Ali Shah v North West London Hospital NHS Trust [2013] EWHC 4088 (QB)

Case No TLQ12/1062[2013] EWHC 4088 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/12/2013
Before
HIS HONOUR JUDGE COLLENDER QC(SITTING AS A JUDGE OF THE HIGH COURT)
Between
MR. ASMAT ALI SHAHClaimantNORTH WEST LONDON HOSPITAL NHS TRUSTDefendant
Mr Davidson for ClaimantMr Barnes for DefendantHearing Hearing dates: 3 rd, 4 th& 5 th December 2013
JudgmentHis Honour Judge Collender QC :INTRODUCTION
[1]This is a claim in negligence for damages arising from the tragic death of Mrs. Ome Shah on 28 January 2010. The Claimant is the widower of Mrs Shah and the Executor of her Estate. He brings this claim on behalf of the Estate pursuant to the Law Reform (Miscellaneous Provisions) Act 1934, and on behalf of himself and his four children as dependents of Mrs. Shah, pursuant to the Fatal Accidents Act 1976.[2]The Defendant is the National Health Service Trust responsible for the medical and surgical services at Northwick Park hospital, in Harrow. It is agreed that the hospital is vicariously liable for any negligent care given to Mrs Shah, following her admission to the hospital on 24 January 2010.[3]Breach of duty, causation, and quantum, are all in issue.

THE FACTS

[4]I will set out the facts that are not, or on the evidence before me cannot sensibly be disputed.[5]Mrs Shah was born on 20 July 1972, so was 37 at the time of her death. She and the Claimant were married on 9 April 1997 and together had four children, Wafaa born on 5 January 1999, Zamin, born on 16 December 2002, Noor born on 18 May 2005 and Zain born on 13 January 2010, that is just two weeks before the death of Mrs Shah.[6]Although Mrs Shah had suffered from gestational diabetes, asthma and high blood pressure, she may fairly be described as having been generally well in the period immediately before her death. In particular, she had no past medical history of vascular injury or unexpected bleeding.[7]She studied law at college and had worked for the Nat West bank up to the time of Noor’s birth. At the time of her death she was a full-time mother.[8]Zain was born at the hospital by spontaneous vaginal delivery on 13 January 2010. No maternal complications were recorded by the hospital staff at the time of birth, and mother and baby were discharged home on 16 January 2010.[9]On 19 January 2010, Mrs Shah attended a follow up appointment at the hospital’s day assessment unit. In the course of this appointment Mrs. Shah was found to have a soft, non-tender, contracted uterus. Her haemoglobin was measured as 10.9. A final review by the community midwife conducted on the morning of 23 January 2010 confirmed that Mrs Shah was feeling well with a blood pressure of 110/64.[10]On the afternoon of 23 January 2010, Mrs Shah complained of a sharp pain in her head and a dull pain in her lower abdomen. After a restless night she got up at about 05.00 the next morning to feed Zain. In the words of Mr Shah in his witness statement before the court:
“[She] said something was happening to her, that she felt something wrong in her tummy. Quickly I held her in my arms but the next moment she went into a fit and collapsed. Se twisted her right arm and lost her speech. It seemed as if she had a stroke.”
[11]Her husband called for an ambulance. The ambulance crew noted her pulse at 126 and her blood pressure at 67/40; both abnormal readings. Intravenous fluid infusions were commenced. The ambulance record notes:
“HPC – Pt woke to feed baby. Pain in groin for past 5 hrs. Numbness down rt side arm + leg 2hrs later… O/E Pt panicky, hyperventilating, clammy, sweaty lying in bed… Treatment Fluids given IV + blood taken . legs raised. Blue call to hospital”
. Pain in groin for past 5 hrs. Numbness down rt side arm + leg 2hrs later… Treatment Fluids given IV + blood taken . legs raised. Blue call to hospital”.[12]Having left the family home at 07.56 the ambulance arrived at the hospital at 08.12. The triage notes record her blood pressure as 93/51, her pulse as 111, her respiration as 28, her temperature as 36.1o C and that there was tingling/numbness in her right leg. Save for the temperature, these were all abnormal results, indicative that Mrs Shah was suffering from shock.[13]In the Accident and Emergency department, Mrs Shah was attended by a Dr then called Dr Rajoriya, but called throughout this trial by her present name, Dr Thomas. She was working at the hospital on the 24 January 2010, as a locum Senior House Officer in Accident and Emergency Medicine.[14]Dr Thomas’s first note is untimed but must record her findings shortly after the arrival of the ambulance at the hospital. She correctly recorded that Mrs Shah had suffered a collapse two weeks post partum and that her blood pressure was low.[15]In respect of vital bodily functions, she recorded the condition of Mrs Shah under a standardised procedure that assesses in turn the airway (A), breathing (B), the circulatory system (C), and disabilities (D). The aim of this procedure is to locate and manage any life threatening problems and proceed with any necessary immediate resuscitation measures. Medication was prescribed by Dr Thomas.[16]In the course of this assessment Dr Thomas took and recorded Mrs Shah’s capillary refill time at less than three seconds – a normal result. This is a test performed by pressure on a nail bed of the hands and feet so as to cause blanching. The refill time is that taken for colour to return once the pressure is released. A prolonged refill time may indicate shock, and/or dehydration and/or decreased peripheral perfusion. She noted that Mrs Shah was warm and well perfused, fully alert and conscious with a Glasgow Coma Score of 15/15 and was complaining of weakness and numbness in her right leg. An assessment of muscle tone, power, reflexes and plantar reflexes identified obvious loss of power in the right leg as two out of a possible five. Dr Thomas did not assess by palpation Mrs Shah’s peripheral pulses or the sensation in her legs. No diagnosis was suggested by the Doctor in that initial note.[17]There is no dispute but that Dr Thomas fulfilled her duty of care towards Mrs Shah in the course of that first assessment including by appropriate prescription of drugs to her in the light of her condition.[18]As Mrs Shah was just two weeks post partum, she was also seen by Dr Pop, a Senior House Officer in Gynaecology. Dr Pop’s assessment of Mrs Shah is recorded in a separate note, also untimed. Dr Pop notes the presenting complaint as: “abdominal pain, to right side leg pain, numbness in the right leg, no muscular force in right leg. Pt. blacked out”.[19]An abdominal examination revealed no significant abnormality and Mrs Shah reported no dysuria. Dr Pop did not assess Mrs Shah’s peripheral leg pulses. Dr Pop recorded her clinical impression as: “? DVT ? sepsis”.[20]Dr Pop’s note records the need for a Doppler study of Mrs Shah’s right leg and the decision was made to admit Mrs Shah to the Labour Ward High Dependency Unit.[21]A second assessment of Mrs Shah was carried out by Dr Thomas. This would have taken place, Dr Thomas told me, in the order of half an hour after the initial assessment i.e. at about 9.00. The record of that assessment notes a recovery of the sensory loss in the right leg as follows: “ After ~ 30 mins in A&E (R)leg started to recover – feels back to (N) now.” (N = normal)[22]Dr Thomas also noted an improvement of the muscle power in the same limb from two to the possible maximum of five. Dr Thomas carried out a rectal examination and a test of perineal sensation but found no abnormalities. No test of peripheral leg pulses was performed on that assessment. Dr Thomas recorded her clinical impression as: “ sepsis ? cause”.[23]The Claimant was in attendance throughout each of the three clinical examinations performed on his wife in the hospital’s Accident and Emergency department.[24]At approximately 11.30 Mrs. Shah was transferred from the Accident and Emergency department to the labour ward. At approximately 12.30 she was reviewed by Mr Ashokkumar, a Consultant Obstetrician whose differential diagnosis included the possibility of a burst ovarian cyst. He sought surgical and anaesthetic opinions. When Mrs Shah was seen at approximately 13.00 by an anaesthetist, Dr. Frunza, it was noted that Mrs Shah reported: “Felt “something explode inside””.[25]An ultrasound scan performed at 13.30 confirmed the presence of a moderate amount of free fluid around the uterus and, having been reviewed by the on-call surgeon, Mrs Shah was taken to the hospital’s radiology department for a CT scan of her abdomen and pelvis at approximately 14.15.[26]The CT scan was performed at 14.23. The provisional written report on that scan, dated 25 January 2010 and timed at 10.27, concluded with the opinion: “Retroperitoneal and pelvic fluid collection, likely haemorrhage. The source of bleeding has not been identified. Possible thrombus in the right external iliac artery”.[27]Nothing in the evidence before me suggests that any of the information from the CT scan was immediately available to the clinical team after the scan was performed; subsequent events and treatment appear to have been driven quite independently of the results of that scan.[28]Mrs Shah returned to the labour ward recovery unit at approximately 15.00. As she was doing so she complained of severe pain in her abdomen before losing consciousness at 15.02 . Emergency assistance was sought and Mrs Shah’s abdomen was noted to be “distended ++”. A check of her haemoglobin count showed that it had dropped to 6.3.[29]An emergency laparotomy was carried out to locate and control the bleeding, the operation incision being made at approximately 15.14. The findings at operation included a large retroperitoneal haematoma and free blood in the abdomen. In the course of her surgery Mrs Shah suffered two cardiac arrests and was treated appropriately with blood and plasma transfusions and medication. In the course of the surgery, the source of the bleeding was isolated to a tear of the right common iliac artery, 3cms below the aortic bifurcation.[30]Despite three further surgical procedures and care on the hospital’s Intensive Therapy Unit, Mrs Shah died on 28 January 2010.[31]Following an exchange of pre-action correspondence these proceedings were issued on 8 March 2012.

THE RESPECTIVE CASES OF THE PARTIES

[32]As the case unfolded before me the issues in the case narrowed from those raised in the pleadings.[33]The Claimant’s claim in negligence is directed solely against the care given by Dr Thomas in the course of, and following, her second assessment of Mrs Shah. The Claimant contends that Dr Thomas failed to give any, or any adequate, consideration to the possibility that Mrs Shah’s presenting signs and symptoms were the result of arterial haemorrhage. It was wrong for her to have limited her diagnosis of the Claimant’s shock and right leg symptoms to sepsis. Such a diagnosis would not explain the development of symptoms within a single limb. The proper response to the symptoms and signs would have been to have tested Mrs Shah’s peripheral leg pulses by palpation, a quick and painless test, in the course of the second assessment, to assess peripheral perfusion in her legs. It was wrong not to have performed it simply because the capillary refill test had been normal or because the findings of such a test might have been difficult to interpret.[34]She is also criticised for not testing Mrs Shah in the course of her second assessment in respect of her earlier complaint of loss of sensation in her right leg.[35]Finally, Dr Thomas is criticised in respect of her provisional diagnosis of sepsis, and not investigating for a possible deep vein thrombosis. It is not contended that those additional failures have any causative relevance in this case but are raised to demonstrate general incompetence by the doctor.[36]An allegation based on the contents of a report prepared on this case by the hospital, the Serious Untoward Incident report, has been abandoned.[37]The Defendant contends that Dr Thomas was not negligent in not palpating the peripheral pulses in Mrs Shah’s legs during the course of her second assessment. The test is not invariably performed on such an assessment, the results of such often being equivocal. On the evidence before Dr Thomas it was unlikely that haemorrhage was the cause of Mrs Shah’s shock or right leg weakness, which, importantly had resolved at the time of the second assessment and there was no clinical indication that required that test, to be performed at that time.[38]I turn to the issue of causation.[39]It is common ground between the parties that for Mrs Shah’s life to have been saved, a laparotomy would have to have been performed before 14.00 on 24 January 2010 and that this would have prevented the further massive blood loss and cardiac arrests which occurred.[40]The Claimant contends that if Dr Thomas had palpated Mrs Shah’s peripheral pulses in the course of her second assessment she would, or might have, discovered a discrepancy between those in the right and left legs consistent with an arterial problem. Upon such a finding, Dr Thomas would, or should, have involved the surgical team in the care of Mrs Shah. Such involvement would or should have lead to early diagnosis of the cause of Mrs Shah’s shock and right leg weakness, and timeous surgical intervention, which would have saved the life of Mrs Shah.[41]The Defendant contends that, in any event causation is not established. Evidence as to when the surgical team at the hospital would have arrived if called, and what they would have done and when, is exiguous. The Defendant’s case is that, even if Mrs Shah’s peripheral pulses had been palpated, the Claimant cannot demonstrate that that would have lead to a successful surgical intervention before 14.00.

THE LAW

[42]The test to be applied in respect of breach of duty in respect of clinical negligence is well known. It was set out in a jury direction by Mcnair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 as follows:
“I myself would prefer to put it this way, that [a medical practitioner] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. ... Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”
[43]In his speech in Bolitho v City and Hackney Health Authority [1998] A. C. 232 Lord Browne-Wilkinson commented on the Bolam test as follows at 241F-242B:
“in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J. stated [1957] 1 W.L.R. 583, 587, that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of medical men." Later, at p. 588, he referred to "a standard of practice recognised as proper by a competent reasonable body of opinion." Again, in the passage which I have cited from Maynard's case, Lord Scarman refers to a "respectable" body of professional opinion. The use of these adjectives -responsible, reasonable and respectable--all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.”
At page 243 A-D after reference to authorities, he said:
“These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible. I emphasise that in my view 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 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.”

THE EVIDENCE

[44]I turn now to the evidence.[45]I heard from the Claimant and Dr Thomas. I heard expert evidence, for the Claimant, from Dr Thurston, a Consultant Emergency Physician and for the Defendant from Dr Campbell – Hewson, a Consultant in Emergency Medicine.[46]For the Claimant, I received in evidence a written report, subject to some redactions, of Mr Baird, a Consultant Vascular Surgeon, dated 18 January 2013.[47]The only significant issue of fact that I must resolve is whether or not the Claimant has established that he brought to the attention of Dr Thomas, his wife’s account of something having “exploded” within her abdomen before her collapse on the morning of 24 January 2010.[48]In his witness statement the Claimant said: “I waited in the waiting area for about an hour whilst Lailah’s condition was assessed. Then I was allowed to see her. When I saw her she told me that just before she collapsed at home she felt as though something had exploded in her tummy. I discussed this information with the doctor on duty in detail. I expressed my concern and I told her that at home it was as if Lailah had had a stroke. The doctor said it couldn’t be a stroke as the patient does not usually regain consciousness so soon afterwards. She completely disregarded the information about the explosion Lailah had felt but I kept on insisting that there was something seriously wrong with her. Lailah’s right side and particularly her right leg were paralysed and remained numb for 3-4 hours before it regained some normality….Doctors and nurses were repeatedly told about her severe condition and that she experienced an explosion in her tummy before she collapsed at home”.[49]The Claimant referred to this account in a letter of complaint to the hospital dated 10 May 2010.[50]In addition to the Claimant, I heard from Dr Thomas on this issue. Her evidence was that she was not asked for her recollections about Mrs Shah’s case until nearly three years after her death. Understandably, in those circumstances, she has no recollection independent of her contemporaneous notes of Mrs Shah’s case. She said that if she had been given Mrs Shah’s account of “an explosion” in her abdomen she would have recorded that in the clinical notes.[51]Something of the kind allegedly said by the Claimant to Dr Thomas was certainly said, at some time, by the Claimant or Mrs Shah to some of the staff of the hospital. This is clear from Dr Frunza’s record noted above.[52]It is not clear exactly when that account was first given to Mr Shah by Mrs Shah. In his oral evidence Mr Shah said that the first time his wife described the “explosion” symptom to him was at the hospital after Dr Thomas had carried out both her assessments of Mrs Shah’s condition. He accepted that this symptom was not revealed to the medical or nursing staff before or during, Dr Thomas’s second assessment of Mrs Shah.[53]In his witness statement Mr Shah referred to his report having been made to the “doctor on duty.” He did not refer to Dr Thomas by name or otherwise more precisely identify the doctor on duty so that cannot be taken as an unequivocal reference to Dr Thomas at the time that statement was made. It was not until he was re-examined on the point that Mr Shah expressly said that, at some point, he made this report to Dr Thomas.[54]I consider it of note that the report of the “explosion” does not appear in any clinical notes until that of Dr Funza. The question I have to determine is whether or not that is because no report was made until that time, or because the clinical staff, and in particular, Dr Thomas failed to make a record of an earlier report.[55]I was generally impressed by the evidence of Dr Thomas. Her clinical notes are concise but reflected the impression that I had from her evidence of a careful and competent doctor. Of course, that impression does not directly answer the question as to whether or not, on the occasion of her treatment of Mrs Shah, Dr Thomas failed to record the “explosion” history although that was given to her. I must simply determine whether or not, on the evidence the Claimant has proved the assertion made.[56]I am not satisfied on the evidence that I have heard that Dr Thomas was expressly given the “explosion” account by Mr Shah. I do not doubt that Mr Shah is truthful when he says that he did raise the matter with staff at the hospital. However, I bear in mind the inevitable confusion for him in the early stages of Mrs Shah’s emergency admission, during which, the first concern of all must have been for the medical staff of the hospital to get on with their assessment of the situation, and to give appropriate treatment. I consider that the fact that the report only appears in the later records is consistent with that report being given at a later stage rather than that medical staff in the early stages of Mrs Shah’s admission were less than diligent in properly recording the history given.[57]Neither expert witness had heard or read of such an unusual symptom. They were agreed that, in any event, the account was not suggestive of an arterial rupture, but a perforation of a hollow viscus, which would fall within the expertise of the obstetric team and should be investigated by them rather than by the Emergency Medicine staff. In the course of cross examination, Dr. Thurston said:
“I thought this might be an ovarian cyst, it is more within the obstetric discipline, not within a secondary review.”
[58]It follows from this evidence that even if, contrary to my finding, Dr Thomas had received the “explosion” report but failed to report it that failure would have had no causative significance for the case.[59]I turn now to review the evidence on the central issue of liability in this case, namely whether or not Dr Thomas should have sought to palpate the peripheral pulses in Mrs Shah’s legs in the course of her second assessment. Apart from evidence from Dr Thomas, the evidence on this issue is that given by the experts relied upon by the parties.[60]Dr Thomas told me that from her examinations of Mrs Shah there was nothing to cause her to suspect at that second assessment that she was suffering from a circulatory difficulty. She said that it was not usual practice to palpate all the peripheral pulses on such examinations. She said that the peripheral pulses are not always easy to palpate. Whilst she accepted that such a test might give some information she described it as a subjective test. As to the suggestion that she should have tested the sensation in Mrs Shah’s legs in the course of that second assessment, she said that testing for sensation can be very difficult to perform and it is not normal to test for it. By reference to the notes of her second assessment of Mrs Shah, she said that the picture painted was of a lady whose condition had stabilised.[61]Dr Thurston’s report in this case is dated 2 January 2013, that of Dr Campbell - Hewson, is dated 9 January 2013. The experts met and produced a joint statement in response to an agenda produced by the parties’ legal representatives. The experts have agreed that at the time of her arrival at the hospital’s Accident and Emergency department Mrs. Shah demonstrated signs of shock, that the correct initial management was instituted on Mrs. Shah’s arrival at hospital, and that haemorrhagic shock was among the differential diagnoses at the time of Mrs. Shah’s arrival in hospital.[62]They are not agreed as to the need, or otherwise, for Dr Thomas to palpate Mrs Shah’s peripheral leg pulses in the course of her second assessment of Mrs Shah’s condition.[63]Dr Thurston’s evidence was that in the course of her second assessment, Dr Thomas should have carried out a systematic assessment of Mrs Shah’s peripheral leg and foot pulses. This was a necessary and appropriate way of identifying the presence of any disruption of the arterial supply to Mrs Shah’s right leg; a test that was required considering the loss of power demonstrated by the result of her test of that leg on the first assessment. Starting with the most distal pedal pulses, in the absence of a pulse, she should have worked proximally to the popliteal and then femoral pulses until a pulse was palpable. In the presence of any revealed disparity between the pulses on the right and left sides, Dr Thomas should have undertaken further investigation and involved the surgical team.[64]His evidence to me was equivocal as to whether or not, palpating the peripheral pulses would have produced useful information for an examining clinician. At question 5(A) of the joint report he said that examining the peripheral pulses: “might well have not helped in the assessment”, and at question 5(B) that it: “might well be helpful”.[65]Question 6 was:
“Do the experts agree what an examination of the deceased’s peripheral leg pulses following her arrival at hospital would probably have revealed?”
[66]Dr Thurston’s answer to that question was:
“JT felt that the experts would not be discussing what might have been found had the examination been carried out, as it would then be known whether there was a difference between the two sides or whether the pulses were palpable and regarded this as a failure of duty of care.”
[67]This was not an answer to the question.[68]In cross examination Dr Thurston accepted that you would not expect to be able to palpate the peripheral pulses in the legs in a patient who had suffered an arterial bleed that caused a loss of volume of the circulating blood volume; even if you could, you would not expect there to be a disparity in the pulses between the legs. It would only be if there was a problem with the blood supply to one of the legs caused by a vascular injury, that you might expect to find a difference between peripheral pulses, if you could palpate them.[69]In his oral evidence, Dr Thurston said this about the second assessment: “you are looking for a cause for the reduced power and numbness – arterial supply was one thing to investigate”.[70]He emphasised the need for an emergency clinician to remain “curious” about the cause of Mrs Shah’s unusual presentation and that palpation of the peripheral leg and foot pulses was a relevant test to perform to assess any disruption of the arterial supply to Mrs Shah’s right leg. He said that Dr. Thomas:
“should have been more curious than she was.”
For Dr Thomas to have undertaken an assessment of the peripheral leg and foot pulses as part of her second assessment of Mrs Shah would have been “wise” and consistent with the standard of a “good doctor.”[71]It was put to Dr. Thurston that, in the absence of any real signs or symptoms of an arterial problem, it was not mandatory to check the peripheral pulses to establish whether there was a difference between the two limbs, in particular in circumstances where the capillary refill time had been tested and found to be normal.[72]Dr Thurston replied:
“It was not mandatory but the wise doctor would have done it.”
[73]It was put to Dr. Thurston:
“There was no reason to believe that there would be a difference between the peripheral pulses?”
He responded:
“No, but it would be an experiment.”
[74]He said that he considered that the capillary refill time test was not a substitute for palpation of the peripheral pulses although he accepted that it was complimentary to it. When pressed, he accepted that in respect of checking the circulating blood volume, there was no difference between checking the capillary refill time and checking the peripheral pulses.[75]As to the possibilities of vascular injury, it was accepted by Dr Thurston in cross examination that common examples are:(i) orthopaedic injury;(ii) vascular disease; and,(iii) obvious haemorrhage, such as from a stab wound. None of those three were relevant in this case, and it would be unusual for there to be another problem with the blood supply to the limb. A spontaneous rupture of an artery would be extremely rare in a woman aged 37. Dr Thurston told me that there is only one similar recorded case in the world wide English language literature. Mrs Shah’s account of feeling an “explosion” in her abdomen, he accepted was not suggestive of an arterial tear.[76]He accepted that presenting signs and symptoms of haemorrhage would be pain, pallor, and cold. None of these were present at the second assessment by which time power had returned to the right leg.[77]Mrs Shah’s signs and symptoms, known at the time of the second assessment, were put to Dr Thurston and he was asked:
“When all the features are taken together, it points away from a significant bleed?”
He replied: “Yes.”[78]He accepted it would be standard practice to involve the gynaecology department in the care of a post partum patient.[79]He was asked:
“If there was a bleed, it is likely that it would be an obstetric post partum bleed, and in the circumstances Dr. Thomas was entitled to be reassured by the findings of the obstetric team?”
He replied: “Yes.”[80]Another exchange in cross examination was as follows:
“(Q) There is nothing to point Dr. Thomas to a vascular injury? (A) No, but still have to test leg symptoms.”
[81]In the course of his re-examination he said that a failure to carry out an assessment of the peripheral leg and foot pulses in the course of that assessment was incompetent.[82]I turn to the evidence of Dr Campbell – Hewson.[83]His evidence was that in an Accident and Emergency Unit it would not be standard practice for the peripheral pulses of a patient diagnosed to be suffering from undifferentiated shock to be palpated. Required first was assessment and stabilisation of the airways, breathing and circulation. As Mrs Shah’s leg symptoms appeared neurological in origin and resolved, there was no indication for that test on the second assessment. He said that shock due to arterial haemorrhage was extremely unlikely, and sepsis, postpartum haemorrhage of obstetric origin, and venous thrombo-embolic disease were all considerably more likely. He noted that in any event, it was unlikely that examining the peripheral pulses would have assisted in a patient in shock whose pulses are unlikely to have been palpable, and unlikely that any discrepancy would have led to a referral to a surgeon. At the time of Dr Thomas’s second assessment the Claimant’s condition had improved and stabilised, there was no evidence of a bleed or a compromise of the arterial flow to the limb, and it had been arranged that further investigations would be carried out by the specialist team.[84]Dr. Campbell-Hewson repeatedly made the point that to test the peripheral pulses in these circumstances simply was no part of standard emergency medicine.

FINDING ON BREACH OF DUTY

[85]I prefer the evidence of Dr Campbell – Hewson to that of Dr Thurston on the issue of whether or not Dr Thomas should, in the course of her second assessment of Mrs Shah, have palpated the peripheral pulses in her legs. Whilst the matter is not determinative of the question just answered, as a preliminary, I would note that I found Dr Campbell – Hewson’s present experience to report authoritatively in this case generally more impressive than that of Dr Thurston. In particular, I would note that Dr Thurston has now been retired from consultant practice since 2007.[86]I was not impressed by Dr Thurston’s failure directly to answer questions put to him in the joint meeting and in cross examination. On occasions, in my judgment he wrongly sought to avoid proper questions put to him by questioning their relevance, or seeking refuge in the fact that he was not qualified to answer them because he was not a vascular surgeon. In the light of the fact that he claimed familiarity with the Bolam test I found his references, already noted to the “curious” and the “good,” doctor and the pulse tests being “not mandatory but wise,” unhelpful.[87]In his original report Dr Thurston asserted that sepsis could not be present in the absence of a temperature. In cross examination he accepted that was an error. I would characterise it as a basic error. Also in cross examination, he accepted that he had recently altered his position on the palpability of the peripheral pulses and the likely need for a clinician palpating the peripheral pulses to work up the leg to find a pulse. These errors were damaging to Dr Thurston’s status as an expert witness.[88]By comparison, with Dr Thurston I found Dr Campbell-Hewson’s evidence to be authoritative, clear, open and helpful, and the criticism levelled at his evidence unpersuasive.[89]I found his analysis of why the care given to Mrs Shah by Dr Thomas was within the standard set by the Bolam test persuasive.[90]The initial management of Mrs Shah by Dr Thomas established the history and the fact that she was in shock, and sought to resolve that shock by the administration of intravenous fluids. That initial assessment is not, and cannot, sensibly be criticised. This management was apparently successful as Mrs Shah’s condition appeared to improve between the first and second assessments carried out by Dr Thomas, although the loss of power in Mrs Shah’s leg on the first assessment was unexplained. Dr Thurston accepted in questioning by me that the identification by a doctor of an abnormal sign or a symptom cannot always lead a doctor to a diagnosis.[91]At that assessment Mrs Shah was not apparently bleeding, on examination was warm and well perfused with a capillary refill time of less than 3 seconds in all limbs, her abdomen was soft and not tender with no distension, and blood pressure and pulses were reasonably stable, albeit, not normal. However, that derangement was consistent with sepsis, a very common post partum complication.[92]There was no reason for Dr Thomas to think that Mrs Shah had suffered a haemorrhage or that her arterial flow was compromised, considering the agreed evidence of the extreme rarity of spontaneous arterial haemorrhage. There was no reason for her to believe that palpating Mrs Shah’s peripheral pulses was a necessary test for her to perform or that the surgical team should be involved at that stage in the care of Mrs Shah.[93]Required after the second assessment was further stabilisation of Mrs Shah’s condition and an attempt to rule out some of the many potential causes of Mrs Shah’s shocked condition. Dr. Thomas’s involvement in that process was limited, in circumstances where, by the time she examined Mrs Shah for a second time, the patient was under the care of the Obstetric team. It is notable that even with that team’s additional specialist expertise, and involvement over a period of several hours, no criticism is made of their failure to palpate the peripheral pulses or involve a vascular surgeon.[94]I should deal briefly with other criticisms made of Dr Thomas during the course of the evidence, namely the alleged failures to test sensation in Mrs Shah’s leg, to investigate a suspected deep vein thrombosis, and her reliance on sepsis as a diagnosis. Parenthetically, I would note that none of these criticisms appeared in Dr Thurston’s report or were pleaded.[95]I turn to the question whether Dr Thomas should have tested for loss of sensation in Mrs Shah’s right leg at the second assessment in the light of her complaints at the first assessment of numbness in the leg. Relevant cross examination of Dr Thurston on this point was as follows:
“(Q) Be realistic, if a patient says that the leg feels normal again, it is not mandatory for an Accident and Emergency SHO to test anyway? (A) No, not mandatory, but a wise clinician would do. (Q) Dr. Thomas was entitled to be reassured? (A) She was entitled to be reassured.”
[96]In the light of that answer, I consider there is no substance in this point.[97]Dr Thomas said that deep vein thrombosis was not in the front of her mind when examining Mrs Shah. It was put to Dr Thurston, that if Dr Thomas’s account of her finding on examining Mrs Shah’s leg at the second assessment was accepted and the fact that a Doppler scan was being arranged by the obstetric team that Dr Thomas could not be criticised for not taking the possibility of a deep vein thrombosis in Mrs Shah’s case further, a proposition with which he agreed.[98]I accept Dr Thomas’s recorded finding on her second assessment on examining Mrs Shah’s leg, and in the light of Dr Thurston’s answer just noted, that area of criticism also falls away.[99]Finally, I consider there is no substance in Dr Thurston’s criticism of Dr Thomas for suggesting sepsis as a diagnosis of Mrs Shah’s condition. The evidence before me was that sepsis is a common cause of post partum shock. Dr Thurston accepted that he was wrong when he initially suggested that absence of temperature precluded such a diagnosis. It is notable that Dr Pop from the gynaecological team also made such a possible diagnosis.[100]It follows from the foregoing that I consider that the Claimant’s evidence does not establish a breach of duty by Dr Thomas in her care of Mrs Shah.

CAUSATION

[101]I turn now to the issue of causation.[102]In support of the case that if Dr Thomas had palpated Mr Shah’s peripheral pulses in her legs in the course of her second assessment, the outcome in this case would have been different, the Claimant relies on a combination of the evidence of Dr Thurston and Mr Baird.[103]Dr Thurston said that on a finding of weak or absent peripheral pulses in Mrs Shah’s right leg, Dr Thomas should have referred Mrs Shah to a senior member of the team for review, within about an hour. He would have expected the senior member of the team to ask the general surgeons in the hospital to see the Claimant, as Mr. Ashokkumar had done.[104]Mr. Baird says in his report that had Mrs Shah’s leg pulses been palpated: “…they would have been weak or absent and would have alerted them to the need for a surgeon to see Mrs. Shah”.[105]The Claimant relies on the fact that when the need for a surgical review, intra-abdominal investigations and emergency surgery was appreciated each of these steps was capable of being carried out expeditiously.[106]These are questions of fact rather than questions of expert evidence. The court is asked to speculate, in the absence of evidence as to what would have been done, by whom and when. although Mr Ashokkumar asked for a surgical review at about 12.30, it was only upon Mrs Shah’s sudden deterioration at 15.02 that urgent surgery was arranged, not because surgery was otherwise considered urgent.[107]In my judgment, the case that had Dr Thomas palpated Mrs Shah’s peripheral pulses in the course of her second assessment life saving surgery would have been performed on Mrs Shah before 14.00 is highly speculative and is certainly not established on the evidence before me.[108]In my judgment the claim fails both on the issue of breach of duty and causation.[109]However, as I have heard the evidence and submissions upon the issue of quantum, I should make findings upon and a determination of, the issue of quantum in this case.

QUANTUM

[110]It is uncontroversial that the court is required to assess the sum of damages that reasonably reflects the loss, and does not overcompensate (see for example Bordin v St Mary’s NHS Trust [2000] Lloyd’s Med 287). Where care is gratuitously given there is to be a reduction on commercial care rates. (See Evans v Pontypridd Roofing Limited [2002] PIQR Q5.) It is usually 25% (See e.g. Whiten v St George’s Healthcare NHS Trust [2011] EWHC 2066 QB) but ranges, from case to case, between 20% and 33%.[111]In this case I see no reason to depart from the common discount of 25%.[112]Agreed, subject to liability are the following items of claim: £ General damages: 1,000 Funeral expenses 7,000 Bereavement award 12,027

Intangible benefits 22,750

[113]Disputed are the past and future service dependencies.[114]In respect of such past losses the claim is for £209,700.48. The Defendant admits the sum of £78,869. In respect of such future losses, the claim is for £694,435.09. The Defendant admits the sum of £154,460.[115]The parties have instructed care experts to report. By a report dated March 2013 Ms Campbell has reported for the Claimant by a report dated March 2013, and Ms Wills has reported for the Defendant by a report dated 14 June 2013. The experts have produced a joint statement. In addition, to that evidence the Claimant relies on the contents of his statements of 17 September 2011, 25 March 2011 and 27 February 2013 and statement of his parents-in-law dated 17 September 2011.[116]Ms Campbell’s report and the Claimant’s claim is based on the proposition that the calculation of the loss of services dependency caused by the death of Mrs Shah should be based on an assessment of the time, care and support which she would have provided to her husband and children had she survived, although that does not equate to, but probably considerably exceeds the time, care and support which has been provided by others since her death.[117]The evidence is that at the time of her death Mrs Shah was a devoted mother and housewife who did not have any external support in providing for the needs of her husband and children. The family did not employ cleaners, tutors for the children to help with homework, rely on family or friends to look after the children, or send the elder children to after –school clubs. Had she survived her acute vascular injury in January 2010, once she was recovered she would have returned to her role as a mother and wife. I accept, on the evidence, that is probable that she would have remained at home to care for her family.[118]The Claimant asserts that it would be wrong for the court to limit the dependency afforded by Mrs Shah to her children to the hours when she would have been engaged in specific activities with, or for, their benefit. Considering the youth of her children, much of the loss of dependency which they have suffered relates to the supervisory/ on-call role which Mrs Shah fulfilled and even after their children became independent the Claimant would have remained dependent on his wife for the remainder of his life and therefore the overall period of dependency should be based on the Claimant’s life expectancy.[119]With the consent of his parents- in-law the Claimant remarried in December 2010. The claimant’s present wife, cannot drive and so cannot take the children to and from school. She is also unable to help with the children’s homework and there is therefore a need for help from others to meet those needs.[120]The Defendant contends that calculating the claim on the basis of the services that Mrs Shah would have provided but for her death is wrong in principal and leads to overcompensation as warned against in Bordin, as demonstrated by the considerable difference between the sum claimed and the Defendant’s riposte to that claim. The Defendant contends that the authorities lend no support for an award at, or approaching, the level sought by the Claimant in respect of these aspects of the claim, and indeed none has been produced by the Claimant.[121]In respect of services, as to which there is evidence of those having been bought by the Claimant, the Defendant takes issue with the calculation of past losses at rates of £9 for a nanny and £10 an hour for cleaning; such evidence as there is suggests that payments at lesser rates have been made e.g. a cleaner has been paid £6 per hour.[122]The Defendant takes issue with the claim for future losses being calculated on the basis of a full commercial care package, initially totalling £84,758.90 on the bald assertion of Ms Campbell that she believed that it was reasonable to allow future care costs at commercial rates as it cannot be assumed that care in the future will always be provided by the family.[123]Ms Campbell did not visit the Claimant in his home but interviewed him on the telephone for about 40 minutes. Her report was notable for having no references to direct evidence from |the Claimant as to issues of care and she has produced no contemporaneous notes of that interview. She has not attempted to analyse in any detail the services required to replace those that would have been provided by Mrs Shah, even when invited to do so in the joint meeting. By way of comparison, Ms Wills undertook a careful such analysis in her report after interviewing Mr Shah in his home.[124]I accept that Mr Shah is a hard working man who, at the time of the events in question, had taken time off from his work as a consultant/ freelance electronics engineer to cover the period of the birth of his fourth child. He was likely to return to contract work with the result being that he would probably have spent much of the working week away from home. I accept that Mr Shah undertook charity work for part of Sunday and would also have to travel back to the location of his contract work and so even at weekends Mrs Shah would have been responsible for the majority of the childcare.[125]Ms Campbell relies on specific rates applicable to the different roles which Mrs Shah would have had to fulfil namely maternity nanny, nanny, and housekeeper. Ms Wills relies upon the ASHE rate for Childcare and Related Personal Services and Home Help rate for domestic chores. Both experts recognise that some assistance with childcare would inevitably have been provided by Mr Shah and Mrs Shah’s parents.[126]Generally, I preferred the approach and evidence of Ms Wills. I agree with the Defendant that the number of hours claimed by the Claimant per week is excessive, both generally and in particular in respect of the claim for overnight care.[127]In cases such as this it is now familiar for experts to produce detailed calculations of the kind placed before me in this case by both experts. Such calculations are most helpful to the court as illustrations of the working out of a particular detailed view of the future. I am broadly in agreement with the approach taken by Ms Wills in calculating the past and future loss claims and reject the approach taken by Ms Campbell. However, considering the close knit nature of this family and Mrs Shah’s centrality to its care I consider Ms Wills calculations a little too conservative to compensate her dependents in this case. I will not attempt to give false certainty to my assessment of future dependency costs by fine alternative contingency calculations but will modify the Defendant’s by a percentage uplift to reflect my view. I consider that Ms Wills calculations, enhanced by 15% would represent, as best as I can assess on the evidence before me, the cost of Mrs Shah’s dependents care needs, past and future.[128]My calculations and award (rounding all figures to the nearest £) are as follows: Past losses Period One 28.01.10 – 11.03.10 I accept that for about half this period Mrs Shah would, in any event, have been incapacitated by reason of the surgery she would have had to undergo to repair her arterial bleed, so only allow the loss for half the period, namely 3 weeks. £4,010 x 115% x 75% x 50% = £1,729 Period Two 12.03.10 – 01.12.13 £96,709.92 x 115% x 75% = £83,412 I allow the following further past dependency losses as follows: Past cleaning costs £8,393 Taxi expenses £600 Paid to other parents for assistance £1,175 Total for past losses £95,309 Future loss of dependency To September 2018 £17,307.42 x 115% x 75% = £14,928 + £1,872 = £16,800 x3.95 = £66,360 From September 2018 to September 2020 £12,194.52 x 115% x 75% = £10,518 + £1,872 = £12,390 x 1.83 = £22,674 From September 2020 to September 2026 £9,581.26 x 115% x 75% = £8,264 + £1,872 = £10,135 x 4.03 = £40,847 From September 2026 to September 2028 £3,805.62 x 115% x 75% = £3,282 + £624 = £3,906 x 1.3 = £5,078 From September 2028 £1,892 x 115% x 75% = £1,632 + £624 = £2,256 x 10.99 = £24,792 Total of future dependency loss £159,751[129]That completes my quantification of this claim.[130]For the reasons already given, this claim is dismissed.