Clinical Risk >
Volume 14, Number 6 >
Pp. 243-246
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||
AvMA Medical & Legal Journal |
Blake Lapthorn
Doughty Street Chambers, and
Crown Office Chambers
On 26 January 2001, the Claimant aspirated her vomit leading her to suffer a cardiac arrest causing hypoxic brain damage while a patient on the renal ward at St Mary's Hospital, Portsmouth. She had been transferred there that same day from the Intensive Treatment Unit (ITU) at Queen Alexandra Hospital, Portsmouth where she had been since 14 January 2001. Between 9 and 14 January 2001 she had been treated at Royal Hospital Haslar, Gosport.
The case was heard by Mr Justice Foskett in the High Court in November 2007 where the trial was confined to issues of breach of duty and causation. Until shortly before trial in the High Court, the claim included allegations against those who treated the Claimant at Royal Hospital Haslar, Queen Alexandra Hospital and St Mary's Hospital. At the material time, Royal Hospital Haslar was managed by the Ministry of Defence, the first Defendant. Queen Alexandra Hospital and St Mary's Hospital were, and continue to be, managed by Portsmouth Hospitals NHS Trust, the second Defendant.
The case against the second Defendant was that the Claimant should not have been transferred from ITU at Queen Alexandra Hospital to the renal ward at St Mary's Hospital at the time she was and that further, when on the renal ward, she should have been more closely monitored. Following late disclosure by the second Defendant of ITU charts which had initially been misplaced, and a meeting of intensive medicine experts, the Claimant's legal team opined that there was no realistic prospect of establishing the case against the second Defendant. At the outset of the High Court trial, with the Court's approval, the claim against the second Defendant was dismissed by consent, with no order as to costs.
The case against the first Defendant, the Ministry of Defence, remained. The Claimant argued that her negligent treatment while at Royal Hospital Haslar over a period of around 20 hours on 11 and 12 January 2001 left her so significantly weakened that it ‘caused or materially contributed to’ her inability to prevent aspirating her vomit, leading to the cardiac arrest and consequent hypoxic brain damage, on the renal ward at St Mary's Hospital on 26 January 2001 and that this was the correct test of causation to apply.
The Claimant had been admitted to Royal Hospital Haslar on 9 January 2001 following an ultrasound scan on 5 January 2001 which showed a markedly dilated common bile duct at the head of the pancreas where it was thought there was a gallstone. Late afternoon on 11 January 2001, Consultant Surgeon Wing Commander (now Group Captain) Watkins performed an endoscopic retrograde cholangiopancreatography (ERCP) to explore and treat the gallstone.
Drawing in part from the evidence of Dr Ryan, an intensive medicine expert who was instructed on behalf of the Claimant, her care is summarized as follows:
‘Paragraph 20: It is C's case that [the first Defendant], by Wing Commander Watkins:Paragraph 25: As a result of the failures listed [above]:
- failed during the ERCP or thereafter to insert a stent to drain C's biliary system;
- failed adequately or at all to monitor C's condition postoperatively;
- failed adequately or at all to resuscitate C postoperatively;
- failed to transfer C to the HDU postoperatively;
- failed immediately or on 12.1.01 (or at the latest on 13.1.01) to intervene surgically by way of laparotomy:
- to investigate and treat C's internal bleeding;
- to remove the gallstones causing C's obstruction.
Paragraph 26: C suffered her injuries when she vomited at about midnight on 26.1.01 on the Renal Ward, and then aspirated the vomit. The reason why she aspirated was her extreme weakness as a result of her lengthy illness. Dr Ryan in his supplemental statement has set out his view of the mechanism of developing weakness as a result of the process of catabolism.
- C became very much more ill after the first procedure than she would otherwise have been;
- C underwent additional procedures which should have been avoided. In all, following the original ERCP, she underwent: (i) a gastroscopy on 14.1.01, (ii) a PTC on 15.1.01, (iii) a laparotomy in the early hours of 16.1.01, and (iv) a further laparotomy on 19.1.01. It is accepted that one further procedure would probably [have] been undertaken as set out above, but it would have been only one, and it should have been carried out on or around 12.1.01;
- the laparotomy which was undertaken as an emergency in the early hours of 16.1.01 was a very much more serious operation than a planned laparotomy taking place immediately after the ERCP or on 12.1.01 or 13.1.01 would have been, undertaken when C was in a significantly more weakened condition than she would have been. C very nearly died then;
- because of the massive bleeding caused at the PTC, and the packing of the liver that this necessitated, a second laparotomy had to be undertaken on 19.1.01. This is an episode of major surgery which C would otherwise have avoided;
- although C would probably have developed pancreatitis and renal failure in any event, they would have been less severe and C would have been in a much fitter state to combat them;
- although C would probably have required to go into the ITU, she would not have required prolonged haemofiltration and would not have needed to be discharged to the Renal Ward;
- C would have spent less time on the ITU and would thus have become less exhausted.
Paragraph 27: C's case is that if she had been properly treated for the removal of her biliary obstruction, and with proper postoperative management, the probability is that she would not have become as ill as she did, and would have recovered sooner, with the result that she would not have been so weak that she aspirated on 26.1.01 – leading to her cardiac arrest and the consequent hypoxic brain damage.’
The first Defendant argued that the Claimant could not establish a sufficient causal link between negligence at Royal Hospital Haslar and the events and injury she suffered at St Mary's Hospital approximately two weeks later, on 26 January 2001. The first Defendant argued this upon the basis that the question of causation was not one of ‘contribution to risk or occurrence’; rather, the correct test should be ‘the normal unmodified requirement that the alleged failure should have caused the harm, so that without it the damage would not have occurred’.
Citing Wilsher v Essex Area Health Authority [1988] 1 AC 1074, the first Defendant contended that adding another risk to risks which might also cause harm did not prove causation. The Claimant had to prove that but for the lack of care, she would not have suffered brain damage; otherwise her case would fail.
Foskett J rejected this view. He quoted Lord Bridge in Hotson v East Berkshire Area Health Authority [1987] AC 750 at page 783, considering Bonnington Casting Ltd v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1. He then considered Fairchild v Glenhaven Funeral Services Ltd [2005] 2 AC 173. Rejecting the view that the ‘but for’ test of causation was the appropriate one in this case, Foskett J ruled that the correct test was whether the negligence had ‘caused or materially contributed to’ the injury.
He found the first Defendant liable for the Claimant's brain damage. At paragraph 17 of the Court of Appeal judgment, Lord Justice Waller helpfully summarized Foskett J's reasoning as being:
‘(1) if appropriate care and resuscitation had been provided after the procedure on 12 January the Claimant would have been fit to have, and have had, a further procedure on the 12 January [to confirm whether the biliary blockage had been removed and whether the bleeding had stopped – author's addition] which would have saved all, or at least some, of the traumatic and life-threatening period and procedures which she had to endure on 15 to 19 January; (2) that would have avoided the considerable weakening of the Claimant, which resulted and which was occurring in addition to any debilitation arising from her pancreatitis; (3) the physical cause of her aspiration and subsequent cardiac arrest was her weakness and inability to react to her vomit; (4) there were two contributory causes of that weakness, the non-negligent cause pancreatitis, and the negligent cause, the lack of care and what flowed from that; and (5) since each ‘contributed materially’ to the overall weakness, and since the overall weakness caused the aspiration, causation was established.’
 | Court of Appeal |
|---|
 Top Court of Appeal |
|---|
Detailed consideration was given to the question of what caused the Claimant to aspirate her vomit, and to what extent, if any, this was due to lack of care while at Royal Hospital Haslar. Her medical history was examined in depth.
The Court of Appeal distilled the Claimant's medical history into two key ‘live’ and interlinked aspects:
The first Defendant contested the conclusion of the High Court that without the period of lack of care following the ERCP and resulting unfitness to undergo more surgery the following morning, the Claimant would have undergone a further procedure on 12 January 2001. The Claimant's evidence was that this procedure would have confirmed whether or not the biliary blockage had been cleared, if bleeding from the sphicterotomy site were continuing and it would have addressed both. The Claimant had provided evidence which demonstrated that the biliary system was in fact still blocked.
The first Defendant contended that the Claimant's lack of fitness did not preclude a further procedure. Rather, this was not performed because Wing Commander Watkins thought that this was not necessary; he believed that the biliary obstruction had been relieved and that the Claimant's presentation was explained by the combination of acute pancreatitis and renal failure. However, Foskett J was not asked by the Claimant to consider the outcome of a Bolam balancing exercise of professional judgement based upon what Wing Commander Watkins was faced with by that morning. He was asked instead to assess what would have happened if the Claimant had been properly resuscitated in the preceding period, as she should have been.
The Court of Appeal dismissed this ground of appeal on the basis that the Judge was entitled to conclude as he did; that if the Claimant had been properly resuscitated and cared for following the ERCP, she would have undergone further surgery.
In his judgment, Foskett J considered the question as to why the Claimant aspirated her vomit and had not acted in the normal way, by coughing and clearing her airway, to prevent this. Dr Ryan had stated that it was her weakened condition as a result of catabolism that had led to this. In his initial report, he had stated that the Claimant's inability to ‘swallow and thus protect the airway’ would have been disabled and he explained how the epiglottis or larynx could weaken, leading to this. Foskett J was mindful, however, that this particular physically detailed argument had not previously been developed in written evidence and so was unwilling to accept it without further supporting evidence.
Foskett J did accept however, at paragraph 54 of his judgment that ‘because it seems to me to be a common sense assumption, ... that the Claimant's generally weakened and debilitated condition on 26th January caused her not to be able to respond naturally and effectively to the emergence of vomit from her gut with the consequence that she inhaled it. The question then arises as to whether ... the negligence that occurred on the 11th and 12th January caused or materially contributed to her inability to deal with the vomiting in this way. Is there a sufficient causal link between that overall weakness and the established negligence ...?’ As summarized by Waller LJ in the Court of Appeal, Foskett J found that the physical cause of aspiration and subsequent cardiac arrest and brain damage was the Claimant's weakness and inability to react to vomit. He found that there were two contributory causes of the Claimant's weakness; the negligent cause (lack of care) and the non-negligent cause (pancreatitis) and since each materially contributed to the overall weakness which led to the aspiration, causation was proved.
On appeal, the first Defendant contended that there was no evidence linking the negligent lack of care with the vomiting and aspiration and their consequences. It was argued that this was particularly the case as Foskett J had declined to adopt the detailed physical argument of Dr Ryan in relation to the weakening of the epiglottis and larynx. The first Defendant instead put this down to the non-negligent complication of pancreatitis; this had been dealt with in the medical evidence.
The Court of Appeal noted, as had Foskett J, the force of the first Defendant's argument in highlighting potential weaknesses of Dr Ryan's evidence as to the Claimant's inability to ‘swallow and thus protect the airway’ and the wasting of the epiglottis and larynx.
The Court of Appeal had to then consider whether, irrespective of this, Foskett J was entitled to make the ‘common sense assumption’ as to the Claimant's overall weakness above, which led to his finding against the first Defendant. It was apparent to the Court of Appeal that the circumstances of the Claimant's case were so unusual that it was not possible within medical science to draw upon comparable incidences in the published medical literature. Dr Ryan had produced medical literature in the High Court trial that demonstrated losses of muscle mass of over 25% in patients when they had been seriously ill and required treatment on an intensive care unit. This explained the biological processes at work but, of necessity, Dr Ryan's evidence had to be empirical; this being acknowledged in the Court of Appeal.
The Court of Appeal found at paragraph 34 of the judgment that: ‘If all that is necessary is "a material contribution" and if, for that material contribution to be established, it is sufficient to establish a contribution which is more than negligible then it seems to me that the judge's conclusion cannot be faulted...’ The third ground of appeal, linked to some degree to the second, was then considered.
The first Defendant submitted again on appeal that the correct test in establishing causation was the ‘but for’ test. In other words, the Claimant must fail unless she could prove that ‘but for’ the first Defendant's negligence, she would not have suffered her injury. The first Defendant relied on pancreatitis being the most likely cause of injury.
Rejecting the view that the ‘but for’ test of causation was the appropriate one in this case, Foskett J had ruled that the correct test was whether the negligence had ‘caused or materially contributed to’ the injury. The issue as to whether Foskett J had been entitled to depart from the ‘but for’ test fell to be considered by the Court of Appeal.
The Court of Appeal considered cases where the strict ‘but for’ test had not been applied. It considered Fairchild v Glenhaven Funeral Services Ltd [2005] 2 AC 173, where the House of Lords accepted that liability could be founded against all those who had ‘contributed to the risk’ of injury, even if only one Defendant could actually have been causative. McGhee v National Coal Board [1973] 1 WLR 1 was also considered. Here, the Court took a broad view of causation and, allowing the appeal, Lord Reid concluded that ‘[f]rom a broad and practical viewpoint I can see no substantial difference between saying that what the defender did materially increased the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury’.
The Court of Appeal considered in depth the cumulative cause case of Bonnington Casting Ltd v Wardlaw [1956] AC 613 where it was found that ‘breach of duty caused or materially contributed to the injury’ and liability was accordingly established.
Having considered these cases, Waller LJ opined that Lord Rodger's view in Fairchild was correct; namely that in cumulative cause cases, such as Wardlaw, the ‘but for’ test is modified. He then questioned whether there were medical negligence cases to suggest that Wardlaw should not be applied in this context.
At paragraph 46 of the judgment, Waller LJ found that no distinction could be drawn between medical negligence cases and others and summarized the position in cumulative cause cases as:
‘If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the Claimant will have failed to establish that the tortious cause contributed. Hotson exemplifies such a situation. If the evidence demonstrates that "but for" the contribution of the tortious cause the injury would probably not have occurred, the Claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that "but for" an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the "but for" test is modified, and the Claimant will succeed.’
Dismissing the appeal, the Court of Appeal concluded that the cumulative causes in this case had caused a weakness and so Foskett J had applied the correct test and was entitled to reach his conclusion.
CiteULike 
Complore 
Connotea 
Del.icio.us 
Digg 
Reddit 
Technorati What's this?
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||
