Abstract
Introduction
This was a claim for damages founded on allegations of negligence in the diagnosis and treatment of allegedly symptomatic gallstones.
The claim
Mrs Khan had had stones in her gallbladder since 1996. It was alleged on her behalf that in about June 2002 or January 2003 she ought to have had a trial of proton pump inhibitors (PPIs) and that she should then have had a surgical operation to remove the stones.
On 25 January 2002 the claimant’s GP, Dr Mittal, referred her to Mr Cave-Bigley, a consultant surgeon at the trust. He wrote: “she has suffered with gallstones since 1996 and is now becoming painful. I shall be grateful for your opinion and advice”.
She failed to attend appointments on both 19 March and 26 April 2002, as a result of which the consultant assumed that her difficulties had resolved. For some reason which was unclear from the records she attended the hospital on 7 June 2002 and was seen by a specialist registrar. That registrar, now a consultant general and colorectal surgeon in his own right, reported that the presenting complaint was heartburn, together with nausea and vomiting. He made a positive finding that there was no complaint of “right upper quadrant pain”, and that the abdomen was soft but not tender. Murphy’s sign [indicative of inflammation of the gall-bladder] was negative. In evidence, he accepted that a negative Murphy’s sign did not exclude gall-bladder disease, but said that he would expect a positive sign in a patient referred with known gallstones.
His contemporary note to the GP concluded: “I am not convinced she has gall-bladder pain”, and that the symptoms were more typical of gastro-oesophageal reflux disease/peptic ulcer disease.
On 27 September 2002, Mr Cave-Bigley saw the claimant for the first time. His note to the GP mentions that gastroscopy was “essentially normal”, and added: “I concur with my registrar that this is not a gallbladder type pain. The next step should be pressure and pH studies of her oesophagus”.
Mr Cave-Bigley formed the view that the problem was probably reflux, and the pH testing which he advised was undertaken on 9 December 2002.
The consultant noted that the test demonstrated reflux without pain, the latter because Mrs Khan had not pressed a self-recording button.
Accordingly, on 14 January 2003, Mr Cave-Bigley wrote to Mrs Khan as follows: “your recent oesophageal function tests suggest that you are having a significant amount of oesophageal reflux. This means that the stomach contents are coming up into your gullet and I suspect this is the cause of your abdominal symptoms.” He concluded: “I do not think that we should be seriously considering removal of your gallbladder.”
In a post-script to the GP, Mr Cave-Bigley added: “I wonder whether this lady needs some simple anti-reflux treatment.” This comment was a matter for controversy during the litigation. The question was whether it referred to non-prescription medicines or PPIs.
The GP did not prescribe PPIs, and Mr Cave-Bigley indicated in a witness statement that he was surprised that Dr Mittal had not read his comment as advising this. In evidence – as opposed to in his witness statement – the consultant said his letter left to the GP the choice between PPIs (for severe cases) and medication (for less severe cases). He added that titration of treatment to severity of symptoms was a matter for the GP.
Mrs Khan missed another clinic appointment on 25 March 2003, following which there was a gap of some three years until Dr Mittal again referred her to Mr Cave-Bigley on 12 April 2006, stating: “patient is now requesting to have her gall-stones removed”.
That letter resulted in a consultation with the surgeon on 20 June 2006, following which the latter wrote to the GP reiterating his view that the patient’s pain was not due to her known gall-stones. He continued: “may I suggest that she perhaps has a trial of Proton pump inhibitor and if this fails to work then refer her through to my colleague … who specialises in anti-reflux surgery.”
A locum GP prescribed a standard dose of PPI but there was no note in the records of the outcome of this trial.
On 29 September 2006, Mrs Khan was admitted to hospital and, in her witness statement, she described having suffered pain “like no other pain that I had experienced”. She was seen by Mr Dmitri Artioukh, consultant general and colorectal surgeon, who advised the GP that Mrs Khan would be reviewed in six weeks with a view to laparoscopic cholecystectomy. However, by 1 December the claimant had decided to undergo surgery in India and this was performed on approximately the 15th of that month. The findings at operation included: “gall bladder was thick and inflamed. Neck of gall bladder adherent to CBD [common bile duct] which was dilated and inflamed.” The consultant histopathologist’s conclusion was “acute on chronic cholecystitis”.
Expert evidence
Professor Mark Winslet, head of department at University College London, was instructed on behalf of the claimant. He accepted the view of the Registrar (Mr Vimalachandran) on 7 June 2002 that the most likely cause of the claimant’s symptoms then was gastro-oesophageal reflux or peptic ulcer disease. However, he considered that the high degree of reflux should have necessitated treatment with PPIs which, if they had resolved the symptoms would have confirmed reflux as the cause but, if otherwise, should have led to further investigation of the gallbladder. He therefore took the view that the diagnostic process was not pursued vigorously to its logical conclusion.
Mr Royston, emeritus consultant surgeon at Hull Royal Infirmary, was instructed on behalf of the trust. He agreed that in 2002 the symptoms were more suggestive of reflux oesophagitis rather than attacks of biliary colic or acute cholecystitis. He supported the diagnosis and treatment undertaken in 2002/2003. By September 2006, he considered that the claimant was suffering from symptoms referable to her gallbladder, but without positive evidence of severe inflammation. He believed that Mrs Khan suffered an acute inflammation in the period October to December 2006.
Mr Royston opined that in the light of the normal ultrasound result in 2006, an ultrasound scan in 2003 would also have been normal. Professor Winslet however maintained that the 2006 scan was not indicative of what the condition of the gallbladder might have been in 2003.
Mr Royston considered that the gall-stones became symptomatic in 2006, when a cholecystectomy was then mandated. However, Professor Winslet considered that the gallstones became symptomatic in 1996 and that cholecystectomy was indicated in 2002.
Findings
The court was not satisfied, on the balance of probabilities, that in 2002/2003 the claimant was suffering from symptomatic gallstones. The clinical assessments of both Mr Vimalachandran and Mr Cave-Bigley, together with the changed description of symptoms given by Mrs Khan after she had suffered what was accepted as an acute gall bladder-related event in late 2006, were against such a diagnosis, albeit far from conclusively so.
It was not possible to determine what a trial of PPIs or a further ultrasound scan would have revealed in 2003. In their absence, analysis of what they might have shown was driven back to reliance on the clinical impression gained by the two surgeons in 2002/2003, and thus the analysis became circular.
Whilst the logic of Professor Winslet’s argument could be accepted, the court equally accepted Mr Royston’s opinion that the advice of Mr Cave-Bigley did not fall below the standard of ordinary competent consultant surgical practice. Professor Winslet was advocating best possible practice whereas Mr Royston advocated practice accepted as proper by a responsible body of surgical opinion.
Mr Cave-Bigley did not recommend PPIs generically or by name in January 2003, but he did advise a trial of anti-reflux medication (by which he meant PPIs). Although he was misunderstood by the GP, that was not a result of his negligence. Although the letter to the GP did not mention a follow-up at hospital, it was plain that such a follow-up was provided for.
That the 2006 referral to Mr Cave-Bigley did result in a more specific recommendation by him of a trial of PPIs persuaded the court that the consultant was aware of the mixed (potentially therapeutic, and “diagnostic by exclusion”) purposes of the trial and that that had been his intent in 2003.
Whilst the court was satisfied on the evidence of both experts that had gallbladder disease been diagnosed in 2003 it would have led to uncomplicated operative removal shortly thereafter, it was not satisfied that failure to make such a diagnosis in 2003 was negligent. In any event, the claim failed on the ground of causation (in the sense of delayed diagnosis/treatment) because the claimant did not attend hospital in March 2003 and thus deprived herself of the outcome which occurred when she saw Mr Cave-Bigley in 2006.
For the forgoing reasons, the claim would be dismissed.
Mary Ruck (instructed by Linder Myers) appeared for the claimant. James McKeon (instructed by Hill Dickinson) appeared for the trust.
Comment
This was another instance of a Judge concluding that the claimant’s expert was adopting an unreasonably Olympian approach, whereas the defence expert was more representative of sensible and logical practice. The claimant had been convinced that she needed to have her gallstones surgically removed, but there was no objective evidence to point to such an outcome in 2002/2003. Furthermore, her various failures to attend hospital appointments did not assist her case. The judge concluded that she was a poor historian and although the consultant’s letters to the GP might have been more prescriptive, the claimant’s failure to attend the hospital appointment in March 2003 meant that she lost the opportunity of the possibility of further investigations and treatment at that point. In any event, though, the acute pain she suffered in September 2006 was strongly indicative of a new cause.
John Mead
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