Mrs Jolene Sims (as Widow and Administratrix of the Estate of Paul Sims, Deceased) v Dr Neil MacLennan

Hearing dates: 30 June, 1 & 2 July 2015

Approved Judgment

Introduction

The Claimant is the widow of the late Paul Sims who died of a stroke on 7 ^th September 2011. The Claimant brings this claim against the Defendant to recover damages on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act 1934 and in her own right as a dependent under the Fatal Accidents Act 1976.

The Defendant was a general practitioner but is now retired. On 21 ^st November 2002 the Defendant, who was not Mr Sims' regular GP, carried out a medical examination of Mr Sims. Mr Sims had previously been disqualified from driving for 24 months having failed a breath test with 2 ¹/₂ times the permitted level of alcohol. The examination was a pre-condition of the renewal of his driving licence. During that examination the Defendant took his blood pressure which was recorded in the DVLA form DR3 as 182/105. This is regarded as raised, the upper normal limit being 140/90.

The Claimant alleges that the Defendant failed to advise Mr Sims to make an appointment with his regular GP in order to have his blood pressure checked out. The GP experts appointed by each side agree that if such advice was not given then this would have fallen below the necessary standard and the Defendant would be liable for any loss proved to have been caused by it.

The Defendant's case is that although he has no specific recollection of the examination and there is no relevant note of his having given this advice, he would normally have advised the patient in similar circumstances that he may have hypertension and should make an appointment with his GP.

Quantum has been agreed at £40,000 subject to the issues of liability and causation.

The issues

It is agreed between counsel that the following central issues arise:

i) did the Defendant advise Mr Sims on 21 ^st December 2002 to see his GP about the blood pressure reading?

ii) did Dr Fleminger, Mr Sims' regular GP, advise him when he saw him in September 2007 that he should have his blood pressure taken by the practice nurse?

iii) if the court finds that Mr Sims was not given the alleged advice in 2002, would he have attended his GP had been so advised and, if so, would his blood pressure have been elevated?

iv) if he had been advised to take measures to deal with any hypertension – medication and lifestyle changes – would he have taken the medication and made the lifestyle modifications?

v) assuming that Mr Sims had followed any advice to deal with hypertension, would this have prevented his strokes in 2011?

vi) if he had not been advised about any hypertension until September 2007, and not therefore started any remedial action until then, would that have prevented the strokes if he had followed the advice?

vii) there are issues of law about the burden of proving causation which I will deal with when I set out my decision on the law.

The witnesses

For the Claimant I heard evidence from the Claimant and from her sister, Katrina Robinson. The Defendant gave evidence and called Dr Fleminger under a witness summons (a gist statement having been served), although this was for various technical reasons and casts no reflection on him or on the parties.

There were 4 experts: a GP and a neurologist for each side. There was nothing relevant in issue between the GP experts but significant differences between the neurologists.

Liability — the facts

The Claimant was born on 17 ^th April 1950 and married the Claimant on 20 ^th April 1974. Between 1985 and 2004 the Claimant and her husband were in partnership together in a hand/processing/printing photographic business.

On 12 ^th April 2001 Mr Sims was disqualified from driving for 24 months which was reduced to 18 months after attendance at an approved course. The Claimant says that this was out of character and that he felt disappointed with himself. She explained that it had occurred only because of emergency during his daughter's 16 ^th birthday party because he did not wish the Claimant and his daughter to drive to an area of Oxford which had a reputation for public order problems.

In order to obtain the re-instatement of his licence, the Claimant was required to undertake a medical examination. The Defendant was a GP at the time. He is now retired but had been in practice as a GP in Oxford since 1973. He retired in 2009 as senior partner in the same practice. In 1974 he had taken over carrying out DVLA assessments from a colleague in the practice and would also do insurance assessments. His evidence was that he would usually do a session each week, seeing three or four patients each session with 30 minutes allocated to each patient.

On 21 ^st November 2002 the Claimant drove Mr Sims for the independent medical examination by the Defendant although she was not present during it. She appears to have remained in the car while the examination took place. The only direct evidence of what took place at this examination is from the Defendant and he says that he has no specific recollection of it since it occurred 12 years ago. His recollection is based on the contemporary notes which he made at the time and from his " habitual practice". There is secondary evidence from the Claimant and from Ms Robinson who made statements of what they say Mr Sims said to them following the examination.

The Claimant's evidence was that she remembered the appointment with the Defendant clearly because Mr Sims " was quite worried [about it] as his licence was important to him and he was keen to drive again". She drove him to the Defendant's surgery and waited in the car while he went inside for the examination. She said in her witness statement that when he came out he appeared relaxed and his first words to her when he got into the car were " I've got white coat hypertension you know". They had a quick chat about this in the course of which he said he had a high blood pressure reading because of his " fight and flight" anxiety about the appointment (words which she said were Mr Sims interpretation of what he had been told). The witness statement does not mention any further discussion about the examination but the Claimant says that if Mr Sims had been given any advice to do anything about his blood pressure, then she would have expected him to have mentioned it to her.

There is not dispute about the length of the examination (which was at 9.45 am). The Claimant says she waited in the car for about 30 minutes which ties in with the time allocated to each patient by the Defendant.

In cross-examination the Claimant said that Mr Sims had been worried before the examination and had no idea what it would entail. She was asked why, if he had been anxious about getting his licence back, he had not mentioned this first when he returned to the car. She said he had done, at the same time, but although she was sure that he had mentioned white coat hypertension, she was not that clear in her recollection of the conversation. She was asked why she had any recollection of this and said that it was because the death certificate had stated the cause of death as " stroke caused by hypertension" and this led her to recall the conversation in the car.

The Claimant was also asked about a meeting she had on 11 ^th November 2011 with Dr Singh and Dr Reckless (treating clinicians who were involved with the treatment of Mr Sims following his stroke in 2011)) after Mr Sims' death. She wrote a letter to them after the meeting in which she said this: " I don't remember whether I explained my question i.e. that Paul had never been medicated for hypertension despite the fact that he was told that his BP was "high" but probably due to white coat hypertension (Dr MacLennan, November 2002)". Mr Peacock for the Defendant, put to her three possibilities as to what Mr Sims had said to her in the car: (1) that " he had white coat hypertension"; (2) that " he probably had white coat hypertension"; or (3) that " he could have white coat hypertension". He asked her which of these was what Mr Sims had said to her. In particular it was put to her that in the letter to Mr Singh she had used the word " probably". Her explanation was that this was the grammar she used after Mr Sims' death but I am not satisfied that her recollection of exactly what was said in the car can be relied on to answer the question put by Mr Peacock with any degree of reliability.

The Defendant explained that for an examination such as this one, the DVLA supplied a printed form which the examiner needs to complete during the examination. It is not the same as a GP's notes and the contents are not placed on the patient's medical notes. It is for the purpose of the DVLA alone. The blood pressure is recorded at 182/105. It is not the sort of document which invites any comments and there is no room for individual observations or notes by the examiner – nor is this the place for them. It was not suggested that the Defendant should have made any other notes recording any advice that he gave or any thoughts about the examinee's health outside the ambit of the DVLA examination. Following the examination, the final outcome was dependent upon the results of a blood test taken at the time.

The Defendant's witness statement described his normal routine when dealing with this type of...