Ian Leslie Marriott and Another v West Midlands Regional Health Authority and Others (Third Defendant/Appellant)

Friday, 23 October 1998

Fourteen years ago between 11.30 pm and midnight on 3 October 1984 at his home at Burton-on-Trent, the plaintiff, Ian Marriott, a motor mechanic then aged 33, fell downstairs and struck his head on the wall at the bottom of the stairs. The force of the impact caused damage to the plaster of the wall and rendered him unconscious. His wife, Mrs Gillian Marriott, now his next friend, summoned an ambulance which arrived within 20 to 30 minutes. By the time it arrived the plaintiff was recovering consciousness. He was taken to Burton District Hospital, where he arrived at 12.20 am. On admission he was drowsy and smelt of alcohol. He was admitted for observation. X-rays of the skull and the cervical spine were taken and he was kept under regular neurological observation. During that period he was restless and vomited and was complaining of feeling unwell with headaches. His medical notes show that on that day (a Thursday) it was questionable in the morning whether he would be fit to be allowed to return home. However, when Mrs Marriott telephoned the hospital, she was told she could collect him that afternoon and did so. She collected him at about 4 pm. At this time he had substantial bruising to the left side of the face. He was unsteady on his feet and looked very ill.

On arrival home he lay down on the sofa. He did not want anything to eat or drink. At about 8.30 pm Mrs Marriott helped him to bed. He seemed very sleepy. The following day he spent most of the day on the sofa sleeping. In Mrs Marriott's words, he remained completely lethargic with no appetite. On the Friday and Saturday he got up late; he had simply sat on the settee and fallen asleep. Mrs Marriott was sufficiently concerned to contact the hospital on Saturday, and again on the following Monday, but on both occasions she was reassured by hospital staff. She was worried because his condition was not improving. He was still very drowsy and had headaches.

Eventually, on Wednesday, 11 October she telephoned her general practitioner, Dr Patel, to ask him to come to see the plaintiff at home. When he arrived she told him that the plaintiff felt very ill, was getting severe headaches and had no appetite. Dr Patel carried out neurological tests, but these did not elicit any abnormality. He had not received a discharge letter from the hospital, and he too reassured Mrs Marriott and told her that, if the plaintiff's condition deteriorated, she should contact him again and advised the plaintiff to take analgesics for his headache. Four days later, at about 11 o'clock in the evening on 15 October, the plaintiff's condition suddenly deteriorated. He complained of a much more severe headache, became unconscious and was taken back to hospital. He arrived there at about 2 am. On admission he was unconscious, not reacting to pain and he had a fixed and dilated left pupil. At 3.25 in the morning, whilst being transferred from the hospital to the North Staffordshire Royal Infirmary, he suffered a cardio-respiratory arrest in the ambulance. He was admitted to the infirmary as an emergency. A CT scan was carried out which showed that he had sustained massive left extra-dural haematoma. He was subsequently operated on and the haematoma was evacuated. At operation he was discovered to have a linear fracture of the skull and bleeding from the middle meningeal artery. His condition after operation was serious, but gradually he made some recovery. He is left with a hemiplegia, dysarthria and is severely disabled.

In these proceedings, through Mrs Marriott his next friend, the plaintiff claims damages against the Regional Health Authority. His writ was issued on 30 September 1987. He claimed he ought not to have been discharged from hospital after his original admission and that, if he had been kept under observation in hospital as he ought to have been and not discharged too soon, the fact that his condition was not improving would have alerted competent doctors to the seriousness of his injury.

On 5 June 1992 the plaintiff amended his claim to include a claim against Dr Patel. The plaintiff alleged that he too was negligent when he attended on 11 October. He ought to have realised the seriousness of the plaintiff's injury and referred him back to hospital. Had Dr Patel referred him back to hospital, further investigation would have shown that he had suffered an intracranial lesion. Operative treatment would then have prevented the catastrophic deterioration which occurred on 15 October 1994.

The plaintiff's action was not heard until June 1997 (we do not know why) but the delay did not make the judge's task any easier. The trial started on 16 June 1997 in the Birmingham Crown Court before Her Honour Judge Alton sitting as a judge of the High Court. The trial was confined to the issue of liability. On 27 June she reserved judgment, and on 29 August held that the defendant hospital authority was liable to the plaintiff, and that Dr Patel had also been guilty of negligence in failing to refer the plaintiff back to hospital when he visited on 11 October. Against that finding of negligence Dr Patel now appeals.

Dr Patel qualified in 1970. He had House jobs in Kenya from 1970 to 1973 and thereafter practised as a general practitioner there until 1980. He came to England in that year to work as a general practitioner in a practice at Olverseal near Burton-on-Trent, which had about 2,600 patients. His recollection of the visit to the plaintiff on 11 October 1984 was obviously reduced by the time which had elapsed. He did not know the reason for his call until he reached the home of the plaintiff, but he said he listened to the history stated by Mrs Marriott, though he made no notes of it. His recollection was that Mrs Marriott said that her husband had had a headache; that he had not been eating since the day he had fallen downstairs on Thursday, 4 October 1984. She had told him that the plaintiff had been taken to the hospital casualty department and had then been discharged the following afternoon. Dr Patel thought Mrs Marriott said that the plaintiff had been X-rayed, and that he would have asked her whether the plaintiff had been unconscious at the time of the accident. Not surprisingly, he could not remember the answer he had been given, but he did recall that Mrs Marriott told him that she had telephoned the hospital twice since the plaintiff's discharge and had been reassured.

He examined the plaintiff who was complaining of headache, he thought on the right side, whereas in fact it was on the left. He carried out a full neurological examination, but found no abnormal signs. In his statement he described giving Mrs Marriott detailed instructions should her husband's headaches get worse or should he suffer from double vision, vomiting, develop drowsiness or photophobia, and that she should either contact his surgery directly or take him straight back to casualty in that event. He recorded in the plaintiff's general practitioner's notes that there was no vomiting, no papilloedema (a sign which would have indicated a rise of intracranial pressure) no double vision, no evidence of intracranial pressure; that co-ordination was normal, and that the plaintiff should stay off work for two weeks and take paracetamol once or twice a day.

I have quoted from Dr Patel's statement at some length for it formed the basis of the expert opinion of Dr La Frenais, a general practitioner called as an expert witness in defence of the plaintiff's claim against Dr Patel. Dr La Frenais expressed the opinion that, in the circumstances stated by Dr Patel, he had been guilty of no breach of duty and that, whilst other doctors might have referred the plaintiff back to hospital, it was in accordance with a responsible body of professional practice not to do so and to leave the patient at home with the guidance given.

A different view was given to the Court by Dr Peter Fell, who was called to support the plaintiff's case. He thought that a general practitioner called to visit at home seven days after the plaintiff's accident, with a history of having been unconscious for a significant period and who had made no improvement during that period, would be greatly concerned. Finding that severe headaches still persisted, with loss of appetite and a general failure to progress, he ought to refer the patient to hospital for a comprehensive neurological examination. A general practitioner would not have the resources to investigate the complex of symptoms to exclude an intracranial lesion.

A significant factor which influenced his opinion was that Mrs Marriott had told him she did not recall Mr Patel performing any neurological tests, apart from asking the plaintiff to walk, testing his reflexes, and observing simple co-ordination tests such as touching his nose. After expressing his...