McDonnell v Holwerda [2005] EWHC 1081 (QB)

Case No HQ04X00189[2005] EWHC 1081 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27 th May 2005
Before
MR JUSTICE NEWMAN
Between
SEBASTIAN McDONNELLClaimant(a child, suing by his mother and litigation friend Christina McDonnell)DR PIA HOLWERDADefendant
Mr Simon Taylor QC (instructed by Harman & Harman) for ClaimantMr Jonathan Holl-Allen (instructed by MDU Services Limited) for DefendantHearing Hearing dates: 25 th- 28 th April and 3 rd May 2005
Judgment
[1]This case raises an important question in connection with the standard of care required of general practitioners (GPs) when treating young children who may be suffering from meningococcal septicaemia and/or meningitis.[2]It is common ground that on the second of the two occasions the defendant saw the claimant no signs of meningitis were shown. It is common ground, with the benefit of hindsight, that the signs and symptoms which were present on this occasion demonstrate that he was suffering from the early stages of meningococcal infection.[3]The pleaded case, pursued in argument and faintly left for the court’s consideration, is that the defendant fell below the standard required of a reasonably competent GP in not referring the claimant to hospital on the first occasion she attended to treat him. I am satisfied that this allegation is not made out for the reasons which will become apparent from my determination of liability in connection with the second occasion of treatment.

The Facts

[4]The claimant was born on 23rd April 1993 and is now 12 years old. The defendant is his former GP who was also the family doctor to his mother and grandmother. The claim concerns events on Christmas Day 1997 when the claimant was 4½ years old.[5]As a result of the meningococcal septicaemia he developed that day, he has a number of disabilities, including the loss of his right leg through amputation, and the loss of a number of digits on both hands. The claimant’s left leg has also been badly affected. The claimant’s case, in essence, is that the defendant, despite having seen the claimant twice on Christmas Day 1997, failed to detect the extent to which a risk existed that he was suffering from meningococcal septicaemia and/or meningitis, which risk required immediate referral to hospital. Had she referred him, he would have received earlier treatment and it is contended his disabilities would have been avoided.[6]Master Yoxall ordered that the trial should:
“deal with the issue of liability and causation; the causation issue being limited to (1) whether or not the claimant would have been admitted on referral to hospital and, if so, when he would have been admitted; and (2) when the claimant would have received treatment.”
[7]The sequence of events on Christmas Day 1997 is as follows. The claimant was with his mother, Christina McDonnell, at his grandparents’ house in Shornecliffe Road, Folkestone. During the course of the afternoon he became sufficiently unwell for his grandparents and his mother to be concerned about his condition and to call out the defendant. She arrived reasonably promptly in response to the call at about 17.00 hrs. When she arrived the defendant examined the claimant, took his temperature which was 40ºC and concluded that he might have gastroenteritis. She advised treating his fever with Calpol and a cool bath. She stated that she did not think that it was meningitis and told the family to call her again, if necessary, and, in particular, to look out for any sensitivity to light and the presence of a rash.[8]Shortly before 21.00 hrs the mother phoned the defendant, who arrived promptly. On arrival she was informed that the claimant had expressed sensitivity to the light and, as a result, the main lights in the room were not on. She was also told that the claimant had a rash. At the heart of the case is whether the response of the defendant to the observable condition of the claimant and the information she was given fell below the standard of care of a reasonably competent GP. The defendant concluded that there were no signs of meningitis, that the rash was “heat rash like” and that the treatment should continue to be by way of fluids, paracetemol and keeping the child cool.[9]Later that night the family were so concerned with the claimant’s condition that they telephoned the hospital and were told to bring him in. Shortly afterwards he started to fit and an ambulance was called. He arrived at the William Harvey Hospital at 01.28 hrs and was admitted as an emergency. A diagnosis of meningococcal septicaemia was rapidly made, and he was treated with intravenous antibiotics, the first doses probably being given sometime between 02.00 and 02.45 hrs.[10]The critical factual issues requiring determination concern the detail surrounding the following:(1) What was said to the defendant on the telephone on each occasion when she was called out.(2) What she was told by the family on each occasion when she arrived.(3) The extent and detail of the examination she carried out of the claimant on each occasion.(4) The observable condition of the claimant.[11]Christina McDonnell had consulted solicitors at some time before 5th February 1998, less than two months after Christmas 1997. In a letter dated 5th February 1998 addressed to the NHS Kent Family Practitioner Community the following complaint was made about the first visit:
“Briefly, our client’s son, Sebastian McDonnell, began to feel unwell shortly after lunch at 2.00 pm. He was complaining of tummy ache and was sick. He had a high temperature and told his mum that he had a headache. He also said that his bones hurt and he began shaking. Miss McDonnell called her surgery and Doctor Holwerda was on call that day. She attended at approximately 4.30 pm. The symptoms were explained very carefully. Doctor Holwerda was told that Sebastian had had a bad tummy ache, all his body was aching; he had a headache; high temperature; he did not like bright lights. Dr Holwerda took Sebastian’s temperature with a strip thermometer belonging to Miss McDonnell. It read 102ºC. She moved Sebastian’s arms and legs to which he moaned in pain. He did not appear well to Miss McDonnell and seemed confused. The Doctor asked whether Sebastian had been sick to which Miss McDonnell said that he had. She felt Sebastian’s tummy.”
The reference to the recorded temperature is wrong. It was 40ºC (104ºF).[12]Dr Holwerda replied by letter dated 4th March 1998 in the following terms:
“I … arrived at your house at around 5 p.m. You told me that he had become unwell in the course of the afternoon, that he was complaining of tummy ache, headache, feeling achy all over and had been sick repeatedly. You had also noticed that he had been shaking. When I saw Sebastian he was very warmly dressed and was sitting on a chair next to the hot air expulsion point. I checked his temperature which was reading 104 with the strip thermometer that you gave me. I asked Sebastian how he felt and he said his tummy hurt and he did not feel very well. He could move his arms, legs and neck normally and there were no signs of meningism. I checked his chest which was clear. His ears were normal with no sign of infection. His abdomen was soft with general achiness all over. There was no specific point where the pain was at its maximum. There were no masses present. His bowel sounds were lively.”
[13]It can be seen from these two accounts given within weeks of the event that there were a number of common factors. The claimant was unwell and was suffering from a tummy ache and had been repeatedly sick. He had a high temperature 104ºF or 40ºC and was also complaining of a headache. He had been shaking and felt that “his bones hurt” and was aching all over. It is clear that the defendant carried out an examination of the claimant involving checking his chest, his stomach and his ears and assessed the movement of his arms, legs and neck.[14]That said, the letter dated 5th February 1998 asserted facts which it can be inferred were not agreed by the letter under return and which are now in issue. In particular, the fact that the claimant “did not like bright lights”, the fact that he “moaned in pain when his arms and legs were moved” and the fact that he “seemed confused”. Further, in her letter by way of reply, the defendant referred to the claimant being seated next to a hot air expulsion vent and being warmly dressed. These contentions have been in issue at the trial.[15]The contents of these letters were developed subsequently in correspondence in May 1998 where, in the terms of a draft dated 20th May 1998 corrected by a letter dated 26th May 1998, the defendant observed, in relation to the report that the claimant’s arms, legs and neck were aching, that it was accepted that the claimant:
“was complaining of stomach pains and pain in all his limbs. There was, however, no stiffness of his neck or legs present which is what she checked for on both visits.”
[16]Just under one year later in April 1999 the claim came before an Independent Review Panel who, according to terms of reference which it is not necessary for me to recite, had occasion to record the parties’ respective accounts in connection with the position at 5.00 pm as follows. In the notes the following was recorded as Christina McDonnell’s account:
“Dr Holwerda had examined Sebastian and taken his temperature. She said that she didn’t think it was meningitis, and that there were a lot of tummy bugs about. She advised giving him a cool bath, giving him Calpol, and to call her again after 9 p.m. if the symptoms continued. She then left. The defendant’s account was recorded as follows: “He had a lot of clothes on, was next to a hot air vent, his temperature was 40ºC (104ºF). I examined him. His chest, ears, tummy, and limb movement seemed satisfactory. There appeared to be no signs of meningitis, which is something which must always be checked. It appeared most likely to be a tummy infection. I suggested removing his extra clothing, giving him a warm bath, and giving him further Calpol. I said that if he got worse to call me again.”
[17]The letter of claim on behalf of the claimant dated 10th January 2002, which was generally consistent with the way in which the claimant’s case had already been put, added that the defendant had arrived without a thermometer and went on to state:
“You were concerned because you believed that Sebastian was sitting by a hot air vent and you advised cooling him down in the bath and dressing him in loose clothing. You indicated that if Miss McDonnell continued to be anxious, she should phone you.”
The MDU replied to this letter on behalf of the defendant by letter dated 21st January 2003 which, in its material parts, stated:
“At the first visit, Miss McDonnell said that he was hot, had been vomiting and was complaining of aching all over. She had noticed he had been shaking. Dr Holwerda examined him carefully and took his temperature using a strip thermometer given to her by Miss McDonnell; this recorded a temperature of 40 degrees. Sebastian was unwell but not so unwell that he required hospital admission. In particular, he was not concerned by the lights on in the room, had no neck stiffness, no rash and was not irritable. Dr Holwerda was however concerned that Sebastian appeared to be sitting by a hot air expulsion point and was warmly dressed and so she advised that his clothes should be removed and he should be given a cool bath and Calpol to reduce his temperature. She also advised that she should be called again if he did not improve, or deteriorated, over the new few hours. She also said that Miss McDonnell should keep an eye out in case he developed a disliking for bright lights or a rash.”
[18]In her witness statement and her oral evidence, Ms McDonnell outlined the events from about 4.00 pm onwards as follows. Sebastian was complaining of a tummy ache and seemed to be finding his jeans, which he had been given for Christmas, too tight. He said that his head hurt and his bones hurt, but at this point Ms McDonnell was not unduly concerned about him and told him to go to the toilet. No long afterwards, she was called downstairs by her father and she saw Sebastian shaking, his hands and feet were icy cold but his body was very hot. He had deteriorated to this point very rapidly. She had not seen him look as poorly as this. He vomited; he changed from being an alert boy to being drowsy. He did not like the light. She sat him on her lap, but he did not want to be touched and obviously felt achy. When he talked, he did not always seem to make sense. She recalls that, because he seemed so hot, they stripped him down to his vest and underpants.[19]Ms McDonnell’s witness statement makes no reference to the content of the first telephone call to Dr Holwerda. Dr Holwerda records in her witness statement (paragraph 10):
“… she told me that her son, Sebastian, … had been complaining of a tummy ache since the early afternoon, and had been vomiting. She also said that he complained his bones hurt and that he was shaking …”
[20]I find that it is likely that Ms McDonnell told the doctor something about the symptoms which she had seen, otherwise the defendant would not have agreed to make a house visit to examine the claimant. In my judgment Ms McDonnell is mistaken in her recollection, reflected by her answers in cross examination, that she mentioned every symptom of the condition she can now recall Sebastian had developed. Her account was that she told the defendant, on the telephone, that Sebastian was aching all over, had a tummy ache, headache, that his bones hurt, that he was shaking, that his hands and feet were cold and was vomiting. She believed that she must have told the doctor about a sensitivity to light.

Sensitivity to Light and the Claimant’s Clothing on the First Visit

[21]I am not satisfied, on the evidence, that by the time of the first visit the claimant had expressed a dislike of or shown a sensitivity to the electric lights. In my judgment, Ms McDonnell is conflating the circumstances of the two visits. There is no dispute that when the defendant left after the first occasion she advised the family to be alert to observe whether the claimant became sensitive to the lights. If he had already developed a sensitivity to the lights by the time of the first visit and had that been reported to the defendant, this piece of the uncontradicted evidence would make no sense. Since the agreed evidence is that the claimant had a very high temperature when the doctor attended, I do not regard the dispute as to what he was wearing, nor indeed how proximate he was to a hot air vent, as material to any issue I have to decide. It has not been suggested that his high temperature is to be explained by the fact that he had warm clothing on or was near a hot air vent. Although the perception may have been that the defendant had raised these facts with a view to minimising or reducing the impact of a high temperature, that has not been the defendant’s case. On balance, I incline to the view that it is more likely that the claimant had on more clothes than Ms McDonnell and her parents now recollect, not the least because otherwise the acknowledgement in the letter before action that the defendant had expressed her concern, at the conclusion of the first visit, about his proximity to the vent, is unlikely to have been asserted, on behalf of the claimant, as part of the sequence of events (see paragraph 17 above).[22]I infer from the defendant’s agreement, in response to the first call, to visit on Christmas Day, that what she was told reflected a degree of concern and urgency on the part of Ms McDonnell as to the condition of the claimant, which the defendant considered was genuine. I infer, too, from the fact that she took a stethoscope and otoscope into the house (but, inexplicably, not her bag), that she anticipated the need of having to carrying out an examination. Although there is some material to suggest Ms McDonnell took the claimant’s temperature before phoning the defendant, there is no evidence that she had been warned that the claimant had a high temperature, but she might have expected that to be the position or, in any event, that the need to take the child’s temperature would arise. The only explanation which has been suggested for her attendance without her thermometer is that she might have believed that she had a thermometer in a pocket, but could not locate it. On being offered the strip thermometer, she used it. I am satisfied from her evidence to the court that her assessment of the general condition of the claimant was that he was “seriously ill”. By that, I understood her to mean that the severity of the symptoms she had observed and of which she had been told were serious enough to have justified the need for the examination she carried out and that the cause of his condition, whilst capable of rendering the claimant very unwell, in pain and discomfort, was not such as required him to be referred to hospital for examination.[23]The account given by the defendant in her witness statement as to the condition of the claimant contains greater detail than that given earlier in the correspondence and to the Assessment Board. That is not a criticism. She states how she asked the claimant how he was and that he replied to the effect that his tummy hurt and he did not feel very well. The examination of him involved moving his arms and head and moving his legs for him. His neck was not stiff and he did not appear to mind the movement of the limbs. From an abdominal examination he did complain that his tummy ached, but the defendant concluded that it was not acute in any particular place and the abdomen was soft and not tender to touch. She listened to his bowel sounds, which were lively. He was fully conscious, although she would describe him as “a little dopey”, but that was nothing more than she expected with a high temperature. She examined his chest and ears, and both were clear, and she maintains that she saw his chest, back and tummy and found no rash. She emphasises in her witness statement, in retrospect, that, in particular, she was satisfied that he was not so ill as to require referral to hospital because:
“he was not confused, he was not concerned by the lights on in the room, he had no neck stiffness nor a suspicious rash”
. This, with small differences, was the explanation provided by the MDU for the non-referral on the first occasion: “In particular, he was not concerned by the lights on in the room, had no neck stiffness, no rash and was not irritable” (see paragraph 17 above).[24]In answer to the court, the defendant explained that, by the expression “a little dopey”, she meant to convey that the claimant was alert when he was addressed, but did not pay attention when not addressed. He was not on the margins of sleepiness, but was not as fully alert as he could have been. He was sitting in a chair and not lying down. Having listened to the evidence of the family, I am not persuaded by it that he was, at this time, as drowsy and confused as their evidence suggests. Nor, for the reasons I have given, am I persuaded that the lights had been turned off. As with the family’s evidence as to the sensitivity to light on this first occasion, so I am also satisfied that there has been some conflation in connection with his sensitivity to being touched at this stage. There is no doubt that at some stage, but the evidence points to it being when his “tummy” was examined, that the claimant said “ouch!”, but I am not satisfied that when the defendant was present the claimant was groaning in pain all or some of the time, although I accept the evidence that he was complaining of aching and pain all over (see paragraph 15 above).[25]I accept that on the first visit the defendant examined the claimant and had in mind the risk that he might be suffering from meningitis. She concluded that he was not and, as a result, at that moment, eliminated from her mind any present risk that he might be in the early stages of it. In her statement, she observed:
“I only raised the issue of meningitis as this is a condition parents are often worried about”
. In oral evidence, she stated that she:
“was not ruling out the incipient stages of meningitis. I still had that at the back of my mind. Photophobia, irritability, reduced consciousness, neck stiffness or rashes would have made me perceive the risk as greater”
. I have concluded that the defendant’s witness statement comes closer to expressing the assessment she made of the risk of meningitis. She could not have given the advice she gave when she left if a future risk or possibility had not been in her mind, but equally she conveyed confidence in her assessment to the family (in particular, Ms McDonnell). She was sufficiently sure in her diagnosis of gastroenteritis not to examine the claimant to see whether he had already developed a rash.[26]She had seen a child of 4½ who was very poorly; indeed, in her own words, “was seriously ill”. She had heard that he had been repeatedly sick, that he ached all over, that he felt unwell and that he had a headache. He had a high temperature and his powers of attention were affected. Despite being told that he had been vomiting, it seems likely that the defendant did not attach as much significance to that as she could have done. It does not form part of her contemporaneous note. Had it weighed with her, one would have expected her to have given some advice (as she did on the second occasion) as to the need to keep up his fluids to avoid dehydration. She might have considered what value the claimant would gain from being given paracetamol which he was very likely to bring up. But these observations on the event are the product of a detailed review, at leisure, and I accept the evidence, supported by the experts in the case, that the examination which the defendant carried out on this occasion was not below the standard expected of a reasonably competent GP, that the assessment she made, that “it looked like gastroenteritis”, was reasonable and that it was good general practice for the defendant to advise the parents to monitor the situation, with particular aims in mind, which course could serve as “a safety net” for the immediate future.

The Second Phone Call and the Second Visit

[27]In the letter dated 5th February 1998 the solicitors for the claimant recited the account of the family in connection with events after the defendant had departed and before her return:
“When Doctor Holwerda left, Sebastian began to deteriorate. He was in so much pain and was murmuring and moaning. Miss McDonnell’s mother tried to give Sebastian a bath but he seemed to be in a lot of pain when touched. His temperature read 104ºC and Sebastian was also drowsy and was not making much sense. Miss McDonnell noticed a rash starting to develop over Sebastian’s body. This was mainly over his central chest, right shoulder and back. She was very concerned at this stage in view of the fact that Doctor Holwerda had mentioned meningitis but had been told that Sebastian had a tummy bug. At that time she was content with the advice given by the Doctor, but was concerned that his symptoms were very much like those of meningitis. He continued to be drowsy, floppy and intermittently, every 10-15 minutes would vomit. He could not tolerate bright light. Miss McDonnell called Doctor Holwerda again at about 8.45pm and she arrived just before 9.00pm.”
[28]I accept the evidence of the family, that is Ms McDonnell and her mother and father, which supports the account given under cover of the letter from the solicitors some weeks after the events. It follows that I accept that they were very concerned about the discomfort which the claimant was experiencing. I am satisfied that when they bathed him and when they attempted to dry him they did become aware of sensitivity on his part to being touched. I accept the evidence of the family that he did, by some means or other, indicate that he was bothered by the electric light. His objection was sufficient to cause them to turn it off in order to relieve him from the discomfort which the light created. I accept, too, that whilst he was being bathed and after he had been bathed, they did see a rash on his back and in the vicinity of his shoulder as well as observing at least one spot on his chest which was noticeable. I accept, too, that having made up the bed on the floor in the sitting room downstairs, the claimant, when he was not vomiting, was indeed lying on the mattress and in a state of drowsiness and, because he was feeling so unwell, did not, for much of the time, speak clearly and appeared to mumble.[29]I accept the evidence of Ms McDonnell and her parents that they wanted to ring the doctor earlier than they did, namely at 8.45 pm, but that Ms McDonnell, influenced by what the defendant had said about leaving it until 9.00 pm and the defendant’s confident tone, was reluctant to ring earlier. She did this, in my judgment, not because of a lack of concern on her part for the condition of the claimant, but because of her trust and confidence in the defendant’s assessment and a desire on her part not to be seen as over-reacting to her child’s symptoms. For this reason, I doubt whether she conveyed the true level of her concern in the course of the second telephone call, but I am satisfied that she conveyed enough to cause the defendant to come out again. Although some attention has been paid to the question whether she indicated that the claimant had deteriorated or simply stated that he had not improved, it does not appear to me to be all that material to what I have to decide. Once the defendant attended, it was for her to assess the position by carrying out a proper examination and making relevant inquiries of the family.

The Second Visit

[30]The letter dated 5th February 1998 put the position thus:
“The symptoms were very carefully explained to Doctor Holwerda as Sebastian had deteriorated a great deal. Doctor Holwerda was shown the rash to which she said, after glancing at it “they’re not meningitis spots”
. Miss McDonnell repeated her words by saying “they’re not meningitis spots are they?” to which Doctor Holwerda replied, “no, they’re definitely not”. Miss McDonnell kept asking if it was meningitis to which Doctor Holwerda said “I don’t think so”….. Miss McDonnell … was reassured that all he had was a tummy bug and that he would probably feel like this for a few days. In Doctor Holwerda’s presence, Sebastian was sick and began crying “help me, help me”.” In her letter of reply dated 4th March 1998 the defendant replied as follows:
“You informed me Sebastian was still being sick. He was now lying on a mattress on the floor in the living room. He was loosely dressed and lightly covered. We checked his temperature again which had now gone down to 38º celsius. He said he did not like the light very much but did not mind us putting on the main light in the living room in order to have a proper look at him. He did not look particularly happy but was fully conscious and had normal movement in his arms and legs and no sign of neck stiffness. He said he was still feeling sick. Subsequently he vomited and then asked for a drink. He had a few sips of juice and then he went back to lie down. You told me you had seen a few spots on him so with the main light on we checked his skin. There were three red blotches on his right shoulder which disappeared completely on exerting pressure on the skin. There were no other spots visible over his body. There was no suggestion at all of a purpurated rash which is associated with Meningococcal infection. In general I felt Sebastian looked better than he had done a few hours before. I advised you to continue to keep him cool and to give him small amounts of fluid to drink. I also suggested you try to give him some more paracetemol. You said you would go and sleep next to him on the floor which seemed a good idea so you could keep a close eye on Sebastian.”
[31]In the light of the evidence which has been given to the court, some aspects of this letter call for particular comment. The family maintain that the claimant was merely in his underpants and had no top on at all. The defendant maintains that he was wearing a tee-shirt. Despite it being obvious that there would be a need to take the child’s temperature, having regard to the high temperature he had at 5.00 pm, the defendant did not have a thermometer with her. Nor did she have a stethoscope or otoscope as she had on the first occasion. The expression “did not mind us putting on the main lights in the living room” was amplified in oral evidence by the defendant. She explained that when the light was turned on, the claimant did not screen his eyes or squint or show any visible signs of sensitivity. The assessment that the claimant “did not look particularly happy” would not appear to be an apt description of what the defendant herself observed and it is far removed from the position spoken to by the family. The statement that he was fully “conscious” is, in my judgment, apt enough to describe “consciousness”, but sheds no light on the overall alertness of the claimant.[32]It is not in dispute that the claimant sat up of his own accord on the mattress but, contrary to the impression which the letter under response might convey, the opinion that he had “normal movement in his arms and legs and no sign and neck stiffness” was not derived from an examination of his limbs, as had occurred on the first occasion. The terms of the letter do not suggest that the defendant carried out an examination of the claimant to look for signs of a rash, but only did so when Ms McDonnell referred to the existence of a rash. It has been confirmed by the oral evidence that the statement that “there were no other spots visible over his body” was not derived from an examination of the whole of his body. On the defendant’s account, neither his tee-shirt nor his pants were removed. It has been the defendant’s contention throughout that she thought Sebastian looked better than he had done a few hours before, but it has never been suggested that she expressed that view to the family. Had she done so, I have no doubt that it would have drawn out a strongly held view to the contrary and considerable more detail than was elicited by the defendant.[33]In the report of the clinical assessors “reporting to the chairman to the Independent Review Panel”, dated 27th April 1999, the defendant’s account is recorded as follows: “Dr Holwerda noted that Sebastian was dressed more comfortably and away from the hot air vent. She noticed that he did not flinch when she put on the main light. She took his temperature immediately after he had vomited and recorded a temperature of 38ºC. She decided that he was no worse but in fact better than he had been earlier and concluded that the viral illness was taking its natural course. She examined him again for signs of meningism and checked the rash that she was shown. She decided that the rash she saw fitted the provisional diagnosis that she had made earlier and says that she explained this to the family”.[34]The notes of evidence taken by the assessors underlying this conclusion record as follows:
“Miss McDonnell called me again. When I saw him I was reassured. He looked better than he had 4 hrs previously. His temperature had gone down to 38ºC. He was vomiting, but he did take some juice. I looked for signs of meningitis – he was fully conscious, he could move his arms and legs, his neck was not stiff. He had some blotches on his shoulder, they disappeared when pressed. He did not have diarrhoea, was not disoriented and did not appear toxic. I concluded that it was gastroenteritis – I had seen a number of children with this in the previous week. We agreed to keep him cool, to give him Calpol, and sips of juice to drink.”
[35]The account given by the defendant in her witness statement (paragraph 21) is consistent with that which I have already summarised. But one or two parts call for comment. She states:
“I remember that the lights were low but thought nothing in particular of it as it was Christmas evening”
. Then, after a passage in which she describes the position in the room, she observes: “It was at this visit, not the first one, that someone mentioned that he was bothered by bright light. I am unable now to remember whether a member of the family raised the topic or I was told this in response to a question from me. She also said that he had now developed a few spots around the back of his neck. I said that I would need the main light in the room on to examine him and it was turned on for me. I watched him carefully and remember clearly that he did not in fact appear to be bothered by it, for example he did not react by scrunching his eyes up or expressing distress or asking for it to be turned off again”.[36]I am puzzled by the defendant’s recall of the assumption she made as to the reason for the absence of light in the room when she arrived, because she must have been quickly disabused of its reliability. If, as it seems likely to be the case, she was told by the claimant himself (as she records in her letter) that he did not like the light, and if, as seems likely, the family confirmed that he did not like the light, the import of the room being in darkness could only be attributed to the claimant’s sensitivity to light. Contrary to the defendant’s submission, I am not satisfied that the line of inquiry to which the claimant’s reported sensitivity to light should have given rise, should have been closed off simply by the fact that such discomfort as the light produced for the claimant was, on the single and short occasion that the light was turned on, insufficient to cause the claimant to flinch or to cover his eyes. I am in no doubt that had he flinched or covered his eyes the defendant would have seen it as a sign of a greatly increased risk of the presence of meningitis. The issue for me to decide is whether the existence of an expressed objection to light should have been given more attention and played a greater part in the defendant’s assessment of the condition of the claimant at that time.[37]The defendant’s witness statement does not confirm her recollection (as expressed to the Board) that the temperature of the claimant was taken immediately after he was sick. The terms of it would suggest the contrary. As to the use of the strip thermometer, the defendant states:
“Again, I was not troubled about using her thermometer rather than my own. What was important to me was that by using the same type of thermometer I was able to take a relative measurement and in that way was able to tell that it had gone down.”
If, as I doubt, the defendant intended to convey that the reason that she did not have her own thermometer with her on this second occasion was because she realised that there would be an advantage in using the same thermometer as she had used before, I would not have regarded it as a satisfactory explanation. In all the circumstances, I regard her attendance without a thermometer, a stethoscope and otoscope as indicators of the strength of the clinical assessment she formed on the first visit.[38]It is not in dispute that the claimant was able to sit up without assistance and was able to say that he felt sick. I accept, as well, that he uttered the words “help me, help me”. He was obviously conscious. He was able to ask for a drink and to take a few sips of juice. He then lay down again.

Examination of the Claimant

[39]The defendant did not examine the limbs, neck and movement of the claimant and would not have examined him for a rash unless the existence of a rash had been mentioned. She told the court that, in order to examine the rash, she pulled back the tee-shirt and that she found a blanching rash. Because it was a blanching rash, she concluded it was likely to be a heat rash. The existence of the rash did not increase her assessment of the risk that he had meningitis or meningococcal infection. In greater detail, she explained that, in order to look at the rash on the back or on his neck at the back, she pulled the tee-shirt away from the body and that she pulled the tee-shirt forward in order to look down his front. She was also able to see his stomach with the tee-shirt slightly raised. As I have already found, there was a noticeable rash on the claimant’s chest. It is clear she did not see it and, from the manner of her examination, it does not surprise me that she missed it. There is no evidence that had she removed his pants so as to look at his buttocks she would have seen a rash there, but the experts agree that a proper examination for a rash would have involved removing the pants to check the buttocks. In my judgment, the examination of the back and chest, including under the arms, was deficient. I do not doubt that the rash which she tested by her finger was a blanching rash. She did not examine his chest or ears. The impression, which earlier accounts had given that she had examined the claimant for stiffness, has been dispelled. Her conclusion was based on his ability to sit up and lie down of his own accord.[40]I find it difficult to see how the facts as they must have presented themselves to the defendant justified a conclusion, which she reached, namely that, if anything, the claimant was better than he had been on the previous occasion. First of all, it seems to me to be a conclusion which ignores the fact that he had been vomiting repeatedly for some three to four hours. On the first occasion, there was a history of vomiting to which she had not, apparently, paid much regard, but at that time it was not as sustained and confirmed as the condition which had developed since the first occasion, but, unfortunately, on the second occasion, she did not ask how often he had vomited. Whilst his temperature had apparently gone down by 2ºC, he was still maintaining a very high temperature. Fluctuations in temperature are to be expected. Further, a temperature taken with a strip thermometer immediately after a patient has vomited can be unreliable owing to the presence of sweat on the forehead after vomiting. She did not check his forehead for signs of sweat. Whilst he was able to sit up, it is not in dispute that immediately he had sat up and vomited, he went to lie down again. It is obvious that he was no more alert than he was before. He had a rash which he had not had before and he was complaining of a sensitivity to light which did not previously exist. It seems to be that the defendant’s overall clinical assessment of the claimant was that he was not as bothered as he had been before and, therefore, she concluded he was better. This assessment contradicted the basis upon which the defendant maintains that she was called back, namely that although he had not deteriorated, he had not improved. As I have already observed, if the defendant thought he was better, then she could have comforted the family by saying so. Had she enquired of the family why they were so concerned, she would, among other things, have been told that he was sensitive to touch. Had she asked, I have no doubt that more information could have been given about the degree of his sensitivity to the electric lights. Had she asked, I have no doubt that the family could have told her that there was a rash on his chest as well. She said in evidence:
“I did not ask a lot of questions”
. She was, as Ms McDonnell recalls, emphatic that the rash was not a “meningitis rash”.[41]I accept the evidence of the family and the effect of the evidence from the defendant that she concluded that the claimant did not have meningococcal infection or meningitis. She made a positive diagnosis of gastroenteritis as the most likely cause of the claimant’s condition.

The Relevant Standard of Care for GPs

[42]Mr Holl-Allen, counsel for the defendant, accepts that, following the evidence of Dr Isaac and Dr Williams, the latter being the defendant’s expert, the examination carried out on the second occasion was deficient in a number of respects. She did not repeat the abdominal examination which she had conducted at 17.00 hrs. She did not ask for Sebastian’s underpants to be removed so that she could examine his buttocks for any sign of a rash. She did not specifically ask about diarrhoea. Nevertheless, he submits that a repeat examination of the chest and/or ears was not mandatory and he is supported in this respect by Dr Williams. He submits that, on balance, the assessment and examination which was carried out covered the matters which were mandatory and that the sufficiency of the examination is not undermined by the evidence as to what she did not do and the fact that she did not ask a lot of questions of the family.[43]The defendant’s case in connection with the principal developments which had occurred by the second occasion, namely(i) repeated vomiting,(ii) a dislike of light and(iii) a rash, is that the defendant gave an appropriate response to each. As to the repeated vomiting, it is what one would expect in viral gastritis/gastroenteritis. As to the complaint of dislike of light, she adopted an appropriate approach by observing the patient’s response to the light. It was submitted, with some support from the experts, that there is a difference between photophobia proper and an aversion to light. Photophobia is a more extreme and developed condition and, as it happens, the hospital records do not record that the claimant was suffering from photophobia on admission. As to the rash, whilst it is accepted that in cases of meningococcal septicaemia a child can present, in the early stages, with a blanching, maculo-papular rash, which can proceed, or co-exist, with a non-blanching rash, it is not basic knowledge among general practitioners. It can be said, therefore, that the defendant, having tested the rash and found that it was a blanching rash, had done all that could be expected of her. The defendant stated in evidence that she was aware of the possibility of a blanching rash in meningococcal disease, but I was not impressed by the confidence with which she gave that evidence.[44]Mr Holl-Allen submitted that to conclude that, having received a complaint of dislike of light and a rash, as she had earlier foreshadowed, it followed that the defendant had no option but to admit the claimant to hospital would be simplistic. He submits that she assessed the new features of Sebastian’s presentation in the context of his general condition. He submits that the possibility of meningococcal septicaemia was always in the defendant’s mind. She found a child who was capable of sitting up unassisted, who was moving his limbs appropriately, who was capable of indicating verbally what his needs were, and whose temperature was down. He submits, therefore, that it was reasonable for the defendant to conclude that the claimant was, if anything, slightly improved. In that event, he submits that Dr Isaac and Dr Williams accepted that if, after a full assessment, the claimant was found to be marginally better or not to have deteriorated, it was not mandatory to refer him to hospital.

Conclusion

[45]I have no doubt that caution is required against adopting a simple approach, assisted by hindsight, in matters of professional judgment which have to be made in a snapshot of time. That said, it has been the defendant’s consistent case that she was not concerned on the first occasion because the claimant was not “concerned” by the lights being on in the room, had no neck stiffness, no rash and was not irritable. In my judgment, on the second occasion, when it is not disputed there was concern on the part of the claimant about the lights and a rash, she should have been concerned and she should have done more to check for “stiffness” and irritability. I accept that the absence of any flinching or covering up of the eyes might have reassured the defendant but, since there has been no evidence as to whether he was lying down or sitting up at the time, it lacks persuasion as a reliable test of sensitivity. She was not justified in taking that reassurance as obviating the necessity for making inquiry of the claimant and the family about the sensitivity which had been expressed. She could have asked him to look at the light. What she observed might have been enough to have eliminated the existence of acute sensitivity, but her response was too dismissive and insufficiently investigative. The situation called for a less cursory and more searching investigation.[46]The defendant adopted a similarly brusque approach to her assessment in connection with the existence of a rash. As with the sensitivity to light, her approach seems to have been to rely upon the outcome of one test or examination as sufficient to eliminate the need for further inquiry or examination. I have been struck in this case by the firmness of the defendant’s conclusions in an area in which it is acknowledged by all the experts that diagnosis is fraught with difficulty because of the uncertainties which prevail when assessing young children with high temperatures and rashes. Where the experts have acknowledged uncertainty prevails, the defendant appears to have found too great a degree of certainty. As the terms of a letter dated 14th July 1998 from the East Kent Health Authority to the defendant reflect, having referred to the issue of the diagnosis of rashes in children with high temperatures and the diagnosis of meningitis with different types of rashes, the letter concluded:
“We felt that there was sufficient learning from this incident not to recommend further educational interventions. I feel confident that you have identified any learning points and have rectified the situation.”
[47]I accept the evidence of Dr Isaac that there were important deficiencies in the history which the defendant took from the family. She should have asked about the claimant’s sensitivity to light. She should have asked about the frequency of the vomiting. She should have asked about his general condition. She should not have assumed that his dislike of being bathed was to be put down to cool water and have taken it as a “good sign” that he had had the energy to resist her” (witness statement, paragraph 22). Had she not made that assumption, been more suspicious and enquired more about his objections, she would have been told that he did not like being touched.[48]Dr Williams said that it was important for a general practitioner to take the tools that might be required into the place where the patient was to be examined. He suggested that the failure to do so could betray a mindset and could be poor practice. I acquit the defendant of poor practice. She took a stethoscope and otoscope into the house on the first occasion and I have concluded it is likely that her failure to take any equipment in on the second occasion is an indication of the mindset she developed on the first occasion. She was not anticipating a need to carry out a searching examination and nor, in my judgment, did she do so. The defendant agreed in cross examination that the examination had not been as complete on the second occasion as on the first, although she denied that it was cursory on the second. She claimed that it had been more focused. In my judgment it was not more focused. Her examination of the rash was, in my judgment, cursory. Her examination in connection with the development of the rash was, in my judgment, cursory. She was pre-disposed not to carry out a thorough examination as she had on the first occasion. She did not notice the rash until it was drawn to her attention and she relied on the claimant’s ability to sit up and lie down instead of examining his limbs for stiffness and taking an opportunity to examine him for irritability.[49]I accept the evidence of Dr Isaac that the examination was inadequate. It was not adequate merely to observe the claimant moving. A proper examination of a rash requires full undressing:
“she should have looked everywhere”
. The rash may have different parts with different characteristics:
“I would expect a GP to know that some parts could blanch and others not”
. Thus it was that since there was no proper search for a rash over the whole body, in a diligent way, such assurance as she obtained from finding that a part of it was blanching was obtained on a false basis.[50]Most importantly, I was impressed by the family’s evidence as to the claimant’s sensitivity to touch. Being sensitive to being touched is a sign of irritability which would form a significant factor in an assessment of risk for meningitis and meningococcal septicaemia. As Dr Isaac pointed out, undressing a child is a good way to check for irritability. Further, Dr Isaac was of the opinion that the defendant should have examined the abdomen because: “when called back to a child with a high temperature you must examine the abdomen”.[51]Dr Williams agreed that it would have been usual to examine the arms and legs, to manipulate them, to touch the child and examine the abdomen and to make a full examination for a rash. He accepted that normal practice would have given rise to a fuller history and fuller examination.[52]As I have already indicated, in my judgment the defendant’s approach to the possibility of photophobia had, like her approach to the rash, a rigidity and certainty which meant she excluded it from her mind and from a line of inquiry which should have been taken up with the family. It would have been very simple for the defendant to have asked the claimant simply to look at the lights rather than just observe his reaction when they were turned on. Most particularly, I am satisfied that it is likely that had she carried out a proper examination she would have learned of the claimant’s sensitivity to touch and, had she done so, I have concluded that that factor, along with the sensitivity to light and the rash, would have led her to referring the claimant to hospital.[53]I have carefully considered the argument and the point of general principle that the proper standard of care required of general practitioners should not be seen as requiring them, whenever they see a child with a high temperature, to refer the child to hospital. That is not an approach which underpins my conclusion at all. I am satisfied that referral to hospital in cases of suspected meningococcal infection should be made without waiting for the illness to develop to the point where specific symptoms and signs have developed. Between the proposition that all children with a high temperature should be sent to hospital and the proposition that one awaits the development of symptoms and signs, there is a requirement that general practitioners should assess the aggregate set of symptoms and signs which exist, even if they can be individually capable of being assessed as non-indicative of meningococcal infection. A doctor should consider whether, by reason of their aggregate presence or their totality, when taken with the general condition of the child, a decision not to refer to hospital would involve a calculable risk of harm to the child. Ultimately, as the defendant herself accepted, it is the extent and depth of the general practitioner’s suspicion which must come into play. The speed with which the infection can take over so heightens the significance of the risk that referral should take place upon the basis of a properly formed and carefully assessed suspicion. In my judgment the defendant left insufficient room for suspicion, she did not permit suspicion to exist during her examination, when, in truth, greater suspicion and inquiry was called for. I am satisfied the defendant allowed herself to be influenced too greatly by the fluctuation in temperature which she found on the second occasion. It should not have been regarded as such a compelling factor. Taken with all the other factors, that fluctuation could not, in my judgment, lead to a reasonable conclusion that his condition was better than on the first occasion.

When Would the Claimant Have Received Treatment?

[54]The experts agreed that if “the family’s account” was correct, treatment would have been given after arrival at hospital and would have commenced between 10.30 pm and 11.00 pm.[55]It will be clear from the conclusions I have already expressed and from the entirety of this judgment that, although the defendant’s assessment on the first occasion did not fall below the standard required of her, it was marked by a measure of inattention to the vomiting and a significant measure of certainty.[56]In my judgment, her overall assessment on the second occasion was reached in haste. The claimant had deteriorated. As the family have maintained:(1) he was sensitive to light;(2) he had a rash on his back/shoulder and on his chest;(3) he was sensitive to touch; he was showing signs of irritability;(4) he was repeatedly vomiting; and(5) his general condition was very poor with decreasing alertness. He was systemically unwell. I have concluded that treatment would have commenced after arrival at hospital between 10.30 pm and 11.00 pm. For completeness, I should add I have considered the absence of any photophobia being noted when he was admitted to hospital. The absence of a record does not, in my judgment, affect the weight of the evidence, which I have accepted, that he was sensitive to light prior to and on the occasion of the defendant’s second visit.[57]In the light of the above conclusions, I shall hear counsel on the necessary consequential orders and directions for the future conduct of the case.