David Sellu v The Crown
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P |
| Judgment Date | 15 November 2016 |
| Neutral Citation | [2016] EWCA Crim 1716 |
| Docket Number | Case No: 201404814B1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 15 November 2016 |
[2016] EWCA Crim 1716
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
Mr Justice Nicol
T20127314
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lord Justice Irwin
and
Mr Justice Globe
Case No: 201404814B1
Mark Ellison Q.C. and David Emanuel (instructed by Birnberg Peirce, London) for the Appellant
Mark Heywood Q.C. and Ben Temple (instructed by Crown Prosecution Service) for the Crown
Hearing dates: 26–27 October 2016
Approved Judgment
On 5 November 2013 in the Central Criminal Court before Nicol J and a jury, David Sellu, a consultant specialising in colorectal medicine, including surgery, was convicted by a majority verdict (10:2) of the manslaughter by gross negligence on 16 February 2010 of James Hughes (then aged 66 years); he was acquitted of perjury in relation to evidence given to the coroner about the death. He was sentenced to 2 1/2 years' imprisonment. No appeal either against conviction or sentence was then mounted but detailed further consideration of the case has led new counsel (instructed by different solicitors) to pursue a wide-ranging appeal. Having granted an appropriate extension of time, the appeal proceeds by leave of the full court (Hallett LJ, McGowan and May JJ): see [2015] EWCA Crim 1980. In the event, none of the counsel in the appeal appeared at the trial.
The Facts
On 5 February 2010, Mr Hughes underwent elective total knee replacement surgery at the Clementine Churchill Hospital, a private hospital, under the care of a consultant orthopaedic surgeon, Mr Alan Hollingdale. Prior to the operation a number of standard checks were made on him and nothing unusual or concerning was discovered. Although there is now an issue as to Mr Hughes' general health, at the time, he was deemed to be quite healthy for his age. He was assessed as low risk for the general anaesthetic that was required for the operation.
The operation, which was routine, seemed to go well. Following the surgery, Mr Hughes remained as an in-patient at the hospital and was prescribed painkillers, an antibiotic (Cefuroxine), and an anticoagulant called Dabigatran. It is not suggested that Mr Sellu should have been aware of the administration of the anticoagulant at the relevant time and its effect was not considered either by any of those involved in Mr Hughes' treatment at the time or, indeed, by any of the expert witnesses at trial.
By Wednesday 10 February, Mr Hughes was deemed well enough to be discharged but he elected to remain at the hospital until the following Monday in order to have his stitches removed. Early in the following morning, his progress was not maintained because he complained to the nursing staff for the first time of having a pain in his abdomen and of not having opened his bowels for four days (that is, since the operation). A note was made asking for him to be reviewed by the Resident Medical Officer, Dr. Georgiev ("the RMO"). He had qualified in Bulgaria and first came to England in January 2010; he had been working at this hospital for three weeks. He was on duty from 8:00 am on 11 February on call for 24 hours a day for seven days (with a bed in the hospital where he could sleep when not needed).
Dr Georgiev saw the deceased at some time after 8:00 am, prescribed him Buscopan, and ordered blood tests, the results of which were available by 10:30 am. Dr Georgiev analysed the results and found nothing significant but, throughout the day, the pain experienced by Mr Hughes in his abdomen became increasingly severe (noted as 9/10 at 3:00 pm). Mr Hughes spoke to various medical staff but when no effective action was taken, adopted the unusual step of seeking to contact his general practitioner, Dr Lauder (with whom he was friendly). He spoke to Mrs Lauder (herself a retired G.P.) told her he was in "terrible pain" and that he could not make himself understood to the doctor. He then spoke to Mrs Hollingdale who acts as her husband's secretary: she was taken aback by the call. That any of this was necessary is obviously a cause for concern.
As a result, Mr Hollingdale saw Mr Hughes at 6:00 pm. He was in evident pain and, upon examination, had a tender abdomen. He ordered an x-ray examination which was marked 'urgent' by a nurse. The x-rays were first viewed by a Dr. Shah and she rang Dr Georgiev to inform him that the x-rays showed that there was free air in the abdomen and she suspected that this was due to a perforation of the stomach or bowel. Mr Hollingdale asked for further blood tests (which it does not appear were taken). In passing, it is appropriate to add that Dr. Shah's written report on the abdominal x-ray, although not the chest x-ray, referred to her finding of free air in the abdomen but was not verified (following the appropriate practice) until 15 February and was thus not available on the hospital's computer system until after Mr Hughes had died.
A free perforation of the stomach or bowel can be distinguished from a localised event and is the result of a burst diverticulum resulting in the contents of the bowel leaking out into the abdomen. This would cause pain in the general abdomen. The body would attempt to combat this by secreting a liquid to dilute what constitutes poison. However, there then existed a fluid which was a good culture for bacteria coupled with the possibility of further faecal matter being pumped out through the perforation in the colon. As the bacteria increased in number they would be absorbed into the bloodstream producing a generalised sepsis. This in due course would result in septic shock during which the blood vessels become dilated, blood pressure falls, the circulation around the major organs falls, ultimately leading to multiple-organ failure. Left untreated this was the course that a free perforation would follow.
Treatment for the condition should have included the administration of broad-spectrum antibiotics and optimisation of the patient's condition by effective resuscitation and source control (i.e. repairing the source of infection by surgical intervention).
Because this development did not fall within the expertise of an orthopaedic surgeon, Mr Hollingdale referred Mr Hughes to Mr Sellu, who had practised at Clementine Churchill Hospital since 1997 and been a consultant surgeon at Ealing NHS hospital since 2000. The prosecution alleged that Mr Hollingdale (who was angry about what had occurred and complained to senior nursing staff the following morning) would have provided the history to Mr Sellu; Mr Sellu, however, said that he was unaware of the calls to the GP or Mr Hollingdale, or of any difficulty in communication between Mr Hughes and Dr Georgiev.
Mr Sellu examined Mr Hughes at about 8:30–9:00 pm on 11 February, his notes indicating that he was aware of the length of time during which the deceased had been in pain and describing him as being unwell. He was recorded as having a slightly increased breathing rate and that there were abnormalities with the abdomen upon examination. The readings for his C-reactive protein levels were high, which was indicative of inflammation. The blood test results that the appellant reviewed had in fact been taken that morning. There was no documentary record of any blood gas test results that evening.
Mr Sellu had not previously worked with Dr Georgiev (who accepted that he may have described himself as a fully trained surgeon who specialised in abdominal surgery) and both viewed the abdominal and chest x-rays between 9:05–9:45 pm. Mr Sellu wrote in the records: "? free gas under the right hand diaphragm" and recorded his opinion as "? Perforated [viscus]". He left a management plan that included intravenous fluids, blood tests, and a CT scan for the following morning that he marked "urgent". Radiologists would have been available to perform an emergency scan if the appellant had so directed it. The deceased was left in the care of Dr Georgiev.
Of critical importance in the subsequent analysis of what happened, no antibiotics were administered to address the possibility of abdominal infection. The medical notes made no mention of the appellant having ever given instructions for the deceased to be placed on antibiotics. Mr Sellu's first statement to the coroner was silent as to the administration of antibiotics. In his answers to the hospital's internal investigation, he stated that he instructed the RMO (Dr Georgiev) to give antibiotics following a taking of bloods and later when they spoke on the phone he gave instructions to continue with the antibiotics. In a further statement to the coroner he stated that he "would have asked the RMO" to begin treatment with antibiotics. In both his subsequent oral evidence to the coroner and in police interview he unequivocally stated that he had discussed antibiotics with Dr Georgiev and given instructions that these were to be commenced after the blood tests: Dr Georgiev denied that he had ever been given any such instruction. In his police interview, Mr Sellu did, however, accept that ultimately it was his responsibility to ensure that the patient had received antibiotics and he had failed in that regard.
On 12 February, upon the RMO's instructions, Nurse Sarota telephoned the appellant at about 6:00–6:30 am in respect of Mr Hughes' condition which had seemingly deteriorated through the night. His urine output was low, there was substantial dark brown fluid output from his nasogastric tube, his abdomen was distended, and he was...
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