Ibiyinka Macaulay v Dr Abdul Karim and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Foskett |
| Judgment Date | 14 July 2017 |
| Neutral Citation | [2017] EWHC 1795 (QB) |
| Docket Number | Case No: HQ/15/C02743 |
| Court | Queen's Bench Division |
| Date | 14 July 2017 |
[2017] EWHC 1795 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr Justice Foskett
Case No: HQ/15/C02743
Simeon Maskrey QC and Ashley Pratt (instructed by Russell-Cooke LLP) for the Claimant
Jane Mishcon (instructed by Brachers LLP) for the 1 st Defendant
Bradley Martin (instructed by Capsticks LLP) for the 2nd Defendant
Hearing dates: 26–28 April, 2–5 May, 8–9 May and 11 May 2017
Judgment Approved
Introduction
The Claimant ('C'), who was then aged 53, was admitted as an emergency to King's College Hospital ('KCH') in the very early hours of the morning of 15 October 2011 in septic shock. He underwent extensive surgery later that day, probably commencing at about 10. 00 or 11.00 or thereabouts.
The net effect of the surgery that day (from which he was fortunate to survive) and of subsequent operations and/or surgical procedures thereafter was that it was necessary for his left leg to be amputated below the knee and for his right toes and his right fingers and thumb also to be amputated. He is plainly significantly disabled and disadvantaged in consequence.
He had in fact visited his GP, Dr Abdul Karim ('D1'), at what was then the South Croydon Medical Centre, on 12 and 14 October and had presented himself at the A & E Department of what was then known as the Mayday Hospital in Thornton Heath, South London, on 13 October, making various complaints about the way he felt, but none of these attendances resulted in a diagnosis and treatment of the condition that led ultimately to the surgery referred to above.
The essential issue in the case is whether Dr Karim and/or the Mayday Hospital (now known as Croydon University Hospital), for which Croydon Health Services NHS Trust ('D2') is responsible, were negligent in not identifying the underlying problem or its general nature sooner and taking steps to bring forward treatment, including surgery, that would have prevented or reduced the serious consequences summarised above.
That broad issue in the case is easy to identify. For reasons that will emerge, it is far less easy to resolve. One major issue is the question of precisely what the underlying condition was that led to the need for surgery: put shortly, was the very significant infection that became apparent on his admission to KCH one that commenced in the pelvis (as a result of a perforated sigmoid colon diverticulum) and tracked down (as has been suggested on behalf of D1 and D2 since November 2016) or one that started in the perianal region, became more severe in the form of necrotising fasciitis and in consequence tracked upwards (as is contended on behalf of C)?
The distinction between these aetiologies is said by D1 and D2 to make a material difference to the likely presentation of C's symptoms at important times in the chronology and to the potential effectiveness of any earlier operative intervention. Ms Jane Mishcon, for D1, submitted in her opening Skeleton Argument that the finding "as to the aetiology of the sepsis will be pivotal to the outcome of [the] case", a proposition she repeated in her closing submissions. Mr Simeon Maskrey QC, for C, whilst accepting that the issue might be important to one part of the claim against D1, does not accept that it alters materially the overall case he advances against D2 in respect of 13 October 2011 or against D1 in respect of 14 October 2011. He maintains that the case advanced by C in relation to the aetiology is, in any event, correct. I will revert to this debate in due course, merely noting at this stage that I received evidence from experts in six different specialities at least three of which had some bearing on this issue. (For convenience, I identify those experts in Appendix 1 to this judgment.) It is also a case where the boundaries between the various specialities arguably overlap. Clearly though, in line with the directions applicable to a trial such as this, the evidence of each expert must be addressed on the basis of whether the particular expertise is relevant to the issue being considered.
Whatever the outcome of the case, it is right to acknowledge that C appears to remain a very cheerful character who does not look for sympathy. Nonetheless, Ms Mishcon and Mr Bradley Martin, for D2, both prefaced their cross-examinations of him (and indeed his wife) with appropriately generous expressions of sympathy for what he and his wife, and thus their family, have been through. Anyone who knew of the circumstances of the case would wish to do the same. I have referred already (see paragraph 2) to early concerns about whether he would survive, but it is to be noted that he remained at KCH initially for about 14 weeks (during which period he spent a prolonged period in intensive care) before being transferred to Guys and St Thomas' for reconstruction and rehabilitation in the plastic surgery unit. He returned to KCH for a further 10 weeks before being discharged in early April 2012. He is now left with the permanent consequences to which I have referred.
I will turn to the background to the eventual admission to KCH in more detail. There are several material issues of fact which I will identify as I set out the background without, at this stage, necessarily seeking to resolve all of them. This is one case in which standing back from a detailed analysis of the individual components of the narrative and looking at the broader picture with the assistance of the expert evidence may prove necessary to enable findings of fact to be made based on the balance of probabilities. In some particular respects, I will be able to indicate my findings as I proceed through the chronology, but many of the more difficult issues will have to await determination until the broader picture has been examined. The resolution of these issues is rendered less easy because the general quality of many of the clinical notes (including issues of pure legibility) at material times is poor and timings are, in some respects, unclear. A number of the experts had difficulty in interpreting features of the notes. That makes the court's position particularly difficult.
In relation to the account of events given by C, it will be important to bear in mind that it was not until his discharge from hospital 6 months after the dramatic events of October 2011, and thus after 6 months of prolonged treatment and hospitalisation, that he will first have had a reasonably settled opportunity to piece together his recollection of what occurred over those few days in the preceding October. He would not have had any records available with which to check his memory when putting together that recollection. As will emerge, this has some significance in determining what happened.
Background in more detail
C was born on 11 August 1958. His wife, Victoria, was born in 1975 and was thus 36 at the time of the material events. At that stage they had two daughters, aged nearly 5 and nearly 2 respectively. Since then they have had a third daughter born in November 2016.
C had a medical history of Type II diabetes (which did not require insulin). He was regarded as "obese" by medical standards. On 23 September 2011, and thus less than 3 weeks before the material events, his weight was recorded by his GP practice as 135 kgs, which is a little over 21 stone. On 27 July 2011 he was 142 kgs (22 stone 5 pounds) with a Body Mass Index of 46.37 which was undoubtedly very high (evidencing "severe morbid obesity", according to Professor Sells). His diabetic management was generally good and it was monitored at the surgery where D1 was a practitioner. The fact that C was an obese diabetic is said to be relevant to the way his presentation in October 2011 should have been addressed.
C's recollection is that he started feeling unwell on 11 October 2011 (which was a Tuesday) and on the following day he telephoned the South Croydon Medical Centre. D1, who had dealt with C on previous occasions (including recently in July, August and September 2011 for hay fever, cough/sore throat and gout respectively), telephoned him back at about "lunchtime" (according to C) and "after 1 pm" (according to D1). It was a day when the surgery closed at 1 pm and D1 says that he would stay on to carry out other work after the rest of the staff had left. The precise timing of the telephone conversation does not matter for this purpose.
C's evidence is that he told D1 that he felt unwell and had flu like symptoms. He also said that he told D1 that he "was struggling to pass urine and was suffering from constipation." His account is that D1 said he needed antibiotics and that he should go to the surgery to collect the prescription.
D1's account has some similarities, but there are differences. His note of the telephone consultation is that C was complaining of a cough, fever, sore throat and shivering. It records that C had been taking paracetamol and was feeling better, but that he felt "unwell". The note concludes with the words "also dm needs abx." The "dm" refers to the diabetes and the expression "needs abx" means "needs antibiotics". In fact, the note does not record which antibiotics were prescribed, but there is another internal record of the practice that indicates that he was prescribed Amoxicillin tablets (500 mg) three times per day, an antibiotic that he had also prescribed in August. The note recorded by D1 indicates that C had also been prescribed Loratadine, an antihistamine. That was provided, apparently, because C had suffered from hay fever in the past, though this was not recorded in the note.
The note does not record any complaint of difficulty passing urine or of...
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