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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> FB v Rana & Anor [2015] EWHC 1536 (Admin) (02 June 2015)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/1536.html
Cite as: [2015] EWHC 1536 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| FB (suing my her Mother and Litigation Friend WAC) |
Claimant |
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| - and - |
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DR SOHAIL RANA PRINCESS ALEXANDRA HOSPITAL NHS TRUST |
Defendant |
____________________
Mr Martin Porter QC (instructed by Gordons Partnership LLP) for Dr Rana
Mr John Whitting QC (instructed by Kennedys Law LLP) for the Second Defendant
Hearing dates: 11th 15th and 18th May 2015
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Crown Copyright ©
- This is a claim for damages for clinical negligence arising out of events which occurred in late September 2003. FB, who was born on 14th August 2002, was just over 13 months old at the material time. Dr Sohail Rana, the First Defendant, was working for an out-of-hours GP cover service, and saw FB at 21:40 on Sunday 28th September. The essence of the case against him is that he failed to take a proper history, to carry out a proper examination of FB, and to heed what he was being told about FB's condition by WAC. Had these omissions not occurred, it is FB's case that she should have been referred to hospital at a stage when the administration of antibiotics would have been effective; but in the events which happened, she was not. Shortly before 04:30 on Monday 29th September WAC called the out-of-hours service which in turn telephoned emergency services, and an ambulance arrived shortly thereafter. FB was taken to the Princess Alexandra Hospital in Harlow and arrived there at 04:45. In due course she was seen by an A&E SHO, Dr Rushd. The essence of the case against the Second Defendant is that Dr Rushd failed to take an adequate history - and in the result was left unaware of a number of matters which, if known, would have led to a different course of action and also failed to carry out an adequate examination. Rather than being sent home, it is FB's case that she ought to have been referred to the paediatric team. At that stage too, the administration of antibiotics would have been effective.
- Later that same day, FB returned to the Princess Alexandra Hospital, and after a period of delay which the experts agree was not causative, intravenous antibiotics were administered. Unfortunately, FB developed pneumococcal meningitis combined with other features, and she sustained irreversible brain damage. FB now has bilateral and profound hearing loss, and learning difficulties. It is her case that these consequences would have been avoided but for the clinical negligence of Dr Rana and/or the Second Defendant.
- Pursuant to the Order of Master Cook dated 20th February 2014, this trial is confined to the issue of liability. The precise meaning of paragraph 5 of Master Cook's Order was debated at the start of the hearing, but an agreed position has been reached whereby I am required to determine the issues of breach of duty as against both Defendants, and whether (if established) such breach or breaches were causative of any material loss and damage.
- Before examining the witness evidence, both lay and expert, I should set out a narrative of events in chronological order. At this stage, I will be relying primarily on contemporaneous documents, and focusing on what I consider to be the critical matters. FB does not accept that many of the records give an accurate picture of what actually occurred, but it is nonetheless helpful and convenient to set out in a relatively neutral manner, what at least appears to have happened, before addressing the facts in issue. It should be emphasised that I am not necessarily accepting that any particular contemporaneous note constitutes an accurate record of any underlying fact I will be making relevant findings as to those matters at a later stage.
- At the material time, in September 2003, FB was living with her mother and father at an address in Harlow. Before that month, FB had enjoyed good health and there is nothing remarkable in her GP records. At this stage, WAC was aged 19 and the father aged 20.
- From about 18th September 2003 FB was not quite herself. She appeared to be off her food and had a slightly raised temperature. Matters continued in this way until Saturday 27th September when WAC began to be more concerned. She had a high temperature, she was not eating properly, and she appeared to have a heat rash.
- Accordingly, at 13:15 on 27th September WAC contacted the local GP out-of-hours service. According to the note which was recorded on the computer system of the Practice, the history she gave to the triage nurse was of "temperature since last week every night/red rash/teething/temp 40 today/not eating well/given calpol. Sleepy. Refer Primary Care" (in this note, as in later notes, I have expanded to the extent required any terms which have been abbreviated). A transcript of the conversation is also available and confirms that the computer record is an accurate summary of the call.
- Following the triage there was a telephone consultation between WAC and Dr Aitchison (or Aitcheson) which took place at 13:40 on 27th September. This consultation has also been transcribed, and the salient parts of it read as follows:
- FB's symptoms did not improve and WAC made another call to the out-of-hours service. No record of that call is available, but at 16:20 FB was seen at Sawbridgeworth by Dr van Terheyden. The information he had, presumably from the triage nurse, was of "temperature for one week ?teething. Given calpol/medicine not working. c/o loss of appetite". WAC's evidence was that FB had perked up in the doctor's surgery. By 17:02 Dr van Terheyden concluded the consultation by recording that a mid-stream specimen of urine would be supplied to FB's GP's practice on Monday, from which it may be inferred that he suspected an infection in that region. Any note Dr van Terheyden took of this consultation is no longer available. FB and WAC then went home.
- FB's condition deteriorated at home, and at 22:29 on 27th September WAC telephoned the out-of-hours service again and spoke to Dr Danaswamy. A transcript of the call is available:
- WAC's evidence, which I will be coming to in due course, is that FB had a "terrible night" and vomited at least five times the vomit was a dark, bile-like colour. At approximately 05:00 on Sunday 28th September FB fell asleep and woke up at around midday. It was not altogether clear from WAC's evidence whether this was continuous or interrupted sleep, but nothing turns on that. At about midday FB's father was at home, and he remained with WAC and FB until he went to work on Monday morning. That Sunday afternoon, FB was not improving, and at 14:34 WAC telephoned the out-of-hours service and spoke to a triage nurse, Ms Caroline Joslin. It is clear from the computer record that the nurse went through the standard list of triage questions or algorithms for a toddler complaining of fever. WAC answered "no" to the series of questions designed to elicit breathing difficulties. Thereafter the notes read:
- The original plan was that a doctor would telephone WAC, and at 16:17 the decision was made to change this to a home visit. At 21:40 on Sunday 28th September Dr Rana attended at WAC's and FB's home. According to his computer record:
- Dr Rana also completed a manuscript report which is in broadly similar terms. The following relevant information appears:
- After 04:00 but before 04:24 on Monday 29th September WAC telephoned the out-of-hours service, and the triage nurse connected the call to Ambulance Control. No record of WAC's initial conversation with the triage nurse is available, but it seems clear from what the latter told Ambulance Control that FB was presenting with "temperature up to 40 she is rolling her eyes and her breathing is a little bit erratic". A transcript of WAC's conversation with Ambulance Control is available, and the relevant part of it reads:
- The ambulance arrived at 04:32. According to the manuscript notes completed by one of the paramedics:
- The ambulance arrived at the Princess Alexandra Hospital at 04:45, and within three minutes FB was being triaged. The presenting complaint was recorded as being "pyrexial unwell". FB's temperature was 36.0, her pulse was 151, and her respiratory rate 36. The "NT Discriminator" was "atypical behaviour" and the "NT Status Colour" was "green". According to the Manchester Triage scales, the former means "a child behaving in a way that is not usual in the given situation Such children are often referred to as fractious or 'out of sorts'." FB's presentation did not warrant either red or orange, and she was accorded a green status, rather than a blue, owing to her atypical behaviour. Such patients should be seen within 120 minutes. According to the nursing note timed at 04:50:
- By 05:30 FB was being seen by Dr Rushd. According to the relevant parts of the latter's handwritten notes:
- capillary refill time less than 2 seconds
- FB returned home with her parents, and she slept until about midday. On awakening, her condition continued to give cause for concern. That afternoon (the exact time is unclear, but it must have been after 15:00) she was taken by WAC and her grandmother to her regular GP's surgery and was seen by Dr Ashar, whose note reads:
- FB arrived at the Princess Alexandra hospital at 17:53 as a "GP referral, no letter". She was seen by the triage nurse, and the following record was made:
- There was some unfortunate delay before she was seen by a paediatrician, but the experts are agreed that by this stage it was too late to save FB from the consequences of her pneumococcal meningitis. Before 20:00, although the precise time is unclear, FB was seen by a paediatric SHO, Dr Shivamurthy. According to his note of clinical examination:
- Further investigations were performed, and much later that evening FB was placed on an intravenous line so that antibiotics could be administered. It is unnecessary for me to set out the subsequent course of treatment. The causation experts are agreed that on the balance of probabilities FB's illness started with a viral upper respiratory tract infection provoking pneumococcal bacteraemia in a setting of coincident pneumococcal URT colonisation and bacterial invasion of inflamed URT membranes. This developed into a high-level, symptomatic, bloodstream infection, leading to breach of the blood-brain barrier and meningitis.
- Mr Martin Porter QC for Dr Rana prepared a helpful table comparing WAC's evidence with the accounts given by various clinicians and paramedics. I gratefully borrow it for the purposes of this judgment, recognising that it does no more than provide a useful epitome of what was said, or recorded, at certain times, and in addition requires interpretation.
- The test remains that set out and explained by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583, allowances being made for his somewhat outmoded linguistic style, and the fact that he was summing up to a jury:
- Thus, Dr Rana is to be judged by the standards applicable to an ordinary GP practising in 2003. Dr Rushd is to be judged by the standards applicable to an A&E doctor practising in 2003, taking account of her seniority and qualifications. She was an SHO at the time and had recently completed a six-month rotation in paediatrics, en route to becoming a GP. However, this last aspect of Dr Rushd's training does not serve to magnify the applicable standard of care, because the standard required of a SHO at a hospital is that of a reasonably competent SHO, regardless of her actual experience (see Djemal v Bexley HA [1995] 6 Med LR 269). In any event, recourse to Dr Rushd's experience does not materially advance FB's case.
- A causation issue arises as regards Dr Rana but not the Second Defendant. This issue requires a hypothetical factual inquiry on certain premises, and that inquiry will be undertaken at the appropriate juncture below. It would be premature to set out what I understand to be the governing legal framework in advance of that factual inquiry being concluded.
- Here, the focus must be on Dr Rana's home visit which started at or shortly after 21:40 on Sunday 28th September and was concluded by 21:54. Adapting as appropriate the opening note of Ms Philippa Whipple QC for the Claimant, I consider that the key issues for me to resolve are the following:
- To my mind, these issues are to some extent inter-related. It is axiomatic that the burden of proof remains on FB throughout and that the ordinary probabilistic standard must apply. I agree with Counsel that the resolution of the breach of duty issues (items (i) to (iv) above) must depend, primarily if not wholly, on my assessment of all the lay evidence in the case, viewed in context and against the contemporaneous records. Causation involves a slightly different analysis in essence, an assessment of the lay and expert evidence taken together, applying the relevant legal test to that amalgam and my approach to that issue will be explained below.
- Here, the focus must be on Dr Rushd's consultation with FB and her parents, which had certainly concluded by 05:55 on Monday 29th September. The precise timings will be examined further below. In this regard I consider that the key issues for me to resolve are as follows:
- Again, as with my analysis of the issues relating to Dr Rana's management of FB, these issues inter-connect. I agree with Counsel that my final assessment of these matters must depend on my evaluation of the lay and expert evidence viewed in the round. Causation is not in dispute, in the sense that it is agreed between the experts that had it been incumbent (per Bolam) on Dr Rushd to refer FB to the paediatricians, then (a) FB would have been investigated, (b) those investigations would have revealed a significantly raised CRP, (c) FB would have been started on intravenous antibiotics before 09:00 on 29th September, and (d) all damage would have been avoided.
- The central, albeit not sole, factual issue for me to resolve is how FB presented to Dr Rana, and later to Dr Rushd, during the course of their consultations. In order to reach sound conclusions about that, it is axiomatic that I must consider all the available evidence, including the lay evidence adduced by FB, the evidence of Dr Rana and Dr Rushd (strictly speaking lay evidence too, although inevitably coloured by their professional experience and expertise), and the evidence from the experts in infectious diseases. I do not start from the position that the weight to be given to any particular category of evidence should be greater than another; ultimately, that must depend on my evaluation of its reliability and robustness when calibrated against all other evidence.
- For reasons of convenience and clarity, I propose to set out the core features of the lay evidence without at that stage making significant comments upon it, then to analyse the evidence from the medical causation experts (sc. the experts in infectious diseases) and resolve the relatively minor areas of difference between them, and finally to set out my findings of fact in the light of all the available material. Only after having done that will I turn to cover the remaining expert evidence in the case, because the advice they give the court on the breach of duty questions on which they are qualified to opine must depend, as they readily accept, on my factual findings.
- I heard from WAC, FB's father (whom I will refer to as "Paul") and FB's maternal grandmother, Michelle.
- In 2003 WAC worked as a part-time nursery nurse, and although only 19 at the time these events occurred had had some experience of children and their ailments, aside of course from bringing up FB for 13 months. FB had not been herself since the previous weekend, but her condition deteriorated rapidly over the weekend of 27th/28th September. According to paragraph 3 of WAC's second witness statement, FB was not eating solids since before she was examined by Dr van Terheyden that Saturday afternoon, and she was also refusing fluids although she was accepting tiny sips on a tea spoon.
- Before her first call to the out-of-hours service at 13:15 on the Saturday, WAC says that she performed a glass test and FB's rash did not fade this caused her concern. Under cross-examination, WAC initially agreed that this was not mentioned to the triage nurse or to Dr Aitcheson, but then she told me "I would have told somebody about the rash". It is clear from the transcript of the call timed at 13:15 that the rash was indeed mentioned, but only in the context of it being "a slight rash come up on her chest". I should add that the agreed expert position is that FB did not have symptoms of meningism at that stage.
- At paragraph 9 of her first witness statement, WAC said that she was asked by the doctor, who must in this context have been Dr Aitcheson, whether FB had a stiff neck. The transcript does not bear her out on that, and to be fair to her WAC then apologised to me for the error.
- WAC agreed that paragraphs 13 and 14 of her first statement contain an error, inasmuch as her claim that FB was vomiting "dark bile coloured sick" before her telephone consultation with Dr Danaswamy at 22:29 on 27th September is incorrect: FB did not in fact start vomiting until later that night. This error was corrected in WAC's second witness statement which was given after the transcript of the call had come to light. According to paragraph 2 of that statement, FB's vomiting must have begun at some point after the conversation with Dr Danaswamy.
- Paragraph 11 of Michelle's statement contains exactly the same error in relation to the timings. She told me that she was sure that there was a later call from WAC, before she went to bed at 01:00, when she learnt about the bile-coloured vomit.
- According to paragraph 13 of WAC's first witness statement:
- There are two references here to FB not keeping fluids down, but it is clear from WAC's evidence elsewhere that she was sipping juice or water from a spoon. Further, there is no evidence that FB was exhibiting signs of dehydration at any stage material to these proceedings, and so the inference must be that she was keeping sufficient quantities of fluids down. It is clear from the transcript that WAC did not mention any concerns about FB's fluid intake during the course of her telephone conversation with Dr Danaswamy.
- After speaking to Dr Danaswamy, WAC and FB had a terrible night, with FB vomiting at least five times. In her oral evidence, WAC said that the vomit was a "browny, black colour". She could not recall whether it changed colour, although she agreed that FB's vomiting stopped at around 05:00. FB did not wake up until around midday, at which time her father, Paul, was at home. He remained with the family until he went to work on the Monday morning.
- After waking up, FB was placed in her purple chair, which was described to me as being about 80 cms in height. The chair was placed on the linoleum floor in the living room, on Paul's account close to the sofa. Paragraph 19 of WAC's first witness statement states that FB "slept for most of the day and was very lethargic". She was not eating, or drinking properly.
- WAC told me about the call to the triage nurse timed at 14:34 on Sunday 28th September. According to Nurse Josling's notes, FB was "drinking juice". On one interpretation, this might suggest that FB was having no difficulty taking certain fluids (cf. milk, which WAC told me FB could not tolerate at all). However, I accept WAC's evidence that FB was only taking water and juice from a 5 ml spoon, and Paul's evidence was to similar effect. WAC also told me that she recalled the yellow vomit recorded in the triage notes, but there was bile-coloured vomit as well. My interpretation of this segment of evidence is that FB had produced some bile-coloured vomit over the course of the previous night, although the triage notes do not record that it was a "browny, black colour". There is no reason to doubt the accuracy of the triage notes that the last time FB vomited, which was at 05:00, it was yellow in colour.
- I move forward in time to Dr Rana's home visit which started at or very shortly after 21:40 on the Saturday evening. WAC's evidence was that FB was essentially in the same condition then as she had been in at 14:50 save that her temperature had been brought down with medication. The picture I have is of FB's temperature fluctuating over the course of the whole weekend, and of her condition improving somewhat during periods of apyrexia. According to WAC and Paul, FB was asleep in her purple chair when Dr Rana arrived. WAC clearly does not have a good recollection of Dr Rana, because he was described at paragraph 20 of her first witness statement as being "tall with dark hair". Nothing turns on this in terms of WAC's credibility because I would not expect her to have a good memory for the fine detail of events taking place so long ago, however traumatic they undoubtedly were (her first witness statement was signed more than seven years after these events). Yet it is a small point which, taken in combination with many others, goes to her reliability as a historian. I will be returning to this matter later when I come to set out my final assessments of the evidence.
- WAC told me that she did not remember Dr Rana asking any questions, but she gave him the history, including the "terrible night" and the "bile sick". Paragraphs 20 and 21 of her first witness statement are not quite so specific, and the latter paragraph uses the conditional tense. Under cross-examination WAC said that she told Dr Rana that she had been trying to get fluids down FB all day. The point was made by Mr Porter that this evidence is inconsistent with Nurse Josling's triage notes. Only to the extent that the inference to be drawn is that WAC was trying and failing to get FB to retain fluids, I would agree with Mr Porter, but the real point to be made here is that WAC cannot truly recall what she told Dr Rana. I have to come to appropriate conclusions about that from all the available evidence, including the evidence that WAC did not express concerns about FB's hydration levels when she spoke to Dr Danaswamy. In relation to Dr Rana's interaction with FB, paragraph 20 of WAC's first witness statement says:
- Under cross-examination by Mr Porter, WAC said this:
- WAC said that Dr Rana was not really concerned about FB's condition, and she thinks that he said that it was a viral infection. FB was pale and did not look well. She agreed that FB might have appeared to be comfortable, but only if she had been asleep. Dr Rana's advice was that if FB deteriorated, she should call again. WAC told me that he was not there very long, but she did not know how long. She agreed that although she was upset, she was not the sort of person who might say to a doctor that she was unhappy.
- Paul's account to me was along the lines that he could not recall what questions Dr Rana asked, but he did remember that questions were asked. If he remembered rightly, FB was asleep or her eyes were closed. Paul's overall description of FB that day was of her being "lifeless". Later, he said that he thought that FB was asleep throughout the examination and she did not wake up during it. According to paragraph 7 of his witness statement, "I don't remember him picking up and examining FB". In his evidence in chief, he said "I remember [Dr Rana] sitting on the sofa and leaning over towards FB". Under cross-examination, Paul said "I would have been very much aware her being picked up". Neither he nor WAC was satisfied about the duration or thoroughness of Dr Rana's examination of FB. Michelle told me that, following another telephone call she had with her daughter, WAC was unhappy with the GP and "her gut instinct was that it was more serious". Michelle's recollection was that the GP had advised WAC to keep sponging FB down.
- According to both her witness statements, at about 04:30 on Monday 29th September she noticed FB's body starting to go into convulsions. She was concerned that her temperature had spiked. In oral evidence, this was explained in the following way:
- Paul's account in cross-examination was as follows:
- Under cross-examination by Mr John Whitting QC for the Second Defendant, WAC stated that there was only one event of eyes rolling etc., and she could not recall any generalised shaking. Although nothing really turns on this, my interpretation of the evidence is that FB did not suffer a convulsion in the precise, technical sense of the term, but it is probable that her eyes did appear to roll, or lose control, for a period of time and in a manner which was extremely worrying. Accordingly, I have no doubt that this is what prompted the further call to the out-of-hours service and the arrival of the ambulance. WAC's evidence, which I accept, is that she told the paramedics that FB was very lethargic. On balance, and notwithstanding the dubiety I expressed as the evidence was being given, I do not believe that the ambulance crew witnessed any episode of eyes rolling, notwithstanding that the form states "o/e". In my view, they were reporting WAC's account. Again, however, nothing really turns on this.
- WAC could not remember whether the ambulance had its blue lights illuminated, but Paul did have such a recollection and I accept his evidence on this point. Although, as I will come to make clear, I have reservations about certain aspects of his evidence, I do not believe that he was making this up, and his account chimes with basic common sense.
- According to her first witness statement, when at hospital FB presented as follows:
- This account was tested in WAC's oral evidence. On my understanding of her evidence, in the A&E cubicle before Dr Rushd arrived FB was "quiet she seemed quite content to be cuddled and held". When Dr Rushd came in, which must have been by 05:30 at the latest, WAC said that FB was neither looking well nor was she alert and active. More specifically:
- WAC said that she gave Dr Rushd "every detail" of the history, including the vomiting. She could not recall specifically telling Dr Rushd that they had arrived by ambulance. She could not explain why there was no mention of the eyes rolling incident in Dr Rushd's notes. WAC did not believe that FB cried or struggled during the course of the examination. Although WAC's witness statement stated that she was extremely worried about FB's fluid intake, she agreed in cross-examination that she might not have communicated that concern explicitly (my interpretation of her answer) but would have said that FB was only sipping from a spoon. WAC said that she found it hard to believe that Dr Rushd was told that FB had passed urine three times that day (whatever precise period of time was being referred to), but agreed in cross-examination that she had not disputed this in her first witness statement and could not explain that omission. During the course of her cross-examination by Mr Whitting, WAC said that she completely disagreed with Dr Rushd's description of her child's condition.
- In her supplementary witness statement WAC strongly disputed Dr Rushd's assertion that the consultation had taken at least 25 minutes. She adhered to that position in her oral evidence, but accepted that the consultation probably lasted in the region of 15 minutes and that it did not appear to be rushed. Other aspects of the consultation were not disputed in WAC's supplementary witness statement, but in my view little turns on that.
- Paul's evidence was that FB "was the same and looked really ill. I thought we were losing her". Paul was convinced that the consultation could not have lasted 25 minutes. He said that as for Dr Rushd's note, it was "nothing further from the truth". However, he did accept that the bright lights of the hospital might have brought her round a bit.
- It is unnecessary for me to dwell on the oral evidence concerning subsequent events, if only because nothing turns on it. However, I should set out part of paragraph 16 of Michelle's witness statement because in my view it bears on her credibility:
- Another point which I pick up at this stage, but will return to later, is that Michelle said in answer to Mr Porter's questions, "funnily enough, we haven't discussed this a good deal subsequently".
- Dr Rana qualified as a doctor in Pakistan and started working as a GP Registrar in February 2002. He became a GP Principal in March 2003. His qualifications, experience and expertise appear in the cv which is appended to his witness statement.
- Dr Rana has no independent recollection of these events. It would be wholly surprising if he had. Accordingly, Dr Rana must rely on his contemporaneous notes, and his standard practice. His explanation for there being two sets of notes, one handwritten and the other computerised, is that the internet probably was not working well in his car at the material time, and the first three sections of the handwritten note were compiled from information imparted during the course of a telephone call. I accept that explanation. Although Dr Rana's witness statement timed the home visit at 10 minutes, in his oral evidence he suggested that it might have been 10-12 minutes. In my view, very little turns on this, and I accept Dr Rana's evidence that his examination of FB probably took in the region of 5 minutes.
- According to paragraphs 16-17 of Dr Rana's witness statement:
- In his oral evidence, Dr Rana explained that he would have examined FB with an oroscope, thermoscan and stethoscope. It would not have been possible to conduct a proper examination without having FB taken out of the chair and awaking her. My interpretation of his evidence was that one or both of the parents might have been asked to lift FB out of her chair and to wake her up. At all events, a proper examination of the child's lungs and skin, and of her state of alertness, could not possibly have been taken whilst FB remained in her purple chair.
- Dr Rana agreed with the proposition that a GP should have a high index of suspicion, and added that his threshold for referral was low.
- Dr Rana said that he did not note any relevant history because it had been given to him over the 'phone. However, notwithstanding the paucity of the note, Dr Rana told me that he would have taken a history because he needed to know what to look for on examination. It was put to him that he must have been given a history of vomiting, of difficulties with fluid intake, and of lethargy and sleepiness. Dr Rana's answer was that he did not believe that he had been given such a history; had he been, it would have been recorded. For example, Dr Rana said that a history of bile-stained vomit would have been noted down. I infer from this evidence that a history of vomiting which had stopped by 05:00 would not necessarily have been. Had he been told that the child was lethargic, an important part of the examination would have been to test her alertness and level of awareness. Later in his cross-examination, Dr Rana said, in the context of what would be noted, "it depends on the examination and the overall picture I must have been satisfied with the child to write a brief note". Further, "there are different ways of writing examination findings negative findings are not always necessary to write". Dr Rana said that he recorded any positive findings. When it was put to him that his brief notes list normal or negative findings (sc. lungs clear, ears normal and no rash), he said that he could not leave the form blank. He said that he would have checked the child's level of hydration, by placing a finger in her mouth, and would have made a note if she were in fact dehydrated. That would have been significant against a history, if given, of poor fluid intake. Later, Dr Rana said that it is possible that he was not told about any dehydration, but in re-examination he said that if he was happy about the child's state of hydration he would not have recorded it.
- Paragraph 23 of Dr Rana's witness statement is important:
- In cross-examination, Dr Rana said that he usually writes "alert" if that is the finding on examination. He added this:
- Dr Rana was clear in his evidence that he would not have examined a sleeping child, and that "comfortable" does not mean "asleep". He agreed that it might have been difficult to wake her up, or for her to be woken up, and that such a child might cry. If the parents had failed to awake their daughter, he would have tried to do so himself. His practice was and is to request the parents to put their child on the lap of one of them. Dr Rana's overall interpretation of his brief note was that this was a normal-looking child, and not a sick child. It is clear, Dr Rana told me, that this was not an overly sick child or one whose presenting complaint did not match the findings on examination.
- Dr Rana did not accept that his note was "hopeless"; he maintained that it was "good enough".
- Dr Rana also did not accept that the parents could have been dissatisfied with his advice. He would have asked them if they were unhappy: either they must have said that they were, or they did not express any dissatisfaction. Further, he would have taken into account any parental anxieties in deciding whether or not to make a referral to hospital.
- In answer to my questions, Dr Rana said that had he decided to make a referral to hospital, he would have made two telephone calls: first to the paediatric registrar on call to explain the position, and secondly (in the event that no transport was available) to a non-999 number to arrange an ambulance. Although not articulated as such, I deduce that Dr Rana interpreted my questions as addressing a hypothetical state of affairs where an immediate, emergency referral was not warranted where, for example, the patient was exhibiting frank signs of meningitis. It is convenient at this juncture to record Dr Rushd's evidence that the procedure within A&E was for children who were referred by their GP to be fast-tracked straight to a paediatrician, usually the Paediatric SHO. Such children would still be triaged within A&E and the Paediatric SHO would then be called down from the ward.
- Dr Rushd took her MB BS at Barts and the Royal London, and after 18 months' pre-registration training embarked on a two-year GP rotation as a SHO at the Second Defendant's hospital. She had done 6 months in paediatrics between February and August 2003 before commencing her rotation in A&E. It follows that Dr Rushd was about 6-8 weeks into this rotation when these events occurred, and I note from her cv that at the material time she was 25 years old. Dr Rushd is now a part-time salaried GP.
- The normal practice in A&E was that the Registrar would see patients arriving by blue-light ambulance, but Dr Rushd told me that if s/he was busy then this task fell to the SHO.
- I have already found as a fact that FB and her parents did arrive by blue-light ambulance, and Ms Whipple sought to persuade me that the better view on the evidence was that the patient report form completed by the ambulance service must have been included within the small folder of paperwork which was provided to Dr Rushd just before the consultation started. On my reading of paragraph 7 of Dr Rushd's witness statement, her consistent position has been that she was unaware of FB's mode of arrival, and that for some reason the patient report form was not associated with the folder by the time the consultation had started. I take the point that this paragraph uses the verb "suggests", whereas in cross-examination Dr Rushd felt able to state the position "definitively", but I have no hesitation in finding as a fact that Dr Rushd's evidence is correct in both respects. Had the patient report form been available to her, she would not have written "history from parents" on the clinical notes. There was nothing in the paperwork to alert Dr Rushd to the fact that FB arrived by ambulance, and no reason for WAC or Paul to say so. The parents may well have assumed that Dr Rushd was aware of this. In short, I find as a fact that Dr Rushd had just the A&E front cover sheet, completed by the triage nurse, and the further triage document numbered page 2.5 in the bundle.
- According to page 2.6, at 05:30 FB was "being seen" by Dr Rushd. Thus, it is unclear when the consultation started. Dr Rushd told me that the time written on the clinical notes, namely 05:45 (cf. her witness statement which gives the time as 05:48), denotes when she started writing them up, which was immediately after the consultation ended. According to her witness statement:
- Dr Rushd told me that it was her practice to begin a consultation of this sort by asking an open-ended question, affording the parents the time and opportunity to provide the relevant information. The question would be along the lines, "why are you here?" If necessary, follow-up questions would then be posed. I do not understand Dr Rushd's clinical notes necessarily to represent the history in the sequence as given by WAC and Paul; she has placed it within a certain framework or structure. Dr Rushd told me that she would not ask how the child and her parents had arrived at hospital, and I accept that there would have been no prompt to pose such a question.
- Dr Rushd was closely cross-examined by Ms Whipple upon the accuracy of her note of the history. She was clear that she must have been told that FB had vomited "three times over last few days", otherwise she would not have written this part of the history down in these terms. At any rate, that was her interpretation of what she was told. On WAC's evidence, FB had not in fact vomited for nearly 25 hours but I have already mentioned that her account to the court was that FB vomited at least five times the previous night. Dr Rushd correctly noted that FB was drinking sips of water and juice, and she explained in cross-examination that this by itself would not be concerning, because sipping fluids is consistent with a cold and not necessarily indicative of dehydration. She was not cross-examined on her note, "not eating much solids". In relation to the urine output, Dr Rushd's evidence in chief was that "today" meant during the last 24 hours, although in cross-examination she said that it meant since midnight. Despite this imprecision, it seems clear that FB was adequately hydrated, and the most important point in this regard is that this is how she appeared on examination. It was put to Dr Rushd that the note "seen by GP, emergency Dr x 2 over last few days NAD" was inaccurate. If the verb "seen" governs the noun phrase "emergency doctor x 2", I would tend to agree, but this is a minor point and the more significant note is "NAD", which to my mind is a fair encapsulation of Dr van Terheyden's and Dr Rana's advice to WAC. On the other hand, I agree with Ms Whipple that Dr Rushd misunderstood what she was told about the urine sample have already been dropped off at the GP's surgery. I do not accept, however, that this was a particularly significant error, still less one which amounts to unacceptable note-taking or practice.
- Dr Rushd's note wrongly recorded that FB's pulse was 150 beats a minute. In fact, the triage nurse, from whose record Dr Rushd was working, had recorded a pulse of 151. I do not regard this as a significant slip. Although the experts spent some time debating the interpretation of this reading, it became clear that it falls within the upper end of the normal range for a 13 month old child. Even though FB was probably asleep when her pulse was taken in triage, I have seen no evidence that Dr Rushd was aware of that, and in my view nothing turns on this point.
- Overall, Dr Rushd did not accept that there were any inaccuracies in her clinical note. She accepted the proposition put to her in cross-examination that if her note did contain errors, that must be the parents' fault for furnishing inaccurate or erroneous information. I do not agree that the truth needs to be accommodated within either of these clear-cut, binary options. A diligent SHO will be doing her best to interpret what she has been told by stressed, anxious parents in an alien environment. In any event, the resolution of the liability issues against the Second Defendant in no way depends on the accuracy of what is contained in this apparently comprehensive and detailed note. As will become clear, this case turns on what is not in the note, and on whether it ought to have been.
- Dr Rushd's note contains no record of bile-stained vomit, of the previous "terrible" night, of any history of lethargy, and of the eye rolling incident which had precipitated the telephone call to the out-of-hours service at approximately 04:00.
- Dr Rushd told me about her findings on examination. Her immediate impression was that FB looked well. More specifically:
- Dr Rushd told me that in relation to any child in A&E with a temperature:
- Dr Rushd's witness statement sets out in detail how she would have carried out the chest, abdominal, neurological and ENT examinations of FB. She was pressed by Ms Whipple on her neurological examination, but did not accept that FB was floppy and weak. In my judgment, she would not have written what appears in the clinical note if these had not been her actual findings. Moreover, basic examinations of this sort fall entirely within the competence of a SHO, and I have absolutely no reason to doubt the general competence of Dr Rushd both now, and back in September 2003.
- Ms Whipple asked Dr Rushd why she did not conduct a brief trial of fluids, or "fluid challenge", to ascertain whether FB was holding them down adequately. Her answer was that the objective findings demonstrated no concern with urinary output or possible dehydration. Ms Whipple asked Dr Rushd why she did not conduct an urinanalysis. Her answer was that she thought that it was being checked by FB's GP, and in any event she had no concerns about a possible urinary infection. The signs and symptoms were indicative of an upper respiratory tract infection. In my judgment, Dr Rushd's assessments fell within the range of acceptable practice in these specific respects, and Ms Whipple did not press these matters strongly in her closing argument.
- Dr Rushd's note records that FB's parents "were happy with [the] plan". She told me that she would have asked them something along the lines, "is that OK?" In my judgment, this is what happened in the present case. WAC may well not have been wholly reassured by this consultation, but aged 19 and exhausted she was unlikely to have given Dr Rushd the impression that she was dissatisfied at the time. In Paul's supplementary witness statement, he states that after he and WAC left A&E they felt very unhappy, and that they had been "palmed off". I will defer giving my assessment of Paul's evidence overall to a later point in this judgment, but at this stage I merely state that I do not find as a fact that any dissatisfaction was evinced at the time.
- In her evidence in chief, Dr Rushd told me this:
- I was concerned that this evidence may not have been adequately tested in cross-examination, and after a short discussion with Counsel Dr Rushd was recalled just before the short adjournment on Wednesday 13th May. In answer to Ms Whipple's questions, Dr Rushd did not accept that FB could have suffered a febrile convulsion, because there was no shaking of her body. She did accept that had this history been given, she would have asked further questions about it. The exchange with Ms Whipple continued:
- Given the importance of that plank of FB's case which turns on Dr Rushd's failure to elicit a key part of the history, I set out her evidence about that in the context of the eye-rolling incident. There was the following exchange with Ms Whipple:
- At this stage of my judgment, I make two observations. Dr Rushd assented to the proposition that was being put to her, but she might have paused at the use of the verb "withheld". I would prefer to express the dichotomy more exactly and in this less loaded way: either the right questions were not asked, or the information was not given. Secondly, in her second answer Dr Rushd was really expressing an opinion, admittedly one based on her experience of human nature and her practice as a doctor. By definition, however, she cannot know the number of occasions on which patients, for whatever reason, have omitted to give a full history. All the evidence points to the eye-rolling incident being very scary as far as WAC and Paul were concerned. I am clear that this history was not given to Dr Rushd. The issue for me is not whether there was some failing in the parents which needs to be marked in this judgment, but whether Dr Rushd's practice was sub-standard.
- The final piece of Dr Rushd's evidence that I need expressly to record is that she told me that children with this type of presentation were seen by her in A&E at least once a day, and several times a night.
- I heard evidence from Professor Simon Kroll, Professor in Paediatrics and Honorary Consultant Paediatrician at Imperial College London and St Mary's Hospital (for the Claimant), Dr Nelly Ninis, Consultant General Paediatrician at St Mary's Hospital (for Dr Rana) and Professor Gary French, Honorary Professor of Microbiology and Consultant Microbiologist at Guy's and St Thomas's Hospital.
- Having read their respective cvs, and considered their written and oral evidence very carefully, it is apparent that I have been treated to three experts of the highest eminence in their fields. I use the plural because their respective experience and expertise differs slightly. Professor French is a microbiologist and not a paediatrician. He does not claim to be a front line clinician. Dr Ninis is primarily a clinician, and she has vast experience in examining and treating children with meningitis and septicaemia. She also told me that between 1997 and 2002, as clinical research fellow at Imperial College London, she undertook a major research study into meningococcal disease in childhood. Professor Kroll's clinical experience is less than Dr Ninis', but his academic credentials are second to none. Ms Whipple commended his report to the court for its exquisite analysis, and in my view this bouquet is appropriately accorded.
- These matters aside, I found Dr Ninis to be a more impressive witness than Professor Kroll. Whereas Dr Ninis demonstrated unbounded enthusiasm for her subject and considerable, albeit not total, objectivity (possibly because she did not believe aspects of WAC's evidence), I felt that on occasion Professor Kroll was too argumentative and inclined towards partisanship. I accept that this may have been a function of his strongly held views about this case, but Professor Kroll did not always answer Mr Whitting's questions directly, and on such occasions became disposed to advocate his point of view.
- Although the experts were some distance apart in their original reports, their evidence has largely converged, and only differs significantly in two respects. Before focusing on those divergences in view, I should set out the important common ground in the Joint Statement, which is the result of Dr Ninis and Professor French moving towards Professor Kroll's position:
- The first area of disagreement between the experts concerns FB's likely appearance at the time of Dr Rana's examination at 21:40 on 28th September. In this regard, the Joint Statement is somewhat ambiguously worded, because in it appear two passages which are not readily reconcilable with each other. The first passage begins under the rubric, "Regarding the Claimant's likely condition at 21:40 on 28th September". The experts agree that it is likely that FB's condition would have been no worse at that stage than it was when she was seen approximately nine hours later by Dr Rushd. Further:
- Earlier, however, the experts were not ad idem on this matter:
- It is immediately apparent that (i) Dr Ninis has allowed herself to "sign up" to a position ("does not allow us to conclude one way or another") which is inconsistent with a view she expressed just two pages earlier in the Joint Statement, and (ii) Professor Kroll has allowed himself to articulate a somewhat unclear stance on the one hand, he accepts the generalisation that feverish children with bacteraemia of this type may not appear particularly unwell, and on the other he appears immediately to resile from it and contend, without giving reasons, that the Bachur paper does not assist. In such circumstances, it seems to me that there is an issue which I must resolve on the basis of the oral evidence I have heard. In any event, neither party is bound by the Joint Statement: see CPR r.35.12(5).
- The paper by Bachur et al, Re-evaluation of Outpatients with Streptococcus Pneumoniae Bacteraemia, Pediatrics 2000; 105; 502 was carefully examined during this phase of the expert evidence. This was a retrospective study based on data collected between 1987 and 1996 at the Children's Hospital, Boston. The purpose of the study was to generate a model to predict children at high risk from persistent bacteraemia. The authors started with a cohort of 867 children but whittled this down to 548 patients, removing from scope (i) children who were hospitalised (and, presumably, more seriously ill) and (ii) atypical cases. The criteria for entry to the study were a rectal temperature of at least 39 ēC (equating to a mouth or under-arm temperature of 40-40.5 ēC) and a non-identifiable focus of infection. It is unclear whether the presence of an URTI would have taken patients outside the scope, but I assume not because there is other available evidence to indicate that the majority of cases of bacteraemia begin life as viral infections. Of the 548 non-hospitalised patients, 73 had no antibiotics, 239 had oral antibiotics, and the remainder received them intravenously. According to Table 1, the median white blood count for all the patients was 20,400 (with a range of 16,100 to 24,600) and that for the 73 non-treated patients was 14,600. Unfortunately, 8 out of the 548 patients proceeded to develop meningitis.
- Dr Ninis relied on this paper, she said as being just an example, in support of the general proposition that children with bacteraemia may not appear particularly unwell, and that clinical examination alone may not be a sufficiently sensitive tool to discriminate between children who present with high fever and just have a viral infection, and those who also have bacteraemia which may progress to meningitis. Commenting specifically on Dr Rana's notes, Dr Ninis said that bacteraemic children may well present as "alert" and their mental functioning remains normal. At 21:40 on 28th September FB's meninges were not yet inoculated or inflamed.
- Professor French also commented on the Bachur paper. He made the point that the median white blood count for the 548 children was over 20,000, and yet they were still discharged home. Professor French agreed that we cannot deduce from the paper how many of these children should have been hospitalised, or would have been in the UK, but overall in a paediatric unit in a major US city several hundred children had pneumococcal bacteraemia and were discharged.
- Professor Kroll sought to downplay the apparent significance of the Bachur paper in a number of ways. He observed that this was a retrospective study which gave no indication of the criteria deployed for hospital admission. I agree with that as far as it goes, although the inference must be that they were in a worse condition than the non-hospitalised cohort. He told me that it was US practice to treat children more readily in outpatients than to admit them to hospital, particularly in impoverished neighbourhoods. In a supplementary note, Professor Kroll made two points. First, he observed that FB's level of bacteraemia was particularly high, because the blood-brain barrier was about to be breached. Secondly, he stated:
- I cannot accept Professor Kroll's evidence on this issue. Dr Ninis may have accepted, before she modified her view, that the BBB was already breached by the time of Dr Rana's visit, but that was never Professor Kroll's position and I consider that it was not particularly helpful for him to deploy ad hominem arguments of this sort. At least seven hours were to elapse between Dr Rana's visit and the breaching of FB's blood-brain barrier, and FB's WBC even at 05:45 on 29th September is likely to have been normal (cf. the Bachur cohort).
- Overall, I prefer the evidence of Dr Ninis and Professor French, and conclude that at the time of Dr Rana's visit, if the expert evidence were viewed purely on a standalone basis, FB probably did not appear particularly unwell.
- The second area of disagreement between the experts is one of emphasis and nuance only, but nonetheless of some significance. The focus here is on the following passage in the Joint Statement:
- "Abnormal state variation" is not a recognised medical term but it is a concept which both Professor Kroll and Dr Ninis considered was appositely applied to this sort of case. It denotes a departure from a behavioural norm or expectation: a well child aged 13 months will not normally acquiesce in this sort of intrusive, unfamiliar medical examination without remonstrating. An overly quiescent child is, therefore, displaying atypical features. However, the experts were also agreed that these features are "more subtle" (per Professor Kroll) or "[entail] a difference in perception actually, the level of what you are trying to identify often needs a senior pair of eyeballs" (per Dr Ninis). In my judgment, Dr Ninis' characterisation is particularly helpful and apposite, given that the present case concerns not an experienced Consultant but an SHO.
- Professor Kroll's view is that it is close to 100% likely that FB was exhibiting "abnormal state variation" when seen by Dr Rushd. In Dr Ninis' view, the preponderance of probability was closer to 70%. To the extent that it matters, and I do not believe that it really does, I prefer Dr Ninis' evidence on this point. Taking into account all the available evidence, including my findings of fact set out later, I am satisfied on the balance of probabilities that FB was at the very least exhibiting "abnormal state variation" when Dr Rushd examined her. More specifically, she probably was unusually quiet and passive.
- In examination in chief, Professor Kroll was taken to Dr Rushd's note and commented on it. In my view, it was at this stage in particular that he crossed the line between advising the court and advocating a position. He said that he found the note "difficult", that it did not stand four-square with his knowledge of the progression of the disease or the child's claimed condition, and that he found the references to "alert" etc. very surprising. Mr Whitting cross-examined Professor Kroll extremely effectively on these matters. Under pressure, Professor Kroll accepted that the only part of Dr Rushd's note which was implausible was the "looks well". That, in any event, is a very subjective ascription, and needs to be calibrated to the circumstances of a child who was undoubtedly under the weather, suffering from an URTI. Professor Kroll no longer bridled at the use of the term "alert", provided that it was being deployed as a term of art.
- I am not convinced by Professor Kroll's evidence hereabouts, and much prefer Dr Ninis' more nuanced, measured evidence. At page 12 of her report (page 280 of bundle II), Dr Ninis wrote that during the bacteraemia phase, "there are no specific symptoms that indicate the child has an invasive bacterial infection, as opposed to a viral infection, although bacteraemia is often associated with high temperatures and rigors". Dr Ninis underscored the limitations inherent in clinical examination, and that the behavioural changes which were likely to have existed were not inconsistent with Dr Rushd's note. The child was extremely "out of sorts", and no doubt appeared as such to her parents, but could well have appeared alert and responsive. Ultimately, Dr Ninis' "senior pair of eyeballs" point is highly germane.
- In short, my conclusions on this seam of expert evidence are as follows:
- This is the appropriate stage to set out my core factual conclusions in relation to the disputed areas. I have not yet set out the remainder of the expert evidence the court received. I have taken it into account in resolving the matters which require judicial resolution, but in my view that evidence is far more relevant to breach of duty questions than to my fact-finding.
- My approach is to assess the lay evidence against the contextual backdrop of the expert evidence set out in the preceding section of my judgment. Neither the lay nor the expert evidence may determine the outcome; each must be weighed in the balance and seen "in the round". For the avoidance of any doubt, I proceed on the basis that it would be open to me to conclude that FB appeared more ill than the expert evidence, taken in isolation, would indicate.
- For different reasons, I was not impressed by Paul or Michelle's evidence. Paul's evidence was vague and prone to hyperbole, and cannot be relied on unless supported elsewhere by evidence I could accept. Michelle was unduly partisan and in two respects wholly implausible. I do not accept her account of what happened when she took WAC and FB to Dr Ashar's surgery on that Monday afternoon. She may have been concerned about FB's condition, but as her first reaction to what she was seeing she had absolutely no reason to ascertain whether FB had been in that condition throughout that weekend. We know from WAC's evidence that she had not been. Further, I do not accept Michelle's evidence that there had been little subsequent discussion between her and her daughter regarding the circumstances of this traumatic weekend which has resulted in a complaint to the Second Defendant and protracted litigation. On other matters of credibility, I do not accept Michelle's explanation for the error in her statement regarding the timing of the "bile sick", and I further note that her recollection is incorrect about Dr Rana's advice he did not tell WAC to sponge FB down.
- I should make clear that although Paul's and Michelle's evidence cannot really add to FB's case, it does not subtract much from it, save to the extent that it impinges on aspects of WAC's evidence.
- WAC's evidence has been harder to gauge. On many occasions, she said that she did not recall what happened when a dishonest witness might well have embroidered a self-serving account. This was undoubtedly an extremely distressing series of events which she must have replayed in her recollection on countless occasions. In one sense, it might be said that this process has served to reinforce the strength of her remembrances, but ultimately I have concluded that WAC, although a basically honest witness, cannot be regarded as a particularly reliable historian. She was only 19 when these events took place, and by the time she saw Dr Rana, and even more so by the time she entered the Second Defendant's hospital, she was sleep-deprived, distressed, and at the end of her tether. Further, it would be difficult for anyone to exclude from account her subsequent knowledge of what occurred, and in my judgment WAC has unwittingly allowed hindsight to colour the evidence she has given. Moreover, it is probable that subsequent discussions with her mother have impacted to some extent on the independence and objectivity of her testimony. For example, WAC told me that she did a glass test before the first telephone call to out-of-hours on 27th September, and was concerned about the result. No mention of this concern appears in any of the transcripts, and we know from the agreed expert evidence that by this stage FB was showing no signs of meningitis.
- The purpose of WAC's second witness statement was "to emphasise further how ill FB was". I have no doubt but that FB was very ill by the time she was seen by Dr Ashar (although not apparently so ill as to cause this GP to make a '999' call), and that her condition was immediately apparent to anyone with a modicum of training and experience. On the other hand, I conclude that there was a significant deterioration in FB's condition after 09:00 on Monday 29th September, by which time the experts are agreed that the blood-brain barrier was breached. Before then, the overall trend was one of deterioration, but it was less stark and patent, and FB's condition fluctuated, both in reaction to the paracetemol and nurofen, and more generally.
- More specifically, I do not accept WAC's evidence that FB's vomit was a "browny, black colour". There was some discussion between Professor Kroll and Dr Ninis as to the plausibility of this, and here, as elsewhere, I prefer Dr Ninis' evidence. I note Dr de Marco's observation that this is a "difficult issue", and the gist of his evidence appeared to be that factual findings would need to be made by the court as to what history was actually given. I find as a fact that FB probably vomited three times over the Saturday/Sunday night; that there was some evidence of vomit which appeared to be bilious or greenish in colour; and that the last time FB vomited, which was at 05:00, it was yellow in colour. Had FB been vomiting as much as WAC claims, it is surprising that she stopped altogether, and also somewhat difficult to understand why she was not dehydrated. We know that there is no evidence of abdominal pathology. In my judgment, as with the evidence concerning the rash (see paragraph 114 above), WAC's evidence contains significant elements of retrospective reconstruction and exaggeration, most of which I fully accept may be inadvertent.
- WAC told the triage nurse at or shortly after 14:34 on 28th September that FB was sleepy. I appreciate that the terms "sleepy" and "lethargic" possess different meanings when deployed by a medical practitioner, but I doubt whether they do or did to WAC. We know that WAC used the term "very lethargic" when the ambulance arrived shortly before 04:30 on the Sunday morning, but in my view she probably did not before then. She probably used terms such as "sleepy", "drowsy", "out of sorts" and "not herself". This terminology is consistent with, although not of course pathognomonic of, a child with just a viral illness.
- In this regard, I should make clear that I am rejecting Paul's evidence that FB was so ill as to be "lifeless".
- Mr Porter submitted that FB was probably not taking sips off a spoon until after Dr Rana's visit. I agree that it is difficult to piece together a clear timeline from the available evidential melange, that there must be an element of exaggeration in WAC's witness statement that FB was not holding fluids down (see paragraph 39 above), and I also agree that the triage note for 14:34 might suggest that FB was having no difficulty drinking juice at that stage. On balance I conclude that FB's willingness to drink clear fluids, as opposed to milk (which she was not drinking at all), diminished over the course of the Saturday such that she probably was taking sips off a spoon by the early evening. However, FB was keeping most of these fluids down.
- I remain puzzled by Dr Rushd's note that FB was "not eating much solids", which suggests that she was eating, and holding down, some. It might also explain the yellow vomit at 05:00 on 28th September. However, WAC was not cross-examined about this matter, and I can take it no further.
- Turning now to my assessment of Dr Rana, I consider that he gave measured, careful evidence in an unhurried and appropriate manner, generally answering Counsel's questions rather than advancing a point of view. Although some allowance must be made for the fact that Dr Rana had 12 years or so less experience when he examined FB in September 2003, I believe that he was then, as he is now, a humane and diligent GP who strives to do his best for his patients.
- It is common ground that Dr Rana asked a number of questions, in other words, obtained a history. I find that Dr Rana was told that FB had been ill for a number of days, that she had last vomited early that morning (but there was no mention of its colour as indeed there was not when Dr Rushd covered the same ground), that there had been no diarrhoea, that FB was taking calpol and nurofen to control her temperature, that she was off her food and was sipping water and juice, and that she was generally out of sorts and not herself. In my judgment, this was all that Dr Rana was told, and in particular WAC did not say that FB was lethargic or had suffered a "terrible night".
- Neither WAC nor Paul has any recollection of Dr Rana examining FB, but I am satisfied that he did. I am also satisfied that in order to do so properly, which is what occurred, Dr Rana asked WAC to wake up FB and then lift her out of her purple chair. I find that Dr Rana examined FB whilst she was either in her mother's arms, or on her mother's lap with WAC sitting on the sofa adjacent to the chair.
- I also find that the examination probably took a number of minutes, but no more than five. Dr Rana's account to me of how he undertook the examination is likely to be correct. This included an examination of FB's level of hydration by placing a digit into her mouth. Crucially, I find that Dr Rana wanted to satisfy himself that FB was alert, safe and not exhibiting any worrying signs. He did so satisfy himself, and expressed his conclusion by using the term "comfortable". Not without a measure of hesitation, I accept Dr Rana's evidence about his somewhat atypical use of this term, but he was an honest and truthful witness who would not have wished to mislead the court.
- Ms Whipple submitted that all the contextual evidence points to FB being lethargic at this stage, rather than alert, and that it is barely credible that a sleeping child could have been awoken, to the extent that she appeared other than drowsy, over the course of an examination which lasted no more than five minutes. However, I have already pointed out that FB's condition was fluctuating. We know that her temperature was normal when Dr Rana examined her, and it is wholly plausible that FB woke up fully during the course of the manoeuvres which Dr Rana had to undertake to examine her properly.
- Dr Rana's presence probably reassured WAC and Paul during the course of the consultation, but its after-effects were probably not long-lasting. However, Dr Rana would, in my view, have received no indication, by word or demeanour, that WAC in particular was unhappy or dissatisfied.
- In reaching these conclusions, I receive modest support for them from Dr Rushd's largely congruent findings attained eight hours later. My findings are also entirely consistent with my assessment of the expert evidence: see in particular paragraph 109(i) above.
- I should make clear that I do not accept Ms Whipple's submission that, because Dr Rana's note-taking may appear "random", it is not possible to draw coherent inferences about the history he was given or the examination he conducted. It is quite true that Dr Rana has noted some positive findings (cf. his evidence that he notes only negative findings, or findings that are contextually abnormal) but in my judgment it is wrong to subject these quite scanty notes to overly rigorous, logical scrutiny. They were written after the consultation had concluded, and in Dr Rana's mind were no doubt intended to pick out the key, salient features of a case he believed to be unremarkable. As Dr Rana told me, he had to write something down, and over-parsing or over-analysing the position does not assist. I will be dealing with this point later, but in my view a barely adequate, or even inadequate, note does not necessarily march arm-in-arm with a barely adequate, or inadequate, examination.
- I will examine FB's case on breach of duty in the next section of my judgment, in the light of these findings.
- Moving forward in time to at or shortly after 04:00 on Monday 29th September, I have no doubt but that WAC witnessed an alarming episode, which may not have lasted very long, when FB's eyes rolled in an uncoordinated fashion. This was the reason for her call to the out-of-hours number, and no doubt also why the triage nurse connected the call to the ambulance service. I entirely agree with the preponderance of expert opinion that this was unlikely to have been a febrile convulsion in any strict sense of that term, since it was not associated with uncontrolled or other bodily shaking, but it may have been some sort of fever-related seizure, and WAC reasonably believed that it was. As I have said, I doubt whether the paramedics witnessed this for themselves "o/e" is therefore a misnomer but in my view this does not matter.
- I also consider that the better view on the evidence I have heard is that FB deteriorated, probably not greatly, between her examination by Dr Rana and the call to the out-of-hours service. However, it is clear that FB was given a further dose of nurofen at about 04:30, or in any event before the ambulance arrived, and this both lowered her temperature and improved her overall appearance.
- The inference I draw from the triage notes is that the nurse was not overly concerned by FB's condition (notwithstanding that she was asleep), hence the "green" or standard status which she was accorded.
- There was a delay in the A&E cubicle before Dr Rushd became available, a hiatus which I reckon must have lasted about 30 minutes. This must have been an extremely worrying time for FB's parents, and may have seemed much longer than its chronological duration. I accept the general tenor of WAC's evidence that FB remained either on her or Paul's lap, was not engaging with her toys, and was clearly not herself. However, I find that there was an element of exaggeration in WAC's account to the court, and that FB was not consistently lethargic and inactive. On any view, and WAC did not say otherwise, the eye-rolling had ceased.
- Picturing the scene in that cubicle, I consider that the parents' mood must have improved and their anxiety lifted somewhat when Dr Rushd arrived. I have no doubt but that Dr Rushd tried to elicit a full history from the parents, and adopted her standard practice in asking an open, facilitative, question. She may well have asked follow-up questions. I find that the history as recorded in the clinical notes appears better structured, and more logical, than the account probably given by WAC, with Paul interjecting where required. Dr Rushd had to assimilate a fair amount of information given by worried, tired parents, and it is quite understandable that her note should contain a few mistakes. In her written closing argument in particular, Ms Whipple latched onto these matters, and other pointers which she submitted merited closer investigation (see, in particular, paragraph 55). In my judgment, these are all relatively minor factors which do not advance FB's case any substantial distance. It is necessary to keep an eye firmly on the bigger picture.
- There are two aspects of that big picture which in my judgment are absolutely central to this case. The first aspect is that it is clear to me that the parents did not tell Dr Rushd that FB had recently suffered some sort of worrying event when her eyes rolled in an uncoordinated fashion. Further, and this is the counterpart of the same issue, Dr Rushd did not elicit this part of the history, notwithstanding that it was the immediate precipitant to FB being taken to A&E. Had Dr Rushd been given this information, or had she elicited it, we would see a note to that effect. The second aspect is that Dr Rushd has noted that FB looked well, was alert and active, and responsive to her surroundings. Dr Rushd would not have written her notes in this manner had it not reflected her genuinely held, professional view.
- I intend to return to these two central issues when I review FB's case on breach of duty.
- I heard from Dr Paolo de Marco, General Practitioner, for the Claimant, and Dr Harjinder Sandhu, General Practitioner, for Dr Rana. I was impressed by both these experts. They gave their evidence in a clear, measured way and were both astute to assist the court. In the event, there is very little to separate their evidence, because both are agreed that so much depends on my findings of fact as to FB's presentation at 21:40 on 28th September. In their Joint Statement, the experts record that the adequacy of Dr Rana's examination must depend on whose version of events is considered. I should also note, in line with what Dr Rana accepted, that a GP in this situation must have a high index of suspicion.
- The GP experts are not in agreement on two matters. First, they part company on the quality of Dr Rana's note. The obligation in 2003 was to "keep clear, accurate, legible and contemporaneous records which report the relevant clinical findings". The real area of contention between the experts is as to the meaning of "relevant" in this context, and in this regard much would depend on the history Dr Rana was given, or ought to have elicited. The second area of debate concerns Dr Rana's use of the epithet "comfortable". I entirely agree that it had the potential to mislead a subsequent medical professional, but there is no evidence that it did so and the real issue here is what Dr Rana meant by it as to which, see paragraphs 66-68 above.
- I heard from Dr Rupert Evans, Consultant in Emergency Medicine, for the Claimant, and Dr Ian Maconochie, Consultant in Paediatric Emergency Medicine, for the Second Defendant. Their formal disciplines are slightly different, but nothing in my view turns on that. I did not permit Dr Ben Lloyd, the Claimant's expert on factual causation and an eminent paediatrician, to trespass onto this terrain. As I have already explained, Dr Rushd's practice should be judged by the standards applicable to an SHO in A&E, rather than in paediatrics.
- For somewhat different reasons, I did not find Dr Evans or Dr Maconochie to be entirely satisfactory witnesses. Dr Evans came across as earnest, dogged and persistent I have no doubt that his opinions were entirely genuinely held - but to my mind he was somewhat dogmatic and inflexible. Dr Maconochie, on the other hand, was on occasion argumentative, and did not appear to adapt his position to reflect Dr Rushd's answers to my questions about suspecting a febrile seizure. On the other hand, Dr Maconochie gave extremely useful evidence on one of the key topics, as summarised under paragraphs 146-147 below.
- Many of these experts' opinions are predicated on hypothetical factual scenarios. It is implicit in their reports, and in their Joint Statement, that they defer to me on these matters.
- I identify the following salient features of these experts' Joint Statement:
- Dr Evans elaborated on these areas in his oral evidence. In relation to the "convulsion", Dr Evans said that he would have expected any competent junior doctor, being aware of that history, to have referred the child to the definitive team. On my understanding of her final position, Dr Rushd would agree with that too. However, Dr Evans' evidence in chief was given on the premise that Dr Rushd either had available to her the patient report form completed by the ambulance crew (and I have found as a fact that she did not), or had been given that information by WAC (and I have also found as a fact that she was not). But these issues were explored during the course of Mr Whitting's cross-examination of Dr Evans, and the latter made clear that it was his opinion that the history should have been elicited regardless of what was volunteered or otherwise ascertained. As Dr Evans put the matter, the SHO failed to ascertain the key issue of why the parents were in the A&E department at 05:00; this was an "essential facet" of the history. Dr Evans added:
- Dr Evans added that Dr Rushd should have ascertained the precipitant, as he put it. He agreed that a parent would normally be expected to mention that. Dr Evans did not really answer the question "if [WAC] was asked, 'what brings you here?', and she was told what she was told, would that not be acceptable?" In re-examination, Dr Evans told me that the sort of open question Dr Rushd asked normally elicits the precipitating factor(s). It was also pointed out to Dr Evans that no subsequent doctor ascertained the history of the apparent febrile seizure, but I agree with Ms Whipple that by that stage FB was so seriously ill that this aspect of the matter had become superseded.
- In relation to the issue of fluid intake, Dr Evans agreed that Dr Rushd appears to have asked all the right questions about that, save she had failed to ascertain the quantity of FB's sips from the teaspoon.
- As for Dr Maconochie's evidence, he did not accept that WAC was describing a febrile convulsion in the strict sense of that term. Ms Whipple rightly pressed Dr Maconochie on whether Dr Rushd's history-taking appears to be deficient because there is no explanation of why the parents were present in A&E then. The clinical notes record that the child had been pyrexial for four days, from which it might be inferred that there was no particular urgency. My note of the key features of Dr Maconochie's evidence on this theme reads as follows:
- Dr Maconochie told me, and I accept, that a neurological examination is not always done for a suspected URTI, and that in his opinion this was quite a detailed clinical note. He also said that he did not accept that Dr Rushd rushed to judgment, but this it seems to me must be a matter for me to decide.
- It is unnecessary for me to set out Ms Whipple's closing arguments against Dr Rana because the issues are relatively straightforward and I have mentioned some of her key points in my section on findings of fact, and will reflect her remaining points subsequently.
- However, the case against Dr Rushd is significantly more complicated, and I have certainly found the issues harder to resolve. Accordingly, I do take the time to epitomise Ms Whipple's closing arguments under this rubric.
- FB's case focuses on the acts and omissions of Dr Rushd. She does not submit that there was any systemic failure by the Second Defendant's hospital to cause the patient report form to be correctly associated with the small booklet which triage provided to Dr Rushd. I gave Ms Whipple the opportunity of considering over a slightly extended lunch break whether she wished to apply to re-amend her Particulars of Claim to plead this matter specifically, but at 2pm on Thursday 14th May Ms Whipple declined to make such an application. This was the correct strategic decision, because I would have refused it.
- Rightly in my view, Ms Whipple makes much of the fact that Dr Rushd appears to have shifted her ground. Whereas at paragraph 22(viii) of her witness statement she appeared to be saying that even had she seen the ambulance record it would have made no difference, because she would have relied on her examination and observations in any event, Dr Rushd told me something different in answer to my two questions (see paragraph 87 above). Ms Whipple complains about the accuracy of Dr Rushd's witness statement and its statement of truth.
- Ms Whipple's strongest point must be that Dr Rushd failed to elicit the history of the suspected seizure, being the factor which prompted the call to the out-of-hours service, because she did not ask the right questions. Ms Whipple subjected the clinical note to careful analysis and submitted that a key element, the "coda" as she put it, is missing. Ms Whipple relied on Dr Evans' oral evidence to the effect that any reasonable history must include the precipitating factor for the visit. Ms Whipple also strongly criticised page 304 of Dr Maconochie's report, where he said this:
- As regards Dr Rushd's examination of FB, Ms Whipple advanced a sustained series of submissions seeking to persuade me that (i) the parents' version of events is correct, and (ii) in any event, Dr Rushd has failed to detect the behavioural changes which the experts agree were present.
- In my judgment, these largely flow from my findings of fact: see paragraphs 121-126 above. There remain two issues which require my specific attention at this stage.
- The first issue concerns the adequacy of Dr Rana's notes. The experts are agreed that a sound note must contain all relevant findings, and the issue here is whether that standard has been attained. In my judgment, saliency must be judged ex post (because the notes are written after the event) and in the light of the GP's assessment of what is relevant in the context of the examination that has just been undertaken. I think that everyone must be agreed that this is an exiguous note, and at best it lies at the margin of acceptability. Upon careful reflection, I have concluded that it is an inadequate note as regards the history. Making due allowance for time of night and the fact that Dr Rana might well have had other patients to see, I believe that it was sub-standard practice to include nothing of the history as given by the parents at that time, as opposed to the history given to Dr Rana by the triage nurse.
- However, an inadequate note does not necessarily betoken an inadequate examination, and I am in any event just about satisfied that Dr Rana's note is adequate as regards his examination of FB. In my view, the inadequacy of the notes advances FB's case some short distance, but ultimately I have to reach conclusions about Dr Rana and the overall qualities of his practice. I should make explicit that in reaching those conclusions I have taken into account what I think about his notes, notwithstanding that these conclusions are set out in an earlier section of this judgment.
- The second issue concerns the quality of Dr Rana's history taking, and whether he elicited an adequate history from the parents. On analysis, however, I do not believe that this arises as a discrete issue in relation to Dr Rana. At paragraph 122 above I have set out my conclusions as to what Dr Rana is likely to have been told. This was an unremarkable history and one which was consistent with the subsequent findings on examination. It was not incumbent on Dr Rana to inquire further. He was witnessing a child who did not appear particularly unwell in other words, whose presentation was entirely consistent with the presence of a viral infection. Whatever the index of suspicion, it was not mandatory to assume that there might have been some occult illness: a GP in these circumstances could reasonably base his impression or working diagnosis on his examination coupled with what he was told.
- It follows, in my judgment, that Dr Rana took an adequate history and undertook an adequate examination of FB. Her case against Dr Rana must fail.
- Apart from commending the apparent thoroughness of her clinical note, I have not thus far set out my assessment of Dr Rushd. I indicated to Mr Whitting that I was troubled by her late acceptance, and only in answer to my questions, of the proposition that a feverish child with apparently rolling and uncoordinated eyes would/should be referred to the paediatric team. I also told Mr Whitting that I needed his assistance in assessing one aspect of her personality. Although she came across as a woman of high intelligence, she tended to speak extremely quickly and might be therefore thought to have an impulsive, hasty streak.
- Mr Whitting sought to persuade me that it was only because I posed the questions in a particular and precise manner that we heard the lapidary answers which emerged from Dr Rushd at the conclusion of her evidence, and that in no sense was she being evasive. The difficulty with that analysis is paragraph 22(viii) of Dr Rushd's witness statement, and the line she took in cross-examination until she back-tracked or changed direction. I also do not accept that Ms Whipple asked imprecise questions.
- Since the completion of the oral arguments in this case, I have thought very carefully indeed about Dr Rushd and her evidence, and have come to the following conclusions. In my judgment, Dr Rushd is an extremely able doctor whose mouth works almost as fast as her mind. However, she is not fairly to be criticised for that. Ms Whipple suggested that she "gabbled", but in my view that is to underestimate the quality of both her intellect and her medical practice. Ms Whipple also said that Dr Rushd came across as self-confident: I would agree, but self-confidence is not the same as arrogance. Dr Rushd was far too slow to accept what she would have done had she been told about the eyes rolling incident, or had elicited it, but I put that down to inexperience with the forensic process and understandable defensiveness, rather than to anything more concerning.
- The conclusion that Dr Rushd carried out a thorough examination and wrote up an extremely thorough note cannot be avoided. Her initial impression was that this looked like a well child, but she did not stop there. During the course of what must have been quite a lengthy examination, covering the ear, nose and throat, the abdomen, the chest, and neurology, Dr Rushd must have been watching FB very closely and have had more than a sufficient basis to write that she was alert, active and responsive to her surroundings, along with everything else. I do not accept the parents' evidence that FB was obviously listless and lethargic throughout the examination. True, they were worried about her, and she was out of sorts, but she was not presenting as she did that afternoon when Dr Ashar saw her. It is clear that Dr Rushd was fully satisfied as to FB's level of hydration and it was entirely reasonable for her to conclude that although fluids were being taken off a spoon by way of sipping, the quantities were sufficient. The urine output and the clinical findings fully supported those conclusions.
- I do not accept that there was any rush to judgment by Dr Rushd. The thoroughness of her examination belies that, as does the nature of her diagnosis "impression, URTI" and the safety-netting advice.
- There are two matters which have caused me to hesitate and to ponder. The first is whether Dr Rushd was remiss, in the Bolam sense, in failing to pick up the subtle behavioural signs which the experts agree were probably present. Dr Evans' advice to the court was based on the premise that the issue was more clear-cut: namely, it would depend on whose evidence I believed. I do not agree with that, because although I have not accepted important parts of the parents' evidence relating in particular to obvious lethargy at the time of Dr Rushd's examination, I have accepted the "abnormal state variation" thesis. Professor Kroll's view about these behavioural signs was wrapped up in his concerns about Dr Rushd's "looks well", but on this issue Dr Ninis was particularly compelling, especially her point about a senior pair of eyeballs. Dr Ninis did not say in terms that it would not be unacceptable practice for an SHO to fail to pick up this "abnormal state variation", but that is the conclusion I draw from all the evidence I have heard.
- The second, and final point has proven to be the most troubling, namely whether Dr Rushd was negligent in failing to elicit the history of eye-rolling being the immediate and direct prompt to the advent of this family to A&E at this particular time. There is a plausible attractiveness to FB's case in this regard. Dr Evans was quite adamant that this history should have been elicited, even by a junior doctor. I do not accept Mr Whitting's gloss on Dr Evans' evidence (see paragraph 24 of his Closing Note). I have also expressed reservations about certain aspects of Dr Maconochie's evidence. Ms Whipple submitted that in the Joint Statement Dr Maconochie agreed that the history should have been elicited (see paragraph 142(i) above), but it became clear during his oral evidence that this was not in fact his position or, at the very least, that it was unclear on what precise factual premise his apparent agreement was predicated. In any event, the first and second sentences of this portion of the Joint Statement are difficult to reconcile, and Ms Whipple did not abstain from cross-examining Dr Maconochie closely on this issue.
- In her closing argument, Ms Whipple drew my attention to paragraphs B32-35 of Dr Evans' report. Re-reading those, it is plain that Dr Evans was working on the assumption that the patient report form completed by the paramedics was available to Dr Rushd. I would agree with his robust conclusions on that given premise, but I have found it to be incorrect. Furthermore, I have to point out that Dr Evans failed to read paragraph 7 of Dr Rushd's witness statement with sufficient care. In any event, I consider that Dr Evans probably should have addressed the issue on the alternative footing that Dr Rushd did not have sight of the ambulance record. Her clinical record, opening with the wording "History from Parents", rather suggests that she did not - or at the very least might not have done. Now that he is addressing the issue on that footing, subject to my findings, it is slightly surprising that Dr Evans remains able to express himself in exactly the same forthright, dogmatic terms that Dr Rushd should have elicited the history. Finally, Dr Evans' evidence noted by me at paragraph 143 above proceeds along a pathway of reasoning that I cannot accept. Because there is no reason for the parents failing to detail this evidence, Dr Evans says, it follows that there was a failure to elicit it. That, in my view, involves a non-sequitur.
- The fact remains that WAC did not volunteer this history to Dr Rushd, nor did Paul. The explanation for this may possibly be that they assumed that Dr Rushd had seen the ambulance record, and therefore they did not feel the need to spell this out. On the other hand, this is not the explanation that either WAC or Paul gave in the witness box. It is relevant that the triage note does not mention the recent history, and I do not interpret "atypical behaviour" to encompass it. The parents told me that they would have given this information if asked. I have no doubt that they would have done, and they are not to be criticised in any way for failing to do so. It is possible that they were reassured by the fact that FB's eyes had ceased rolling for at least one hour by the time she was seen by Dr Rushd; it is also possible that they were further reassured by the latter's examination of FB's eyes. At all events, the issue for me is whether it was sub-standard practice for an SHO in Dr Rushd's position to fail to obtain this information from the parents.
- It is axiomatic that the court must consider the position from Dr Rushd's perspective of not knowing what, if anything, might have precipitated this attendance in A&E at 04:45. No expert has been able to point to any obvious defect in her history-taking technique. She was unaware that this family had arrived by ambulance, and from her experience, which admittedly was not that substantial, she was aware that parents may attend A&E at all hours of the day and night without there being any direct and obvious precipitating factor. In my judgment, it is incorrect in this sort of situation to subject human nature and behaviour to an overly rigorous and inordinately logical analysis. Although we know that there was in fact a clear precipitating factor, human nature is such that there often does not have to be. I found Dr Maconochie's evidence on this point to be compelling, and I cannot accept either Dr Evans' evidence or Ms Whipple's submissions. They have a tendency towards circularity, and to rely on hindsight.
- In my judgment, a Consultant A&E doctor or paediatrician either would have picked up the "abnormal state variation" or embarked on a line of inquiry which was likely to have elicited Ms Whipple's "coda". In particular, an experienced doctor would probably have said to the parents something along the lines this child looks fine to me, how was she different earlier? The fact that WAC and Paul were relatively young, and possibly over-anxious, parents is a factor which cuts both ways in this case, but an experienced doctor might well have probed further. On balance and in the light of all the evidence I have heard, I have concluded FB's case under this sub-heading places too high a standard of acceptable practice on an A&E SHO. An experienced clinician acquires an armamentarium of diagnostic and inquisitive resources, part intuitive and part knowledge-based, which enable her or him to penetrate more deeply into any given situation. Overall, FB has failed to satisfy me on the balance of probabilities that it was sub-standard practice for Dr Rushd to fail to elicit the recent history.
- On the basis of the history Dr Rushd obtained, and in view of her clinical findings as to FB's level of hydration and elsewhere, Dr Rushd's decision to discharge FB home with appropriate safety-netting advice was not sub-standard practice.
- It follows, in my judgment, that Dr Rushd took an adequate history from the parents and undertook an adequate examination of FB. Her case against the Second Defendant must fail.
- Mr Porter submitted that, even if his client were in breach of duty, I should find that the chain of causation has been broken by FB's subsequent referral to the Second Defendant's hospital several hours after Dr Rana's notional referral should have occurred. In support of that argument, he relied on the decision of the Court of Appeal in Wright v Cambridge Medical Group (a Partnership) [2013] QB 312.
- In view of my finding on the liability of Dr Rana, a detailed analysis of this decision is not required. In my judgment, it does not apply to the present situation. The agreed expert evidence on factual causation is that, had FB been referred to the Second Defendant's hospital by Dr Rana, she would have been seen by a paediatrician and on the balance of probabilities FB would have been observed for a suitable period. In my judgment, it is likely that once any paracetemol or nurofen had worn off FB would not have kept down sufficient fluids to satisfy the paediatricians. They would not have let her take sips from a spoon; they would have offered a bottle. In such circumstances, investigations would have been undertaken which would have led to the administration of intravenous antibiotics.
- There is a material difference between a child arriving at A&E, even by ambulance, because parents are concerned that she might require urgent attention, and a child arriving there (with a view to being seen by a paediatrician) because a trained medical professional, a GP, harbours a concern.
- In all the circumstances, it seems to me that Dr Rana's postulated negligence was an effective cause of FB's injury, and that even if Wright were applicable it would be fair, just and reasonable to hold that Dr Rana should be jointly liable with the hospital.
- I thank all the experts and Counsel for their considerable assistance in this difficult case.
- These claims against both Defendants fail, and there must be judgment in their favour.
Mr Justice Jay:
Introduction
At the outset of these proceedings, and in line with the principles explained by the Court of Appeal in JX MX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, I made an Order anonymising both the Claimant and her Mother and Litigation Friend. I will refer to them throughout this Judgment as "FB" and "WAC" respectively.
Essential Factual Background
"This is her mum speaking. She had a temperature last week. She's been teething, her teeth are cut through now. She had a temperature last night and one this morning. It's 40 and I've given her calpol and it's gone down. She's not been herself you can see it in her eyes and that and she had a slight red rash come on her neck. She is not really eating properly and I am a bit worried about her.
[Dr] When did all this begin?
[WAC] I went away last week. It must have started last Saturday [19/9/03]. I thought it was teething but I knew her teeth have cut through now and I can't see why she getting temperatures.
[Dr] it is peak time for viral illness. Children go back to school and give each other viruses.
[WAC] I've given her calpol one 5ml it's helping but last night she had a temperature.
[Dr] If helping a little bit you could double [the] dose up to 10 mls. These things tend to get better in 2 to 3 days. So double up the Calpol and if things don't settle ring me back in one hour or two's time "
"[WAC] I rang earlier today. I don't know if you've got my details down because my little girl, she had a temperature and I went to emergency doctor earlier in my local area and he couldn't find anything wrong. He said she's got such a high temperature that she might have a water infection. He gave me some samples that I've got to take on Monday. She's been very not herself. She's still got a temperature. It went down but it's gone back up to 40 now. She had two lots of calpol and I can't keep giving it to her obviously coz I'll overdose on it.
[Dr] You can alternate nurofen with calpol and paracetamols you can give it to her now quite safely but I want you to sponge her down I want you to take all clothes off her. It's better when you are sponging to take all clothes off her and get a basin of lukewarm water with a paper towel in it and rinse it, rub all over her body and keep her with you tonight and if you are still worried at any time give me a call back."
"SAW DR YESTERDAY AND THOUGHT SHE HAD A URINE INFECTION
Does the toddler have any of the following?
[ ] Drowsy (can't be woken or aroused)
[ ] More floppy than is normal
[ ] Agitated and/or irritable for over 4 hours, and not calmed down when being held or cuddled
[ ] Persistent weak/moaning cry
[ ] Responds less to what is going on around or when talking to them
- NO
SLEEPY
Does the child have any of the following symptoms?
[ ] Not able to touch chin to chest
[ ] Distress or severe eye pain with exposure to light
[ ] Intense headache
[ ] Mental confusion, or difficult to rouse
- NO
Does the toddler have any of the following symptoms?
[ ] Bleeding under the skin
[ ] Have pinpoint red or purple spots on the skin that remain when a glass is rolled over them
- NO
SLIGHT RASH THIS AM DISAPPEARED
Is the toddler persistently pale or mottled?
- NO
PALE, WORSE THAN WHEN [SAW] DR
Does the toddler have any of the following symptoms?
[ ] No tears
[ ] Dry mouth
[ ] Thirsty or drinking more than usual
[ ] No wet nappies or passing less urine
- NO
DRINKING JUICE, NO MILK GIVEN, ADVISED TO DO SO. LAST WET NAPPY 12 [MIDDAY]
Has there been any bile stained vomiting (green colour, not yellow)
- YES
VOMITED THIS AM YELLOW. LAST VOMITED 05:00
NHS District Nurse notes
Advice Recommended
852 CP TEL ADVICE. MOTHER CONCERNED ABOUT CHILD, SPOKE TO DR LAST NIGHT WHO SAID TO CALL BACK IF WORSE. MOTHER THINKS SHE IS WORSE. ADVISED TO GIVE IBUPROFEN WITH CALPOL. IS TAKING URINE SAMPLE TO SURGERY TOM[ORROW]"
"21:54 Diagnosis entered
O/E comfortable
Temp 36.8
Ears normal, chest clear, no rash over body
Imp: ? viral illness
Plan: continue with ibuprofen and paracetamol prn
Reassured
Review prn [when necessary]"
"Telephone information received
Temp 40.0
Not eating
History and examination
O/E Ears [normal]
Lungs clear
[cervical lymph nodes present/raised]"
"[WAC] She is staring into one space she is not responding to light or anything
[AC] Has she got a history of any problems?
[WAC] No, she's got a temperature as well 40
[AC] And she is conscious at the moment?
[WAC] She's actually gone to sleep
[WAC] She has just opened her eyes
[AC] So she is rolling her eyes and she has a high temperature has she?
[WAC] Yea
[AC] Has she got any other problems?
[WAC] Not that I no no"
"History
Patient has been teething for past week with fluctuating temperatures. Last night patient vomiting, no diarrhoea. Patient feels v warm to touch. Mum took temperature 39 ēC
Examination
Airway clear
Skin tone normal
Additional Information
Mum says patient v lethargic. O/E patient eyes rolling not co-ordinated [NB. there is an issue about the correct interpretation of this last entry]"
"Patient brought in by ambulance. Placed in cubicle N [encircled]. observations recorded. Temperature 36.0. Nurofen given at 04:30. Patient stripped down by parents. Currently sleeping. Awaits A&E."
"History from parents
05:45
Presenting complaint ? temperature
History of Presenting Complaint 4/7 history of ? temperature fluctuating. Vomited 3 times over last few days. Runny nose. Non-productive cough.
ē rash
ē diarrhoea. Bowels opening daily normal
Not eating much solids but drinking sips of water, juice etc
Passed urine 3 times today
Seen by GP, emergency Dr 2 times over last few days No Abnormalities Detected
Dropped off urine sample to GP awaiting results
Previous Medical History
Nil No known drug allergies
On examination
Looks well
Alert and active
Responsive and aware of surroundings
Pink
Well hydrated - moist mucous membranes
- good skin turgor
Temperature 36.0 (post nurofen)
Pulse 150/minute
Respiratory rate 36/minute
Oxygen saturation 98%
Pupils equal and reactive to light and accommodation [i.e. responsive to stimuli]
Chest examination [normal]
Abdominal examination [normal]
Neurological examination - normal tone, power, co-ordination. Moving all 4 limbs spontaneously
ENT examination [both] ears, red, left more than right; throat congested. Tonsils not enlarged. Pink. Nose crusting around nostrils.
Impression Upper Respiratory Tract Infection
Plan
Reassure
Regular calpol and nurofen
Encourage oral fluids
Discharge home [this was at 05:55]
Advised to return if vomiting ? not tolerating any oral fluids, non-blanching rash etc
Parents happy with plan"
"unwell over weekend. Raised temperature, vomiting, seen A&E 4am today 'viral illness'. On examination, lethargic, miserable, no rash, temp 40 degree (post calpol). ENT NAD, heart sounds normal, chest clear, abdo[men] NAD, bowels open normally but not passed urine much discussed with paediatricians on call assess Harold Ward (Harlow Hospital) tonight"
"Seen this morning on Harold Ward - arrived by ambulance. Child no better now referred back to paediatricians. On arrival FB is drowsy, reluctant to open eyes but whingeing at slight movement. Observations recorded I am not happy with this child reluctant to allow mother to transfer. Although observations are within range except heart rate is raised [156]. Paed Registrar contacted and will come to see the child in A&E."
"Nil pallor nil rash good hydration. Passing urine. Consciousness level alert but lethargic signs of meningism nil Throat mildly congested signs of respiratory distress nil Abdomen normal shape/no masses or palpable organs Differential diagnosis fever of ?source. ? urinary tract infection ? upper respiratory tract infection"
| Sat 27th 1315 Triage |
Sat 27th 1340 Dr Aitcheson |
Sat 27th 1620 Dr van Terheyden |
Sat 27th 2229 Dr Danaswamy |
Sun 28th Triage call 1436 Nurse Joslin |
Sun 28th 2140 Dr Rana |
Mon 29th c 0400 Ambulance call |
Mon 29th 0545 Dr Rushd |
Mon 29th c2000 Dr Shivamurthy |
|
| General Condition- Alertness |
She's not herself at all but has been eating. Just been sleeping a lot |
She's not been herself you can see it in her eyes. She is not really eating properly and I am a bit worried about her. | She's been very not herself | 'No' to Drowsy etc Sleepy. 'No' to difficult to rouse. |
Comfortable | Staring into one space. Not responding to light or anything. Rolling her eyes. | Looks well. Alert and active. Aware. Well hydrated. | Lethargic. | |
| Temp | 40 deg. Given Calpol. Not gone down | It's been 40 and I have given her Calpol and it has gone down. | Temp for a week. Calpol not working. | Gone back up to 40 now. | Temp 40 deg | 36.8 deg | 40 deg | 36 deg | On and off 39-40 deg |
| Vomiting | - | - | - | 'Yes' to bile in vomit Last vomited 0500: yellow. |
- | x 3 over last few days | Vomiting 3 days. 2-3 times/day. No bile no blood in vomit. |
||
| Rash | Slight rash come up on her chest | Slight red rash come on her neck | - | Slight rash this AM. Disappeared. | No rash. | - | No | No | |
| Feeding | She's been eating | Not really eating properly | Loss of appetite. | - | Not eating | - | Not eating much solids | Not feeding well | |
| Drinking | - | - | - | Drinking juice. No milk given. | - | Drinking sips of water, juice etc | Not drinking well |
The Governing Law
" The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
A doctor 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 a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion."
The Key Issues Requiring My Resolution
As against the First Defendant
(i) whether Dr Rana elicited an adequate history from FB's parents. This entails a factual assessment and what the parents told Dr Rana whether unprompted, or in response to the questions Dr Rana in fact asked, or in response to the questions he ought to have asked.(ii) how FB presented at this consultation.
(iii) whether Dr Rana's note of the consultation was adequate.
(iv) whether Dr Rana's examination of FB was adequate.
(v) if and to the extent that breach of duty is established, whether FB can prove that it was causative of loss.
As against the Second Defendant
(i) whether Dr Rushd adequately considered all the information which was available to her (including, in particular the paramedic notes, which Dr Rushd told me had not been associated with the booklet she was given), and elicited an adequate history from FB's parents. As for the latter aspect, this too entails a factual assessment of what the parents told Dr Rushd whether unprompted, or in response to the questions Dr Rushd in fact asked, or in response to the questions she ought to have asked.(ii) how FB presented at this consultation.
(iii) whether Dr Rushd's examination of FB was adequate.
(iv) whether Dr Rushd's plan was adequate, in particular her judgment that FB could be sent home at that stage.
(v) (in the light of (i) above) whether, if a different history had been taken or elicited, Dr Rushd's decision-making would or should (per Bolitho v City and Hackney HA [1998] AC 232) have been different.
My Overall Approach
The Lay Evidence Called on behalf of FB
"By 8-9pm that evening [the Saturday] FB's condition had deteriorated further FB was not keeping fluid down and this also worried me because I was scared that she would dehydrate. FB used to guzzle her juice down and so the fact that she was not eating, drinking or keeping any fluids down really worried me."
"I am sure that the doctor did not pick up FB or examine her out of her chair. She did not wake up throughout the appointment."
"I think he examined her in her chair. I do not remember anything about him examining her nose or throat, or checking her body for a rash. I do not remember his finger in her mouth. He would have had to lift her clothing. FB was asleep throughout the examination. I don't remember having to calm her down. I don't really remember the examination, but I would her crying or being stressed. She was in a purple chair, on the floor. I don't remember him holding her."
"her eyes were rolling; her eyes weren't following my fingers and hands [and were] uncoordinated"
"her eyes were rolling I literally mean, you could see just the whites of her eyes, and then rolling back. I couldn't say how many times that happened [FB] was limp and lifeless"
"FB was drowsy and lethargic the whole time in A&E. I have a vivid memory of her sitting on her dad's lap and him trying to engage her with toys. She refused to engage and nothing cheered her up. She [was] not at all playful and active I have seen FB's A&E records for this period and I completely disagree with the description of FB's presentation. As indicated above at the time of being assessed by the A&E department FB was not with it at all. Under no circumstances could she be described as 'alert and active' as was put in her records. She was very lethargic and drowsy. I remained extremely worried about her because it was clearly not normal to have to spoon feed a baby with water as I had been doing, not that she was able to keep down the fluid in any event "
"FB was on my lap, and on Paul's lap. She allowed Dr Rushd to examine her. Me and Paul were passing [her] toys. We may have succeeded [in attracting FB's attention]. I do not remember."
And then in re-examination:
"She sat between us"
"At approximately 15:00 on 29th September I received a telephone call from WAC on my mobile at work I left work immediately and I went straight to WAC. As I arrived at WAC's house [she] was carrying FB in her arms and coming out of the front door. I was absolutely horrified when I saw the state of FB. For a split second I actually thought that FB was dead. She was completely floppy in WAC's arms. The only way that I can describe her is that she looked like an animal that had been hit by a car. I could not help it but I completely flipped out and said to WAC, 'Please God tell me that she has not been like this for the whole weekend?' WAC instantly broke down and starting sobbing 'I have tried mum, but no one listened' "
It was not WAC's evidence that FB's condition had been the same throughout that weekend. The general trajectory was one of deterioration, although there was fluctuation within that pattern. Further, WAC agreed in cross-examination that by the Monday evening FB was a lot worse, namely "totally unresponsive and lifeless".
The Evidence of the First Defendant
"In accordance with my usual practice in 2003, on arrival I would have first elicited a history from [WAC]. I would have asked how long FB had been unwell, whether she had been given any medication and if so how long ago. I would have asked whether she had been vomiting or whether there had been any episodes of diarrhoea. I would have asked whether she had been taking fluids and eating. I would have asked whether she had a cough or cold symptoms and whether she had been seen by her own GP, if so I would ask what advice had been given. Due to the passage of time I have no recollection of the history given to me.
Again, in accordance with my usual practice, I would then have examined FB taking into account the history provided to me. I would have examined her for signs of dehydration or sepsis, whether she was drowsy or floppy and whether she had a rash. If there had been any such signs I would have referred her to hospital."
"In my note completed on the in car computer following the consultation, I recorded that FB appeared comfortable. This description meant that I would have found that FB was not crying or distressed, was alert and her breathing was normal. One can see by observing a child whether they are tachypnoeic [breathing rapidly] and whether they are wheezy or are in distress. If none of these symptoms are seen, I will describe the child as comfortable."
"'Comfortable' could mean the whole appearance of the child; it could have included, alert, happy and not in distress. If a child is not alert, I would have written 'lethargic', 'not responding' or 'floppy'. If I had found anything like this, I would have written that in my note[s]. She was not lethargic or floppy if [on examination] her level of alertness was satisfactory, that [would not have been] a significant feature."
The Evidence of Dr Subia Rushd
"It is likely my examination therefore took at least 25 minutes and indeed it would be my usual practice to take 30-40 minutes for an examination of this sort."
In cross-examination Dr Rushd said that it was "preposterous" that this consultation could have been completed in 15 minutes, and reiterated that it would have taken at least 25 minutes. Like Dr Rana, Dr Rushd has no independent recollection of these events, and is compelled to draw inferences from her contemporaneous notes judged against her recollection of her standard practice at the time. Despite the inherent limitations in this reconstructive approach, I find as a fact that this consultation took approximately 25 minutes, and that it probably started at around 05:20.
"It is very unusual to write 'looks well'. I am very happy seeing this child in this environment. There is nothing worrying me."
As for "alert", this meant that the child was fully awake and looking around. "Active" denoted that the child was exhibiting spontaneous, appropriate movement. As for "responsive", Dr Rushd said this:
"If I've put 'responsive', she is responding; she is responding to me as a strange lady. She was not lethargic, floppy or drowsy. I can't remember if she cried or fought me; I've only written 'responsive'."
" you think meningitis, that is drummed into you from day 1. You therefore do an examination to see if there are signs of infection in any organ."
Dr Rushd's witness statement covers in more detail the "red flags" for possible meningitis. It is unnecessary for me to set these out, not least because it is common ground on the expert evidence that FB was not exhibiting any signs of meningitis at this stage.
"If the mother had said, the child's eyes were not tracking or were uncoordinated, I would have recorded it. That on its own is not a worrying sign. Rolling eyes can be voluntary. I would have taken it into consideration. But if her eyes were responding normally [on examination], that would not have altered the subsequent management."
"Q: If you had been told FB's eyes were rolling and not coordinating that, together with the rest of the history, should have led to a referral to paediatrics?
A: no."
Then, in answer to my questions, Dr Rushd said that if the history given was of the child's eyes rolling and being uncoordinated in the context of a high fever, she would have considered that this might have been a febrile convulsion. Then she said that if there had been any hint of a febrile convulsion, she would have referred the case to the paediatricians. She would not have spent time thinking about it.
"Q: If these things occurred [the eye-rolling etc.] either you did not ask the right questions, or the parents withheld the information?
A: I agree"
and slightly later:
"usually, if [there are] rolling eyes, that is scary. I wouldn't need to ask the right question; the parents would tell me first of all. In all my years in A&E and as a GP subsequently, you don't need to ask the question."
The Evidence from the Experts in Infectious Diseases
"[the experts] agree that we cannot place the time of onset of symptomatic meningitis much before 17:53 [on Monday 29th September], and for the purposes of further discussion, fix on 17:00 (acknowledging that this is arbitrary, but the best we can do) as the likely time of onset.
Accordingly, [the experts] agree that on the balance of probabilities the blood/brain barrier was breached 8-12 hours before around 17:00 that is, between 05:00 and 09:00 on 29th September.
[the experts] agree that such is the variation in progression of bloodstream infection of the BBB that it is not possible to identify on first principles the time of onset of bacteraemia by further back-extrapolation, but NN and SK do not alter their views, which are in agreement, as expressed in their reports, that on the balance of probabilities the start of the Claimant's bacteraemia was on 27th September. GF thinks that this is too early for subsequent penetration of the BBB in the morning of 29th September, and thinks the bacteraemia was more likely to have started overnight on the 28th 29th September. However, he agrees that we have little evidence on which to base on accurate time assessment."
"NN and SK agree (GF deferring) that the course and pace of the Claimant's infection on which we have agreed does not allow us to conclude on the balance of probabilities one way or the other as to her likely appearance at this time on examination possible conforming either to the Claimant's mother's or to Dr Rana's description."
"NN and GF
The conclusion that NN has drawn from this paper [Bachur et al see below] (with which GF agrees) is that children presenting with fever for which the cause is pneumococcal bacteraemia may appear not particularly unwell and that this was likely to have been so in the case of the Claimant. NN and GF both agree that the children in the Bachur paper who were not deemed ill enough to admit to hospital (noting just over 50% received either oral antibiotics or none) had evidence of significant systemic inflammation with median temp of 40 degree and median white cell count of 20,000 (significantly higher than that of the Claimant). NN and GF therefore both feel that the Bachur paper is relevant to this case.
SK
While SK agrees with the generalisation that feverish children with pneumococcal bacteraemia may not appear particularly unwell, he does not agree that the experience with cases reported by Bachur can be used to draw any helpful conclusion about the Claimant's likely condition when seen by Dr Rana or Dr Rushd."
"While I agree with the generalisation that children febrile with pneumococcal bacteraemia may not appear more than mildly unwell, I cannot agree with Dr Ninis that this would be so in the particular circumstances of FB's case, in the face of her acceptance that the bacteraemia was of so high a level as already, in her opinion, to have led to breach of the BBB. In my opinion, Bachur's paper is not an appropriate authority in the circumstances."
"NN and SK (GF deferring to them on clinical issues) recognise that children in such a condition [namely, at 05:45 on 29th September] may be awake, eyes open and looking around so to be described as 'alert' while nevertheless having other clear signs of severe infection. A description of 'responsive and aware of surroundings' as recorded by Dr Rushd accordingly does not assist in determining the Claimant's condition otherwise.
NN and SK agree that children who are unwell with a high level bacteraemia and signs of systemic inflammation commonly show abnormal 'state variation'. A child who cries and struggles when examination is attempted, but who calms down with her mother, has normal state variation, but one who remains unusually quiet or passive, or lies limply, pathetic even during unpleasant, unfamiliar manoeuvres such as medical examination, shows poor state variation. In context, poor state variation suggests a more serious infection.
NN and SK agree that a child with high level bacteraemia would on the balance of probabilities show abnormal state variation and appear more unwell than a child who merely has a simply URTI."
(1) at 21:40 on 28th September 2003, if the expert evidence were viewed on a standalone basis and isolated from the lay evidence, FB probably did not appear to be particularly unwell.(2) At 05:45 on 29th September 2003, if the expert evidence were viewed on a standalone basis and isolated from the lay evidence, FB showed "abnormal state variation", i.e. significant, albeit subtle behavioural changes or departures from her normal or expected behaviour in the given situation. She was unusually quiet and passive, and did not cry or actively remonstrate during the course of the examination.
Findings of Fact on FB's Presentation at 21:40 on 28th September and 05:45 on 29th September
The Expert Evidence relating to Breach of Duty: Dr Rana
The Expert Evidence relating to Breach of Duty: the Second Defendant
"(i) We agree that if the mother witnessed the convulsion this should have been elicited. IM and BL agree that it is possible that FB's mother did not mention the convulsion [NB. I am ignoring Dr Lloyd's opinion for these purposes. I have found that WAC did not mention the 'convulsion']
(ii) Fluid intake we have assumed that the question refers to total fluid intake (juice and water) and refers to an inadequate number of sips. We consider that the answer is 'yes' this fact should have been elicited if it were found that FB had been taking only a few sips of liquid. IM points out that this does not give an idea of the volume of fluid or over how long a period of time. The volume ingested could have been large with many sips being taken or if only a few, then there would have been insufficient volume intake. It should be pointed out that the child had passed urine thrice which would be reasonable for a 24 hour period IM agrees [that taking only small sips of water should have raised Dr Rushd's index of suspicion] if it is a small volume that was imbibed see above IM agree[s] that if it were found that Dr Rushd elicited a satisfactory history of adequate fluid intake, then no fluid challenge was necessary.
(iii) The experts consider that it would have been reasonable for FB to be sent home provided that: (a) Dr Rushd's account is preferred to that of WAC, (b) it were to be found that there was no convulsion, (c) it were to be found either that Dr Rushd (correctly) established satisfactory fluid intake or that FB took at least 90 mls of fluid without vomiting."
"Starting the history taking by asking open questions is OK. But if open questions were asked, why did not the family detail the presentation, which was elicited by the ambulance corps and the paramedics. This should have been ascertained; the failure of sub-standard history taking."
"It is quite common to see people present whenever [i.e. irrespective of the time of the day or night] with children with temperatures. It depends on parental anxiety, and on the quality of access to other services we understand why parents come, and to manage their anxiety Yes, there is a negotiation entailed in taking a history from parents. I have had to reprimand an SHO for asking, 'why have you come at this time?' asking the question, 'what is the problem?' is usually adequate to ascertain the precipitator "
FB's Case against the Second Defendant
"According to Dr Rushd, FB's mother did not reveal this. I have previously indicated that this may not have led to FB being investigated or admitted if it were due to a febrile convulsion with an obvious source of focus."
I agree that there are possible difficulties with this passage, in particular that Dr Maconochie does not address Dr Rushd's potential failure to elicit. The second half of this passage is no longer Dr Rushd's case, but Ms Whipple submitted that it should never have been supported by this expert.
My Conclusions on Breach of Duty: Dr Rana
My Conclusions on Breach of Duty: the Second Defendant
The First Defendant's Causation Argument
Conclusion