before the catastrophic event occurred would not have provided results or information which would have caused concern or prevented the catastrophic event.

It is now necessary to give further summary details of some of the evidence.

The operation to Mr Sutcliffe’s knee was uneventful and satisfactorily performed. It took about an hour. The anaesthetist, Dr Lillywhite, had assessed Mr Sutcliffe as ASA1, the lowest anaesthetic risk. Dr Lillywhite had prescribed post-operative Patient Controlled Analgesia (PCA) and that he should be given oxygen overnight as required. The judge described the PCA device in paragraph 6 of his judgment. Mr Sutcliffe was on a care plan which required his temperature, pulse, breathing and blood pressure to be taken at intervals of decreasing frequency during the night. Not all of these were in the event performed and there is some criticism of the nurses for this. But, upon the judge’s findings on other matters, it is the decision not to perform these observations at 6.00 a.m. with which the appeal is mainly concerned. The PCA protocol required assessments of the patient’s conscious or sedation level, his rate of breathing and his pain level to be made at intervals of decreasing frequency during the night. This was done and the results gave no cause for concern.

Mr Sutcliffe was in the recovery room for about 40 minutes from 7.50 p.m. under the care of Sister Vincett. At 8.30 p.m. his oxygen saturation had fallen to 90%. Sister Vincett did not inform Dr Lillywhite of this. She sent the patient to the ward notwithstanding the drop in oxygen, because in her judgment he was fit and well, fully recovered and absolutely fine. As I have said, Mr Sutcliffe was not given oxygen then or later in the night. The judge found (paragraph 114 of the judgment) that the nursing staff in the recovery area were negligent in failing to provide oxygen therapy to Mr Sutcliffe, in failing to notify the anaesthetist, and in sending him to the ward without these steps being taken. The main theme of Dr Simpson’s opinion as to the cause of the catastrophic event the following morning was that, starting with this reduction in oxygen in the recovery area, there was a general depletion of his oxygen level during the night and thus that the negligence in the recovery area was causative of the catastrophe. The judge rejected this on, to my mind, amply persuasive factual and expert evidence, holding that, notwithstanding this negligence, Mr Sutcliffe’s oxygen level in fact recovered overnight without assistance. He further accepted Dr Davies’ opinion that oxygen depletion which was less than catastrophic in itself would not have caused the critical impairment of Mr Sutcliffe’s gag reflex. So this negligence in the recovery room was not causative.

Back on the ward, such blood pressure, pulse and temperature readings as were made were all within normal limits, as were all his breathing, pain and sedation scores. He took regular doses of morphine, but there is no suggestion that that in itself was wrongly or excessively prescribed.

Mr Sutcliffe was initially under Nurse Sally Everett’s care. She was entirely satisfied with his condition. He was very wide awake and comfortable. Nurse Carol McKenna, who followed her on duty, recalled him as joking and talking, lucid and extremely well. She gave him a drink and a light meal. He was sitting up and he telephoned his wife and his mother. By close to midnight, she had observed his recovery to be perfectly normal. Mr Unwin saw him two hours after the operation and he was doing well. He was jovial and joking about football. Dr Lillywhite, the anaesthetist, saw him on the ward during the evening. Based on his observation, he considered that there was no need for him to have been placed on oxygen overnight.

Nurse Deborah Hawkins, with Nurse Nelson, was on duty from midnight to about 7.45 a.m. There was some question as to the extent to which Mr Sutcliffe was asleep during this period. But he was, for instance, awake with the television on and sitting up at 2.00 a.m. At 3.00 a.m., she and Nurse Nelson saw that his fluid bag was empty, so they put another fluid bag up and took his blood pressure which was slightly on the low side. She had observed him snoring, but it was normal snoring not indicative of airway obstruction. Generally he was bright and alert. He ate, drank and he watched television. He was asleep at 6.00 a.m. and she did not then shake or touch him because he had been wide awake at all times she had seen him up to then. She saw him again at 7.00 a.m. still sleeping. Nothing had changed. He had not taken any morphine during that period.

Nurse Linda Nelson saw Mr Sutcliffe about three times during her night shift. He was pleasant and chatty. Whenever she saw him that night, he was well, talking and drinking, watching television and generally well. His blood pressure at 3.00 a.m. was 109/56mmHg. At 5.00 a.m. he was completely conscious and fully lucid. She confirmed that she had discussed with Nurse Hawkins whether to wake him at 6.00 a.m. when he had eventually fallen asleep. She had been in nursing for 32 years and believed that she could tell the difference between someone sleeping normally and someone unconscious. She had been a night nurse for eight years, often heard patients snoring and believed she would recognise if they had difficulty breathing.

Nurse Hammond was on duty from 7.00 a.m. The night staff reported to her that Mr Sutcliffe had had little sleep overnight and had only gone to sleep in the latter part of their shift. As I have already said, she checked him at 8.15 a.m. She also popped back in at 9.30 a.m. and 10.00 a.m. She said she could recognise laboured snoring. At 8.15 a.m., she had assessed his sedation rate as 4. He looked asleep and snoring. She did not try to wake him. If his colour or breathing rate had given her cause for concern, she would have taken further steps. At 8.15 a.m. his features had good tone, whereas she believed an unconscious person would have looked droopy and saggy.

Mr Unwin did a ward round at about 8.00 a.m. He agreed to let Mr Sutcliffe sleep. He was lying on his right side, snoring lightly, and he appeared clinically asleep and in no distress. He certainly did not have any signs or symptoms of airway obstruction. When he later saw him at around 11.00 a.m. after the catastrophic event, his breathing sounds were very different. He appeared white/blue and gravely unwell, completely different from the situation at about 8.00 a.m. Mr Unwin could not accept in his clinical judgment that Mr Sutcliffe had hypoxic brain damage when he saw him at a little before 8.00 a.m.

Tracy Hughes, a healthcare assistant, accompanied Mr Unwin on his ward round and gave confirming evidence as to Mr Sutcliffe’s apparent condition at about 7.45 a.m.

Dr Lillywhite was on the ward at about 9.00 a.m. He did not then see Mr Sutcliffe. He was aware of the readily recognisable distinction between normal snoring and snoring associated with airway obstruction. He would not have expected Mr Sutcliffe to have a normal rate of breathing if he had a clinically significant reduction in oxygen saturation. He confirmed that all the recorded blood pressures were normal. He had been perfectly well clinically when he saw him the previous evening. He agreed that blood pressure, pulse and temperature should have been taken at 6.00 a.m. He said that, if he had been told that Mr Sutcliffe’s oxygen saturation was 90 per cent at 8.30 p.m. the previous evening, he would have put him back on oxygen. But if a patient is behaving normally, it is reasonable to assume that they had normal oxygen saturation, otherwise they would exhibit signs of mental clouding and agitation. When he saw Mr Sutcliffe on the ward after the operation, his perfusion was perfectly normal, and so by implication his oxygen saturation was normal.

The judge found all the nurses on the ward credible and honest witnesses. He accepted their evidence. He found Dr Lillywhite and Mr Unwin particularly impressive witnesses. He was entirely satisfied that Mr Unwin gave a true account of what he observed about Mr Sutcliffe shortly before 8.00 a.m. It was almost incredible, if Mr Sutcliffe was then deeply unconscious or had already suffered brain damage, that Mr Unwin should have then said, as he did, something like “he looks sweet”. The judge accepted that if there had been anything untoward shortly before 8.00 a.m., Mr Unwin would have noticed it. The judge said at paragraph 99 of his judgment:

“In my judgment, all the evidence relating to the claimant’s condition on the ward between 20.30hrs on 7 November and 08.15 the next morning clearly indicates that he appeared well and to be making a perfectly normal recovery from his operation. He was having a disturbed and mainly sleepless night, which was not unusual for a patient who had had the operation in question under general anaesthetic.”

I have already indicated that the judge found that the nursing staff in the recovery area were negligent in not reacting to the 90 per cent oxygen saturation rate shortly after the operation (paragraph 114). It was not negligent not to include oxygen saturation monitoring in the PCA regime (paragraph 115). However, the initial negligence made it negligent not to have monitored oxygen saturation before Mr Sutcliffe fell asleep (paragraph 116). It was negligent not to have carried out a full set of ICP observations between midnight and 6.00 a.m., although blood pressure was taken at 3.00 a.m. and was within normal limits. These findings of negligence did not, however, carry the claimant’s claim because, in summary (1) if the observations had been taken as they should, they would in fact have been within normal limits – this in reliance on the nurses’ descriptive evidence and (in the main) Dr Davies’ opinion; and (2) the catastrophic event was not caused by matters which these observations would have revealed.

On the main negligence issue, that is whether the nurses should have performed the various observations at 6.00 a.m. rather than decide to leave Mr Sutcliffe to sleep, the judge said in paragraph 118:

“The nurses on the ward in my judgment were entitled to take account of all the circumstances regarding the claimant. Throughout the night, as I find, in accepting their evidence, the claimant had been well. He was alert, chatting, eating and drinking, watching and operating television, and all of the hourly PCA observations (which were in excess of those required under the Protocol) were normal (as agreed by Drs Simpson and Davies), and the blood pressure at 03.00 was within normal limits. The ICP, as I have observed earlier, allowed for variances including those based on nursing judgment. I consider that, in deciding to allow the claimant to sleep at 06.00hrs for the reasons which they gave, the nurses exercised reasonable clinical judgment in accordance with, as Mrs Johnson maintains, what would be a responsible body of nursing opinion. It is also to be noted that the nurses at 06.00 properly discussed the situation before making that decision, having carried out the PCA observations which were again normal. … Further, in my judgment, on the evidence, nurses on the ward did properly satisfy themselves that the claimant’s snoring was normal and that his airway was not compromised.”

The judge found that it was a breach of nursing duty for the night staff not to have informed the day staff that vital signs had not been taken at 6.00 a.m. But, if they had been told that, they would have allowed Mr Sutcliffe to continue to sleep. This was not negligent, neither were subsequent such decisions at 7.00 a.m. and 8.15 a.m. (paragraph 119).

The claimant’s case was pleaded and advanced on the basis of Dr Simpson’s opinion to the effect that Mr Sutcliffe’s oxygen saturation was depleted at 8.30 p.m. on the evening of the operation; that he was always on the borderline of hypoxia; that it gradually deteriorated overnight; and that he suffered progressive aspirations in the hours before the eventual catastrophe. The judge rejected this mechanism and opinion for well sustainable reasons, and the claimant’s advisors do not strenuously seek to resurrect it on appeal. It is not, therefore, necessary to go into greater detail about Dr Simpson’s evidence, except to note that his evidence varied and developed before and during trial, as did that of Dr Davies, whose evidence the judge did accept. Dr Simpson conceded in cross-examination that there was no evidence upon which to base an opinion that there had been significant hypoxia before 8.15 a.m.

Dr Davies considered that there was no doubt but that Mr Sutcliffe regurgitated his stomach contents and aspirated them into his lungs. Aspiration would not occur unless the level of consciousness was impaired. This was indicated, among other things, by the fact that Mr Sutcliffe had a larger quantity of urine drained after the catastrophic episode than a normally sleeping person would carry without waking up. The severity of the eventual hypoxia after the aspiration would not have been different if Mr Sutcliffe had had oxygen during the night, since the suppression of his gag reflex was not the result of antecedent low oxygen levels, which were themselves less than catastrophic. If Mr Sutcliffe had been unconscious due to hypoxia, “it would have been blindingly obvious”. In fact, in his opinion, Mr Sutcliffe’s oxygen saturation levels returned to normal by the time he was eating and drinking on the ward. They may have dropped mildly when he was asleep and snoring. All Mr Sutcliffe’s measured breathing rates were normal and there was nothing to put the nurses on notice that anything unusual was occurring. There is a clearly observable difference between normal snoring and respiratory obstruction. If Mr Sutcliffe’s temperature, pulse and blood pressure had been measured at 6.00 a.m., they would have been normal.

The catastrophic event occurred very quickly within seconds, possibly preceded by aspiration over no more than five to ten minutes. It was caused by a combination of morphine from the PCA (which had nevertheless been administered in reasonable doses) and the patient’s tiredness following a sleepless night which compromised his gag reflex and cough reflex. The suppressing effect of morphine may have a greater effect on some patients than others. As the judge recorded the evidence in paragraph 64 of the judgment:

“Even if the claimant had been on continuous oxygen overnight, the sequence of events would have evolved in any event and the initial aspiration would not have been prevented as the causes were the morphine and fatigue. At best, the claimant would have been allowed by such oxygen administration a few additional minutes before profound hypoxia occurred.”

The radiologically demonstrated “whiteout” was a clinical sign of a single large aspiration. The continuous administration of oxygen would have had no influence on Mr Sutcliffe’s gag and cough reflexes. An aspiration of the severity suffered by Mr Sutcliffe was extremely rare. Although a combination of morphine and deep sleep had suppressed the gag/cough reflex, there was no reason to suspect that Mr Sutcliffe’s consciousness was impaired to anything worse than a deep level of sleep. It was something beyond normal sleep. But he would have expected him to have been aroused, if a nurse had tried to arouse him. In his experience of patients in this state due to morphine, this is an apparently deep sleep with normal respiration rates, and such patients would be fairly easy to arouse. The claimant, he thought, could have been aroused at 7.00 a.m. or thereafter and would have returned to and remained in the same state of sleep until aspiration occurred. Any minor aspirations after 6.00 a.m. would have been of little consequence. It was a massive aspiration which caused the damage. It was an idiosyncratic result and the performance of none of the observations or tests in the ICP or PCA Protocols would have detected that there was a problem.

There was neuro-radiological evidence which assisted in determining the time when the catastrophic event occurred. There was also evidence from consultant neurologists, Drs. Cartlidge and Davies-Jones for the claimant and the defendant respectively. Dr Cartlidge was prepared to defer to the anaesthetists as to the precise causative effect that led to the event which caused Mr Sutcliffe’s brain damage. Dr Davies was more qualified to deal with the suppression of cough reflex and aspiration. Dr Davies, on being recalled, firmly disagreed with Professor Cartlidge that, if the cough reflex was suppressed by morphine, the claimant would not be rousable. Dr Davies-Jones was of the firm opinion that advising on the clinical effects of morphine fell to the expert discipline of anaesthetics. He said, when he was called, that he thought that the claimant could well have been rousable despite the effect of the morphine on impairing his defences against aspiration. He concluded by saying that, if the claimant’s degree of consciousness was severely depressed, his breathing rate would have been depressed; and it was not.

As I have already said, the judge found Dr Davies a more compelling and impressive witness than Dr Simpson, whose opinion he rejected. The judge was satisfied that Mr Sutcliffe’s brain damage was caused in the manner put forward by Dr Davies. He said at paragraphs 89-90:

“In my judgment, Dr Davies, by reference to the literature and from his own experience was able to demonstrate that such suppression of the gag/cough reflex could occur as a side effect of morphine without the claimant being unconscious or unrousable. It follows that I find that at all material times when the claimant was in this state of deep sleep, he would have been rousable. Although this suggestion was initially firmly rejected by Professor Cartlidge, he did concede that with suppression of the cough reflex, the patient could be roused, albeit, he thought, with great difficulty. In so far as Professor Cartlidge’s view on this point differs from Dr Davies, I prefer the view of the latter, Professor Cartlidge not having the degree of expertise in relation to morphine, as enjoyed by Dr Davies. It is also important to stress that Dr Davies was postulating suppression of the gag/cough reflex sufficient to allow aspiration, not obliteration of the reflex. I further bear in mind that Dr Davies-Jones supported the opinion of Dr Davies.

I also find on a balance of probabilities, as concluded by Dr Davies, that whilst there is a possibility of some minor inconsequential aspirations having occurred, it was a single major aspiration which rapidly caused the claimant’s brain damage within minutes. I particularly find that this scenario is established by reason of the ‘whiteout’ shown on the chest X-ray.”

The judge was satisfied (paragraph 93) that the claimant had not suffered brain damage when Mr Unwin saw him a little before 8.00 a.m., and that it was unlikely that he had suffered it when Nurse Hammond saw him at about 8.15 a.m. He considered it likely that the major aspiration which caused the brain damage occurred very soon after 8.15 a.m., which was within the time frame derived from the radiological evidence.

Specifically as to causation, the judge found (paragraph 120ff) that the claimant’s oxygen saturation had returned to normal on the ward; that hypoxia of itself would not have suppressed the gag/cough reflex and that administration of oxygen would not have prevented aspiration; that the failure to carry out oxygen or vital signs observations between midnight and 6.00 a.m. was not causative of the claimant’s brain damage; that his temperature, pulse and blood pressure would have been normal at 6.00 a.m., if they had been taken then; that oxygen saturation would then have been normal or only slightly reduced; and that if the nurses had carried out vital signs observations at 6.00 or thereafter or attempted to arouse him, the signs would have been normal and the claimant would have been aroused. He would then have fallen back into the same state of sleep, as Dr Davies had said, and the aspiration and brain damage would still have occurred. These were all findings of fact, or the acceptance of expert opinion, available to the judge on the evidence before him, such that submitting on appeal that the judge’s findings and reasons for dismissing the claim were wrong is not easy.

The grounds of appeal implicitly acknowledge that the bases for arguing persuasively in this court that the judge’s decision was wrong are limited. This is so not least because the judge made factual findings that further observations than were in fact made at and after 6.00 a.m. would have revealed, as was the fact, that the claimant was then recovering well, and that he was in fact so observed by Mr Unwin a little before 8.00 a.m.; and that the claimant was then rousable, although most regrettably in a condition where morphine had inhibited his gag reflex.

There are nominally nine grounds of appeal, although they do not on examination in substance amount to as many as that as there is a degree of repetition.

There is a muted attempt within ground 8 of the written grounds of appeal to take the causation argument back to the established negligence in the recovery room soon after the operation, when oxygen saturation was measured at 90% but nothing done about it. This would revert to Dr Simpson’s main opinion, which the judge rejected for convincing reasons. The judge was, in my view, entitled to accept evidence to the effect that the claimant’s oxygen saturation must have recovered on the ward during the night.

That apart, the essence of the written grounds of appeal is that the judge should not have accepted Mrs Johnson’s evidence that it was reasonably justifiable nursing practice to leave the claimant to sleep at 6.00 a.m. without then carrying out pulse, temperature and blood pressure observations; that these observations would have detected a reduced level of consciousness; that the risk of not performing the observations far outweighed any risk of performing them and that the judge should accordingly have rejected Mrs Johnson’s opinion as not having a logical basis and therefore not representing a body of responsible nursing opinion; and that Dr Davies’ evidence that the claimant would have been rousable was not sustained by literature or his experience, nor by the evidence that the claimant was deeply sedated so that his gag/cough reflex was in fact impaired.

Part of these written grounds of appeal rely on the decision of the House of Lords in Bolitho v City & Hackney Health Authority [1998] AC 232. The decision embraces a development of the classic Bolam test for professional negligence which itself includes that a professional person who acts properly in accordance with the opinion of a reasonable, responsible and respectable body of people of that profession will not be held to be negligent. The development is to emphasise that the exponents of the body of opinion relied on have to demonstrate that such opinion has a logical basis. In cases involving the weighing of risks against benefits, the judge, before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter (page 242A). Lord Browne-Wilkinson, with whose opinion the other four members of the judicial committee agreed, said at page 243A-D:

“These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts informing their opinion. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.

I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views, both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed.”

Mr John Grace QC, for the claimant, did not press forcefully in oral argument a ground of appeal which relied on the decision in Bolitho. He implicitly recognized that it is unpersuasive, as I think. In the present case, the ICP observations, which were not performed at and after 6.00 a.m. were not really questions of diagnosis and treatment. This does not make the considerations to which Lord Browne-Wilkinson referred necessarily irrelevant. But the risks, as they would have appeared, were not risks of that kind. The risk was that a healthy young man who was apparently making an uneventful recovery from a routine orthopaedic operation did not in truth have a satisfactorily normal pulse, temperature or blood pressure. In fact, on evidence which the judge accepted, his pulse, temperature and blood pressure were then within normal limits. Mrs Johnson’s opinion, to the effect that it was within proper nursing competence to leave Mr Sutcliffe without then making these observations plainly, to my mind, had a logical basis, that is that it was reasonable to decide to let a patient who had had little sleep since his operation continue to sleep. In this case, it seems to me to be plain that Mrs Johnson had weighed the risks and benefits, not least because her opinion was subjected to test in cross-examination. In short, I think that it is stretching a point on the facts of this case to say that the development of the law in Bolitho really applied in this case at all. I certainly do not think it to be one of the rare cases in which the judge should have rejected Mrs Johnson’s opinion for want of logic.

The main force of Mr Grace’s submission was and, I think, had to concern the question of rousability. The claimant’s level of sedation had been properly observed by means of the PCA Protocol observations during the night and had been within normal limits. The failure to carry out the vital signs observations at and after 6.00 a.m. is relied on, not for the direct results they would have given, but because performing them would have indicated his level of consciousness. He must, it is said, have been more deeply unconscious than Dr Davies considered. It is further said, I think, that, apart from vital signs observations, the claimant’s level of consciousness or rousability should have been assessed at or after 6.00 a.m. The attack therefore is, and I think has to be, on Dr Davies’ opinion which, in its simplest form, was that morphine had suppressed the gag/cough reflex, but had not made the claimant unrousable. This was indeed Dr Davies’ opinion, clearly expressed, which the judge accepted. But it is submitted that there was no sufficient basis for this opinion. It is said that Dr Davies had no experience of a case such as this, and none appeared in medical literature. The level of the claimant’s unconsciousness could be judged from the fact that he did not cough or wake up when he vomited. Variants of this submission in written form were that measuring oxygen saturation should have taken place because his oxygen saturation had been low immediately after the operation. If there had not been the initial negligence, the claimant would not have been regarded as a routine patient; and the measuring process would have tested his level of consciousness. This variant is not, by itself, persuasive because, on the judge’s factual findings, the claimant’s oxygen saturation level would have been seen to have recovered well before 6.00 a.m. Another variant is that the fact that the ICP observations had not been undertaken since midnight and the failure of the night staff to inform the day staff of this made the decision to let the claimant sleep at 6.00 a.m. irresponsible. This submission collides with Mrs Johnson’s opinion which, for the reasons I have indicated, the judge was entitled to accept.

Mr Grace had as his first oral submission that all that was required for proper nursing care of the claimant was for someone to place a hand on him to monitor his vital signs. That would have revealed a reduced level of consciousness and remedial steps would have followed. Vital signs should have been taken at and after 6.00 a.m. and his level of consciousness should independently have been assessed. On the evidence this could not properly be done by visual observation alone.

Mr Grace said that this was not an appeal against the judge’s findings of fact. However, later in his submissions he took us through substantial passages in the evidence. The purpose of this can only have been, I think, to persuade us that the judge’s findings of fact were wrong, not least because the heart of the judge’s decision rested on findings of fact.

As Mr Grace agreed, ground 7 of the Grounds of Appeal was a summary of the whole appeal. Ground 7 was to the effect that monitoring of the claimant, including his level of consciousness and rousability, ought to have been carried out before, at and after 6.00 a.m.; and that this monitoring would have detected a reduced level of consciousness in time to take remedial action before his brain damaging aspiration occurred. As Mr Grace showed us, PCA observations were recorded at 6.00 a.m., 7.00 a.m. and 8.15 a.m. giving a sedation score of 4 (on a scale of 1 to 5) on each occasion with normal breathing rates of 14 or 16 breaths per minute. A later document of the defendant’s described a level of consciousness of 4 as “mostly sleeping”, and of 5 as “only awakens when roused”, for which level there is a note that the observer should always check that the patient is rousable. I am inclined to agree with Mr Grace that there is something of a tension between the judge’s finding that there was negligence in not performing all the ICP observations between midnight and 6.00 a.m. and not informing the in-coming day staff that these observations had not been performed on the one hand, and the finding that the nurses were not negligent in leaving the claimant to sleep at 6.00 a.m. on the other. The latter finding is, however, firmly based in the judge’s acceptance of the evidence of Mrs Johnson, and the tension is reduced by the general evidence that the claimant was making an entirely normal recovery and the judge’s finding that this was indeed so.

Mr Grace concentrated on rousability and the second part of ground 7 of the Grounds of Appeal. The judge’s error, he said, was in not recognising that there were degrees of rousability or, as he put it, shades of grey. It was a matter of degree how far a nurse would have to go to rouse the claimant. Was it difficult to rouse him? His level of consciousness should have been assessed with this in mind. Miss Rodway QC, for the defendants, protested that this was simply not a way in which the claimant’s case had been put. The case was based on Dr Simpson’s opinion as to the medical cause of the catastrophe, which the judge rejected. Mr Grace maintained that the rousability case advanced before this court was certainly advanced before the judge as a subsidiary alternative case. He pointed to passages in his opening skeleton submission and oral opening which referred to levels of consciousness. It certainly seems to me to have been no more than a subsidiary case.

However that may be, and accepting for the purpose of the argument that a case depending on degrees of rousability was put at trial, in my judgment the judge’s conclusion as to causation had a firm evidential base. Dr Davies’ evidence included (at page 1082 of the transcript) his opinion that, if a nurse had tried to rouse the claimant, he would expect that he would be able to be roused. Dr Davies accepted that it was not normal sleep. But when Mr Grace asked him, with reference to a passage in his report, whether it did not follow that the claimant would be more difficult to rouse and detectably more difficult to rouse if his level of consciousness was as impaired as Dr Davies suggested, Dr Davies’s answer was:

“Well, all I can say is that my experience of patients who are in this state due to morphine, that is, apparently deeply asleep, on morphine with a normal respiratory rate, taking that as a global picture, they would be fairly easy to rouse.”

And then at page 1083:

“I think that if she [the nurse] had tried to arouse him at 7 o’clock he would have been fairly readily aroused. And of course he had no more morphine after that time, and so I think he would have remained in the same state until the aspiration occurred.”

Given that the judge preferred and accepted the opinion of Dr Davies, these passages of evidence not only clearly support the judge’s finding, but also dispose of the case advanced on appeal that the judge did not deal with degrees of rousability. According to Dr Davies, the claimant would have been fairly easy to rouse, the clear implication being that his condition in that respect, as in others, would not have given cause for concern. It is in this context of general interest that Dr Simpson and Dr Davies had agreed at an experts’ meeting on 18 April 2006 that, unless continuous instrumental monitoring and continuous observation had been employed, the brain damage could not have been prevented and that intermittent monitoring of levels of consciousness/sedation alone would not have altered the course of events. There is no suggestion on this appeal that there should have been continuous instrumental monitoring or continuous observation.

As the appeal was argued and in any event, the judge’s finding about the claimant’s rousability after 6.00 a.m. was critical to the issue of causation, because, in the light of that finding, questions of possible antecedent negligence would not carry the claimant’s case, unless the rousability finding can be shown to be wrong. I do not consider that the judge’s rousability finding is shown to be wrong.

More generally, I have anxiously considered Mr Grace’s submissions, but in the end I am not persuaded by them that the judge was wrong to accept Dr Davies’ opinion for the following reasons. First, the judge was clearly, in my view, entitled to regard Dr Davies as in general the more persuasive of the expert anaesthetists. On the points which matter in this case, experts of other disciplines deferred to the anaesthetists. Second, although Dr Davies had no experience of the precise catastrophe which happened in this case, he undoubtedly did have experience of the effect of morphine in the quantities taken by the claimant on consciousness and levels of sedation. He was thus entitled to say, if it was indeed his experience and opinion, that the amount of morphine taken by the claimant would not make a patient such as him deeply unconscious. Third, if indeed morphine suppresses the gag/cough reflex, there is nothing illogical in it doing so when the effect on the patient’s consciousness is less than profound, because a reflex is an action or function which occurs apart from consciousness. Fourth, Dr Davies was supported in general terms by Dr Davies-Jones, who referred to the claimant’s breathing rate as indicative that his consciousness was not severely depressed.

I have referred to specific parts of Dr Davies’ evidence which support the judge’s conclusion and provide the answer to the main burden of the claimant’s appeal as promoted by Mr Grace. The judge was entitled to accept this evidence in reaching conclusions of fact which are not, in my judgment, amenable to appeal.

For these reasons I would dismiss this appeal.

I agree.

For the reasons given by Lord Justice May, I too would dismiss the appeal.