Barnett v Medway NHS Foundation Trust [2015] EWHC 440 (QB)

Case No HQ12X03926[2015] EWHC 440 (QB)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONCENTRAL OFFICEVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23 rd February 2015
Before
HIS HONOUR JUDGE BRIAN C FORSTER QCSitting as a High Court Judge
Between
MR SIMON BARNETTClaimantMEDWAY NHS FOUNDATION TRUSTDefendant
Mr Christopher Wilson-Smith QC and Mr Nathan Tavares (instructed by StewartsLaw LLP) for ClaimantMr Edward Bishop QC (instructed by Bevan Brittan LLP) for DefendantHearing Hearing dates: 10 th-14 th November 2014 and 16 th December 2014.
JUDGMENTHHJ Brian C Forster QC:The claim
[1]By a claim dated 28 September 2012 the Claimant claims damages for pain, injury, loss and damage arising out of his medical treatment at the Medway Maritime Hospital, Gillingham, Kent.[2]The Claimant was born on 9 June 1958 and is now 56 years of age.[3]He suffers from the unusual congenital condition, hypophosphatasia. As a result he has deficient bone mineralization and alkaline phosphatase activity.[4]The Claimant is a very pleasant man who before the relevant matters worked as the manager of an equipment hire depot. Despite his difficulties he has over the years been able to carry out an active lifestyle.[5]He has had various hospital admissions because of problems arising from his condition.[6]In October 2009 the Claimant suffered significant pain. On 6 October 2009 he was admitted into hospital. He came under the care of Mr Ahmed, a locum consultant orthopaedic specialist. He was discharged home on 19 October 2009. There were then further outpatient appointments which are detailed later.[7]On 22 November 2009 the Claimant was admitted as an emergency. His condition was very serious. An MRI scan showed L5/S1 discitis with abscess formation. There was surgical intervention. A further MRI scan demonstrated infarction of the lower thoracic spinal cord resulting in paraplegia at the level of T7.

Amendment of the claim

[8]On the first day of the trial the Claimant sought leave to amend the claim and in particular paragraph 40(a) and paragraph 40(m).[9]I had previously considered the opening note and skeleton provided by each side. In particular I carefully considered the issues described as the main and live issues in the defence skeleton.[10]The Defendant objected to the amendments on the basis that they introduced a new alternative case on both breach of duty and causation and that they were not supported by the evidence.[11]I allowed the application because in my judgment the amendments were sufficiently founded upon the medical evidence and the consideration of the case at the two joint meetings of medical experts.[12]I was firmly of the view that the issues could reasonably be dealt with during the trial process. In particular I considered that the amendments emphasised and clothed the initial allegations which had been made.[13]The Claimant made no application for any adjournment for further evidence. The amendments would not have been allowed if any such application had been made because the case demanded trial.[14]Taking everything into account, I considered that there was no real prejudice to the Defendant by allowing the application. The Defendant had been able to see the way in which the case was being put from their own consideration of the medical evidence.[15]In so far as it was suggested that there was no evidence to support the amendments, I took the view that I would be able to properly assess all of the evidence in the trial at its conclusion.[16]Following my judgment there was no application on behalf of the Defendant for any adjournment.

The evidence

[17]The court heard oral evidence from: The Claimant; Mr Saif Uddin Ahmed, a locum consultant orthopaedic surgeon; Mr Ahmed Latif, who was a senior house officer at the relevant time; The Claimant’s experts: Mr James Wilson-MacDonald, a consultant orthopaedic surgeon; Dr Guy Sawle, a consultant neurologist; Professor Peter R Wilson, a professor of microbiology; The Defendant’s experts: Mr P H P Dyson, a consultant orthopaedic and trauma surgeon; Professor G L French, a professor of microbiology; Dr Fahwid Ul-Haque Chowdhury, consultant in radiology and nuclear medicine. Mr James Wilson-MacDonald, a consultant orthopaedic surgeon; Dr Guy Sawle, a consultant neurologist; Professor Peter R Wilson, a professor of microbiology; Mr P H P Dyson, a consultant orthopaedic and trauma surgeon; Professor G L French, a professor of microbiology; Dr Fahwid Ul-Haque Chowdhury, consultant in radiology and nuclear medicine.[18]I considered the further evidence available in the trial bundles and in particular the note of the agreement following the meetings of experts.

The issues

[19]Although many issues and factual situations have been considered during the course of the trial, the main issues are identified as follows: i) Was it negligent not to take blood cultures on 6 or 7 October before antibiotics were commenced? ii) Was it negligent to stop the antibiotics on 12 October and, if so, did the decision demand ongoing monitoring? iii) Were sufficient steps taken to identify the cause of the very high CRP? iv) Would blood cultures at admission have identified the underlying infection?

The submissions

[20]The full submissions are set out in the written skeleton provided by each side. The Claimants submissions cover many issues.[21]In the summary the Claimant submits: i) Blood cultures should have been taken before the antibiotics were commenced on 6 or 7 October. ii) Such blood cultures would have revealed the underlying infection. iii) A decision to stop the antibiotics could only be reasonable if steps were taken to monitor the inflammatory markers. iv) If the inflammatory markers had continued to be high, further tests would have been indicated, leading to the identification of the cause of the raised markers. v) A microbiologist should have been consulted to contribute to the development of the treatment plan. vi) The identification of the cause of the infection would have resulted in appropriate treatment.[22]The Defendant submits that: i) The decision made by Mr Ahmed to stop the antibiotics was reasonable. ii) There was no need to continue to monitor the inflammatory markers. They would probably still have been raised, as they were during earlier episodes of illness, and this would not have altered management. iii) The fact that a microbiologist was not consulted does not amount to negligent treatment. Mr Wilson-MacDonald considered that it would be best practice, but such a view cannot found an allegation of negligence. iv) All experts agree that the treatment given by Mr Latif on 9 November was appropriate. v) Blood cultures taken in October, before the antibiotics were commenced, or later, would not have identified the infection.

Chronology

[23]A full and extensive chronology has been provided. In the circumstances of this case it is necessary to set out some of that chronology so as to understand the analysis of the evidence. There is no dispute over the essential chronology.[24]On 1 April 2008 the Claimant suffered a fracture of the base of the fifth metatarsal. This was a stress fracture. That is the type of fracture from which he suffered from time to time as a result of his congenital condition.[25]On 12 September 2008 the Claimant was admitted with painful swollen ankles and right elbow, with a two-week history of fever and sweats. He was in hospital until 29 September 2008. There was an initial diagnosis of suspected septic arthritis or reactive arthritis following a genitourinary infection. The final diagnosis appears to have been one of reactive arthritis. He was prescribed steroids.[26]He was again admitted to hospital between 12 and 30 March 2009. The Claimant was admitted with a history of pain in his left thigh. As part of the treatment of his condition a nail had previously been inserted into each thigh. X-ray examination confirmed a stress fracture at the level of the locking screw on the left femoral nail. The left femoral nail was replaced at operation.[27]Following his discharge on 30 March 2009 the Claimant was seen in outpatient clinics by Mr Ahmed, the locum consultant orthopaedic surgeon and Dr Williams, his consultant rheumatologist.[28]On 2 October 2009 the Claimant suffered the onset of pain and consulted his family doctor.[29]On 6 October 2009 the Claimant was seen in the Accident and Emergency Department. There was no X-ray evidence of a femoral fracture. The plan was to discharge him if his blood results were normal. Bloods taken showed a high CRP of 371.2 and he was noted to be febrile at 38° C. A working diagnosis of osteomyelitis of the left femur was made. Intravenous antibiotics were later commenced.[30]On 7 October at about 08.45 the Claimant was seen on a ward round by Mr Singh, a consultant orthopaedic surgeon who ordered a bone scan.[31]On the 11th October Mr Ahmed came across the Claimant when visiting another patient. He carried out an examination and made an assessment. No note was made by him of his findings or plan.[32]On 12 October 2009 a locum senior house officer discussed the case with Mr Ahmed. He was told to stop the antibiotics and to chase the bone scan result.[33]On 14 October 2009 the bone scan report confirmed active osteoarthritis. The report continued:
“The possibility of an underlying osteomyelitis is notexcluded. Indium white cell scan will be arranged.”
Mr Ahmed noted that if the white cell scan was going to be a long time, the Claimant could go home and come back. He was to refer the case to King’s College Hospital.[34]On 19 October the Claimant was discharged home.[35]On 28 October 2009 the white cell scan was carried out. The scan report showed:
“The findings are in keeping with an inflammatory process, suspicious for infection, in the left knee. There is no evidence of osteomyelitis within the distal left femur.”
[36]On 9 November the Claimant was seen in an outpatient clinic by Mr Latif. Blood tests were carried out which showed a CRP of 97.5.[37]On 19 November the Claimant was seen by Dr Williams, the rheumatologist. He considered that the reactive arthritis had run its course. He left management to the orthopaedic team.[38]On 22 November 2009 the Claimant was admitted as an emergency. His CRP was 519. There was significant concern and a working diagnosis of osteomyelitis of the left greater trochanter was considered.[39]On 23 November the Claimant was complaining of pain in the lumbar spine, abdomen and loin. An urgent MRI scan of the abdomen and lower spine revealed acute spondylodiscitis at L5/S1 level, complicating intervertebral disc abscess, a small epidural abscess, and likely paraspinal abscess.[40]On 24 November surgical decompression of the abscesses was carried out. A post-operative MRI scan showed infarcts of the spinal cord. The Claimant now has T7 paraplegia.[41]The final situation can be summarised as follows. The Claimant developed lumbar spondylodiscitis with epidural paraspinal and psoas abscesses due to methicillin-sensitive staphylococcus aureus. This resulted in spinal cord infarction resulting in permanent paraplegia.

Discussion of the evidence and findings

[42]In considering the issues I have kept in mind the dangers of hindsight and that everyone is agreed that the Claimant presented as a complex medical case. The experts further agree that the diagnosis of a spinal infection is notoriously difficult.

The initial complaint

[43]The Claimant told me that when he attended hospital on 6 October 2009, and during that admission, he complained of pain in both buttocks. His wife confirms in her statement that this was the complaint that he made at home.[44]Mr Ahmed described that the Claimant was complaining of pain in his left thigh in the vicinity of the earlier operation site. Furthermore, the Claimant was experiencing difficulty and in particular pain when sitting on the edge of the bed.[45]In such circumstances it is helpful to look at the medical notes to see what is recorded. Mr Singh, who initially saw the complainant, made a note that the Claimant was complaining of pain at the back of his left thigh.[46]The Claimant himself sent an email on 6 October 2009 to the secretary to Dr Williams. In that email he described his condition. He said that the heel pain about which he had earlier complained had now improved. Of relevance, he stated:
“On arising on Saturday morning my left femur was in a great deal of pain.…The pain is entirely between the hip and the knee ….I’m becoming resigned to the possibility that I may have sustained another stress fracture.”
[47]In my judgment the Claimant was complaining of pain deep in his left leg in the vicinity of the earlier fracture. I believe the Claimant to be mistaken in his suggestion that he complained of pain in both buttocks. I have taken into account the fact that in an email dated 30 September 2009 the Claimant mentioned pain in his hips, but this was in the context of his complaint of heel pain and difficulty with weight-bearing. In my judgment he did not complain of pain in his hips and both buttocks on his admission in October.

The failure to submit blood for cultures before the prescription of antibiotics

[48]The experts are agreed that the obtaining of blood cultures before the prescription of antibiotics is a basic and essential step. For an unknown reason that action was not taken.[49]Mr Bishop QC on behalf of the Defendant does not concede that this failure constitutes a breach of duty. I find that there was a breach of duty. The need was basic. It was essential to attempt to identify any infection. The risk of not doing so was that an opportunity to identify infection was missed. The procedure was simple and could have been carried out.

The decision to stop the antibiotics and the need to check inflammatory markers

[50]On 12 October the antibiotics were stopped. Mr Ahmed stated that at the time he made the decision the Claimant had been taking the antibiotics for a few days. His condition had become more settled and his temperature was at a normal level. He would not have taken that step if there had been any cause for concern, such as any spikes of temperature.[51]Mr Ahmed explained that the Claimant’s presentation was consistent. He had a local deep pain in the back of the thigh. He said that he did consider the need for the monitoring of inflammatory markers. He did not consider that such monitoring was necessary. Firstly he considered that the raised markers were consistent with a sequentially failing fracture. He believed that the raised markers were related to the Claimant’s ongoing pain. At the time he did not have a definite diagnosis. It was necessary to exclude infection in the femur. Taking all things into account, he considered the appropriate action was to proceed with the white cell scan as recommended. The result of the scan would assist in determining whether he was dealing with a failing fracture or whether there was osteomyelitis in the leg.[52]In their joint statement the orthopaedic experts stated:
“It was agreed that it was reasonable for Mr Ahmed to discontinue the antibiotics on 12/10/09. Mr Wilson-MacDonald considers that this should have been followed by a thorough assessment of the inflammatory markers, and that an attempt should have been made to find the cause of the raised inflammatory markers.”
[53]For his part Mr Dyson considered that serial measurement of inflammatory markers was undertaken at reasonable intervals.[54]In evidence Mr Wilson-MacDonald told me that it was very rare to see such a high CRP result where there is no infection. He considered that a fracture or micro-fracture of the type being suffered by the Claimant would not in itself result in such a high CRP.[55]Mr Wilson-MacDonald considered that when the antibiotics were stopped it was essential to monitor the inflammatory markers. This should have been carried out on two occasions during the first week and thereafter on a weekly basis. In cross-examination he maintained that not to repeat testing of CRP at any stage was below the level of reasonable competence. He considered that the suggested testing of inflammatory markers would have led to a CT scan or an MRI scan. Mr Wilson-MacDonald was invited to consider the history of high CRP readings. There was agreement that the CRP would have been about 200 at the time of discharge and that the CRP was 97.3 when tested on 9 November.[56]Mr Wilson-MacDonald maintained that there was no explanation of the acute initial presentation and that necessary monitoring and investigation was essential. Mr Dyson stressed that the Claimant’s clinical condition had settled. In his opinion there was no necessity for the Claimant to remain in hospital. The Claimant was not being discharged from care. An appropriate appointment for the white blood cell scan had been arranged. He would then be seen in the outpatient clinic. The Claimant was also subject to review by his rheumatologist.[57]Mr Dyson considered that the high CRP could have been contributed to by acute reactive arthritis, the unstable fracture and underlying infection. He accepted that the possibility of an underlying infection had to be clearly kept in mind but the clinical position had improved to the position the Claimant had been in for several months.[58]He conceded that the high CRP should have been followed up. The inflammatory markers should have been repeated.[59]Professor Wilson confirmed his view that the CRP had been very high and would not be explained by the fracture. He considered that even if the CRP had dropped to be in the region of 200, it was important to keep in mind that the white count was high at 13.2. In such circumstances any discharge of the Claimant to his home should have involved monitoring.[60]Professor French considered the case to be more complex than he had initially realised. He confirmed that the CRP of 371 was very high. At the time there was no clear explanation for the high result. Even now, he considered the reading to be in a sense unexplained. This was in part because, even if there had been an infection of the spine, it would not have given rise in itself to such a high result. In his opinion several things must have been going on, some of which we do not know.[61]The professor described how he thought it was reasonable to stop the antibiotics, but close management of both the CRP and white cell count was required.[62]Taking all matters into account, I find that it was reasonable to stop the antibiotics, but that a doctor with full knowledge of the Claimant’s background, acting reasonably and prudently, would have arranged for close monitoring of the CRP and white cell findings.

Should a microbiologist have been consulted?

[63]Mr Ahmed stated that he did not consult a microbiologist because at the time he did not have a diagnosis. If a diagnosis had been made and there had been a specific reason to seek advice, he would have then consulted with a microbiologist.[64]In the joint statement following the meeting of the microbiologists it is recorded:
“Professor French is of the opinion that microbiology advice would have been helpful but not mandatory. Professor Wilson believed microbiology advice was required in view of the presentation.”
[65]It is accepted that the need to involve a microbiologist is a matter for orthopaedic opinion. The orthopaedic specialists expressed the following views at the joint meeting:
“Mr Wilson-MacDonald is of the view that best practice would have been to consult a microbiologist before discharge from hospital. Mr Dyson agrees that this might have been helpful but that there was no imperative for this.”
[66]Although it may have been hoped that a microbiologist would be consulted, or that it would have been good practice to consult a microbiologist, the evidence available does not support an allegation of breach of duty by failing to do so.

Would blood cultures have been positive?

[67]There are two issues. Whether there was then an infection in the spine or blood to be identified and whether it would have been identified.[68]The microbiologists expressed different opinions as to whether there was a spinal infection at that time and as to whether there would have been positive blood cultures. Professor French considered that there would have been a silent spinal infection. In view of the absence of typical symptoms he believes that the Claimant comes within the group who would not produce positive cultures. Professor Wilson believes that the Claimant comes within the majority group identified in the research literature where a positive result would be obtained.[69]Professor Wilson also considers that a staphylococcal bacteremia present during October could have resulted in the spinal abscess developing in November.[70]I note that in his own report at page 31 Professor Wilson stated “There was no unequivocal evidence of infection before mid November 2009. The fever, leg pain and raised WBC in October 2009 would have been consistent with infection or repeated stress fractures due to hypophosphatasia….a staphylococcal bacteremia during October could have resulted in the epidural abscess developing.”[71]Both the microbiologists stated that the case is difficult and it is clear to me that this is an area of considerable uncertainty. I can find no evidential base established to the required standard. This is an unusual situation in which there is a lack of actual evidence to help with a determination of the conflicting opinions. In such circumstances whilst I found the evidence of Professor French the most likely I have not been able to make findings concerning the onset and progression of the infection to the relevant standard of proof.[72]I have carefully assessed the evidence and find that the Claimant has not established on the balance of probabilities where the infection was present or that blood cultures would have been positive. It is also only a possibility that a bacteremia was present at the time the blood cultures should have been taken. What would have been the effect of monitoring after the Claimant was allowed to go home?[73]If there had been regular CRP testing the results for the period to 9 November would have shown a falling CRP level.[74]Professor Wilson accepted that by 19 October the CRP was probably down to 150. It is a fact that following testing at the outpatient appointment on 9 November, it had reduced to 97.[75]In my judgment the CRP level and the result of the white cell scan would have been considered as showing an improving picture. I can find no reasonable basis to suggest that there would have been any significant change in patient management before the result of the white cell scan was known. The scan report stated that the findings were in keeping with an inflammatory process, suspicious for infection, in the left knee. There was no evidence of osteomyelitis within the distal left femur.[76]Mr Wilson McDonald suggested that monitoring would probably have led eventually to a MRI scan of the spine being carried out. I must keep in mind that Dr Chowdhury considered that such a scan would not have been performed unless there was a specific clinical reason to justify it. Both Mr Dyson and Dr Sawle stress there was no obvious neurological involvement to justify such a scan.[77]It has not been established on the balance of probabilities that an MRI scan should have been performed or that monitoring would have led to such a scan of the spine.[78]The need for a CT scan of the chest and pelvis was also raised in evidence. I find that this was no more than a possible investigation. In any event there is no clear evidence as to when the scan should have been carried out or as to what would have then been revealed.

What would have been the effect of recommencing antibiotics on 9 November?

[79]I consider this in part to underline the difference in opinion between the microbiologists.[80]Professor French states that, in order to have produced signs and symptoms of cord compression, the spinal infection that led to an abscess must have started before the 15 October. If antibiotics had been recommenced on 9 November, given the period without antibiotic treatment there would have been infarction regardless of the restarting of antibiotic treatment on 9 November.[81]Professor Wilson considers that the abscess could have started as late as 10 to 21 days before 15 November. That would be from 25 October to 5 November. Accordingly he considers that the giving of intravenous antibiotics from 9 November with surgical intervention would on balance have been sufficient to avoid infarction.[82]Each expert considered this to be a complex and difficult case. Professor Wilson accepted that it was impossible to have all of the answers and, as stated above, Professor French was of the opinion that even now it was impossible to understand everything that had happened.[83]Taking all matters into account, it has not been established to the required standard that the infarction would have been avoided if antibiotics had been recommenced on the 9 November. Summary[84]It is agreed that blood cultures should have been taken on admission prior to the giving of antibiotics.[85]If blood cultures had been taken at that time it has not been proven on the balance of probabilities that there would have been positive cultures.[86]The decision to stop antibiotics was reasonable, but having regard to the high CRP there should have been close monitoring of the Claimant.[87]The involvement of a microbiologist would have been good practice but the failure to involve one is not a breach of duty.[88]The microbiologists express very different opinions as to when the spinal infection must have commenced and accordingly as to the latest date at which further antibiotic treatment would have prevented infarction.[89]It has not been established on a balance of probabilities that the proven failures which are breaches of duty caused the consequences alleged.[90]Spinal infection remains a difficult diagnosis to make particularly when there are co-pathologies.[91]I feel compelled to mention that in many respects the treatment received and practices followed were poor. Blood cultures were not taken. Mr Ahmed accepted his own failure to make a note. Laboratory notification that a blood sample submitted could not be tested because it was haemolysed did not result in a new sample being submitted. The discharge letters did not provide meaningful information. If any referral letter was prepared by Mr Ahmed it has never been produced.[92]I have carefully considered all aspects of the case because of its importance to the Claimant. On the evidence there must be judgment on the claim for the Defendant.