Bailey v Ministry of Defence and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Sedley,Lady Justice Smith |
| Judgment Date | 29 July 2008 |
| Neutral Citation | [2008] EWCA Civ 883 |
| Docket Number | Case No: B3/2008/0096 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2008 |
[2008] EWCA Civ 883
Lord Justice Waller
Vice-president of the Court of Appeal, Civil Division
Lord Justice Sedley
Lady Justice Smith
Case No: B3/2008/0096
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Foskett
Royal Courts of Justice
Strand, London, WC2A 2LL
Christopher Gibson QC and Paul Dean (instructed by Messrs Blake Lapthorn Tarlo Lyons) for the Respondent
Derek Sweeting QC (instructed by Treasury Solicitors) for the Appellant
Hearing dates : 1 st, 2 nd July 2008
Introduction
This is an appeal by the first defendants, the Ministry of Defence (the MoD), in their role as managers of the Royal Haslar Hospital against a judgment of Foskett J, handed down on 7 th December 2007, by which he found them liable in damages for the serious brain damage suffered by the claimant. The want of care occurred during a period of about 20 hours on 11 th/12 th January 2001; the brain damage occurred while the claimant was in the renal ward of St Mary's Hospital Portsmouth, managed by the Portsmouth Healthcare Trust (the second defendants), on 26 th January 200The key issue for the judge was one of causation. To understand the issues on the appeal it is important to start with the facts and it is convenient to set those out without at this stage any detailed comment.
The Facts
On 26 th January 2001, when an in-patient on the renal ward at St Mary's Hospital Portsmouth (for which as I have said the second defendants the Portsmouth Hospitals NHS Trust and not the Ministry of Defence were responsible), the claimant aspirated her vomit leading to a cardiac arrest that caused her to suffer hypoxic brain damage. So far as the factual inquiry is concerned the question is what caused her to aspirate her vomit. In particular, to what extent, if at all, was it due to lack of care while she was at Royal Haslar hospital?
The claimant had originally been admitted to the Royal Haslar Hospital on 9 th January where, on the evening of 11 th January, a procedure to explore and treat a possible gall stone in her bile duct was performed by a consultant surgeon Wing Commander (now Group Captain) Watkins. The procedure was an Endoscopic Retrograde Cholangiopancreatography [ERCP]. It is possible then to take the history from a report of Dr Ryan (an intensive care expert called by the claimant), read to us by Mr Sweeting QC, who represented the MoD, without criticism of its accuracy:—
3. The record of the ERCP by Mr Watkins indicates there was at least one stone in the dilated duct system, but the view was obscured by considerable bleeding, estimated at 101.5 units of blood, and that it had 'probably' stopped by the end of the procedure.
4. There is no recovery chart available. The patient was sent to the ward with a pulse around 115 beats per minute.
5. There are no nursing records of her condition on return to the ward after the ERCP or subsequent ward care.
6. There is no medical [record] of the patient being seen by any clinical staff until 0800 on the 12./01/2001 when she was clearly unwell.
7. She was reviewed again at 15.00 hours, 12/01/2001 when she remained unwell and diagnosed as possibly developing “? Post-ERCP pancreatitis.” She continued to deteriorate and was moved to a High Dependency Unit [HDU] that evening for further management of her fluid balance with a central line and bladder catheter. She started to vomit 'coffee grounds' – a term used to signify altered blood from her stomach, a sign of serious illness.
8. She deteriorated over the next 24 hours despite strenuous efforts to reverse the situation. She was given a blood transfusion of 3 units on the 13/01/2001. A transfer to intensive care [ICU] was requested early on 14.01/2001. At this stage she had started to bleed from the gut, had developed renal failure, had developed acute pancreatitis, and was requiring circulatory support and was developing respiratory failure. She was clearly going to die unless the situation was reversed.
9. She was taken later that day safely to ICU at Queen Alexander Hospital, Portsmouth, 14/01/2001
10. At Queen Alexander Hospital ICU she underwent gastroscopy that night. This was to further investigate her upper gastrointestinal tract bleeding. There was found to be fresh blood in the stomach, but no obvious source was found. The most likely site was the ampulla, at the entrance to the pancreatic duct. She was at this stage aggressively supported by a variety of appropriate drugs including a local injection of adrenaline down the gastroscope, different clotting factors and an anti-ulcer agent to try and curtail the bleeding.
11. On the 15/01/2001 she received blood and clotting factors and then the patient underwent a percutaneous transhepatic cholangiogram [PCT] and biliary drainage which showed the ampulla to be distorted and full of blood clot. That evening she underwent surgery for massive bleeding to the liver caused by the PCT procedure, as well as oversewing of the sphincterotomy, a cholecystectomy, and packing of the liver for bleeding.
12. She could have died at this point. She was aggressively supported with a lot of blood products and intropes. She was stabilised after much effort. She survived and subsequently had her surgical packs removed on the 19/01/2001.
13. Miss Bailey then made steady progress in the ICU, although she continued to show signs of sepsis. A computerised tomography [CT] scan on the 21/01/2001 confirmed what had been seen at the time of previous emergency surgical intervention on the 15/01/2001. This was pancreatitis, swelling of the surrounding tissues and bowel, the presence of fluid in the abdomen (ascites), and some liver defect after surgery. The bases of the lungs are collapsed with some fluid around them. She was receiving antibiotics but there were no positive bacterial cultures. She was being fed by a combination of intravenous [TPN] and direct feeding into the gut (PEJ).
14. Antibiotics were stopped 24/01/2001. She was removed from mechanical ventilation and it was noted she needed a Bird Ventilator to help expand the lung bases. She continued to have a high temperature. She was receiving intermittent haemofiltration (renal support). There were problems in establishing enteral feeding. The volume used was small (30ml) and was being varied daily; she was relying principally on the TPN. She was not sleeping.
15. She was visited (24/01/2001) by the Consultant Nephrologist, Dr Hedger, who noted her to be “very sick patient with pancreatitis, GI (gastrointestinal) bleed sepsis”. He anticipated a transfer to the renal unit “probably w/e (weekend), early next week?” He did not revisit this patient or see the patient in the renal ward subsequently.
16. On the 25/01/2001 there was another CT scan because of concerns about an infective focus. This was basically unchanged from the report of the 21/01/2001 (described in section 12 above). She was also restarted on haemodialysis because of her abnormal electrolytes and she was still very oedematous (swollen with fluid) due to water retention.
17. On the 26/01/2001 she appeared well, but was still very jaundiced. She was being fed by a combination of TPN and a nasogastric feed. The written clinical comments include “reculture today”“Central line out later? Needs new line? ?re-filter today”. There is a typed note of the decision by Dr Taylor to discharge to the renal unit. [Dr Ryan accepted once records had been produced that the claimant was properly assessed as able to cope in a ward.]
…
18. Miss Bailey arrived safely at the renal ward at about 6pm. Her condition was safe. She was initially seen by Dr Blakeley, an experienced Registrar. She noted that Miss Bailey was to receive 1L via her PEJ and 500mls free oral fluids over 24 hours. She comments the patient 'now – hyperdynamic (likely ongoing sepsis)'.
19. Miss Bailey became nauseated and vomited at about 20.15 hours after drinking about 100ml of lemonade. She became rapidly unwell. Her oxygen saturation which had been 98% on room air fell to 82%; her pulse previously at 70 went up to 120, her blood pressure was OK, but her temperature had risen from 37.5C to 38.5C.
She was seen by Dr Patel (who had been an SHO on the Unit for 6 weeks) at 20.35 who examined her and elicited all the signs of aspiration but did not record a diagnosis. He contacted Dr Blakeley and they gave her oxygen, but it was low flow oxygen. She had a chest X-Ray, she was given antibiotics and an H2 blocker. Her condition improved. No other member of the medical staff was contacted at this stage. No anti-emetic was given.
20. Nurse Hanson was the nurse initially responsible for Miss Bailey's care – in her witness statement she recorded that the patient was to be given 500mls free fluids a day. She recorded the 100mls of lemonade.
21. Nurse Drum took over the care for the night shift and was responsible for 3 patients – the other two were 'lighter' in regard to their nursing needs. There were two other nurses on duty that night, one had 4 patients and one had 3 respectively.
Miss Bailey was sat up, encouraged to cough which was unproductive. Her PEJ feed was recommenced at 22.30. She had no further oral intake.
22. At around 23.30 while Dr Patel was reviewing her chest X-ray on the ward, Miss Bailey vomited about 100ml of 'coffee grounds' (altered blood).
23. Miss Bailey suffered a cardiac arrest at around 24.00. The doctor and nurse were not at her...
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