England and Wales High Court (Queen's Bench Division) Decisions

Rossiter & Paul Simon Rossiter v. Dr tinsley & Dr Jago [2001] EWHC QB 14 (15th February, 2001)

Case No: HQ9904002

IN THE HIGH COURT OF JUSTICE

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 15^th February 2001

B e f o r e :

THE HONOURABLE MR JUSTICE GOLDRING

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MR GOLDREIN QC and MR BISHOP (instructed by Pardoes for the Claimants)

MISS BOWRON (instructed by Le Brasseur J. Tickle for the 1^st Defendant)

MR HAVERS QC (instructed by Hempsons for the 2^nd Defendant)

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JUDGMENT: APPROVED BY THE COURT FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)

Mr Justice Goldring:

Introduction

1. On 30^th May 1989, the Second Claimant Paul Rossiter was born at 31 weeks 4 days' pregnancy. Between 6^th and 9^th June 1989 he suffered post-natal damage to the brain as a result of periventricular leukomalacia ("PVL"). The precise mechanism is not agreed and not material for present purposes. He now suffers from spastic quadriplegia. Had the pregnancy been prolonged to 34 weeks or more (to 15^th June 1989), he would probably not have suffered the brain damage. Paul's claim is in respect of the brain damage. The First Claimant, Fiona Rossiter, is his mother. Her claim is for pain suffering and psychiatric illness.
2. Negligence is alleged against two general practitioners. The First Defendant, Dr. Tilsley, was the locum standing in for Miss Rossiter's general practitioner at the time of her pregnancy. The Second Defendant, Dr. Jago, was a partner in the practice. He saw her on one occasion during her pregnancy.
3. Breach of duty and causation are the only issues presently to be considered.
4. The First Defendant shared the care of Miss Rossiter during her pregnancy with the local hospital. There were regular antenatal examinations. There was a record kept of each examination on a co-operation card. Miss Rossiter kept the card. Among those examinations was one on 17^th May 1989. At that time Miss Rossiter's blood pressure was raised. A finding of protein in the urine was recorded. Her fingers were stiff: she had oedema. These are signs of early onset pre-eclampsia, a serious condition which can affect pregnant women. It can threaten the life of the mother and the foetus. It occurs in 6% of all pregnancies. It is a known risk with a young mother in her first pregnancy. The condition is progressive. There is no cure other than delivery of the foetus. Having found signs of early onset pre-eclampsia, the First Defendant failed to take appropriate steps. He admits a breach of duty.
5. The Second Defendant saw Miss Rossiter on 19^th May 1989, either in the morning or the evening. She had called him out. She was suffering from abdominal pain. He examined Miss Rossiter. He did not see her co-operation card because Miss Rossiter thought she did not have it with her. He did not take her blood pressure or test her urine. There is a dispute about what she told him. He did not diagnose pre-eclampsia. He described his diagnosis as "pyelitis." Pyelitis, strictly so-called, is an infection of the kidney. It is serious in pregnancy. In this case, Dr. Jago has said he meant by the term no more than an ascending lower urinary tract infection. It seems to be agreed that at the time she did probably suffer from a urinary tract infection. He prescribed antibiotics. He denies a breach of duty on that visit.
6. Although she was seen on a number of occasions after 19^th May 1989, Miss Rossiter's pre-eclampsia was not diagnosed until 29^th May, when as an emergency she was admitted to hospital. The Second Claimant was born shortly thereafter.
7. It is the Claimants' case that the First Claimant should have been referred to hospital on 17^th or 19^th May 1989. The pregnancy would probably have been prolonged to on or about (or after) 15^th June 1989. It is the Defendants' case that had there been a referral on either of those dates, delivery would have taken place shortly thereafter or about when it did: on any view, well before 15^th June 1989.
8. I now turn to the evidence in more detail.
9. The consultation of 17^th May 1989 with the First Defendant, Dr. Tilsley
10. Doctor Tilsley was not a witness. The co-operation card sets out his findings. Among other things, it records a rise in Miss Rossiter's weight. It records "Prot[ein] ++" in the urine. Blood pressure is recorded as 140/82. In the column headed "oedema" it states "fingers stiff." In the notes she is described as "well."
11. Miss Rossiter in her statement said this.

"I said that I did not feel very well and that I had problems with my breathing, pains in my lower chest, the top of my stomach and back. He took my blood pressure which was 140/82. He checked my ....weight....He advised me that my blood pressure was high and that I had protein in my water and that I had put on weight. He told me to go home and put my feet up. He did not explain the significance of high blood pressure or protein in my water."

 

She confirmed that in evidence. She said she did not understand the significance of the high blood pressure, the protein in the water or the increase in weight.

12. 18^th May 1989: a urine sample is provided
13. On 18^th May Miss Rossiter provided a specimen of urine to the surgery for analysis. Dr. Tilsley had plainly requested it after the urine test. She said that on that day she began to feel worse. She did not sleep at all well during the night. She was at home all day.
14. The consultation of 19^th May 1989 with the Second Defendant, Dr. Jago
15. On 19^th May, at about 7am Miss Rossiter said her condition was such that her partner took her to a friend's house. He did not want to leave her alone when he went to telephone the doctor. He telephoned the medical centre. At 7 to 7.30am Dr. Jago came. He examined her. Her friends had gone to another room. She did not show him the co-operation card because she did not think she had it with her. In her statement she said this:

"He asked me what exactly was wrong so I explained that I had pain in my upper stomach and back. I was experiencing problems breathing and had pains in my chest. Because he did not have a co-operation card he asked me about my previous history. I told him that at my last visit my blood pressure was up and there was protein in my water. I was very careful to tell him everything that was wrong because I was quite worried that things were just not right. I also had swelling in my hands and legs but whilst it was very evident, I may not have mentioned that fact to Dr Jago at that visit. He quickly examined me but did not take my blood pressure or temperature, or test my water. He said that he thought that I had a water infection and he prescribed some medication for it. I explained to him that I felt desperately ill and that my instincts told me there was something seriously wrong"

 

16. In evidence she said at first that she told him of her weight gain. She finally accepted she might not have done. She also told him of the fact she had provided a urine sample to Dr. Tilsley for analysis. She said she explained to him that she had seen Dr. Tilsley 2 days before. She could not remember if she had told him about the swelling of her hands and feet. She said he examined her stomach. He did not take blood pressure or water. He told her she had a urinary infection. She said she had no problems urinating.
17. Dr Jago made his statement on 5^th October 1994. His recollection now of the consultation was not, he said, good. "I can't remember the nuts and bolts of the visit. I can remember the general atmosphere and outcome". He said that even in 1994 (by then some 5 years after the visit), he did not have a "blow by blow" recollection of events. His recollection was that the visit took place in the evening, not the morning. He said he had a vague recollection that the telephone call was mid-evening. He said it was certainly not a night visit (after 11pm). He described his reception as "low key". He spoke in the statement of a "definite lack of concern". He had a recollection of asking several people to leave the room so he could talk to and examine Miss Rossiter. His "vague memory" was that one person stayed.

"Miss Rossiter herself was not talkative. She was slightly withdrawn. It was not that she was frightened. She didn't seem gravely concerned about her predicament. In essence she had had a problem for a couple of days and it was not getting better and she was curious to know what I was going to do about it. She had a tummy ache and she was pregnant. This was effectively the history I was given. I asked how long she'd had the tummy ache and I think I was told that she had had it when she had seen another doctor 2 days before but it was not getting better. I asked to see the co-operation card and it was not available."

 

18. He accepted that there was an increased risk of complications in her pregnancy, having regard to her youth, the fact she was single, this was her first pregnancy and she had apparently recently come to the end of a relationship.
19. In the statement he said that when confronted with such a problem the GP wishes to ascertain first how the pregnancy is going generally and then to try to decide whether the pain is caused by the obstetric, the urinary or the alimentary systems.
20. She was able to lie down flat to be examined. In the statement he said this.

"She pointed to her side, I cannot now remember specifically whether she pointed to the left or right side. I then asked her how long she'd had the pains, something about its duration, its continuity and its pattern of onset. I cannot remember exactly what she told me but certainly the impression I got as a result of what she said was that it was urinary. I then asked her questions about how the pregnancy was going. I asked whether she had been well generally and I am sure that she told me she was. I asked a pattern of questions to exclude or at least sharply diminish the likelihood of an obstetric cause. I asked her whether the foetal movements were diminished or altered and whether there was any pain as I palpated the uterus. I am perfectly satisfied from what she told me there was not...I do not asked any specific questions to illicit the likelihood of pre-eclamptic toxaemia because so far as I know it is very unusual for this to present itself in this fashion. It was not on the list of things which I suspect when a woman calls me complaining of loin pain at 30 weeks of pregnancy. [It] is much more likely to be present with symptoms of headache or general malaise unless it is elicited by the doctor observing proteinuria, raised blood pressure or oedema. I am not sure whether I asked her whether she had had this pain before. Fairly early on I recognised this was pyelitis and whether it was the first such episode she had had or not, the course of action which I needed to take was equally clear..."

 

21. He said he could not be certain whether he took blood pressure. It is clear he did not make a note of it if he did. I am satisfied he did not take the blood pressure. He did not perform a simple urine test, although he had the equipment to do so. He could not remember whether he looked for oedema in her fingers. I am satisfied he did not and that she did not volunteer it.

"In essence my diagnosis of this case was that Miss Rossiter had a urinary infection, something which had to be treated there and then because pyelitis is a hazardous condition in pregnancy. Pre-eclampsia was not in my mind as a differential diagnosis...If I had noticed that the fingers were stiff or the blood pressure was slightly elevated or that there was proteinuria, it might have effected the follow up arrangements that I made for her, but it would not have effected the treatment I gave her then."

 

22. He said he would want to see the co-operation card to "get an overall picture," not to determine whether the pregnancy was proceeding normally. The card gave an impression of the patient. It was suggested to him that in its absence he had to be particularly careful to extract a full history. He did not think the absence made any difference. It was suggested that the best way of extracting a history would be to ask what the doctor told her. He said that would not have been the way he would have done it.
23. He said he still had a strong recollection of a fairly low-key reception. He could remember Miss Rossiter's level of concern quite clearly. She was not very communicative. She seemed almost disassociated. He described a difficulty in understanding what her anxieties were. An entry in the GP notes of 24^th March 1988, which describes Miss Rossiter as a "silent girl," supports this. Miss Rossiter did not accept Dr. Jago's account on this aspect.
24. Dr. Jago did not think she complained about pains other than abdominal. He said he had a vague recollection that she'd had the pain for a few days. He would certainly have asked her at some stage whether the pregnancy was proceeding all right. He said he would have asked her details of the pain: such things as when it started, whether it was localised or generalised, whether there was any effect on the bowels or vomiting, whether the pain got worse on moving or anything else made it better. He could not remember her indicating any problems. He would have found out that she had seen her doctor at the clinic 2 days before and have asked if everything was alright. He would have found out that she had provided the urine sample. He said that might not necessarily mean something was wrong. It simply meant that the doctor wanted to check something.
25. He said that he vaguely recollected her pointing to her left side although it might have been her right. He examined that part and the whole of the abdomen. He said that he was sure that he found some tenderness in the left renal angle, round the left side of the abdomen. He inferred that she had a new or fairly new illness, namely a urinary tract infection: something common in pregnancy. He thought it bore no relationship to the pregnancy. He said he stressed that she had to be seen early the following week.
26. Although he said he thought Miss Rossiter had an ascending urinary tract infection, he noted it as pyelitis. He said he did not mean by that she had pyelonenephritis, that is to say inflammation of the kidneys, which would have been a hazardous condition. He was using the word rather loosely. With hindsight he should have used a different word. He did not recall that she told him of a history of pyelitis (although she did have such a history).
27. He was asked about urinary symptoms which might have lead to the diagnosis of a urinary tract infection. He said "there must have been something to suggest urinary to me." She may well have had some tenderness over the bladder region as well as tenderness over the renal angle.
28. He said that he had never known pre-eclampsia to present with abdominal pain.
29. He was emphatic that she did not say that 2 days earlier her blood pressure was high and there was protein in the urine. If she had the whole consultation would have followed a different course. "It is inconceivable she told me about the blood pressure and the protein. I would have conducted the whole interview differently...I would be really surprised if she said something was really wrong." He would have asked her to strip off, taken her blood pressure, tried to get some urine and at the least have tried to get a mid-wife to call the next day.
30. He agreed that follow up was very important. He said he advised it. There was no note regarding it because the notes were written up several days later and were not intended to be a full clinical observation.
31. My conclusions as to events on 19^th May 1989
32. Neither of those present at the consultation, not surprisingly, has a clear recollection. Each was putting forward his or her best recollection. However on the balance of probability, I prefer Dr. Jago's account to Miss Rossiter's. I explain why below.
33. On balance I conclude the consultation was probably in the evening and the reception was low key, although I do not regard either finding of great importance.
34. It seems to me probable that Dr. Jago did in general terms ask how the pregnancy was going. A general practitioner would probably ask such a thing as a matter of course. He took a general history. Again, that seems to me a likely thing for the general practitioner in Dr. Jago's position to do. It seems to me improbable that Miss Rossiter told him of Dr. Tilsley's findings regarding blood pressure and protein in the urine. It also seems to me her complaints were limited to the abdominal pain. Had she spoken of the blood pressure and urine, I accept the consultation would, as Dr. Jago said, have followed a different course. He would have considered such findings in a pregnant woman of significance. He would have taken the blood pressure and tested the urine. He would have examined her more closely.
35. Dr. Tilsley did not explain the significance of his findings on 17^th May 1989 to Miss Rossiter. There was no particular reason therefore for her to mention them to Dr. Jago.
36. It does not seem to me to follow that because Dr. Jago learnt of provision of the urine sample, that would lead to the discovery of protein in the urine. Indeed, it might support a diagnosis of infection (see below).
37. There was no reason for Miss Rossiter to suggest there was anything wrong in as far as the pregnancy was concerned. Dr. Tilsley had not told her of the significance of his findings. Whatever she may have said to Dr. Tilsley lead to him describing her as "well." In such circumstances, it seems to me improbable Miss Rossiter complained to Dr. Jago in the terms and in the detail she suggests.
38. It seems to me likely that Dr. Jago is right when he says that Miss Rossiter was not communicative. It was difficult to obtain details from her. The note of 24^th March 1988 supports that.
39. Although only in evidence for the first time, did Dr. Jago speak of tenderness over the left renal angle, I am satisfied, on balance, he is correct in his recollection. That would be consistent with a urinary tract infection. It seems to me likely he would wish to be satisfied he did have grounds to diagnose such an infection. All the causation experts appear to accept that the abdominal pain was probably caused by urinary tract infection (see below).
40. I am satisfied that Dr. Jago regarded it as important that Miss Rossiter should see her general practitioner the next week. He told her that.
41. In short, when assessing the issue of Dr. Jago's breach of duty, I shall do so on the basis of his evidence, not Miss Rossiter's.
42. The expert evidence on breach of duty
43. Professor Drury was the Claimants' expert, Dr. Williams the Second Defendant's on this topic. Each gave evidence on the basis that on 17^th and 19^th May 1989 Miss Rossiter was suffering from pre-eclampsia. Professor Drury referred to the rise in blood pressure, the weight gain and the protein in the urine as "clear and unmistakeable signs of pre-eclamptic toxaemia." They assumed that if on 19^th May 1989 blood pressure had been measured and her urine tested for protein, signs of pre-eclampsia would have been found. Each appeared to assume that Miss Rossiter's physical complaints were symptoms of pre-eclampsia: that Dr. Jago's diagnosis (however expressed) of a lower urinary tract infection, was incorrect. The issue between them was whether Dr. Jago's failure to diagnose pre-eclampsia amounted to a breach of duty.
44. When Professor Taylor, the Claimant's main expert on causation gave evidence, he for the first time in this case suggested that the finding of "protein ++" in the urine was mainly due to contamination and not pre-eclampsia. Although he accepted that Miss Rossiter was suffering from pre-eclampsia on 19^th May 1989, it was at that time symptomless. The effect of his evidence was that Miss Rossiter could have been suffering from a urinary tract infection on 19^th May 1989: indeed, he stated that her symptoms up to and including 26^th May 1989 were caused not by pre-eclampsia, but by the worsening of that infection which went on to affect the kidneys. Although, as will become plain, I reject much of what Professor Taylor said, on one aspect his evidence was accepted by the Professor de Swiet, a causation witness on behalf of the Second Defendant. He agreed that (just) on the balance of probabilities the abdominal pain complained of on 19^th May 1989 was not connected with the pre-eclampsia. The Claimants' case on Dr. Jago's alleged breach of duty in failing to diagnose pre-eclampsia, is therefore in the context of a probable correct diagnosis of urinary tract infection (although not pyelitis strictly so-called). On the basis of my findings as far as the consultation was concerned, the Claimants' case comes to this. It was a breach of duty correctly to diagnose the symptom of which complaint was made without diagnosing something in respect of which there was no complaint. It is an unusual allegation.
45. Professor Drury said that the course of pre-eclampsia was variable. It could be slow with a gradual increase of symptoms or a rapid onset over a few days or even a few hours. Early diagnosis and treatment were regarded as matters of extreme urgency. Exclusion of the condition was one of the principal activities of all ante-natal care. That is why weighing expectant mothers, testing the urine for protein and measuring and recording the blood pressure are a mandatory part of any ante-natal examination. (He said too that urinary tract infection was common in women, particularly pregnant women).
46. When Dr Tilsley saw Miss Rossiter on 17^th May 1989 she had clear and unmistakable signs of pre-eclamptic toxaemia. Her blood pressure had risen to 140/82. She had gained weight. She had ++ of protein in the urine. She should have been referred urgently to hospital. Professor Drury was of course opining on the basis of true proteinuria, not contamination.
47. Professor Drury and Dr Williams agreed that if Miss Rossiter's account of the consultation on 19^th May 1989 was right, Dr Jago should have done more than he did. Among other things, blood pressure should have been taken and urine tested. Had that been done it is probable that Dr Jago would have found her blood pressure to be at least as raised as it was on 17^th May 1989 possibly higher. He would probably have found 2++ of protein in the urine (again on the basis of true proteinuria). Those findings in themselves should have led Dr. Jago to contact the hospital with a view to admitting Miss Rossiter.
48. In short, in such circumstances, there was a breach of duty by Dr. Jago. Given that I accept Dr. Jago's account of events of 19^th May 1989, no breach of duty in that respect arises.
49. I now consider the expert evidence on the basis of the facts as I have found them.
50. Professor Drury and Dr. Williams agreed, first, that the complaint of abdominal pain would not of itself indicate that Miss Rossiter might be suffering from pre-eclampsia and, second, such a complaint would not of itself indicate that an examination of the blood pressure should be made or that the urine should be checked for protein. They agreed that Dr. Jago should have examined Miss Rossiter's abdomen. They disagreed as to what else he should have done. Given that there were no other supporting symptoms or signs of urinary tract infection, Professor Drury's view was that the diagnosis was not secure enough to rely upon. More should have been done. There should have been a careful examination. Blood pressure and urine should have been tested. The pre-eclampsia would have been diagnosed. Dr. William's view, as originally expressed, was, that given the previous history of pyelitis, pain in the line of one ureter and the circumstances of the consultation, he would condone a diagnosis of possible urinary tract infection and the prescribing of an anti-biotic. It is agreed that Dr. Jago did not know of the history of pyelitis. However, that did not change Dr. Williams' view. He said he would have been put on alert for the possibility of a urine infection, once he learnt of the specimen have been requested by Dr. Tilsley. That was a factor he had not known of when expressing his original opinion. Professor Drury accepted that might have tended to confirm a urinary tract infection (although he also said he would wonder why a urine specimen had been taken: it might be for a number of things: sugar and protein would be two common ones).
51. Professor Drury and Dr. Williams said that Dr. Jago's examination should have been as thorough as if carried out at hospital. Professor Drury said that the absence of the co-operation card made it essential that he took a very careful history. Dr. Williams agreed that without the co-operation card, Dr Jago would have to enquire how the pregnancy was proceeding. He did not appear to dissent from Professor Drury's view that the "absence of the card made it essential that he took a very careful history".
52. Professor Drury said that if a competent history had been taken, Dr. Jago would have learnt of the raised blood pressure and the protein in the urine.
53. As to the security of the diagnosis of urinary tract infection, Professor Drury accepted that it was a possible cause of abdominal pain. It was unlikely that such an infection presented only with such pain. He had never experienced such a thing. With lower urinary tract infection there are usually other symptoms in addition to lower abdominal pain, such as problems with micturition and pain, tenderness in the lower abdomen, back, bladder area and constitutional disturbance. He agreed that if there was pain and tenderness over the renal angle that might be an indication of urinary tract infection. With an upper urinary tract infection involving the kidneys, he would have expected signs of kidney infection.
54. Professor Drury accepted that although it was extremely important to spot pre-eclampsia early, abdominal pain on its own was a very uncommon symptom of it (whether mild or moderate). In respect of such a patient, there could be many other complaints "at the top of the list." Pre-eclampsia would be "way down in small print at the bottom." Dr. Williams agreed.
55. Professor Drury did not accept that the need for a detailed examination only arose because in his view Dr. Jago should have elicited the raised blood pressure and protein in the urine from two days before. Basics steps would still have to be taken by Dr Jago to be reasonably secure that the cause of pain was a urinary tract infection. He accepted that if Dr. Jago's impression of a urinary problem was soundly based, it was not necessary for him to do more. The issue was whether it was soundly based. For such a diagnosis he would have expected such things as a history of fever, disturbance of micturition, pain in the area of the loin, perhaps extending along the line of the ureter and tenderness in the loin. Such symptoms were not present here. The diagnosis was not soundly based. Dr. Jago should have done more.
56. Dr. Williams did not agree. It was his view was that the picture fitted with a urinary tract infection rather than pre-eclampsia. Dr Jago was entitled to conclude the pain was caused by urinary tract infection. He had enough to be reasonably secure. Pre-eclampsia was "in very small print" in this case. It was not something a reasonably competent general practitioner would have thought of in the circumstances facing Dr. Jago.
57. Dr. Williams went further. He did not accept that even if the diagnosis of urinary tract infection was not reasonably secure, it was mandatory to test the blood pressure and the urine. The symptoms were purely abdominal pains. They did not point to pre-eclampsia. Doctor Jago knew that 48 hours previously Miss Rossiter had had antenatal care involving the taking of blood pressure and urine. That could have been reassured him. He did not think that on each visit it was necessary to carry out an antenatal examination. If there had been a complaint of chest pain blood pressure should have been taken.
58. I should add this. Professor Drury said that Miss Rossiter had not got clear-cut symptoms and signs of pyelonephritis (such as fever, rigors, loin tenderness and urinary frequency) and that there should have been a search for other causes of the abdominal pain. Given (and I unhesitatingly accept his evidence in this regard) that Dr. Jago meant by the expression pyelitis no more than an ascending urinary tract infection, that point does not seem to me to help one way or the other.
59. My conclusion on Dr. Jago's alleged breach of duty
60. It is probable that the abdominal pain had nothing to do with pre-eclampsia. That is the agreed expert evidence. If the pre-eclampsia should have been diagnosed, it would, in the context of the facts as I find them, be because a reasonably competent general practitioner should have found it when seeking the cause of the abdominal pain unconnected with it. As will become clear, I do not accept that.
61. I accept that when using the term pyelitis, Dr. Jago meant urinary tract infection. Mr. Goldrein QC, counsel for the Claimants, criticises him for its use. There is some justification in doing so. However, in the final analysis, the use of the term that does not make him guilty of a breach of duty in this case.
62. It seems to me improbable that Dr. Jago would have diagnosed urinary tract infection unless he had some basis for doing so. In my view, it is probable he did. There was the complaint of abdominal pain. He found pain and tenderness over the left renal angle. The fact a urine sample had been requested may reasonably have suggested an infection. It seems to me probable that from what Miss Rossiter said, Dr. Jago, formed the impression that the most likely cause was urinary.
63. When he originally expressed his views, Professor Drury assumed the Miss Rossiter's complaints related to pre-eclampsia. He did not know of Dr. Jago's evidence regarding tenderness over the left renal angle. When he gave evidence, Professor Taylor had not yet suggested the protein in the urine was probably contamination. Professor Drury did not know that Professor Taylor (and the Defendants' experts) would accept that the complaint of abdominal pain was unconnected with pre-eclampsia: but was, as Dr. Jago diagnosed, an ascending urinary tract infection. That too suggests the diagnosis was soundly based.
64. In short, I do not accept Professer Drury's evidence that the diagnosis of ascending urinary tract infection was not soundly based.
65. I accept, as Mr. Goldrein submits, first, pre-eclampsia is a very serious condition; second, that Miss Rossiter was in the high risk category for it and third, that the taking of blood pressure and the testing of urine are easy procedures. However, in this case, given what I have found Miss Rossiter told Dr. Jago, pre-eclampsia was in "very small print." In the event, the symptoms complained of had nothing to do with it.
66. I do not accept that a competent taking of the history would inevitably result in evidence of the raised blood pressure and protein in the urine being elicited. I am satisfied that Dr. Jago did seek to elicit a history of the pregnancy, as I have said. He asked the questions he has said he asked. Miss Rossiter was not an easy person from whom to obtain a detailed history. He obtained a sufficient history correctly to diagnose the complaints she was making.
67. Mr. Goldrein submits that the test I should apply, given the shared care, is that of an examination by a consultant. Mr. Havers QC, counsel for the Second Defendant, in my view correctly, submits that I have to view Dr. Jago's conduct through the eyes of a general practitioner who is sharing care with a consultant. If, as I find, the general practitioner has reasonably (and correctly) diagnosed urinary tract infection, it does not seem to me that his duty extends effectively to repeating the ante-natal tests which he knows were carried out two days before by a colleague. He would have no reason to do so. That is particularly so when he has told the patient (as I find Dr. Jago did) to go to the surgery the following week. I accept Dr. Williams' evidence in this regard.
68. In short, I conclude that no breach of duty by Dr. Jago has been proved.
69. Causation
70. Before going into the expert evidence on this topic, it is necessary to summarise Miss Rossiter's evidence as to what she did between 17^th May 1989 and her admission to hospital on 19^th May. For it is the Claimants' case that had she been in hospital during that time, the pregnancy would probably have been prolonged and the birth delayed until on or after 15^th June 1989.
71. She said she stayed at home most of the time. Sometimes she would go to the local public house and make some sandwiches. She would sit on a stool when doing so. She began to feel worse and worse. Finally she felt "simply dreadful."
72. It is also necessary to take account of the medical notes which track the deterioration of her condition.
73. On 26^th May 1989 she saw Dr. Tilsley again. The co-operation card records "...pain upper abdomen back worse to breathe for a week...Tender over back loins and upper thighs. Apyrexial. For MSU vomited..." The notes record "Recurrence of upper abdominal [radiating to] back pain worse with inspiration to-night. Vomiting X 1...haematuria x 1...Apyrexial. Tender from front and back upper chest to mid thigh...only taken 4 days amount of antibiotics..."
74. On 28^th May 1989 Dr. Budd saw Miss Rossiter. "Upper abdominal pain ++ last night...On examination: some epigastric tenderness. No renal tenderness. Unable to provide urine...Impression ? upper GI problems. Eg hiatus hernia..."
75. On 29^th May 1989 Dr. Maguire saw Miss Rossiter. The notes record "severe abdominal pain upper. BP 180/100. 4+ proteinuria and abdominal pain. Oedema to mid calves. Tender epigastric...fulminant pre-eclampsia..." Dr. Maguire referred her to hospital. She was admitted at 1.00 AM on 30^th May 1989. Paul was delivered at 3.51 AM.
76. The agreement between the paediatricians on causation
77. I have already summarised it. Paul's disabilities were caused by PVL. The most likely time for it to have developed was between 7 and 10 days after birth (6^th-9^th June 1989). The origin was probably post-natal. If the pregnancy had continued the intra-uterine environment would have worsened and become increasingly hostile. Fetal growth would eventually have been compromised. Had it been prolonged to 34 weeks (that is to say by 17 days, to about 15 June 1989) or more, he would not have developed PVL. Whether he would have developed an alternative form of brain injury which might be expected in a more mature baby or have developed no brain injury at all depends on the intra-uterine environment in the intervening weeks after the 31^st week (when he was born).
78. In short, unless the pregnancy would have been prolonged up to about 15^th June 1989, the claim in respect of breach of duty by either Defendant (except any claim which the First Claimant may make for pain and suffering caused to her by the delay in diagnosing pre-eclampsia) will in any event fail on causation.
79. What is clear from the expert evidence and the literature
80. I have been referred to and have read and take into account a number of texts drawn to my and the experts' attention. I have also heard the evidence of Professor Taylor, the Claimants' causation expert, and Miss Henson and Professor de Swiet, respectively the First and Second Defendant's experts on this topic. I found Professor Taylor a wholly unsatisfactory and unreliable witness. I am afraid I was driven to conclude that when he appreciated the difficulties on causation in the views he originally expressed, he changed his evidence. I found Miss Henson and Professor de Swiet reliable and convincing.
81. On the basis of all the expert evidence (including in this regard Professor Taylor) and the literature, a number things are reasonably clear.
82. First, as I have said, the only cure for pre-eclampsia is delivery.
83. Second, early onset proteinuric pre-eclampsia is progressive. It usually runs a rapid and fulminating course.
84. Third, if delivery will mean (as here) a pre-term baby, every effort will be made to try and prolong the pregnancy. The texts speak of such things as bed rest, the use of diuretics, and anti-hypertensive therapy. Diuretics were not used prophylactically in 1989. Bed rest, according to Miss Henson and Professor de Swiet, is now known not to have any effect. Anti-hypertensive therapy can lower blood pressure. However, it cannot prevent the disease progressing. The fact the mother is in hospital will mean that the birth can be delayed as long as may be safe.
85. Fourth, how long in a given case conservative management might prolong the pregnancy cannot be certain. The research suggests it can only be prolonged for a limited time. Professor Redman in Oxford suggested that conservative management of symptomless proteinuric pre-eclampsia presenting before 32 weeks extended the life of the pregnancy beyond the onset of proteinuria by an average of 15 days. If in this case therefore, there was "true" proteinuria (as opposed to contamination) on 17^th May 1989, that average would mean delivery on about 1^st June 1989. Research recently published by Hall (4/63) suggested that at 29 weeks' gestation the average days gained were 13: at 30, 11. Analysis of the Hall figures (and taking into account standard deviations) suggests that prolongation to 15^th June 1989 would statistically be highly unlikely. Professor Taylor accepted the normal distribution was 15 days. He said that in his experience, most would be concentrated between 8 and 21 days.
86. Fifth, liver involvement in the pre-eclamptic process is a sign of a worsening of the condition. Professor Taylor suggested he would see it as "an absolute indication" to deliver the foetus (although Professor de Swiet did not go so far). It is agreed there probably was such involvement by 28^th May 1989. In fact, as will become plain, I am satisfied there was such involvement by 26^th May 1989.
87. How then do the Claimants put the case? In fairness to him, Mr. Goldrein accepted that its basis had changed
88. Professor Taylor in his first report (24) said that had Miss Rossiter been admitted at any time between 17^th and 26^th May 1989 the pregnancy "could have been safely maintained for perhaps 2 to 3 weeks beyond the actual delivery date i.e. until at least 13^th June, and probably until 20^th June 1989. In his second report (36), he said "...I believe that this pregnancy would, on the balance of probabilities, have been prolonged for 2-3 weeks beyond 30/5/89 if Miss Rossiter had been admitted on or soon after 17/5/89."
89. As I understood his evidence, Professor Taylor was maintaining that opinion. However, he had to do that in the face of the research such as Redman and in the light of his own expressed experience as to the probable length of prolongation of the pregnancy once there was proteinuria. For the first time from the witness box, Professor Taylor suggested that on 17^th May 1989, the finding "protein++" in the urine was not true proteinuria. It was primarily a consequence of contamination. The "clock therefore did not begin to tick" from that date. He could not suggest when it did.
90. Simplified, Professor Taylor's argument ran as follows.
91. True proteinuria was not common with a blood pressure as low as 140/82.
92. The fact Dr Tilsley requested Miss Rossiter to provide a specimen the next day suggested he considered the protein in the urine to be a consequence of contamination. When analysed, the specimen was found to contain staphylococci and streptococci organisms. Such organisms do not commonly affect urine in the bladder. If they do, he would expect cystitis. There was none. They do inhabit the vagina. It commonly happens that when urine is passed into a container it is contaminated by the discharge of the vagina. That would account for the positive findings on the dipstick, which is highly sensitive.
93. If the protein in the urine on 17^th May was attributable to pre-eclampsia that would show in Paul's condition on birth on 30^th May 1989. Proteinuria is caused by protein leaking from the mother's kidney due to a vascular disorder in the kidney. The defect in the mother's kidney is reflected in a similar defect in the foetus. That would be reflected by the baby's condition at birth. The baby could be expected to be light for dates. The abnormality could also be expected to be shown in the CTG trace. Paul was not light for dates. There was no abnormality on the trace. That suggests there was no true proteinuria on 17^th May 1989. It suggests the pre-eclampsia was mild.
94. The symptoms complained of by Miss Rossiter on 17^th and 19^th May 1989 were nothing to do with pre-eclampsia. If they had been, she would probably have suffered a pre-eclamptic fit within 2 weeks. They were virtually the same as symptoms referred to in the notes of 11^th April 1989, when, among other things, Miss Rossiter complained of some retro-sternal aches and occasional epigastric tenderness. Blood pressure and urine were then normal. The symptoms could have been caused by some urinary tract infection. Those complaints were nothing to do with pre-eclampsia. Similar complaints on 17^th and 19^th May 1989 were not either.
95. Miss Rossiter did have pre-eclampsia on 17^th and 19^th May 1989. Oedema and raised blood pressure were signs of that. It was not severe and symptomless. She did not have true proteinuria on those dates, however. The clock did not therefore begin to tick on that day. It only began once there was true proteinuria.
96. In support of this hypothesis Professor Taylor relied on the examination of the 26^th May 1989 in which there is reference to haematuria (blood in the urine). Haematuria was not a sign of pre-eclampsia. Vomiting was a sign of pyelitis. Pain in the back was a symptom of it. Pain on inspiration was consistent with it. Pyelitis could worsen the pre-eclampsia. It could raise the blood pressure.
97. In short, the symptoms of which Miss Rossiter complained on 17^th and 19^th May 1989 were caused by urinary tract infection. By 26^th May 1989, the infection had ascended to the kidney and was pyelitis. Miss Rossiter had two concurrent serious conditions: pre-eclampsia and pyelitis. As I understand it, the pre-eclampsia was still symptomless on 26^th May 1989.
98. Liver involvement
99. Liver disease was a complication of "usually of severe pre-eclampsia." Such involvement would be an absolute indication to deliver the foetus. Epigastric tenderness could be a symptom of liver involvement. Here, however, such tenderness was present several weeks before, in April 1989. It was unconnected with the pre-eclampsia. Had it been, either then or on 17^th or 19^th May 1989, it would have progressed and resulted in severe pre-eclampsia sooner than happened. Moreover, had there been liver involvement, there would have been evidence of it at birth. Miss Rossiter had none of the symptoms or signs one would than expect. They would include general severe malaise, jaundice, generalised itching and most significantly blood clotting defects. He would have expected that to show in excessive bleeding on the caesarean section on 30^th May 1989. He would also have expected the consultants to have noticed that Miss Rossiter was unwell and remained unwell. They would then have carried out liver and renal function tests. The fact they did not feel the need to do either suggests there was no liver problem as far as she was concerned.
100. The symptoms and signs on 26^th May 1989 had nothing to do with liver involvement. They were caused by pyelitis. I have already set out his justification for that view. There was ultimately liver involvement however. The signs and symptoms of that were present on 28^th May 1989.
101. What Professor Taylor had said in his reports
102. In his report of 19^th October 2000 (23), Professor Taylor did mention contamination. He said "[proteinuria] is generally seen only when the blood pressure is significantly elevated. It is important to determine that the protein coming from the kidneys is not a contaminant of the urine and that it is not associated with infection." However, he did not suggest there was contamination. Moreover, speaking of 19^th May 1989, 26^th May 1989 and 28^th May 1989, he said this (23). "I think it is inconceivable that on these occasions, there would not have been further increases in her blood pressure, persistent proteinuria and increasing oedema. I base this belief not only on the findings of Dr McGuire and the doctors in Musgrove Park Hospital but on the fact that during this time she suffered from abdominal pain in particular epigastric pain and vomiting. Pain is a late indicator of pre-eclampsia and epigastric pain and vomiting is of particular significance because it suggests there is swelling of the liver."
103. He repeated similar comments in his second report (32). "Dr. de Swiet accepts that on the balance of probabilities, pre-eclampsia was clinically present on 17/5/89 and Miss Henson agrees that "pre-eclampsia had seriously to be considered." She goes on to say that "If blood pressure and urine had been checked again on 19/5/89, it is highly likely that the proteinuria would have been present and the blood pressure would have been elevated."...It seems therefore that there is no important disagreement between us on this matter. Miss Rossiter had pre-eclampsia on 17/5/89 and this should have been diagnosed at the latest by 19/5/89."
104. Although he sought to do so, it is difficult to reconcile those comments with what he said in the witness box.
105. Miss Henson's and Professor de Swiet's evidence
106. I will summarise. I shall not set out all the matters put in cross-examination, although I have considered all the many matters put by Mr. Goldrein. Their evidence was clear and consistent (although I bear in mind that Professor de Swiet was wrong in his report as to the age of the foetus).
107. Miss Henson said that the finding of two pluses of proteinuria on 17^th May 1989 was significant. It was due to early onset pre-eclampsia. This tends to progress more rapidly and be more severe. It was "incredibly" uncommon to find two pluses of protein as a consequence of contamination, although there might be traces of proteinuria as a result of contamination. The fact there were no similar findings as a result of contamination on the earlier urine tests taken by Miss Rossiter suggests two pluses could not be explained by contamination. Miss Henson said the bacteria found in the urine sample did not suggest a significant urinary tract infection.
108. Professor de Swiet agreed. He said that in his experience "++" proteinuria was almost never due to contamination.
109. Miss Henson and Professor de Swiet maintained their views when Mr. Goldrein drew their attention to comments in "Ten Teachers" (4/113), in which it states "...The test strips are very sensitive and indicate a degree of proteinuria which would not be detected by older methods" and Dewhurst (4/122), in which it states "False positive results may also result from contamination by vaginal discharge and from urinary tract infection."
110. Mr. Goldrein also draws my attention to Dewhurst (4/122) where he refers to "up to 25% false positive with a trace reaction and 6%...with one plus..." Neither applies in this case as far as the test on 17^th May 1989 is concerned.
111. Miss Henson was not surprised by the blood pressure finding of 140/82. Pre-eclampsia was a highly variable disease. Professor de Swiet said that Professor Taylor had a point. True proteinuria was uncommon with blood pressure as low as this. He too made the point that pre-eclampsia was a very variable disease. He also said had the blood pressure been taken at another time, it might have been higher. It is only a measurement at a particular moment.
112. They were both of the view that the symptoms on 26^th May 1989 were caused by pre-eclampsia and not by pyelitis. Miss Henson said that liver involvement was the probable explanation for the vomiting and upper abdominal pain. Professor de Swiet said that the back pain being worse on inspiration was consistent with liver tenderness. It was not consistent with a urinary tract infection. Neither had referred to liver involvement on 26^th May 1989 in their reports.
113. The fact Miss Rossiter had no temperature was not consistent with a serious infection. Neither was the absence of microbiological evidence of infection in a urine sample taken on that day.
114. The haematuria might have been a false finding (Miss Henson). Professor de Swiet said that it was not clear what was meant by haematuria. A finding of blood on a stick test would be very common. Blood visible to the naked eye would not be. Providing the urine was not frankly bloodstained, haematuria was not inconsistent with pre-eclampsia.
115. Mr. Goldrein submits that it is probable Miss Rossiter volunteered that there was blood in her urine. That is why there is a reference to "x 1." That is why there is no record of a dipstick test or of urine being examined microscopically. The haematuria is therefore be inconsistent with having been caused by pre-eclampsia.
116. Professor de Swiet rejected the list of complaints Professor Taylor said he would have expected had there been liver involvement. He had not seen jaundice in such a case since he was a student. He could not recall seeing someone itching because of pre-eclampsia. Low blood platelets would not need to be present in a case such as this. He was not surprised at the absence of renal tests post partum. Foetal size and the CTG were not relevant to liver involvement.
117. Mr. Goldrein suggested that the good foetal size and condition at birth suggested that this was not proteinuria on 17^th May 1989. He referred to a 1977 study (4/129). Miss Henson did not think proteinuria could be equated with foetal outcome. Professor de Swiet said that although there was a correlation between proteinuria and foetal condition, it was a poor one.
118. Miss Henson's view (37) was that "On the assumption that she had been admitted...on 19.5.89, her blood pressure would probably have been controlled by drugs, but I think it is unlikely that the pregnancy would have been significantly prolonged...once there is significant proteinuria delivery is usually needed in the next 2-3 weeks. Given that she had proteinuria on 17.5.89, it is highly likely that she would have needed delivering at around the time she was ultimately delivered."
119. Professor de Swiet thought that given the diagnosis of early onset pre-eclampsia (which is known to run a rapid fulminating course) on 17^th May 1989, it is likely delivery would have been earlier than it was.
120. My conclusions
121. I accept Miss Henson's and Professor de Swiet's evidence that the "protein++" was probably a sign of proteinuric pre-eclampsia. I accept contamination could account for a trace. I do not accept, as Professor Taylor contends, it probably accounts for a reading as high as this. Moreover, I find it surprising that if he thought such a contention had real merit, Professor Taylor first advanced it so late.
122. Although there may be a correlation between proteinuria and foetal size and condition, I find that is far from necessarily so. I accept Professor de Swiet in this regard.
123. I find therefore that Miss Rossiter had early onset proteinuric pre-eclampsia. I bear in mind the literature referred to by Professor Taylor as to the prolongation of a pregnancy after admission to hospital. I also bear in mind that when admitted on 29^th May 1989, hypotensive drugs did reduce Miss Rossiter's blood pressure. However, the evidence is clear. Professor Taylor did not really dissent from it. Prolongation from 17^th May 1989 to about 15 June 1989 is highly unlikely.
124. In this case, it does not stop there. In my view it is highly likely that there was liver involvement in the pre-eclampsia by 26^th May 1989. I find Professor Taylor's hypothesis that Miss Rossiter was probably suffering the symptoms of pyelitis on that date most unconvincing. First, it seems to me inherently unlikely that Miss Rossiter was suffering from two serious and concurrent complaints: pyelitis and pre-eclampsia. Second, she had no temperature. Nothing else suggested a serious infection. Third, the clinical picture (as well as Miss Rossiter's evidence) suggests a deteriorating condition which results in fulminant pre-eclampsia on 29^th May 1989. Fourth, I accept Miss Henson's and Professor de Swiet's evidence on this topic. It is more credible than Professor Taylor's.
125. In reaching my conclusion, I bear in mind Mr. Goldrein's comments about the haematuria. It seems to me impossible to resolve this issue. I also bear in mind the note of 11^th April 1989.
126. Once there is liver involvement, delivery is called for. Again, it seems to me most unlikely that had Miss Rossiter been admitted earlier, such involvement would have been avoided or that the pregnancy thereafter could have been prolonged to 15 June 1989.
127. In short, it seems to me most unlikely the pregnancy would have been prolonged to about 15^th June 1989. The overwhelming probability in my view is that it would have occurred at around the time it did, if not shortly before.
128. Although I have borne in mind in Mr. Goldrein's closing submissions as a whole, there is one matter I should in terms deal with. I hope I have correctly understood it.
129. Because of the Defendants' (or, as I find, First Defendant's) breach of duty in failing to refer Miss Rossiter sooner to hospital, there is, submits Mr. Goldrein, a lacuna in the evidence. Nothing is known as to her condition until she was admitted on 29^th May. The causation experts therefore have to conjecture as to what Miss Rossiter's condition would have been: in effect, as to the results of any tests, which would have been carried out, had the referral to hospital been made as it should have been. That lacuna in the evidence is not the Claimants' fault. It is the Defendants'. Although the burden of proof does not shift, he submits that in such circumstances, there should be a presumption against the Defendants as to the facts which would have been revealed had an earlier referral been made. He referred me to Naylor v Preston Health Authority [1987] 1 WLR 958 at 967, in which Sir John Donaldson MR referred to the "duty of candour resting on the professional man." He also referred me to Lee v South West Thames Regional Health Authority [1985] 1 WLR 845, in which Sir John Donaldson (at page 850G) referred to something "seriously wrong with the law if it cannot be ascertained on the plaintiff's behalf exactly what caused his brain damage."
130. Mr. Goldrein submits that here the duty to inform is breached, because Doctors Tilsley and Jago have deprived the Claimants of having the information created with which they could be informed.
131. My attention was also drawn to Wiszniewski v Central Manchester Health Authority [1996] 7 Med LR 249, in which Lord Justice Brooke, among other things, referred to the fact that "in certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue..."
132. I do not accept Mr. Goldrein's submissions in this regard. The authorities he mentions are on quite different facts to the present. Sir John Donaldson's comments (assuming they represent the law) are in quite a different context. In any case in which the alleged negligence amounts to an omission to do something which should have been done, there will by definition be such an absence of evidence. In such a case, the court has to infer on such evidence as there is what probably happened. No presumption arises.
133. Moreover, the evidence in this case is in my view clearer than in many such cases. For the reasons I have already set out, it seems to me highly unlikely that this pregnancy would have been prolonged to about 15^th June 1989. This is not therefore a situation where I am left simply saying that the Claimants have failed to prove the case on the balance of probabilities.
134. Conclusion
135. In the result, I find, first, the Second Defendant was not in breach of duty and second, and in any event, (except insofar as the First Claimant's claim may be based upon pain and suffering caused to her as a result of the First Defendant's admitted breach of duty) both claims fail on causation.