FB (suing my her Mother and Litigation Friend WAC) v Dr Sohail Rana and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 02 June 2015 |
| Neutral Citation | [2015] EWHC 1536 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: HQ13X03235 |
| Date | 02 June 2015 |
[2015] EWHC 1536 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: HQ13X03235
Ms Philippa Whipple QC (instructed by Attwaters Jameson Hill) for the Claimant
Mr Martin Porter QC (instructed by Gordons Partnership LLP) for Dr Rana
Mr John Whitting QC (instructed by Kennedys Law LLP) for the Second Defendant
Hearing dates: 11 th– 15 th and 18 th May 2015
Introduction
At the outset of these proceedings, and in line with the principles explained by the Court of Appeal in JX MX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, I made an Order anonymising both the Claimant and her Mother and Litigation Friend. I will refer to them throughout this Judgment as "FB" and "WAC" respectively.
This is a claim for damages for clinical negligence arising out of events which occurred in late September 2003. FB, who was born on 14 th August 2002, was just over 13 months old at the material time. Dr Sohail Rana, the First Defendant, was working for an out-of-hours GP cover service, and saw FB at 21:40 on Sunday 28 th September. The essence of the case against him is that he failed to take a proper history, to carry out a proper examination of FB, and to heed what he was being told about FB's condition by WAC. Had these omissions not occurred, it is FB's case that she should have been referred to hospital at a stage when the administration of antibiotics would have been effective; but in the events which happened, she was not. Shortly before 04:30 on Monday 29 th September WAC called the out-of-hours service which in turn telephoned emergency services, and an ambulance arrived shortly thereafter. FB was taken to the Princess Alexandra Hospital in Harlow and arrived there at 04:45. In due course she was seen by an A&E SHO, Dr Rushd. The essence of the case against the Second Defendant is that Dr Rushd failed to take an adequate history — and in the result was left unaware of a number of matters which, if known, would have led to a different course of action – and also failed to carry out an adequate examination. Rather than being sent home, it is FB's case that she ought to have been referred to the paediatric team. At that stage too, the administration of antibiotics would have been effective.
Later that same day, FB returned to the Princess Alexandra Hospital, and after a period of delay which the experts agree was not causative, intravenous antibiotics were administered. Unfortunately, FB developed pneumococcal meningitis combined with other features, and she sustained irreversible brain damage. FB now has bilateral and profound hearing loss, and learning difficulties. It is her case that these consequences would have been avoided but for the clinical negligence of Dr Rana and/or the Second Defendant.
Pursuant to the Order of Master Cook dated 20 th February 2014, this trial is confined to the issue of liability. The precise meaning of paragraph 5 of Master Cook's Order was debated at the start of the hearing, but an agreed position has been reached whereby I am required to determine the issues of breach of duty as against both Defendants, and whether (if established) such breach or breaches were causative of any material loss and damage.
Essential Factual Background
Before examining the witness evidence, both lay and expert, I should set out a narrative of events in chronological order. At this stage, I will be relying primarily on contemporaneous documents, and focusing on what I consider to be the critical matters. FB does not accept that many of the records give an accurate picture of what actually occurred, but it is nonetheless helpful and convenient to set out in a relatively neutral manner, what at least appears to have happened, before addressing the facts in issue. It should be emphasised that I am not necessarily accepting that any particular contemporaneous note constitutes an accurate record of any underlying fact – I will be making relevant findings as to those matters at a later stage.
At the material time, in September 2003, FB was living with her mother and father at an address in Harlow. Before that month, FB had enjoyed good health and there is nothing remarkable in her GP records. At this stage, WAC was aged 19 and the father aged 20.
From about 18 th September 2003 FB was not quite herself. She appeared to be off her food and had a slightly raised temperature. Matters continued in this way until Saturday 27 th September when WAC began to be more concerned. She had a high temperature, she was not eating properly, and she appeared to have a heat rash.
Accordingly, at 13:15 on 27 th September WAC contacted the local GP out-of-hours service. According to the note which was recorded on the computer system of the Practice, the history she gave to the triage nurse was of "temperature since last week every night/red rash/teething/temp 40 today/not eating well/given calpol. Sleepy. Refer Primary Care" (in this note, as in later notes, I have expanded to the extent required any terms which have been abbreviated). A transcript of the conversation is also available and confirms that the computer record is an accurate summary of the call.
Following the triage there was a telephone consultation between WAC and Dr Aitchison (or Aitcheson) which took place at 13:40 on 27 th September. This consultation has also been transcribed, and the salient parts of it read as follows:
"This is her mum speaking. She had a temperature last week. She's been teething, her teeth are cut through now. She had a temperature last night and one this morning. It's 40 and I've given her calpol and it's gone down. She's not been herself – you can see it in her eyes and that and she had a slight red rash come on her neck. She is not really eating properly and I am a bit worried about her.
[Dr] When did all this begin?
[WAC] I went away last week. It must have started last Saturday [19/9/03]. I thought it was teething but I knew her teeth have cut through now and I can't see why she getting temperatures.
[Dr] … it is peak time for viral illness. Children go back to school and give each other viruses.
[WAC] I've given her calpol … one 5ml … it's helping but last night she had a temperature.
[Dr] If helping a little bit you could double [the] dose up to 10 mls. … These things tend to get better in 2 to 3 days. So double up the Calpol and if things don't settle ring me back in one hour or two's time …"
FB's symptoms did not improve and WAC made another call to the out-of-hours service. No record of that call is available, but at 16:20 FB was seen at Sawbridgeworth by Dr van Terheyden. The information he had, presumably from the triage nurse, was of "temperature for one week? teething. Given calpol/medicine not working. c/o loss of appetite". WAC's evidence was that FB had perked up in the doctor's surgery. By 17:02 Dr van Terheyden concluded the consultation by recording that a mid-stream specimen of urine would be supplied to FB's GP's practice on Monday, from which it may be inferred that he suspected an infection in that region. Any note Dr van Terheyden took of this consultation is no longer available. FB and WAC then went home.
FB's condition deteriorated at home, and at 22:29 on 27 th September WAC telephoned the out-of-hours service again and spoke to Dr Danaswamy. A transcript of the call is available:
"[WAC] I rang earlier today. I don't know if you've got my details down because my little girl, she had a temperature and I went to emergency doctor earlier in my local area and he couldn't find anything wrong. He said she's got such a high temperature that she might have a water infection. He gave me some samples that I've got to take on Monday. She's been very not herself. She's still got a temperature. It went down but it's gone back up to 40 now. She had two lots of calpol and I can't keep giving it to her obviously coz I'll overdose on it.
…
[Dr] You can alternate nurofen with calpol and paracetamols … you can give it to her now quite safely … but I want you to sponge her down … I want you to take all clothes off her. It's better when you are sponging to take all clothes off her and get a basin of lukewarm water with a paper towel in it and rinse it, rub all over her body … and keep her with you tonight and if you are still worried at any time give me a call back."
WAC's evidence, which I will be coming to in due course, is that FB had a "terrible night" and vomited at least five times – the vomit was a dark, bile-like colour. At approximately 05:00 on Sunday 28 th September FB fell asleep and woke up at around midday. It was not altogether clear from WAC's evidence whether this was continuous or interrupted sleep, but nothing turns on that. At about midday FB's father was at home, and he remained with WAC and FB until he went to work on Monday morning. That Sunday afternoon, FB was not improving, and at 14:34 WAC telephoned the out-of-hours service and spoke to a triage nurse, Ms Caroline Joslin. It is clear from the computer record that the nurse went through the standard list of triage questions or algorithms for a toddler complaining of fever. WAC answered "no" to the series of questions designed to elicit breathing difficulties. Thereafter the notes read:
"SAW DR YESTERDAY AND THOUGHT SHE HAD A URINE INFECTION
Does the toddler have any of the following?
[ ] Drowsy (can't be woken or aroused)
[ ] More floppy than is normal
[ ] Agitated and/or irritable for over 4 hours, and not calmed down when being held or cuddled
[ ] Persistent weak/moaning cry
[ ] Responds less to what is going on around or when talking to them
— NO
SLEEPY
Does the child have...
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