Bloom v HM Assistant Deputy Coroner for the Northern District of London & Anor [2004] EWHC 3071 (Admin)

Case No CO/3077/2004

[2004] EWHC 3071 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Venue Royal Courts of Justice

Date Monday, 20th December 2004

Strand

London WC2

B E F O R E:

LORD JUSTICE TUCKEY

MR JUSTICE FIELD

Between

BERNARD BLOOMClaimant

-v-

Between

HM ASSISTANT DEPUTY CORONER FOR THE NORTHERN DISTRICT OF LONDONDefendant

WHIPPS CROSS UNIVERSITY HOSPITAL NHS TRUSTInterested Party

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR R FRANCIS QC (instructed by Myers Fletcher & Gordon) appeared for CLAIMANT

for THE DEFENDANT DID NOT ATTEND AND WAS NOT REPRESENTED

MS S LAMBERT (instructed by HEMPSONS) appeared for INTERESTED PARTY

J U D G M E N T

Monday, 20th December 2004

LORD JUSTICE TUCKEY:

This

[1]is an application, on the authority of the Attorney General, by Bernard Bloom under section 13 of the Coroners Act 1988 to quash the inquest held by Her Majesty's Assistant Deputy Coroner for the Northern District of London into the death of Mr Bloom's sister, Carmel Bloom. We are also asked to order a new inquest. In essence it is said that the inquest was inadequate and that new evidence justifies holding another one.

[2]It is a tragic case. Before the events which led to her death at the age of 54, the deceased was a fit and healthy professional woman. On Sunday 25th August 2002 she experienced excruciating pain in her left side. She relieved the pain with painkillers and antibiotics and continued with her life, but it returned on the evening of 27th August. Her husband took her to the Bupa Roding Hospital (where she worked) where a consultant general surgeon had agreed to examine her. She was admitted and the following evening, after x-rays and an ultrasound showed that she had had a kidney stone, a consultant urologist, Mr Hines, was asked to see her. He did so that evening (the 28th) at about 8.15pm. For present purposes the critical events occurred between that time and at about 6.00am the following morning.

[3]After examining the deceased, Mr Hines advised her and her husband that she should immediately undergo an operation to remove or bypass the stone by a closed procedure. She consented and it was undertaken that evening at about 9.40pm. By this time Mr Hines had enlisted the help of Dr Timmis, a consultant anaesthetist who he regularly worked with.

[4]In the course of the operation a quantity of pus came down the ureter. This indicated an infection which it was important to confine so that it did not enter the bloodstream. There was a risk that continued use of the instrumentation required to perform the procedure would do this, so it was completed with that in mind. By the end of it the deceased was receiving, or had received, three different kinds of antibiotics to combat the growth of bacteria and the risk of septicaemia.

[5]After the deceased had come round, Mr Hines explained what he had done and what he had found. Before leaving the hospital that evening he spoke to the ward nurses and asked them to perform regular observations of the deceased's vital signs and call him if there were any problems. At about 1.00am the following morning he was rung by one of the nurses to be told that the deceased's blood pressure was low. He instructed her to increase the intravenous fluids which she was being given, and the nurse did so. At about 3.00am Mr Hines was telephoned again to be told that the blood pressure was again low. He gave further instructions and attended the hospital about 30 minutes later. He remained with the deceased until about 5.15am when she was taken by ambulance to Whipps Cross Hospital.

[6]During Mr Hines' time with the deceased her condition fluctuated, but she developed early signs of pulmonary oedema and he became very concerned about her condition. For a time Mr Hines enlisted the help of Dr Darko, the resident doctor on duty at the Bupa hospital that night. He also summoned Dr Timmis who arrived some time after 4.00am.

[7]At some time between Mr Hines' return at 3.00am and 4.47am when the ambulance was called, a decision was taken that the deceased needed to be transferred to the intensive care unit of the Whipps Cross Hospital which had facilities to deal with what was obviously a very serious situation. The decision was either taken by Mr Hines, or by Dr Timmis, or by both, but it is not clear from the evidence given at the inquest when it was taken. The ambulance arrived at the Bupa hospital at 4.53am, but did not leave with the deceased until 5.15. There was evidence from the two-man ambulance crew that there was some confusion as to who was to accompany the deceased in the ambulance and that this accounted for some part of their delay in leaving.

[8]In the event it was Dr Timmis who went with the deceased in the ambulance. En route her condition deteriorated further. On arrival at the Whipps Cross Hospital at 5.30 she was transferred into the care of doctors working in the intensive care unit, although Dr Timmis, who also worked in that unit, assisted them. Shortly after her arrival the deceased suffered a cardiac arrest. She was revived but remained critically ill until she died on 8th September. Analysis of her urine, carried out within 24 hours of her arrival at Whipps Cross Hospital, showed that it contained gram-negative bacillus.

[9]Two post-mortems were performed; one on behalf of the coroner and the other by Dr Calder on behalf of the family. In his report, Dr Calder concluded that the immediate cause of death was multiple organ failure due to septicemia. He postulated a sequence of events starting with the development of the stone and the infection which this had caused. At some time gram-negative bacillus from the ureter had entered the bloodstream where it had rapidly multiplied. Such a bacillus is very difficult to control by antibiotics, he said, and contains and/or if attacked gives off, a toxin which can irreversibly damage the vital organs. This, he says, undoubtedly caused the deceased's cardiac arrest and eventually overcame all functions. Gram-negative septicemia was a rare complication of renal infection but could change a clinical situation to an irreversible position within a very short time.

[10]The coroner originally fixed the inquest for hearing on 20th May 2003. The family were represented by solicitors and counsel, Mr Block QC. By this time the notes from both hospitals had been disclosed to the family, but Mr Block asked the coroner to call the nursing staff who had been on duty between the time Mr Hines went home after the operation and when he came back again in the early hours of the following morning. He also asked for Dr Darko, the ambulance crew and the receiving doctors at the Whipps Cross Hospital to be called.

[11]Faced with these requests the coroner agreed to adjourn the inquest saying:

"... this must be a full inquiry and it must be seen to be a full inquiry. If there is information that can possibly assist with the factual sequence of events then it is right and proper that that evidence is heard as part of an inquest."

[12]So it was that the inquest was heard by the coroner without a jury on 5th August 2003. The deceased's husband, Dr Calder, Mr Hines, Dr Timmis, Sister Matthews (who was the sister in charge of the deceased's case that night at the Bupa hospital) and the two ambulance men, gave live evidence. Statements were read from another nurse who had cared for the deceased on the ward that night and from a number of the doctors involved in the deceased's treatment at Whipps Cross Hospital. The coroner had earlier decided not to call Dr Darko.

[13]We have a transcript of the evidence given at the inquest. In the course of his evidence Dr Calder volunteered that a gram-negative septicaemia had a very high, probably 75 to 80 per cent, mortality rate. He made it clear, however, that he would defer to the view of clinicians as to whether the condition could be combated by appropriate antibiotic treatment, and if so what that treatment should be.

[14]At the end of the evidence the coroner rehearsed the relevant law with Mr Block and the legal representative of some of the doctors. What he said was based on the decision of the Court of Appeal in R v HM Coroner for North Humberside& Scunthorpe ex parte Jamieson

[1995] QB 1

. In that case Lord Bingham, Master of the Rolls, had drawn a number of conclusions from the earlier authorities, including the circumstances in which it would be appropriate to include a verdict of self-neglect as a contributory cause of death. His eighth and ninth conclusions were:

"(8) Much of the difficulty to which verdicts of lack of care have given rise appear to be due to an almost inevitable confusion between this expression and the lack of care which is the foundation for a successful claim in common law negligence. Since many of those seeking that verdict do so as a stepping-stone towards such a claim the boundary is bound to become blurred. But lack of care in the context of an inquest has been correctly described as the obverse of self-neglect. It is to be hoped that in future the expression 'lack of care' may for practical purposes be deleted from the lexicon of inquests and replaced by 'neglect'. "(9) Neglect in this context means a gross failure to provide adequate nourishment or liquid, or provide or procure basic medical attention..."

Which, I add, must play some part in the causation of death. There was no dispute at the inquest that these were the principles which the coroner had to apply.

[15]After his discussion of the law, the coroner gave reasons for his verdict which was that the deceased had died of natural causes. He gave a chronological summary of what had happened and concluded by saying:

"We have heard from the nursing staff and we have heard from the ambulance service and in my judgement I am satisfied that the medical treatment that Mrs Bloom received was entirely appropriate for the condition that she suffered from. "

Finally turning to the report from Mr Ian Calder we can see that unfortunately the condition that she had was one that could turn very quickly into a condition which threatened life and that is in fact what happened. ... "In my judgement I do not see that there is any foundation for the suggestion that there was a failure to provide basic medical care. In fact the evidence that we have heard today demonstrates that the medical team did every thing they could both at the Roding Hospital and then at Whipps Cross Hospital in order to try and ensure that Mrs Bloom did not die. "Accordingly in the circumstances I find the following. "In my view this was a natural disease process which carried on to its natural conclusion and that unfortunately was not survivable."

[16]Before the hearing of the inquest the family had obtained a report from Dr Bristow, a consultant anaesthetist, which was strongly critical of Dr Timmis. This report concluded by saying that the cardiac arrest would have been prevented had Dr Timmis properly resuscitated the deceased prior to her transfer to Whipps Cross, properly monitored her during transfer, and, most importantly, effectively intubated and ventilated her prior to and during the transfer.

[17]The coroner was not asked to call Dr Bristow or any other independent medical expert, or provided with a copy of his report, although it was obviously used by Mr Block as the basis for his cross-examination, particularly of Dr Timmis. Dr Bristow has subsequently maintained the substance of the views which he expressed in his first report, in the light of the evidence which was given at the inquest. In a subsequent report he also has expressed the view that the cardiac arrest was due to hypoxia as a result of a failure to intubate and ventilate during the ambulance transfer, and not due to septicaemia which he believed the deceased would have survived.

[18]Dr Bristow has also cast doubt on Dr Calder's statistics saying:

"Septicaemia is extremely difficult to give mortality figures for, if only because the term is applied differently by different doctors. As an intensive care specialist I use the term sepsis syndrome which refers to a patient who has multi organ failure most commonly from infection. The mortality on intensive care is over 50%. Other people use the word septicaemia merely to mean a severe infection which may involve the blood stream and in such cases the mortality rate will be lower. In the case of Mrs Bloom, I would have considered the risk of her dying when assessed pre-operatively, on the basis that she had been properly treated, at less than 1%. This risk would have increased progressively because she continued to be inadequately resuscitated."

[19]A further report has been obtained on behalf of the family after the inquest from Mr Smith, a consultant urologist. He said:

"Septicaemia... is life threatening. However, if immediately diagnosed and appropriately treated (ie intravenous antibiotics/fluids), then septicaemia is usually curable. I would consider an otherwise healthy patient dying from septicaemia as representing a very rare situation. It is certainly not one I would recognise in my urological practice."

[20]Rule 36 of the Coroners Rules says:

"(1) The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely - (a) who the deceased was; (b) how, when and where the deceased came by his death... "(2) Neither the coroner nor the jury shall express any opinion on any other matters."

Rule 42 says:

"No verdict shall be framed in such a way as to appear to determine any question of - ... (b) civil liability."

[21]In R (Middleton) v West Somerset Coroner & Anr

[2004] UKHL 10

the House of Lords held that in order for these rules to meet the state's procedural investigative duty under

Article 2 of the Convention

the word "how" in sub-rule (1)(b) should now be interpreted not simply to mean "by what means", as earlier cases had held, but also to include "and in what circumstances". So, in an appropriate case, the inquest's task was to discover by what means and in what circumstances the deceased had met his death.

[22]At paragraph 37 Lord Bingham said:

"The prohibition in rule 36(2) of the expression of opinion on matters not comprised within sub-rule (1) must continue to be respected. But it must be read with reference to the broader interpretation of 'how' in... rule 36(1) and does not preclude conclusions of fact as opposed to expressions of opinion. However the jury's factual conclusion is conveyed, rule 42 should not be infringed. Thus there must be no finding of criminal liability on the part of a named person. Nor must the verdict appear to determine any question of civil liability. Acts or omissions may be recorded, but expressions suggestive of civil liability, in particular 'neglect' or 'carelessness' and related expressions, should be avoided. Self-neglect and neglect should continue to be treated as terms of art."

The last sentence is obviously a reference to his decision in Jamieson.

[23]In support of his submissions that the inquest was inadequate, Mr Francis QC, who now appears for the family, focused on the time after the operation. The inquest, he submits, did not answer the following questions. Was the appropriate treatment given for septicaemia? Why was Dr Darko not called by the nursing staff when they became concerned about the deceased's condition? When was the decision to transfer made? Was there delay in calling the ambulance or getting the deceased into it? Was her management in the ambulance appropriate? In his summary at the end of the inquest the coroner did not consider any of these questions. Had he done so, Mr Francis submits that they raised at least the possibility that the deceased had not been given basic medical attention, and so a verdict which included a finding of neglect could have been reached. This, Mr Francis says, is supported by the evidence of Dr Bristow which of itself justifies the holding of a new inquest. It is likely that the coroner's approach was conditioned by Dr Calder's evidence, which on one view suggested that death was more or less inevitable, but which properly understood, at least in the light of what Dr Bristow and Mr Smith say, did not mean this.

[24]I do not think the coroner can be criticised for the way he conducted this inquest. The family did not identify any particular criticism of those involved in the deceased's care between 27th August and her death. They asked the coroner to consider evidence covering the whole period and he adjourned the inquest to obtain this evidence. He is criticised for reminding counsel of the limited scope of the inquiry laid down by Rule 36, but he did so without protest and it does not seem to me, from my extensive reading of the transcript, that in the event counsel was prevented from asking any questions about any of the relevant events. The coroner was entitled to decide not to call Dr Darko. There was no evidence that he had attended the deceased until Mr Hines asked for his help, and Nurse Matthews gave evidence about what had happened before that time.

[25]It is said that the coroner should have obtained independent expert advice to enable him to investigate properly whether the deceased's treatment was adequate and should not simply have relied on the evidence of the treating doctors and nurses. I do not accept this submission. I can see nothing in this case which ought to have triggered the need to give thought to taking such advice. After all, the deceased's family were in possession before the inquest of a report which was strongly critical of certain aspects of what Dr Timmis did or did not do. They could have asked for Dr Bristow to be called, or sent a copy of his report to the coroner to alert him to the views of another consultant anaesthetist, but they did not do so.

[26]But having dismissed the criticisms of the coroner as I do, that is not the end of the matter. Section 13 contains a freestanding power to order a new inquest "where... the discovery of new facts or evidence or otherwise [makes it] necessary or desirable in the interests of justice."

[27]In considering this provision it is not necessary to show that a new inquest would reach a different verdict, only that it might do so (see In re Rapier (deceased)

[1988] QB 26

). Here, not only is there the possibility of neglect, but also, if Dr Bristow is right, about the cause of death.

[28]Nor is it decisive that the applicant or his representatives could have asked questions or raised issues at the original inquest but failed to do so. The family, in such cases, are entitled to a full inquiry into how and why the death occurred.

[29]In this case I agree with Mr Francis' submission that they have not had such an inquiry. I say this principally because I think Dr Calder's evidence did condition the way in which the original inquest proceeded. If it had been understood in the light of what Dr Bristow and Mr Smith now say, death was not almost inevitable and greater attention would therefore almost certainly have been focused on what happened during and in the hours following the operation with a view to discovering whether it could have been avoided. The family should have the opportunity of having a further inquiry in which this question is properly addressed.

[30]For those reasons I would allow this application, quash the original inquest, and order that a new inquest be held.

MR JUSTICE FIELD: I agree.

[32]MR FRANCIS: My Lords, do I take it, for an avoidance of doubt, that the order is for an inquest before a different tribunal --

LORD JUSTICE TUCKEY: I should have said that, yes. There is no question, it seems, speaking for myself, that any costs against the coroner should therefore arise.

[34]MR FRANCIS: Could I just, before coming to that, my Lord, mention one matter. Your Lordship referred in your judgment to a Dr King, I think you meant Mr Smith.

LORD JUSTICE TUCKEY: Mr Smith, I am very sorry.

[36]MR FRANCIS: Just for the transcript.

LORD JUSTICE TUCKEY: I will make sure the transcript records accurately. You must have been a little concerned that some new doctor had emerged on the scene.

[38]MR FRANCIS: So far as costs are concerned, I am aware, my Lord, the difficulties in relation to making such an application in view of the case of Davies which I have put before you.

LORD JUSTICE TUCKEY: Well, in view, also, of the decision which we have reached.

[40]MR FRANCIS: My Lord, there are two aspects of Davies and only one point with which I would necessarily wish to trouble the court. That is the issue raised in Davies of whether and where a coroner opposes an application he may be in jeopardy in relation to costs. Very briefly, my Lord, although the coroner has been at pains not to appear in this court, in the sense of turning up here and being represented, firstly, we would say, he could have consented to the application, he has not done.

LORD JUSTICE TUCKEY: That would not have helped you.

[42]MR FRANCIS: My Lord, it would have made my task simpler and your Lordships' task shorter, with respect. Secondly, he did oppose the grant of the Attorney General's fiat if one reads the correspondence.

LORD JUSTICE TUCKEY: I do not know what the procedure is, but I imagine that the Attorney automatically asks the coroner for his comments when he is asked to give his fiat for such an inquest.

[44]MR FRANCIS: My Lord, obviously, and it is only right and proper that he should do so.

LORD JUSTICE TUCKEY: There are all sorts of things alleged against him, so why was he not entitled to defend himself at least which is --

[46]MR FRANCIS: My Lord, I do not for a moment say that he is not able to do so, but both before, as it were -- in correspondence of the Attorney and in the witness statement before your Lordships, it would be wrong to say that the coroner has taken a neutral position with regard to the significance of the new evidence which your Lordship has decided in our favour. We would therefore ask your Lordships to consider the question of costs on that basis.

[47]May I say I am fully aware that no one is here representing the coroner. I have been privy to the correspondence in relation to that. But I make the application, if your Lordship were to think there is anything in it then you may well wish to hear from someone instructed on behalf of the coroner in writing, but if there is nothing in it it could be disposed of now. But I am instructed to make that application.

LORD JUSTICE TUCKEY: I quite understand, Mr Francis. There will be no order for costs so there is no need for the coroner to respond. Thank you very much for completing the case. It is not a case, as I say, which I would have attempted to give a judgment in the same day --

[49]MR FRANCIS: My Lord, I am grateful.

LORD JUSTICE TUCKEY: -- but I imagine that even though I have introduced a phantom doctor into the case, everyone is happy that we should have dealt with it today rather than reserve judgment.

[51]MR FRANCIS: I am sure we are.