Mr John Lu v Nottingham University Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 13 March 2014 |
| Neutral Citation | [2014] EWHC 690 (QB) |
| Docket Number | Case No: TLQ/14/0039 |
| Court | Queen's Bench Division |
| Date | 13 March 2014 |
[2014] EWHC 690 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lewis
Case No: TLQ/14/0039
Mark Sutton QC and Ben Cooper (instructed by Weightmans) for the Claimant
Damian Brown QC and Ming-Yee Shiu (instructed by Mills & Reeve) for the Defendant
Hearing dates: 24 th, 25 th, 26 th 27 th 28 th February & 3 rd March 2014
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, Mr John Lu, is a consultant cardiac surgeon employed by the Defendant, the Nottingham University Hospitals NHS Trust ("the Trust") at a specialist unit for the treatment of heart disorders at the Trent Cardiac Centre ("the Centre"). In July 2009, a cluster of cases of infection, known as prothestic valve endocarditis or PVE, was identified. The source of the infection was ultimately identified as being Mr Lu. A strain of antibiotic-resistant bacteria had, unknowingly and without any negligence on Mr Lu's part, embedded itself in Mr Lu's skin. That bacteria was transferred to patients undergoing surgery to replace a heart valve. Tragically, 11 patients became infected. Five died and others required further operations or medical treatment. Mr Lu ceased practising heart valve surgery immediately and, in October 2009, ceased all surgery. There have been investigations into the outbreak. The Trust decided in August 2012 that Mr Lu could return to surgical practice subject to certain conditions. Mr Lu has not yet been able to return to surgical practice.
This claim concerns the arrangements relating to his return. It is agreed that, given Mr Lu's absence from surgery for some time, there will need to be a programme devised to enable him to begin to resume surgical duties in collaboration with others prior to commencing independent practice. Mr Lu contends, in summary, that the Trust agreed a suitable programme in September 2012 which would enable him to recommence surgical practice but subsequently resiled from that. He contends that the programme now proposed by the Trust is inappropriate in terms of its content, the lack of a clear timetable and the fact that the refamiliarisation process in relation to one type of surgical procedure will have to be undertaken at a different hospital not within the Centre. He contends that there has been delay on the part of the Trust in making appropriate arrangements to facilitate his return to surgical practice. He also contends that the process devised by the Trust to obtain consent by patients to his involvement in, or performance of, surgery is not required by law and is unjustified. He contends that these, and other matters, are either breaches of express terms of his contract of employment or are breaches of the implied term of mutual trust and confidence. He has affirmed the contract and wishes to return to practice. He seeks declaratory or injunctive relief aimed, in essence, at enabling him to resume surgical practice. The Trust denies that it has acted in breach of Mr Lu's contract of employment. The Trust contends that the steps taken are appropriate steps, in what it describes as the unique and challenging circumstances of this outbreak, to enable Mr Lu to return safely to surgical practice. The Trust counterclaims for a declaration in relation to the provision of certain information to patients. Both Mr Lu and the Trust are anxious to work together for the future to ensure that Mr Lu can return to surgical duties. They seek by this litigation to resolve certain outstanding issues that may currently be impeding progress in achieving that aim.
By way of background, I heard evidence from Mr Lu himself, Mr Surendra Naik, who is a consultant cardiac surgeon also employed by the Trust and Mr Brian Fabri who was a consultant cardiac surgeon in Liverpool from 1986 until his retirement on 31 December 2012. Mr Lu had been one of his trainees prior to being appointed a consultant cardiac surgeon himself. I also heard evidence from Dr Peter Homa who is the Chief Executive of the Trust, Dr Stephen Fowlie who is the Medical Director of the Trust and Mr David Richens who is a consultant cardiac surgeon and has been employed by the Trust since 1982.
This judgment firstly deals with the material facts. In many instances, facts are not in dispute or are evidenced by the contemporaneous record. In some instances, however, there are factual issues in dispute and I set out my conclusions on those factual issues. Secondly, the judgment deals briefly with the law. The legal principles are not in dispute. It is their application to the facts that is in issue. Thirdly, this judgment then deals with the question of whether or not any of the alleged breaches of contract are established.
THE FACTS
The Centre and Its Work
The Centre undertakes most types of adult cardiac surgery. There are five cardiac surgeons employed to work at the Centre. They include Mr David Richens, Mr Ian Mitchell, Mr Surendra Naik and Mr Lu. Mr Lu qualified as a doctor in 1995. He subsequently specialised in cardiac surgery. He was one of the trainees on a seven year higher surgical training course at Liverpool which he undertook between 2000 and 2007. He worked as a locum consultant in Liverpool for his final three months there. He took up the post of consultant cardiac surgeon at the Centre in October 2007.
The surgery undertaken at the Centre includes coronary artery bypass graft surgery and also heart valve replacement surgery. The bypass surgery occurs when an artery is blocked or damaged or restricted. The surgery, broadly, involves one of two procedures. The procedure used by the majority of cardiac surgeons involves stopping the heart and using a cardiopulmonary bypass machine or "pump". Blood is diverted to the pump, oxygenated in the pump and then pumped into the aorta in order to circulate around the body. This means that the patient's heart is excluded from the process of circulating the blood whilst the patient is being operated upon. Sections of vein, taken from elsewhere in the body, are then grafted on to the artery to bypass the blockage. This is referred to as "on pump-surgery". An alternative procedure used by a smaller group of cardiac surgeons is known as "off-pump surgery". In this technique, the heart is not stopped and continues to circulate blood around the body. A section of artery (or, in some instances, venous material) is then grafted on to the artery to bypass the blockage. In the Centre, only Mr Naik and Mr Lu perform off-pump surgery. In the case of heart valve surgery, valves controlling the flow of blood become diseased or malfunction and need to be replaced. A prosthetic valve is then inserted in place of the original valve. Antibiotics are used at the start of the process to prevent infection of the prosthetic valve. Again, a cardiopulmonary bypass machine is used in heart valve surgery. Coronary artery bypass graft surgery may need to be combined with heart valve surgery (and approximately 50% of cardiac operations at the Centre involved such combined surgery). Such combined operations are done using the cardiopulmonary bypass machine and so involve on-pump surgery. There are also occasions when on-pump coronary artery bypass graft surgery (rather than off-pump surgery) is clinically indicated for a particular patient or on-pump surgery may become required during an operation which began using off-pump surgery. Consequently, any cardiac surgeon performing off-pump surgery must also be able to perform on-pump surgery.
The Outbreak
Prosthetic valve endocarditis or PVE is an infection of the prosthetic or replacement heart valve. It is usually caused by a bacterial agent. The infection usually, but not always, occurs during the operation to replace a diseased heart valve with a prosthetic valve. Between 2 November 2007 and 25 November 2008, Mr Lu had carried out 43 heart valve replacement operations. There were no cases of PVE infection.
In July 2009, however, a cluster of cases of PVE were identified in patients operated upon by Mr Lu. Mr Lu immediately decided to cease carrying out heart valve replacement surgery. In October 2009, Mr Lu also agreed to cease carrying out other surgery. Mr Lu remains employed by the Trust. He continues to receive his usual salary and other entitlements. He undertakes other responsibilities. He does not, however, carry out any surgical duties.
The outbreak had tragic consequences. In total, 11 patients operated on by Mr Lu between December 2008 and July 2009 were infected with PVE. Five of those patients died as a result of the infection (two after undergoing further surgery). A further five underwent further surgery (involving seven operations in total). It was the worst recorded outbreak of PVE to have occurred anywhere in the world.
There were investigations carried out into the outbreak. Mr Lu co-operated fully with those investigations which included microbiological testing and examination of his surgical procedures. Mr Lu is a consultant who is, clearly, dedicated to the care of his patients and to his profession. He wished to do all he could to identify the source of the outbreak.
The Serious Untoward Incident Inquiry
An investigation, known as a Serious Untoward Incident Inquiry, was carried out by a panel. The panel's initial report ("the SUI report") was completed in about May 2010. In summary, it found that the cases were caused by the same strain of bacteria, a strain of Staphylococcus epidermis, which had been resistant to the antibiotics given routinely to protect against infection...
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Health Alert (Australia) - 24 March 2014
...Act 1985 s 68. United Kingdom 13 March 2014 - Mr John Lu v Nottingham University Hospitals National Health Service (NHS) Trust [2014] EWHC 690 (QB). The Claimant, Mr John Lu, is a consultant cardiac surgeon employed by the Defendant, the Nottingham University Hospitals NHS Trust ("the Trust......