BD v The Royal Wolverhampton Hospitals NHS Trust

Key points of practice

Where medical notes contain objective errors or are of a poor quality, a judge will more readily doubt their reliability, notwithstanding the fact that they are contemporaneous documents.

The judgment

HHJ Oliver-Jones found after a trial lasting five days that “the Claimant suffered a rupture of her appendix at 02.00 on 2nd July [2010] and that a reasonably competent senior house officer could and should have suspected this and referred the Claimant for surgical opinion at 08.05 hours the same day.” General Damages were awarded in the sum of £23,000 and special damages agreed at £9000.

The facts

The Claimant was aged 25 at the time of the injury and 29 at trial. She had awoken at around 2 am on 2 July 2010 with stomach pain and attended A&E some 5 h later following four calls to NHS Direct. She was discharged at 9 am on 2 July by Mr Khan. She was then rushed back to A&E at 10 pm on 3 July. A different doctor, Mr Jamalapuram, at first uncovered no immediate signs of appendicitis or peritonitis such as guarding of the abdomen on his examination of the Claimant at 1.25 am on 4 July, although he recognised them on his second examination an hour later at 2.25 am and diagnosed suspected appendicitis resulting in further investigations and eventual surgical treatment at 12.30 on 4 July.

The Claimant was found to have suffered a perforated appendix and peritonitis which resulted in multiple inter-loop abscesses. An investigative laparoscopy was extended to a full laparotomy to wash out the Claimant’s abdomen and clear away the abscesses. The 14 cm laparotomy incision was made more significant by a post-operative infection.

The expert evidence

The case turned on two distinct points: What was the Claimant’s condition when she attended A&E? Secondly, had Mr Khan, the senior house officer who treated her, fallen below a reasonable standard of care in failing to diagnose or properly investigate the Claimant’s symptoms?

Both parties called expert evidence on these two issues. On the latter issue, Mr Evans for the Claimant and Mr Freij for the Defendant, A&E Consultants, agreed that if the Claimant’s factual account was correct then Mr Khan should not have discharged the Claimant when he did, less than 2 h after she had arrived. The main issue for the medical experts’ evidence therefore focused on what time the Claimant’s appendix ruptured.

In their joint report, Mr Royston and Mr Murray, Consultant Surgeons, had taken the step of adding an addendum stating

The Experts wish to state that in their opinion the difference between the evidence provided by the Claimant and her husband and the contemporaneous hospital records is very significant such that the outcome of the case probably rests on this. The Experts believe that the outcome of the case will depend on which evidence the Court accepts

Counsel for the Claimant suggested this view was mistaken in that there was more to the case than a straight conflict of fact, and that the experts still had a valuable role to play. Indeed, early on in the hearing it became clear that both parties were advancing cases which relied upon the Claimant’s condition being largely a-typical.

On the Claimant’s case, her appendix would have ruptured within 12–14 h of the first symptoms, quicker than would normally be expected for an appendix to rupture. The Defendant’s case at trial advanced upon the Claimant’s having an atypically located retroileal appendix; that her appendix only ruptured at 10 pm on 3 July; and that she was suffering from simultaneous but unrelated gastritis at the material time. As a result, the Defendant said that Mr Khan’s examination notes were accurate and the failure to diagnose appendicitis was not the result of his negligence but rather the atypical nature of the symptoms he was presented with.

The judge agreed with counsel’s view as to the benefit of the expert evidence, finding that a crucial question was how long it took multiple inter-loop abscesses to form after rupture of the appendix. His finding on this had to be based on the experts’ evidence. It assisted the Claimant that on this vital point Mr Murray for the Defendant “completely ignored the findings of multiple interloop abscesses and the loops of small bowel being stuck together. It is not clear that he ever read the operation record at all!” Consequently, he had failed to properly address this central issue prior to cross-examination. This failure was central in the judge’s rejection of Mr Murray’s expert evidence and preference for that of Mr Royston for the Claimant. The judge did note, however, that the experts were not assisted by both parties separately drawing up lengthy but often overlapping lists of questions for the experts to answer in the short time they had available for their joint meeting.

The Defendant’s case further foundered when Mr Murray ultimately accepted he did not understand the role of an expert witness, having never read Part 35 CPR or any guidance on it. As a result, he had changed his mind on the timing of the rupture without communicating this to the court or the Claimant; he believed that it was his duty to “come up with an explanation for the Claimant's symptoms” which fitted her account and Dr. Khan's notes; and thought that he “was instructed to answer the particulars of negligence” rather than express an opinion on the case. The judge felt this misunderstanding of the role of an expert witness meant he could place no reliance upon Mr Murray's evidence. Accordingly, he was satisfied that on the balance of probabilities rupture had occurred prior to the Claimant’s first visit to A&E.

The factual evidence

To succeed, the Claimant still had to show that Mr Khan could and should have referred the Claimant for a surgical opinion on her first visit to A&E. The parties’ evidence on the quality and content of Mr Khan’s two examinations was markedly different; the Claimant and her husband maintained there were only brief examinations curtailed by the degree of pain the Claimant was in. The Defendant relied upon Mr Khan’s note to show that he had performed a competent examination.

The transcripts and recordings for the NHS Direct calls formed a central part of the Claimant’s factual evidence. The ability to play them in court provided a rare, contemporaneous record of what and how the Claimant was feeling in the hours after, as the judge found, her appendix ruptured. The Claimant did not only have to rely solely on her description of the pain in cross examination but was supported by the recordings, which clearly showed she was in pain by “the tone of her voice and the strained way in which she speaks.” The judge was able to find as a fact that the Claimant’s “assessments of pain levels when talking to NHS Direct were accurate”.

This then supported the evidence of the Claimant and her husband that she had been in so much pain she had fought off Mr Khan’s attempts to examine her. Mr Khan’s notes did not match the Claimant’s witness evidence of excruciating pain or how she had sounded in the NHS Direct recordings. Furthermore “[t]here were obvious deficiencies in his notes” such as failing to record a figure for a pain score, despite “pain score” being written in the notes. When combined with Mr Khan being a “less than impressive witness” who was “deliberately evasive” and “unwilling to accept any degree of criticism or make any concessions at all, even where it was unlikely to be directly relevant to the issues in the case”, the judge was able to prefer the evidence of the Claimant. Accordingly, Mr Khan’s examination was “less than reasonably competent” and he should have at the least investigated the Claimant’s complaints further.

The damages

The parties agreed the figure of £9000 for special damages. No specific breakdown was agreed, but the Schedule of Loss pleaded a figure of £3433.48 inclusive of interest for past losses. The balance of £5566.52 was therefore for any future surgery to reduce the appearance of the scarring which was described as “significantly disfiguring.”

The judge was of the view that to determine General Damages he should consider:

48 h of unnecessary severe pain and suffering;

Counsel for both sides agreed there was little relevant case law and sought to draw analogies with other cases. The judge found the reported cases of little assistance, principally because they were out of court settlements and the reports provided insufficient detail. He found that the 48 h of severe pain and suffering and extended recovery was deserving a significant award in of itself. Added to this was the future risks arising from a laparotomy that the Claimant should not have had to undergo. He awarded a global figure of £10,000 for these matters.

Conclusion

The Claimant was assisted in her case by three factors in the evidence. Firstly, the misunderstanding by Mr Murray of his role as an expert witness with the consequent damage to his evidence. Secondly, the NHS Direct recordings allowing the judge to hear the pain in the Claimant's voice at the time in question. Thirdly, the inherent defects in Mr Khan's note which allowed the judge to depart from it as an accurate record of his examination of the Claimant and prefer instead the evidence of her and her husband.