Emmanuel Towuaghantse v General Medical Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 24 March 2021 |
| Neutral Citation | [2021] EWHC 681 (Admin) |
| Date | 24 March 2021 |
| Docket Number | Case No: CO/4856/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 681 (Admin)
Mr Justice Mostyn
Case No: CO/4856/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Alan Jenkins ( Direct Access) for the Appellant
Alexis Hearnden (instructed by GMC Legal) for the Respondent
Hearing date: 16 March 2021
Approved Judgment
On 21 October 2013 Patient A was born in hospital at Carlisle. From antenatal scans it was known that he had developed an exomphalus 1 major. This is an extremely rare and disturbing condition occurring in about one in 4,000 births. In all pregnancies the intestine initially develops inside the umbilical cord. Normally, after a few weeks it moves inside the abdomen. However, in these rare cases the intestine, and sometimes other organs such as the liver, develop outside the abdomen within a membrane. Exomphalos major describes the condition where the size of the defect is greater than 5-cm in diameter.
Needless to say, exomphalus major is a serious condition which requires prompt treatment after birth. I cite the website of the Great Ormond Street Hospital for Children:
“Depending on the size of the exomphalos, the infant may need to have it repaired in one operation or in several stages. If the exomphalos is small and the child is stable, they may have an operation soon after transfer, where the surgeon replaces the contents back inside the abdomen and closes up the base of the umbilical cord.
If the exomphalos is larger, contains the liver and/or the child needs to be stabilised, doctors may place a silo or pouch over the intestines, which is closed over a period of days to weeks, to allow the child to grow so that there is room inside the abdomen.”
A dangerous potential side-effect of an operation for immediate replacement of the viscera within the abdomen — known as a primary closure procedure — is the development of Abdominal Compartment Syndrome (“ACS”). ACS occurs when tissue fluid within the abdomen accumulates in such large volumes that the abdominal wall struggles to stretch to accommodate it. When this compression occurs in such a small space organs begin to collapse under the pressure. When the abdomen can no longer be distended then without very prompt surgery the patient will likely die.
It had been planned that Patient A would be born at the Royal Victoria Infirmary in Newcastle (“RVI”), but he arrived early (at 37 weeks) and so was born in Carlisle. The exomphalus was observed to be quite large and contained most of the bowel and a large part of the liver. Patient A had some difficulty breathing and was intubated. He was immediately transferred to the RVI.
On 21 October 2013 the appellant, a consultant paediatric surgeon, was working as a locum at the RVI. He was 58 years old. He qualified as a doctor in 1978 overseas. He obtained his Fellowship of the Royal College of Surgeons (FRCS) in General Surgery in 1985 and his FRCS in Paediatric Surgery from the Royal College of Surgeons in 2000. He had enjoyed a career without blemish. The testimonials produced on his behalf all speak of his professional competence.
Patient A was stable on arrival at the RVI but required to be ventilated. He was referred by the Paediatric Intensive Care Unit (PICU) to the appellant, the on-call paediatric surgeon, who assessed Patient A at 17:15. He made the decision to undertake a primary closure procedure the following day.
The developing tragedy is described in the formal determination of the facts made by the Medical Practitioners Tribunal (“MPT”), seven years later on 16 November 2020 2:
1. On 21 October 2013, following your examination of Patient A [at 17:15], you failed to discuss either your management plan with the senior paediatric surgical colleagues with regard to the management of Patient A or the timing of any surgery (if it was deemed necessary).
And you failed personally to obtain informed consent from Patient A's parents in that you failed to discuss:
• the various options available for Patient A's management (including (a) delayed primary closure; (b) delayed closure using an artificial patch; (c) primary closure with patch for the muscle and possible primary skin cover; and (d) removal of exomphalos sac and application of a Silo);
• the procedure involved with a primary closure; and
• possible complications/risks of the operation.
2. Your decision to carry out a primary closure procedure on Patient A [on 22 October 2013 at about 15:30] was inappropriate given Patient A's age and weight; and the size of the exomphalos major.
3. (not proved)
4. At the conclusion of Patient A's first operation [at about 17:30]:
• you failed to pay attention to the concerns being raised by the anaesthetic staff whilst Patient A remained on the operating table;
• you failed to consider altering your management plan; and
• you failed to remain with Patient A to ensure that there was no suggestion of Abdominal Compartment Syndrome (‘ACS’).
5. Following Patient A's first operation:
• you failed to pay attention to the monitoring results of the urine output and other parameters conveyed to you by staff in the Paediatric Intensive Care Unit;
• you failed to reconsider your management plan, given the information you were being provided with regard to Patient A's condition;
• you failed to pay attention to the concerns being raised by the medical staff who were caring for Patient A;
• you failed to take Patient A back to the theatre, despite indications that Patient A had increased pressure in his abdomen;
• you failed to recognise the serious signs that Patient A was exhibiting; and
• you failed to consider that Patient A may have been suffering from ACS.
6. On 23 October 2013 following Patient A's second operation [at about 08:00], you failed to remain with Patient A given his critical condition at that time.
7. Your record keeping in respect of your involvement in Patient A's care was inadequate, in that:
• it failed to make reference to the fact that you were asked to return to the operating theatre on two occasions;
• it failed to make reference to serious concerns that were raised with you by the anaesthetist; and
• it failed to make reference to serious clinical signs that Patient A was displaying.
8. Your actions and omissions as set out at paragraphs 1 to 7 contributed to the death of Patient A [on 23 October 2013 at about 19:40], who had a treatable condition.”
These formal, unemotional words do not convey the distress suffered not only by the parents, but also by members of staff of the RVI, who witnessed the unfolding tragedy which led to the baby dying in his mother's arms that evening shortly after 19:40.
The findings constitute very severe criticism of the appellant not only for his inexplicable decision to attempt, on the presented facts, an inappropriate primary closure procedure. The findings also criticise him severely for his even more inexplicable inaction in the six hour window following the first operation. In that period there was insistent concern expressed to him by nursing and medical staff that the baby was suffering perilously from ACS and needed to be re-operated on immediately. Had that action been taken by the appellant before midnight on 22 October 2013 the baby could have been saved. But he did not act. He did not do so until 08:00 the following morning by which time it was too late. By then the baby's bowel was dying, if not already dead, and his fate was tragically sealed.
The written evidence of the GMC's main expert witness, Mr Alizai said this:
“Although, I maintain that the primary closure for patient A was the incorrect decision, considering the size of the defect and the size of the baby, but an even greater negligence by Mr E Towuaghantse happened during the post-operative period. Even if the closure was a tight closure, for which there is no doubt that it was, had Mr E Towuaghantse listened to what all the other clinicians were telling him or if he had assessed and considered all possibilities for patient A's post-operative condition and had opened the abdomen in the intensive care unit or by bringing him back to the operating theatre within the first 3 to 4 hour period following closure, patient A's viscera would probably have survived, with some damage. In other words the lack of reasonable post-operative management was even more relevant in this case and proper action taken at that stage would have negated an earlier wrong action taken by Mr E Towuaghantse. Even if the tribunal decides that the decision to primarily close patient A's abdomen was not seriously below what is expected of a reasonably competent consultant paediatric surgeon, although I still believe it was, there is absolutely no defence for Mr E Towuaghantse to not have opened Patient A's abdomen in a timely manner, to avoid continuing damage to his viscera and organs. There were clear unremitting, non-defensible signs of increased intra-abdominal pressure, which no reasonably trained consultant paediatric surgeon will deny or attribute to lack of fluids.”
The factual findings made on 16 November 2020 were rendered after 15 days of proceedings before the MPT. On 18 November 2020 the MPT concluded that the factual findings amounted to misconduct and that the appellant's fitness to practise was currently impaired by reason of such misconduct.
The appellant was allowed to continue to work after 23 October 2013 by virtue of a series of seven MPT interim orders starting on 4 March 2014, which limited him, bizarrely, to NHS paediatric work (but not the repair of any exomphalus). From that date until late 2015 the conditions meant that he could not find work and indeed in that year he was made bankrupt. However, on 8 January 2016 all restrictions were revoked....
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