Harding v Scott-Moncrieff

At about 3.34 p.m. on 13^th December 1999 Sir Christopher Harding, a successful and eminent businessman, died suddenly at his London home. Lady Harding, the Claimant, brings this action as widow and on behalf of the estate. It is alleged that the Defendant, Dr Scott-Moncrieff, a general practitioner who attend the deceased, was negligent and that better and/or more prompt action by him would have saved Sir Christopher’s life. Sir Christopher was 60 when he died and it is claimed that he would have continued to work until 70.

I cannot readily recall a case in which the court has been faced with such acute disagreement between two eminent experts, in this case cardiologists. Not only was there disagreement as to the underlying cause of death, by which I mean what caused the heart to fail, but there was dramatic disagreement on prognosis. Professor Oakley, for the Claimant, was clear that Sir Christopher should have survived and returned to work until 70, if he wished. Dr Channer, for the Defendant, was adamant that he would have died roughly when he did whatever had happened. It appeared that the court’s task was to be further burdened by the change of opinion by the Defendant’s general practitioner expert, Professor Wallace, who in his original report (June 2000) concluded that the Defendant had failed:

This volte face was said to be brought about by Lady Harding’s witness statement and a discussion of the case with the Defendant. The latter, it turned out in evidence, was during a conference with lawyers. It is unnecessary to go into details but the second report, to my mind, betrays a tendency to make a case to support the Defendant, an inherent risk in adversarial litigation which materialised here. It contains inaccuracies and conclusions which were for the court to draw. I point to an obvious example in the second paragraph:

“However, I now understand from Dr Scott-Moncrieff that the deceased certainly was not confused at the time of the examination. The reason why he was restless and pacing up and down was because he had just hurt himself, having tripped in the bathroom. More importantly, having read Lady Harding’s statement, it is clear that the deceased had been unwell for at least 48 hours prior to the Defendant’s visit and was probably suffering from a progressive condition, possibly an infection.”

While it is true that the Defendant had said Sir Christopher was talking lucidly, there were other signs of confusion and whether he was restless because he had hurt himself, of which there was no sign, or because of his general symptoms remained a matter for debate. Further, Lady Harding’s witness statement did not make it clear that Sir Christopher had been unwell for 48 hours. It referred essentially to tiredness, which all the experts subsequently agreed was non-specific and the Defendant had nowhere stated that Sir Christopher complained to him of any symptoms prior to waking that morning at 3.00 a.m., despite careful questioning. Indeed, in the Defendant’s chronology which he wrote after the events at about 4.15 p.m. and was available for Professor Wallace’s first report, he stated:

“The previous day, he tells me he had been well . . . . ”

The suggestion of a possible infection, appears to have come from Dr Channer.

Dr Carne, the Claimant’s expert general practitioner read the report “with growing amazement.” However, it is to Professor Wallace’s great credit that at the experts’ meeting on 23^rd March 2004 and in his evidence in court, a proper appreciation of an expert’s role had returned and, in the end, I was grateful to the Professor for his assistance.

As I have mentioned, the Defendant wrote his notes, in the form of a chronology, after the events. Miss Rodway QC for Lady Harding, submitted that in the circumstances I should exercise a degree of caution in respect of it since the Defendant would by then have realised that his actions would come under scrutiny. In the end there was no wide-ranging dispute on the chronology and I have only three reservations, the first of which is more concerned with the Defendant’s witness statement and evidence. The chronology states unequivocally that at 4.18 p.m. the Defendant phoned a consultant chest physician and told him his differential diagnosis. It is stated to have been:

“PE; silent MI or infection.”

(MI is short for myocardial infarct).

In the Defendant’s witness statement, this had become:

“Pulmonary embolus, ? Infection (pneumonia), ?? Myocardial infarction.”

The changed order and addition of question marks clearly was intended by the draftsman to indicate a descending order of probability. How precisely this came about I can only speculate. The Defendant could not explain it in evidence. However, he maintained that he never really thought PE or MI were likely. I consider it safer to accept the diagnosis as expressed in the chronology.

A sentence in the chronology under the entry for c. 14.05 reads:

“He would like to go to King Edward VII (KES) Hospital which seems reasonable as he tells me his condition has been stable since the onset of symptoms the night before.”

Those do not sound like the words of a patient as opposed to a doctor. In any event, a patient couldn’t know if his condition had been stable as opposed to how he felt.

My final reservation is again a comment attributed to Sir Christopher in the same paragraph:

“He said that he had had a terrible night and not slept but was no worse now than when his wife went to work in the morning” (my emphasis),

Lady Harding’s witness statement and evidence, which I accept on this, made clear that Sir Christopher had told her not to call a doctor, he would see how he was the next day. She said it was extremely unusual for him to stay at home but his symptoms then did not seem to merit calling the doctor and if she had been at all worried she would have over-ridden his comments and stayed at home. It is agreed that Sir Christopher only phoned Dr Southward, the Defendant’s partner, at about 1.15 p.m. The obvious question arises: If Sir Christopher told the Defendant he was no worse than when his wife went to work and he had not then wanted a doctor; why call Dr Southward at 1.15? The probability is that Sir Christopher did feel somewhat worse as the morning wore on or, at the very least, became more concerned by his condition. All the experts agreed that patients differ in their tolerance levels, some are more stoic than others, and it is not at all uncommon for patients to play down symptoms. Thus the fact that Sir Christopher called a doctor when he did at least indicates he had become more concerned about his condition. The fact that he had called the doctor at that time but not earlier should have alerted the Defendant to the probability that he was feeling worse. I find that the emphasised words are more likely to express the Defendant’s subsequent conclusion rather than Sir Christopher’s own statement.

These points apart, the parties accepted the chronology as about right. The times of many of the phone calls mentioned are precise, as verified by the Defendant’s BT invoice and thus are a good overall guide to the sequence of events.

The Defendant attended Sir Christopher at about 2.05 p.m., having been asked to do so by Dr Southward who told him that Sir Christopher had previously been well, had no known current medical problem but sounded quite short of breath on the phone. He spoke to and examined Sir Christopher for about 10 minutes and then returned to his car and phoned Dr Southward. For about the next 50 minutes the Defendant was in his car outside Sunderland Terrace, Sir Christopher and Lady Harding’s house, attempting to make arrangements for Sir Christopher to be admitted to KES and for a private ambulance to collect him.

Relevant points that emerge from the chronology are as follows:

It was agreed that Lady Harding, having arrived at KES and discovered that Sir Christopher was not there, prompted someone to call a “blue light” ambulance at 3.26 p.m.. It arrived at Sunderland Terrace 8 minutes later and would have taken no longer to drive to St Mary’s with Sir Christopher.

The general practitioner experts agreed at their meeting, that given a differential diagnosis which included PE and MI, which they also agreed are life threatening conditions embracing the likelihood of sudden deterioration and death, it would be standard practice for the doctor to remain with the patient. It was thus accepted before me that the Defendant’s failure to remain with Sir Christopher was a breach of duty.

The two other main allegations of breach of duty were that the Defendant should have rung for a “blue light” ambulance to take Sir Christopher to St Mary’s immediately upon making his differential diagnosis and should have treated him with a diuretic and aspirin (300 mg).

On the evidence as a whole I find that MI carries a high risk of death for up to about 24 hours although the risk diminishes as time passes. Since the Defendant’s differential diagnosis included MI and since the 24 hours is taken from the onset of symptoms, in this case about 3.00 a.m., all experts agreed that Sir Christopher should have been taken to hospital urgently, albeit they expressed themselves differently and with more or less emphasis. For example, Dr Carne remained throughout of the view that a “blue light” ambulance should have been called at once. Professor Wallace said:

“Rapidly to hospital”

Dr Channer would have regarded the private option as acceptable with two provisos: the doctor remained with the patient and a private ambulance could arrive within about half an hour.

On this evidence I find a breach of duty established in failing to summon a “blue light” ambulance. Not only did the Defendant not remain with Sir Christopher, there is no evidential basis for any reasonable belief that a private ambulance would arrive within half an hour. The Defendant never said that he had any such belief. Indeed, having decided first to arrange admission to KES, it was some 23 minutes after leaving Sir Christopher that he first called EMS. Neither the chronology nor the Defendant’s evidence gave any information as to how long from that call was the anticipated arrival. Thus even on Dr Channer’s evidence a breach would be established.

The explanation for all this is that the Defendant (as he maintained in evidence), did not regard Sir Christopher’s condition as a medical emergency and he did not consider there was any real risk of deterioration or sudden death within the next couple of hours; his concern was simply to get Sir Christopher into hospital that afternoon, which meant before 5.30 p.m. after which time he said things took longer to organise. It was, presumably, that belief which led him to accede to Sir Christopher’s expressed wish to go to KES as opposed to St Mary’s, without explaining to him the risks involved or the medical need for urgent transfer to a unit equipped to deal with acute coronary syndromes. All the experts agreed that for a patient to make an informed choice of that sort he must be given the relevant facts. Although it does not directly arise on the facts I have found here or as are agreed, I would hold that a patient is entitled to be given information material to the question in hand unless, in the doctor’s opinion, there are medical reasons for not doing so and that opinion was one a responsible body of practitioners could hold. That a doctor may withhold such information if he judges it would harm the patient, is no more than an expression of his general duty of care towards the patient. In case it is thought necessary I would also find that had Sir Christopher been told of the urgency and risks he would have agreed to go to St Mary’s, at least initially.

As for the failure to administer a diuretic or aspirin, again I find a breach of duty established. In the end all the experts appeared to agree that such treatment was standard practice. It was primarily a question for the general practitioner experts. In their answers to questions 4 – 7, the experts, in effect, agreed that such treatment should have been given unless, in the case of aspirin, it was contra-indicated, which it was not. Professor Wallace added that it would have been reasonable not to administer a diuretic if the Defendant was advised not to by the consultant he telephoned. I have no sufficient evidence about that conversation and thus the point goes. Both experts agreed that such treatment would have been potentially life saving. Only Dr Channer was less than entirely clear about the merits of such treatment, but I preferred the evidence of the other three experts on this. Dr Channer agreed that such treatment would provide, at least, a further window of opportunity.

This was a major issue in the case. I have already identified the stark difference of opinion between Professor Oakley and Dr Channer. Dr Channer’s underlying thesis seemed to be that the prognosis for chronic heart failure is poor whatever its cause and he pointed out that the prognosis for out-of-hospital cardiac arrests is appalling. He accepted (in his report) that if an arrest is due to a myocardial infarction causing ventricular failure, but treated promptly by electrical DC cardioversion then the survival rate is as high as 90%. That assumed the patient was in a coronary care unit such as St Mary’s. He identified other causes with less favourable prognoses, in particular, some other form of heart disease such as myocarditis, which was his preferred culprit here

In her report Professor Oakley had accepted the post mortem finding as to cause of death as (a) ischaemic heart disease and (b) coronary artery disease. She noted that Sir Christopher had only “single vessel” coronary artery disease with no previous damage to the heart and was otherwise healthy. Her opinion was that Sir Christopher had suffered an acute myocardial infarction. She also pointed out, albeit with slightly different figures, that mortality from acute myocardial infarction after admission to hospital was very low. Her opinion was that Sir Christopher’s chances of survival, if taken promptly to hospital, were excellent and his subsequent prognosis good. She thought his life expectancy was reduced by about 3 years to 75.

In evidence she expressed the view that after a good holiday she would have encouraged Sir Christopher to return to the work he loved and said, in view of the post mortem findings, “this heart was too good to die”.

Thus an issue arose as to the underlying cause of death – myocarditis or myocardial infarction – in addition to causation in the sense of the prognosis if Sir Christopher had been taken to hospital promptly.

As usual, various medical papers were prayed in aid on each side. Dr Channer pointed to findings supporting his gloomy prognosis, but the figures in question included failure from all causes, some of which would inevitably have been fatal. It also appeared that Dr Channer was referring to chronic, as opposed to acute, heart failure complicating the onset of myocardial infarction in his general views on prognosis. It also seemed to me that his initial view, to which he adhered, was coloured by not entirely accurate assumptions in his report. In the paragraph headed IN THIS CASE, after referring to some of Sir Christopher’s symptoms he stated:

“There was a prodromal history of two days when he felt tired and was unwell and then developed diarrhoea and breathlessness. At no time did he complain of chest pains. Although it is said that chest pain is not the dominant symptom in about 10% of patients with myocardial infarction this is usually in elderly and diabetic patients not in otherwise fit 60 year olds. More importantly symptoms develop suddenly in myocardial infarction due to the fact that the cause of infarction is an acute coronary thrombosis. In patients who die within 12 hours of an acute myocardial infarction the macroscopic appearances of the myocardium may be normal. In this case, death occurred at least 15 hours after the onset of symptoms so if the cause of the heart failure was an infarction there would be early macroscopic changes visible to the pathologist’s naked eye. More importantly in patients dying of myocardial infarction, a coronary thrombosis is visible in 90% of cases.”

I have already referred to Sir Christopher’s condition in the 48 hours leading up to the onset of symptoms. There is no clear evidence that he was unwell as opposed to tired. He never complained to anyone of being unwell until waking up at 3.00 a.m. on the Monday. Sir Christopher died about 12 hours after the onset of symptoms, not 15. Dr Channer placed considerable emphasis on the pathologist’s finding that there was no sign of recent infarction or reference to thrombosis. However, in the passage quoted he would expect only early macroscopic signs after 15 hours.

Professor Oakley was not surprised by the pathologist’s finding. She described, in some detail, that the early signs of pallor can easily be missed with the naked eye and only begin to appear after 12 to 15 hours or longer; a haemorrhagic ring only appears after about 36 hours. She pointed out, for what it was worth, that the pathologist was clearly satisfied with his findings of coronary artery disease and did not consider it necessary to proceed further to microscopic investigation; he was not alerted to the presence of infection in the heart muscle.

I listened to the experts with great interest. It is only necessary to read their joint report to appreciate the extent of their disagreement. Such a disagreement obviously places any court in some difficulty since it must presume to judge between experts in a field in which the judge is not expert. I am grateful to both for their assistance but, in the end, I was persuaded by Professor Oakley’s evidence. She struck me as particularly fair-minded, ready to admit the odd misquote or error and prepared frankly to state that overall the underlying cause could, theoretically, have been either myocardial infarction or myocarditis. She explained clearly why she preferred the former. Indeed in her letter dated 30^th March 2002 she said:

“I am as certain as I can be that the cause of death was myocardial infarction.”

Dr Channer was very clear in his evidence, but in his report had stated that:

“. . . . the cause of the heart failure is not clear to me.”

He went on to express the view that the coronary artery disease identified by the pathologist, was not extensive enough to have caused the left ventricular failure and proceeded to identify myocarditis as a possible and his preferred cause. Myocarditis is active inflammation of the heart muscle, the myocardium, by a virus. Professor Oakley in her letter report dated 10^th February 2004, in answer to Dr Channer’s report said this:

“Dr Channer suggests that Sir Christopher had a heart muscle disease causing heart failure. This would not explain the sudden onset of left ventricular failure despite normal cardiac rhythm and without preceding symptoms of any kind over the preceding weeks, or more likely months. Heart muscle disease does not develop suddenly and its presence is visible at autopsy. The exception is the very rare fulminating myocarditis. This is usually associated with preceding constitutional symptoms of overwhelming illness. The heart is flabby but may not show much else to the naked eye and a competent pathologist would proceed to microscopy which would reveal the inflammation of the heart muscle. Dr Channer’s hypothesis is untenable.”

Apart from my overall impression of the experts’ evidence, the particular factors that influenced me in concluding that myocardial infarction was the cause of the ultimate failure here, included:

It follows from my findings on breach of duty that a “blue light” ambulance should have been summoned at about 2.15 p.m. In that event Sir Christopher would comfortably have been in St Mary’s by 2.45 p.m. allowing some ten minutes (according to Dr Channer) for assessment and loading into the ambulance, which I regard as reasonable, and about 15 minutes for the round trip to Sunderland Terrace and St Mary’s. On that premise I accept Professor Oakley’s prognosis.

Even if one allowed some reasonable time for the Defendant to attempt to arrange a private ambulance, it should soon have become apparent that one could not arrive within half an hour. On that basis, arrival at St Mary’s should not have been delayed by more than about a further quarter of an hour. Even if a full half hour was added, Sir Christopher would still have been in St Mary’s at least a quarter of an hour before the arrest. In fact if aspirin and diuretic had been administered a somewhat greater “window” would probably have been available. In the event I accept Professor Oakley’s optimistic prognosis on any of these factual premises.

Further, if the Defendant had stayed with Sir Christopher, but relied on a private ambulance, I find he would have noted deterioration before 3.00 p.m. It is accepted that on deterioration a “blue light” ambulance should have been called at once. By 3.00 p.m. when Lady Harding spoke to Sir Christopher on the phone, she could hardly recognise his voice. Obviously, a doctor, if present, would have noted deterioration before then. The result is, once again, that Sir Christopher would have been at St Mary’s before the arrest albeit not by so long. Again the administration of a diuretic and aspirin would have increased the “window”.

Finally, on this aspect of the matter I should note that even if fulminating myocarditis was the cause of the final heart failure, I accept Professor Oakley’s evidence that the prognosis would still have been good. The literature produced supports that view.

The result of these findings is that from a medical point of view, Sir Christopher could have continued his career until 70, if he wished. Professor Oakley suggested a two to three months holiday which I find would have been taken. I also accept Lady Harding’s evidence to the effect that Sir Christopher would have wished to continue working and the other evidence I heard that non-executive chairmanships and directorships would have been available to him. However, I also find that Sir Christopher would have reduced his commitments as a common-sense approach, particularly as he had a young family and in order to avoid undue stress.

The claim is quantified in the Schedule of Losses.

£7,500 is agreed as bereavement damages.

The Defendant would agree £6,000 in respect of funeral expenses. However, some £30,000 is claimed. It appears from the particulars given that the larger part of that sum is attributable to costs associated with a memorial service. The Defendant disputes that such costs are recoverable as funeral expenses. Without in any way wishing to suggest that a memorial service was other than wholly appropriate in this case, I cannot find that costs attributable to a memorial service come under the statutory umbrella of funeral expenses. Some reasonable expenses associated with a funeral have been allowed by the courts, provided they were reasonable. I do not consider that a memorial service can sensibly be regarded as funeral expenses. I allow £7,000 in respect of funeral expenses.

The Defendant also challenges the claim in respect of certain solicitors’ fees, accountants’ fees and a valuers report in respect of property and assets. Again I cannot allow such expenses in the absence of any authority. These are all costs which would have been incurred at some stage in any event and cannot be brought under the statutory umbrella of funeral expenses.

The major item in the schedule comprises a dependency claim based on lost earnings to the date of trial and in the future. The parties jointly instructed Mr G.C. Rolliston (chartered accountant) to prepare a report for the court. Mr Rolliston considered Sir Christopher’s position with the five companies of which he was a non-executive director at the time of his death; he was chairman of three of them and vice-chairman of one. Mr Rolliston estimated what would have been Sir Christopher’s earnings to the date of trial, making what he believed were reasonable assumptions based on the material he was given. He also estimated Sir Christopher’s net annual earnings at the date of trial on the same basis.

In addition to this evidence I had the evidence of Lady Harding, to the effect that Sir Christopher loved his corporate life and would certainly have wished to carry on until he was 70. I also heard from Mr Binding, group secretary of Legal and General, who broadly confirmed the assumption made by Mr Rolliston, that Sir Christopher would have been confirmed as chairman at the next review in 2000, for a further 3 years to 2003. Lord Marshall gave general evidence confirming the high regard in which Sir Christopher was held and that it was not uncommon for respected individuals to remain as chairman of leading companies until the age of 70. He gave some examples. He had no doubt that other offers would have come Sir Christopher’s way, if or when any current positions had ended. Mr Rayner, company secretary of United Utilities of which Sir Christopher was also chairman, confirmed that Sir Christopher could have served up to 3 three-year terms as chairman, that is to 2006.

Miss Rodway submitted that clearly Sir Christopher would have worked until 70; he would have maintained his current positions in line with Mr Rolliston’s assumptions and could easily have taken up other offers. She pointed out that the claim for future loss (i.e. from the trial date) was based on a much reduced commitment of one chairmanship (probably United Utilities to be replaced by a similar post from 2006) and one directorship.

Mr Aldous submitted that, in the event I found that Sir Christopher would have survived to 70 or beyond, he would either have stopped work after recovering or have much reduced his commitments.

Both Counsel urged me to do the best I could with the available evidence and at least make some general findings on how much, if any, work Sir Christopher would have undertaken. They seemed confident that with Mr Rolliston’s excellent report they could then agree a final figure. One outstanding point of contention was the appropriate multiplier from trial. 8.3 was agreed as appropriate from 1999 to age 70, if I found Sir Christopher would have worked to 70. Whereas Miss Rodway would deduct the four and a half years to trial leaving 3.8 as the appropriate multiplier, Mr Aldous would reduce that to 0.8 in view of Professor Oakley’s reduction of life expectancy. Since I am here considering working life to 70 and not overall life expectancy, I prefer Miss Rodway’s approach, subject to the adjustment I shall mention.

I have already indicated that, broadly speaking, I accept Professor Oakley’s evidence. That does not mean that I pay no heed to any of Dr Channer’s views, for which I remain grateful. He said in evidence that, on the hypothesis that he was advising a patient who had recovered from a heart attack, he would look at the general life-style and if, as was the case here, the patient was not an obvious future risk through, for example, obesity or smoking, he would consider other obvious life factors such as stress. In this case it would have prompted him to advise the patient (Sir Christopher) to examine his life-style, cut down on his work commitments and take more time for family pleasures. That, I find to be sound advice and I have no reason to suppose Sir Christopher would not have heeded it.

Mr Rolliston’s assumptions include the significant degree of reduction in future work load that I have already mentioned. However, I consider it fair also to have in mind that, since I have accepted Professor Oakley’s optimistic views on working capacity, it is also probable that Sir Christopher would have asked about and been given information on general life expectancy. Assuming he would have been told that a reduction was appropriate and that the most optimistic (Professor Oakley) would have been 75, that also would have militated towards spending more time with his family. Included in that assessment is the fact that medical investigations would probably have revealed the existing coronary artery disease as found at post mortem. To my mind these factors lead to the conclusion that the simple multiplicand/multiplier approach would not be entirely fair in this case. The risk factors and uncertainties, which I find on the evidence as a whole, lead me to reduce the lost earnings more than is simply implicit in the Ogden tables. I would reduce the earnings to trial by deducting one of Sir Christopher’s main chairmanships. The appropriate one in my view would be Legal and General after the then current term had expired in 2000. Otherwise, on the basis that I find Mr Rolliston’s approach and assumptions to be very fair and reasonable, I would endorse his calculations. As to the future earnings from trial, I find Mr Rolliston’s reduced earnings figure appropriate and would reduce the multiplier to 2.8.

I hope these findings will enable Counsel to agree a figure. If not I will hear further short submissions on handing down this judgment.

At the end of her closing submissions Miss Rodway raised a new head of claim, namely, that Sir Christopher had suffered a period of pain and discomfort from the time of the Defendant’s visit to his death. Such claim was on behalf of the estate. A sum of £5,000 was suggested. Mr Aldous pointed out that the period in question was short, namely, from about ten past two to 3.30 p.m. He further observed that Sir Christopher died quietly in his own home and, relying upon the post mortem findings, there was no sign of any fall or injury preceding death. He submitted there should be no award under this head, alternatively, no more than £1,000.

I consider some award to be appropriate. Untreated and deteriorating as must have been the case, Sir Christopher would for a short period have become increasingly uncomfortable and alarmed. I consider £1,500 to be appropriate.