Clinical negligence – breach of duty – expert evidence
Court of Appeal
Hallett, Hamblen and Irwin LJJ
6 April 2017
The claimant appealed against a decision that the defendant trust had not been negligent. The court found the judge in the first instance was justified in his findings regarding causation for the claimant’s injuries.
The claimant suffered from a rare congenital condition, hypophosphatasia, which meant he was prone to stress fractures that required surgical fixation. In March 2009, the claimant underwent revision of his left thigh. In October 2009, he was admitted to Medway Maritime Hospital, Gillingham following a period of acute pain. On admission, it was noted that the claimant complained of pain at the back of his left thigh. The claimant’s account was that he had complained of pain in both of his buttocks. He was given a seven-day course of antibiotics shortly after admission. The claimant was then discharged in October 2009, but was readmitted to hospital in November as an emergency MRI scan revealed that he had an abscess in his spine at the level of L5/S1. Further investigations revealed that he had an infraction of the lower thoracic spinal cord which left him with paraplegia at the level of T7.
The claimant’s case was that blood samples for culture should have been taken before he was administered antibiotics at the hospital. He was of the opinion that if such cultures had been taken it is likely that the infection he had would have been found and a longer course of antibiotics administered, which would have prevented the development of the abscess and the infraction of the spinal cord. In addition, he claimed that he should not have been discharged when he was and should only have been discharged with a detailed plan for close, frequent follow ups and monitoring, which would have resulted in discovery of the infection in time.
The defendant argued that even if blood cultures had been obtained before administration of the antibiotics, it was not probable that any infections would have been detected. They further argued that given the signs and symptoms presented to them it was proper in such circumstances to administer antibiotics for seven days and to then discontinue them and that it was therefore reasonable to discharge the claimant from hospital in October 2009.
The court at first instance found that there was a breach of duty by the defendant by failing to obtain blood cultures before prescribing antibiotics and also failing to monitor the claimant’s white blood cell count and CRP once antibiotics had been stopped. However, it was held that it had not been established on the balance of probabilities that the failures which were breaches of duty had actually caused the consequences alleged. Even though the judge believed that the treatment received and practices followed were poor, the difficulties of causation resulted in judgment for the defendant.
On appeal, it was found that that judge at first instance had not been in error in finding that it had been acceptable to stop the administration of antibiotics and to subsequently discharge the claimant. This was because the condition which made those steps acceptable i.e. the close monitoring had not been intended to be carried out. Furthermore, it was held that as the expert evidence from the microbiologists did not provide a clear picture as to the course of the infection, there was no basis that the judge could be faulted. Appeal dismissed.