MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre
1 Bridge Street West, Manchester
M60 9DJ
Before :
MR JUSTICE LEWIS
Between :
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TRACY DAVIES (By her Mother and Litigation Friend, JANET DAVIES) |
Claimant |
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- and - |
|
|
(1) UNIVERSITY HOSPITAL OF NORTH STAFFORDSHIRE NHS TRUST (2) THE WALTON CENTRE NHS FOUNDATION TRUST |
Defendants |
Mr Nigel Poole QC (instructed by Pannone Solicitors) for the Claimant
Mr Charles Feeny (instructed by Hill Dickinson) for the Defendants
Hearing dates: 29th - 31st October 2014
Judgment
Mr Justice Lewis:
INTRODUCTION
This is the determination of a preliminary issue as to whether or not the First Defendant, the University Hospital of North Staffordshire NHS Trust, breached its duty to exercise reasonable skill and care in the treatment of the Claimant, Tracy Davies. The central issue is whether the First Defendant was negligent in failing, either on 6 January 2001, or the 28 January 2001, to arrange for a brain scan for Tracy, or in failing to arrange for paediatric follow-up at which a brain scan would have been considered or arranged. In fact, Tracy had a tumour on the brain and if a scan had been carried out in January 2001, that tumour would have been detected then.
Tracy was 9 years old at the material time in 2001. She attended the accident and emergency unit of North Staffordshire Hospital (“the hospital”) and was referred to the paediatric ward on both 6 and 28 January 2001. She was seen by a senior houseman on 6 January 2001. It has not been possible to identify that doctor. Tracy was seen by a Dr Rao on 28 January 2001. With the passage of time it has not been possible to trace Dr Rao. I have not, therefore, heard evidence from the two doctors concerned. The notes of the Claimant’s general practitioner and the medical notes prepared by the hospital were in evidence.
I heard evidence from the Claimant’s mother, Mrs Davies. I heard evidence from Dr SP Conway on behalf of the Claimant. Dr Conway practiced as a consultant paediatrician between 1988 and April 2013. Prior to his retirement, he practiced in the field of general paediatric medicine but with a special interest in infectious diseases, immunology and respiratory medicine. His work included work at general paediatric outpatient clinics and he had responsibility for patients after admission and responsbility for follow-up treatment for such patients. I also heard evidence from Dr IZ Kovar on behalf of the First Defendant. He had been a full-time consultant between 1984 and 2011 in paediatric and perinatal medicine. More than 50% of his time was, in practice, spent on general paediatric medicine. His responsibilities included responsibilities for admission and management of patients to hospital and for general clinics. He had been responsible for establishing a paediatric centre at Chelsea and Westminster Hospital. From 2011, Dr Kovar had been a part-time consultant in paediatric medicine attending clinics for one week in four.
First, this judgment deals with the material facts. In many instances, the facts are not in dispute or are evidence from the contemporaneous record. In some instances, however, there are factual issues in dispute and I set out my conclusions on those factual issues. During the course of the hearing, it transpired that the differences between the two witnesses giving expert evidence on whether the clinicians involved had failed to demonstrate reasonable care and skill depended to a large extent on differences of view between them as to the facts of the case. The significance of the factual issues, therefore, assumed greater importance. Secondly, the judgment deals briefly with the law. The legal principles are not in dispute. It is their application to the facts that are in issue. Thirdly, this judgment then deals with the question of whether or not there was a breach of the duty of care owed by the clinicians to the Claimant.
THE FACTS
Tracy was born on 4 November 1991. She suffered headaches during her childhood including when she was about 5 and ½ years old and again in 1998. Mrs Davies also gave evidence, which I accept, that Tracy suffered headaches in late March and early April 2000 and again when on holiday in Greece in September 2000. The claim, however, does not relate to that earlier period but relates to the care received in January 2001.
3 November 2000 to 5 January 2001
On 3 November 2000, Tracy attended the accident and emergency department of the hospital. The records show that the initial assessment indicated that the problem was “head”. The nursing assessment carried out at 9 a.m. on that day indicated that Tracy had a headache at the front of the head and had been having similar headaches for a number of years and that she had been seen by the GP but not investigated. The clinical notes recorded that the presenting complaint was “headache” and “dizziness”. The history of the complaint was taken and that records that there were problems with headaches for the last 3 years, that once the headaches started they tended to last for 24 to 48 hours, and that Tracy felt dizzy and unwell. A fundoscopy, that is an examination of the fundus at the rear of the eye, was carried out and that disclosed no abnormalities. The notes record that the impression was that this was simply a headache or cluster of headaches. It notes that Tracy was to be discharged with general practitioner follow up.
A letter dated 4 November 2000 was sent by the hospital to Tracy’s GP. That noted that Tracy had attended the hospital at 8.49 a.m. On 3 November 2000 it stated the following:
“Diagnosis
1 Pain
Presented with headaches that she has suffered with for the last 3 years. Could possibly be cluster headaches and have advised to [discuss with] GP if problems continue.”
The GP notes record that Tracy visited the surgery again on 17 November 2000. The notes record that Tracy felt sick and had dizziness at times with headaches. The notes record that Tracy’s eyes were alright and, in relation to her neurological condition, no abnormality was detected. The notes record that the GP prescribed Saminigram which is a drug used to treat migraine.
The GP notes record that Tracy attended the surgery again on 14 December 2000. That records that there were still headaches and notes “X ray sinuses”. There is a letter dated 19 December 2000 included within the GP notes from a consultant radiologist at the Longton Imaging Service, Longton Cottage Hospital which says in relation to Tracy the following:
“SINUSES – there is opacification of the left maxillary antrum presumably due to infection with possibly fluid within the sinus.”
The GP notes for 2 January 2001 record the fact of the X ray and indicate that Tracy had been prescribed “Cephalosporin 250 mg BD x 7 days”. The notes record that “if no better to refer ENT” (that is, to a specialist in ear nose and throat treatment).
Dr Kovar gave evidence, which was not challenged, that sinuses are air spaces. The maxillary antrum sinuses are under the cheek and above the palate. There is a secondary set of sinuses between the eyes and above the nose. They may become infected either by a virus or by bacteria. That causes inflammation or swelling in the mucous membrane. Depending on how swollen the membranes are, that may indicate the presence of fluid in the sinus. Symptoms are a feeling of pressure or pain at the front of the head, that is a frontal headache. The letter of 19 December 2000 indicates that the imaging shows cloudiness (opacification) in the left maximally antrum, indicating significant inflammation due to infection or fluid. Cephalosporin is an anti-biotic used for the treatment of sinusitis. The medical notes, therefore, indicate that Tracy had been diagnosed as having, and was prescribed medication for, sinusitis at that stage. That is also consistent with the evidence of Mrs Davies who said that she took Tracy to be X rayed at the Longton Cottage Hospital after seeing Tracy’s GP, Dr Mir, on 14 December 2000 and that Dr Mir subsequently told her that Tracy had an infection of her sinuses. I found Mrs Davies to be an honest and careful witness. She would give her recollection of what happened when she could. Mrs Davies would indicate where she could not recollect matters but the medical notes indicated what had happened. When Mrs Davies could not recollect any particular event, she would say so. I regard her as an accurate and honest witness of fact.
I therefore find as a fact that as at late December 2000, Tracy had symptoms which were consistent with sinusitis. She had been X rayed and the X-rays were consistent with infection of the sinuses. Her GP had prescribed antibiotic medication for sinusitis on 2 January 2000. I find as a fact that as at 2 January 2001, the GP was treating Tracy on the basis that she had sinusitis.
6 January 2001
On 6 January 2001, Mrs Davies gave evidence, which I accept, that Tracy had a headache and was screaming with pain. She therefore took Tracy to the accident and emergency unit of the hospital.
The evidence is that the details of the complaint that caused attendance, and the history of the complaint, would be (and was) given by Mrs Davies to each healthcare professional. The exact details of what the relevant healthcare professional was told is important as that was the information, together with the examinations carried out, that formed the basis upon which Tracy was treated on both 6 January and 28 January 2001.
The hospital notes for 6 January 2001 commence with the time, 12.17, which indicates the time that Tracy and her mother arrived at the accident and emergency unit. At 12.25, there was a nursing assessment. That records:
“Time: 12.25
Off food
Sick – vomiting diarrhoea headaches (please see old card) pale no rash feeling generally unwell
Ciproxin prescribed 3/7 for synis infection”
At 2.30 p.m., Tracy was seen by a doctor and the clinical notes, so far as relevant, include the following information:
“CPO:
-headach [sic]
-vomiting/since last night
-frequent vomiting
-frontal headach [sic]
-dizziness
-one episode of diarrhoea
PMH – Sinusitis and headach
PH – on ciproxin x 3/7 by GP for Sinusitis”
There is further information recorded about other medical matters. Tracy is recorded as looking unwell, her heart rate and temperature are recorded and there is an entry “ENT –NAD” and I accept the expert evidence which is that these abbreviations stand for “ear nose and throat – no abnormality detected”. The notes record that the impression was of “headache” and the notes of the clinician appear to indicate that that may be due to sinusitis (although these parts of the note are not easy to read). The notes record that the “vomiting and diarrhoea due to ciproxin”. The reference to “ciproxin” is a reference, it appears, to the antibiotic prescribed on 2 January 2001 for the sinusitis.
Tracy was admitted to the paediatric ward at 17.15 on 6 January 2001. The multidisciplinary notes record that the initial nursing assessment was as follows:
“17.45 Admitted. Via A/E History of having persistent vomiting and a headache. Mum says she is vomiting everything she is taking orally. On admission alert; orientated. Fluids small amount offered.”
The fact that she had previously attended hospital was recorded as follows “Nov 00 headache”. Tracy was seen by a senior houseman. Mrs Davies remembers that the senior houseman was male. His name is not known and whilst his signature appears in the medical records it is not legible. Mrs Davies gave evidence that Tracy was better when she arrived on the paediatric ward, that the vomiting was settling and she did not vomit while on the ward and that she was not screaming. Mrs Davies was present when the senior houseman examined Tracy and Mrs Davies says that she, Mrs Davies, would have given the information recorded by the senior houseman in the medical notes. The senior houseman’s notes read as follows:
“[Presenting [complaint]: Headaches and dizziness vomiting
[History of presenting complaint]: Recurrent frontal headaches last 3 years often associated with dizziness. Recently GP diagnosed sinusitis. X-ray of sinuses show sinus congestion. Prescription Ciprofloxacin 250 mg twice a day since Wednesday. Became increasingly dizzy and vomited persistently since last night. Was unable to drink anything. GP instructed to stop taking Ciprofloxacin and attend A&E department. Has been drinking and not vomiting anymore since admitted to 112.
[Past medical history]: Sinusitis. Recurrent Headaches. Immunisations up to date.
[Prescription history]: Ciprofloxacin 250mg twice daily for three days.
No allergies known
Family History: No family history of migraine. Grandmother had chronic sinusitis.
On examination: mildly dehydrated. Apyrexial.
…
ENT: No abnormality detected. Tender across frontal sinuses.
Diagnosis: sinusitis
Plan: Home on Augmentin. Increase fluids. GP follow up in one week.”
There is a discharge summary which was sent to Tracy’s general practitioner. That notes the following. The diagnosis was recorded as “frontal sinusitis”. The presenting complaint was recorded as:
“Headaches on/off last 3 years
Sinus on X ray
[illegible] ciprofloxacin 3/7 [illegible]
dizzy + vomiting
- stopped ciprofloxacin”
The clinical findings include mild dehydration and “tender across frontal sinuses”. The treatment is recorded as Augmentin for 1 week. That is an antiobiotic and is used in the treatment of sinusitis. The discharge summary records that the GP should follow up in 1 week and consider a referral to an ear, nose and throat doctor.
I find as a fact that the senior houseman who treated Tracy on 6 January 2001 knew, or ought to have known, that Tracy had been admitted for vomiting and a headache. He knew or ought to have known that she had attended hospital on one previous occasion for a headache. He knew that there had been a history of recurrent headaches over the last 3 years. He knew Tracy had been prescribed an antibiotic for sinusitis on 2 January 2001, that it was to be taken for 7 days and she had been taking the medication since the Wednesday before Saturday, the 6 January 2001 (that is for some three or possibly four days) and that it had caused vomiting. He assessed her for ear nose and throat problems and detected no abnormalities save for a tenderness across the frontal sinuses. The expert evidence, which I accept, is that that is consistent with sinusitis. The senior houseman diagnosed sinusitis. He prescribed an alternative antibiotic, Augmentin. I find that the reasons why Mrs Davies took Tracy to the hospital was because of the vomiting and the headache. The notes do not record that any member of the hospital staff was told that Tracy’s headache was characterised by severe pain nor is there any evidence that they observed severe pain, or saw Tracy screaming with pain. Mrs Davies’ evidence is that Tracy was not screaming with pain at the time that she was transferred to the paediatric ward.
23 January 2001
On 23 January 2001, Tracy attended her GP’s surgery. The notes record “sinusitis”. It appears that the GP prescribed a different antibiotic, Doxicycline. That is an antibiotic used in the treatment of sinusitis. The natural inference from the medical note is that this medication is now being prescribed in place of Augumentin. I find as a fact, therefore, that this is the third type of antibiotic prescribed to address the diagnosis of sinusitis. The note also refers to a referral to ENT. I deal with that issue below.
28 January 2001
On Sunday, 28th January 2001, Mrs Davies says that Tracy had a terrible headache and was screaming with pain. She took Tracy to see the out of hours doctor on two occasions on that day. That is confirmed by the out of hours medical notes which record two contacts with the out of hours service, one at 11.35 and a second at 16.15. At this stage, Mrs Davies says that Tracy was screaming “My head. Take my head off. Cut my head off”.
The out of hours doctor referred Tracy to the paediatric ward of the hospital. The multidisciplinary notes record the time of admission as 18.30 on 28 January 2001. They note that the reason for admission was “vomiting headache for 24 hours”. The initial nursing assessment described “Moderate Pain”. It records the history as follows:
“History of having headache on and off for about 4 years – Nearly always associated with vomiting. Headache mainly frontal in area – Not excessively full of cold at the moment. Also has occasional dizzy episodes at school and when headaches are painful.”
The notes also record previous hospital admissions as “headaches before” and list the admissions on 3 November 2000, 6 January 2001 and the present admission on 28 January 2001 noting alongside them “headache vomiting”. It notes in relation to medicine that a treatment of penicillin had been finished the previous day. It noted an allergy to ciproxin (that is, the first antibiotic prescribed for Tracy) noting “Ciproxin gave headache and sickness”.
Tracy saw Dr Rao at 9 p.m. on 28 January 2001. His note is as follows:
“History: Headaches on and off since 4 years. Usually has 4 attacks/year of acute onset lasting about 48 hours and associated with vomiting. Headache is frontal and throbbing in nature, not associated with pyrexia [“but” or “not”] associated with photophobia … no history of morning exacerbation of headache, clumsiness. Activity … appetite normal, passing urine, bowels normal, no history of head injury … no family history of migraine. Doing well in school and socially.
Examination: Alert awake, apyrexial, no meningeal signs, Capillary Refill Time RT <2 sec, well hydrated, Pupils Equal and Reacting to Light, some frontal sinus tenderness, vitals stable. Central Nervous System: no motor/sensory deficit. Reflexes normal, chest, cardio-vascular system, abdomen – no abnormality detected. Ear Nose and Throat – no abnormality detected. FUNDUS – within normal limits, no papilloedema.
Diagnosis: ? migraine ? sinusitis
Prognosis and Advice given to parents: Pizotifen and epinephrine started by on call GP. Reassured Mum (illegible) … above medication. May require ENT referral.”
Mrs Davies gave evidence, which I accept, that she would have provided the details which are recorded in Tracy’s history in that note. Given the passage of time, it has not been possible to trace Dr Rao. I heard evidence from Dr Conway and Dr Kovar as to how that note should be interpreted.
I find as a fact that Dr Rao knew, or ought to have known, that Tracy had a history of headaches, comprising about 4 attacks a year, each lasting about 48 hours and associated with vomiting. He was told that those headaches were frontal in nature. He knew that this was the third occasion since November 2000 that Tracy had attended the hospital with symptoms comprising a headache and vomiting. I find as a fact that Dr Rao knew, or ought to have known that one course of antibiotics had been prescribed but discontinued as it was thought to lead to vomiting. Dr Rao knew or ought to have known that two further types of antibiotic had been prescribed (Augumentin and Dioxcycline). There is no record of Dr Rao, or any other member of the medical staff who saw Tracy and her mother, recording that they observed severe pain, or were told that the pain was severe. There is nothing in the records to indicate that they were told that Tracy had been saying things such as she wanted her head taken off or cut off. Mrs Davies did not give evidence that she told Dr Rao that, or that she told any other member of staff at the hospital of that. Her evidence was that Tracy was saying that earlier in the day when the Out of Hours doctor was being contacted.
I find as a fact that Dr Rao considered the possibility of an underlying neurological condition. That is why he considered whether there was any evidence of exacerbation of headache in the morning. The evidence of both Dr Conway and Dr Kovar, which I accept, is that waking in the morning with a headache would be indicative of some more severe neurological problem such as raised intracranial pressure. Dr Rao examined the ear, nose and throat and no abnormalities were detected. Dr Rao also investigated the fundus and found no signs of papilloedema. The evidence of Dr Kovar, which was not challenged and which I accept, is that the fundus is the white area at the rear of the eye to see if it was clear and with well defined margins. If, there is intracranial pressure on the brain, then the lines become blurred and the area of white disk becomes pink and swollen (that is displaying papilloedema). I infer that Dr Rao was considering whether there was any indication that Tracy’s condition might be attributable to an intracranial lesion (hence consideration of whether the headaches were exacerbated in the morning and investigation of the fundus). I find as a fact that there were no indications of any such intracranial lesion. I find as a fact that, on a balance of probabilities, Dr Rao ruled out raised intracranial pressure caused by a lesion on the brain as a possible cause of Tracy’s symptoms. He considered that the appropriate diagnosis was either migraine or sinusitis.
The notes of Dr Rao indicate that he had advised a follow up by the GP. He also noted that the condition may require referral to an ear, nose and throat specialist. Dr Rao intended that a letter to be sent to Tracy’s general practitioner and that Tracy should continue with the medication prescribed by the GP. There is a stamp included within the hospital’s medical notes recording those matters under the heading “discharge information”. There is no discharge letter included within the notes of Tracy’s GP and no copy of such a letter included within the hospital notes.
The Referral to an Ear, Nose and Throat Specialist.
Tracy’s GP notes for 23 January 2001 include a note “Refer to ENT”. There is a copy of a letter dated 26 January 2001 in the GP notes addressed to an ear, nose and throat consultant at the hospital. That letter notes that Tracy was troubled with recurring headaches. It records that clinical examination had revealed tender maxilliary sinuses and an x ray had shown opacification of the left maxillary antrum presumably due to infection with possible fluid in the sinus. It states that Tracy was treated with a broad spectrum antibiotic which had not assisted much. There is a copy of that letter included within the hospital’s notes and bears a date stamp of 30 January 2001.
I find as a fact that Dr Rao did not know that the GP had made a referral to an ear, nose and throat consultant for three reasons. First, the letter and date stamp indicates that it was written on 26 January 2001 and not received until 30 January 2001, that is after the 28 January 2001 when Dr Rao saw Tracy. Secondly, Mrs Davies gave evidence, which I accept, that she did not know that the GP had made a referral to an ear, nose and throat consultant and she could not, therefore, have provided that information to Dr Rao. Thirdly, that is consistent with Dr Rao’s own note. He said that Tracy “may require ENT referral”. That is inconsistent with him knowing that there had already been a referral to such a consultant. The relevance of that fact is that the follow-up recommended by Dr Rao was follow-up by her general practitioner. He was not recommending that referral to an ear, nose and throat consultant be arranged.
In the event, Tracy did not attend an appointment with an ear nose and throat specialist at that stage. Mrs Davies recollected a telephone call indicating that an appointment was made for a date in March 2001 but that Tracy did not attend, probably because no letter was received confirming the appointment or possibly because it was forgotten about.
The Presence of a Tumour
There was a tumour present on the Claimant’s brain at the time in January 2001. The parties agree that it is not possible to determine whether or not the cause of her symptoms in January 2001 was the tumour. If a brain scan, whether a CT scan or an MRI scan, had been carried out in January or February 2001, it would have revealed the presence of a tumour.
Events Between 29 January 2001 and November 2001
Mrs Davies gave evidence that Tracy was sent home from school with a headache in May 2001. The family moved to Crewe in June 2001. The headaches continued between June and September 2001. Tracy saw her GP on 11 September 2001 and again on 18 September 2001. On 20 September 2001, Tracy was sent home from school with a headache. On 22 September 2001, Tracy was ill with a headache and vomiting. Mrs Davies took her daughter to see a GP, Dr Mitchyn. He said that the symptoms were not attributable to sinusitis or migraine and advised that Tracy should go to hospital. Mrs Davies took Tracy to Leighton Hospital. Tracy was admitted to the ward. On that occasion, Tracy remained in hospital for approximately 3 nights before being discharged.
The paediatric records which begin on 22 September 2001 show a history of recurrent headache and vomiting over 5 years which had increased in the last year. The diagnosis is noted as:
“1) ? frontal sinusitis
2) ? migraine
3) neurological problem – unlikely”
The management and treatment plan included a referral to an ear, nose and throat consultant. On 23 September 2001, the medical notes include, as part of the treatment plan, “consider CT brain (along [with] CT sinuses?). On 24 September 2001, the notes record the opinion of the ear, nose and throat consultant that if there were no clinical signs of sinusitis, then a CT scan of the sinuses was not recommended and noted that a limited MR brain might be worthwhile to rule out intracranial lesion and that this was a matter for a paedriatic consultant. There is a note time at 15.10 on 25 September 2001 asking for a CT scan to be arranged. There is a letter of referral dated 31 October 2001 and that indicates that it had been decided in September 2001 that a brain scan of the sinuses was not necessary. I find as a fact, on a balance of probabilities, that at that stage in late September 2001, the ear, nose and throat consultant had determined that sinusitis was not the cause of Tracy’s symptoms. I find as a fact that a non-urgent scan (whether by CT or MRI) was considered appropriate as there was no obvious diagnosis which explained Tracy’s symptoms and those treating Tracy in September 2001 considered that a scan was required, given the uncertainty, to rule out the possibility that the symptoms were attributable to raised intracranial pressure due to a lesion on the brain.
Circumstances changed dramatically in October 2001. Tracy was readmitted to hospital. On 29 October 2001, a fundoscopy was carried out. That did reveal blurred outline to the disk. That is a clinical indication of raised intracranial pressure. An MRI scan was requested urgently. A scan was begun on 30 October 2001 but had to be stopped as Tracy was in pain. However, some imaging had been obtained and the notes of 30 October 2001 disclose that, on examination of the scan, a large lesion was seen on the brain. That is confirmed in the letter dated 31 October 2001 from the consultant paediatrician at Leighton Hospital to Tracy’s GP. That records that there was a space occupying lesion in the left posterior parietal region of the brain measuring 7.5 cm. x 6.5 cm. x 5.5 cm.
Sadly, the tumour was misdiagnosed as malignant. Tracy underwent radiotherapy which caused harm. The second defendant has admitted a breach of duty in relation to that misdiagnosis. Those matters do not therefore form part of the determination of the preliminary issue in this case which concerns the 6 and 28 January 2001 and whether there was a breach of duty on the part of the first defendant in failing to arrange a brain scan, or a follow-up for that purpose.
THE LAW
The relevant legal principles are agreed and can be stated shortly. The doctors who examined Tracy on 6 and 28 January 2001 owed a duty to exercise reasonable skill and care. If they fail to show such skill and care, they are negligent and will be liable for any loss caused as a result of their negligence. The First Defendant is liable for the acts of the two doctors.
This is the trial of a preliminary issue on the question of whether there was a breach of duty, that is whether either or both of the doctors who examined Tracy on 6 and then the 28 January 2001 were negligent, in that they failed to act with reasonable skill and care in their treatment of Tracy.
The standard of care that is required is that of the ordinary skilled person practising the medical skills in question. Furthermore, a medical practitioner who acts in accordance with a practice accepted as proper by a responsible body of medical opinion will not be found to have failed to exercise reasonable skill and care and will not be negligent. The appropriate approach is set out by McNair J. in Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582 at page 587 in the following two passages:
“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.”
and
“he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art … Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”
Consequently, where there are two bodies of responsible professional opinion, and a medical practitioner acts in accordance with one of the bodies of professional opinion, he will not be negligent simply because there is another body of professional opinion that would have pursued a different course of action. However, if a practitioner acts in accordance with a body of professional opinion which is not capable of withstanding logical analysis, then the person is not acting in accordance with a body of responsible professional opinion, and may be liable in negligence. That is explained by Lord Browne-Wilkinson in the following two passages in Bolitho v City and Hackney Health Authority [1998] A.C. 232 at pages 241G and 243B respectively:
“… the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J. [1957] 1 W.L.R. 583 , 587 stated that the defendant had to have acted in accordance with the practice accepted as proper by a ' responsible body of medical men.' Later, at p. 588, he referred to 'a standard of practice recognised as proper by a competent reasonable body of opinion.' Again, in ….. Maynard’s case [1984] 1 W.L.R. 634, 639, Lord Scarman refers to a 'respectable' body of professional opinion. The use of these adjectives - responsible, reasonable and respectable - all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.
and
“These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.
“I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed.”
DISCUSSION
The 6 January 2001
Against that background, I consider first whether the doctor who examined Tracy in the paediatric ward on 6 January 2001 failed to exercise reasonable skill and care. In particular, I consider whether that doctor was negligent in failing to arrange for a brain scan, or failing to arrange for follow-up of Tracy on discharge from hospital with a view to a brain scan being arranged.
In that regard, it is important to bear in mind the actual facts as they were known, or ought to have been known, to the doctor who examined Tracy. These are set out above. The fact is that Tracy had attended hospital on one previous occasion for a headache. She had previously been seen by her GP. She had symptoms consistent with sinusitis and, in particular, had been X-rayed and the X-ray was consistent with sinusitis. Tracy had been prescribed with a course of antibiotics on 2 January 2001, to be taken over seven days, and had been taking them for three, or possibly four days and had then stopped taking the medication on the advice of her general practitioner as the medication appeared to be causing vomiting. At the time that Tracy transferred to the paediatric ward from the Accident and Emergency unit, she was not screaming, and the vomiting was settling. The presenting complaint recorded by the doctor records headaches on and off for the last three years, sinusitis on the X-ray, dizziness and vomiting. There is no record of Tracy experiencing severe pain. The notes would have been compiled from information provided by Mrs Davies. There is no criticism of the notes taken by the doctor (or by the staff in the Accident and Emergency unit) and no suggestion that the doctor (or the Accident and Emergency Unit staff) failed to record information provided. Both experts, Dr Conway and Dr Kovar, gave evidence that the note was adequate and reasonable and did not fall below the acceptable standard.
I consider the expert evidence. Both Dr Conway and Dr Kovar, the expert witness called by the Claimant and the first Defendant respectively, are respected consultant paediatricians. Both have extensive experience in that field and both have acted as consultants in paediatric wards and clinics and have direct experience of treating children in such settings.
Dr Kovar gave evidence that headaches are a common presentation on the part of children attending paediatric clinics or outpatients. By common, he indicated that in an average outpatient clinic seeing 40 patients, 2 or 3 of those patients would be suffering from headaches. In such cases, a doctor would consider possibilities such as migraine or sinusitis. The doctor would consider other possibilities such as meningitis, raised intra-cranial pressure, or a space occupying lesion or tumour. In terms of whether a brain scan would be mandated, he dealt with this in his report and the joint statement but also expanded upon this in his oral evidence. He explained that, as with all symptoms, different diagnoses would be considered. A brain scan would be arranged if there was sufficient uncertainty as to the cause of the symptoms and the possibility of a space occupying lesion needed to be ruled out or where there were findings suggestive of a lesion. In cases of uncertainty as to the cause, he would still have expected there to be some clinical features indicating the possibility of a lesion such as ataxia, morning headaches, or papilloedema before arranging a scan and brain scans would not be arranged routinely.
As for sinusitis, he explained that the sinuses are a set of air spaces under the cheek and above the palate, and a secondary set between the eyes and above the nose. The sinus may become infected either by a virus or bacteria, and this may cause inflammation and swelling of the mucous membrane. Depending on the amount of swelling, there may be fluid in the sinus. This may give rise to feelings of pressure, pain and nasal obstruction. Cases could involve a rapid onset, a period when the child was sick and then rapid recover. Cases could be chronic, lasting over a prolonged period of time and can be recurrent. Treatment was variable and could involve antibiotics and decongestant. If the treatment fails, or if the case is particularly complicated there may need to be surgical intervention to drain the sinuses.
In relation to the 6 January 2001, Dr Kovar considered that there was no requirement to arrange a scan. The medical examination was consistent with sinusitis. There was tenderness over the sinuses. The X-ray was consistent with sinusitis. There were nothing to indicate any brain tumour, or any other more sinister cause of the headaches. In relation to the fact that the treatment had not yet responded to antibiotics, his written report indicated that response in sinus infection is generally slow and not always complete and surgery (drainage of the sinuses) was some times needed. Dr Kovar gave evidence that he would not have arranged a brain scan in the circumstances of 6 January 2001. He considered that it was reasonable to diagnose sinusitis and to act on that diagnosis. It was reasonable to provide for a follow up by a general practitioner and for that practitioner to consider a referral to an ear, nose and throat consultant if matters did not resolve themselves.
I found Dr Kovar to be an impressive witness. He had extensive experience of paediatrics. He gave detailed, considered answers based on many years experience in paediatrics. His evidence was logical, clear and coherent. On one occasion, his report included a factual error (attributing comments included in the hospital notes for 6 January 2001 to the 28 January 2001) and his report is, on occasions, tersely expressed and benefitted from further explanation in oral evidence. Having considered his report, and heard his oral evidence, I am satisfied that his views on the treatment represented the treatment that would be provided by a responsible body of professional opinion. That practice, as explained by Dr Kovar, does have a logical basis.
Dr Conway gave evidence on behalf of the Claimant. He, too, is an experienced paediatrician. He considered that the treating doctor should have arranged for further paediatric follow up and a brain scan should been available for Tracy within about two weeks of a request for a scan being made.
It is important to understand Dr Conway’s evidence on when brain scans are mandated and why, in this case, he considered that paediatric follow-up with a view to a brain scan being arranged should have been made. In the joint statement, Dr Conway indicated that a history of severe headaches in children is not usually a sign of a sinister cause but the possibility should be considered. Other factors also needed to be taken into account, for example a history of vomiting, fever, headaches on waking, an indolent presentation over weeks to months, ear pain/discharge, lethargy, visual disturbance or abnormal neurological clinical signs. These coupled with a history of persistent severe headaches or headaches of increasing severity should suggest the possibilities of meningitis, raised intracranial pressure, tumours or other causes. In oral evidence, he gave evidence, by way of example, that if the history was of only four attacks of moderate pain, a scan would not be considered necessary. If there was only one episode of a severe headache, a doctor would not necessarily arrange a scan. In terms of the treatability of sinusitis, he considered that that would depend on a number of factors. If the sinusitis was bacterial in origin, he would expect the condition to respond to antibiotics within 2 or 3 days. There may be cases where the sinusitis was hard to treat and symptoms would be persistent.
The reason why Dr Conway considered that the doctor should, on the 6 January 2001, have made arrangements with a view to a brain scan being carried out is this. He considered that, on the facts, the “history of recurrent headaches increasing in frequency and severity lately, necessitated investigation and early follow up” including “neuro-logical scanning to investigate for sinus disease or intracranial mass”. Later in his report, he referred to Tracy presenting, screaming with pain and vomiting and as not having responded to antibiotic treatment. He considered that the diagnosis of sinusitis was “no longer tenable” although, in fairness, he indicated in oral evidence that by that phrase he meant no longer tenable as the only possible diagnosis and there was evidence to question the diagnosis. He did not mean that a diagnosis of sinusitis could no longer reasonably be made.
In my judgment, the opinion of Dr Conway as to what professional practice would have mandated on 6 January 2001 is based on an assessment which does not accurately reflect the facts as they existed and were known, or ought to have been known, by the doctor involved. Further, the phrases used by Dr Conway in his report suggest a view of the events leading up to and including the 6 January 2001 which is more severe than actually represents the position on 6 January 2001. There had been a history of recurrent headaches. This was the second occasion when Tracy had attended hospital. The evidence does not support the description in Dr Conway’s report of Tracy screaming with pain. The description of the headaches “increasing in frequency and severity lately” does not, in my judgment, reflect the factual situation as at 6 January 2001. Dr Conway may be saying no more than that this was the second presentation at the hospital, and he infers from that increasing frequency or the likelihood of more severe pain. If, however, the words are meant to indicate something graver in terms of the severity and frequency of the headaches, the description is not supported by the evidence. Further Dr Conway, himself, accepted that sinusitis does not always respond to antibiotics. In those circumstances, there is, in my judgment, no basis for saying that a diagnosis of sinusitis on the 6 January 2001 was not tenable, if by that is meant that the diagnosis was no longer possible. The symptoms described (frontal headaches with tenderness over the sinus) were consistent with sinusitis. The X-rays were consistent with sinusitis. The antibiotics (prescribed on 2 January 2001) had not worked by 6 January 2001 but that does not preclude the diagnosis of sinusitis and the X rays were consistent with sinusitis.
In my judgment, given the facts as I have found them to be, this is a case where, on Dr Conway’s own evidence, it was not to be expected that a brain-scan would be arranged as a result of the examination on 6 January 2001. In reality, this was a second episode of pain, not described or noted as severe pain, and Dr Conway’s evidence is that a doctor would not have arranged a scan in that set of factual circumstances. Even if the events of 6 January 2001 were characterised as one episode of severe pain, Dr Conway accepted that a doctor would not necessarily have arranged a scan in those circumstances.
In those circumstances, the action taken by the doctor on 6 January 2001, did accord with the practice adopted by a responsible body of professional opinion as described by Dr Kovar. There is a logical basis for that treatment. Dr Conway’s opinion is that further investigations, including a brain-scan, were mandated as at 6 January 2001. The fact that there is a second body of professional opinion indicating a different course of action would not justify a finding of negligence in relation to a doctor that acted in accordance with the practice described by Dr Kovar and which is itself a practice done in accordance with a responsible body of professional opinion which is logically supportable. In any event, I do not consider that Dr Conway’s opinion as to what further investigations should have been arranged on 6 January 2001 is based on an accurate view of the facts as on that date. Indeed, given the facts as they were, Dr Conway’s opinion is equally consistent with there being no necessity to arrange for further investigations involving a brain scan.
28 January 2001
Tracy attended the hospital again on 18 January 2001. As I have found above, Dr Rao took a history from Tracy’s mother about Tracy’s symptoms. Dr Rao considered the possibility of an underlying neurological condition. He assessed whether there were any symptoms such as morning headaches. He carried out investigations on the ear nose and throat and no abnormalities were detected. He investigated the fundus and found no signs of papilloedema. He considered that the appropriate diagnosis was migraine or sinusitis. He arranged for a follow-up with a general practitioner and noted that a referral to an ear nose and throat consultant may be necessary.
Both Dr Kovar and Dr Conway gave evidence that the examination carried out by Dr Rao was adequate and reasonable. Dr Conway described it at one stage during his oral evidence as a good neurological examination. Both accepted that the notes of the examination were reasonable and adequate.
Dr Kovar gave evidence that Dr Rao’s approach was consistent with professional opinion. This was a case where a child had presented with recurring headaches and where there had been a diagnosis of sinusitis and migraine. Dr Rao, however, properly considered other possibilities and he had not simply assumed that those diagnoses were accurate. A doctor in such circumstances would be considering a number of possibilities including meningitis and intracranial pressure. The neurological examinations carried out by Dr Rao were intended to see if there were any clinical indications that that was a possibility which needed to be ruled out by a scan. There was nothing such as morning headaches (which might indicate intracranial pressure). There were no papilloedema. The presence of such papilloedema would have called for an immediate scan although the absence of such pailloedema would not, of itself, rule out the possibility of intracranial pressure. However, Dr Kovar gave evidence that the note demonstrates a clinician who was properly and logically working through possible different diagnosis to explain the symptoms presented. There was nothing to indicate that a scan needed to be done to rule out the possibility of a lesion. The doctor was entitled, on the material before him, to reach the conclusion that the threshold at which it was necessary to have a scan to rule out such a possibility was not crossed. In the circumstances, the diagnosis of sinusitis or migraine were reasonable, follow up by a general practitioner, with a possible referral to an ear, nose and throat consultant if the symptoms persisted, was a reasonable course of action to take, and accorded with Dr Kovar’s experience. Dr Kovar would not have arranged for a scan in these circumstances.
Dr Conway gave evidence which was that further investigations, including arrangements with a view to a brain scan, were mandated on 28 January 2001 and that the failure to make these arrangements meant that the treatment received fell below the standard of care which Tracy could reasonably expect from a competent practitioner. Again, that opinion is not, in my judgment, accurately based on the facts as they were known, or ought to have been known, to the treating clinician on 28 January 2001. The history noted was that of headaches on and off for about four years, nearly always associated with vomiting, and mainly frontal in area. The triage assessment recorded “moderate pain”. There is no record of Tracy screaming with pain at the hospital and saying things at the hospital such as “cut off my head” or “take my head off”. That had happened earlier in the day. Similarly, the reference to “increasing frequency and severity of headaches lately” needs to be carefully analysed. The history given to the doctors was of recurrent headaches over a number of years. Dr Conway may be saying no more than that this was the third presentation at hospital, and he infers from that increasing frequency or the likelihood of more severe pain. If the words are meant to indicate something graver in terms of the severity and frequency of the headaches, the description is not supported by the evidence. It is correct that the condition had not responded to a third type of antibiotic. That would lead a doctor to question the diagnosis and consider other possibilities, which Dr Rao did. It would not, of itself, be a reason for concluding that a diagnosis of sinusitis was no longer a possible diagnosis. In my judgment, given the facts as I have found them to be, the position on 28 January 2001 is again a case where, on Dr Conway’s own evidence, it was not to be expected that a brain-scan would be arranged as a result of the examination on 6 January 2001. In reality, this was a third episode of pain, not described or noted as severe pain, and Dr Conway’s evidence is that a doctor would not have arranged a scan in that set of factual circumstances. Even if the events of 28 January 2001 were characterised as an episode of severe pain, this would, on the facts, be the first such episode of which the hospital would be aware. The earlier episodes could not, on the facts, be characterised as severe episodes. If it were one episode of severe pain, Dr Conway accepted that a doctor would not necessarily have arranged a scan in those circumstances.
In those circumstances, the action taken by Doctor Rao on 28 January 2001, did accord with the practices adopted by a responsible body of professional opinion as described by Dr Kovar. There is a logical basis for that treatment. A proper history was taken. A reasonable neurological examination was carried out. Dr Rao worked through possible conditions, including considerations of whether there were any signs that might indicate a possibility of more serious conditions than sinusitis or migraine. He reached a diagnosis of sinusitis or migraine with follow up by the general practitioner and, possibly, a referral subsequently to an ear, nose and throat consultant if the condition did not settle. I accept Dr Kovar’s evidence that that was a reasonable diagnosis, and a reasonable course of action in the circumstances that existed on 28 January 2001, and that proceeding in that way was in accordance with a responsible body of professional opinion. I accept that that approach is logical.
Dr Conway’s opinion is that further investigations, including a brain-scan, were mandated on 28 January 2001 (as he considers they were at 6 January 2001). The fact that that there is a second body of professional opinion, indicating that a different course of action might be pursued, would not justify a finding of negligence in relation to a doctor that acted in accordance with the practice described by Dr Kovar and which is itself a practice done in accordance with a responsible body of professional opinion which is logically supportable. In any event, I do not consider that Dr Conway’s opinion as to what further investigations should have been arranged on 28 January 2001 is based on an accurate view of the facts as that date. Indeed, given the facts as they were, Dr Conway’s opinion is equally consistent with there being no necessity to arrange for further investigations involving a brain scan.
For completeness, I note that some reliance was placed on the fact that the doctors who examined Tracy at the Leighton Hospital in September 2001 did make arrangements which included a brain scan. The inference that Mr Poole Q.C., on behalf of the Claimant, sought to draw from that is that responsible medical opinion did require the possibility of a tumour to be excluded and that a similar approach was mandated in January 2001. The circumstances in late September 2001 were different. In particular, the possibility of sinusitis as an explanation for the symptoms had, at that stage, been excluded by those treating Tracy. That was no longer a possible diagnosis. In those circumstances, those treating Tracy considered, initially, that a non-urgent CT scan should be arranged to rule out the possibility of intracranial pressure. That was not the position in January 2001.
CONCLUSION
There is no doubt that Tracy had a tumour on her brain in January 2001. There is no doubt that, if Tracy had had either a CT scan or an MRI scan early in 2001, that scan would have revealed the existence of the tumour. The tumour would have been removed and the First Defendant accepts that Tracy would not have suffered the loss of vision caused by the intra-cranial pressure. It is hard to imagine what Tracy must feel knowing that the tumour was there and could have been removed and knowing that the suffering could have been avoided. The dignity and courage that Tracy has shown in dealing with this tragedy is truly remarkable. The quiet dignity shown by both Tracy and her mother during the whole of this hearing, which must have brought back many painful memories, has also been remarkable.
Ultimately, however, this hearing has been about what the doctors did on 6 January and 28 January 2001. The question is whether either or both of those doctors acted in breach of their duty, and in particular, whether they acted in breach of their duty by failing to arrange for further investigations including a brain scan (or arranged for follow-up with a view to such a scan being arranged).
In my judgment, there was no breach of duty in this case. The doctors on each occasion did act in accordance with a responsible body of professional opinion. They were not negligent.
ORDER
Sitting at Liverpool District Registry on 29 October 2014
Upon hearing Mr Poole QC, Counsel for the Claimant, and Mr Feeny for the Defendant
And Judgment having been handed down after trial
It is ordered that:-
The Claimant’s claim against the First Defendant be dismissed.
The Claimant to pay the First Defendant’s costs to be assessed if not agreed, the basis of the assessment and the enforcement of costs reserved to the conclusion of the action against the Second Defendant.
Permission to appeal refused