Clarice Louise Wright v Cambridge Medical Group
| Jurisdiction | England & Wales |
| Judge | Lord Neuberger Mr,Lord Justice Elias,Dame Janet Smith |
| Judgment Date | 21 June 2011 |
| Neutral Citation | [2011] EWCA Civ 669 |
| Docket Number | Case No: B3/2010/1848 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 June 2011 |
[2011] EWCA Civ 669
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Mackay
Case No. HQ08X02369
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
Lord Justice Elias
Dame Janet Smith
Case No: B3/2010/1848
(A child by Demelza Wright her Litigation Friend
(A Partnership)
Mr R Oppenheim QC and Mr M Horne (instructed by Parlett Kent) for the Appellant
Mr D Nolan QC (instructed byHill Dickinson) for the Respondents
Hearing dates: 4 th and 5 th April 2011
This is an appeal against the dismissal of a claim brought by Clarice Wright against Cambridge Medical Group, a partnership of medical practitioners, for clinical negligence. The trial judge, Mackay J, held that, although the defendants admitted that they were negligent in not referring the claimant to a hospital when they should have done, she failed on the issue of causation. The course which the proceedings took was, through no fault of the Judge, unfortunate. Much of the evidence and argument concentrated on the issue of whether and to what extent the hospital, to which the claimant was eventually referred, had been and would have been negligent in the way in which it treated her, without that hospital being a party.
The factual background
The basic facts of this case, which are much more fully and very clearly set out in Mackay J's judgment below, [2010] EWHC 1507 (QB), paras 14–35, 47–53 and 56–58, are as follows.
In early April 1998, the claimant, who was then aged eleven months, contracted chickenpox. She developed a high temperature and tachycardia, and was admitted to South Cleveland Hospital ("the Hospital") on 9 April. Within a couple of days, the claimant developed a bacterial super-infection with streptococcus pyogenes, which the Hospital had not diagnosed by the time of her discharge on 12 April. The expert evidence established that the bacteria seeded into the proximal femur (i.e. that part of the hip-bone closest to the trunk of her body), resulting in osteomyelitis (i.e. infection of the bone), on 13 or 14 April.
On 14 April, it was clear that her condition was causing the claimant significant discomfort, and her mother ("Ms Wright") took her to see Dr Winter of the defendants that day. No complaint is made about Dr Winter, who advised Ms Wright to contact the defendants if the claimant's condition failed to improve. On the following day, 15 April, Ms Wright thought that the claimant's condition was "considerably worse", as she was lethargic, feverish, anorexic and suffering from diarrhoea. Accordingly, she made contact with Dr Phellas of the defendants by telephone at about 4.45 in the afternoon. Dr Phellas failed to make arrangements for the claimant to be seen, and it is conceded by the defendants that he was negligent in not doing so, and that, had he done so, he would, or at any rate should, have referred her to the Hospital.
The expert evidence established that the seeding of the bacteria in the claimant's femur led to a sympathetic effusion developing in the claimant's hip joint on 15 or 16 April. This led to her condition deteriorating, with the existing symptoms intensifying, and her hands and feet starting to swell and turn blue. Unsurprisingly, Ms Wright became very concerned indeed, and, at 7.30 on the evening of 17 April, her sister spoke to Dr Robertson of the defendants, who saw the claimant an hour later. He referred her at once to the Hospital, with a letter expressing his concerns, and she was admitted to the paediatrics unit around 9.00 in the evening. The expert evidence established that the effusion on her hip joint would have become infected by 17 or 18 April.
The claimant was seen at about 10.00 in the evening of 17 April by a senior house officer, Dr Joashi, who arranged a blood culture and prescribed the antibiotic erythromycin. Next morning, she was seen by Dr Turner, a registrar, who changed the treatment, prescribing intravenous amoxicillin, a different antibiotic. However, after talking to a microbiologist, Dr McKay-Ferguson, Dr Turner changed the treatment again that afternoon, prescribing yet another antibiotic, ciprofloxacin. Although that did not seem to improve the claimant's condition, the treatment was continued until the claimant was seen by Dr Hampton, a consultant paediatrician, on a ward round on 20 April. This was the first time the claimant was seen, or her condition was even considered, by a consultant since her admission on 17 April.
Dr Hampton decided to change the antibiotic treatment, partly as a result of the apparent ineffectiveness of the current treatment, but mainly as a result of the blood culture result, which had been available since 19 April, and had revealed the streptococcus strain, which was resistant to ciprofloxacin, but, sadly and ironically, sensitive to amoxicillin and erythromycin. Unfortunately, even then, the proper diagnosis was not made. That only occurred on the following day, 21 April, after it was realised in the morning that the claimant was not moving her hip; that led to an ultrasound scan that afternoon, which showed septic arthritis. This resulted in urgent arthrotomy (i.e. incision into the joint) and surgical drainage, which was carried out in the early hours of 22 April. However, by then, the combination of the inappropriately treated osteomyelitis and septic arthritis had led to the separation and destruction of the bone plate. The claimant was discharged from hospital on 30 April.
The claimant has a permanently unstable hip, restricted movement range, leg length discrepancy, and restricted mobility. This long term condition is a result of her not having been treated properly in time. Had the defendants referred her to the Hospital on 15 April, as they should have done, and had she then been prescribed the right type of antibiotic, she would have recovered, probably without the need for surgical drainage, and certainly with none of the permanent damage which she has suffered.
The course of these proceedings
The claimant issued the present proceedings against the defendants, essentially on the basis that their negligence in failing to refer her to the Hospital on 15 April had caused the permanent damage referred to in para 8 above. At any rate by the time the matter came to trial, the defendants accepted that they had been negligent in not referring the claimant to hospital in the late afternoon or early evening of 15 April. However, they denied that they were liable for the permanent damage. Although the claimant has apparently notified the Hospital about a possible claim, she has not brought proceedings against the Hospital or joined it in this action; nor have the defendants brought contribution proceedings against the Hospital.
The case came before Mackay J on the issue of the defendants' liability. There were six expert witnesses, most of whom gave oral evidence. Given that the claimant's case was that she had suffered permanent physical damage through having been referred to the Hospital negligently late, the experts unsurprisingly considered the course of her symptoms and condition, the appropriate treatment and its likely effect at successive stages, and the handling of her case by the defendants. However the experts also focussed to a large extent on the treatment which the claimant actually received after she was admitted to the Hospital on 17 April.
As well as making good the conceded fact that the defendants were negligent on 15 April, the expert evidence established that, had she been referred to the Hospital by Dr Phellas on 15 April, and had the Hospital then treated her properly with appropriate antibiotics, the claimant would very probably have made a full recovery without the need for any surgery. The evidence also demonstrated that, when she was actually referred to the Hospital, on the evening of 17 April, she would have made a full recovery if she had been treated promptly with the appropriate antibiotics, although she may well also have required the arthrotomy and surgical drainage which she underwent.
As explained above, the claimant's argument was that, if the defendants had referred her to the Hospital on 15 April, as they accepted that they should have done, she would have been properly treated by the doctors in the Hospital and would therefore not have suffered the permanent injury that she has suffered.
After considering the factual and expert evidence relating to the treatment which the claimant received after she was admitted to the Hospital on 9 April, and, more importantly, 17 April, the Judge concluded at [2010] EWHC 1507 (QB), para 62, that "[t]he compelling criticisms of the performance of [the paediatric] unit through [the] period 9–21 April 1998 make it impossible for me to find as a fact that it is more likely than not that if [the claimant] had been placed in their hands during the evening of 15 April she would have been so treated as to avoid permanent damage to her hip".
In other words, the Judge concluded that, although the defendants were negligent in not referring the claimant to the Hospital on 15 April, this negligence caused the claimant no loss, as, even if she had been admitted to the Hospital then, she would not have been treated properly, so that she would, in any event, have suffered the permanent damage described in para 8 above. The claim accordingly failed, as the claimant had failed to establish that the defendants' negligence had caused the...
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