EXP v Dr Charles Simon Barker
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kenneth Parker |
| Judgment Date | 07 May 2015 |
| Neutral Citation | [2015] EWHC 1289 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ13X04937 |
| Date | 07 May 2015 |
[2015] EWHC 1289 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Kenneth Parker
Case No: HQ13X04937
Grahame Aldous QC & Stuart McKechnie (instructed by Russell Cooke Solicitors) for the Claimant
Angus McCullough QC (instructed by Clyde & Company Solicitors) for the Defendant
Hearing dates: 9–12 February 2015
Approved Judgment
The Claimant, ("EXP") was born on 18 June 1965. She is married with two teenage daughters.
On 5 September 2005 the Claimant was appointed to the role of full-time District Judge, having previously worked as a barrister for about eighteen years. By 2011 the Claimant was sitting as a District Judge.
The Claimant had been involved in a road traffic accident in 1991 leading to discomfort in her neck and back. The Claimant had been referred to a consultant orthopaedic surgeon, Mr Osborne, in November 1991.
The Claimant made a relatively good recovery from her neck and back whiplash injuries within 18 months of her accident in 1991. In 1997 the Claimant suffered a recurrence of the problems in her neck after a toddler jumped on her and pulled her neck awkwardly.
In about March 1999, whilst working as a barrister in court, the Claimant experienced an episode of visual disturbance that lasted approximately 90 minutes. The Claimant was taken to A & E at the Queen Alexandra Hospital in Portsmouth, where her vision returned to normal and she was advised to see her GP for further investigation.
The Claimant attended at her GP on 4 March 1999 and was privately referred to Mr Harley, consultant orthopaedic surgeon, with symptoms of longstanding neck pain extending into the back. The Claimant was seen by Mr Harley on 24 March 1999 at the Wessex Nuffield Hospital in Chandlers Ford. Mr Harley made a provisional diagnosis of spinal spondylosis and organised an MRI scan on the spine. In his letter to the Claimant's GP of the same date, Mr Harley went on to comment that: "I am not happy that this explains her double vision and her incoordination could be primarily a neurological problem, rather than a mechanical compression. I think there must be some concern that demyelination is a possible diagnosis. I have therefore arranged for her to have an MRI scan of her brain, visual evoke potentials and have checked her routine bloods. I will see her again once we have the results"
The Claimant subsequently underwent an MRI scan of the lumbar spine and MRI scan of the brain on a private basis. The Claimant retained the original packaging for these scans, which indicated by way of annotation that the MRI of the lumbar spine was reviewed by Dr Vince Batty and the MRI of the brain by the Defendant, Dr. Charles Simon Barker.
Dr. Batty and Dr. Barker were both consultant radiologists working in Southampton at that time. Dr Barker had specific expertise in the reporting of brain scans.
On about 12 April 1999 the Claimant saw Mr Harley again to discuss the results of the MRI scans. At this consultation, the Claimant was told that she had the hb57 gene for ankylosing spondylitis and that the MRI scan of the lumbar spine had revealed multi-level degenerative changes. As a result Mr Harley recommended referral to a consultant rheumatologist.
Mr Harley told the Claimant that her brain scan was entirely normal. In his letter to the Claimant's GP dated 12 April 1999 Mr Harley confirmed: "I am pleased to say that her brain scan is entirely normal and so I think this rules out any demyelinating problem".
On 8 September 2011, some 11 years later, the Claimant had returned to her home after a judicial training course in London and then proceeded to go downstairs with her daughter to do an exercise DVD together. The last thing that the Claimant can remember is complaining of a headache, following which she collapsed and lost consciousness.
The Claimant was taken by ambulance to Accident and Emergency at the Queen Alexandra Hospital in Portsmouth where the Glasgow Coma Scale was noted to be 4 on arrival (having been 3–4 upon attendance of the ambulance crew).
A CT brain scan was performed which revealed a 5 x 4.5cm acute parenchymal haemorrhage centred on right temporal lobe with a 2 1/2cm shift from the midline. The appearances of the scan were reported as most likely representing a right sided middle cerebral artery (MCA) aneurysm that had ruptured.
The Claimant was then transferred to the Wessex Neuro Centre during the early hours of 9 September 2011. A CT angiogram taken at 01.29 hours on 9 September 2011 revealed a partially thrombosed aneurysm originating from the right middle cerebral artery.
Emergency surgery was carried out by Mr. Duffill (consultant neurosurgeon) who identified a large clot in association with a bi-lobed aneurysm which was partly calcified. Mr Duffill proceeded to clip the MCA aneurysm and evacuate the haematoma.
Further CT scanning post surgery revealed a right sided haematoma and associated MCA aneurysm. The appearance of the aneurysm was noted to be complex with features of local arterial dissection.
The Claimant was discharged home on 30 September 2011 into the care of the Community Stroke Rehab Team. The Claimant now suffers from a range of disabilities, including a left homonymous hemianopia (left field visual field loss causing 50% blindness); left sided hemiparesis; paralysis/weakness in the left leg; chronic pain and spasticity; weakness and imbalance; cognitive impairments; impaired speech, hearing, swallow, smell and taste; fatigue; headaches; periodic bowel and bladder incontinence; disinhibited behaviour; depression and panic attacks.
The Claimant was seen by Mr Duffill at an outpatient appointment on 14 December 2011. The Claimant took the 1999 images with her to that appointment and on viewing those images Mr Duffill believed that he could identify on them the aneurysm that had subsequently ruptured. Mr Duffill subsequently wrote to the Claimant's GP on 28 December 2011, noting the Claimant had brought copies of the MRI brain imaging taken in 1999 to the appointment and that "I think in retrospect one can see that the middle cerebral artery bifurcation on the right is abnormal and that this represents a small aneurysm which was present twelve years ago."
The Claimant alleges that the Defendant negligently failed to identify and to report the presence of a right middle cerebral aneurysm in his analysis and reporting of the MRI brain scan carried out on 6 April 1999. That is now the only issue in the trial before me. Mr McCullough QC, who appeared at trial for the Defendant having been instructed shortly before trial, no longer pursues the pleaded defence on causation. For completeness, however, I shall briefly mention the Claimant's case on causation.
The Claimant maintained that, if the aneurysm had been correctly identified in April 1999, the Claimant would have been referred for a neurosurgical/neurovascular opinion. If she had been referred, the aneurysm would have been characterised by means of either CT angiogram or a digital subtraction angiogram and on the balance of probabilities, a bi-lobed aneurysm measuring around 5–6mms would have been identified.
It was then very likely that active treatment would have been offered due to the Claimant's young age. In 1999 this may have taken the form of either a coiling or clipping procedure. It was most likely that a clipping procedure would have been offered.
The Claimant would have accepted the diagnosis and the recommendation for active treatment. The Claimant would have proceeded to open operation and a craniotomy to clip the aneurysm.
Given that this was an incidental aneurysm that had not ruptured, the clipping procedure would have had a 95–98% certainty of curing the aneurysm and have a largely unremarkable post-operative course and outcome. The Claimant would have returned to her full activities within 6–12 weeks.
The long-term prognosis would have been excellent, albeit her blood pressure and hypercholesterolaemia would have been scrutinised more carefully. Even if the Claimant would not have decided to have the aneurysm secured, the Claimant would have been subject to ongoing surveillance and annual MRI imaging. Given that the aneurysm upon rupture in September 2011 was significantly larger than at the time of the MRI brain scan in April 1999, the ongoing surveillance would have identified this progression and led towards active treatment for the same. On either scenario the catastrophic events of 8 September 2011 would not have occurred.
The issue
The issue is now a relatively narrow one, namely, whether the MRI scan in 1999 did indicate the presence of an aneurysm which a reasonably competent neuroradiologist would have identified and reported. The issue, though narrow, has sharply divided the two neuroradiology experts who gave evidence before me.
The expert evidence
The Claimant relied on Dr Paul Butler MRCP FRCR. Dr Butler is a consultant neuroradiologist in the department of neuroradiology at the Barts and The London NHS Trust. He also consults privately at the King Edward VII Hospital, Beaumont Street, W1G 6AA. Dr Butler has been a consultant since 1986, holding appointments at a number of hospitals and clinics. He was an examiner for the FRCR examinations at the Royal College of Radiologists, as well as lecturing in neurology. He has made many presentations in his specialist area and has been involved in various publications.
In his report of August 2014 Dr Butler stated:
"As a neuroradiologist one is first and foremost influenced by the clinical details on a request form and initial attention is directed to the regions on...
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