Timothy Owers as Administrator of the Estate of Karen Owers Deceased and Another v Medway NHS Foundation Trust and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 05 August 2015 |
| Neutral Citation | [2015] EWHC 2363 (QB) |
| Docket Number | Case No: HQ13X01140 |
| Court | Queen's Bench Division |
| Date | 05 August 2015 |
[2015] EWHC 2363 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stewart
Case No: HQ13X01140
Gerwyn Samuel (instructed by Withy King) for the Claimants
Richard Booth QC (instructed by Bevan Brittan) for the Defendant
Hearing dates: 15 – 18, & 22 – 24 June 2015 & 7 & 9 July 2015
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.
Overview
Mrs Karen Owers was born on 1 October 1967. She died on 27 August 2014. Her estate brings a claim arising out of matters which occurred at Medway Maritime Hospital, Kent on 14 March 2010. The claim is brought for her pain, suffering and loss of amenity and consequential losses between that date and the date of her death. There is no claim that her death resulted from the alleged negligence of the Defendants. Although strictly the estate is the First Claimant I shall refer to Mrs Owers as "C1". C1's husband, Mr Timothy Owers, was born on 3 June 1967. He brings a claim in his own right arising out of psychological injuries said to have been sustained as a result of the Defendants' negligence on 14 March 2010. I shall refer to him as "C2".
Medway NHS Foundation Trust is vicariously liable for any negligence on behalf of its staff, except that, in the present case, two members of the stroke team (Caroline Bates — nee Hannon — and Chris Gedge) were employees of the Medway Community Healthcare NHS Trust and therefore the Second Defendants are vicariously liable for any negligence by them. For the purposes of this judgment the First and Second Defendants will be referred to as "Ds", there being generally no reason to distinguish between the two Defendants.
This trial follows the order of Master Cook who ordered "A preliminary issue shall be tried between the First Claimant and the Defendants as to whether or not the Defendants are liable to the First Claimant by reason of the matters alleged in the Particulars of Claim and, if so whether or not any of the injuries pleaded were caused thereby; if any such injuries were so caused, the extent of the same. The Second Claimant's secondary victim claim shall be tried at the same time as the preliminary issue."
It is sensible to consider C1's claim first since there is a considerable overlap between her claim and the claim of C2.
It is agreed that on 14 March 2010 C1 suffered a stroke. It was of a rare type, being an insult to one of the posterior circulatory arteries occurring as a result of Basilar Artery Occlusion (BAO). C1's stroke was as a result of Vertebral Artery Dissection (VAD). VAD is a flap-like tear of the inner lining of the vertebral artery, leading to the escape of blood and clot formation. C1's case is that Ds failed to diagnose and treat her stroke either by way of thrombolysis (clot busting drugs) or, if not a candidate for thrombolysis, by aspirin.
Some breaches of duty are admitted, some are denied. The task of the Court in relation to C1's claim is to determine relevant breaches of duty which are in dispute and issues of causation.
It may be helpful at this stage to set out the dramatis personae in this case apart from C1 and C2
(i) Non expert witnesses:
Caroline Bates (nee Hannon), nurse member of the stroke team
Dr Ramphele, Senior House Officer in the Accident and Emergency Department
Christopher Gedge, physiotherapist and advanced stroke practitioner
Dr Mamun, Consultant Stroke Physician
(ii) Expert witnesses who gave oral evidence
Dr Paul Baines, Consultant in Accident and Emergency (for Cs)
Dr Steven Allder, Consultant Neurologist (for Cs)
Dr Gregor Campbell-Hewson, Consultant in Accident and Emergency (for Ds)
Professor Adrian Wills, Consultant Neurologist (for Ds)
(iii) Expert witnesses who did not give oral evidence
Professor Philip White (Cs) and Dr Marcus Likeman (Ds) Consultants in Neuroradiology).
Dr Mark Tattersall (C2) and Dr Niall Campbell (Ds) — Consultant Psychiatrists.
As part of setting the scene it should be noted that there are two main chemical treatments of acute stroke. These are:—
(1) Thrombolysis — this treatment chemically breaks up a blood clot so as to reconstitute normal blood flow back to brain tissues.
(2) Antiplatelets and Anticoagulants — the two referred to are heparin and aspirin. It is not C1's case that heparin should have been prescribed at Medway. It is her case that aspirin should have been prescribed there. This is conceded by the Defendants though there is a dispute as to the time by which it should have been prescribed. Aspirin does not break up a blood clot. Its effect (if it works) is to stop a blood clot getting bigger and it reduces the tendency of a clot to break up and send part of the clot further along the circulatory system, thereby potentially causing serious harm.
I attach to this judgment, as Appendix A, material sections of NICE clinical guidelines: Stroke, Diagnosis and initial management of acute stroke and transient ischaemic attack (TIA). Issued July 2008 (the NICE Guidance).
The Period up to C1's Arrival at Medway Hospital
This period, and in particular the period when C1 woke up at or just before 7am on Sunday, 14 March 2010 is of significance. This is because the onset of stroke symptoms is crucial for determining whether or not a patient can be prescribed thrombolysis. In 2010 the licence for the only drug in the market (Alteplase) specified that it should be given within 3 hours of onset of stroke symptoms. At the time there was also a trial at King's College Hospital London (KCH). KCH was the regional centre and centre for excellence to which Ds referred difficult cases. The trial was for prescribing thrombolysis within an extended period of 6 hours of the onset of symptoms. Generally, Ds would have worked to the 3 hour time frame, on the basis that the knowledge at the time was that the increased risks of haemorrhage associated with thrombolysis after 3 hours outweighed the benefits. This is subject to the fact that Dr Mamun, the stroke physician at Medway, said that in 2010, in appropriate cases, he would prescribe thrombolysis in a young woman up to 4 – 4 1/2 hours after onset of symptoms.
To return to the chronology, C1 and C2 (and their son Jake aged 9 at the time) visited C2's parents who live in Hoo, Kent. They drove from their home in Aston in Oxfordshire. C1's statement, dated 09.05.2014, admitted under the provisions of the Civil Evidence Act 1995, continues:
"3… on the way there I had a bit of a headache. I do get migraines occasionally, usually about 3 or 4 times a year, if that. I have migraine tablets and when I feel the migraine coming on I take a tablet and this usually "nips it in the bud". I get a warning of flashing lights in the corner of my vision and a stabbing pain in my right temple. This headache was definitely not a migraine.
4. When we got to my parents in law I went upstairs for a sleep in the afternoon. I woke up later and although the headache was still there it was much better. I had a meal with the rest of the family in the evening, took some painkillers (panadol as I recall) and then went off to bed. At 5.50 I woke up. I do not recall what it was exactly that woke me up but when I woke I had a funny feeling in my eyes; they were itchy and painful. I had never had this before. I got up to the toilet. I have been asked if I had any problems getting up but my recollection is I got up normally. The only thing was the funny itchy eyes. I went back to bed and must have dozed off as I next woke at my usual time of waking at 07.00.
5. Tim was still asleep. I got out of bed and immediately felt a little bit " strange". The only way I can describe it is like being a little bit drunk as if I had a bit of a hangover. I managed to get dressed. I found I was doing things a bit slower than normal but otherwise I had no problems getting dressed. I picked up my book in my right hand and started to go down the stairs. About halfway down the stairs I suddenly started to feel dizzy and sat down on the stairs where I started to feel a little bit better so I got up again and carried on walking down the stairs. When I got to the bottom of the stairs I just did not feel right and I dropped my book on the floor. My father in law must have heard this because he came over and helped me to sit down. My father in law made me a cup of coffee and as I was starting to drink it I felt my right arm getting weaker and it just seemed to be becoming more and more of an effort to lift my arm. I would describe it as being heavy. I also remember it getting harder and harder to talk and get my words out and I became very frightened.
6. I knew that I was having a stroke. In any event my father in law, Harry, called NHS Direct and they told him to call an ambulance. He then told Jake, my son, to go and wake Tim up.
7. After a very short period of time a Rapid Response person arrived at the house and then the ambulance crew appeared shortly after. I have a very clear memory of these early events and the time spent in Medway Hospital, but I am not so clear about events later on from the time I went to Darent Valley Hospital and Kings College Hospital, London.
8. I went in the ambulance to Medway Hospital and Tim and his dad followed behind in his dad's car. I have seen the ambulance record obtained by my solicitors and know that the ambulance arrived at the hospital at 07.59. I was taken into a cubicle in...
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