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Cite as: [2015] EWHC 260 (QB)

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		Neutral Citation Number: [2015] EWHC 260 (QB)
		Case No: HQ12X01244

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

11/02/2015

B e f o r e :

SIR ROBERT NELSON
____________________

Between:

	SANDRA MCCABE	Claimant
	- and -
	Dr MOORE (2) DR FISHER (3) DR HALL	Defendants

____________________

Richard Partridge (instructed by Darbys Solicitors LLP) for the Claimant
Jane Mishcon (instructed by Nabarro LLP) for the Defendants
Hearing dates: 13th – 20th October 2014
____________________

HTML VERSION OF JUDGMENT
____________________

Sir Robert Nelson :

On 27 April 2009 the Claimant, then aged 57, suffered a stroke. This was caused by the condition of infective endocarditis from which the Claimant had been suffering, and which had remained undiagnosed. She claims that had the three Defendants, General Practitioners at the West Street Surgery, Chipping Norton, not acted negligently they would have considered infective endocarditis as a possible cause of her presentation, and would have investigated her appropriately and/or referred her to hospital immediately for investigation and treatment. Had this been done and the condition discovered, the Claimant contends that the stroke would have been avoided.

The essence of the Claimant's case is that each Defendant failed to heed what he or she was told about the symptoms which should have been suggestive of infective endocarditis, or alternatively, that each failed to ask the appropriate questions to elicit such symptoms. The Defendants contend that no such symptoms were reported to them by the Claimant, nor were any such symptoms reasonably apparent, and no duty to ask any further questions than those that they asked, arose. There is a considerable factual dispute as to what account of her symptoms the Claimant gave to each of the Defendants and what symptoms she was suffering from, or was likely to have been suffering from on the occasion of each consultation.

I am asked to deal with the issues of liability and causation, damages having been agreed between the parties.

The background facts

The Claimant is a married woman, the mother of four grown up children, and lives with her husband in Chipping Norton. She is a woman of great energy and determination. Prior to her health problems she worked as a teaching assistant, dinner lady, caretaker and cleaner at a school in Chipping Norton for 26 hours a week, and also did private cleaning work in the evenings. She was a member of a local running club and regularly used to run ten miles on a Sunday, 4 – 6 miles on a Tuesday and 3 – 4 miles on a Thursday. She took part in the London Marathon. She was also a keen swimmer and gave swimming lessons, and played badminton. She was also a committee member of the local League of Friends.

However in 2005 she was diagnosed as suffering from aortic valve disease and referred to the John Radcliffe Hospital. Her condition was managed until 11 August 2008 when her aortic valve was replaced with a biological tissue valve. Apart from the fact that the replacement valve started to narrow, the operation was successful and the Claimant was told that it would take her about 12 months to recover fully from the operation. She was able to return to work after about 6 months, though did not continue with the private cleaning or the swimming lessons. She returned to jogging in January 2009 when she felt she was recovering. She managed up to about 2 miles or so jogging and walking and kept this up even though she did not feel she was really improving.

From February through until her stroke on 27 April 2009 however the Claimant describes her condition as deteriorating. Her running stamina suddenly disappeared in February when she had to stop after running about 150 yards. Her muscles were pulling and felt as if they would just not work. She was forced to join the walkers in the running group rather than the runners. Her walking speed slowed, she experienced pain in her legs, particularly the left. She suffered hot flushes even though her menopause had ended some 8 years earlier and had to strip off her clothes to cool down. She sweated both day and night and her running partner, and friend, Catherine Sole said that she had told her that her night sweats caused her to change her pyjamas two or three times a night. The Claimant's husband, Robert McCabe, said that she suffered severe sweats at night; they were very apparent and occasionally she had to change her night clothes.

The Claimant's GP at the West Street Surgery was Dr Jane Pargeter who was a fellow member of the same running club as the Claimant and in whom the Claimant had confidence. She saw Dr Pargeter on 10 February 2009 and 3 March 2009. She did not know whether her difficulties with running had commenced before the February consultation but they had by 3 March 2009 and she thinks she would have raised this with Dr Pargeter. She accepts that she did not mention sweats or night sweats at that time. Dr Pargeter's note refers to the Claimant wanting to lose a bit more weight and get fitter. The Claimant accepts that she would have told Dr Pargeter if anything was troubling her.

The Claimant's evidence is that her condition worsened in March and her family and friends persuaded her that she could not wait for Dr Pargeter's return from Australia.

By the end of March the Claimant said that she was suffering from leg pain, difficulty in walking, sweats as if she had the menopause, flu like symptoms and was feeling progressively unwell, a pattern which continued and worsened until the time of her stroke.

The Claimant's account of the deterioration in her health was supported, subject to some inconsistencies, by her husband Robert McCabe, her daughter Philippa McCabe, her sister Doreen Wilson, and her friend Catherine Sole. The witnesses' recollections as to when the Claimant's health started to deteriorate and which problem emerged first were not identical, but all were clear that they started after Christmas 2008. Philippa McCabe noticed deterioration in her mother with inability to walk any distance, flu like symptoms and her complaining of hot flushes in January 2009 whereas the other witnesses thought the problems commenced in February 2009, as the Claimant herself said in evidence. Some thought that the leg pains came first, others that the sweats and hot flushes came first. Mr McCabe accepted that he was not clear as to the precise timing of the onset of symptoms though he thought it was about February 2009, the sweats being in early February before the leg pains. Doreen Wilson thought that the symptoms started in February and had noted that this was the time that the Claimant had become unwell in her diary. She thought that the sweats started a few weeks before the leg pain but both started by the end of February.

What these witnesses were clear about was the extent to which the Claimant became unwell and the progressive nature of the deterioration. Mr McCabe described his wife as someone who was always a "busy bee"; she was enormously involved in so many things. After her symptoms commenced she became weaker and lost enthusiasm for other activities. Indeed she became distressed by any form of physical activity. Initially he had thought that the leg pain was a reaction to starting to run again prematurely. He thought that the sweats were obviously the menopause but his wife told him that she had ceased the menopause many years before. He wondered about the heart valve but felt reassured by the visit to Dr Moore; they had done what had to be done by the visit to the doctors and Mrs McCabe had to soldier on. When she saw Dr Fisher and kidney stones were talked about Mr McCabe thought that they were home and dry. "You've got what they say" he thought with relief. He described his wife as very stubborn and obstinate and if she didn't feel that something was life threatening she would try to continue as normal. Thus she carried on with her work, albeit with the help of her sister and using the car or being driven because of her difficulties in walking. Mr McCabe was so concerned about her health that he thought they were going to lose her.

Philippa McCabe described her mother's condition of leg pain, sweats, flushes and general tiredness as being the complete opposite of what was normally the case. Furthermore her mother complained of leg pain which was unusual as she was normally completely stoic. Her leg pain became worse, her walking deteriorated and she became lethargic. Philippa McCabe felt that something was taking over her body. She said that by 6 April her mother was increasingly worse. She had never seen her look poorly before; she was very tired and walking was an issue. It was, Philippa McCabe said, obvious that something very drastic was going on.

Catherine Sole described the Claimant's health deteriorating across April. The Claimant's walking tolerance reduced to 20 yards before the pain in both legs became intolerable. Her family and friends persuaded her to go to see the GP which she did at the end of March. Catherine Sole also noted that the Claimant's memory had become poor after the stroke so that she accompanied her to see doctors as she couldn't always remember what the doctors had told her.

Doreen Wilson described the Claimant as struggling to walk. They belonged to a shared Thursday Club but the Claimant had lost her exercise tolerance and could not keep up. She continued to suffer menopause like symptoms and sweats. Her condition was worse across April when she appeared to be "just fading away". She phoned Dr Pargeter on 28 April 2009 to describe to her the weeks of deterioration that the Claimant had suffered. She regarded all of the Claimant's symptoms as being very worrying.

The Credibility of the Claimant

The Defendants obtained surveillance evidence on the Claimant. It demonstrated, the Defendants contended that the Claimant was able to do more in her daily life after the stroke than she had been telling the examining doctors. The total claim put forward on her behalf amounted to about £1M in total. After the Defendants surveillance video evidence was served quantum was agreed in the sum of £150,000. The Defendants, in their written opening, sought to put the video evidence before the court on the basis that it was relevant to the issue of credibility, and hence liability, as well as on the issue of quantum. At the commencement of the trial I indicated that I considered such evidence was in principle relevant to the issue of credibility and could and should be viewed by the Judge if the Defendants decided to adduce it.

Jane Mishcon, counsel for the Defendants cross-examined the Claimant on the contents of the surveillance video without showing it to her or the court with the consent of the Claimant's counsel. The Claimant explained that her ability to deal with daily life had indeed improved more than expected but this was because of the content of one of the medical reports which spelled out what her life would be like at 65, 70 and 80 on the then prognosis. When she read what it said would happen to her at 70 she said that she was not prepared to accept that, and didn't want it, so she tried to get her confidence back. It was her courage which had made her improve, increase her confidence and, together with her painkillers, increased her mobility.

After hearing the Claimant give evidence the Defendants' counsel decided not to request the court to view the video or put it to the Claimant. In her closing submissions, both written and oral Ms Mishcon abandoned any attack on the Claimant's credibility and indicated that they were a very nice family doing their best to recollect when the symptoms began. Their recollection that severe and significant symptoms began in February 2009 was incorrect but it was not submitted that it was untruthful.

Having heard the Claimant and her family and friend give evidence I am entirely satisfied that the Defendants were correct to abandon any attack on the Claimant's credibility or that of her witnesses. I formed the clear view that they were decent honest people seeking to give the court as accurate an account of what had happened as their recollections would permit.

The Consultations

Dr Moore – 30 March 2009

The Claimant was not a regular patient of Dr Moore; she had seen him before as a patient but not for a long time. They did know each other however because Mrs McCabe was a committee member of the League of Friends Committee at the Community Hospital in Chipping Norton and Dr Moore was a Medical Member of that Committee.

The Claimant's recollection is that they spent some time talking about the League of Friends. She was feeling very ill by the end of March and recalls telling him that she found it difficult to walk and to run and had pain in her legs. She told him that she was having sweats as if it was the menopause again and also had flu like symptoms. Dr Moore knew that she was a runner and asked about the pain. She tried to explain that it was not a running pain nor a running injury.

Dr Moore's notes read as follows:

"30.3.2009 West St. Surgery Dr Jonathan Moore	First
	E: Leg Pain
	S: Odd pain which started as shooting pain in L thigh down to foot and is now a more localised soreness over shin, no clear cause and lasted only 24 hours.
	Rx: Naproxen Tablets 250 mg
	P: Trial of NSAIDs, W & S, review INB"

Dr Moore's evidence was that the Claimant made no complaint to him of any symptoms other than those relating to her leg. He said that he did not recall her making any reference to the menopause and did not know where in such a consultation she would have brought in such a reference. As far as he could recollect in the flow of conversation it did not happen. Had such symptoms been mentioned he would have had to have asked a lot more questions to clarify what she was saying as he was aware of the fact that sweating was a sign of infective endocarditis in someone with an artificial valve. His memory however was that she talked merely about leg pain. As far as he could hear the Claimant was able to mount the steps to his room without difficulty.

Mr McCabe said that he spoke to his wife after her visit to Dr Moore and quizzed her about what had happened. She said that she had mentioned night sweats to Dr Moore and her legs and that Dr Moore had told her it was to do with her running and that she was probably over doing the exercise. Philippa McCabe however said that her mother told her that all she told Dr Moore about was her leg pain as did Catherine Sole.

In his witness statement and in his evidence Dr Moore said that he considered that the Claimant's leg pain, in so far as the shooting pain down to the foot was concerned, was sciatica, although he had made no reference to this in his note. It is also inconsistent with his description of the pain being "odd" and having "no clear cause" though he explained that in evidence as relating solely to the localised soreness over the shin. Dr Barraclough, the Defendant's GP expert said that he too thought that the shooting pain was sciatic but did not state that in his report. Dr McCarthy the Claimant's GP expert, said that the entry in the notes was not consistent with sciatica.

On 18 August 2009 a Significant Event Meeting took place at the Defendant's surgery. Dr Pargeter, Dr Moore and Dr Hall were amongst those present. Such meetings are held every six to eight weeks at the practice to discuss particular patients. Mrs McCabe's case was discussed. Her leg pains were described as "peculiar" and it was felt in retrospect, i.e. with hindsight, that many of her symptoms from January had been embolic phenomena. The action point was for doctors to consider diagnosis of sub acute bacterial endocarditis in any patients with valve replacements.

Dr Fisher – 6 April 2009

The Claimant was shopping with Catherine Sole in Cheltenham on 6 April 2009 when she experienced a sudden and severe pain. The shopping trip had to be abandoned and the Claimant went home. Catherine Sole telephoned Philippa McCabe and said that she felt that her mother needed a visit from the GP. Philippa McCabe therefore called the reception at West Street Surgery. Dr Fisher was as a consequence given a message to ring Mrs McCabe which he did. His note of that telephone conversation is as follows:-

"6.4.2009 West St. Surgery Dr Neil Fisher	First
	E: Telephone encounter
	S: Pt has hx of renal stones. Since today onset of R flank pain. No dysuria / haematuria. No diarrhoea
	Vomited once this afternoon – no blood. Able to keep small amounts of water down. Unable to make it in to be seen.
	P: I will go and see ……."

Dr Fisher said in evidence that Mrs McCabe had told him that she had felt a sudden onset of pain in her flank and had vomited once due to the pain. She had volunteered that she had a past history of renal stones and informed him that her symptoms felt like the previous episodes of renal colic. He asked her questions about her kidney and bladder symptoms and noted there was no dysuria and no haematuria, nor was there blood in the vomit. Because Mrs McCabe was in too much pain to come to the surgery Dr Fisher went to see her at her home at about 6.30pm. His notes of that visit on the evening of 6 April 2009, which had to be drawn up later, are as follows:-

"8.4.2009 West St. Surgery Dr Neil Fisher	First
	E: Home visit S: Further to above written in retrospect. When visited on evening of 6.4.9 pt now able to eat and drink with no further vomiting, pain had settled largely. Able to pass urine, no haematuria/ Dysuria. Note has naproxen for OA. No GI/ chest SX
	O: Apyrexial, p 76/min, abdo SNT, no masses felt. Well hydrated, chest clear
	Rx: Ciproflaxcin Tablets 500mg
	P: Urine dip – tr leu and blood. Daughter to drop MSU into practice tomorrow. Imp - ?? renal stone therefore to continue naproxen and add in 10/7 Cipro, likely need urol review as second episode Will d-w snrs. Explained red light sx 2 pt and she will call if further concerns"

The evidence of Philippa McCabe and Doreen Wilson, who were present at the house when Dr Fisher made his home visit indicate that the Claimant was very unwell that day. In evidence the Claimant said that she was able to remember nothing about the consultation at her home as she was in too much pain. She was too ill to say what she told Dr Fisher she was not able to recall the conversation - "not a word". When referred to paragraph 15 of her witness statement she said she did remember telling the GP about her sweats and legs but she thought she had got appendicitis or a kidney stone. Neither Philippa McCabe, nor Doreen Wilson heard the Claimant tell Dr Fisher about leg pain. Philippa McCabe did recall her mother referring to having flushes, but not night sweats, being tired and feeling poorly whereas Doreen Wilson did not recall either night sweats or menopausal symptoms being mentioned.

Dr Fisher said that the Claimant did not tell him about having hot flushes or flu like symptoms nor about leg pains. The complaint was about a very sudden onset of pain in the flank. Had he however been given a history of feeling flushed or hot flushes he would have been concerned. He would have asked about the duration of the flushes. If he had been told they had lasted for months his response would have depended upon how she was in herself; if she was very well he would have ordered blood tests because endocarditis would have been high on the list. If however she was unwell he would have ordered an acute medical admission. If told that there had been flushes and that they had lasted a long time, he would have asked further questions.

The Claimant had in fact suffered from renal colic in October 2005 and on 12 August 2009 it was noted in the Urology Department at the John Radcliffe Hospital that a 2 mm stone was found in her bladder which was thought to represent a recently passed stone. It is not clear whether the Claimant's symptoms on 6 April were due to her renal colic or were embolic phenomena related to her endocarditis.

Mr McCabe describes the Claimant as being very ill on the night of 6 April 2009. She was having hot flushes and severe sweats with a great deal of leg pain – real pain in her legs.

Dr Hall – 14 April 2009

By this date the Claimant states that she was suffering severe pain and difficulty with both her legs and sweats and was feeling unwell. Mr McCabe describes an enormous rise in body temperature with sweating while in bed together with severe leg pain. She told Dr Hall about the pain in her legs, that the medication was not doing her any good and that she seemed to be getting more pain. She said she was suffering sweats throughout the day and night and they were just like menopausal symptoms although she had gone through her menopause years ago. In her evidence the Claimant said that she did not think that she had mentioned hot flushes but was sure that she had said sweats. After Dr Hall had examined her she spoke about her night sweats and menopausal symptoms with a sort of slight laugh. She did mention that she had gone through the menopause years ago. When it was put to her in cross-examination that she did not mention that she was unwell or that she had flu like symptoms she said she was there because she was unwell.

Dr Hall had seen the Claimant before as a patient on two occasions. On 9 February 2002 she had attended with a thigh sprain on the left side while she was training for the London Marathon.

Dr Hall said that she was told by Mrs McCabe on 14 April 2009 that her loin pain was settling but that she had pain in her left leg. She was advised to stop taking the Ciproflaxcin. Dr Hall examined her. She found that the Claimant had a slightly unusual pain but she could not elicit any serious features on examination. She felt that she was probably suffering from a muscular problem or localised inflammatory reaction. Her notes of the consultation are as follows:-

"14.4.2009 West St. Surgery Dr Wendy Hall	Review
	E: Leg pain
	S: OK to stop abx as no growth on MSU. Haven't been taking Naproxin because of interactions but pain lt calf continues was getting heartburn
	O: V localised to top of lt calf but no swelling/erythema. Does have veins but no worse than usual
	Rx: Omeprazole Capsules (Gastro – Resistant) 20mg
	P: Cx Naproxin with PPI Review if worse/no better"

Although there is no reference to this in the notes Dr Hall said that she recalled that as Mrs McCabe was sitting up to get off the couch after her examination she made the comment "I don't know when these hot flushes are going to end". She made no complaint, Dr Hall said, that she was finding them particularly intrusive, nor did she imply that this was a recurrence of sweating. She understood from this that her menopausal symptoms had not yet settled which is not unusual for women in their fifties. At no point did Mrs McCabe say that she was feeling systemically unwell.

In evidence Dr Hall said that the Claimant's reference to hot flushes to her was a "throwaway remark" at the end of the consultation. Night sweats and flu like symptoms were not mentioned to her.

Dr Hall said that she might have said to the Claimant that it was not unusual for menopausal symptoms to carry on for several years, and that would have given the Claimant the opportunity to say that in her case they had stopped many years ago. Dr Hall said she did not enquire how long she had had the hot flushes for, as she had a systemically well person in front of her. She agreed in cross-examination that she did not clarify the term "hot flushes" used by the Claimant though she accepted that those could include profuse sweating. If she had been told that she had sweated every night since February she would have checked her temperature and her blood pressure but would not have regarded this as a red flag by itself, only if other signs also existed. If it was just sweats she would have arranged a blood test in a couple of days as she believed that night sweats even with an aortic value replacement was not a red flag in itself but only as a combination with other symptoms. She agreed that there was an index of suspicion of endocarditis but not that high if it was only sweats, as it could be the menopause. She did not feel that the Claimant looked like an ill patient and accepted that she was not in fact thinking of endocarditis at the time of the consultation nor when the Claimant raised "hot flushes". She took that to be the menopause lasting on for a number of years.

After her consultation with Dr Hall the Claimant said that she lost faith in the GPs and could see no point in going back to them. She did not do so even though her condition continued to get worse from day to day. Her sister made an appointment for her to see her GP again but the Claimant cancelled it. She felt they would do nothing to help her.

27 April 2009 – The Claimant's Stroke

The Claimant continued to go to work in spite of the fact that she continued to sweat profusely, had severe leg pains, difficulties with walking and felt weak and lethargic. On 27 April 2009 she collapsed at work. She felt as if she had suffered a bang on her hand, sat down and felt unable to get up. Her vision was affected and she could not read the numbers on her mobile phone but managed to phone her sister and asked her to pick her up. When Doreen Wilson arrived she found the Claimant on the floor unable to get up, with defective vision and a headache. The ambulance was called and she was taken to the A & E at Horton Hospital. The ambulance notes record what the Claimant described as having happened to her and noted the past medical history as aortic value replacement, hypotension, previous kidney stones, ongoing leg problems, bladder repair. She is recorded as saying that her GP's were investigating ongoing leg problems which caused her legs to feel heavy and her to have no control over them. It was noted on the journey her tunnel vision had slightly improved.

At the hospital it was noted that she still felt awful on admission and that her vision seemed strange. Her presenting complaint is noted as:-

"P/C

Unwell plus Palpitations

Dizzy/unsteady

Pins and needles L Arm

NO SOB, sweating, nausea, vomiting, chest pain, no headache."

Her account is noted as follows:-

"Pt at work went to put rubbish in bin, while doing so, started

to feel unwell, unsteady plus pins and needles L arm.

Denies any chest pain, nausea, vomiting, sub. Pt says

felt unable to stand unsteady with blurring of vision.

Episode lasted x 60 minutes

and still see blurred. Wear glasses for reading only.

Denies any cough/cold, dysuria or diarrhoea. "

Her Glasgow coma score was recorded as 15/15 i.e. fully conscious. The fact that she had suffered a stroke, as was later appreciated, was not diagnosed and she was sent home with a presumed urinary infection.

In spite of the fact that she had suffered a stroke and was feeling very unwell she nevertheless went to the urology appointment the following day on 28 April 2009 which Dr Fisher had arranged for her. It was found that there were still traces of blood in her urine. It was noted at the Urology Department that the Claimant had experienced colic pain, right, two weeks ago, with "No fever". Her sister, Doreen Wilson who had taken her to the urological appointment was very concerned about her condition and called Dr Pargeter. Dr Pargeter's note records that Doreen Wilson had said that she was very worried that the Claimant had ongoing pain in her legs and had collapsed last night and had been taken to Horton General Hospital where it was said that she had an infection. Her vision had gone overnight in her eyes and she was not seeing properly in either eye and had a pounding head. Dr Pargeter concluded that she needed to see her and the Claimant went to the surgery the following day.

On 29 April 2009 Dr Pargeter found that the Claimant was suffering from visual field defects, that she had felt faint and light headed at work and when she bent over she had noticed visual disturbance, tunnel like and possibly also double vision at times. She had a pounding head, and still on 29 April 2009 had a muzzy head and ongoing loss of visual field on the left. Dr Pargeter referred the Claimant to the Medical Assessment Unit at the John Radcliffe Hospital.

The admission notes record that the Claimant had been complaining of left leg pain in both calves for one month and visual problems for two days after feeling dizzy and having a funny turn. The likely diagnosis was ? stroke. Blood tests carried out the following day on 30 April 2009, showed a white blood cell count at 7.3 (normal) haemoglobin 10.0 (lower limit of normal 12) d-dimer test greater than 20,000 (upper limit of normal 500) and CRP of 30 (upper limit of normal 8).

The Claimant returned home on 30 April 2009 and was re-admitted on 2 May 2009 after a diagnosis of a further transient ischaemic attack was made. She was re-admitted for an echocardiogram on 13 May 2009 when the possibility of vegetations on the valves and a possible diagnosis of infective endocarditis was made. The trans-oesophageal echocardiogram was performed the following day on 14 May 2009.

The notes of 13 May 2009 at the John Radcliffe Medical Assessment Unit are as follows:

"PC: Nil acute, but Pt has been feeling constitutionally

unwell for in excess of one month.

HPC: night sweats on most nights since February.

Two nights ago Pt had to change five times

(Pt has completed menopause)

Denies rigors, but feels cold sometimes

Lethargy….

5 – 6 weeks Hx bilateral leg weakness"

On 14 May 2009 it was noted that the Claimant had possible splinter haemorrhages with an absent left radial pulse. The following day however it was noted that her radial pulse was easily palpable. The trans-oesophageal echocardiogram showed a very abnormal aortic valve appearance with vegetations and an abscess of the aortic route. On that day her haemoglobin was 9.6, the white blood counts 7.0, the CRP 36 and the ESR 16.

A cocktail of antibiotics was commenced on 15 May 2009. On 19 May 2009 the blood cultures demonstrated that the organism causing the infection was corynobacterium propinquum. This organism is an unusual cause of infective endocarditis and it is both unaggressive yet associated with poor outcomes.

The Onset and Progression of Infective Endocarditis

It was agreed by the microbiologists, Dr Gant on behalf of the Claimant and Professor Masterson on behalf of the Defendants, that the endocarditis would have started by 30 March 2009 at the latest.

The organism which caused the infection in this particular case was unusual. It was indolent or as described by both Dr Gant and Professor Masterson, "weedy" i.e. non-aggressive and almost incapable of causing damage except in a slow gradual way. Because the organism is so unusual precisely how it reacts is not known and it is therefore difficult to draw inferences by comparison with an ordinary organism, as to the expected progression of symptoms. Dr Gant did not agree with the proposition put to him in cross-examination that terrible leg pain, feeling unwell and night sweats from February did not fit with damage being caused in the slow and smouldering manner. A distinction must be made he said between the destruction of the organism and the body's response to that. There were many examples of organisms producing completely different responses in different patients and the Claimant's response of sweating was simply her response, even though the organism itself may have been progressing slowly.

The difficulty of drawing inferences in comparison with normal organisms is clearly demonstrated by the evidence of Dr Brecker, the Defendant's cardiologist, who said that he would have expected to see a significantly raised CPR (inflammatory marker) if endocarditis had continued for such a length of time. That is the typical response. In the Claimant's particular case however her CPR was 36 i.e. still only marginally abnormal at a time when it is beyond dispute that significant vegetations had developed together with an abscess, and that endocarditis was therefore well established. I do not consider that any safe inferences as to the Claimant's condition in February 2009 can be drawn from the inflammatory markers.

Professor Masterson said that the haemoglobin reading of 10 taken on 27 April 2009 (30 April 2009) demonstrated chronicity of infection, and expressed the view that that could mean that the condition of endocarditis had been going on for a month, from late March or longer than that. He accepted in cross-examination that the haemoglobin reading could fit with sweats having occurred from around February. He said it could do, yes.

Dr Coltart rejected the proposition that the low blood tests were not compatible with the history, stating that there is a graduation of response and it was not possible to say that it would not give rise to such a response.

There is no doubt that the endocarditis in the Claimant's case caused very substantial vegetation and an abscess. Dr Brecker and Dr Coltart agreed that the abscess, which was present takes about 4 to 6 weeks to develop, would have been present at about the first week of April. Both Dr Coltart and Dr Brecker agreed that by 14 April a trans-oesophageal echocardiogram would have been abnormal in that it would have shown the vegetation and abscess. Dr Brecker considered that it would have been just probably abnormal on 6 April though that is a grey area. Dr Coltart expressed the view that the trans-thoracic echocardiogram which is normally conducted in outpatients before any trans-oesophageal echocardiogram takes place after admission, would, with this history, have shown abnormalities. Dr Brecker thought that there was a 20% – 40% chance of a trans-thoracic cardiogram picking up the vegetation, but that a trans-oesophageal echocardiogram would be needed. You would not do the trans-oesophageal the same day, but it would be done within one day and, Dr Coltart said the results would be back the same day.

It is to be noted that the size of the vegetation and abscess in this case was significant. Furthermore the notes of the Medical Assessment Unit of the John Radcliffe dated 13 May 2009 raised the question of vegetation on the valves before the trans-oesophageal echocardiogram was carried out the following day, and a possible diagnosis of infective endocarditis is noted the day before the trans-oesophageal cardiogram confirmed that. Both cardiologists indicated in evidence that the preference would be to confirm the diagnosis before commencing antibiotics but the course of action to be taken would depend upon the firmness of the diagnosis. You will not, Dr Brecker said, wish to delay unnecessarily and if vegetations were found on the valve that would be a definite diagnosis. Blood cultures would then be taken and the doctor would be compelled to start antibiotics, adjusted later if necessary to allow for what the results of the blood cultures revealed.

The Issues

(1) When did the Claimant's symptoms commence and what was the Claimant's condition at the time of the various consultations with the Defendants?

The Claimant's account that leg pain, reduction in exercise tolerance, night sweats, and flu-like symptoms began in February 2009 is strongly challenged by the Defendants. It is submitted by Jane Mishcon on their behalf that had the Claimant experienced significant and severe symptoms from February 2009 she would have mentioned those to Dr Pargeter, on 3 March, but she did not do so, and, on the basis of the contemporaneous notes made by the three Defendants, did not tell them either. Her account is internally inconsistent as are her eye witnesses' accounts and inconsistent with each other. The account is also inconsistent, it is submitted, with other accounts of her condition given by the Claimant to medical practitioners and recorded in various hospital or other notes. Miss Mishcon also submits that the expert microbiology evidence describing the expected pattern of development of the organism to be a very slow gradual increase in the severity of the symptoms is inconsistent with the Claimant's account.

I will deal firstly with the issue raised upon the expert evidence before turning to an analysis of the other evidence. I am satisfied on the basis of the evidence of Dr Gant and Professor Masterton, and indeed the expert evidence generally, that the account of the symptoms commencing in February is not inconsistent with the low virulence C. propinquum infection which the Claimant had. This is a particularly unusual and rare organism the effect of which upon patients is not known. Patients respond differently and I accept Dr Gant's evidence that he has experienced cases where some patients have a fever with no night sweats some have night sweats and no fever and some have both symptoms. The response is not predictable, particularly in the case of this unusual organism. Night sweats could well be this patient's response to the effect of the organism upon her. At the end of his evidence, as stated above, Professor Masterton accepted that sweats from around February could fit, given the apparent chronicity of the infection.

I accept Dr Gant's evidence on this issue, whether or not supported by Professor Masterton, and conclude that the Claimant's account is not inconsistent with the potential development of the infection and its effect upon her. The expert evidence does not provide any basis for disbelieving or nullifying the Claimant's account. Nevertheless the unusual nature of this organism requires the court, together with the other inconsistencies relied upon, to examine the Claimant's account and that of her witnesses with care.

The issue is one of timing. The development of significant vegetation on the Claimant's aortic valve and the abscess make it clear beyond doubt that the developing endocarditis would have produced symptoms of that condition; the question is when. The Defendant submits that as none of the three Defendants, nor Dr Pargeter on 3 March 2009 recorded in their notes any complaints of reduction in exercise tolerance, night sweats, leg pain or weakness or flu-like symptoms, nor have any recollection of being told of these complaints, either they had not arisen at the time of any of those consultations, or were not sufficiently serious for the Claimant to have reported them.

It is correct, as Miss Mishcon submits, that Mr McCabe accepted that he could be mistaken about the timing of events though his recollection was that the sweats and leg pain commenced about February 2009. It is also right that Catherine Sole is mistaken in thinking that the Claimant still had a rash (a potential sign of endocarditis) in April when in fact it had disappeared on Dr Pargeter's notes by early February. But Mrs Sole is a close friend and running partner of the Claimant and saw her weekly on a very regular basis; she was clear in her evidence that the Claimant's problems with running started in February.

Doreen Wilson, the Claimant's sister, also saw her on a regular basis and was able to ascribe the commencement of her symptoms to February when, it appeared, she had noted in her diary that the Claimant was unwell. Again, Mrs Wilson was able to see and compare the Claimant's condition on a regular basis.

Philippa McCabe thought that the symptoms had started in January 2009 i.e. in the month before the other witnesses had stated that they had begun. She did have however a particular reason for recalling that they commenced early in the year by reason of the fact that she could relate it to the time when she actually left her parents home and moved in with her boyfriend, which was on Valentine's Day February 2009.

When the Claimant saw Dr Pargeter on 10 February 2009 and 3 March 2009 she did not mention night sweats, painful legs or flu-like symptoms although on the occasion of the first visit she said that maybe her symptoms had not commenced. The Claimant said in evidence that she did tell Dr Pargeter about her difficulties with running on 3 March 2009 although Dr Pargeter's note merely records, "still wants to lose a bit more weight and get fitter". Dr Pargeter was not called to give evidence. Whilst I accept that the Claimant may have raised the issue of problems with her running with Dr Pargeter, it appears that this was in the context of her general fitness rather than the emphasising of a particular complaint. I am satisfied on the evidence that had the Claimant felt at that time really concerned about any symptoms she was experiencing, she would have reported that to Dr Pargeter in whom she had great confidence. Taken together however I do not regard the Claimant's account and Dr Pargeter's note as being inconsistent with the Claimant experiencing early symptoms of a feeling of a lack of fitness and inability to run as well as she thought she ought to be able to do, by the beginning of March.

The Claimant continued work save for a few days off when she was feeling "a little bit unwell" until her stroke. She was able to do this she told me because of help from her sister and also with great difficulty in carrying on. The Defendants rely upon the fact that she continued at work as being evidence which supported the proposition that she was unlikely to be correct in saying that her symptoms started in February 2009. I am satisfied however that the Claimant, as she described to me in evidence, had to struggle to remain at work. It became increasingly difficult for her to do so and she was only able to do so with the use of a car to get there without having to walk, and with the help of her sister. The evidence clearly established that the Claimant is a stoic. The fact that she would carry on when she was at all able to do so and in general did not complain, could not be better exemplified by the fact that the day after she had her stroke she attended an appointment with the consultant urologist because it had already been arranged. It is the Claimant's nature which explains her ability to continue working rather than the fact that her evidence that she was feeling unwell is incorrect.

Both parties rely upon the medical records as assisting in determining the onset of symptoms. The Defendants rely upon the admission note of 29 April 2009 which records one month of pain in the left leg and both calves (D546) and a medical note made on the same day recording the same information (D549). This, the Defendants submit, is consistent with pain in the left leg commencing at the end of March 2009; as it contains no other complaint it fits exactly with the consultation with Dr Moore on 30 March. They also rely upon the hospital entry made on 13 May describing 5 - 6 weeks history of bilateral leg weakness (D477) indicating that the leg pain commenced at about the beginning of April. The fact that the Claimant complained on 13 May of having felt constitutionally unwell for more than one month indicates, the Defendants submit, that she began to feel unwell in or about early to mid April.

Mr Richard Partridge on behalf of the Claimant places considerable reliance upon the hospital notes of 13 May 2009 (D476, D477). They demonstrate, he submits, from the history taken from the Claimant and her family, that she had been feeling constitutionally unwell for at least one month; that she had experienced night sweats on most nights since February, having had to change 5 times two nights ago; that she had completed the menopause; that she denied fever but felt cold sometimes; that she suffered from lethargy; that she had had regular headaches since the stoke; that she had 5-6 weeks of bilateral leg weakness; that she had a renal stone one month ago which she passed; that she had had persistent haematuria.

Mr Partridge submits that this history taken on 13 May 2009 is contemporaneous, and made without any motive other than one to assist the medical management of the Claimant's condition. There is therefore, he submits, no reason to doubt that she had had night sweats since February, had been feeling constitutionally unwell for over a month, felt cold sometimes, suffered lethargy and had had bilateral leg weakness even though he submitted that it started earlier than 5-6 weeks before 13 May 2009.

In so far as the Claimant still relies upon the notes taken by the ambulance crew on 27 April 2009, and the urological notes of 28 April 2009 (though these are not emphasised in closing speeches as they were in evidence) I am satisfied that none of them assist me. I accept the submissions on this issue made by Mr Partridge in his closing written submissions paragraphs 21 – 22. Any history taken on these occasions was in respect of an entirely different presenting complaint, one of collapse and visual disturbance, wrongly diagnosed at the hospital as urinary tract infection when in fact it was a stroke. The hospital notes are also contradictory as Mr Partridge submits. The urological notes were taken for the purpose of the urological examination only as is clear from their face. The notes make no mention of the fact that a previous day the Claimant had suffered severe visual loss together with pounding headaches. I place no reliance upon them.

Catherine Sole said in evidence that she was able to identify specific dates of the period between 25 January 2009 and 29 March 2009 because she knew that during that period she was accompanying the Claimant to the Cardiac Rehabilitation Centre in Whitley. The Defendants submit that had the Claimant's exercise tolerance suddenly reduced as she said in evidence that it did, this would have been noticed by the cardiac nurse who would have supervised her rehabilitation. It must therefore be assumed, it is submitted, that the Claimant did not tell the cardiac nurse about her reduction in exercise tolerance and painful legs, as no action was taken which it surely would have been, the Defendants submit, had such symptoms been reported. There is a report from the Rehabilitation Centre dated 12 December 2008 (C389,390) which records that the only problem noted was slightly raised blood pressure. There is however no report with the papers for 2009 and the 2008 report indicates that the rehabilitation started on 1 October 2008 and was completed on 3 December 2008. If there was a further formal rehabilitation course it is surprising that there is no report about that course nor any assessment at its conclusion. Nor is it known whether any rehabilitation the Claimant attended at Whitley in 2009 was subject to monitoring or assessment by a cardiac nurse. It is difficult in the circumstances for any substantial reliance to be placed upon this submission, save insofar as it may throw doubt on Mrs Sole's recollection.

The Claimant and her witnesses describe her leg problem starting in February. The Claimant describes returning to jogging in January 2009 and managing two miles or so jogging and walking. She did not however feel that she was improving but she kept going. In February she describes her running stamina as suddenly disappearing and she had to stop after running about 150 yards when her legs were simply not working. Thereafter although she tried to run she had to join the walking group rather than the running group. The Defendants submit that a sudden reduction in running stamina is inconsistent with the indolent infection which it turned out the Claimant had. The Claimant and all her witnesses must be wrong about the leg problem starting in February, the Defendants submit, because the hospital notes support a later commencement at about the very end of March to early April 2009, and because no complaint was made to Dr Pargeter on 3 March. Catherine Sole's description of the Claimant's left leg becoming so painful that she could hardly walk 20 yards before the pain was unbearable by the end of March 2009 was not, the Defendants submit, consistent with the hospital notes or the GP's notes.

The flu-like symptoms also cannot have commenced as early as the Claimant said in evidence, the Defendants submit, because the hospital note of 13 May records the Claimant had been feeling constitutionally unwell for more than a month which only takes one back to early to mid April. Furthermore Catherine Sole does not recall flu-like symptoms in themselves. It has to be noted however that flu-like symptoms are variously described by the Claimant or her husband as her feeling "very unwell", and "weak and hot", and "hot and bothered", and" distressed with any form of physical activity". The changes in temperature and feeling unwell therefore were associated with flu-like symptoms and all the witnesses speak as to these problems.

It is also the Defendants case that the Claimant cannot have been suffering from night sweats (qualified as drenching night sweats). Miss Mishcon submits that the description of having to remove clothes when going outside to inside is more typical of hot flushes than sweats and states that neither the Claimant nor Mr McCabe said in their witness statement that the night sweats were such as to cause the Claimant to change her night clothes. It was only Catherine Sole who referred to this in her statement. When Mr McCabe did refer to the Claimant having to change her night clothes he said that that happened occasionally and was not sure about dates. The hospital note of 13 May does not, Miss Mishcon submits, record the changing of clothes as having been of a continuing problem only a reference to what had occurred two nights previously. This reference may however be no more than the most recent example of the problem. Nor did the Claimant mention night sweats to Dr Pargeter or to the cardiac nurse.

I have considered the evidence of the Claimant and her witnesses, and of the Defendants, the hospital and GP's notes and the Claimant's and the Defendant's submissions, both written and oral, with care. I have borne in mind the risk of the Claimant and her witnesses giving evidence with hindsight, now knowing what they think must have been the case, also the risk that they may simply be mistakenly believing that symptoms started much earlier than they did. Having done so I have come to the clear conclusion that the account of the Claimant and her witnesses as to the onset of the symptoms is in general correct. I am satisfied that the Claimant started jogging and walking again in January 2009 and kept going at it even though she didn't feel she was really improving. Sometime in February it did seem to her that her running stamina suddenly disappeared and she felt as though her legs were just not working. Leg pain developed in the left leg first, and sometime later, by the end of March or early April, was affecting both her legs. I am satisfied that the sweats, day and night, commenced at around the same time in February 2009 and that there after the Claimant became gradually more unwell. By the end of March when she saw Dr Moore she was no longer the energetic dynamo that she had spent most of her life being. I am satisfied from the evidence as a whole that during the period from 30 March 2009 to her stroke on 27 April 2009 she became progressively unwell. This is consistent with her account and that of her witnesses and the likely progression of the organism and its effect upon her.

I am satisfied that the Claimant experienced night sweats and that when these were bad they necessitated the change of her night clothes, several times a night. I accept the evidence of the Claimant, her husband, and Catherine Sole on this issue even though the Claimant's witness statement does not refer to having to change her night clothes. The worsening and progression of the condition is clear from the evidence of the Claimant and her witnesses and is also supported by the expert evidence. The changes in haemoglobin indicated, as Professor Masterton said, the chronicity of the condition since February or March, and the growing of the abscess from about the end of March 2009 and the progressive growth of significant vegetation on the aortic valve from the end of March or early April is consistent with progressive deterioration in the Claimant's condition. I am satisfied that her condition was worsening between 30 March and 14 April 2009, hence the need for three consultations with the GPs. I have no doubt that the Claimant's condition continued to worsen as the vegetations and abscess continued to develop after 14 April, but I am satisfied that by that date it had reached a point where the Claimant was very concerned about her health and would, had she been asked questions, have revealed all that concerned her.

I accept that throughout the period 30 March to 14 April the Claimant was becoming weaker and lethargic and feeling progressively unwell. The evidence of Mr McCabe, Doreen Wilson and Philippa McCabe satisfied me entirely that by 14 April 2009 the family were extremely worried about her condition. This was of course in contrast to her normally very fit and energetic self, but I have no doubt that she was increasingly unwell during this period.

By 6 April 2009 she was clearly unwell, though on this date her underlying condition was masked by what appeared to be a further episode of renal colic. I accept the evidence of Mr McCabe that it was with great relief when it appeared to him and his wife that this was the cause of the problem. The measure of relief was not just because the problem was thought to be colic but because of the extent to which she had been and was then unwell, and the belief that an explanation had been found for that state.

For the Claimant to see a GP again, a third time within 14 days is in itself, given her pre-valve replacement condition and attitude towards life, an indication of how she felt. I am satisfied that when she saw Dr Hall on 14 April 2009 she was suffering from leg pains, day and night sweats, feeling unwell, weak and lethargic, flu like symptoms and on occasions feeling cold. I accept the evidence of the Claimant and her witnesses as to her condition, having taken into account any effects which the stroke may have had upon her memory. I found them to be honest and convincing and their account to be essentially consistent with the expert evidence and the medical notes. In particular the notes of 13 May 2009, which are inherently likely to be recording entirely genuine complaints by the Claimant and her family at that time, support her account. Philippa McCabe had good reason to know her mother's condition in mid February, being able to pinpoint it by reference to her leaving home and going to share a house with her boyfriend. The Claimant's sister and Catherine Sole saw her regularly and had detailed knowledge of her condition. I am satisfied they are reliable witnesses with good reason to know the subject they were describing, and to be able to distinguish between early in the year and Spring.

(2) What did the Claimant tell each doctor of her condition?

(i) Dr Moore - 30 March 2009

There is substantial dispute on this issue between Dr Moore and the Claimant. The Claimant went to see Dr Moore rather than wait for Dr Pargeter's return because, I am satisfied on the evidence, she felt unwell. She was suffering from pain of the left leg by that time and clearly complained of that to Dr Moore. Her recollection is that she told Dr Moore that it was difficult to walk, that she was having sweats as if she had the menopause again even though it had finished years ago, and that she was having flu-like symptoms. She was trying to explain that it was not a running pain or a running injury. Dr Moore however recollected only the left leg being mentioned, he did not recall sweats being mentioned or the menopause. He said that as far as he could recollect in the flow of conversation it did not happen, and he did not know where in such a consultation she could bring in a reference to the menopause. Had sweats been mentioned however he would have to have asked a lot more questions to clarify what she was saying. He knew that sweats were a sign of infective endocarditis in someone with an artificial valve.

I have found this a difficult issue to resolve. Dr Moore's evidence upon it was somewhat diffident in parts but his memory was that they talked just about leg pain and his notes revealed nothing else. They certainly talked about the League of Friends as well. It is probable that there was discussion about whether the pain was related to running and it may be that the leg pain and its cause was the centre of the complaint. Furthermore the Claimant's condition was progressively worsening with the abscess on the aorta developing at about that time, and I am not satisfied on the balance of probabilities that the Claimant, a stoical person, would necessarily have voiced all her complaints then rather than at a later stage as they were worsening. What is clear is that the 30 March was about the time when the infective endocarditis was beginning to develop significantly with the growth of an abscess and a considerable number of vegetations growing on the valve.

Having considered the relevant evidence I am not satisfied on the balance of probabilities that on this occasion the Claimant brought to Dr Moore's attention any matter other than her difficulties with her left leg and the relationship of that problem to her running.

(ii) Dr Fisher – 6 April 2009

The Claimant herself said in evidence that she could remember "not a word" of her conversation with Dr Fisher as she was at the time feeling so unwell. She had told Dr Fisher at the outset about her history of renal colic and clearly felt that her condition was similar to the renal colic she had experienced before and therefore relevant to that. Neither Philippa McCabe nor Doreen Wilson recalls sweating or leg pain being directly reported to Dr Fisher and Dr Fisher's own recollection is that the matters he was informed of were accurately recorded in his notes and that no mention was made of night sweats, flu-like symptoms or any other symptoms consistent with infective endocarditis. If however Dr Fisher had been told that sweats and flushed feelings had been going for some months he would, if the patient was unwell have required acute medical admission. If she was very well he would have instigated blood tests, as endocarditis would have been high on his list.

I am satisfied that the Claimant's consultation with Dr Fisher both on the phone and in person dealt with complaints which were consistent with renal colic (whether it was in fact that or emboli) and nothing else. I am clear in the conclusion that no complaints were made by the Claimant of any symptoms such as sweating or flu-like symptoms which were potentially referable to endocarditis. Indeed both the Claimant and her husband were hopeful that renal colic was in fact the answer to the problems she was experiencing.

(iii) Dr Hall – 14 April 2009

This was the third occasion in 14 days that the Claimant had attended the Defendant's practice. I'm entirely satisfied that by 14 April 2009 she was suffering from severe pain and difficulty with both of her legs, and was suffering from day and night sweats which had commenced in February and which as far as the night sweats were concerned, caused profuse sweating on occasions sufficient for her to have to change her night clothes several times during the night. She felt weak, had lost energy and was feeling unwell. She could no longer walk far and had to drive instead. The changes in temperature, feeling of weakness and lethargy gave her 'flu like symptoms. She was not aware of having fevers but she certainly suffered from acute temperature changes and reported one month later on 13 May 2009, having felt cold sometimes, which is consistent with having a temperature. As Mr Partridge submits it is not known what the Claimants' temperature was during the time she was experiencing night sweats.