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
		19/12/2013

Mr Justice Jeremy Baker :

1. Ronald Brown ("Mr Brown") was born on 23.9.36 and Christine Brown ("Mrs Brown") was born on 15.1.42. They married on 1.12.62 and brought up three children. Mr and Mrs Brown were a talented, energetic and hardworking couple who lived life to the full and made valuable contributions to the communities in which they lived both in the UK and in Greece.
2. In about 1955 Mr Brown was involved in a road traffic accident as a result of which he underwent a splenectomy. One of the effects of this operation was to render Mr Brown more susceptible to the incidence of pulmonary emboli.
3. Unfortunately in the mid 1990s Mr Brown began to suffer some ill health. In 1995 he suffered an acute myocardial infarction, which was treated by way of a balloon angioplasty. There was some reoccurrence in the following year and a further coronary angioplasty was required.
4. In about 2002 Mr Brown began to suffer symptoms of breathlessness. In January 2003 an echocardiogram was carried out which showed some elevation of pulmonary artery pressure. In March/April 2003 a CT angiogram was carried out and multiple pulmonary emboli were found. This condition was treated with anti-coagulant drug therapy, namely Warfarin. The symptoms subsided and the Warfarin was stopped in July of that year.
5. About a year later in July of 2004 the symptoms of breathlessness reoccurred and he was again prescribed with Warfarin. At that time a perfusion scan showed some degree of pulmonary hypertension and an echocardiogram showed some elevation of pulmonary artery pressure. However a CT angiogram was also carried out at that time which was not considered to disclose convincing evidence of any further emboli. By July of 2005 Mr Brown was showing good effort tolerance and the Warfarin treatment was stopped.
6. Mr Brown suffered no further symptoms of breathlessness until towards the end of 2006 and the beginning of 2007. His first GP visit concerning these symptoms was on 12.1.07 and was followed by further visits on 19.1.07 and 12.4.07. At the first visit in January 2007 Mr Brown complained of occasional feelings of breathlessness on exertion. However by April 2007 it was noted that his breathlessness had become worse over the last 3 months. An X-ray was carried out which showed some prominence of the pulmonary arteries.
7. Mr Brown was understandably concerned as to the recurrence of his symptoms of breathlessness and decided to pay privately for the opinion of a consultant physician, Dr Shahid Hamid. His first consultation took place on 20.4.07. It was noted that whilst Mr Brown stated that he could walk long distances on the flat, he felt breathless on ascending hills and stairs. On that occasion Dr Hamid discounted the likelihood of a recurrence of pulmonary embolism and instead considered a possible diagnosis of chronic obstructive airways disease. He arranged for Mr Brown to undergo a lung function test which proved to be normal. Despite this, when Mr Brown saw him again on 27.4.07, Dr Hamid did not prescribe Warfarin and assessed him as being fit to travel to Greece. Accordingly Mr and Mrs Brown spent some time in Greece.
8. However during this period the symptoms of breathlessness became worse. When he saw Dr Hamid on 12.07.07 Mr Brown was noted to have told him that he was unable to walk more than about 50 yards on the flat without getting breathless. It was only on this third consultation that Dr Hamid arranged for a CT angiogram and an echocardiogram to take place. The former of which showed multiple pulmonary emboli and the latter showed quite severe pulmonary hypertension. It was only on the fourth consultation on 26.7.07 that Dr Hamid prescribed Warfarin to Mr Brown.
9. There was some initial improvement in Mr Brown's symptoms, such that by the end of August 2007 his breathing was reported as being much easier and he returned to Greece. Unfortunately this improvement was short lived and by the end of the year there was a further deterioration in his symptoms of breathlessness. He saw Dr Hamid on 29.11.07 when he was reported as being unable to walk more than about 10 – 15 yards on the flat without getting breathless. A further CT angiogram and echocardiogram were arranged, the former of which did not show any evidence of further pulmonary emboli and the latter of which showed some lowering of pulmonary artery pressure. However his left ventricular function had deteriorated and it was felt that this may be contributing towards his breathlessness.
10. As a result of the latter finding Mr Brown was seen by a consultant cardiac surgeon and a coronary angioplasty was carried out. This showed coronary heart disease which was treated by way of a coronary angioplasty in March of 2008. Mr Brown's symptoms continued and extensive investigations were carried out which by the end of 2009 not only confirmed the diagnosis of coronary heart disease, but significant thromboembolic pulmonary hypertension.
11. In the summer of 2010 Mr Brown underwent two surgical procedures for these conditions, namely a coronary artery bypass graft and a pulmonary endarterectomy. Over the course of the next two years Mr Brown suffered from increasing symptoms and required to be admitted to hospitals both in the UK and in Greece. Sadly he died whilst in Greece on 27.8.12. Although the post mortem examination suggested that this was due to acute heart failure, it is agreed in this case that it was in fact due to the effects of his pulmonary hypertension.
12. Whilst he was alive Mr Brown was concerned as to the quality of advice which he had received from Dr Hamid in 2007, as a result of which he commenced an action claiming damages for alleged clinical negligence. Since his death this claim has been taken over by his widow on behalf of his estate and in her own right.
13. Although there were at one time issues in respect of liability relating to Dr Hamid's failure to advise Mr Brown not to travel to Greece and to seek the opinion of a cardiologist, these have not been pursued in the light of the admission of liability made on behalf of Dr Hamid that his discounting of a diagnosis of pulmonary embolism and the consequential failure to prescribe Warfarin, amounted to clinical negligence by him. Instead the trial in this case has concerned the assessment of consequential damages arising out of this admission of liability.
14. The initial opposing submissions may be encapsulated in this way. On behalf of the claimant it was submitted that the effect of the failure to prescribe Warfarin in April 2007 caused Mr Brown to suffer from pulmonary hypertension when he would otherwise not have done, or at least not have done until he had reached the stage of his normal life expectancy. Thus, as at the age of 71 in 2007 he had a life expectancy of about 13 years, he should have lived to 84 and the non-prescription has caused some 8 years loss of life and, during the period leading up to his death, Mr Brown has been caused significant symptoms of pain and suffering, such that general damages should be awarded in the sum of about £35 000.00. On behalf of the defendant it was submitted that Mr Brown would have suffered from pulmonary hypertension in any event and that the only effect of the failure to prescribe Warfarin was to accelerate the symptoms and death by a period of about 3 months, such that general damages should be awarded on this basis in the sum of £5 000.00.
15. Inevitably over the course of time and in particular during the course of the trial these divergent submissions have modified. The submission of the claimant is that as a result of the failure to prescribe, although Mr Brown may well have died from pulmonary hypertension in any event, its onset has been brought forward by a period of years and the rate of the progression of related symptoms has been exacerbated. On the other hand the defendant now asserts that the effect of the evidence is that all that Mr Brown has suffered is a loss of expectation of life, which is not a recoverable head of damage pursuant to s. 1(1)(a) of the Administration of Justice Act 1982. Accordingly the defendant now seeks to withdraw the concession made in the schedule of loss as to the assessment of general damages.
16. The evidence on behalf of the claimant has come from Mrs Brown and the consultant cardiologist, Dr Paul Kelly. The evidence on behalf of the defendant has come from the consultant physician, Professor Duncan Geddes and the consultant cardiologist, Professor J C Hall.
17. Dr Kelly provided two reports dated 10.5.11 and 26.4.13. In his first report, save for noting that the failure to properly investigate his symptoms in April 2007 had caused the management of both the coronary heart disease and pulmonary hypertension to be more complicated, leading to an adverse effect upon his quality of life and his life expectancy, he did not provide any detailed assessment upon these matters.
18. In his second report he provided his opinion, that the lack of appropriate treatment in 2007 lead to the onset of severe pulmonary hypertension, causing considerable symptoms of pain and discomfort over the years leading to his death.
19. He went on to say that at the age of 71 years Mr Brown's normal life expectancy would have been just over 13 years. Moreover that properly treated the coronary heart disease would not have significantly shortened this period. He considered that had prompt treatment been provided in April 2007,

"….then there is no reason to suspect that his life expectancy would have been significantly reduced from 84 years."

20. At the joint meeting of experts on 9.10.13, Dr Kelly put the matter in these terms,

"A diagnosis of pulmonary embolism could have been made soon after Mr Brown saw Dr Hamid in April 2007. If Warfarin had been commenced once a diagnosis had been made then there is every reason to expect that this would have had a beneficial effect upon reducing the impact of the pulmonary emboli that had already occurred, and that may have occurred subsequently. As such, the effect upon his quality of life and life expectancy would have been reduced. It is difficult to quantify this but considering the excellent clinical response that he had to treatment in 2003/04 there appears reason to suspect that his clinical course may have been different to that which transpired."

He went on to state that,

"….although there was some evidence of raised pulmonary pressure in April 2007; since Mr Brown had made an excellent clinical recovery in 2003 and 2004 (from a similar clinical presentation) then it was possible that he may have improved to a reasonable degree on this occasion too."

21. In his evidence Dr Kelly explained that his opinion as to the effect of prompt treatment in April 2007 was largely based upon Mr Brown's response to the treatment of the two earlier episodes of such symptoms, and that the occurrence of pulmonary emboli should not necessarily be viewed as a linear progression. In his opinion the significant deterioration in symptoms between April and July 2007 was likely to have been caused by the occurrence of further pulmonary emboli during that period. Once there had been this deterioration, Mr Brown's prognosis was, in Dr Kelly's opinion, "appalling." He was of the opinion that this situation could have been avoided if prompt treatment had been provided at the beginning of this period. He said that although Mr Brown may well have died from pulmonary hypertension regardless of the lack of treatment in April 2007, this was not necessarily so and there may have been a more general progression of this condition leading to his death.
22. He said that although during the course of the joint expert discussion the experts had concurred that there had been a delay in the onset of symptoms of around 12 months, he had reflected again upon this issue and returned to his earlier opinion, such that overall it should be measured in terms of a small number of years. Ultimately however Dr Kelly could not say, on the balance of probabilities, that it was necessarily the case that a better outcome would have been achieved.
23. Professor Geddes provided a report dated 22.7.13. He was of the view that prior to April 2007 Mr Brown was already suffering from pulmonary hypertension. He pointed out that in order for pulmonary hypertension to occur as a result of chronic thromboembolic disease, about 75% of the circulation is required to be blocked. In these circumstances, given the relatively modest period of delay and the progress of the symptoms thereafter, he was of the opinion that had prompt treatment been provided in April 2007 then,

"…I think that on balance of probabilities the progression would still have occurred but probably at a slower rate. The eventual outcome would have been the same but would have been delayed by an estimated 3 months."

24. At the joint experts' meeting, Professor Geddes reassessed his opinion and concluded that had prompt treatment been provided in April 2007 then,

"…Mr Brown's subsequent symptoms and death would not have been prevented but would have been delayed by a period estimated as between 3 and 12 months."

25. In evidence Professor Geddes stated that in these circumstances there are two main causes of breathlessness: firstly an acute episode of pulmonary emboli and; secondly pulmonary hypertension caused by chronic pulmonary emboli. In the present case he considered that in the period leading up to April 2007 and thereafter, Mr Brown's breathlessness was more likely to have been caused by the latter of these two conditions. The reasons why he favoured this diagnosis was not only the absence of the characteristics of the former, but the presence of the characteristics of the latter, including: the two previous symptomatic episodes of pulmonary emboli in 2003 and 2004; the incomplete recovery from the second of those episodes and; apart from an initial brief respite, the relentless deterioration of the symptoms despite the provision of Warfarin in July 2007. He said that the effect of this condition is that once developed the hypertension itself causes ongoing damage to the remaining functioning blood vessels, such that a vicious cycle ensues, which normally leads to death.
26. He accepted that the echocardiogram in the summer of 2004 had only shown mild pulmonary hypertension. However he pointed out that the perfusion scan had not only confirmed the condition but provided evidence of longer term damage to the pulmonary system. In this regard he attached more weight to the latter, as the former type of test only gives an evidential snap-shot. He agreed that in 2005 Mr Brown appeared to have made a good clinical recovery, but stated that this was characteristic of the "honeymoon" type of periods one can get with this type of pulmonary hypertension and was not in his opinion indicative of any lasting recovery from the condition.
27. He accepted that by July 2007 there was evidence of further pulmonary emboli which may have developed in the intervening period between April – July 2007 and which will have contributed to Mr Brown's symptoms. However these were small in size and as such he considered that given the overall history of the matter, the contribution from these was minor as compared with the major cause of Mr Brown's symptoms being due to the underlying pulmonary hypertension, as in his opinion the tipping point for this latter condition had already been reached by April 2007. In these circumstances he considered that although if Warfarin had been administered in April 2007 there would have been some period of delay in the onset of the worsening symptoms in July 2007, it would not have prevented them taking place.
28. In relation to the period of time by which these symptoms would have been delayed he stated that although he could no longer sustain only a 3 month period, he thought that the period was one which would be measured in months rather than years. He said that although it was a very difficult matter to provide an opinion upon, he would find it difficult to envisage a delay of more than a year. Thereafter the symptoms experienced by Mr Brown would have taken place regardless of the earlier administration of Warfarin.
29. Professor Hall provided a report dated 15.7.13. Although critical of Dr Hamid's lack of consideration of the diagnosis in April 2007, he doubted whether, given the very long period of time over which Mr Brown had been suffering from his condition, the 3 month delay would have had any effect upon its eventual outcome.
30. At the joint experts' meeting Professor Hall considered that by early 2007 Mr Brown was suffering from chronic pulmonary hypertension which would have already caused a large amount of damage to the pulmonary circulation. In these circumstances although the provision of warfarin at that stage would have had a beneficial effect, the nature and extent of that benefit was limited. Professor Hall considered that,

"….it would have very likely resulted in Mr Brown living for up to one year longer than he did."

31. It became apparent during the course of Professor Hall's evidence that pulmonary embolism has been a subject of major research by him during his professional career.
32. In evidence Professor Hall maintained that the history of Mr Brown's condition favoured the opinion that by early 2007 Mr Brown was already suffering from symptoms associated with chronic progressive pulmonary hypertension. He accepted that between April and July 2007 some further pulmonary emboli developed which may not have been the case had Warfarin been administered at the commencement of this period, and that in the past the provision of Warfarin had had a beneficial effect upon the pulmonary emboli that had occurred. He also accepted that the provision of Warfarin in April 2007 would have been likely to have effected some improvement in Mr Brown's condition, by way of dealing with some of he recently formed emboli and effecting some lowering in his pulmonary artery pressure.
33. However he said that because of the progression of the chronic condition since those earlier episodes, it was unlikely that the provision of Warfarin in April 2007 would have had as beneficial an effect as it did in the earlier episodes. Instead he considered that had Warfarin been provided to Mr Brown in April 2007 this would have postponed the period before the inevitable onset of symptoms by a period of between 6 – 18 months, so that for a period of about 12 months from April 2007 onwards Mr Brown would have felt considerably better than he did during this period as a result of the lack of diagnosis and the consequential non provision of Warfarin.
34. It is apparent that all three doctors had given very careful consideration to the potential effect of the non provision of Warfarin in April 2007 upon Mr Brown's condition. Although, unlike the other two doctors, Dr Kelly had seen and examined Mr Brown, given the relative importance of the results of the various objective tests in this case, I do not consider that this was an advantage which was of particular significance. It was clear from Dr Kelly's evidence that the main basis for his opinion was the history of Mr Brown's own reaction to having been provided with Warfarin on the two earlier occasions, together with the relatively rapid decline in his symptoms between April – July 2007.
35. However, as both of the other doctors pointed out this evidence has to be balanced against not only the results of the objective tests, but also the characteristic progress of a condition like pulmonary hypertension. In this regard I accept the evidence of Professor Geddes that it was of particular significance that the results of the perfusion scan in 2004 showed evidence of pulmonary hypertension, and that one of the characteristics of this condition is that once it has been established, the condition itself causes progressive damage to the relatively few remaining healthy blood vessels, which in turn leads to the type of relatively rapid decline that was evident in this case, and which continued, after a brief respite, despite the provision of Warfarin in July 2007.
36. Furthermore, I accept the evidence of Professor Hall that given the stage which the pulmonary hypertension had reached by April 2007, although the provision of Warfarin at that time may have prevented the development of further emboli, the extent of the pre existing damage was such that it would not have had the same level of benefit on Mr Brown's overall condition as the earlier provision of Warfarin had on his symptoms. As Professor Geddes pointed out and I accept, although the non provision of Warfarin may have allowed the development of some further symptomatic emboli, the size of these was such that given the history of pulmonary hypertension in this case, they would have only made a relatively modest contribution to the inevitable progression of Mr Brown's condition.
37. In these circumstances the question which arises is the effect which this contribution had upon the progress of Mr Brown's pre-existing pulmonary hypertension. Although at one point Dr Kelly expressed the view that it may have caused the onset of symptoms which otherwise would not have occurred, at least not to the same degree and until very much nearer Mr Brown's normal life expectancy, he appears to have moved away from this opinion. Indeed the level of confidence in which he eventually expressed his opinion was not one in which the court could reside particular confidence. The evidence in which I have more confidence and accept is that from both Professor Geddes and Professor Hall, namely that the effect of the non provision of Warfarin in April 2007 has been to accelerate the onset of the more severe symptoms associated with Mr Brown's pre existing condition of pulmonary hypertension by a period of about 12 months; a view which Dr Kelly also appears to have accepted in the course of the joint expert meeting.
38. As to the assessment of general damages for pain, suffering and loss of amenities, although during this period of about 12 months Mr Brown would in any event have been suffering from some relatively mild symptoms associated with his pre existing condition, he would not have suffered from the more severe symptoms which he went on to develop. This contrast includes the symptoms of breathlessness which allowed him to walk long distances on the flat, as opposed to those symptoms which prevented him from walking more than 50 yards. In addition, although damages for loss of expectation of life are not recoverable in this case, in assessing damages in respect of pain and suffering, the court is entitled to take into account any suffering likely to have been caused to Mr Brown by his awareness that his expectation of life had been reduced (s.1(1)(b) of the Administration of Justice Act 1982). In this regard I am of course mindful that this action was commenced by Mr Brown when he was still alive, and had the opportunity to discuss this matter with Dr Kelly. Moreover it is apparent from Mrs Brown's witness statement that Mr Brown suffered significant distress and anxiety as a result of the impact of the delayed diagnosis on his health. In these circumstances I consider that Mr Brown would have had sufficient awareness that the length of his life had been reduced, so as to include this matter within the award of damages.
39. I have been referred to the 12^th edition of the Judicial College's Guidelines for the assessment of General Damages in Personal Injury Cases. In particular those awards relating to both asbestos related disease and asthma. Although by no means a straight forward exercise, I consider that the appropriate award of general damages for pain, suffering and loss of amenities is £8 500.00.
40. It is submitted and to a certain extent conceded that dependant upon my findings in relation to the basis for the calculation of general damages for pain, suffering and loss of amenities a number of the originally pleaded heads of damage would not be sustainable. This will not of course apply to certain other heads, including damages for bereavement which will be recoverable in the sum of £11 800.00 under s.1A(3) of the Fatal Accidents Act 1976. However although damages for the recovery of funeral expenses "may" be recovered and indeed usually are recovered under s.3(5) of the 1976 Act, in the circumstances of this case, namely the acceleration of the symptoms associated with a pre existing condition by a relatively short period of time, I do not consider that it would be appropriate to make such an award.
41. It is accepted that during the period when Mr Brown would, but for the onset of more debilitating symptoms, have been able to work, an award of damages for his loss of earnings would be appropriate. The current claim based upon a period of 5 years and 4 months is £10 761.25. This figure is not challenged and on this basis an award of £2 000.00 is appropriate.
42. Equally it is accepted that during such a period Mr Brown would have deployed his considerable DIY skills. These have been valued at £13 333.32, again a figure which is not challenged, leading to an award of £2 500.00.
43. However in regard to those heads of loss including expenses in relation to care, medical fees, accommodation, travel and miscellaneous items I do not consider that it would be appropriate to make an award of damages in this case. As again, like those relating to funeral expenses, they would have had to be shortly incurred in any event and there is no evidence that they have been increased as a result of the defendant's negligence. In regard to the claim for losses arising out of the sale of their home, once Mr Brown's condition had deteriorated to a similar extent to that which pertained at the time when their house was sold, I do not consider that Mr and Mrs Brown would have been likely to have felt themselves under any less pressure to sell their home. Moreover I am not persuaded that at that time there would have been likely to be any more favourable market conditions than those which pertained when the sale took place.
44. There is one aspect of the medical expenses which in my judgement is recoverable, and that is the claim in respect of the first two consultations with the defendant. In this regard I accept that Mr Brown received no benefit at all from either of these two consultations and the consideration having failed the sum of £250.00 is recoverable.
45. In so far as the claims for loss of financial and services dependency is concerned, having already awarded damages for loss of earnings and the provision of DIY services for the full period which was caused by the defendant's negligence, I do not consider that any further period of loss under these heads is recoverable.
46. A claim for loss of special consortium has been made in this case due to the loss of love and affection which Mr Brown would otherwise have provided to his wife. Although this head of loss originated in a parent and child context in Regan v Williamson [1976] 1 WLR 305, the principle has since been recognised in a husband and wife relationship in a number of cases including, Mehet v Perry [1977] 2 All E R 529, Beesley v New Century Group Ltd [2008] EWHC 3033 (QB) and Devoy v William Doxford & sons Ltd [2009] EWHC 1598 (QB) . However although in principle such an award may be recoverable there is clearly a distinct overlap with the award of damages for bereavement. I note that in contrast to the present case the circumstances of those cases involved substantially longer periods of time over which such a loss had taken place. Although this difference could be allowed for in the quantum of any such an award, in the present case I am conscious that in addition to damages for bereavement, damages are also to be awarded for loss of DIY services. In those circumstances I do not consider that the extent of any loss in this case makes it appropriate to found a separate head of damages.
47. In so far as interest is concerned, the claimant will be entitled to interest at 2% pa from the date of the service of the claim form on damages for pain, suffering and loss of amenity. There will be interest at the full prevailing Special Investment Account rate from the date of death on damages for bereavement. There will be interest at half the prevailing Special Investment Account rate on special damages.