Suzanne Lane v Worcestershire Acute Hospitals NHS Trust and Another
| Jurisdiction | England & Wales |
| Judge | Mr Edward Pepperall |
| Judgment Date | 24 July 2017 |
| Neutral Citation | [2017] EWHC 1900 (QB) |
| Docket Number | Case No: A90BM164 |
| Court | Queen's Bench Division |
| Date | 24 July 2017 |
[2017] EWHC 1900 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Mr Edward Pepperall QC
SITTING AS A DEPUTY HIGH COURT JUDGE
Case No: A90BM164
Dr Simon Fox QC (instructed by Anthony Collins Solicitors LLP) for the Claimant
Mr John Coughlan (instructed by Bevan Brittan LLP) for the Defendants
Hearing dates: 16, 17, 18 & 19 January, 4 & 5 April and 5 May 2017
Approved Judgment
I direct that pursuant to CPR PD39A 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.
Mr Edward Pepperall QC:
On 30 September 2010, Mrs Suzanne Lane suffered a myocardial infarction due to a blocked right coronary artery. She was treated by a rescue angioplasty at the Queen Elizabeth Hospital in Birmingham ("the QE") before being transferred back to the Alexandra Hospital in Redditch ("the Alexandra") during the morning of 1 October 2010.
During the early hours of Saturday 2 October 2010, Mrs Lane developed ischaemia (a restriction in blood supply) to her right arm. This condition was correctly diagnosed by Dr Dobson, a medical registrar at the Alexandra, at 02:30, but she was not transferred back to the QE until about 08:50. The consultant vascular surgeon, Mr Phil Nicholl, performed a brachial and radial thrombectomy (a surgical procedure to clear the clots that had formed, in this case in Mrs Lane's brachial and radial arteries) under local anaesthetic at 21:10 in order to reperfuse the limb.
Unfortunately, the clot in the radial artery recurred and, despite further surgery on 13 October, Mrs Lane developed dry gangrene. Her right arm was subsequently amputated above the elbow on 9 November 2010.
By this clinical negligence claim, Mrs Lane originally complained of negligence by both the Worcestershire Acute Hospitals NHS Trust and the University Hospitals Birmingham NHS Foundation Trust in respect of the treatment of her ischaemic limb at the Alexandra and the QE respectively. In his helpful written closing submissions, Dr Fox QC identified the three allegations of negligence that are now pursued by the Claimant:
4.1 First, Mrs Lane alleges that the advice given by the cardiology registrar at the QE at 02:30 on 2 October 2010 was negligent.
4.2 Secondly, she alleges that Mr Nicholl was negligent in not taking her to theatre at 12:40 on 2 October and in delaying surgery until 21:00.
4.3 Thirdly, she alleges that Mr Nicholl was negligent in not carrying out thrombectomy of the ulnar artery and completion angiography.
Accordingly, there is no longer any criticism of the doctors at the Alexandra in following the advice given by the QE's cardiologist at 02:30. Indeed, in the course of his oral closing submissions, Dr Fox confirmed that he did not pursue the case against the Worcestershire Trust. Further, the pleaded allegations of a negligent failure to carry out angiography before surgery and of the failure to perform a fasciotomy have been abandoned.
The QE denies negligence. In short, it responds that Mrs Lane was seriously ill and that her cardiac condition remained unstable. It argues that it was reasonable to seek to optimise Mrs Lane's medical condition before transferring her to the QE and then before carrying out surgery. While accepting that the ischaemia was a medical emergency that required vascular surgery, the Trust contends that Mrs Lane presented a significant surgical risk and that it had to prioritise "life over limb." As to the operation, the QE argues that it was reasonable not to carry out completion angiography, especially in a seriously ill cardiac patient, and that it is not standard vascular practice to clear the ulnar artery upon successful thrombectomy of the radial artery.
THE LAW
STANDARD OF CARE
Inevitably, one must start any analysis with reference to McNair J.'s classic statement of the law in the course of his directions to the jury in Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 583, at 587:
"[A doctor] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art … Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."
To similar effect, Lord Scarman said in Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634, at 639:
"… a judge's 'preference' for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge's finding, he erred in law even though elsewhere in his judgment he stated the law correctly. For in the realm of diagnosis and treatment, negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary."
In Bolitho v City & Hackney Health Authority [1998] A.C. 232, the House of Lords considered whether the Bolam test required a judge to accept the views of a truthful body of expert professional opinion even where he was unpersuaded of its logical force. Lord Browne-Wilkinson (with whom all other law lords agreed) accepted, at 241G:
"the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice."
As Lord Browne-Wilkinson pointed out, McNair J. spoke of a "responsible body" of medical opinion (at p.587) and of a "competent reasonable body of opinion" (at p.588) in Bolam. Equally, in Maynard, Lord Scarman referred to a "respectable" body of professional opinion. Accordingly, Lord Browne-Wilkinson concluded, at p.241H:
"The use of these adjectives – responsible, reasonable and respectable – all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis."
Lord Browne-Wilkinson was not seeking to depart from Bolam but to explain that, on a proper application of the Bolam test, a judge might find a body of opinion not to be responsible, reasonable or respectable if it could not withstand logical analysis. This does, however, require some care. While one might expect a highly eminent, respectable and responsible expert only to express reasonable opinions that withstand logical analysis, this does not necessarily follow. Accordingly, such an expert's opinions are not to be accepted by the court without proper analysis. Equally if, unusually, such an expert expresses a view that cannot withstand analysis, he or she is not to be branded as no longer respectable or responsible.
I therefore agree with the observations of Green J. in C v North Cumbria University Hospitals NHS Trust [2014] EWHC 61, at [25] (vi)–(vii):
"(vi) Responsible/competent/respectable: In Bolitho Lord Browne-Wilkinson cited each of these three adjectives as relevant to the exercise of assessment of an expert opinion. The judge appeared to treat these as relevant to whether the opinion was 'logical'. It seems to me that whilst they may be relevant to whether an opinion is 'logical' they may not be determinative of that issue. A highly responsible and competent expert of the highest degree of respectability may, nonetheless, proffer a conclusion that a court does not accept, ultimately, as 'logical'. Nonetheless these are material considerations …
"vii) Logic/reasonableness: By far and away the most important consideration is the logic of the expert opinion tendered. A judge should not simply accept an expert opinion; it should be tested both against the other evidence tendered during the course of a trial, and, against its internal consistency."
As I explain below, this case turns on the proper weighing of the risks and benefits of surgery in an unstable patient. Lord Browne-Wilkinson considered such a case in Bolitho at p.242A:
"… in cases involving … the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter."
Lord Browne-Wilkinson therefore accepted that there are cases in which the court might properly find negligence even where a body of professional opinion sanctioned the doctor's practice. He considered that such cases would be rare. To that end, he observed at p.243B:
"In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.
"I emphasise that in my view it will...
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