FB v Princess Alexandra Hospital NHS Trust, Court of Appeal - Civil Division, May 12, 2017, [2017] EWCA Civ 334

Issuing Organization:Civil Division
Actores:FB v Princess Alexandra Hospital NHS Trust
Resolution Date:May 12, 2017
 
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Case No: 2015/1983

Neutral Citation Number: [2017] EWCA Civ 334

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM MR JUSTICE JAY

[2015] EWHC 1536

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 12/05/2017

Before :

LORD JUSTICE JACKSON

LADY JUSTICE KING

and

LADY JUSTICE THIRLWALL

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Between :

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Ms Elizabeth-Anne Gumbel QC (instructed by Attwaters Jameson Hill) for the Appellant

Mr John Whitting QC and Mr Alasdair Henderson (instructed by Kennedys Law LLP) for the Respondent

Hearing dates: 1st and 2nd March 2017

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JudgmentLADY JUSTICE THIRLWALL :

  1. This is an appeal against an order of Jay J dismissing the appellant's claim in negligence against the respondent hospital at the end of a trial on liability. The respondent was the second defendant to the appellant's claim in negligence. There is no appeal against the judge's dismissal of the claim against the first defendant, a GP in a local out-of-hours service.

  2. Jay J made an order for anonymity for the appellant and her mother and litigation friend. We made an order in the same terms at the outset of the hearing of the appeal. In this judgment I shall refer to the appellant as FB and to her mother as WAC.

  3. FB was born on 14th August 2002. She became unwell on 18th September 2003. On the evening of 29th September she was admitted to the hospital. She was very ill. On 1st October 2003 she was transferred to Great Ormond Street Hospital where a diagnosis was made of pneumococcal meningitis and multiple brain infarcts. FB recovered but she had sustained permanent damage to her brain; she has learning difficulties and is profoundly deaf.

  4. The trial concerned the medical care FB received in the days running up to her admission. On 27th and 28th September her mother contacted the out-of-hours GP service several times and FB was examined by a number of doctors, including the first defendant who examined her at home at around 10pm on 28th September. Nothing now turns on any of those examinations and I record only that they occurred at the instigation of WAC.

  5. This appeal arises out of the judge's findings and conclusions about the conduct of Dr Rushd, a Senior House Officer (SHO) who saw FB in the Accident and Emergency (A&E) Department of the hospital early in the morning of 29th September 2003.

  6. It was the appellant's case that Dr Rushd was negligent in:

    i) failing to take an adequate history and

    ii) failing to conduct an adequate examination.

    Had she performed either task to the standard of a competent SHO she would have been bound to refer FB to the paediatric team. Instead she discharged her. It was agreed that had FB been referred to the paediatric team she would have been given antibiotics by 9am on 29th September. The antibiotics would have prevented the spread of the infection and FB would not have suffered any injury. The issue at trial therefore was breach of duty. The judge found that there was no breach in respect of either history taking or examination. Both conclusions are challenged in 10 Grounds of Appeal and in a detailed skeleton argument. The oral submissions were directed principally to the conclusion on history taking but in order properly to consider those submissions it is necessary to set out the judge's findings of fact and his approach to the standard of care.

    The facts

  7. I take the facts from the judgment.

  8. Between 4.00am and 4.24am on Monday 29th September, WAC telephoned the out-of-hours service and spoke to the triage nurse. As a result of what she said the triage nurse called the ambulance service. The nurse told the ambulance control room that FB was presenting with ``temperature ...up to 40 she is rolling her eyes and her breathing is a little bit erratic''. WAC confirmed that information when she spoke directly to ambulance control.

  9. An ambulance was dispatched immediately, it arrived at 4.32am. The paramedics recorded, amongst other things ``Mum says patient v lethargic. O/E patient eyes rolling not coordinated''. There was some discussion about the correct interpretation of that entry during the trial. The judge found that the paramedics had not seen the eyes rolling but that they were repeating what the mother told them she had seen. Nothing turns on this. Having considered the mother's evidence about FB's presentation at that time (see paragraph 49 of the judgment) the judge found that ``FB did not suffer a convulsion in the precise technical sense of the term, but it is probable that her eyes did appear to roll, or lose control, for a period of time and in a manner which was extremely worrying.'' He concluded, ``Accordingly I have no doubt that this is what prompted the further call to the out-of-hours service and the arrival of the ambulance.''

  10. At 4.45am, the ambulance arrived at the hospital under a blue light. At 4.50am, the triage nurse assigned to FB green status. This was the second of four levels of status representing escalating levels of concern. The judge records that the ``NT Discriminator'' was ``atypical behaviour''. According to the Manchester Triage scales, the former means ``a child behaving in a way that is not usual in the given situation ... Such children are often referred to as fractious or `out of sorts'.'' According to the nursing note timed at 04:50: ``Patient brought in by ambulance....''.

  11. The judge found that Dr Rushd began the consultation, which took about 25 minutes, at around 5.20am. Dr Rushd wrote up her notes afterwards, beginning at 5.48am. She recorded, amongst other things: ``Impression-Upper Respiratory Tract Infection''. I shall return to the detail of the examination later in the judgment. FB was discharged at 5.55am.

  12. FB's condition worsened and that afternoon WAC contacted the GP. She examined FB and immediately called an emergency ambulance. At 5.53pm, FB arrived back at the hospital, was seen by a triage nurse who referred her straight to the paediatricians. After a delay (which the experts agreed was not material) she was examined, antibiotics were administered and the illness took the course I have already described.

    The records

  13. As the judge records, according to Dr Rushd's witness statement it was normal practice for the ambulance records and the paramedic records to be attached to the triage nurse's notes. She said that when she saw FB she ``would have had available to [her] the A&E front cover sheet already completed by the triage nurse which included basic patient details including name, address, GP name, and time of arrival in A&E. This indicated that FB had arrived in A&E with her mother at 4.48am with a presenting complaint of pyrexia/unwell. This front sheet was placed in a small booklet with any ambulance record attached. The booklets were then prioritised by the triage nurse for review by the A&E SHO.'' Later in her statement she said ``I can see that I obtained a history from FB's mother and this suggests that I was not aware that FB had arrived by ambulance and nor had I seen the ambulance patient report form with any observations by paramedic staff''.

  14. At trial Dr Rushd said in terms for the first time (and the judge accepted in his judgment) that the ambulance, paramedic and triage notes were not with the A&E front sheet. The judge gave Ms Whipple QC time to consider whether she wished to amend the pleadings to include an allegation of negligence against the hospital for failing to include the notes with the papers to be seen by Dr Rushd. Counsel did not apply to amend the pleadings. The judge observed that this was the right strategic decision since he would not have allowed the amendment.

  15. Whatever the pleaded case, the failure to make this important information available to the doctor has not been explained. It is not easy to see how it might be excused.

    The consultation

  16. Dr Rushd's evidence about the way she took the history from the parents is set out at paragraph 76 of the judgment. It was her practice to begin a consultation with an open ended question along the lines of ``why are you here?'' and then if necessary ask follow up questions. Her detailed notes, which are reproduced in full in the appendix to this judgment, record, amongst other things, a four day history of a raised temperature, vomiting, no diarrhoea etc. She also physically examined FB. The judge found that the notes may not have reflected the order in which information was given, the notes being written up in a structured way. He observed that there were a number of errors but considered these minor or immaterial and he accepted that there had been an apparently thorough examination of FB by Dr Rushd which led her to conclude that this child had an upper respiratory tract infection ``which was a common diagnosis in a child of her age in the autumn months''. She therefore advised the use of Calpol and Nurofen to keep FB's temperature under control and advised FB's parents to return if FB started vomiting, not tolerating oral fluids or developed a non blanching rash.

  17. The judge expressly recorded Dr Rushd's evidence that children with this type of presentation were seen by her in A&E at least once a day, and several times a night.

  18. Dr Rushd had said in her witness statement and repeated in evidence that if WAC had said that her child's eyes were not tracking or were uncoordinated she would have recorded it but ``that on its own...

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