Mr Ian Marshall (Widower and Administrator of the Estate of Doreen Joan Marshall, Deceased, and on Behalf of her Dependants) v Doctor Mario Schembri

Hearing date: 23 rd, 24 th,25 th, 28 th and 29 th January 2019

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.

Introduction

The Claimant is the husband of Doreen Marshall (“the deceased”) who died on 26 ^th April 2014. The time of death was declared at 09:37 hours. The Defendant is a General Practitioner. It is admitted that the Defendant breached his duty of care to the deceased. It is denied that that breach of duty of care caused the deceased's death. Subject to causation, and therefore to liability, damages have been agreed between the parties. Thus, the sole issue for the court is causation.

On 25 ^th April 2014 the deceased attended at Shoebury Health Centre, Shoeburyness. It was about 4 p.m. Her presenting symptoms were chest pain and breathlessness. The deceased had a known history of pulmonary embolism (“PE”) from 2008. The admitted negligence is that the Defendant should have referred the deceased directly to Southend Hospital. He did not do so and the deceased returned home. She suffered a cardiac arrest at about 8.30 a.m the following morning. The paramedics attended but were unable to resuscitate her.

As the Defendant stated at the outset of its skeleton argument, this is a tragic case exacerbated by the admitted breach of duty.

The witnesses

I have heard evidence from the following witnesses. Their written evidence was as follows:

• witness statements of Mr Ian Marshall, the claimant, dated 9 ^th September 2017 and 8 ^th October 2018.

• report of Professor Duncan Empey, Respiratory Physician, dated March 2018.

• report of Doctor Keith Gomez, Haematologist, dated 27 ^th February 2018.

• report of Professor Peter Davies, Respiratory Physician, dated 3 ^rd May 2018.

• report of Professor Charles Hay, Haematologist, dated May 2018.

There are also Part 35 responses from Professor Empey. These are dated 26 ^th September 2018.

Professor Empey and Doctor Gomez are the experts relied upon by the Claimant. Professor Davies and Professor Hay are the experts relied upon by the Defendant.

There is a joint statement of all four experts. This is dated 31 ^st August 2018.

The central issue between the parties is that the Claimant's case is that the deceased would have survived had she been referred by the Defendant to Southend Hospital. The Defendant's case is that the deceased would have died in any event.

Terminology

PE has been described in the literature as “one manifestation of venous thromboembolism, the other being deep vein thrombosis (“DVT”). “Pulmonary embolism occurs when a DVT breaks free, passes through the right side of the heart, and lodges in the pulmonary arteries”. Elsewhere, it has been said that PE “is a condition in which one or more emboli, usually arising from a thrombus (blood clot) formed in the veins (or, rarely, in the right heart), are lodged in and obstruct the pulmonary arterial system.”

Relevant treatment for PE, for the purposes of this case, is as follows:

i) Anticoagulation: it is common ground that had the deceased attended hospital on 25 ^th April 2014, a diagnosis of PE would have been made and she would have received anticoagulation treatment, namely low molecular weight heparin (“heparin”).

ii) Thrombolysis: this is described as “clot-busting” treatment. The relevant drug used at Southend would have been alteplase. As the description implies, thrombolysis works by dissolving or removing already formed clots. However, it should only be used where indicated and where the benefits of treatment outweigh the risks, primarily risks of bleeding.

Mr Marshall's evidence

Having very briefly set out some preliminary explanation of the issues in this case, I now summarise Mr Marshall's evidence. I shall limit it to what is relevant to the issues of causation. What he says forms an important backdrop to the disputes between the experts.

Mr Marshall retired in April 2008, aged 63. His wife, the deceased, retired in October 2007, aged 58. In 2008 they were visiting friends in Edinburgh when the deceased developed a PE and was admitted to Edinburgh Royal Infirmary. She underwent thrombolysis and was prescribed warfarin for six months. She returned home and was treated by Southend Hospital. After the warfarin was stopped she was advised to wear TED stockings and to take Clexane for journeys lasting for more than two hours in any transport, and if she was involved in air travel. This she did. Otherwise the deceased was generally well.

It is important that I set out Mr Marshall's recollection in his witness statements as to the progress of the Edinburgh incident. The detail is in his supplementary witness statement. This supplementary witness statement was after the joint statement of the medical experts. Mr Marshall said that the intention of that statement was to “provide more detail of the events of August 2008 in Edinburgh and 25 ^th and 26 ^th April 2014, so far as I can remember.”

In relation to the Edinburgh incident he said:

“2…on the way up that year my wife felt a little bit unwell, it was just as we were outside Edinburgh. When we got to our friends' place she asked to go to the bathroom and collapsed on the floor. It was in the afternoon sometime, I think it was 4 p.m. The paramedics came very quickly and we explained to them that nothing like this had happened before. They did the necessary observations like putting the machine on her arm but everything looked normal. They advised her to just rest.

3. Later that evening at around 10 p.m. when we got into bed, she didn't get in. She said that she felt herself “going”. We called an ambulance again and they came quickly and this time they took her to Edinburgh hospital. It all happened so quickly once we arrived within an hour they knew what was up, although I had no idea. They decided to keep her in and she went onto a specialist ward. They told me that it was best I go home and get some sleep, so I did.”

In the week prior to 25 ^th April 2014 Mr Marshall and his wife had been gardening together. Mr Marshall went to the tip. When he returned at about 12.30 p.m, on 25 ^th April 2014 the deceased said she was not feeling right. She complained that she could not get to the top of the stairs without becoming breathless and that she had a nagging pain in the left side of her chest. She was a bit tearful and clearly worried. Mr Marshall telephoned the GP Surgery straightaway to make an appointment. He was given an appointment with the Defendant at 3.45 p.m. The deceased became a bit tearful again whilst she was in the Defendant's surgery. She explained to the Defendant that she was concerned, given her medical history. The Defendant examined the deceased and concluded that the most probable cause of her illness and pain was a strained muscle affecting her hiatus hernia. The Marshalls were both reassured by this.

Mr and Mrs Marshall returned home and the deceased took some ibuprofen as advised and rested for the remainder of the day. On the way home they took their time as they had done on the way to the health centre, because the deceased was a little breathless and she had pain on the right side of her chest. Mr Marshall does not remember his wife complaining of pain during the rest of the evening. He took that to mean that the ibuprofen had worked. Apart from making a sandwich tea, the deceased rested at home.

Normally the couple went to bed at about 10 p.m, however that evening the deceased went to bed at about 8.30 p.m. She was breathless and slower on the stairs then she would normally be. As Mr Marshall said in paragraph 10 of his second statement: “we put it down to what Doctor Schembri had said.” Mr Marshall went up to bed at about 10 p.m. Before that he went up to check if his wife needed a drink, but she had a glass of water by the bed. He thinks that the television was off in the bedroom and she was a bit sleepy.

Mr Marshall does not remember getting up in the night and does not remember his wife being up because, he says, he would have woken up too. Both of them were good sleepers at the time and tended not to have to get up in the night.

The next morning the couple woke at about 7.30 a.m. Mr Marshall switched on the television and went downstairs to make coffee. This was the normal routine. He returned upstairs with coffee for his wife. They chatted a bit about a wedding they were due to attend later that afternoon. That was the wedding of Mr Marshall's brother's grandson. Mrs Marshall then went to the bathroom which is just along the corridor from their bedroom, no more than half a minute away 1. She then called his name and sounded frightened. He ran in and found her sitting on the toilet in distress. She was struggling to breathe and was leaning on the wash basin next to the toilet. He said her colour was bad and her face was distorted. She was not conscious but she was still breathing. She collapsed.

Mr Marshall ran downstairs to call 999. He was advised to try to lay his wife on the floor on her side. He says he must have opened his front door and porch door because, after going back upstairs and trying and failing to lay his wife down, he started to go back downstairs again but the paramedics were already...