Bailey v Ministry of Defence and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE FOSKETT |
| Judgment Date | 18 December 2007 |
| Neutral Citation | [2007] EWHC 2913 (QB),[2007] EWHC 3249 (QB) |
| Docket Number | Case No: TLQ/07/0236,TLQ/07/0236 |
| Court | Queen's Bench Division |
| Date | 18 December 2007 |
[2007] EWHC 2913 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Foskett
Case No: TLQ/07/0236
Mr Christopher Gibson QC and Mr Paul Dean (instructed by Blake Lapthorn Tarlo Lyons Solicitors) for the Claimant
Mr Derek Sweeting QC (instructed by The Treasury Solicitors) for the First Defendant
Miss Fiona Neale (instructed by Beachcroft Solicitors) for the Second Defendant
Hearing dates: 12, 13, 14, 15, 16 November 2007
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE MR JUSTICE FOSKETT
Introduction
On 26 January 2001, when an inpatient on the renal ward at St Mary's Hospital, Portsmouth, the Claimant suffered a cardiac arrest that caused her to suffer hypoxic brain damage.
For the previous twelve days she had been an inpatient in the Intensive Therapy Unit (ITU) at the Queen Alexandra Hospital, Portsmouth, to which hospital she had been transferred following treatment at the Royal Hospital Haslar in Gosport.
The Claimant is now seriously disabled and, if it is established that the brain damage she suffered arose from negligence, she will recover substantial damages. The trial before me has been confined to the issues of breach of duty and causation.
Until shortly before the trial the claim advanced on her behalf embraced allegations against those responsible for her treatment at the Royal Hospital Haslar (at the material time it being managed by the First Defendant, the Ministry of Defence) and against those responsible for her care at the Queen Alexandra and St Mary's Hospitals (for which the Second Defendants, the Portsmouth Hospitals NHS Trust, are and were responsible).
The essence of the case against the Second Defendants was that Claimant should not have been transferred from the ITU to the renal ward when she was and that once there she should have been more closely monitored than she was. Mr Christopher Gibson QC, representing the Claimant, explained to me at the outset of the trial that following (i) the eventual disclosure of the large ITU charts that the Second Defendants had been unable to find initially and (ii) the meeting of the experts in intensive medicine, he and the team advising the Claimant's family took the view that there was no realistic prospect of establishing the case against the Second Defendants. Against that background, and subject to the Court's approval, it was agreed that the claim against the Second Defendants should be dismissed with no order as to costs. After the background was explained to me, I approved that course.
The Claimant's case against the First Defendant was maintained. I will say more about it in detail shortly, but in essence it is that the alleged negligent treatment whilst at the Royal Haslar Hospital left her so significantly weakened that it caused or materially contributed to the cardiac arrest.
The First Defendant has accepted certain criticisms of the care and treatment at the Royal Haslar Hospital, though not all levelled against it, but has argued that the Claimant cannot establish a sufficient causal link between any negligence that may have been admitted or established and the eventual cardiac arrest some two weeks later.
More detailed background
The Claimant was aged 35 at the time of the material events and was engaged to be married to Mr Shawn East. She and Mr East went to Kenya on holiday between 24 September and 9 October 2000. Although otherwise healthy she had been experiencing some stomach upsets during the earlier part of the year. Following her return from Kenya, where she had had some gastric problems, she appeared jaundiced and continued to experience further gastric difficulties. The overall working diagnosis during November and December of those who saw her at the Royal Hospital Haslar where she had been referred was of infective hepatitis. This working diagnosis was not substantially criticised during the trial and the clinicians may have been thrown off the scent by the holiday in Kenya. However, by early January 2001, with things getting progressively worse, attention was being focused on the possibility of gallstones having been the cause of the problem.
Bile, which is made in the liver, is stored in the gall bladder awaiting the ingestion of food. When food is ingested bile is exuded from the gall bladder into the main bile duct and passes along that duct into the duodenum. Gallstones occur when stones are formed in and from bile. Often they are entirely benign, remain within the gall bladder and cause no symptoms. However, they can be dislodged and if a gallstone becomes lodged in the bile duct such that bile cannot pass into the gut it passes into the blood stream leading to jaundice. The yellow staining of the tissues that is the hallmark of jaundice is caused by an increase in the serum bilirubin level. When the Claimant's gall bladder had been made the subject of an ultrasound scan on 13 November 2000 gallstones were found, but there was no evidence of bile duct dilatation. A repeat ultrasound scan on 5 January 2001 showed a markedly dilated common bile duct at the head of the pancreas where it was thought that there was probably a gallstone.
Against that background the opinion of Wing Commander (now Group Captain) Mark Watkins was sought. He was (and remains) a Consultant Surgeon at the Royal Hospital Haslar with a particular interest in endoscopic retrograde cholangio-pancreatography (ERCP). The question was raised as to whether the Claimant required an urgent ERCP given the suggestion of an obstructive jaundice, that perception being evidenced by the most recent ultrasound scan.
ERCP is a procedure used to diagnose and treat conditions of the bile ducts, liver, gall bladder and pancreas. The patient is sedated and asked to swallow the first section of the endoscope (a thin flexible fibre-optic telescope). The operator then guides the endoscope to the desired destination by watching its path through the eyepiece or on an associated television monitor. The endoscope also has a side channel down which other tubes or instruments can be passed. A contrast dye can be introduced into the bile or pancreatic ducts and X-rays used to show the details of the ducts. This can show the presence of gallstones lodged in the bile duct. If that is demonstrated the operator can create a small cut (a sphincterotomy) which may allow removal of the stone with a balloon or basket or simply allow the stone to fall out into the intestine thus relieving the blockage. If a narrowing or blockage of the bile duct is discovered, the operator can insert a stent (a small plastic tube like a straw) into the bile duct thus allowing the bile to drain into the duodenum in the usual way.
The Claimant was seen by Group Captain Watkins on the morning of 9 January. His note made following the examination was as follows:
“I note the history. It now looks likely that she has a stone at the lower end of the [common bile duct]. Her coagulation is currently too abnormal to allow a sphincterotomy safely and whilst I could do an urgent ERCP and place a small stent safely and return for a definitive ERCP later I think she is well enough to wait till a planned list [on] Thursday when I hope her INR will have returned to normal. On the other hand if she deteriorates in any way I will review and perform urgent ERCP.”
'INR' is the abbreviation for International Normalised Ratio which is a measure of the time it takes the blood to clot compared with an average. If an INR is too high then there is a risk of uncontrolled bleeding. Group Captain Watkins obviously wanted that to be better controlled if possible before performing the ERCP. Vitamin K was prescribed to assist in restoring her coagulation.
The ERCP was carried out on 11 January, starting at 16.00. There is no doubt that this particular ERCP proved to be a difficult one. It lasted approximately 90 minutes before it was abandoned. The Claimant had been given the sedative Hypnovel, 7.5 milligrams at 16.00 and 2.5 milligrams at 16.20. Whilst nothing in fact turns on it, it was, I think, common ground between the relevant experts that even this amount of Hypnovel was at the top end of what was acceptable at the time. However, according to the operation note, a further 6 mg of Hypnovel was administered at 17.28. Although, of course, some of the Hypnovel initially administered would have been metabolised by that time, there is no doubt that a further 6 mg did contribute to a very large overall administration of sedation. The very nature of the procedure, particularly if prolonged, can give rise to distress and discomfort on the part of the patient. Group Captain Watkins confirmed in cross-examination that the reason for administering this additional quantity of sedative was because he would have preferred to continue for a little while longer despite having already taken a long time with the ERCP procedure. I will say more about the significance of this shortly, but it represented an important insight into Group Captain Watkins' perception of the outcome of the ERCP at the time.
During the course of the ERCP, the conduct of which as such is not criticised, the Claimant sustained very considerable bleeding. Group Captain Watkins estimated that the total blood loss was 1–1 1/2 units. Whilst it is acknowledged that bleeding is a well-recognised complication of ERCP, Dr Dickinson, a Consultant Physician based at Hinchingbrooke...
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