England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (OWEN J)
REF: HQ10X01718

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/05/2013

Lord Justice Maurice Kay :

1. Kieran Doy was born prematurely on 25 January 2002. He remained in hospital until 18 February. On 21 March he was admitted to the James Paget Hospital in Lowestoft where he was found to have acute bacterial meningitis due to Group B streptococcus, and was treated with antibiotics. The meningitis has left Kieran with severe problems. His present condition was described by Dr Charles Essex, a consultant neurodevelopmental paediatrician, in these terms:

"Kieran has moderate mental handicap [also known as learning difficulties]. He has difficulties across all areas of development ['global' development difficulties]. He has no speech and is doubly incontinent. He has significant gross motor difficulties affecting the right side of his body [a right hemiplegic cerebral palsy]."

2. The present proceedings are in the form of a claim for clinical negligence against Dr Kathleen Gunn, a general practitioner who saw Kieran on the evening of 19 March. She diagnosed colic and did not refer him to hospital. In essence, the allegation against Dr Gunn is that she ought to have referred him and that, if she had done so, antibiotics would have been prescribed immediately which would have had the effect of preventing the development of meningitis. It seems that he did not have GBS meningitis on the evening of 19 March but he did have GBS bacteraemia which commonly precedes the development of meningitis.
3. The trial of the action took place before Mr Justice Owen (the Judge), who handed down his judgment on 15 December 2011. He held that, if Kieran had been referred to hospital on 19 March, he would have been prescribed antibiotics and this would have prevented the development of bacterial meningitis. However, the claim failed because he went on to hold that Dr Gunn had not been negligent when she decided against a hospital referral. It is the judge's decision on the issue of negligence which forms the subject matter of this appeal.

The undisputed facts

4. On 16 March Kieran was seen by Dr Lloyd, a partner at the practice at which he was registered. His note records that Kieran's mother, Joanne Doy, thought that Kieran had been wheezy and short of breath for two days and also records "fractious crying". He carried out an examination and advised Ms Doy that he felt that colic was the most likely diagnosis and gave her a prescription for Infacol, advising her to bring Kieran back for GP review if he did not improve.
5. At some time in the afternoon of 19 March, Kieran was seen by both the Health Visitor and by another partner of the practice Dr Aylward, for his standard six week check at the baby clinic. Ms Doy says that she then took Kieran to the evening clinic at which he was seen again by Dr Lloyd but there is an issue as to that. Nevertheless at 20.06 that evening, Ms Doy telephoned Suffolk Doctors on Call, which provided an out of hours service for the practice at which Kieran and his mother were registered. The receptionist noted the history given to her as "persistent, constant crying for three hours – very out of character, won't take milk", and referred the call to Dr Gunn who was on duty that evening. Dr Gunn telephoned Ms Doy at 20.10. Her note of the telephone call reads:

"T unwell few days Seen yesterday

& today by own GP Dx colic. Now crying constantly (since saw Dr ?) ? base."

The reference to "base" is to Lowestoft Hospital where Dr Gunn then saw Kieran at about 9 o'clock. Her note of that consultation, which is a continuation of the previous note, reads:

"B 21.00 hours

Crying ++ Afebrile Alert

Abdo soft Ears vv

No rash

Diagnosis: colic."

Also present at that consultation was Kieran's father, Seymour Maurice-Watts. In circumstances to which I shall later refer, Ms Doy and Mr Maurice-Watts took Kieran to James Paget Hospital on 21 March.

6. The judge crystallized the issue of breach of duty or negligence at paragraph 12 of his judgment in these terms:

"… there is agreement between the GP experts, that if the claimant's condition when seen by the defendant was as described by Ms Doy, and if she gave a history to the defendant in the terms that she said that she did, then the defendant ought to have referred Kieran to hospital that evening. Conversely they agree that if the defendant's evidence as to the consultation is accepted, then it was not mandatory for Kieran then to have been referred to hospital. Accordingly the issue of breach of duty resolves to the question of whether, on the balance of probabilities, the account given by Ms Doy is to be relied upon."

The judge then found that, in important respects, he could not accept Ms Doy's account.

The appeal to this Court

7. Although there are eight pleaded grounds of appeal, the appeal is essentially an attack on the Judge's findings of fact and his approach to the assessment of the evidence. At its heart is a complaint about the rejection of important features of Ms Doy's evidence.

The evidence of Joanne Doy

8. In view of its centrality, it is appropriate to set out the Judge's exposition of Ms Doy's account:

"32. The salient features of Ms Doy's account are as follows. Prior to 16 March, KD was quite a contented baby, but on the 16^th he was making a wheezy sound as he breathed, was feeding less well than he had been and was a lot more sleepy than usual. She was not overly concerned about him, but took him to the surgery where he was seen by Dr Lloyd who "looked at his chest, listened to him and was generally dismissive." Dr Lloyd told her that he had colic. In her oral evidence she corrected her witness statement saying that she had found him sympathetic on the 16^th, and that it was on the 19^th that she found him dismissive.

33. KD's condition deteriorated over the 17^th and 18^th March. He became harder and harder to feed, was sleeping a lot more than usual, and was crying for periods of one to two hours on and off through the day on the 18^th. On 19^th he was not his normal self, feeding even less well and sleeping much of the time. When awake he was crying hard or screaming, and drawing up his legs for periods of one to two hours and refusing to feed or be comforted.

34. When she took KD for his six week examination, she told Dr Aylward all about the illness, but he did not pay any attention to what she said. She saw the health visitor after seeing Dr Aylward, but did not say anything much to her because she was feeling very tired, and because nobody was paying attention to her or taking her concerns seriously. She was made to feel that she was an inconvenience.

35. She went back to the surgery later on 19^th, having made an emergency appointment, and saw Dr Lloyd. She could tell that he was not happy to see her again. He said that it was colic, and was really patronising, saying that all babies have colic and that medication could be bought from the chemist. She felt that he was not taking her concerns seriously.

36. When the claimant's father came home at about 8 p.m. he was also concerned. KD had been crying non-stop for three hours since they had seen Dr Lloyd. He was crying when half-asleep, and she could not comfort or feed him. She therefore called the Doctor on Call service. The person that she spoke to said that the doctor would not come out, but that if she was concerned, she should make my own way to Lowestoft Hospital. She and her partner then walked the 2½ miles to the hospital in the rain.

37. When seen by the defendant, she told her that KD had been unwell for a number of days and was deteriorating. He had been crying constantly, and had not taken any milk since the appointment with Dr Lloyd. He was irritable when handled, and when she tried to comfort him he would scream and cry louder. When he wasn't screaming, he was lying still in his crib.

38. She did not recall the defendant examining KD's abdomen. It was a cold wet evening, so she had wrapped him up in an 'all-in-one' suit, which was not removed during the consultation. She could not recall Dr Gunn looking in his ears. They were only in the consultation room for about five minutes. Dr Gunn told her it was colic and advised her as to medication that she could buy over the counter.

39. In cross-examination she said that the defendant was dismissive, and had not examined KD. She had given her the history, explaining that KD not feeding, and that when crying he was "really really drowsy".

40. During the next two days KD was hardly feeding at all. On the 21^st he was no better, being sleepier and more difficult to wake for feeds. It was on the evening of the 21^st that she decided to take him to the James Paget Hospital.

41. M/s Doy's evidence was supported by that of her mother, Elizabeth Doy, and KD's father, Seymour Maurice-Watts. Mrs Doy senior gave evidence that her daughter had come to her house with KD on the 19^th after the six week check up, and was upset because she felt that the doctors were not taking KD or her concerns about him seriously. She advised Ms Doy to call the surgery and make another appointment. She thinks that her daughter took KD to the surgery again during the evening clinic on the 19^th.

42. Mr Maurice-Watts, then Ms Doy's partner, went to Lowestoft Hospital with her on the evening of the 19^th. He said that he was holding KD during the consultation, that they were only with the defendant for two to three minutes and that Dr Gunn did not examine the claimant."

It is not suggested that this exposition is anything other than a faithful summary of Ms Doy's evidence.

9. As I have said (at paragraph 8), if the Judge had accepted that account in relation to disputed matters, he would have given judgment in favour of Kieran. It is therefore necessary to look at the way in which the Judge came to reject it.

The contrary evidence

10. The Judge proceeded to test the reliability of Ms Doy's account by assessing it against the evidence of other witnesses and material in relation to the period leading up to the consultation with Dr Gunn.

(1) Consultations with Dr Lloyd on 16 and 19 March

11. Dr Lloyd gave evidence about the consultation of 16 March mainly by reference to his contemporaneous note and computer records. The Judge found no significant discrepancy between the accounts of Dr Lloyd and Ms Doy in relation to this occasion.
12. Where Dr Lloyd departed from Ms Doy was in relation to the evening of 19 March. The Judge said:

"44. But there is no record of his having seen Ms Doy and KD again during the evening clinic on 19^th March; and Dr Lloyd is confident that he did not do so for a number of reasons. First he says that if he saw a patient, it was his invariable practice to make a note in the medical records. That evidence is reinforced by the comprehensive and detailed note that he made of the consultation on 16 March. Secondly there is no record of an appointment in the practice records. If, as Ms Doy claims, she rang the surgery and made an emergency appointment, he would expect it to have been entered in the appointments log. Thirdly he has reconstructed a chronology of the evening surgery from the records; and there is no gap within which he could have seen KD. "

45. Mr Stevenson sought to rely upon the note made by the defendant of her telephone conversation with the Ms Doy at 20.10 on 19 March that KD had been seen 'to-day by own GP' (see paragraph 4 above) as support for Ms Doy's evidence that she saw Dr Lloyd at the evening clinic on 19 March. But the note is as consistent with having been seen by Dr Aylward that afternoon, as with having been seen by Dr Lloyd, and does not therefore assist. I find Dr Lloyd's evidence, supported as it is by the contemporary records, persuasive. In my judgment it is highly improbable that Dr Lloyd saw KD at the evening clinic on 19 March, a conclusion that inevitably raises a serious question as to Ms Doy's reliability as a witness."

(2) The six week check-up

13. Dr Aylward made a computer record of the routine check-up which was carried out on the afternoon of 19 March, a matter of hours before the consultation with Dr Gunn. The computer record is in this form:

"19/03/2002 Surgery Consultation Dr M Aylward

Dietary history Satisfactory

Genitalia Satisfactory

Motor tone Muscle tone: Satisfactory Head control: Satisfactory

Hernia Left: Satisfactory Right: Satisfactory Umbilical: continue observation

Exam of cardiovascular system Left femora: Satisfactory Right femoral: Satisfactory

Heart sounds: Satisfactory

Hips Left: Satisfactory Right: Satisfactory

Vision Fixation: Satisfactory follows: Satisfactory Red reflex left: Satisfactory right: Satisfactory

Child 6 week exam. Seen by clinician Dr M Aylward"

The Judge's findings about this occasion were as follows:

"47. Dr Aylward explained in his evidence that it would have been his usual practice to introduce himself to Ms Doy, and to ask how KD was and whether she had any particular concerns about him. He further says that during the course of such a check up, he takes care to observe how the child is in himself. From his record, KD was entirely normal. As to the 'small umbilical hernia', Dr Aylward explained that it is not in itself uncommon, and would not give rise to undue concern.

48. In my judgment it is highly probable that had KD then been in the condition that Ms Doy describes … he would have observed that that was the case and would have made a note of such observations in the record of the six week check up. As the GP experts said in their joint report:

'We are agreed that had KD been unwell at the time of assessment by a health visitor and a GP for a six week check we would have expected those two health professionals to have detected the illness and to have recorded features in the records'."

He described this as further undermining Ms Doy's evidence.

(3) The consultation with Dr Gunn

14. It is common ground that Dr Gunn's note of the consultation is inadequate. Moreover, she has no recollection of the consultation. This is hardly surprising because she heard no more about it for almost seven years when she received a letter before action in February 2009. Her evidence was therefore a reconstruction based on her note and her usual practice. The Judge summarised it in the following passages:

"52. She says that she would definitely have wanted to examine the claimant, and would have asked his mother to undress him to his nappy. As to the entry "Afebrile" she says that she would have elicited that KD did not have a temperature by feeling his forehead rather than by taking his temperature with a thermometer. If she had used a thermometer, she would have recorded the precise temperature. She also noted that he was 'Alert', meaning that she considered that he was responding fairly normally to her and was awake. She adds that during the course of her consultation she would have been keen to assess his level of reactiveness by visualising his eye movements and his reactions to stimuli around him. She says that if there was any evidence of drowsiness she would have made a note to that effect.

53. As to the entry 'Abdo soft', she says that she would have examined KD's abdomen, not least because there had been an earlier diagnosis of colic, which could have been an early sign of another abdominal condition. She adds that whilst examining the abdomen it may have been the case that she also checked for skin turgor by gently pinching the abdomen, a test of dehydration by assessing the elasticity of the skin. She cannot be sure that she did so, but that that would have been part of her usual routine. She also says that she would have felt for any masses in the abdomen through gentle palpation and "most likely listened to bowel sounds with my stethoscope". Her note conveys to her that she found no abnormalities within the abdomen.

54. She is certain that she would have taken the opportunity to listen to his chest to elicit any signs of a chest infection. She says that she can see from her note that she checked his ears in order to detect whether there was any sign of an ear infection, and that both were normal, hence the ticks beside the word 'ears' in her note. She would have used an otoscope to examine the ears.

55. She also noted 'No rash' meaning that she would have looked for any signs of rash on his body which could be suggestive of infection. She could only have done so if his clothes had been at least partially removed.

56. Her conclusion, based on her note, is that as he had no rash, no temperature and was alert, she could not have suspected that he was developing meningitis or any other significant infection.

57. She further asserts that had she been advised that KD had not been feeding for three days, she would have made a note to that effect, similarly if it had been reported to her that he was wheezy."

15. Notwithstanding his criticism of the note, the Judge accepted Dr Gunn's account. His main reasons for doing so were: (1) unless the note was a fabrication (and he was satisfied that it was not), Dr Gunn could not have made findings of afebrility, abdominal softness, absence of a rash and ear infection without a tactile examination, which Ms Doy and Mr Maurice-Watts claimed had not occurred; (2) the recording of "Alert" is inconsistent with Kieran having been drowsy at that time; (3) the evidence of bacteriological experts was that, whilst Kieran was probably bacteraemic at the time of the consultation, they could not say that it would have resulted in signs or symptoms indicative of established infection by then.

(4) Other aspects of the contemporaneous medical records

16. The letter before action and the Particulars of Claim both alleged drowsiness from 16 March onwards, including a reference to Kieran having been "unusually drowsy" on the occasion of the consultation with Dr Lloyd on 16 March. It was pleaded that, at the time of the consultation with Dr Gunn, she failed to heed his "drowsiness even while awake". On the other hand, there is no reference to drowsiness in Dr Lloyd's notes, Dr Aylward's notes or even in the detailed history taken on admission to the paediatric unit on 21 March (save for "today – lethargic/sleepy": my emphasis). The judge attached significance to this as pointing to "another aspect of Ms Doy's evidence that cannot be relied on" (paragraph 69). He also considered her evidence about Kieran's feeding pattern to be unreliable because if "he had fed as little as was claimed over a period of 5 days he would have lost a lot of weight, and would probably not have been passing urine". He concluded that the evidence of his condition as recorded on admission "serves further to undermine Ms Doy's evidence" (paragraph 66).

The Judge's overall assessment of the disputed evidence

17. The Judge drew together his conclusions in this passage (at paragraph 70):

"I have no doubt [Ms Doy] was doing her best to remember what happened. But the contemporary records provide a reliable bench mark against which to test her recollection and that of KD's father; and it is by reference to those records that I am driven to the conclusion that I cannot be satisfied as to the reliability of their account of his condition during the relevant period and in particular at the critical point at which [Dr Gunn] saw her son. Despite the shortcomings of the note of the consultation …, I am satisfied that the entries that it contains can be relied upon and I therefore accept [Dr Gunn's] reconstruction of the consultation based on the note."

Since the experts on general practice were agreed that, if Dr Gunn's account was accurate and Ms Doy's was not, breach of duty was thereby ruled out, that was the end of the matter.

Discussion

18. As the Judge was having to find facts in relation to events which occurred over a decade before the hearing and in the context of a claim which was only brought to the attention of Dr Gunn seven years after those events, his task was bound to be a difficult one. The first complaint advanced by Mr John Stevenson on behalf of the appellant criticises the Judge's methodological approach whereby he highlighted the antithesis expounded in the agreed expert evidence which produced the framework: either Ms Doy is providing an accurate history (in which case breach of duty is established) or Dr Gunn is (in which case it is not). It is submitted that this approach was too simplistic and diverted the Judge from making his own findings about Kieran's actual condition at the time of the crucial consultation or what was actually said and not said by the parents and by Dr Gunn. I reject this submission. Plainly it was necessary for the Judge to come to a conclusion, on a balance of probabilities, about Ms Doy's account. In view of the passage of time and in circumstances wherein Dr Gunn had no actual recollection but only her substandard note of the consultation, it was entirely appropriate for the Judge to seek assistance from the contemporaneous documents relating to the time before, during and immediately after the consultation. This enabled him to make findings about the reliability of Ms Doy's account. It is the methodology which any judge would have adopted in the circumstances. I do not accept that the Judge failed to make relevant and necessary findings. For the reasons he gave, he declined to make findings in favour of Ms Doy which were essential to the success of the claim. He accepted the evidence of Dr Gunn because he considered that her reconstruction was reliable, even though it was based in part on her inadequate note. It was also based on her evidence about her usual practice.
19. If the Judge's methodology was permissible, the next question is whether he erred in his application of it. Mr Stevenson makes a number of points in support of his overarching submission that the overall factual matrix was strongly suggestive of significant symptomology which was consistent with the appellant's case and inconsistent with Dr Gunn's. I shall address the main matters upon which he seeks to rely.

(1) Walking to the hospital

20. The suggestion is that going to the hospital on foot – a journey of more than two miles in inclement weather - is strongly indicative of anxiety about worsening symptoms. I do not consider that the Judge was bound to find it more probative than he in fact did. The evidence was two-edged. If the symptoms were so alarming, why did Ms Doy not telephone her parents for a lift as, according to Mr Maurice-Watts, she was accustomed to doing. Mr Maurice-Watts could not remember if it was raining. He added: "It was probably easier for us just to get him ready and walk him up there".

(2) Ms Doy's conversation with her mother

21. The submission here is that the Judge ought to have been less ready to reject Ms Doy's evidence about seeing Dr Lloyd between the six-week check-up and the consultation with Dr Gunn on 19 March because of the evidence of Ms Doy's mother that, on returning from the six-month check-up in an anxious state, Ms Doy had been advised by her mother to call the surgery and make another appointment. The mother's written statement continues: "… although I cannot be 100% sure because of how long ago this happened, I think she took Kieran to the surgery again during evening clinic on 19 March". On behalf of Dr Gunn, Lord Faulks QC justifiably describes this evidence as "rather slight". In my judgment, it did not require the Judge to take a different view of Dr Lloyd's evidence and documents.

(3) Drowsiness

22. This seems to me to be an appellate non-issue. Although Ms Doy maintained that Kieran was manifesting drowsiness when seen by Dr Lloyd on 16 March, at the time of the six-week check-up in the afternoon of 19 March and later that day in the presence of Dr Gunn, there is no support for this in any of the contemporaneous documents dealing with 16 and 19 May. Indeed, it is contradicted by Dr Gunn's note of "Alert" and generally inconsistent with Dr Aylward's record. I consider that the Judge was entitled to attach the significance that he did to this discrepancy. Mr Stevenson then refers to his success in extracting from Dr Young, the expert called on behalf of Dr Gunn, a concession that a referral to hospital can be mandated in the absence of drowsiness. However, Dr Young's answers were based on the hypothesis of deterioration over several days, a feeding problem over several days and crying over several days. The claimant's alternative case – no obvious drowsiness – was therefore dependent on other facts which received no support or were contradicted by the records of 16-19 March. I find no error in the Judge's approach to these matters.

(4) Feeding / hydration / weight

23. I have referred (paragraph 16, above) to the Judge's point about feeding, hydration and weight. It is true that the appellant's paediatric expert, Dr Pearce, in the course of his evidence, raised as a possible explanation a condition known as SIADH (syndrome of inappropriate anti-diuretic hormone hypersecretion) which involves the excessive release of the hormone from the posterior pituitary gland. The Judge accepted that it can be found in patients with infections such as meningitis. However, at its highest, Dr Pearce's evidence was that Kieran's hydration "could at least partially be explained by SIADH". Even if the Judge was marginally in error in a reference to the hospital records on this point, that is not sufficient to undermine his finding that, on a balance of probabilities, if Kieran "had fed as little as was claimed over a period of five days he would have lost a lot of weight and would probably not have been passing urine" (paragraph 66). He cannot be criticised for failure to engage in further speculation about SIADH.

(5) Microbiological evidence

24. Having found that Dr Gunn's note tended to confirm that she had examined Kieran and found him as she described or reconstructed, the Judge added (at paragraph 61):

"In this context it is also relevant to note the evidence of the microbiologists. Whilst they agreed that KD was probably bacteraemic on 19 March, neither was able to say that that would have resulted in signs or symptoms that would have been indicative of established infection. Accordingly, their evidence did not provide any support for Ms Doy's evidence. On the contrary it added weight to the defendant's reconstruction of the consultation from her note."

25. The microbiological expert witnesses were Professor Susannah Eykyn and Professor Robert Masterton. Their principal role in the case was on the issue of causation upon which the claimant succeeded. Their agreed evidence was that Kieran did not have meningitis on the evening of 19 March but he was probably bacteraemic, as a precedent to the imminent meningitis. In her evidence Professor Eykyn accepted that, upon clinical examination, a bacteraemic child may or may not exhibit symptoms of obvious illness – "there are degrees of bacteraemia … I would find it difficult to accept that you could have a Group B bacteraemia with a child who was entirely well".
26. Mr Stevenson has two submissions on this point. The first is that the Judge was wrong to hold that the microbiological evidence "added weight" to Dr Gunn's reconstruction. I do not consider that to be a fair criticism. No one is saying that Kieran was "entirely well" when he was seen by Dr Gunn. It is accepted that bacteraemia was probably present and that he had symptoms perceived to be indicative of colic. The issue is whether his presentation was sufficiently serious to mandate an immediate referral. The evidence of the bacteriologists, who are not treating clinicians, was susceptible to an interpretation of consistency with Dr Gunn's account. Maybe "added weight" puts it a bit high, but, in context and properly understood, I do not consider that the Judge's rejection of Ms Doy's account is undermined by this small point. Mr Stevenson's second and associated submission is that the evidence of the two experts (who expressed agreement with each other) actually favoured the claimant's case on breach of duty. This seems to be based on the difficulty of envisaging a bacteraemic child who presents as "entirely well". I have already explained why, in the present circumstances, I do not consider that this assists the appellant.

Conclusion

27. On any view this is a sad case and it is impossible not to feel sympathy for Kieran and his parents. However, the Judge, who has unrivalled experience of and expertise in this sort of litigation, came to a clear conclusion about the consultation with Dr Gunn. I do not find any material error in his approach or findings. He had the advantage (which we do not) of seeing and hearing the controversial witnesses giving their evidence. As Lord Faulks said in the course of his oral submissions, this form of meningitis is very rare but Kieran's history of symptoms as presented to Dr Gunn is very common. I am satisfied that the Judge was right to acquit her of negligence and I would dismiss this appeal.

Lord Justice Moses:

28. I agree.

Sir Stanley Burnton:

29. I also agree.