COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CIVIL DIVISION
SITTING IN OXFORD
HH JUDGE CHARLES HARRIS QC
Insert Lower Court NC Number Here
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SEDLEY
and
LORD JUSTICE WILSON
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DR S.R. BURNE |
Appellant/ Defendant |
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- and - |
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'A' |
Respondent/Claimant |
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Mr G McDermott QC and Mr H Trusted (instructed by Messrs Alexander Harris) for the Respondent
Hearing date: 14 December 2005
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Crown Copyright ©
Lord Justice Sedley :
The problem
" The judge's judgment and reasoning read persuasively, but, in a case where he has set aside the joint view of both parties' experts, I am unable to say that there is not a real prospect of success."
The law
"is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art ."
This test, as Lord Scarman said in Maynard v West Midlands RHA [1984] 1 WLR 634, 639, does not permit the judge to make his or her own choice between two or more respectable schools of professional practice. But, as Lord Browne-Wilkinson said in Bolitho:
"[T]he court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice [T]he court has to be satisfied that the exponents of the body of opinion relied upon can show that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge, before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter."
A little later in the same speech he said:
"The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence."
The evidence
"Clinical condition 1: namely coughing and vomiting phlegm with intermittent temperature (even with mild headache) would fit with an upper respiratory tract infection to such a degree that a face-to-face evaluation would not be required. In these circumstances advice to call again as required would be reasonable.
Clinical condition 2: headache and 'unprovoked' vomiting (specifically no phlegm, no upper respiratory tract infection or gastroenteritis), with or without a temperature, would require a further assessment."
The arguments
Discussion
"I took A's temperature and it was normal. I was surprised about this because usually if he has a virus he has a temperature of more than 100? and it is very difficult to bring it down."
"We [the two experts] both agree that if you take a careful history and that is the response he got, then his actions were reasonable" [my emphasis].
In other words, vomiting phlegm was diagnostic of a viral infection if it really was phlegm.
Lord Justice Wilson:
"We agree further enquiry would be necessary to arrive at [the defendant's] course of action. This may or may not include specific enquiry regarding vomiting."
"If [the mother] is wrong and no vomiting was reported to [the defendant], should he have specifically enquired as to whether the claimant had been vomiting ?"
The premise behind that second question was the converse of the premise behind the first question posed to the experts, namely "if the court accepts the claimant's case that [the mother] told [the defendant] that the claimant had been vomiting ". The claimant's case, as set out in the particulars of claim, was that the mother told the defendant that he had been "vomiting phlegm". In the event the judge's finding was that she told the defendant that he had been "throwing up a lot of phlegm". The crucial points are however that the references to "vomiting" in both questions to the experts are references to vomiting (or throwing up) phlegm; and that, whereas in this respect the judge accepted the claimant's case (with which at trial the defendant in effect agreed), the premise behind the second question is that, contrary to the claimant's case, the mother never told the doctor that he had vomited (or thrown up) phlegm. Thus in the event the second question never arose; and the answer to it, far from being "important" and indeed a valid foundation for the decision, proved to be irrelevant.
"The problem is that, if she used the word throwing up or vomiting "phlegm", then that, in my mind, would then throw you you go down a path."
Earlier he had explained that, whereas an adult will usually cough phlegm up out of the respiratory tract, a child will often swallow it and then indeed vomit it up out of the stomach.
"I told [the defendant] that he had the same thing a couple of weeks before but had seemed to get over it then."
Speaking for myself, I find it hard to conceive a comment more likely to lull the defendant into concluding that the problem did not relate to the claimant's shunt.
"I am sure from my statement that I said that he was coughing up phlegm and no temperature, but it may well have been elevated during the day. But at that time no temperature."
Indeed in the Particulars of Claim the claimant had expressly averred that his mother had told the defendant that "the claimant's temperature was normal at some times and elevated at others"; and in the Defence the defendant had expressly admitted that she had said that the claimant was feverish. The defendant's oral evidence was indeed that the mother had told him that the claimant had had a temperature during the day. And then, no doubt more significantly, there was the note of "fever" made by him at the time, which in cross-examination Mr McDermott never even suggested to him represented an inaccurate record of the conversation.
Lord Justice Ward:
The relevant questions in this case
(i) Precisely what was said during the telephone conversation on 27 January? This was a pure question of fact which the judge had to resolve, difficult though it was given the passage of years and the dimming of memory but in the questions that follow the judge had to apply the Bolam test and ask himself whether the defendant was acting in accordance with a practice accepted as proper by a responsible body of general medical practitioners. Thus:(ii) Was the information received by the defendant adequate to act upon it or should he have supplemented the information he had received by making further enquiry?
(iii) If the information was adequate, was the diagnosis of minor viral infection negligent?
(iv) If the history received was inadequate, (a) would a reasonably competent medical practitioner have made further enquiries asking by open questions only? If so, (b) precisely what further questions should he have asked?
(v) If not, was the judge entitled to apply the Bolitho exception and find that the opinion of the experts was without logical basis, thus allowing him to use his common sense to decide what questions should have been asked?
(vi) What history would have been obtained in the light of proper questioning, the answer to which depends on whether the questioning should have followed the experts' view of its permissible scope or his own?
(vii) What diagnosis would then have been made and in particular would the claimant have been admitted to hospital that evening?
The judge's approach
"I can find no good reason, after having heard his [the defendant's] evidence, why he did not ask more specific questions."
Since he did not advert to Bolitho and to the experts' evidence it seems to me this finding standing alone is incomplete.
"The case, therefore, comes down to this. Was the defendant negligent in his enquiries during the telephone conversation in not eliciting or seeking specifically to elicit the history of vomiting, drowsiness and restlessness."
So, whether or not this was the view of the experts, the judge clearly felt that further enquiry was necessary.
" it was not unreasonable not to go down the path of asking specific questions about the major symptoms of potential shunt blockages."
The judge appears to be referring to the evidence given at page 17 of the transcript (page 203 in the bundle before us). Whilst the judge may not have been impressed by that evidence, it was, I think, common ground between the experts and it was certainly the defendant's own view. I suspect the judge would have been bound to answer my question (iv)(a) by saying that application of the Bolam test required him to accept that closed questions did not have to be asked. As for (iv)(b), he does not precisely formulate the kind of questions that a reasonably competent general practitioner would have asked. In paragraph 41 he poses specific questions he would think it sensible to ask like "Has he vomited? Is he drowsy? Has he got a headache?" These are, however, the kind of closed questions he was being told need not be asked.
"In those circumstances, it does seem to me that an ordinarily careful doctor should have taken steps to clarify or elicit whether there had been true vomiting and whether there were other significant symptoms, such as drowsiness or headache. Only by asking those questions, which are not complicated, could the doctor have satisfied himself that this was probably not shunt related. This, it seems to me, was or ought to have been the "further enquiry" to arrive at Doctor Burne's course of action referred to in the G.P. experts' joint report. I do not see how this could reasonably exclude specific enquiry, for example, about vomiting. If it was appropriate to discover, which it clearly was, whether there had been vomiting or indeed headaches or drowsiness, the only reliable way to find out was by asking explicitly and clarifying any unclear answer."
"As I have said, answers to specific questions like "Has he vomited? Is he drowsy? Has he a headache?" would swiftly have equipped the doctor with material to know whether this vulnerable child was or might have been showing the symptoms of shunt blockage and not merely a cold. It would have been common sense to ask them. Had Doctor Burne asked, he would, as I have found, been likely to have discovered a history of vomiting and drowsiness although he would not have been told of the headache. Had he discovered the vomiting and drowsiness he would or should have seen the claimant and had he done that he would most probably have referred him to a hospital forthwith. "
The Bolitho question (v)
"I frankly do not understand why if there are four, as it were, leading indicative symptoms, if that is not a tautology, of potential blockage, you do not then, if you have potential blockage in your mind, try and exclude that by asking specific questions, viz: has he vomited, is he drowsy, this sort of thing."
Now I confess I have a great deal of sympathy with the judge in that view. Like Rix L.J. I at first felt that "the judge's judgment and reasoning reads persuasively." I am not, however, convinced that we are entitled to rely on what seems common sense to judges and consequently dismiss the views of the experts as illogical. At least we should not do so unless the Bolitho point has been properly taken in the court below and the experts given an opportunity to explain and justify their practice. There is, I am afraid, a force in Mr Grace's submissions that it would be unfair to allow the case to be disposed of in that way. For the reasons given in the preceding paragraph I do not know what answers further questioning might have elicited and how that would have affected a proper diagnosis.
Conclusion