Maguire v North West Strategic Health Authority [2012] EWHC 3272 (QB)

Case No HQ11X00994[2012] EWHC 3272 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/11/2012
Before
HIS HONOUR JUDGE COTTER Q.C.
Between
Dr SEAN MAGUIREClaimantNORTH WEST STRATEGIC HEALTH AUTHORITYDefendant
Michael De Navarro Q.C. (instructed by Medical Defence Union Legal Dept) for ClaimantStephen Miller Q.C. (instructed byHempsons) for DefendantHearing Hearing dates: 12 th, 13 th, 14 th and 15 th November 2012
JUDGMENTHis Honour Judge Cotter Q.C. :
[1]This is a claim for an indemnity or contribution brought by the Claimant Dr Maguire, a General Practitioner, against the Defendant, which is responsible for the provision of clinical services at the Royal Manchester Children’s Hospital (“RMCH”), in respect of a claim by Aaron Blain, (“Aaron”) a former patient of Dr McGuire and of RMCH. Specifically it is a claim for an indemnity in respect of or contribution to an award of damages of £3,737,500, an order for costs made in the action against him and also his own costs. The total value of the indemnity sought is £4,563,500.[2]Aaron had brought proceedings in 2004 against Dr Maguire, who had been a doctor attached to the general medical practice which looked after him. Dr Maguire had made a domiciliary visit on 29th August 1993 to see Aaron, then aged two and a half and the claim in negligence was founded upon the allegation that he had failed to identify the fact there was a recurrence of a leak of cerebro-spinal fluid (“CSF”) from his nose, following an earlier accident and had failed to refer him back to the neurosurgical department of the RMCH. Had he done so then the hospital doctors would have carried out a neurosurgical procedure which would have sealed the presumed fracture which had created a fistula causing the leak and would thereby have prevented the infection which developed in October 1993 and led to Aaron contracting meningitis and suffering brain damage.[3]Taken shortly it is Dr McGuire’s case that notwithstanding the settlement of Aaron’s action he was not negligent, but that the Defendant through a consultant neurosurgeon at the RMCH, Mr Cowie and/or his neurosurgical team, had been. This is denied by the Defendant which lays the blame for Aaron’s brain damage upon Dr McGuire’s shoulders.

Background Facts

[4]Aaron was born on 9th February 1991. On 21st June 1993, at a family visit to a farm, he was tipped forward in his buggy onto his head. He suffered bruising to his face and forehead. He was taken first of all to the A&E department of Stockport Infirmary, where x-rays revealed no fracture but he had blood stained fluid coming from the right nostril. He was then transferred to Hope Hospital, Manchester but thereafter admitted overnight to the neuro-surgical unit of the RMCH for observation.[5]The following day, 22nd June 1993, it was initially thought that he could be discharged but at about midday it was noted that he had a “slight leak from his nose” which tested positive for glucose, suggesting that the fluid was CSF. It was decided to keep him in again overnight and to start him on antibiotics, but the expectation was that the leak would seal itself.[6]The following day, 23rd June 1993, it was established that the leak had stopped and Aaron was discharged. The notes record that Aaron’s parents, Mr and Mrs Blain were told before discharge at about 11.30 am, that they “should return to the hospital if there were any problems.” They were also told that Aaron would be seen in a neurosurgery out-patient clinic in due course. An appointment was subsequently made for 5th October 1993 at the clinic of Mr Cowie, a consultant neuro-surgeon at the RMCH.[7]The family general practice records show that a note was made on 1st July 1993 that Aaron had been: “Admitted to RMCH 21/6/93 with head injury + csf leak. Discharge 23/6/93 fluclox[acillin] 125 4times a day. The practice also received a discharge summary from Mr Cowie in which he summarised what had happened and indicated that he would make arrangements to review Aaron in his out-patient clinic.[8]Aaron’s parents had no indication of any problems related to the accident and the leak until the end of August 1993. However, on Sunday 29th August, they contacted their GP practice and asked for a doctor to come out and see Aaron because his nose was running and they were concerned, “very worried”, about the discharge and that it might be related to his head injury.[9]There was telephone contact and Dr McGuire attended. His note of his visit was as follows:
“nose runny today – dad worried it might be CSF again O/E well alert PERL [pupils equal and reacting to light] ears NAD nose snuffly reassured”
No treatment was given and Aaron was not referred back to hospital. Dr Maguire did not see Aaron again. worried it might be CSF again O/E well alert PERL [pupils equal and reacting to light] ears NAD nose snuffly reassured”

nose snuffly

[10]Mr and Mrs Blain recall that the leak continued intermittently and as a result Aaron did see another GP in the Practice, Dr Malik on 30th September 1993. There is no reference in the note to concerns about CSF and Aaron’s parents were again reassured that he was suffering from a cough and cold.[11]However, at the neurosurgical out-patient clinic appointment, which happened to be five days later, Mr Cowie noted clear fluid was dribbling from Aaron’s right nostril and that it tested positive for glucose. In a letter dated 6th October to Dr Mehta, Aaron’s nominated G.P., he wrote:
“This child is continuing to leak glucose positive fluid from the right nostril. It is clear, I think, that he is going to be worked up to undergo an anterio-cranial fossa repair to stop this fistula so that the risk of meningitis is abolished. When we had him over his mother’s knee at my clinic this afternoon I was able to see clear fluid dribble and this is very definitely glucose-positive. I will arrange his admission as soon as possible”
I will arrange his admission as soon as possible”[12]Arrangements were made for Aaron to undergo a cisternogram on 13th October 1993 with a view to surgery taking place two days later on 15th October 1993. No criticism is or has ever been made of this proposed timescale. Very unfortunately, Aaron contracted an infection between 5th and 13th October which developed into pneumococcal meningitis. He was admitted on 12th October 1993 to the intensive care unit of Booth Hall Hospital, where he was treated with intra-venous antibiotics. It was not until 5th November 1993 that he was well enough to undergo an operation to repair what were discovered to be two small defects in the anterior cranial fossa behind the nose. No actual fracture was ever found. The operation was successful in sealing the defects, but Aaron was left with significant brain damage and epilepsy as a consequence of the meningitis.

Aaron’s claim against the Claimant

[13]Aaron brought a claim against Dr Maguire alleging that on the home visit in August 1993 he failed to identify a CSF leak, failed to prescribe antibiotics and failed to refer AB for a neurological or neurosurgical opinion. Dr Maguire denied the claim contending that he had carried out an appropriate examination and reached a reasonable diagnosis.[14]In 2005 Aaron’s claim against Dr Maguire was compromised, without admission of liability, on the basis that Dr Maguire should pay to Aaron 65% of the value of his claim. This compromise was approved by Mr Justice McCombe on 31st October 2005. At some stage those insuring Dr Malik agreed with Dr Maguires’ insurer that a contribution to damages would be made on behalf of Dr Malik having regard to his potential liability arising out of the examination on 30th September. I was told this orally at the commencement of the hearing before me and have no further detail.[15]In May 2009 the issues of quantum were resolved during the course of a trial on the basis that Dr Maguire should pay Aaron £3,737,500 and his costs which were subsequently agreed at £571,000. The financial settlement was approved by Mr Justice Blair on 18th May 2009. Hence the compromises of liability and quantum were both approved by Judges of the High Court and not surprisingly there has been no suggestion that either compromise was in any way unreasonable. Indeed given the Defendant’s case before me I believe that the view now taken is that the liability compromise was if anything a good result for those standing behind Dr McGuire.[16]It is of note, given the issues before me, and the fact that liability was compromised at 65% ; a significant discount for the risk of failure of the claim against Dr McGuire and reflecting a large sum of money given the size of the claim, that the Defendant in this action was not joined as a Defendant in Aaron’s claim. A potential claim had clearly been explored, but was not in the end advanced.

Claimant’s case in this action

[17]Dr Maguire now seeks an indemnity or to recover contribution in respect of the settlement sum from RMCH on the basis that RMCH is and was liable to Aaron for the same damage that was the basis of the claim by Aaron against him and, further, that it is just and equitable for RMCH to contribute towards or indemnify him in respect of the settlement sum, Aaron’s costs and his own costs of the original claim. The total value of the contribution claim is £4,563,500.

Applicable law

[18]Under the Civil Liability (Contribution) Act 1978 section 1(1) and (4) Dr McGuire can recover contribution, whether or not he himself was liable to Aaron, provided that i) the settlement between him and Aaron was made bona fide; ii) he would have been liable to Aaron if the factual basis of the claim against him could have been established; and iii) RMCH is also liable to Aaron in respect of the same damage.[19]The amount of contribution recoverable shall be such as may be found to be just and equitable having regard to the extent of the Defendant’s responsibility for the damage in question and can, in an appropriate case, amount to an indemnity.[20]Clearly if a breach of duty by RMCH is established, the issue of whether of not Dr McGuire was negligent is then relevant to the extent of his recovery. If no such breach is established, the question is irrelevant.[21]So why does Dr McGuire allege that RMCH is liable to Aaron ?

Alleged Breach of Duty by RMCH

[22]It is the case on behalf of Dr McGuire that Mr Cowie and his team were in breach of duty in their treatment of Aaron in two ways ; i) There was failure to arrange to see Aaron for early follow up after his discharge from RMCH on 23rd June 1993; ii) There was a failure to inform Aaron’s parents that if there was any further suspicion of leakage of fluid from his nose, they should bring him back to RMCH straightaway.[23]It is his case that had either breach not occurred he would not have had to visit Aaron on 29th August 1993, so could not have made any mistaken diagnosis.[24]The Defendant’s response to these two allegations is that they are both misconceived.[25]As to the first allegation, there was no need to provide an earlier follow-up appointment following Aarons’s discharge from RMCH on 23rd June 1993. It was a non-urgent appointment given for the purposes of a general review and it is likely that 5th October was the first appointment available. Such a time gap between discharge and review appointment was not unusual for non-urgent neurosurgical cases in 1993. Further, if, contrary to expectation there had been a recurrence of the leak, the reasonable expectation was that in line with advice given on discharge the parents would have sought medical assistance.[26]As to the second allegation reliance was placed on the content of the medial notes and the entry by ( the then) Dr Rose, the junior doctor who wrote the note on the day of discharge:
“Well this morning. No further leakage. Home on antibiotics. To return if any problems”
(emphasis added). She expanded upon this in her witness statement setting out that[27]In her witness statement she says:
“... Having had a leak from his nose, the advice given would have been specifically regarding further leakage or a change in his condition….., I feel I would have conveyed the importance for A’s parents to be vigilant whilst trying to avoid undue distress….., but that if his symptoms recurred or they had any concerns about him, they should seek further help from the ward to ensure that he was reviewed, in case any further treatment was indicated.”
[28]The Defendant also relies upon the acceptance by Aarons’ parents that they were warned by the hospital of the need to be alert and to get in touch with the hospital or a doctor if they were at all worried. As regards the choice of returning to hospital or seeing a G.P. the Defendant’s primary case was that the parents were simply told to return to the hospital as Dr Rose’s note recorded. However, if they were told that they could contact G.P. it was equally appropriate to give this option in the event of a concern.

The respective cases on causation

[29]Dr McGuire’s case on causation is that if Mr Cowie had arranged for earlier follow-up, or Mr and Mrs Blain had brought Aaron into hospital when his nose was running on 29th August 1993 then the fluid would have been identified as CSF and an operation would have been carried out before the onset of the infection which led to meningitis.[30]Further, that if Aaron had come to a routine outpatient clinic appointment before 29th August or at a time when his nose was not running, then Mr Cowie should have carried out a “tilt test” which would have provoked a leak and led to the same outcome.[31]The Defendant’s case on causation is that if Aaron had been brought back at some unspecified time when the nasal discharge had not recurred, Mr Cowie would not have carried out a tilt test, because it would have risked disrupting the healing process and provoked a leak which would otherwise not have happened, leading to an unnecessary major intracranial operation. In those circumstances, absent any history of recurrent leakage or evidence of discharge, it is unlikely that the underlying problem would have been discovered before 29th August 1993. It is accepted that after that date and at any stage up to 5th October if Aaron had returned to hospital a CFS leak would have been detected.[32]I turn to the evidence before me.

Lay Evidence

[33]Dr Maguire gave oral evidence. Mr and Mrs Blain did not attend the trial and the statements which they both made in connection with Aaron’s action were put before me. It was agreed that they need not attend. I have reminded myself when considering factual issues, as Mr Miller Q.C. directed me to, that the statements were not made for the purposes of this litigation.[34]I raised at the outset of the trial and again during closing submissions as to how the Claimant’s case was advanced given the conflicts between his statement and those of Mr and Mrs Blain. In my opinion I did not ever receive a totally satisfactory response. The Claimant brought this case for an indemnity or contribution and has to prove its constituent elements. There were no Civil Evidence Act notices. The Defendant accepted or did not dispute virtually all the content of the witness statements of Mr and Mrs Blain save for its primary submission that the parents were not told of the option of attending upon their G.P. after discharge . Having carefully considered all the evidence as I shall set out in detail in due course I find that the parents’ statements are to be preferred in this regard. However, the Claimant’s evidence, including the assertion that he was not negligent was, not surprisingly given that they were prepared in the case against him, at direct variance with the content of the statements of Aaron’s parents on a number of important issues of fact. The response of Mr De Navarro that I must make my findings of fact based on the evidence as a whole never directly addressed the weight to be given to the content of these statements given that a decision had been taken not to call them. Of course if a witness whose statement before the court is clearly wrong on an issue, then it can be agreed or conceded that the evidence is wrong on that particular point. However, that was not the case here. It was in my judgment unsatisfactory to advance a case on the facts that sought with regard to these statements to do what was is frequently described in another context as pulling out the plums and leaving the duff behind. In the end when weighing up all the evidence as I was urged to do, this approach has not in fact caused me much difficulty. However, it should not be thought that I considered it satisfactory.[35]Three witnesses gave evidence on behalf of the Defendant, Mr Richard Cowie, Miss Gillian Rose and Teresa McSherry.

The expert evidence

[36]The expert evidence on behalf of Dr McGuire was given by Professor Wall on the General Practitioner negligence issues and Mr Maurice-Williams on the neurosurgical issues. Dr Barraclough and Professor Pickard respectively covered these areas on behalf of the Defendant[37]As is of course to be expected I had the benefit of joint statements from these medical experts. I pause to observe that the overly prescriptive and repetitive agendas produced for these meeting were not helpful and served to unnecessarily increase costs as the experts were required to cover essentially the same ground more than once. In my view the areas to be covered were obvious and it is disappointing that either no attempts were made to produce a single straightforward agenda or if they were, that agreement could not be reached.

Findings of fact

[38]Before considering the allegation of negligence against the Defendant it is fist necessary for me to set out my findings of fact and I shall deal with them in chronological order. In so doing I shall also cover the potential negligence of Dr McGuire.

The Nature of the leak 21-23rd June

[39]I find that after his accident Aaron suffered a leak of CFS commencing sometime during late on 21st June or early on 22nd June 2003. As recorded the leak was positive for glucose . By 11.30 a.m. on 23rd June the leak had stopped. I am unable to say exactly what physiological process had caused it to stop beyond something was in effect “plugging the gap”. The gap itself was very small.

What was said to Mr and Mrs Blain at point of discharge from hospital

[40]The issue is whether the Aaron’s parents were told to return to the hospital in the event of concern as to recurrence of the CFS leak or told to visit a G.P. or told they had in effect the option to return to hospital or a visit a G.P.[41]At the outset of the case it was the case advanced on behalf of Dr McGuire that the advice probably given was to visit a G.P. i.e. the option of return to hospital was not given. It was the Defendant’s primary case that, as the notes record the parents were told to return to the hospital i.e. the option of seeing a G.P. was not given.[42]In my judgment it is necessary to start with the evidence of the parents on this issue, bearing in mind that the path they chose when the concern did arise, was to contact their G.P.[43]In his first witness statement, Mr Blain stated “ We were given an appointment for Aaron to be reviewed by Mr Cowie at Pendlebury Hospital on 5th October . Mr Cowie told us that if the nasal discharge started again that we should take Aaron to our G.P.”[44]In my opinion the purpose of this witness statement, being to support a claim against Dr Maguire, must be borne in mind when considering the emphasis and the omission of a reference to the hospital.[45]Mrs Blain set out in her second witness statement ; “I cannot be totally certain but I do recall that following the accident we were warned by the hospital of the need to be alert and to get in touch with the hospital or doctor if we were at all worried”. This statement was then confirmed in identical terms by Mr Blain in a supplemental witness statement.[46]To my mind it would be somewhat surprising that if they were told to return to hospital and no mention was made of the alternative of contacting the G.P. that when the serious concern did arise they acted as they did.[47]I now turn to the records. Dr Gillian Rose as was is now a consultant Plastic and Hand surgeon, and not surprisingly had no independent recollection of matters relating to the treatment of in 1993. She gave such assistance as she could concerning the note she made in the records at 11.30 am on 23rd June which stated “ to return if any problems” Ms Rose stated “ the note indicates to me that Aaron’s parent/parents were specifically advised that they should return or contact the ward if they had any concerns about Aaron’s progress following discharge from the hospital. Having had a leak from his nose, the advice given would have been specifically regarding further leakage or changes in his condition.”[48]Ms Rose stated that this was in line with the standard practice in operation in the department at the time and that there was an “open door” policy which allowed patients to contact the team without the need to be referred by another healthcare professional.[49]Teresa McSherry the paediatric nurse who made the entries in the nursing notes could not really assist as to what was said to the parents as she was not on duty on 23rd June. However, she did confirm the existence of the open door policy in 1993 and the advice usually given on discharge in such circumstances.[50]In my view the contemporaneous note accurately records that advice was given, in line with the prevailing policy, that Aaron should return to the hospital if there were concerns. However, I do not believe that the advice was as limited as this. It is my finding that Mr and Mrs Blain were, as they recollect, advised that they should return to the hospital or see their G.P if they were worried at any stage about further nasal discharge. Of course the precise words or indeed emphasis are not known. However I do find that such wording as was used clearly left with these parents with an instruction that included they should be vigilant and should return to the hospital if they were at all worried or that they could contact a General Practitioner. As for the reference made to the option of seeing the G.P I find that the second statement of Mr Blain, focused as it was on this area, is to be taken as his best recollection i.e. reference was made to both hospital and G.P. As for the reference to Ms Cowie I find on balance that it was not in fact Mr Cowie who spoke to the parents. Ms Rose indicated she would have undertaken the ward round with a registrar and as was confirmed Mr Cowie’s name would have been somehow displayed by the bed as the consultant in charge of AB’s care. I think it likely that such conversation as he recollects with a man was likely to have been with the registrar. However, this is of very limited importance.[51]Although as I have indicated I cannot determine what was said with any greater precision it is my judgment that the parents were clearly told that in the event of that they were “at all worried” they should seek medical advice. It is important to note that this was advice without time limit or limiting what should constitute worry such that action should be taken i.e. it was triggered by any worry at all. As a result I do not find it wholly surprising that within this advice given the option of attending a G.P. was mentioned. It gave the parents some discretion given what the worry might be and when it arose perhaps many months later. Of course if there was a suspected leak within days of discharge the hospital option would be to the forefront of the mind of any reasonable parent and I have little doubt that bearing in mind the prevailing policy whatever was said conveyed that this was the correct approach. However if it were several months later and there was discharge in the context of other cold like symptoms a parent may have only a slight worry and feel that asking the G.P. represented a reasonable first step and I find this was somehow expressed. As Professor Pickard stated “ In the early months parents tend to go back to hospital, later they go to the G.P., its human nature.” I believe the instruction reflected this.[52]Mr De Navarro levelled criticisms at the evidence of both Mr Cowie and Professor Pickard as regards the references as to whether it was an instruction to return to hospital or to the G.P. I carefully considered the criticisms when raised in cross –examination and again when made in closing submissions. However I am wholly satisfied the evidence given has been entirely honest and although each made a mistake in referencing what others has said there was no intention to mislead. 23rd June to 29th August[53]Aaron was a healthy, happy and I have no doubt normally boisterous two and a half year old boy. Such is confirmed by his parents and indeed was stated at the time and was recorded in the notes by Ms McSherry who noted that he played football and went to playschool two mornings a week. The period between his discharge from NMCH and the visit by Dr McGuire was a period of nine and a half weeks. Much will have happened to Aaron in this period.[54]I have had no direct evidence of the ordinary life of this two and a half year old boy and have to assess matters on the clear indication of normality in such evidence as I do have. As I stated during the hearing my youngest son is now eight, but I still regularly spend enough time with younger children to have knowledge of the real life of a child of two and a half. I reject as wholly unrealistic the suggestion that given the length of this period an normal two and a half year old boy would not have regularly created raised pressure on the relevant area, indeed as Professor Pickard opined probably well in excess of that produced by any simple tilt test. At such an age ordinarily active children when awake are rarely still and frequently throw enormous energy in to a range of sometimes violent physical movements many far removed from the controlled vertical and when sleeping horizontal position adopted by adults. They often have immediate and raging desires to throw themselves and playmates to the ground. They do like to see the world upside own or hand off furniture. It is after all part of the time in our lives when such useless physicality is not only permitted, but expected. The phrase rough and tumble used by Mr De Navarro does not do the activities in the daily life of a child this age justice.[55]These observations are important because throughout this period and despite the frequent, from an adult perspective wholly abnormal, uncomfortable positions adopted with consequential regular pressure on the previously injured area, there was concern raised about a recurrent leak of CFS. Indeed I find as a fact that there was no hint of a significant leak in this period. Had there have been his clearly attentive parents would have spotted it. So on any review no concerns would have been raised by the parents. Further, and given the pressures regularly applied during this period I find that had a simple tilt test been undertaken during an appointment that no leak would have been provoked.

Sunday 29th August 1993

[56]Mr and Mrs Blain describe how the position suddenly changed on that Sunday. Mrs Blain stated “..on 29th August, I was very concerned that Aaron’s nose was running with a clear fluid discharge and I contacted the General Practitioner’s surgery asking for a home visit”.[57]So she was sufficiently concerned that it could not wait till the next working day. She also made it clear “Arron had had no further leakages following the discharge from hospital in June 1993” This is confirmed in her husband’s statement.[58]They also set out that after 29th August 1993 the clear discharge then continued intermittently, causing the visit to the surgery on 30th September 1993. Mr Cowie also described how on 5th October 1993 the leak was obvious and had been “continuing” (see letter of 6th October ). So both parents report a very obvious and significant difference between the period of nine and a half weeks up to29th August and the weeks thereafter.[59]I find as a fact that there was some significant anatomical change on 29th August 1993. I am unable to say on balance what the change was or its cause save that the leak did not result from a simple manoeuvre resulting in increased pressure of the extent or type produced in a tilt test. In my judgment there was clearly something more. It could have been linked to the shrinkage of the olfactory nerve bulb uncovering the anterior part of the cribiform plate or a strain on what Professor Pickard described as a weak repair caused by some very unusual localised pressure including as a result of what can be broadly described as a trauma. I accept as accurate the Professor’s opinion that either was plausible.[60]However it is my finding of fact that without whatever caused the change on 29th August a tilt test carried out after the period for initial healing (when in the common of the experts before me view such at test would have been inappropriate) and at any stage through to 28th August 1993 would not have produced a leak. I much preferred the very firm view of Professor Pickard on this point to that of Mr Maurice-Williams as to my mind it embraced the common sense of the position given the ordinary life of a two and half year old.[61]There is also an issue of fact as to whether the leak that developed was unilateral or bi lateral. The original notes of the admission give no detail referring only to the nose. When examined on 5th October by Mr Cowie it was unilateral ; coming from the right nostril. Aaron’s parents simply state that his nose was running with no further detail. However they say that the discharge continued and do not make any reference to a change in it nature. Given what Mr Cowie found this suggests that it was unilateral. However, it is important to remember the size of the nose involved. In the circumstances it is difficult to reach a firm view with great confidence.

Dr Maguire’s visit

[62]In my judgment it is likely, as Dr Maguire stated, that he only viewed Aaron’s notes after the visit rather than before. However I find as a fact that, as Dr McGuire thought likely, he spoke with Aaron’s parents before the visit. As a result he knew he was faced with a very unusual history and a potentially very serious problem, but he decided not to pick up the clinical records despite the fact that this was something he said that he did do on occasions. Professor Wall was quite wrong to float the suggestion that he may not have done so simply because this was a runny nose. Dr McGuire well knew it was not that simple. As a result of his decision not to call in and get the notes he had to rely heavily on the history given by Aaron’s parents. He carried out an examination and felt able to give a confident and reassuring diagnosis without sight of the records. In my judgment that this does rather put the criticisms of the guidance to the G.P within the discharge letter into perspective. Dr McGuire only considered it the next day. He also stated in cross-examination that he would not have needed to be told of the seriousness of a potential leak.[63]It was repeatedly prayed in aid of Dr McGuire that he was faced with a rare and very difficult situation and condition. It was pointed out that Dr Barraclough had used the phrase that it was a “very difficult case”.[64]However, in my judgment rare in these circumstances does not axiomatically equate to complex. The truth is that it was a single and straightforward issue that confronted Dr McGuire ; was there a risk that the discharge was CFS luid. Dr McGuire knew, as any competent G.P would have known, that a CFS leak was a serious matter with a risk of devastating infection. He did not have to identify why it was leaking or set out a course of treatment. He also knew that due to the potential for serious repercussion he had to approach the examination with a low threshold or as he also put it he needed to be very confident that he could discount the possibility that it was CFS. Dr Barraclough did indeed refer to the difficulty of the case more than once and also to the fact that given his level of experience Dr McGuire was unlucky. However, it is to be noted that he also did so within a very concise and clear conclusion that gave the firm opinion that Dr McGuire had made, in effect, basic errors.[65]As I have set out the brief note of the visit made by Dr McGuire was as follows:
“nose runny today – dad worried it might be CSF again O/E well alert PERL [pupils equal and reacting to light] ears NAD nose snuffly reassured”
O/E well alert PERL [pupils equal and reacting to light] ears NAD nose snuffly reassured”

nose snuffly

[66]There is an important conflict of fact as to whether the discharge from the nose was clear or of a colour or consistency indicating mucus.[67]Dr Maguire accepted that the fact the child was two and a half years old and therefore the overwhelming likelihood is that his parents had witnessed him suffering from a cold or other condition causing an ordinary runny nose on other occasions and also that this should have been a relevant consideration in his analysis i.e. it should have carried some weight that the parents were very worried that this was not just a runny nose. As Dr Barraclough stated a child of this age will commonly have six to ten upper respiratory tract infections a year ; so this would this would have been likely to have been amiliar territory for Aarons’ parents.[68]Both parents set out with their witness statements that the discharge was clear. Mrs Blain stated ; “ on 29th August 1993, I was very concerned that Aaron’s nose was running with a clear fluid discharge and I contacted the General Practitioner’s surgery asking for a home visit. On that date, Dr Maguire visited us at home and my husband and I explained that we were concerned about the clear discharge running from Aaron’s nose and whether or not in might be related to Aarons’ head injury” Mr Blain stated “ Deborah was very concerned about Aaron’s nose which was running with a clear fluid discharge……Dr Maguire visited us at home and I explained that we were concerned about the clear discharge running from Aaron’s nose ” As for the period after the visit they both confirm “the clear discharge did, however, continue intermittently”. And as Mrs Blain stated “ …… the clear fluid leak continued and on 30th September 1993 my husband Colin took Aaron to the surgery again” As I have indicated on 5th October a leak was noted by Mr Cowie.[69]The parents recalled with some precision the nature and extent of the examination as they well might as they were worried at the time. They recollect that Dr Maguire did not take a temperature but he did look in the ears and the throat. He then reassured them that it was a snuffly nose or common cold. As to Dr McGuire’s confidence Mrs Blain stated that “At no time did he tell us to ring him if we remained concerned about Aaron” This is confirmed by her husband So they do not recall that he said that if they had any continuing concerns that they should contact him or a colleague again.[70]Dr Maguire had no recollection of the visit but believes that the discharge must have been mucoid as this can have been the only basis upon which he could have been able to exclude the possibility of it being CFS fluid. He stated that if he had retained any doubt that he would have either arranged for Aarron to attend hospital or at the least called the hospital. He stated in cross-examination “ if I’d been presented with a clear discharge it would have moved me towards referring to hospital. So I can only believe the discharge was mucoid” And; “ It must have been a thick mucoid discharge”[71]He stated that the word “snuffly” meant nasal congestion. As for whether the discharge was unilateral or bilateral Dr McGuire set out within his statement that this would have been a factor that he considered after he had “visualised the discharge”.[72]He set out within his witness statement that, “ I accept that I have not made reference in my note to whether the discharge was unilateral or bilateral. The fact that I have noted “nose snuffly” indicates to me that there was bi lateral congestion. If there had been a unilateral clear discharge I would have immediately made contact by telephone with the on-call neurosurgeon”.[73]He conceded that other than a snuffly nose he found no other positive sign to support the diagnosis of an upper respiratory tract infection. At no stage did he appear to have considered, as Dr Barraclough stated that given the size of the nasal passages of a child of this age that small amounts of CFS could be held by capillary action with the result that the child could be snuffly.[74]He stated in oral evidence that he would not have administered a glucose test as he has never performed one in such circumstances. Rather if he was in doubt he would have relied on the expertise at the hospital. Mr Miller Q.C. pointed out that this was at direct variance to the content of his supplementary witness statement that stated “if I had thought that the fluid discharge was CSF I would have used a dipstick to test for glucose” Dr McGuire gave no real explanation as to why he would not have performed a glucose test if he had been in doubt. In response to Mr Miller’s questions he also stated “ I must have been absolutely convinced as it’s a very easy thing to do”[75]He set out in his statement and told me in oral evidence that he would have taken Aaron’s temperature, although he accepted that this was not recorded in the notes. Further, he stated in oral evidence, repeating the content of his witness statement, that he would have said to the parents at the end that if they continued to have any concerns that they should not hesitate to contact him. Again this evidence directly conflicts with the content of the witness statements of Mr and Mrs Blain.[76]My finding is that the discharge was not as Dr McGuire believes it must have been, a thick mucoid discharge. Rather I find that it was clear as Aaron’s parents state or at least it was sufficiently clear that its presentation should have sailed over the low threshold that Dr Maguire set as appropriate in his own witness statement for some from of action.[77]Further I find that the essentially the same form of discharge continued intermittently up to 5th October. This is consistent with CFS having no clotting mechanism. As regards the examination on 5th October 199 Dr Cowie recalled, albeit as a hazy recollection, that the leak was apparent when Aaron was lifted from his buggy and that he was informed that his pillows had been wet at night. In any event he noted after the examination that not only had a tilt test caused leakage but that Aaron had “continued” to leak glucose positive fluid from the right nostril. This was because he had been given this information by Mr and Mrs Blain. I reject with little hesitation the suggestion made by Dr McGuire that the leak may have developed after his examination.[78]As a general point I believe that Aaron’s parents were and are far more likely than Dr McGuire to remember the symptoms, presentation and the nature and extent of the examination. In my judgment it was precisely because it was clear fluid that they were so “very worried”; as opposed to a cold/ or respiratory infection with normal or common place symptoms including discharge of thick and/or coloured mucus. I regret to say that in my opinion Dr McGuire fell into an all too familiar trap in not attaching enough weight to the history given by and concerns of the parents. He had a brief snapshot whereas they saw the bigger picture.[79]Sadly given the consequences and notwithstanding his evidence I do not believe that at the time of his examination Dr McGuire properly addressed his mind, to the standard reasonably required of him, as to what would safely differentiate CFS from a more ordinary discharge. He simply did not apply the low threshold he now accepts he should have applied.[80]Mr De Navarro Q.C. raised the issue of Dr McGuire’s potential reliance within his evaluation of the fact that it had been two months since the leak and as a result it would have been likely to have healed. However Dr McGuire did not seem to me to consider that this could have played a major part. He stated that it may have given him some reassurance but that there was “not much emphasis on that”. Hearing his evidence the impression I gained was that there was probably very little reliance if any on the length of time for healing.[81]By the time Dr McGuire considered the discharge letter back at the practice the next day and discussed the matter with his supervising partner the parents had already been reassured by a his confident diagnosis. To contact them and require them to take Aaron to hospital would have been in effect in sharp contrast to the confidence he had exhibited at the conclusion of the consultation and required a very significant volte face. These were still early days for Dr Maguire as a doctor and to accept mistakes takes courage and an fall to often some experience of the potential consequences of not doing so.[82]Dr Maguire set out in his statement that although he does not remember the visit he would have been extremely careful . However the failure, which I find as a fact, to take a temperature of to inform the parents to contact him if their concerns persisted tells a different story. For whatever reasons ; now lost in the mists of time he was not as careful or thorough as he now realises he should have been and as any G.P. acting in accordance with the standard of care required of him in these circumstances should have acted.[83]It was also significant that his oral evidence differed from what he had previously set out concerning a glucose test. As I have set out his witness statement set out that if he had thought the fluid discharge was CSF he would have applied the dipstick to the fluid. However, this contrasted with his oral evidence that if he had had any doubt he would have referred on or sought advice. I think the truth is that he remembers nothing of the visit or his state of mind at the time; so his beliefs as to what he may have thought have changed. However, the problem with either statement is that it relegates the potential test from assisting in the process of evaluating whether or not it could be CFS. It left the analysis reliant on a visual inspection of the discharge and consideration of snuffly nose, the ears and throat. I accept what Dr Barraclough told me when he stated that a reasonably competent G.P should not only have known of the test, as Dr McGuire did, but also that it was a simple, high sensitivity and very strongly predictive test. I would add also non- threatening or invasive one even for a child of this age.[84]To reasonably decide that a glucose test was not necessary Dr McGuire had to have a very high degree of certainty that the discharge was not CFS. To use his wording to be “very confident” that it was possible to discount a possible CGS leak. Given what he had to work with there is in my judgment no way that properly applying his mind as a reasonable G.P should that he could have achieved such confidence. Indeed in my judgment given the proper weight to be attached to the reporting of the parents, that ears and throat were normal and that a partially blocked or “snuffly” nose could be product of the loss of CFS down the small nose of a child of this age he could not have achieved sufficient confidence without a glucose test even if the discharge had been not been entirely clear and was bilateral. As it is it is my finding that it was clear and this makes the omission of the test even less excusable.[85]Indeed after some cajoling Professor Wall stated that if paragraph 8 of the witness statement of Mrs Blain was correct in that Aaron’s nose was running with a clear fluid discharge there was no reasonable option available other than to admit to hospital. I am indeed satisfied that her statement is correct and accurate.[86]As for the question of whether the discharge was unilateral or bilateral as I have stated I found the matter to be far more difficult to determine. The analysis Dr McGuire of his omission in the notes of his testing of temperature is obviously relevant to the analysis of his omission to record that it was unilateral or bilateral discharge. I am quite satisfied that his analysis as regards temperature is wrong and I much prefer the evidence of these understandably anxious and clearly attentive and vigilant parents. I find that he did not take a temperature. So did he actually and reasonably conclude that it was a bilateral discharge ?[87]On a fine balance I do not think that he did reach an adequately supportable conclusion on this aspect. I think that he went as far as assessing it as a snuffly nose without actually considering closely the precise location and cause of the snuffles. I believe that this is line with his general approach to this examination. However, I stress that even if he had seen only a unilateral discharge then given the other features it is my judgment that this could not have provided sufficient reassurance for the conclusion that he did reach. I much prefer the evidence of Dr Barraclough to that of Professor Wall on this issue. As Dr Barraclough set out in the joint statement and repeated in his oral evidence a general practitioner could have no knowledge of whether CFS leaks were always unilateral or often bilateral and it would be unsafe to make such a wholly unjustified assumption in what was clearly a high risk situation. I simply do not accept that, as Professor Wall opined in the joint statement, it could be acceptable management to exclude CFS rhinorrhoea and diagnose a cold on the basis of bilateral nasal discharge given the circumstances of Aarons’ presentation.[88]I regret to say a detected a strong tendency on the part of Professor Wall to advance any argument he thought potentially available to seek assist the position of Dr McGuire whether or not it was, on the evidence available, relevant or sustainable. I was seriously concerned by his evidence on a number of issues. I have covered his comments upon the content of the discharge letter at paragraph 8.2 . Further, at paragraph 8.4 he stated that “ I am of the opinion that, without specialist knowledge, a G.P. would have expected that as it was now over two months since the head injury it would be unlikely that this would be CSF leaking” However, Dr McGuires’s statements relied on neither of these points.[89]Further, he set out at paragraph 8.5 of his report that an averagely competent G.P. would not have been aware the glucose level would be raised in CSF. Even ignoring my conclusion that this is not correct given the matters covered by a G.P. in training, including exposure to lumbar punctures, the obvious problem with this statement is that it ignores the second statement of Dr McGuire which expressly set out that he did know. Professor Wall set out at the beginning of his report that this witness statement was before him.[90]Professor Wall also stated at paragraph 8.7of his report that he would not have expected a G.P. to open a surgery for a child that had a runny nose, when on any properly considered evaluation he would have noted that the visit was because the mother had reported clear fluid discharge in the context of the previous head injury and there was concern given the previous leak of CFS. Indeed in response to my question Dr McGuire confirmed that he would not have made an out of hours visit to a child with just a runny nose.[91]These matters gave me considerable concern with regard to the opinion evidence given by Professor Wall on the issues of general practitioner negligence and contrasted sharply with the clear, consistent and well reasoned approach of Dr Barraclough.[92]In the circumstances I am very far from surprised that the action was brought by the parents solely against Dr Maguire or that a decision was taken to settle the claim. It is my finding that liability should and would have been established against him. Sadly it I yet again the all to familiar scenario in a clinical negligence action of the patient or here the patient’s parents having a very real and reasonable concern that there may be a serious problem and being wrongly reassured that little was amiss after a clearly inadequate assessment by a visiting G.P.[93]I now return to the chronology and the findings of fact in relation to the first of the two allegations of negligence against the Defendant

What would have happened if there has been an earlier appointment ?

[94]As I have already set out I find that there had been no leak from June until the discharge that prompted the call to Dr McGuire.[95]It follows that if there had an examination between 23rd June and 29th August 1993 that there would have been no history given to Dr Cowie by the parents of any discharge or leak since Aaron had left the hospital. They would have reported that Aaron was a normal, healthy and happy young boy. As a result I find as a fact that had there been an appointment in the July or more realistically the August clinic, the later date, on the first Tuesday of that month being in Mr Maurice-Williams optimum window of four to six weeks, Mr Cowie, as he consistently set out in his evidence, would not have undertaken a tilt test.[96]However as I have already set out I also find as a fact that if contrary to his normal practice he carried out a tilt test that there would have been no leak provoked. Whatever was preventing the leak was holding good.[97]However, as the leak had recurred by the 29th August 1993 had Aaron attended at the clinic on 7th September 1993 the recurrence of the leak would have been reported by Mr and Mrs Blain to Dr Cowie and confirmed by him using a tilt test. As it was Aaaron attended the next clinic on 5th October 1993.[98]Having set out my relevant findings of fact and also my conclusion as regards breach of duty by Dr McGuire I now turn to the assessment of the two allegations of negligence against Dr Cowie (and by amendment his team) that are said to underpin a claim for indemnity or contribution. I will take them in the order in which they were pleaded. The date of the Appointment.[99]The first allegation is that there was a failure to arrange to see Aaron for early follow-up after his discharge on 23rd June 2003[100]The factual findings that I have made mean that had there been an appointment in early August no leak would have been detected even if a tilt test had taken place. As Aaron was seen in the October clinic this solely leaves, with any causative effect, an allegation that it was negligent not to have seen Aaron in the September clinic when a leak would have been noted and if necessary shown on a tilt test.[101]The respective opinions of Mr Maurice-Williams and Professor Pickard as to the issue of the date of the appointment are set out in the joint statement. Unhelpfully they were asked essentially the same question several times. Professor Pickard stated that “in the real world , there are peaks and troughs in demand on clinic slots. Hence, routine non-urgent appointments may have to be delayed in order to maintain capacity for urgent referrals and for appointments not to be unduly rushed”[102]He responded very firmly to cross-examination as to the need for a set outer time limit stating that there was no magic solution in outpatients and that one could not overlook the needs of certain patients such as those with brain tumours .He stated that ideally to reassure parents there should be an early appointment but that “…in the hurly burly of real life you put it in the next available sensible slot given monthly slots”103. Q; But six months would be too long?104. A ;You are trying to invent a standard. It’s an administrative problem given the resources to deliver. Up and down the land we see patients later than we would like. It’s a question of resources, 4,6,8 months ; its slightly artificial. Sensibly 3-4 months. It was routine and non-urgent”[103]However, as he stressed, his opinion was given against a backcloth of the parents being told to seek medical advice if they had any concerns. Mr De Navarro Q.C. submitted that this was an inadequate safety net as the advice had not been solely to return to the hospital. Professor Pickard did not accept this argument and for reasons I shall develop later in this judgment neither do I.[104]It was the oral evidence of Mr Maurice-Williams confirming what he had set out within the joint statement that Aaron should have been seen “say within 4-6 weeks or at the most within two months after discharge”.[105]He set out within the joint statement that he believed that an early check up should have been arranged, not only for the purposes of checking whether there was any recurrent leakage from the nose, but also as it gave an opportunity to emphasise to the parents the extreme importance of picking up and treating any recurrent leakage.[106]As for the importance of re-affirming to the parents the importance of being vigilant that was not an issue with these parents; matters were spelt out on discharge as to the need to seek medical advice if there were any concerns. Further, there is a danger with an earlier appointment that this message may fade too early whereas reinforcement some months later would tend to prolong the vigilance. Indeed if a patient has been seen relatively early within period post discharge then a further follow up appointment may be required in nay event, meaning attendance at two clinics and not just one.[107]Despite being pressed by Mr Miller Q.C. Mr Maurice-Williams could not set out any rationale for the two months cut off he had set out; specifically as to why three or four months would not be as acceptable as two months given his view that healing would have occurred in the very early period. Eventually he conceded it was an arbitrary period.[108]In my opinion the cut off period of two months given by Mr Maurice-Williams has been over influenced, if not created, by the benefit of the knowledge of the sad timeline of events in this case. In this regard it is important to recognise that the expectation was when the appointment was fixed that this would be a short, routine and non-urgent appointment. Further, the parents had been advised to act is matters changed in the interim. It was not to be a diagnostic examination or a review of ongoing treatment. As such it is difficult to see why it should have been afforded greater priority than it was given over other cases. I also do not believe the fact that Mr Maurice-Williams had never run a paediatric out patient clinic and not been involved in paediatric neurosurgery with only limited involvement before that helped his assessment and evidence on this issue.[109]Mr De Navarro Q.C. submitted that even if the court was to conclude that there was a body of neurosurgeons in 1993 who held that such an appointment was merely routine, such a view could not stand up to rational analysis, given the dangers of meningitis, intracranial infection and brain damage in cases of post traumatic CSF leak. He relied on the estimate that approximately 30% of leaks across the paediatric and adult spectrum do not resolve spontaneously taken together with the absence of advice to the parents to return immediately to hospital in the event of a further suspected leakage and the absence of any advice in the discharge letter to the GP as to what should happen in the event of a further suspected CSF leakage.[110]Mr Cowie said that whilst the 30% figure was the correct average across all fractures with leakage, the figure included the most serious problems. He said the risk in this individual case, in which the x-ray did not show a fracture and the leak had dried up spontaneously overnight, was smaller. He stated “ if a leak closes spontaneously there is a substantial probability it will close ( permenantly). But it could open a decade later , so it is difficult to accommodate this whole group of patients And “ the fact that the leak stopped gave us confidence that it had healed and the X-ray showed no fracture ; so it meant the likely healing process would close the fistula as no big defect in the skull base”[111]He stated that he felt in Aaron’s case that “there was no particular urgency”. As regards resources there was the following exchange 114. Q; There had to be good reason for not seeing him within two months? A ; Our capacity to do so , logistics etc means there had to be a special reason to see him more urgently as it was displacing others who were waiting some time. We have to stratisfy urgency”[112]As regards re-healing he was supported by Professor Pickard who said that “ 70-80% at least do self heal”[113]I also accept that as regards the purpose of the follow up appointment in a non-urgent case it was not solely to consider whether a leak had reoccurred or could re-occur ; but was a general overview. Mr Cowie stated that he would be checking for any sign of hydrocephalus or raised pressure and that there had been no after effects and that he had regained good function. He would not try and provoke a leak and would discharge from the clinic. It was my clear impression that he was describing a short safety net follow up no doubt with the added benefit of providing further re-assurance to the parents.

As regards resources there was the following exchange

[114]Contrary to Mr De Navarro’s submission I found no difficulty in seeing the logic or rationale behind the approach to the appointment date. Indeed given the advice to the parents, the various pulls on resources outlined by Dr Cowie and Professor Pickard and the expectation that given the extent of the risk it would be a short an uneventful attendance I do not accept that Mr Cowie or his team fell below the standard to be expected in giving a review date in October. I am satisfied that in 1993 as now many consultants and departments did not run with the luxury of a diary that accommodated non-urgent appointments within a short time frame. I feel that what has happened here is that after the event knowledge of the tragic timeline has led to an unsustainable criticism.[115]Accordingly I do not accept that the timing of the appointment would have or does support a finding of negligence.

The tilt test

[116]For the sake of completeness as regards the possibility of an appointment before 29th August 2003 I should also add that I am quite satisfied that a responsible body of clinicians, faced with no history of recurrence would not undertake a tilt test.[117]Dr Cowie struck me as an experienced and careful professional and I have no doubt that he was honestly describing his usual practice as a consultant neurosurgeon at he time when he set out that “ In the absence of any history of leak of fluid I would not have tried to provoke a leak by undertaking a tilting test”[118]He expanded on this in his oral evidence stating that he had never done this in his practice stating that it increased hydraulic pressure and if there was immature healing it would increase the probability of disrupting it.[119]Professor Pickard was particularly firm and forthright in his support of Dr Cowie on this issue. He stated that he “profoundly disagreed” that a tilt test was mandatory. He set out his report and repeated in the joint statement that carrying out a tilt test routinely as part of such a early follow-up examination, in the absence of a history of recurrent nasal leakage, could have caused a recurrence of a CFS fistula and with it potentially serious sequelae. He pointed out (the question being asked twice in the agenda ) that ( unlike Mr Maurice-Williams) he was still in active clinical practice for emergency paediatric neurosurgery and would regard a tilt test in these circumstances as unwise or as he described it in his report, in the view of some neurosurgeons ; “meddlesome”.[120]Mr Maurice-Williams held and holds a different view. He believes that a tilt test should have been a standard part of the examination of any child who had had appositive CSF leak in the past. He stated that it was a routine, simple and non –traumatic test.[121]However, whilst Mr Maurice-Williams may be correct as regards a negative test when he describes it as simple and non –traumatic ; the position would be markedly different were the tilt test to provoke a recurrence of the leak. It is that risk and all that could follow from it which underpins the approach still adopted by Mr Cowie, Professor Pickard and I have no doubt many other neurosurgeons.[122]As a long settled principle in this area of law ( see Bolam v Friern Hospital Management Committee (1957)1 WLR 582 ; Bolitho (Deceased) v City and Hackney HA [1998] A.C. 232) I must be slow to wade into a legitimate debate as to the relative merits alternative methods of performance of clinical practice, provided I am satisfied that the approach as adopted was neither illogical or one that no responsible body of clinicians would follow. As Lord Browne –Wilkinson stated in Bolitho “it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such an assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendant’s conduct falls to be assessed.”[123]The reference to Lord Scarman referred to the words of Lord Scarman in Maynard vWest Midlands RHA[1984] 1 WLR 634 where he said this at p. 639:
“… I have to say that a judge’s ‘preference’ for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge’s finding, he erred in law even though elsewhere in his judgment he stated the law correctly. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary.”
[124]With this principle in mind it is my judgment that that a responsible body of clinicians at the relevant time, faced with no history of recurrence, would not have undertaken a tilt test and for sound and eminently supportable reasons.[125]I now turn to the second allegation of negligence; that there was a failure to inform Aaron’s parents that if there was any further suspicion of leakage of fluid from Aaron’s nose that they should bring Aaron back to the hospital straight away.

The instructions on discharge from hospital

[126]I have found as a fact that the parents were told of the two options of returning to the hospital or attending on their G.P.[127]Again the issue of whether this was adequate advice was comprehensively covered by Professor Pickard and Mr Maurice-Williams within the joint statement.[128]Dr Cowie and Professor Pickard were both on the view that it was appropriate to advise Aaron’s parents to seek guidance from the hospital or the G.P. Mr Cowie confirmed his view in cross-examination that either option would be reasonable. He referred to the ability of the G.P. to telephone the hospital at any time and speak to the duty registrar. He described G.P.s as “the conductors of the medical orchestra” and clearly had confidence in ability of a G.P. to undertake an appropriate review of matters if, as was unlikely given the extent of the risk which he also described it as a small probability, there was a recurrence of the leak. In response to Mr De Navarro Q.C. pressing him on the point he stated “On the basis of many years teaching medical students I assessed a G.P. would be competent to look at the history and respond appropriately in this eventuality”[129]I think that it is instructive and illuminating that, as Professor Pickard stated during cross-examination, whilst compiling his report it did not even occur to him that the advice or instruction to the parents would be criticised due to the fact it did not mandate a return to the hospital as opposed to allowing the option in what they considered appropriate circumstances of first consulting a G.P. He said that it would have been wrong to insist that they must only return to hospital whatever the worry or concern. He was forthright is his view that “ I’d expect a G.P. to know the difference between clear fluid and a snuffly nose. Is it mucus or clear fluid”[130]Mr Maurice-Williams set out within the joint report that it should have been made clear to the parents that if there were any concerns about Aaron’s condition then he should be brought back to the hospital, whether or not he had first been seen by his general practitioner. In short Aaron’s parents should have been told to bring him straight back to hospital if there were any concerns and not to bother seeing the general practitioner first. He conceded that the effect of this, given the amount of colds and such infections suffered by children would be that parents would have to return to the hospital on a number of occasions. However he stated that it would be better to have a “few false alarms” and that the discretion to visit the G.P. should be taken out of the hands of the parents.[131]Mr Maurice–Williams also stated that the discharge letter should have stressed the importance of sending Aaron back to hospital if there was any hint of recurrence of leakage of CFS and also should have pointed out the potential risks if this occurred. However, as I have already set out Dr McGuire well knew the significance of a CFS leak and the potential risks. If there was as Mr Maurice-Williams put it, “a hint of a recurrence of leakage” of CFS, he would not have acted as he did and would have either sought advice from the hospital or simply sent Aaron back.[132]Nevertheless in light of Dr McGuire’s actions and the mistake that I find he made I considered the criticisms made of the adequacy of the instructions given to the General Practitioner on discharge. The text of the letter is to be found at Bundle p 178. After setting out details of the accident and history of the admissions to the hospitals it set out “ However, at mid-day on 22nd June he was noticed to have a slight leak of fluid from his nose which was positive fro sugar and therefore he was treated with antibiotics. It is not clear whether this was serum from the nose or CSF. The leakage dried up overnight and I felt that he could return home on 23rd June and I will make arrangements to review him in my outpatients clinic in due course.”[133]Whilst criticism of the discharge letter to the G.P. was ventilated before me it had not previously formed part of the pleaded case which relied on two allegations or the skeleton argument of Mr de Navarro Q.C. which simply referred at paragraph 14 to the same allegations. However, its alleged deficiencies were said within that skeleton to have increased the risk of a mistake posed by the second breach ; being the failure to inform Aaron’s parents that if there was any further suspicion of leakage of fluid from his nose, they should bring him back to hospital straightaway.[134]Having carefully considered the evidence I consider the criticisms misconceived being based on an assumption that General Practitioners need, in effect, the most basic of guidance as regards a head injury, CFS leak and the risk of infection.[135]Certainly the suggested text set out by Professor Wall at paragraph 8.2 of his report as to what the G.P should do if the child developed a CFS leak would have been telling Dr McGuire what he already well knew and has always stated that he did know. Also and for the avoidance of doubt I find with little doubt that it was, as Dr Barraclough stated, what any competent G.P would have known. Therefore given Dr McGuire statement’s which was available to Professor Wall these were misconceived, unnecessary and unrealistic criticisms and the reality is that they continued before me as almost an academic exercise.[136]I noted that Professor Pickard set out within his report, as clarified within his oral evidence, that it was unfortunate given the benefit of the knowledge of Dr Mc Guire’s actions and advice that the letter did not go further and specifically mention the action to be taken by a general practitioner in the event of a suspicion of a CFS leak. However, as he stated this does not mean that the letter fell below the standard to be expected; but rather reflects the sad knowledge that the matter was to fall to be considered by a General Practitioner who failed to approach it with adequate care.[137]Further as Professor Pickard stated, and I find as a fact, it would not have made any difference to the course adopted by Dr McGuire if he had decided to go into the surgery and pick up the notes and within them found a reference that stated that in the event of any suspicion of a leak he should refer back to the hospital before he examined Aaron. Dr Mc Guire knew before he went what the concern of the parents was and had the hospital easily available by phone if he had the slightest concern. However, he formed the very firm view that it was not a CFS leak. As I have found he did not even tell the parents to contact him or the surgery if their worries continued ; such was his degree of certainty that this was nothing to worry about. There was not, in other words, in his mind the slightest hint of leakage of CSF.[138]Returning to the direct thrust of the criticism of the advice to Aarons’ parents is was that they should have been told to always come back to the hospital and to give no weight to what a general practitioner advised if one happened to be consulted. In other words the general practitioner should have been shut out of assessment of any potential recurrence of a leak.[139]For this to be sound it requires me to find that the only supportable analysis, as at June 1993, shorn of the perfect vision of hindsight, was that the risk that a general practitioner would make a mistake on the simple issue of whether discharge could possibly be CFS ( or if it could CFS what the extent of the potential risks were) was such that general practitioners could not be trusted to be part of the process.[140]Given that the issue of whether fluid is possibly CFS or not cannot in my judgment be said to be a complex issue and also that it was agreed by Professor Wall and Dr Barraclough that they would have expected a General Practitioner to know that if there was a further CFS leak there would be a risk of meningitis this allegation of negligence relies upon a damming indictment of the competency to be expected of doctors in general practice.[141]It is in my judgment an unsustainable argument and I believe is mainly if not wholly coloured by the knowledge of the fact of the mistake made by Dr McGuire. Although perhaps an obvious point it bears pointing out that an expert must take great care when giving an opinion of the powerful and influence of hindsight. It is unforgiving and does not afford the latitude, the options, that are an essential part of everyday life.With this perfect vision it is all too easy to perceive events that occurred to have been more predictable before the fact than was actually the case.[142]In my judgment Aarons’ parents were given entirely adequate advice and instruction. As Professor Pickard stated consultants must have an appropriate degree of trust in G.P colleagues, much as they must have some trust in junior members of the hospital team. This is the picture now and I have no reason at all to believe that it was not the picture in 1993. The medical system would have ground to a halt and would do so now if the proper working assumption was that a G.P could not adequately be trusted to adequately evaluate the risks in a case such as this. It may have been a rare case but it was not complex. The G.P. did not have to treat merely evaluate and he had in his armoury a simple test, advice from the hospital a phone call away and if the case of any doubt the safety net option of re-admitting. That the particular G.P. did not avail himself of any of these options despite what I consider to be the obvious need to do so cannot be a proper ex-post facto justification for lowering the standard of perfectly reasonable expectation.

Conclusion

[143]I find that unlike Dr McGuire no servant or agent of the Defendant was negligent. As a result the right to indemnity or contribution does not crystallise.[144]In my opinion having heard the evidence in this case, which centred on the acts and omissions of the Claimant and Defendant, if any claim for contribution were to have existed it could only potentially have been against his fellow G.P. Dr Malik. I was informed at the outset of the trial that he had made a contribution to the damages paid and again, on what was before me, I am not very surprised by this.[145]For the reasons that I have set out this claim fails.[146]Having considered this judgment I ask the parties to liaise and see if an agreed draft order can be produced. If not the matter can be re-listed as a matter of urgency once an agreed time estimate is lodged.