Alison Healey v Daniel McGarth & Anor

“51 Costs in civil division of Court of Appeal, High Court and county courts.

Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in—

…

the High Court;

…

shall be in the discretion of the court.

Without prejudice to any general power to make rules of court, such rules may make provision for regulating matters relating to the costs of those proceedings including, in particular, prescribing scales of costs to be paid to legal or other representatives 

The court shall have full power to determine by whom and to what extent the costs are to be paid.”

“Discretion as to costs

The court has discretion as to –

whether costs are payable by one party to another;

the amount of those costs; and

when they are to be paid.

If the court decides to make an order about costs –

the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but

the court may make a different order.

The general rule does not apply to the following proceedings –

proceedings in the Court of Appeal on an application or appeal made in connection with proceedings in the Family Division; or

proceedings in the Court of Appeal from a judgment, direction, decision or order given or made in probate proceedings or family proceedings.

In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –

the conduct of all the parties;

whether a party has succeeded on part of its case, even if that party has not been wholly successful; and

any admissible offer to settle made by a party which is drawn to the court’s attention, and which is not an offer to which costs consequences under Part 36 apply.

The conduct of the parties includes –

conduct before, as well as during, the proceedings and in particular the extent to which the parties followed the Practice Direction – Pre-Action Conduct or any relevant pre-action protocol;

whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

the manner in which a party has pursued or defended its case or a particular allegation or issue”

Subject to subsection (3) below, in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question.”

“The extent of a person's responsibility involves both the degree of his fault and the degree to which it contributed to the damage in question. It is just and equitable to take into account both the seriousness of the respective parties' faults and their causative relevance. A more serious fault having less causative impact on the plaintiff’s damage may represent an equivalent responsibility to a less serious fault which had a greater causative impact. The present case is such a case. The judge was entitled to decline to distinguish between the responsibility of the two defendants for the damage to the plaintiffs.”

Fault

Causative contribution

Costs: Claimant’s costs

Costs: Ramsay’s main claim costs

Costs: Ramsay’s Part 20 costs

“I qualified with a MB BCh BAO from Queens University, Belfast, in 1995. I have a PhD from the University of Newcastle, Australia and an FRCS (General Surgery) from the Intercollegiate Specialty Board.

I qualified as a Consultant General and Colorectal Surgeon in 2010. I initially worked as a Consultant Colorectal Surgeon (Locum) at St Mark's Hospital, Harrow from June 2010 until March 2011. Since April 2011, I have been employed as a General and Colorectal surgeon at the Royal Berkshire Hospital, Reading, where I still work.

I also undertake private practice and between September 2013 and March 2019, I undertook private practice at the Berkshire Independent Hospital, where I treated Mr Healey.

I first met Mr Healey in my NHS clinic at the Royal Berkshire Hospital on 27 July 2017. In Mr Healey's case, surgery (possibly followed by chemotherapy, depending on the histology) was the best chance of a curative option. Other available options, such as chemotherapy, radiotherapy, or any treatment which was non-surgical, would be non-curative. I explained this to Mr Healey, and we discussed the fact that since he was a younger patient, with very few other medical conditions, surgery was the best option for him.

Mr Healey requested to undergo the surgery on a private basis, funded by his private health insurance. I confirmed that this was a possibility, and he was keen to pursue this. However, I explained to Mr Healey that there are risks involved in undergoing a procedure of this nature in a private hospital – mainly the absence of an Intensive Care Unit (ICU). However, Mr Healey was young, with few medical problems, and therefore I considered it was reasonable to perform the surgery privately.”

Anastomotic leak is the most feared complication after bowel surgery, as its presentation can be insidious and, if not detected promptly, the patient can become desperately sick and may occasionally die from sepsis and multi-organ failure. Thus, all responsible colorectal surgeons should have a high index of suspicion to detect this complication as early as possible and to treat it promptly (this almost always means re-operation).

Unfortunately, Mr Healey did develop an anastomotic leak which probably began around 4" August 2017 (with the benefit of hindsight), and the leak was not identified until 7" August, by that time Mr Healey had developed systemic sepsis. Despite surgery to wash out the sepsis and despite maximal ITU therapy, he went on to develop multi-organ failure and sadly he died on ITU 9 days after his cancer resection.

Anastomotic leaks may occur in up to 10% of elective colonic anastomosis, and most commonly occur in the pelvis. Right hemicolectomy where small bowel is joined to large bowel is regarded as slightly safer than a colorectal anastomosis as the small bowel has a very good blood supply. The leak rate after elective right hemicolectomy is said to be around or less than 5%.

It is notable in all of the entries that Mr McGrath has written in the postoperative period there is not any evidence of examination of Mr Healey's abdomen, which I would have thought was a fairly fundamental part of an assessment.

It may be that Mr McGrath didn't record negative findings. However, abdominal tenderness can be a useful indicator of potential abdominal sepsis.

… Mr Healey's early warning scores on the 3" and 4" were starting to go up from 2-6at 11 o'clock on 4" August. This led to the nurses on 4" August instituting their "deteriorating patient pathway".

It does not seem that Mr McGrath was particularly concerned on 4" August, despite the fact that the white count was elevated and the CRP was significantly elevated at 607.

In my view, this was a very significant and unexplained rise in the CRP on 4 August (normal range, less than 40). Most surgeons find CRP is a useful and sensitive indicator of acute inflammation following abdominal surgery. A CRP of 607 is massively elevated and it should have rung alarm bells for Mr McGrath - in my view this result in a patient who was not making the expected progress after a laparoscopic hemicolectomy mandated an abdominal CT scan.

In my opinion, the sudden rise in CRP on 4" August was probably indicative of intra-abdominal sepsis- at least gut bacteria in the peritoneal cavity.

In Mr McGrath's statement he notes that the CRP had risen on 4" August to 607 but thought this was "a consequence of ileus" – I strongly disagree as an ileus would not cause a CRP of this magnitude.

Mr McGrath's statement also comments that on 4th there was rise in creatinine "suggesting an acute kidney injury" - It is my opinion that an acute kidney injury should have rung alarm bells as, although in the presence of a severe ileus, fluid shifts into the gut may occur, an acute kidney injury is commonly associated with intra-abdominal sepsis.

Mr McGrath does not seem to have been concerned as to the cause of Mr Healey's ileus, just accepting it as consequence of intestinal surgery, but given that after laparoscopic colectomy most patients do no experience an ileus, and that they usually go home 2-3 days after bowel resection, his lack of concern seems odd.

Being sweaty is not generally consistent with an ileus, though I accept that abdominal distension would be seen in an ileus. Again, all experienced colorectal surgeons would be questioning why the patient had an ileus 5 days after an uneventful right hemicolectomy.

On admission at the Royal Berkshire Hospital Mr Healey was already showing signs of severe systemic sepsis.”

Although I am critical of the delay in recognizing the possibility of anastomotic breakdown around 4" August, my concern in this case is that alarm bells should have been ringing for Mr McGrath on 4" August that there was a real risk of the dreaded complication of anastomotic failure. This was overlooked until the X ray on 7" August showing free gas, and I am convinced that this delay has played a significant part in the sequence of events which followed.

Although Mr Healey had relatively minor faecal contamination at operation on 8" August and again on 10" August, he clearly had a lot of bacteria in his peritoneal cavity as a result of the leak of fluid and air and the fibrinous peritonitis seen at post-mortem, indicating that he had a considerable bacterial load in his peritoneal cavity. A delay in diagnosis has probably resulted in his death from what was probably otherwise a salvageable condition with surgery on the 4th, 5^th or even 6^th August.”

“The Deceased underwent a routine laparoscopic right hemicolectomy for a colorectal malignancy with curative intention. This was performed at the Second Defendant’s Berkshire Independent Hospital.

Within 3 days of the procedure, it became clear that the patient was unwell. This was indicated by persistent pain, markedly abnormal NEWS scores and massively raised CRPs. Despite this, the risk of an anastomotic leak was not considered by Mr McGrath until 7 days postoperatively.

This delay meant that the Deceased did not undergo serial lactate measurements and a CT scan. When the Deceased was transferred to the Royal Berkshire Hospital a CT scan was performed. This indicated an anastomotic leak and the Deceased underwent a laparotomy. At the laparotomy, the anastomosis was not taken down which would have been optimal care but instead it was patched and the bowel was defunctioned proximally.

This procedure did not control the sepsis and he, therefore, underwent a further laparotomy and washout the next day. Despite this, he, unfortunately, succumbed to overwhelming sepsis.

The delay in diagnosis of the leak and the incorrect surgical technique used to treat the leak in my opinion, on the balance of probabilities, caused the Deceased‘s demise.”

“failings in the escalation policy in accordance with the Royal College of Physicians (RCP) NEWS Guidance. Nursing staff failed on occasion to always inform the RMO when the patients NEWS score increased (or remained consistently high) and from the evidence provided, failed to undertake observations in accordance with the NEWS guidance. However I also acknowledge that Ramsay Healthcare are not an acute provider and the nurses were working to a management plan set out by Mr McGrath and the RMO, however the documentation or rationale for not informing the RMO should have been more explicit. And, as such this standard and policy needs to be more clearly set out by Ramsay Healthcare.”

“The post-operative histology had shown high-risk caecal cancer staged as pT4bN2aM0 with vascular invasion and clear resection margins.

But for the post-operative complications, the Deceased would have received 6 months of adjuvant chemotherapy and his 3 year relapse-free survival probability would have been 55%. This is a well accepted surrogate for long-term survival in colon cancer and his chance of cure therefore would have been 55%.”

“53 The provisions of the 1978 Act make it clear that what is being granted is a right to contribute in respect of a party's liability to a third party. As set out above that liability can include liability to that third party for costs. However, I see no grounds upon which a party can seek a contribution in relation to its own costs because that does not form a liability to a third party in respect of damage. It is a liability of the party itself in relation to proceedings brought by the third party, but that does not make it a liability to the third party for damage. In those circumstances I do not consider that there is a claim by Mouchel under the 1978 Act for the costs that Mouchel incurred in the main action.

54 There is however, it is common ground, a general discretion under ss.51(1) and 51(3) of the 1981 Act and if there is any claim by Mouchel for costs against Van Oord I consider it has to establish that claim under those provisions.

55 In cases where the third party proceedings consist of a claim which is passed through to the third party, then depending on the outcome of the third party proceedings, if the third party is liable to a defendant and the defendant is liable to the claimant then the third party may have a liability to pay the defendant's costs which would include costs which the defendant had incurred in defending the claim by the claimant.

57 As is clear from the issues between Mouchel and Kier they were confined to issues relating to Mouchel's liability to Kier, rather than anything to do with primary liability of Van Oord to Kier. Indeed in this case Van Oord was not involved in the proceedings until a late stage in June 2008. In those circumstances I find it difficult to see the basis upon which the court should exercise its discretion and make an order that Van Oord should contribute to Mouchel's costs in defending proceedings to establish Mouchel's liability, in such circumstances.

58 In terms of CPR r.44.3(2) the court would generally follow the rule that the unsuccessful party will be ordered to pay the costs of the successful party. In the context of contribution proceedings, that rule applies as between Van Oord and Mouchel in respect of the costs of the third party proceedings. But it is difficult to see how, by Mouchel incurring costs in defending the claims by Kier up to the time of settlement, it can be said that the costs of Mouchel should be borne by Van Oord as being the unsuccessful party.

59 Equally considering the matters to which the court has to have regard under CPR r.44.3(4) I find it difficult to see that there are circumstances in this case which would lead to it being just to make an order that Van Oord should pay some of Mouchel's costs. There does not appear to me to be any conduct by Van Oord to justify such an order. And this is borne out by considering the various matters included as conduct in CPR r.44.3(5). The fact is that Van Oord were not involved until very late in the main action and then by way of contribution proceedings and I do not see that there is anything in that conduct which justifies making an order that Van Oord should pay some of Mouchel's costs. In particular, in the context where Van Oord's overall liability to contribute is only a small percentage of the overall settlement so that it cannot have been a material factor in Mouchel deciding whether to settle or not and where the costs of the third party proceedings will reflect matters as between Van Oord and Mouchel, I do not consider that it is appropriate to exercise my discretion and award Mouchel a contribution for its costs of defending the claim by Kier.”

“Whilst there might be cases which would make it just for a contributing party to make payment of some of the other party's costs of defending proceedings against a third party, there is nothing in this case to suggest that this is appropriate here.”

Mr McGrath was involved from the start as the surgeon in charge of Mr Healey’s treatment;

The role of the nursing staff for whom Ramsay is liable is very much subordinate to Mr McGrath. He devised the treatment plan. They could not. They were entitled to rely upon his experience and expertise to arrange a safe treatment pathway for Mr Healey. But Mr McGrath did not do that and his failures were the substantial contributory cause of Mr Healey’s death;

While Ramsay was realistic enough to compromise the claim brought by Mrs Healey, Mr McGrath did not. That is why Ramsay brought contribution proceedings.

Having reviewed the papers carefully, and especially in light of the expert evidence from Mr Cundall and Professor Schofield, it is difficult to understand how Mr McGrath’s defence was tenable. In fact, it was fundamentally flawed;

His failure to compromise the main claim with Mrs Healey mirrored closely his limited engagement in the contribution proceedings leading to summary judgment being entered. Thereafter his almost complete non-participation culminated in his failure to attend trial. While this latter conduct relates to the Part 20 proceedings, it reveals a course of conduct by Mr McGrath that is unsatisfactory, unrealistic and uncooperative.

The apportionment levels in this case are markedly different from Mouchel. There VO was liable for approximately 8.5% of damages, limited to a lesser breach of duty. In this case, Mr McGrath is liable for 75% of damages and his conduct and negligent failures were the principal causative element leading to death.

Mr McGrath to pay Ramsay 75% of the agreed damages compromised for £1,200,000;

Mr McGrath to pay Ramsay 75% of the £417,500 costs paid by Ramsay to the claimant;

Mr McGrath to pay Ramsay one third of Ramsay’s costs defending the main claim;

Mr McGrath to pay Ramsay 100% of its Part 20 contribution proceedings costs.