Richard Meiklejohn (Claimant/Appellant) v St George's Healthcare NHS Trust and Another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Rafferty,Lord Justice Tomlinson,Lord Justice Laws |
| Judgment Date | 13 February 2014 |
| Neutral Citation | [2014] EWCA Civ 120 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2013/1095 |
| Date | 13 February 2014 |
[2014] EWCA Civ 120
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HHJ ROBINSON (SITTING AS A HIGH COURT JUDGE)
HQ08X02333
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Tomlinson
and
Lady Justice Rafferty Dbe
Case No: B3/2013/1095
Richard Booth QC (instructed by Anthony Gold) for the Claimant
Alexander Hutton QC (instructed by Bevan Brittan Llp) for the Defendants
Hearing dates: 26 TH & 27 th November 2013
Approved Judgment
Richard Meiklejohn ("the Claimant") was born on 20 January 1972. Sadly, he died after the hearing of this appeal. The doctor whose professional standards he criticizes is Professor Judith Marsh ("Prof Marsh") one of the UK's leading experts in aplastic anaemia ("AA") a life-threatening failure of formation of blood cellular components. In March 2003 she was Reader in Haematology at St George's Hospital Medical School a national tertiary referral centre for AA whose Director was Professor Gordon-Smith, himself a leading authority in AA. In November 2003 she was appointed to the Chair in Clinical Haematology at St George's.
In 1993, at 21, the Claimant was diagnosed with thrombocytopenia, macrocytic anaemia and hypocellular bone marrow with an overall diagnosis of AA. A watch and wait policy was adopted. Characteristic signs are reduced red and white blood cells and platelets and an hypocellular bone marrow. Most cases of AA are acquired, the majority idiopathic. Mercifully rare, in the UK about 150 new cases of AA are seen annually, about 50 by Professor Marsh. In 2003 some, thought inherited, were known as inherited bone marrow failure syndromes ("IBMFS") and included Fanconi's anaemia ("Fanconi's"), and Dyskeratosis Congenita ("DC").
Telomerase ("TERC" or "hTR") mutations were in 2001 discovered in the relevant gene. Its inherited form is autosomal dominant, requiring only a single copy inherited from either parent.
The clinical signs of DC were for some time described as the classic triad ("the triad"): abnormal nails, reticular skin pigmentation and oral leucoplakia (white thickened patches).
After 2003, research revealed that the TERC mutation might not always be inherited, and November 2005 tests on the Claimant suggested his was not inherited. Consequent on the emerging science DC as a form of inherited AA is described as constitutional (not acquired) AA.
This case turns upon events on 25 March 2003 and thereafter. Dr Amos had referred the Claimant to Prof Marsh who on 25 th examined him and took a history whose nature and extent are in issue. She diagnosed and explained non-severe acquired AA. Following her advice the Claimant as an in patient on 7 May 2003 began a 5 day course of standard treatment, Anti Lymphocyte Globulin ("ALG"). A side effect, serum sickness, was treated with the corticosteroid Prednisolone of which a rare side effect is avascular necrosis ("AVN"), of which he was not warned. He developed it and had bilateral hip replacements. Oxymetholone, a synthetic hormone alternative to ALG for treatment of AA is one treatment for DC. In issue is whether ALG is appropriate for DC.
At their first consultation in March 2003 Prof Marsh took blood samples and sent one to Professor Inderjeet Dokal a world and almost certainly its foremost expert in DC. Issues at trial included the purpose for which she did so. 11 November 2005 analysis disclosed the TERC mutation and the results were sent to Professor Marsh on 17 November 2005 when a diagnosis of DC was explained to the Claimant. He rejected another course of ALG and was put on Oxymetholone.
The Claimant's case before HHJ Robinson, the DCJ at Sheffield sitting as a High Court Judge, was:
i) The 25 March 2003 clinical examination was inadequate. There were sufficient clinical features present to raise a high index of suspicion of (constitutional) DC
ii) Prof Marsh was wrong to diagnose acquired AA and to begin ALG before she had excluded DC.
iii) She should have warned the Claimant of the Prednisolone side effect, AVN.
iv) Even assuming the correct diagnosis were AA she should have discussed alternative treatment, in particular Oxymetholone.
v) She acted unlawfully when without the Claimant's express consent she took a blood sample to send to Professor Dokal.
vi) She should have chased up the results and not begun ALG before they were available. DC would have been diagnosed very much earlier, Oxymetholone begun, Prednisolone and thus AVN avoided.
The Judge found as facts:
i) In 2006, the Claimant had grey hair, a receding hair line and some brown spots on the back.
ii) In 2006 his skin seemed to be rather dry in general.
iii) In 2006 his nails looked rather thin but there was no obvious dystrophy.
iv) There was no nail discolouration in 2003 or in 2006. This feature did not manifest itself until about 2010 when discolouration of the big toe nail was noted by Prof Dokal.
v) There was ridging of the nails in 2003, but no other obvious abnormality. Prof Dokal's 2006 finding "the nails looked rather thin" cannot be taken as indicating that this was so in 2003. This appeared to be a developing symptom, noted as more marked in January 2011.
vi) There was no relevant pigmentation on the forehead in 2003. Changes in pigmentation on the forehead were not noted until 2011.
vii) Brown spots on the back in 2006 do not appear to have become relevant until 2011 when Prof Dokal noted "questionable pigmentary changes on the back". Prof Marsh said that she did not see any spots on the Claimant's back. She examined the Claimant's torso and there were no relevant skin pigmentation features to be seen on the Claimant's back.
Before us his Grounds of Appeal were:
i) The Judge erred in finding adequate verbal consent to participation in Prof Dokal's research. Given sufficient information the Appellant would have received different treatment and avoided his injuries.
ii) Additionally or alternatively there was a breach of the duty to obtain informed consent, a complaint as to causation: Chester v Afshar [2005] 1 AC 134.
iii) The Judge erred in concluding that the blood test was for research without clinical utility and carried no expectation of a result before treatment.
iv) In finding no breach of duty by Prof Marsh in recommending ALG the Judge neither considered nor determined that she failed to advise of possible diagnoses and alternative treatments.
v) In concluding she was not negligent in having failed to suspect DC the Judge did not take into consideration clinical features at presentation, consider and/or explain aspects of the medical literature, and explain his conclusions regarding the 2003 relaxing of the triad criteria.
vi) The Judge failed to apply the correct standard of care to the country's leading specialist in an extremely narrow field and relied inappropriately on 2009 Guidelines in referencing a 2003 standard of care. He attributed too much emphasis to the UK:US divide and not enough on knowledge/literature by 2003.
vii) The Judge erred in ordering costs and damages should be set off.
The Judge heard evidence over eight days, accepting submissions in writing at a later date. The Claimant gave evidence and called as to fact Mrs Katherine Adams who described him as her best friend and who was at the consultation with Prof Marsh in 2003. She was an experienced Senior Sister in A&E. He called as an expert Prof Eva Guinan Associate Professor of Paediatrics at Harvard Medical School. Prof Marsh gave evidence and called Prof Dokal, Prof Gordon-Smith and Prof Cavenagh, the latter solely as expert. Dr Amos and to an extent Prof Dokal as to fact.
Prof Dokal in March 2003 was Reader/Honorary Senior Lecturer in Haematology at Imperial College and Hammersmith and St Mary's Hospitals and by September 2006 at Barts and The London Chair of Child Health among other appointments. In 1995 he established the international Dyskeratosis Congenita Registry ("DCR") "to understand the pathophysiology of aplastic anaemia and related disorders with the long term aim of developing new treatments for patients lacking compatible haemopoietic stem cell donors".
Prof Gordon-Smith in 2003 was Director of the Department of Haematology at St George's. Prof Marsh was part of his team. He explained standard practice in 2003 for taking blood samples.
Prof Cavenagh, Consultant Haematologist at Barts and the London and Clinical Lead in Haemato-Oncology, sees adults with AA. He wrote: "Prof Dokal has recently referred Mr Meiklejohn to my clinic since… a bone marrow transplant…may be appropriate …I have not yet seen him…and I do not consider there is any conflict with my duty to the Court." The propriety of his position was in issue.
Synopsis
The DC classic triad is leukoplakia, nail dystrophy and reticulate skin pigmentation. Leucoplakia is at least one thickened white patch on mucous membrane in the mouth and on the tongue, which cannot be rubbed off. Nail dystrophy covers a range of abnormalities including regression, discolouration and ridging. Reticulate (now "abnormal") skin pigmentation is a networked pattern of darker skin.
The Claimant suggested that though in 2003 he lacked any feature of the triad he showed some of other subtle features which might be present. His case is not that Prof Marsh should have reached a working diagnosis of DC but that her index of suspicion should have been higher...
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