Williams v The Bermuda Hospitals Board (Bermuda)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Toulson |
| Judgment Date | 25 January 2016 |
| Neutral Citation | [2016] UKPC 4 |
| Court | Privy Council |
| Docket Number | Appeal No 0110 of 2014 |
| Date | 25 January 2016 |
[2016] UKPC 4
Lady Hale
Lord Clarke
Lord Hughes
Lord Toulson
Lord Hodge
Appeal No 0110 of 2014
Privy Council
From the Court of Appeal of Bermuda
Appellant
Caroline Harrison QC Andrew Bershadski
(Instructed by Bevan Brittan LLP)
Respondent
Benjamin Browne QC Luka Krsljanin
(Instructed by Wakefield Quin Limited)
Intervener (NHS Litigation Authority) (Written submissions only)
Philip Havers QC Jeremy Hyam
(Instructed by Bevan Brittan LLP)
Heard on 18 and 19 November 2015
On 30 May 2011 the respondent, Kamal Williams, went to the emergency department of the King Edward VII Memorial Hospital in Bermuda, complaining of abdominal pain. He was suffering from acute appendicitis. Later that day he had an appendectomy, but there were complications. He was seriously unwell for a period of weeks, but he finally made a full recovery. He sued the appellant hospital board, which is responsible for the management of the hospital, for damages for his pain and suffering, medical expenses and loss of earnings. He alleged that the complications were the result of negligent delay in his treatment.
The trial judge, Hellman J, found that there had been negligence but that Mr Williams had not proved that the culpable delay caused the complications. He awarded Mr Williams $2,000 in damages for his extra suffering during the period of culpable delay prior to the operation. The Court of Appeal (Evans and Ward JJA and Bell AJA) reversed the judge's decision on causation and remitted the case to the trial judge for a fresh assessment of damages. Hellman J increased the award to $60,000 excluding interest.
The hospital board asks that the original judgment be restored. It submits that the trial judge decided the case on orthodox legal principles and that the Court of Appeal was wrong to interfere with his judgment. It has paid the amount of the increased award to Mr Williams (who has donated it to charity), and has stated through counsel that it will not seek repayment if it succeeds in the present appeal, but it is pursuing the appeal because of its concern about the effect of the Court of Appeal's judgment as a precedent.
At the trial, the evidence of all but one of the factual witnesses was contained in statements and exhibits which were admitted without cross-examination. The exception was Dr Christine Di Lullo (one of the doctors involved in Mr Williams' treatment), who was called at the suggestion of the judge to give oral evidence to clarify a point in her witness statement.
The judge heard oral expert evidence from Dr Michael Leitman and Dr Alasdair Conn. Dr Leitman was head of the general surgery division at a New York hospital, and was called on behalf of Mr Williams. Dr Conn was head of emergency services at a hospital in Boston, Massachusetts, and was called on behalf of the hospital board. There was also a written report tendered on behalf of the hospital board from Dr Randall Zusman, a cardiologist at the same hospital as Dr Conn and an associate professor at Harvard Medical School.
Mr Williams' time of arrival at the hospital emergency department was 11.17 am. At 11.40 he was examined by Dr Chikezie Dean Okereke, a physician specialising in emergency medicine. Dr Okereke was limited in the examination which he was able to make because of the pain which Mr Williams was suffering and Dr Okereke prescribed an analgesic. After about 30 minutes Dr Okereke was able to conduct a fuller examination. He decided to order a CT scan of the abdomen to help to determine whether Mr Williams was suffering from appendicitis or some other condition. It was common ground that this was an appropriate decision. Dr Okereke said in his witness statement that he ordered the scan approximately one hour after Mr Williams' arrival in the emergency room, ie at 12.15 or thereabouts, and that would coincide with the time of his second examination. That evidence was not challenged, and Dr Leitman said that an hour from admission was a reasonable time frame for ordering the scan.
The judge found that Dr Okereke probably ordered the scan at 13.10 (which was the time that the imaging department received a faxed request, according to a later internal investigation by the hospital board), and his finding has not been disputed on appeal. The scan was performed at 17.27. There was therefore a delay of over five hours from the time when Dr Okereke on his evidence decided to request a scan until it was performed, and over four hours from the time when the judge found that the request for a scan was sent to the imaging department until it was performed. In the interim Dr Okereke's shift ended and he handed over care of Mr Williams to Dr Di Lullo.
Dr Di Lullo did not receive a report on the scan until around 19.30, ie two hours after it had been performed. Part of the reason for this delay was that the hospital's imaging department closed at 18.00. Because Mr Williams' scan (performed 30 minutes earlier) had not by then been interpreted, it was sent in accordance with the hospital's usual practice to an overseas reporting agency for interpretation and report.
Dr Di Lullo, rightly, discussed the interpretation of the scan and the appropriate treatment with a surgeon, Dr Council Miller. They re-examined Mr Williams and advised him that there was a strong likelihood that he had acute appendicitis requiring surgery. Mr Williams gave the necessary consent and he was taken to the operating theatre at around 21.30.
The findings at operation included ruptured appendix and widespread pus throughout the pelvic region, with phlegmon (a purulent inflammation) around the liver and cecum (a pouch from which the appendix hangs). Dr Miller said that from his observation of the phlegmon he formed the opinion that the pus had been there for some time. The accumulation of pus resulting from the ruptured appendix led in turn to myocardial ischaemia. (Dr Zusman explained in his report that sepsis is known to increase cardiac oxygen requirements and potentially to precipitate myocardial ischaemia.) During surgery Mr Williams' blood pressure became precariously low. He suffered what the experts agreed was some form of myocardial ischaemic event and lung complications, requiring life support in the intensive care unit. It is unnecessary for present purposes to go into further details of the complications. The judge found in summary that "Sepsis from the ruptured appendix caused injury to his heart and lungs".
At the relevant time the hospital did not have a policy about when a request for a CT scan should be for a "STAT" CT scan (derived from the Latin word "statim" meaning immediate). The judge found a CT scan requested in a case of suspected appendicitis should as a matter of normal practice be obtained on a STAT basis, and that in this regard the management of Mr Williams' case fell below the proper standard. If Mr Williams' scan had been obtained on a STAT basis, it was probable that his condition would have been diagnosed and he would have been treated more rapidly.
Dr Leitman and Dr Conn disagreed about what would have been an acceptable time frame and what, if any, difference in outcome would have been likely. One difference was over when the process of rupture began. It is right to emphasise the word "process" because the judge accepted that the rupture of the appendix would not have been an instantaneous event but a gradual process. The judge accepted Dr Leitman's opinion that the earliest evidence of the process beginning was at 15.19, when Mr Williams developed an abnormally rapid pulse. (This did not mean that perforation had occurred at that moment.) The judge rejected Dr Conn's opinion that the presence of pus and phlegmon in the abdominal cavity at the time of the operation was indicative that the appendix had begun to rupture prior to 15.19. (Dr Conn had suggested that the rupture had begun before Mr Williams arrived at the hospital.)
The judge also accepted Dr Leitman's evidence that he had seen patients who had presented in a similar way to Mr Williams and had developed a substantial amount of pus in a matter of hours. Dr Leitman's evidence was that 3.5 hours' delay before the operation was performed was sufficient time for the pus to form, but that it would generally take four to five hours, or longer, to have the amount of infection reported by Dr Miller. Dr Leitman also said that the extent of infection was eliminated or greatly reduced the sooner surgery takes place.
Dr Leitman gave a time frame for proper treatment, taking as his starting point Dr Okereke's evidence that he ordered a CT scan around 12.15. From that time Dr Leitman would have allowed an hour to an hour and 15 minutes for Mr Williams to be given an oral contrast fluid prior to performance of the scan, and 15 to 30 minutes for interpretation and communication of the result. He would have allowed another hour for consultation with the surgeon and preparation for surgery. On this time frame, the operation would have begun sometime around 15.00 to 15.15, ie about four hours after Mr Williams' arrival at the emergency department. There was no evidence about the level of staffing on the day in question.
Dr Conn did not put forward an itemised rival time frame, but he was of the opinion that the overall time table suggested by Dr Leitman was much too short.
The judge considered that Dr Leitman's four-hour time frame (which he mistakenly took as four hours from the ordering of the scan) may have been achievable but was optimistic. Allowing for "known unknowns", such as whether there might have been a longer wait for the operating theatre if the scan had been carried out and interpreted earlier, he...
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