Eastwood and Wright
| Jurisdiction | England & Wales |
| Judge | Lord Justice Ward,Lord Justice Rix,Lord Justice Maurice Kay |
| Judgment Date | 19 May 2005 |
| Neutral Citation | [2005] EWCA Civ 564 |
| Docket Number | Case No: B3/2004/0894 |
| Date | 19 May 2005 |
| Court | Court of Appeal (Civil Division) |
[2005] EWCA Civ 564
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Her Hon. Judge Elizabeth Steel DL
Lord Justice Ward
Lord Justice Rix and
Lord Justice Maurice Kay
Case No: B3/2004/0894
Mr George Hugh-Jones (instructed by Messrs Eversheds) for the Appellant
Mr Christopher Limb (instructed by Messrs Lees & Partners) for the Respondent
The background.
This is a clinical negligence claim brought by the respondent, Mrs Stephanie Wright, against her anaesthetist Doctor Derek Eastwood. On 5 th April 2004 after a trial of the question of liability only Her Hon. Judge Elizabeth Steel DL, sitting as a Deputy Judge of the Queen's Bench Division in Liverpool, found in favour of the claimant and entered judgment for damages to be assessed. The defendant appeals with permission granted by Potter L.J.
Mrs Wright has over the years had a number of visits to hospital for investigations or operations under general anaesthetic. No clinical records survive for her first two visits in 1968 for cholecystectomy and in 1978 for the exploration of the bile duct with sphincterotomy. In 1979 she underwent a D & C procedure under general anaesthetic and the records for this examination were not available at the time of later operations and neither the claimant nor her G.P. were advised of any difficulties. The anaesthetic record was, however, produced to the experts instructed in the course of these proceedings and the records showed that following the administration of drugs including althesin 0.5 ml, the claimant developed breathing difficulty. The anaesthetist administered a muscle relaxant maintaining anaesthesia and hydrocortisone was administered intravenously and Mrs Wright made an uneventful recovery. The anaesthetic notes include the entry "??Althesin allergy".
In 1989 she had a D & C without any problem. On 1 st February 1995 she was admitted to the Murrayfield Hospital in Liverpool for a hysteroscopy examination under anaesthesia and a D & C. Again there were no problems. Doctor Eastwood was the anaesthetist on that occasion although he did not remember the admission at all. There was no reason why he should have recalled it.
On 14 th June 1995 the claimant returned to the Murrayfield Hospital and underwent a total hysterectomy under general anaesthetic. Doctor Eastwood was again the anaesthetist and what happened on that occasion was under scrutiny at the trial. She was rendered unconscious through the injection of the anaesthetic propofol and maintained using nitrous oxide and halothane. The chosen muscle relaxant was atracurium and the analgesic was morphine. It is common ground that Mrs Wright suffered a bronchospasm before being taken into the theatre. That was effectively dealt with and the operation was successful. No criticism is made of the anaesthetic chosen, nor of the way Doctor Eastwood administered it or responded to the crisis. The claimant does, however, complain that he negligently failed to diagnose or to suspect that the symptoms and circumstances of the bronchospasm were, or could have been, due to an adverse drug reaction which should have caused him to refer her for investigation. Although after the operation she was seen by the defendant who told her of her "spasm" it is alleged that he negligently failed to warn her of the possibility of an adverse drug reaction in the future.
Her next visit to the Murrayfield Hospital was for the excision of the left submandibular gland in 1997. She mentioned the incident of the spasm in 1995. The anaesthetist had access to the previous records and did not use the same muscle relaxant as had been used in 1995. The operation passed without incident.
On 23 rd March 1999 she was admitted to the Royal Liverpool Hospital for the excision of the right submandibular gland. She again told the anaesthetist of what she had been told following the hysterectomy in 1995 and the notes read "History of "spasm" after the hysterectomy operation – anaesthetist said patient gave him "quite a fright"". The notes from the Murrayfield Hospital were not obtained until after the operation. On this occasion the muscle relaxant used was cisatracurium. There was coughing and difficulty in ventilation by facemask. She was intubated. There was no wheezing but then the blood pressure fell suddenly and substantially. After adrenaline was given over a total of 60 minutes surgery was cancelled and the claimant was transferred to the Intensive Therapy Unit. A tracheostomy tube has had to be inserted leaving Mrs Wright with permanent and constant difficulty in breathing and very considerable impairment of her ability to manage life as she did. A subsequent investigation of the adverse reaction she suffered revealed that Mrs Wright is allergic to atracurium and cisatracurium which are associated drugs used as muscle relaxants in the 1995 and 1999 operations respectively.
Doctor Eastwood said that his diagnosis was that Mrs Wright had suffered an irritable reaction to intubation owing to her heavy smoking. Intubation is the process by which an airway tube is passed into the trachea in order to sustain breathing once the muscle relaxant drug has taken effect on the lungs. In the light of that diagnosis he did not advise further investigation. The crucial question for the judge to decide was whether or not Doctor Eastwood ought reasonably to have suspected that the bronchospasm suffered in June 1995 was a possible reaction to the anaesthetic drugs administered to Mrs Wright. The experts in the case had agreed that:—
"If a drug reaction had been suspected, it would have necessitated advice, warning, investigation and action in order to comply with responsible practice."
The responsible practice had been published in 1990 by the Association of Anaesthetists of Great Britain and Ireland in a paper entitled "Anaphylactic Reactions associated with Anaesthesia" paragraph 5.1 of which recommended:—
"Any patient who has a suspected [the judge added this emphasis] anaphylactic reaction associated with anaesthesia should be investigated fully."
It was further agreed between the experts that:—
"If a drug reaction had been suspected in 1995 (whether investigated or not), then Mrs Wright should have been informed and warned that the drug(s) suspected of being to blame should not be given to her on subsequent occasions. No reasonable anaesthetist told of a suspected adverse reaction to atracurium would subsequently have administered cisatracurium. Consequently, on the balance of probabilities, the reaction in 1999 and its consequences would have been avoided."
On the basis of that agreement causation would be established.
The judge found that there was a reasonable suspicion that an adverse drug reaction was the cause and that once this was appreciated the obligation to investigate and warn arose. It was negligent of Doctor Eastwood not to have done so.
The events of 14th/15th June 1995 in a little more detail.
Mrs Wright was listed for operation in the afternoon list which started at 2 p.m. She would have been taken to the anaesthetic room outside the theatre shortly before that time. There was no dispute as to the process used by the defendant. He duly administered the anaesthetic, analgesic and muscle relaxant drugs. The atracurium usually takes effect 2–3 minutes after its introduction. In the short time before intubation oxygen and then nitrous oxygen were manually administered by "bagging", i.e. using a mask over the patient's mouth and nose and ventilating five or six puffs. The defendant had no recollection of the bagging being difficult though it has to be said, as the judge found, that the defendant was "naturally" unable to recall with any precision what happened nearly nine years previously. In his statement he had said:—
"In respect of my recollection of events of 14 th June 1995 I have no independent recollection and I am relying upon my notes and usual practice although in view of what happened the operation does stick in my mind."
What happened was that Mrs Wright suffered an acute bronchospasm preventing air entering the lungs. That was a crisis and the judge found that the defendant reacted appropriately.
"20. … One of the vapours he used was halothane that has some properties to assist with a tight chest. It is clear from the hospital operation record that the use of this vapour was a change from the one he originally started to write. Both are on the machine and the choice of which to use is that of the anaesthetist. The defendant could not recall why he had chosen halothane. That vapour on its own did not and was not expected to solve this particular problem. He injected intravenously aminophylline (a bronchodilator drug) that effectively eased the bronchospasm and the claimant was able to proceed into theatre for the operation. It was I have no doubt a frightening episode for all who saw it. Doctor Eastwood said in evidence that a bronchospasm is an extreme rarity and difficult to diagnose after giving drugs. He remembered the incident (though not the detail) because of this. …
The defendant recalls that the claimant responded dramatically to the aminophylline and was ready to go into theatre. … The post-operative record shows an uneventful recovery from the anaesthetic."
On the following day, 15 th June 1995, Doctor Eastwood spoke to the claimant but they recalled the conversations differently. The judge decided as follows:—
"25. The defendant recalls telling her of the incident in general terms and...
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