Abstract
At the age of 10 months, C woke up unwell on Saturday 27 January 2001. She was staying with her grandmother, Mrs P, an experienced mother and childminder, who was sufficiently worried to make an emergency appointment at her own GP's surgery to get C seen that morning. Her granddaughter had been ill for about two weeks. The previous day she had been able to feed herself and had responded to her mother and her grandmother but had taken a turn for the worse that morning. She did not chat as she usually did. She was moaning and trying to vomit with nothing coming up. She was very pale, grey and looked awful. Her skin was ‘see-through and you could see the veins in her face’. She was very hot. She was floppy. She was definitely different from the night before. She did not respond to her grandmother. She was upset and agitated.
C was seen at about 10:30 by Dr W, a locum at the surgery. On Mrs P's account, Dr W performed a cursory examination and did not appear to take seriously her concerns. In particular Dr W did not interact with the child or handle her. She remained floppy and unresponsive in her grandmother's arms during the examination. Nonetheless Mrs P was reassured by the GP, who diagnosed (as she understood it) a ‘tummy bug’. A diagnosis of Upper Respiratory Tract Infection (URTI) was recorded in the notes.
She did not improve during the afternoon. She remained unresponsive and continued to moan. She vomited more. At about 17:30, while changing her Mrs P noticed what looked like a blotchy heat rash. It crossed her mind that this might be the rash she knew to be associated with meningitis and performed the ‘tumbler test’. The rash did not fade but did not resemble the florid rash she had seen on posters, so she was still uncertain. She decided to have C checked out and took her in her car to pick up her mother from work, then on to hospital. On the way, Mrs P noticed dark purple blotches on C's body, which spread during the journey, and considered her suspicions confirmed.
C was apparently treated as an emergency (though the triage notes – about which there was some debate at trial – recorded the lowest level of urgency, i.e. level 3). It was accepted that, in this respect, the notes must have been inaccurate. A diagnosis of meningococcal disease (MCD) was made. Urgent fluid resuscitation was carried out and the child was transferred to ICU. The Claimant's experts considered she was fortunate to survive which, to a great extent, was due to the high standard of initial resuscitation, though she sustained extensive tissue damage including extensive and disfiguring scarring, a significant leg length discrepancy and impaired walking with bone and joint destruction around both knees. There remains the possibility that she will develop cognitive impairment and psychological problems.
There was a trial of liability only, in April 2008, before Mr Justice Henriques. Judgment on liability was given on 25 April 2008 and on costs on 6 June 2008.
At the heart of the case was a straight conflict of factual evidence. If Mrs P's account was correct, both GP experts agreed that Dr W had performed an inadequate examination and should have arranged for urgent admission to hospital. If Dr W's account was correct then it was not substandard to fail to refer.
There were five causation experts: a general paediatrician, a neuroradiologist and a professor of infectious diseases for the Claimant; and a paediatrician specializing in infectious diseases and a professor of microbiology for the Defendant. The neuroradiology evidence was agreed, though there was a live issue up until trial as to whether C had had meningitis or MCD without meningitis.
The Defendant's experts took the view that the notes made at the hospital were wholly inconsistent with Mrs P's account and that this meant it was unlikely to be true. On their reading, the notes described a child who did not have any impairment of consciousness nor any reduced responsiveness, so C could not have been both as ill as described by Mrs P that morning, and as apparently well as described in the notes at the hospital. The Defendant's experts' joint view was that a child with MCD does not have fluctuating levels of consciousness. They also did not accept the Claimant's experts' views that fluid resuscitation could improve the level of responsiveness to a significant degree. Great emphasis was placed on the words ‘lively’, ‘alert’ and ‘vigorous’ which occurred in the hospital notes, but it transpired that none of the entries containing these descriptions were contemporaneous and some were made by nursing as opposed to medical staff, often in retrospect. In particular, there was no contemporaneous medical description of C's state of consciousness on arrival at hospital nor at any other time before the extremely vigorous fluid resuscitation took place.
The only evidence on this point was the factual evidence of C's mother and grandmother. Both described in detail, and with some emotion in the witness box, C's condition during the car journey to hospital and before and during the fluid administration. There were a number of attempts to insert lines, including in C's groin. Three arterial samples were taken. Both witnesses described in their statements and to the Court, the child's distress in response to the painful stimuli.
The Claimant's experts made the point that the level of stimulation being applied needed to be taken into account when measuring the degree of responsiveness.
The Defendant had no recollection of his examination but relied on his usual practice to support his case that a full and proper examination had taken place. The essence of the Defendant's case was that if C had been as ill as Mrs P described he couldn't possibly have missed it (described at trial as the ‘barn door’ argument). Further, it was argued that MCD is rapidly progressive and it was likely that C did not become seriously ill until later that afternoon, well after the appointment with Dr W. Thus, the Defendant's case was Mrs P was not so concerned as she stated in the morning and only became concerned about meningitis after routinely taking C to pick up her mother from work as pre-arranged. The Defendant also argued that Mrs P's account could not be accurate because of the apparently lengthy time it took to reach hospital.
Lessons for doctors
After five days of evidence, the Judge found in the Claimant's favour. He found Mrs P's evidence to be ‘consistent and transparently honest’. He found it ‘inconceivable’ that with C's life apparently in the balance, mother or grandmother would give anything other than a truthful and accurate history. ‘All day just lay there’ and ‘rapid deterioration over last 24 hours’ as recorded in the hospital notes were, in his view, both descriptions indicating a positive deterioration in C's condition by the time of the consultation. He held this history could not reasonably have been given at hospital in contemplation of litigation, as the Defendant's team had tried to suggest.
He found that Dr W had not carried out an adequate examination. He commented on the inadequacy of the note (the failure to record an accurate history) though placed no weight upon this in reaching his conclusion. His view was the description given in the morning was of ‘a very poorly unresponsive child’. He did not accept the ‘barn door’ argument. C's condition was not blindingly obvious. He accepted the evidence of the Claimant's general paediatrician who had expressed the view that the key to deciding on the severity of illness that morning was the state of responsiveness. He had given evidence that in an adult it is not difficult to determine but in an infant it is much more difficult.
In particular, and this is the main lesson for doctors examining sick babies and children, the Judge found that Dr W did not take any or any sufficient steps to rouse C. In doing so, he accepted the evidence of the Claimant's GP expert who had said that it is absolutely necessary to wake up a sleeping child and that the child is not innocently asleep unless you find out. He did not consider that Dr W handled C sufficiently to assess her responsiveness. In his view Dr W did not have the necessary degree of suspicion which the history should have created. The GP experts had agreed that the index of suspicion should have been raised by the fact that Dr W was the third GP to see C during her illness. Further they had agreed that moaning is a sign of a very sick child and that unresponsiveness is a sign of MCD. The Judge held that the necessary history was given by Mrs P. He held that it was not feasible that a history materially different from that given at hospital 9 hours later would have been given to Dr W.
While placing no weight upon it, he found that the hospital notes as to the time of arrival were likely to be inaccurate and accepted the evidence of the Claimant's general paediatrician in this respect. He did not find the descriptions of C's state in hospital to be inconsistent with Mrs P's account. He accepted that with MCD states of responsiveness can fluctuate, notwithstanding the downward trend and that fluid resuscitation can improve the level of responsiveness. He was struck by the evidence of the Claimant's infectious diseases expert regarding a statistical survey which demonstrated that the median interval between carers observing any symptoms and a rash appearing was 8 hours. This case fell comfortably within this time frame. He accepted the evidence of the same expert that the timing of the rash is no guide to the time when other symptoms may be detectable.
Lessons for lawyers
The contents of the medical records were important in this case. Nothing however was as important as how C's grandmother was as a witness. The Defendant had not had the benefit of meeting her nor of assessing her credibility. The Defendant's team appeared to focus on the reasons why her account could not be accurate and concentrated on pursuing lines of argument based on apparent inconsistencies within the hospital records and between the factual witnesses themselves. They did not seem to accept that there were explanations for the inconsistencies which were more likely than that Mrs P was dishonest or misguided. In failing to negotiate before trial or after closing submissions they were apparently not prepared to concede the possibility that Mrs P might be telling the truth and that the Judge would find her to be honest.
The contents of a letter of complaint sent to the GP's practice soon after the events and the response were dealt with at trial. The Judge found the complaint letter to be consistent with the account given by the lay witnesses as to the events on 27 January 2001. To the extent that there were inconsistencies between the letter of complaint (sent on behalf of C's mother) and Mrs P's account, he held this did not affect his view of the latter's credibility. He noted that Dr W's response at the time gave the impression that he could remember the consultation (which did not accord with his evidence at trial). Further, it may have given the impression that he had specifically looked for signs of MCD/meningitis (though his evidence at trial was that it was not his routine practice to look for such signs when the putative diagnosis is one of URTI).
It is often difficult for Claimant's lawyers to assess the risks of success in a case which turns on factual evidence. Throughout, the Claimant's legal team had taken the view that Mrs P was a credible and consistent historian who was likely to make a good witness. The Defendant had no recollection of his examination, though in his statement he did not concede that it had been substandard in any way. In recognition of the risk that the Court might accept the Defendant's evidence, a Part 36 offer to settle the case on an 80% liability basis was made. The Defendant did not respond to this offer, nor to an offer of 75% made after closing submissions.
The Judge held that the Defendant had failed to beat the Claimant's offer and that indemnity costs should be awarded to the Claimant from the date of the Part 36 offer (thus covering all of the costs of trial). He did not accept the Defendant's argument that it was necessary that there be a determination of issues of fact by the Court.