Marcus v Medway Primary Care Trust and Another
| Jurisdiction | England & Wales |
| Judgment Date | 22 July 2010 |
| Neutral Citation | [2010] EWHC 1888 (QB) |
| Docket Number | Case No: HQ08X01154 |
| Court | Queen's Bench Division |
| Date | 22 July 2010 |
[2010] EWHC 1888 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: Andrew Edis, Q.C. (Sitting as a Deputy Judge of the Queens Bench Division)
Case No: HQ08X01154
Eliot Woolf (instructed by Gadsby Wicks) for the Claimant
Alexander Hutton (instructed by Barlow Lyde and Gilbert) for the First Defendant
Richard Partridge (instructed by Berrymans Lace Mawer) for the Second Defendant
Hearing dates: 12 th 14 th 15 th and 16 th July 2010
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Andrew Edis, Q.C. sitting as a Deputy Judge of the Queens Bench Division:
The Claimant, Sebastian Marcus, suffered cruel misfortune in the first half of 2005 when he was 31 years old. He contracted a very unusual condition for a man of his age, namely the occlusion of the arteries of his left lower leg. The cause of this, I find, was embolisation from a lesion in the abdominal aorta which may have been the result of his smoking habit. This conclusion was advanced by Dr. Ashleigh, consultant interventional radiologist who gave expert evidence in this case, and supported, with less certainty, by the three vascular surgeons who gave expert evidence. It is based on the appearance on the angiogram performed on 13 th May 2005 to which I shall come later. These occlusions caused ischaemia in the foot which caused very severe pain and resulted in the below knee amputation of the left lower limb on 20 th June 2005. In fairness to the doctors who saw him while this condition was developing, two of whom have admitted breach of their duty of care to him, I should record that this presentation is so unusual that specialists who serve a large population area told me that they might see no more than 2 or 3 cases a year. The First Defendant's employee diagnosed ischaemia, but failed to take the appropriate steps thereafter. The Second Defendant failed to diagnose ischaemia at any time on the three occasions when he saw him. Ischaemia occurs when the perfusion of tissue is inadequate at rest, denying oxygen to the muscles and causing very acute pain. If uncorrected it may lead to tissue death and amputation of the affected area. I attempt to explain other anatomical and clinical language at paragraphs 8 and 9 below.
No allegation is made in these proceedings about the treatment which was provided to him at the time of the amputation, or at any time after his admission to the Medway Maritime Hospital on 12 th May 2005. The Claimant's case is that between them the Defendants saw him on 4 dates during April 2005 and that their negligent failure to secure earlier intervention by a vascular surgeon caused delay which resulted in the loss of the lower part of his left leg. The First Defendant, through its employee Dr. Ruth Thom, a General Practitioner working in the Same Day Treatment Centre (SDTC) saw him first, on the 6 th April 2005. The Second Defendant, who was acting as a locum in the Claimant's own GP practice, saw him on the 14 th, 21 st and 28 th April.
The Second Defendant admitted in its Defence on the 1 st December 2008 that “immediate referral to a hospital for a vascular assessment was required” on each of the three dates on which he examined the Claimant. No such referral occurred. The First Defendant served a Defence on 12 th November 2008 denying breach of duty, but, by a letter sent on 7 th July 2010, 2 working days before the start of the trial, has now made an admission in the following terms:-
“The First Defendant admits paragraph 26(i) of the Particulars of Claim, save that, in relation to sub-paragraph (e) thereof, it avers that it is probable that there was no malleolus (posterior tibial) pulse present at that time. Further, the First Defendant admits that its servants or agents should, as a consequence and as a minimum acceptable treatment in the circumstances, have ensured that the Claimant consulted his GP with a recommendation for urgent referral for vascular assessment, in accordance with the agreed answers to Question 1 of the Joint Statement of GP experts dated July 2010.”
On the first day of the trial I was informed by counsel that they had agreed quantum. Therefore, the only issue which I am required to resolve is causation. There are three possible outcomes to the determination of this issue, which I shall further define at paragraph 5 below. They are
i) The blood supply to the limb might have been entirely restored, resulting in a normal left leg, or perhaps with some symptoms. This is the Claimant's pleaded case.
ii) The process may have been arrested by earlier anti-coagulant therapy at a time when a viable supply to the left lower leg was being achieved by collateral vessels. This would have resulted in a permanently symptomatic lower limb but the amputation would have been avoided. This arose from the exploration by Mr. Hutton, for the First Defendant, with Mr. Collin, the Claimant's expert, of the hypothesis that the occlusion may have been at ankle level rather than in the foot, or higher up above the ankle. The Claimant's case had been that the occlusion was higher up, and the Defendants’ case was (and is) that it was lower down below the ankle, namely in the foot. Mr. Hutton was exploring a new hypothesis which Mr. Collin told me he regarded as tenable. It was reasonable therefore for Mr. Woolf to explore in re-examination what implications for causation that possibility might have. He did this without objection and Mr. Collin told me that in that event, if there was simply a blockage at the ankle and anti-coagulant therapy had been provided before the blockages higher up, then the leg might have been saved by the preservation of the status quo at that stage. Professor McCollum, the expert vascular surgeon called by the First Defendants, agreed that there was a window in which anti-coagulant therapy would have had this effect. He said that the window was from mid-March to 6 th April. Mr. Brearley, the expert vascular surgeon called by the Second Defendant, thought it possible that at a very early stage anti-coagulant therapy might have had this effect, but he was less confident of the outcome than either of his colleagues. The evidence therefore exists for me to consider this un-pleaded third possibility, even though it was not foreshadowed in any expert report served prior to trial. I shall do so.
iii) If I find that the Claimant's left lower leg was at all material times destined for amputation, then the Claimant can still recover damages for pain and suffering, because he was denied appropriate analgesia by the negligence of the Defendants for the period between 14 th April 2005 and 12 th May 2005 (28 days). For reasons which appear below, the Second Defendant is responsible for the whole of this period, and the First Defendant responsible for the time between 20 th April 2005 and 12 th May 2005 (22 days). I have not been asked to apportion liability between them. Although not formally conceded on behalf of the Defendants, in my judgment there can be no answer at least to this element of the claim, and the Claimant will be entitled, at least, to general damages on this basis. It follows from their admissions that they were negligent in failing to secure the referral of the Claimant to a vascular surgeon that they caused him to be denied proper treatment for a period of time. Much of this treatment may have been doomed to failure, but the use of appropriate analgesia in hospital while it was being attempted would have alleviated the symptoms. This Claimant did therefore suffer avoidable pain caused by the admitted fault of the Defendants. I shall not deal with this aspect of the claim further, but will assess the damages recoverable on this basis at the end of this judgment since they either form part of the claim or all of it.
The Issue
For reasons which I address in paragraph 6 below, the issue on causation is as follows:-
i) Outcome Number One: complete recovery.
a) What was the latest date when intervention by a vascular surgeon would have saved the Claimant's leg?
b) If that date is a date before the 14 th April 2005, the claim on this basis fails.
c) If that date is a date after the 14 th April but before 20 th April then the claim succeeds against only the Second Defendant.
d) If that date is after 20 th April then the claim succeeds against both Defendants. No submissions have yet been made to me about apportionment of liability between them as joint tortfeasors.
ii) Outcome Number Two: amputation avoided, but leg remaining permanently symptomatic.
a) What was the latest date at which anti-coagulation medication would have preserved a compromised supply to the left lower limb, and prevented further embolisation?
b) If that date is a date before the 14 th April 2005, the claim on this basis fails.
c) If that date is a date after the 14 th April but before 20 th April then the claim succeeds against only the Second Defendant.
d) If that date is after 20 th April then the claim succeeds against both Defendants. Again, no submissions have yet been made to me about apportionment of liability between them as joint tortfeasors.
Before proceeding further, I should explain why the critical dates identified above are different so that the date is later for the First Defendant than it is for the Second Defendant, even though the First Defendant saw the Claimant first. The First Defendant contends that a proper course for Dr. Thom to adopt on 6 th April 2005 was to ensure that the Claimant was seen by his own GP as a matter of urgency, with the signs of vascular compromise which she had detected being...
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