Abstract
The Claimant had been referred to Mr Green, a clinical neuropsychologist employed by the Trust, for psychometric testing. She had a long history of psychiatric problems, which were significantly exacerbated by the death of her daughter from variant CJD in January 2000.
At the first two appointments, on 5 March and 8 May 2002, the Claimant had been accompanied by her partner, Mr Lee. However, Mr Lee had gone to the hospital cafeteria when Ms McVey was called in by Mr Green to his consulting room for the third appointment on 2 July 2002. It was the events which followed that gave rise to the claim.
It was alleged that, having previously been given notice by the Claimant that the sight of certain objects in the consulting room caused her deep distress, the psychologist failed to remove them. Four ‘trigger images’ were cited by the Claimant:
A toy brain on Mr Green's desk which, the Claimant said, had clockwork legs and was capable of jumping up and down; A model of a partially dissected torso; A poster on which appeared a drawing of a brain; A picture of a rural scene which included an image of a cow.
All of these, the Claimant maintained, had a resonance with her daughter's death from vCJD and triggered an intense emotional response and anxiety.
It was further alleged that after the Claimant reacted to these triggers, Mr Green pushed her insensitively out of his room and inappropriately left her in the corridor on her own.
Ms McVey, who had formerly worked as a senior nurse, claimed that as a consequence of events on 2 July 2002, she suffered a heightened sensitivity to emotional triggers and developed a profound distrust of healthcare professionals, which affected treatment for her orthopaedic, gynaecological and dental conditions. She had been unable to leave home most of the time and her plans to return to work had been set back.
In the witness box, but inconsistent with her statement and the Particulars of Claim, Ms McVey alleged that trigger image 4 had been brought specifically to Mr Green's attention at the first consultation. Mr Lee maintained in oral evidence that he mentioned three of the triggers to Mr Green at the consultation, although this was not in accordance with his statement.
Mr Green made a contemporaneous note of the first consultation. This made no reference to the issue of trigger images.
At the second consultation, the Claimant maintained that she asked Mr Green to move items 1 and 2, and that he placed them on top of a small filing cabinet, where they were still visible to her.
Mr Green denied that he had ever owned a toy brain with clockwork feet. He accepted that he did have a small rubberized model brain coloured orange, given to him by a pharmaceutical company. It did not have clockwork feet. His contemporary note of this consultation again made no reference to any discussion of trigger images.
As to the third consultation, the Claimant alleged that she had asked Mr Green, prior to entering the room, if the triggers had been removed. He assured her that they had been, but when she went in she realized that all the items were still there and felt a sense of panic. Mr Green allegedly refused to remove them, whereupon she experienced a hallucination based on the toy brain.
Mr Green wrote to Mr Lee on 6 July about the 2 July conversation. There was no mention in this letter of any request for trigger items to be removed. The Claimant saw her GP on 11 July 2002, suffering from traumatic amnesia and stress. The GP's note made no specific reference to what had happened on 2 July. Likewise, when the Claimant saw her treating psychiatrist on 19 July, his resultant letter to her GP said nothing about the incident on 2 July.
Mr Green accepted that prior to the third consultation, in a conversation in the corridor, the Claimant asked him to remove the picture of the rural scene and the model brain. He put them out of sight in his filing cabinet. He denied that there had been any previous mention of them as trigger images.
When the Claimant came into his room, she objected to the poster so he removed this as well. There was no mention of the torso, which was on top of the filing cabinet, as it had been on previous occasions. Mr Green pointed out that his room was likely to contain multiple visual references to the human brain, given the nature of his work. He said that it would not be practicable to remove all of them. At this point the Claimant, who was in a wheelchair, indicated that she no longer wished to stay and asked to be wheeled back to the corridor.
The psychologist said that Ms McVey then became angry. He concluded that his presence was aggravating her state of irritation, so he took the decision to withdraw, having first offered to go in search of her partner and to arrange another appointment, both of which offers were declined.
Mr Green prepared a detailed note of the consultation within 10 to 15 minutes of the Claimant leaving his office.
Held: there were numerous inconsistencies between the Claimant's pleaded case, her oral evidence and the account she gave to Mr Blunden, her expert witness. Further inconsistencies were introduced by the written and oral evidence of Mr Lee. Mr Green's evidence, however, was supported by his contemporaneous notes. Consequently, his evidence was to be preferred.
The Claimant's allegations were wholly implausible. For example, there would have been no reason for Mr Green to be obstructive in refusing to remove the trigger images. On the contrary, he would have had every incentive to encourage the Claimant's cooperation.
There was no support in the contemporaneous records or elsewhere for the allegation that Mr Green had known prior to 2 July that the Claimant was susceptible to trigger images; that her grief reaction or dissociative state was exacerbated by the third consultation; or that Mr Green failed or refused to remove images from view. Indeed, it was plain that the Claimant was capable of going through an appointment with such images visible in the consulting room without suffering an acute reaction.
Mr Green had not been made aware of any issue over trigger images at either of the first two consultations. He had not been guilty of any breach of duty at the end of the third consultation, when the Claimant had become angry and confrontational.
As to causation, the evidence of Professor Fahy, the Trust's expert psychiatric witness, was to be preferred. He considered that the Claimant's anxiety on 2 July was more likely to have resulted from her feelings of loss of control, irritation and frustration at the direction in which the consultation went rather than from a reaction to the trigger images.
It was notable how easily the Claimant suffered dissociative episodes during her consultation with her expert psychologist, Mr Blunden, on 19 August 2004, which were triggered by detailed discussion of her daughter's illness and by certain words and related images.
Professor Fahy took the view that the Claimant was not in a position to return to work as a nurse in 2002, the long-term prospect being difficult to predict. She remained extremely vulnerable psychologically, and especially to episodes of dissociative behaviour consequent upon exposure to trigger images. There was a significant risk that, had it not been for the events of 2 July, she would have undergone something similar in any event at some stage in the future. The exacerbation of symptoms was of the order of two to three months. An appropriate award of General Damages, had the Claimant succeeded, would have been £2000; plus £3000 for care. There would have been no valid claim for loss of earnings, despite the pleaded figure of £47,754.
There would therefore be judgment for the Trust.
James Townsend (instructed by Goodmans) appeared for the Claimant. John Whitting (instructed by Beachcroft LLP) appeared for the Trust.
Comment
This must count as one of the oddest cases to have crossed the threshold of the NHS Litigation Authority. It was defeated by a combination of inconsistent factual evidence for the Claimant and the contemporaneous consultation notes of the psychologist. The latter illustrated yet again how critical good medical records can be in defeating claims which are frequently brought many years after the events in question.