McCabe v Moore & Ors [2015] EWHC 260 (QB)

Case No HQ12X01244[2015] EWHC 260 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 11/02/2015
Before
SIR ROBERT NELSON
Between
SANDRA MCCABEClaimantDr MOOREDefendants(2) DR FISHERDefendant(3) DR HALLDefendant
Richard Partridge (instructed by Darbys Solicitors LLP) for ClaimantJane Mishcon (instructed by Nabarro LLP) for DefendantsHearing Hearing dates: 13 th– 20 th October 2014
JudgmentSir Robert Nelson :
[1]On 27 April 2009 the Claimant, then aged 57, suffered a stroke. This was caused by the condition of infective endocarditis from which the Claimant had been suffering, and which had remained undiagnosed. She claims that had the three Defendants, General Practitioners at the West Street Surgery, Chipping Norton, not acted negligently they would have considered infective endocarditis as a possible cause of her presentation, and would have investigated her appropriately and/or referred her to hospital immediately for investigation and treatment. Had this been done and the condition discovered, the Claimant contends that the stroke would have been avoided.[2]The essence of the Claimant’s case is that each Defendant failed to heed what he or she was told about the symptoms which should have been suggestive of infective endocarditis, or alternatively, that each failed to ask the appropriate questions to elicit such symptoms. The Defendants contend that no such symptoms were reported to them by the Claimant, nor were any such symptoms reasonably apparent, and no duty to ask any further questions than those that they asked, arose. There is a considerable factual dispute as to what account of her symptoms the Claimant gave to each of the Defendants and what symptoms she was suffering from, or was likely to have been suffering from on the occasion of each consultation.[3]I am asked to deal with the issues of liability and causation, damages having been agreed between the parties.

The background facts

[4]The Claimant is a married woman, the mother of four grown up children, and lives with her husband in Chipping Norton. She is a woman of great energy and determination. Prior to her health problems she worked as a teaching assistant, dinner lady, caretaker and cleaner at a school in Chipping Norton for 26 hours a week, and also did private cleaning work in the evenings. She was a member of a local running club and regularly used to run ten miles on a Sunday, 4 – 6 miles on a Tuesday and 3 – 4 miles on a Thursday. She took part in the London Marathon. She was also a keen swimmer and gave swimming lessons, and played badminton. She was also a committee member of the local League of Friends.[5]However in 2005 she was diagnosed as suffering from aortic valve disease and referred to the John Radcliffe Hospital. Her condition was managed until 11 August 2008 when her aortic valve was replaced with a biological tissue valve. Apart from the fact that the replacement valve started to narrow, the operation was successful and the Claimant was told that it would take her about 12 months to recover fully from the operation. She was able to return to work after about 6 months, though did not continue with the private cleaning or the swimming lessons. She returned to jogging in January 2009 when she felt she was recovering. She managed up to about 2 miles or so jogging and walking and kept this up even though she did not feel she was really improving.[6]From February through until her stroke on 27 April 2009 however the Claimant describes her condition as deteriorating. Her running stamina suddenly disappeared in February when she had to stop after running about 150 yards. Her muscles were pulling and felt as if they would just not work. She was forced to join the walkers in the running group rather than the runners. Her walking speed slowed, she experienced pain in her legs, particularly the left. She suffered hot flushes even though her menopause had ended some 8 years earlier and had to strip off her clothes to cool down. She sweated both day and night and her running partner, and friend, Catherine Sole said that she had told her that her night sweats caused her to change her pyjamas two or three times a night. The Claimant’s husband, Robert McCabe, said that she suffered severe sweats at night; they were very apparent and occasionally she had to change her night clothes.[7]The Claimant’s GP at the West Street Surgery was Dr Jane Pargeter who was a fellow member of the same running club as the Claimant and in whom the Claimant had confidence. She saw Dr Pargeter on 10 February 2009 and 3 March 2009. She did not know whether her difficulties with running had commenced before the February consultation but they had by 3 March 2009 and she thinks she would have raised this with Dr Pargeter. She accepts that she did not mention sweats or night sweats at that time. Dr Pargeter’s note refers to the Claimant wanting to lose a bit more weight and get fitter. The Claimant accepts that she would have told Dr Pargeter if anything was troubling her.[8]The Claimant’s evidence is that her condition worsened in March and her family and friends persuaded her that she could not wait for Dr Pargeter’s return from Australia.[9]By the end of March the Claimant said that she was suffering from leg pain, difficulty in walking, sweats as if she had the menopause, flu like symptoms and was feeling progressively unwell, a pattern which continued and worsened until the time of her stroke.[10]The Claimant’s account of the deterioration in her health was supported, subject to some inconsistencies, by her husband Robert McCabe, her daughter Philippa McCabe, her sister Doreen Wilson, and her friend Catherine Sole. The witnesses’ recollections as to when the Claimant’s health started to deteriorate and which problem emerged first were not identical, but all were clear that they started after Christmas 2008. Philippa McCabe noticed deterioration in her mother with inability to walk any distance, flu like symptoms and her complaining of hot flushes in January 2009 whereas the other witnesses thought the problems commenced in February 2009, as the Claimant herself said in evidence. Some thought that the leg pains came first, others that the sweats and hot flushes came first. Mr McCabe accepted that he was not clear as to the precise timing of the onset of symptoms though he thought it was about February 2009, the sweats being in early February before the leg pains. Doreen Wilson thought that the symptoms started in February and had noted that this was the time that the Claimant had become unwell in her diary. She thought that the sweats started a few weeks before the leg pain but both started by the end of February.[11]What these witnesses were clear about was the extent to which the Claimant became unwell and the progressive nature of the deterioration. Mr McCabe described his wife as someone who was always a “busy bee”; she was enormously involved in so many things. After her symptoms commenced she became weaker and lost enthusiasm for other activities. Indeed she became distressed by any form of physical activity. Initially he had thought that the leg pain was a reaction to starting to run again prematurely. He thought that the sweats were obviously the menopause but his wife told him that she had ceased the menopause many years before. He wondered about the heart valve but felt reassured by the visit to Dr Moore; they had done what had to be done by the visit to the doctors and Mrs McCabe had to soldier on. When she saw Dr Fisher and kidney stones were talked about Mr McCabe thought that they were home and dry. “You’ve got what they say” he thought with relief. He described his wife as very stubborn and obstinate and if she didn’t feel that something was life threatening she would try to continue as normal. Thus she carried on with her work, albeit with the help of her sister and using the car or being driven because of her difficulties in walking. Mr McCabe was so concerned about her health that he thought they were going to lose her.[12]Philippa McCabe described her mother’s condition of leg pain, sweats, flushes and general tiredness as being the complete opposite of what was normally the case. Furthermore her mother complained of leg pain which was unusual as she was normally completely stoic. Her leg pain became worse, her walking deteriorated and she became lethargic. Philippa McCabe felt that something was taking over her body. She said that by 6 April her mother was increasingly worse. She had never seen her look poorly before; she was very tired and walking was an issue. It was, Philippa McCabe said, obvious that something very drastic was going on.[13]Catherine Sole described the Claimant’s health deteriorating across April. The Claimant’s walking tolerance reduced to 20 yards before the pain in both legs became intolerable. Her family and friends persuaded her to go to see the GP which she did at the end of March. Catherine Sole also noted that the Claimant’s memory had become poor after the stroke so that she accompanied her to see doctors as she couldn’t always remember what the doctors had told her.[14]Doreen Wilson described the Claimant as struggling to walk. They belonged to a shared Thursday Club but the Claimant had lost her exercise tolerance and could not keep up. She continued to suffer menopause like symptoms and sweats. Her condition was worse across April when she appeared to be “just fading away”. She phoned Dr Pargeter on 28 April 2009 to describe to her the weeks of deterioration that the Claimant had suffered. She regarded all of the Claimant’s symptoms as being very worrying.

The Credibility of the Claimant

[15]The Defendants obtained surveillance evidence on the Claimant. It demonstrated, the Defendants contended that the Claimant was able to do more in her daily life after the stroke than she had been telling the examining doctors. The total claim put forward on her behalf amounted to about £1M in total. After the Defendants surveillance video evidence was served quantum was agreed in the sum of £150,000. The Defendants, in their written opening, sought to put the video evidence before the court on the basis that it was relevant to the issue of credibility, and hence liability, as well as on the issue of quantum. At the commencement of the trial I indicated that I considered such evidence was in principle relevant to the issue of credibility and could and should be viewed by the Judge if the Defendants decided to adduce it.[16]Jane Mishcon, counsel for the Defendants cross-examined the Claimant on the contents of the surveillance video without showing it to her or the court with the consent of the Claimant’s counsel. The Claimant explained that her ability to deal with daily life had indeed improved more than expected but this was because of the content of one of the medical reports which spelled out what her life would be like at 65, 70 and 80 on the then prognosis. When she read what it said would happen to her at 70 she said that she was not prepared to accept that, and didn’t want it, so she tried to get her confidence back. It was her courage which had made her improve, increase her confidence and, together with her painkillers, increased her mobility.[17]After hearing the Claimant give evidence the Defendants’ counsel decided not to request the court to view the video or put it to the Claimant. In her closing submissions, both written and oral Ms Mishcon abandoned any attack on the Claimant’s credibility and indicated that they were a very nice family doing their best to recollect when the symptoms began. Their recollection that severe and significant symptoms began in February 2009 was incorrect but it was not submitted that it was untruthful.[18]Having heard the Claimant and her family and friend give evidence I am entirely satisfied that the Defendants were correct to abandon any attack on the Claimant’s credibility or that of her witnesses. I formed the clear view that they were decent honest people seeking to give the court as accurate an account of what had happened as their recollections would permit. The Consultations Dr Moore – 30 March 2009

The Consultations

[19]The Claimant was not a regular patient of Dr Moore; she had seen him before as a patient but not for a long time. They did know each other however because Mrs McCabe was a committee member of the League of Friends Committee at the Community Hospital in Chipping Norton and Dr Moore was a Medical Member of that Committee.[20]The Claimant’s recollection is that they spent some time talking about the League of Friends. She was feeling very ill by the end of March and recalls telling him that she found it difficult to walk and to run and had pain in her legs. She told him that she was having sweats as if it was the menopause again and also had flu like symptoms. Dr Moore knew that she was a runner and asked about the pain. She tried to explain that it was not a running pain nor a running injury.[21]Dr Moore’s notes read as follows:
“30.3.2009 West St. Surgery Dr Jonathan Moore First E: Leg Pain S: Odd pain which started as shooting pain in L thigh down to foot and is now a more localised soreness over shin, no clear cause and lasted only 24 hours. Rx: Naproxen Tablets 250 mg P: Trial of NSAIDs, W & S, review INB”
[22]Dr Moore’s evidence was that the Claimant made no complaint to him of any symptoms other than those relating to her leg. He said that he did not recall her making any reference to the menopause and did not know where in such a consultation she would have brought in such a reference. As far as he could recollect in the flow of conversation it did not happen. Had such symptoms been mentioned he would have had to have asked a lot more questions to clarify what she was saying as he was aware of the fact that sweating was a sign of infective endocarditis in someone with an artificial valve. His memory however was that she talked merely about leg pain. As far as he could hear the Claimant was able to mount the steps to his room without difficulty.[23]Mr McCabe said that he spoke to his wife after her visit to Dr Moore and quizzed her about what had happened. She said that she had mentioned night sweats to Dr Moore and her legs and that Dr Moore had told her it was to do with her running and that she was probably over doing the exercise. Philippa McCabe however said that her mother told her that all she told Dr Moore about was her leg pain as did Catherine Sole.[24]In his witness statement and in his evidence Dr Moore said that he considered that the Claimant’s leg pain, in so far as the shooting pain down to the foot was concerned, was sciatica, although he had made no reference to this in his note. It is also inconsistent with his description of the pain being “odd” and having “no clear cause” though he explained that in evidence as relating solely to the localised soreness over the shin. Dr Barraclough, the Defendant’s GP expert said that he too thought that the shooting pain was sciatic but did not state that in his report. Dr McCarthy the Claimant’s GP expert, said that the entry in the notes was not consistent with sciatica.[25]On 18 August 2009 a Significant Event Meeting took place at the Defendant’s surgery. Dr Pargeter, Dr Moore and Dr Hall were amongst those present. Such meetings are held every six to eight weeks at the practice to discuss particular patients. Mrs McCabe’s case was discussed. Her leg pains were described as “peculiar” and it was felt in retrospect, i.e. with hindsight, that many of her symptoms from January had been embolic phenomena. The action point was for doctors to consider diagnosis of sub acute bacterial endocarditis in any patients with valve replacements.[26]Dr Fisher – 6 April 2009 The Claimant was shopping with Catherine Sole in Cheltenham on 6 April 2009 when she experienced a sudden and severe pain. The shopping trip had to be abandoned and the Claimant went home. Catherine Sole telephoned Philippa McCabe and said that she felt that her mother needed a visit from the GP. Philippa McCabe therefore called the reception at West Street Surgery. Dr Fisher was as a consequence given a message to ring Mrs McCabe which he did. His note of that telephone conversation is as follows:- “6.4.2009 West St. Surgery Dr Neil Fisher First E: Telephone encounter S: Pt has hx of renal stones. Since today onset of R flank pain. No dysuria / haematuria. No diarrhoea Vomited once this afternoon – no blood. Able to keep small amounts of water down. Unable to make it in to be seen. P: I will go and see …….”[27]Dr Fisher said in evidence that Mrs McCabe had told him that she had felt a sudden onset of pain in her flank and had vomited once due to the pain. She had volunteered that she had a past history of renal stones and informed him that her symptoms felt like the previous episodes of renal colic. He asked her questions about her kidney and bladder symptoms and noted there was no dysuria and no haematuria, nor was there blood in the vomit. Because Mrs McCabe was in too much pain to come to the surgery Dr Fisher went to see her at her home at about 6.30pm. His notes of that visit on the evening of 6 April 2009, which had to be drawn up later, are as follows:- “8.4.2009 West St. Surgery Dr Neil Fisher First E: Home visit S: Further to above written in retrospect. When visited on evening of 6.4.9 pt now able to eat and drink with no further vomiting, pain had settled largely. Able to pass urine, no haematuria/ Dysuria. Note has naproxen for OA. No GI/ chest SX O: Apyrexial, p 76/min, abdo SNT, no masses felt. Well hydrated, chest clear Rx: Ciproflaxcin Tablets 500mg P: Urine dip – tr leu and blood. Daughter to drop MSU into practice tomorrow. Imp - ?? renal stone therefore to continue naproxen and add in 10/7 Cipro, likely need urol review as second episode Will d-w snrs. Explained red light sx 2 pt and she will call if further concerns”[28]The evidence of Philippa McCabe and Doreen Wilson, who were present at the house when Dr Fisher made his home visit indicate that the Claimant was very unwell that day. In evidence the Claimant said that she was able to remember nothing about the consultation at her home as she was in too much pain. She was too ill to say what she told Dr Fisher she was not able to recall the conversation - “not a word”. When referred to paragraph 15 of her witness statement she said she did remember telling the GP about her sweats and legs but she thought she had got appendicitis or a kidney stone. Neither Philippa McCabe, nor Doreen Wilson heard the Claimant tell Dr Fisher about leg pain. Philippa McCabe did recall her mother referring to having flushes, but not night sweats, being tired and feeling poorly whereas Doreen Wilson did not recall either night sweats or menopausal symptoms being mentioned.[29]Dr Fisher said that the Claimant did not tell him about having hot flushes or flu like symptoms nor about leg pains. The complaint was about a very sudden onset of pain in the flank. Had he however been given a history of feeling flushed or hot flushes he would have been concerned. He would have asked about the duration of the flushes. If he had been told they had lasted for months his response would have depended upon how she was in herself; if she was very well he would have ordered blood tests because endocarditis would have been high on the list. If however she was unwell he would have ordered an acute medical admission. If told that there had been flushes and that they had lasted a long time, he would have asked further questions.[30]The Claimant had in fact suffered from renal colic in October 2005 and on 12 August 2009 it was noted in the Urology Department at the John Radcliffe Hospital that a 2 mm stone was found in her bladder which was thought to represent a recently passed stone. It is not clear whether the Claimant’s symptoms on 6 April were due to her renal colic or were embolic phenomena related to her endocarditis.[31]Mr McCabe describes the Claimant as being very ill on the night of 6 April 2009. She was having hot flushes and severe sweats with a great deal of leg pain – real pain in her legs.

Dr Hall – 14 April 2009

[32]By this date the Claimant states that she was suffering severe pain and difficulty with both her legs and sweats and was feeling unwell. Mr McCabe describes an enormous rise in body temperature with sweating while in bed together with severe leg pain. She told Dr Hall about the pain in her legs, that the medication was not doing her any good and that she seemed to be getting more pain. She said she was suffering sweats throughout the day and night and they were just like menopausal symptoms although she had gone through her menopause years ago. In her evidence the Claimant said that she did not think that she had mentioned hot flushes but was sure that she had said sweats. After Dr Hall had examined her she spoke about her night sweats and menopausal symptoms with a sort of slight laugh. She did mention that she had gone through the menopause years ago. When it was put to her in cross-examination that she did not mention that she was unwell or that she had flu like symptoms she said she was there because she was unwell.[33]Dr Hall had seen the Claimant before as a patient on two occasions. On 9 February 2002 she had attended with a thigh sprain on the left side while she was training for the London Marathon.[34]Dr Hall said that she was told by Mrs McCabe on 14 April 2009 that her loin pain was settling but that she had pain in her left leg. She was advised to stop taking the Ciproflaxcin. Dr Hall examined her. She found that the Claimant had a slightly unusual pain but she could not elicit any serious features on examination. She felt that she was probably suffering from a muscular problem or localised inflammatory reaction. Her notes of the consultation are as follows:- “14.4.2009 West St. Surgery Dr Wendy Hall Review E: Leg pain S: OK to stop abx as no growth on MSU. Haven’t been taking Naproxin because of interactions but pain lt calf continues was getting heartburn O: V localised to top of lt calf but no swelling/erythema. Does have veins but no worse than usual Rx: Omeprazole Capsules (Gastro – Resistant) 20mg P: Cx Naproxin with PPI Review if worse/no better”[35]Although there is no reference to this in the notes Dr Hall said that she recalled that as Mrs McCabe was sitting up to get off the couch after her examination she made the comment “I don’t know when these hot flushes are going to end”. She made no complaint, Dr Hall said, that she was finding them particularly intrusive, nor did she imply that this was a recurrence of sweating. She understood from this that her menopausal symptoms had not yet settled which is not unusual for women in their fifties. At no point did Mrs McCabe say that she was feeling systemically unwell.[36]In evidence Dr Hall said that the Claimant’s reference to hot flushes to her was a “throwaway remark” at the end of the consultation. Night sweats and flu like symptoms were not mentioned to her.[37]Dr Hall said that she might have said to the Claimant that it was not unusual for menopausal symptoms to carry on for several years, and that would have given the Claimant the opportunity to say that in her case they had stopped many years ago. Dr Hall said she did not enquire how long she had had the hot flushes for, as she had a systemically well person in front of her. She agreed in cross-examination that she did not clarify the term “hot flushes” used by the Claimant though she accepted that those could include profuse sweating. If she had been told that she had sweated every night since February she would have checked her temperature and her blood pressure but would not have regarded this as a red flag by itself, only if other signs also existed. If it was just sweats she would have arranged a blood test in a couple of days as she believed that night sweats even with an aortic value replacement was not a red flag in itself but only as a combination with other symptoms. She agreed that there was an index of suspicion of endocarditis but not that high if it was only sweats, as it could be the menopause. She did not feel that the Claimant looked like an ill patient and accepted that she was not in fact thinking of endocarditis at the time of the consultation nor when the Claimant raised “hot flushes”. She took that to be the menopause lasting on for a number of years.[38]After her consultation with Dr Hall the Claimant said that she lost faith in the GPs and could see no point in going back to them. She did not do so even though her condition continued to get worse from day to day. Her sister made an appointment for her to see her GP again but the Claimant cancelled it. She felt they would do nothing to help her. 27 April 2009 – The Claimant’s Stroke[39]The Claimant continued to go to work in spite of the fact that she continued to sweat profusely, had severe leg pains, difficulties with walking and felt weak and lethargic. On 27 April 2009 she collapsed at work. She felt as if she had suffered a bang on her hand, sat down and felt unable to get up. Her vision was affected and she could not read the numbers on her mobile phone but managed to phone her sister and asked her to pick her up. When Doreen Wilson arrived she found the Claimant on the floor unable to get up, with defective vision and a headache. The ambulance was called and she was taken to the A & E at Horton Hospital. The ambulance notes record what the Claimant described as having happened to her and noted the past medical history as aortic value replacement, hypotension, previous kidney stones, ongoing leg problems, bladder repair. She is recorded as saying that her GP’s were investigating ongoing leg problems which caused her legs to feel heavy and her to have no control over them. It was noted on the journey her tunnel vision had slightly improved.[40]At the hospital it was noted that she still felt awful on admission and that her vision seemed strange. Her presenting complaint is noted as:- “P/C Unwell plus Palpitations Dizzy/unsteady Pins and needles L Arm NO SOB, sweating, nausea, vomiting, chest pain, no headache.” Unwell plus Palpitations Dizzy/unsteady Pins and needles L Arm NO SOB, sweating, nausea, vomiting, chest pain, no headache.”

Pins and needles L Arm

[41]Her account is noted as follows:- “Pt at work went to put rubbish in bin, while doing so, started to feel unwell, unsteady plus pins and needles L arm. Denies any chest pain, nausea, vomiting, sub. Pt says felt unable to stand unsteady with blurring of vision. Episode lasted x 60 minutes and still see blurred. Wear glasses for reading only. Denies any cough/cold, dysuria or diarrhoea. ” Denies any chest pain, nausea, vomiting, sub. Pt says Episode lasted x 60 minutes Denies any cough/cold, dysuria or diarrhoea. ”

Episode lasted x 60 minutes

[42]Her Glasgow coma score was recorded as 15/15 i.e. fully conscious. The fact that she had suffered a stroke, as was later appreciated, was not diagnosed and she was sent home with a presumed urinary infection.[43]In spite of the fact that she had suffered a stroke and was feeling very unwell she nevertheless went to the urology appointment the following day on 28 April 2009 which Dr Fisher had arranged for her. It was found that there were still traces of blood in her urine. It was noted at the Urology Department that the Claimant had experienced colic pain, right, two weeks ago, with “No fever”. Her sister, Doreen Wilson who had taken her to the urological appointment was very concerned about her condition and called Dr Pargeter. Dr Pargeter’s note records that Doreen Wilson had said that she was very worried that the Claimant had ongoing pain in her legs and had collapsed last night and had been taken to Horton General Hospital where it was said that she had an infection. Her vision had gone overnight in her eyes and she was not seeing properly in either eye and had a pounding head. Dr Pargeter concluded that she needed to see her and the Claimant went to the surgery the following day.[44]On 29 April 2009 Dr Pargeter found that the Claimant was suffering from visual field defects, that she had felt faint and light headed at work and when she bent over she had noticed visual disturbance, tunnel like and possibly also double vision at times. She had a pounding head, and still on 29 April 2009 had a muzzy head and ongoing loss of visual field on the left. Dr Pargeter referred the Claimant to the Medical Assessment Unit at the John Radcliffe Hospital.[45]The admission notes record that the Claimant had been complaining of left leg pain in both calves for one month and visual problems for two days after feeling dizzy and having a funny turn. The likely diagnosis was ? stroke. Blood tests carried out the following day on 30 April 2009, showed a white blood cell count at 7.3 (normal) haemoglobin 10.0 (lower limit of normal 12) d-dimer test greater than 20,000 (upper limit of normal 500) and CRP of 30 (upper limit of normal 8).[46]The Claimant returned home on 30 April 2009 and was re-admitted on 2 May 2009 after a diagnosis of a further transient ischaemic attack was made. She was re-admitted for an echocardiogram on 13 May 2009 when the possibility of vegetations on the valves and a possible diagnosis of infective endocarditis was made. The trans-oesophageal echocardiogram was performed the following day on 14 May 2009.[47]The notes of 13 May 2009 at the John Radcliffe Medical Assessment Unit are as follows:
“PC: Nil acute, but Pt has been feeling constitutionally unwell for in excess of one month. HPC: night sweats on most nights since February. Two nights ago Pt had to change five times (Pt has completed menopause) Denies rigors, but feels cold sometimes Lethargy…. 5 – 6 weeks Hx bilateral leg weakness”
Two nights ago Pt had to change five times

Denies rigors, but feels cold sometimes

[48]On 14 May 2009 it was noted that the Claimant had possible splinter haemorrhages with an absent left radial pulse. The following day however it was noted that her radial pulse was easily palpable. The trans-oesophageal echocardiogram showed a very abnormal aortic valve appearance with vegetations and an abscess of the aortic route. On that day her haemoglobin was 9.6, the white blood counts 7.0, the CRP 36 and the ESR 16.[49]A cocktail of antibiotics was commenced on 15 May 2009. On 19 May 2009 the blood cultures demonstrated that the organism causing the infection was corynobacterium propinquum. This organism is an unusual cause of infective endocarditis and it is both unaggressive yet associated with poor outcomes.

The Onset and Progression of Infective Endocarditis

[50]It was agreed by the microbiologists, Dr Gant on behalf of the Claimant and Professor Masterson on behalf of the Defendants, that the endocarditis would have started by 30 March 2009 at the latest.[51]The organism which caused the infection in this particular case was unusual. It was indolent or as described by both Dr Gant and Professor Masterson, “weedy” i.e. non-aggressive and almost incapable of causing damage except in a slow gradual way. Because the organism is so unusual precisely how it reacts is not known and it is therefore difficult to draw inferences by comparison with an ordinary organism, as to the expected progression of symptoms. Dr Gant did not agree with the proposition put to him in cross-examination that terrible leg pain, feeling unwell and night sweats from February did not fit with damage being caused in the slow and smouldering manner. A distinction must be made he said between the destruction of the organism and the body’s response to that. There were many examples of organisms producing completely different responses in different patients and the Claimant’s response of sweating was simply her response, even though the organism itself may have been progressing slowly.[52]The difficulty of drawing inferences in comparison with normal organisms is clearly demonstrated by the evidence of Dr Brecker, the Defendant’s cardiologist, who said that he would have expected to see a significantly raised CPR (inflammatory marker) if endocarditis had continued for such a length of time. That is the typical response. In the Claimant’s particular case however her CPR was 36 i.e. still only marginally abnormal at a time when it is beyond dispute that significant vegetations had developed together with an abscess, and that endocarditis was therefore well established. I do not consider that any safe inferences as to the Claimant’s condition in February 2009 can be drawn from the inflammatory markers.[53]Professor Masterson said that the haemoglobin reading of 10 taken on 27 April 2009 (30 April 2009) demonstrated chronicity of infection, and expressed the view that that could mean that the condition of endocarditis had been going on for a month, from late March or longer than that. He accepted in cross-examination that the haemoglobin reading could fit with sweats having occurred from around February. He said it could do, yes.[54]Dr Coltart rejected the proposition that the low blood tests were not compatible with the history, stating that there is a graduation of response and it was not possible to say that it would not give rise to such a response.[55]There is no doubt that the endocarditis in the Claimant’s case caused very substantial vegetation and an abscess. Dr Brecker and Dr Coltart agreed that the abscess, which was present takes about 4 to 6 weeks to develop, would have been present at about the first week of April. Both Dr Coltart and Dr Brecker agreed that by 14 April a trans-oesophageal echocardiogram would have been abnormal in that it would have shown the vegetation and abscess. Dr Brecker considered that it would have been just probably abnormal on 6 April though that is a grey area. Dr Coltart expressed the view that the trans-thoracic echocardiogram which is normally conducted in outpatients before any trans-oesophageal echocardiogram takes place after admission, would, with this history, have shown abnormalities. Dr Brecker thought that there was a 20% – 40% chance of a trans-thoracic cardiogram picking up the vegetation, but that a trans-oesophageal echocardiogram would be needed. You would not do the trans-oesophageal the same day, but it would be done within one day and, Dr Coltart said the results would be back the same day.[56]It is to be noted that the size of the vegetation and abscess in this case was significant. Furthermore the notes of the Medical Assessment Unit of the John Radcliffe dated 13 May 2009 raised the question of vegetation on the valves before the trans-oesophageal echocardiogram was carried out the following day, and a possible diagnosis of infective endocarditis is noted the day before the trans-oesophageal cardiogram confirmed that. Both cardiologists indicated in evidence that the preference would be to confirm the diagnosis before commencing antibiotics but the course of action to be taken would depend upon the firmness of the diagnosis. You will not, Dr Brecker said, wish to delay unnecessarily and if vegetations were found on the valve that would be a definite diagnosis. Blood cultures would then be taken and the doctor would be compelled to start antibiotics, adjusted later if necessary to allow for what the results of the blood cultures revealed.

The Issues

[57](1) When did the Claimant’s symptoms commence and what was the Claimant’s condition at the time of the various consultations with the Defendants? The Claimant’s account that leg pain, reduction in exercise tolerance, night sweats, and flu-like symptoms began in February 2009 is strongly challenged by the Defendants. It is submitted by Jane Mishcon on their behalf that had the Claimant experienced significant and severe symptoms from February 2009 she would have mentioned those to Dr Pargeter, on 3 March, but she did not do so, and, on the basis of the contemporaneous notes made by the three Defendants, did not tell them either. Her account is internally inconsistent as are her eye witnesses’ accounts and inconsistent with each other. The account is also inconsistent, it is submitted, with other accounts of her condition given by the Claimant to medical practitioners and recorded in various hospital or other notes. Miss Mishcon also submits that the expert microbiology evidence describing the expected pattern of development of the organism to be a very slow gradual increase in the severity of the symptoms is inconsistent with the Claimant’s account.[58]I will deal firstly with the issue raised upon the expert evidence before turning to an analysis of the other evidence. I am satisfied on the basis of the evidence of Dr Gant and Professor Masterton, and indeed the expert evidence generally, that the account of the symptoms commencing in February is not inconsistent with the low virulence C. propinquum infection which the Claimant had. This is a particularly unusual and rare organism the effect of which upon patients is not known. Patients respond differently and I accept Dr Gant’s evidence that he has experienced cases where some patients have a fever with no night sweats some have night sweats and no fever and some have both symptoms. The response is not predictable, particularly in the case of this unusual organism. Night sweats could well be this patient’s response to the effect of the organism upon her. At the end of his evidence, as stated above, Professor Masterton accepted that sweats from around February could fit, given the apparent chronicity of the infection.[59]I accept Dr Gant’s evidence on this issue, whether or not supported by Professor Masterton, and conclude that the Claimant’s account is not inconsistent with the potential development of the infection and its effect upon her. The expert evidence does not provide any basis for disbelieving or nullifying the Claimant’s account. Nevertheless the unusual nature of this organism requires the court, together with the other inconsistencies relied upon, to examine the Claimant’s account and that of her witnesses with care.[60]The issue is one of timing. The development of significant vegetation on the Claimant’s aortic valve and the abscess make it clear beyond doubt that the developing endocarditis would have produced symptoms of that condition; the question is when. The Defendant submits that as none of the three Defendants, nor Dr Pargeter on 3 March 2009 recorded in their notes any complaints of reduction in exercise tolerance, night sweats, leg pain or weakness or flu-like symptoms, nor have any recollection of being told of these complaints, either they had not arisen at the time of any of those consultations, or were not sufficiently serious for the Claimant to have reported them.[61]It is correct, as Miss Mishcon submits, that Mr McCabe accepted that he could be mistaken about the timing of events though his recollection was that the sweats and leg pain commenced about February 2009. It is also right that Catherine Sole is mistaken in thinking that the Claimant still had a rash (a potential sign of endocarditis) in April when in fact it had disappeared on Dr Pargeter’s notes by early February. But Mrs Sole is a close friend and running partner of the Claimant and saw her weekly on a very regular basis; she was clear in her evidence that the Claimant’s problems with running started in February.[62]Doreen Wilson, the Claimant’s sister, also saw her on a regular basis and was able to ascribe the commencement of her symptoms to February when, it appeared, she had noted in her diary that the Claimant was unwell. Again, Mrs Wilson was able to see and compare the Claimant’s condition on a regular basis.[63]Philippa McCabe thought that the symptoms had started in January 2009 i.e. in the month before the other witnesses had stated that they had begun. She did have however a particular reason for recalling that they commenced early in the year by reason of the fact that she could relate it to the time when she actually left her parents home and moved in with her boyfriend, which was on Valentine’s Day February 2009.[64]When the Claimant saw Dr Pargeter on 10 February 2009 and 3 March 2009 she did not mention night sweats, painful legs or flu-like symptoms although on the occasion of the first visit she said that maybe her symptoms had not commenced. The Claimant said in evidence that she did tell Dr Pargeter about her difficulties with running on 3 March 2009 although Dr Pargeter’s note merely records, “still wants to lose a bit more weight and get fitter”. Dr Pargeter was not called to give evidence. Whilst I accept that the Claimant may have raised the issue of problems with her running with Dr Pargeter, it appears that this was in the context of her general fitness rather than the emphasising of a particular complaint. I am satisfied on the evidence that had the Claimant felt at that time really concerned about any symptoms she was experiencing, she would have reported that to Dr Pargeter in whom she had great confidence. Taken together however I do not regard the Claimant’s account and Dr Pargeter’s note as being inconsistent with the Claimant experiencing early symptoms of a feeling of a lack of fitness and inability to run as well as she thought she ought to be able to do, by the beginning of March.[65]The Claimant continued work save for a few days off when she was feeling “a little bit unwell” until her stroke. She was able to do this she told me because of help from her sister and also with great difficulty in carrying on. The Defendants rely upon the fact that she continued at work as being evidence which supported the proposition that she was unlikely to be correct in saying that her symptoms started in February 2009. I am satisfied however that the Claimant, as she described to me in evidence, had to struggle to remain at work. It became increasingly difficult for her to do so and she was only able to do so with the use of a car to get there without having to walk, and with the help of her sister. The evidence clearly established that the Claimant is a stoic. The fact that she would carry on when she was at all able to do so and in general did not complain, could not be better exemplified by the fact that the day after she had her stroke she attended an appointment with the consultant urologist because it had already been arranged. It is the Claimant’s nature which explains her ability to continue working rather than the fact that her evidence that she was feeling unwell is incorrect.[66]Both parties rely upon the medical records as assisting in determining the onset of symptoms. The Defendants rely upon the admission note of 29 April 2009 which records one month of pain in the left leg and both calves (D546) and a medical note made on the same day recording the same information (D549). This, the Defendants submit, is consistent with pain in the left leg commencing at the end of March 2009; as it contains no other complaint it fits exactly with the consultation with Dr Moore on 30 March. They also rely upon the hospital entry made on 13 May describing 5 - 6 weeks history of bilateral leg weakness (D477) indicating that the leg pain commenced at about the beginning of April. The fact that the Claimant complained on 13 May of having felt constitutionally unwell for more than one month indicates, the Defendants submit, that she began to feel unwell in or about early to mid April.[67]Mr Richard Partridge on behalf of the Claimant places considerable reliance upon the hospital notes of 13 May 2009 (D476, D477). They demonstrate, he submits, from the history taken from the Claimant and her family, that she had been feeling constitutionally unwell for at least one month; that she had experienced night sweats on most nights since February, having had to change 5 times two nights ago; that she had completed the menopause; that she denied fever but felt cold sometimes; that she suffered from lethargy; that she had had regular headaches since the stoke; that she had 5-6 weeks of bilateral leg weakness; that she had a renal stone one month ago which she passed; that she had had persistent haematuria.[68]Mr Partridge submits that this history taken on 13 May 2009 is contemporaneous, and made without any motive other than one to assist the medical management of the Claimant’s condition. There is therefore, he submits, no reason to doubt that she had had night sweats since February, had been feeling constitutionally unwell for over a month, felt cold sometimes, suffered lethargy and had had bilateral leg weakness even though he submitted that it started earlier than 5-6 weeks before 13 May 2009.[69]In so far as the Claimant still relies upon the notes taken by the ambulance crew on 27 April 2009, and the urological notes of 28 April 2009 (though these are not emphasised in closing speeches as they were in evidence) I am satisfied that none of them assist me. I accept the submissions on this issue made by Mr Partridge in his closing written submissions paragraphs 21 – 22. Any history taken on these occasions was in respect of an entirely different presenting complaint, one of collapse and visual disturbance, wrongly diagnosed at the hospital as urinary tract infection when in fact it was a stroke. The hospital notes are also contradictory as Mr Partridge submits. The urological notes were taken for the purpose of the urological examination only as is clear from their face. The notes make no mention of the fact that a previous day the Claimant had suffered severe visual loss together with pounding headaches. I place no reliance upon them.[70]Catherine Sole said in evidence that she was able to identify specific dates of the period between 25 January 2009 and 29 March 2009 because she knew that during that period she was accompanying the Claimant to the Cardiac Rehabilitation Centre in Whitley. The Defendants submit that had the Claimant’s exercise tolerance suddenly reduced as she said in evidence that it did, this would have been noticed by the cardiac nurse who would have supervised her rehabilitation. It must therefore be assumed, it is submitted, that the Claimant did not tell the cardiac nurse about her reduction in exercise tolerance and painful legs, as no action was taken which it surely would have been, the Defendants submit, had such symptoms been reported. There is a report from the Rehabilitation Centre dated 12 December 2008 (C389,390) which records that the only problem noted was slightly raised blood pressure. There is however no report with the papers for 2009 and the 2008 report indicates that the rehabilitation started on 1 October 2008 and was completed on 3 December 2008. If there was a further formal rehabilitation course it is surprising that there is no report about that course nor any assessment at its conclusion. Nor is it known whether any rehabilitation the Claimant attended at Whitley in 2009 was subject to monitoring or assessment by a cardiac nurse. It is difficult in the circumstances for any substantial reliance to be placed upon this submission, save insofar as it may throw doubt on Mrs Sole’s recollection.[71]The Claimant and her witnesses describe her leg problem starting in February. The Claimant describes returning to jogging in January 2009 and managing two miles or so jogging and walking. She did not however feel that she was improving but she kept going. In February she describes her running stamina as suddenly disappearing and she had to stop after running about 150 yards when her legs were simply not working. Thereafter although she tried to run she had to join the walking group rather than the running group. The Defendants submit that a sudden reduction in running stamina is inconsistent with the indolent infection which it turned out the Claimant had. The Claimant and all her witnesses must be wrong about the leg problem starting in February, the Defendants submit, because the hospital notes support a later commencement at about the very end of March to early April 2009, and because no complaint was made to Dr Pargeter on 3 March. Catherine Sole’s description of the Claimant’s left leg becoming so painful that she could hardly walk 20 yards before the pain was unbearable by the end of March 2009 was not, the Defendants submit, consistent with the hospital notes or the GP’s notes.[72]The flu-like symptoms also cannot have commenced as early as the Claimant said in evidence, the Defendants submit, because the hospital note of 13 May records the Claimant had been feeling constitutionally unwell for more than a month which only takes one back to early to mid April. Furthermore Catherine Sole does not recall flu-like symptoms in themselves. It has to be noted however that flu-like symptoms are variously described by the Claimant or her husband as her feeling “very unwell”, and “weak and hot”, and “hot and bothered”, and” distressed with any form of physical activity”. The changes in temperature and feeling unwell therefore were associated with flu-like symptoms and all the witnesses speak as to these problems.[73]It is also the Defendants case that the Claimant cannot have been suffering from night sweats (qualified as drenching night sweats). Miss Mishcon submits that the description of having to remove clothes when going outside to inside is more typical of hot flushes than sweats and states that neither the Claimant nor Mr McCabe said in their witness statement that the night sweats were such as to cause the Claimant to change her night clothes. It was only Catherine Sole who referred to this in her statement. When Mr McCabe did refer to the Claimant having to change her night clothes he said that that happened occasionally and was not sure about dates. The hospital note of 13 May does not, Miss Mishcon submits, record the changing of clothes as having been of a continuing problem only a reference to what had occurred two nights previously. This reference may however be no more than the most recent example of the problem. Nor did the Claimant mention night sweats to Dr Pargeter or to the cardiac nurse.[74]I have considered the evidence of the Claimant and her witnesses, and of the Defendants, the hospital and GP’s notes and the Claimant’s and the Defendant’s submissions, both written and oral, with care. I have borne in mind the risk of the Claimant and her witnesses giving evidence with hindsight, now knowing what they think must have been the case, also the risk that they may simply be mistakenly believing that symptoms started much earlier than they did. Having done so I have come to the clear conclusion that the account of the Claimant and her witnesses as to the onset of the symptoms is in general correct. I am satisfied that the Claimant started jogging and walking again in January 2009 and kept going at it even though she didn’t feel she was really improving. Sometime in February it did seem to her that her running stamina suddenly disappeared and she felt as though her legs were just not working. Leg pain developed in the left leg first, and sometime later, by the end of March or early April, was affecting both her legs. I am satisfied that the sweats, day and night, commenced at around the same time in February 2009 and that there after the Claimant became gradually more unwell. By the end of March when she saw Dr Moore she was no longer the energetic dynamo that she had spent most of her life being. I am satisfied from the evidence as a whole that during the period from 30 March 2009 to her stroke on 27 April 2009 she became progressively unwell. This is consistent with her account and that of her witnesses and the likely progression of the organism and its effect upon her.[75]I am satisfied that the Claimant experienced night sweats and that when these were bad they necessitated the change of her night clothes, several times a night. I accept the evidence of the Claimant, her husband, and Catherine Sole on this issue even though the Claimant’s witness statement does not refer to having to change her night clothes. The worsening and progression of the condition is clear from the evidence of the Claimant and her witnesses and is also supported by the expert evidence. The changes in haemoglobin indicated, as Professor Masterton said, the chronicity of the condition since February or March, and the growing of the abscess from about the end of March 2009 and the progressive growth of significant vegetation on the aortic valve from the end of March or early April is consistent with progressive deterioration in the Claimant’s condition. I am satisfied that her condition was worsening between 30 March and 14 April 2009, hence the need for three consultations with the GPs. I have no doubt that the Claimant’s condition continued to worsen as the vegetations and abscess continued to develop after 14 April, but I am satisfied that by that date it had reached a point where the Claimant was very concerned about her health and would, had she been asked questions, have revealed all that concerned her.[76]I accept that throughout the period 30 March to 14 April the Claimant was becoming weaker and lethargic and feeling progressively unwell. The evidence of Mr McCabe, Doreen Wilson and Philippa McCabe satisfied me entirely that by 14 April 2009 the family were extremely worried about her condition. This was of course in contrast to her normally very fit and energetic self, but I have no doubt that she was increasingly unwell during this period.[77]By 6 April 2009 she was clearly unwell, though on this date her underlying condition was masked by what appeared to be a further episode of renal colic. I accept the evidence of Mr McCabe that it was with great relief when it appeared to him and his wife that this was the cause of the problem. The measure of relief was not just because the problem was thought to be colic but because of the extent to which she had been and was then unwell, and the belief that an explanation had been found for that state.[78]For the Claimant to see a GP again, a third time within 14 days is in itself, given her pre-valve replacement condition and attitude towards life, an indication of how she felt. I am satisfied that when she saw Dr Hall on 14 April 2009 she was suffering from leg pains, day and night sweats, feeling unwell, weak and lethargic, flu like symptoms and on occasions feeling cold. I accept the evidence of the Claimant and her witnesses as to her condition, having taken into account any effects which the stroke may have had upon her memory. I found them to be honest and convincing and their account to be essentially consistent with the expert evidence and the medical notes. In particular the notes of 13 May 2009, which are inherently likely to be recording entirely genuine complaints by the Claimant and her family at that time, support her account. Philippa McCabe had good reason to know her mother’s condition in mid February, being able to pinpoint it by reference to her leaving home and going to share a house with her boyfriend. The Claimant’s sister and Catherine Sole saw her regularly and had detailed knowledge of her condition. I am satisfied they are reliable witnesses with good reason to know the subject they were describing, and to be able to distinguish between early in the year and Spring.[79](2) What did the Claimant tell each doctor of her condition? (i) Dr Moore - 30 March 2009 There is substantial dispute on this issue between Dr Moore and the Claimant. The Claimant went to see Dr Moore rather than wait for Dr Pargeter’s return because, I am satisfied on the evidence, she felt unwell. She was suffering from pain of the left leg by that time and clearly complained of that to Dr Moore. Her recollection is that she told Dr Moore that it was difficult to walk, that she was having sweats as if she had the menopause again even though it had finished years ago, and that she was having flu-like symptoms. She was trying to explain that it was not a running pain or a running injury. Dr Moore however recollected only the left leg being mentioned, he did not recall sweats being mentioned or the menopause. He said that as far as he could recollect in the flow of conversation it did not happen, and he did not know where in such a consultation she could bring in a reference to the menopause. Had sweats been mentioned however he would have to have asked a lot more questions to clarify what she was saying. He knew that sweats were a sign of infective endocarditis in someone with an artificial valve.[80]I have found this a difficult issue to resolve. Dr Moore’s evidence upon it was somewhat diffident in parts but his memory was that they talked just about leg pain and his notes revealed nothing else. They certainly talked about the League of Friends as well. It is probable that there was discussion about whether the pain was related to running and it may be that the leg pain and its cause was the centre of the complaint. Furthermore the Claimant’s condition was progressively worsening with the abscess on the aorta developing at about that time, and I am not satisfied on the balance of probabilities that the Claimant, a stoical person, would necessarily have voiced all her complaints then rather than at a later stage as they were worsening. What is clear is that the 30 March was about the time when the infective endocarditis was beginning to develop significantly with the growth of an abscess and a considerable number of vegetations growing on the valve.[81]Having considered the relevant evidence I am not satisfied on the balance of probabilities that on this occasion the Claimant brought to Dr Moore’s attention any matter other than her difficulties with her left leg and the relationship of that problem to her running.[82](ii) Dr Fisher – 6 April 2009 The Claimant herself said in evidence that she could remember “not a word” of her conversation with Dr Fisher as she was at the time feeling so unwell. She had told Dr Fisher at the outset about her history of renal colic and clearly felt that her condition was similar to the renal colic she had experienced before and therefore relevant to that. Neither Philippa McCabe nor Doreen Wilson recalls sweating or leg pain being directly reported to Dr Fisher and Dr Fisher’s own recollection is that the matters he was informed of were accurately recorded in his notes and that no mention was made of night sweats, flu-like symptoms or any other symptoms consistent with infective endocarditis. If however Dr Fisher had been told that sweats and flushed feelings had been going for some months he would, if the patient was unwell have required acute medical admission. If she was very well he would have instigated blood tests, as endocarditis would have been high on his list.[83]I am satisfied that the Claimant’s consultation with Dr Fisher both on the phone and in person dealt with complaints which were consistent with renal colic (whether it was in fact that or emboli) and nothing else. I am clear in the conclusion that no complaints were made by the Claimant of any symptoms such as sweating or flu-like symptoms which were potentially referable to endocarditis. Indeed both the Claimant and her husband were hopeful that renal colic was in fact the answer to the problems she was experiencing.[84](iii) Dr Hall – 14 April 2009 This was the third occasion in 14 days that the Claimant had attended the Defendant’s practice. I’m entirely satisfied that by 14 April 2009 she was suffering from severe pain and difficulty with both of her legs, and was suffering from day and night sweats which had commenced in February and which as far as the night sweats were concerned, caused profuse sweating on occasions sufficient for her to have to change her night clothes several times during the night. She felt weak, had lost energy and was feeling unwell. She could no longer walk far and had to drive instead. The changes in temperature, feeling of weakness and lethargy gave her ‘flu like symptoms. She was not aware of having fevers but she certainly suffered from acute temperature changes and reported one month later on 13 May 2009, having felt cold sometimes, which is consistent with having a temperature. As Mr Partridge submits it is not known what the Claimants’ temperature was during the time she was experiencing night sweats.[85]The family’s hopes that the problem might have been solved because it all turned out to be renal colic, rapidly proved to be incorrect thereby necessitating the further visit to the surgery on 14 April. By that time the Claimant’s family were extremely concerned about her wellbeing because of the deterioration in her health. It was against that background that the Claimant made her visit on 14 April.[86]The Claimant said in evidence that she told Dr Hall about her legs, about how she felt in herself, that she was suffering day and night sweats even though she had finished the menopause many years ago, before she was 50, as doing marathons had got rid of it. By this time I am satisfied that the Claimant was feeling sufficiently unwell to feel the need to explain this, in her own rather diffident stoical style, to the GPs.[87]Dr. Hall said in evidence that the Claimant’s complaint related to her left leg. She advised Mrs McCabe that she could cease taking the Ciprofloxacin as the urine sample had revealed no growth, and Mrs McCabe herself told Dr Hall that she had stopped taking the Naproxen. Dr Hall examined the Claimant and concluded that although her leg pain was slightly unusual, she could not elicit any serious features on examination and concluded that it was a muscular problem or localised inflammatory reaction. She did not however ask how the leg pain had arisen.[88]There was nothing remarkable with Mrs McCabe’s stance or gait when she walked into the surgery, Dr Hall said, and she did not appear to be in any pain to Dr. Hall. Although it does not appear in the notes, Dr Hall said she would have asked her how she was in herself. As Mrs McCabe was sitting up to get off the couch, Dr Hall said that she said “I don’t know when these hot flushes are going to end”. Dr Hall understood her to mean that her menopausal symptoms had not finished. She did not seek to clarify the statement, nor enquire how long she’d had the hot flushes or indeed ask any other questions. Dr Hall said in evidence that she might have said to the Claimant that it was not unusual for menopause symptoms to carry on for several years and that would have been the opportunity for the Claimant to say ‘no, they have stopped many years ago’. In fact, of course, that is precisely what the Claimant said she had told Dr. Hall i.e sweats day and night just like the menopause, even though her menopause had finished many years ago.[89]Dr Hall said that even if sweats had been mentioned, unless there were other symptoms such as fatigue, weight loss or unusual rashes, she would not contact the hospital cardiology department, but would have arranged blood tests. Dr. Coltart and Dr. Brecker, the consultant cardiologists for the Claimant and the Defendant respectively, both stated however that night sweats were indeed a red flag, whereas Dr Hall said that they were only a red flag with other signs. The Claimant did not look like an ill patient and Dr Hall was not thinking of endocarditis at that time but if the Claimant had lacked stamina as well as night sweats, that would have caused her to contact the on-call cardiology team. In fact, as I have found, the Claimant did suffer from lack of stamina at that time.[90]I am satisfied on the basis of the evidence, and having regard to the submissions of both parties, that the Claimant did inform Dr. Hall that she had not merely hot flushes, but sweats day and night. By the time of this consultation on 14 April the Claimant’s level of concern about the night sweats which had been continuing since February, had risen to a point where she felt the need to raise it. Not just “hot flushes” but night sweats in particular. The Claimant may, as diffident patients sometimes do, raise the matter with a slight laugh of embarrassment, but raise it, I’m satisfied she did. I prefer her evidence to that of Dr. Hall upon those factual issues. I also conclude that the Claimant did say that her menopause had stopped many years ago and Dr Hall’s evidence conceded that in effect that she might have done.[91]I’m also clear in my conclusion on the evidence that the Claimant told Dr Hall that she had problems with both her legs and that by then she did not feel well herself, even if she did not look seriously unwell. 3) What should each doctor have elicited further from the Claimant, if anything, or observed about her state of health[92]Firstly, a general comment on the expert evidence. There was considerable agreement on important issues between both the cardiologists and the microbiologists but less between the GP experts on liability. Each party sought to contend that there were sound reasons for rejecting the whole of the opposing GP experts evidence. I did not however find that a useful approach. Both Dr. McCarthy on behalf of the Claimant and Dr. Barraclough on behalf of the Defendants gave valuable and coherent evidence based on many years of experience of general practice. I concluded that in some respects Dr. McCarthy was correct in his emphasis as in others Dr. Barraclough was, as can be seen from the following parts of the Judgment.

(i) Dr Moore

[93]I have found that the consultation with Dr Moore referred solely to the Claimant’s leg and her ability to run and did not involve the Claimant revealing or discussing her other symptoms. Nor did Dr Moore ask any questions which might have revealed the further symptoms which were then present but which had not progressed to the stage they had reached some two weeks later on 14 April.[94]Dr McCarthy expressed the view in evidence that as Dr Moore did not reach a clear diagnosis on the leg pain, he was faced with an unexplained illness together with a patient that had an artificial heart valve who was therefore a risk. He should therefore, at the very least, have asked her how she was feeling. If she was not feeling well he should have asked her to return to see him in a week and in the meantime have ordered blood tests. Dr Moore should, Dr McCarthy said, have appreciated that the differential diagnosis was an inflammatory cause or mechanical cause and if it might be the former, that, with an artificial valve would have raised risks, hence the need to seek to make a diagnosis and if unable to do so, carry out blood tests.[95]Dr Moore said in his witness statement and in evidence that he considered that the leg pain of which the Claimant complained was probably sciatic in nature, as far as the shooting pain down the side of the foot was concerned even though he had not recorded this in his notes. He said in evidence that although he hadn’t recorded it, he was pretty certain of his diagnosis, “to some degree”. Dr. Barraclough said in evidence that he thought that the shooting pain down the leg was probably sciatic in nature and that this would have been his interpretation. He did not refer to the pain as being sciatic in his medical reports. Dr Moore’s notes do not refer to sciatic pain but describe the pain as “odd” and state that there was “no clear cause”. Furthermore at the significant events meeting in August with his fellow GPs, the description of the leg pain was “peculiar” rather than sciatic.[96]Dr. Barraclough could think of no general inflammatory condition which could cause such leg symptoms plausibly. The presence of leg pain, an extremely common feature presenting to any GP, would not require the GP to ask other more general questions about a patient’s health, even where there had been aortic valve replacements. There are many patients with heart conditions, stents or similar surgical interventions and it would not be realistic to expect any such patient who presented with a leg pain to be asked questions either relevant to endocarditis or generally. Some GPs may consider general malaise even where the only complaint was of leg pain. But others would not and Dr. Barraclough expressed the view it was not mandatory for them to do so in such circumstances. There had to be something more than the complaint of leg pain which Mrs McCabe made before there would be any duty upon the GP to ask further questions.[97]Dr. Moore did not ask questions relating to anything other than the leg complaint, the worst part of the pain of which had resolved within 24 hours on his understanding. His approach was “wait and see” and review the Claimant later.[98]Whilst I understand Dr McCarthy’s approach, and consider that it is arguable, I prefer Dr Barraclough’s evidence upon this issue. The leg pain as recorded in the notes had apparently substantially resolved and in the absence of any other complaints his approach of waiting and seeing and reviewing was appropriate without further questions being asked of the patient. Had such questions been asked further information would indeed have been revealed as to sweats and ‘flu like symptoms. Nevertheless on the basis of the leg pain which I have found was the only complaint made on this occasion, I do not think it was incumbent on Dr Moore to ask the Claimant additional questions. Whilst some GPs might have asked about general malaise where there was leg pain only being complained of, I do not think that it was mandatory for a GP to do so in such circumstances. To wait and see and review was an appropriate course of action.[99]The question also arises as to the appearance of the Claimant on that day and whether this should have alerted Dr. Moore to anything more suspicious about her general condition. Dr. Moore said in his evidence that he could hear that the Claimant did not struggle up the steep stairs to his consulting room and that she did not appear to be very unwell or sweating. The Claimant did not disagree that she was able to mount the stairs, though hearing a patient do so without tripping or falling or going very slowly is a somewhat blunt instrument for determining whether such a patient’s walking ability had become restricted.[100]There is however no evidence that the Claimant looked or appeared very unwell on that date, such as to require Dr. Moore to probe into her health further. ii) Dr Fisher[101]The consultation with Dr. Fisher centred on renal colic and as I have found, he was not informed of the Claimant’s leg pains or sweats or any other symptoms consistent with endocarditis. Neither Dr. McCarthy nor Dr. Barraclough suggest that he should in the circumstances of what he was presented with have asked any further questions. Nor is it suggested that the Claimant’s general condition would have raised to him issues other than those concerned with renal colic. He was therefore under no obligation to ask any further questions. iii) Dr Hall[102]I have found that the Claimant told Dr. Hall that she was experiencing day and night sweats like the menopause but that that had finished many years ago, and that she felt unwell, in addition to complaining of pain in both legs. In the joint statement, Dr. McCarthy and Dr. Barraclough agreed that had such facts been placed before the GP it was mandatory for her to consider infective endocarditis. It follows that further questions should then have been asked which would have revealed that the sweats had lasted since February, that they included night sweats, that these sometimes required the Claimant to change her nightclothes more than once a night, that she felt weak, lethargic and generally unwell. Once night sweats, many years post menopause, weakness and lethargy and feeling unwell were raised, the extent of these problems had to be explored and elaborated. Night sweats in themselves are regarded by both Dr Coltart and Dr Brecker as raising “red flag” signs.[103]Even if the Claimant had not volunteered that she had been experiencing night sweats but had only referred to “hot flushes”, I would have remained of the view that that information needed to be further explored and elaborated. I am satisfied in any event on the evidence of the Claimant and Dr. Hall that the Claimant did inform the doctor that her menopause had in fact ceased many years ago. The combination of these two pieces of information, namely hot flushes and the cessation of the menopause many years ago, rendered it essential that further questions were asked. The reference to night sweats alone should cause the doctor to think of endocarditis, Dr Barraclough said, and the addition of the information that that could not be or was unlikely to be due to the menopause as it had ceased many years ago, would necessitate further questions. It was not sufficient for Dr. Hall to fail to clarify those statements. When did the menopause stop? How often did the night sweats occur? Did they involve and if so how often the necessity to change nightclothes once or more during the night? How did the Claimant feel? Once the risk of endocarditis in a patient was raised, as it would have been by the Claimant’s reference to the hot flushes and the cessation of the menopause, the matter needed to be explored. Once the Claimant had volunteered the fact that her menopause had ceased many years ago and at the age of about 48, and that she had not had sweats before February of that year, the thought in the doctor’s mind that many women continue to suffer from sweating after the menopause had apparently ceased would be of little weight. The GP would be left with unexplained night sweats, the menopause having ceased many years ago, and a patient with an aortic valve replacement with the risk of endocarditis.[104]In any event as Dr. Barraclough said in evidence it would be incumbent on the doctor to ask further questions, if the patient was anxious about the matter. It seems probable that the Claimant raised the matter, albeit in a diffident and somewhat embarrassed way with a slight laugh, because she was anxious about it. The fact that she added that her menopause had ceased, demonstrated more clearly her anxiety because it showed that she had thought about the menopause but considered that it might not be relevant because it had stopped. The fact that the patient had volunteered the matter, and did so at a time apparently unconnected with any other part of the examination or consultation, would it seems to me in itself give rise to an inference that the patient may be anxious or concerned about the matter. I find it a fact the Claimant did raise it because she was concerned.[105]Dr. Barraclough expressed the opinion that the volunteering of information as to hot flushes would be important information whenever it was made in the consultation and needed careful consideration, particularly in a patient with a replacement valve. The term “hot flushes” could mean sweats, whether day or night, but even so he said that only some doctors would ask further questions in such circumstances. In fact Miss Mishcon relied not merely on Dr. Barracloughs evidence on this issue but also that of Dr. Brecker, the Defendant’s cardiologist. In the course of his evidence, in answer to questions from the court, Dr. Brecker volunteered the view that as a cardiologist he wouldn’t ask further questions if told that a patient had hot flushes, as it is such a common symptom. He would however ask about HRT and similar questions.[106]Dr. Brecker was expressing this opinion as a cardiologist not as an expert GP on the issue of liability. Furthermore as Mr Partridge points out when he sees a patient it is usually the case that a preliminary diagnosis will have already been made. Dr. Brecker’s situation as a cardiologist is quite different to that of the GP facing a patient with an aortic valve replacement who was visiting for the third time in 14 days with unexplained or unusual leg pains and an anxiety about hot flushes, and feeling weak lethargic and unwell. I find the evidence of Dr. McCarthy and Dr. Barraclough to be more important on this topic.[107]Furthermore I have found that the Claimant raised the issue of night sweats specifically and the fact that her menopause had ceased. This was not the situation being envisaged by Dr. Brecker. It is to be noted that in any event Dr. Brecker would have asked the patient questions about HRT which would probably on the facts of this case have resulted in him learning that the menopause had in fact ceased many years ago.[108]I conclude that once the Claimant had mentioned night sweats and the cessation of the menopause, as I find that she did, further questions should have been asked to ascertain the seriousness of the problem in a patient who had had an artificial valve replacement. I accept Dr. McCarthy’s evidence on this issue that even if the words “hot flushes” had been used, those words themselves implied a continuing problem, especially as from Dr. Hall’s account the Claimant added “when are they going to end?” Even on the basis of that information, further questions should have been asked and they too would have lead to the information that the Claimant was unwell. On the basis of my findings of fact therefore, I am clear in the conclusion that Dr. Hall was under a duty to ask further questions of the Claimant in order to ascertain what the problem was that she was referring to, and that even on the basis of Dr. Hall’s own account, further questions should have been asked.[109]By 14 April 2014 I am satisfied that the Claimant felt genuinely unwell. Dr. Hall considered that the Claimant did not look unwell, but patients present themselves in a very different manner according to their personalities and we know that the Claimant was a very stoical uncomplaining woman. I do not find that there was anything about the Claimant’s appearance in itself at the time which should have driven Dr. Hall to ask further questions, but I am equally satisfied that her appearance should not in any way have prevented the questions which arose and should have been asked, from being asked. 4) What action should have been taken on the information which was or should have been before the doctors? Dr Moore[110]Upon my findings of fact, there is no further action which Dr Moore should have taken after his consultation other than that which he did, namely wait and see and review. Dr Fisher[111]Dr Fisher was under no duty to take any further step upon my findings of fact. The Claimant does not pursue a case against him, if I find, as I have, that the Claimant did not report to him any symptoms of night sweating or any symptoms requiring further questions or actions to be taken. Dr Hall[112]Once the Claimant had volunteered that she was having day and night sweats and that her menopause had ceased years ago the questions which it was then incumbent on Dr Hall to ask would have revealed all the issues which were causing the Claimant serious concern at that time. These were her severe pain in both legs her difficulties in walking any distance, night sweats since February which when serious caused her to have to change her night clothes two or three times a night, weakness and lethargy and feeling cold sometimes. She would, I am satisfied, have told Dr Hall, if asked the appropriate questions, that she felt that her symptoms were flu like, that she was unwell and had been for some time.113. It is agreed between Dr McCarthy and Dr Barraclough that if such information had been given, it was mandatory for a GP to consider infective endocarditis, perform basic blood tests, and refer the Claimant to hospital. In answer to the further question under the joint statement, Dr Barraclough said that if the Claimant had been febrile with weight loss as well as night sweats and flu like symptoms and a new heart murmur then he considered a General Practitioner would have admitted her to hospital that day. In this answer Dr Barraclough was adding additional qualifications such as fever, weight loss and heart murmur which he had not raised before but which Dr Brecker had raised in his evidence.114. It became clear however during the course of the evidence that the view of both the cardiologists and the GP experts was that the key was whether the Claimant was constitutionally well or not. Dr Brecker said that if she had no fever, no rash and was well he wouldn’t send her into hospital that afternoon but if she was unwell with significant night sweats “we would want to see her within 24 hours” he said. Dr Coltart said that if the GP had phoned him up and said that he had an unwell patient with an artificial valve who had had night sweats since February but had finished her menopause, had no rigors, but persistent hematuria he would have been extremely bothered and would have admitted her to hospital that Friday or even on the Sunday. Dr Barraclough said that if the Claimant gave a history as set out in the hospital notes of 13.5.2009 (D476), which I have found on the facts that she did, that would be significant. He would examine her to see if she had a heart murmur, send her urine for analysis and if she seemed well would have her blood tested for inflammatory markers, but if she was unwell he would admit her to hospital.115. Miss Mishcon accepts in paragraph 104 of her final written submissions that it was common ground that if the Court should find that the Claimant had told Dr Hall that she was suffering from night sweats, reduced exercise tolerance, flu like symptoms and was systematically unwell, immediate referral to hospital was mandatory. The same concession must apply if that information should have been and would have been elicited, which I have found is the case.116. I am satisfied that the evidence does indeed support such a conclusion. I conclude that Dr Hall, on hearing the information volunteered by the Claimant as to night sweats and the cessation of her menopause and asked the necessary questions and obtained the answers, was under a duty to refer the Claimant to hospital immediately either later that same day on 14 April or the following morning of 15 April. (5). Has a breach of duty been established?[117]The duty of the doctor is to act with the ordinary skill of an ordinary competent medical practitioner carrying out the consultation in question. A doctor is not negligent if he acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion even though other doctors adopt a different practice. (Bolam v Friern Hospital management Committee (1957) 1 WLR 582 and Sidaway v Governors of Bethlem Royal Hospital (1985) AC 871.)[118]No breach of duty has been established upon my findings by either Dr Moore or Dr Fisher.[119]I am satisfied on the evidence that Mrs McCabe told Dr Hall that she had been experiencing day and night sweats, that she specifically used the words “sweats” not merely “hot flushes” as these were a very real concern to her at that time. Furthermore they had been continuing since February and her condition had been worsening during April hence her third visit to the doctors in 14 days. I am also satisfied, not simply on the evidence of the Claimant herself, but also on the evidence of Dr Hall, that the Claimant told Dr Hall that her menopause had finished many years ago. Dr Hall understood the Claimant to be saying that her symptoms had not finished, though accepted that she might have said to the Claimant that it was not unusual to carry on with the menopause for several years which would have given the Claimant the opportunity to say her menopause had stopped many years ago. Dr Hall therefore misunderstood what the Claimant had told her, asked no questions about it and in no way sought to clarify it. She accepted in evidence that she had not been considering endocarditis as when she thought the Claimant had raised them as “hot flushes” she took them to be the menopause lasting on for a number of years.[120]The statement which I find the Claimant in fact made to her, namely that she had been suffering from day and night sweats but her menopause had finished many years ago, showed that the Claimant was anxious about this matter even if she raised it with embarrassed diffidence. Her concern appeared to be from what she said that she could not understand, which was why she was still experiencing day and night sweats when her menopause had in fact finished. The statement which the Claimant made to Dr Hall could not on any basis have properly reassured Dr Hall that the Claimant was still experiencing menopausal symptoms. That very issue was questioned rather than confirmed by what the Claimant was saying.[121]The information which the Claimant gave to Dr Hall was of particular importance in a patient with an artificial valve replacement. The Oxford Handbook of General Practice states in its section on infective endocarditis that the presentation, which may be over days or weeks, includes fever, weight loss, night sweats, malaise, lethargy and anaemia. Under Management it is stated “have a high index of suspicion for patients at  risk i.e. with valve lesions or prosthetic valves. Admit as an emergency if suspected.”[122]It is accepted by the experts that the Oxford Handbook sets out what a GP should understand. It is further agreed between the expert cardiologists that night sweats themselves amount to a “red flag”.[123]Once Dr Hall was aware of the existence of night sweats and that the menopause had ceased many years earlier she should have been aware of the risk of an endocarditis in a patient with an artificial valve, and asked further questions and elaborated what Mrs McCabe said to her. She was in breach of duty in failing to do so. She was not entitled to assume that the Claimant was referring to continuing symptoms of the menopause, when the Claimant had thrown doubt upon that by stating that her menopause had ceased many years before.[124]I emphasise that there is no duty upon a GP in such circumstances to know of or recognise the rare organism which in fact the Claimant had, nor the precise mechanism or timing of the endocarditis; what a GP should have been aware of was the risk factors relevant to endocarditis in a patient with an artificial valve. Once the further information about the Claimant’s condition which was available on 14 April had been obtained the suspicion of endocarditis would have been seriously raised and, as is agreed between the parties there should have been an admission to hospital.[125]I therefore find that the Third Defendant was in breach of duty in failing to appreciate the significance of what the Claimant had in fact told her, that it raised a red flag in a patient with an artificial valve, and required elaboration. That elaboration should have resulted in admission to hospital because of the Claimant’s condition at that time. The failure to elaborate and admit were therefore equally breaches of duty.[126]Even if the Claimant had referred to “hot flushes” rather than “day and night sweats” I would still have found the breach of duty because of the fact that in addition I am satisfied that the Claimant did say to Dr Hall that her menopause had ceased many years ago. The assumption which Dr Barraclough, and indeed Dr Brecker, thought permissible, i.e. that the complaint was due to a condition common in women of that age, namely the menopause continuing, was not open to the GP. The very information which the Claimant had given made it unlikely or at least doubtful that the complaint was attributable to the continuing menopause. As “hot flushes” can, as Dr Hall said in evidence, include profuse sweating, and as the GP experts said, can include both day and night sweats, further elaboration of what the Claimant said was required and the failure in the circumstances of an artificial valve to ask such an elaboration was a breach of duty. (6) Causation[127]I am satisfied on the evidence of Dr Coltart and Dr Brecker that if a cardiologist had been contacted by the GP and informed that there was a patient with an artificial heart valve who suffered from persistent night sweats which when severe caused night clothes to be changed several times a night, that the menopause had finished many years ago, that there was weakness, lethargy, reduced walking, flu like symptoms, that she felt constitutionally unwell and had persistent hematuria, that patient would have been admitted to hospital within 24 hours. As both Dr Brecker and Dr Coltart said in evidence the key was whether the Claimant was unwell. I note that Dr Fisher said in evidence that if a patient with these symptoms was unwell he would have arranged an acute medical admission. Both Dr McCarthy and Dr Barraclough accepted that in such circumstances the Claimant should have been referred to hospital immediately i.e. not later than 24 hours. It is probable therefore that had the correct information been elicited the Claimant would have been referred to hospital on 14 April or 15 April 2009.[128]Once admitted with these symptoms I am satisfied on the evidence of the cardiologists that investigations would have been started as soon as possible. These would have included blood tests if not already done before the Claimant left the GP’s surgery, blood cultures and echocardiography. Given the results of the blood tests on 27 April 2009 which were marginally abnormal, tests on 14 April or 15 April 2009 may well have been less so. They would on the evidence of Dr Gant and Professor Masterton however have been abnormal with the haemoglobin lower than it should have been and the CRP raised. As Professor Masterton said these would have been markers of ongoing infection.[129]After the blood cultures had been taken a trans-thoracic echocardiogram would have been performed. Dr Coltart considers that by 14 April a trans- thoracic echocardiogram, which is mandatory with a replacement aortic valve, would have revealed the abscess and infection of the valve on the balance of probabilities. Dr Brecker thought that there was a 20-40% chance of the trans-thoracic echocardiogram picking up the vegetation on the valve. Both are agreed that a trans-oesophageal echocardiogram would have been performed either the same day on Dr Coltart’s evidence or within one day on Dr Brecker’s evidence, with an admitted patient with these symptoms.[130]Both Dr Coltart and Dr Brecker expect that the trans-oesophageal echocardiogram would have shown the infected valve because of the size of the vegetations which were significant and the development of the abscess. They are both clear that these would have been developed and apparent by 14 April 2009.[131]Ideally, the cardiologists would wait until the results of the blood cultures before commencing antibiotics but much would depend upon whether the diagnosis of infective endocarditis was definite. On the evidence of Dr Brecker and Dr Coltart I am satisfied that a trans oesophageal echocardiogram on 15 or 16 April 2009 would have shown the existence of infective endocarditis and therefore raised the need for it to be treated. As Dr Brecker said in evidence, you would not wish to delay unnecessarily and if in fact you found vegetations on the valve then the diagnosis would be definite and on taking blood cultures one would be compelled to start antibiotics. This view was shared by Dr Coltart. Provided blood cultures were taken before antibiotics were started it would, according to both cardiologists be possible to adjust the antibiotics as necessary when the results of the blood cultures came back.[132]I am satisfied on the expert evidence of both the microbiologists, Dr Gant and Professor Masterton, and the cardiologists, Dr Coltart and Dr Brecker, that suitable antibiotics would have been commenced before 20 April 2009. This would have been sufficient to halt the infective process until the blood cultures revealed whether the antibiotics needed to be adjusted when the specific organism could have been targeted. The giving of a general antibiotic before 20 April would, on the basis of the expert evidence, have prevented the stroke. The Claimant has therefore established the issue of causation.

Conclusions

[133]The Claimant succeeds in her claim against the Third Defendant on the issue of liability and quantum but fails against both the First and Second Defendants.[134]On 14 April 2009 I am satisfied that the Claimant informed Dr Hall that she was suffering from pain in both legs, and from day and night sweats but that her menopause had ceased many years ago. This information, in the case of a patient with an artificial aortic valve, should have raised a red flag in Dr Hall’s mind. It did not however, as it should have done, raise the possibility of infective endocarditis, and she therefore asked no questions but made the assumption that the complaint was a throw away remark and related to the continuing menopause. In fact what the Claimant had said to Dr Hall should have alerted her that it did not appear to be due to continuing menopause as this had ceased many years ago and that necessitated, in a patient with an aortic valve replacement, further questions. Such questions would have revealed the Claimant’s condition at that time which would have resulted in her immediate admission to hospital. Dr Hall’s failure to appreciate what the Claimant was saying to her and her failure to elaborate what was said amounts in the circumstances to a breach of duty. The Claimant has also succeeded on the issue of causation and her claim therefore succeeds.[135]There will accordingly judgment for the Claimant against the Third Defendant for damages and her claim against the First and Second Defendants will be dismissed.