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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Dowson v Lane  EWHC 642 (QB) (19 March 2020)
Cite as:  EWHC 642 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
SITTING AS A JUDGE OF THE HIGH COURT
| JOANNE DOWSON
|- and -
|DR ASHLEIGH LANE
Ms H M Mulholland (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Defendant
Hearing dates: 27 – 31 January 2020
Crown Copyright ©
HIS HONOUR JUDGE AUERBACH :
"… on 14 March 2014 to identify and treat appropriately the potentially significant problem in the Claimant's left foot. Charcot's arthropathy should have been considered in a diabetic, such as the Claimant, if there was redness, warmth or swelling, with or without deformity or pain, especially in the presence of peripheral neuropathy. While it would have been reasonable to arrange an urgent Doppler scan to eliminate DVT, this would have taken at most a week. Thereafter, once a DVT had been excluded, as it would have been, the [Defendant] should have made an urgent referral to the Medical Foot Clinic where the Claimant would have been seen by the end of March 2014."
"…on or shortly after 14.4.14, when the results of the Doppler scan excluding DVT became available to her, to make an urgent referral to the Medical Foot Clinic where the Claimant would have been seen by the end of April 2014."
"…on or shortly after 25.4.14, when the results of the ultrasound scan she had commissioned became available to her, and she already knew that DVT had been excluded, to make an urgent referral to the Medical Foot Clinic where the Claimant would have been seen in early May 2014."
The Factual Background and Chronology
Further Findings of Fact – Signs and Symptoms
The standard of care – the law.
"… 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."
"My Lords, I agree with these submissions to the extent that, 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  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.
There are decisions which demonstrate that the judge is entitled to approach expert professional opinion on this basis. For example, in Hucks v. Cole (a case from 1968 reported in  4 Med. L.R. 393), a doctor failed to treat with penicillin a patient who was suffering from septic places on her skin though he knew them to contain organisms capable of leading to puerperal fever. A number of distinguished doctors gave evidence that they would not, in the circumstances, have treated with penicillin. The Court of Appeal found the defendant to have been negligent. Sachs L.J. said, at p. 397:
"When the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then, however small the risk, the court must anxiously examine that lacuna--particularly if the risk can be easily and inexpensively avoided. If the court finds, on an analysis of the reasons given for not taking those precautions that, in the light of current professional knowledge, there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have been taken, its function is to state that fact and where necessary to state that it constitutes negligence. In such a case the practice will no doubt thereafter be altered to the benefit of patients. On such occasions the fact that other practitioners would have done the same thing as the defendant practitioner is a very weighty matter to be put on the scales on his behalf; but it is not, as Mr. Webster readily conceded, conclusive. The court must be vigilant to see whether the reasons given for putting a patient at risk are valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual adherence to out-of-date ideas."
Again, in Edward Wong Finance Co. Ltd. v. Johnson Stokes & Master  1 A.C. 296, the defendant's solicitors had conducted the completion of a mortgage transaction in "Hong Kong style" rather than in the old fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the borrowers subsequently to hand over the executed documents. This practice opened the gateway through which a dishonest solicitor for the borrower absconded with the loan money without providing the security documents for such loan. The Privy Council held that even though completion in Hong Kong style was almost universally adopted in Hong Kong and was therefore in accordance with a body of professional opinion there, the defendant's solicitors were liable for negligence because there was an obvious risk which could have been guarded against. Thus, the body of professional opinion, though almost universally held, was not reasonable or responsible.
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."
GP Expert Evidence
"Charcot's joint is the progressive degeneration of a weight bearing joint, resulting in disruption and deformity. Typically, there is lack of sensation, resulting in continued destruction of the joint. This neuropathy is more common in diabetes. The NICE guidelines state that this condition should be suspected in a diabetic if there is redness, warmth, swelling or deformity, especially in the presence of peripheral neuropathy. However, the diagnosis should be considered even if deformity is not present or pain is not reported. If this diagnosis is suspected, a referral should be made to the multidisciplinary foot team within a day. These guidelines were published in 2015, after the diagnosis was made for Mrs Dowson. However, whilst NICE provide guidelines which GPs will use as a guide, the basis of the practice, applying the Bolam test has been in place many a year in any case. It is with this in mind that I will provide my opinion on the management by the Defendant GP."
"1.7.1 Be aware that if a person with diabetes fractures their foot or ankle, it may progress to Charcot arthropathy.
1.7.2 Suspect acute Charcot arthropathy if there is redness, warmth, swelling or deformity (in particular, when the skin is intact), especially in the presence of peripheral neuropathy or renal failure. Think about acute Charcot arthropathy even when deformity is not present or pain is not reported.
1.7.3 To confirm the diagnosis of acute Charcot arthropathy, refer the person within 1 working day to the multidisciplinary foot care service for triage within 1 further working day. Offer non-weight-bearing treatment until definitive treatment can be started by the multidisciplinary foot care service.
1.7.4 If acute Charcot arthropathy is suspected, arrange a weight-bearing X-ray of the affected foot and ankle. Consider an MRI if the X-ray is normal but Charcot arthropathy is still suspected."
"It is considered that acute Charcot arthropathy should be suspected if there is redness, warmth, swelling or deformity, especially in the presence of peripheral neuropathy or chronic kidney disease. The presentation of Charcot foot is variable, depending on the stage of the disease. There may be swelling, distortion, loss of function and pain is considered to be present in 75%. Examination of the affected joint will usually reveal the presence of heat and redness over the skin of the joint, with an effusion and there may be instability. Investigation of a suspect Charcot joint involves performing an X-ray."
"From the above explanation, in my opinion a GP would suspect the presence of a Charcot joint, even though it is a rare occurrence, if a diabetic patient presents with a swollen foot and ankle and if, following examination, it is revealed that there is warmth, tenderness and swelling, especially in the presence of peripheral neuropathy."
Other Expert Evidence
"The clinical features which indicate a diagnosis of Charcot disease of foot include swelling of part of the foot, such as the mid-foot, usually in the context of reduced sensation, and progressive deformity of the foot. In the acute phase of Charcot degeneration of the foot there is increased warmth of the affected region, reflecting the inflammatory process which accompanies the Charcot changes."
Breach of Duty – Submissions, Discussion and Conclusions
"It seems to me thus respectfully that Lord Rodger in Fairchild accurately summarises the position when he says in paragraph 129 that in the cumulative cause case such as Wardlaw the 'but for' test is modified."
"In my view one cannot draw a distinction between medical negligence cases and others. I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. Hotson exemplifies such a situation. If the evidence demonstrates that 'but for' the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that 'but for' an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the 'but for' test is modified, and the claimant will succeed."