Brown v Birmingham and Black Country Strategic Health Authority & Ors [2005] EWHC 1098 (QB)

[2005] EWHC 1098 (QB)Case No 05/TLQ/0260
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/06/2005
Before
SIR MICHAEL TURNER (SITTING AS A HIGH COURT JUDGE)
Between
Rachael Diana BrownClaimantBirmingham and Black Country Strategic Health Authority1 st DefendantMrs Patricia May Shukru2 nd DefendantMedical Defence Union Limited3 rd Defendant
Edward Faulks QC, David Thomson and Chris Mellor (instructed by Challinors Lyon Clark (Birmingham)) for ClaimantPaul Rees QC and Richard Smith (instructed by Browne Jacobson (Birmingham)) for 1 st DefendantJohn Grace QC and Philippa Whipple (instructed by RadcliffesLeBrasseur (London) for 2 nd and 3 rd DefendantsHearing Hearing dates: 8 th, 9 th, 10 th, 11 th, 14 th, 15 th, 16 th, 17 th, 18 th March, 4 th April and 8 th June 2005
Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.Sir Michael TurnerSir Michael Turner:Introduction

Outline of relevant history – [agreed, unless otherwise shown]

[1]This claim is brought to recover damages for the injury to the Claimant’s health and well-being allegedly due to failures in diagnosis and treatment at the hands of the Claimant’s general practitioner and the hospital to which the Claimant had been referred on two occasions in December 1985 and January 1986.[2]The Claimant was born on 22 May 1981 and was the third child of Mr and Mrs Brown.[3]The Second Defendant is the widow of the late Dr Shukru, who died on 17 May 1999. Dr Shukru had been the Brown family’s general practitioner for a number of years before 1985 and continued to be such until he retired in 1992, some seven years after the events which gave rise to this claim.[4]The estate of Dr Shukru was fully administered on 1 July 1999. This fact gives rise to the claim against the Third Defendant, which was the professional indemnity provider of Dr Shukru. This claim awaits decision in the light of the result of the present proceedings.[5]The First Defendants are the legal successors to the Wolverhampton Health Authority which was the Authority responsible for the New Cross Hospital and its professional staff. Principal among these was Dr Clymo who was at all material times the consultant paediatrician in charge of the Claimant. The Claimant was admitted to New Cross Hospital on the two occasions mentioned in paragraph 1 above.

The nature of the claim

[6]The Claimant was born with a congenital spinal defect (cervical dermal sinus) which remained undiscovered by any of the professional parties before the Court. It is the undoubted fact that the presence of this defect enabled a low grade infection to enter the Claimant’s spinal fluid and cerebral space and cause the meningitis which was the true cause of the Claimant’s disability.[7]In general terms it is the case for the Claimant that the presence of the abnormality, which was the dermal sinus, had been pointed out to Dr Shukru by one or both parents on more than one occasion prior to the development of any relevant illness. This claim was equally denied by the Second Defendant. As against the hospital, it is alleged that the investigations which were carried out on both, and particularly on the second admission, were deficient. In a nutshell, it is contended that a lumbar puncture should have been performed which would have revealed the presence of the infective organisms which led to the development of meningitis and the subsequent hydrocephalus. It is these conditions which led to the development of severe signs and symptoms in May 1986 and the Claimant’s admission to the Midland Centre for Neurosurgery where a life saving operation was performed by the neuro-surgeon Mr Hamilton.[8]The consequence of the undiagnosed condition has been devastating to the Claimant. In the pre-action protocol letter of claim, her condition is summarised, thus:
“Over the next two years Rachael struggled to cope with life often suffering with nightmares. She struggled at school and eventually she was assessed as having special educational needs. Rachael suffers from a significant lack of self confidence and an inability to mix with others which caused her problems throughout her school life. She also suffers with some short term memory loss. Rachael’s left arm is disabled and her left hand is slightly deformed. Her arm movements are limited and she suffers loss of control of her left hand. She has a loss of sensitivity in her left arm and restricted movement in her left leg. Her right foot is larger than her left … . She limps slightly. Rachael suffered severe damage to her right eye and has restricted vision … . She has twice had surgery to correct the squint. Rachael is employed within the family business in basic administrative work and suffers [from] a severe handicap on the open labour market.”
[9]The present trial was concerned with determination of liability alone.

Delay

[10]The impact of delay in this case has been of marked effect. Not only has Dr Shukru, regrettably, died so that his oral evidence, which could have been of critical importance, has been denied to the Court, but also the consultant paediatrician in charge of the Claimant’s case has retired. Not only he, but also most of those working with him, at New Cross Hospital, had no independent recollection of events and were all forced to rely upon the, albeit, copious medical and nursing notes to assist, or create, their ‘recollection’.[11]It is as unfortunate, as it is regrettable, that although Mr and Mrs Brown consulted solicitors in 1986, the present claim was not advanced until the letter before proceedings which was dated 6 November 2001. It is the fact that they had been advised that since the Claimant was herself under disability, there was no necessity to commence proceedings until she reached her majority or was otherwise of full capacity; see Mr Brown’s trial statement paragraph 49. As a matter of law, of course, this advice was correct so far as it went, but the evidential difficulties to which it has predictably given rise are acute, and could well be determinative. What the advice appears to have ignored was the obvious desirability of obtaining judgment first, with damages to be assessed later.[12]Statute, in the form of the Limitation Act 1980, recognises that there may be circumstances in which it would be inequitable to permit an action to proceed once the primary period of limitation has expired. Plainly, and as a matter of law, this is not such a case. Nevertheless, the Court must ask itself whether in a case, the result of which may depend on the individual or recorded recollection of key players, the simple application of the normal burden of proof may not give rise to unfairness to one party or another. It would, I consider, be likely to lead to substantial injustice if the court were to ignore for all purposes, the fact that this action ought properly to have been brought, so far as liability was concerned within three years, at latest, after the Claimant (or at least her advisers) were aware of the facts which constituted a good cause of action against one or more of the medical parties before the Court. It is easier to state this as a reasonable approach to the problem of evaluating evidence, than it is to apply it in practice.[13]If regard were to be had to section 33(3) of the Limitation Act, sub-paragraphs (a), (b), (c), (e) and (f) would all have been answered in such a way as favouring the application, rather than the dis-application of that sub-section. Given the statutory recognition of the difficulties into which a party may be placed in having to meet a stale claim, the proper approach is for the Court to be loath to draw inferences adverse to the party disadvantaged, unless there is no reasonable alternative. Such will be my approach in this case.

The nature of the disease and its processes

[14]In its simplest form, meningitis is an inflammation of the meninges which constitute the membranous lining of the brain. In its common form, the disease is caused by the entry from the blood stream of infective organisms (bacterial or viral) into the meninges. Frequently these organisms will gain entry after infection in the throat and then migrate to the blood stream. In other instances, meningitis can be the result of the direct entry of organisms to the substance of the brain itself or its lining. Such may result from fractures of the skull, infections in the region of the ear, or, as here, infection entering the cerebro-spinal fluid (CSF) through a portal, such as the cervical dermal sinus which existed in Rachael’s case. In this latter type of case, the infecting organism may be less virulent than in the more common type, so that until the infection has taken a strong hold, the signs of infection will be less acute and more obscure to the clinician. However, once the infection has become established the clinical signs of the disease would be much the same. Some one or more of the following may be present: Stiffness of the neck Reduced level of consciousness Photophobia Fever (usually) Headache Hyper-acusis Vomiting[15]Without treatment, meningitis will rapidly lead to irreversible brain damage. When of bacterial origin, meningitis will respond to the administration of appropriate antibiotic medication. By ‘appropriate’, in this context, is meant both as to method of administration and as to type. Antibiotic insufficient as to type, or method of administration, may lead to the partial treatment of the condition but not its eradication. In such a case, once treatment has been stopped, the condition will re-assert itself.[16]If the infecting organism is not highly aggressive or pathogenic, the likelihood is that the ingress into the CSF and development of infection will take much longer to develop than in the case of a more highly pathogenic organism. Development of clinical signs is likely to be more subtle and may take weeks to manifest itself. Because these organisms may be sensitive to penicillins, even orally administered, these may inhibit, conceal and delay the development of frank clinical signs. In these cases, the natural inflammatory response of the body will be the production of pus cells and inflammation of the surrounding tissue.[17]If there is infection of the CSF, it can spread to the fluid filled areas of the skull. In addition to changes in the CSF, the surface of the brain and the ventricles located in the centre of the brain can become inflamed. In this last case, the condition is known as ventriculitis. This is a well known complication of meninigitis. The condition involves swelling of the surrounding tissue accompanied by further consequential injury to the brain itself. There will be deposits of various detritus within the ventricles which will eventually lead to occlusion of circulation of CSF with a resultant increase of intra-cranial pressure which leads to the development of hydrocephalus. There is another mechanism, which need only be noted and not further discussed, and which, in the situation under consideration, may yet further increase the quantity of CSF and result in increasing pressure within the cerebral cavity.[18]Hydrocephalus may be of one of two types, communicating or non-communicating. If there is over-production of CSF or it is unabsorbed, for any reason, the hydrocephalus is of the former type. However, if there is obstruction to the natural flow of CSF, the condition is then described as non-communicating. For present purposes, the significance of the type of hydrocephalus is that one of the standard procedures for determining the existence of active pathogens in the cerebral space or CSF, as in meningitis, is the lumbar puncture. Under this procedure, CSF is drawn from the spinal theca. If the cause of the hydrocephalus is either excess pressure or failure of absorption, then the withdrawal of fluid may relieve the clinical signs, but without curing the underlying disease. If, however, the hydrocephalus is non-communicating, the pressure drop, which will occur upon the withdrawal of fluid from the spinal theca, will create a pressure gradient in the base of the skull and ‘coning’ may occur. In this condition the contents of the cerebral space will tend to be driven towards the base of the brain stem with serious consequences for the pathology in that area and the development of life threatening complications.[19]If there is to be any form of recovery, the relief of hydrocephalus requires surgical intervention.[20]In Rachael’s case, by the time that a full diagnosis had been made, the hydrocephalus had been ascertained to be non-communicating and, therefore, neurosurgery was performed to relieve pressure by creating burr holes in the skull and the insertion of a ventricular drain.Appropriate therapy had also to be undertaken in order to eliminate the cause of the meninigitis and hydrocephalus. Outline of relevant history – [agreed, unless otherwise shown] 1. 22 May 1981 - Date of birth. 2. September 1981 – April 1982 standard vaccinations given by Dr Shukru or in his surgery. 3. 16 December 1985 – home visit; admission to New Cross Hospital, letter:
“Thank you for admitting this child – 1st time I saw her was 9.12.85 when she presented here with tonsillitis. Treated her with Septrin paed suspension. Continued it until 14.12.85 when I saw that the temperature was still rising child looked ill and was not eating. Thinking that if it is a bacterial infection perhaps it is not sensitive to Septrin I have altered it to Erythromycin syrup since 14.12.85 but still to no avail. No physical signs left.”
[4][Hospital notes] 19 December, “Spike of fever yesterday. … Therefore home. No diagnosis, no follow up.”[5]20 December, seen by Dr Shukru:
“Chest clear. No temperature.” 6. 30 December: Discharge letter from New Cross Hospital: “History Rachael had been unwell for approximately a week prior to admission. Initially she had a slight fever and complained of a sore throat. After a couple of days she had developed a cough and on the day of admission she had been complaining of headache. Throughout this period she had been intermittently feverish, anorexic and very much not herself. There had been two episodes of vomiting. She had been treated with Cotramozazole and Erythromycin with no benefit. On examination She did not appear well but there were no abnormal findings. She was afebrile. Progress For the first two days she was in hospital Rachael continued to look unwell although there were no more specific findings, she did not spike a fever. However on the third day she seemed much improved and was therefore allowed home. No follow up has been arranged.”
On examination Progress No follow up has been arranged.” 7. 20 December: Home visit by Dr Shukru. - NAD. 8. 6 January 1986: Further home visit – “No better admit to New Cross.” 9. 6 to 22 January – in-patient at New Cross. No diagnosis. Discharge letter dated 28 February:
“History: This four and a half year old girl had a history lasting six weeks, initially she was just generally not herself, malaise but no specific symptoms. Three weeks prior to this admission she had been admitted (to this hospital) and no diagnosis was made on this occasion. She was apparently slightly better after discharge but was still with malaise. This continued for the next three weeks. Four days prior to admission the malaise increased. She was moaning, miserable and not playful. She had a fever which occurred at random. She felt nauseated on a few occasions and vomited three times in the last four days. Her appetite was less than normal. There were no bowel or genito-urinary symptoms. The parents felt their child was no worse and no better than at onset six weeks ago. On examination: Flushed. Afebrile. Emotionally blunt and Flat. Otherwise examination findings normal. Treatment and progress: She was admitted for observation and investigations. She continued to have abnormal behaviour in that she was withdrawn and sometimes not wishing to talk to hospital staff, indeed not appearing to talk much with family. Repeat examinations daily found no abnormality other than behaviour. There were occasional spikes in temperature up to 37½o C. She was perhaps a little more withdrawn on these occasions but not markedly so. The temperature spikes did not correlate with any other examination findings. She had a nineteen day admission. The last few days there was slight improvement in her general condition . She was discharged again with no diagnosis but will be followed up by Dr Hull in two weeks and Dr Clymo in four months. Investigations: No pathogens isolated from the throat, urine, blood. Haemoglobin 12.4. E.S.R. 8. White cells 10.1. Blood film - normal. Ultra sound scan of abdomen – Normal. Three times 24 hour urine collection for catecholamines results awaited.” [Subsequently normal]. On examination: Treatment and progress: Investigations: 10. 25 January: Home visit by Dr Shukru: “Satisfactory. Now she smiles occasionally no physical illness”. 11. 6 February: Follow up examination by Dr Hull and letter: “I reviewed Rachael in the Clinic today. She was readmitted to the ward on 6th January and hopefully a discharge summary will be reaching you soon. I apologise for the delay. She was in hospital for eighteen days during which time she had various investigations done which were all normal. She continued to seem intermittently miserable and withdrawn when approached by strangers but she seemed to improve gradually over this time. On review today her parents felt she was much better and that her behaviour was back to normal. She is eating and sleeping well and has been going to play school. She was reluctant to talk and was clutching her father’s hand vigorously but after a short while she settled down and became more communicative. There was nothing to find on physical examination. She has an appointment with Dr Clymo in June. I have told the parents that if they have any worries they should ring us earlier.”

Investigations:

[12]18 March: Dr Shukru:
“1/12 (month) duration of weeping, insomnia. Since 2 days periodic rise in temperature. Full physical exam(ination) NAD.”
Full physical exam(ination) NAD.” 13. 19 March: Dr Shukru:
“Most uncooperative today. Apart from 2-3 fleeting smiles no response at all.” 14. [Disputed] 20 March: Dr Shukru: “Consultation c Dr Clymo by phone.” 15. 4 April: Dr Shukru: “This week on alternate days c/o headaches, pain in the neck. Vomited once 2 days ago. Appetite not very good but basically complains of loud noises from TV or loud speaking. Irritable at times. O/e Ears , chest Temp 40 0 C Tonsillsinjected Rx Syrup Ampicillin.” [Disputed as to accuracy of examination and/or sufficiency of note] O/e Ears , chest Temp 40 0 C Tonsillsinjected Rx Syrup Ampicillin.” [Disputed as to accuracy of examination and/or sufficiency of note] 16. 14 May: Wolverhampton Health Authority, Dr Davies: “Dear Dr Clymo, Re: Rachael Brown I believe you will be reviewing this five year old girl in June. She came to see me at a local clinic and I was very concerned about her, particularly her very marked apathy. Rachael’s personality is reported to have changed dramatically ‘overnight’ since the onset of an acute illness in December, 1985. I assume this was viral. She was pyrexial and vomiting (two siblings had similar but less marked symptoms). This recurred in January. Her behaviour before her illness is described as shy and withdrawn. She complains intermittently of pain in her neck and often wakes at night whimpering. For the past week she has held her neck to the left and neck movements are limited. There were no palpable glands and no signs of infection to day. The only abnormal physical sign was her torticollis. She was apprehensive and speechless but co-operative. She has a fine tremor of her hands. Rachael is considered ‘very bright’ at school but there are times when she appears ‘switched off’ and sometimes responds with completely inappropriate conversation. Usually she is ‘shy, withdrawn and very tense’. She causes concern there. If encephalopathic illness has been excluded, I feel some urgent help is required, presumably from an educational psychologist as we no longer have a child psychiatrist in this area. I have not referred Rachael myself as you will be seeing her soon.”

Re: Rachael Brown

[17]23 May: Dr Shukru:
“For 6/52 has not been sleeping well. She wakes up but sometimes in a dream world. Lost a lot of weight, eyes vacant and drained of all emotion. Shivering and holding her wrists and elbows flexed in front of her. Slight neck stiffness. O/e ? resp(iratory) infection. ?Meningeal irritation Spoken to Dr Ross (New Cross Hospital) and admitted.”
O/e ? resp(iratory) infection. ?Meningeal irritation Spoken to Dr Ross (New Cross Hospital) and admitted.”

O/e ? resp(iratory) infection. ?Meningeal irritation

[18]23 May: Dr Shukru’s admission letter, which includes a brief history and 29. concludes:
“Like her parents I AM NOW VERY WORRIED ABOUT HER.”
[19]Report by Dr Shukru to the Claimant’s then solicitors, after having set out 31. the above history:
“ … she was obviously very ill and in view of Dr Clymo’s holiday I spoke to Dr Ross (Consultant Paediatrician) requesting an immediate admission.”
[20]On the same date, having been admitted to the Midland Centre for Neurosurgery and Neurology (MCNN):
“(Rachael) was anaesthetised and straight X-rays of the skull were taken – apart from a slight spreading of the sutures, these were normal. A right frontal burr-hole was then made and the ventricle tapped. The CSF was under high pressure and turbid. Air was injected in the usual way and the wound closed. X-rays showed that the ventricular system was dilated but there was free passage of air to the enlarged cisterna magna; no air passed upwards above the level of the tentorium and the hrdocephalus appeared to be of the communicating type. In view of the history of recurring meningitis, search of the child’s skin then showed a small punctum in the back of the neck.”

The patient was commenced on intravenous (therapy) …

[21]The neuro-surgeon in a statement to the First Defendants’ solicitors, said:
“This girl was admitted to New Cross Hospital, Wolverhampton on23/5/86 and was transferred to the (MCNN). She had been unwell since December 1985, (I am not in a position to comment on that stage of her illness) but had become much worse on 22/5/86, with fever, confusion and incontinence. At New Cross Hospital a CT brain scan showed her to have an enlargement of the ventricular cavities in the brain. She had signs of meningitis. It is dangerous to perform a lumber puncture, to obtain CSF for examination, in the presence of such ventricular enlargement. At (MCNN) a frontal burr hole was made for this purpose, revealing a turbid (infected) CSF under high pressure. Antibiotic treatment was started though it was not until 28/5/86 that it was known that there were two infecting organisms (they were slow to grow on culture). The finding of this infection led to the search for a skin track which was found in the upper cervical region, amongst her hair. As her condition was not improving with the antibiotic therapy, and as it was not then possible to be sure that the infection was sensitive to the antibiotics being given, it was decided to remove the track on 25/5/86, and gross infective changes around this confirmed it as the source of the infection. The extent of such changes showed that the infection was of fairly long standing – probably more than two weeks. Her further, very slow, progress is clearly described in the hospital discharge summary (see below) and I need make no further comment on it. I remember that, when I pointed out the skin track to her parents, they said that they had noticed this in infancy and pointed it out to a doctor. No action was taken at that stage. I cannot remember whether or not they had said that they had drawn attention to it during her recent illness.” [Emphasis added]
22. Discharge summary from MCNN:
“... On admission to New Cross Hospital, she was described as having a “look of terror” about her and was clearly disorientated. At times she was thought to be hallucinating. There were clear signs of meningism. There was no focal deficit but she was generally hyper-reflexic. On arrival in this unit her clinical condition was much the same but an important additional observation was of a dermal fistula in the cervical region. A CT scan at the referring hospital had demonstrated marked hydrocephalus and emergency treatment on the day of admission consisted of the insertion of an external ventricular drain. Purulent CSF was released under pressure. The patient was commenced on intravenous (therapy) … Over the ensuing 48 hours, the child remained in much the same state as on admission and at this stage she underwent exploration of the Cervical Dermal Fistula, this being traced as far as the cervical dura via a Laminectomy. Within the dura the track extended into a cyst which was adherent to the back of the spinal cord. This tumour was removed and subsequent histology revealed it to be an Epidermoid.”
The patient was commenced on intravenous (therapy) … The treatment was then described and Rachael was eventually discharged to the Birmingham Children’s Hospital for further medical management. This lengthy review of largely undisputed fact provides the essential background for identifying some of the significant areas of non-medical dispute in the case. These areas may now be identified: 1. Whether or not the Claimants’ parents, or either of them, at any stage pointed out the existence of the dermal sinus to Dr Shukru. There is no record of this in his notes; see above. 2. The accuracy of Dr Shukru’s note §14 above, and, if a conversation did take place, what was its substance; in particular whether or not Dr Shukru informed Dr Clymo of the results of his two visits to Rachael on the preceding days. 3. Whether or not Dr Clymo ever told Dr Shukru that Rachael suffered from “endogenous depression”; it must be a ‘condition precedent’ to this allegation that Dr Clymo had formally or informally made that diagnosis for himself. 4. The accuracy of Dr Shukru’s examination and note §15 above, in particular whether or not Rachael had neck stiffness, in contradistinction to neck pain, on this date. 5. What were the true reasons why New Cross Hospital did not perform either a CT scan or a lumbar puncture?

The witnesses

[22]Mr and Mrs Brown. It has already been noted that there are, here, substantial issues of fact which require resolution before the Court can make its critical findings. The Claimants’ parents fall within the group of witnesses whose evidence has to be considered with sensitivity and care. There can be little doubt, and none was suggested, that their main concern has been the genuine best interests of the Claimant herself. This general observation holds good for the periods before, during and after the Claimant’s illness. As I felt constrained to observe at the conclusion of the evidence, Mr and Mrs Brown have throughout conducted themselves with dignity and restraint. It has never been suggested that any of their evidence was coloured with the intention of securing compensation for their daughter to which she might not be entitled. This is not to say, however, that their evidence can be accepted without careful scrutiny and challenge.[23]As I have already observed, a, if not the, allegation of most substance against the late Dr Shukru was the alleged demonstration of the dermal sinus to him by Rachael’s parents on a number of occasions. It has to be said at the outset that there are such variations in the accounts given by Mr and Mrs Brown on this issue that it would be absurd to say that their evidence ‘can be accepted’ as generally accurate. Of course, the Court has to be aware that, over time, a witness’s recollection will inevitably be subject to variation in regard to matters of detail. On the other hand, if a witness provides an identical account of the same events over a number of years, that too may be a circumstance of suspicion. It is also a requirement for any fact finding tribunal that it should take full account of the advantage which it enjoys from both seeing and hearing the witnesses. Having, as I hope, made full use of that advantage and listened to the extensive but fair cross-examination of these two witnesses, I entertain no doubt that their evidence cannot be accepted as accurate in a number of respects.[24]Leading counsel for Mrs Shukru prepared a tabular summary of the many inconsistencies which permeate the evidence of Mr and Mrs Brown. It is objective and complete. It is reproduced below: Date Reference Content May 1986 C/372, attached to Mr Hamilton's second witness statement at C/365 Mr Hamilton, neurosurgeon, points out the skin track to the parents and confirms that it is the site of infection May 1986 C/372, attached to Mr Hamilton's second witness statement at C/365. Oral evidence Day 2, XX by C Mr Hamilton states that parents told him that they had "noticed this in infancy and pointed it out to a doctor". His impression was that this was when she was a baby or small infant. May 1986 Mr Brown, oral evidence, Day 2, XX by D2 "/ realised that Dr Shukru had made a mistake as soon as Mr Hamilton told us that this [ie the sinus] was the problem ... we knew that she could have avoided her illness and hospitalisation altogether ... / realised Dr Shukru should have referred her " 1986 Article entitled "Lesson of the Week" published in BMJ,Vol295,F/717 Article states that the child's parents had been aware of the sinus “for some time" and had expressed from it sebaceous material. On seeking medical advice, however, they had been reassured. The article went on to say that the patient was reasonably well in March 1986 and that in May she was admitted with a history of a cough. Mr Brown, oral evidence, Day 2, XX by D2 "/ do not accept what the article says, that she was reasonably well in March. I do not recall the cough in May. It is not true that we squeezed sebaceous material from the sinus. " 17 July 1986 Letter at C/306 Letter to Dr Shukru from Robert Walters and Co, attached to Mrs Shukru's witness statement, states "From the information given to us at present it would appear that it can result in a claim, for damages for the child due to the negligence of the relevant Authority." 19 July 1986 Letter at C/307 Letter from Dr Shukru to MDU "MrBrown came to my Surgery last week informing me that he has now consulted a solicitor and that he does not hold me responsible in any way and that he was most anxious in case I take any offence for the steps he was taking" In his evidence [day 2, XX by D2] Mr Brown agreed that Dr S was correct in saying that he (Mr B) was not holding him responsible. ) was not h Aug 1986 Dr Tomkins' attendance note of meeting with Dr Shukru, E/702 Note records that "DrShukru tells me ... that the Browns are quite friendly to him and do not seem to want to include him in any action they may take'". 18Aug l986 G1/5A Dr Shukru provides report for Robert Walters and Co 30 Aug 1986 Mr Brown's letter to Robert Walters, E/716a Comments on Dr Shukru's report of 18th August 1986. "As far as we are concerned the document is true in its statements but so much has been left out ... . The parts missed out are the very parts which led to the serious medical and surgical treatment she received in the MCNN Hospital'. (Goes on to refer to 2 points,(1) 25th January 1986;(2) other visits and conversations between 25th January 1986 and 23rd May 1986, but no mention of early years consultations about the punctum.) c. 1998 Statement for solicitors, C/290b Handwritten annotation:
"Dr Shukru said nothing to worry about. Not pointed out to Dr Shukru. Hadn 't been any problem to her."
This is the first occasion upon which any link was made by the parents between Dr Shukru and the sinus 6 Nov2001 Letter before action, A/1 Mrs Brown "spoke to Dr Shukru on two separate occasions showing him the dermal sinus and was informed that it was nothing to worry about and it would be sorted out when Rachel was 6 or 7 years old" ... "Mr and Mrs Brown attended an appointment together with Dr Shukru when they again pointed out the dermal sinus ... Dr Shukru then suggested again that the sinus be left alone until Rachael was 6 or 7 years old. At this stage Rachael was between 12 to 20 months of age ". 13 Sept 2002 Particulars of Claim, B/123, paras 5-6 "Mrs Brown took the Claimant for a check up at Dr Shukru's surgery when she was 5 months old. Mrs Brown pointed out the hole and red mark to Dr Shukru who examined them. Mrs Brown pointed out the hole and red mark to Dr Shukru on at least 2 occasions when she took the Claimant to the GP surgery. At a further visit when both Mr and Mrs Brown had taken the Claimant to the surgery, Dr Shukru asked Mr Brown if pus came out of the hole ... . At each mention of the hole and red mark by Mr or Mrs Brown, Dr Shukru reassured them that it was nothing to worry about and “would be sorted out” when she was 6 or 7 years old saying that he (Mr B) was not holding him responsible 2003 Amended Particulars of Claim, B/28-9 No amendments to passages cited from original particulars 14 Apr 2003 Mrs Brown's witness statement, paras 5-9, C/292-293 "/ pointed it out to Dr Shukru at the six week check ... He said it was nothing to worry about ... Over the next few months I showed Dr Shukru the mark on several occasions ... He always told me it was nothing to worry about ... I pointed it out to Dr Shukru again ... I was concerned and told him about the mark and showed it to him on at least 4 occasions ... Dr Shukru still reassured me that there was nothing to worry about ... I felt that Dr Shukru was fobbing me off ... I took Tom with me to see Dr Shukru and Rachael at around the age of 2 ... Dr Shukru said that he would arrange for it all to be sorted out once Rachael was 6 or 7. 1 July 2003 (and 8 April 2003: paras 4-5 of earlier statement are identical). Mr Brown's witness statement, paras 4-5, C/277-278 Angela told me that she pointed it out to the GP on several occasions and I remember her telling me she had spoken to the doctor when Rachael was 4 or 5 months old ... she told me that Dr Shukru had had a look at the sinus and said there was nothing to worry about ... We pointed the pit out to Dr Shukru ... Dr Shukru said that the sinus should be left alone until Rachael was 6 or 7 years old ... Rachael was now between 18 months and 2 years old. 9 March 2005 Day 2 of trial, XX of Mr Brown by D2 "we realised he had made a mistake. We did realise Dr Shukru should have referred her earlier ... Dr Shukru remained our GP until his retirement in 1992 ... we pointed it out to Dr Shukru on numerous occasions — at least 3, maybe 4 times ... my wife kept going back. I never mentioned this to any hospital doctors ". 10 March 2005 Day 3 of trial, XX of Mrs Brown by D2 Accepted that she took Rachael to the health centre for her 6 week check, paragraph 5 of her statement therefore incorrect [C/292]. "Ipointed it out to Dr Shukru when she was 6 weeks old ... I pointed it out to Dr Shukru on 4 occasions altogether, the last time when I went with my husband ...he only mentioned that he would sort it out when she was 6 or 7 years old on the last occasion when I went with my husband ... my final position is that I told Dr Shukru about it on 4 occasions, probably more ... the letter before action and the Particulars of Claim are wrong". 10 March 2005 Mrs Brown questioned by the Judge Dr Shukru never went into it in any detail … I did not ask him what it was … I did not ask him what “sorting it out when she was 6 or 7” meant. I never asked him to set my mind at rest or anything like that.[25]It became common ground that there would have been no medical sense for any doctor, in the circumstances of a dermal sinus, saying that it would be ‘sorted’ out at the age of 6 or 7. There is the possibility, but no more, that there was an element of confusion in Mr Brown’s mind that the reference to 6 or 7 was something that had occurred to him, when a child, in relation to his susceptibility to boils when he had been very young.[26]There are further aspects of Mr Brown’s evidence which give cause to doubt his essential accuracy. Throughout his evidence in chief the theme of that evidence was that after the first period as in-patient Rachael “never seemed better” (by which he meant “improved”) and “after her second discharge she did not seem better in any way”. He had the impression that Rachael’s headaches never stopped. He was cross-examined on the contents of the letter from Dr Hull (above) and said that he was unable to recall having said that Rachael was back to “normal”. He agreed that he and his wife had told Dr Hull how Rachael was but was unable to recall that either of them had told the doctor that Rachael was eating and sleeping well; “maybe we use terms that were not correct”.[27]In his trial statement, Mr Brown had said (paragraph 48) “When Rachael came out of hospital we did consult a solicitor because we thought that if a lumbar puncture had been done sooner and Rachael had been admitted to hospital then the outcome would be different …”[28]In the course of his cross examination, Mr Brown said that Mr Hamilton, the operating neuro-surgeon, had told him that had he seen Rachael earlier they could have expected a different outcome. It was also explained to him that the cause of Rachael’s problems had been the sinus through which the infection had been able to enter Rachael’s body. That was precisely what he said that he and his wife had pointed out to Dr Shukru. He said that that is what his wife had told Mr Hamilton. He went on to say that he realised, early on, that the cause of the problems was the sinus and that Dr Shukru had made a mistake. Yet he went on to say that, in July 1986, he had told Dr Shukru that he did not hold him responsible. This last statement may be thought to be irreconcilable with one of the principal propositions of fact advanced in these proceedings. It is only consistent with the proposition that neither Mr or Mrs Brown ever pointed out the sinus to Dr Shukru. This point has added weight, in that the more Mr and Mrs Brown say that they pointed out the sinus to Dr Shukru, because of their concerns, the less credible is it that the ‘mistake’ was not obviously culpable. Mr Brown’s explanation was that at the time he regarded Dr Shukru as the only medical friend that he had and that he (Dr Shukru) was their only ally against the hospital. Even this is of dubious weight when it is recalled that Rachael had by now been transferred to MCNN where her treatment had been life saving.[29]In the course of Rachael’s treatment at the MCNN, it was noted that “The child’s parents had been aware of the sinus for some time and had expressed from it sebaceous material. On seeking medical advice they had been reassured. (See BMJ 25 July 1987; F 717)” Of this record, Mr Brown said that it was quite untrue that either he or his wife had “squeezed” the sinus. But he did recall that Dr Shukru had asked him if pus ever came out of it. If this item had stood on its own, it would have been unwise to have given it much, if any, weight. It is, however of a pattern which does not help to establish Mr Brown as a witness upon whom the Court could confidently rely. As against this, it must be acknowledged that the record is an early documentation of the central allegation of fact which is made against the late Dr Shukru in these proceedings.[30]Mrs Brown, was a working mother during Rachael’s infancy. She said that she used to take Rachael to the local health clinic but never saw a doctor on those visits. By inference, therefore, if she pointed out the sinus to any doctor, it must have been Dr Shukru. She was specific in saying that she had pointed out the sinus, which looked like a dimple, to Dr Shukru. Mrs Brown said that it had never been the case that any school assistant had said that Rachael was either shy or withdrawn (c.p. letter Dr Davies 14 May 1986).[31]For all the reasons identified in this section of the judgement, I am unable to accept the fundamental accuracy of these key areas of the Claimant’s parents’ evidence. As I have already indicated, this is not to be construed as a finding that they have set out to mislead the court. They, in the same way as other witnesses, are the victims of the delay, so that with the best intention of giving truthful evidence they have, in fact, given evidence which they believe to be true, but which the court is quite unable to accept.[32]Dr Shukru. The problem of delay becomes particularly acute in regard to the evidence of Dr Shukru. By all accounts he was both a careful and responsible general practitioner who was respected by all at the New Cross Hospital. According to his widow, who gave evidence, Dr Shukru did not hesitate to refer a patient if he was in doubt as to the diagnosis or preferred treatment if it was outside his ability to provide it. The Browns and the Shukrus, as it so happened, were close neighbours and in this way Dr Shukru was able to visit as and when required and also kept a kindly eye on the Brown family. As already noted, Dr Shukru remained the Browns’ family doctor despite having allegedly made the ‘mistake’ (see above) in regard to the dermal sinus. Mrs Shukru was aware of the problems to which Rachael was subject and she also was aware that her husband was very concerned about her. Mrs Shukru also knew that Rachael had been in hospital on both occasions. Dr Shukru’s notes have already been referred to, but he also made two nearly contemporary records of the relevant events. First there was the report which Dr Shukru compiled at the request of the Claimant’s original solicitors. Contemporaneously with that correspondence, Dr Shukru notified the MDU of what was happening and kept them fully informed of developments. In a letter to the insurers dated 19 July 1986, Dr Shukru wrote:
“However Mr Brown came to my surgery last week informing me that he has now consulted a solicitor and that he does not hold me responsible in anyway and that he was most anxious in case I take any offence for the steps he is taking. As I have no experience in such matters I will appreciate your guidance and advice in this matter.”
[33]Apart from matters which have already been identified, that report includes an entry for 23.5.86:
“Seen in surgery: Since the last time I have seen her on two occasions playing with her little friends in front of her house and apparently has been attending to school. Yesterday being her birthday she has had a small … party at home. Accompanied by her father who told me that for the last six weeks she had not been sleeping very well and even when awake was in a dream world, lost a lot of weight. … I formed the view she may be suffering from a respiratory infection and that she showed signs of meningism.”
[34]On 1 August, Dr Shukru telephoned a Dr Tomkins at the MDU and gave her an account of his conduct of the case. The substance of what he told her, according to the record which she made was that:
“… the consultant Paediatrician concerned, Dr Clymo, apparently adopted an abrupt manner with Dr Shukru over this case. Dr Shukru tells me he spoke to Dr Clymo about the patient when she was sent back from hospital with a diagnosis of endogenous depression as Dr Shukru did not feel that this was a reasonable diagnosis in view of the patient’s age. Dr Clymo, however apparently expressed the view that this diagnosis was correct and Dr Shukru tells me he was somewhat abrupt. Dr Shukru tells me he thinks the whole case has arisen because Dr Clymo may have been abrupt and rather rude to the parents.”
This passage has been set out in full for a number of reasons. First, it is a statement made by a professional at a time when expressly there was no reason for him to think that he would be implicated in the threatened action. Secondly, the question, depression or not, featured largely during the course of the evidence. There is no reason why Dr Shukru should have invented a conversation with Dr Clymo when the views of the latter were not in accordance with what he (Dr Shukru) thought was a reasonable diagnosis. In that he was joined by most of the professional witnesses in the case, Dr Clymo included, who stoutly rejected this account and that he had ever entertained such a diagnosis.[35]There are two important aspects of the case which depend on the view which I form as to the reliability of the truncated evidence which is available to Dr Shukru’s estate. The first, as noted above, relates to the fact and substance of the telephone call of 20 March 1986. Secondly as to the sufficiency of his examination of Rachael on 4 April and the notes he made of that examination. It will not have escaped attention that when, on 23 May Rachael undoubtedly had neck stiffness (a cardinal sign of meningism), he made a finding to that effect. The proposition that Dr Shukru had mistakenly found ‘pain in the neck’ (note for 4 April) rather than ‘neck stiffness’ and meningism, becomes less than convincing. Similarly, despite Dr Clymo’s evidence to the contrary, see later, the proposition that the note for 20 March ‘Consultation c Dr Clymo by phone’ could have been no more than an aide memoire for Dr Shukru, is quite unconvincing. The notion that a careful general practitioner would make such a note as an aide memoire, rather than as a record of something that had occurred, and then failed to act on the note has all the hallmarks of desperation.[36]In any event, given the direction which I have given myself in regard to the difficulties of proof after such a lapse of time, as has occurred here, does not require me to strain to make elaborate findings which, in my judgment, are devoid of common sense.[37]Dr Clymo. This witness has now retired. He was, for a number of years the well respected senior consultant paediatrician at New Cross Hospital. He suffered from the immediate disadvantage of having no current recollection of the relevant events and had to rely on the copious hospital notes, both medical and nursing, to provide him with some recollection to form the basis of his evidence. Not only was his professional judgment subjected to extensive criticism, but also there was a direct challenge to his professional standing in three main areas. The first was the central allegation of fault on his part that he had failed to perform either a CT scan or lumbar puncture during the second period of in-patient care. Secondly, there was the disputed telephone consultation with Dr Shukru. Thirdly, there was the question of the absence of a formal diagnosis on the one hand and the suggestion, on the other, that he had made a diagnosis of depression, when such was neither recorded nor could it have been a reasonable diagnosis for any paediatrician to have made. Yet, there was evidence not only from the late Dr Shukru’s statement to Dr Tomkins (above) but also from Mr Brown together with the extensive discussions of mood that are to be found in the medical and nursing notes. Finally, on this, there was the evidence that Dr Clymo had asked Dr Ross, another consultant paediatrician while on week-end duty, to explore that very possibility with Rachael’s parents.[38]If at times he appeared defensive in response to questioning, that is understandable, given the absence of help for him to be had from contemporary notes.[39]As against these points, there has to be brought into account the fact that nowhere in any of the medical or nursing notes was there mentioned a diagnosis, or differential diagnosis, of depression. Dr Clymo’s evidence on this was that he considered the primary diagnosis to have been one of organic illness and never considered depression as the primary diagnosis but merely as a possible contributory one. In response to a question from me, he said that, such depressive symptoms as may have been present, they were in his opinion secondary to her organic condition and not its cause.[40]One of the difficulties which Dr Clymo had to confront was the hypothesis that there had been the telephone consultation with Dr Shukru on 20 March 1986. Dr Clymo’s evidence on this was to the following effect. If he had been told, in March 1986, that Rachael was neither better nor worse than at the time of her last discharge as an in-patient, he would have wanted to have seen her again. At one point in his evidence Dr Clymo said that if there had been a phone call from the general practitioner he would have readmitted Rachael ‘right away’. Shown the general practitioner notes for 18 and 19 March, he said that this information would have mandated a return to hospital. It was at odds with that obtained by Dr Hull on the out-patient review in February. This line of approach was in keeping with Dr Clymo’s evidence that the decision to discharge Rachael from in-patient care was to enable her to be followed up in the community. The difficulty, in accepting this at its face value, is to be found in the silence of the discharge letter and the terms of the review letter from Dr Hull (above). These difficulties with Dr Clymo’s evidence do not predicate a finding that he has intentionally set out to mislead the Court. They serve to underline what I have already said about the evils of the delay in this case. How these are to be resolved must await further discussion.

The issues

[41]As against Dr Shukru, the issues are largely fact based. This is to say that whether or not the Browns ever showed him the dermal sinus must lead to a straightforward finding of fact. On this, I have not been satisfied that he was ever shown the sinus. This finding is sufficient to dispose of the allegations made against him in paragraph 21 (i) to (vi) in the Amended Particulars of Claim. It is then alleged against him (vii) that he failed to send the Claimant for a second paediatric opinion on or about 19 March 1986, when requested by her parents. Finally, it is alleged that he was at fault for not having referred the Claimant back to New Cross Hospital on, or soon after 4 April, of the same year.[42]This latter allegation is again fact based, depending on the completeness and accuracy of his note of that day. It was accepted by the experts that if there was no neck stiffness, in contrast to neck pain (see above) his decision to treat Rachael for tonsillitis, and not to refer, was not an unreasonable one, albeit that some would have done so, this allegation will also fail. The joint opinion of the (general practitioner) experts was as follows:
“4. Was the Claimant displaying different symptoms when she presented to Dr Shukru on 4 April 1986? If so: (a) what were these symptoms? A list of symptoms were (sic): Headaches on alternate days; Pain in the neck; Vomited x1 two days ago; Poor appetite; Distortion of hearing; Irritability at times (b) Do you think these symptoms warranted further action and if so what action and if not why not? We agree that a full examination should have occurred. This examination should have particularly looked for neck stiffness, handling the child to check for muscle tone and level of alertness. (c) Insofar as not already answered in question b., should Dr Shukru have referred the Claimant back to hospital following his examination of her on 4 April 1986? We agree that this is wholly dependent on what he found at examination … . If Rachael had neck stiffness, signs of meningism, proven irritability, or drowsiness, then admission was mandatory. If none of these were present and having apparently discovered a cause for her fever, (i.e. tonsillitis) then admission was not mandatory. 5. Does the diagnosis of tonsillitis adequately explain the symptoms of neck pain, irritability and hyperacusis? 6. Insofar as not answered in question 4 above was the diagnosis of tonsillitis on 4 April … acceptable in the light of the noted findings at examination? Please explain your answers.”

Answer to 5 and 6:

“We agree Dr Shukru found injected tonsils and a temperature of 40 0C. Tonsillitis can give neck pain, irritability and a high temperature. Hyperacusis is not a feature of tonsillitis but does not have to indicate a sinister cause.”
A list of symptoms were (sic): Irritability at times Answer to 5 and 6:[43]There needs also to be considered the initial report by Dr Isaacs, the general practitioner called on behalf of the Claimant, who wrote in Section 9 of his report:
“There will be a range of opinion regarding the consultation of 4 April 1986. It may be argued that it was reasonable for Dr Shukru to treat with antibiotics as Rachel had already been admitted to hospital in January 1986. (Accepting the correctness of the general practitioner note for 20 March). He had discussed Rachael with a consultant on 20 March and this was a further illness. As she had already had two admissions to hospital when nothing had been found, it may be argued that it was reasonable to use antibiotics on this occasion and to adopt a wait and see approach.”
[44]Dr Williams, who was the general practitioner expert called on behalf of the late Dr Shukru, was of the opinion that he could “demonstrate a cause for the child’s fever, namely a tonsillitis, which could have explained the clinical picture that day”. In my judgment, on the assumption that Dr Shukru had not missed any clinical signs when he examined on 4 April, it is not possible to find that his standard of care fell below what was reasonable on this occasion. More importantly, there is not even persuasive evidence that Dr Shukru did in fact miss any relevant sign on that date. There was speculation but no more. The evidence clearly demonstrated that while some might have referred Rachael back to hospital, others could equally well and properly, in the sense of proper medical practice, have done as he did.[45]It will be noted that there is no allegation in the Particulars of Claim that Dr Shukru failed to inform either Dr Clymo or the First Defendants of his findings on 18 and 19 March via the disputed telephone call.[46]The evidence in respect of the request for a second opinion is both factually less clear cut but also embraces questions of expert evidence and causation, that is to say whether it would have made any difference to the outcome for Rachael if there had been such a request. In Mr Brown’s statement (paragraph 15) he had said:
“On the first visit we asked Dr Shukru if we could take Rachael to another doctor for a second opinion … I was told that the system only allowed Dr Clymo to refer Rachael for a second opinion and he (Dr Clymo) would not do that.”
[47]In the Claimant’s opening note, it was not clear how the case was to be put on this aspect. In the closing submissions it was merely said that:
“Dr Shukru told them of the problems of getting a second opinion. They went to see him twice on 18 … and 19.3.86 and again on 4. 4.86.”
[48]It became common ground in the course of the case that it was not for a general practitioner to request a second opinion. That was something which was in the gift of the consultant whose opinion might be called into question. The evidence was that although Dr Clymo said that he would have been prepared to refer, probably the better course would have been to have requested a review. Obtaining a second opinion would have involved transfer to a different hospital and a repeat of all the tests and observations which had already taken place.[49]In the above circumstances, I have not been persuaded that there was any fault on the part of Dr Shukru on this issue or that, even if there had been, Dr Clymo would have agreed to do other than arrange for a review of Rachael’s case.[50]As against the hospital The First Defendants and Dr Clymo, the case is considerably more complex. The pleaded case is to be found in paragraph 21 (ix) to (xiii) of the amended Particulars of Claim. At the forefront of the case is(1) the failure of the hospital to have performed either a CT scan or a lumbar puncture during the course of Rachael’s second admission. It is alleged(2) that “a diagnosis of depression was made without reasonable or sufficient cause” and that Dr Clymo advised Dr Shukru on 20 March that despite the presence of continuing symptoms, Rachael “had depression”. Finally,(3) the failure of the hospital to review Rachael after the (disputed) telephone call also constituted negligence. (1) Although this is a focussed allegation, its resolution presents great problems. In reviewing the evidence and opinions of the experts, it must be borne in mind that it is now known that the underlying condition which directly led to Rachael’s serious illness was not only rare but also that it manifested itself atypically. The rarity was exemplified by the presence of the cervical dermal sinus which communicated with the CNS. It was atypical in that the infecting organisms were low grade, responded to a common antibiotic and did not, until a late stage, produce an illness with specific signs or one which was acute. The consequence of this might be that the infection may have been eliminated or suppressed in the course of the treatment by the general practitioner, only to recur or recommence after the effects of the antibiotic had worn off. In this context, a feature which is worthy of consideration is that although Dr Shukru had prescribed amoxicillin on 3 January 1986, once Rachael had been re-admitted to hospital on 6 January, antibiotic medication was withheld from her for the remainder of her 19 day stay, yet she improved so as to be fit for discharge on 25 January. Had there been at that stage a continuing infection, it could have been expected to have manifested its continuing existence during the period of her in-patient stay.[51]In regard to the carrying out of CAT scans or lumbar punctures, there are two competing schools of thought. The proponent of the first, and it may fairly be termed the exclusionary school, was the expert paediatrician, called on behalf of the Claimant, Dr Gould. The other school was one which would only proceed to investigation if there were signs which were suggestive of intra-cranial pathology. Dr Gould agreed that in forming his opinions about the (alleged) shortcomings of the paediatricians at the New Cross Hospital, the basic principle had to be whether or not there were sufficient signs or symptoms to merit carrying out a CAT scan or lumbar puncture. Dr Gould thought that such signs or symptoms had been present, sufficient to justify invasive investigation. It has to be noted that underlying this approach was his opinion that evidence of meningeal infection, which had been present during the December and the early part of the January admission, had disappeared and that Rachael had recovered at a later stage of the second admission.[52]The evidence satisfied me that this part of Dr Gould’s evidence had been largely informed by hindsight as also was his opinion that CAT scan and or alternatively lumbar puncture should have been performed sometime around 12 January and, therefore, before Rachael had recovered. This was not a suggestion which had been canvassed in Dr Gould’s report, let alone in the pleadings. It was a suggestion which only emerged in the course of his oral testimony. In response to questions from the court, Dr Gould said:
“Q. How far in forming your opinions about the shortcomings of (the First Defendants) have you been able to disabuse your mind of (the) facts (that the administration of antibiotics, Rachael’s natural immunity and the extraordinary and untypical slow growing organism had infected her)…? A. That is indeed a difficult question to answer … Q. I have deliberately asked it? A. … It is my belief, looking at it admittedly after nineteen years… that there were indeed sufficient grounds to (perform a CAT scan and lumbar puncture). I am well aware that there are contrary views. Q. Worthy of respect? A. And they are indeed worthy of respect. Q. It may not be quite the question which I have to answer at the end of this case, but I think that the last part of your answer, if I may suggest, is whether failure to engage on further investigations was a decision which equally commanded respect, although you think it wrong? A. I think it was wrong but I agree that it commanded respect … At the very least it was a missed opportunity and a sad … Q. That sounds horribly like hindsight? A. That bit of it is hindsight. Q. It was wrong but capable of respect. You added? A. … at the very least, with hindsight, it was a missed opportunity but I still feel, after hearing all the evidence … so far that there were strong grounds for carrying out the investigations we have discussed.”
A. That is indeed a difficult question to answer … Q. I have deliberately asked it? Q. Worthy of respect? Q. That sounds horribly like hindsight?

Q. It was wrong but capable of respect. You added?

[53]This passage, coming at the conclusion of Dr Gould’s evidence has left me with the indelible impression of Dr Gould, that in this context, he had lost his sense of objectivity. As Professor Johnson said, even in the presence of equivocal signs or symptoms of intra-cranial pathology (neck stiffness, noise, head aches and the like) although good practice would require a CAT scan and invasive tests (i.e. lumbar puncture) it would not have been outwith good clinical practice not to have done so. The professor’s evidence on this was not wholly free of doubt. I asked some questions after he had been cross-examined by counsel for the Claimant. This gave rise to further uncertainty about where he stood. In answer to additional questions on behalf of the Claimant, his final position was that the equivocal signs that he would have required to see in order to make lumber puncture mandatory were the presence of “fever, albeit intermittent, but persisting, and neck stiffness, rigidity, irritability disturbed sleep pattern, not eating”. In other words, he was saying that he would have required signs of meningism to have been present in order to make it unacceptable, on any reasonable view, not to have carried out a lumbar puncture.[54]Dr Gould’s evidence on this issue has to be considered in the context of his evidence as a whole. As his evidence quoted above, indicated, Dr Gould was quite prepared to accept that there were two schools of thought about how to proceed in a case such as the present. Thus he accepted that, in a child with chronic low grade meningitis, the expectation would be for the illness itself to progress. If it was suppressed by oral antibiotics, he would have expected its re-emergence after the admission of drugs had ceased. Given the rarity of the disease from which Rachael suffered, the duration of her in-patient stay and the absence of specific signs followed by apparent recovery, after the antibiotics had ceased, he considered that it would be reasonable for a paediatrician to have thought that the disease had “gone”; “but” he commented “this child had not recovered”. He also added that once Rachael had started to improve, the opportunity for purposeful investigation had been lost. This observation may help to explain why Dr Gould included in his oral testimony the proposition, noted above, that by 12 January, the opportunity to carry out a purposeful investigation had passed.[55]The agreed statement by the paediatric experts included the question and answer:
“13. What features/symptoms would [have] indicated raised intra-cranial pressure? Did Rachael exhibit any of these? Agreed that the early symptoms and signs of raised intra-cranial pressure in children are relatively subtle and non-specific, and include headache, mood change, nausea and vomiting. More specific features include papilloedema, squint, abnormal posturing and gait disturbance. Agreed that Rachael did not have specific features of raised intra-cranial pressure during her admission in January, and that her reported symptoms during March and April were not specific signs of raised intra-cranial pressure. The emergence of further mood change, headache, backache, vomiting and increased sensitivity to noise by 4 April would have required consideration of raised intra-cranial pressure, and examination for specific signs notably papilloedema.”
[56]It is plain that the concluding sentence of the quoted paragraph should have been expressed in the conditional tense, since the signs or symptoms which were present at the relevant date are to be determined by the findings of fact made with regard to Dr Shukru; see above.[57]Dr Gould did not agree that a lumbar puncture was a test of last resort. In any event, he considered that a number of difficult signs had been missed in Rachael’s case. The guiding axiom was that “if you think of lumbar puncture, you should do it”. In addition, Dr Gould considered that in a child who was suffering from organic illness, there is the possibility that emotional changes may exist as a component of the disease. He agreed that tonsillitis could give rise to neck pain. In this, he was in general agreement with the neuro-surgeons who had stated in their answers to question 4 in their joint report that:
“4, Do you consider that the symptoms displayed by the Claimant on 4th April 1986 when seen by Dr Shukru: a. Were caused by raised intra-cranial pressure due to ventriculomegaly? The symptoms on 4th April … are consistent with meningeal irritation which could have been due either to meningitis per se or to meningitis plus raised intra-cranial pressure due to hydrocephalus. In view of the subsequent course it is probable that the Claimant did not have raised intra-cranial pressure due to hydrocephalus … for the following reasons: i. If the Claimant had been suffering from raised intra-cranial pressure due to hydrocephalus for seven weeks at the time of the CT scan on 23rd May … the ventricles would have been substantially more dilated. ii. The Claimant would probably have had papilloedema on 23 May … . b. Were consistent with the diagnosis made by Dr Shukru of tonsillitis? The experts are aware from their general paediatric education, and from their own clinical experience of caring for children that tonsillitis can give rise to a clinical picture that can mimic bacterial meningitis. [There was some disagreement by the parties at trial that this last statement could properly be inverted so as to read “bacterial meningitis can give rise to a clinical picture which can mimic tonsillitis].”
The accepted position was that certain signs and/or symptoms of tonsillitis and meningitis overlap. Some are unique to both. However, outlying features may indicate whether the condition is tonsillitis or meningitis. According to the evidence of Mr McFarlane, in bacterial meningitis injected tonsils are not expected as a sign. If there is pus on the tonsils then the condition can properly be diagnosed as tonsillitis. From his standpoint, as a neuro-surgeon, mere infection of the tonsils is not very significant. As a sign, it is non-specific. He also agreed that it would have been unfair for him, as a neuro-surgeon to have commented on the standard of care of a general practitioner.[58]Dr Gould also agreed that the real deterioration in Rachael’s condition only occurred three to four days before 23 May. Furthermore, he agreed that, in the light of the fact that no lumbar puncture had been performed during the January admission, it was speculative whether one would have been performed if Rachael had been referred to hospital on 4 April. On this topic, Dr Tarlow, the general practitioner expert called on behalf of the estate of Dr Shukru, said that acute tonsillitis might have accounted for Rachael’s symptomatology on 4 April, for which a course of oral antibiotics would have been acceptable treatment. In his report, he confirmed that he did not think that referral to hospital was necessary on 4 April. Even had Rachael been referred, he did not think that investigations would have been resumed until Rachael’s response to the course of antibiotics had been observed. Given that there had been an apparent recovery following Dr Shukru’s prescription, he considered that it was unlikely that the hospital would have done other than to observe and discharge Rachael, in the belief that she had recovered. Based on his stated assumptions, Dr Tarlow would have concluded that Rachael had made a recovery from acute tonsillitis.[59]In the opinion of Professor Johnston, the absence of any record of headaches during the second admission would have been reassuring that there was no intra-cranial problem. Similarly, the records of intermittent and mainly low grade fever during this period did not, on their own, indicate intra-cranial pathology. He recognised there were features of the illness which might have predicated a CAT scan, namely the unexplained fever and the possibility of a brain abscess. However, he considered that if such were to be carried out, a general anaesthetic would have been needed together with some form of irradiation of Rachael’s body. These were steps which should not be undertaken unless careful judgment made such intervention valid and indicated. He would probably not have performed a lumbar puncture since, during the three week period of in-patient care, it would have been expected that, in all normal experience, had meningitis been present Rachael would have exhibited the classic signs of that condition, of which he could not detect any. “This was an unusual presentation of a rare condition”. Had the claimant been admitted to hospital on 4 April, Professor Johnston still did not consider that lumbar puncture was indicated, since it would have been appropriate to have taken a full blood count and ESR which he thought would have been normal or only non-specifically elevated. He remained of the opinion, set out in the joint report that tonsillitis might have accounted for Rachael’s presentation on 4 April, albeit the notes made by the general practitioner were insufficient to gain a true impression of her actual clinical state. He would have taken above average precautions to have satisfied himself that the Claimant’s condition was in fact tonsillitis. Had she been referred at that stage he would have considered meningitis. This answer has to be considered in the light of his further qualification that it was given on the basis that he had not taken into consideration the question whether or not the telephone call (above) had been made by Dr Shukru Given the history, the general practitioner should have been cautious before accepting the diagnosis of tonsillitis. It was his view, as expressed in the joint report (question 14), that the presence of headache, neck pain and vomiting would have prompted the question whether raised intra-cranial pressure or meningitis did not exist. He accepted that tonsillitis could contribute to neck stiffness.

Summary and Conclusion

[60]The high water mark of the Claimant’s case was to be found in the various opinions expressed by Dr Gould both in his report and his testimony. I have already indicated my preliminary finding that those opinions were significantly influenced by his knowledge of what in fact had been the true clinical state of the Claimant. This leads to my conclusion that the Claimant has not proved that there were any culpable failures by Dr Clymo and his team during the first and second periods of in-patient care. It should not be thought that the absence of any reference to the opinions of the micro-biologists is an inadvertent omission from the above discussions. The important point is that there was no allegation of fault on the part of Dr Clymo or his team in failing to obtain the opinion of a micro-biologist. The experts in this field conceded that questions of management of the patient were for the paediatricians to decide and not for them. It is in these circumstances that I have not found it necessary to consider their findings and opinions. Even had it been necessary to have done so, it is doubtful if the result would have been different. The technical basis of the opinion expressed in the report which was in favour of a lumbar puncture being performed by 18 January was not established by the evidence, in that:a. there had been no persistent fever at that time;b. there were no mental symptoms, only changes in mood;c. there had been no complaints of headache during the period of her second admission, up to this date;d. the leukocyte count may have been faintly elevated, but it was associated with a normal ESR result.[61]I find as a fact that Dr Shukru did telephone Dr Clymo, on or about 20 March, the substance of the discussion was what was summarised in the notes made by the former on 18 and 19 March. There can have been no other sensible reason for making the call than to communicate what he had seen for himself or had been told by the parents. Dr Clymo was in error in his confident repudiation. It was Dr Ross who opined that Dr Clymo was a meticulous note maker, as indeed Dr Clymo also confirmed. I do not doubt that this was generally the position. On this occasion, however, as Dr Clymo was to admit, it was a (remote) possibility, his system had broken down. In the ordinary course of events, the making of this telephone call would have led, as Dr Clymo admitted or asserted, to Rachael’s readmission within 48 hours. If it is necessary to find an explanation for this lapse, the only candidate worthy of serious consideration is that Dr Clymo, despite his denials, had still harboured the thought that Rachael was in some way suffering from depression, even if that was not his primary diagnosis. Such would help to explain how the erroneous impression, as I am satisfied it was, came to be in the minds both of the Browns and of Dr Shukru, as the contemporary documents also suggest. Here it should be noted that there were no fewer than 30 entries in the records of the second admission concerned with Rachael’s depressed mood or abnormal behaviour. This would additionally explain why it was that Dr Clymo did not re-admit Rachael, as he said that he would have done. Depression alone would not have justified such a step clinically. While the absence of a recorded diagnosis confirms Dr Clymo’s evidence on this point, that he never diagnosed depression in a formal sense, it lends credence to the notion that he gave it serious consideration. It is clear that Dr Shukru did not accept the ‘diagnosis’ of depression any more than had Mr Brown. In the course of his discussion on the topic at the request of Dr Clymo, Dr Ross specifically raised this issue with Mr Brown on 12 January during his week-end cover in the absence of Dr Clymo. Nevertheless, the inference has to be that whatever may have been said in detail on this occasion, some form of reassurance was given to Dr Shukru upon which it has not been suggested he was not entitled to rely.

Causation

[62]What if either Rachael had been readmitted after 20 March or on or after 4 April? These questions, relating to causation, arise for determination in the event that Dr Clymo was at fault as discussed in paragraph 37 above or Dr Shukru as discussed in paragraph 41 above. It is to be noted that in the letter of claim sent to the First Defendants’ solicitors, there was no allegation of fault made in respect of the failure of the hospital to have made a positive response to Dr Shukru’s telephone call of 20 March, let alone what that response should have been. In paragraph 21(xiii) of the amended particulars of claim, it was alleged against the first defendants that Dr Clymo had “failed promptly to review the Claimant … when advised by Dr Shukru …” on or after 20March.[63]As to the first of these; if CAT scan and lumbar puncture had been performed upon her at this stage, it has not been proved that anything of value would have been ascertained. Dr Clymo had said, with a degree of reason, that it was not clear what part of Rachael should have been subjected to a scan. There were no localising signs. For Dr Clymo to have gone to lumbar puncture, he said that he would have required the presence of consistent headache with possibly neck stiffness and photophobia. He would also have requested persistently raised temperature and a raised white cell count. This evidence, which is specific in character, is to be contrasted with, and preferred to, the generalised comment that he “would have got to the bottom of it”, had Rachael been re-admitted for a third time in about March. It is to be remembered that, untreated during the period from 20 March to 4 April, Rachael’s condition had gradually deteriorated to the point when she was examined on the latter date. But the deterioration was sufficiently gradual that, according to Dr Gould, it only became marked during the three or four days before 23 May. The neuro-surgeons did not believe that Rachael was suffering from intracranial pathology in the period after 4 April such as ventriculitis, hydrocephalus or raised intra-cranial pressure. There is, therefore, no reason to suppose that she suffered from any of these conditions at the earlier date. Absent these conditions, or of any signs of them, there were no grounds to have proceeded to CAT scan or lumbar puncture. I have not been persuaded that if Rachael had been re-admitted in March that either a CAT scan or lumbar puncture would have been performed.[64]The evidence of what might have been found, had a hospital appointment been made subsequent to 22 March, is scanty. Dr Gould had said in his report to the Court that:
“the advice given by Dr Clymo in apparently reassuring the general practitioner … by telephone on 20.3.86 … may also have contributed to causation by further delay in Rachael’s assessment”
. This was, of course, speculative, since it was not know what was said. Nevertheless, the course which events subsequently took (including the consultation on 4 April) strongly suggest that this was a correct inference to have drawn. If there had been a referral to hospital on or about 20 March, there was no evidence to suggest what investigations should have been carried out and what the results of those investigations would have been. If Dr Clymo’s evidence (see paragraph 63 above) is taken at face value, the continuing symptoms which Rachael displayed at this time would not have justified either scan or lumbar puncture. If there has been intra-cranial pathology, he would not have expected to have seen improvement in Rachael’s condition during the period of her second admission. There is no reason not to accept this testimony. According to Professor Johnston, if such a call had been made and Rachael re-admitted, the probable sequence of events would have been a review of the notes and obtaining a careful history from the parents – who in this instance would have said that there had not been much change in Rachael’s condition. A repeat of the base line tests such as full blood count, ESR and urine microbiology and culture would probably have yielded little, if any specific or additional information. There is a complete absence of evidence to suggest that at this time a lumbar puncture would or should have been contemplated. The microbiologists were not asked to comment on what would or might have been discovered had lumbar puncture been performed in either March or April. Mr McFarlane, the neuro-surgeon called by the Claimant, was of the opinion that “there is insufficient clinical detail to know whether the symptoms (recorded by Dr Shukru) were or were not those of meningitis but, in relation to the subsequent clinical course, on balance of probability, they were”. This statement was clearly informed as the result of the manner in which the disease subsequently manifested itself.

Result

[65]In the result all the principal allegations of negligence made against the Defendants fail. Even if Dr Clymo had responded to the telephone call made by Dr Shukru, as I have found that he should, the evidence has not persuaded me that the outcome would have been different from what it was.

Footnote

[66]It is impossible to be sure that had the action been brought within a reasonable time, the result would have been the same. It has always to be remembered that the result of medical treatment or care can never be predicted with certainty. The medical profession does not undertake to produce a favourable outcome to all cases presented to it. The limit of the duty owed is to exercise reasonable care within the parameter of what is reasonable medical practice. This allows that there may be more than one school of thought about the proper treatment in any given case. Such has undoubtedly been the case here. Moreover, on the facts of this particular case it is well to remind ourselves that Rachael suffered from a rare congenital defect which manifested itself in an atypical manner. In some clinical situations, no doubt, there may have been the chance than an invasive approach exemplified by the exclusionary school of investigation, may have produced a more favourable outcome. Directing myself in accordance with Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 in not conforming to this school of medical practice, Dr Clymo (save as to 20 March 1986) “acted in accordance with a practice accepted at the time as proper by a responsible body of medical opinion” and was not guilty of causative negligence.