Brock & Anor v Northampton General Hospital NHS Trust & Anor [2014] EWHC 4244 (QB)

Case No HQ12X00414[2014] EWHC 4244 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12 December 2014
Before
HIS HONOUR JUDGE YELTON(SITTING AS A JUDGE OF THE HIGH COURT)
Between
BRIAN BROCK and TERRY BROCKClaimantsNORTHAMPTON GENERAL HOSPITALDefendantsNHS TRUSTDefendantUNIVERSITY HOSPITAL BIRMINGHAM NHS FOUNDATION TRUSTDefendant
John de Bono QC and Simon Cridland (instructed by Messrs Fieldfisher) for ClaimantsCaroline Harrison QC and Andrew Bershadski(instructed by Messrs Bevan Brittan, Birmingham) for DefendantsHearing Hearing dates: 2-9 December 2014
JudgmentH.H.J. YELTON :
[1]I have before me a claim brought by Mr. B. Brock and his wife Mrs. T.M. Brock against Northampton General Hospital NHS Trust and University Hospital Birmingham NHS Foundation Trust.[2]No one hearing this case can have anything but sympathy for the claimants but I must decide it as a matter of law.[3]The facts are less in dispute than at first sight appeared and also developments during the case have altered the way in which the claimants put parts of their case and made it simpler in one respect.[4]I am asked at this stage to decide only issues of liability.[5]The case arises from the sad death of Rachel Maria Bradshaw, the daughter of the claimants, at Birmingham, on 6th February 2009.[6]The claimants bring a claim on behalf of her estate and a further claim under the Fatal Accidents Act on behalf of Rachel’s daughter.[7]Rachel (as I shall call her) was born on 17th February 1990 and was throughout her life a healthy girl. She was given the surname Bradshaw because her parents were not married at the time of her birth but she was brought up by them in a close family. They live in Northampton.[8]When she was just 17, Rachel gave birth to her daughter Kyla Rose Connie Bradshaw, on 27th March 2007. By 2009 Rachel was in independent accommodation near her parents. Her older sister Kerry also lived nearby.[9]On 26th January 2009 Rachel’s partner left her property and indicated that they had finally broken up. They had been living together for some of the time prior to that.[10]On the evening of 31st January 2009 Rachel went out with Kerry. She drank a considerable amount, probably about 15 units, of alcohol. She was not someone who drank frequently or to excess. Her sister left her a short distance from her home at about 1.15 a.m. on Sunday 1st February 2009. At 1.37 a.m., i.e. very shortly afterwards, Rachel texted her to say that she could not cope. Kerry phoned her and Rachel told her that she had just taken 14 tablets of paracetamol. It appears that she was reacting to the break up with her partner but she appreciated immediately that she did not want to kill herself. She had no history of self harm or the like.[11]The claimants were called and went to the house. They were advised to take Rachel to A & E at Northampton General Hospital and they were seen there at 2.22 a.m.[12]On the evidence I have heard from a number of eminent experts it is clear that paracetamol poisoning is very frequent in this country: death from it is however unusual and is almost always caused by necrosis of the liver.[13]It is equally clear that although Rachel had taken an overdose she had not ingested anywhere near the amount which would normally be expected to cause liver damage, still less to kill her.[14]It is also common ground that the proper procedure is to take blood samples at about 4 hours after the ingestion. In this case, perhaps unusually, the time when the overdose was taken was known very exactly, namely between about 1.20 and 1.35 a.m. The reason for delaying the taking of samples until 4 hours after the dose is taken is so that the paracetamol can be absorbed into the blood. That was absolutely standard practice.[15]The sample was collected at 5.40 a.m.: although one note indicates it may have been taken as early as 5, it seems to me on the balance of probabilities to have been taken about 4 hours after the overdose and it is in any event common ground that the exact time does not matter.[16]It is also agreed that in appropriate cases an antidote to paracetamol can be given: this is NAC (N-acetyl cysteine). The antidote was as at 2009 not given in all cases in this country and was not given to Rachel at that time.[17]It was at that time and indeed subsequently the practice in taking samples to obtain the level of paracetamol in the blood. In Rachel’s case this was 103 mg/L.[18]This was above the level at which at that time NAC was given to those in a high risk category (100) but well below the level at which NAC was given to everyone (200).[19]These levels were well known and applied generally and were shown (with times) on graphs which were produced by Toxbase, a database incorporating expertise which was available nationally.[20]Rachel did not appear to be in any high risk category- these include those on anticonvulsants, alcoholics, and the malnourished. There is some suggestion that she may not have been eating as well as normally after the break up, but Prof Sir Ian Gilmore, an eminent specialist called by the claimants, thought that in all probability what subsequently happened was caused by Rachel’s genetic make up rather than by any such matter.[21]It is not said that Northampton was negligent in their treatment of Rachel in the early hours. The doctor who saw her, Dr. J. Shah, was junior but apparently conscientious. She recorded that if Rachel suffered abdominal pains or felt unwell she should return and in any event should have blood tests taken in two days.[22]Rachel was not in fact discharged until about 11.20 a.m.[23]Mr. Brock rang A & E and was advised to ring the Nenedoc out of hours service, it being of course Sunday. At 12.40 p.m. Nenedoc were rung and the receptionist was told that Rachel had “severe stomach and back pain”. At 12.44 Rachel spoke to the triage doctor and was advised to come in. At that time the Out of Hours Clinic was next to Northampton General Hospital and she went there.[24]The doctor she saw was Dr. Bilal Attique. At that time he was a partner in a GP practice in the town but he also took shifts at the Out of Hours Centre. Although a statement from him, prepared when he was a defendant in the case (the claim against him having later been discontinued) was in the hands of the claimants’ solicitors, I called him so that both parties could cross-examine him.[25]Dr. Attique made a contemporaneous note of the consultation with Rachel. This is clearly of particular importance, not least because the lapse of time since then has been so great that he obviously found it difficult to recall the circumstances.[26]The important part of the note is as follows:
“discharged from A & E this a.m. after impulsive overdose…also stayed for several hours and had bloods done and then sent home to see own GP for f[ollow] u[p], now c[omplaining] o[f] aching all over and also mild stomach cramps and a generalised all over back discomfort, breathing ok no s[hortage] o[f] b[reath], no tingling in arms.”
Although not recorded, it is not said that she had been vomiting at that time.[27]Dr. Attique spoke to Rachel who told him the number of tablets she had taken. He appears to have made similar enquiries to those made earlier of her in A & E.[28]Dr. Attique then examined her and made a note of that. He considered that there might be a urinary tract infection but Rachel could not produce a sample. He found the complaints being made were of a non-specific nature rather than of vomiting/nausea as might be expected in the event of paracetamol poisoning and he did not find there to be severe pain.[29]Dr. Attique next went through to A & E and then returned to Rachel. I shall return to what I happened on his visit in a moment. There is no doubt however that he came back with the information that the paracetamol/blood level had been 103.[30]The claimants’ case relies upon the staff in A & E being negligent during that visit by Dr. Attique: it is not now said that he himself was negligent. He recorded his diagnosis as “Generalised aching after overdose of paracetamol in morning- no systemic findings”. He recorded also that she was to come back if there were any concerns.[31]Rachel’s father went to see her again on Monday 2 February 2009. He says that she said she had been sick: unfortunately this was not immediately reported to the medical authorities. He saw her again the following morning when she said that she felt better. However at 5.45 p.m. that day he was phoned by Kerry, who said that Rachel was not at all well. He went to her house and found her barely conscious and also saw she had brought up dark coloured vomit. An ambulance was called and she was taken back to Northampton General Hospital.[32]Rachel was seen at the hospital at 7.25 p.m. on Tuesday 3rd February. It was clear to all when she got there that she was very ill indeed. She had severe liver failure with vomiting, abdominal pain and breathlessness and had not passed urine. Tests showed that the various results were massively abnormal, particularly her liver function and her blood acidity.[33]It was clear to those dealing with her that day that she needed a liver transplant to have any chance of survival. As a result she was transferred to the Queen Elizabeth Hospital in Birmingham, which has expertise in that field. During the evening of Wednesday 4th February 2009 she was listed for emergency liver transplant.[34]One of the other problems was that, as a consequence of the liver failure, Rachel developed high pressure in the brain. I was told in the course of the case that that is a particular problem affecting young people with liver failure, and particularly young women. In order to deal with that, an intracranial pressure monitoring bolt was inserted. This was undoubtedly a proper procedure at that time. Regrettably however the bolt, which is in fact externally a piece of metal rather like an aerial, as described by Mr. Brock, was placed too far into the brain.[35]That was undoubtedly negligent and it is extremely regrettable that in this case the defendants did not admit that failure until mid November 2014, i.e. more than 5 years after the events in question.[36]As a consequence of the way in which the bolt was inserted, Rachel suffered a brain haemorrhage and died on Friday 6th February 2009.[37]However it is now common ground that she would have died in any event shortly thereafter (within a few days) because, although she was on very high priority for a liver transplant, there was in fact no liver available within the time scales required, which were very short as a result of her extremely severe condition.[38]So far as the defendants are concerned, it is denied that Northampton was negligent; it is admitted that Birmingham was negligent but denied that as a result of that Rachel’s estate suffered any loss beyond the nominal, and that is accepted by the claimants. The action in relation to the estate and on behalf of the dependant was discontinued against Birmingham by order dated 18 November 2013.[39]However in addition to the claim by the claimants in a representative capacity, they each have a claim for damages for “nervous shock”. After the evidence had been called, Mr. de Bono QC, their counsel, indicated that that claim was being pursued only against Birmingham and he did not seek a finding against Northampton.[40]It can thus be seen that there are a number of separate but allied issues which I have to decide, namely(a) were Northampton negligent and(b) if they were negligent, did that negligence cause the death of Rachel, then(c) did Birmingham’s admitted negligence cause the claimants or either of them to suffer injuries for which they can recover damages.[41]The background to what occurred in this case has to be seen against the way in which paracetamol poisoning was dealt with at the time. Procedures have altered since, as a direct result of what occurred in this case.[42]On the expert evidence which I heard, it is clear as I have already said, that paracetamol poisoning occurs very frequently. It is equally common ground that administration of NAC within 8 hours of the overdose, i.e. in this case by 9.30 a.m. on the Sunday, is almost certain to offer an effective antidote to the paracetamol. Thereafter it may still be effective but its efficacy declines rapidly as time passes.[43]NAC was not then given to those who did not appear to be in danger: it would have been given to Rachel had the level in her blood been 200, instead of 103, or if she had a history of alcoholism or the like. It was the view of all the relevant experts that having drunk an excessive quantity of alcohol on an isolated occasion near in time to the ingestion of the paracetamol, as happened here, would be a protective factor for the liver rather than, as a layman might suppose, producing a more aggressive reaction.[44]It is common ground that what occurred subsequently, that is the very aggressive spread of damage to the liver of a healthy young woman who had taken an overdose, but not a high overdose, of paracetamol, was extremely unusual.[45]As I have already set out, the claimants do not assert that Rachel was treated negligently on her first visit to Northampton General Hospital: indeed it seems clear that those who saw her there followed carefully the relevant protocol in place at the time.[46]Nor is it said that she was treated negligently by Northampton when she returned on her second visit on Tuesday, by which time she was clearly very ill indeed. It may be that staff could have been more communicative with the family but on the other hand they were all very obviously in a state of considerable distress at that time.[47]The claimants’ case against Northampton is based on the proposition that when Dr. Attique saw Rachel at Sunday lunch time he sought advice on her management from the A & E team.[48]There are grave difficulties in relation to this, not least being Dr. Attique’s own perfectly understandable inability to remember the details of what occurred but also the fact that apparently no relevant medical employee of the first defendants can be identified, still less recall what occurred.[49]The joint opinion of the A & E consultants in their agreed statement is as follows: “Both experts are of the opinion that if the court finds that Dr. Attique told the A & E doctor(s) about the circumstances of Rachel’s attendance (i.e. her condition and his findings) and sought advice on management there would have been a duty of care on the A & E doctor. Both experts agree that if Dr. Attique simply requested information about Rachel’s blood levels during the night … the A & E doctor(s) would not have had a duty of care”.[50]While I am of course assisted by those expressions of opinion, there are problems with the claimants’ factual case. There is no doubt that on that occasion Rachel remained Dr. Attique’s patient- he said so himself in oral evidence. The A & E staff did not see her nor examine her.[51]The claimants’ case in my judgment comes perilously close to asserting that Dr. Attique should have referred Rachel to A & E, whereas they have abandoned any claim against him personally.[52]In trying to make findings about events which took place so long ago, it is important to look first at any records made at or near the time. Dr. Attique made a contemporaneous note to this effect: “I went to A & E and spoke to d[octo]rs and also checked p[atien]t results”.[53]Dr. Attique was asked to write to the Coroner and did so at quite short notice, without any input from lawyers, about 14 weeks after the events in question. He said: “In view of the non-specific aching symptoms and cramps in her stomach I decided to go to the Accident & Emergency Department where I spoke to the doctors who looked after her and just to make sure that they were happy with everything and also to make sure that the blood results were normal. After speaking to the staff and doctors and checking the computer screen as well it was confirmed that all the blood tests were normal and her paracetamol levels were 103, which was in the no treatment level as well”.[54]I agree with the submission of Miss Harrison QC, for the defendants, that the subsequent statements of Dr. Attique and indeed his oral evidence to the coroner, did not suggest that he had referred Rachel for advice or for “a management plan” as it was put by Mr de Bono in his closing note.[55]The defence put in by solicitors on his behalf in the action brought against him, signed by him with a statement of truth, positively asserts that he attended A & E but did not take advice. In his oral evidence Dr. Attique said that he could have referred Rachel to A & E or ordered blood tests but neither course appeared appropriate.[56]It is clear that Dr. Attique wanted to check the level of paracetamol which had been found in the blood. Investigations appear to have shown that the screen was not accessed at that time, and since he clearly did obtain the detail of the level it follows that he must either have seen Rachel’s notes or spoken to one of the doctors who had seen her; the latter is his own recollection.[57]I accept what he said in oral evidence, namely that while it was easy for him to walk into A & E as it was so close, he had to identify himself. He must have told the staff there that Rachel had reattended, otherwise his enquiries would make no sense.[58]I have thought about this central point in the case carefully and re-read my notes of Dr. Attique’s oral evidence as well as his contemporaneous notes and his earlier statements.[59]I am not satisfied on the balance of probabilities that he asked the A & E doctors for advice on management of his patient. I am satisfied only that he asked for and was given details of her paracetamol blood levels and that he looked at the chart.[60]It seems to me that the problem is that at that time Dr. Attique as well as other medically qualified staff thought that the levels produced 4 hours after ingestion were almost conclusive in relation to treatment. This case shows that they were not, but it is easy to approach it with the inestimable benefit of hindsight.[61]It follows that I do not agree with Mr de Bono’s submissions to the effect that the contemporaneous note or the letter to the coroner indicate that Dr. Attique was asking for or being given advice by the A & E doctors on Rachel’s future management. It seems to me that they are equally consistent with an enquiry as to the level, which Dr. Attique considered as important, as had the A & E doctors earlier.[62]At its highest, I do not read the claimants’ case and the evidence of the expert called by them, Dr. Rupert Evans, to advance the proposition that once those in A & E knew that Rachel had re-presented (as they clearly did) they were then under a duty to intervene and to ensure that she again had blood tests.[63]Strictly speaking having come to that conclusion I do not need to consider what would have happened had A & E taken over her care at that time. However it is proper to deal with the issue.[64]It is common ground that NAC is almost universally effective if given within 8 hours. It is equally common ground that it can be effective taken after 8 hours- the sooner the better- and that in any event it can have a different but beneficial effect even if necrosis of the liver has started. Rachel was given NAC but only after being readmitted to NGH on Tuesday 3rd February.[65]It is clearly extremely difficult (as Prof Gilmore said in the witness box) to fix upon a time at which on the balance of probabilities a patient is unlikely to live even after receiving NAC.[66]He and Dr. M.H. Davies, the defendants’ expert on gastroenterology and hepatology, agreed in their joint statement of 13th October 2014 that(a) where the antidote is given after 12 hours, [i.e. after 1.30 p.m.] the degree of liver damage increases rapidly (paragraph 14) and(b) on the balance of probabilities the deceased would not have survived if the antidote were administered more than 15 hours after the ingestion [i.e. after 4.30 p.m.] (paragraph 17).[67]That opinion is supported also by Professor R.E. Fermer, the toxicological expert called by the defendants, although I found some of his mathematical concepts difficult to follow. His counterpart, Mr. J.P. Thompson, was less ready to commit himself to a definite time.[68]Mr de Bono, despite that clear agreement between the hepatology experts, sought to argue that I should be careful to accept it. Professor Gilmore was clearly unhappy about taking any definite time, which was bound to have a degree of arbitrariness about it, but finally did not resile from what he had agreed.[69]Having listened to all the evidence and thought about it carefully, I am satisfied that on the balance of probabilities the antidote would have to have been administered by 4.30 in order that Rachel would have been more likely than not to be spared the need for a transplant.[70]There is a dispute between Dr. Evans, the expert on A & E instructed by the claimants, and Dr. G. Campbell Hewson, his counterpart instructed by the defendants, as to what would have happened had the A & E staff taken over management of Rachel after she had seen Dr. Attique.[71]It seems to me that Dr. Campbell Hewson’s view is unnecessarily pessimistic in relation to her theoretical progress had those circumstances occurred. It was well known that NAC should be administered as soon as possible even if the 8 hour point had been passed.[72]It is not easy to reconstruct what did not happen, but it seems to me that had A & E taken over the care of Rachel, they would have done so on the basis that she was, if not an emergency, at any rate in need of urgent investigation.[73]I do not accept Dr. Campbell Hewson’s view that in those circumstances it would have been reasonable not to take blood tests.[74]I prefer in that respect the views of Dr. Evans, namely that blood tests should have been taken quickly and that as a result of them it is likely that liver damage would have been seen and NAC administered. On the balance of probabilities it seems to me that that procedure would have been reached at about 4.30 p.m.: this would lead to further complications in relation to the burden of proof, but having reached the conclusions I have done earlier I shall pass over this issue.[75]It follows from my earlier findings that, not without regret, I cannot find that Northampton Health Authority were negligent and I therefore must dismiss the claim by the estate and that under the Fatal Accidents Act.[76]I now pass to the claims brought by Mr. and Mrs. Brock in their personal capacity. Very clearly, anyone who went though what they experienced in that week will never forget it and will be haunted by it. In their case it is made more difficult because they have taken on the care of Kyla, who has lived with them since her mother’s death.[77]This part of the case is of course affected by the claimants’ change of position, as expressed by Mr de Bono in his final submissions: that change renders irrelevant a great deal of the oral testimony of the psychiatric experts.[78]As is well known, the law imposes close restrictions on those who may bring so-called secondary claims for damages for nervous shock. In McLoughlin v O’Brien and others [1983] AC 410 the House of Lords found in favour of the plaintiff, who had been told of a serious accident involving members of her family, attended the hospital, was told there of the death of her daughter and saw the injuries suffered by others. It was held that if her psychiatric condition had been brought about by “nervous shock” as opposed to grief or sorrow, she could recover, because she had come across the aftermath of the accident so soon.[79]In the well known case of Alcock v Chief Constable of South Yorkshire Police [1991] 1 AC 310 it was held that where a claimant was not himself physically injured or at risk of physical injury he must show that his psychiatric illness was caused by “the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous systems” (per Lord Ackner at 401F).[80]The case upon which the claimants most rely is North Glamorgan NHS Trust v Walters [2003] PIQR P16. In that case the claimant’s small child had died after suffering an epileptic seizure in hospital: she had been with the child throughout. The Judge at first instance held that the court could regard the 36 hour period from the fit until the death as the horrifying event required to come within the principles set out in Alcock. His decision was upheld by the Court of Appeal, which made it clear that any such event cannot be regarded as beginning until the negligence has taken place.[81]The negligence of Birmingham did not occur until the bolt was inserted too deep. That was on the evening of Thursday 5th February 2009 and of course it was not apparent to the claimants at that time or for some considerable time thereafter that any error had been made.[82]Later that evening Mr. and Mrs. Brook saw Rachel and Mr. Brock remarks that the bolt was not what he expected. He says that he thought that Rachel’s tongue and face had slipped to the left but said nothing about it to his wife. Mrs. Brock says that Rachel looked as she had done before.[83]At about 9 p.m. Mr. and Mrs. Brock went to their rooms on site. At about 11.30 p.m. a nurse phoned to say that Rachel had deteriorated and would they like to come back to see her before her brain was scanned.[84]It is one of the fine distinctions which have been made in the cases that a telephone call giving bad news cannot found liability to secondary victims, whereas seeing someone can in appropriate cases. Mrs. Brock says that it was when that call was received that she realised that Rachel was indeed going to die.[85]Mr. Brock does not say that anything traumatic occurred when they saw Rachel at that time. However at 4 a.m., when Rachel returned from the scan, they were told that she had had bleeding on the brain and all was lost for her. They saw her. Shortly afterwards the life support machine was turned off, by which time Mrs. Brock, understandably, did not want to be present.[86]It is undoubtedly the case that the claimants had had a dreadful and distressing week. However the way in which the claim is now put on their behalf relies only on events from and including the telephone call at 11.30 p.m. on 5th February 2009: the call itself cannot found liability for the reasons set out.[87]The problem with the claimants’ case is that neither says that it was seeing Rachel after that call which caused their psychiatric illness. I listened carefully to the evidence of the two experts, Dr. M.E.J. Wise, instructed on behalf of the claimants, and Dr. A.M. Reveley, instructed on behalf of the defendants. Much of the cross-examination of Dr. Wise has been superseded by the claimants’ abandonment of their claim under this head against Northampton.[88]Dr. Wise took the view that Mr. Brock was suffering from post traumatic stress disorder, and his wife was suffering from a moderate depressive disorder. It is common ground that Mr. Brock had suffered from depression prior to the events with which I am concerned.[89]Dr. Reveley took the view that Mr. Brock was suffering from a major depressive disorder (persistent complex bereavement disorder) not least because she could not identify any precipitating event such as is required for post traumatic stress disorder. It is common ground that PTSD can be caused by reaction to a medical catastrophe suffered by a child, such as happened here, using catastrophe in the widest sense of the word. She took a similar view in relation to Mrs. Brock: it is common ground that, perhaps because of Mr. Brock’s pre-existing depression, he has been far worse affected by what has occurred.[90]Having listened carefully to both experts, who gave evidence at some considerable length, I am not satisfied that Mr. Brock is suffering from PTSD and I prefer Dr. Reveley’s diagnosis. It seems to me clear that both of the claimants are reacting to the untimely loss of their daughter, a loss which was not caused by one single event which is thereafter at the forefront of the patient’s mind, as Dr. Reveley said was her invariable experience with those suffering from PTSD.[91]That is not the end of the matter. A claimant in these circumstances does not have to suffer from PTSD, as opposed to any other psychiatric condition, in order to recover. This is made clear, if authority were needed for the proposition, by Vernon v Bosley [1997] PIQR P255, where it was said that a claimant can come within the relevant categories if he can show that any one of many psychiatric diagnoses was caused by his trauma.[92]It is absolutely clear however, on all the authorities, that the grief and sense of loss which almost every parent will suffer when a child dies is insufficient to found liability. There has to be a traumatic experience akin to witnessing an accident.[93]This did not, in my judgment, occur in this case. At the time when the Brocks saw Rachel with the bolt in her head, they did not know that there had been a medical catastrophe, such as would have been the case if, for example, she had collapsed in front of them after undergoing some procedure. All they could possibly rely on was seeing her at about the time that they were told that she was brain dead, and neither does say that that was a precipitating event.[94]In the circumstances, while I entirely accept that the claimants have both suffered psychiatric problems brought about by Rachel’s death, it seems to me that they cannot succeed in their action.[95]I agree with the observations of HH Judge Hawkesworth QC, sitting as a Deputy High Court Judge in Ward v Leeds Teaching Hospitals NHS Trust [2004] EWHC 2106 to the effect that “An event outside the range of human experience, sadly, does not it seems to me encompass the death of a loved one in hospital unless also accompanied by circumstances which were wholly exceptional in some way so as to shock or horrify”.[96]It does not seem to me that what the claimants observed was “wholly exceptional”, dreadful as it may have been.[97]I have purposely in this judgment not dealt with every piece of evidence which I have heard. In doing so, I have endeavoured to follow the guidance of the Court of Appeal to the effect that judgments should be as short as possible and should not descend into detail which in the event turns out to be irrelevant.