Sidney Conway v Yeovil District Hospitals NHS Foundation Trust & Anor

This is a clinical negligence case.

Sidney Conway, the claimant, was born in November 2014. He was a happy and healthy baby. On or about New Year’s Eve that year, he suffered head injuries as a result of physical abuse caused by his own mother. She didn’t tell anyone about what she had done.

He was admitted to Yeovil District Hospital (“Yeovil”) on 6 January 2015. He presented with a history of projectile vomiting and, in comparison with other babies of his age, his weight was falling behind. Other features included a history of irritability with poor head and neck control together with a marked increase in percentile head circumference measurements over the preceding weeks.

It is now common ground, however, that at that stage his case raised no suspicion of abuse and that those responsible for his treatment cannot be criticised because they did not flag up abuse to be a possible explanation for his presentation.

Initially, the favoured diagnosis was of pyloric stenosis. This is a condition in which the passage from the stomach to the small intestine becomes narrowed causing forceful vomiting, dehydration, poor nutrition and weight loss.

On Friday 9 January 2015, Sidney was transferred to Bristol Children’s Hospital (“Bristol”) where an ultrasound test for pyloric stenosis provided no convincing evidence in support of this diagnosis. Further, save for the history of increased measurements in head circumference in comparison with babies of the same age, all of the other presenting complaints had fully resolved. Accordingly, he was discharged home on Saturday 10 January. The intention was that his head measurements would be kept under review by the health visitor.

However, on the very next day, his mother assaulted baby Sidney again as a result of which he suffered catastrophic brain injuries.

Sidney’s father and litigation friend alleges on his behalf that it was negligent merely to plan to keep Sidney’s head measurements under review but that an ultrasound scan (“USS”) of his head should have been carried out very promptly. It is not disputed that, had such a scan been carried out before his discharge, it would have revealed the fact that Sidney had probably sustained trauma to the head. This would have led to a chain of enquiry which would have engaged procedures which, in turn, would have operated to deprive his mother of the opportunity thereafter to abuse her baby son for a second time. It is also agreed that the entirety of Sidney’s ongoing disabilities relate to the consequences of the second attack.

It is contended on behalf of Sidney that it was negligent to fail very promptly to perform an USS of his head. The defendant denies it.

It is also to be noted that developments arising from answers given by the claimant’s expert paediatrician to questions from the court gave rise to further legal issues relating to the scope of the duty of care owed by the defendants and to causation the nature and resolution of which I will return to in the course of this judgment.

Sidney was born on 2 November 2014 following an uncomplicated pregnancy and delivery. He experienced no significant health problems in the early weeks of his life. On 13 November 2014, when he was eleven days old, his weight was 3.56 kg (on the 50th centile), his length was 54 cm (between the 50th and 75th centiles) and his head circumference was 37 cm (between the 50th and 75th centiles).

In this context, the centile measurements indicate where, in the population of babies of any given age, any given measurement falls. For example, a head circumference measurement on the 75^th centile indicates that 25% of all other babies of that age would be expected to have a longer measurement and 75% would be expected to have a shorter measurement. And so on.

On 17 December 2014, Sidney was seen at the GP surgery for his 6-8 week check. His head circumference was on the 75^th centile but his weight had dropped to the 9^th centile. The plan, in particular in the light of the drop in weight centile, was for close monitoring at home by the health visitor. I note again that, at this stage, there is no evidence that any parental abuse had yet taken place.

It was on or around 31 December, that Sidney first became the victim of abusive head trauma (“AHT”) inflicted by his mother. No one else, and that includes Sidney’s father, knew about, or even suspected, this at the time.

On 2 January 2015, Sidney’s parents brought him into the GP surgery with a report of his vomiting during the previous week. The doctor identified no urgent features for concern on examination. They were advised to get him re-weighed by, and to discuss their concerns with, the health visitor. Sidney’s mother’s consistent and credible presentation of innocent concern served entirely to camouflage her sinister involvement in his medical presentation.

In the event, Sidney’s symptoms did not settle within the next few days and, on Tuesday 6 January 2015, the health visitor advised that he should be taken to hospital. At 5.35pm, he was seen in the Accident and Emergency Department (“A&E”) at Yeovil Hospital. The nursing notes record:

“Vomiting since 31/12/14 after feeds. Saw GP – reflux. So far progressively worse. ↓ feeding. Parents report lethargic and drowsy. ↓ wet nappies (3 today). Today only had two feeds, vomited after both. Pt alert and orientated. BNO [bowels not open] for 2 days. PMH [past medical history]: normally well. Med: None”.

At around 7pm, Sidney was seen by a doctor in A&E. The notes record:

“HPC [history of presenting complaint]: Projectile vomiting for 7/7 – getting worse. Is still hungry after feeds. ↓ PO [oral] intake – normally has 6 bottles/24o, recently has only had 2. Last weight 06/01/15 4.78kg. Started on 25th centile + has dropped to 9th but following 9th centile curve. Irritable, not sleeping at night. Milky vomit, no bile. Doesn’t look in pain, not drawing up legs. ↓ wet nappies – only 3 in last 24 hrs, normally 6-7. BNO for 2/7, prior to this was normal, loose stool. No one else unwell”.

At around 11pm on the same evening, Sidney was seen by a consultant paediatrician, Dr Oliver. She recorded:

“Problem vomiting falling off centiles.

History as previously documented. Baby well until NYE. 7 days of vomiting poor feed since then. Mostly milk. Takes small amounts of feed only. More lethargic. Losing weight. No temp. No rash. No apparent pain. B/O [bowels opened] 2/7 ago - Yellow. PU OK – reduced last 24 [hours]. Family members well…

No FHx [family history] pyloric stenosis.

O/E [on examination]: Pink. Alert. Cool peripheries. Skin – reduced turgor. Cool peripheries, mottled. Mucous membranes moist. Active movements, not jittery…

OFC [occipitofrontal circumference] 41.5 cm – 98th centile.

Imp[ression]: Susp[ected] pyloric stenosis – moderate dehydration. Also, macrocephaly. ?? Intracranial o/a OFC [on account of occipitofrontal circumference, i.e. increase in head circumference]. Alert and active. Fontanelle level.

Plan: IVF [intravenous fluid] maintenance + @ 150 mls/kg/d. NGT [nasogastric tube] + free drainage. Replace Na [sodium] losses ml for ml. USS [ultrasound scan] mane [next day] Abdo +/- Cranial. Repeat gas.”

It can be seen that Dr Oliver considered the possibility of an intracranial cause for Sidney’s symptoms. This was in addition to her primary concern which was of an abdominal pathology in the form of pyloric stenosis (a very different condition caused, as I have already noted, by a narrowing of the opening between the stomach and the small intestine). The plan was for an USS of the abdomen and, perhaps, of the head (“+/- cranial”) to be carried out on the following day.

In fact, however, following the ward round of Dr Heaton, consultant paediatrician at Yeovil the next morning, it appears that Dr Oliver’s tentative suggestion for the carrying out of an USS head scan there and then was not pursued. An abdominal scan was, however, undertaken, which was reported upon as follows:

“No convincing evidence of pyloric stenosis although false -ve [negatives] occur + the length of the pylorus is suspicious (long)”.

A decision was taken to transfer Sidney to the care of the paediatric surgeons in Bristol Hospital for further investigation of the possibility of pyloric stenosis. At 3.15pm on Wednesday, 7 January 2015, Bristol indicated that they were happy to take Sidney but that there were no beds available. He therefore remained at Yeovil for a further two days, until the transfer finally took place at 14:50 on Friday 9 January 2015. No USS of Sindey’s head was carried out during this period. The decision not to carry out such a scan over this period had originally been criticised by the claimant’s expert consultant paediatrician Dr Conway but he later changed his mind on the issue and this allegation was dropped.

The discharge summary from Yeovil stated:

“1/52 history of post-prandial vomiting. Fall in centiles from 25th to 9th. BNO for 2/7. VBG pH 7.485, Cl 100 BE 3.6 initially. USS non-thickened pylorus but suspiciously long. Pt discussed with paeds surgeons at BCH who have kindly accepted to r/v. Pt was also noted to have a soft systolic murmur and poor head and neck control and head circumference of 91st centile o/e. Therefore we will follow up in Dr Zabarowski’s OPA for an echo and r/v of development and head circumference in 1/12 time”.

The abdominal scan undertaken at Bristol on Friday, 9 January 2015 showed no evidence of pyloric stenosis. Sidney was seen thereafter by Ms Cusick (consultant paediatric surgeon) on her morning ward round of 10 January 2015. Her notes record:

“Hx reviewed, 10 day history of vomiting. Fed well o/night. Imp/[ression] possible GORD [gastro-oesophageal reflux disease] P[lan] observe today → aim for d/c [discharge] tomorrow. If further vomiting, consider anti-reflux medication”.

At 6pm on the same day, Sidney was seen by Dr Sage, an ST3 (Specialty Training year 3) in paediatrics and a member of the paediatric surgical team. Dr Sage recorded that the issue of Sidney’s head circumference had been discussed with the Medical Registrar (i.e. a doctor on the paediatric, rather than surgical, team), and that Sidney needed:

“follow up with Yeovil which may need to be sooner than one month but would need to remain an inpatient. P/HV [health visitor] to monitor wt and HC in 1-2 weeks. D/C [discharge] summary copied to notify paediatrician in Yeovil”.

At the centre of Sidney’s case, as finally articulated, is the contention that no reasonable practitioner in the position of the unnamed Medical Registrar would have advocated this course. He or she ought to have recommended that an USS of the head be performed very soon.

In the event, Sidney was discharged home on the evening of Saturday 10 January 2015. While there, he was the victim of another incident of AHT at the hands of his mother. On Sunday 11 January 2015, he was taken to hospital by ambulance following a cardiac arrest. He was taken to the Paediatric Intensive Care Unit at Southampton Children’s Hospital where he underwent a CT scan of his head. The scan showed skull fractures with bilateral large subdural haematomas. There was electrical evidence of seizure activity. There were bilateral retinal haemorrhages.

Sidney has been left with permanent and significant disabilities including developmental delay and neurodisability, visual impairment, and a history of limb spasticity and epilepsy.

The criticisms made on behalf of Sidney are directed solely towards the medical (and not the surgical) practitioners responsible for his care at Yeovil and Bristol. The Particulars of Claim made wide ranging allegations of negligence but the sole remaining complaint is now that they failed to recommend that a very prompt USS scan of Sidney’s head should have been carried out after the negative findings on the USS scan carried out at Bristol on his abdomen.

The starting point for the test to be applied is that formulated in the familiar case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. In short, a health professional is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though some other practitioners may adopt a different practice.

The test was subsequently refined in Bolitho v City and Hackney Health Authority [1997] 4 All ER 771 in which the House of Lords held that while a doctor may be acting in accordance with a responsible body of medical opinion, a court can still find him or her negligent if that opinion is not otherwise logically defensible or reasonable.

Sidney’s case, supported by Dr Conway, is no longer that an USS of the head ought to have been carried before the procedure in Bristol failed to confirm the primary diagnosis of pyloric stenosis but that such an USS should nevertheless have been planned to take place within a day or two thereafter.

The central argument in support of this conclusion is that the failure to confirm the presence of pyloric stenosis left a diagnostic gap. The progressive centile increase in Sidney’s head circumference (combined with the history of weight loss, projectile vomiting, irritability and poor head and neck control) meant that it was illogical not thereafter to pursue the option of performing an USS of the head to confirm or exclude the possibility that an intracranial pathology lay at the root of his problems.

The defendants, however, contend:

Before my intervention, the parties had treated this case as one involving only the question of whether or not the medical paediatricians ought to have organised an USS of Sidney’s head “before discharge”. Dr Conway, however, in answer to questions from the bench, clarified, as I have noted, that it was not negligent per se for Sidney to be discharged home on Saturday as long as a scan was to be carried out very soon thereafter. There were no grounds for suspicion that Sidney would receive anything other than loving care from both of his parents following his discharge home. Thus the focus of the case shifted from the “before discharge” to the “very soon” threshold of USS intervention.

In this regard, I drew the attention of the parties to the case ofMeadows v Khan [2022] AC 852 as being of potential relevance to the proper approach to the circumstances of this case.

In that case, the claimant sought advice with a view to establishing whether she was a carrier of the haemophilia gene. Following blood tests, she was led to believe by the doctor that any child she might conceive would not have haemophilia. Later, she became pregnant with her son. Shortly after his birth. he was diagnosed as having haemophilia and autism (unrelated to his haemophilia). Damages were sought which included compensation not only for the extra expenses arising out of the condition of haemophilia but also those relating to that of autism. The claimant was awarded both at first instance but the Court of Appeal and Supreme Court declined to allow the claim in respect of the consequences of autism.

A majority of the Supreme Court held that a helpful model for analysing the place of the scope of duty principle in the tort of negligence consisted of asking six questions in sequence. It was not an exclusive or comprehensive analysis, but could bring some clarity to the role of the scope of duty principle which the earlier authority of South Australia Asset Management Corp v York Montague Ltd [1997] A.C. 191 had highlighted. Those questions were:

However, it is to be noted that this list is not to be treated as a straightjacket requiring an inflexible step by step and discrete consideration in every case. As the majority observed at para 29:

“It is quite possible to consider these matters in a different order and to address more than one question at the same time; for example, in many cases the second and the fifth questions can readily be analysed together.”

In this case, there is no dispute that the additional injuries sustained by Sidney at the hands of his mother are of a kind which would be actionable subject to the determination of the remaining issues. The actionability question must therefore be resolved in his favour.

With respect to the scope of duty question, the Court in Meadows held:

“37.

The scope of duty principle may also be of analytical value and of central importance in other circumstances, such as where a claimant seeks to establish liability arising from a defendant's omissions. One example is when the court is considering whether a defendant owed a duty to prevent injury or damage to the person or property of a claimant which has been caused by a third party…

38.

In our view it is often helpful to ask the scope of duty question before turning to questions as to breach of duty and causation. It asks: "what, if any, risks of harm did the defendant owe a duty of care to protect the claimant against?" The question is appropriately asked and answered at this stage, if it can be, in relation for example to the circumstances in which loss has been incurred, as in Caparo where the auditor owed no duty to the would-be investor, or in relation to claims resulting from omissions as in the cases mentioned above. The matter is less straightforward where a scope of duty question arises in relation to the quantification of damages, as in SAAMCO, where there is a question whether part or all of the loss claimed was the consequence of the risk against which the defendant had to take care. In such circumstances, having identified the risks against which the defendant has undertaken to protect the claimant, the further question at stage 5 of our suggested sequence (the duty nexus question) addresses how the defendant's scope of duty determines the extent of a defendant's liability.”

In this case, the duty on the defendants was to take reasonable care (in the Bolam/Bolitho sense) to take reasonable steps (whether by way of testing, treatment or otherwise) to respond to the risk of any deterioration in or failure to recover from any ongoing condition from which Sidney may have been suffering.

However, in the circumstances of this case, I am satisfied that there was no duty on the defendants to take steps to protect Sidney from any and all consequences of being discharged from hospital into the care of his parents regardless of whatever such consequences might turn out to be. The fact that his mother was later shown to have been responsible for his initial admission takes Sidney’s case no further. The scope of the duty of care of a defendant is not readily susceptible to retrospective expansion on the existence of facts which that defendant neither knew nor ought reasonably to have suspected at the relevant time.

I reject the submission made on Sidney’s behalf that this is simply a matter of fact and not a scope of duty question. If it were just a matter of fact then the scope of the defendants’ duty would (to take a reductio ad absurdum example) cover any injury sustained by Sidney in a road traffic accident on his way home from discharge.

No purpose is served by speculating about the practicalities of discharging Sidney and arranging for his attendance on the following Monday. Even on his case put at its highest, the second assault occurred before an USS scan of his head ought to have been carried out in fulfilment of the defendants’ duty to him. His discharge provided the opportunity for Sidney’s mother to assault him again but was unrelated to the nature of the duty owed by the defendants to Sidney. The “but for” test may have been satisfied but this is relevant to the fourth, factual causation, question in Meadows which will not usually be reached before the second, scope of duty, test has been satisfied,

I therefore conclude that this claim must fall at the hurdle of the scope of duty question in the Meadows formulation before the factual causation question arises.

Nevertheless, in case I am wrong about this, it remains appropriate for me to go on to consider the third issue (the breach question). I have resolved question two taking Sidney’s case at its highest but I nonetheless have all the necessary evidence to determine if his case on breach is to be preferred over that of the defendants. If I were to conclude that the defendants’ approach were reasonable on the Bolam/Bolitho test then Sidney’s case would fail whatever analysis were applied to the preceding issue of scope of duty.

In this regard, I accept without reservation the evidence of the defendants’ expert, Dr Rose. His approach was, at all stages of the litigation, reasonable, logical and fair. In contrast to that of Dr Conway, it also remained consistent. The basis of Dr Conway’s criticisms of the defendants was significantly attenuated by important concessions which eventually resulted in very little remaining of the case as originally presented.

Of course, in some cases, a willingness to see the other side’s point of view and change a previously held opinion may be taken to enhance rather than diminish the weight to be given to expert evidence. In others, however, the point is reached where the scale and significance of the concessions undermines the level of confidence to be attached to what remains. Such a point was reached in this case. Of particular significance was the fact that the changes in Dr Conway’s stance were not primarily, if at all, based either upon any changes in the available information upon which his earlier opinions had been advanced or upon the presentation of new arguments which he had previously overlooked. I note, in this regard, the contrast between his early unequivocal condemnation of the defendants for not performing an USS of the head on 6^th or 7^th January which was followed by an equally unequivocal concession that a scan over this time period was, after all, not necessary.

Dr Rose pointed to the fact that Sidney had been under 24 hours of observation in hospital during the course of which, save for the cranial circumference measurement, all signs of raised intracranial pressure had resolved completely. Indeed, this was accepted by Dr Conway. Furthermore, there was also no abnormality to be found upon examination of the fontanelle which, while not conclusive in itself. was a further factor to be taken into account.

Dr Rose considered all of the factors relevant to the proper approach to Sidney’s subsequent treatment and could find nothing wrong in the plan to have the health visitor follow up the issue of head circumference over the next one or two weeks.

I agree with the way in which the defendants put their case. I am satisfied that now to suggest that an urgent USS of the head was called for was a criticism emboldened with the deceptive confidence of hindsight and not by the sober application of reasonable foresight.

Furthermore, those acting on behalf of Sidney were able to point to no literature from any source which tended to undermine the opinion of Dr Rose. Indeed such literature as had been presented to the court on Sidney’s behalf was (as Dr Conway was obliged to concede in cross examination) found to be of no assistance to the court on the issues which fell to be determined. Again, this would not, of itself, be conclusive but it undoubtedly weakens the force of any Bolam arguments. In the absence of any logical flaw, in Dr Rose’s approach, the Bolitho refinement takes Sidney’s case no further. I emphasise that I do not find that those acting on behalf of Sidney have failed to establish negligence simply because Dr Rose presents and maintains a view and is a recognised expert. As the Court of Appeal in Smith v Southampton University Hospital NHS Trust stated:

“44.

The second point is that the deputy judge simply does not address Mr. Soutter's evidence on the point. She makes it clear that she prefers the evidence of Mr. Monaghan, but she does not explain why. She appears to rely exclusively on the Bolam test. Thus, she merely says that Mr Monaghan is highly reputable and that it had not been suggested that he did not represent the view of a responsible body of gyn-oncological surgeons. With great respect to the deputy judge, I do not think this is good enough. Where there is a clear conflict of medical opinion, the court's duty is not merely to say which view it prefers, but to explain why it prefers one to the other.”

Dr Conway also did himself no favours in his approach to responding to questions whilst giving evidence. There were occasions when he was mildly combative. Questions were not always answered directly or first time round. He showed a tendency to assume the intended purpose of any given question and, rather than to answer it, to present his defence to a point not yet made.

I readily accept the unenviable challenges which any witness (expert or otherwise) faces when giving evidence in court but, even taking these into full account, I formed the view that Dr Conway was, to an extent, seeking to fight his corner rather than taking a dispassionate approach to the issues raised. On my analysis, Dr Rose did not succumb to this temptation.

In the event, I am left in no doubt that Dr Rose’s evidence is to be preferred and that those acting on behalf of Sidney have failed to prove breach of duty.

Having concluded that Sidney’s case falls both at the second and third hurdles, little purpose would be served by considering the remaining Meadows issues. I note, however, that this is not a case in where there is a question whether part or all of the loss claimed was the consequence of the risk against which the defendant had to take care. It was always an all or nothing case. As such it fell to be determined on the scope of duty question without later recourse to the duty nexus question as each is formulated in Meadows.

This is a tragic case. A young life has been irredeemably blighted. However, the injuries inflicted upon Sidney by his mother did not in a legal sense fall within the scope of the duty owed to him by the defendants and, in any event, their treatment of him did not fall short of the standard required of medical paediatricians. Accordingly, this claim must fail.