Abstract
Mr Patrick Barrett, aged 59, underwent bowel surgery (anastomosis) on 17th August 2006. He died on 30th September that year, owing to a leak of bowel content leading to sepsis. It was claimed that there was a negligent failure to deal with the complication, and that had the problem been dealt with earlier, Mr Barrett would have survived. Both the widow (who was a qualified nurse) and members of the family were highly critical of the attitude, attentiveness and competence of the medical and nursing staff attending the ward on which Mr Barrett was cared for post-operatively. No criticism was made of the operation.
The primary allegation was of a failure to detect and deal adequately with indications that the anastomosis had leaked. It was claimed that the patient should have been sent for an ultrasound, and then a CT scan on 23rd, 24th or 25th August, followed by an operation on 25th at the latest. The trust argued that Mr Barrett's condition did not deteriorate to the point where scanning was warranted until the 27th August and even then, scanning was not required urgently (an ultrasound was not in fact performed until 29th, owing to the intervention of a bank holiday weekend). That scan did not reveal evidence of an anastomotic leak or the consequences of such a leak, and the trust's case was that the leak occurred subsequent to the ultrasound scan.
The period between 22nd and 30th of August was of critical importance to the issue of breach of duty.
Mrs Barrett's evidence included a hand-written notebook, a typewritten account and emails reporting progress to others. Of these, the notebook was the most nearly contemporaneous. These records contained numerous assertions of inadequate care.
Mrs Barrett at various times enlisted the assistance of her GP and a solicitor to try and persuade hospital staff to focus greater attention on the condition of her husband.
Held: It would not be entirely surprising to hear that the staff resented the amount of time which they were being asked to devote to the patient. It would also be amazing to find that the reviews, which such contacts plainly stimulated, were not carried out in a proper fashion, having regard to the weight and quality of requests being made. It must have been plain to the medical and nursing staff that their performance was being watched closely by several people whose professional expertise would enable them to make cogent criticism of them, whether or not the outcome was good. It was wholly improbable that even resentment would cause the staff to under perform. They had every reason to avoid informed criticism.
The judge proceeded through the chronology in great detail. Key events were as follows: at 06:00hrs on 22nd August, Mr Barrett's catheter was removed. That evening, his temperature spiked at 38.3 degrees Centigrade and he was therefore recatheterized. The SHO made a diagnosis of infection – source unknown. He found no evidence of peritonism. On 23rd, Mr Barrett had improved significantly. The consultant, Mr Deans, was on leave from 24th to 30th.
On 26th August, Mrs Barrett called in her GP, Dr McKay, who attended hospital and observed the patient. He told a Registrar that he had concerns about the possibility of intra-abdominal sepsis. The Registrar said he would discuss matters with the consultant on call and arrange for a scan, but explained that that would not take place until after the bank holiday. The GP was asked whether he wanted to insist on a scan that day and Dr McKay replied that if it was the opinion of the Registrar that this was not medically indicated, then he was prepared to trust that judgment.
The ultrasound scan took place on 29th August. The outcome was inconclusive and the note in the records was: “if continues to spike temp? for CT scan”.
On 30th, Mr Barrett underwent a very significant and rapid deterioration in condition. A CT scan was undertaken urgently, which revealed evidence of peritonitis. An operation was immediately performed, but Mr Barrett died on 30th September.
The claimant's surgical expert was Mr John Scurr. He considered that Mr Barrett had developed a small leak on 22nd August, and that the anastomosis had failed to heal fully because of a compromised blood supply. A symptom of this, in his view, was the spike in temperature on 23rd August. He believed that scanning should have occurred immediately afterwards and he criticised the interpretation of the ultrasound on the 29th which, in his opinion, had missed significant intra-abdominal pathology. He considered that the radiologist had been looking at the anterior wall and not specifically for intra-abdominal problems.
In Mr Scurr's opinion, a CT scan on 23rd or 24th would have shown evidence of an anastomotic leak, which would have prompted further surgery. In his view, if Mr Barrett had undergone surgery at any stage up to and including 27th August, he would not have developed extensive peritonitis and would have survived.
The judge observed that Mr Scurr was not an expert radiologist and that in the absence of independent expert radiological advice, it appeared that Mr Scurr had endeavoured to fill that gap himself.
The ultrasound scan on 29th was reported on by Dr Demaine, who had been a consultant radiologist since November 2005. His observations included the following: “no pelvic abscess or parastomal collection. No free fluid.”
Held: It was clear that the Trust's radiologist had applied his mind to the question of whether there was evidence of free fluid in the abdomen and had satisfied himself that there was not. The report showed that Mr Scurr's suggestion that the radiologist had limited his search area was without foundation.
The CT scan on 30th August was reported upon by Dr Keeling-Roberts, a consultant radiologist at the hospital since 1985. He observed evidence of an anastomotic leak, with a localised pre-sacral collection as well as extensive free gas and fluid within the peritoneal cavity.
Mr Scurr had contrasted these findings with the relatively innocuous ones arising from the ultrasound scan the previous day. This, to him, implied that the radiologist reporting on the ultrasound scan had missed significant pathology. However, under cross-examination, Mr Scurr accepted that if an anastomosis collapsed, allowing massive contamination, it could lead to peritonitis quite quickly.
Held: there was no reason to doubt the general competence of either Dr Demaine or Dr Keeling-Roberts. There was no evidence, beyond Mr Scurr's opinion, as to the timescale for the development of an abscess and free fluid, to suggest that Dr Demaine failed to detect either at the time of the ultrasound scan. It was more likely than not that on the afternoon of 29th August, Mr Barrett was not harbouring either an abscess or free fluid in his abdomen.
That being the case, the theory of an early undetected leak, mandating a CT scan as proposed by Mr Scurr, was unfounded. CT was not indicated and had it been undertaken, it probably would not have revealed the circumstances or material which demanded and led to laparotomy, following the CT undertaken on the 30th August.
The opinion of the defendant's expert witness, Mr J A R Smith, was to be preferred. He was a recently-retired consultant general surgeon, who had published several works directed at post-operative complications and their treatment (including gastrointestinal operations) and abdominal infection. Mr Smith had significantly greater experience and academic knowledge in the specialist area of colorectal surgery, and the detecting of its complications than did Mr Scurr.
Mr Smith was of the opinion that there was nothing in the clinical records until the ultrasound was performed, on 29th August, to suggest that an urgent scan was indicated. Furthermore, the scan on 29th showed no evidence of any collection either in the wound or elsewhere in the abdominal cavity. Indeed, by the 27th, Mr Barrett was feeling much better and had not vomited.
Mr Smith's evidence was that surgical intervention was to be avoided if possible, because the surgeon would be operating on friable tissue and a Hartmann's procedure, as performed on 30th including temporary colostomy, might not be reversible. In his opinion, there was no need for emergency surgery before the very obvious deterioration in Mr Barrett's condition which occurred on 30th.
Held: Mr Smith provided a strong rebuttal of Mr Scurr's proposition that Dr Demaine had mistaken an abscess the size of a full bladder for the bladder. Mr Smith was of the view that the early temperature spike had been bacteraemia (in the urinary tract), by contrast with the later septicaemia (which was colonic). Mr Smith rejected the proposition advanced by Mr Scurr that it was possible to have a “silent” abscess or even a silent leak.
Held: It was more likely than not that a significant leak did not occur until after the ultrasound scan on 29th, and that it was not negligent to defer such a scan until 29th, albeit called for earlier. It was not negligent to fail to carry out ultrasound and CT scans before they were in fact carried out. It was more likely than not that there was no free fluid, abscess or gas in the abdomen on 29th at the time of the ultrasound scan.
The claim would accordingly be dismissed.
Gavin McBride (instructed by Linder Myers) appeared for the widow. Michael Smith (instructed by Hill Dickinson) appeared for the trust.
Comment
This was a very sad case. The widow, a qualified nurse, was clearly extremely perturbed at what she perceived as inadequate levels of care given to her husband post-operatively. Nevertheless, the judge was obliged to assess the case on Bolam principles, and he was satisfied that the defence expert had far greater relevant experience and knowledge than the expert called by the claimant. Hence, since Mr Smith's view was in accordance with a reasonable body of professional opinion at the time, the claim failed.