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 JUSTCE
QUEEN'S BENCH DIVISION
His Honour Judge Richard Seymour Q.C.
(sitting as a High Court judge)
HQ05X01950

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/06/2007

Lord Justice Scott Baker:

1. On the afternoon of 15 May 2001 Mrs Holt slipped in the shower at her home. It subsequently became clear that she had suffered a spontaneous subarachnoid haemorrhage. She did not display the classical symptoms for this condition and was not admitted to hospital until 18 May when the condition was diagnosed following a CT scan. On 21 May she was operated upon but sadly sustained a small stroke during the course of the operation and this has left her substantially disabled.
2. Mrs Holt brought a claim for damages for negligence against her general practitioner Dr Edge and his practice. The preliminary issue as to liability and causation was heard by Judge Seymour Q.C., sitting as a judge of the Queen's Bench Division, over 5 days in July 2006. On 26 July 2006 he dismissed the claim against Dr Edge and his practice finding that they were not negligent and even if there had been negligence it made no difference to the eventual outcome of Mrs Holt's surgery.
3. Following an earlier oral hearing, the matter was listed before us as an application for permission to appeal with appeal to follow if permission granted. Mr Foskett Q.C., who has appeared before us for Mrs Holt, has very helpfully focused his arguments on two pairs of grounds of appeal. For my part I would grant him permission to appeal on each of the four grounds as he has raised realistic and persuasive arguments. The appeal has focused on much narrower grounds than those in issue before the judge. The essential basis of the appeal is that Mrs Holt should have been referred to hospital sooner, in which case the CT scan would have taken place sooner. She would have been diagnosed sooner and the operation would have taken place sooner. It is not, however, any longer suggested that the outcome would have been any different for Mrs Holt, merely that it would have occurred sooner and she would have been spared two or three days anxiety and very unpleasant symptoms. She would still have suffered the stroke and the same permanent disability. Mr Foskett accepts that, should Mrs Holt's appeal succeed, her damages will be modest, but argues that the consequences from the viewpoint of the costs of the action in this court and in the court below could be very significant.

The facts

4. In brief summary, the material facts are as follows. About 3pm on 15 May 2001, after Mr and Mrs Holt had returned from their work as part-time welfare assistants at a school, Mrs Holt went to have a shower. She called Mr Holt who went to see what had happened. Mrs Holt was sitting on the side of the bath and had apparently slipped.
5. At 3.52pm Mr Holt phoned the GP's practice and spoke to the receptionist, Miss Kennedy. The duty doctor, Dr Stagg, was in the surgery at the time. Miss Kennedy noted:

"Cramp in neck,

Cold/hard to breath and pins and needles in arm."

6. Miss Kennedy apparently spoke to Dr Stagg who said Mrs Holt should be referred to the Manchester Emergency Doctor's service ("MEDS") who conducted out of hours visits. Miss Kennedy recorded that she passed the message on to MEDS at 6.15pm.
7. It is common ground that Dr Stagg should have conducted what is called a telephone triage and that he was in breach of duty in not doing so. A triage is a process by which the doctor decides on the urgency of the case and the priority to allocate to it. Dr Stagg should have spoken to Mrs Holt on the telephone and taken the history from her. Had he done, so it is contended, he would have obtained more information from her and would have referred her to hospital, a CT scan would then have been carried out and the correct diagnosis made. That is the thrust of grounds 1 and 2 to which I shall come shortly.
8. Dr Iserloh was the doctor working for MEDS. He visited Mrs Holt about 9pm that evening. He examined her, conducting a full neurological examination. He did not suspect any intracranial pathology but noted that Mrs Holt's blood pressure was high and advised her to see her GP in the morning.
9. Mr Holt had a bad night and the next morning Mr Holt telephoned the surgery expressing his concern. He spoke to the practice nurse, Mrs Amsdon. Dr Edge visited towards the end of the morning, after 11.00. He agreed with Dr Iserloh's earlier diagnosis that Mrs Holt had suffered a musculo-skeletal neck injury.
10. Mrs Holt remained in bed for the rest of Wednesday 16 May and the whole of Thursday 17 May but did not get any better. On the morning of 18 May she attended the accident and emergency department of the Tameside Hospital where she was admitted just before 10am.
11. A CT scan was taken later in the day revealing a subarachnoid haemorrhage. Three days later on 21 May she was operated on, suffering a stroke in the course of the operation because, so the judge accepted, the aneurysm in her brain ruptured in the course of Mr Leggatt, the surgeon, dissecting it, this being due to temporary clipping of the aneurysm. There is no criticism of the manner in which the operation was conducted.
12. The judge made a number of primary findings, all of which are accepted. They are:

Mrs Holt had no significant recollection of events of 15 or 16 May.

He accepted in its entirety the evidence of Mrs Kennedy, Dr Iserloh and Dr Edge and did not accept the evidence of Mr Holt where it conflicted.

He rejected the evidence of the appellant's expert Mr Campbell that had she been operated on 18 or 19 May rather than 21 May Mrs Holt would have had a better outcome.

This was not a classically presenting subarachnoid haemorrhage where there is a headache likened to being hit with a sledge hammer. Some 15% of cases do not present like that.

Grounds 1 and 2

13. The first two grounds relate to the failure by Dr Stagg to conduct a telephone triage on the afternoon of 15 May. They are expressed in the following terms.

(1) In finding that the admitted breach of duty by the (respondent's) practice on 15 May 2001 of failing to ensure that the (appellant) was spoken to by a doctor in order to carry out a telephone triage at or shortly after 15.50 on that day made no difference to the course of events, the learned judge reached a conclusion that was not justified by the evidence.

(2) The evidence dictated a finding that had a competently administered telephone triage at or about the said time been carried out the (appellant) would have been referred to the A and E Department that afternoon for a prompt neurological assessment which, it was agreed, would have led to the diagnosis of her subarachnoid haemorrhage and earlier surgical intervention.

14. Mr Holt telephoned the practice answerphone at 7.12 on the evening of 15 May to find the number of MEDS. He then phoned MEDS at 7.14 and again at 8.43 indicating, as Mr Foskett submits, some concern on his part. Dr Iserloh arrived at 9pm some six hours after the incident. Mr Foskett's argument is that by not holding a telephone triage Dr Stagg deprived himself of the opportunity of discovering what the symptoms were and when they started. Whilst there is force in the point that a doctor's questions may very well elicit more information than those of his receptionist the difficulty is that Dr Iserloh did not make the diagnosis of subarachnoid haemorrhage when he saw Mrs Holt some hours later and the question arises why should Dr Stagg have elicited any different information from that obtained by Dr Iserloh. The fact that Dr Stagg was not in a position to carry out a physical examination over the telephone is not an answer. The judge's finding was that a telephone triage at about 4pm would not have elicited any reference to headaches and there was thus no evidence that any reasonably competent general medical practitioner would have considered that a neurological assessment was necessary. In my view the judge was entitled to reach that conclusion. Absent evidence of pounding headaches, there was no case for referring Mrs Holt immediately to hospital. This was not a case where there was the classic presentation of pounding headaches shortly after the incident. The key symptoms for immediate referral are pounding headaches and vomiting, neither of which was present either when the initial call was made to the surgery or when Dr Iserloh saw Mrs Holt later in the evening. Indeed the judge found no pounding headaches right up until Mrs Holt was admitted on 18 May and he did so because he rejected the evidence of Mr Holt.
15. If Dr Stagg, had as he should have done, conducted a telephone triage it would have made no difference; he would have learned nothing to cause him as a reasonably competent and careful medical practitioner to refer Mrs Holt immediately to hospital. Dr Iserloh would still have attended at 9pm and the subsequent outcome would have been no different. Accordingly, grounds 1 and 2 both in my judgment fail.

Grounds 3 and 4

16. Grounds 3 and 4 relate to Dr Edge's visit on 16 May 2001. They are in the following terms:

(3) In finding that there was no breach of duty by Dr Edge when he attended the (appellant) on 16 May 2001 by failing to ask her about her history of vomiting of which he was aware, the learned judge reached a conclusion that was not justified by the evidence.

(4) The evidence dictated a finding that he was in breach of duty as aforesaid but for which the (appellant) would have been referred to the A and E department for a neurological assessment that day which, it was agreed, would have led to the diagnosis of her subarachnoid haemorrhage and earlier surgical intervention.

17. The unchallenged evidence was that on the morning of 16 May Mr Holt telephoned the practice at 8.33 and 9.16am. He was obviously concerned. One of the calls was taken by Mrs Amsdon. She made a note,

"review MEDS ?whiplash yesterday

headache, vomiting, pain neck and back."

Dr Edge saw the note and undertook the visit. It is to be observed that Mrs Amsdon's note is the first record of "vomiting". Mr Foskett makes the obvious point that she must have been told about vomiting otherwise she would not have recorded it.

18. The question of vomiting was a relevant issue at the trial and it is submitted that Dr Edge should have asked Mrs Holt directly about the history of vomiting, especially in the light of Mrs Amsdon's note. The experts' joint statement recorded that if Dr Edge was told about repeated vomiting Mrs Holt should have been referred to hospital.
19. Dr Edge's evidence was that he could not clearly remember asking her about vomiting but he was quite clear he was not told at any stage about profuse or repeated vomiting. He had no recollection of seeing any bucket beside the bed or indeed any bucket at all and thought he would have noticed had one been there. Neither had Dr Iserloh noticed any bucket the previous evening.
20. The judge's findings, which are not entirely satisfactory, are at para 62 of his judgment. He began by saying that Dr Edge showed a concern for his patient and a meticulousness that was thoroughly admirable; he was cautious and careful in his evidence. Then he said Dr Edge frankly could not recall specifically whether he had asked Mrs Holt whether she had vomited. But the judge added that whether or not Dr Edge specifically asked her whether she had vomited they certainly discussed the issue of feeling sick. The judge went on:

"It arose in the context of Dr Edge asking Mrs Holt whether she had slept the previous night. When she said not, he inquired whether she had eaten any breakfast. When she said no to that also, Dr Edge asked her whether it was because of the pain or whether she felt sick or had a pain in her stomach. At that point, according to the recollection of Dr Edge, which I accept as accurate Mrs Holt said that she had felt sick, but did not say that she had vomited. She did, however, say that she felt that taking Co-codamol on an empty stomach was making her feel sick. With this discussion of feeling sick, it seems curious that neither Mrs Holt nor Mr Holt told Dr Edge that she had actually been sick, if that were actually the case. One would expect that someone being asked about feeling sick, and actually feeling sick, might be inclined to emphasise how one was feeling by saying, if it were correct, that he or she had actually been sick. However, I accept the evidence of Dr Edge that that was not said."

The judge went on to say he accepted the evidence of Dr Edge that he had read the notes of Mrs Amsdon before going to see Mrs Holt and thus was aware Mrs Holt had been complaining of vomiting. He also accepted Dr Edge's evidence that if he had been told Mrs Holt had vomited a reasonable amount with no change in medication that would have made him think about cerebral irritation and referring her to hospital.

21. He then summed up the case against Dr Edge as he saw it. On the assumption that Mr Holt did not in terms tell him his wife had a pounding headache and had been sick a number of times during the night what it came to was this: notwithstanding that he discussed sickness with Mrs Holt and she said she felt sick for a reason which she ascribed to taking Co-codamol, because he did not specifically recall asking the question "have you vomited?" it should be assumed that he did not ask that question and was negligent not to have done so. The judge said, "It is only necessary to formulate the question in that way to demonstrate how absurd it is."
22. The judge concluded that there was no proper ground for criticism of Dr Edge even if he did not ask a direct question of Mrs Holt as to whether she had vomited. Then he went on to say he made no finding about whether Mrs Holt had actually vomited on any particular of number of occasions during the night of 15/16 May, the only evidence coming from Mr Holt whose evidence he considered generally unreliable. He pointed out Mr Holt had not been specifically challenged as to the number of times Mrs Holt had been sick overnight.
23. I think the root cause of the difficulty that has arisen is due to the fact that the judge rejected the appellant's primary case that Mr Holt furnished the critical information about his wife's condition to Dr Edge, namely pounding headaches and persistent vomiting, which were the classic symptoms that would have required immediate referral to hospital. The judge was, of course, entitled not to accept the evidence of Mr Holt but it left him having to assess a different factual situation and required him carefully to focus on the inquiries Dr Edge should have made. It also elevated the importance of Mrs Amsdon having written down the word "vomiting."
24. I have considerable difficulty in accepting the conclusion that Dr Edge would not be open to criticism if he did not ask Mrs Holt about vomiting. It seems to me that he would or should have been put on notice of this by Mrs Amsdon's note which specifically records vomiting. Accordingly I think ground (3) is made out in the terms in which it is expressed.

That, however, only takes the appellant so far. The next question is of critical importance. What answer would Dr Edge have been given had he asked the question?

25. Post-operatively Mrs Holt lost her memory. There is however some material in the post admission notes that may throw some light on the matter. The following entries were drawn to our attention. First there is a reference in the Tameside A and E records to "vomiting + + +" in the nursing notes made soon after admission. This appears to relate to the evening of Dr Iserloh's visit. An entry on the following page of the A and E records, this time dated 2.20pm and being apparently an entry made by a medical practitioner, records "no vomiting". This entry appears to relate back to the time of the incident and there is no suggestion of any vomiting since. Nor is there any reference to a history of vomiting or indeed vomiting at all in the clinical notes at Tameside following admission although the nursing records for the evening of 18 May at that hospital refer to Mrs Holt having developed severe headaches with associated limb weakness and vomiting following the incident. She had been "unable to tolerate diet or fluids since". Finally, the neurosurgeon's note at Hope hospital, to which Mrs Holt was transferred, records at 5.20 on 20 May :

"Had fall in shower → associated with severe headache,

Vomiting + +,

Headache, }	Persistent
Neck stiffness}	Persistent"

26. Mr Foskett submits there is plainly evidence of vomiting in the relevant period albeit the judge declined to make a finding as to the number of times that Mrs Holt had vomited.
27. Mr Kieran Coonan Q.C., who appeared before us for the respondent, reminds us that Mrs Holt's primary case was that Mr Holt had told Dr Edge that his wife had vomited 5/6 times during the night. The judge rejected this and accepted Dr Edge's evidence. It was the secondary case (not specifically pleaded but no point is taken on that) that Dr Edge should have made the inquiry of Mrs Holt. The hospital records do not paint a consistent picture. None of the makers of the records was called. Mr Coonan submits it would be speculative to rely on those records to prove that, on balance of probabilities, if Dr Edge had been asked the question he would have been given the answer – persistent vomiting – that would have required immediate referral to hospital. Also, Dr Iserloh was not given a history of persistent vomiting.
28. The insurmountable hurdle with the way in which the case is now put against Dr Edge seems to me to be this. Assuming Dr Edge to have been at fault in not asking Mrs Holt about the vomiting, it is unclear what the answer would have been had he done so. There is no finding by the judge of persistent vomiting. Indeed he expressly declined to make any finding, pointing out the only evidence of the number of occasions she had vomited came from Mr Holt, whose evidence he rejected. Had the hospital notes presented a clear and consistent picture it might have been possible to infer the finding the judge should have made. But they do not. For my part, therefore, I am unable to conclude that if Dr Edge had asked Mrs Holt about vomiting she would have given him an answer that required her immediate referral to hospital.
29. In the circumstances, it is impossible to conclude that there was information in the hands of, or that was available to, Dr Edge that dictated immediate referral to hospital when he visited Mrs Holt on the morning of 16 May. Ground (4) is accordingly not made out. I would therefore dismiss the appeal.

Damages

30. I would, however, add a further word on the question of damages since we were addressed on this topic by both counsel, albeit there was no finding made by the judge below. Had negligence been established in failing to refer Mrs Holt to hospital either on the afternoon of 15 May or the morning of 16 May, what would have been the appropriate measure of damages for pain suffering and loss of amenity? We were not referred to any cases of a remotely similar nature. It is necessary to look at the consequences for Mrs Holt. She would have been admitted to hospital two or three days earlier than in the event was the case. She would thus have been spared two or three days of feeling extremely unwell and the anxiety that went with it of worrying what was wrong. On the other hand she would have undergone surgery two or three days sooner and sadly suffered the same stroke and consequent disability two or three days earlier. In short, over those 2 or 3 days her loss of amenity would have been different. Despite the sympathy one inevitably has for Mrs Holt in the tragedy she has suffered I cannot see that the damages for the very painful and distressing time she had over that short period could be assessed at more than £750.00.
31. It will be immediately obvious that such a modest award of damages would be completely disproportionate to the costs of this litigation. However, if my Lords agree with my conclusion as to the outcome of this appeal it is unnecessary to explore the effect of such a modest award of damages on any costs issues.
32. Wilson L.J: I agree.
33. Ward L.J: I also agree.