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Wright v Cambridge Medical Group, Court of Appeal, 9 June 2011

24 June 2011
The issues

Causation – medical negligence – causative potency – whether General Practitioner liable in negligence for late referral

The facts

In April 1998 the Claimant, aged 11 months, contracted chicken pox. She was admitted to South Cleveland Hospital on the 9th April. Within a couple of days the Claimant developed a bacterial super infection which the hospital had not diagnosed by the time of her discharge on the 12th April. The expert evidence established that the bacteria seeded into the proximal femur, resulting in osteomyelitis, an infection of the bone, on the 13th or 14th April.

On the 14th April, the Claimant’s condition was causing her significant discomfort and her mother, Mrs Wright, took her to see Dr Winter, a GP. He advised Mrs Wright to contact the practice again if the Claimant’s condition failed to improve. The following day the Claimant’s condition seemed considerably worse to Mrs Wright. She made contact with Dr Phellas at about 4.45pm. He did not make any arrangement for the Claimant to be seen and it was conceded by the Defendant that he was negligent in not doing so and that had he done so he would or should have referred her to the hospital.

By the evening of the 17th April the Claimant was considerably worse with the existing symptoms intensifying. Mrs Wright’s sister spoke to Dr Robertson of the Defendant practice who saw the Claimant an hour later and referred her to the hospital with a letter expressing his concerns.

The expert evidence established that the sympathetic effusion on her hip joint would have become infected by the 17th or 18th April. On the evening of the 17th April the Claimant was seen by a Senior House Officer. The next morning she was seen by Dr Turner, a registrar, who changed the prescribed treatment. After speaking to a microbiologist, Dr Turner changed the treatment again in the afternoon. The treatment was continued even though the Claimant’s condition did not seem to improve, until the Claimant was seen by Dr Hampton, a Consultant Paediatrician on a ward round on the 20th April. He changed the treatment, mainly as a result of a blood culture result which had been available since the 19th April. Even then the proper diagnosis was not made and it was only on the following day, the 21st April, when it was realised that the Claimant was not moving her hip that led to an ultrasound scan which showed septic arthritis, resulting in an urgent arthrotomy and surgical drainage carried out on the 22nd April. By then, the combination of the oseomyelitis and septic arthritis had led to the separation and destruction of the bone plate. She was left with a permanently unstable hip, restricted movement range, leg length discrepancy, and restricted mobility.

The claim was issued against the Defendant. Although by the time of the Trial the Defendants had accepted that they were negligent in not referring the Claimant to hospital in the late afternoon or early evening of the 15th April, they denied liability for the permanent damage. Although the hospital had been notified about a possible claim it had not been brought into proceedings, nor had the Defendant brought contribution proceedings against the hospital.

The Trial Judge concluded that although the Defendants were negligent in not referring the Claimant to the hospital on the 15th April, this negligence caused the Claimant no loss, as even if she had been admitted she would not have been treated properly and so would in any event have suffered the permanent damage. The Trial Judge concluded, given the standard of treatment actually received on the 9th and 12th April and 17th and 21st April, she would have received inadequate treatment if she had been admitted on the 15th April.

The Claimant Appealed.

The decision

Two questions were raised. The first was whether on a fair view of the facts the Defendant’s negligence was a cause of or significantly contributed to the Claimant’s permanent injury. The second question was whether that injury was too remote or in modern terms, whether that injury fell outside the scope of the Defendant’s duty. Where there were successive torfeasors, the question as to whether the causative potency of the negligence of the first was destroyed by the subsequent negligence of the second depended very much on the facts of the particular case. In many cases both parties could be held responsible for the damage which ensued so that the issue was not which of them was liable, but how liability was to be apportioned between them. The mere fact that if a second party had not been negligent the damage which subsequently ensued would not have occurred, does not exonerate the first party automatically of being causative of the damage. As Lord Denning MR in Lloyds Bank Ltd v Budd [1982] “the doctrine of lost opportunity is gone forever” (*The driver of a vehicle known to be defective who drove it on the carriageway in foggy weather, where it broke down, was liable for some proportion of the responsibility for the multiple collision of many following vehicles, each of which was being driven negligently).

The issue had been considered in the context of clinical negligence in Rahman v Arearose Ltd. In that case Laws LJ had pointed out that it could not be a rule of law that later negligence always extinguished the causative potency of an earlier tort as the ultimate test was that every tortfeasor should compensate the injured Claimant in respect of the loss of damage for which he should justly be held responsible and that this approach should ensure that “the metaphysics of causation can be kept in their proper place”. In this case, the Defendant’s negligence was a causative factor of the Claimant’s permanent injury. As with Rahman, the negligence of the Defendant and the failings of the hospital had “a synergistic interaction, in that each tends to make the other worse”. On the assumption, which was the assumption that the Judge had made, that the treatment that the Claimant would have had would mirror the treatment she actually received, then taking events back accordingly, had the Defendant not been negligent and the Claimant been referred on the 15th April and not the 17th April, there might well have been no permanent damage and it was very likely there would have been significantly less permanent damage, even if the hospital had performed as inadequately as it had done following the admission on the 17th April.

As to the second question, namely whether the Claimant’s permanent injury was within the scope of the Defendant’s duty, then the question was, as had been formulated by Lord Nichols in Kuwait Airways Corporation v Iraqi Airways Company, whether the Defendants “ought fairly or reasonably or justly…to be held liable”. Any medical practitioner must know that prompt referral must widen the safety margin available for the patient. Where a patient was in a deteriorating condition the risk which ought to be within the scope of the General Practitioner’s duty was that delay in diagnosis and referral might have an adverse effect on the patient’s prospect of recovery. It did not seem unfair to hold the Defendants liable in that it was always open to them to join the hospital as a party and had they done so, the Court could have apportioned liability between the two parties.

The Judge had concluded that the Claimant would have suffered the same damage as she did suffer even if she had been admitted on the 15th April. That could not stand as a conclusion because of:

i) The Judge’s unjustified rejection of the possibility of treatment by different doctors from those who treated the Claimant from the 17th April;

ii) The fact that the systemic inadequacy based on her admission on a Friday evening did not fairly justify the Judge’s view of what would have happened on a Wednesday evening;

iii) The Judge’s failure to take into account the importance on the likely outcome for the Claimant of the two extra days; supported by

iv) The fact that the hospital got near the right diagnosis on the 18th April;

v) The fact that it might well have been easier to make the right diagnosis on the 15th or 16th April than on the 17th or 18th April.

It was not clear whether as a matter of law a Defendant was entitled to rebut an allegation of negligence in a case such as this on the basis that she would not have been competently treated thereafter in any event. The Master of the Rolls took as law a proposition conceded in Bolitho v City and Hackney Health Authority to the effect that a doctor could not escape liability for damage caused to a patient by his breach of duty by establishing that if he had not committed that breach the damage would have been suffered anyway because he would have committed a subsequent breach of duty. The Master of the Rolls expanded this on the basis that the true rationale for this principle was not that you could not profit from your own wrong, but rather by committing the breach of duty the doctor had excluded the patient from an opportunity of being treated appropriately and that had she had that opportunity she would have had a claim for the same damage against the doctor for the very negligence upon which the doctor was relying to avoid liability. Therefore, for the Master of the Rolls, the principle was that in a case where a doctor had negligently failed to refer his patient to a hospital and as a consequence had lost the opportunity to be treated as she should have been by a hospital, the doctor could not escape liability by establishing that the hospital would have negligently failed to treat the patient appropriately, even if he had promptly referred her. If this was not correct then in any event the presumption had not been rebutted on the facts by the Defendant.

The Claimant also had argued that she should be compensated for the loss of a chance. This argument could not succeed following the decision of the House of Lords in Gregg v Scott.

Appeal allowed.

Judgment on liability entered for the Claimant.

Comments

Lady Justice Smith gave a Judgment noting that this came close to the line but that because of the ongoing effect of the delay in referral, the hospital’s failure to act correctly did not completely wipe out the GP’s contribution. Although it was fair, just and reasonable for the GP to be held liable for the permanent harm, Lady Justice Smith had little doubt that justice would require that the hospital made some contribution, and probably a large one, to that liability. She was not sure that Lord Neuberger’s view of the irrebuttability in law of the proposition that the Claimant would have been treated competently by the hospital was right.

Lord Justice Elias delivered a dissenting Judgment that the limited additional risk caused by the delay, which was only triggered because of the negligence of the hospital itself, did not justify the imposition of liability whenever the hospital was negligent. Hospital doctors are more specialised and but for their negligence the Claimant would not have suffered a permanent damage at all. There was also the policy consideration in support of this view, namely that imposing liability might encourage doctors to play safe and refer cases to hospital when there was no need to do so.

This is a complicated case with different approaches being taken by members of the Court. It may be that the true ratio of this case is one limited to its facts.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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