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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Ali Shah v North West London Hospital NHS Trust [2013] EWHC 4088 (QB) (18 December 2013) URL: https://www.bailii.org/ew/cases/EWHC/QB/2013/4088.html Cite as: [2013] EWHC 4088 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(SITTING AS A JUDGE OF THE HIGH COURT)
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MR. ASMAT ALI SHAH |
Claimant |
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- and - |
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NORTH WEST LONDON HOSPITAL NHS TRUST |
Defendant |
____________________
Mr Barnes for the Defendant
Hearing dates: 3rd, 4th & 5th December 2013
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Crown Copyright ©
His Honour Judge Collender QC :
INTRODUCTION
THE FACTS
"[She] said something was happening to her, that she felt something wrong in her tummy. Quickly I held her in my arms but the next moment she went into a fit and collapsed. Se twisted her right arm and lost her speech. It seemed as if she had a stroke."
"HPC – Pt woke to feed baby.
Pain in groin for past 5 hrs.
Numbness down rt side arm + leg 2hrs later…
O/E Pt panicky, hyperventilating, clammy, sweaty lying in bed…
Treatment Fluids given IV + blood taken . legs raised.
Blue call to hospital".
"abdominal pain, to right side leg pain, numbness in the right leg, no muscular force in right leg. Pt. blacked out".
"? DVT ? sepsis".
" After ~ 30 mins in A&E (R)leg started to recover – feels back to (N) now." (N = normal)
" sepsis ? cause".
"Felt "something explode inside"".
"Retroperitoneal and pelvic fluid collection, likely haemorrhage. The source of bleeding has not been identified. Possible thrombus in the right external iliac artery".
THE RESPECTIVE CASES OF THE PARTIES
THE LAW
"I myself would prefer to put it this way, that [a medical practitioner] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. ... Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."
"in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J. stated [1957] 1 W.L.R. 583, 587, that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of medical men." Later, at p. 588, he referred to "a standard of practice recognised as proper by a competent reasonable body of opinion." Again, in the passage which I have cited from Maynard's case, Lord Scarman refers to a "respectable" body of professional opinion. The use of these adjectives -responsible, reasonable and respectable--all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter."
At page 243 A-D after reference to authorities, he said:
"These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.
I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendant's conduct falls to be assessed."
THE EVIDENCE
"I waited in the waiting area for about an hour whilst Lailah's condition was assessed. Then I was allowed to see her. When I saw her she told me that just before she collapsed at home she felt as though something had exploded in her tummy. I discussed this information with the doctor on duty in detail. I expressed my concern and I told her that at home it was as if Lailah had had a stroke. The doctor said it couldn't be a stroke as the patient does not usually regain consciousness so soon afterwards. She completely disregarded the information about the explosion Lailah had felt but I kept on insisting that there was something seriously wrong with her. Lailah's right side and particularly her right leg were paralysed and remained numb for 3-4 hours before it regained some normality….Doctors and nurses were repeatedly told about her severe condition and that she experienced an explosion in her tummy before she collapsed at home".
"I thought this might be an ovarian cyst, it is more within the obstetric discipline, not within a secondary review."
"might well have not helped in the assessment",
and at question 5(B) that it:
"might well be helpful".
"Do the experts agree what an examination of the deceased's peripheral leg pulses following her arrival at hospital would probably have revealed?"
"JT felt that the experts would not be discussing what might have been found had the examination been carried out, as it would then be known whether there was a difference between the two sides or whether the pulses were palpable and regarded this as a failure of duty of care."
"you are looking for a cause for the reduced power and numbness – arterial supply was one thing to investigate".
"It was not mandatory but the wise doctor would have done it."
"There was no reason to believe that there would be a difference between the peripheral pulses?"
He responded:
"No, but it would be an experiment."
"When all the features are taken together, it points away from a significant bleed?"
He replied:
"Yes."
"If there was a bleed, it is likely that it would be an obstetric post partum bleed, and in the circumstances Dr. Thomas was entitled to be reassured by the findings of the obstetric team?"
He replied:
"Yes."
"(Q) There is nothing to point Dr. Thomas to a vascular injury? (A) No, but still have to test leg symptoms."
FINDING ON BREACH OF DUTY
"(Q) Be realistic, if a patient says that the leg feels normal again, it is not mandatory for an Accident and Emergency SHO to test anyway? (A) No, not mandatory, but a wise clinician would do. (Q) Dr. Thomas was entitled to be reassured? (A) She was entitled to be reassured."
CAUSATION
QUANTUM
£
General damages: 1,000
Funeral expenses 7,000
Bereavement award 12,027
Intangible benefits 22,750
Past losses
Period One 28.01.10 – 11.03.10
I accept that for about half this period Mrs Shah would, in any event, have been incapacitated by reason of the surgery she would have had to undergo to repair her arterial bleed, so only allow the loss for half the period, namely 3 weeks.
£4,010 x 115% x 75% x 50% = £1,729
Period Two 12.03.10 – 01.12.13
£96,709.92 x 115% x 75% = £83,412
I allow the following further past dependency losses as follows:
Past cleaning costs
£8,393
Taxi expenses
£600
Paid to other parents for assistance
£1,175
Total for past losses
£95,309
Future loss of dependency
To September 2018
£17,307.42 x 115% x 75% = £14,928 + £1,872 = £16,800 x3.95 = £66,360
From September 2018 to September 2020
£12,194.52 x 115% x 75% = £10,518 + £1,872 = £12,390 x 1.83 = £22,674
From September 2020 to September 2026
£9,581.26 x 115% x 75% = £8,264 + £1,872 = £10,135 x 4.03 = £40,847
From September 2026 to September 2028
£3,805.62 x 115% x 75% = £3,282 + £624 = £3,906 x 1.3 = £5,078
From September 2028
£1,892 x 115% x 75% = £1,632 + £624 = £2,256 x 10.99 = £24,792
Total of future dependency loss
£159,751