Dalchow v St George’s University NHS Foundation Trust [2022] EWHC 100 (QB)

Date
20th January 2022
Court
Key Issues
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Judge

At first blush, the case of Dalchow looks like a fairly orthodox clinical negligence claim (where the Claimant won on breach of duty but lost on causation). However, the analysis of the trial judge (particularly on matters of law) is of particular interest, including:

  • A ‘first principles’ analysis of the approach that should be taken towards the assessment of expert evidence in a clinical negligence case;
  • The extent to which, on questions of factual causation, inferences can be drawn in party’s favour where (say) there is no direct evidence as to how long an individual might have had to wait for a medical procedure.

The Facts

The claim in Dalchow related to an alleged delay in taking steps that would have led to a faster diagnosis and treatment of Fournier Gangrene.

The Claimant was seen by a Second Year Specialist Trainee in urology on the 13th of January 2015. The Doctor noted a 3cm right epididymal cyst, which trans-illuminated, as such removal was recommended under general anaesthetic.

On the 14th of April 2015, the Claimant underwent “uncomplicated” surgery for the removal of a benign epididymal cyst on his scrotum (para 15). The Claimant was prescribed Paracetamol and discharged wearing a scrotal support with pain recorded as “[being] within the patient’s own acceptable limits” (para 16).

By 4:30 am on the 15th of April 2015 the Claimant’s increasing pain led to readmittance to hospital and provision of morphine. The Claimant’s pain score was recorded as 10/10, with the Defendant conceding the severity of pain and failure to respond to paracetamol rendering the case a “very, very unusual presentation for post-operative pain or small haematomas” (para 19)

At 11 am the Claimant was examined by a urology Registrar who recorded a differential diagnosis including post-operative pain, a small haematoma or early infection. Subsequently, the Claimant was reviewed by a Consultant Urologist at 12 pm with the x-ray request form notes recording “?haematoma/active bleeding??” (para 36). An ultrasound scan was requested at 2:39 pm, which was performed at 3:12 pm. The scan notes recorded that “[t]here are multiple small molecules of gas within the fluid surrounding the right testicle, tracking up along the spermatic chord” (para 49). At 6.15 pm the Claimant was reviewed by the urology Senior Registrar at 6.15 pm who recorded a diagnosis of Fournier gangrene, a form of necrotizing fasciitis.

Issues

It was the Claimant’s case that the Defendant was in breach of duty due to a failure to investigate his condition by means of an urgent ultrasound or CT scan, and to start intravenous broad spectrum antibiotic therapy, following review at around 11 am.

Whilst the Defendant conceded there was a breach of duty for failing to begin the Claimant on intravenous antibiotics by 12 pm (breach of duty alleged by the Claimant from 11 am was denied), it is denied that provision of this treatment would have made any material difference to the Claimant’s outcome. The Defendant further denied that failure to investigate the Claimant by way of an ultrasound scan was a breach of duty; or that the ultrasound scan would have led to a differential diagnosis of necrotizing fasciitis leading the Claimant would have been taken to an operating theatre.

The issues to be determined by Mr Southey QC pertained to whether there was a breach of duty beyond that admitted and whether any breach of duty caused or materially contributed to the Claimant’s injuries. Causation would essentially have been established, had the Claimant been able to prove that he would have been taken to theatre earlier.

Approach to Expert Evidence:

The judge (Hugh Southey QC) set out a detailed precis of the law as he considered he was required to apply it. In particular, he noted that:

  • Applying Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 per Lord Scarman, Mr Southey QC reminded himself that “. . . 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” (para 87);
  • Equally in Bolitho Bolitho v City and Hackney Health Authority [1998] AC 232, Lord Browne-Wilkinson held, “… in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence…In my judgment that is because, in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied upon is reasonable or responsible. 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.

 The judge then placed heavy reliance on the approach taken by Green J in C (By his Father and Litigation Friend F) v North Cumbria University Hospitals NHS Trust [2014] EWHC 61 (QB). The passage is long and is set out by Mr Southey QC at para 89, but in summary, the following principles were thought to be of general importance:

“In making an assessment of whether to accept an expert’s opinion the Court should take account of a variety of factors including (but not limited to): whether the evidence is tendered in good faith; whether the expert is “responsible”, “competent” and/or “respectable”; and whether the opinion is reasonable and logical.

 

Breach of duty:

The judge then went on to analyse the expert evidence in some detail. He reminded himself to exercise the following caution:

“In particular, I have been cautious to ensure that I have not merely decided which expert evidence I prefer. Instead, I have sought to determine whether the medical opinions relied upon are reasonable” (our emphasis).

Breach of duty was established largely because, on the evidence, the judge formed the view that the treating clinicians ought to have appreciated that there was some uncertainty about the diagnosis (particularly given the Claimant’s presenting levels of pain).  Given that uncertainty, it was illogical and unreasonable not to proceed to further diagnostic examinations (in this case by way of Ultrasound scan).

The judge thus rejected the Defendant’s expert’s evidence on breach of duty because “To the extent that it is necessary for me to apply the Bolitho test, it appears to me that there is a flaw in the logic of Professor Sethia as he fails to grapple with the high level of pain when reaching conclusions regarding diagnosis”

Causation:

There were 2 questions to determine in respect of causation:

  1. As a matter of fact, when would the Claimant have undergone an Ultrasound Scan?
  1. Would the results of that ultrasound scan have resulted in the Claimant undergoing surgery earlier than in fact occurred?

There was no direct evidence available as to when a USS might have taken place, given the resources available at the hospital on that particular day. Absent of either party leading such evidence, the judge applied the principles Wisniewski v Central Manchester Health Authority [1998] Lloyd’s Medical Report 223. Where the agreed expert evidence suggested that an urgent USS ought to take place within 2 hours, absent of having direct evidence, the judge considered that he was “…entitled to find that the USS could have been conducted within 2 hours”

However, on the second question, Mr Southey QC found that had the ultra-sound scan been completed earlier similar abnormalities “suggestive of infection” would have been found, however, an earlier ultrasound would not have diagnosed Fournier gangrene. On this issue, he considered that the Defendant’s expert’s views were reasonable. Absent of there being a diagnosis, on balance, the surgeons would not have proceeded to earlier surgery, such that the overall outcome would have been the same.

With respect to causation and antibiotics, the expert evidence found that earlier antibiotics would have at best had a “marginal outcome”, as antibiotics have “once necrosis commences…antibiotics have a limited effect” (paras 115, 118). As such, Mr Southey QC found that acceptance about “the effectiveness of antibiotics means that no loss can be established once I have rejected the claim that surgery should have been commenced earlier” (para 120).

As such, the claim was dismissed.

Our Comment:

Ben Bradley, a barrister from our Clinical Negligence team commented on the case as follows:

The judge has sought to revisit ‘first principles’ when directing himself as to how he should approach the expert evidence in a clinical negligence case.

How does a Claimant establish breach of duty, when the Defendant is able to call a responsible and well-respected expert, who says the actions of the clinicians were in accordance with the practices that would be adopted by a responsible body of “[clinicians] skilled in this particular art”?

We are reminded that the judge should not simply decide the case based on which expert he or she prefers. The focus of the challenge to expert evidence is likely to turn on the reasonableness and/or logic behind an expert’s approach. In this case, that analysis cut both ways for the parties. On the one hand, the judge was prepared to conclude that the Defendant’s views on breach of duty were illogical. By contrast, the expert’s views on causation maintained logic (and as such the action ultimately failed).

 


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