Thorley v Sandwell and West Birmingham NHS Trust [2021] EWHC 2604 (QB)

1st October 2021
Key Issues
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The case of Thorley involved a claim in clinical negligence brought against the Defendant Trust. The case focused on issues of breach of duty and causation. The Claimant contended that the Defendant was in breach for not following its own clinical guidelines.

The Facts

In February 2002, the Claimant was diagnosed with atrial fibrillation and prescribed warfarin to be administered daily.

On 17th March 2005, the Claimant was admitted to Sandwell Hospital complaining of two days of chest pain and breathlessness. He was diagnosed with troponin negative acute coronary syndrome and prescribed 75mg aspirin daily, being discharged the following day with arrangements for an outpatient coronary angiogram. To reduce the risk of uncontrolled bleeding from angiography, the Claimant was advised by the Trust to stop taking warfarin for four days prior to the procedure. Following the procedure, the Claimant was discharged home and was told to wait two days before recommencing warfarin at 3mg.

The Claimant recommenced warfarin on 29th April 2005 at a dose of 3mg as advised, but suffered an ischaemic stroke the following day, resulting in permanent and severe physical and cognitive disability.

It was the Claimant’s case at trial that the Trust was in negligent breach of duty in that the cessation of warfarin should have been limited to the 3-day period 24th – 26th April, then restarted at the usual dosage of 3.5mg, not 3mg. It was alleged these breaches caused or materially contributed to the occurrence of the stroke. Conversely, the Trust denied breach of duty, admitting only that warfarin should have been restarted no later than the day after the angiogram (28th April) at the dose of 3.5mg. With respect to causation, it was the Defendant’s case that the Claimant would have suffered the stroke in any event.

Late in the proceedings, the Trust had disclosed internal guidance from 2004 entitled ‘Anticoagulation and Surgery’. The guidance – which, on its face applied to surgery rather than angiography – recommended ceasing warfarin for three days before surgery and recommencing as soon as the patient was able to take oral fluids. The Claimant’s expert maintained that the guidance should have been applied to those undergoing an angiogram. The Trust’s expert disagreed, suggesting that the guidance did not apply and that the advice given to the Claimant had been in line with established medical practice. Notably, the Trust did not call any witnesses of fact to explain the background or to interpret the 2004 guidance.

The Issues

The issues at trial depended on the Court’s assessment of the rival expert evidence. The Trust called no evidence of fact. With respect to breach of duty, Soole J heard from the cardiologists Professor Roger Hall and Dr. T.R. Cripps; as to causation, the haemtaologists were Dr. Trevor Baglin and Professor K. John Pasi.

There were three central issues at trial: (1) whether an adverse inference should be drawn, in line with the decision in Wisniewski v Central Manchester HA [1998] P.I.Q.R. P324, [1998] 4 WLUK 14 from the Trust’s failure to call evidence from those who had drafted the 2004 guidance; (2) whether the Trust had breached its duty of care towards the Claimant in its directions to the Claimant as to when he should stop and start taking warfarin; and (3) whether causation was made out.

Held: Dismissed

Soole J dismissed the claim. In coming to this conclusion, he found that the Wisniewski principle did not apply as the 2004 guidelines had no application to angiography and that no inference could be made from the absence of factual evidence called by the Trust on that issue. Therefore, those treating the Claimant had not been in breach of duty in failing to apply the 2004 guideline.

With respect to breach on the issue of stopping warfarin four days prior to the procedure, Soole J found the expert evidence provided no basis for finding that a 3-day-delay in taking warfarin would have been better medical practice than 4 or 5 days. Even if applicable, the simple existence of the Trust’s 2004 guidance, did not mean that it was illogical to apply the practice of a body of competent medical practitioners, nor deprive that practice of its logical basis. The Trust was also not found to be in breach for failure to re-commence warfarin on the day of the procedure; Soole J found there was a body of competent medical practitioners who would have deferred restarting warfarin until the day after the procedure. Accordingly, the Trust was not found to be in breach beyond the extent to which the Trust had already admitted.

Finally, Soole J considered causation. Dealing first with causation on ordinary ‘but for’ principles, the Court found that even if the omission of warfarin for more than three days constituted a breach of duty, the Claimant would have suffered his stroke in any event. The Court then turned to examine the argument based on material contribution. It concluded that the material contribution test did not apply where there was a single tortfeasor and an indivisible injury.

The claim therefore failed.

Our Comment:

Olinga Tahzib, a barrister from our clinical negligence team commented on the case as follows:

“The most interesting part of this judgment is the discussion of material contribution. The parties disagreed as to whether, as a matter of law, the modified material contribution test of causation can be applied to cases where the injury (as was admitted in the present case) is indivisible.

The authorities point in different directions: on the one hand, in the Privy Council case of Williams v The Bermuda Hospitals Board [2016] UKPC 4; [2016] AC 888, Lord Toulson – citing the landmark case of Bonnington Castings Ltd v Wardlaw [1956] AC 613 – suggests that the test can be applied in cases of indivisible injury. By contrast, the Court of Appeal decisions in both Ministry of Defence v AB [2010] EWCA Civ 1317 and Heneghan v Manchester Dry Docks Ltd [2016] EWCA Civ 86 point in the other direction.

In the end, Soole J, found himself bound by AB and Heneghan on the basis of strict precedent but noted that this was a legal issue “ripe for authoritative review”. On the right case, it is a point on which we might expect an appeal to the Supreme Court in the not too distant future.”

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