England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Ian Kennedy)

		Royal Courts of Justice Strand London WC2 Thursday, 8th February 2001

1. LORD JUSTICE MANTELL: Anthony, known as Tony, Starcevic died on 5th September 1993. He died from a massive pulmonary embolism, the source of which was a deep vein thrombosis (DVT) in his left leg. He was only 37 at the time, happily married, with two young children and a steady job. Apart from a slight problem with his left knee, about which I shall have to say more, he was a fit young man who enjoyed going fishing and playing football with his six year old son. How, then, did it happen?
2. Ten years earlier Tony Starcevic had injured his left knee while playing football. He had treatment in hospital and physiotherapy but the knee never completely recovered. Some weakness remained but it was not such as to prevent him from leading a normal and active life. Then on 17th September 1993 he was inspecting some new cars which had arrived at the motor car showrooms where he worked in Hemel Hempstead, when, in the course of bending down, his left knee suddenly locked. This was not a new experience. The knee had locked several times before but on those occasions he had been able to straighten it himself. One of his colleagues took him to Hemel Hempstead Hospital where the leg was manipulated and straightened and put into a thigh to ankle plaster cast tube. He was given pain killers and crutches, discharged and told to report to the fracture clinic in five days time. That he did and the plaster cast was removed. The registrar or surgeon who examined him, Dr. Falkowski, noticed a moderate effusion in the left knee and advised an operation to remove what he considered to be a damaged portion of the meniscus. The operation, termed an arthroscopy, was arranged for the following Saturday, the 25th, at St Albans. On the Saturday Mr Starcevic and his wife, Denise, duly attended at St Albans where they were seen first of all by the occupational physiotherapist, Mrs Diane Ellis. What happened during that interview is of some importance and is another matter to which I must return.
3. He was next seen by a Mr or Dr. Wahb who has since taken up a post as a consultant orthopaedic surgeon in Saudi Arabia. He noticed the marked effusion of the left knee, some wastage of the quadriceps muscles, and diagnosed a tear of the medial meniscus for which arthroscopy might be appropriate, at least as a first step. Then at about 12.40 pm a nurse came to take Mr Starcevic to the operating theatre. He was put on to a trolley and his wife kissed him goodbye, but not before there had been a conversation with the nurse, something else which I shall have to revisit. Mrs Starcevic was told to ring the hospital at about 2 pm or just after. In fact, she phoned at 2.30 pm to be told to ring again in about an hour's time. She did so and was informed that her husband was not yet back and that the hospital would be in touch with her. At about 3.50 pm Mr or Dr Wahb telephoned to say that something had gone wrong and that Tony Starcevic had been transferred to the intensive treatment unit at Hemel Hempstead. He said Tony was in a critical condition and Mrs Starcevic should go there as quickly as possible. She, Mrs Starcevic, together with her brother-in-law and her husband's parents, went to the hospital to be told within a few minutes of arriving that Tony Starcevic had died from a blood clot to his lungs.
4. Lately, of course, there has been a certain amount of publicity about deep vein thrombosis and the risk of pulmonary embolism, but back in 1993 Mrs Starcevic was entirely innocent of any knowledge on the subject. Certainly she had no idea about the possible causes of such a condition or as to its signs or symptoms. She did not know, for example, that one such sign or symptom might be swelling of and pain in the affected limb and another the discolouration of the foot resulting from an interruption in the blood supply. However, her recollection was that her husband had been complaining of swelling and pain in the left calf from soon after the plaster tube had been removed and that he had mentioned both matters to Mrs Ellis, the occupational physiotherapist. Further, it is her recollection that on that Saturday morning her husband had said that the pain in the calf was far worse than that that he was experiencing in the knee. She remembered that when the nurse had come to collect her husband to take him to theatre, she had remarked that his left foot was a funny colour and she herself had noticed that it was "purpley". On 18th November 1993 (that is less than a month after the operation) she wrote to the business manager of St. Albans City Hospital. The letter has some significance and I should read it in its entirety:

"Dear Sir,

I am writing to you concerning the death of my husband ANTHONY MICHAEL STARCEVIC in Hemel Hempstead Hospital I.T.U. on Saturday 25th September 1993 following what was supposed to be a simple cartilage operation on his left knee at St Albans City Hospital.

I am not making any formal complaint at this time, but I do feel that I am entitled to ask for some answers to my questions.

1) When my husband attended Hemel Hempstead Fracture Clinic on Wednesday 22nd September to have his plaster cast removed, did the doctor notice the row of what looked like small blood blisters which ran down the front of his shin and on the top of his foot? (The plaster was put on his leg on Friday 17th September).

At 9.00 a.m. on Saturday 25th September we attended St Albans City Hospital (Beckett Ward) where my husband was to have his operation just after lunch.

While we were waiting, the occupational physiotherapist, Mrs D Ellis, came to see us with a list of post-operative exercises. Whilst we were talking my husband told her about his calf muscle, which was now very swollen and painful. She explained where the calf muscle started and ended and thought the swelling could be due to the injury.

2) Did Mrs Bliss mention my husband's swollen and painful calf muscle to the doctor, or put a note in his records?

3) When the doctor came to examine my husband, did he notice the blood blisters and swollen calf?

4) When they finally came with the trolley to take my husband to the theatre, the sister on duty in Beckett Ward (her first name was Sylvia) mentioned that his foot was a funny colour and asked him if he was cold. Did the sister mention the odd colour of my husband's foot to the doctor before the operation began?

5) Should St Albans Hospital be performing operations when they have no I.T.V. facilities available for if things go wrong?

I do hope that you can supply me with some explanation as to what exactly happened as I feel that my children (ages 6 and 2) and myself deserve some consideration in what seems such an unnecessary waste of a life.

Yours faithfully."

5. The letter was immediately acknowledged by Miss Young, the Customer Relations Manager, on 19th November 1993. It is not necessary to read that letter. It acknowledges receipt of the letter from Mrs Starcevic and promises that a proper and full inquiry will be carried out. However, on 23rd November Miss Young asked the superintendent physiotherapist, Janet Watts, for her comments and also invited responses from the senior orthopaedic surgeon, the anaesthetist and the sister in charge of Beckett ward from where Mr Starcevic had been transferred to theatre. Janet Watts' letter to Miss Young, written on 25th November, missing out the paragraphs which are of no consequence, was as follows:

"Mrs Ellis has physiotherapy records on Mr Starcevic in which the pre-operative advice and exercises (including the insert sheet) are documented. Mr Starcevic's swollen calf muscle has not been documented.

However, Mrs Ellis does recall Mr Starcevic mentioning a tight left calf muscle but at the time Mrs Ellis felt that the swelling and tightness was consistent with the knee injury, the leg having been in plaster and Mr Starcevic having been non weight-bearing."

6. This was of course an internal letter but it did get passed on to Mr. Beacon, the senior orthopaedic surgeon, who wrote to Miss Young on 30th November 1993 asking whether or not Mrs Bliss (in truth Miss Ellis) had mentioned the painful calf to a doctor. Some time went by, but on 10th January 1994 Miss Young asked Miss Watts to obtain a personal statement from Diane Ellis "as I suspect Mr Starcevic's widow may well take legal action at some stage." Diane Ellis's response came on 13th January. I read the relevant paragraph:

"During the pre-operative conversation and examination I found that he could not fully straighten his knee. He said that the muscles behind the knee felt tight. I felt that this could be due to the fact that he had been in plaster (which may have been slightly flexed at the knee to allow safe mobility) for a week. It is not uncommon, in my experience, for these tendons to tighten even in this time. It is also not uncommon for swelling to occur in the lower leg after plaster removal. I advised Mr Starcevic on stretching exercises, to do post operatively, to help relieve this situation."

7. Miss Young's prediction was not far wide of the mark and Mrs Starcevic did commence proceedings against the Health Authority. On 16th September 1996 she issued a writ endorsed with a statement of claim, in which she alleged negligence on the part of the medical practitioners and other members of staff in failing to diagnose and treat the deep vein thrombosis which subsequent events proved to have been present. More particularly, it alleged that Mrs Diane Ellis was negligent in failing to communicate to the doctors the fact that Anthony Starcevic was complaining that his calf muscle was swollen and painful, being a possible indication of a deep vein thrombosis, and that senior staff nurse Sylvia Nawathe failed to tell the doctors that Anthony Starcevic's leg was a "funny colour". In the defence filed in response issue was taken in clear terms as to the allegation that there had been mention of pain and swelling in the calf. It was denied, and it is not surprising, therefore, that in the proceedings which followed that was an issue, and an important issue, which fell to be resolved. In due course, the action did come on for trial before Ian Kennedy J who delivered judgment on 19th October 1999, by which he dismissed Mrs Starcevic's claim. It is against the order of Ian Kennedy J that Mrs Starcevic now appeals with the permission of Mance LJ.
8. Although the claim alleged negligence on the part of Dr. Falkowski and his associate Dr Sahay and, more expansively, "the medical practitioners treating the deceased", and the judge found none, there is no complaint in regard to that finding, it being accepted, seemingly, that on the evidence the judge was entitled to hold that (i) there had been nothing to alert the doctors to the problem, and (ii) in such a case there was no duty to investigate. However, it is complained that the judge failed to make findings on what are said to be two crucial questions - namely, did Tony Starcevic tell Diane Ellis about the swelling and pain in the left calf and did senior staff nurse Nawathe notice that the left foot was a funny colour, or, if he did make findings adverse to the appellant on those issues, the findings were not warranted by the evidence.
9. Before this court Miss Lambert, who appears on behalf of the respondent Health Authority, has refined one of those factual issues or introduced a third, which is: was the judge entitled to find, and was there evidence, that Diane Ellis had localised the pain to an area behind the knee rather than in the body of the calf? Whether there be two questions or three, I do not believe that there was ever any doubt about the importance of them. I have already referred to the fact that the issue as to what was said in the presence of Diane Ellis was raised on the pleadings. On 6th October 1999, shortly before the trial, the medical experts in the case had a telephone conference. Several points were agreed in an attempt to answer specific questions. One was: "If Mr Starcevic complained that his calf was swollen and painful should Mrs Ellis have communicated that to the medical staff?" The answer came: "We all agreed that if Mr Starcevic had informed Mrs Ellis that his calf was swollen and painful then this information should have been passed on to the medical staff." The response to the question: "What sort of funny colour would have been significant in this case?" was "We agreed that a blue/purple colour, suggestive of Venus engorgement would have been significant." And to the question: "Is it credible that the deceased's leg could have been a funny colour with the type of DVT that he had suffered", the answer was: "We all agreed that the deceased's leg could have been a 'funny colour'". The defendant's expert, Dr. Barnes, reported that "if Mrs Ellis was told that Mr. Starcevic was complaining that his calf muscles were swollen and painful, I think that it would be negligent not to bring this to the notice of the orthopaedic team."During the trial the judge himself recognized that the conflict between the evidence of the appellant and Mrs Ellis was crucial to the outcome. At one point he said: "If the primary evidence is as the claimant says then the game is over."And again when Dr. Barnes was giving evidence: "It is self-evident; if he was complaining of something in the calf, of course she should have passed it on. She said so herself."
10. In giving the judgment the learned judge reviewed the evidence comprehensively and with great care. He identified the probable cause of the DVT as being the plaster cast tube which had restricted the blood supply to the leg. He noted that the operation itself, which involved exsanguination of the lower leg, was likely to have triggered the separation of the thrombus or clot which ultimately passed through the heart on its way to the lungs and which was the immediate cause of death. He observed that on the evidence the presence of a DVT might well be silent, in that it did not display outward or visible signs or cause pain, though he seems to have accepted that in about 70 to 80% of such cases those signs would be present. He also absolved the doctors of any fault in failing to recognize the presence of the DVT whilst carrying out the pre-operative procedures.
11. With regard to the first of what I have described as the two crucial questions, the judge referred to the appellant's letter of 18th November 1993 and said this:

"The claimant was making these same points, not by way of complaint but by way of seeking information within a month of the death. There never has been any suggestion that the claimant was anything other than honest and straightforward in her evidence. The question essentially resolves (sic) to the extent of any swelling or discomfort."

12. I interpose to say that the appellant challenges the judge's identification of "the question". She asserts through counsel that the real question is what was said by her husband to Mrs Ellis, and with regard to the later incident what was said by senior staff nurse Nawathe about the appearance of her husband's foot. To continue, however, the judge noted that the letter, written so soon after the event, was clear evidence of consistency on the appellant's part, and he accepted that prior to writing that letter she had not been fed with information about the symptoms of a DVT. He remarked upon the fact that Diane Ellis's recollection differed from that of the plaintiff but acknowledged that it was based upon reconstruction. He would not have it that the letter written by Janet Watts amounted to an admission but held rather that it was simply loosely phrased. Again, with regard to the appearance of Tony's Starcevic's foot, he recognized the conflict of evidence between what the appellant claimed to be a clear recollection of events and what on the part of the nurse was again necessarily a reconstruction, it being Sylvia Nawathe's evidence that, had she noticed any such discolouration, she would have taken steps to bring it to the attention of the doctors. Insofar as the learned judge did attempt a resolution of these acute conflicts of evidence, we find at page 47 of the transcript the following passage:

"In the upshot I am not persuaded that the claimant's evidence is to be preferred to that of the various clinicians, in which term I include physiotherapists, nurses and doctors, who have been called by the defendants.

So I reach the conclusion that I am not persuaded that there was indeed any sign or symptom of a deep vein thrombosis which ought to have been detected by the clinicians. Accordingly this claim fails."

13. Neither in the passage recited from the judgment or elsewhere that I have been able to find did the judge directly address the conflict of evidence between the appellant and Diane Ellis, whether it be as framed on behalf of the appellant or as refined on behalf of the respondent. Nor did he directly address, so far as I can see, the conflict between the appellant and senior staff nurse Nawathe. Certainly he never said in terms that the appellant was either untruthful or mistaken in her recollection. In the light of what he had to say about the appellant in her letter of 18th November, it would have been, in my view, extremely difficult for him to come to either conclusion. It seems to me that on those two critical issues the evidence was pretty much all one way. Here was a young woman, obviously articulate and literate, who professed to have a clear recollection of what had been said by her husband to the physiotherapist. She recorded what was said in a letter written within a very few weeks of the events. Similarly, she recorded what she contends to have taken place when her husband was on the trolley and what was said by the nurse. That was the last time she was to see her husband alive. She impressed as an honest and straightforward witness. What she professed to recall was entirely consistent with what is now known to have been her husband's condition and, indeed, typical of the symptoms which present themselves following a deep vein thrombosis. Miss Young's letter to the superintendent physiotherapist records that Mrs Ellis recalled Mr Starcevic mentioning a tight left calf muscle and, although the judge was not prepared to regard that as an admission, it was certainly not inconsistent with what the appellant had said in evidence. On the other hand, the evidence of both Diane Ellis and staff nurse Nawathe did not directly contradict that of the appellant but merely recorded what they would have done if matters had stood as described by the appellant. Indeed, in the course of giving evidence, Diane Ellis accepted the possibility that Mr. Starcevic had referred to a tightness in the calf. Moreover, she had accepted that if he had mentioned pain in his calf she would have told the doctors specifically about it. She recorded in her witness statement, which stood in part as her evidence-in-chief: "I am always aware that calf pain might indicate a deep vein thrombosis which is a risk when someone has been in plaster of Paris." It seems to me, therefore, that had this most experienced judge addressed his mind to the particular question which was whose evidence he should prefer with regard to what was said on each occasion, he could only have come to the conclusion that it should have been that of the appellant. That being so, to use the learned judge's own words, it would have been "game over". Accordingly, I would allow this appeal and remit the matter to the High Court for assessment of damages if that remains a live issue.
14. LADY JUSTICE HALE: I agree.
15. THE PRESIDENT: I also agree. The appeal is allowed and the order of the judge is set aside. Judgment is entered for the claimant. Damages are awarded as agreed between the parties in the sum of £175,000.
Order: Appeal allowed with costs here and below; legal aid assessment of the appellant's costs; order of the judge set aside; judgment entered for the claimant; damages awarded in the sum of £175,000 as agreed between the parties. (Order not part of the judgment of the court)