Wake (A Child) v Johnson [2015] EWHC 276 (QB)

[2015] EWHC 276 (QB)

Case No HQ13X05744

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday, 15 th January 2015

Before HIS HONOUR JUDGE COLLENDER QC

(Sitting as a Judge of the High Court)

Between

ETHAN WAKEClaimant

DR MARTIN JOHNSONDefendant

Mr Martin Spencer QC and Miss Eva Ferguson (instructed by Hay & Kilner) for Claimant

Mr McCullough QC and Mr Alasdair Henderson (instructed by MDDUS) for Defendant

Hearing Hearing dates: 21 st, 24 th– 28 th November, 1 st, 3 rd– 4 th December 2014

Judgment

INTRODUCTION

[1]This is a claim for damages for personal injuries and consequential loss brought by Mr Graeme Wake, the father and litigation friend of the Claimant, Ethan, who is a young child.

[2]On the evening of 1 January 2010, Ethan, then being unwell, was taken by his parents to the Defendant, Dr Johnson, a General Practitioner on duty at an out of hours service, for a consultation. At the conclusion of the consultation, Ethan was not referred by Dr Johnson to hospital for specialist attention, but went home with his parents.

[3]During the evening of 2 January 2010, Ethan was taken by his parents to the Newcastle General Hospital where, in the course of the night he was diagnosed as suffering from pneumococcal meningitis. Tragically, this disease has caused him to suffer very severe neurological damage as a result of which he is now very severely, and permanently, disabled.

[4]In this action it is claimed that Dr Johnson was negligent in his treatment of Ethan. At the consultation he failed to respond appropriately to Ethan’s history, presenting signs and symptoms. The only proper response of a competent General Practitioner would have been immediate referral of Ethan to hospital for specialist attention. In this action it is asserted that such a referral would have avoided Ethan’s injuries consequent upon his development of meningitis.

[5]Dr Johnson denies that he was negligent in his treatment of Ethan. He denies that referral to hospital by him would have avoided Ethan’s injuries.

[6]By an order in this action of Master Cook given on 29 January 2014, it was ordered that a preliminary issue should be tried as to whether or not Dr Johnson is liable to Ethan by reason of the matters alleged in the Particulars of Claim and, if so, whether or not any of the injuries pleaded were caused thereby; if any such injuries were so caused, the extent of the same. This judgment is given solely in respect of those issues.

THE FACTUAL BACKGROUND

[7]In this action, heard over 9 days, I heard evidence from Ethan’s parents, Mr Wake and Ms Heather Hastie, from his maternal grandmother Mrs Anne Hastie, from his paternal aunt, Sandra Brooks, and from family friends, Karen and Greta Jones (who are sisters) and David Hood. I heard evidence from Dr Johnson and from medical experts as follows:(i) For Ethan, Dr Rogers (general practice), Dr Conway (paediatric), and Professor Eykyn (micro-biology);

(ii) For Dr Johnson, Dr Cameron (general practice), Dr Thomson, (paediatric), and Professor Cartwright (micro – biology).

[8]I will set out the facts that are not, or on the evidence before me cannot sensibly be, disputed.

[9]Ethan is now nine years old, his date of birth being 7 November 2005.

[10]Shortly after his birth, it was discovered that Ethan was suffering from truncus arteriosus, a rare form of congenital heart anomaly. He was treated for the condition by means of a surgical repair carried out at the Freeman Hospital, in Newcastle on 9 December 2005. Thereafter, he was regularly reviewed and treated, as required, for his heart condition at the Freeman Hospital.

[11]On 2 December 2009, Ethan was taken to his GP Practice by his mother, Ms Hastie, because he had been suffering from earache and vomiting. The Claimant was seen by Dr McNulty, whose clinical notes recorded:

‘E: Lower resp tract infection S: ok this am – acutely unwell at midday and crying with right earache – not himself O: miserable – and vomited as well ears occluded by wax and aural temp reading normal some crackles left chest I thought (audible and indeed palpable – sr 90 reg – added HS as previous) no neck stiffness, no rash P: for erythromycin and rv sos’

[12]On 9 December 2009, Ethan attended a planned appointment at the Freeman Hospital where he was noted to be well, although it was also noted that he had been suffering from occasional chest infections.

[13]Those symptoms did not fully resolve and by 18 December 2009 he was suffering from a chesty cough, runny nose, earache, poor appetite, and vomiting and therefore on that date Ms Hastie took Ethan back to the GP Practice, where he was seen by Dr Victoria Cliff.

[14]Dr Cliff noted: ‘E: Lower resp tract infection S: still has cough feels unwell chesty, runny nose Vomiting, c/o ear ache, off food. O: chest clear no dyspoea (sic) recession or tug loud murmur form (sic) cardiac surgery, temp 39.2, well and chatty Rx: Erythromycin Ethyl Succinate Sugar-Free Suspension 250 mg / 5ml 100ml. 5ml qds Paracetamol Sugar Free Suspension 120 mgs / 5ml 200 ml. 5mls qds P: ?bacterial ?swine flu treat incase (sic) either esp in view of underlying health problems advsied (sic) seek attention asap if worse’.”

[15]From this note it seems clear that Dr Cliff was not sure whether Ethan was suffering from swine flu or a bacterial infection and decided to treat Ethan for both. A course of Erythromycin was completed first, following which Ethan started to take Tamiflu on 28 December 2009.

[16]Although Ethan’s symptoms did not fully resolve, he was able to enjoy Christmas day and open his presents as was evidenced in a short, but very touching film taken by his parents, that was shown to me in the course of the trial.

[17]Between Monday 28 December 2009 and 31 December 2009, Ms Hastie considered that Ethan was well enough for her to return to work, during which time Ethan was looked after by Mrs Anne Hastie.

[18]However, Ethan remained or became unwell so that on 1 January 2010, Ms Hastie rang NHS Direct at 17:17. She was put through to an organisation called Gateshead Doctors or GatDoc for short. The telephonist’s record of that call was as follows:

‘Symptoms:finishing a course of Tamiflu today,temp 38.5, headache, vomiting’

[19]As a result of the call, Dr Sidhu rang Ms Hastie at 17:23 and spoke to her about Ethan’s condition. Following that call he made notes as follows:

‘4 yr old boy flu sxs for two wks. on tamiflu for 5 days. still vomiting also c/o headache for two days temp 38.5 not eating very much though drinking breathing is bit quicker than normal. normal color passing water stools ok vomited calpol’

[20]Dr Sidhu advised Ms Hastie to take Ethan to an out of hours walk-in centre at Bensham Hospital, in Gateshead. Ethan was taken by both his parents to that hospital where they arrived at 18:00 and were seen by Dr Johnson at 18:09.

[21]Dr Johnson’s note of the consultation was as follows:

‘History Unwell 2w initial improvement up to Boxing Day then intermittent fever Mild coryza at outset little cough No d/v Concern today with high temperature and c/o headache few days Congenital truncus repaired 39.4 No rash no meningism warm / dry / pink Ears / / no dehydration AE =AE clear Throat nad Abdo nad Unable to provide urine Completing course of tamiflu PUO – no evidence of bacterial illness Temperature control and review mane if not resolved with urine – earlier prn’

[22]An attempt to obtain urine from Ethan failed. The consultation was completed at 18:45 so took about 36 minutes. It was, in part, of that length because of the attempts taken to get Ethan to pass urine.

[23]Dr Johnson clearly thought that Ethan was suffering from an infection of unknown origin and he so advised Ethan’s parents. He prescribed Calpol and Nurofen for Ethan that was obtained from the hospital pharmacy. Ethan’s parents were advised that Ethan was well enough to go home but were told by Dr Johnson that they should return the next day with a urine sample if his condition did not improve.

[24]Ethan’s condition worsened during the afternoon of 2 January 2010 and Mr Wake took him back to the Bensham Hospital walk-in centre. They arrived at about 16:50 and Ethan’s details were entered on the system at 16:55. The receptionist recorded:

‘Symptoms: Was seen yesterday by GATDOC was told to return today if no better’

[25]There was delay at the centre and at a certain moment Mr Wake decided to take Ethan straight to the Emergency Department at the Queen Elizabeth Hospital, in Gateshead.

[26]The hospital records show that Ethan arrived at the hospital at 17:24 hours and was seen by the triage nurse at 17:30, who described Ethan as being very agitated and moaning. He was seen by a doctor in the Accident and Emergency Department, also called Dr Johnson, who noted:

‘Truncus arteriosus – open division aged 6 months Recent stenting 6/52 ago PC 2/52 Hx flu like illness. Generally unwell. Pyrexia. Cough + cold. 2 courses of Abx + Tamiflu Getting worse last 24 hours - ↑ listless, not eating Not keeping down fluids – vomiting straight away Urine has been dark + only p/u once all day today O/E – Alert, appears distressed RR30, HS I + II + systolic murmur Abdo soft, BS  Ears NAD, Unable to examine throat. Tongue coated + mouth slightly dry Imp mild dehydration, 2° to unknown illness likely viral in origin P D/w Paeds SHO – will kindly review on Ward 20’

[27]Ethan was assessed on the paediatric ward by Dr Poole, a Paediatrician, at 19:00 who noted:

‘ATSP – re vacant PC Listless “in pain” Wet self PU – incontinence Crying / agitated, clench arms A v PU → settles to sleep A maintaining B RR 28 clear, nil added…. C warm, well perfused centrally, pink tone, flushed… 36.5°C… D agitated, not respond to questions. Vacant… Rash blanch spots to cheeks to buttocks no rigors intermittent eye rolls up, to side. Vacant in past 3 – 4 hours, deteriorated since lunchtime Drowsy + sleepy, intermittent agitations Temp, reg Calpol in recent days… Headaches 3/7 → top of head, frontal → no photophobia → no neck stiff Dad reports 24 hrs groin put at…. Imp concern re vacant / irritable in child normally developmentally well ? encephalitis / meningitis ? infection source – urine’

[28]The next note is of Dr Caskie, a paediatric specialist registrar, written in retrospect and timed at 20.50. She noted:

‘ ‘Reviewed with Dr Poole Last completely well [about] 2/52 [two weeks] ago Unwell [with] temperatures, aches + pains. No real cough or coryza. Did have episode of green secretions beginning Dec 09. Still attending nursery + generally ok in himself S/B GP – given antibiotics and Tamiflu. Mum called by nursery 1/52 before Christmas Ethan “not right”, “not talking” When picked up, was quiet, not wanting to talk eg. about Christmas Seemed to pick up Last 5/7 c/o headache. Worse in last 2-3 days. Crying + holding front of heat Not sleeping as getting v distressed. Has been pulling at groin for 1/7 Now incontinent of urine (usually dry) Temp 38.5 last night. Parents don’t think he has ingested anything unusual Parents not noticed any rash. Drinking well today but vomiting most fluids back. No diarrhoea Since mid-afternoon today acute deterioration more agitated, crying and shouting no understandable words not clearly responding – drowsy episodes of irritability + agitation O/E Agitated + irritable Crying No understandable speech GCS – 10 (E 3, V 3, M 4) No clear response to stimulation or change in agitation A – patent B – RR 20 when asleep, [with] no resp distress C – Warm peripheries HS 1+II + loud systolic murmur, radiating to back HR 108 bpm reg Good pulses . Femorals  D – Neurological status as above Afebrile Cluster of petechiae R inner thigh [about] 1.5 cm diameter No other rash Neurology difficult to assess V. irritable and agitated on handling. Hypertonic limbs at times when agitated Pupils dilated but reactive (R more dilated) Fundi not well visualised Abdo soft Moaning on examination No obvious masses Imp ? meningitis ? herpes encephalitis Plan … Bloods..’

[29]The history continues in notes from Dr Bosman, a Paediatric Consultant and an anaesthetist:

‘Meningo-encephalitis ↓ GCS needs intubation → see letter as notes Anaesthetist: Called to see 23.15 … Unwell 1/7 Agitated ↓ GCS 12 on arrival ↓10 ?’

[30]Dr Bosman wrote to the Consultant at the Paediatric Intensive Care Unit at Newcastle General Hospital as follows:

‘Dear Kai / PICU Team Problem – suspected Meningo-encephalitis Thank you for taking over further management of this 4 year old boy who has become more confused / agitated over the course of today. Background of Truncus with follow up at Freeman (recently in Nov) – Rx Aspirin 40 mg/day In November + December had a course of Erythromycin for intercurrent infection (low threshold for antibiotics in light of cardiac background + is allergic to Penicillin). Also just completed course of Tamiflu. Essentially not usual self over last 2/52 or so Problem of temperatures, Body aches + pains although no significant coryza / nasal discharge or cough – Some loose stools [because] had recent course of erythromycin + just finished Tamiflu. More recently, especially last 3/7 complaining of headaches, crying + asking to have frontal part of head rubbed. Was seen + examined at walk-in centre last night – found to have ↑ Temp, but nothing else of note allowed home with no further Rx. This morning, got up + was able to indicate needs + drinks, but some vomiting. Since mid-afternoon – seemed to get worse – crying + moaning + not really able to communicate. Drowsy / irritable / agitated Prior to this, developing Nly and able to keep up with peers. O/E: Agitated + irritable. If left alone – quiet If disturbed – moaning / agitated Initially GCS [Glasgow coma scale]10-11 (E3-4, V 2, M 4) But subsequently 7 (E 2, V 2, M 3) T: 37.5 P: 87/m BP 112/ RR: 30/m No M.C. [meningococcal] rash but a few petechiae over inner aspect Rt thigh. Lips dry + cracked No obvious herpes vesicle Ears: Wax’

[31]Bloods were taken at 20:30 and subsequently showed Ethan’s C – Reactive protein level (a measure of acute inflammation) to be grossly elevated.

[32]Ethan was transferred to the care of the Paediatric Intensive Care Unit (PICU) of the Newcastle General Hospital at 02:30 on 3 January 2010. Further relevant medical notes made at that time were as follows: Neurosurgery Registrar on call:33. Treated with erythromycin, Tamiflu

34. 3/7 Hx of H/A

35. Became lethargic yesterday

36. Looking blank

37. Not recognising parents

38. Agitated’

[33]Dr Clark, a Paediatric Infectious Diseases Registrar took a fresh history on 4 January 2010 as follows:

“’ 31/12/09: Temp @ home – 38 Walk in centre eating small amounts, drinking well headache started 1/1/10: GP Paracetomol/ibuprofen + temp settled Vomited few times, keeping fluids down. 2/1/10: “vacant looking”

Vomiting – after everything Walk in centre but not seen – QE’ Walk in centre eating small amounts, drinking well headache started 1/1/10: GP Paracetomol/ibuprofen + temp settled Vomited few times, keeping fluids down. 2/1/10: “vacant looking” Vomiting – after everything Walk in centre but not seen – QE’

[34]I will not fully detail the treatment that Ethan received thereafter. Suffice it to say that he was intubated as he needed ventilating due to his falling level of consciousness. An MRI scan performed on 5 of January 2010 showed widespread cerebral inflammation. On 7 January 2010 Ethan developed seizures which were treated with anticonvulsant therapy. He was extubated on 9 January 2010 and was discharged from the PICU on 15 January 2010, remaining in the Paediatric Ward of the hospital until 5 September 2010. He has survived with significant neurological dysfunction including severe visual impairment, problems with communication and problems with motor skills. He has required gastrostomy feeding and is quadriplegic.

[35]The process of infection in pneumococcal meningitis is not controversial and is described by Professor Eykyn, as follows:

‘The pneumococcus would have come from Ethan’s own upper respiratory tract flora where it is a normal commensal. It would have invaded the bloodstream causing bacteraemia (pneumococcaemia) and then entered the CSF causing meningitis. Such invasion can occur within hours. In most cases of community-acquired pneumococcal meningitis in children there is no focus of infection although occasionally there may be associated otitis media and this is the likely source in Ethan. He did not have pneumonia on admission; a chest x-ray showed clear lung fields. Viral upper respiratory tract infections are thought to predispose to, and to precede, pneumococcaemia and hence pneumococcal meningitis..’

[36]She explained that Ethan’s blood test result from the sample taken on 2 January 2010 at 20:30 was:

‘grossly abnormal with a low haemoglobin, high white blood cell count with raised neutrophils, low platelets, low albumin and a high CRP. The blood culture later grew pneumococcus.’

[37]Finally, on the factual background I should deal with the content of Guideline 47 produced by the National Institute for Clinical Excellence (NICE) entitled:

“Feverish illness in children – Assessment and initial management in children younger than 5 years.”

. This was produced by NICE in 2007 and recommends a “traffic light” warning system for healthcare professionals to assist in predicting the risk of serious illness once symptoms and signs have been elicited from the history and examination of a patient. It is agreed by the parties, and in particular by their experts, that the noted guideline is that relevant to Dr Johnson’s care of Ethan. However, there is a difference of opinion between the experts as to the relevance and significance of the guideline in judging the issue of whether the care given by Dr Johnson was, in law, proper.

[38]Relevant parts of the Guideline read as follows: The preamble:

‘This guidance is written in the following context This guidance represents the view of the Institute, which was arrived at after careful consideration of the evidence available. Healthcare professionals are expected to take it into account when exercising their clinical judgment. The guidance does not, however, override the individual responsibility of healthcare professionals to make decisions appropriate to the circumstances of the individual patient, in consultation with the patient and/or guardian or carer.’

[39]The introduction to the Guideline contains the following passage:

‘Feverish illness in young children usually indicates an underlying infection and is a cause of concern for parents and carers. Feverish illness is very common in young children, with between 20 and 40% of parents reporting such an illness each year. As a result, fever is probably the commonest reason for a child to be taken to the doctor. Feverish illness is also the second most common reason for a child being admitted to hospital. Despite advances in healthcare, infections remain the leading cause of death in children under the age of 5 years. Fever in young children can be a diagnostic challenge for healthcare professionals because it is often difficult to identify the cause. In most cases, the illness is due to a self limiting viral infection. However, fever may also be the presenting feature of serious bacterial infections such as meningitis or pneumonia. A significant number of children have no obvious cause of fever despite careful assessment. These children with fever without apparent source are of particular concern to healthcare professionals because it is especially difficult to distinguish between simple viral illnesses and life-threatening bacterial infections in this group… This guideline is designed to assist healthcare professionals in the initial assessment and immediate treatment of young children with fever presenting to primary or secondary care…This guideline offers best practice advice on the care of children with feverish illness.’

[40]Under the heading “Traffic light system for identifying risk of serious illness” the following guidance is given:

‘Children with symptoms and signs in the green column and none in the amber or red column are at low risk. The management of children with fever should be directed by the level of risk.’

[41]As to the management of such children, they:

‘… can be managed at home with appropriate advice for parents and carers, including advice on when to seek further attention from the healthcare services.’

[42]Finally, on the Guideline I note that it further provides:

‘Children who have been referred to a paediatric specialist with fever without apparent source and who have no features of serious illness(this is, the green group), should have urine tested for urinary tract infection and be assessed for symptoms and signs of pneumonia…. Routine blood tests and chest X-rays should not be performed on children with fever who have no features of serious illness (that is, the green group).’

THE RESPECTIVE CASES OF THE PARTIES AND THE ISSUES FOR DETERMINATION

[43]The Claimant’s claim in negligence is directed solely against the care given by Dr Johnson in the course of, and following, his assessment of Ethan’s condition at the consultation on the evening of 1 January 2010. It is claimed on Ethan’s behalf that Dr Johnson failed to give any, or any adequate, consideration to the possibility that Ethan’s presenting signs and symptoms were the result of a serious condition such as meningitis, that required immediate referral to a hospital for specialist paediatric care. It was wrong for him to have limited his diagnosis to infection of unknown origin. In particular, such a diagnosis did not explain the symptoms of vomiting, headache and fever. This ‘triad’ of symptoms, it is contended, are a well recognised indicator that a patient may be exhibiting the early manifestations of meningitis. Dr Johnson’s proper response to Ethan’s presentation should have been to have referred him immediately to a specialist hospital paediatric treatment unit.

[44]It is contended on behalf of Dr Johnson that upon the presentation of Ethan at the consultation he was not negligent in not referring Ethan to a specialist paediatric hospital unit. Further, it is denied by Dr Johnson that any such referral would have lead to a different outcome in this case.

[45]Mr McCullough QC has helpfully, and I consider accurately, submitted to me that the following issues require to be determined by the court:(i) What occurred at the consultation with Dr Johnson on the evening of 1 January 2010?

(ii) If the account of Ethan’s parents is preferred, what would the outcome for Ethan have been?

(iii) If Dr Johnson’s account is preferred, was it acceptable for him to have sent Ethan home, with the advice he gave to his parents?

(iv) On the basis of Dr Johnson’s account, and on the balance of probabilities, if Ethan had been referred to hospital on the evening of the 1 January 2010, what would have occurred?

[46]It is agreed by Dr Rogers and Dr Cameron that if the account of the family is accepted as to Ethan’s presentation and the history given at the consultation on 1 January 2010, it was mandatory for Dr Johnson to refer Ethan for paediatric assessment in hospital, and that a failure to have done so would demonstrate that in his care of Ethan, Dr Johnson fell below the standard of care required of him. It is my understanding that it is agreed between the parties that had Ethan been referred to hospital he would have had blood tests which would have been abnormal, and received intravenous antibiotics later that night. Professor Eykyn was reluctant to express any specific opinion on the likely neurological disability if the parents’ account were to be accepted, save that there would have been ‘some’. On this point, Professor Cartwright considered it is likely that Ethan would still have suffered major, albeit lesser, brain damage than he in fact suffered.

[47]It follows that if the court accepts as proved the account as to Ethan’s state described by his parents since 30/31 December 2009 and through the day on 1 January 2010 the Claimant would be entitled to judgment. The only remaining issue would be the extent of the neurological damage attributable to the delay in Ethan being referred for specialist paediatric care and that would be an issue to be addressed as part of an enquiry into the assessment of damage.

THE LAW

[48]The test, that has now stood the test of time, to be applied in respect of breach of duty in respect of clinical negligence is well known. It was set out in a jury direction by Mcnair J in Bolam v Friern Hospital Management Committee

[1957] 1 WLR 583

at 587 as follows:

“I myself would prefer to put it this way, that [a medical practitioner] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. ... Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”

[49]Importantly, in Maynard v West Midlands RHA

[1984] 1 WLR 634

at 638E, Lord Scarman stated:

“Differences of opinion and practice exist and will always exist in the medical and other professions. There is seldom only one answer exclusive of all others to problems of professional judgement. A Court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligence.”

[50]In his speech in Bolitho v City and Hackney Health Authority [1998] A. C. 232 Lord Browne-Wilkinson commented on the Bolam test as follows at 241F-242B:

“in my view, the court is not bound to hold that a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of medical experts who are genuinely of opinion that the defendant's treatment or diagnosis accorded with sound medical practice. In the Bolam case itself, McNair J. stated [1957] 1 W.L.R. 583, 587, that the defendant had to have acted in accordance with the practice accepted as proper by a "responsible body of medical men." Later, at p. 588, he referred to "a standard of practice recognised as proper by a competent reasonable body of opinion." Again, in the passage which I have cited from Maynard's case, Lord Scarman refers to a "respectable" body of professional opinion. The use of these adjectives -responsible, reasonable and respectable--all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.”

At page 243 A-D after reference to authorities, he said:

“These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible. I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendant's conduct falls to be assessed.”

[51]In the recent case of C v. North Cumbria University Hospitals NHS Trust

[2014] EWHC 61

A Green J set out the principles to be applied in the assessment of medical expert evidence and, of particular relevance to part of the expert dispute in this case, he addressed the question of the extent to which a defendant professional may still be found negligent if he or she has followed relevant guidelines in force at the material time upon the particular issue in dispute. In those circumstances I will cite extensively from paragraphs 25 and 84 of Green J’s judgment:

[25]“i) Where a body of appropriate expert opinion considers that an act or omission alleged to be negligent is reasonable a Court will attach substantial weight to that opinion. ii) This is so even if there is another body of appropriate opinion which condemns the same act or omission as negligent. iii) The Court in making this assessment must not however delegate the task of deciding the issue to the expert. It is ultimately an issue that the Court, taking account of that expert evidence, must decide for itself. iv) In making an assessment of whether to accept an expert’s opinion the Court should take account of a variety of factors including (but not limited to): whether the evidence is tendered in good faith; whether the expert is “responsible”, “competent” and/or “respectable”; and whether the opinion is reasonable and logical. v) Good faith: A sine qua non for treating an expert’s opinion as valid and relevant is that it is tendered in good faith. However, the mere fact that one or more expert opinions are tendered in good faith is not per se sufficient for a conclusion that a defendant’s conduct, endorsed by expert opinion tendered in good faith, necessarily accords with sound medical practice. vi) Responsible/competent/respectable: In Bolitho Lord Browne-Wilkinson cited each of these three adjectives as relevant to the exercise of assessment of an expert opinion. The judge appeared to treat these as relevant to whether the opinion was “logical”. It seems to me that whilst they may be relevant to whether an opinion is “logical” they may not be determinative of that issue. A highly responsible and competent expert of the highest degree of respectability may, nonetheless, proffer a conclusion that a Court does not accept, ultimately, as “logical”. Nonetheless these are material considerations. In the course of my discussions with Counsel, both of whom are hugely experienced in matters of clinical negligence, I queried the sorts of matters that might fall within these headings. The following are illustrations which arose from that discussion. “Competence” is a matter which flows from qualifications and experience. In the context of allegations of clinical negligence in an NHS setting particular weight may be accorded to an expert with a lengthy experience in the NHS. Such a person expressing an opinion about normal clinical conditions will be doing so with first-hand knowledge of the environment that medical professionals work under within the NHS and with a broad range of experience of the issue in dispute. This does not mean to say that an expert with a lesser level of NHS experience necessarily lacks the same degree of competence; but I do accept that lengthy experience within the NHS is a matter of significance. By the same token an expert who retired 10 years ago and whose retirement is spent expressing expert opinions may turn out to be far removed from the fray and much more likely to form an opinion divorced from current practical reality. “Respectability” is also a matter to be taken into account. Its absence might be a rare occurrence, but many judges and litigators have come across so called experts who can “talk the talk” but who veer towards the eccentric or unacceptable end of the spectrum. Regrettably there are, in many fields of law, individuals who profess expertise but who, on true analysis, must be categorised as “fringe”. A “responsible” expert is one who does not adapt an extreme position, who will make the necessary concessions and who adheres to the spirit as well as the words of his professional declaration (see CPR35 and the PD and Protocol). vii) Logic/reasonableness: By far and away the most important consideration is the logic of the expert opinion tendered. A Judge should not simply accept an expert opinion; it should be tested both against the other evidence tendered during the course of a trial, and, against its internal consistency. For example, a judge will consider whether the expert opinion accords with the inferences properly to be drawn from the Clinical Notes or the CTG. A judge will ask whether the expert has addressed all the relevant considerations which applied at the time of the alleged negligent act or omission. If there are manufacturer’s or clinical guidelines, a Court will consider whether the expert has addressed these and placed the defendant’s conduct in their context. There are 2 other points which arise in this case which I would mention. First, a matter of some importance is whether the expert opinion reflects the evidence that has emerged in the course of the trial. Far too often in cases of all sorts experts prepare their evidence in advance of trial making a variety of evidential assumptions and then fail or omit to address themselves to the question of whether these assumptions, and the inferences and opinions drawn therefrom, remain current at the time they come to tender their evidence in the trial. An expert’s report will lack logic if, at the point in which it is tendered, it is out of date and not reflective of the evidence in the case as it has unfolded. Secondly, a further issue arising in the present case emerges from the trenchant criticisms that Mr Spencer QC, for the Claimant, made of the Defendant’s two experts due to the incomplete and sometimes inaccurate nature of the summaries of the relevant facts (and in particular the Clinical Notes) that were contained within their reports. It seems to me that it is good practice for experts to ensure that when they are reciting critical matters, such as Clinical Notes, they do so with precision. These notes represent short documents (in the present case two sides only) but form the basis for an important part of the analytical task of the Court. If an expert is giving a précis then that should be expressly stated in the body of the opinion and, ideally, the Notes should be annexed and accurately cross-referred to by the expert. If, however, the account from within the body of the expert opinion is intended to constitute the bedrock for the subsequent opinion then accuracy is a virtue. Having said this, the task of the Court is to see beyond stylistic blemishes and to concentrate upon the pith and substance of the expert opinion and to then evaluate its content against the evidence as a whole and thereby to assess its logic. If on analysis of the report as a whole the opinion conveyed is from a person of real experience, exhibiting competence and respectability, and it is consistent with the surrounding evidence, and of course internally logical, this is an opinion which a judge should attach considerable weight to.”

[84]“iii. When the guidance as to timing and state of labour are combined then the guidelines, by indicating that a second dose 6-8 hours post first dose absent established labour is permitted, translate risk into practical guidance. A midwife who is within the guidelines should, prima facie, not be acting unreasonably. iv. I use the expression “prima facie” in (iii) above because it is important to observe that both of the Defendant’s experts accepted that even if labour was not established it was still not necessarily always reasonable to administer a second dose of Prostin and that the midwife (or other medical professional) had to take account of all of the other circumstances which might indicate that second dose should not be administered even if labour was not yet established. This is important since on one view it is hard to see why a professional whose actions accord with the approved guidelines should be held to be negligent when the consequences later turn out to be adverse. But in this case there was consensus that the guidelines were not complete or comprehensive… v. In conclusion my view is that prima facie a midwife who acts in accordance with the guidelines should be safe from a charge of negligence. However, in the present case since it is common ground that in some regards the guidelines are not satisfactory I do not decide this case upon the basis that adhering to guidelines is sufficient. I consider that the fact that Midwife Bragg acted in accordance with the guidelines is a factor militating against negligence but I also assess Midwife Bragg’s conduct against the benchmark of the other surrounding facts and circumstances.”

THE EVIDENCE AND COURT’S FINDINGS UPON THAT EVIDENCE

[52]The evidential issue at the heart of this case may be stated as follows: has the account given by Ethan’s parents of how Ethan appeared and what was said at the consultation on 1 January 2010 been proved, or substantially proved?

[53]Mr Wake and Ms Hastie gave evidence before me, both by means of substantial witness statements and orally, their evidence inevitably being subjected to searching but proper cross-examination. Additionally to their served witness statements, in the course of the trial, draft statements, prepared for them by solicitors instructed before those currently instructed, were disclosed as a result of those statements having been referred to by an expert instructed for Ethan.

[54]Mr Wake said that he told Dr Johnson that Ethan had a high temperature, that he was suffering from severe headaches, that he had aches and pains around his body, was vomiting bile and had not eaten for over 24 hours, was not drinking much, had no energy, was more sleepy than usual, was vacant and lethargic. His, and Ms Hastie’s, anxiety must have been obvious to Dr Johnson and they made it clear that they had never before seen Ethan like this. Mr Wake said Ethan had been ‘crying like an injured animal.’ Ms Hastie’s evidence was that they told Dr Johnson that Ethan had not eaten anything since the morning of 31 December, he was breathing very quickly, he had been vomiting his Calpol and had been vomiting bile. He had just been taking sips of water. She said that Ethan ‘had been crying and screaming – it was a noise she had never heard before.’ Mr Wake said that he would never forget Ethan’s scream – it frightened him.

[55]Both Mr Wake and Ms Hastie accepted that Dr Johnson told them to bring Ethan back or call back the next day if he did not get better but they both denied that he told them to do so in the morning or give a time, he just specified in the course of the following day.

[56]A very detailed account of the combined evidence of Ethan’s parents as to what happened at the consultation with Dr Johnson was pleaded in the Particulars of Claim at paragraph 20 as follows:(a) The Claimant was very upset and was screaming. Save for his screaming, the Claimant was uncommunicative;

(b) The Claimant’s mother informed the Defendant of the Claimant’s symptoms. She specifically told the Defendant that: i. The Claimant’s parents had taken the Claimant’s temperature shortly before taking him to the walk-in centre and his temperature was high; ii. The Claimant was complaining of severe headaches, which had become progressively worse over the past couple of days. The Claimant had not suffered these headaches before; iii. The Claimant complained of aches and pains all over his body; iv. The Claimant had not eaten anything for over 24 hours and he was now only taking small amounts of fluids; v. The Claimant had been vomiting bile and vomiting his Calpol; vi. The Claimant’s breathing appeared quick; vii. The Claimant seemed to have significantly deteriorated over the last 24 hours; viii. The Claimant’s parents had taken the Claimant to his own GP practice on two occasions in December and he had been prescribed two courses of antibiotics and Tamiflu. However, although the Claimant had been poorly throughout December, he now appeared significantly unwell and his parents had never seen the Claimant so ill, with such a sudden deterioration. The Claimant’s parents expressed anxiety over the Claimant’s condition; ix. The Claimant had a pre-existing congenital heart condition;

(c) The Defendant started to examine the Claimant and asked the Claimant’s mother to put him on the examination couch. However, when the Claimant’s parents attempted to put him on the examination couch, he cried and screamed so vociferously that the Defendant decided to examine him whilst he was sat on his mother’s knee;

(d) The Defendant struggled to examine the Claimant because the Claimant was so distressed and listless. The examination was limited to the upper half of the Claimant’s body above his waist. As such, a full examination was not completed and, in particular, the Defendant did not examine the Claimant’s groin;

(e) The Defendant requested a urine sample from the Claimant. The Claimant’s mother advised the Defendant that the Claimant had been drinking very little and his urine had been dark. The Claimant’s mother then spent some time in the lavatory with the Claimant, trying to obtain a sample. However, the Claimant was unable to pass urine. During this period, the Claimant’s father remained in the consultation room with the Defendant;

(f) The Claimant and his mother then returned from the lavatory, without a urine sample, explaining that she thought the Claimant was unable to provide a sample because he had been drinking very little and had been vomiting bile;

(g) The Defendant asked whether the Claimant’s parents had given him any other medications. The Claimant’s parents reported that he had been given Calpol, which he had been vomiting and it hadn’t seemed to help much because his temperature remained high.

[57]The general point is made in respect of the evidence of Ethan’s parents as to the consultation, that their recollection, unlike that of Dr Johnson, is not supported by contemporaneous notes. However, Ethan’s illness and the events surrounding it were momentous events in the lives of his parents and they would have good reason for those events to be etched in their minds.

[58]It is suggested that their evidence may be affected by their knowledge of the outcome in Ethan’s case and that the events surrounding Ethan’s development of meningitis will have been much discussed before and after the commencement of litigation.

[59]What is certain on the evidence before me is the fact that the accounts given by Mr Wake and Ms Hastie have not been consistent. Mr Wake’s original letter of complaint dated 31 March 2010 to GatDoc noted that he and Ethan’s mother had explained their concerns to Dr Johnson about Ethan as follows: ‘Ethan had a high temperature, was suffering from severe headaches (progressively worse over five days), had a fever, some aches and pains around the body, was vomiting and not eating much, no energy and a lot more sleepy than usual’.

[60]Mr Wake’s further letter of 16 April 2010 in reply to a letter from GatDoc sought to correct aspects of GatDoc’s letter and repeated the above list of symptoms, but did not add to the list, nor did his letter of 15 April 2010, replying to a letter from Gateshead Primary Care Trust.

[61]Elements have been added to the account of Ethan’s state when seen by Dr Johnson and what Dr Johnson was told; paleness, vomiting bile, unresponsiveness, not eating anything at all since a small amount of Weetabix on the morning of 31December 2009, vomiting even sips of water, screaming at the examination. Some but not all of these further features were referred to in the letter before action dated 30 May 2012.

[62]The original draft statements appear to have been produced in August 2011 at a time when claims against Drs McNulty and Cliff were contemplated, as I was told by Mr Spencer QC on the second day of trial, although Ms Hastie said in evidence that she know nothing of this. The draft statements contain more dramatic descriptions of how Ethan appeared at the consultations with Drs McNulty and Cliff on 2 and 18 December 2009. They give an account of a single continuing and worsening illness from early December 2009 until 2 January 2010, and in those statements, there was no description of Ethan struggling, crying, or screaming during Dr Johnson’s examination. It was in the served witness statements that all these features appeared together. Initially, Ms Hastie said in her oral evidence that she had told Dr Johnson about the unusual screaming in the consultation on 1 January 2010 but when it was pointed out to her that that this had not been mentioned in her witness statement, she told me that she could have been mistaken about the screaming and later she said to me that she could not recall telling Dr Johnson about screaming.

[63]Neither Mr Wake nor Ms Hastie had any explanation why key passages are omitted from earlier written accounts. Clearly there were considerable difficulties in making out a claim against Drs Cliff and McNulty on the basis of the aetiology of pneumococcal meningitis, as the earlier report of Dr Conway noted, as it was unlikely that a disease, generally characterised by a rapid onset, had, in Ethan’s case, been causing symptoms since early December 2009.

[64]It is important to note that the draft statements of Mr Wake and Ms Hastie were not signed. However, I cannot accept Mr Wake and Ms Hastie’s assertion that they had not seen those documents before the trial and that they were produced by the previous solicitor’s consideration of the medical records and Mr Wake’s complaints correspondence, supplemented by a short consultation with them. A consideration of those draft statements, and concessions made in the course of cross-examination, demonstrates that those statements must have been prepared on the basis of very detailed instructions taken at lengthy meeting or meetings that were presumably used for the purposes of settling the Particulars of Claim. The history of the varying accounts given by Ethan’s parents of the consultation with Dr Johnson casts doubt on the accuracy of their final account.

[65]Family members and friends gave evidence as to the condition of Ethan at, and before, the consultation with Dr Johnson, and their individual knowledge of, and concerns for, his health, they being Anne Hastie, Sandra Brooks, Ethan’s paternal aunt, Karen and Greta Jones, and David Hood.

[66]Their evidence can only assist tangentially in respect of the central factual issue between the parties; what transpired in the course of the consultation with Dr Johnson on 1 January 2010. There were a number of difficulties with the evidence of these witnesses. I accept that after the life changing event of Ethan’s illness family members and friends would inevitably discuss their respective recollections of the surrounding events. However, apart from Anne Hastie, who accepted that the descriptions of Ethan’s condition in her statement could have been influenced by discussions with Mr Wake and Ms Hastie rather than emanating entirely from her own memory, the supporting family members and friends denied that there was any collaboration, indirectly or directly, in the production of the witness statements. However, there is considerable similarity between the terms of much of the evidence of Ethan’s parents and the supporting family and friends.

[67]Mr McCullough QC has prepared a comparison in tabular form that sets out these similarities and I reproduce that in this judgment. David Hood recall of what he overheard MsHastie telling the out of hours service Ms Hastie recall of what she told Greta Jones Greta Jones recall of symptoms relayed by Ms Hastie Karen Jones recall of what Greta Jones told her Ms Hastie had said 1 “lethargy” - “being listless” Listless 2 “high temperature” “high temperature” “high temperature” “high temperature” 3 “history of severe headaches” “severe headache for two days” “intense headache for two days” “intense headache for two days” 4 “crying and screaming” “crying and screaming” “crying and screaming” “crying and screaming” 5 “being off his food” “being off his food” “and the last solid food he had had was on the morning of 31st December when he had a small amount of Weetabix” “not eating” “not eating” 6 “unable to drink very much” “unable to drink” “not … drinking” “not … drinking” 7 “vomiting bile” “vomiting Calpol and bile” “vomiting bile” “vomiting bile” 8 “pale” “pale looking” “pale looking” “pale looking” 9 “not being himself” “not being himself” “not being himself” “not being himself”

[68]A difficulty with much of the corroborative evidence is that the substance of those similarities relate to symptoms not recorded (e.g. bile) or not recorded in the same terms (eating) in the contemporaneous medical records. Mrs Brooks mentioned bile for the first time in her oral evidence. She had been the only one of the seven witnesses not to mention bile in their witness statements. There is no mention in any contemporaneous record of Ethan vomiting bile nor was it mentioned by Mr Wake in his original or reiterated letters of complaints, to which reference has already been made.

[69]A further problem with Mrs Brooks’ evidence emerged on disclosure of Ms Hastie’s draft statements, after Mrs Brooks gave evidence. On Mrs Brooks’ account she had not seen Ethan between Christmas Day and New Year’s Eve. She said in her written statement that Ethan had “suddenly deteriorated since I last saw him on Christmas Day.” On that evidence it was not clear as to how Mrs Brooks knew the deterioration was sudden. However, in her first draft statement Ms Hastie describes taking him to Mrs Brooks’ house on 29 December 2009 at 17:00, and collecting him at about 20:00, with an associated concerning description of his state at that time, subsequently omitted from the later versions of her statement. Mrs Brooks and Mrs Hastie both said in their statements that what Ms Hastie and Mr Wake said was correct although in their evidence to me they said that they had not had sight of their witness statements when they signed their own.

[70]In my judgment the reliability of the evidence of the corroborative witnesses is highly questionable; the circumstances strongly suggest to me that there has been an unsatisfactory degree of liaison between these witnesses.

[71]I turn to the evidence of Dr Johnson. He did not purport to have a clear recollection of the consultation but depended heavily upon his clinical note of the consultation, and his standard practice. As a contemporaneous record that Dr Johnson was duty bound to make, that record is obviously worthy of careful consideration. However, that record must be judged alongside the other evidence in the action. The circumstances in which it was created do not of themselves prevent it being established by other evidence that that record is in fact inaccurate.

[72]I was impressed by the evidence of Dr Johnson.I found him to be a careful and reliable witness and he came across to me as being a generally caring and responsible GP. The evidence before me was that he has an unblemished professional record. He made an appropriate concession when challenged in relation to the likelihood that he was given a history of vomiting, a history which he must have been aware of from the triage notes. He said he had a low threshold for hospital referral if he suspected that a patient was suffering from meningitis, in particular because he himself suffered from it when he was aged 21. Ethan’s parents described their recollection of Dr Johnson’s manner at the consultation as ‘empathetic’ and ‘confident’, and said that he ‘listened to everything we said’.

[73]I find it hard to accept that Dr Johnson would not have responded to a child in the state described by Ethan’s parents by making an immediate referral to hospital. In his oral evidence Dr Johnson said in respect of this:

‘If Ethan had come through the door looking as poorly as some of the descriptions given now, he would have had a 5 minute consultation whilst waiting for an ambulance.’

[74]I turn now to consider the accounts given by Mr Wake, Ms Hastie and the corroborative witnesses of the condition of Ethan both during and after the consultation with Dr Johnson, alongside what appears from the contemporaneous medical records.

[75]Dr Sidhu made the contemporaneous note set out above of what he had been told by Ms Hastie less than an hour before the appointment with Dr Johnson. It is not easy to reconcile that account with what Ms Hastie asserted was the position at that time, namely:

‘Ethan hadn’t eaten anything since some Weetabix on morning of 31 December and since then only sips of water, unable to drink,palevomiting Calpol and bile, unusual scream that had been likened to that of ‘an injured animal,’ not interacting with anyone at all, other than asking for his head to be rubbed’

[76]Similarly, there are obvious discrepancies between the accounts of Ethan’s parents and the records set out above of Dr Johnson, Dr Poole, Dr Caskie, Dr Bosman, the neurosurgery specialist registrar on call at Newcastle General Hospital, and Dr Clark.

[77]Sandra Brooks was present at the hospital on 2 January 2010 and did not dispute that the notes of Drs Johnson, Poole, Caskie and Bosman were all an accurate reflection of what she recalls Mr Wake and Ms Hastie told them, the only exception being Dr Johnson who described Ethan as ‘alert’. It is to be noted that Dr Johnson qualified that with the word ‘distressed.’ I cannot determine whether, as the Defence suggest, use of the word ‘alert’ by Dr Johnson was a specialised reference to the AVPU scale (an acronym from alert, voice, pain, unresponsive) system by which a medical professional or medical professionals measure and record a patient’s responsiveness, indicating their level of consciousness rather than its use in the ordinary sense of the word.

[78]Apart from that possibly ambiguous record, the combination of the medical records of the histories given, and signs and symptoms recorded in respect of Ethan when seen by those recording doctors, gives a generally consistent picture, that is materially different to the picture given by Ethan’s parents as that given to Dr Johnson on 1 January 2010. If the picture now painted by Ethan’s parents’ is the correct one, then a substantial cadre of the medical profession have independently recorded the same, or a similarly inaccurate, picture.

[79]The known natural history of pneumococcal meningitis is hard to reconcile with the Claimant’s witnesses’ account of the onset and progression of Ethan’s condition, and much more consistent with Dr Johnson’s account. Typically, pneumococcal meningitis isa disease characterised by rapid onset and swift deterioration.This is a point made by both microbiology experts at answer 4(b) of their joint statement. ‘… the Claimant’s symptoms as described by his grandmother and mother were consistent with, indeed typical of symptomatic pneumococcal meningitis. However, had this been the case, on the balance of probabilities the Claimant’s condition would have become materially worse much faster than was in fact the case.’

[80]Professor Eykyn, who impressed me as a fair and dispassionate expert witness, had difficulty in fitting the description given by Ethan’s family of his condition in the course of the consultation to other evidence, in particular her knowledge of the symptomatology and progression of pneumococcal meningitis. In her oral evidence before me she repeatedly expressed her incredulity that the Claimant’s witnesses’ account could be correct, commenting that it was “difficult to explain rationally,” and that she thought any reasonable microbiologist would have a hard time accepting that the parents’ account was correct. Dr Thomson made a similar point by reference to the CSF results taken at 03:00 on 3 January 2010.

[81]Dr Conway appeared to recognise the general proposition when he said in his report:

‘although pneumococcal meningitis may present insidiously, it is much more likely to present acutely and with significant deterioration over several hours’

. In his oral evidence his position was that the accounts of Mr Wake and Miss Hastie could be reconciled with an atypical presentation of pneumococcal meningitis, but intrinsic to that position was the fact that, being atypical, such a presentation was at least relatively unlikely.

[82]Some of the most dramatic signs or symptoms reported by Ethan’s family and friends cannot be fitted with the usual timescale of meningitis signs and symptoms. In particular, Dr Rogers explained his understanding that the ‘shrill, high-pitched cry’ reported by several family members on 1 January 2010 is a very late sign of meningitis, which usually means the child is dying. He was sceptical that this could have been heard on 1 January 2010 given the later events. The scream is not mentioned in any contemporaneous record, it was not asserted to have been mentioned to any doctor, apart from Ms Hastie’s briefly held assertion of such in her oral evidence as noted above. It was not mentioned in the account of events in the complaints correspondence from Mr Wake. In the witness statements, the unusual quality of the scream is primarily remarked upon by those other than parents and close family members – in particular Mr Hood and Mrs Greta Jones, who had not heard Ethan screaming before. Only in their oral evidence did the parents seem inclined to characterise the scream as being striking.

[83]Results of tests on Ethan’s blood taken at 20:30 on 2 January 2010, in particular the normal urea and creatinine readings, on the evidence of both Dr Thomson and Professor Cartwright, indicated that Ethan was not then dehydrated. Dr Conway and Professor Eykyn gave no view on this, Professor Eykyn noting that this was outwith her expertise. A lack of dehydration in Ethan at that time is inconsistent with Ethan’s parents’ account of the degree of vomiting before they saw Dr Johnson, with the account of him not eating at all since the morning of 31 December 2010 and drinking only sips of water since that time.

[84]In cross examination Dr Johnson expressed his surprise when he discovered the outcome of Ethan’s illness as follows:

‘I can only say that when I got the consultation record again in March 2010 I was really shocked as to what had happened. I always work every Friday 6-12pm, and invariably give the same advice. My first thought was ‘why didn’t they bring him back in the morning?’

[85]I deal now with the content and import and consequence of the advice given by Dr Johnson to Ethan’s parents as to the need for them to bring Ethan back to the walk – in centre if he did not improve. Ethan’s parents accept that some advice on these lines was given; they dispute that they were told to return at a specific time i.e. 9:00 or in the morning of 2 January 2015. They rely on the fact that they did not return in the morning as evidencing the fact that such specific advice was not given.

[86]Mr Spencer QC suggested in cross-examination that there were three possibilities about this: (i) the advice to come back in the morning if Ethan was not better, or earlier if he was worse, was not given; (ii). the advice was given, but not understood by Ethan’s parents; (iii). the advice was given, but not acted upon.

[87]I reject the first possibility on the evidence that I have heard, in particular from Dr Johnson. The advice is contemporaneously noted, albeit briefly and in medical Latin, and such advice reflected what was Dr Johnson’s routine practice.

[88]I also reject the second possibility. Having heard Dr Johnson’s evidence I have no reason to doubt his ability properly to communicate with patients or their family. Ethan’s parents impressed me as capable, articulate and were, perforce, because of Ethan’s congenital heart anomaly familiar with dealing with medical professionals.

[89]As to the third of Mr Spencer QC’s possibilities, a number of comments must be made. On the evidence before me it seems that Ethan’s parents sought medical advice on 1 January 2010 at the prompting of Mrs Hastie and Mrs Brooks on 31December 2009 and Mr Hood and both Misses Jones on 1 January 2010. I do not suggest that the fact that they needed that prompting is a reflection of any lack of responsible parental care on their part but rather of the fact that Ethan’s condition at the time was not, in truth, as they now describe it to me. He was ill, with a high temperature and vomiting, as well as a headache but as Dr Sidhu recorded as being told by Ms Hastie, Ethan was of “normal color, ” he was “drinking,” he was eating, even if “not eating very much”.

[90]Vomiting and high temperature were features that Ethan’s parents had encountered on previous occasions. The headache was a new feature but does not seem to have caused any particular alarm. It had been present for two days (per Dr Sidhu) or a “few days” (per Dr Johnson) before causing Ethan to be brought to see a doctor, and then only after a telephone triage with Dr Sidhu.

[91]Ms Hastie explained that she and Mr Wake had not taken Ethan back to a doctor before 1 January 2010 despite his apparent deterioration over the few days before that date because it was Ms Hastie’s understanding that Dr Cliff had advised her that she could not go back to see a doctor until the Tamiflu course of medication had been completed. I find that explanation very hard to accept, both because it goes against common sense, and in the light of Dr Cliff’s note of the advice given at the time of that prescription:

‘advised seek attention asap if worse’

[92]I consider that the likely explanation was that at that time Ms Hastie and Mr Wake were not unduly alarmed by Ethan’s condition. Support for that may be found in the history noted on 4 January 2010 by Dr Clark in respect of the events after the consultation with Dr Johnson and in particular the note “temperature settled” which would be consistent with the treatment given by Dr Johnson. Dr Cameron gave some material evidence about this in the course of Mr Spencer QC’s cross-examination as follows:

‘39.4°C in a child of Ethan’s age is not a significantly high temperature (over 40° is concerning), but it is high. I wanted to see what Dr Johnson did about it. He gave paracetamol suspension and ibuprofen and non-pharmacological advice. Less than 1% of children with temperature under 40° will get a serious infection. Goes up to over 5% above 40°….Not comfortable with temperature of 39.4 in a four year old, but the risk of coming to serious harm from that temperature is negligible’

[93]Further evidence that Ethan’s parents had no particular reason to be concerned with Ethan’s condition on the morning of 2 January 2010, appears from the other notes of the history recorded from the parents following arrival at hospital the following evening and from Ms Hastie’s draft witness statement, that notes:

‘Ethan slept in until about 11.30am… I went to work on 2nd January a little after 11.45. Ethan was being looked after by Graeme whilst I was working.’

Ms Hastie told me that she was not planning to work that day but worked between about 12:00 and 14:00 to do a favour. She left Ethan asleep when she went to work. She took longer to get home from work than normal and in the meantime Mr Wake had taken Ethan back to the walk- in centre.

[94]In his oral evidence Mr Wake confirmed that Ethan had slept in that morning. All this provides explanation as to why Ethan was not taken back to the walk-in centre until the afternoon of that day.

[95]It is material to look at the terms of Mr Wake’s initial letter of complaint of 31 March 2010 as to what happened on 2 January 2015. ‘Ethan was sleepy and his temperature was high throughout the morning. In the afternoon, Ethan appeared to be getting worse so I took him back to the Walk-In-Centre as instructed by Dr Johnson. I arrived at the Walk-In-Centre at 16:50, Ethan now began to deteriorate whilst I was at Reception.’ Following a description of Ethan’s condition the letter goes on:

‘By now, I was extremely frightened by Ethan’s condition..’

The letter concludes with the assertion that at that time:

‘Ethan was displaying sufficient red flag symptoms that would most certainly have prompted any GP to initiate treatment for meningitis.’

[96]In the circumstances of subsequent events, it would be wholly understandable if Ethan’s parents have reformulated, albeit unconsciously, the advice that had been given to them by Dr Johnson on 1 January 2010 as well as Ethan’s state that night.

[97]I am not satisfied on the evidence that I have heard, for the reasons given, that it has been proved on the balance of probabilities that the account given by Ethan’s family of the consultation with Dr Johnson on the evening of 2 January 2010, where it diverges from the account of Dr Johnson is, or is substantially, correct. I find that Dr Johnson’s account, based on his contemporaneous note, is to be preferred.

[98]That finding deals with the first of the issues for determination in this hearing. In the light of that finding the second issue becomes academic.

[99]It was the evidence of Dr Rogers, Ethan’s GP expert, that, even accepting Dr Johnson’s account of the consultation on 2 January 2010, as Ethan had presented to Dr Johnson with the ‘triad’ of symptoms of fever, headache and vomiting, Dr Johnson’s care still falls to be judged as being below the standard required of him. It was his opinion that a child with those signs or symptoms and no obvious focus of infection should always be referred for paediatric assessment. Whilst Dr Rogers accepted that Dr Johnson’s care on the basis of Dr Johnson’s account fell within the NICE guidelines, it was his view that that circumstance did not absolve Dr Johnson from the responsibility to refer Ethan to hospital. If the Guidelines advise admission to hospital, that should clearly be done. However, it does not follow that if the Guidelines do not advise admission to hospital, the converse is true i.e. a healthcare professional is automatically absolved from referring a patient to hospital where the Guideline triggers for hospital admission have not operated. That point is effectively made by the Guidelines themselves in the passage from their Preamble already referred to in this judgment.

[100]The Defence case is that the Guideline is intended to provide an evidence – based means of assessing risk which is intended to be widely if not universally accepted by the medical profession. Categorisation of a case as green is ‘low risk’, not ‘no risk’. Such a categorisation does not exclude bacterial infection in a case so categorised, but it provides a recommendation for management of such a case. For Dr Johnson to have managed Ethan’s case in accordance with the Guideline cannot fall outside the range of responsible GP practice.

[101]Dr Cameron considered that Dr Johnson having carried out a proper and thorough assessment of Ethan was entitled to send him home with appropriate ‘safety-netting’ instructions, i.e. the requirement to Ethan’s parents to bring him back the next morning if he had not improved overnight. His evidence was that if he had been advising in Dr Johnson’s place he would have treated Ethan as Dr Johnson did. It was his opinion that best practice was as set out in the NICE Guideline 47.

[102]I must judge between these opposing views. In reaching my conclusion I bear in mind a number of facts and matters.

[103]As a preliminary, I note two obvious facts that I consider it important to have in mind when considering this aspect of the case. Perforce, the experts advise without having been present at the material consultation and with the benefit of hindsight. I must recognise the potential danger of experts in those circumstances unconsciously imposing too high a standard of care upon the professional whose conduct is being judged than the law prescribes.

[104]The evidence was clear that Dr Cameron’s experience in general practice at the relevant time and since is substantially greater than that of Dr Rogers. Dr Cameron is a full time GP Principal and a GP trainer. Dr Rogers, by contrast, was last a GP Principal in 1996. He has not been in full-time GP practice since 1996 and retired from clinical practice entirely in 2010, having been winding down his workload for several years preceding that.

[105]I was unimpressed by the fact that Dr Rogers was ready to make new criticisms of Dr Johnson’s record-keeping for the first time in cross-examination, which did not appear in his report, or in the joint statement with Dr Cameron, or even in examination-in-chief. These were that Dr Johnson failed to record the ‘amount of drinking’ and that he failed to record the severity of the headaches. He also criticised Dr Johnson’s safety-netting advice for the first time in cross-examination. Mr McCullough QC submits to me that this approach suggests that Dr Rogers was seeking to improve the Claimant’s case rather than take an independent view or had failed to consider the case with sufficient care when advising initially. In any event he contends that those new criticisms of Dr Johnson were not realistic and do not reflect the general standard of GP practice. In support of that submission he observed that his criticisms of Dr Johnson’s record-keeping, if valid, would equally apply to the notes of Dr McNulty, Dr Cliff and Dr Graham at earlier consultations in 2009. So Dr Graham did not record history of temperature nor any measurement of respiratory rate despite recording “rapid breathing,” Dr McNulty did not record respiratory rate despite crackles in the chest and Dr Cliff did not record the history of temperature despite it being high at 39.2°C. It is inherently unlikely that all those GPs were deficient in their record-keeping and that this should be taken as an indication that Dr Rogers’ opinion does not provide a reliable indication of reasonable standards in General Practice.

[106]In his oral evidence, on several occasions Dr Rogers demonstrated that he was influenced by the family’s account, even when apparently considering Dr Johnson’s actions on the basis of Dr Johnson’s account of the consultation being accepted. So, criticism of Dr Johnson not recording Ethan’s respiratory rate was influenced by the family’s account that Ethan had had difficulty breathing. Dr Rogers conceded that this criticism would fall away when it was pointed out to him that, on Dr Johnson’s account, there was no sign of raised respiratory rate when he examined Ethan; a matter clear from Dr Johnson’s witness statement.

[107]Dr Rogers commented in his evidence that he had:

‘got the impression Dr Johnson would only have sent this child up if he found neck stiffness, and that is too late. I got the impression Dr Johnson would only send up to hospital if a child collapsed.’

[108]I have already given my general impression of Dr Johnson; specifically, my impression on this specific aspect of Dr Johnson’s evidence did not follow that of Dr Rogers.

[109]The thrust of the case advanced on Ethan’s behalf and supported by Dr Rogers, and to a degree Dr Conway, on this aspect of the case was that in allowing Ethan home on the evening of 1 January 2010, Dr Johnson took an unjustifiable risk. Being unable to exclude a bacterial infection bacterial infection and septicaemia, he was duty bound to seek a paediatric opinion.

[110]An important part of the case advanced by Dr Rogers for Ethan is the assertion that where a young child presents with what Ethan’s advisers have called the ‘triad’ of fever, vomiting and headaches, the patient must be referred for a specialist paediatric opinion notwithstanding a low risk categorisation applying the NICE Guideline.

[111]It is significant that the ‘triad’ does not appear in the NICE Guidelines. Each of the elements of the ‘triad’ have been specifically considered in the development of the NICE Guideline. Extracts dealing with the evidence in relation to headache and vomiting were produced to the Court demonstrating that even in 2013 these features were not concluded to be useful discriminating features. Height of fever and duration of fever also appear there, and can be seen to be regarded as reliable indicators only in children under 6 months (height of fever – “red sign”) or where a fever has been present for 5 days or more (duration of fever – “ambersign”).

[112]Dr Conway suggested that the reason for the exclusion was that the NICE Guideline only looked at individual features, not combinations of features and he asserted that it was the elements of the ‘triad’ in combination that made them significant. I find it little short of incredible that the NICE Guidelines have been drawn up on such a basis, ignoring a combination of symptoms which it is asserted by Dr Conway are a well known indicator of the risk of a patient developing meningitis.

[113]Despite being given opportunities in the course of this lengthy trial to produce them, Dr Rogers or Dr Conway were not able to produce any literature to support the assertion that the ‘triad’ of symptoms was notorious as an indicator of meningitis before any signs of meningeal irritation are apparent. This was notwithstanding that they suggested that the concept of the ‘triad’ was elementary and had been recognised for decades. Dr Conway’s own textbook chapter on pneumococcal meningitis only mentioned vomiting, headache and fever as part of a much longer list of possible symptoms and signs in adults, not as a specific triad. In relation to children, there is no reference to this triad of features. I cannot accept Dr Conway’s explanation as to why the triad would not be identified in such a text book.

[114]Dr Thomson was on the panel which devised the NICE Guideline 102 on ‘Bacterial meningitis and meningococcal septicaemia in children and young people younger than 16 years in primary and secondary care’ (issued June 2010, modified September 2010). He did not recognise the ‘triad’ as of any accepted or suggested significance in the context of distinguishing meningitis (or other serious bacterial infection) from self-limiting viral illness. He told me that he had not heard vomiting, fever and headaches described as a ‘triad’ at any stage of his career.

[115]Guideline 102 does not identify the ‘triad’ as being an important discriminator, or suggest that if present it would require immediate hospital referral. The Guideline expressly assumes management in accordance with Guideline 47. Each of the three features is listed, but in a much longer list of non-specific signs and symptoms. Specifically it is stated, with no mention of headache:

‘1.1.4 Be aware that children and young people with bacterial meningitis commonly present with non-specific symptoms and signs, including fever, vomiting, irritability, and upper respiratory tract symptoms. Some children with bacterial meningitis present with seizures.’

[116]Dr Rogers produced during the trial in support of the clinical significance of the ‘triad’ a printout from the Meningitis Research Foundation. This document is clearly aimed not at healthcare professionals but parents. Even then this document showed that ‘fever and/or vomiting’ and ‘severe headache’ were not symptoms meriting a ‘red tick’ to indicate they are more specific to meningitis and septicaemia and less common in milder illnesses. They were part of a longer list of specific and non-specific features. Furthermore, at their highest, these were identified features that may merit assessment by a doctor, and provide no indication as to what significance that doctor should attach to them.

[117]Dr Cameron was clear that the NICE Guideline reflected good and proper practice. Whilst accepting that GPs should not stick ‘slavishly’ to the Guidelines but should exercise clinical judgment and shouldhave a very low threshold for referring feverish children with no obvious focus of infection for further review, it was Dr Cameron’s clear view that Dr Johnson’s care of Ethan did not fail the Bolam test.

[118]Mr Spencer QC observed in his final submissions that when Dr Johnson sent Ethan home, it meant that an opportunity for Ethan to be treated and for the tragic outcome to be avoided was missed. As a statement of fact that may well be correct, but it does not answer the question whether or not Dr Johnson’s care was within or without the Bolam test.

[119]Sadly, exercising care as defined by the Bolam test, and without the benefit of hindsight, a doctor cannot guarantee always to give the care that it turns out would have been the most appropriate for a patient. Meningitis is a particularly cruel disease. In particular, pneumoccocal meningitis is characterised by being very rare, most usually of sudden and rapid onset with early signs and symptoms that are common to other much more commonly encountered medical conditions. Absent distinguishing symptoms, meningitis is very difficult to diagnose and without fault of treating clinicians, there is frequently a delay between the appearance of signs and symptoms that can in retrospect be attributed to the condition, and actual diagnosis. Distinguishing features such as rash, photophobia and neck stiffness are frequently absent in young children. In short, the condition frequently presents a treating clinician, at whatever professional level, with no advance warning of its presence or development, in distinction from other medical conditions very frequently encountered.

[120]There was evidence of its rarity and the difficulties of diagnosis from Dr Johnson and the experts for both parties. Dr Johnson had never encountered a confirmed case of meningitis, although he had referred 5 or 6 cases with suspected meningitis where it transpired not to be present. Dr Rogers had, in his career, only encountered one case of meningitis, in which case in distinction to Ethan’s case there was a rash to aid the diagnosis.

[121]In his evidence, Professor Cartwright commented that it was:

‘hundreds of times more likely that the signs Dr Johnson recorded were of a viral infection than of bacterial meningitis’

[122]He produced a paper suggesting that, even pre-vaccine availability, there were only about 480 cases of pneumococcal meningitis a year in the whole of England. He said that the condition can develop within a few hours or a few days; the majority of cases develop between the two extremes.

[123]Professor Eykyn stated that in her 30-year career as a microbiologist at St Thomas’ Hospital she had come across around 30 cases in children under 5. The majority of those cases were before the use of vaccine; the rarity of the condition had increased since 2006. She gave as her opinion that ‘until there is neurological deficit’ bacterial meningitis is a ‘very, very difficult diagnosis’. It is ‘very, very rare’.

[124]The microbiologists agreed that the clinical features of bacteraemia, initial asymptomatic meningeal invasion and early-stage meningitis (before neurological signs began to appear) were all virtually indistinguishable from one another, and from a viral illness.

[125]In the light of my comments above I will now consider the third issue, namely was it acceptable for Dr Johnson to have sent Ethan home with the treatment and advice he gave rather than to refer him for specialist hospital advice.

[126]Dr Johnson’s management followed the NICE Guideline. It was expressly supported by Dr Cameron not just by reference to what constituted a reasonable body of medical opinion, but also as being what Dr Cameron himself would have done. I consider that by his evidence, Dr Rogers set as the trigger for hospital referral a test, the ‘triad’ that is not evidence based, that is impracticable and unrealistic and the setting of which has been influenced by hindsight. On all the evidence that I have heard on this issue and applying the Bolam test, I determine that Dr Johnson’s management of Ethan was not outside the range of acceptable GP practice and do not characterise Dr Johnson as having been negligent in his treatment of Ethan.

[127]Although, in the light of my determination on issues one and three, the fourth issue becomes academic, for completeness I will now consider that issue, namely on the basis of Dr Johnson’s account, if Ethan had been referred to hospital on the evening of the 1 January 2010, what would have occurred at hospital on the balance of probabilities?

[128]Determination of this issue rests upon the evidence of Dr Conway and Dr Thomson and a resolution of the differences between them on this question.

[129]Dr Thomson’s view, in line with the NICE Guideline, is that Ethan would have had a urine test and then been sent home with safety-netting advice.

[130]Dr Conway agreed that the Guideline represented best practice but nevertheless thought that it was likely a paediatrician would have undertaken a blood test. He supported this assertion by reference to the presence in Ethan’s signs and symptoms of the ‘triad’, an argument the strength of which I have already discussed and adjudged. I accept that the NICE Guideline must be the most reliable indicator of whether or not blood tests would have been taken on referral. The clear advice is that they should not be, for those in the ‘green group’. Whilst I cannot rule out the possibility that a paediatrician might have advised a blood test, against the advice of the Guideline, in judging probabilities I consider, supported by the evidence of Dr Thomson, it more likely that the guidance representing best evidence-based practice would have been observed.

[131]In the light of the evidence before me and in particular the evidence of Dr Thomson and the NICE Guidelines, in my judgment, on the balance of probabilities, assuming a proper level of care from the specialist hospital medical team, Ethan would have been reviewed, examined, and sent home without blood tests with similar advice to that given by Dr Johnson; the course of events would materially have been the same.

CONCLUSION

[132]It follows from the foregoing that on the preliminary issue as to whether or not the Defendant is liable to the Claimant by reason of the matters alleged in the Particulars of Claim and, if so, whether or not any of the injuries pleaded were caused thereby, it is my judgment that the Defendant is not liable to the Claimant by reason of the matters alleged in the Particulars of Claim and there must therefore be judgment in this action for the Defendant. HHJ A R Collender QC 15 January 2015