Henderson v The Hillingdon Hospital NHS Foundation Trust

The claimant, Debra Henderson brings this claim as administratrix of the estate of her father, Dennis Robert Bolton, and on behalf of his dependents including his wife, Sheila Bolton. Mrs Bolton is named in the claim form as second claimant although not in the particulars of claim. No point is taken about this. The claim is therefore brought on behalf of Mr Bolton's estate and dependents, including his wife, under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.

Mr Bolton sadly died on 21 November 2013 aged 77. The death certificate lists the causes of death as an anoxic brain injury, respiratory and cardiac arrest and severe acute epiglottitis.

It is the claimant's case that but for the negligence of the defendant, Hillingdon Hospital NHS Foundation Trust, Mr Bolton would not have died.

Quantum has been agreed subject to liability in the global sum of £75,000. That agreement necessarily includes an agreement about the deceased's life expectancy and so it has not been necessary for me consider the life expectancy evidence consisting of two experts and a considerable amount of literature.

Again, subject to liability, the sum of £75,000, if awarded, will have to be apportioned between Mr Bolton’s dependants and I have indicated that I will consider submissions in respect of apportionment and deal with that issue, if appropriate, after handing down judgment on the liability issue.

The evidence is that up until 16 November 2013 the deceased was in good health and spirits. On 16th November he was complaining that he was not feeling well. He felt like he was coming down with the flu, had a sore throat and felt feverish. He went to bed in the early afternoon. On 17th November he continued to feel unwell and was in bed and his wife phoned Mrs Henderson at about 5 o'clock to say that Mr Bolton was struggling to breathe. Mrs Henderson describes going to her parents’ house where her father was sitting up, gasping for air and his voice was very peculiar. She said he “sounded like Mr Bean". An ambulance was called via the NHS 111 line. Mrs Henderson expresses the opinion that her father must have been feeling very unwell because he did not object to the ambulance being called, which was not like him.

The paramedics attended and identified that the deceased was in both respiratory failure and respiratory distress. He was given an adult dose of nebulised Salbutamol, put on oxygen, given 1g of paracetamol and taken to the defendant’s hospital at 18.37. At hospital he was triaged by a nurse. A chest X-ray was ordered, and bloods were taken. He was seen by the defendant’s doctor, Dr Rosales. He was seen by Dr Rosales again later and was discharged home with oral antibiotics around 10.00pm.

His wife woke at about 4am on 18^th November to find him collapsed and not breathing. Another ambulance was called at around 4.27. Mr Bolton was in cardiac arrest. This was in consequence of airway obstruction due to the epiglottitis. The respiratory and cardiac arrest resulted in an anoxic brain injury and life support was withdrawn with the deceased's family’s consent on 21^st November.

It is the claimant's case, supported by her expert, Mr Morris, that the deceased should not have been discharged from hospital. Given the history of respiratory failure and respiratory distress, it is alleged that he should have been admitted and monitored further. The basis of the claim is that there was a failure properly to appreciate that the deceased's presentation warranted an inpatient admission and that it was not safe to discharge him at 10.00pm.

The claimant argues that I should find that: there was a clear indication of respiratory failure; there was no known history of respiratory disease; any improvement in oxygen saturations were insufficient to confirm that the deceased could safely be discharged; and the working diagnosis of Dr Rosales was unsafe.

The claimant further invites me to conclude that there are only two explanations for the lack of reference to previous respiratory failure and respiratory distress in Dr Rosales’s notes and that those are either, firstly, that Dr Rosales did look at the ambulance records, known as the Patient Report Form (“PRF”) but failed to recognise the severity of Mr Bolton's presenting condition or, secondly, that he did not look at the PRF and therefore, failed to avail himself of all clinically relevant information before making decisions. For whichever reason he did not appreciate the severity of the presenting complaint. Thus, the claimant says I need to consider the significance of Mr Bolton's respiratory failure and whether or not Dr Rosales did or should have appreciated it; whether there was sufficient appreciation of that significance in the context of the presentation with respiratory failure, respiratory distress and wheeze and where Mr Bolton had no known history of lung of long-standing respiratory disease; whether or not the increase in oxygen saturations following the administration of oxygen and the Salbutamol nebuliser was sufficient to confirm that Mr Bolton could be safely discharged back into the community; the reasonableness of Dr Rosales’s diagnosis/diagnoses and; whether they sufficiently accounted for Mr Bolton's condition before and during his attendance at hospital such that it was safe to discharge him home rather than admitting as an inpatient.

The defendant denies breach of duty contending that the deceased recovered significantly following the administration of Salbutamol (and oxygen) so that his oxygen saturation levels were 95% on air and his breathing rate, heart rate and temperature were normal, and it was appropriate to discharge him home.

In essence the defendant's case is that I should find that, pursuant to the evidence of its expert, Dr Campbell-Hewson, a responsible body of Accident and Emergency medical professionals would have discharged Mr Bolton from hospital when Dr Rosales did.

The defendant relies on the fact that Mr Bolton's condition improved and stabilised without active treatment for four hours; his symptoms and the results of investigations were consistent with a lower respiratory tract infection accompanied by a transient self-limiting condition such as mucous plugging of bronchi, a coughing episode or some degree of laryngospasm; there was no history of reversible airways disease and Mr Bolton did not in fact suffer from chronic obstructive pulmonary disease (“COPD”) or asthma and; normalisation of the observations that had been abnormal earlier on was legitimately reassuring.

I accept and remind myself that it is important when reaching decisions about these issues to judge them prospectively and not retrospectively. The court is not concerned in assessing the reasonableness of Dr Rosales’s actions with the benefit of hindsight.

In the circumstances the issue for me to decide therefore is whether or not the defendant was in breach of duty in its care and treatment of the deceased, specifically whether it was a breach of duty not to admit him on 17th November and was a breach of duty to discharge him home at 10.00pm.

Causation is conceded by the defendant in the sense that it is accepted that had he been admitted as an inpatient on 17th November he would have been monitored, his subsequent deterioration would have been identified and prevented/treated so that he would not have suffered the respiratory and cardiac arrest or brain injury and would not have died.

There is agreement about the law which applies here. The defendant’s doctor, Dr Rosales, was under a duty to act in accordance with a responsible body of medical opinion (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582). The test in Bolam 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…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 practice, merely because there is a body of opinion who would take a contrary view”.

The court must assess whether any purported body of expert medical opinion in fact represents "a responsible body of opinion" and will consider whether it stands up to logical analysis (see Bolitho v City and Hackney Health Authority [1998] AC 232). In C v North Cumbria University Hospitals NHS Trust [2014] EWCH 61 (QB), it was said:

“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 benefit and have reached a defensible conclusion on the matter.”

It was further said in Bolitho:

“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… 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 the body of opinion is not reasonable or responsible".

The applicable principles have recently been helpfully and comprehensively summarised in the case of Mulholland v Medway NHS Foundation Trust [2015] EWHC 268 (QB). Like this case, Mulholland, concerned the standard of care owed by a doctor operating in a busy Emergency Department. As Green J set out in Mulholland the court in making this assessment “must not delegate the task of deciding the issue to the expert. It is ultimately an issue that the Court, taking account of that expert evidence, must decide for itself".

The claimant's lay evidence was from Mrs Henderson whose statement is at p58. She sets out that in the days (14th and 15th November) before the attendance at the Emergency Department, the deceased was well and enjoying normal activities including cutting his lawn and attending his great-grandson's first birthday. She describes how he felt he was coming down with something, had a sore throat and felt feverish on 16th November. On 17th November having visited earlier in the day she went over again in response to a telephone call from her mother and describes her father as struggling to breathe and wheezing. His voice was very peculiar, sounding “like Mr Bean”. The paramedics arrived, put the deceased on a nebuliser and said he needed to go to hospital because they were unhappy about his breathing. The nebuliser helped ease his breathing, but his voice still sounded very peculiar. She and her daughter followed the ambulance in her car, arriving at the hospital at about 6:30pm.

She described the Emergency Department as being like “a war zone”. It was really busy with the staff running around “like headless chickens". She considered it to be exceptionally busy by comparison to the several other visits she had made there with her mother.

It is Mrs Henderson's clear recollection that she told the doctor at least four times and her daughter also commented that the deceased's voice was not right and that he did not usually sound like that. She describes it as sounding as though his throat was partially blocked and hence like Mr Bean. She says that the doctor was dismissive and did not pay attention to these concerns. She says that her father was complaining of a sore throat. She had the impression that the entire consultation/ examination was extremely rushed.

In her statement she says that the doctor sent her father for an x-ray and thereafter he was in the resuscitation room. It was her recollection that he was given another nebuliser. She remembers the doctor carrying out a basic examination and looking in her father's mouth using a wooden stick. Following the chest x-ray the family were informed that the deceased had a chest infection and he was given some oral antibiotics and told go home. In her statement Mrs Henderson says that they were not advised to come back if her father got worse or deteriorated. They left the hospital at about 10.00pm.

She sets out that her mother telephoned her screaming at about 4.00am because her father was not breathing. Mrs Henderson went straight over and attempted CPR on him on the bed. The paramedics arrived and indicated that Mr Bolton had suffered a cardiac arrest. He was resuscitated by them, but even at that stage it was clear that Mr Bolton had likely suffered a severe brain injury because of the lack of oxygen.

Mrs Henderson sets out that she had done some research on the Internet after her father was admitted to hospital on 18^th November and discovered an infection called epiglottitis, but one of the doctors at the hospital told her when she asked, that epiglottitis was “absolutely not the problem”.

It is now apparent that he had in fact developed epiglottitis which blocked his airway leading to the respiratory and then cardiac arrest.

The rest of Mrs Henderson’s statement sets out what an active and loved man Mr Bolton was. He had been hard-working his whole life and was clearly very much involved and engaged with his family.

When she was cross-examined, Mrs Henderson confirmed that when she called the ambulance operator on 111, she described her father as suffering from a sore throat, flu-like symptoms, that he was diabetic, short of breath, wheezing and fighting for his breath. She was not sure if she mentioned the change in his voice.

She recalls the paramedics giving him the nebulised Salbutamol and putting him on oxygen. She did not recall when the paracetamol was given. She was not aware of the increase in the flow of oxygen.

When she got to the hospital her father was already on a bed. She confirmed her description that it was like a war zone and was the worst she ever seen it.

The triage nurse seemed rushed, but she said that the assessment did last longer than a few minutes. She agreed that her father described the pain as “not too bad” and declined further analgesia. She did not report that her father's voice was hoarse, but that it sounded peculiar and was not his normal voice. She recalls that the sequence of events was being in triage, sent for x-ray then in triage and then in the resuscitation area, but this was all within the Emergency Department.

She thinks that obtaining the details in Dr Rosales’s notes at p195 took about five minutes and the questions were asked before Mr Bolton went for his chest x-ray. Mrs Henderson does not recall Dr Rosales observing her father drinking any liquid or checking his gait by watching him walk. She does not recall her father walking at all. She felt that the total examination lasted 10 to 15 minutes. She believes that the note referring to a sister with similar symptoms must be an error because there is no relevant sister in the family.

She confirmed that she mentioned the change in voice to Dr Rosales on more than one occasion, as did her daughter. She confirmed that she said it was not her father's normal voice and it sounded like Mr Bean. She confirmed that his voice remained peculiar between the ambulance coming and his discharge from the Emergency Department on 17th November.

She was not sure what time the chest x-ray was. She was not sure how long before the chest x-ray her father had been off the oxygen. She believes that her father saw Dr Rosales twice.

She said that there was no warning to the family to stay alert for an increase in Mr Bolton’s symptoms, only that Dr Rosales said that if Mr Bolton got worse then they should take him to his general practitioner. This is not in her statement. She said there was no detailed warning.

She recounts that the following day she heard the staff talking about the “chaos” and the “craziness” of the previous evening. This is not in her statement.

Mrs Henderson says that she remembers events well because she feels guilty and angry that she did not insist that father stay in hospital and he was not kept in hospital.

The defendant called Dr Rosales who confirmed his statement at p96. In 2013 he was working “on the bank” as a senior house officer but was familiar with the working practices at Hillingdon having worked there before. He has worked at the Lister Hospital and now works at the Homerton Hospital where he is a specialist registrar in emergency medicine. He is a year five specialist hoping to qualify as a consultant, 20 months from now.

He has no independent recollection of the encounter with Mr Bolton and is entirely reliant on his notes. Before Dr Rosales saw him, Mr Bolton had been triaged, probably by a nurse. He confirmed that he would have had access to the triage assessment forms and to the PRF. Dr Rosales acknowledges that there is no timing on his notes. By reference to the screenshot at p167 all he can say is that the computer identifies that it was at 20.14 that he selected Mr Bolton from the screen, clicking on the patient on the system and it would be after that time that he saw Mr Bolton. He might have read the notes or done something else before actually going to see Mr Bolton. He does not remember.

He confirms that when he saw Mr Bolton, he would have taken a history. His note at page 195 in the bundle reads: –

"Patient seventy-seven-year-old male brought in by ambulance after family (wife and daughter) found him out of breath this afternoon whilst watching TV. Patient refers he had been having sore throat since two days ago and not been able to eat properly for feeling uncomfortable. Denies coughing, no particular activity while at home today. Patient just felt he couldn't breathe. No fever. No lymph nodes noticed. Other sister having sore throat too”.

He documented Mr Bolton’s past medical history of hypertension, insulin-controlled diabetes and hypercholesterolaemia. The medication on admission is noted as insulin, Losartan and Simvastatin.

Dr Rosales has ticked breathlessness but not wheeze or cough in the boxes on the form and written that the patient was “feeling well now, alert, awake with no respiratory distress”. His oxygen saturation level on air is noted at 95%. There is a note of "no added sounds” from the lungs. The throat examination resulted in an entry which reads "no hypertrophic tonsils, no redness, no obvious swelling". In his statement Dr Rosales sets out that he recorded that Mr Bolton's gait, speech and swallowing were normal and that he would identify the latter by observing him drinking fluid.

He sets out at paragraph 32 that his differential diagnosis was of pharyngitis which is inflammation of the pharynx. He said that he arranged for Mr Bolton to have a chest x-ray and have bloods taken. The bloods had been ordered at triage. It seems unlikely from the timing that it was in fact Dr Rosales who ordered the chest x-ray either. In reliance on the blood test and the x-ray image, Dr Rosales’s final suspected diagnosis was a lower respiratory tract infection and so he prescribed antibiotics and discharged Mr Bolton home.

At paragraph 41 Dr Rosales sets out that on the basis of his assessment and observations there was no indication that Mr Bolton was in respiratory distress and he did not meet the criteria for respiratory failure.

In his statement he says, "If a patient has been administered oxygen which was keeping their O2 Sats within the normal range, as soon as the oxygen is stopped patient O2 Sats will immediately drop". This seems to be in support of the contention that the reading of 95% on air was reliable.

Dr Rosales confirmed in his oral evidence that, as is not in dispute, it was his role to decide if the patient should be admitted or if it would be safe for that person to go home. He agreed that he would be failing if he did not look at the PRF. He said that his usual practice would be to look at the records including the PRF. He is unable to explain why the notes at p195 are not timed. It would be his usual practice to time them. He agrees looking at the timings it was probably not him who ordered the x-ray and that he must have seen Mr Bolton after around 8.15. He also agrees that he saw him a second time but there is no contemporaneous note of that encounter.

He agreed that the observations recorded on pages 186 – 187 between 17.56 and 18.36 show that Mr Bolton was in respiratory distress with a high respiratory rate, oxygen saturation levels representing an indication of hypoxia showing respiratory failure. He agreed that this demonstrated a respiratory illness and that his note at p195 does not mention respiratory distress or respiratory failure although it does say that the patient was complaining of breathlessness. There is no mention in his note of the fact that Mr Bolton had received Salbutamol or oxygen. He accepted that he had not ticked the box to indicate wheeze although it was in the PRF. Those records also refer to rhonchi. He cannot explain why this is not referred to in his note at p196. He agreed that wheeze is an important clinical sign indicating a narrowing airway and he cannot say why he has not referred to it. The ambulance reference to "COPD -like symptoms” is not on his list and he agrees that that would be concerning as an initial presentation.

He felt that there was a significant improvement when he saw Mr Bolton. He agreed that the significant improvement was quite an unusual presentation and could only be as a consequence of the effect of the nebuliser. Again, there was no reference in his note to Mr Bolton having been pale when triaged. Dr Rosales was unable to remember that he was told about the change in the deceased's voice. He is unable to explain the reference to the "sister". He did not remember how he assessed Mr Bolton's gait.

He agreed that it is not documented and therefore not known when Mr Bolton was taken off oxygen, but he said that there would be usually continuous monitoring in the resuscitation room.

Dr Rosales does not agree that the effect of Salbutamol would last as much as 3 to 5 hours He said that in his statement where it says a patient’s O2 Sats will "immediately drop" when oxygen is stopped, what he meant to say was that the saturation levels would come down gradually and could take up to 5 minutes.

Dr Rosales agreed that it would be a concern that Mr Bolton could go back into respiratory failure and he would want to understand the reason for the dramatic improvement although none of that is in his notes. He said that he could not say that he “did not take these points into consideration”. He has no specific recall. He reached the diagnosis of pharyngo-tonsillitis or inflammation of the pharynx and tonsils because of a sore throat, hoarseness and breathlessness. Despite the extent of the swelling the following day (see p211 onwards detailing upper airways obstruction and very swollen tonsils) Dr Rosales did not agree that there was likely to have been some swelling which he had not identified on examination. He considered that swelling would be consistent with an upper airway problem whilst wheeze is usually associated with a lower airway problem.

He said that he was reassured by Mr Bolton’s presentation after he assessed him. He agreed that there could be a number of underlying causes for the respiratory distress, respiratory failure and wheeze. Mr Bolton had no respiratory history such as asthma or COPD and he agreed that he would want to consider reversible airways disease because of the risk of further significant different deterioration. He agreed nonetheless reversible airways disease was not part of his differential diagnosis which would be his normal practice (to include differential diagnoses). He says that the fact that there is a number “2” suggests that there was something else he was considering but he cannot say what it was.

Dr Rosales agrees that pharyngitis does not explain respiratory failure or respiratory distress. It explains the sore throat and difficulty swallowing.

He agreed that he did not initiate any treatment, nor did he document a plan/any active management.

He said that in circumstances where the patient had improved with minimal treatment for bronchospasm which was caused by the lower respiratory tract infection he did not meet the criteria to keep him in hospital. He agreed that Mr Bolton could not be nebulised away from hospital. Dr Rosales considers that his decision was not unsafe although he was unable to say it was not hasty.

He said that a subsequent deterioration would signify the need to come back to the emergency department.

I heard from the claimant's expert, Dr Morris, who is a consultant in emergency medicine at the Northern General Hospital in Sheffield. His report is at p66. I heard from the defendant’s expert Dr Campbell-Hewson who is also a consultant in emergency medicine. His report is at p110 and their joint statement is in the bundle at p168.

The joint statement provides a helpful summary of agreed matters. Firstly, that Mr Bolton had no past medical history of respiratory illness. Secondly, that Dr Rosales would have had available to him, the PRF from the ambulance service, the triage details and clinical observations measured on his arrival at the Emergency Department. Thirdly, that Mr Bolton was in respiratory distress and respiratory failure when assessed at home by the paramedics and that that information is in the PRF. They also agree that Mr Bolton was no longer in respiratory distress at the time of his initial assessment in the Emergency Department and it is hard to assess whether or not he was in respiratory failure because although his oxygen saturation level was 94%, he was on oxygen.

The experts agree that respiratory distress and respiratory failure indicate that a patient has a significant respiratory illness which may be caused by multiple different pathologies.

Both experts agree that a level of 89% on air would be compatible with respiratory failure and that 95% on air would be normal for a 77-year-old man, but it is difficult to agree on the significance of such a reading without knowing how long it was taken after the removal of the supplementary oxygen.

Both experts agree that placing Mr Bolton in the resuscitation room indicates that there was concern about his clinical well-being. They agree that an adequate initial assessment by Dr Rosales would have taken 30 to 60 minutes. It is likely that Mr Bolton was having continuous monitoring of his cardiac rhythm and oxygen saturation levels.

Both experts agree that an examination by Dr Rosales in the emergency department would not have been capable of identifying epiglottitis.

In his report, Dr Morris points out (B1.3) that Mr Bolton developed acute respiratory distress at home and that being nursed in the resuscitation room indicated that staff considered he was very unwell. His condition had improved but he still had a raised heart rate and his oxygen saturation was 94%, but on oxygen.

Dr Morris agrees that the observations had improved before discharge and had improved at the time of the triage but still at 7.30 the respiratory rate was, in his view, elevated and the pulse of 112 was high. Further, the oxygen saturation was being measured with the patient on oxygen.

At paragraph 3.4 of his report Dr Campbell-Hewson says that the overall presentation as recorded in the combined notes is comparatively non-specific and would be in keeping with a respiratory tract infection with a degree of throat infection and bronchitis/lower airway infection. He agrees that an oxygen saturation of 89% would be abnormal in a patient with no significant previous lung disease and there were abnormal observations in respect of respiratory rate, tachycardia and blood pressure. There was a significant improvement in those observations and the subsequent findings by Dr Rosales "would have offered significant reassurance".

When he gave his evidence Dr Campbell-Hewson agreed, of course, that taking a medical history involves not only known conditions but the immediate history, specifically why the patient is in hospital and that would involve considering the PRF, the initial triage notes and the results of any investigations. Whilst he agreed that Mr Bolton was in respiratory failure and respiratory distress at home he said that the respiratory distress was not identified at triage. He agreed that the symptoms were indicative of significant respiratory illness and one would have to attempt to identify the underlying cause. He said that wheeze is a sign which is very common and typically seen in lower respiratory tract infection. He agreed that pharyngitis would not explain the wheeze.

Dr Morris confirmed that Dr Rosales’s examination was reasonable but, his view that it was reasonable depends on Dr Rosales having read the PRF and the triage notes.

Since Dr Rosales says that he was aware of and had in mind and had read the PRF the fact that he does not refer to it in his own notes is not unreasonable in Dr Campbell-Hewson’s view. How much doctors write in the notes is variable.

Both experts agree that the assessment performed which included a history, examination and pertinent investigations was appropriate "if the court accepts that Dr Rosales had read the PRF and the triage data".

Dr Morris considers it is unlikely that Dr Rosales’s notes of his findings on examining Mr Bolton's throat are accurate given the extent of the swelling of the tonsils and uvula in the early hours of 18th November.

Dr Campbell-Hewson does not consider that it would be inconsistent for the throat examination to be unremarkable at 8:15 in the evening, but for there to be redness and swelling eight hours later because redness and swelling due to infection can develop over a matter of a few hours. On the balance of probability Dr Morris considers that there would have been signs in Mr Bolton's throat when examined by Dr Rosales, but they would have been less marked.

Despite the computer-generated list of indicators of results being outside the parameters Dr Morris agreed that it was not unreasonable for Dr Rosales is to identify "no abnormalities" in the venous blood gas results.

In light of the information obtained and documented it is Dr Morris’s view that the working diagnosis should have been reversible airways disease (COPD/asthma) precipitated by an infection. He is clear that reversible airways disease is established by the respiratory failure and respiratory distress alleviated by Salbutamol.

He reiterated that he says that Dr Rosales should have diagnosed reversible airways disease, the two common causes of which are COPD and asthma. He agrees that Mr Bolton had a lower respiratory tract infection. As a basic principle he considers that in circumstances where respiratory failure was new to this patient, the findings of wheeze and respiratory failure at home getting better on a nebuliser should cause a junior doctor to diagnose COPD or asthma. This would be the best fit having regard to all the features, especially the worrying ones. The worrying features were the respiratory failure and that needed to be explained.

Dr Morris agrees that it is not common to present with asthma for the first time at the age of 77. Late-onset asthma is not common. He says, however, that it is the fact of it being reversible airways disease that is important not necessarily the label. Mr Bolton responded dramatically well to one adult dose of Salbutamol following life-threatening respiratory failure and this proves it was reversible airways disease.

Dr Morris is giving this opinion even though on a balance of probabilities the appropriate diagnosis may have been epiglottitis and it is not suggested that Dr Rosales should have made such diagnosis.

He says that in his opinion Mr Bolton presented with respiratory failure not a shortness of breath and a patient should always be observed overnight if they present with new respiratory failure and should be treated as for asthma or COPD, that is, with nebulised Salbutamol, oxygen, steroids and antibiotics.

Dr Morris agrees that the definition of respiratory failure is a failure to produce adequate oxygen saturation levels. The terminology “episode” or “disease” is not in his view important. The important part that this was reversible airways. That is what should be noted by a doctor who was doing his job properly.

Dr Morris remains of the view that even though not the true diagnosis Mr Bolton should have been treated as if he had reversible airways disease (whether labelled as COPD asthma or not).

Dr Campbell-Hewson sets out at p187 that it is not uncommon for patients to have a degree of respiratory distress because of anxiety which then resolves. He says the episode of respiratory distress associated with wheeze could have been precipitated by a self-limiting cause such a mucous plug, coughing episode or some degree of laryngospasm.

Dr Campbell-Hewson considers that it would not have been appropriate to diagnose asthma or COPD. He would not have diagnosed COPD in the absence of any history nor does he think that late-onset asthma at the age of 77 would be an appropriate diagnosis. It is very, very unlikely.

Dr Morris disagrees with Dr Campbell-Hewson's suggested causes of the respiratory distress in circumstances where Mr Bolton denied a cough, where the ambulance service said that the cough he had at the time was non-productive so there was no phlegm and therefore no mucous plug and because he is unaware that “laryngospasm” is a cause of respiratory failure and is certainly not referred to as such in any textbook.

Dr Morris says that since the working diagnosis of pharyngitis could not explain the respiratory distress or respiratory failure, the initial diagnosis of pharyngitis was illogical and substandard.

Since he considers that pharyngitis would be a completely illogical explanation for the respiratory failure, Dr Morris’s view is that either Dr Rosales was not aware of the respiratory failure or it was a substandard diagnosis.

Dr Morris makes the comment that "the diagnosis of pharyngitis would strongly suggest that Dr Rosales had not read the PRF indicating that Mr Bolton had wheezy shortness of breath, respiratory failure and respiratory distress at home”.

Dr Campbell-Hewson agrees that pharyngitis alone would not have accounted for Mr Bolton's initial respiratory distress or decreased oxygen saturation levels, but he considers that this was "a preliminary diagnosis". The discharge diagnosis was lower respiratory tract infection.

He went on to say that since pharyngitis does not explain the most important parts of the presentation namely respiratory failure and respiratory distress, he considered that pharyngitis was "an early comment" and amounts to a preliminary statement.

In short, Dr Campbell-Hewson defends the diagnosis of pharyngitis as a preliminary or working diagnosis and says it was a reasonable initial consideration in the context of a complaint of sore throat. Dr Morris considers that it is illogical as a diagnosis because a sore throat could never account for the wheezy shortness of breath, respiratory failure and distress unless it was associated with life-threatening narrowing of the upper airway when it would not be described as pharyngitis but upper airway obstruction.

The experts thus disagree about the reasonableness of the diagnosis of pharyngitis.

Dr Campbell-Hewson considers that the initial working diagnosis of pharyngitis was changed to lower respiratory tract infection after completing assessment and review of the investigations, and that the lower respiratory tract infection was an appropriate diagnosis to account for Mr Bolton's clinical state.

Dr Campbell-Hewson considers that the chest x-ray was consistent with the diagnosis of lower respiratory tract infection. Dr Morris considers that the findings could have been long-standing and were non-specific and there were no clear signs of lower respiratory tract infection and nothing to explain why Mr Bolton was in respiratory failure on that day. The blood test results do show that Mr Bolton had an infection.

Although he is not familiar with the terms noted on it, Dr Morris considers that the x-ray was probably taken at 20.03. At the time Mr Bolton was connected to a cardiac monitor. There is nothing on the x-ray to indicate that he was being provided with oxygen at the time. The x-ray shows that the left costophrenic angle is blunted indicating fluid/fibrous tissue and whilst this is not lower lobe pneumonia, taken together with the other results it does show an infective process. Nonetheless, Dr Morris’s view is that it would not be reasonable to diagnose only a lower respiratory tract infection even though Mr Bolton had such infection. Dr Morris’s view was that one would have to say that he had a lower respiratory tract infection which had provoked wheezy shortness of breath leading to bronchospasm. In that scenario one would still have to admit somebody who had had respiratory failure 3, 4 or 5 hours before the examination if there was no previous history of respiratory failure. It is his view that it would be illogical to send them home. Mr Bolton needed overnight observation which would be standard and routine as an approach to a patient in respiratory failure.

Dr Campbell-Hewson considers that the discharge diagnosis of lower respiratory tract infection was a reasonable synthesis of the symptoms. He felt that a reasonable doctor would conclude this was an episode of wheeze which responded to nebulised Salbutamol and it was reasonable to conclude that the lower respiratory tract infection created bronchospasm and “that the respiratory distress had been due to lower respiratory tract infection and this had now resolved and stabilised".

Dr Morris considers that such diagnosis is inadequate to explain the clinical course and it would be essential to believe that Mr Bolton had reversible airways disease given the dramatic recovery witnessed.

Dr Morris says it is "well recognised that patients with reversible airways disease deteriorate overnight and the single reading of 95% on air was insufficient reassurance that his condition was stable or that his discharge was safe".

Dr Campbell-Hewson considers that discharge was reasonable for the reasons set out above and says that the later deterioration and the underlying diagnosis “could not have been reasonably predicted". He thought it would be "pretty common practice" to discharge a patient in situation like this. He said that COPD patients are quite commonly discharged 3, 4 or 5 hours after admission. The oxygen saturation of 95% on room air recorded by Dr Rosales would have been a normal finding for 77-year-old man. The results as a whole would have offered "very considerable reassurance that the earlier episode of respiratory distress had fully resolved and there was no apparent underlying condition which required hospital admission and inpatient treatment". Thus, his view is that it was reasonable to conclude that the illness was due to a combination of upper and lower respiratory tract infection and that he could be safely discharged home.

In direct contrast, to Dr Morris Dr Campbell-Hewson feels that a significant recovery following one dose of nebulised Salbutamol made it reasonable for Dr Rosales is to be reassured although it would be reasonable to conclude that Mr Bolton still had some degree of respiratory tract infection.

Thus, he concludes that it was reasonable for Mr Bolton to be discharged with oral antibiotics at approximately 22:00 hours.

He agreed that respiratory failure can be life-threatening in an acute severe form and that it would be necessary to understand why a patient had gone into respiratory failure in the first place in order to ascertain whether or not it would be safe to discharge them. He felt it would be a matter of judgement as to how high the risk would be of the condition occurring. The “safety net” is the advice that if the symptoms return the patient should come back to hospital. He felt that if the advice had been to take patient to the GP if there was a deterioration that advice would not have been acceptable or satisfactory.

Dr Morris considers that a single reading of 95% on air even if accurate, would be inadequate reassurance to a reasonably competent clinician working in the Emergency Department that Mr Bolton's condition had stabilised. To be reassured that his respiratory condition had stabilised would need a period of observation and further treatment overnight to confirm this.

Dr Campbell-Hewson says that if the measurement was recorded at least approximately five minutes after removal of additional oxygen than it would be regarded as a true reliable level and would not indicate respiratory failure. Dr Morris agrees that the first hit of Salbutamol is likely to have been wearing off but still has an impact up to 5 hours after administration. Dr Campbell-Hewson agreed that one would have to bear in mind that there would be a risk of deterioration once treatment had worn off and Salbutamol would last between three and five hours.

The experts agree that Salbutamol has a duration of action between 3 to 5 hours and could have impacted upon any oxygen reading. The maximum effect is within the first hour. The experts agree that O2 saturation levels do not return to baseline immediately after the removal of the supplementary oxygen, but in most patients an accurate reading could be taken five minutes after removal.

They cannot say when the oxygen was removed although Dr Campbell-Hewson thinks it is likely to have been more than five minutes before the reading was taken. Dr Morris cannot be sure when it was removed but, in any event, does not consider that one reading at 95% on air is enough to establish that the patient is stabilised. It is not in fact clear what level of monitoring was taking place at the time.

In summary, therefore, Dr Morris says that a reasonably competent clinician would not suggest pharyngitis as a cause of the respiratory distress and failure. He considers that since Salbutamol is short-acting it would be logical to assume that in the absence of any other treatment wheeze or shortness of breath could return as is well recognised in both COPD and asthma. He considers that a reasonably competent clinician would know that Mr Bolton could then deteriorate once the Salbutamol had worn off and he could return to his critical state once again. For this reason, discharging him the diagnosis of lower respiratory tract infection was unsafe. The discharge diagnosis of a lower respiratory tract infection would not account for the whole picture presented by Mr Bolton. Importantly as I find at paragraph B1.22 Dr Morris says, "arriving at a diagnosis of pharyngitis would strongly suggest that Dr Rosales was not aware of Dennis Bolton's clinical state prior to arriving at hospital".

Since Mr Bolton was not a known sufferer of COPD or asthma, Dr Morris considers that it was mandatory to admit him for observations and that the discharge was unsafe. He does not consider that the one oxygen level reading of 95% would be sufficient evidence on which to justify the decision that Mr Bolton's condition was stable and discharge safe.

Dr Morris was not able to say that he could conclude that everything was normal at 10.00pm in light of the underlying illness. On the basis of the symptoms and signs exhibited Dr Morris considers that COPD/asthma is the only logical explanation unless one refers to the true diagnosis, epiglottitis, which is very rare.

Epiglottitis is a bacterial infection of the epiglottis which is commonly recognised in children but is much more rare in adults. It gives rise to high fever a patient being toxic, grey with severe difficulty in breathing and is associated with hoarse voice, drooling and stridor or crowing noises on inspiration.

It is important to note that there is no criticism by either expert of any failure to diagnose epiglottitis.

Dr Morris confirmed that the evidence pointed to a lower respiratory tract infection but would not account for the symptoms at home because it does not explain the respiratory distress and respiratory failure and so Mr Bolton should have been treated as if he had COPD/asthma (whatever the label) because it was possible to predict that the signs and symptoms would return and he should not have been sent home. He confirmed that at the time that he was seen by the paramedics Mr Bolton had a life-threatening condition and that risk remained.

The thrust of Dr Campbell-Hewson’s opinion was that one could form a view that it was safe to send him home and that whilst that would not have been everyone's judgement in this case, it was nonetheless reasonable. His view was that this was an episode of wheeze and the bronchospasm had settled with the bronchodilator. At the time that Dr Rosales saw Mr Bolton the respiratory examination was essentially normal in Dr Campbell-Hewson's view. He agreed that there was no evidence about Mr Bolton's observations at discharge or as to any symptoms which developed thereafter and before the second ambulance arrived in the early hours of the morning. He agreed that the only logical explanation for the improvement was the nebuliser. Dr Campbell-Hewson considers "the overall presentation was consistent with an LRTI combined with an episode of respiratory distress associated with wheeze which might have been precipitated by mucous plugging, a coughing episode or some degree of laryngospasm". He said that the examples he had given of mucous plug, laryngospasm or a coughing episode as explanations for the respiratory distress were given in the context of “irritability following infection”.

On the basis of the PRF and Dr Morris’s interpretation of it I accept that when the paramedics arrived and assessed Mr Bolton he was in a life-threatening condition with respiratory distress and respiratory failure. The PRF details show that Mr Bolton was grey in colour and gasping for breath. He was sweating, and his temperature was 37.6. At 17.56 his respiratory rate was 30 and it was 27 at 18.36. His O2 Sats were 89% on air and 98% on oxygen at 17.56 and they were 89% on air and 94% on oxygen at 18.36. His pulse was 126 at 17.56 and 123 at 18.36. His blood pressure was 185/95 at 17.56 and 170/90 at 18.36. He is described as having global wheeze and a diagram marks added chest sounds.

When he was triaged the effect of the Salbutamol was to have largely resolved the respiratory distress. The entries at p190 – 191 show a respiratory rate of 19, blood pressure at 110/60, a pulse of 112, a normal temperature and O2 Sats of 94% on oxygen. The notes read: “Sounds chesty, sore throat that started last night, appears hoarseness of voice, appears grey in colour at times” and “admitted a male pt @ A and E resus due to c/o sob, sore throat started last night, appears sounds chesty, hoarseness of voice, attached to cardiac monitor, observations taken and recorded bloods [tick] CXR [tick] awaiting to be seen by cas doctor”.

I note, and it is not disputed that the respiratory failure and respiratory distress are not identified in Dr Rosales’s note and these are the most significant features of the presentation requiring the attendance at hospital. I note that wheeze is not identified. It is agreed and accepted that by this time Mr Bolton had made a dramatic recovery/improvement in his symptoms on Salbutamol.

Overall it seemed to me that a significant part of Dr Campbell-Hewson’s evidence was to seek to minimise the significance of Mr Bolton's condition when the paramedics assessed him. As I have said, I accept that the observations of the paramedics (which includes the decision to bring Mr Bolton to hospital) are properly interpreted by Dr Morris as being a life-threatening situation.

Mrs Henderson has better direct recollection as I find of the events of the evening although clearly her memory is unlikely to be entirely accurate or complete. I find that she did specifically tell Dr Rosales (and the triage nurse) on more than one occasion that her father's voice was not sounding as it normally did and indeed that it sounded "like Mr Bean". This is obviously a clear and specific recollection and I accept it. I find that Mrs Henderson and her family were told that in the event of any further problems/deterioration they should take Mr Bolton to his general practitioner. I do not find that they were told that they should bring him back to the Emergency Department. Mrs Henderson has no reason to misremember or deliberately misstate this. In the circumstances of this case, of course, by the time the rapid deterioration had become apparent an ambulance was called in any event.

I accept Mrs Henderson's evidence that on the night that Mr Bolton attended the Emergency Department was exceptionally busy. I accept that it was busier than Mrs Henderson had ever seen before. I accept that the impression which she had of everything being rushed is accurate.

I find that the claimant gave her evidence in a perfectly straightforward way. I do not doubt that she feels and has felt since the death of her father distress and anger but that did not impact on the reliability of her memory as I find. There were matters which she could not remember, and she said so quite straightforwardly. I accept that there were some things which she referred to which were not in her statement, but I do not find that this was due to any lack of credibility or embellishment on her part. She was being asked questions and she gave the answers to them. It did seem to me that she was cross-examined at length and robustly about the timing and sequence of events in the Emergency Department and the information which she and her family supplied. It was not suggested that there was any omission of clinical detail or false giving of details and so this can only be of very limited relevance. Dr Rosales has no recollection himself and is reliant on his notes and so Mrs Henderson’s account could not really be challenged.

For the reasons set out I find that there is no criticism or indication of any unreliability on the part of the claimant. Her evidence is in any event of limited relevance to the issue I have to decide. It was not put to her that she was unreliable in her memory by reason of her anger and grief. Mr Bolton’s immediate history, and observations symptoms should have been taken from the PRF and the triage notes.

It is perfect understandable that Dr Rosales does not remember Mr Bolton or his assessment of him. I find that he was doing his best from his notes to say what he would have done but the notes are very brief indeed.

I find that Dr Rosales has no actual recollection of Mr Bolton and is doing his best, as he frankly acknowledged, to piece things together from the records albeit significantly after the event.

I find the notes do create a picture of hasty assessment. There is no mention of the oxygen or nebulised Salbutamol. There is a mistaken reference to a “sister”. The totality of the presentation was not taken into account and there is still no explanation of that totality in Dr Rosales’s witness statement. There is no mention of "bronchospasm". These explanations are provided with the benefit of hindsight. I have to judge Dr Rosales’s actions based on the information he had or should have had at the time.

I accept that Dr Rosales would ordinarily put the time on the note of his examination but did not do so on this occasion. I accept that he would normally seek to set out some of the details from the PRF and/or triage notes and did not do so on this occasion. I accept the evidence of Dr Campbell-Hewson that it would not be unreasonable not to transcribe all the notes from the PRF and the triage assessment into his own notes. However, it does seem to me that the history should be recorded and, in this case, even in brief terms that would include respiratory failure, respiratory distress, wheeze, added chest sounds and the improvement on Salbutamol. I do not consider it reasonable even in a busy Emergency Department for those matters not to have been recorded.

I find that Dr Rosales did not follow his usual practice that evening in some respects such as timing the entry, making a further note following the second visit to Mr Bolton or completing his thought about a second differential diagnosis (if there was one) because the Department was as I find (accepting Mrs Henderson's evidence) exceptionally busy.

I consider that Dr Rosales should have but did not make a further note relating to the second attendance upon Mr Bolton and his family following sight of the chest x-ray.

Whilst it may not be directly relevant to the findings I have to make here, I do find that Dr Rosales’s initial statement suggested that oxygen saturation levels will drop immediately after oxygen is stopped and that it is after the event that he has amended that to say that they will begin to move towards the baseline.

I accept that there is no criticism of Dr Rosales in respect of the interpretation of the venous blood results and even if there were it would not be causative in this case.

The claimant invites me to find that Dr Rosales either did not read the PRF and the triage notes or did not consider them adequately in reaching his diagnosis/assessing and examining Mr Bolton.

Dr Rosales’s initial diagnosis was of pharyngo-tonsillitis. Dr Campbell-Hewson feels that this would not be an unreasonable initial comment/preliminary consideration even though it does not explain the respiratory failure and respiratory distress.

I agree with Dr Morris and find that it is right to say that the diagnosis of pharyngitis even as a working diagnosis or preliminary consideration is inconsistent with Mr Bolton’s state when he was at home and, as I find, so inconsistent to make it an unreasonable differential diagnosis even on preliminary findings. It would not be an unreasonable diagnosis if Dr Rosales was making his assessment only on the basis of the patient as he saw at the time and without the benefit of the PRF. I have reached the conclusion that the claimant is right to say therefore that on the balance of probability Dr Rosales did not take the information on that report form into account. I do not consider that it is likely that having read that form he ignored its contents. I therefore consider that he did not in fact read the PRF.

I find that this was substandard practice, as Dr Rosales himself acknowledges, and that in the absence of a proper history being taken, Mr Bolton was treated as if his symptom of sore throat was the primary complaint and, following the chest x-ray, that he seemed to have a lower respiratory tract infection as well.

I find that it was not Dr Rosales who ordered the chest x-ray. In so far as Dr Campbell-Hewson's opinion is based on the fact that Dr Rosales was aware of the immediate history of respiratory failure and respiratory distress because he ordered the chest x-ray it is significant that, as I find, he did not.

Of course, if as I find, Dr Rosales had not seen the earlier records then the pharyngitis diagnosis becomes much more explicable. However, in those circumstances as Dr Campbell-Hewson would agree Dr Rosales’s assessment was not adequate in the absence of consideration of the contents of those records.

I therefore find that Dr Rosales’s working/preliminary diagnosis was inadequate.

Standing back and assessing the evidence as I must it seems to me that the illogicality of Dr Campbell-Hewson's position is that the preliminary (and in fact only) diagnosis before sight of the chest x-ray was pharyngitis which could not have explained Mr Bolton's symptoms. I reach the conclusion on a balance of probabilities that Dr Rosales had not taken account of the information in the PRF. I find that he did not see the triage notes either. He took a history from the patient who was by then feeling significantly better albeit complaining of sore throat.

I find that it is likely that at the time of the 95% on air reading, Mr Bolton would have been off oxygen for more than five minutes, but probably not for very much longer than that.

I accept that it is more likely than not that there was some ongoing monitoring of Mr Bolton's cardiac rhythm and oxygen saturations whilst he was in the resuscitation room. Of more relevance, however, is the fact that there is no note other than the single entry relating to 95% oxygen saturation levels on air to suggest that Mr Bolton had had adequate saturation levels for any length of time without the benefit of supplementary oxygen. I do not know how long he had the oxygen. I do not know when it was removed. I do not know if he was given further oxygen, for example, after the chest x-ray. I cannot find on a balance of probabilities that Dr Rosales took note of the continuous monitoring if there was any in circumstances where it is not recorded as a clinical observation.

I do not find that the family were told to call an ambulance and bring him back to the Emergency Department in the event of a deterioration. I do find that Dr Rosales said that they should take him to the general practitioner.

I consider that this is also an important piece of information which supports my finding that Dr Rosales was considering pharyngitis or a chest infection but nothing of any real seriousness or life-threatening nature. In any event if Dr Rosales had in mind that there could be a sudden deterioration of such severity to need to call the ambulance again, there is no evidence that he considered that risk when weighing up whether or not to discharge Mr Bolton. There is no evidence that he considered that risk when comparing discharge against admission to hospital particularly when whatever the cause of the initial respiratory failure, it had improved with nebulised Salbutamol which could not be administered at home.

It is agreed, and I find that pharyngitis would not explain respiratory distress, respiratory failure and wheeze. I think that the fact of Dr Rosales writing the number “2” with nothing against it suggesting that he may have had another differential diagnosis in mind is of limited weight. He has no recollection of what he was thinking at the time. Having seen the chest x-rays, the final diagnosis was a lower respiratory tract infection. I accept the evidence of Dr Morris that neither pharyngitis nor lower respiratory tract infection would account for the respiratory failure, respiratory distress and wheeze as a group of symptoms.

Dr Rosales makes no mention of the respiratory failure, respiratory distress or wheeze. He does not explain why not. He does not explain his thought processes in reaching a diagnosis of pharyngitis or lower respiratory tract infection. I accept Dr Morris’s view that this was an inadequate diagnosis. The diagnosis of pharyngitis was based on the sore throat which was not the most significant symptom. The lower respiratory tract infection (despite the apparent lack of added sounds when Dr Rosales examined Mr Bolton) was made on the basis of the chest x-ray and does not explain the earlier life-threatening situation.

Mr Bolton was discharged with no active treatment plan.

I reject Dr Campbell-Hewson's attempts to explain the respiratory distress respiratory failure and wheeze. There is no evidence of a cough of any significance. The reference to a cough is an unproductive one which does not imply that there had been a mucous plug (which presumably became dislodged so as to relieve the symptoms). "Laryngospasm" was not fully explained to me and I prefer the evidence of Dr Morris when he says he has never made such diagnosis in 30 years in the Emergency Department. In any event they would not adequately account for the respiratory failure which, as I find, was severe, and which Dr Campbell-Hewson did not explain.

In the circumstances I find that Mr Bolton did in fact meet the criteria for being kept in hospital.

In light of Dr Morris’s evidence that epiglottitis would not resolve with nebulised Salbutamol it seems to me that there may have been a different or emerging pattern at the time of the first ambulance callout but even if that was not due to the undiagnosed epiglottitis I find in any event that whatever the underlying cause of the earlier attendance at the hospital, as has been agreed, observation, admission, monitoring and treatment in the event of deterioration would in any event have prevented the outcome.

I accept that on analysis now COPD/asthma would have been unlikely/uncommon diagnoses, but I accept Dr Morris’s view that these are labels and reversible airways disease is what Dr Rosales should have been thinking about in light of the presentation at the time.

I find that there was a risk of recurrence. The risk was significant, and Mr Bolton should have been admitted to hospital.

I find that Dr Campbell-Hewson's analysis is using the benefit of hindsight rather than judging Dr Rosales’s actions prospectively. I accept the thrust of Dr Morris’s evidence which is that severe and life-threatening respiratory failure, respiratory distress, with wheeze, added chest sounds and alteration in colour which improved dramatically with a single dose of Salbutamol indicate reversible airways disease. Dr Morris was clear consistent and logical in this analysis. Dr Campbell-Hewson's evidence did not adequately explain, as I find, Mr Bolton's presentation when the paramedics assessed him. As indicated I reject his speculation about cough, mucous plug and laryngospasm. Whilst he gives logical arguments as to why this was not COPD or asthma (Mr Bolton having no history of the former and the onset of asthma at the age of 77 would be very, very uncommon), he does not explain the key features of the severity of the condition and the dramatic nature of the improvement. Pharyngitis certainly would not explain it, and neither would the lower respiratory tract infection. It seems to me therefore that Dr Rosales failed to take into account the severity of the initial presentation or explain the dramatic improvement either. The experts agree that this was indicative of an underlying respiratory condition. That was not adequately identified.

Thus, even if the diagnosis of COPD or asthma was on later analysis inappropriate, I accept Dr Morris’s point which is that Mr Bolton should have been treated as somebody with reversible airways disease or even a reversible airways episode and as such required inpatient admission for further monitoring. This is so in light of the risk of deterioration/further episode and because there was no adequate explanation for the pattern of symptoms.

I reject the defendant's contention that Dr Morris was either saying things that were irrelevant simply to bolster the claimant's claim or that his evidence was unreliable or unreasonable.

I prefer the evidence of Dr Morris for the reasons given namely that by referring repeatedly to "an episode of wheeze" without definitive explanation, Dr Campbell-Hewson underplayed the seriousness of the original symptoms. I also find that his categorisation of the pharyngitis as “a preliminary consideration” (particularly in the context of such brief notes) does not to stand up to logical analysis when it could not account for the symptoms, assuming Dr Rosales had read the PRF and triage notes.

I find that Dr Morris’s reference to the likelihood that there were some signs in Mr Bolton's throat in light of the collapse at 4 o'clock in the morning is a point which is properly made and may very well support the contention that Dr Rosales’s assessment was more rushed and/or superficial than it would normally have been. To that extent it supports my findings but is of limited weight. It is not, however, an unnecessary point which could be said to have been made only to bolster the claimant’s’ claim.

I do not think there is any proper criticism to be made of Dr Morris simply by reason of the fact he was so adamant that this patient mandated admission. That was his view and he did not waver from it.

Dr Campbell-Hewson's view that the respiratory failure (unexplained) could have resolved on its own is difficult, in my view, to establish when Mr Bolton had been given Salbutamol. In any event the information which Dr Rosales had or should have had was that there had been an improvement of the respiratory failure (not just respiratory distress) with the administration of Salbutamol.

It was only in the course of his oral evidence that Dr Campbell-Hewson said for the first time that the decision to send Mr Bolton home would not have been everybody's judgement, but it was nonetheless reasonable. That is in the context of his evidence that one has to look at the totality of the information and his agreement that respiratory failure and respiratory distress are indicative of significant respiratory illness. He also agreed that the doctor would have to bear in mind that there would be deterioration once the treatment wore off and that with a reversible airways episode the risk is that the patient could deteriorate again. He agreed that respiratory failure can be life-threatening in its acute, severe form and that one needed to understand why a patient had gone into respiratory failure in the first place in order to ascertain whether or not it was safe to discharge them. The doctor would have to make a judgement as to how high the risk was of the condition recurring. He accepted that it was a significant risk, but the decision to discharge would be a matter of judgement and thus it was his opinion that one could reasonably form a judgement that it was safe to send Mr Bolton home.

I consider that the development of Dr Campbell-Hewson's argument in his oral evidence to the effect that there would be a responsible body of emergency doctors who would make the decision to admit a patient with Mr Bolton’s symptoms is a matter which should have been identified in his report and the joint statement. An expert is required to set out the range of reasonable opinion.

For the reasons identified above I accept the evidence of Dr Morris. Thus, I find on a balance of probabilities that had Dr Rosales been aware of the contents of the PRF and the triage notes he would have been in breach of his duty in failing to admit Mr Bolton and instead sending him home. Even if I am wrong about that Dr Campbell-Hewson's evidence is that with the benefit of the details of the history and having exercised a judgement as to the risk there would be a responsible body of opinion that would have considered it safe to discharge Mr Bolton (with the safety net advice). Without the benefit of the information in the PRF and the triage notes Dr Rosales could not have properly exercised that judgement and assessed the risk and this amounted to a breach of duty. Further at no point in his witness statement does Dr Rosales set out his thought processes and assessment of risk giving rise to his judgement that it was safe to send Mr Bolton home. That judgment should have been made taking account of the respiratory failure, respiratory distress and so on set out in the PRF and the triage notes and the improvement on Salbutamol. I can only conclude therefore that he did not undertake that exercise but any risk assessment he did undertake was made only on the basis of the information from his own examination and the results obtained thereafter.

In the circumstances I find that the defendant was in breach of duty and that Mr Bolton should have been admitted and could not be safely discharged home and there will be judgement for the claimant in the agreed sum of £75,000.