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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CARDIFF DISTRICT REGISTRY

		Cardiff Civil and Family Justice Centre, 2 Park Street, Cardiff, CF10 1ET (handed down at the RCJ)
		22/02/2016

Mr Justice Dove :

Introduction

1. This is a claim for clinical negligence said to have caused injury and consequential loss to the claimant. Prior to the hearing commencing damages including interest under all headings were agreed in the sum of £39,000. The trial of the matter therefore proceeded solely on the issues of breach of duty and causation.

Facts

2. On 23^rd April 2009 the claimant was playing football. She was the goalkeeper when a player kicked the ball and it hit her left hand bending it backwards. She then fell and took her weight through her left hand. In her evidence before me she described the hyperextension of her wrist as entailing the backs of her fingers touching her arm. She explained that the football was kicked with considerable force. She was in considerable pain but hoped after the incident that her injury would resolve. It did not, and when she woke up the following day her left wrist was swollen and painful. She described it as being swollen all the way around her wrist and purple from the emerging bruising.
3. As a result of her injury she attended hospital at Ysbyty Gwynedd Hospital in Bangor. She was initially seen by a triage nurse who took down her details and recorded her account of her injury as follows:

"Hyperextension injury to left hand since last night whilst playing football, today c o of pins and needles sensation to ring and small finger, little swelling and bruising, limited ROM."

4. Having waited in the waiting room she was called and seen by Dr Atkins. He examined her wrist. She was unable in her evidence to describe the detail of the tests which he undertook in examining her, or the manner in which she was examined physically by Dr Atkins. For his part Dr Atkins was unable to state definitively how he had examined the claimant since with the passage of time and the number of patients he had seen in the interim he no longer, understandably, had any independent direct recollection of what had occurred. In his witness statement Dr Atkins describes how at the time of the examination and for some period earlier that he habitually examined a wrist in order to examine whether or not an injury to the scaphoid bone could be excluded. In his witness statement he describes the procedure which he usually adopted in the following terms:

"I examined Ms Arkless' wrist by testing for scaphoid tenderness by palpating the wrist joint and anatomical snuff box to do this I place my thumb in the anatomical snuff box (between the extensor and abductor tendons of the thumb and distal to the radial styloid) and with my index finger on the scaphoid tubercle gently squeeze with reasonable pressure to elicit any tenderness. Then I tested for tenderness on axial compression by holding the wrist and thumb in each hand and gently extract and compress the joints between."

5. Following his examination Dr Atkins made the following note:

"Saving a goal hypertext L wrist/hand. Tender + swelling to distal radius/wrist. ASB non tender no pain on axial compression. Pins & needles to ulnar nerve distribution but movements ok. Xray wrist."

6. When the x-ray of the claimant's left wrist was undertaken it did not include specific x-rays to seek to examine whether or not there was a fracture of scaphoid of her left wrist. Whilst the x-rays showed the scaphoid bone they were not taken in the planes which are required in order to seek so far as possible to exhibit any fracture of the scaphoid. When Dr Atkins examined those x-rays he concluded that they did not show a fracture and he prescribed the fitting of a futurasplint. The futurasplint was fitted to the claimant by Linda Rycroft who again, understandably, has no direct recollection of providing it to the claimant but in her statement relies upon her usual practice. This would usually involve advice to the patient as to how to apply the splint and the importance of observing changes to the colour, sensation and movement of the patient's wrist, hand and fingers. She states that she would have advised the claimant to observe for increased pain and if at all concerned to return to the hospital or attend her GP. The note which Nurse Rycroft made of the examination was in the following terms:

"Futura splint given and explained, pt advised not to drive, as insurance may be invalidated. CSM advice given."

7. The claimant denies that she was advised to come back to the hospital and return to the Emergency Department if her wrist got worse. She maintained that all that the doctor had said was that she had sustained a bad sprain which would heal in 4-6 weeks and that she was not told to return if matters did not improve. She explained that this was different from the advice when she had previously attended hospital with a fracture to her toe and, on a separate occasion, to her back. On those occasions she had been clearly told to return if matters did not improve or if they worsened. In this respect I accept the evidence of the claimant who was throughout an entirely credible historian and who made no attempt in any way to exaggerate or embellish her claim. Where she was unable to recall an aspect of what had occurred she was entirely candid. The suggestion that she was told to return if matters did not improve or got worse is not supported by anything contained within the notes. Furthermore it is inconsistent with what in fact occurred and which I shall set out below. Thus insofar as there is any difference in this respect between the evidence of Nurse Rycroft and that of the claimant I prefer the claimant's account.
8. The claimant's pain in her left wrist continued and by late 2009 became so bad that she attended at her GP who advised her to continue wearing the splint and prescribed her with some drugs. The pain continued and on 2^nd January 2010 she again attended at the Emergency Department at the hospital and was told that she ought to visit her GP as she would have to wait a considerable time to be seen. For reasons associated with childcare she decided that she would not stay to be seen by the doctor.
9. On 19^th February 2010 she again attended at the Emergency Department at the hospital and having been told that she should visit her GP but being unwilling to do so without being examined by a doctor eventually she was seen by a doctor who having examined further x-rays of her wrist told her that she had an old fracture in her wrist. She subsequently attended the fracture clinic on 3^rd March 2010 when, upon her splint being removed, her wrist was painful and difficult to move. It was concluded by the medical staff that she would need an MRI scan. When she attended hospital again on 10^th June 2010 she was told that she had sustained a fracture in her wrist in 2009 and that it had not healed. She was advised that she would need a bone graft from her hip which she subsequently underwent on 31^st of May 2011. It is unnecessary for the purposes of this judgment, in the light of the agreement which has been reached in relation to damages, to set out at length the history of the claimant's subsequent treatment. Suffice to say that the operation in May 2011 was unsuccessful and the fracture did not heal. She underwent a further surgical procedure on 25^th March 2013 but following a CT scan in April 2013 it was confirmed that the fracture had still not united. It is clear from the medical evidence that has been obtained from both Mr Shewing on behalf of the claimant and Mr Burge on behalf of the defendant that further operative intervention will be required in order to address the claimant's continuing symptoms.
10. On 5^th April 2011 the claimant wrote instigating a complaint in relation to the treatment which had received at the hospital. In that letter she confirms that recollection that the doctor who saw her on 24^th April 2009 told her to her the splint on for 4-6 weeks and that then the injury would be fine. The complaint was initially responded to in a letter dated 20^th December 2011 from the defendant. However that did not bring the matter to a conclusion and on 30^th January 2013 Dr Atkins wrote to the Assistant Complaints Manager of the defendant. In that letter he recorded as follows:

"Further to your request, I have reviewed the casualty card and x-rays of my consultation with this lady on 24^th April 2009 at Ysbyty Gwynedd A&E. As I understand it she subsequently was found to have had a scaphoid fracture and unfortunately as the incident was almost 4 years ago I have no direct recollection of the consultation. However, according to the notes I made at the time this lady presented with a hyper-extension injury to her left wrist when saving a goal playing football and I documented tenderness and swelling to the distal radius and wrist. I also documented that there was no tenderness in the anatomical snuff box or pain on axial compression which are accepted tests for scaphoid tenderness. I documented that there was some paresthesia to the lateral border of her hand, but movements were normal. In view of that fact that there was no scaphoid tenderness I only did x-rays of her wrist rather than full scaphoid views which showed no fracture. I have reviewed these x-rays again and I am still unable to see any evidence of a scaphoid injury on these initial x-rays and I believe they were reported as such and she was discharged home with a futura splint."

11. The complaint was finally responded to following correspondence with the claimant's solicitors in a letter dated 17^th April 2013 written by the defendant's chief executive in which the following was observed in relation to whether or not there had been a negligent failure to identify a scaphoid fracture:

"Dr Atkins believes he adequately assessed you for a scaphoid injury when he saw you and management of rest and a splint was adequate considering his examination findings. Had he elicited some scaphoid tenderness, the management would have changed in that you would probably have been immobilised in plaster and brought back to Fracture Clinic in 10 days/ 2 weeks time for re-evaluation.

He is very sorry to hear that you went on to have a scaphoid fracture and can only apologise for any undue stress caused. However, on review of his notes made at the time, he does not believe he should have managed your injury any differently.

Having reviewed your records, Dr Perry is also of the opinion that at your first presentation, the examination performed was reasonable. Tenderness was found over your distal radius (the end of the larger of the two bones of the forearm, nearest the wrist) but two specific tests for tenderness of the scaphoid bone were both normal. For this reasons, x-rays of the wrist were obtained, but were not specific to scaphoid views."

As a result of this and other observations within that correspondence the claimant's complaint was not upheld.

12. Before leaving the examination of the facts in the case, and turning to the arguments in relation to breach of duty and causation, a further potential issue arises on the face of the expert evidence. The defendant's expert in relation to breach of duty, Mr Wardrope was unwilling to accept in the joint statement which he agreed with the claimant's expert on breach of duty Dr Jaffey on 13^th August 2015 that the claimant had in fact suffered a scaphoid fracture to her left wrist when she attended the hospital on 24^th April 2009. In answer to the question of whether or not a fracture of this kind was present when she attended hospital on 24^th April 2009 Mr Wardrope responded that it was possible that there was some type of scaphoid injury but that it did not exhibit the signs of a fracture but went on to produce avascular mecrosis. This reflected observations in his report on breach of duty dated May 2015 in which he carefully eschews a conclusion that a fracture had in fact occurred at the time when attended hospital on 24^th April 2009. In his evidence during cross-examination he contended that he continued to consider that there had not been a fracture of the scaphoid but was of the view there was some kind of bony injury perhaps in the nature of a hairline crack.
13. Notwithstanding the undoubted care with which Mr Wardrope has exercised when considering the position I am unable to accept his evidence that a fracture had not occurred when the claimant attended hospital. Indeed such was in effect conceded by Ms Sutton, who appeared on behalf of the defendant, and from the evidence of both Mr Shewring and Mr Burge, from both sides of the case, when considering the position in relation to quantum. They agreed in their joint report that on the balance of probabilities the claimant was suffering from a fractured scaphoid on her left wrist when she attended hospital on 24^th April 2009. Thus I am entirely satisfied on the evidence on the balance of probabilities that the claimant has established that when she attended hospital on 24^th April 2009 she had sustained a fracture to her scaphoid. The question which then arises is as to whether or not there was a breach of duty in the failure to treat and diagnose that injury.

The evidence in relation to breach of duty and legal principles

14. The question of whether or not there was a breach of duty in respect of the treatment which the claimant received has to be evaluated against the appropriate legal test from the decision in Bolam v Friern Hospital Management Committee (1957) 1 WLR 582. The essence of the test was distilled by Lord Scarman in the subsequent decision of the House of Lords in Sidaway v The Governors of Bethlem Royal Hospital (1985) AC 871 in the following terms:

"a doctor is not negligent if he acts in accordance with the practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice."

15. In this case assistance as to reasonable medical practice can be obtained from a document entitled "Guideline for the Management of Suspected Scaphoid Fractures in the Emergency Department" published by the College of Emergency Medicine in September 2013 ("The Guidelines"). Whilst this document was published after the events in question it was accepted by both the claimant's and the defendant's experts in relation to breach of duty as being authoritative in relation to appropriate clinical practice. It is based upon certain statistical studies related to clinical examination findings to which I shall turn below. The advice which it provides is as follows:

"6.1 Clinical examination

There is no one examination or combination of examinations that can reliably exclude a scaphoid fracture. This is based on a number of small level 3 studies which limits the reliability of the conclusions that can be drawn. The highest probability of fracture is in patients with ASB and ST tenderness combined with pain on LC of the thumb (sensitivity 100%; specificity 74%). ASB or ST tenderness also has a reasonable specificity and sensitivity.

It would be reasonable to consider the possibility of a scaphoid fracture if the patient has ASB or ST tenderness as this will pick up patients in both the above groups. These patients should undergo imaging."

[ASB = Anatomical Snuff Box; ST = Scaphoid Tubercle; LC = axial compression of the thumb]

16. Within the Guidelines there is an analysis of various studies dealing with the sensitivity of the three tests involved in evaluating whether or not a patient has sustained a scaphoid fracture to an accurate diagnosis of that fracture. The three tests, as outlined in the extract from the Guidelines provided above, are tenderness in the anatomical snuff box, scaphoid tubercle tenderness and axial loading or axial compression of the thumb. The analysis contained within the Guidelines showed that the sensitivity of the clinical examination tests were usually high, although the guidelines went on to suggest that their specificity was poor, indicating that many patients were found to be positive to the test in question who had not sustained a demonstrated fracture.
17. The evidence before the court also contained a further paper from February 2014 entitled "Adult Scaphoid Fracture Academic Emergency Medicine 10/1111/acem" published by Carpenter and others. This paper produces a meta-analysis of a variety of papers analysing the sensitivity and the specificity of a variety of clinical tests, including the three set out above, to diagnosing a scaphoid fracture. The paper aggregates in particular the sensitivity percentage for each of the tests examined within a number of studies. In relation to tenderness in the anatomical snuff box, the paper pools the results from six papers to demonstrate that 96% of patients who had a fracture would be positive to this test whereas 4% who had a fracture would not; in relation to axial compression of the thumb, it pools the results from a further six papers to arrive at a aggregate of 82% of patients with a fracture who will be positive to this test, and 18% who would not and finally it pools three papers to arrive an estimate of 92% of patients who have a fracture would be positive to the scaphoid tubercle tenderness test whereas 8% would not. Whilst it is not possible to precisely estimate the number of patients who would have a demonstrated fracture but who would not be positive to all three of the tests (because the statistics cannot be reliably aggregated), the medical experts all agreed that the percentage of such patients would be less than 4% on the basis that tenderness to the anatomical snuff box test would in accordance with the Carpenter paper be positive in 96% of cases.
18. The examination of the technique which was used by Dr Atkins in his clinical practice gave rise to controversy between Dr Jaffey and Mr Wardrope. Dr Atkins explained that in deploying the examination procedure which is described from his evidence above he, in effect, rolled together the anatomical snuff box tenderness test with testing for scaphoid tubercle tenderness by placing his thumb in the anatomical snuff box and his index finger on the scaphoid tubercle and squeezing so as to elicit any tenderness in both locations. Both Dr Jaffey and Mr Wardrope explained that that was not a technique that either of them had been taught or that either of them taught to their students. It was unconventional. Whilst Mr Wardrope considered that it was a reasonable means of undertaking two out of the three tests for a scaphoid fracture Dr Jaffey was far less convinced. It should be pointed out that in the joint statement between Dr Jaffey and Mr Wardrope, Dr Jaffey had accepted that the method of examination which was described in Dr Atkins' witness statement was "a reasonable scaphoid examination". He explained that his mind had been changed by seeing the examination performed in practice during the course of the evidence by Dr Atkins. His misgivings were that the use of the thumb rather than a finger to palpate for tenderness in the anatomical snuff box was too blunt an instrument. In particular when examining the claimant's hand, which was a smaller hand, he was concerned that it would not be possible to properly fit a thumb into the anatomical snuff box so as to properly elicit any tenderness from the scaphoid which in the course of this test forms the base of the snuff box. These were not misgivings that were shared by Mr Wardrope who could see no difficulty in deploying the thumb in order to examine the anatomical snuff box. Indeed, it was his practice when undertaking the three tests separately to use his thumb when examining the anatomical snuff box as a separate test from pressing over the scaphoid tubercle.
19. On the basis of Dr Jaffey's evidence the claimant contended that, firstly, Dr Atkins method of examination was not one that was deployed by a reasonable body of medical practitioners. It appeared to have been invented by himself and was not one which he had learnt from any reasonable body of medical practice but rather one that he had evolved during the course of his own medical practice without wider endorsement. On the basis of Dr Jaffey's evidence it was contended on behalf of the claimant that this form of examination failed the Bolam test.
20. Whilst quantum is agreed it was necessary for the parties to call the hand surgeons who had provided evidence in relation to the question of causation and prognosis in the case. That was because, in particular, in the joint statement Mr Shewring and Mr Burge had agreed the following question and answer:

"8) If the claimant was suffering from a fracture of the scaphoid, given the nature, site and extent of the fracture, would a competent examination have revealed tenderness of the anatomical snuff box.

a) On the balance of probabilities, examination would have revealed tenderness of the anatomical snuff box."

21. The significance of this answer is that it undermines the reliability of Dr Atkins evidence of what he found on examination. As has been set out above Dr Atkins record of his examination suggests that there was no tenderness of the anatomical snuff box; the answer agreed in the joint statement by Mr Shewring and Mr Burge suggests that that could not be correct since the nature of the claimant's injury would, on competent examination, have disclosed tenderness. In his evidence Mr Burge wished to qualify and recast the answer which is set out above. He pointed out that the 96% figure from the Carpenter paper is a figure which is, in effect, valid before any test is administered rather than being a predictor of what the test will produce. Thus he suggested that the answer to the question ought to be that either the claimant was the subject of a competent examination and was in the 4% of patients who have a fracture but who are not positive to anatomical snuff box tenderness or alternatively she was in the 96% who would be positive to the anatomical snuff box tenderness test but had not been competently examined by Dr Atkins. Mr Shewring stood by the answer which he had provided to question 8 as set out above. He accepted that it might be possible that the claimant could fall into the 4% category but that was as far as he was prepared to go.

Conclusions

22. In my view it is clear that reasonable medical practice necessary to satisfy the Bolam test must include examination of all three of the tests involved in establishing whether or not there has been a scaphoid fracture which have been set out above, namely, whether there is anatomical snuff box tenderness, scaphoid tubercle tenderness or tenderness on axial compression of the thumb. During the course of the hearing the question was explored as to whether or not the first sentence from Section 6.1 of the Guidelines quoted above contemplated that certain demonstrated fractures would not be capable of being diagnosed even if all three tests were deployed. Having heard the evidence in response to that suggestion I am satisfied, taking a forensic approach to the language of the Guidelines, that they may contemplate that there might be some cases which might escape diagnosis. However, in the light of the clinical studies quoted in the Guidelines, coupled with the further reinforcement of the analysis in the Carpenter paper, the category of patients who would have a subsequently demonstrated fracture but who would not provide a positive response to all three of the tests is, to quote Dr Jaffey, so vanishingly small that no doubt in common with many clinical guidelines of this sort, whilst they cannot be excluded they will be so tiny as to not justify an alteration or adjustment of the approach. Thus, it is clear to me from an examination of the Guidelines and the medical literature, coupled with the assistance of the expert witnesses, that it is essential in order to represent a reasonable body of medical practice for all three of the tests to be undertaken and for results to be elicited in respect of each of the three tests.
23. The first question which arises in the light of that conclusion is whether or not Dr Atkins in fact undertook a competent examination on 24^th April 2009, administering tests to elicit responses in relation to all three tests. It has to be recognised that there is no direct evidence upon which reliance can be placed in respect of what precisely he did when he undertook his examination. He has no independent memory himself but relies upon his usual practice; the claimant has no direct recollection of the precise nature of the examination. The issue as to whether or not, therefore, a competent examination eliciting responses in respect of all three tests has to be approached on the basis of such evidence as is available. I am satisfied on the balance of probabilities that, unfortunately, Dr Atkins did not undertake an examination which addressed and elicited responses in relation to all three tests and that, therefore, his examination fell below the requisite standard of care in order to satisfy to the Bolam test. My reasons for reaching that conclusion are as follows.
24. Firstly, it is necessary to observe that his notes compiled at the time do not record any separate results in relation to the scaphoid tubercle test. He contends that by virtue of the technique which he deployed, rolling up the anatomical snuff box test with the scaphoid tubercle test, that his record in relation to the anatomical snuff box test effectively comprises a result in relation to both tests. I am unconvinced by this suggestion. Firstly, in addition to the absence of a record for the scaphoid tubercle test in the contemporaneous notes, it is also in my view of some importance that in the subsequent correspondence relating to the claimant's complaint there is no reference to the undertaking of a test of tenderness at the scaphoid tubercle or that such could be read into the result in relation to the anatomical snuff box test. Secondly, whilst I do not doubt Dr Atkins's explanation of his usual form of examination it is accepted on all sides to be unconventional. All of the medical experts who expressed a view indicated that their practice was to administer each of the three tests separately and record the results from them separately. Two points in my view arise. Firstly, if the two tests are going to be rolled into one in the manner describe in the manner by Dr Atkins the precise administration of the two tests in one action would undoubtedly require a particular concentration upon ensuring that both tests are indeed embraced by the one manoeuvre. Secondly, failure to administer the three tests separately avoids the discipline of having to undertake and in particular record them separately. These features of Dr Atkins's technique support the potential, which in my view on that balance of probabilities occurred here, for the failure to adequately administer and elicit a result for scaphoid tubercle tenderness.
25. The final piece of the evidence which is in my view persuasive in relation to this issue is the statistical material as to the number of patients who have a negative response to all three tests but nevertheless have a demonstrated fracture. As set out above if the claimant had been competently examined and negative responses elicited to all three tests she would, as a person who in fact had a fracture on the balance of probabilities at the time, be one of less than 4% of the total of patients who in fact have a fracture.
26. All of these features combine to drive me to the conclusion on the balance of probabilities that, on this particular occasion, Dr Atkins failed to provide the claimant with a reasonable standard of care and treatment in that he failed to administer and elicit a result to all three tests and in particular he failed to administer and elicit a result to the scaphoid tubercle test.
27. It follows that in the light of that finding the claimant must succeed on liability. That conclusion arises without the need for me to form a conclusion as to whether or not, if administered with the undoubted additional care and concentration necessary, Dr Atkins's particular technique for testing for a scaphoid fracture, in and of itself passes the Bolam test. Since I heard evidence in relation to it, I would however observe that I was unpersuaded by Dr Jaffey's concerns in relation to the use of the thumb in testing for anatomical snuff box tenderness. I would not be prepared to condemn, in principle, the technique which Dr Atkins used and which was, potentially, capable of capturing a result to each of the three tests. I would not have found for the claimant purely and simply on the basis of the use of his technique. In my view, however, for the reasons which I have explained above, I am unable to conclude that the test was properly and competently carried out at the time of the claimant's examination on 24^th April 2009.
28. It follows from the matters that I have set out above that the claimant has established liability in this case for the clinical negligence. As I have already recorded damages were agreed in this case in the sum of £39,000 and therefore there should be judgment for the claimant in that sum.