Mrs Lynette Polmear v Royal Cornwall Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Master David Cook,Master Cook |
| Judgment Date | 05 February 2021 |
| Neutral Citation | [2021] EWHC 196 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-003553 |
| Date | 05 February 2021 |
[2021] EWHC 196 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master David Cook
Case No: QB-2019-003553
Henry Pitchers QC (instructed by Wolferstons) for the Claimants
Charlotte Jones (instructed by Bevan Brittan LLP) for the Defendant
Hearing date: 22 January 2020
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.
This is the hearing of the Defendant's application to strike out the claims by the First and Second Claimants as secondary victims for damages alleged to have been suffered as a result of witnessing the sudden and horrifying events surrounding the collapse and death of their daughter Esmee on 1 July 2015. The application was heard remotely by Teams and I am grateful to both counsel for their clear and helpful submissions.
The facts
The Defendant is the National Health Service Trust responsible for the management and administration of the Royal Cornwall Hospital (“the hospital”) and for the provision there of medical, surgical and nursing services.
The events giving rise to the claim are set out in the particulars of claim and for the purpose of this application I must accept they will be proved at trial.
On 19 August 2014, the Esmee was seen by her GP with a history of “strange episodes where Esmee complains can't catch her breath, appears pale and after a few minutes appears blue” (taken from the clinical records). It was noted that these episodes would last around 30 minutes. They had occurred every other week, but had started to happen every other day. The First Claimant was reassured by the GP.
Esmee was taken back to the GP by the Claimants on 10 September 2014. The GP noted episodes of shortness of breath, with no obvious triggers. There were symptoms of rapid breathing, with cold hands and fast pulse. Esmee had almost passed out. It was noted that the episodes lasted 30 to 60 minutes.
The GP referred Esmee to the paediatricians at the hospital by letter, dated 17 September 2014, which provided:
“ This 6 year old girl presents with a years history of episodes where she complains she can't catch her breath, her breathing becomes quite rapid, her pulse fast and her extremities very cold. These are becoming more frequent and now occur about once a week. They last for 30–60 minutes. Recently she has also looked like she's going to pass out during the episodes.
Examination is entirely unremarkable. She looks well, has good colour and well perfused. Her pulse is 92 regular, heart sounds 1+2+0 and chest clear.
Her parents are obviously concerned about this and I don't think we have managed to reassure them so I would welcome your advice as to whether this should be investigated further.
She is otherwise well and on no medications…”
On 1 December 2014, Esmee was seen at the hospital by Dr Buhary, Paediatric Registrar. Both Claimants were present. The following typed note of the consultation was made:
“ problems: Likely vasovagal syncope… Investigations: ECG — normal.
Lying blood pressure: 102/60m1 of mercury. Standing blood pressure: 109/73m1 of mercury.
Plan: 1. Full blood count normal. Bone profile, urea and electrolytes normal, magnesium and liver function tests normal.
2. 24 hour ECG tape requested.
3. Discharge from clinic.
It was a pleasure to review Esmee Polmear in clinic with her mother today. She has been referred to us by you with complaints of shortness of breath and heart beating fast. Mainly occurring when walking for a time, such as about 10–15 minutes wherein her face turns pale, her lips are possibly turning purple. It is reported that she develops cold clammy hands and gets very anxious at this time. These are not associated with any loss of consciousness or seizures and these symptoms are typically improved by sitting down. These episodes can last for about 15–30 minutes. There are no other associated problems. Esmee's mother reports that Esmee has a good balanced diet and good fluid intake of about 2 pints of water per day. She has normal bowel and bladder habits….
On examination today her weight was 21.5kg which on the 25th–50th centile. Her height was measured at 121cm, which is on the 50th centile. Her blood pressure was 114/75. Her respiratory examination was normal. She had normal heart sounds with split second heart sounds, no murmur heard. She had normal peripheral pulses. Her abdomen was soft and non-tender. There were 170 focal neurological deficits.
Plan.
The plan is as suggested above, Esmee's blood were normal. A 24 hour ECG tape has been requested, I will write with the results of that in due course.”
From 21 to 22 January 2015, Esmee underwent ambulatory ECG monitoring. When the monitor was fitted at the hospital, the First Claimant requested of the clinician undertaking the fitting that the monitoring be undertaken for a full week so to ensure that it captured one of the episodes with which Esmee was suffering. At that point, the episodes were not occurring daily. The Claimants were told that this was not possible as a different monitor would be required which would be inconvenient to obtain at the time of that appointment.
Esmee did not have an episode of shortness of breath whilst wearing the ECG monitor. On 5 February 2015, the results of the ECG recording were reviewed by Dr Goyal, locum Consultant Paediatrician. Dr Goyal's interpretation was recorded as follows:
“ The 24 hour ambulatory ECG recording which was performed on Esmee from 21st January 2015 through to 22nd January 2015 shows that her heart rate varies normally with day to day activities and drops as expected in sleep. There were no abnormal pauses or abnormal beats. This indicates that Esmee's symptoms are more likely to be related to exertion and likely physiological with nothing to suggest an underlying abnormality of her cardiac rhythm.”
Dr Goyal confirmed these conclusions in correspondence with the Claimants. Due to ongoing symptoms, Esmee was taken back to her GP on 21 April 2015. The Second Claimant attended this appointment and told the GP that Esmee was vomiting nearly every morning before school and that she experienced anxiety during and after the episodes, but not prior to them. The following entry was made in the clinical records by the GP:
“….With Dadda, ongoing concerns re Esmee's episodes — still c/o episodes cant catch breath, breathing, lips blue, skin pale, feels light-headed, no further syncope — but has had prey. Recently episodes ending with vomiting. Can occur home/out at school. nb seen paeds — had 24hr ecg — ok. Parents v anxious, try slow breathing/distract her but episodes occur several times a week. Would like second opinion. Otherwise well. No other concerns at school. 0/e — well, v chatty, bright, good colour, warm well perfused periph, P102, RR25, HS normal, chest clear with good ae, abdo — nad Imp — appears panic/hyperventilation. Disc re managing this, slow breathing down, can try and rebreathe in paper bag/distraction. Parents would like second paed opinion”
Consequently, the GP made a referral back to the paediatricians at the hospital, as per the letter dated 22 April 2015:
“ I would very grateful for your further view of this 7 year old girl who has previously been seen by Dr Goyal back in February. Her parents wish for a second paediatric opinion.
Over the last 12–18 months Esmee has been complaining of strange episodes where she says she cannot catch her breath and her breathing appears to be very shallow and rapid. She then goes extremely pale and after a few minutes goes quite blue around her lips. These episodes can last up to about 30 minutes and occur several times a week. They can occur at any time in the home. She has had some episodes where she has almost passed out. Over the last couple of weeks she has also complained of an episode of vomiting before the termination of the event. Between these episodes she is not had any disturbance of her bowels or vomiting. I understand that when she was seen by Dr Goyal she had a normal ECG, normal bloods and a normal 24 hour tape.
Her parents are extremely worried and finding it very difficult to handle these episodes. We have discussed that these episodes do sound like she is getting anxious and hyperventilating and to continue to try with distraction and deep breathing exercises. They are finding that there is no obvious trigger to these episodes other than exertion and that they occur at any time, even when she seems quite happy and relaxed. They would like further reassurance on why they are happening and how to manage them.
Esmee is otherwise fit and well. She has had a tonsillectomy and adenoidectomy in 2011… She attended with her dad today but of note in the past she has attended with her mum when seen by other colleagues and her mum has been quite tearful and very anxious.
On examination today Esmee is well, very chatty and bright and had good colour. She was warm and well per fused peripherally. Pulse was 102, respiration rate 25, heart sounds normal, chest clear with good air entry and examination of her abdomen was unremarkable”
Before Esmee was seen again at the hospital, she collapsed and died on 1 July 2015. The cause of death was Pulmonary Veno-Occlusive Disease. It had not been diagnosed prior to her death.
The circumstances of Esmee's death are as follows.
Esmee had an...
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