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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CENTRAL OFFICE

		Cambridge County Court
		2 October 2009

A. Introduction
1. This is the judgment of the Court on a preliminary issue in this medical negligence action, namely whether the First Defendant Dr Sarker (a general practitioner) was in breach of duty towards the Claimant (at that time a very young baby) in relation to an out-of-hours visit made to her at her home in south London in the afternoon of Sunday 2 November 1997. The position of the Second and Third Defendants, who are not directly concerned with this part of the case, will appear from the chronology below.
B. Chronology of Undisputed Facts
2. Mr Double Sumbulu and Ms Rose Omeyaka are from Zaire. They entered into a customary marriage in that country, and came to the UK in about 1995; they were married here by civil ceremony in 2000. The Claimant Ursule is their first child, though Ms Omeyaka had previously suffered two miscarriages. For convenience and clarity I shall refer to them simply as "the father", "the mother" and "the baby".
3. The baby was born on 6 September 1997 at St George's Hospital, Tooting. Significantly, she was about 10 weeks premature (29 weeks' gestation) and weighed only 1.3 kg at birth. She was kept in the Hospital for 37 days and discharged home in good health on 12 October 1997. While at home, mother and baby received the usual regular visits from the Health Visitor and from the Neonatal Community Nurse, Sister Alexander.
4. On the afternoon of Friday 31 October 1997, Sister Alexander visited the baby at home and wrote a note for the family to take to their GP. It stated, so far as material:

"Today, parents reported started coughing yesterday, more sleepy and not very interested in feeding - small amount/regularly. Resp. 40 regular. Slight intercostal recession. Coughing ++; seems to have difficulty in bringing up mucus (getting caught in her throat). Quite snuffly. Dad had the flu early this week. Temp. normal. Wt [up] 2.560 kg."

5. Later that afternoon the mother and father took the baby to their GP surgery, and there saw the Third Defendant, Dr De Wilde. His notes (with conventional abbreviations expanded) record:

"8 weeks premature. Delivery week 29 of 40.

Snuffly and off feed for one day.

Takes a bit more than 50% of feeds.

On examination [nappy] not dry.

Some intercostal and subcostal recession. Respiratory rate 20.

Chest clear; infection upper respiratory tract, possibly bronchiolitis.

Advised [parents] re frequent feeds, Na Cl drops.

See SOS [i.e. presumably, advice on getting emergency help]"

As these notes indicate, Dr De Wilde did not consider immediate hospitalisation necessary; he prescribed salt nasal drops and sent the family home with advice.

(His decisions on that occasion are also the subject of these proceedings, which he is defending; nothing in this Judgment should be taken as reflecting upon him, but the visit to him is relevant as background to the claim against the First Defendant Dr Sarker.)

6. On Saturday 1 November 1997, the baby did not improve; the father and mother made unsuccessful attempts to obtain medical help.
7. On Sunday 2 November 1997, the parents continued their attempts to obtain medical help. (At this time they were relative newcomers to this country and their English, especially the mother's, was not very good. They had a 15-year-old nephew, Aristide, living nearby whose English was better, and he assisted them that day when they asked.) Eventually they made contact with Healthcall, the organisation which provided out-of-hours cover to their GP practice. Transcripts of Healthcall's recordings of their telephone calls were in evidence before me.
8. At 1337 that day, the father spoke to a Healthcall operator. He gave them the baby's name and date of birth, but did not say that she had been premature. He described her condition as follows:

"She is not very good. This morning the temperature is very low, 34 something. She is not eating, and coughing too much." When asked by the operator, he agreed that she was vomiting. The operator told him that a doctor would telephone him.

9. At 1347 Dr Iyer, who was dealing with telephone advice for Healthcall, rang the family. He first spoke to the father, who told him that Ursule was coming on for 2 months (but again did not mention prematurity), that she was coughing too much and didn't want to take any food, and that her temperature was very low, 33 degrees. The father then passed the phone to Aristide, who told Dr Iyer that she had vomited about 6 times or more, that she did not have diarrhoea but that she was "coughing hard, you know when you vomit yeah, hard. She is vomiting, I mean coughing, every time." Having heard this, Dr Iyer agreed to send a doctor to call.
10. The Healthcall file contains a note, presumably written by Dr Iyer, recording the complaint as follows: "[down] temperature 34 odd. Not eating, coughing, vomiting." At 1401, Healthcall passed the message on to its home visit service, which originally allocated it to another doctor, but then at 1507 reallocated it to Dr Sarker (who was in a radio car with a driver and medical kit.) Dr Sarker recorded the call as having been passed to him at 1510, and the telephone information received by him as a two-month-old female baby with "low temperature, not eating, and vomiting". (His initial note does not mention coughing.)
11. At 1541(or possibly 1543, his note is unclear but I do not consider the precise time to be important) Dr Sarker arrived at the family's home. There he saw the parents, the baby, and Aristide. What then happened is at the heart of the factual dispute in this case, dealt with below, but his very significant clinical note of the visit, made on a pro-forma while present and a copy given to the parents before he left at 1553, is as follows (again with conventional abbreviations expanded) :

"HISTORY AND EXAMINATION -

Vomited 6 times. No diarrhoea.

Coughing. Cold. Congested nose.

Enlarged abdomen [and] Tympanitic.

Bowel Sounds present.

Not constipated. Normal motions today.

TEMPERATURE - 36 degrees

PULSE - 100

DIAGNOSIS - Acute viral infection

TREATMENT/DISPOSAL - Syr Erytrhropaed [antibiotic] 60mg in 2.5 mls three times a day, 100 mls

PATIENT TO CALL IF NECESSARY –ticked/Yes".

(Dr Sarker had no more contact with the baby, or with this matter, until he was notified of the claim by Healthcall on 10 December 1999.)

12. After Dr Sarker's departure at 1553, the father took the antibiotic prescription to the chemists and administered a dose to the baby, which vomited it up. About an hour later, the baby's condition got worse, and the parents began a long and initially unsuccessful attempt to get further help. Eventually at 0058 on the morning of Monday 3 November 1997 an ambulance arrived. The ambulance crew recorded the complaint as "Vomiting, not feeding properly since yesterday"; they did not record any coughing or other respiratory symptoms, and marked their standard form as "Airway clear, breathing present, buccal mucosa pink [as opposed to cyanosed, a sign of lack of oxygen]".
13. Tragically, even after the ambulance arrived at the casualty department of St George's at 0123 the baby did not receive immediate and appropriate treatment. She was examined by a triage nurse, who noted the chief complaint as "vomiting", described the child as "alert and feeding", and placed her in a low category of urgency. She was not seen further until about 0250, when she suffered cardiac/respiratory arrest while being assessed by a staff nurse. It is not necessary for the purposes of this judgment to go further into the details of what followed and why, except to record that there followed really serious brain damage, leading to 4-limb cerebral palsy with scoliosis, microcephaly, poor vision, no mobility, little communication. She will require permanent 24-hour care. The effect on her and her parents is beyond further words.
14. The hospital trust (the Second Defendant) has admitted breach of duty in relation to the triage, though other matters remain outstanding. Two such matters are whether the two GPs ought each to have referred the baby immediately to hospital rather than treating her at home; had she been sent to hospital earlier and/or at a doctor's direction (the argument runs) then it is likely that whatever inadequacies there might have been at the hospital she would nevertheless have received effective treatment in time to prevent the arrest and its consequences. So the issues around Dr Sarker's visit (but not its consequences, if any) come before me for decision.
C. The Issues For Determination
15. The Particulars of Negligence against Dr Sarker, as set out in the Amended Particulars of Claim (7 August 2008) are as follows:

"Failing, on the afternoon of Sunday 2 November 1997:

i. to take any or any adequate history;

ii. to make any or any adequate examination or assessment, and in particular properly to examine C's [the baby's] chest and respiration for signs of respiratory difficulty or distress;

iii. to consider the possible differential diagnoses;

iv. to diagnose acute respiratory infection;

v. to recognise the signs of respiratory difficulty and distress that C presented;

vi. to refer the Claimant immediately to hospital.

Since, as explained below, Dr Sarker was acting in person by the time a Defence was due, his "Answer to Particulars of Claim" is not in the regular form, but his case can fairly be summarised as a complete denial of those allegations and the positive assertion that his conduct and decisions that afternoon complied fully with the standards required of a competent GP in his situation.

16. As often happens, the issues at trial took a rather different form from those pleaded. It was accepted by Mr Spencer QC, counsel for the Claimant, that on a preliminary issue against Dr Sarker alone it would not be possible to establish conclusively what particular illness the baby had in fact been suffering from when Dr Sarker saw her, let alone what had caused the baby's eventual crisis at the Hospital. The data relevant to that inquiry are largely in the hands of the Hospital and would demand a much more wide-ranging investigation. Specifically, he accepted that it would not be open for me to find as a fact that the baby had been suffering from bronchiolitis when Dr Sarker saw her (that being the disease which Dr De Wilde had suspected on the Friday before, and which the Hospital doctors diagnosed subsequently). In turn, this shuts off a line of attack based on the assumption that if the baby did have bronchiolitis on the Sunday then she must have been exhibiting certain specific symptoms of that condition, which (it would follow) Dr Sarker must have culpably overlooked. In these circumstances, Particulars (iv) and (v) above were not pursued.
17. Instead, the case against Dr Sarker centred on the following broad propositions, which I consider fall fairly within the remaining pleaded case:

a. he had fallen below the standard to be expected from a GP of ordinary competence, in that he had failed to take a proper history of the baby's general medical background, and in particular had not discovered that she had been born prematurely, had a "corrected age" of only 38 weeks (from conception) when he saw her, and had only been released from the hospital 3 weeks before;

b. similarly, he had failed to take a proper history of the baby's present illness, and in particular was not aware that she had been coughing for as long as 3 days before he saw her, that she had been seen by her GP 2 days before, and that her condition had materially worsened over that period in that she was now vomiting as well;

c. a GP of ordinary competence in Dr Sarker's situation who had become aware of the information at (a) and (b) above, and then examined the baby with that information in mind, would certainly have referred her immediately to hospital, not so much because the GP would have been able to make an immediate diagnosis of a specific dangerous condition, but rather because such a baby was plainly at real risk of developing dangerous symptoms to which only a hospital could respond with adequate speed and facilities;

d. or at the very least, such a GP would have taken proper steps to ensure that the baby would be admitted to hospital and treated as a matter of special urgency if her condition did not rapidly improve.

Dr Sarker denied those allegations, maintaining (in summary) that he did take a sufficient history and carry out a sufficient examination, that in the light of those matters there was no reason to send the baby to hospital at that time, and that he did give the parents proper advice on how to proceed if the baby's condition worsened.

It was on those allegations, which turn partly on findings of fact as to what information was actually given to Dr Sarker, or was available to him if sought, and partly on the views of the experts as to good clinical practice, that the trial concentrated.

D. The Parties and Witnesses
18. The father and mother both gave oral evidence before me as to the events set out in the Chronology, and in particular as to Dr Sarker's visit. In considering what weight to give to that evidence, it is necessary for me to bear in mind not only that this was a brief encounter 12 years ago, but also and very importantly that at that time neither of the parents spoke good English, so that the quality of their comprehension and recollection of the conversation with Dr Sarker (as opposed to his actions) is necessarily limited. Also, the GP's visit was shortly followed by traumatic events which have dominated their lives since then. In these circumstances, and given some plain inconsistencies between the father's oral evidence and his previous accounts, Mr Spencer very frankly accepted that it would not be right for me to place too much reliance on his uncorroborated oral evidence. He did however maintain, and I accept, that the mother was clearly a conscientious and devoted parent who, whatever her language problems at the time, well understood her duties towards her baby's health, and that her evidence as to what the doctor had done and how she had behaved towards him (in particular in respect of the "Red Book", considered below) was likely to be reliable.
19. Dr Sarker is a very experienced GP. He graduated from Rajshahi University, Bangladesh, in 1965, and worked as a general duty medical officer there and in East Africa before coming to the UK in 1977. For about ten years he worked in hospitals here, dealing with acute emergencies among other matters. In 1990 he became a full-time NHS GP, a position he continues to hold. (Among other qualifications, he is on the Child Health Surveillance list.) Between 1992 and 2003, he also worked for Healthcall as a deputising doctor, providing out-of-hours cover. At the time of this incident he had some 30 years of relevant experience. (It was not suggested before me that there is anything in his background or record to cast doubt on his general competence as a family doctor; but even a very good doctor can fall below his own high standards on one occasion in a long career, and that is the allegation here.)
20. Dr Sarker was a member of the Medical Protection Society (MPS) at the relevant time. Regrettably he fell out with them in relation to their advice, and he now represents himself (with the help of a colleague, Dr Lettington, whom I permitted to assist him in respect of cross-examination and submissions). I am glad to note that the MPS continues to cover him in respect of damages (if due) though not in relation to legal costs. One consequence of Dr Sarker's representing himself was that he ill-advisedly and despite a proper warning disclosed his privileged correspondence with the MPS, including a letter dated 5 March 2008 which contained what was on its face a potentially damaging admission as to his duty had he known of the baby's prematurity. In fairness to him, I decided not to hold him to any such admission, which ought not to have come to the other side's attention, but to test his case on its merits. (At this point I should compliment Mr Spencer QC for his skill and patience in discharging his duties of fairness towards a litigant in person and the Court while at the same time ably representing his extremely vulnerable client.)
21. In relation to the reliability of Dr Sarker's evidence before me, he frankly accepted that in the two years between this visit and the first notice of any claim, he must have seen hundreds of patients in similar circumstances, and that his recollection of the particular visit was now largely based on study of his contemporary notes and knowledge of his own standard practices when called to a sick baby. There was of course nothing special or unusual about this particular call so far as he was concerned, since he was not informed of the crisis that followed. There were material inconsistencies between his various versions of events. I am driven to the conclusion that, though he did not intend to mislead the Court, he has spent so long worrying about this case and discussing it with colleagues that it is now genuinely difficult for him to distinguish between what he actually remembers about that visit and what he believes he ought to have done or must have done.
22. In short, when determining on the balance of probabilities what did and did not happen during the visit, I shall adopt the approach recommended by Goff LJ in The Ocean Frost [1985] 1 Lloyds Rep 1 at 57: "When considering the credibility of witnesses, always test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities". In this case, the documents and the inferences arising from them are a much clearer guide than either side's oral evidence on disputed matters.
23. The only other oral evidence was that of the experts on general practice, Dr Rahman for Dr Sarker, and Dr Ingram for the Claimant. Dr Rahman is a very experienced GP, having practised medicine in this country for 40 years, 30 of them in general practice; he is also a well-respected figure in the wider community, having been among other distinctions Mayor of Hyndburn and President of the Bangladesh Medical Association in this country. He was at medical school with Dr Sarker, and does know him personally, but not as a close friend. (It is of course best if an expert witness does not know the party calling him, but in the present case I do not think their acquaintance materially affected Dr Rahman's evidence.) Dr Rahman had not previously acted as an expert witness in this sort of case, and did not have the benefit of being instructed by a solicitor. In these circumstances he was vulnerable to cross-examination about non-compliance with the procedural rules applicable to experts, for instance in relation to disclosure of the material on which his opinion was based. However, I found him personally impressive and his evidence plainly sincere and intended to assist the Court. If I have a criticism, it is that his evidence was more directed to telling the Court what experienced doctors actually do, than to what they ought to do; as Mr Spencer QC observed at one point, if Dr Rahman's evidence was to be accepted, no experienced doctor could ever be negligent, which regrettably is not always the case.
24. Dr Ingram graduated in medicine from Charing Cross Hospital in 1981, followed by a 3-year course in general practice leading to the MRCGP. He has been a practising GP since 1986. Relevantly, he has since 1992 been actively involved in GP training, at both the initial and post-qualification stages; perhaps as a result, he appeared to me to have a more systematic and analytic approach to family medicine than either Dr Rahman or Dr Sarker. (He is also a very experienced expert witness in negligence actions; in fairness to Dr Sarker and Dr Rahman I have done my best to disregard the fluency this gave his evidence and concentrate on its substance.) Where his evidence and Dr Rahman's differed, I found Dr Ingram a better guide to the standards applicable to modern general practice.
E. What History did Dr Sarker take?
25. The principal items of information in question, not recorded on Dr Sarker's notes, are that:

a. the baby had been substantially premature;

b. she had been in hospital until recently;

c. she had been coughing for several days (since Thursday or Friday);

d. she had seen her GP on Friday;

e. since then her condition had worsened (vomiting).

Dr Sarker accepts that he was not aware that the baby had been born premature, and denies that he was told this. As to items b. to e., his case as finally set out in his written closing statement is that he did elicit all of those items (in substance) from the parents by questions in the course of his visit. In his Witness Statement, however, he had said that he received "no other history" than an account of her condition that day. Similarly, the parents gave oral evidence to me that they did tell Dr Sarker about the prematurity and the GP visit on the Friday (which carried with it, effectively, items b. and c.). But in their Witness Statements they had referred only to telling him about the prematurity, not anything else. In these circumstances, for the reasons given above, it appears to me that the only safe course is for me to rely as far as possible on the contemporary records and the inferences that properly flow from them.

26. One good guide is the Healthcall tapes, set out at 8 and 9 above. These show that none of those matters was mentioned by the father or Aristide to Healthcall when trying to get medical attention for the baby. Though not conclusive, this is some evidence of what matters the family themselves considered most relevant and are therefore likely to have volunteered to Dr Sarker. It strongly suggests that they would not have provided that information to Dr Sarker except in response to questions from him.
27. Dr Sarker told me that he would have asked the following questions as part of his routine in such cases: What is the problem today? How long has it been going on? Have you seen your own GP? How long ago? Any similar illness in the past? Any other illness in the past? What treatment was given? If he had done so, he would have gone a long way towards discharging his duty in respect of taking a proper history. His case, as set out in his Witness Statement though not in his oral evidence, is that the parents did not provide him with any history in response to his questions. But, having seen the parents give evidence, and more importantly having read the transcript of the conversation with Dr Iyer, I am satisfied that, if they had been asked any of these questions by a doctor, they would have understood their importance and done their best to answer them accurately, perhaps with the help of Aristide who was there for that purpose. On the balance of probabilities, any such conversation would have disclosed the prematurity/hospitalisation, and the visit to Dr De Wilde with all its implications, though perhaps not any further medical details. But Dr Sarker still denies that he was told about the prematurity, and his note contains no reference to any of the other matters, though their relevance to the baby's then condition is clear. I therefore conclude that the parents did not provide him with this information, but that that was because he did not ask the questions that would have elicited it. He asked and was told about the baby's present condition, as reflected in his first standard question above (recalled by both parents as having been "What has happened to your daughter?") but did not probe further back into the history, which is why his notes do not record any of it.
F. What information was available to Dr Sarker if requested?
28. To some extent I have answered this question at 27 above. There is however one further important point. On the baby's discharge from hospital, the mother was given, in accordance with standard practice, a copy of the Personal Child Health Record (the "Red Book"). This book records information about a child's health, growth and development, and states on page 4 that "This is a very important book for you to keep. Please always bring it with you whenever you bring your child to … your family doctor …the dentist, or if your child is admitted to hospital". It is clear from Ursule's copy of this book that it was in regular use by the mother at the time of Dr Sarker's visit, in particular to record the baby's weight as measured by Sister Alexander. It does not record the visit to Dr Wilde, but it was certainly in the house at the time of Dr Sarker's call. On page 6, under the heading "Serious Health Problems", it clearly states "Pre-Term Infant 29/40" (i.e. 11 weeks premature at birth) and identifies her consultant at St George's and her hospital record number. (On the "weight" page it also records, a good deal less clearly, the fact that the baby had been "discharged" on 12 October 1997, but that might easily be overlooked even on a reasonably careful reading of the book by a GP.) The parents, in particular the mother, told me that they showed the book to Dr Sarker but he did not look in it. Dr Sarker said that he would as a matter of standard practice have asked for the book, and looked at it if it was available, but that he did not remember anything about it on this occasion. On this point I prefer the parents' evidence; I am satisfied that the mother had the book, was aware of its importance, and offered it to Dr Sarker. In any event, she would certainly have given it to him if asked. He either did not look at it at all, or did so in a perfunctory manner and failed to take in the information about prematurity, which was there for him to see (although the parents may not have realised its significance).
G. What physical examination did Dr Sarker carry out?
29. But for the narrowing of issues referred to at 16 above, the nature and extent of the physical examination carried out by Dr Sarker would have been a matter of importance in this case, since it would have been open to me to hold that the baby was in fact exhibiting symptoms of bronchiolitis which Dr Sarker negligently either failed to detect or misinterpreted. On the present basis it is of less importance; but in the light of Dr Sarker's notes and of the parents' evidence that he did examine the baby's chest (i.e. lung or ribcage area) with his stethoscope, as well as using it on the abdomen to detect bowel sounds as his notes state, I accept that he did carry out a proper and sufficient general external physical examination of the baby, including an examination of its respiratory system. It was suggested that the recorded pulse rate of 100 was too low for a baby of this age, and should have given him cause for concern, but he produced a practitioner's handbook which stated that to be within the normal range, and I do not consider that any negligence has been proved in relation to this point.
H. What advice did Dr Sarker give?
30. As appears from his notes, Dr Sarker prescribed antibiotics. He was criticised for this, since antibiotics are not effective against his diagnosis of "acute viral infection", but I accept his evidence that this was a reasonable precaution to take against the risk of a secondary infection. More relevant to the issues before me is the question what advice he gave the parents about what to do if the baby's condition did not improve. I accept that he told them to ring Healthcall if necessary; his note ticks that box. Dr Sarker's evidence was that he also told the parents that if the baby did not improve in 6 to 8 hours they should call an ambulance; the parents dispute this, and on balance I prefer their evidence, since nothing in Dr Sarker's handling of the case suggests that he regarded it as an actual or potential emergency. However, nothing really turns on this, since it is clear from subsequent events that, whether or not so advised, the parents were in fact well aware of the need to monitor the baby's progress, and of the existence of the ambulance service and how to contact it. Dr Sarker does not claim to have taken any additional steps in relation to ensuring priority treatment for the baby, either by Healthcall or the ambulance service, so I do not need to consider whether, if he had done so, that would have been an adequate substitute for immediate hospital admission.
I. What steps should Dr Sarker have taken in respect of History?
31. At this point, one leaves fact-finding and enters the area of expert evidence. In one sense there was little between the experts on this head, since Dr Rahman (and indeed Dr Sarker himself) accepted that a GP should always try to obtain a sufficient history of the patient and the illness as part of a consultation, and as stated at 27 above Dr Sarker told me that this was his standard practice and that he thought he must have done so in this case. But they both went on to devalue the importance of history-taking somewhat, on the basis (in summary) that the actual condition of the patient, as evident to an experienced doctor at first sight, and as further revealed by a proper physical examination, was the principal factor in such a doctor's decision-making, and could often make up for any limitations in the history provided, or even substitute for it altogether.
32. Dr Ingram's approach was different. He gave careful history-taking a much higher priority, for two main reasons. First, every doctor needs to take the history before he undertakes any physical assessment of the patient, since the history will alert the doctor to the matters he needs to investigate, and will thus dictate the nature of the examination and/or the significance to be attached to its results. Second, this is especially important in the case of a house-call by a deputising doctor, because he will not have seen the patient before and will have no other means of access to their medical history (e.g. practice or hospital records).
33. My conclusion is that Dr Ingram is clearly right, and that insofar as Dr Rahman was purporting to put forward the views of an alternative school of responsible medical practice (I do not think he intended to do so) that alternative school does not exist, and would in any case clearly be wrong. I therefore conclude that Dr Sarker was under a duty to the present Claimant to take all steps reasonably open to him in the circumstances of his visit to ascertain her medical history (both general, and in relation to her then complaint) and that in breach of that duty he failed to do so in the respects set out at 27 and 28 above.
J. What steps should Dr Sarker have taken in respect of Hospital Admission?
34. Again, this is a question for the experts, to be approached on the basis that, in addition to the information actually obtained by Dr Sarker from the parents and his physical examination, he was also in possession of the further information which (as I have held) he could and should have obtained by proper history-taking. Here, there was a clear difference between the experts as to good clinical practice. Dr Rahman's opinion was that, even if Dr Sarker had been aware of the "missing information", in particular the fact of prematurity, nevertheless the baby's actual condition and symptoms at the time of the visit were not such as to warrant the drastic step of directing her admission to hospital. In particular, there were no signs of fever or respiratory distress. The proper course remained that adopted by Dr Sarker, of treating her at home while providing for further help if necessary. The mere fact of prematurity was not of decisive significance, since by the time of the visit the baby had been released home in good health and was now within the normal range of birth dates.
35. Dr Ingram emphasised the vital role of the GP, particularly a deputising doctor, as a filter as much as a diagnostician. While a GP would like to have a clear diagnosis, the important thing was to assess the risks the child faced and the steps necessary to negate them. In the case of a premature child, it would not necessarily display the classic symptoms of a given disease, but it would be at risk of a sudden collapse into a serious state which only a hospital could deal with in time. With such a child, the presumption should be to admit to hospital unless there was good reason not to; the paediatricians there could then complete the diagnostic work. (Dr Rahman made the forceful response that this was tantamount to saying that all such babies should be kept in hospital as a precaution whether or not they exhibited any symptoms at all; I do not think Dr Ingram intended to go as far as that, but I take Dr Rahman's point.)
36. Dr Ingram illustrated his point by reference to the Paediatric Handbook issued by the Yorkhill NHS Trust. In relation to bronchiolitis, it states:

- that it is a viral-induced inflammation of the bronchioles, mainly affecting babies of 2 to 6 months;

- that although its classical symptoms include fever, cough, rapid breathing and wheeze, "young infants can present with apnoea alone";

- that in relation to hospital admission "have a low threshold to refer high-risk infants [including] premature or very young infants, less than 6 weeks";

- that poor feeding is also an indicator for admission.

Although, as above stated, I am not approaching this case on the basis that this baby actually had bronchiolitis or its most characteristic symptoms at the time of Dr Sarker's examination, both experts accepted it as one of the common childhood diseases with which any GP would be familiar. I therefore treat this as a relevant and helpful example of the general precautionary approach to the admission of premature and very young babies in cases like this, as recommended by Dr Ingram.

37. I accept both Dr Ingram's general opinion as to the proper approach a GP should take towards the hospital admission of premature and very young infants, and his conclusion that in this particular case Dr Sarker should, if he had known the baby's "corrected age" as stated in the Red Book, have directed hospital admission. I do not consider that Dr Rahman's views represent those of a body of responsible professional opinion on this subject; but if and insofar as they do, I reject it as one which does not take proper account of the comparative risks and benefits of the two alternative courses in question (see Bolitho v. City and Hackney HA [1998] AC 232, per Lord Browne-Wilkinson at 242B).
38. In reaching the conclusion that Dr Sarker was in breach of duty in this respect, I give particular weight to his own diagnosis, recorded in his contemporary note, of "acute viral infection". It appears to me that he would have been fully entitled to recommend hospital admission on the basis of that diagnosis alone, combined with the information about the baby's apparent age and condition actually recorded on his note, although home treatment would have remained a possible option. When one adds into the balance all the other facts which he either should have known, or did know but did not take into account, in particular the fact that this was a seriously premature baby which had not yet reached its anticipated birth date, it becomes clear that the risks in home treatment were too great and that immediate hospital admission was the only proper course.
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