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
		23/01/2009

Sir Robert Nelson :

1. This is a clinical negligence claim by Jason Goby, now 14 years of age, by his father acting as his Litigation Friend. The claim is brought against Jason's GP, Dr Barrie Ferguson for failing to refer him to hospital when she saw him in her surgery on 19 January 2000. Had she so referred him it is alleged that the tuberculosis meningitis which was subsequently diagnosed would have been treated earlier and a full recovery made from it. Jason did not make a full recovery, but has been left with a left hemi-plegia, upward gaze palsy and cognitive impairment. He has a permanent ventricular shunt.
2. The trial before me was on the issues of liability and causation alone.
3. It is necessary to set out in summary form the nature of the disease and the relevance of its pathogenesis in determining the issues of liability and causation before the Court. Tuberculosis meningitis (TBM) is rare in the United Kingdom. Thus in 1983 only twenty cases of TBM in children in England and Wales were notified. Of these twenty cases twelve children were Indian so that the rate for white children was 0.14 per 100,000. In the 1940's a classification of the stages of development of TBM was introduced, which has been adopted ever since. In stage 1 (early) there are non specific symptoms and signs with no disturbance of consciousness and no focal neurological signs. It is agreed by the experts in infectious diseases that when Jason was seen by Dr Ferguson on 19 January 2000 he was in stage 1. One of the non specific signs in stage 1 may be headaches. In stage 2 (intermediate) consciousness is disturbed with behavioural changes and the presence of focal neurological signs. The existence of meningeal irritation at this stage makes it more likely that there will be headaches. In stage 3 (late) the patient is comatose or delirious with the consciousness level deeply depressed and often with severe neurological deficit. In general terms the earlier the condition is treated the better the outcome. Individual cases vary and the staging system, although a helpful classification, provides no more than a useful general guide.
4. The disease is therefore, because of its rarity, its insidious onset, and its non specific signs in its early development, difficult to diagnose. As a consequence it was not alleged by the Claimant that Dr Ferguson should have diagnosed TBM on 19 January 2000 or even that that should have entered into her differential diagnosis. What is alleged against her is that she failed to act upon the history which was given to her, which included headaches, or alternatively she failed to take or elicit a proper history, and as a consequence failed to appreciate the potential seriousness of Jason's condition and the need to refer him to a hospital at once.

The Issues.

5. As to liability the Court must determine what, on the balance of probabilities, the Claimant's condition was on 19 January 2000, what was said by Samantha Allen to Dr Ferguson during the consultation on that date, whether Dr Ferguson should have elicited a further history given the history that she was given by Samantha Allen and the findings she made on her examination. If a further history should have been elicited what, on the balance of probabilities, would that have revealed? Should Dr Ferguson have referred Jason to a hospital that day given the history which she was given and/or elicited?
6. As to the issue of causation only two matters remain: firstly whether treatment for TBM should have been commenced on 23 January 2000 or 26 January 200 and secondly what would have been the effect upon the outcome for Jason had such treatment been started on the appropriate date.

The Background Facts.

7. At the beginning of January 2000 Jason Goby, then aged 5¼ years, became unwell. His parents thought he had a cold as he had a runny nose and a bit of a cough on 3 January 2000. His father, Andrew Goby, noticed when he came back from working night shift on the morning of 4 January 2000 that Jason was still unwell; he was pale, had a runny nose, a cough, little blotches on his face and was very sleepy. His father took him to the GP's surgery where he was seen by Dr Howard. Dr Howard recorded that he had a temperature, (ear nose throat), no meningism and a rash on his face. No abnormality was detected on examination and his father was told to give him paracetomol and contact the surgery if he worsened.
8. During the early hours of the following morning on 5 January 2000 Mrs Goby became concerned about Jason's condition and telephoned her husband at work on night shift. He left work, drove home and they together took Jason to the Accident and Emergency Department at the Royal Devon and Exeter Hospital at Wonford. They were both very concerned that Jason might have meningitis because a small girl at his Nursery School had had this condition and Mr Goby had seen notices about it at work, with particular reference to the development of a rash. Mr and Mrs Goby told me that it was the presence of the rash in particular, and the fact that Jason had been complaining of a headache and neck ache which caused his parents to take him to Accident and Emergency in the early hours of that morning.
9. He was examined by a triage nurse at 3 a.m. when it was noted that he had been seen by his GP with flu and that since then he had had a rash over his body, headache plus neck ache. At about 3.30 a.m. he was seen by a doctor when it was noted that he had complained of occipital headache and rash, and that on examination he was a bright kid who was happy, that ENT was clear and that he had a rash. A differential diagnosis of viral illness was made, and it was advised that he should continue with regular Calpol and fluids. Jason's parents were reassured by what they had been told at the surgery and Accident and Emergency, in particular, because the spots, when pressed, had disappeared which the notice at Mr Goby's workplace had said was not indicative of meningitis.
10. In fact Jason was developing meningitis at about this time or shortly afterwards, but an extremely rare form of meningitis, known as tuberculous meningitis ('TBM') the development of which was slow, insidious with non specific symptoms in its early stages.
11. There is a substantial dispute on the facts as to the nature, extent, duration and location of any headache suffered by Jason from the commencement of his illness, and particularly after 5 January 2000, until 19 January 2000 when he was taken back to the surgery, this time by his sister Samantha Allen, and saw Dr Ferguson. An important part of this dispute of fact is what occurred at the consultation on 19 January. Samantha Allen, who took Jason to the surgery as she was not working that day, said that on 19 January 2000 he seemed to be worse. He was still complaining of having a constant headache, was sleepy, had an earache and was holding the side of his head. Although they set off walking together to the surgery Samantha had to carry him as he got tired. She also carried him into the surgery as he was still weak and would not walk by himself. He sat on her lap while she explained to Dr Ferguson that he hadn't been right for a while. She says in her statement that she told Dr Ferguson that he was constantly complaining of headaches. In her evidence she confirmed that she had told Dr Ferguson that he was complaining of headaches or continuous headaches and said on further questioning that she thought that she did say to Dr Ferguson that he had been having continuous headaches. She said to Dr Ferguson twice that he had headaches but Dr Ferguson asked no questions about them.
12. Dr Ferguson had a very limited recollection of the consultation itself and hence relied essentially upon her note and her usual practice. She said that from her contemporaneous record she was able to say that she was not told about headaches. She could not specifically recall whether they were mentioned or not but she simply could not believe that she had been told, as if she had, she would have recorded it in her notes and asked further questions about it. Dr Ferguson told me that as a competent GP, fit to practise, she would have been listening for a reference to headaches and would therefore have noted it and asked questions about it had it been mentioned. I shall deal with the notes and examination which was carried out in detail when I turn to the evidence relating to the central disputed facts.
13. Dr Ferguson concluded that Jason may be suffering from a post viral syndrome, advised a weeks rest and recuperation. He was to come back if no better and blood tests would then be carried out.
14. Again the family were reassured, but Jason deteriorated significantly over the weekend and following days before he collapsed and was taken to hospital on 29 January 2000. Over that weekend of 22/23 January he developed double incontinence, had hallucinations, said strange things, could not remember where rooms were in the house, continued with his headaches, and slept much of the day. By the morning of Monday 24 January 2000 he was very pale with dark shadows under his eyes and was unable to walk properly. He was taken back to the surgery by Mr Goby on Monday 24 January where he saw Dr Herdman. He was described as being like 'a little old man'. His hallucinations and double incontinence were noted but Dr Herdman again concluded that his problem was viral and said that he should receive tender loving care and be reviewed in one week.
15. In the evening of 29 January 2000 Jason collapsed; he couldn't stand or walk. Samantha and her sister Louisa were very worried and sat with him. When Mr Goby got in at about 11.30 or 11.45p.m he was told what had happened and he took Jason to hospital. When he was examined there were abnormal neurological signs. Jason was put on intravenous antibiotics and antiviral agents, bloods were taken and an urgent CT scan ordered. The initial blood results revealed a raised white blood cell count and CRP suggestive of an infective process. The CT scan showed a grossly dilated ventricular system with evidence of inflammation but no evidence of a space occupying lesion. There was however evidence of basal meningeal enhancement. The consultant paediatrician, Dr Tripp made a diagnosis of unusual bacterial meningitis/atypical or ??TBM.
16. Jason was transferred to Frenchay Hospital on 30 January and at 1700 an MRI scan showed communicating hydrocephalus. Cerebro spinal fluid ('CSF') was taken from him which contained an increased number of white cells in the CSF, a raised CSF protein, and a decreased CSF glucose. These results were thought to be consistent with TBM or a tumour but as a tumour seemed unlikely Jason was started empirically on anti tuberculous treatment on the evening of 31 January 2000.
17. On 13 February Jason suffered an infarct of his brain stem which has now led to the permanent problems from which he now suffers.

The medical records.

18. Both sides rely upon the medical records: the Claimant upon the basis that they strongly support the familial account of the existence of headaches, their location and their duration: the Defendant upon the basis that the medical records constitute the only unvarnished contemporaneous account of what was reported, and do not support continuous or constant headaches. The Claimant submits that the family are not medically literate and could not have known what significance would be attached to the frequency of headache or the duration of that symptom. It is therefore necessary to set out the records in some detail.

4 January 2000

19. Dr Howard GP

A raised temperature was noted, no meningism was found, there was a rash on the face. Regular Paracetemol was advised with contact if the condition worsened. No complaint of headache.

5 January 2000

03.00

20. Royal Devon and Exeter Hospital triage note

S- unwell today – temp + cold

0 – Sb gp – flu. Since then rash over body. Headache plus neck ache. Pale Calpol hr ago but looks well. A-unwell/rash.

03.30

Royal Devon & Exeter Hospital medical note

Unwell more than 12 hours seen GP – told regular Calpol

c/o occipital headache

rash (seen by GP) eating and drinking no cough .. o/e bright kid.

Happy no dehydration ENT clear chest clear .. rash = limb .. differential diagnosis viral illness advised regular Calpol fluids

19 January 2000

21. 11.22 a.m. Dr Ferguson GP:-

"URTI (Upper respiratory tract infection) in New Year, still not right. Pale, listless ↓ appetite o/e Pale ENT (ear nose throat) √ chest √ abdo ( √ ? post viral 1/52 rest + recup (recuperation) if no better TCB (to come back) ? bloods"

24 January 2000

22. Dr Herdman GP

Like a little old man c/o cold, hallucinations x 1 faecally incontinent x 12 urinary incontinence over w/end. … Knows name/address counts to 4 supper last night – mashed potatoes

o/e: chest/ENT ok

abdo √

.. ??

Plan: .. tlc (Tender loving care) review in 1/52 ? refer

? viral

29 January 2000

23.45

23. Royal Devon & Exeter Hospital A&E Department history taken by nurse

S.flu for 3/52 tonight

o.unsteady on feet headache dilated pupils drowsy unsteady gait-leaning

temp 37.1

an unwell child. Inappropriate hx (history) yellow

30 January 2000

00.05

24. Royal Devon & Exeter Hospital examination by doctor.

Unwell for 1/12. seen GP several times ? viral Today .. ?? to be unsteady on his feet

Drowsy

Not eating or drinking

o/e .. GCS 14/15

for paeds opinion

No time recorded

25. Royal Devon & Exeter Hospital (RDEH) paediatric examination.

PC self referral for loss of co-ordination

HPC was seen Jan 5 2000 – A&E diagnosis viral illness

Since then has been seen by GP x2

-lethargic

-drowsy

- ↓ appetite

? but drinking

• no headache/visual complaint

no change except more noticeable in last two weeks

this evening went to bed (walking ok) then awake but unable to walk. Was described as falling to one side. Has been able to walk since on side.

Brought to A&E

? loss of weight

No vomiting no diarrhoea

? headache

Abdo pain. ..

o/e drowsy but rouseable

will not completely respond

GCS 14/15

…noticeable fall to r side r leg not full movement-abnormal gait tilts to r

..

Impression 2-4 wk hx of lethargy, drowsiness ↓ appetite with weight loss and sudden onset – upper motor signs/cerebella signs differential diagnosis

1 encephalitis viral

2 sol (space occupying lesion) cerebella

3 vascular → ? stroke/bleed

Plan inform Reg-request to see- will see

02.00

26. Review by paediatric registrar Dr Atiti

History as above

• unwell for 3/52

had a rash → seen in A&E → viral illness → home

• still unwell

• not eating

• sleeping, drowsy

• complaining of headache

• S/B GP → ? Non specific illness

• for 1/52

• Still unwell

• Continuous headache

• Drowsy and sleepy most of day

• Wetting himself → day and night

• no vomiting - no fever - no rash - no cough

• oE – sleepy drowsy, will respond but confused

Arouseable GCS 14

CNS

Arouseable, will obey commands

Confused? Where in, knows his father

… Up going planter reflexes

Stiff neck ++ +

…

5 year old boy with 3/52 progressive illness

Encephalopathic picture 1? Space occupying lesion 2? infective

02.15

27. Admitted to Brye Ward under Dr Tripp, consultant paediatrician

No time recorded

28. Nursing assessment RDEH after decision to admit to Brye Ward

This includes a reference to loss of appetite over last month, 'has complained of headache and stomach pains over last month', ataxia and right sided weakness since this evening, has had episodes of bed wetting over last month

No time recorded

29. RDEH review by Dr Tripp consultant paediatrician

Nothing to add to history

Parents adamant no contact with TB (maternal grandfather + 3½ years ago had had TB earlier in life not active in recent years.)

Differential diagnosis of meningo/encephalitis sol

30. Dr Tripp notes that a CT scan performed at RDEH shows grossly dilated ventricular system .. and then states as differential diagnosis unusual bacterial meningitis/atypical

?? TB

…

A&E notes says rash was like erythema multiforme

NB up going planters incontinent urine + faeces over past 3 days

12 noon

31. Transfer to Frenchay Hospital Bristol arrives 1330

Dr Tripp's transfer letter states:-

"URTI at Christmas

Referred by GP 5/1/00 and seen in A&E

o/e 'temp + cold' but apyrexial and parents said never had a fever

also headache + neck ache and rash

Pale, looked well, 'Viral ? eryth mult. Rash. Diagnosis viral → home

seen at home x 2 by GP

parents say continuously or continuing v.drowsy, headache.

Last 48h deterioration –

Increasing drowsiness and worse headache and neck stiffness. Incontinent of urine and faeces for 48h. Admitted 00.10

No vomiting no fever

Differential diagnosis RICP (raised intracranial pressure/?secondary to infection.

13.30

32. Seen by registrar at Frenchay

Diagnosis? Atypical meningo/encephalitis + raised ICP

History from mother and transfer letter

Unwell more than 1/12

URTI over Christmas

Seen in A&E 05.01.00

c/o cold, headache, rash

..

Diagnosis viral illness discharged

Has been unwell since then

Has only been to school for one morning since Christmas

Sleeps all the time. Not eating.

Also continued to c/o headache and neck pain

Last 2/52 – nocturia

Acute deterioration last 48 hours. No cough no rash no nausea no vomiting

More drowsy, confused no nausea/vomiting

Last night unable to walk/sit unsupported falling to r side admitted to Exeter Hospital drowsy with neck stiffness

14.30

33. Seen by Mr Edwards consultant neuro surgeon.

CT reveals gross communicating hydrocephalus plus abnormal enhancement "Proceed to ventricular drainage"

18.30

34. "headaches, initially had a viral illness and rash."

48h rapid deterioration

Worse headaches confusion loss of balance urinary and faecal incontinence

CT scan showed acute communicating hydrocephalus MRI showed extensive periventricular enhancement

Plan: Right frontal burr hole ventricular biopsy insertion of reservoir lumbar puncture performed under general anaesthetic.

22.50

35. CSF ventricular sample abnormal lumbar CSF abnormal

MRI abnormal

31 January 2000

36. 1900 anti TB treatment commenced.

The discharge summaries and other reports

37. The discharge note from RDEH to Frenchay of 30 January 2000 records that Jason had 'no headaches or visual problems'.
38. The discharge letter from Frenchay to RDEH states:

"This previously well 5 year old boy presented with a months history of general malaise and rather non specific headache for which he had attended his GP on a number of occasions. 48 hours prior to hospital presentation he had deteriorated rapidly and progressively with increasing headaches, ataxia, double incontinence and decrease in conscious level. He had a viral illness 6 weeks prior to admission."

39. On the final discharge summary from RDEH on 9 March 2000 the history is stated as follows:-

"..He was drowsy, had signs of raised intracranial pressure this was on the background of an insidious history of a headache, weight loss and generally off colour for the last month. He had quite a rapid deterioration prior to admission and it was thought he had atypical meningitis or meningo-cephalitis and was transferred as an emergency to Southmead Hospital."

The pre-operative note at Frenchay dated 30 January 2000 states:-

"This previously well 5 year old boy presents with only a months history of general malaise and rather non specific headache for which he attended his GP on a number of occasions. There was really very little of objective symptoms or signs that could have alerted his primary carers until 48 hours ago when he deteriorated rapidly and progressively with increasing headaches, ataxia, double incontinence and decrease in conscious level."

40. A report from the physiotherapy department on 1 March 2000 states:-

"Thank you for continuing Jason's rehabilitation. He was admitted to us on the 30^th January with a history of viral illness plus 2 days of increasing headaches, ataxia, incontinence and depressed consciousness".

The evidence on the disputed issues.

41. Mr and Mrs Goby and Jason's sister Samantha Allen gave factual evidence on behalf of the Claimant and Dr Ferguson gave factual evidence on her own behalf. Mr Edward Faulks QC on behalf of the Defendant challenged the Goby family account as to Jason's condition on 19 January 2000 and what Samantha Allen had said to Dr Ferguson at that consultation. He made it clear that he was not suggesting, nor did he put it to them, that any of them were lying but submitted that their recollections were inaccurate. In an unconscious desire to assist Jason, what each of them had done, was to confuse the sequence of events so as to refer to persistent or constant headaches before 19 January 2000 whereas in fact they only occurred after that date when Jason's condition worsened. There was therefore a fundamental challenge to the recollection of Mr and Mrs Goby and Samantha Allen on the essential factual issues in the case. I have already set out the background facts and will now turn to the evidence in more detail on the disputed issues.
42. Mrs Goby told me that on the night of 4/5 January 2000 Jason was crying, said his head was hurting and that his neck was hurting, and that he was generally not very well. He would sleep a little and then wake up crying. When her husband went off to work she took him into her bed. He held his head. He later woke up screaming with pain and said his head was hurting and his neck was hurting. It was after this that she contacted her husband and they took him to hospital in the early hours of the morning of 5 January. She said that the head pain didn't seem to go. She gave him Calpol which would dull the pain for a bit but he then complained of pain again, not some days but every day. She could not recall a day before 19 January when he didn't have a headache. He did look a bit brighter, wanted to go back to school and did so on 17 January but Andrew got a call to say that he was not well and picked him up the same morning. When he came back from school he was just sleeping and still complaining of head pains. He slept quite a bit of the day. Their main concern was his headaches. He went back to the GP on 19 January because he still wasn't well. Between 19 and 24 January he was not acting or talking normally. He started to go downhill.
43. When she was cross-examined Mrs Goby said that it was the rash and the headaches and the neck ache which got them talking about meningitis. The headaches were at the back of his head. He pointed to the back of his head. He said that his neck hurt but he'd be holding his head. She allowed him to go to school on 17 January because he wanted to go. He'd still got headaches but seemed well enough to walk to school that day. She regretted now sending him to school as he wasn't well but he wanted to go. When he came back from school all he did was sleep. He was pale and listless and not himself he was still not right. He always said he had a pain in his head from day 1, everyday. He woke up with pain in his head which Calpol dulled down a bit. He would put his hand on the back of his head and he cried. He was more comfortable when lying down; from the beginning he wanted to lie down. He had a headache when he woke up, was given Calpol and would sleep again. He had had headaches from the start. Mrs Goby said she was quite positive about this; he had had them all through January; they were obviously getting worse after 19 January, but he had had headaches from day 1.
44. Samantha Allen, who was 19 at the time, said that she not only observed Jason as his sister living at home but also because she would look after him for an hour or so in the evenings before her mother got back from work. She said he spent a lot of time sleeping on the floor or on a chair in the lounge. He was not easy to wake up. She had walked with him to school and had collected him from school on 17 January and was told that he had been sleeping in class. When they got home he fell asleep in a chair. He still had the head pain when he got back from school on 17 January. Samantha Allen took Jason to the surgery on 19 January as she was not working that day. She had to carry him part of the way as he couldn't walk. She told Dr Ferguson that he was complaining of earache and headaches. Dr Ferguson asked her nothing about headaches in consultation. She agreed that the words 'still not right' came from her. She definitely did say to Dr Ferguson that Jason had had headaches even though there was no mention of that in Dr Ferguson's notes. Had she been asked she would have said that he had had headaches at the back of his head, and that he had had them for a long time, that he had had them from the beginning, that they were very bad and they were better when he was lying down and hurt more when he was sitting up. She described Jason as getting worse between 19 January and 24 January.
45. When she was cross-examined she said that between 5 January and 19 January he was getting worse. He was sleeping more, not eating and still complaining of headaches. When he was complaining of headaches he would hold a pillow to his head and that is how he walked around. This happened every day all day. She gave him Calpol every day and wrote down when he had it so that they knew when he could have the next lot. He said his neck hurt and his head hurt pointing to the same general area at the back of his head. The earache was relatively new by 19 January. She took him to the surgery on 19 January because he was complaining of headache and earache. The pain was worse after 5 January. She said that 'still not right' were probably her words; she meant that he was still not right because he was worse than last time. When she went into see Dr Ferguson she did say that Jason had been complaining of earache and headaches. Her main concern was headaches and that Jason was not right in himself. She thought that she did say to Dr Ferguson that he'd been having 'continuous headaches'. She had said twice that he had had headaches, once at the beginning, and once during the course of examination, but Dr Ferguson asked her no questions about that so she didn't describe them further. She was absolutely sure that she had told Dr Ferguson about headaches twice. Dr Ferguson examined Jason looking at his chest and stomach, felt round his jaw, shone a light in his ear looked at the back of his chest and found no breathing problems. Samantha Allen said Jason was a very poorly little boy. Dr Ferguson didn't touch his neck or his head as far as she could remember and she considered the examination to be all rather hurried.
46. The headaches were getting worse towards the end before he was taken into hospital on 29 January. He'd be crying in pain a lot more saying his head hurt every time he moved. That had happened earlier but they had got worse. He was screaming more and the Calpol didn't seem to be working. She felt she was being rushed in the consultation. She said that she did say continuous headaches to Dr Ferguson.
47. Mr Goby said that he had told the hospital on 5 January that Jason had headaches at the back of his head. That was where the pain was all the time. Between 5 January and 19 January Jason continued to have head pain every day. It was worse when he sat up but better when he lay down. He got steadily worse between those dates. He was very upset when he took Jason to hospital on 29 January and had to be sent home by his wife when she arrived at the hospital. He had later gone to the surgery and said "thanks very much I think you have killed my son".
48. When he was cross-examined he said that Jason indicated the back of his head and said it hurt. He carried a little pillow or cushion and held it against the back of his head and neck; all the time he carried a cushion. He was getting worse between 5 January and 19 January. He stopped eating, slept all the time, you couldn't get him up. He always had a headache and neck ache always in the same place. He would whinge and cry when he woke him up. He went to school on 17 January but Mr Goby said that he didn't want him to. He did not think that he had got the sequence wrong. The continuous headaches did not come only in the last week he had them all the time though in the last week the headaches seemed stronger. They were however a constant feature in January. He agreed that when he went to the surgery on 24 January and saw Dr Herdman he did not mention the headache. He agreed that Dr Ferguson was still Jason's doctor.
49. Dr Ferguson said that in January she would see many children with viral illnesses. Her consultations followed a regular pattern. She would start by asking 'How can I help?' and then let the carer or parent describe the condition or sometimes the child if it was older. She would let them speak as long as they needed to. In those days she would be writing up the notes as the consultation was taking place. She had little memory of the consultation but did recall being told that there was a viral illness, earache, and that he was still not right. The fact that she recorded "? post viral" meant that she found nothing specific. Post viral syndrome is common, usually improves within a week. She'd seen it many times before. It is not possible that she was told that Jason had continuous headaches because if she had been told that she would have recorded it. If headache had been mentioned at all she would have recorded it and indeed would have asked questions about it, such as how long whether it was better or worse, what made it better or worse, whether it was accompanied by visual disturbance and where the headaches were. There was nothing about his appearance or presentation which made her believe that she should send him urgently for a further examination. She confirmed that she was still Jason's doctor.
50. When cross-examined Dr Ferguson said it was a five minute consultation and there was no reason to set it apart from any other children she had seen with viral illnesses in January. She recalled being told that Jason had ear ache and he was unwell and she couldn't dispute the fact that she'd been told that he had stomach ache. She thought that the constellation of symptoms represented a viral illness. It would be overwhelmingly due to a viral cause. She agreed that she would have an index of concern if the cause was either viral or something else. Jason was well within her comfort zone of viral illness but as she couldn't be completely sure she had put '? Viral illness' in her notes. She agreed that it was therefore necessary to take a careful history as it might be something else, but the symptoms confirmed that it was viral. She would certainly ask before any examination if a child had any pain and if so where it was. She did not accept that she was told about headaches. If she had been she would have noted it.
51. She agreed that she examined for ear ache but did not note it in the history. Nor did she note stomach ache in the history but examined for it. She couldn't have been told about headache as her usual practice was to record the presence of a headache if informed about it. If she had been told she would have examined for meningitis, for photophobia, for swelling of the optic discs. She would be listening for information as to headaches. She did that every day; she was a competent GP fit to practise. She agreed that if headache had been raised she would have asked more questions. From what had been said in evidence she agreed that had she done so she would have been told of a history of headaches for two weeks and if such a history had been given it would be highly unusual in a 5¼ year old child. She would have referred him to hospital in such circumstances. If that history was given to her she would have asked more questions to find out if the headaches were continuous and what their prominence was. She agreed that Jason was not febrile, not confused, and thus a headache for two weeks could have indicated raised intracranial pressure.
52. Dr Ferguson agreed that when the letter before action had been answered by her solicitor she had then said that she had asked Samantha Allen whether Jason had had any other symptoms or complaints and specifically asked whether he had complained of headaches. At the time that she had said this, in June 2006, she thought that that was what had happened, but having reflected on it she thought that she would not routinely have asked about headaches. She therefore subsequently gave what she considered, after careful thought, to be the truthful account in her witness statement, namely she would not have asked about headaches. She was able to say from her contemporaneous notes that she was not told about headaches. She simply couldn't believe that she was told.

The Expert Evidence.

53. Mr Robin Oppenheim QC on behalf of the Claimant indicated an intention to argue that the expert evidence as to the probability of Jason experiencing headaches would be of assistance to me in assessing the family's evidence as to whether he in fact had had such headaches between 5 January and 19 January. I expressed doubts about whether this would be so, as the evidence on the issue was clearly disputed between Professor Klein and Dr Novelli, the infectious disease consultants, and in any event, a finding on expert evidence on the balance of probabilities was an inadequate instrument for assessing the weight and accuracy of factual evidence. Having heard the evidence I remain of that opinion. Professor Klein thought that it was probable by 19 January 2000 that headache was persistent as once there was meningeal involvement there would be no pathophysiological basis for the pain to remit because the pain interceptors would be involved. It would not be constant headache at the commencement of the illness but would become persistent. Dr Novelli on the other hand accepted that it was possible that by 19 January the Claimant could have had a persistent headache but he was not prepared to concede that it was probable. The academic literature indicated that a substantial number of children in stage 1 may not experience headaches.
54. I am not satisfied on the evidence upon this issue that the Court could safely conclude that anything other than persistent headache would be consistent with the experience of some children in stage 1 of TBM. It may be that Professor Klein is right in saying that in this particular case, because of the development of the disease, it is more likely than not that Jason had persistent headache by 19 January 2000, but the Court is simply not in a position to say that the evidence established that Jason must have had persistent headaches by that time, and without such a conclusion the Court is given no assistance on determining the factual issue. The proper interpretation of the evidence is, in my judgment, that persistent headache by 19 January 2000 would be consistent with the progression of TBM in some children in stage 1.
55. The conflict between the GP experts as to duty and breach somewhat narrowed during the course of evidence but still remained. Dr Cummings, giving evidence on behalf of the Claimant maintained his view that even without any mention of headache, the previous history involving sixteen days of illness, two previous visits to the surgery against the background of a responsible non complaining family, together with the constellation of complaint, should have caused Dr Ferguson to make specific enquiry about headaches. He regarded the family's blameless history and the sequence of visits as raising a large red flag in his mind, and refuted Mr Faulks's suggestion in cross-examination that this involved hindsight. Dr Cummings accepted that in the joint statement with Dr Waters, the Defendant's GP expert, they had agreed that anorexia, lethargy, listlessness and pallor are a constellation of symptoms "(with or without headache)" that are commonly encountered in viral illnesses. The very combination mitigates in favour of a viral illness. He said that statement remained correct but was subject to the viral illness being of short duration. Occipital headaches were significant as young children do not usually complain of localised headaches. Dr Cummings said that Dr Ferguson's notes were incomplete and that the examination in his view was rather perfunctory.
56. Dr Waters said that without mention of headache no specific enquiry as to head pain was required. Even if headache was mentioned no further enquiry would be required unless it was presented as a cardinal symptom. Headaches are a common feature of viral illness and unless expressed in an emphatic way would not require to be explored. Dr Waters conceded in cross-examination that the general questions of the kind set out in the joint opinion paragraph 4.3 should have been asked. Thus the child should have been asked 'Does it hurt anywhere?' or 'Point to where it hurts' and the carer might be asked 'Has the child complained of pain?' Dr Waters agreed that on the basis of the family's evidence it is unlikely that the carer would have said nothing of headache at that point. Secondly Dr Waters agreed that as there was no pyrexia, no cough, no cold, no catarrh, in other words negative findings as far as a viral illness was concerned, it was necessary for the doctor to go back over the history before saying that it was a viral illness. A reasonably competent GP would have to go back over the history before reaching a diagnosis of post viral illness. If a history of headaches was given a reasonably competent GP would ask for more information about it, though Dr Waters said that he could see how headache could fit in with other symptoms.
57. Dr Waters said that he thought that Dr Ferguson's notes were a little better than average; they were what he would expect a competent GP to put in the circumstances. In cross-examination he accepted that the history recorded in the notes does not include any reference to ear ache or stomach ache even though those were mentioned, but he pointed out that the examination mentioned the abdomen and he thought that was more thorough than it might have been. He agreed however that if the presenting condition was ear ache or stomach ache he would expect that to be recorded in the history.
58. I note at this stage that Mr Faulks invited me to view Dr Waters' evidence and his report as a whole and beware of placing too much reliance upon one or two answers in cross-examination. Dr Waters was helpful about what could reasonably be expected of a GP whereas Dr Cummings' use of the phrase 'red flag' was hyperbole.
59. Dr Miles and Dr Mann, the paediatric experts, defined "headache" in four different categories in order to advise as to what responses would have been appropriate. "No headache"; occasional and brief headaches waxing and waning and at times disappearing, defined as "intermittent occasional", or if continuing defined as "intermittent persisting" and finally, "continuous". The responses to the latter two categories were admission to hospital and tests, whereas for no headache or intermittent occasional headache Jason would not have been admitted to hospital. Dr Miles, the general paediatric consultant called on behalf of the Claimant, though not expressing any view on breach of duty, said that occipital headache is unusual for children and he would not describe it as a non specific headache. Intermittent occasional headache is the headache to go with a virus. This may be non specific, there for an hour and then go away or may get better after a day. It would certainly not have been going on for two weeks. The evidence suggests that it was not intermittent occasional. An increasingly frequent occipital headache characterised by holding the back of the head is not properly described as intermittent occasional.
60. Dr Miles said that he would have expected an infectious disease doctor to have discussed TBM with him and agree that TBM treatment needed to be started. You have to treat that as a presumptive diagnosis and cannot hold back. It would be unacceptable to wait for the result of a Mantoux test as that produces a lot of false negatives.
61. Professor Klein, supported by Dr Miles, said that advice would have been sought from infectious disease doctors following the lumbar puncture which would then have led to the institution of anti-TBM treatment. That advice might however have been sought and given somewhat later, that is over the weekend of 22/23 January 2000 in the light of the Claimant's probable deterioration that weekend and any rescanning that was done. The result of that would have been the institution of anti-TBM treatment by 23 January 2000 at the latest.
62. Professor Klein said that the outcome would have been a full recovery if treatment had been started on 23 January.
63. Dr Novelli, giving evidence on behalf of the Defendant, said that whilst if the matter had been referred to Great Ormond Street there would have been anti-TBM therapy given on or about 23 January 2000 it would not have been below a reasonable standard of care to wait until 26 January 2000 before commencing. This was due to the fact that there was a lack of TB contact history, a normal chest X-ray, the potentially helpful information provided by a Mantoux skin test was not yet available, and the fact that once commenced you are generally committed to giving anti-TBM therapy for prolonged periods. He would have started treatment if he had been contacted but he said that a local paediatrician in Devon would not necessarily do so. He accepted however that a reasonably competent infectious disease doctor if asked for advice would say that TBM therapy should be started on 23 January.
64. Dr Novelli said that it was possible that Jason would have had cognitive problems even if the anti-TBM therapy had been commenced on 23 January 2000. He based this opinion firstly upon the paper by Dr Schoeman and others on the Long Term Follow-up of Childhood Tuberculous Meningitis 2002, and secondly on basis that the hallucination and faecal incontinence suggested cerebral involvement with inflammation of the brain. In cross-examination however he accepted that the Schoeman paper was methodologically flawed and that the explanation for the hallucinations and faecal incontinence could well be related to hydrocephalus and raised intracranial pressure rather than brain damage itself.

The Submissions.

The Defendant.

65. Mr Faulks submitted that there is no negligence established against the Defendant who is clearly a competent, caring doctor. Her notes were neither partial nor incomplete but more than adequate and her examination was thorough and certainly not brusque. The diagnosis of ? post viral illness was entirely in accordance with the non specific symptoms presented to her. Her notes show that she was on the look out for features which were out of the ordinary.
66. Mr Faulks warned me against the dangers of hindsight and sympathy. He invited me not to accept Mr and Mrs Goby's evidence or Samantha Allen's evidence. Samantha Allen said that she had told Dr Ferguson that Jason had continuous headaches twice whereas in the pre-action letter and in paragraph 9 of the Particulars of Claim it is said that she complained of headache and ear ache with no mention of duration or severity. The explanation is the family's unconscious desire to aid Jason's case. The evolution of that case should make the Court question its accuracy.
67. Samantha Allen says in her statement that Jason got worse from 4/5 January to 19 January yet when she saw Dr Ferguson she agrees that she said he 'still doesn't seem right' which does not suggest deterioration. Mr and Mrs Goby do not describe deterioration in their statements, Mrs Goby saying that they didn't think Jason was right, it had been going on too long, and Mr Goby said 'still as bad as ever'. This is consistent with what Samantha Allen said to Dr Ferguson, namely 'still not right' and does not indicate deterioration. Mrs Goby did not describe significant deterioration in her evidence, yet Mr Goby did, in contrast to his statement, where he simply said that the main thing they were concerned about was the headaches since the 4^th January which didn't seem to go away.
68. Mr Faulks submitted that all the family said that headaches were the principal feature yet it appeared from Dr Miles's account of an earlier version of Mr Goby's witness statement that he did not focus on, or even refer to, headaches. The recollection of the family witnesses and their reconstruction of events is likely to be shaped by their perception of the medico-legal issues, or as Mr Faulks put it in oral submissions, headaches have to come to the top of the list as the only way to establish liability. He emphasised that he was not saying that the family were lying but they had given the account so many times that they had got confused as to its sequence. In reality what they were describing about headaches is what happened post 19 January not before it. It is now 8 years ago and the precise order in which symptoms developed is likely to be a matter on which they are unreliable historians.
69. The medical records are the most reliable, unvarnished source of information. They are not consistent with continuous headaches. The records do not show any reference to headaches on 4 January to Dr Howard, on 19 January to Dr Ferguson or 24 January to Dr Herdman. The note of 30 January states 'no headaches' though Mr Faulks accepted that in view of the other contemporaneous records at the hospital at that time that that was incorrect. The clearest picture, he submitted, is to be obtained from Dr Atiti's notes. These draw a distinction between the condition in the last week and in the previous three weeks. The proper inference is that continuous headaches were present in the last week but not before. This is the contemporaneous record of a specialist registrar. The note amounts to a crucial signpost and it shows the family have got the sequence wrong. The headaches only became continuous after the 19 January surgery visit.
70. The discharge notes, the operation note and the physiotherapist's letter are all inconsistent with continuous headache before 19 January 2000.
71. It was, Mr Faulks submitted, inconceivable that a history of headaches was not given if the history was true. Indeed it would have been a dominant feature and inconceivable that Dr Ferguson would not have noted them down and then asked further questions if it was said that they were serious, constant or persisting. But deterioration is inconsistent with 'still not right'. Jason walked to the surgery on 19 January 2000 whereas a caring family would not have permitted him to do that if he had been in the condition that is suggested. Mr Goby would have driven him there. He also walked to school on 17 January and that is not consistent with him getting worse. A caring family wouldn't have sent him to school in such circumstances, and this family is a caring family.
72. There are therefore, Mr Faulks submitted, severe doubts as to both Samantha Allen's evidence and the family's evidence. In so far as Samantha Allen is concerned these doubts question not only what she said to Dr Ferguson but also what she would have said if asked about general questions, or about headaches. It is probable that Dr Ferguson, in accordance with her normal practice, did ask general questions to which no significant reply can have been given. There is no support from the expert evidence as to the finding of fact. Many children do not get headaches in Stage 1.
73. The Court should contrast paragraph 9 of the Particulars of Claim with paragraph 19 of the Particulars of Claim. The former does not say 'continuous' whereas the latter does. The pre-action letter stated that Samantha Allen told Dr Ferguson that Jason had been complaining of ear ache and headache and was not himself. It makes no mention of a complaint of continuous headaches. It is said in paragraph 7A of the Defence, as indeed Dr Ferguson gave in evidence, that there was no complaint of headache reported and indeed had a history of headache been reported then questions concerning its duration, history and position would have been asked.
74. Mr Faulks invited me to find that there were grave doubts about the family account, that Samantha Allen did not say to Dr Ferguson on two occasions that Jason had been suffering from continuous headaches, and nor did she mention headaches at all. If headache was mentioned, Samantha Allen could simply have presented it as part of an overall picture not an outstanding feature. In such circumstances there would, on the correct view of the GP expert's evidence as a whole be no breach of duty.
75. As to the Claimant's subsidiary and alternative case, namely that Dr Ferguson failed to take a proper history or elicit symptoms, Mr Faulks submitted that if there was no mention of headaches at all there was no duty to probe. There could not be a general duty upon a GP to continue asking questions where no information either from the carer or an examination had merited such questions. It should be noted that it is not pleaded that the question should have been asked about head pain if a headache was not mentioned by Samantha Allen. (See further information under paragraph 9 of the Particulars of Claim request and answer 3).
76. If however headaches were mentioned, but merely as one of a constellation of symptoms consistent with viral illness no action would be required. It is only if persistent headaches were spoken of by Samantha Allen that a GP would have to take action and ask further questions. What needed to be done would depend on the answers which were given. In this context, Mr Faulks submitted, if the Court rejected Samantha Allen's account that she reported continuous headaches, the Court should also doubt her account as to Jason's condition from 5 January to 19 January and hence doubt what answers she would have given if probed. The Court should also reject her evidence that no general questions were asked; the probability is that Dr Ferguson did ask them in accordance with her normal practice.
77. It was reasonable to assume that a carer would draw the GP's attention to any major symptom. The GP experts had agreed in their joint report that anorexia, lethargy, listlessness and pallor are a constellation of symptoms, with or without headache, that are commonly encountered with viral illnesses and that their very combination mitigates in favour of a viral illness. It is only therefore if the headaches are presented as a cardinal or dominant symptom that probing would be required.
78. There is no merit, Mr Faulks submits, in the assertion that the examination was perfunctory. Dr Cummings evidence upon this issue was incorrect, as was his evidence that neurological examination should have been carried out. That allegation was not pleaded and not pursued.
79. Any further enquiries which Dr Ferguson had made, would probably have revealed only occasional or intermittent headaches. If that is so it is agreed between the experts that even if Jason had been referred he would not have admitted. In the circumstances the diagnosis ?post viral was not unreasonable. There was no reason to ask any questions if headache was not mentioned, no reason to elicit further information at all. If headache was mentioned but only as an occasional or intermittent headache or as part of a constellation of symptoms consistent with viral illness there would be no duty to refer to hospital.
80. On the remaining issues on causation Mr Faulks submitted that it would not be substandard on the basis of Dr Novelli's evidence to wait until 26 January before giving anti-TBM therapy. Even when Jason was gravely ill, following his admission on 29 January 2000, it was another 48 hours or thereabouts before TB therapy was begun. Mr Faulks accepted that Dr Novelli did agree that a reasonably competent infectious diseases doctor would have recommended anti-TB therapy to start on 23 January but upon his evidence it remained open to the Court to find that what Dr Novelli was saying was that to commence such treatment on 26 January would have been within the right range of responses.
81. As to outcome Mr Faulks submitted that it was quite possible that the mechanism which resulted in damage to Jason would have been sufficiently advanced on the 26 January for a reversal to be impossible. Jason was, as Dr Novelli pointed out, unlucky to have any deficit in view of the fact he was at Stage 2 rather than Stage 3. The giving of anti-TB drugs does not turn off the tap and damage may follow notwithstanding the institution of appropriate therapy. As to 23 January, Dr Novelli considered that there would (changed in effect to "could" in cross-examination) still have been some cognitive impairment if treatment had been started on that date, relying for this proposition significantly upon the Schoeman paper.

The Claimant.

82. Mr Robin Oppenheim QC submitted on behalf of the Claimant that there were three possible findings as to what was said at the consultation on 19 January 2000. Firstly that continuous/constant headaches were mentioned, secondly that headaches, but not their severity or duration, were mentioned, and thirdly that headaches were not mentioned at all.
83. He submitted that the Court should find that headaches were mentioned, though probably not 'continuous' headaches in view of the way in which the letter of claim of 12 December 2005 was expressed in which it stated that Samantha Allen reported that he was complaining of ear ache and headache and paragraph 9 of the Particulars of Claim which repeats that assertion and does not assert a reference to continuous headache. Paragraph 9 sets out the account given by Samantha Allen to Dr Ferguson and paragraph 19.1 sets out the condition he in fact had, requiring a referral to hospital.
84. It is however Mr Oppenheim submitted, unnecessary for the Court to resolve the dispute as to whether headache was mentioned or not, as the evidence establishes that either Samantha Allen mentioned the Claimant was suffering from headache or alternatively that that fact would have been elicited as a matter of probability as part of the history taking that was required. General questions should still have been asked and the history probed, because concluding a post viral state in the absence of any positive signs of a viral illness required going over the history again. Once headaches were revealed, as they would have been if they had not been mentioned earlier, such probing should have involved questions as to the nature, duration, severity, location and provoking or relieving factors of the headaches and the answers to those questions would have elicited constant/ persistent headaches requiring a referral. Mr Faulks said he wished the Court to make a finding on this factual issue because of the manner in which he put his case and because the Defendant was entitled to have such a finding made.
85. Mr Oppenheim submitted that the medical records supported the family account of the onset and development of Jason's condition. The family are not medically literate and could not then have known the significance attached to the frequency of headaches.
86. Headaches at the back of the head are non specific as Dr Miles said. Nor, when they persist for two weeks with increasing frequency, with the Claimant holding the back of his head, could they be described as intermittent. An intermittent occasional headache is such as can be experienced in a viral illness; it lasts for an hour or two and then goes away or may get better after a day. It certainly does not go on, Dr Miles said, for two weeks. Dr Cummings expressed the view that the occipital headache in a 5 year old child was potentially sinister. The questions which should have asked would have revealed occipital headache.
87. Such a headache, at the back of the head, was described by Mr Goby at the Royal Devon and Exeter Hospital in the early hours of the morning on 5 January 2000. Dr Miles did not criticise the hospital for concluding that the condition was viral at that stage given the other symptoms of what had started as a cold on about 3 January.
88. Mr Goby became very upset about his son's condition but it matters not whether he was responsible, or his daughter Lisa, as he thought, for describing Jason's condition to the SHO at the Royal Devon and Exeter Hospital on 29 January 2000, as the Defendant accepts that the entry in the notes of no headache or visual complaints is wrong. The triage note only shortly earlier confirms that headache was reported as one of Jason's symptoms and in any event the SHO referred to '?headache' later in his note.
89. The entry made by the paediatric registrar at 2 a.m. on 30 January 2000 which the Defendant regards as crucial is not, in Mr Oppenheim's submission of significance. There is nothing which describes the frequency of headaches in the three week period and there is no reason to suppose that the note meant that headaches were fleeting in the three week period and continuous in the one week period. Mr and Mrs Goby explained that the reference to continuous headache for the last week was probably as a result of them saying that the headache was worse, and complained about more frequently in the week before admission, but that he was continually complaining of headache in the initial three week period. As the disease developed and meningeal involvement became greater, the worse the headache was likely to be.
90. The nursing assessment on 30 January 2000 refers to complaints of headache and stomach pains over the last month but the account of Dr Tripp the consultant paediatrician under whose care Jason was admitted is of particular importance. He notes in the history that Jason had headaches and neck ache and a rash, that he was 'seen at home x 2 by GP. Parents say continuously (or continuing) v. drowsy, headache. Last 48 h deterioration – increased drowsiness plus worse headache plus neck stiffness ..' This account is strongly supportive of the parent's account of persistent headache.
91. When seen by Dr Cross, after his transfer to Frenchay, it is noted that he 'also continued to complain of headache and neck pain .. acute deterioration last 48 hours'.
92. Mr Oppenheim submits that these records are supportive of the familial account and that no reliance can be placed on summaries in discharge letters or operation sheets.
93. Mr Oppenheim asked the Court to note that Mr and Mrs Goby and Samantha Allen were not shaken in cross-examination. As to the expert evidence on Jason's condition at 19 January Mr Oppenheim submitted that Dr Novelli accepted that once meninges and their pain receptors were involved, the pain response could not be turned off and there would be pain.
94. Dr Ferguson's limited recollection of the consultation of 19 January was an insufficient basis for displacing Samantha Allen's recollection of what she said. She had a positive recollection that she referred to headaches which were a central feature of her concern about Jason. She was not in fact asked any follow up questions, nor had her account probed by Dr Ferguson. Had she been asked further questions she would have given clear answers about the nature, duration, location and provoking or relieving factors of that headache.
95. Dr Ferguson did not note ear ache or stomach ache in the history though as they were presenting conditions she should have done. Her note was therefore incomplete in relation to earache and stomach ache and she is not entitled to say that she accepts the non sinister elements mentioned, though not in the note, whereas she does not accept the sinister element because it was not in the note. There is no basis for saying that the family got confused on the timing, or the use of pillows, or on a daily basis of the headache, especially when this evidence is essentially confirmed by the medical records. Why should Samantha Allen mention earache and stomach ache but not headache when that was clearly one of the family's concerns. The note and therefore the history taking is also incomplete in that it fails to record the fact that Jason was sleeping by day.
96. Dr Waters said that a complaint of a headache would not have surprised him in a post viral condition if it was intermittent. He would not ask about headaches if it fitted in with other symptoms unless the symptoms of headaches as described were 'pretty emphatic'. However he also said that in the absence of any positive signs of viral illness such pyrexia, cold, catarrh or cough, he would go over the history again to make the diagnosis. Dr Ferguson did not, on her own account, go over the history again. If she had done, on her own case the account to be elicited would have been one of intermittent headache but there is no such mention in the notes. This tends to confirm that the history was not probed.
97. This is consistent with the fact that this was an examination at the end of a long morning in a five minute consultation. There should have been a careful enquiry before a diagnosis of ?post viral was made, especially as none of the signs present on examination suggested the presence of a viral illness.
98. The words 'still not right' may nevertheless mean worse in some respects but overall still not well.
99. The Court should therefore conclude that headaches were mentioned by Samantha Allen to Dr Ferguson but that whether they were or not, and in what ever form, there has been a breach of duty, as the questions which should nevertheless have been asked would have elicited a history which required immediate referral to hospital.
100. Mr Oppenheim submitted that on the evidence, in view of Dr Novelli's concessions in cross-examination, causation was clearly established.

Conclusions.

101. At the heart of this case there is a serious factual dispute firstly as to the Claimant's condition as at 19 January 2000 and secondly as to what Samantha Allen told Dr Ferguson at the consultation on that date of headaches which Jason had experienced. In view of the importance of these factual disputes I paid particular attention to the manner in which the witnesses gave their evidence, their demeanour in the witness box, and how they gave their answers to the questions asked as well as the words used to answer them. The Court's assessment of the witnesses is central to the resolution of factual disputes of this nature and I have been greatly assisted in determining these matters by the submissions both written and oral from both parties which I have taken fully into account.
102. Mr Oppenheim has invited me to make no finding as to what was said at the consultation on the grounds that the evidence, and in particular the evidence of Dr Waters, renders such a finding unnecessary, as whatever was said, there was a duty to elicit further information which would have resulted in Jason being sent to hospital in any event. I do not accept that submission. It takes too narrow a view of the issues to be determined and takes no account of the fact that Mr Faulks submission is that the Court should conclude that Samantha Allen's evidence on this issue is so unsatisfactory that it throws doubt on the whole family account and what answers she would have given had Jason's history been further probed. It is not therefore inevitable, Mr Faulks submits, that answers about headaches would have been given which should have resulted in a referral to hospital. I will accordingly make findings on both these issues of fact.
103. Mr Faulks has warned me against sympathy and hindsight and I have heeded his warning. I have also borne in mind Jason's family are seeking to right the wrong which they strongly feel has occurred to Jason as a result of the failure to diagnose TBM earlier, and Dr Ferguson is seeking to defend herself against an allegation of negligence which she feels is unjustified. When analysing such evidence what is required is a detailed assessment of the evidence of each witness, the medical records and other documents and the submissions made of counsel.
104. When assessing the evidence of Mr and Mrs Goby and Samantha Allen I have taken into account the fact that Dr Ferguson can properly be regarded as a caring and competent doctor who firmly believed that she cannot have been told about headaches and had no reason to elicit any history further than she did. Her view is however based not on her recollection which is only limited, but inferences drawn from her normal practice and the content of her contemporaneous note.
105. It is both necessary and inevitable that the Court will consider the whole of the evidence both oral and documentary, in particular the pleadings, witness statements and medical records, when reaching a conclusion as to the two substantial factual issues. I propose to deal firstly with Jason's condition and secondly with whether Samantha Allen informed Dr Ferguson that Jason had had headaches. I turn first to the evidence of Mr and Mrs Goby as to Jason's condition.
106. I was impressed by the evidence of Mrs Goby. She gave her evidence in a clear, concise and intelligent manner in considerable detail. Her account of the night of 4/5 January 2000 and the cause of her ringing her husband at work on night shift and taking Jason to hospital was entirely clear and, I am satisfied entirely accurate. He was crying, said his was hurting and his neck was hurting and when he later woke up screaming with pain he again said that his head was hurting and his neck was hurting. When they arrived at the hospital Mr Goby in giving the history described headaches at the back of the head which was an unusual complaint in a child so young and could not properly be described as non specific. I am satisfied that Mrs Goby was accurate and telling me the truth when she said that Jason had a pain in his head from day 1, every day. She said that she was quite positive that he had had headaches from the start all through January; they were obviously getting worse after 19 January but he had them from day 1. I accept that evidence as accurate and honest. I reject any suggestion that Mrs Goby, who as I say struck me as a sensible honest and intelligent woman, was confusing the time scale or sequence or exaggerating in any way the headaches she observed during the period from 4 January 2000 to 19 January 2000. I do not consider that in some unconscious attempt to assist her son and his claim she was mistakenly describing headaches which happened post 19 January and not before then. I do not find her to be an unreliable historian.
107. It is not alleged that the family got their heads together in order to produce a dishonest account nor do I think Mrs Goby has spoken about the matter so often with her husband and her daughter that it is a case of her becoming convinced that headaches must have been present before the visit to Dr Ferguson as the claim is just and that was the only way it could succeed. Where there are inconsistencies or differences in her evidence and that of Mr Goby or Samantha Allen, none of them are such as to make me doubt her evidence. She regretted sending Jason to school when she did as he wasn't well but he wanted to go and seemed well enough even though he still had got headaches. The fact that she permitted him to go to school in such circumstances, when indeed it turned out he was far too unwell to do so, does not diminish her evidence as to his daily headaches only dulled by Calpol.
108. Mr Goby and Samantha Allen both described Jason as holding a cushion to the back of his head, where he said the pain was, and that he tended to have a cushion with him much of the day. I take note of Mr Faulks warning that such a powerful image might distort the evidence by demanding more weight than it merits, but the evidence was relevant and in spite of the fact that Mrs Goby did not give this account, I am satisfied having heard both Mr Goby and Miss Allen give evidence, that their description was neither contrived nor inaccurate.
109. Mr Goby clearly felt very strongly about Jason's condition and the failure to diagnose it, and his emotions may have prevented him on occasions from having a clear enough mind to give an accurate account to the doctors he saw. Furthermore his evidence before me spoke of deterioration, when his statement did not, and there is therefore inconsistency between the two. Nevertheless the impression I formed of him was of an emotional but honest man. I do not consider that he sought to exaggerate his evidence before me, and I do not consider that his account in evidence was inaccurate in any material respect. I am satisfied that his description of Jason experiencing headaches from the night of 4/5 January onwards on a daily basis is accurate, and that he has not in error described a severity of headache which only arose after 19 January. On the contrary I accept his evidence that Jason's headaches occurred everyday from 5 January to 19 January and were a constant feature between those dates and that he has not in error described a severity of headache which only arose after 19 January.
110. I have considered whether Dr Miles' summary of the Goby family account in his report of August 2008 with its absence of reference to headaches by Mr Goby undermines his account. Having heard his evidence however, I have concluded that it does not.
111. Samantha Allen's evidence as to Jason's condition was clear, detailed and coherent. She played a lesser role in caring for Jason than Mr and Mrs Goby but she was living in the same house and, when not at work, was able to observe her brother's condition. Furthermore she regularly had to look after Jason for an hour or so after she returned from work but before her mother returned from work. She had therefore ample opportunity and cause to observe Jason's condition. Mr Faulks submits however, that she wrongly stated in evidence that she had told Dr Ferguson that Jason had continuous headaches and that should throw doubt on her whole account, namely as to what she told Dr Ferguson about headaches, what Jason's condition was between 5 January and 19 January and therefore what answers she would have given had she been probed about his condition or headaches. This exaggeration of her evidence, Mr Faulks submits, undermines the whole family account. Such headache as there was between 5 January and 19 January was likely to have been intermittent and any further questions from Dr Ferguson would have revealed a level of headache consistent with post viral illness and not therefore sufficient to require Jason to be referred to hospital. The medical records as a whole, in particular the entry of the paediatric registrar Dr Atiti, support the view of the evidence that it was only in the last week before his admission on 29 January that his headaches had worsened to such an extent they should have caused concern.
112. Mr Oppenheim conceded that as the letter before action only referred to Samantha Allen telling Dr Ferguson of headache and earache with no reference to continuous headache, it was probably the case that no reference was in fact made by Samantha Allen to "continuous headache" at the consultation. I consider that this concession was rightly made. When she gave her evidence in-chief Samantha Allen said that she told Dr Ferguson that Jason was complaining of earache and headache. She made no reference at that stage of her evidence to "continuous". When she was cross-examined she said that she had referred in her witness statement to Jason constantly complaining of headaches, and that when she went into see Dr Ferguson she said that Jason was complaining of earache and headache. She then said "I think I did say to her that he had been having continuous headaches". She confirmed in re-examination and to questions by me that she did say continuous headaches to Dr Ferguson. The contents of the letter before action, of paragraph 9 of the Particulars of Claim, and the initially somewhat tentative manner in which the use of the word "continuous" at the consultation was introduced during the course of her evidence, create considerable uncertainty as to whether any reference was made to "continuous" headaches. What also persuades me that there was no reference to continuous headaches at the consultation is my conclusion that Dr Ferguson would have noted and acted upon a reference to "continuous headaches".
113. I do not however accept Mr Faulks submission that Samantha Allen's evidence upon this issue undermines the whole of her evidence both as to Jason's condition and as to what answer she would have given if further probed. The account which Samantha Allen gave me of how Jason behaved and what he complained of was one of considerable detail which was recounted to me clearly and naturally. The fact that Miss Allen may now have persuaded herself wrongly that she used the word "continuous" at the consultation does not in my judgment undermine the rest of her account as to Jason's condition. I am satisfied that she was an honest witness seeking to give me an accurate account. I will deal later with what was said at the consultation
114. The medical records are important in this case, not least because they are as Mr Faulks submits, contemporaneous documents. I have found them helpful in illuminating the factual issues though such medical records can rarely be decisive in view of the fact that their content is not usually a verbatim account of what is said, but a summary. Thus the quality and significance of the note will depend upon the ability of the historian to recount matters clearly and concisely, the emphasis which he or she places upon particular features of the account he or she is giving, how these are assessed by the note taker and the accuracy of the note taker. It is important to view the medical records as an entity and not give overdue emphasis to one or more particular sections or phrases. The weight to be attached to such records will depend upon the nature of the note and the circumstances of the case.
115. I have asked myself whether these medical records should diminish or undermine the favourable impression which I have indicated I formed when hearing the evidence from each of the family members. In particular I have asked whether the records indicate that whilst Jason had an occipital headache on 5 January, thereafter headache was no more than an intermittent or occasional feature until the last week or so before his admission when it became continuous and considerably worse.
116. When Jason was taken to see Dr Howard at the GP's surgery his parents thought that he had a cold. A raised temperature was noted and a rash found on his face. There was no complaint of headache at that time. After Mr Goby had gone to work on nightshift Jason did have a headache and neck ache and was so unwell that Mrs Goby felt the need to ask her husband to come back from work so that they could take him to hospital. They did this and the triage note at the Royal Devon and Exeter Hospital at 3am indicates that he had a rash all over his body and had a headache plus neck ache. The medical note at 3.30am notes that he had an occipital headache. This, as I have indicated earlier, indicates the account which Mr and Mrs Goby gave me in evidence, namely that Jason had a headache at the back of his head. I am satisfied on the evidence of Dr Miles and Dr Cummings that an occipital headache in a child of only five and a quarter years is unusual and cannot properly be described as non-specific though no blame can be attached to the Royal Devon and Exeter Hospital for coming to the conclusion that the complaint was viral at such an early stage in its history.
117. The next medical record is that of Dr Ferguson's note which contained no reference to headache and is the subject of a central factual dispute.
118. On 24 January 2000 Mr Goby did not complain to Dr Herdman at the GP's practice that Jason had had headaches. His explanation that he thought it was the same doctor as he had first seen and he did no repeat the whole history does not make sense, as the first doctor he saw was a man, Dr Howard, to whom no complaint of headache was made, and Dr Herdman was a woman. I formed the impression from Mr Goby's evidence that by 24 January 2000 he was in a state of extreme concern about his son's health. This was perhaps not surprising in view of the fact that over that weekend Jason had developed hallucinations and faecal and urinary incontinence. It would not be surprising if those were the predominant symptoms on his mind at that time.
119. On 29 January 2000 it is noted by a nurse at 2345 at the Royal Devon and Exeter A&E Department that he had had flu for three weeks and had amongst other things a headache. At 0005 the following morning, 30 January 2000, a doctor recorded that Jason had been unwell for a month, had been seen by his GP several times, and was noted to be unsteady on his feet. There was no reference to headache then nor in the subsequent note at a paediatric examination though that is to be contrasted both with the note taken by the nurse only shortly earlier and also the reference in the paediatric doctor's note of "?headache".
120. The examination which took place at 2am on 30^th January 2000 by the paediatric registrar Dr Atiti is, as I have indicated earlier, a record upon which considerable reliance is placed by Mr Faulks. On his interpretation the complaint being recorded was that Jason had had a headache for three weeks but that only became a continuous headache in the last week before admission. The difficulty about that submission is that the note does not specify the nature of the headache in the three week period simply that it was present and being complained of. The words certainly indicate that the headache was not continuous until the last week but do not indicate anything else about the nature, type or extent or frequency of the headache in the earlier three weeks. What the note does make clear is that complaints of headache were being made during that three week period which is consistent with the family account. The note may indicate no more, as Mr Oppenheim submitted, than that the Claimant complained of worse headaches and more frequent headaches in the final week prior to admission but that he had also complained about headaches in the three previous weeks. The note is not, in my judgment, inconsistent with the evidence of Mr and Mrs Goby that Jason complained on a daily basis of a headache at the back of his head which in the days before his admission got worse, more frequent and was no longer dulled by Calpol.
121. The nursing assessment at the Royal Devon and Exeter Hospital on 30 January 2000 after the decision was made to admit Jason to the Byre ward refers to complaints of headache over the last month. This again is consistent with the family account.
122. Dr Tripp, the consultant paediatrician, states in his note on 30 January 2000 that there is nothing to add to the history but states in his letter of transfer at 12noon the same day that he had an URTI at Christmas, complained of headaches and neck ache and a rash, that his parents say "continuously (or perhaps continuing) very drowsy, headache, last 48h deterioration increasing drowsiness and worse headache and neck stiffness…" This account, whether the correct interpretation of the note is that the word 'continuously' or 'continuing' is used, supports the family account that Jason had headaches throughout, and that those became worse shortly before his admission to hospital. The Frenchay note at 1330 on 30 January 2000 by Dr Cross also refers to complaints of headache and the fact that he continued to complain of headache, that he was sleeping all the time and there was an acute deterioration in the last 48 hours. This entry is also consistent with the account given to me by the family.
123. The note at 1830 also refers to headaches and a 48 hour deterioration with worse headaches and faecal and urinary incontinence and is consistent with the family's account.
124. The discharge summary, pre-operative note and report from the physiotherapy department are not in my judgment of any significant value in dealing with the factual issue. Each of them has been drawn from another report rather than a consultation with any member of the family and as a consequence are brief and selective. They do not assist me in the resolution of the factual issues.
125. In summary therefore there is nothing in the medical records which is decisive. They are supportive of the family account that Jason complained of headaches from 5 January to his admission and that those headaches worsened some days before he was admitted. Dr Atiti's note is not inconsistent with a persistent headache complained of on a regular, daily basis, for three weeks which became worse and continuous in the last week. Dr Tripp's transfer letter appears to support a headache for the whole of the period from 5 January which got worse in the last 48 hours. On balance the notes are overall consistent with the family account and certainly do not exclude it.
126. When considering the evidence as a whole, and on reconsidering the family account in the light of the medical records I am satisfied that Jason had a headache at the back of his head on a daily basis from 5 January until his admission, and that that headache worsened in the last few days before admission. He held a cushion to the back of his head to relieve the pain of the headache and he walked around holding that cushion on a daily basis. He was given Calpol to relieve the headache which gave some, but not always substantial relief, but in the last days before admission when the headache worsened Calpol could no longer dull the pain. The headaches were not continuous in the sense that they never ceased but they were daily and caused Jason pain and his parents and sister concern. They were a dominant feature of his condition until he became hallucinated, suffered from faecal and urinary incontinence, and became ataxic. Those symptoms, which commenced after his consultation with Dr Ferguson then became a very grave concern, though I am satisfied that in spite of those serious symptoms, somewhat overshadowing others when they developed, the headaches continued throughout and worsened in the last days.
127. At the time of the consultation with Dr Ferguson therefore Jason had had daily headaches since 5 January which were of concern to his parents and sister. The question arises as to whether they were of such concern to Samantha Allen that she informed Dr Ferguson about them. Samantha was only nineteen at the time, and not Jason's main carer. I have already found that she did not, as she recollected during the cross-examination and re-examination that she had, informed Dr Ferguson that Jason had experienced 'continuous' headaches. Had she done so, I am satisfied that Dr Ferguson would have been expressly alerted to the potentially grave situation that Jason was in.
128. It remains to be decided whether Samantha Allen mentioned headaches at all. Dr Ferguson is convinced that she did not as there is no reference to it in her note and, had it been mentioned, even without any adjective such as "continuous", she would have asked further questions about it. Samantha Allen on the other hand told me in her evidence in-chief and to begin with in cross-examination that she told Dr Ferguson that Jason had had headaches on two occasions once when initially describing his symptoms and second when he was being examined.
129. Mr Faulks submitted that Samantha Allen's description of Jason to Dr Ferguson "as still not right" meant firstly that there was no deterioration and secondly that she did not regard her brother's condition as being one of getting worse and causing concern. I do not accept that submission. As Mr Oppenheim submits the words "still not right", can easily encompass a condition in which a patient is worse in some respects but still not right. Nor does it indicate a lack of concern about the condition generally; it may suggest that because the condition has lasted so long, yet the patient is still not right, there is cause for concern.
130. The consultation took place at the end of normal surgery and was a five minute consultation. Jason was one of a number of children who are brought into surgery in January who appear to have or have had viral illnesses. I do not believe that the consultation was, as Samantha Allen remembered it, rushed or hurried, though I accept that it may have appeared so to her in view of the fact that it was only short and no follow up questions were asked of her.
131. Dr Ferguson's note does not include in its history the reference to both earache and stomach ache which she accepts were raised, though there is reference to ENT and abdomen in the description of examination. I do not regard the note as being perfunctory as Dr Cummings described it, but the absence of any reference to stomach ache or earache in the history when they were both part of the presenting symptoms, makes it more difficult for the defence to rely upon the absence of reference to headaches in the note per se as indicating that no mention of it can have been made.
132. That Dr Ferguson was unclear as to the extent of her recollection is demonstrated by her response to the letter before action. In that it was said that she had specifically asked whether he had complained of headaches. In evidence Dr Ferguson said that having thought constantly about the matter she decided that the closest thing to the truth would be that she would not have asked about headaches.
133. I have no doubt that Dr Ferguson was giving me an entirely honest and accurate account of what she recollected but her lack of recollection as to what was said and uncertainty about what would have been said by her does not amount to a strong refutation of the evidence and recollection of Samantha Allen.
134. Samantha Allen's account of the consultation was not significantly undermined in cross-examination. Although I have found that she did not inform Dr Ferguson that Jason had had continuous headaches, I am satisfied on her evidence, and considering the evidence as a whole, that she did inform Dr Ferguson, probably on two occasions, that Jason had had headaches. The probability is that Dr Ferguson, as she said in evidence, considered that Jason's presentation to be within her "comfort zone" of a diagnosis of post viral illness in which a headache was regarded by her as part of the normal features of the condition. As Dr Waters said in evidence headache might have been mentioned but not picked up on as it would not have been seen as a cardinal symptom against the background of viral illness. Whatever the reason for Dr Ferguson failing to pick up on the mention of headache I am satisfied on the evidence that Samantha Allen mentioned headache to her, though not as I have said continuous headache.
135. What therefore is the consequence of such a finding? Dr Ferguson was clear in her evidence that if headache had been mentioned at all she would have asked further questions upon it. In Dr Cumming's view she should have done and indeed should have explored the matter even if headache was not mentioned. The previous history involving sixteen days of illness, two visits to the surgery, a responsible non-complaining family and the constellation of complaints necessitated further enquiries and in particular specific enquiries as to headaches. Dr Waters accepted that it was necessary to ask general questions, but more particularly, because there were no positive signs of a viral illness, indeed all the signs were negative in that there was no pyrexia, no cough no cold or no catarrh, there would be a duty upon the doctor to go over the history including headache if that had been presented. If therefore the carer presented the symptom of headache then the doctor would have to ask questions about it. Dr Waters accepted that two weeks or more would be out of the bounds of normal for a viral illness and would therefore raise the index of suspicion.
136. I appreciate that Dr Waters initially said that he would not have explored the issue of headache if it had not been expressed in an emphatic way or unless it appeared as a cardinal symptom, but this evidence varied during cross-examination when it was pointed out to him that there was in fact no evidence of pyrexia or indeed any symptoms consistent with a viral illness. I have heeded Mr Faulks' submission that one must beware of taking isolated answers in cross-examination out of context, but having performed that task I am satisfied that Dr Waters accepted in cross-examination that once it was taken into account that there were only negative signs of viral illness it would be necessary to ask further questions of the carer and go over the history in order to reach a diagnosis of viral illness. Even if that is the wrong interpretation of Dr Waters' final position in cross-examination, which I do not believe it to be, I nevertheless accept the view of Dr Cummings that the absence of any signs of a viral illness together with the length of time that the condition had lasted, would require a careful exploring of the history.
137. I am satisfied on the evidence of Samantha Allen, and indeed Dr Ferguson's own account, that the further exploration of the symptoms necessitated by the presenting history did not take place. If Dr Ferguson did ask general questions in accordance with her normal practice this may have been the occasion when Samantha Allen told her that Jason had had headaches. As I have said I am satisfied that at some stage during the course of the consultation Samantha Allen did inform Dr Ferguson that Jason had suffered from them.
138. I am clear on the evidence of the family including that of Samantha Allen that Jason's condition had been such between 5 January and 19 January that if the history, including that of headache, had been further explored, as it should have been, Samantha Allen would have informed Dr Ferguson that Jason had suffered headaches at the back of his head, for a long time, that he had had those since the beginning, that they were very bad, that they were better when he was lying down and that they hurt more when he was sitting up. That information would and should, in the absence of any viral symptoms have caused Dr Ferguson to refer Jason to hospital. This is clear on the evidence of the GP experts. The failure of Dr Ferguson to ask those further questions given the history presented to her, including that of headache, amounted to a breach of duty.
139. I turn to consider the Claimant's alternative case, based upon the proposition that no reference was made to headaches of any kind but that the presenting history with its negative signs of viral illness required further questions of the carer to be asked which would have revealed the history of headache and equally resulted in Jason being referred to hospital.
140. My understanding of Dr Water's evidence is that in view of the negative findings as to viral illness the competent doctor would have to go back over the history before he or she could say that the condition was viral or post viral. Certainly that was the evidence of Dr Cummings. My view of the expert evidence on this issue and the facts is that general questions should have been asked and the history probed in view of the fact that the findings were negative in relation to a viral illness, even if no mention was made of headache at the initial recitation of the problems by the carer. I am satisfied that such general questions would have, and indeed on the facts of this case, did elicit the existence of headaches and that further probing would have shown that their seriousness indicated, in the absence of viral symptoms, the need for Jason to be referred to hospital. If I am wrong in considering that Dr Waters' evidence went as far as to allow for further probing of the history even if no headache was mentioned, I am satisfied on the basis of Dr Cummings' evidence that such a duty existed. I do not accept that Dr Cummings' description of Dr Ferguson's note as perfunctory is correct even though it was less than full and I note that his view that there should have been a neurological examination of Jason was neither pleaded nor pursued. Dr Cummings has however albeit if not recently, had substantial experience in dealing with children as his patients and I am impressed by both his evidence and Dr Miles' evidence that occipital headaches in a child for such a length of time was unusual and concerning, especially where there were no symptoms of a viral illness. The fact that Jason's condition had been continuing since 5 January and the findings as to viral illness were all negative, required both general questions and probing of the history. I am satisfied that the information which would have been given on such probing by Samantha Allen would have made it entirely clear that the headaches were present, and that they could not properly be described as intermittent occasional. They occurred every day and persisted even if they were not present without ever ceasing. I am therefore satisfied on the evidence that the Claimant would have succeeded on his alternative case even if headaches were not raised by Samantha Allen. The information was there to be elicited and had the further probing which should have taken place been carried out the information would have been revealed.
141. Causation is in my judgment clearly established. There is no dispute on the medical evidence that Jason would have been admitted to the Royal Devon and Exeter Hospital on the basis of the history given and available, that he would have undergone a CT scan on 20 January 2000 which would probably shown basal meningeal enhancement and hydrocephalus. He would then have been transferred to Frenchay Hospital where he would have undergone a lumbar puncture on 21 January 2000 which should have shown an increased number of white cells with a preponderance of lymphocytes, raised CSF protein, and a decreased CSF glucose. Advice would then have been sought from the infectious disease doctors before or after the lumbar puncture or alternatively over the weekend of 22-23 January 2000 in the light of the Claimant's probable deterioration that weekend and any rescanning that was then done. Anti TBM treatment would have been started on 23 January 2000 at the latest.
142. I do not consider that Dr Novelli's evidence, after cross-examination, could justify the Defendant in arguing that to commence anti TBM treatment on 26 January rather than 23 January would have been within the right range of responses. If however it did enable such an argument I reject it. I am satisfied on the evidence of Professor Klein and Dr Miles that the reasonably competent paediatrician would have sought advice from the infectious diseases doctor either before or after the lumbar puncture, and at the latest subsequent to the Claimant's probable deterioration over the weekend of 22-23 January. Dr Novelli accepted in cross-examination that he would have recommended anti-TBM therapy to start on 23 January and that reasonably competent infectious diseases doctors would have done so. There is no reason to suppose that the paediatrician at a local hospital would not have sought the appropriate advice at the right time from such reasonably competent infectious diseases doctor.
143. As to outcome, Dr Novelli conceded that the Schoeman paper was methodologically flawed and that the explanation for the hallucinations and faecal incontinence could well be related to the hydrocephalus and raised inter-cranial pressure, rather than any brain damage itself. His arguments for contending that there might still have been some cognitive impairment if treatment had been started on 23 January were thereby substantially diminished. I accept the evidence of Professor Klein that with anti TBM treatment commenced on 23 January 2000 as it should have been, there would have been a complete recovery and avoidance of the injuries complained of. By the conclusion of his evidence Dr Novelli did not significantly dissent from this conclusion.
144. For the reasons set out above I therefore conclude that the Claimant establishes liability and causation and is therefore entitled to damages against the Defendant.