Philipa Hodgson v Dr Daniel Hammond & Anor [2025] EWHC 1261 (KB)

[2025] EWHC 1261 (KB)

Case No KB-2022-000824

IN THE HIGH COURT OF JUSTICE

KING’S BENCH DIVISION

Venue Royal Courts of Justice,

Date 20 May 2025

Strand,

London

B e f o r e:

HER HONOUR JUDGE MELISSA CLARKE

Sitting as a Judge of the High Court

Between

MS PHILIPA HODGSONClaimant

(1) DR DANIEL HAMMONDDefendants

(2) DR ANDRE DIELEMANDefendant

B e t w e e n:

Mr Conor Dufficy (instructed by Irwin Mitchell) for Claimant

Mr Tom Gibson (instructed by Weightmans) for First Defendant

Ms Nicola Campbell-Clause (instructed by MDU Services) for Second Defendant

Trial dates: 12, 13, 14, 15, 16 and 20 May 2025

JUDGMENT – Breach of Duty

[1]This is a judgment in a clinical negligence claim brought by the Claimant, Ms Philipa Hodgson, a patient at the Brighton Station Health Centre against two general practitioners, Dr Daniel Hammond and Dr Andre Dieleman, following a five day trial. The Claimant alleges that they each failed to act upon a potential diagnosis of pelvic inflammatory disease (“PID”): Dr Hammond at an in-person consultation on 30 August 2016 and Dr Dieleman at a telephone consultation on 5 September 2016. It is not disputed that she did in fact have PID at the time of the index consultations. Breach of duty and quantum remain in dispute. This judgment deals with breach of duty only.

[2]The Claimant’s allegations of breach of duty have narrowed from the pleaded case. Broadly speaking, the Claimant’s case at trial is that Dr Hammond failed to undertake a pelvic examination at the index consultation on 30 August 2016 or to arrange a further ultrasound scan thereafter, and that Dr Dieleman failed to refer her for urgent pelvic examination soon after the telephone consultation on 5 September 2016.

[3]The Defendants deny breach of duty and their case is that their actions were reasonable in the circumstances and would be supported as proper by a responsible body of medical opinion per Bolam v Friern Hospital Management Committee

[1957] 1 WLR 582

[4]The Claimant’s case on factual causation is that if either of the defendants had undertaken or arranged for an urgent vaginal examination, pelvic tenderness and/or cervical excitation would have been present and identified, and this would have led to the Claimant being given antibiotic treatment for PID (and/or an ultrasound scan which would also have led to appropriate antibiotic treatment for PID). Following a concession from the First Defendant after the evidence of his breach of duty expert at trial, factual causation no longer remains in dispute.

[5]It is the Claimant’s case, and the causation experts agree, that if she had received earlier diagnosis and treatment, she would have recovered within two weeks and would have avoided the consequences of the delayed diagnosis, being a tubo-ovarian abscess, a hydrosalpinx (fluid in fallopian tube), a laparoscopy in which her left fallopian tube was removed and a further infection leading to a second laparoscopy. They also agree that the Claimant’s pelvic adhesions would have been fewer and less extensive, and, although there are subtle differences between them, she would have avoided chronic pelvic pain, dyspareunia (pain during sexual intercourse) and dyschezia (difficulty in passing stool) to the extent she now does, all of which they agree are permanent ongoing symptoms. The Claimant further pleads that she would not have suffered reduced fertility and increased risk of ectopic pregnancy. The Defendants’ case is that this would have been affected by the PID in any case and so this is a matter that I need to determine.

[6]The Claimant has filed an updated Schedule of Loss and the Defendants have filed Counter-schedules.

B. Chronology of events

[7]The Claimant was born on 23 April 1991.

[8]On 29 March 2016 she had a cervical smear carried out by the Second Defendant, in the course of which swabs were taken and later tested negatively for chlamydia and gonorrhoea. The smear was inadequate and so she was called for a repeat in three months.

[9]On 5 April 2016 she called the surgery and asked for a GP appointment to discuss intermenstrual bleeding and pelvic pain. She was seen by a locum GP on 8 April 2016 who noted that she had intermenstrual bleeding going on since October 2015, that she had a copper coil in situ for nearly 3 years. He noted “gets monthly period but spots in between, no pain, [also] noted some blood post coital, no dyspareunia, recently had cervical smear test but [was inadequate] so waiting to be repeated in 3 months time. No prev[ious] gynae problems, is in stable relationship for 2 years, triple swab done recently – normal”. He noted on examination “Abdo: soft, non tender, no masses felt.” A pelvic examination was carried out and noted “[cervix] looks normal, uterus normal size and non tender no adnexal mass felt. Small amount of pinkish disch[arge] present.”. The doctor ordered bloods and sent a request for a pelvic scan by ultrasound.

[10]On 13 April the Claimant consulted Dr Tawfik Abdel-Aal by telephone who discussed her blood results. She was noted as saying that she was “not keen on hormonal contraception at all for now. Keen to leave copper coil in situ and await [ultrasound] scan”.

[11]The transvaginal ultrasound was performed on 14 May 2016. This noted the uterus, endometrium and right ovary as visually normal, but that the operator was “unable to visualise left ovary”. It noted no adnexal cysts, masses or free fluid.

[12]On 2 August 2016 the Claimant had a telephone consultation with Dr Abdel-Aal. He noted that she had had irregular periods but a normal ultrasound in May 2016, and that she was booked for her repeat smear on 8 August. He noted she was “considering taking out copper coil now… will att[end] local [family planning] clinic to take copper coil out…”.

[13]On 6 August 2016 she attended Dr Ryan Anderton who noted ongoing issues as bleeding, abdominal pain described as “generalised abdo pains” which “settled but [then] this last few days developed LIF/flank pain, comes in waves/sharp.”. He noted “no urinary symptoms, hard rabbit dropping stools last 24 hrs but usually normal, not constipated, urine clear”. He examined her abdomen and noted that was “soft, non-tender, no masses, no renal angle tenderness”, and noted normal heartrate and that she had no fever. He concluded “?cause, possib[le] constipation” and that she would try Fybogel and Buscopan. By this time she had been reporting abdominal pain for four months.

[14]On 13 August 2016 the Claimant had her copper coil removed at the family planning clinic, and also had a cervical smear taken, which was sent to cellular pathology.

[15]On 16 August 2016 the Claimant attended A&E at the Royal Sussex County Hospital following a 111 call in which she reported lower abdominal, left-sided pain and worsening periods. Her bloods were taken at 01.24 on 17 August 2016 in which her white blood count (WBC) and c-reactive protein (CRP), both inflammatory markers, were found to be elevated at 12.4 (normal range 4-11) and 54.9 (normal range 0-5) respectively. Urinalysis was positive for leukocytes and nitrites, and she was diagnosed with a urinary tract infection. She was discharged with antibiotics (nitrofurantoin) and analgesia, and advised to come back if worse. The discharge report was sent to the Claimant’s GP surgery and the stamp on the version in the trial bundle suggests that it was received on 18 August 2016, and the GPs notes show that it was scanned into their records on the same date.

[16]Later on 17 August 2016 the Claimant contacted 111 again complaining of abdominal pain and vomiting and described her pain as “very severe”. She reattended at Royal Sussex County Hospital in the early afternoon. She reported increased abdominal pain radiating to the lower left abdomen, which was now severe, with persistent vomiting. She had a temperature of 38C, was tachycardic. Further bloods were taken with her WBC and CRP being elevated at 16 and 114.9 respectively. I am satisfied that it was clear from these worsening blood results and her physical observations and symptoms that there was some underlying developing or worsening infection. She was admitted and put on intravenous antibiotics (gentamicin initially, then co-amoxiclav) and given analgesia, an anti-emetic and fluids.

[17]On 19 August 2016 the Claimant was reassessed and diagnosed with pyelonephritis, a kidney infection. She had an ultrasound scan of her urinary tract which was reported as normal. Further tests noted that her WBC was now over 100. She was discharged later that day, with a 7-day prescription for oral co-amoxiclav.

[18]On 22 August 2016 a copy of the Claimant’s recent cervical smear cytology report was scanned into the GP notes, and it was noted by Dr Abdel-Aal that no dyskaryotic cells were seen, but that there was evidence of infection:

“Actinomyces like organisms present”

. I pause here to note that the medical experts all agree that, as the Claimant’s expert Mr Raine-Fenning describes in his causation report, in users of long-term intrauterine devices such as the copper coil used by the Claimant, tubo-ovarian abscesses may be caused by Actinomyces which are often identified incidentally by cytology following a cervical smear.

[19]On 25 August 2016 the Claimant had a telephone consultation with the second defendant. He noted that she had been admitted to hospital “for two nights with a kidney infection”, that she was on co-amoxiclav and that she was “feeling much better but still some abdo pain which has moved down”. He noted she was passing urine normally. He extended her antibiotic prescription for a further three days for a total of 10 days, and if not fully recovered, to check her urine.

[20]On 26 August 2016 the Claimant had a telephone consultation with Dr Nandaka Dickwella. He provided a very thorough note that she had:

“on-going left sided abd[ominal] pains, complicated [history], had pains for a few weeks now, initially thought IBS ?Constipation but then [patient] got unwell with vomiting + fever – admitted to hospital from 17-19th August, was treated as Kidney infection but MSU [mid-stream urine] was negative, Renal +Abd. [Ultrasound] was normal, had raised CRP (114) and WBC (16) at the time so was showing infection ? source, treated with Co-Amoxiclav which [patient is] still taking and now extended course for 10 days, [patient] feels much better now, no acute [symptoms] but still having persistent left sided abd[ominal] pains, mild dysuria, says she had recent [sexual health] check that was normal, had recent cervical smear which was negative but showed Actinomyces like organisms ? relevance, has a vaginal discharge, same partner for 2.5 years, had not [sexual intercourse] since June due to irregular vaginal bleeding, had normal pelvic [ultrasound] back in May 16 as well, having alternating diarrhoea/constipation worse last few weeks, no [rectal] bleeding, no weight loss. Abd pain ? cause, Pelvic infection ? due to actinomyces, pt can’t come today (it’s 19.25 anyway), going to Bournemouth for bank holiday, wants to come next Tuesday, [face to face] appt. booked… if any worsening [symptoms] meantime advised to call NHS 111 while on holiday, continue [antibiotics]…”

[21]I am satisfied from this note that Dr Dickwella was unhappy with, and questioning, the hospital’s diagnosis of pyelonephritis, in part because of the negative MSU and in part because of the still-persistent left-sided abdominal pain despite appropriate antibiotic treatment for pyelonephritis; that he had in mind her current symptoms of abdominal pains, mild dysuria and vaginal discharge as well as irregular vaginal bleeding for the previous two months; he also had in mind and was eliminating a potential risk factor for PID in noting that she had the same partner for 2.5 years; and noted clear pelvic ultrasound of three months ago; he canvassed and noted symptoms of other potential diagnoses (no rectal bleeding, no weight loss); and following this process he considered that the abdominal pain was not explained by the existing diagnosis and was querying whether it was due to a pelvic infection possibly caused by the actinomyces. I also consider that he considered it important for the Claimant to be seen face to face as soon as possible, by his reference to whether she could come in that evening. I do not have any evidence from Dr Dickwella, but neither of the Defendants disagreed with any of this analysis when it was put to them in cross-examination and nor did the breach of duty experts, although the Defendants both said that if he considered that it was extremely urgent for her to be seen he would have sent her to out of hours or A&E (Second Defendant) or “been more persistent” (First Defendant). On balance I am satisfied that it is likely that Dr Dickwella considered it important for her to be seen as soon as possible because he considered that she should be physically examined.

[22]On 30 August 2016 the Claimant had a face to face consultation with the First Defendant, as organised by Dr Dickwella. The First Defendant was at the surgery as a locum GP and at that time was recently qualified about a year previously. This is the index consultation in relation to which her claim against the First Defendant is brought. He noted a normal temperature and blood pressure, and “abdo snt” which the parties and experts all now accept means that he examined her abdomen and found it to be soft and non-tender. He also produced a thorough note which illuminates his thinking: “c 4 weeks ago pt developed crampy abdo pain – thought UTI so took OTC sachets and then realised IBS. Settled. c 3 weeks ago onset LEFT loin pain/ LIF [left iliac fossa] pain c 2 weeks ago had copper coil removed – helped LT PV discharge but abdo pain persisted c 10/7 ago – abdo pain peaked w vom[iting] and fever – admitted for 2 nights RSCH – had IV Abx. USS KUB and Abdo NAD. Blood showed raised Inflammatory markers. No cough. Now overall much better, mild LIF pain. No vom/fever. Completed 7/7 coamox. Had GUM check up earlier in year – been with same partner – now using condoms – aware not reliable – doesn’t like hormones=-but would consider pill – will attend [sexual health clinic] to discuss ? Resolving Pelvic Infection, Note prev[ious] [transvaginal ultrasound] – LEFT ovary not fully visualised Rpt bloods to ensure resolution If recur[r]ence fever / abdo pain / vom then aware tci prompt, at this stage will need further iX [investigations] ? CT” c 3 weeks ago onset LEFT loin pain/ LIF [left iliac fossa] pain ? Resolving Pelvic Infection, Note prev[ious] [transvaginal ultrasound] – LEFT ovary not fully visualised

Rpt bloods to ensure resolution

[23]It is clear from that note that he had read Dr Dickwella’s note; had familiarised himself with the Claimant’s relevant history; noted and was aware of the waxing and waning nature of the Claimant’s abdominal pain and that she was currently “much better” albeit still with mild left iliac fossa pain; was aware of her vaginal discharge which had been reduced by the copper coil but not resolved (as would have been clear from Dr Dickwella’s note); and was also querying whether the Claimant’s diagnosis was a pelvic infection, albeit one that he described as “resolving”, noting that her previous ultrasound could not fully visualise the left ovary. It is also now clear that he physically examined the Claimant by taking her observations and examining her abdomen which he found to be soft and non tender, but did not carry out a pelvic examination. There is no dispute about the quality of the note, which the Claimant’s breach of duty expert described as excellent. In the First Defendant’s oral evidence he said that he had no recollection of the consultation, but from his note he considered that his conclusion was that she had a resolving pelvic infection, which he put higher than merely a queried or potential diagnosis but lower than a definitive diagnosis. It seems to me that it was a working diagnosis, and the First Defendant’s breach of duty expert Dr Hampton agreed with this, albeit reluctantly, when it was put to him in cross-examination..

[24]On 30 August 2016 the Claimant’s blood results from hospital taken in the early hours of 17 August were received at the surgery and input into the system by the Second Defendant. Those are the results that showed that her WBC and CRP were elevated at 12.4 and 54.9 respectively, and that her urine showed no bacteria. He also input her MSU urine results from the sample taken on 26 August 2016 which found no bacteria and no evidence of infection.

[25]Bloods were taken from the Claimant on 1 September 2016. The results were input into the system by the Second Defendant on the same day. They showed a normal WBC at 7.7 and a slightly elevated CRP of 6.1. This was a significant reduction from the previous results.

[26]On 5 September 2016 the Second Defendant telephoned the Claimant to report her blood results. This is the index consultation in relation to which the Claimant’s claim against him is made. His note of the consultation is short:

“Says to have improved well. Abdo pain almost gone. Rpt crp with esr [erythrocyte sedimentation rate] and fbc in 1/12 Review with results then or sooner as required Patient informed – test result”

Rpt crp with esr [erythrocyte sedimentation rate] and fbc in 1/12 Review with results then or sooner as required Patient informed – test result”

Review with results then or sooner as required

[27]The Claimant returned for the repeat blood tests requested by the Second Defendant on 30 September 2016, the results of which were entered into the GP record on the same date. Those once again showed an elevated WBC and CRP at 17.5 and 34.5 respectively. Her neutrophils were also raised at 14.8 (normal range 2 – 7.5). It can be seen from the records that she reported to a Ms Bond that she had left sided abdominal pain “same as when in hospital recently” who noted that she was “alert – tearful… left sided abdo pain comes in waves on and off… today nausea and feverish, feels unwell… left sided loin pain, does not generate”. She noted the recent hospital admission where she was diagnosed with pyelonephritis, but that her MSU showed nil growth, that the bloods at the end of August showed an elevated CRP but nothing else, that she had no urinary symptoms or bowel changes. She ordered an abdominal ultrasound noting “need to exclude renal stones” and bloods, dipped her urine which showed “protein ++”, commenced her on antibiotics (co-amoxiclav for 7 days) and listed her for a review in 7 days.

[28]The Claimant’s issues continued but despite a number of other contacts with the surgery it was not until she was seen at the practice by Dr Sudha Sanathi on 24 October 2016 that she was referred urgently for a CT scan of her renal tract. This took place on 14 November 2016 and identified a “possible left adnexal mass”. The report recommended pelvic ultrasound in the first instance. The Claimant was referred to the gynaecological department under the two-week wait suspected cancer pathway.

[29]On 24 November 2016 the Claimant underwent the ultrasound scan and was reviewed by Mr Andrew Fish, consultant gynaecological oncologist. He noted that the scan showed a bilocular cyst arising from the left ovary. He carried out a pelvic examination and noted some muco-pus affecting the cervix. He took swabs and proposed that she undergo a diagnostic laparoscopy with the option of an ovarian cystectomy as an urgent procedure, and consented her for this.

[30]On 5 January 2017 the Claimant was admitted for a laparoscopy, carried out by Mr Jubril Ajala. He noted:

“Laparoscopic drainage of tubovarian abscess and left salpingectomy [removal of left fallopian tube]… palpable left adnexal mass in pouch of douglas. Laparoscopy – evidence of pelvic inflammatory disease. Left large tubovarian abscess at left pelvic side wall. Swollen left fallopian tube, ovary not clearly visualised. Pouch of Douglas obliterated. Right ovary and tub – evidence of PID but mobile. … Drainage of tubovarian abscess with suction, irrigation, left salpingectomy performed.”

[31]The Claimant remained in hospital until 10 January 2017 when she was discharged. She was reviewed in clinic by Mr Ajala on 1 March 2017 who wrote to her GP the same day describing the consultation as “quite difficult” as she was “still recovering from the impact of the news of her pelvic abscess and treatment carried out on her.”. He described her as “tearful and anxious” and fearing that there was a recurrence of the abscess. He noted that an ultrasound scan carried out on 25 February 2017 showed just a 3cm ovarian cyst, and that her CRP and WBC were normal. However, he noted that “It was not possible for me to reassure her as she did state that she is having pain similar to those that she had during her abscess” albeit that she was not having fevers. He noted she had a repeat ultrasound that day, 1 March 2017 which showed the same ovarian cyst and noted “Both ovaries were in the pouch of Douglas. There was a sliver of fluid with echogenic strands in it suggestive of adhesions. I have tried to reassure her that there is certainly no evidence of repeat abscess and as expected there is evidence of adhesions, but I would not be suggesting that these are dealt with at this point in time”.

[32]Mr Ajala noted that she was at high risk of an ectopic pregnancy and that she was concerned about her fertility.

[33]The Claimant attended at A&E at Royal Sussex County Hospital on 23 April 2018 with a history of 3 days of abdominal pain described as right flank pain now moved to the front of the abdomen. She was reviewed where her pain was described as “generalised pain but mainly RIF (right iliac fossa), dull achy pain worsened at night”. She was admitted to hospital and started on antibiotics for a UTI. She was considered to have a 7cm complex right ovarian cyst and was booked in for an emergency laparoscopy for “removal of ovarian cyst +/- adhesiolysis”. She had this on 24 April 2018.

[34]The post-operative notes of Ms Jo Sinclair, consultant obstetrician and gynaecologist, describe that the ovaries were normal, there was no ovarian cyst, but she found dense pelvic adhesions and pockets of fluid in the pelvis, with a suspicion of active infection, but not an abscess. The right fallopian tube was described as clubbed in appearance, but the patency was not checked at that time. It was noted that this may have an effect on her fertility in future, also that she had an elevated risk of ectopic pregnancy if it was damaged. She was prescribed 14 days of PID antibiotics. In a note made on the evening of 25 April 2018 following a conversation with the Claimant stated to have involved explaining to her “the facts of [her] two surgeries”, this second laparoscopy is said to have found “chronic PID” which was described to the Claimant (as noted) as “a chronic long term problem – may need further surgery”.

[35]The Claimant remained under the care of Ms Sinclair who arranged for her to have a hysterosalpingogram to check the patency of her remaining right fallopian tube. Ms Sinclair reported in a letter to the GP surgery on 1 November 2018 that “her right remaining fallopian tube is patent and shows spill of dye, but that the dye does not disperse fully throughout the pelvis” which she described as “entirely in keeping with the fact that she has some pelvic adhesions”. She noted that it was a positive result for the purposes of the Claimant becoming pregnant, and that she had been trying to conceive consistently since about June or July 2018.

[36]Happily, the Claimant conceived naturally in October 2019 and gave birth to her son in July 2020. She conceived naturally again in September 2022 but sadly that pregnancy ended in miscarriage.

C. Law – Breach of Duty

[37]There is nothing between the parties in relation to the legal principles. The test for breach of duty in clinical negligence cases is the well-known direction to the jury in Bolam of McNair J at [587]:

“I myself would prefer to put it this way, that [a medical professional] 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.”

[38]He later referred to “a standard practice recognised as proper by a competent reasonable body of opinion”. This test was adopted by the House of Lords in Maynard v West Midlands Regional Health Authority

[1984] WLR 634

, see [638E-F] in the judgment of Lord Scarman with whom Lords Roskill and Templeman agreed. Lord Scarman referred to the test being adjudged by the opinions of a “respectable body of professional opinion”.

[39]In the case of Bolitho v City and Hackney Health Authority

[1998] AC 232

, the House of Lords amended the rules around the Bolam test, an issue being whether a Court was required to accept the views of one responsible, respectable, or reasonable body of professional opinion even if it was not persuaded of its logical force. Lord Browne-Wilkinson explained 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… 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… 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”.

[40]He went on to explain 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”.

[41]Both Defendants rely on the assessment of the authorities, summary of applicable principles and guidance about the assessment of expert evidence of Green J at first instance in C (by his father and litigation friend F) v North Cumbria University Hospitals NHS Trust

[2014] EWHC 61

, from [20] to [25], and in particular commend to me the principles and guidance listed in paragraph [25]. In the interests of brevity I do not set them out here but I accept and agree with their commendation, have them firmly in mind and I apply them. The First Defendant in particular draws my attention to [73] of the judgment, in which Green J describes that he assesses the Claimant’s evidence “not to see whether it is in and of itself reasonable (it is) but to determine whether it has the effect of placing the Defendant’s expert evidence in such an altogether negative light that I should reject that evidence.” As he submitted in closing, the task for the Court is not to prefer one expert over another, as there may very well be one body of reasonable and responsible expert opinion which supports an act or omission alleged to be negligent, even if there is another body of reasonable and responsible expert opinion which condemns it as negligent. If the Court considers the opinion of expert who supports the former view is reasonable, logical and tendered in good faith, then even if it prefers the latter view, it is not negligent (per Lord Scarman at 638H of Maynard).

[42]This case is, perhaps, unusual in that there are no disputes about the reliability of the medical records. Accordingly although the Second Defendant puts before me the case of Synclair v East Lancashire Hospitals NHS Trust

[2015] EWCA Civ 1283

, in which the Court of Appeal stated that medical records are “by their nature likely to be reliable”, there is no need to rely on it.

[43]Finally, and importantly, the parties agree that matters of negligence must be determined without recourse to hindsight: “…the standard of care to be expected of a professional man must be based on events as they occur, in prospect and not in retrospect” (Duchess of Argyll v Beuselinck [1972] Lloyd’s Law Reports Vol. 2 172 at [85]).

D. Assessment of Lay Witnesses

[44]I heard from each of the Claimant, the First Defendant and the Second Defendant as witnesses of fact.

The Claimant – Ms Hodgson

[45]The Claimant filed a witness statement dated 11 October 2023, attended Court, was cross-examined by each of Mr Gibson and Ms Campbell-Clause for the Defendants and re-examined by Mr Dufficy. I found Ms Hodgson to be a good witness. She was straightforward and thoughtful and seemed to me to be honest. I accept Mr Dufficy’s submission that she had an excellent memory and that her evidence appeared to be accurate when judged against the contemporaneous documentation. Ms Campbell-Clause for the Second Defendant relies on the guidance of Leggatt J as he then was in the case of Gestmin SGPS SA v Credit Suisse (UK) Limited and Anor

[2013] EWHC 3560

and asks me to treat as unreliable the Claimant’s recollection of her consultation with the Second Defendant. In her witness statement she said:

“I recall that DrDieleman informed me that the inflammatory markers were slightly raised on my blood test, butthat this could be due to something like a cold. I told him that I did not have a cold and that Iwas still experiencing pain in my abdomen, albeit not as bad as it had been. I felt I was beingdismissed. Dr Dieleman simply told me to go back to the surgery for a further blood test in amonth if my symptoms got worse.”

[46]Ms Campbell-Clause put to the Claimant in cross-examination that the Second Defendant did not tell her to have a further blood test if her symptoms got worse, but, per the consultation note, that bloods would be taken in a month with results then or sooner if required, and that she should come back if concerned. She readily accepted that, and that her witness statement was inaccurate. That seems to me to be a matter of infelicity of expression rather than unreliability of her memory. However she was adamant that the conversation about inflammatory markers and a possible cold had taken place. Ms Campbell-Clause put to her that she had no real memory of the consultation, and if she had a real memory of that exchange she would have put it in her letter of claim, but the Claimant said that she did remember it, although it was nine years ago, and correctly pointed out that she had described the conversation about inflammatory markers and possible cold in a very detailed complaint email to the Brighton and Sussex University Hospitals NHS Trust Complaints Investigation Manager, Justine Pepperell, on 28 August 2018, which is in the bundle. In that she says “This conversation I remember vividly. I stood outside my work to take this phone call. I spoke to a foreign doctor. He stated to me that my infection markets were slightly raised but this could be down to me having a cold. This made me angry because I told him I didn’t have a cold at all but I had a pain in my left side still”. As Mr Dufficy points out in closing, the Second Defendant’s notes are very short, and the Second Defendant has no memory of the consultation, so there is nothing to contradict the Claimant’s account which she has been putting forward since at least that email. On balance I am satisfied that conversation did take place.

[47]Mr Gibson for the First Defendant in closing asks me to consider some of her special damages heads of loss with a degree of factual scepticism, but I do not consider that is appropriate to do so for reasons which I will set out to the extent necessary when dealing with those heads of loss. I find the Claimant was both a credible and reliable witness.

The First Defendant – Dr Daniel Michael Hammond

[48]The First Defendant filed a witness statement dated 2 September 2023, attended Court and was cross-examined by Mr Dufficy and re-examined by Mr Gibson. Ms Campbell-Clause had no questions for him. I found Dr Hammond to be a thoughtful, measured, entirely credible and reliable witness. That was the tenor of Mr Gibson’s submissions in closing and Mr Dufficy for the Claimant strongly agreed, describing him as an “excellent” and “very very truthful” witness.

The Second Defendant - Dr Andre Dieleman

[49]The Second Defendant filed a witness statement dated 18 July 2023, attended Court and was cross-examined by Mr Dufficy and Mr Gibson for the Claimant and First Defendant respectively.

[50]I found Dr Dieleman to be a problematic witness. He had produced a witness statement which contained evidence about his consultation with the Claimant on 25 August 2016, his entry into the records of blood results on 1 September 2016 and his index telephone consultation with the Claimant on 5 September 2016 which went beyond the brief notes he made of those consultations, and beyond any inference which could be drawn from his usual practice as a GP, despite stating at paragraph 4 of that witness statement that he had no direct recollection of the Claimant.

[51]For example, in his witness evidence in paragraph 25 he had stated in respect of the 25 August 2016 consultation “I felt at that time that she was getting better and the kidney infection with which she had been diagnosed and discharged from hospital was resolving”. He stated in relation to the 1 September 2016 blood results “At the time I felt that a CRP of 6.1 was a little abnormal but it was reassuring that it was down trending from 54.9 which I had noted on 30 August 2016 and suggested a resolving infection”. He stated in respect of the 5 September 2016 index telephone consultation that the Claimant had “reported no new or developing symptoms only that she was improving. This was reassuring”. He also stated, still in paragraph 25 of his witness statement, that “Given her recent blood test results and the Claimant’s report that she was feeling much better (with a near absence of symptoms)I felt that her previous infection, suspected by the hospital as being pyelonephritis, had responded to the antibiotics. There was nothing in the Claimant’s presentation, symptoms or test results to suggest that a vaginal examination was warranted. However, even if it had been PID I felt it was resolving and, in any event, a vaginal examination could not have excluded PID.” (emphasis mine).

[52]Similarly, in paragraph 26 of his witness statement he made a number of statements which he accepted in cross-examination he could not say whether they were true or not, as he had no recollection: i) “I considered the records of both Dr Dickwella and Dr Hammond”. He has also pleaded in his Defence that he would have checked the recent entries in the Claimant’s records in accordance with his usual practice. His evidence in cross-examination by the Claimant was that his usual practice was to read back on previous notes in the medical record. However, he also said that his usual practice, although he didn’t always do it, was to make a note if he had read back on such previous notes (much as Dr Hammond had noted on 30 August 2016 “See ND’s note below” to show that he had considered the previous notes of Dr Dickwella) and he made no such note on 5 September 2016. ii) “Given the Claimant’s presentation and the blood test results I did not consider that the Claimant should undergo an immediate vaginal examination or that PID needed to be excluded as a differential diagnosis”. In cross-examination he was unable to say whether, during the index consultation of 5 September 2016, he was working off a diagnosis of PID or pyelonephritis. He said that if he had read the previous notes, “I must have been considering PID, that’s the logical conclusion”, and “very likely not” considering pyelonephritis, but said he did not know which he was considering. He simply couldn’t say. iii) “From considering the records I was aware that the Claimant had not undergone a vaginal examination on 26 August 2016 or thereafter. I was also aware that no definitive diagnosis had been made by Dr Dickwella or Dr Hammond.”. The most that can be said is that if he read the previous notes, he would be aware of these matters, but see point(i) above. iv) “I considered that the Claimant’s previous infection was resolving”. Once again, although his witness statement is drafted on the assertion that he was considering pyelonephritis, he had no memory of the Claimant or the consultation and in cross-examination could not say what infection, whether that was UTI/kidney or pelvic, he was considering and whether he did consider it was resolving, as per point

(ii) above.

[53]I am satisfied that all this evidence emphasised in bold above amounts to a retrospective reconstruction of what he might have been thinking at the relevant times, formulated to support his defence, and not a true statement of the Second Defendant’s factual evidence. Although the Second Defendant stated in cross-examination “This is what I wrote in 2023 and I signed, and I don’t sign for things I make up”, I am satisfied that this is not a question of his memory simply degrading between the date of witness statement and the date of trial, as he is clear in the same witness statement that he had at that time no recollection of the Claimant at all. For those reasons I am satisfied that his witness statement is in large part unreliable and also lacks credibility and I do not give that evidence any weight.

[54]What about the reliability and credibility of his oral evidence?

[55]Ms Campbell-Clause for the Second Defendant in closing submitted that the Second Defendant’s oral evidence was not good quality, that he was overwhelmed by the process of being in Court in a way which was far beyond the usual experiences of witnesses, even those who find giving evidence unsettling and difficult. She queried whether he was cognitively well, echoing Dr Hall, the expert GP for the Second Defendant, who during her evidence raised similar questions of the Second Defendant’s mental health, having seen him give his oral evidence. I did not consider that it was her place to do so, assessment of witnesses being a matter for the judge.

[56]I accept that the Second Defendant found the process difficult, but it seems to me that despite not being comfortable in the witness box, at the start of his cross-examination by Mr Dufficy he had no difficulty in following and agreeing with all the propositions put to him about PID, its risks, symptoms, signs, and the serious consequences of a missed diagnosis. Those principles were also agreed by all of the other medical practitioners in the case, both parties and experts. He also had little difficulty in following the Claimant’s medical history when being taken through the medical notes of the hospital admission, blood and urinalysis results, various of the GP record entries, etc. He had no difficulty in agreeing that Dr Dickwella appeared from the notes to be thinking of a diagnosis of PID rather than a UTI or kidney infection, as was the First Defendant on 30 August 2016, and he had heard the First Defendant’s evidence that he did consider, on review of his notes, that he had PID as a working diagnosis in mind on that day.

[57]The Second Defendant’s difficulties came, it seemed to me, after he was forced by Mr Dufficy’s cross-examination to acknowledge that his lack of any recollection of the Claimant and the brief nature of his note of the index consultation (in relation to which no criticism is made, that is merely a factual description of the note) meant that paragraphs 25 and 26 of his witness statement were unreliable as I have described above, and that he had no way of knowing, inter alia: if he had read the previous medical notes before the index consultation; whether he had PID or pyelonephritis (or both) in mind; and whether he had considered carrying out a pelvic examination at all. I have no doubt that shook him, as the implications were laid bare by Mr Dufficy’s unfolding, logical cross-examination. However, I certainly do not consider that there is any evidence before me that he was cognitively unwell at the time he entered the witness box, and nor was there any credible and reliable evidence either at the time or that has been provided to me afterwards that he became cognitively unwell as cross-examination continued.

[58]Ms Campbell-Clause submitted that the Second Defendant had difficulty in following questions, requiring them to be repeated and finding them difficult even when I had intervened to seek to clarify them in a way which might aid his understanding. That was the case in one or two areas, and not only because English is not his native language, most particularly in relation to questions from Mr Dufficy about why he had stated at paragraph 18 of his defence that the purpose of the index telephone consultation was to inform the Claimant of her test results. He struggled to explain the relevance of that fact to breach of duty, and sought to give oral evidence which, once again, can only be retrospective reconstruction, namely that “I considered the broader picture but at the time I felt safety netting was appropriate” and “I felt things were improving but I was not happy with almost no pain and almost normal inflammatory markers”. However, in my judgment, that difficulty was to do with the fact that there was really no relevance to the fact that it was a phone call to provide blood results, and so he had no real answer to give, rather than any lack of understanding or cognitive difficulty or stress response. He eventually conceded that he had to act in the Claimant’s best interests at all times, even on a phone call to discuss blood results. Nonetheless, I have reviewed my notes of his cross-examination carefully with this submission in mind, and I am satisfied that he did not show such difficulty in following and answering questions that it casts doubt on the quality of answers he eventually did provide. He provided answers to all questions asked in an understandable and coherent way, in my judgment.

[59]Ms Campbell-Clause further submitted that his evidence deteriorated later on in Mr Dufficy’s cross-examination, such that he eventually agreed with every proposition put to him. She submitted that he was highly suggestible. I do not agree that he was indiscriminately agreeing with every proposition, nor that his answers did not reflect his truthful evidence given to the best of his ability to assist the Court, if that is the tenor of her submission. It seems to me that once he acknowledged what his lack of recollection meant, he followed Mr Dufficy’s logical and clear series of questions to agree that: i) there was good reason for Dr Dickwella to question the diagnosis of pyelonephritis and consider PID; ii) the only effective test for PID is a pelvic examination; iii) the fact that the Claimant’s resolving symptom of abdominal pain and improving blood results makes no difference when it comes to PID (to which he replied “you can’t exclude it”); iv) treatment with co-amoxiclav could mask PID; v) the hospital MSU and later MSU of 26 August 2016 was negative for proteins; vi) these, the niggling abdominal pain and the vaginal discharge noted by Mr Dickwella, if he had read those notes, were all reasons to be suspicious of PID; vii) he knew, if he had read the notes, that the Claimant had not been given the standard treatment for PID so the chances of resolution were small; viii) the risks of missing the diagnosis were high; ix) a pelvic examination was easy to arrange and carry out and it would be the best test, although not definitive, to confirm or exclude the diagnosis and inform whether to start treatment; and x) repeat bloods would not do so.

[60]This caused him to agree that it was illogical for him not to arrange to bring the Claimant in for a pelvic examination, and accept that he did not take all reasonable steps.

[61]Ms Campbell-Clause submitted that I should treat all of the Second Defendant’s evidence with extreme caution, and when I asked what her submission was about the weight the Court could give any of it, she said that perhaps it should ignore all of his factual evidence. When I asked if she was also asking the Court to ignore his evidence about his usual practice, she asked me to step back and consider what all reasonable and competent GPs would have done on 5 September 2016. That seems tantamount to asking the Court to assume that the Second Defendant was not negligent, which of course is no way to reach a finding on a disputed issue of breach of duty.

[62]Mr Dufficy asks me to give no weight to such of the Second Defendant’s evidence which is self-serving and supports his case. I do give the Second Defendant’s oral evidence weight as both credible and reliable to the extent only that it does not amount to retrospective reconstruction. For the avoidance of doubt, I do not consider the Second Defendant to be either dishonest or deliberately self-serving. I think he was a genuine witness who simply made mistakes in his evidence by not limiting it, in the absence of any recollection, to what he could read or properly infer from his contemporaneous notes and to evidence of his usual practices. E. Assessment of Expert Witnesses – Breach of Duty Dr Hicks the Claimant’s expert GP

E. Assessment of Expert Witnesses – Breach of Duty

[63]Dr Hicks produced a breach of duty report dated December 2023. He had a joint meeting with Dr Hampton, the First Defendant’s GP expert and produced a joint statement on 3 December 2024, and a joint meeting with Dr Hall, the Second Defendant’s GP expert and produced a joint statement with her, and then a further joint statement, both on 2 December 2024. He attended Court, was briefly examined in chief, then and was cross-examined by both counsel for the Defendants and re-examined by Mr Dufficy.

[64]Dr Hicks’ qualifications are Mb.BCh (1978), MRCGP (1982), Master of Law (1994 with distinction) and he holds a RCOG/RCGP/Family Planning Association Certificate of Family Planning 1983. He was a partner in a GP surgery in Swindon from 1982 to October 2013 when he retired. Accordingly he was three years retired when the index consultations took place, and is 11.5 years retired from general practice now. He was also a senior police surgeon with Wiltshire Constabulary from 1982 to 1999. Dr Hicks has provided a full and impressive CV. He has had a number of organisational and management roles relating to general practice, including as a Professional Executive Committee Member and Board Member of Swindon Primary Care Trust with specific responsibility for Clinical Governance from 2002-2003, a Former Associate GP to the Performance Development Team of the NHS Modernisation Agency from 2003-2006, a Chairman of the Practice Based Commissioning Forum of Swindon PCT from 2007, and a non-executive director of a social enterprise company, SEQUOL, which provided community based health and social service provision in Swindon. He is a Member of the Register of Expert Witnesses and a Founder Member of the Society of Expert Witnesses, and has acted as a medico-legal advisor and expert witness since 1994 acting for claimants and defendants, as well as an advocate at General Practitioner disciplinary hearings. I have no doubt that he has the expertise and experience to act as an expert to the Court.

[65]Mr Gibson for the First Defendant criticises Dr Hicks in stringent terms in his cross-examination of him, his written closing note and closing submissions. He submits that Dr Hicks failed to review the factual records competently, let alone “precisely” as required by the Court per Green J in C v North Cumbria when: i) he supported a letter of claim dated 28 February 2020 sent by the Claimant to the First Defendant’s representatives which set out three breaches of duty at paragraph 58, the third being “a failure to perform a pelvic swab following a newly reported vaginal discharge” on 30 August 2016. Dr Hicks accepted in cross-examination by Mr Gibson for the First Defendant that there was no “newly reported” such discharge on that date, and so the wording was wrong, but maintained that had a pelvic examination been carried out a pelvic swab should have been performed if any discharge had been noted. I do not think this takes me anywhere. I cannot know whether the reference to “newly reported” was Dr Hicks’ own wording or crept into the letter which was, of course, authored by its sender, the Claimant’s solicitors not Dr Hicks. Although he accepted that he supported the draft, it is also true that this allegation of breach was not pleaded in the Particulars of Claim and I cannot know without breach of legal privilege whether the decision to drop it came from Dr Hicks’ withdrawing his support or for another reason; ii) he wrongly supported an allegation of breach of duty in the Particulars of Claim against the First Defendant that he had “failed to consider the blood tests on 30 August [2016] had showed evidence of inflammation consistent with infection”, and when he had raised in his expert report at paragraph 4.10 that “blood tests dated the 30th August in the notes showed evidence consistent with ongoing inflammation and a normal MSU (ruling out urinary infection... Clarification is sought as to whether the dates of these tests represent the date the test was received by the practice or the date they were performed”. Dr Hicks accepted after being taken to the relevant documentation by Mr Gibson in cross-examination that: a) the blood and urinary results he referred to were not those of 30 August 2016 but were those collected and reported on during the Claimant’s hospital attendance in the early hours of 17 August 2016, and that the documentation showing that had been disclosed to him in the hospital records before he produced his report; and b) the Second Defendant had explained twice in his witness statement, at paragraph 20 and paragraph 26(b), that the blood results added to the GP record on 30 August 2016 were those of the hospital blood results of 17 August 2016, making the clarification he sought unnecessary, had he read the witness statement carefully, which he had a copy of before he drafted his report. I accept that these amount to a series of mistakes which should have been avoided had Dr Hicks reviewed the hospital notes more thoroughly, and noted or at least been curious enough about the explanations provided by the Second Defendant to return to the hospital notes and check the position; iii) noting, incorrectly, in his report that the First Defendant had made “no reference to any physical examination” (at paragraph 4.9) in his note of the 30 August 2016 consultation when his notes state “abdo snt” which all experts now agree refers to “abdomen soft and non-tender”, and the First Defendant had made that clear in his witness statement at paragraph 9 and paragraph 12. In cross-examination by Mr Gibson Dr Hicks gave a cogent explanation, in my view, that he was not familiar with that abbreviation for soft, non-tender, and so did not know what it meant initially, but upon being told, he was happy to accept that a physical examination had taken place. I accept that evidence and although he seems to have missed the references in the First Defendant’s witness statements, I again do not think this takes me any further.

[66]Mr Gibson submits that such errors are each inexcusable and together should cause the Court to question Dr Hicks’ competence as an expert. He withdrew a submission that it called his independence into question, making clear that he was not suggesting that he deliberately ignored that evidence. He did, however, submit that Dr Hicks was negligent to make these mistakes when considering paragraph 9 of the Guidance for the Instruction of Experts which requires experts to exercise reasonable skill and care. As I have stated, I place less importance on two of those than does the First Defendant, but do consider that Dr Hicks’ treatment of the blood results note of 30 August 2016 was mistaken, as Mr Dufficy for the Claimant accepted in closing. He noted that Dr Hicks candidly accepted his mistakes, including that of the blood results which he was obliged to do, and did not try to argue his way out of them. I accept that submission. They do not provide any fatal undermining of the rest of Dr Hicks’ evidence, which overall I found to be careful, cogent, logical and independent. Mr Gibson submits that Dr Hicks’ evidence fell far short of “placing the Defendant’s evidence [from Dr Hampton] in such an altogether negative light that I should reject that evidence”, per [73] of C v North Cumbria. I will come back to that in due course.

Dr Hampton the First Defendant’s expert GP

[67]Dr Hampton produced a breach of duty report dated October 2023. He had a joint meeting with Dr Hicks, the Claimant’s GP expert and produced a joint statement on 3 December 2024. He attended Court, was briefly examined in chief, then and was cross-examined by Mr Dufficy and re-examined by Mr Gibson.

[68]Dr Hampton was criticised in closing by Mr Dufficy for the Claimant on the basis of a failure to provide a full CV, and what he said was inadequate experience to act as an expert which in his report is limited to a statement that he qualified in 1980, completed his GP training in 1987 after several years in hospital medicine including 1 year at Southmead in Bristol doing obstetrics and gynaecology, and thereafter was senior partner in a Bath practice until 2017, since when he has been doing locum GP work, 300 vasectomies a year and a weekly musculoskeletal clinic. Mr Dufficy criticised the lack of information about medico-legal training, any involvement he had with training, regulatory or other bodies, writing guidelines etc. The difficulty with this submission is that he raised none of those criticisms in cross-examination to enable Dr Hampton to address them. It may be that Dr Hampton has a full and impressive CV that he provided to his solicitors but has not made its way into the bundle. It may be that he does not and did not. Without giving Dr Hampton the opportunity to address that criticism, it takes me nowhere. When I put that to Mr Dufficy in the course of his submissions on this point, he said it was not his job to do anything but comment on the evidence. I disagree. If there is a criticism that a party wishes to make of the sufficiency of the expert’s experience and expertise to proffer his opinions to the court as expert, striking at his very suitability to act, it seems to me that fairness requires the expert to be given the opportunity to answer that criticism and clarify his experience and expertise.

[69]Mr Dufficy further criticised Dr Hampton, saying he had “let himself down badly”, on his approach to the factual causation defence of the First Defendant, which persisted until after he had been cross-examined after which the First Defendant conceded it. That arises from the opinions of the causation experts about what the hypothetical examination of the Claimant would have found, if the First Defendant had arranged for her to come in for a pelvic examination on 30 August 2016.

[70]In their joint statement, Mr Slack for the First Defendant said she would have been found to have mild pelvic tenderness and not cervical excitation, Mr Magos for the Second Defendant said there would be “mild pelvic tenderness particularly on the left side and possibly fullness in the left adnexa” although he considered cervical excitation would have been unlikely, and Mr Raine-Fenning for the Claimant opined that there would have been found pelvic tenderness worse on the left, and cervical excitation.

[71]Dr Hicks and Dr Hall both agreed in their joint statement that any of these scenarios would be sufficient to prescribe the Claimant with immediate broad spectrum antibiotics for PID. Dr Hampton supported the idea of an “evidence gap” in the case where, as Mr Gibson summarised it in his skeleton argument for trial, “a hypothetical [pelvic] examination on 30 August 2016 had shown “mild pelvic tenderness only” [per Mr Slack and Mr Magos]”, the suggestion being that Dr Hampton would not treat with antibiotics. In fact, Mr Magos referred also to fullness in the left adnexa, not only mild pelvic tenderness. When I drew this to his attention during the course of his oral evidence, Dr Hampton promptly accepted that he would also treat with antibiotics and take swabs, as that finding would pass the low threshold for a potential pelvic infection and there was no harm in treating and taking swabs. Mr Dufficy submits for the Claimant that Dr Hampton’s position was never defensible, as to carry out a pelvic examination and ignore pelvic tenderness, even without adnexal fullness, in the context of the Claimant’s history and the concerns raised by both Dr Dickwella and the First Defendant about the possibility of PID would, frankly, be illogical. I accept that submission.

Dr Hall the Second Defendant’s expert GP

[72]Dr Hall produced a breach of duty report dated 22 November 2023. She had a joint meeting with Dr Hicks, the Claimant’s GP expert and produced a joint statement on 2 December 2024. They produced a further joint statement on the same date. She attended Court and was cross-examined by Mr Dufficy and Mr Gibson.

[73]In closing, Mr Dufficy also sought to criticise the sufficiency of Dr Hall’s experience and expertise to proffer her opinions as expert to the Court, but he did not raise these criticisms with her in cross-examinations and for the same reasons as I have set out in relation to Dr Hampton, I consider that he should have done so, in fairness to her.

[74]As Dr Hall accepted in cross-examination, she had based all her opinions upon, and written her report entirely based on, the Second Defendant having carried out the index telephone consultation with the Claimant on 5 September 2016 with a diagnosis of pyelonephritis in mind. She said that she believed he was considering that diagnosis, which he knew from the discharge letter from the Claimant’s stay in hospital in mid-August, from his witness statement. Mr Dufficy asked her whether she had any changes to make to her opinion having heard the evidence of the Second Defendant that he could not recall and did not know from his notes what diagnosis he had in mind, she said she did not. She said that she believed he was considering pyelonephritis, that she did not feel that he remembered from nine years ago, and the fact that he may have read and considered an alternative suggested diagnosis (of PID from the notes of Dr Dickwella and the First Defendant) did not mean that it was valid.

[75]I found this very concerning, as it appeared to me that Dr Hall was: i) holding firmly to an opinion which was based on one perceived fact which she elicited from the Second Defendant’s witness statement (that he had the diagnosed pyelonephritis in mind at the index consultation, albeit that his witness statement was clear at the start that he had no recollection of the Claimant at all), even when the basis of that perceived fact had been fatally undermined; ii) trespassing on the judicial function to find, and rely on as a fact (or as her belief) that he was considering pyelonephritis in the index consultation; and iii) seeking to advocate on behalf of the Second Defendant, thus undermining her own independence.

[76]During the course of her cross-examination by Mr Dufficy Dr Hall returned repeatedly to her opinion that there was no need for the Second Defendant to turn his mind to PID when the hospital had made a diagnosis of pyelonephritis, when the Second Defendant’s evidence was that he did not know what diagnosis he had in mind, but if he had read the previous notes (which would include the hospital diagnosis) he would have had the suspected diagnosis of PID in mind. However, she then made a series of concessions, accepting: i) that her report falls away, and she cannot stand by it, as it was based only on the Second Defendant considering pyelonephritis, but his evidence is that he does not recall what he was considering, and his notes are silent on the point; ii) that the Second Defendant’s evidence was that his usual practice was to read the previous notes and if he had done so he believed he would have understood from them that both Dr Dickwella and the First Defendant considered PID as a potential diagnosis and he would have too; iii) that in any event, she failed in her report to deal at all with the first of four pleaded particulars of negligence against the Second Defendant, set out in paragraph 40(f) of the Particulars of Claim, namely that he failed to pay any, or any adequate attention to the fact that Dr Dickwella had suspected PID on 26 August 2016 and the First Defendant had queried PID on 30 August 2016; iv) that her contention in her report that there was no need for the Second Defendant to review the previous notes, and her statements that “that the fact that Dr Dickwella had considered PID was irrelevant”, and “the fact that [the First Defendant] had considered PID was irrelevant” were wrong, as the Second Defendant had a duty to read the all the notes and make his own diagnosis, and those potential diagnoses were relevant. I will add that I consider these statements that a treating GP should ignore as irrelevant the careful, thoughtful and comprehensive recent and relevant notes of his GP colleagues to be extraordinary. In my judgment there was no justification for them, they should not have been made and they significantly undermine Dr Hall’s credibility and independence in my eyes; v) If the Second Defendant did not consider the First Defendant’s note and potential diagnosis of PID he was doing something very wrong, and that would not be a practice which would be supported by a responsible body of general practitioners; vi) If the Second Defendant had read the notes he had to be considering a diagnosis of PID and should take all reasonable steps to confirm or exclude that diagnosis; vii) The only realistic steps he could take to do so was a pelvic examination and he did not do one (she said “if he was considering PID as he says he was then he had to do a pelvic examination”); viii) No responsible body of GPs would support the failure of the Second Defendant to call the Claimant in for a pelvic examination at the index consultation. E. Determination of Issues on Breach of Duty Was it a breach of duty for D1 to fail to carry out a pelvic examination on 30.8.16?

E. Determination of Issues on Breach of Duty

[77]In his joint statement with Dr Hicks, Dr Hampton and Dr Hicks agreed, in answer to the first question on the agenda about whether GPs generally should adopt a low threshold for considering and excluding a diagnosis of PID, and thereafter for referring for further examination and treatment if the diagnosis cannot be excluded, that: i) All guidelines and authoritative text clearly state that practitioners must maintain a low threshold for consideration of a diagnosis of PID. The reason is because untreated or inadequately treated PID can result in severe long term complications; ii) The reason for that is because presentation of PID vary considerably in symptomatology and severity. Symptoms can range from none at all to evidence of severe infection. If for whatever reason a practitioner considers the possibility of PID in a patient then all reasonable steps must be taken to confirm or exclude the diagnosis as a matter of some urgency. This can include empirical treatment in the first instance in the absence of a definitive diagnosis.

[78]In answer to question 2(i), what history, signs or symptoms would mandate consideration of PID, Dr Hampton and Dr Hicks agreed: i) Classical symptoms may include lower abdominal and/or pelvic pain, vaginal discharge, abnormal vaginal bleeding, pain with intercourse. Physical signs can include abdominal tenderness and pyrexia. Pelvic (bi-manual) examination will typically demonstrate uterine and/or adnexal tenderness and/or cervical motion tenderness, and/or vaginal discharge. A pelvic swelling may also be present. It is to be noted however “there is no combination of symptoms and signs to make a clinical diagnosis of PID so it is very important to have a high index of suspicion for PID” (with reference to published literature appended to the statement). Symptoms and signs will vary considerably between patients. No set of symptoms and signs can be 100% accurate to diagnose or to exclude a diagnosis of PID which is the reason why a low threshold must be adopted.

[79]In answer to question 2(ii), what signs or symptoms would mandate a pelvic examination by a GP for suspicion of PID, Dr Hampton stated “In the situation where a patient presents with a problem and PID is being considered, then a pelvic examination, which includes both speculum and bi-manual, is mandatory”. Dr Hicks put it that “a physical examination is integral to any assessment of a patient where a diagnosis of PID is considered to be a risk of possibility. The risk of a delayed diagnosis can be catastrophic to the patient’s future physical and mental health”.

[80]On the basis of the First Defendant’s notes of the index consultation and his evidence at trial, there is no question, in my judgment, that the Claimant had presented before the First Defendant with a problem and PID was being not only considered by him but it was his conclusion, falling short of a definitive diagnosis, that she had a resolving pelvic infection. This was on the basis of some of the classical symptoms identified by him as set out above, including lower abdominal pain, vaginal discharge and a recent history of abnormal vaginal bleeding, as well as the presence of actinomyces. Following Dr Hampton’s own evidence, then, a pelvic examination was mandatory. However, Dr Hampton’s opinion summarised in the joint statement and maintained in oral evidence is that a responsible body of general practitioners would support not performing a vaginal inspection at the consultation with the First Defendant on 30 August 2016, because: i) the claimant had a quiet abdomen with no fever or tachycardia; ii) the vaginal discharge had improved following removal of the coil previously; iii) the co-amoxiclav treatment would have had an effect on the Actinomyces; iv) a pelvic examination at that point was not indicated; v) the safety netting which was done by the First Defendant was correct.

[81]In relation to the first two points, these were factors which were clearly in the mind of the First Defendant at the time of the index consultation, because he noted them. He was also well aware that the Claimant had been on co-amoxiclav. However those do not go to the question of whether a pelvic examination should be carried out, in my judgment, but whether there was a real or reasonable or well-founded suspicion of PID. The First Defendant considered these and a host of other matters as previously set out, and his own evidence, as inferred from his note, was that his conclusion or working diagnosis was that it was PID albeit query resolving.

[82]Mr Gibson for the First Defendant submits that, following the guidance in C v North Cumbria, Dr Hampton’s expert evidence was given in good faith, by a competent expert with first-hand experience of working as an NHS GP in a busy practice from the time period concerned (2016) to 2025, that his views were respectable, responsible i.e. not extreme, logical and reasonable and based on a precise consideration of the relevant matters. Accordingly, he submits, I should attach substantial weight to that opinion.

[83]In particular, Mr Gibson goes through the symptoms and signs of PID summarised on Patient.info to submit that almost all of them are absent. He submits that it was a matter for the First Defendant’s clinical judgment to determine whether a pelvic examination was called for following his face to face consultation and physical examination of her abdomen, and that clinical judgment was also supported by Dr Hall, the Second Defendant’s expert, in her written and oral evidence.

[84]There appears to be consensus amongst the breach of duty experts that in the situation that the First Defendant found himself in, if he did not even consider whether to carry out a pelvic examination on the Claimant, this was wrong and an omission which would not be supported by a responsible body of general practitioners. Accordingly I must make a factual finding on this point.

[85]I have thought about it carefully. It concerns me that the First Defendant, who made excellent, comprehensive notes illuminating his thinking, in his safety netting noted that if there was a recurrence of fever, abdominal pain or vomiting then she would need further investigation, and he noted “? CT” but did not note “? pelvic examination”. In his cross-examination by Mr Dufficy he could not say whether he had considered carrying out a pelvic examination because he could not remember, but said “Normally if I think of something and don’t do it I make a note. However I was a GP for 1 year at this point, and now I have been a GP for 9 years, my notetaking may be different now”. This was a very honest admission. I have thought about this very carefully and in my judgment, on the balance of probabilities, given the comprehensive nature of his notes and his evidence of his usual practice, if he had considered giving the Claimant a pelvic examination I find that he would have noted that he considered it but did not do it, or noted it as a further investigation for the future if her symptoms deteriorated. In my judgment, given that his working diagnosis was that this was a query resolving PID, and given that there is a low threshold both for considering and excluding PID, and given that, as all the experts accepted, PID is a diagnosis that a GP cannot afford to miss, as the breach of duty experts accept, no responsible body of GPs could support not even considering carrying out an examination which could test that potential diagnosis, when measured against the risks of non-treatment.

[86]Mr Gibson submits that failure to consider performing a pelvic examination upon the Claimant is not a pleaded allegation of breach of duty against the First Defendant, but failure to take steps to exclude a diagnosis of PID is pleaded at paragraph 40(e) which I consider to be sufficient.

[87]Given that causation is now agreed, I am satisfied that the Claimant has proven negligence against the First Defendant.

[88]I will go on to say for completeness that even if I am wrong in making that finding, in my judgment this is the rare case where the Claimant has demonstrated that Dr Hampton’s professional opinion is not capable of withstanding logical analysis, per Bolitho, for the following reasons.

[89]The symptoms and signs of PID summarised on Patient.info relied on by Mr Gibson are not statute, and there is other literature before me which sets out symptoms and signs in broader terms, more akin to those agreed by Dr Hicks and Dr Hampton in their joint statement (for example, “lower abdominal pain” rather than “bilateral abdominal pain” in Patient.info, “vaginal discharge” rather than “vaginal discharge which is purulent” as in Patient.info. That is of little relevance, in my judgment, given that the First Defendant considered all of her history and presentation and concluded that he was dealing with a pelvic infection, albeit one that was “? resolving”.

[90]In relation to his statement that a pelvic examination was not indicated, in his both his written and his oral evidence Dr Hampton sought to draw a distinction between what Mr Gibson in his closing described as “PID in the abstract” and the specific situation of a “? Resolving pelvic infection” as noted by the First Defendant. His oral evidence was that it was not mandatory to perform a pelvic examination in circumstances where there was a resolving infection which was not acute, although he accepted in cross-examination by Mr Dufficy that PID waxes and wanes and so it necessary to think of the fundamental disease rather than whether it was acute or quiescent or chronic.

[91]Dr Hampton described the Claimant as “not presenting with a problem at that time. She is presenting with a dramatic improvement. She was virtually back to normal”. He said that the First Defendant “…did a very good job in flagging up that maybe PID had been missed, but the patient is now better. The treatment got rid of the pain. We don’t go around unpicking things.” However he accepted in cross-examination: firstly that the treatment had not got rid of the pain, as the Claimant still had niggling abdominal pain; and secondly that the treatment by co-amoxiclav was not the standard treatment for PID, and that although it might be effective against Actinomyces, it was not known if that was the only infective agent and it was likely only to partially treat, and therefore mask the symptoms of, the suspected PID.

[92]Dr Hampton also accepted that each acute event with PID can have an exponentially worse effect on a patient, saying “Yes the longer PID is left untreated the more likely a patient is to have fertility problems” and that the risk of not treating PID was high. He pinned his opinion to his view that the PID was resolving, but this was illogical, in my judgment, given his acceptance that PID waxes and wanes and the partial treatment with co-amoxiclav may have been responsible for the reduction in symptoms and improvement in blood results, without dealing properly with the underlying infection.

[93]Mr Dufficy then asked him (in context of the high risk of not treating PID), “So sending her away and asking her to come back is not correct?” to which Dr Hampton responded “Sometimes you are left with asking them to come back. I’m not convinced that she would have been symptomatic”. There are two criticisms I make about that. The first is that it is not at all clear why the First Defendant would be “left with asking [the Claimant] to come back” in the circumstances of this case. There is no evidence to suggest that he offered her a pelvic examination and she refused it for example. I have no doubt if that had happened the First Defendant would have included that information in his excellent notes. The Claimant’s evidence is that if she had been offered a pelvic examination she would have undergone it. The second is that his statement that he was not convinced she would have been symptomatic is contrary to the agreed evidence of all of the causation experts. When this point was put to him he agreed he deferred to the causation experts, but in my judgment he was too closely aligned with the First Defendant’s case, and really seeking to advocate for him, displaying somewhat of a lack of independence.

[94]Dr Hampton said that he had thought very carefully about his wording in his answer to question 2(ii) when he wrote that part of the joint statement. He initially said “If you think the patient has PID then it a pelvic examination is mandatory. If it is a differential diagnosis and only one possibility it is not mandatory to do it. If she wasn’t getting better then absolutely do it. But it was very reassuring that she was getting better and whatever it is, is settling down.” I find this rather confusing. The First Defendant thought the Claimant had PID and so, on Dr Hampton’s own evidence, it was mandatory to do a pelvic examination. He accepted in answer to a question from Mr Dufficy in cross-examination that there was no literature he knew of to support his opinion that a resolving PID means that a pelvic examination is not required. He said that a vaginal examination is intrusive and the First Defendant would need “a clear indication” to carry it out, but in my judgment the First Defendant’s working diagnosis, or working conclusion that the Claimant had a resolving pelvic infection following his comprehensive review of her history, notes and physical examination is such a clear indication. The mere fact that a vaginal examination is intrusive does not justify not doing it, when the risk is that PID will be missed with all of the serious and long-term consequences which can follow.

[95]In my judgment, Dr Hampton’s reliance on safety netting was also undermined by his oral evidence. The First Defendant’s note that he asked her to return later or seek medical assistance if her pain or symptoms got worse, i.e. if the infection becomes acute again, is no alternative to a pelvic examination as that would, Dr Hampton accepted, be high risk in itself and likely to result in, inter alia, damage to her fertility. Ordering the bloods to be repeated is no alternative, as Dr Hampton accepted that this could not assist with confirming the suspected diagnosis.

[96]As mentioned, Dr Hampton accepted that if the First Defendant did not even consider doing a pelvic examination in circumstances where he had noted “? Resolving pelvic infection” this would be unreasonable. Mr Dufficy asked, “If he didn’t consider carrying out a pelvic examination that would be a breach of duty?” to which Dr Hampton replied, “If he was thinking of a pelvic infection he must think of pelvic examination”. Later, in answer to Mr Dufficy’s double negative question about whether it was not in the Claimant’s best interests for a pelvic examination not to be carried out, Dr Hampton replied “If you are thinking that someone in front of you has PID then no, you have to investigate it" before returning to the point that she was “virtually back to normal”.

[97]In my judgment, Dr Hampton’s reliance on the fact that the First Defendant considered the pelvic infection to be resolving to negate the need for a pelvic examination, when he accepts such an examination would be mandatory when PID is suspected, is not a defensible conclusion, per Bolitho, given: the waxing and waning nature of the suspected disease; the possibility of partial treatment with co-amoxiclav, which is not the standard treatment for PID, explaining the apparently resolving symptoms; the lack of literature to support his position; the lack of evidence that Dr Hampton has properly turned his mind to the comparative risks of not seeking to confirm the diagnosis and start immediate treatment in terms of a further acute episode, or entrenchment of the PID as chronic, and damage to the Claimant’s fertility set against the fact that the Claimant was before the First Defendant and so it would have been a simple matter to examine her, albeit that it would have taken some additional time from his busy list; and that there were really no alternatives available to avoid the adverse medical outcome.

[98]In cross-examination by Mr Gibson, Dr Hall confirmed her opinion contained in her report, albeit that it was a breach of duty report on the Second Defendant, that the First Defendant was not in breach of duty by his actions on 30 August 2016. In her view, it was reasonable to keep an eye on the Claimant and see if things change and she said in cross-examination by Mr Gibson “the bar is too low if the standard is to offer a pelvic examination to all who are suspected of PID. It is necessary to make a clinical decision in each case”. In my judgment, her opinion in support for the First Defendant, also fails the Bolitho test really for the same reasons as does Dr Hampton’s.

[99]Conversely, despite the criticisms made of Dr Hicks, which I have found to be made out in part, I am satisfied that he represents a respectable body of professional opinion and I consider his opinion to be logical, and coherent. There is a low threshold for considering the diagnosis and treatment and a high index of suspicion; the First Defendant had more than a suspicion of PID, he had a working diagnosis; Dr Dickwella also considered that PID was more likely than pyelonephritis and called the Claimant in with some urgency so that she could be physically examined; the diagnosis was not one that a GP can afford to miss; in all the circumstances, including that the disease waxes and wanes, and that the antibiotics she had been treated with might partially treat her PID but not cure it, and that she had ongoing symptoms of lower abdominal pain, vaginal discharge and recent irregular bleeding, no responsible body of general practitioners could support not performing a pelvic examination to test that potential diagnosis, when measured against the risks of non-treatment.

[100]Accordingly if I had not found the First Defendant to be in breach of duty pursuant to allegation 40(e) of the Particulars of Claim, I would find him to be in breach of duty pursuant to allegation 40(a) of the Particulars of Claim. Was it a breach of duty for D2 to fail to recommend, or cause C to undergo, a pelvic examination soon after the phone call consultation on 5.9.16?

[101]There is really very little left of the Second Defendant’s defence following cross-examination of him and of Dr Hall at trial. I have set out the Second Defendant’s admissions in paragraphs 59 and his acceptance of liability at paragraph 60 above, and I accept that evidence. I have also set out Dr Hall’s admissions and withdrawal of support for his defence at paragraph 79 above. I have rejected Ms Campbell-Clause’s submission that I should ignore or give no weight to any of the Second Defendant’s evidence which does not support his case.

[102]There is a factual finding for me to make in relation to whether it is more likely than not that the Second Defendant read the previous medical notes and so knew that Dr Dickwella and Dr Hammond were considering a diagnosis of PID at trial. In my judgment, although the notes are silent and he has no recollection, it is more likely than not that he did. He is a very experienced GP of long-standing, who was telephoning to report blood results to a patient who would, very likely, have questions about them, and in order to properly prepare for that conversation the least he should do was read those recent entries in the notes. I am satisfied on balance that he did, and that he had that consultation with those potential diagnosis of PID in mind.

[103]In my judgment, having read those notes, and knowing that two of his colleagues were considering a diagnosis of PID, and knowing that neither of them had given the Claimant a pelvic examination, and taking into account the evidence and admissions of the Second Defendant and the revised opinion of Dr Hall, I am satisfied that there is now no evidence before me that the Second Defendant’s failure to call the Claimant in for a pelvic examination is supported as a practice accepted as proper by a responsible body of general practitioners. The Claimant, the Second Defendant, Dr Hicks and Dr Hall all now accept that his failure to do so was a failure to take all reasonable steps in breach of allegation 40(f) and 40(i) of the Particulars of Claim.

F. Conclusion

[104]The Claimant has made out its case in negligence against both of the Defendants.

[105]I will provide a separate judgment on condition and prognosis and quantum.

[106]I thank all counsel for their helpful and well-structured oral and written arguments and the assistance they have given the Court.