Surena Masih & Anor. v The Royal Wolverhampton NHS Trust

This is an appeal from a decision of HHJ Boora [the Judge] handed down at Wolverhampton County Court on 17 October 2022.

The Judge dismissed the claim with costs against the Claimants.

By notice of appeal dated 4th November 2022 (sealed 7^th November 2022) the Appellants seek to obtain judgment on liability for damages to be assessed later.

Permission to appeal was granted on the papers by Eyre J on 21.2.2023 refusing all grounds except for: 1 and 7, 12-14 and 22-29.

The Court was provided with various digital appeal bundles named as follows: (1) appeal hearing bundle; (2) supplemental bundle; (3) appeal bundle part 1; (4) appeal bundle part 2; (5) application for determination at hearing bundle; (6) Doc00205620230510150351.pdf; (7) skeleton arguments from both parties; (8) Masih Exhibits; (9) the Appellants’ speaking note.

These bundles contained: 1,758 pages in the appeal bundle, which included the whole of the trial bundle and a bundle for the pre-trial review and 523 pages for the supplementary bundle. There was no core bundle of key medical records for the appeal.

No suggested reading list was provided and the Appellants’ skeleton had no appeal bundle page references in it.

CPR 52B PD at para 6.4 requires that only relevant documents are put into the appeal bundle. The Appellants ignored that rule. It was a challenge to sort out what to read before the hearing. The PDF bookmarking of the digital bundles was inadequate and confusing. The bundles sent in just before the appeal were repeats of earlier bundles. In the event Counsel for the Appellants had a different bundle with different pagination.

This was a tragic fatal accident claim arising from the death of Andrew Masih Mattu [I hope his family will not min me calling him Andrew] between 3.30 and 4.25 am on 8.1.2016 in the Defendant’s New Cross Hospital, Wolverhampton. He had been admitted to ward A14 on 2.1.2016 with quite severe pancreatitis and was treated conservatively. He had been provided with an oxygen mask. His family had agreed with the hospital for the family to provide 24 hour supervisory care support. On 8.1.2016 he got up at night needing to go to the toilet and at just before 03.30 am, having handed his urine bottle (for measurement) to his cousin, Jonathan, he locked the cubicle door and suffered a wholly unexpected cardiac arrest. When Jonathan realised Andrew was not responding verbally he called the nurses. They arrived and (according to the notes) they unlocked the door from the outside, after some difficulty, taking 2-3 minutes. They took him out of the cubicle and tried to resuscitate him. When they failed they made a crash call at 03.38 am and the resuscitation team arrived including Senior Registrar Berair [SRB]. Electrodes were put onto his chest. Andrew was in PEA (pulseless electrical activity of the heart, so no blood was being pumped around his body) for 25 minutes whilst they tried to resuscitate him through chest compression. Then he went into ventricular fibrillation so SRB could (only then) give Andrew’s heart “shocks” to try to restore the rhythm. Three were delivered, alongside various heart stimulating injections, but by 04.25 am Andrew was in asystole (heart stopped beating and no electrical activity-flat lining) and so had died.

The Claim Form and Amended Particulars of Claim in the Appeal Bundle were undated. Andrew’s family sued the hospital for damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. The breaches alleged included failing to transfer Andrew to ICU. On causation the Claimants pleaded that had Andrew been given ICU high dependency treatment involving: better fluid balancing; better oxygenation; perhaps mechanical ventilation or O2 intubation, all to prevent hypoxia occurring and causing the cardiac arrest, he would have survived. It was asserted that in ICU Andrew would not have gone to the toilet without his oxygenation. If he had been better oxygenated he would have survived. The lack of oxygen caused the arrest. It was specifically pleaded that the delay in opening the door of the cubicle was not causative on the Claimants’ case. I note here specifically that there was no mention of ECG monitoring anywhere in the Amended Particulars of Claim.

In the Amended Defence, the Defendant admitted that Andrew should have been cared for in ICU from 5^th January 2016 with “level two care”, however the Defendant denied causation. The Defendant pleaded that Andrew had an oedematous and necrotic pancreas. He was stable on 7.1.2016. He was oxygenated properly with a mask on the ward. He could and did mobilise (walk about) on ward A14. He had no need for intubation or mechanical ventilation. He had no evidence of significant hypoxia. On the but for projection: whether, had he gone to the toilet from ICU, the same result would have occurred, it was pleaded that the probable cause of the heart stopping was undiagnosed arrythmia. The Defendant asserted that the crash response and result after the attack would have been the same on ICU.

Breach was admitted, so the issues for the trial were:

Before trial the Claimants’ counsel wrote this in his skeleton argument:

Closing submissions were taken on 3 separate days: 16 May, 26 July and 13 September 2022. On the first day of closing submissions that Claimants pursued their originally pleaded case, so the Claimants wrote in their document entitled “Final Submissions” on 16 May 2022 that:

It was therefore a considerable surprise to the Judge and the Defendant that on the second day of closing submissions, in July 2022, the Claimants’ case on causation due to hypoxia was abandoned and the Claimants accepted the Defendant’s case on the causation of Andrew’s cardiac arrest, namely arrythmia.

The Claimants applied to re-amend the claim as follows:

Despite the Defendant’s objection to this very late amendment of the fundamental issue in the case permission was granted. No appeal from that decision is before me.

So the Claimants had changed horses. They had not done so “mid-stream”, instead they did so right at the end of the crossing of the river. What then was the Claimants’ new case? To what type of horse had they changed?

The new pleaded case was based solely or mainly on ECG monitoring. Hypoxia was abandoned and the delay in medical staff getting into the locked cubicle had been expressly disavowed from the start.

The two real issues in this appeal in my judgment related to (1) whether, on the balance of probabilities, continuous ECG monitoring would have picked up the arrythmia and prevented cardiac arrest, and (2) whether resuscitation of Andrew in ICU would have saved his life. This involved asking whether the Judge wrongly accepted the Defendant’s expert and lay evidence, when determining the Claimants’ new case on causation, instead of the evidence, which the Claimants’ sought to rely on in part two of their final closing submissions in July and September 2022.

I take into account that under CPR rule 52.21 every appeal is a review of the decision of the lower court, unless the court rules otherwise or a practice direction makes different provision, it will not hear oral evidence or new evidence which was not before the lower court and will allow the appeal if the decision was wrong or unjust due to procedural or other irregularity.

This appeal is restricted to the evidence before the lower court. Additional pieces of evidence can only be allowed them into evidence under CPR rule 52.21(2) and the three grounds in Ladd v Marshall [1954] 1 W.L.R. 1489 (CA), namely that it was (1) not obtainable with reasonable diligence before the lower court, (2) would have an important influence on the result and (3) was apparently credible though not incontrovertible.

Under CPR rule 52.20 this court has the power to affirm, set aside or vary the order; refer the claim or an issue for determination by the lower court; order a new trial or hearing etc.

For appeals on findings of fact and evidence I take into account the decisions in Henderson v Foxworth [2014] UKSC 41, per Lord Reed at [67]; Grizzly Business v Stena Drilling [2017] EWCA Civ. 94, per Longmore LJ at [39-40] and Deutsche Bank AG v Sebastian Holdings [2023] EWCA Civ. 191, per Males LJ at [48-55], which in summary require that any challenges to findings of fact in the court below have to pass a high threshold test. The trial Judge has the benefit of hearing and seeing the witnesses, which the appellate Court does not. The Appellant needs to show the Judge was plainly wrong in the sense that there was no sufficient evidence upon which the decision could have been reached or that no reasonable Judge could have reached that decision.

So, the threshold was summarised in Deutsche Bank AG v Sebastian Holdings [2023] EWCA Civ 191 , per Lord Justice Males at [48] - [55] thus:

The threshold was also, more recently, considered by Lord Justice Lewison in Volpi v Volpi [2022] EWCA Civ 464, [2022] 4 WLR 48, at paras. 2-4 and 52:

The Appellants’ grounds of appeal were wide-ranging, however, the grounds which are before me are narrow and summarised as follows. I have used English numbering instead of the Roman numerals originally used.

One and Seven: Bolitho not applied, (Bolitho was not applied properly in relation to the “but for” projection and the Judge failed to accept the evidence of Mr. Curran relating to the but for projection which was central thereto).

Twelve – Fourteen and twenty eight: Survival to Discharge, (the Judge preferred the evidence of Dr. McCrirrick and wrongly rejected the evidence of Dr. Cripps and the articles relied upon by him which demonstrated that Andrew had an 83% chance of surviving pancreatitis and a 75% chance of surviving discharge from hospital).

Twenty two – twenty seven, twenty nine: continuous ECG Monitoring would have saved Andrew’s life, (the Judge wrongfully failed to find that in ICU, on the but for projection, Andrew would have been on ECG monitoring continuously which would have identified ventricular arrhythmia and therefore led to faster intervention, which would have saved Andrew's life. Also letters from Mr Curran and Professor Johnson included opinions that Andrew’s sudden death was not caused by pancreatitis but instead by a heart arrest or blood clot and Andrew's death was atypical and unexpected).

For all the other proposed grounds of appeal, the Appellants were not granted permission. So as to be clear about the grounds for which permission was NOT granted, they included allegations against the Judge of:

No application to renew the application for permission on the rejected grounds was filed at Court or made during the appeal.

Inevitably when, in a complicated clinical negligence case, some grounds are permitted and other are refused, there is overlap. In the Appellants’ oral submissions, counsel ignored the boundaries between the grounds permitted and the grounds refused and made wide ranging submissions covering many of the disallowed grounds (except for the judicial bias allegation made against the Judge which was withdrawn). In this appeal, where there is overlap I will generally favour the Appellants and deal with the submissions made rather than exclude them for breaching the permission refusals, but I do not intend to lay down any precedent for doing so and I do not imply the grant of permission by doing so.

On the day of the hearing the Appellants’ counsel sent my clerk (but did not C-efile) a document entitled “speaking note” which was used for his oral submissions. This did not separate out the grounds on which the Appellants had permission to appeal and concentrate on them, but instead dealt with all the original grounds, many of which, as set out above, the Appellants’ had no permission to appeal upon. The Appellants’ skeleton argument was not followed.

The “speaking note” was of little assistance to the Court in this appeal save as to the bundle references therein. It was an attempt to put in a supplementary skeleton argument and to avoid the need for permission to do so.

I consider that the purpose of a skeleton argument is to argue out and fulfil the permitted grounds of appeal. It gives the Respondent notice of the case it has to meet. It informs the Court in advance of the arguments in the appeal. It is not a formality to be abandoned at the hearing by the use of a speaking note.

In his judgment the Judge recorded the Claimants’ abandonment of their pleaded case on hypoxia during closing submissions. The Judge commented that, as a result, much of the evidence which he had heard on hypoxia had become irrelevant. The Judge also recorded that the Claimants had made no application to recall any witnesses to concentrate on the new case on arrythmia and ECG monitoring. In so far as there was a dispute about this during the appeal hearing I accept and find that no application was made by the Appellants to recall any witnesses at the trial.

The Judge found, when accepting the factual evidence of Jonathan, that 30 seconds after their last conversation, Jonathan became worried because he had received no verbal reply from Andrew. He estimated the time as 03.30am. He shouted to the nurses who came immediately and it took them two to three minutes to get into the cubicle. When the door was opened he saw that Andrew was sitting on the toilet leaning against the wall. The crash trolley arrived 5 to 7 minutes later.

The Judge made no findings of fact in relation to the clinical notes in his judgment and did not refer to them. However, the following are relevant:

In his Judgment the Judge dealt with the evidence of Dr. Li. He was the ICU witness of fact from the hospital. The Judge noted that he advised that intervention would have been quicker on ICU. He gave evidence and the Judge recorded that the family of patients being given level 2 care at ICU could be allowed to visit and such patients could be permitted to go to the toilet. The Judge noted that fluid administration would be the same as on a ward and that alternative oxygen support was available. He gave evidence that hypoxia induced cardiac arrest would generally get a quicker response on level 2 than on the ward. In re-examination the Judge noted that Dr. Li said there would be no difference between ICU and the ward in relation to the locked toilet door. Likewise for the treatment once the door was opened.

Mr. Curran was the surgeon in charge of the ward. The Judge made various findings of fact. He recited Mr. Curran's evidence, including explaining that the outreach note set out above was made by an ICU critical care nurse on ward A14. He noted that Mr. Curran advised that Andrew's fluid balance was critical; there was no treatment for pancreatitis; pain relief would be given and Andrew’s fluid balance would be maintained and then nature would take its course. The Judge recorded that Mr. Curran found Andrew’s death a shock and sudden.

The Judge recited Mr. Curran’s letter dated 5th January 2017 which set out that Andrew did not have organ failure, he had organ dysfunction, no signs of infection in his lungs and that he could not explain where the pathologist had got the information that Andrew was suffering alcohol withdrawal symptoms from, although it was likely to be the medical records.

Despite what was said in that letter, in evidence Mr. Curran advised that Andrew’s behaviour on the 4th and 5th of January was alcohol withdrawal behaviour. Andrew had been seen by a drug and alcohol liaison team member on the 5th or 6th of January. Mr. Curran advised that an EWS score (of 9) which Andrew had on the 8th of January at 01.41 am was a “cause for concern”. Mr. Curran advised that in the last two days of his life Andrew was stable and was not deteriorating. His condition worsened at 21.50 hours on the 7th.

I have read Mr. Curran's witness statement and there is nothing in that in relation to ECG and the but for projection. I have also read the transcript of Mr. Curran's evidence and in particular cross examination. No questions were put to him in relation to ECG monitoring or resuscitation or the but for projection based on ECG monitoring. The focus of the cross examination was on lung congestion and oxygenation. His letter of January 2017 was put to him by Claimants’ counsel, but he was not asked to pass an opinion on Andrew’s prospects of surviving resuscitation. In particular it is clear that he answered that the EWS value of nine was an early warning score to alert people to the fact that a patient might need reviewing. He was cross examined on the speed at which mechanical ventilation or intubation could occur on the ward to improve Andrew’s oxygen intake. Mr. Curran did not accept that Andrew was on a downward spiral between the 6th of January and his death but instead asserted that he was stable.

In the appeal the Appellants relied on a letter from Mr Curran, dated 5th January 2017, sent to Andrew’s family. This set out the diagnosis for Andrew which was pancreatitis, probably linked to excessive alcohol consumption and then alcohol withdrawal symptoms in hospital. Mr. Curran stated that Andrew's death was entirely unexpected and that Mr. Curran did not have any immediate concerns about his condition the day before his death. He stated that with severe pancreatitis some patients do not survive but usually their death is a long, slow process and not sudden and in hospital. He postulated that the cause of the death was more likely a blood clot or a heart attack but noted that the post mortem did not show any condition other than pancreatitis.

For the reasons set out in the Judgment the Judge did not find that letter persuasive in making the Claimants’ case on the but for projection. It did not prove that Andrew would have survived if he had been in ICU. Nor was that letter expert evidence because he was a witness of fact, being the treating doctor. I agree with the Judge that evidence to prove the but for projection had to come from the Claimants’ expert on ICU, Dr. Bristow or the cardiologist if they did not defer to the ICU experts. I will therefore dismiss any part of the appeal based on the assertion that the Judge failed to rely on the letter written by Mr. Curran.

In his judgment the Judge then went on to consider the burden and standard of proof and ruled that it was for the Claimants to fulfil the burden of proof to show that Andrew would have survived had he been on ICU instead of on the ward. The Judge found that the experts on pancreatitis deferred to the ICU experts on management and hence on causation. They were unable to advise on whether or how much improvement there would have been as a result of Andrew being in ICU. Neither pancreatic expert was called to give evidence and neither advised on the but for projection based on death caused by heart arrhythmia and whether the Claimants would have been successfully resuscitated on ICU. Thus any pre-claim letter written by Professor Johnson fell within that caveat.

The Judge noted that the Claimants sought to rely on 2 letters from Professor Johnson which were not in the trial bundle and were dated the 20th of March and the 1st of April 2019 in which he opined that Andrew would have survived if he had been in level two care. The Judge noted firstly that the letters were not CPR 35 compliant; secondly they were not in the trial bundle and thirdly they were based on miss-assumptions. The March 2019 letter was based on the assumption that Andrew died due to aspirating his vomit. The post mortem did not support that. After reading the post mortem Professor Johnson wrote his April 2019 letter accepting that Andrew did not die due to aspirating vomit and postulated he may have died due to a spasm of the larynx. The Judge noted that the Claimants at trial accepted that that assumption was not the cause of death. Therefore, for those additional reasons the Judge placed little or no reliance on the pre-claim letters of Professor Johnson.

I have read both letters from Professor Johnson. The first (March) is based on the false assumption which the Judge identified. The April letter proceeds on the basis of Andrew having insufficient oxygenation and that lack of oxygen causing the death through spasm of the larynx. The hypoxia case was abandoned by the Claimants so that undermined the letter. Professor Johnson also raised a confounding factor which was Andrew's consumption of cocaine and a concern he may have used this in the toilet before his death. What the Claimants sought to rely on was the last paragraph of the letter which stated:

In my Judgment, quite properly, the Judge rejected relying on the evidence of a witness in an old letter who: (1) was giving an opinion but had not put this evidence into his report to the Court; (2) had not put a part 35 statement on the letter; (3) had not raised this evidence at the joint experts’ meeting or in the joint report; (4) was not called to give evidence at trial and so was not cross examined upon it.

Therefore, I dismiss all grounds of appeal by the Appellants based on the letters of Professor Johnson. In my judgment the decision was rational and justified on the evidence.

The Judge dealt with the evidence of the ICU experts, Dr. Bristow and Dr. McCrirrick in section K to L of his Judgment. In relation to Dr. Bristow he summarised the evidence given live during hot-tubbing. That was to the effect that in ICU with, level 2 care, he would not have been allowed to go to the toilet but would have toileted on a commode, behind a privacy curtain, using his oxygen supply and hence hypoxia would not have arisen causing the heart arrest. However, Dr. Bristow accepted that he had not heard Dr. Li’s evidence to the contrary, that in the Defendant’s hospital Andrew would have been permitted in ICU to go to the toilet alone, if he was mobile and his readings were satisfactory. Dr. Bristow accepted in evidence that if the toilet cubicle in ICU had been locked then the prospects of resuscitation would have been poor. In re-examination Dr. Bristow again advised the Court that Andrew should not have been allowed to go to a toilet without oxygenation on an ICU unit, or to lock himself into the toilet. He advised that the advantages of level 2 care would have been continuous ECG monitoring and saturation monitoring, strict bed rest, continuous oxygenation such that hypoxia would not have arisen and therefore death would not have occurred. If heart arrest had occurred the intervention would have been better, there would have been no lock on the toilet and the equipment and nurses would have been better. He advised that Andrew had only collapsed because he had hypoxia because he did not have his mask on.

The Judge found that as a result of the Claimants abandoning their case on hypoxia most of this evidence from Dr. Bristow became irrelevant. I agree, save for his one reference to the ECG monitoring which was not opened up or expanded on either in his report or the joint report or in his live evidence. It was not explored because during the trial continuous ECG monitoring was not a pleaded issue.

I have read Dr. Bristow’s report and the joint ICU experts’ report. In the report dated 1.8.2021. Dr Bristow advised thus:

Thus Dr. Bristow’s opinion in his report was that Andrew died due to arrythmia and would not have died had he been on level 2 care in ICU. The but for projection appears to have been based on the following assertions: (1) Andrew not being allowed to go to the toilet on ICU unless his monitoring was normal before he did so; (2) had he arrested on ICU he would have survived; (3) generally patients with severe pancreatitis survive to discharge; (4) arrythmia was probably the cause of death. It is therefore unexplained why the Claimants’ case proceeded at trial on the basis that arrythmia was not the cause of the cardiac arrest.

In his joint report with Dr. McCrirrick they advised as follows:

It can readily be seen that Dr. Bristow’s advice in the joint report was as follows: (1) the locked toilet door was crucial. But I note that the Claimants had rejected that assertion in the Amended Particulars of Claim and never applied to amend the claim to plead it. (2) That it took 5-10 minutes for nursing staff to reach Andrew and get him out. That was not the evidence of Jonathan, Andrew’s cousin or the nurses. Jonathan’s evidence was that he took 30 seconds to call the nurses and they came and the toilet door was opened in 2-3 minutes. (3) Hypoxia caused the cardiac arrest. That case was abandoned by the Claimants in closing submissions. (4) In ICU, the oxygen supply would not have been stopped for Andrew to go to the toilet. But Dr. Li, the ICU witness of fact from the Defendant, stated that if Andrew was mobile he would have been allowed to go to the toilet without his oxygen mask. (5) If arrythmia had caused Andrew’s issues he would have survived on ICU because it would have been detected immediately and he would have been defibrillated (shocked) in 60 seconds or so. Thus there was evidence before the Court relating to the but for projection from Dr. Bristow about continuous ECG and survival but it was not his primary advice to the Court.

In the joint report further relevant answers were given on causation:

I have read Dr. McCrirrick’s report. He advised that Andrew should have been in ICU by 5^th January 2016 and that the Defendant was in breach. This was then admitted by the Defendant. He advised on causation as well. In ICU he advised that a face mask would have been used for oxygenation agreeing with Dr. Li. Dr. McCrirrick accepted that Andrew became more difficult to manage on the 6th and 7th of January due to confusion. He did not accept that this was caused by hypoxia. Andrew's oxygen saturation readings were between 94% and 100% throughout. He did not accept that fluid management would have been different in ICU. He considered that intubation and ventilation were not called for on the 7th of January. He did not accept that when Andrew mobilised to go to the toilet he became more confused due to lack of oxygen. He considered that the monitoring on ICU would not have been significantly different in relation to going to the toilet and accepted Dr. Li’s factual evidence that Andrew would have been permitted to do so. He advised that Andrew would have been advised to take a portable oxygen cylinder with him but that this would not have affected the outcome. He advised the Court that aspiration of vomit was not likely to have been the cause of death, neither was laryngospasm. He wrote:

Dr. McCrirrick’s evidence to the Court, which the Judge accepted, was that hypoxia was not the cause of the heart issues. Andrew’s oxygen saturation would have needed to have dropped much lower in the short time he was off the mask and Andrew was talking to Jonathan a few seconds before he suffered the attack which would not indicate that he was hypoxic at the level needed to cause a heart arrest. This issue was of course conceded later by the Appellants.

Dr. McCrirrick also advised that Andrew probably would not have had continuous ECG in ICU because he was not a cardiac case. The resuscitation in ICU would have been similar or the same and Andrew’s chances of survival, for days and/or to discharge from hospital, would have been the same. The Judge accepted that evidence.

The challenge which the Appellants faced on appeal was that the Judge rejected Dr. Bristow’s evidence and preferred that of Dr. McCrirrick. The Judge did not spend much time dealing with the joint report of the ICU experts. He focused instead on their oral evidence. At section L the Judge decided that he preferred the evidence of Dr. McCrirrick. He was impressed by Dr. McCrirrick and unimpressed by Dr. Bristow for the reasons set out in section L. He found Dr. Bristow obfuscated and his evidence was confusing. He was surprised that Dr. Bristow abandoned cardiac arrest as the cause of death at the start of his evidence, a case which he had put forwards all along before that time. He was unimpressed by new theories which Dr. Bristow raised in his evidence which were not properly elucidated or explored in his report or the joint statement with Dr. McCrirrick (infection; Atropine etc.). Dr. Bristow had not read the Defence so did not realise that the Defendants’ case was that arrythmia caused the heart to stop and hence death. He informed the Judge that he could think of no other cause for Andrew’s cardiac arrest, when in his own report, he had come to that conclusion and in the joint report accepted that possibility. Dr. Bristow had the timing of events after Andrew’s collapse completely incorrect (the 5-10 minutes point). His evidence on hypoxia was undermined by his answers in cross examination as well. He accepted he was not right to advise on Andrew’s oxygen saturation levels after the arrest.

Those reasons are amongst the classic tests for a first instance Judge to use to determine which expert witness to prefer. Although no cases were cited before me in this appeal on the guidance given to first instance Judges on how to assess and prefer expert evidence, there are many: qualifications; internal consistency; flexibility in the face of changed facts; independence; good preparation; attention to detail; mastery of the relevant facts; clarity of expression and reasoning; logicality; staying within the field of expertise and presentation are all matters which a first instance Judge will take into account when assessing credibility. The editors of Phipson on Evidence (current edition) say the following about assessment of expert evidence:

The Judge gave clear and cogent reasons for rejecting Dr. Bristow’s evidence and for accepting Dr. McCrirrick’s evidence and nothing in the grounds of appeal, the Appellant’s submissions, the evidence or the judgment leads me to consider that the Judge was plainly wrong in that assessment. In any event, assessment of a witness’s credibility is a matter primarily for the trial Judge not the Appellate Courts. I did not see the witnesses give evidence.

I dismiss the appeal on all of the grounds asserting that the Judge’s decision to prefer the evidence of Dr. McCrirrick over that of Dr. Bristow was plainly wrong or unjustified or irrational. It was a decision which in my judgment was one which a reasonable Judge could make on the evidence.

Dr. Richard Cooke reported for the Claimants. He advised as follows:

The hypoxia case advanced in paragraphs 42 and 43 of the report was abandoned by the Claimants. Paragraph 45 did not support the Claimants’ case on but for resuscitation being more likely than not in ICU. Paragraph 46 never factually occurred and does not answer the but for question. Paragraph 47 assumes prompter or faster arrival of the crash team in ICU. Paragraph 48 is a matter of evidence. Paragraph 49 begs the question.

In my judgment the key period, in relation to whether resuscitation would have been successful, would have been between:

This was around a 6 minute gap. The Judge accepted the evidence that there was a 10% reduction in the prospect of success for every minute of delay. A 6 minute delay would therefor reduce the prospects of survival by 60%.

When SRB applied the ECG pads he found Andrew’s heart was in PEA which the experts agreed was not a “shockable” condition and poor prognostically. It necessitated CPR. A key issue was whether the heart was in VF (ventricular fibrillation) during those 6 minutes and so still shockable back into rhythm. The Judge did not so find. The Judge found on Dr. McCrirrick’s evidence that the outcome of resuscitation would have been the same in ICU.

Dr. Cripps, the Defendant’s cardiologist, advised that Andrew was not in need of cardiovascular support at any stage. He advised on causation as follows:

On causation Dr. Cripps advised in his second report thus:

The cardiologists’ joint report concentrated on hypoxia. At question 6 they were asked whether Andrew would have survived if he had been in ICU. Both refused to advise because the question was outside their expertise.

In cross examination it was put by Mr. Redfern KC to Dr. Cripps that the Andersen paper showed that A had a better than 50% prospect of survival with resuscitation. This was the exchange:

The Judge made a finding in line with that evidence.

The Judge also dismissed the claim on causation because he found that Dr. Li’s evidence was credible and was not challenged in cross examination. Dr. Li gave this evidence in chief in his witness statement:

The Judge found that the Claimants had failed to put their commode only case to Dr. Li, so failed to challenge the evidence that in ICU Andrew would have been allowed to go to the toilet himself if he could mobilise. Having read the transcript that is clearly correct. No appeal is made from that part of the decision. Nor could it have been. It is the responsibility of the Claimants’ legal team to put their case to the defence witnesses with whom they are at issue. This was not done. In any event the Judge accepted Dr. Li’s evidence and made factual findings based upon it. I can find no reason for upholding any ground of appeal which seeks to undermine the findings which are based on Dr. Li’s credibility and on the lack of challenge to key parts of his evidence.

The Claimants carried the burden of proof on causation. The Claimants sought to prove that if Andrew had been in ICU on the balance of probabilities he would have survived. To prove causation the Claimants needed to call expert evidence firstly as to what would have happened in ICU (the but for projection) and then what would have resulted from that but for projection (namely whether Andrew would have survived).

On the facts of the but for projection, the Judge found that Andrew would not have been restricted to toileting on a bed pan in ICU with ECG and oxygen attached, but would have been permitted to mobilise to the toilet. He also found that Andrew would not have complied with being banned from mobilising to the toilet either. There is no permitted ground of appeal from that decision and none would have succeeded had permission been granted. That decision was a matter for the trial Judge having heard Dr. Li and noted that he had not been cross-examined on the but for projection about bed pans.

Therefore the Appellant’s case on appeal rests on overturning the Judge’s findings in relation to resuscitation if Andrew had collapsed in a locked toilet in ICU. The Judge found on Dr. McCrirrick’s and Dr. Cripps’ evidence that on balance Andrew would not have survived resuscitation had he been in ICU so the claim failed. The ICU experts agreed that if the door in the ICU toilet had been locked then the result for Andrew would have been the same in any event (Judgment O11). That is the end of the matter in reality unless no reasonable Judge could have accepted the evidence of those experts and in my judgment the Judge was entitled to accept their evidence.

In the grounds Appellants’ counsel submitted that: “any reasonable analysis of that material demonstrated that the Deceased had an 83% chance of surviving severe acute pancreatitis…” Setting aside the hyperbole in that submission, the first matter to consider is where the 83% figure came from.

Dr. Cripps’ evidence on causation is set out above. He advised that at best Andrew had around a 45% chance of survival and a paper by Andersen was relied upon.

In the Appellants’ submissions much was made of three medical papers attached to the second report of Dr. Cripps on long term life expectation. It was submitted that the Judge refused to interpret the papers in the way that Appellants’ counsel indicated they should be interpreted. It was submitted that Andrew had a CASPRI score of 0-4 which meant he had an 83% prospect of successful resuscitation and hence survival to discharge from hospital.

However, the Appellants accepted that no expert had carried out a CASPRI score analysis either in their reports or in the joint reports. It was introduced in live evidence. Dr. Bristow said in his evidence in re-examination that the score could be 6.

The main paper relied upon by Mr. Redfern KC was by Andersen et al published in the JAMA 2019 March 26; 321 (12), 1200-1210. It was a study of in hospital cardiac arrest. The abstract says this:

Under the heading “results” the authors wrote this:

The Appellants’ counsel in submissions relied on the table at page 20 of the paper which set out the determination method for the CASPRI score. Having made his lawyer’s calculation of “4” he then relied on the footnote which reads as follows:

The table is a reproduction of another author’s work, namely Chan et al 2012 Arch. Intern. Med. 172; (12) 947-953. That paper was not before the Court.

The evidence before the Judge was that the Andersen paper was relied on in part by Dr. Cripps when advising that Andrew’s but for projection of surviving resuscitation was 45% at best.

In my judgment, without evidence in the experts’ reports and joint reports on the correct CASPRI scoring for Andrew, its relevance to resuscitation on the facts (if any) and whether it is at all determinative of the issues, on the evidence put before the Court, the Judge was entitled to make the findings which he did on causation and survival after resuscitation in the but for projection. He assessed the expert witnesses and gave reasons for his preferences. The decisions made by the Judge on Andrew’s survival chances, had he been in ICU, are neither plainly wrong nor conclusions which no reasonable Judge could reach, on the contrary, they were findings of fact which he was entitled to reach. The Appellant’s CASPRI score assertion was rejected by the Judge and rightly so. It was forensic fluff, not reported upon, not jointly considered by the experts, and not tested in cross-examination.

There was no permitted ground of appeal based on adverse inferences and the law relating thereto. However, Appellants’ counsel persisted in his submissions that the Judge was wrong in part T of the judgment to fail to make adverse inferences against the Defendant due to its failure to provide various missing pieces of evidence or medical notes. The missing evidence was: no root cause analysis; no resuscitation report; no mortality meeting notes; no General Surgical Governance meeting notes, and a failure to call the resuscitation registrar, SRB.

The Judge did have the notes made by SRB about the resuscitation efforts and the nurse’s note.

With no ground of appeal there is no ruling which I am required to make on those submissions. Nor, had permission been granted, would I have acceded to the submissions which were made. The Defendant had provided the notes relating to the resuscitation and the Claimants had an eye witness.

Grounds One and Seven: Bolitho not applied The relevant paragraphs of Bolitho v City and Hackney HA [1998] AC 232, which the Appellants assert the Judge did not follow, are not set out in the grounds, the skeleton or the speaking note. In my judgment, the Judge addressed the burden of proof properly. He considered the but for projection of what would have happened in ICU (had there been no breach). He considered the expert evidence and made reasoned decisions on which evidence was more credible, which he preferred and gave his reasons. He considered whether Andrew would have gone to the toilet or used a commode in ICU; whether Andrew would have received different oxygen support in ICU; whether Andrew would have been required to take oxygen with him to the toilet; whether Andrew would have had continuous ECG monitoring; whether he would have been supervised; whether the toilet would have been locked and what would have happened during resuscitation. The Appellants’ real complaint here is that the Judge rejected the Claimants’ expert evidence from Dr. Bristow, which is a different point. In my judgment the submission that the Judge failed to consider the but for projection is without foundation.

As for Mr. Curran’s letter, which is set out above, the Judge expressly considered it. Mr. Curran was a witness of fact not an expert in the case. Most of his factual evidence was accepted by the trial Judge. The Appellants’ ground 7 rests on this one letter dated 2017, written long before the claim was started, which the Appellants seeks to raise to the level of expert opinion, which it is submitted should overwhelm and put in the shade all of the evidence from the various other experts who were fully instructed to consider all of the evidence and to give reports thereon and who gave live evidence before the Judge. In my judgment the letter does not determine the issues in the case. It is of very little weight. It is not in part 35 format. It was not expert evidence. It was not delivered after instructions to write an opinion for the Court after considering all of the evidence. Whilst it was raised in cross examination, the line of questioning did not raise the conclusions therein any higher in evidential value. I am not sure that I understand how the letter was “central to Bolitho”: per ground 7 in any event. I consider that the expert evidence which was served and called was central to the but for projection which the Judge had to consider and which he made findings upon, not the pre-claim letter.

For the reasons set out above, the Bolitho grounds are dismissed.

Grounds Twelve – Fourteen and twenty-eight: Survival to Discharge: In my judgment the Judge was entitled to prefer the evidence of Dr. McCrirrick over that from Dr. Bristow and was not wrong to do so. On the contrary, he gave plenty of good reasons for doing so. As for the evidence of Dr. Cripps, on causation, he advised that Andrew would not have survived if the heart issues had arisen in ICU. The Appellants’ grounds miss-state what he actually advised the Court. In relation to the papers he cited and produced for his opinion on long term life expectation (a different issue to resuscitation survival) if Andrew had been discharged from hospital, their use by the Appellants to construct the Claimants’ last minute case based on a CASPRI score, which their own experts did not set out in their reports, is without any solid expert foundation. These grounds of appeal do not meet the thresholds in the cases summarised above for appeal on findings of fact and expert opinion and are therefore dismissed.

Twenty two – Twenty-seven and Twenty-nine: ECG Monitoring would have saved Andrew’s life The Judge accepted the evidence of Dr. Li about what would have been done in ICU. He was entitled to do so. Dr. Li was not cross examined on the major part of the case which the Appellants subsequently sought to argue. The finding was that Andrew would have been able to mobilise and attend the toilet himself with supervision and without ECG leads. Having accepted that factual evidence and having preferred the evidence from Dr. McCrirrick, the Appellants’ case that he would have had continuous ECG whilst using a commode on ICU was rejected. The Judge noted there was no evidence called from the Appellants’ cardiologist as to what the continuous ECG would have shown in ICU before Andrew took off the pads and went to the toilet.

The Appellants’ submissions also sought to raise the weight and significance of the pre-action letters of Professor Johnson to the status of powerful expert evidence which should have been preferred over the opinions of (1) Professor Johnson himself in his reports; (2) all other experts whose evidence the Judge found to be persuasive and convincing. I consider this submission is without merit. The opinions in the letters were not repeated in the Professors’ report. The issues were not put forwards in the joint meeting with his counterpart, Professor Sagar. Neither expert was called to give evidence because there was no real dispute between them after the joint report. No application was made to call the Professor. No cross examination on the letters took place, so the views therein were not explained or tested. The letters were a record of his view at the time, made without consideration of the full factual or expert evidence in the claim. Nor, on the analysis made above of their contents, do they actually say what the Appellants seeks to extract from them. They were based on misapprehensions about the cause of Andrew’s death.

In any event in their evidence to the Court, the pancreatic experts deferred to the ICU experts and cardiologists on survival from resuscitation. For these reasons I dismiss these grounds.

For the reasons set out above I dismiss the appeal on all grounds for which permission has been granted. None of the grounds pass the test for challenging findings of fact or the Judge’s assessment of the expert or lay witnesses.

I cannot leave this judgment without expressing my sorrow for and sympathy with the suffering of the family of Andrew.

I invite submissions on the costs and the consequentials to be provided to my clerk within 7 days of the handing down of this judgment.