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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		6th July 2007

Mr. Justice Holland:

Introduction

1. By way of a Claim Form of the 19^th August 2004 the Claimant, Mr. Gareth Vance, claims damages against the Defendant, Dr. Graeme Taylor, alleging negligence in his conduct as a General Practitioner of a home visit consultation on the 21^st August 2001. The essential case is that had such consultation been conducted with reasonable care and skill the Defendant would have advised immediate admission to hospital; had he done so an hitherto undetected staphylococcus aureus infection ("Staph. A") could have been diagnosed and treated promptly and effectively with antibiotics. As it was (the case continues), he was left to recover at home from what was wrongly diagnosed as a back strain until further deterioration at the end of September 2001 brought about admission to hospital by which time it was too late to deal with the condition without intensive surgery, permanent damage to his left hip joint and much consequential loss.
2. In response the Defendant contends that he did exercise reasonable care and skill. True, he failed to identify any condition then justifying admission to hospital but no such condition developed until late in September.
3. Sensibly, the parties have been able to agree quantum in the total sum of £500,000. For me there is the liability issue. To this I turn.

The Claimant

4. The Claimant is now aged 34. At the material time he was in employment as a banker. He lived at a ground floor flat in Twickenham with his fiancée, now his wife (for sake of convenience, I shall consistently refer to her, without disrespect, as Mrs Vance). He was a registered patient of a local G.P. practice of which the Defendant was a partner. His general health was essentially good save that from time to time he experienced lower back pain, albeit not to any really notable degree, and he had an inherited foot condition such as called for occasional treatment by a chiropodist – a topic to which I will return later.

The Consultation and the Events Leading Up to It

5. On Friday, 17^th August 2001 Mr. Vance played some golf and started to experience aching in his lumbar region. This was still present the following day but it did not serve to inhibit him from going with his wife around the shops, in the course of which expedition he voluntarily assisted a woman to lift a piece of furniture into a parked vehicle. It is his present contention that this was relatively light in weight. At all events by Saturday evening he was, he says, in some pain.
6. On waking the following morning he found that he was so seized with pain, such being aggravated by any movement, as to be bed bound. From this point onwards and for a period in terms of weeks the history is one of continuous pain, often excruciating. Mrs Vance spoke by telephone to NHS Direct. The conversation with the representative generated a Call Report – effectively a questionnaire administered to Mrs Vance who answered (as she recollects) as prompted by her husband. This records the complaint as "cannot walk and sitting is painful" and adds "Tingling (right) foot". In the result it was recommended that an ambulance should be summoned to take Mr. Vance to the A & E Department of the Middlesex Hospital and this was done.
7. The arrival was at 4.15 p.m. and it generated entries on an Accident and Emergency Card. At an early stage blood pressure, pulse, respiratory function and temperature were respectively checked. Nothing abnormal was found. At 6.05 p.m. he was seen by one, Dr. Bell, who noted, so far as material, "niggling pain after playing golf 2/7 ago. Heavy lifting of cupboard into back seat of a car yesterday. Progressive back pain. Tingling right foot. Bladder and bowel normal. On examination: distressed; unable to move off back; … anal tone OK; no deficit of power, sensation or reflexes in limbs". His resultant diagnosis was 'acute back sprain' and he prescribed an immediate cocktail of drugs:

Codydramol – an analgesic.

Voltarol - an anti-inflammatory drug.

Diazepam – a relaxant.

Codeine (administered by intra muscular injection) – another analgesic.

8. By 8.0 p.m. Mr. Vance's condition was noted as "much better" and he was able to walk out of the hospital, albeit with difficulty and go home in a friend's car. Drugs for future use were prescribed: Diclofenac, codeine and diazepam. The final entry is "Nil bony tenderness".
9. Unhappily Mr. Vance's condition did not improve on the next day, Monday 20^th August. Having established himself in a leather covered recliner chair he found it too painful to move on or from it. The drugs did not seem to have any significant effect. By the evening a further problem developed: repetitive vomiting. There was speculation that the drugs were being rendered ineffective through being expelled by vomiting.
10. On Tuesday 21^st August, Mr. and Mrs Vance decided that some further medical advice was needed. On behalf of her husband she rang the Defendant's Surgery several times seeking to arrange a home visit given the static state of Mr. Vance. The receptionist made a note of her request in terms "Gareth Vance … lower muscular pain. Given painkillers A and E on Sunday, also being sick". Eventually at 4.16 p.m. she was able to have a conversation with the Defendant so that he was persuaded to make a home visit – and did.
11. By Tuesday there was a further feature of Mr. Vance's condition: he started to sweat profusely. He was dressed in T shirt and shorts - the sweating induced changes of shirt, one such being in preparation for the doctor's visit.
12. Before considering the evidence as to the resultant consultation that is central to the case, it is to be noted that there is no record at all of it that is now available. As to this, the Defendant contends that at the conclusion of the home visit he sat in his car making a note on what he describes as a Lloyd George card. On arriving back at the Surgery this card was handed to the receptionist for filing. As to its current whereabouts he has no explanation, but tells me the following. At the material time the surgery was in the throes of the necessarily prolonged process of computerising patient records. In the result (as proved to be the case) certain records relating to Mr. Vance would be on the computer, others could be documentary. In about March 2002 Mr. Vance ceased to be a patient of this practice and registered with another. In the result, such records as could then be found appertaining to him were passed to the new practice via a National Health Authority. It is accepted that the records as held by the new practice do not include the Lloyd George card – a rigorous search of his surgery has failed to find it. Overall, he contends there was a record and it has been lost.
13. Turning to the consultation those present, respectively Mr. and Mrs Vance and Dr. Taylor, each claim to have a reasonable recollection of the occasion and whilst there are factual disputes they are few in number. Throughout the visit Mr. Vance remained in his chair with Dr. Taylor standing beside him. Some history had already been obtained from Mrs Vance in the telephone conversation and it is common ground that he obtained a history of events from the Friday onwards by speaking to Mr. Vance.
14. Mr. Vance now recollects making forceful complaint of a high level of pain such as was inhibiting him from making any movement. He raised a concern as to the adequacy of the analgesic prescribed by the hospital and in that context drew attention to the recurrent vomiting: was the medication ineffective because it was being vomited up? Dr. Taylor accepts the foregoing – there was no doubt that Mr. Vance was in a lot of pain and was agitated about it – save that he has no recollection of a history of vomiting. His recollection is of a history of nausea. Finally, it is common ground that nothing was said to Dr. Taylor about sweating – at that stage Mr. Vance had not identified it as a matter of potential medical concern.
15. Turning to what then happened, there is again much common ground. Dr. Taylor was obviously concerned to exclude paraplegia and asked for movement of the legs. Mr. Vance protested that such was too painful but managed to 'twitch' his legs sufficiently to demonstrate that he retained below waist motor function. Says Mr. Vance, there was no physical examination at all and Dr. Taylor had said that he was in too much pain to be examined. Dr. Taylor contends that he touched Mr. Vance's feet so as to ensure that sense of touch was retained but agrees that otherwise there was no physical examination by reason of the level of pain that such would then have engendered. It is further common ground that there was no check of Mr. Vance's pulse and temperature.
16. Turning to the latter part of the consultation it is Dr. Taylor's case that he perceived a need for a change of medication: a stronger analgesic that did not induce nausea by way of side effect was needed. He accordingly prescribed co-proximal (a stronger analgesic with less by way of side effect) and Rofecoxib (an anti-inflammatory drug, again with less potential for gastro-intestinal side effect) by way of replacement for the Codeine and Diclofenac – the Diazepam prescription remained unaltered. It is his further case that he advised Mr. Vance that if his condition did improve so as to permit physical examination then there should be a further review by way of appointment in one to two weeks; if it did not improve then he should be contacted forthwith – albeit if it became an emergency situation he should call an ambulance to go back to hospital. Finally it is his case that in the course of a later conversation with Mrs Vance he advised her that there was no practicable prospect of a domiciliary visit by a NHS physiotherapist and that one could only be obtained by engaging one such in private practice.
17. For their part Mr. and Mrs Vance accept so much of this case as relates to the change of medication and again so much as relates to physiotherapy. They deny that there was the advice as to future conduct as specified.
18. Before departing from this crucial consultation there are the identified issues of fact for me to resolve. I do so by reference to the overall probabilities – the demeanour of Mr. and Mrs Vance and of Dr. Taylor merely served to satisfy me that they were seeking honestly to recount respective recollections and thus was of limited value to the fact finder. Thus, as to the issues:

a. I am satisfied that Dr. Taylor was told that Mr. Vance had been vomiting. Such had been a distressing part of the history and it was that which helped decide the Vances to seek help from the surgery, surmising that vomiting was nullifying the analgesic efficacy of the drugs. That message was conveyed to the receptionist (see her note) and the probabilities have to be that it was conveyed to Dr. Taylor.

b. I am satisfied that Dr. Taylor did touch Mr. Vance's feet as part of his concern to exclude paraplegia. Given that he could do this without exacerbating Mr. Vance's pain, and that a touch test was an obvious concomitant to testing motor function, the probabilities are overwhelmingly in his favour on this issue.

c. I am satisfied that Dr. Taylor did give advice as to future conduct and management. It would have been extraordinary if he had said nothing; it would have been even more extraordinary if Mr. and Mrs Vance had let him go without him saying something by way of prognosis and advice.

History To The End Of September 2001

19. Mr. Vance's medication having been exchanged by Dr. Taylor, the vomiting problem resolved within the next two days and, whether coincidentally or not, the sweating ceased to be so profuse although it remained, says Mr. Vance, a problem. For the rest, the pain continued without any significant diminution.
20. On the 24^th August there was the first home visit by Miss Elaine Sturman a physiotherapist in private practice, engaged following enquiries by Mrs Vance. She makes a much appreciated contribution. Following this first attendance, she paid daily visits throughout each week up to the end of September and – very helpfully – kept excellent contemporaneous notes recording findings, complaints and progress. Through such record an independently evidenced history emerges so as to found the following summary dealing with the position prevailing until the 26^th September:

a. Pain. Initially this was perceived as acute, centred upon L4 and 5 (the 4^th and 5^th lumbar vertebrae) worse on the right side and aggravated by coughing and sneezing. Thereafter there was steady improvement, albeit slow. By the 20^th September "Feels he has been able to increase mobility due to decrease in pain levels. Now more optimistic and confident". There was steady reliance on repeat prescriptions as authorised by the Defendant's practice.

b. Mobility. This was initially non-existent by reason of pain. With Miss Sturman's persistent treatment and encouragement there was steady if unspectacular progress. In this period the high water mark is noted on the 21^st September: he walks down the road for 50 yards and walks back again.

c. Side Effects. Vomiting had ceased but for a period there was a marked loss of appetite (5^th September: "Try to eat more. No appetite. Advice given"). This feature in its turn contributed to marked weight loss. So far as 'sweats' are concerned, whilst not as profuse as on the 21^st August such continued to be an unpleasant problem says Mr. Vance and his lay witnesses. Turn to Miss Sturman's notes and there is no record of any such save a possible reference in her entry of the 6^th September: "No clamminess, appetite up". A further side effect was episodic hallucination.

21. Miss Sturman penned an interim assessment of the position in a letter of the 18^th September to Dr. Badgett, the G.P. with whom Mr. Vance was registered and a partner of the Defendant:

"As you may know, your colleague Dr (Taylor) visited Mr Vance four weeks ago as he was suffering with acute low back pain and was unable to get out of his recliner chair.

When I examined him on 24^th August, he was still immobile with referred pain into his Rt buttock & groin and had clinical signs of a prolapsed lumbar disc. I treated him conservatively until he regained some mobility, but his acutely painful Rt leg prevented him from walking until recently and he is quite weak as a result.

I have had to see him daily, but hope to reduce this soon as he becomes more confident. Obviously he cannot return to work yet, as his day comprises of 12hrs sitting, which was no doubt the cause of his problem!

I hope Mr Vance will recover fully, but will inform you of any difficulties."

The content of the letter prompts an observation that at no stage during this period was Mr. Vance's ongoing condition referred to the Defendant – or for that matter to any other G.P. He was content, perhaps understandably, to leave his treatment wholly in the care of Miss Sturman and felt no need to make further complaint to a doctor.

Further History

22. On the 26^th September Miss Sturman noted an increase in the pain that Mr. Vance was experiencing. On the 27^th pain, hitherto centred upon the right side was being experienced in the left groin. She was concerned about this development and made direct contact with a Consultant Neurosurgeon, Mr. F. Johnston, so as to arrange admission to a private hospital, Parkside Hospital for an MRI scan. Her note of the 28^th September reads: "Speak to neurosurgeon re MRI and general health over past 3 days".
23. Whilst awaiting hospital admission Mr. Vance contacted the G.P. Practice and arranged for a home visit by the Defendant – the first such since the 21^st August. Again, there is no surviving note save for the entry in the Practice message book: "Prolapsed discs. Medication making him sick – V. bad pain". Because nothing specifically turned on this consultation recollections were not explored in oral evidence. Turning to the respective witness statements, Mr. Vance is disparaging of the Defendant's attitude, seemingly directed to resentment at the referral for an MRI scan without reference to him but concedes that he changed the prescribed medication 'which did seem to help a bit'. The Defendant says that his advice was for immediate admission to the West Middlesex Hospital only to be told that Mr. Vance had little faith in that institution and preferred to follow the route arranged by Miss Sturman.
24. On the 2^nd October Miss Sturman, possibly belatedly, did update the Defendant by way of a letter:

"Following my letter of 18^th September, Mr. Vance has made a gradual improvement and has increased his mobility, being able to walk down the road when pain levels allow.

Last week he suffered a return of groin pain, this time on the left, which restricted mobility again. This is settling with rest and spinal mobilisations, but physiotherapy remains conservative while there is evidence of an unstable disc.

His hypermobility suggests that his symptoms may be due to adverse neural tension, which requires a more dynamic approach to treatment. I therefore think it wise to exclude any remaining disc pathology and have suggested that he see a neurosurgeon. He has an appointment to see Mr Johnston at the Parkside Hospital on 4^th October under his private health insurance."

By the same post, she wrote to Mr. Johnston:

"Thank you for seeing Mr, Vance who suffered severe low back pain with referred pain into his right buttock and groin six weeks ago and was unable to get out of his recliner chair. His General Practitioner, Dr. Taylor controlled his pain and inflammation successfully and when I visited him on 24^th August was able to mobilise him gradually until he regained some mobility.

He had signs of a prolapsed lumbar disc, which gradually subsided and on good days he is able to walk several yards. However, recently he suffered left groin pain, which has again restricted his mobility and I think it is now time for further investigations.

At work his day comprises of 12hrs sitting, which was no doubt the cause of his problems and he is therefore unable to work at present."

25. Turning to subsequent events, it is apparent with hindsight that it was a pity that Mr. Vance opted for Parkside Hospital rather than the West Middlesex Hospital – so at all events I infer from the experts who gave evidence before me. Instead of undertaking a fresh appreciation of Mr. Vance's condition, Parkside assumed that it amounted to a disc problem and the MRI scan of the 4^th October was directed at the lumbar spine. This did indeed reveal degenerative changes most marked in L3/4 and some 'signal' change on the disc at L4/5. It was what the scan appeared to show at its lower margin that caused concern: per the consultant neuroradiologist "large cystic or necrotic mass in the right psoas extending to the right erector spinae with low signal vertebral bodies. I think the most likely diagnosis is an inflammatory lesion i.e. a psoas abscess. Malignancy is not ruled out." On the 7^th October he was admitted to this hospital.
26. There followed a fraught period for Mr. Vance whilst steps were taken to establish 'yea or nay' whether there was a malignancy. Happily, there was on the 21^st October a consultation with Professor George Griffin, a Consultant in Infectious Deceases. He took a full history and made a thorough examination, noting incidentally that Mr. Vance was in severe pain and "sweating ++". In the overall result he advised a further procedure to identify or exclude malignancy but plainly suspected a Staph A infection initially arising through a surmised entry by reason of a break in the skin during the chiropody of the 11^th August. Subsequently malignancy was ruled out and Staph A infection confirmed involving soft tissues and bone, being subjected to an intensive course of antibiotics. Additionally, a psoas abscess was identified.
27. It is not necessary for present purposes to pursue the subsequent history in detail. Despite the intensive administration of antibiotics the infection inflicted damage such as demanded a left hip resurfacing operation on the 14^th May 2002, a prolonged period off work and reconciliation to a future which encompasses prospective hip replacements.

The Consultation

28. In her final address Miss Gumbel QC for Mr. Vance submitted that logic demanded, first, a finding from me as to whether on the 21^st August 2001 her client was suffering from a Staph A infection. If he was then, second, there should be a finding as to whether Dr. Taylor's admitted failure to discern anything indicative of a condition calling for immediate hospital condition was negligent. I acknowledge her logic but with every respect this approach offers a potentially circuitous route to the nub of the case: Dr. Taylor's conduct of the consultation. Pragmaticism demands immediate attention to this topic; this I now give.
29. The essential Claimant's case appears succinctly in the helpful agreed statement of the independent experts on General Practice, Drs. Norfolk and Kearsley as cited by Miss Gumbel QC in her opening argument:

""Do the experts agree that if the Claimant did have:

a. severe low back pain.

b. had vomited.

c. had heavy perspiration and/or

d. systemic symptoms of infection;

then a responsible body of general practitioners would have

(i) Examined the Claimant by means of a physical examination; and/or

We agree yes.

(ii) Have admitted the Claimant to Hospital?

We agree yes."

Granted that there were no "systemic signs of infection", there was (it is contended) severe low back pain, vomiting and heavy perspiration. Given no physical examination and no admission to hospital, the consultation has been condemned (it is further contended) as reflecting a failure to exercise reasonable care and skill and thus negligent.

30. For his part, the Defendant told me that as a clinician he would be concerned to identify, if such presented, 'red flag signs' – signs (or symptoms) that betokened some consideration calling for further investigation. As to such signs I understood him to include those identified by the experts.
31. I turn to my judgment on this essential issue. I attach importance to the following:

a. The history calling for the Defendant's attention included a diagnosis reached in the Middlesex Hospital of a back strain with ensuing concern about the efficacy of the proscribed drugs and about the onset of vomiting. The Defendant was not invited to, as it were, start from scratch: the essential point becomes as to whether he could and should have picked up something that called into question the conclusion reached at the hospital as being wrong, or overtaken by some further development.

b. Turning to the three contributions identified by the experts as potentially inviting such a re-appraisal it is convenient initially to take each individually before seeing to what extent they can be jointly considered. I thus first address the complaint of very severe back pain. The history was of this having been present in bearable form on Friday and Saturday and in intense form since the Sunday morning, and seemingly not responding to the prescribed drugs. The presentation was of pain so severe as to inhibit physical examination. The Defendant's response amounted to prescribing what proved to be a better drug regime and, in effect, advising that an examination be delayed until the new drugs had the desired effect, alternatively that there be admission to hospital by way of a 999 call if circumstances came to demand it. Given that, as is common ground, he had elicited leg movement and, as is not common ground, established below waist sensitivity to touch, he had additionally ruled out current paraplegia. Pausing here, and taking pain as an isolated symptom, I can see nothing even suggestive of a failure to exercise reasonable care and skill.

c. As to vomiting (or nausea), the Defendant's case is that he did give consideration to this complaint, adjudging it to be a side effect of the previous drug regime. In the result his changed drug prescription sought to militate against any such side effect and he succeeded: the vomiting stopped not to be repeated. Arguably, then, he exercised entirely appropriate care and skill in this respect – a point underlined by later expert evidence to the effect that whereas vomiting could be occasioned by a Staph A infection it would only be in the later stages when the body was as it were, shutting down the stomach so as to conserve blood supply for head and heart. Whatever was the situation on the 21^st August it certainly was not that prevailing during such later stages of any infection. Overall the Defendant's case with respect to the vomiting is unanswerable and I so find.

d. As to profuse sweating, it is candidly conceded by Mr. Vance that he did not draw this symptom to the Defendant's attention, not appreciating that it could have any potential significance. The case therefore has to be that the appearance of Mr. Vance as seen in the course of the consultation had to be such as to raise sweating and the potential for an underlying fever as a consideration for clinical judgment. Since Mr. and Mrs Vance concede that prior to the anticipated attendance of the doctor there had been a change of T shirt (per Mrs Vance: "I got him ready"), there is no basis upon which I could now fairly found a case in negligence upon a failure to heed sweating as a sign of fever so as to challenge the diagnosis of back sprain arrived at in hospital. Granted that there is evidence of sweating as a subsequent feature of Mr. Vance's condition, it was not picked up as of significance on any further examination before that of Professor Griffin on the 21^st October by which date Mr. Vance was beyond doubt subject to Staph A infection. True, Miss Sturman made reference to 'clamminess' but notwithstanding almost daily physical contact with Mr. Vance sweating and fever never impinged upon her so as to cast any doubt upon her belief that she was treating Mr. Vance as for a prolapsed disc.

e. This leaves the presentation as a whole. Up to now I have taken each element in turn and it may be objected that to do so involves potential distortion. That said, one starts with pain – and finds that there is nothing to add for present purposes. It would have been wrong to put pain and vomiting together (save to condemn the existing drug regime) and there was no apparent sweating to complete the picture. The whole offers nothing additional to earlier analysis.

32. There then is my judgment on the essential issue. I would add that it does not cause me surprise. Notwithstanding current criticism of him by Mr. Vance there was no subsequent contemporaneous attempt to seek from the Defendant any review – nor from any other doctor – until the 1^st October. Miss Sturman offered no criticism and drew attention to his success with the drug regime. On the 1^st October he again made an appreciated alteration to the drug regime and any advice to be admitted to the West Middlesex Hospital was in all probability good and could with advantage have been followed. Exculpation with respect to the consultation of the 21^st August comes as no surprise. Finally it is to be observed that notwithstanding admission to Parkside Hospital on the 7^th October it was not until the 21^st October that infection became a preferred diagnosis by reason of the particular expertise of Professor Griffin.

The Causation Issue

33. A significant part of the evidence before me was devoted to an attempt to reconstruct the history of Mr. Vance's infection – had it so developed by the 21^st August as to furnish signs and symptoms of an infection such as could and should have impinged upon the Defendant to the advantage of Mr. Vance? Granted that this issue is, as I find, academic it is right that I should make my findings. As to this, I heard evidence from consultants in radiology, Drs Nigel Hoggard and Nicola Strickland; and from experts in infectious diseases, Professor David Lewis and Professor Sunil Shaunak. I also heard from the Chiropodist who treated Mr. Vance on the 11^th August, Miss Carol Caven. The first observation arising out of the expert evidence is that Mr. Vance's medical history was on any view unusual and did not readily fit any predictable pattern – a factor that must have importance in the context of the burden of proving that he was subject to infection on the 21^st August. As to further observations I turn to the Claimant's case.
34. This was primarily founded upon the expert opinion of Professor Lewis. He advised me as to the following:

a. The infection had to be introduced in to the body. Whereas in about 50% of the cases the circumstances of introduction remain unknown, he like Professor Griffin would regard some incision inadvertently inflicted in the course of the chiropody as a probable explanation, that is, as "the portal".

b. Once in the bloodstream however entered the subsequent course of infection so as to involve the psoas muscle in his opinion would have progressed in stages:

(1) Invasive stage. This could have lasted for some 10 to 14/21 days during which the patient might suffer variable fever, local swelling and mild pain;

(2) Supperative stage. This could cover the next 7 to 21 days. The patient could experience muscle tenderness and raised temperature;

(3) Systemic stage. The patient could experience fevers, sweats, nausea, headache, malaise and 'flu like symptoms'

(4) Chronic stage. This features anaemia, low albumen, intermittent fever and mimicking of malignancy.

c. Focussing upon the known history he postulates Mr. Vance's invasive stage starting with the chiropody on the 11^th August. By the 17^th and 18^th August the infection was moving towards the supperative stage and the already affected psoas muscle was becoming sensitive, hence the pain after golf and lifting. The invasive stage remained persisting on the 19^th, hence the presentation at West Middlesex Hospital, but as at the 21^st August the supperative stage had set in, bringing about a noticeable deterioration in terms of pain, sweats and nausea. He further postulates that stage persisting for the next ensuing week. Thereafter Mr. Vance entered a chronic stage featuring reduced back pain, intermittent fever and the onset of symptoms reflecting the development of the joint infection that eventually necessitated operative intervention.

d. As to the significance of this postulated history he opines: "Had Gareth Vance been admitted by the G.P. on 21^st August given the relatively short history, the appropriate management would have been to take blood and other cultures and start on injected antibiotics with anti-staphylococcal activity, which would have terminated the staphylococcal infection promptly". As it was, by October matters had been allowed to progress untreated so as to militate against prompt, full recovery.

35. In support of this opinion, Professor Lewis points to the essential continuity of signs and symptoms as from the 17^th August to the ultimate administration of antibiotics after the 21^st October; he points to the notes of Professor Griffin wherein a history starting with the chiropody was postulated; and he invokes the lay evidence to the effect that during September Mr. Vance looked and appeared ill, that he was in pain, restricted in movement and visibly losing weight. Consistent with this opinion is that of the Consultant Radiologist, Dr. Nigel Hoggard. Whilst accepting that Staph A infection can progress quickly he is struck by the extent of the infection as apparent from the MRI scan of the 4^th October: "This extent of disease is far easier to explain on the basis if infection that has been ongoing for several weeks."
36. Conscientious and careful as was Professor Lewis's analysis and evidence, there is immediate comment forthcoming from the evidence:

a. The Chiropodist, Miss Carol Caven, gave evidence. It was she who treated Mr. Vance on 11^th August and, unlike the Defendant, she had the advantage of a good contemporaneous note. This served to show that the occasion featured the use of a scalpel and did not, so she said, involve any break in the skin otherwise that would have been recorded.

b. The suggestion of an invasive stage from the 11^th August to the 20^th August does not sit easily with the evidence. At no stage was there fever or swelling. As for pain there was none such prior to the 17^th and by the 19^th so far from being mild it had suddenly become very severe indeed.

c. The symptom as picked up by NHS Direct and the West Middlesex Hospital of 'tingling right foot' had no apparent significance in terms of the invasive stage of an infection – it did have potential significance in the context of a spinal condition.

d. The suggestion of successive supperative and chronic stages is susceptible to particular comment. First, the information provided to Professor Lewis does not seem to have included a history of improvement with respect to vomiting (and hence nausea) following upon the change of prescription. Second, and more unfortunately, he was not provided as a preliminary to providing a report with Miss Sturman's record. Thus, before postulating an infection and its course he had no opportunity to compare anticipated symptoms with those contemporaneously noted. Further, and very importantly he did not see her record of the condition of Mr. Vance on and after the 27^th September – that is, that which led her to refer him for an MRI scan and that which led him to have the second home visit by the Defendant, namely an obvious increase in pain.

37. So much for comment. There are of course strongly alternative views as to inferences from the radiology from Dr. Nicola Strickland, and as to the inception and course of the infection as finally identified on the 21^st October by Professor Shaunak. I could now summarise their views and seek to make a judgment as between the respective cases on this important but secondary issue. In the event, I think that I can more fairly deal with the issue as follows. One thing that is underlined by Professor Shaunak, without significant dispute, is just how unusual was Mr. Vance's history, presentation and ultimate condition – the more so if the history was as postulated by Professor Lewis, that is, with the usually highly virulent, fast developing Staph A infection entering after several weeks in to a chronic stage (a concept in itself outwith Professor Shaunak's personal experience). It is thus this ultra unusual scenario that becomes the Claimant's case, that which he seeks to prove on balance of probabilities. In such circumstances, I could only find that scenario so proved if really cogent evidence served, in effect, to defy the medical probabilities. It is, alas, obvious that such cogent evidence does not exist. Leave aside the strong contrary opinions of Dr. Strickland and Professor Shaunak, I could only find the Claimant's case on this issue proved if I could convincingly discount or skirt the problems noted in paragraph 35 above – and I cannot.
38. It is my short judgment that on this further issue the Claimant has failed to prove his case.

Conclusion

39. With findings against him on the main issue and on this further issue, I find liability in favour of the Defendant and against the Claimant. Of course, I am personally sorry to dash the hopes of Mr. and Mrs Vance, just as I would have been had I had to find against the Defendant. That said, I do underline the bold and somewhat surprising nature of this claim. Thus, as is common ground medically, Mr. Vance fell victim to a virulent infection with features in terms of history, presentation and extent that were unusual almost to the point of being unique. To seek to conjure a claim in negligence out of these circumstances is in itself, bold and even surprising. Then to advance it against just one individual arguably minor contributor to the history is even more surprising, not least when it is acknowledged that to a significant degree his advice was good. It was never going to be an obvious case for compensation. This leads to a final comment: there may well be good reasons (I did not raise the point so as to receive submissions) but at first blush it is a pity that liability was not the subject of a preliminary issue so as to obviate needless expenditure on costs.
40. I look forward to receiving an agreed order.