R v Misra (Amit)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Judge |
| Judgment Date | 08 October 2004 |
| Neutral Citation | [2004] EWCA Crim 2375 |
| Docket Number | Case No: 200302858 B1 and 200302870 B1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 08 October 2004 |
[2004] EWCA Crim 2375
The Right Honourable Lord Justice Judge
Deputy Chief Justice Of England And Wales
The Honourable Mr Justice Treacy and
The Honourable Mr Justice Bean
Case No: 200302858 B1 and 200302870 B1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WINCHESTER CROWN COURT
MR JUSTICE LANGLEY AND A JURY
Mr Michael Gledhill QC and Mr J. McNally for the appellant Misra
Mr A. Kennedy for the appellant Srivastava
Mr P. Mott QC and Mr H. Jenkins for the Crown
Mr D. Perry for the Attorney General
Lord Justice Judge:
These are appeals by Amit Misra and Rajeev Srivastava against their convictions on 11 April 2003 on separate counts of manslaughter in the Crown Court at Winchester before Langley J and a jury. Each was sentenced to 18 months imprisonment, suspended for two years. After conviction, the judge certified: "the question of compliance of the crime of "gross negligence manslaughter" with the ECHR is one of some importance", and that accordingly the case was fit for appeal.
The victim of manslaughter was Sean Phillips. He underwent unremarkable surgery to repair his patella tendon at Southampton General Hospital on 23 June 2000. Unfortunately he became infected with staphylococcus aureus. The condition was untreated. There was a gradual build up of poison within his body, which culminated in toxic shock syndrome (TSST1) from which he died on 27 June. The appellants were senior house officers involved in the post-operative care of the deceased during the period beginning on the evening of 23 June until the afternoon of 25 June. It was alleged that each was grossly negligent in respect of the medical treatment he provided to the deceased and that these failures caused the death. Each was convicted of manslaughter by gross negligence.
The particulars of offence against each appellant, as amended, alleged in identical terms that he unlawfully killed Sean Philips:
"… by gross negligence in that:
(1) as a doctor he owed a duty of care to Sean Phillips as his patient;
(2) in breach of that duty of care he failed to make any or any adequate diagnosis of the nature of Sean Phillips' illness which he should have identified as a severe infection requiring aggressive supportive therapy and antibiotics, and to take steps to ensure that he received appropriate treatment;
(3) that breach of duty amounted to gross negligence;
(4) that negligence was a substantial cause of the death of Sean Phillips."
The prosecution case against the appellants did not arise from their failure to diagnose the precise condition from which the deceased was suffering. Given its rarity, of itself this may well not have amounted to negligence at all. Instead the Crown relied on the appellants' failure to appreciate that their patient was seriously ill. He was showing classic signs of infection: raised temperature and pulse rate, and lowered blood pressure. These conditions were severe, and persistent, and were or should have been obvious, if only from a glance at the relevant charts. It was equally obvious that the patient needed urgent treatment. And, notwithstanding suggestions by other members of the medical team on more than one occasion that further treatment was needed, none, or none that was appropriate, was provided. Blood results were available from the hospital computer from 9.47 on the Saturday evening. They were never obtained, nor acted upon, nor did either appellant make any enquiry whatever about the results. They did not seek help from senior colleagues. In short, infection was not diagnosed when it should have been, and not properly treated until it was far too late. The mistakes made by the appellants were elementary. Accordingly, they were negligent, and grossly so, and in consequence Sean Phillips died of toxic shock syndrome.
We must briefly summarise the main facts. While on a visit to London, Sean Phillips, a 31 year old, healthy man from Southampton, injured his patella tendon. He required an operation, which was carried out on Friday 23 June 2000 at Southampton General Hospital. The skin was cut above the knee. A metal wire was inserted. The wound was then stitched and the leg placed in a back slab plaster. No post-operative complications were anticipated. After a period in the recovery ward, the deceased was admitted to an orthopaedic ward (Ward Four).
The appellants were senior house officers, and part of the team involved in the post-operative care of the deceased. Dr Srivastava was responsible for the deceased during the night shifts of 23–24 June and 24–25 June. Dr Misra was on call during the day shifts, between 8 am and 5 pm on 24 and again on 25 June. Throughout Saturday 24 and Sunday 25 June, the deceased appeared to be alert and well-orientated and in possession of all his faculties. Unfortunately the operation wound became infected with staphylococcus aureus.
After the deceased's admission to Ward Four, the immediate concern for his welfare focussed on the management of his post-operative pain. Appropriate pain killers were provided for him, and Dr Srivastava prescribed voltarol, administered as a suppository. In the early hours of Saturday, 24 June, it was observed that the deceased's temperature and pulse had both increased markedly, when simultaneously his blood pressure was falling. He also vomited and suffered bouts of offensive diarrhoea.
At about midday on 24 June, the deceased's temperature was recorded at 38.3°C, his pulse measured at 145, and his blood pressure was 89/55. Dr Misra was contacted. He saw the patient. He prescribed intravenous fluids and agreed that oxygen should be provided. Despite a marginal improvement, the patient's condition remained abnormal. At trial Dr Misra said that he ascribed the temperature rise to the trauma of the operation and the low blood pressure and high pulse to the diarrhoea and vomiting, which would have caused dehydration. He prescribed appropriate treatment, stopping the voltarol and ordering an alternative anti-emetic. He also asked that a stool sample should be taken if the diarrhoea continued. In the meantime, the patient was to be kept under observation.
Later that afternoon Dr Misra was asked to review the patient. His temperature was still in excess of 38, his pulse was running at about 130, and his blood pressure was unchanged, and low. The Crown's case was that the sister on duty suggested that blood cultures should be taken. She thought that this would be a normal precursor to antibiotics. She said that Dr Misra disagreed. No cultures were taken. In his interview, Dr Misra said that he could not recall this part of the conversation and he doubted whether it had happened at all. If blood cultures had been ordered, it would have taken 48 hours for the results to become available. Therefore the absence of blood cultures did not contribute to the death: however the fact that they were not taken itself provided an indication that proper and full attention was not being paid to the deceased's condition. Dr Misra went off duty at 5pm.
Dr Gandopadhyhay assumed responsibility for the patient. At 7pm, at the request of the ward sister, he reviewed the patient. Despite continuing alertness, the patient was in bad condition. Blood tests, to ascertain the blood count, and for consideration of cultures and sensitivities, were then taken. They were sent for analysis, with results normally available a couple of hours or so later. This doctor saw no indications of infection at the site of the wound, and in evidence he said that he discounted the possibility that the patient's condition was attributable to any such infections. Pending the results of the blood tests, his provisional view was that the patient was suffering from gastro-intestinal infection. He made appropriate notes about the patient, the first of the doctors to do so, ending his note with the words "review results". As he was labelling the blood samples, Dr Srivastava came on duty. Dr Gandopadhyhay described how he passed on his provisional view about the patient's condition to Dr Srivastava, and explained what he was doing and why, and that he had asked for the results of these blood tests to be checked, and for the nurses to contact Dr Srivastava if they were abnormal. Dr Srivastava in evidence agreed with this account of the conversation, and said that he worked on the basis that if anything abnormal was shown by the tests, he would be told of it by the nurses.
The blood tests were available on the hospital computer by 9.47 that evening. They showed a rise in creatinine levels, together with a high level of protein indicative of an acute inflammatory condition. In short, there was evidence of kidney damage and possible infection. These results were not seen by Dr Srivastava that night. He said that he had not been given a password to access the computer. He did not ask to see the results. They were not accessed by Dr Misra on the following day, nor indeed by anyone until late on the Sunday evening by when it was too late. In other words, the blood tests ordered by Dr Gandopadhyhay were entirely disregarded.
During the night of 24–25 June, at 11 pm, observations on the patient showed that his temperature was running at 39.1. His pulse rate was 135, and his blood pressure 90/50. At midnight his blood pressure declined further. The nurses summoned Dr Srivastava. To increase blood pressure he prescribed a plasma volume expander. This was started at 12.10 am. Further episodes of diarrhoea were observed, and a...
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