Doy v Gunn

The claimant, who was born on 25 January 2002, claims damages for negligence in relation to a consultation with the defendant, a general medical practitioner, on 19 March 2002. The claimant, to whom I shall refer as KD, brings his claim by his mother and litigation friend, Joanna Doy.

The factual background

At some time in the afternoon of 19 March, KD was seen both by a Health Visitor and by another partner of the practice, Dr. Aylward, for the standard six week check at the baby clinic. Ms Doy says that she then took KD to the evening clinic at which he was seen by Dr. Lloyd. That is in issue.

But at 20.06 that evening, Ms Doy telephoned Suffolk Doctors on Call, which provided an out of hours service for the practice at which KD and his mother were registered. The receptionist noted the history given to her as “persistent, constant crying for 3 hours – very out of character, won’t take milk”, and referred the call to the defendant, who was on duty that evening. She telephoned Ms Doy at 20.10. Her note of the telephone call reads:

“T Unwell few days Seen yesterday

& to-day by own GP Dx colic. Now crying constantly (since saw Dr ?) → base.”

The reference to ‘base’, is to Lowestoft Hospital where the defendant then saw KD at about 9 o’clock. Her note of the consultation, a continuation of the previous note, reads:

“B 21.00 hours

Crying ++ Afebrile Alert

Abdo soft Ears √√

No rash

Diagnosis: colic”.

On the evening of 21 March KD was admitted to the James Paget Hospital, where he was found to have an acute bacterial meningitis due to Group B streptococcus, and was treated with antibiotics. He was discharged from in-patient care on 29 March 2002.

The claimant’s condition is summarised by Dr Charles Essex, a consultant neuro-developmental paediatrician instructed on his behalf, in his report of 17 February 2008 in the following terms:

“Kieron has moderate mental handicap [also known as learning difficulties]. He has difficulties across all areas of development [“global” developmental difficulties]. He has no speech and is doubly incontinent. He has significant gross motor difficulties affecting the right side of his body [a right hemiplegic cerebral palsy].”

It is asserted on his behalf that his condition is attributable to negligence on the part of the defendant. The allegations of breach of duty of care can be summarised as:

It is submitted that had the defendant taken a proper history and carried out a proper examination, she would have referred him to hospital, with the consequence that he would then have been treated with antibiotics, would not have developed bacterial meningitis, and would not have the disabilities from which he now suffers.

The allegations of negligence are denied, and it is further submitted on behalf of the defendant that the claimant’s condition is not attributable to the bacterial meningitis from which he was undoubtedly suffering when admitted to James Paget Hospital on 21 March.

The Issues

As to breach of duty, there is agreement between the GP experts, that if the claimant’s condition when seen by the defendant was as described by Ms Doy, and if she gave a history to the defendant in the terms that she says that she did, then the defendant ought to have referred KD to hospital that evening. Conversely they agree that if the defendant’s evidence as to the consultation is accepted, then it was not mandatory for KD then to have been referred to hospital.

Accordingly the issue of breach of duty resolves to the question of whether, on the balance of probabilities, the account given by Ms Doy is to be relied upon.

In order to resolve that issue it will be necessary to test her evidence not only against that of the defendant, but also against the evidence given by Dr Lloyd and Dr Aylward as to the earlier consultations, and importantly against the contemporary medical records.

Is the claimant’s condition attributable to bacterial meningitis?

In consequence the solicitors acting for the defendant proposed that KD undergo a cranial MRI. His solicitors understandably sought an explanation of why such a procedure had been recommended by Dr Thompson. His response is contained in letters of 21 June 2011 and 18 July 2011, both of which were before me as addenda to his report. In the second he explained the reasoning behind his recommendation in some detail. In essence he said that the clinical picture did not appear to suggest that KD was in the high risk category for adverse neuro-developmental outcome from meningitis. In support of that proposition he argued that although meningitis is a serious illness, the majority of infants and children who develop it make a full recovery; secondly that in the claimant’s case the CSF white count was low, suggesting that the episode of meningitis was in its early course when treated with antibiotics, and that other effects of infection, a high CSF protein level and low CSF sugar level, were mild in degree rather than moderate or severe, adding that “generally speaking, the earlier that an episode of meningitis is detected and interrupted by antibiotic treatment the less likely it is that sequelae will follow or that they will be severe in degree.” He therefore suggested that it was possible that there was some other foetal event which had affected foetal brain circulation and had led to an episode in utero, producing periventricular leucomalacia (PVL). He said that it was his strong opinion that PVL of ante-natal origin at approximately 31 weeks of gestation was a legitimate differential diagnosis which should be considered. It is important to note that in his letter of 18 July Dr Thompson referred to an ultrasound scan that had been carried out on 26 March 2002, immediately before the claimant’s discharge from in-patient care, asserting that although normal, it was not sufficient evidence that there was no PVL.

Those advising KD then agreed to his undergoing an MRI scan, the result of which was considered by consultant neuroradiologists instructed on both sides, Dr Brian Kendall for KD and Dr Marcus Likeman for the defendant. In addition to their reports, they produced a joint report for the court. They agreed that the damage shown on the cranial MRI scan, which was carried out on 11 August 2011, was characteristic of venous infarction in the territory of the thalamostriate veins, that such damage is a complication of systemic illness including meningitis, but is also a complication of germinal matrix haemorrhage which typically occurs in pre-term infants. They agreed that the only documented episode in the clinical history is the illness diagnosed when KD was admitted to hospital on 21 March, and that if the injury had occurred ante-natally it would be occult, and there would be no history.

They also commented on the report on the ultrasound scan carried out on 27 March 2002, which was in the following terms –

“No hydrocephalus noted. The lateral ventricles are within normal limits and symmetrical. No ultrasonically identifiable abnormality is seen.”

Dr Kendall and Dr Likeman’s view of the significance of the report on the scan is in the following terms:

“The cranial ultrasound scan is not available for review as it has been destroyed. It was reported as normal. If the court finds the ultrasound report is correct, the injury to the child’s brain more likely occurred at the time of the illness at term of the equivalent age.

If the injury had occurred in the ante-natal period then on balance the ultrasound would have shown porencephalic cysts in communication with the lateral ventricles. If the injury was due to the meningitic illness a subtle abnormality may have been seen with good equipment and a skilled operator. ”

In evidence Dr Kendall said that the ventricles are clearly visible on ultra-sound scanning; and that the radiologist must have seen them in order to describe the lateral ventricles as within normal limits. In cross-examination he said inter alia that if there had been an ante-natal event in the latter part of pregnancy, necrosis at the margin of the ventricles would have been complete, and would have been apparent on ultrasound. He therefore concluded that the report on the ultrasound was sufficient to exclude an ante-natal insult causing the damage now to be seen on the MRI scan.

Lord Faulks submitted that in expressing such an opinion, Dr Kendall had gone beyond his report. But Dr Likeman agreed in terms that there was no disagreement between himself and Dr Kendall.

Lord Faulks also invited me to approach the opinions of the consultant neuro-radiologists with some caution, given that both agreed that they had limited experience of carrying out ultrasound examinations, in contrast to the paediatric experts, Dr Pearse and Dr Thompson, both of whom had more experience, and who agreed that in conducting and reporting upon an ultrasound scan, much will depend upon the skill of the operator, the machinery and the quality of any image obtained.

In cross-examination Dr Thompson asserted that damage attributable to an anti-natal event might not have been visible at the point at which the ultra-sound was carried out, but added that “in most cases it would have been if being looked for at that stage.” It was then put to him that if Dr Kendall was right, the report on the ultrasound scan was fatal to his conclusion as to the possible aetiology of the claimant’s condition. He agreed that “if mature at that stage PVL should then have been detected.”

I take account of the arguments advanced by Dr Thompson in support of his contention that an ante-natal event is more likely to have been the cause of the damage to the brain sustained by the claimant, in particular that the clinical records suggest that meningitis had probably only been present for a relatively short time and to a mild degree, and that events causing damage to the brain to the extent seen in KD are usually marked by significant deterioration in clinical condition, whereas his illness does not appear to have been so serious as to be consistent with a concurrent brain-damaging event, specifically that there was no evidence of an encephalopathy and/or convulsions documented during or at about the time of his admission.

But on the premise that the radiologist who undertook the ultrasound scan, Dr Kumar, was competent, and Dr Thompson agreed that there was no evidence to suggest otherwise, then in the light of the agreed evidence of the neuro-radiologists that if the injury had occurred in the ante-natal period, the ultrasound would on balance have shown damage to the ventricles, and of Dr Thompson’s acceptance both that in most cases such damage would have been looked for at that stage, and that if then mature, PVL should have been detected, I am satisfied that on the balance of probabilities a PVL can be ruled out as the cause of the KD’s disabilities.

Would the administration of antibiotics following the claimant’s referral to hospital on 19 March have prevented the development of bacterial meningitis?

Would KD have been prescribed antibiotics if referred to hospital on 19 March?

Dr Thompson did not agree. Dr Pearse, who is now retired, when in practice was a consultant neo-natalogist working in the latter part of his career at a tertiary referral centre. In contrast Dr Thompson is a consultant paediatrician in a District General Hospital directly concerned on a regular basis with making decisions as to whether to admit children on referral from GP’s or from A & E departments. He does not consider that it is probable that KD would then have been treated with antibiotics. On the premise that KD was in the condition noted by the defendant, and in particular that there were no signs of fever, drowsiness, irritability or other indications of infection, paediatricians then making an assessment of his condition would either not have admitted him unless they suspected that he might be infected, or have admitted him for further observation. If infection had been suspected, and as Dr Pearse agrees, a lumbar puncture would at that point have produced clear CSF, and had there been an infection screen there would not have been a raised white blood count. He further considers that there would not have been a raised CRP at that point, a conclusion with which Dr Pearse expressed agreement in their joint report. He therefore argues that there would have been no basis upon which to prescribe antibiotics, and contrary to Dr Pearse’s argument that there was no downside to taking such a step, said in re-examination that it is not current practice to give antibiotics unless infection is thought to be a serious risk, as to give antibiotics unnecessarily can have the effect of increasing resistance to them.

Dr Pearse modified his view as to whether CRP would have been raised at the time of a hypothetical admission on 19 March in the light of the agreed evidence of the microbiologists. They took the view that as KD was bacteraemic by 19 March, and bearing in mind that the CRP was very high on admission on 21 March, namely 180, it would have been raised well above normal two days earlier, a probable bracket of between 30 – 50. Professor Eykyn considered that such a reading would have been enough to alert the clinicians to the risk of infection. Professor Masterton agreed.

I consider that the evidence of the microbiologists is to be preferred on this issue, and am therefore satisfied that on the balance of probabilities that if KD had been referred to hospital on the evening of 19 March, investigation of his condition would have revealed a raised CRP, which, when considered in the context of an account of his condition by his mother along the lines of that recorded by the defendant, would have been likely to have given rise to a suspicion of risk of infection such as to require the immediate administration of antibiotics.

It follows that I am satisfied that on the balance of probabilities, if KD had been referred to hospital by the defendant on 19^th, he would have been treated with antibiotics which would have had the effect of preventing the development of meningitis.

Breach of Duty

KD’s condition deteriorated over the 17^th and 18^th March. He became harder and harder to feed, was sleeping a lot more than usual, and was crying for periods of one to two hours on and off through the day on the 18^th. On 19^th he was not his normal self, feeding even less well and sleeping much of the time. When awake he was crying hard or screaming, and drawing up his legs for periods of one to two hours and refusing to feed or be comforted.

When she took KD for his six week examination, she told Dr Aylward all about the illness, but he did not pay any attention to what she said. She saw the health visitor after seeing Dr Aylward, but did not say anything much to her because she was feeling very tired, and because nobody was paying attention to her or taking her concerns seriously. She was made to feel that she was an inconvenience.

She went back to the surgery later on 19^th, having made an emergency appointment, and saw Dr Lloyd. She could tell that he was not happy to see her again. He said that it was colic, and was really patronising, saying that all babies have colic and that medication could be bought from the chemist. She felt that he was not taking her concerns seriously.

When the claimant’s father came home at about 8 p.m. he was also concerned. KD had been crying non-stop for three hours since they had seen Dr Lloyd. He was crying when half-asleep, and she could not comfort or feed him. She therefore called the Doctor on Call service. The person that she spoke to said that the doctor would not come out, but that if she was concerned, she should make my own way to Lowestoft Hospital. She and her partner then walked the 2½ miles to the hospital in the rain.

When seen by the defendant, she told her that KD had been unwell for a number of days and was deteriorating. He had been crying constantly, and had not taken any milk since the appointment with Dr Lloyd. He was irritable when handled, and when she tried to comfort him he would scream and cry louder. When he wasn’t screaming, he was lying still in his crib.

She did not recall the defendant examining KD’s abdomen. It was a cold wet evening, so she had wrapped him up in an ‘all-in-one’ suit, which was not removed during the consultation. She could not recall Dr Gunn looking in his ears. They were only in the consultation room for about five minutes. Dr Gunn told her it was colic and advised her as to medication that she could buy over the counter.

In cross-examination she said that the defendant was dismissive, and had not examined KD. She had given her the history, explaining that KD not feeding, and that when crying he was “really really drowsy”.

During the next two days KD was hardly feeding at all. On the 21^st he was no better, being sleepier and more difficult to wake for feeds. It was on the evening of the 21^st that she decided to take him to the James Paget Hospital.

M/s Doy’s evidence was supported by that of her mother, Elizabeth Doy, and KD’s father, Seymour Maurice-Watts. Mrs Doy senior gave evidence that her daughter had come to her house with KD on the 19^th after the six week check up, and was upset because she felt that the doctors were not taking KD or her concerns about him seriously. She advised Ms Doy to call the surgery and make another appointment. She thinks that her daughter took KD to the surgery again during the evening clinic on the 19^th.

Mr Maurice-Watts, then Ms Doy’s partner, went to Lowestoft Hospital with her on the evening of the 19^th. He said that he was holding KD during the consultation, that they were only with the defendant for two to three minutes and that Dr Gunn did not examine the claimant.

The consultation with Dr Lloyd on 16 March

But there is no record of his having seen Ms Doy and KD again during the evening clinic on 19^th March; and Dr Lloyd is confident that he did not do so for a number of reasons. First he says that if he saw a patient, it was his invariable practice to make a note in the medical records. That evidence is reinforced by the comprehensive and detailed note that he made of the consultation on 16 March. Secondly there is no record of an appointment in the practice records. If as Ms Doy claims, she rang the surgery and made an emergency appointment, he would expect it to have been entered in the appointments log. Thirdly he has reconstructed a chronology of the evening surgery from the records; and there is no gap within which he could have seen KD.

Mr Stevenson sought to rely upon the note made by the defendant of her telephone conversation with the Ms Doy at 20.10 on 19 March that KD had been seen ‘to-day by own GP’ (see paragraph 4 above) as support for Ms Doy’s evidence that she saw Dr Lloyd at the evening clinic on 19 March. But the note is as consistent with having been seen by Dr Aylward that afternoon, as with having been seen by Dr Lloyd, and does not therefore assist. I find Dr Lloyd’s evidence, supported as it is by the contemporary records, persuasive. In my judgment it is highly improbable that Dr Lloyd saw KD at the evening clinic on 19 March, a conclusion that inevitably raises a serious question as to Ms Doy’s reliability as a witness.

The six week check up

Dr Aylward explained in his evidence that it would have been his usual practice to introduce himself to Ms Doy, and to ask how KD was and whether she had any particular concerns about him. He further says that during the course of such a check up, he takes care to observe how the child is in himself. From his record, KD was entirely normal. As to the ‘small umbilical hernia’, Dr Aylward explained that it is not in itself uncommon, and would not give rise to undue concern.

In my judgment it is highly probable that had KD then been in the condition that Ms Doy describes (see paragraph 27 above), he would have observed that that was the case and would have made a note of such observations in the record of the six week check up. As the GP experts said in their joint report:

“We are agreed that had KD been unwell at the time of assessment by a health visitor and a GP for a six week check we would have expected those two health professionals to have detected the illness and to have recorded features in the records.”

The evidence of Dr Aylward, supported by his contemporary note, therefore serves further to undermine Ms Doy’s evidence.

The consultation with the defendant

It is common ground that the defendant’s note of the consultation (see paragraph 5 above) is inadequate, it being accepted on her behalf that it is not as full as it ought to have been. Mr Stevenson for KD submits that the inadequacy of the note is highly revealing as to the manner in which the defendant conducted the consultation. But her note, which was made contemporaneously, has a number of features which bear both on the reliability of the evidence given by Ms Doy and Mr Maurice-Watts, and on the condition of the claimant.

The defendant does not have any recollection of the consultation. It was not until February 2009 that she received a letter before action alleging negligence on her part; and her evidence is therefore inevitably a reconstruction based upon her note and her usual practice. She says that she would definitely have wanted to examine the claimant, and would have asked his mother to undress him to his nappy. As to the entry “Afebrile” she says that she would have elicited that KD did not have a temperature by feeling his forehead rather than by taking his temperature with a thermometer. If she had used a thermometer, she would have recorded the precise temperature. She also noted that he was ‘Alert’, meaning that she considered that he was responding fairly normally to her and was awake. She adds that during the course of her consultation she would have been keen to assess his level of reactiveness by visualising his eye movements and his reactions to stimuli around him. She says that if there was any evidence of drowsiness she would have made a note to that effect.

As to the entry ‘Abdo soft’, she says that she would have examined KD’s abdomen, not least because there had been an earlier diagnosis of colic, which could have been an early sign of another abdominal condition. She adds that whilst examining the abdomen it may have been the case that she also checked for skin turgor by gently pinching the abdomen, a test of dehydration by assessing the elasticity of the skin. She cannot be sure that she did so, but that that would have been part of her usual routine. She also says that she would have felt for any masses in the abdomen through gentle palpation and “most likely listened to bowel sounds with my stethoscope”. Her note conveys to her that she found no abnormalities within the abdomen.

She is certain that she would have taken the opportunity to listen to his chest to elicit any signs of a chest infection. She says that she can see from her note that she checked his ears in order to detect whether there was any sign of an ear infection, and that both were normal, hence the ticks beside the word ‘ears’ in her note. She would have used an otoscope to examine the ears.

She also noted ‘No rash’ meaning that she would have looked for any signs of rash on his body which could be suggestive of infection. She could only have done so if his clothes had been at least partially removed.

Her conclusion, based on her note, is that as he had no rash, no temperature and was alert, she could not have suspected that he was developing meningitis or any other significant infection.

She further asserts that had she been advised that KD had not been feeding for three days, she would have made a note to that effect, similarly if it had been reported to her that he was wheezy.

If Ms Doy and Mr Maurice-Watts are right, the defendant did not ask them to remove his outer clothing and did not carry out any examination. On their evidence she did not touch him. But if they are right then there would have been no basis upon which she could have noted that he was ‘Afebrile’, that his abdomen was soft, that he had no rash and that there was no sign of an ear infection. In short the note would have had to have been a fabrication.

I acknowledge that the note was less than adequate, but I am satisfied that the defendant must have carried out an examination in order to make the note that she did.

Furthermore she has recorded KD as ‘Alert’, a note that is a record of considerable significance. As the defendant said in her witness statement, a point that she emphasised in the course of her evidence, drowsiness is a sign of considerable importance. She says that if there had been any evidence of drowsiness, she would have made a note of it. I accept that the note ‘Alert’ indicates clearly that there was no sign of drowsiness.

In this context it is also relevant to note the evidence of the microbiologists. Whilst they agreed that KD was probably bacteraemic on 19 March, neither was able to say that that would have resulted in signs or symptoms that would have been indicative of established infection. Accordingly their evidence did not provide any support for Ms Doy’s evidence. On the contrary it added weight to the defendant’s reconstruction of the consultation from her note.

There are therefore a number of features of the defendant’s contemporary note that are wholly inconsistent with the account given by Ms Doy and by KD’s father, both as to KD’s condition and as to what happened at the consultation.

The contemporary hospital records

Ms Doy was questioned in detail as to KD’s pattern of feeding over the five days between 16 and 21 March. It is not necessary to set out her answers, save to say that if she is right, there was a short fall of approximately 1,110 ml of feed over that period.

It is accepted by the experts that his condition as recorded on admission to hospital on 21 March is inconsistent with his mother’s account of his history of lack of feeding. When in the witness box Dr Pearse advanced the theory that his good hydration on admission on 21 March could be attributable to the syndrome of inappropriate anti-diuretic hormone hypersecretion (SIDH). The theory had not been advanced in his report; and he said in evidence that it had occurred to him in the course of the trial. The syndrome is characterised by excessive release of the anti-diuretic hormone from the posterior pituitary gland. It can be found in patients with infections such as meningitis; and if so it develops some hours after the infection becomes established. But save for a fall in plasma sodium level recorded some days after admission, and which was probably due to a mild degree of SIDH, there are no laboratory reports in the hospital records from which a conclusion can be drawn as to whether SIDH was present at admission.

But in any event if KD had fed as little as was claimed over a period of five days he would have lost a lot of weight, and would probably not have been passing urine. Thus I am satisfied that the evidence of his condition as recorded on admission serves further to undermine Ms Doy’s evidence.

There is a second point to be made about the medical reports, namely the absence of any reference to drowsiness either in Dr Lloyd’s notes, Dr Aylwood’s notes, or as has already been observed in the defendant’s notes. The conspicuously comprehensive note made on admission to the paediatric unit on 21 March records that “Since Tuesday – poor feeding - taking 2 oz feeds – crying ++ - drawing up legs” and “today – lethargic/sleepy…”. Yet it was Ms Doy’s evidence that drowsiness was a feature of his condition from 16 March onwards, evidence reflected in the pleaded case (see paragraphs 2 and 3 of the particulars of claim). Similarly in the letter before action he was described as “unusually drowsy” when seen by Dr Lloyd on 16 March. The particulars of negligence include the allegation that the defendant “was negligent in failing to heed the claimant’s drowsiness even while awake.”

It is common ground between the experts that drowsiness is a sign of considerable significance. In my judgment it is highly improbable that if present it would have been missed by each of the doctors who examined KD during the relevant period. As I have already noted it is wholly inconsistent with the defendant’s note that KD was “Alert”.

I am therefore bound to conclude that this is another aspect of Ms Doy’s evidence that cannot be relied upon.

Conclusion

The GP experts are agreed that if the defendant’s account of the consultation is accepted, it was not then mandatory for KD to be referred to hospital. It follows that the claimant has failed to establish a breach of duty on the part of the defendant.

The claim must therefore be dismissed.