Long v Western Sussex Hospitals NHS Trust [2016] EWHC 251 (QB)

Case No HQ15C02123

[2016] EWHC 0251 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

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

Date 28 January 2016

Before

HHJ COLLENDER QC

(SITTING AS A JUDGE OF THE HIGH COURT

Between

WILLIAM LONGClaimant

WESTERN SUSSEX HOSPITALS NHS TRUSTDefendant

Mr Augustus Ullstein QC (instructed by Lyons Davidson) for Claimant

Mr Matthew Barnes (instructed by Capsticks) for Defendant

Hearing Hearing dates: 18,19,20,21,22 and 25January 2016

Judgment

HHJ Collender QC :

INTRODUCTION

[1]The Claimant, Mr Long, claims damages for personal injuries and consequential loss arising from the alleged negligence of the staff of St Richard’s Hospital, Chichester, (“the hospital”) arising from their alleged delay in diagnosis, and consequent treatment of, a post operative infection following surgical repair of an intrascapular fracture of the head of Mr Long’s right femur.

[2]The Defendant is the National Health Service Trust responsible for the medical and surgical services at the hospital. It is agreed that the Defendant is vicariously liable for any negligent care given to Mr Long at the hospital.

[3]On 14th April 2008, Mr Long fell some seven feet onto concreted ground from a flat roof whilst engaged in his work as a self employed builder and roofer. He suffered a fracture of the head of the right femur. He was taken to St Richard’s Hospital and on 15th April 2008 he underwent an operation for repair of the hip whereby two screws and a plate were inserted into his hip bone.

[4]On 29th April 2008, Mr Long was readmitted to hospital suffering from increased pain in the right hip. He was discharged from the care of the hospital following that admission on 30th April 2008.

[5]He was readmitted to the hospital suffering from a serious infection in the hip on 5th May 2008 and received extensive further treatment following that admission.

[6]As originally pleaded, Mr Long’s case was that there was a failure by the staff of the hospital to diagnose the infection in his right hip on 29th or 30th April 2008 and he was inappropriately discharged on 30th April 2008. There was a further failure to diagnose and treat the infection appropriately when he presented on 5th May 2008 and an additional failure to remove the femoral head during an operative procedure on 12th May 2008.

[7]For the purposes of this action only, the Defendants have admitted that there was a breach of duty following Mr Long’s readmission on 5th May 2008 whereby there was a four day delay in undertaking exploration and debridement of Mr Long’s right hip until 10 May 2008; it should have been undertaken at the latest on 6th May 2008.

[8]Again, as originally pleaded, Mr Long alleged that as a result of the alleged negligence, he underwent intensive antibiotic therapy, several unnecessary procedures, total hip replacement, suffered cardiac arrest during one operation, depression, extended period of traction, pressure sores, several hip dislocations and ongoing pain. As a result, he was unable to return to work, requires assistance around the home and will require further revision surgery. Substantial damages were sought.

[9]As may happen in litigation, the evidence in support of Mr Long’s case has not proceeded in the trial as anticipated. Mr Faux, Mr Long’s orthopaedic expert conceded that the decision made by the staff of the hospital initially to leave Mr Long’s right femoral head in place was reasonable and that the delay in diagnosing the infection has made no material difference to what has happened to Mr Long in the long term. In the light of that evidence, on behalf of Mr Long, Mr Ullstein QC has had to concede that the majority of the claim is now unsustainable.

[10]Save for the admission noted above, the Defendants deny breach of duty. Causation is in any event denied by the Defendants; they contend that any delay has not caused Mr Long any loss and damage for which he is entitled, in law, to be compensated.

[11]There has been discussion as to the sufficiency of Mr Long’s pleaded case in the light of these developments. Mr Ullstein QC has provided additions to Mr Long’s pleaded case that read as follows:

“AMENDMENTS TO THE PARTICULARS OF CLAIM”

In consequence of the fact that the Claimant was discharged on 30th April 2008 the Hospital were unable to observe or monitor his deterioration, including vomiting, becoming jaundiced and slipping in and out of consciousness, in the days between then and 5th May. Further, had the blood tests been repeated on 1st May they would have shown further elevated levels of CRP, WCC and ESR resulting in the infection being diagnosed and debridement carried out by 3rd May. Yet further, in consequence of the admitted delay between 5th and 10th May the Claimant suffered a further 5 days of serious illness, namely sepsis as documented in the Hospital Notes.” Mr Barnes responded in writing to that proposed amendment as follows:

“First, this is, it appears to the Defendant, an acceptance that the Particulars of Claim require amendment. Secondly, any application to amend should be rejected given: (i) the late stage we are now at, (ii) the fact that, as a result of the way in which the claim was pleaded, there is no evidence on this issue, save for that of the orthopaedic experts, who have given evidence as to the extent of the delay, but not with the consequences of any delay, and (iii) the Claimant has not raised this issue with any of the Defendant’s witnesses. Thirdly, in the alternative, the absence of persuasive evidence that results from the way in which the claim has been pleaded and conducted leads to the conclusion that, even if he establishes that his CRP, WCC, and ESR would have been raised on 1 May 2008, the Claimant cannot demonstrate that he is materially worse than he would have been in any event, in circumstances where: (i) he would have deteriorated so that he was systemically unwell before intervention, on the evidence of both orthopaedic experts; (ii) it follows that he would have received antibiotics on or about 5 May 2010, and debridement on or about 6 May 2008; and, (iii) there is no evidence that this caused him to be materially more unwell than he would otherwise have been. Fourthly, as to the last paragraph of the Amendments to the Particulars of Claim, the proposition that there was a delay between 5 and 10 May 2008 is not supported by the orthopaedic experts, who have agreed that the delay was in fact between 6 May 2008, when debridement should have taken place, and 10 May 2008, when debridement did take place.”

There is force in those objections. However, I have decided to give my judgment, giving due consideration to the proposed amendments and the Defendant’s comments thereon.

[12]The parties are broadly agreed that only two issues now remain for court decision. I define those issues as follows: i) Were the Defendants in breach of duty in discharging Mr Long, as they did on 30th April 2008, without making arrangements for Mr Long’s blood to be re-taken to test his inflammatory markers on 1st May 2008 so that his condition could be re-assessed as an inpatient or an outpatient, on that day? ii) Did the delay (between 3rd and 10th May, if Mr Long succeeds on the first issue; between 6th and 10th May, if he does not) cause Mr Long injury such as to give rise to a sustainable claim for damages for pain, suffering and loss of amenity and, if it did, what is the quantum of that damage?

THE FACTS

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

[14]Mr Long was born on 28th October 1965, so was 42 at the time of the events under review and is now aged 55. He was a self-employed builder and roofer. Whilst, before April 2008 he was reasonably fit, he suffered a severe episode of back pain after sustaining a crush injury to his lower back in 1997. Although by 2000-2001 his lower back pain had substantially resolved he told me that he has suffered from “niggles” in his back on occasions since that time.

[15]He was a married man with 3 children; 2 sons now aged 26 and 20 and a daughter aged 14. The eldest boy is a child of a previous marriage. Sadly, as a result of the events which give rise to this action, his marriage broke down in 2013 and he now lives alone.

[16]Following the accident and operative treatment already described, on 29th April 2008, Mr Long presented to the Accident and Emergency Department of the hospital complaining of severe pain in the right hip. His complaints of pain were of such severity that he was given morphine on the attendance of the ambulance service and his mobility was so limited that he had to be removed from his home by the fire brigade who effected his departure from the middle floor of his house over the balcony and into a vehicle to take him to the hospital.

[17]The hospital records demonstrate that Mr Long gave a history on admission of vomiting, of having felt sick since the administration of morphine, that he had slipped on a crutch, putting weight on his hip, either 5 days earlier, or 2 days earlier, or both, and of having felt something go as he walked up stairs. The record of vomiting is consistent with an interpretation that the vomiting preceded the administration of morphine but is probably more correctly attributable to that administration.

[18]His temperature on admission was 37.4 degrees, and on assessment, his vital signs were normal, and his wound was clean and dry.

[19]Bloods were taken, which demonstrated that Mr Long’s inflammatory markers were raised with a C-Reactive Protein (CRP) of 109 (normal 4-11), a raised white cell count (WCC) of 16.7, and an Erythrocyte Sedimentation Rate (ESR) of 17 against a normal of 14. On examination there were no signs of infection.

[20]Mr Long’s case was discussed at a trauma meeting on 30 April 2008. The orthopaedic consultant on duty was Mr Taylor and, although he did not see Mr Long, it is clear to me on the evidence, that he reviewed the results of the blood tests, gave a provisional diagnosis and devised the plan for further treatment that was recorded as:

“Mobilise as pain allows. Rpt bloods ?Infection.”

[21]The notes record that it was planned by somebody on the orthopaedic team that those bloods would be taken on the morning of 1st May 2008.

[22]Mr Long was then seen by a physiotherapist, Miss Williams, who carried out an examination of Mr Long, gave him physiotherapy advice and who gave a provisional diagnosis of the cause of Mr Long’s pain as “? Facet joint irritation.” Her notes and her evidence was to the effect that from a physiotherapy point of view, Mr Long could safely be discharged.

[23]By the afternoon, Mr Long was able to mobilise, albeit non-weight bearing and with elbow crutches, both on the ward and using stairs, and was keen to go home.

[24]Mr Long was reviewed by Dr Jefferies, a houseman who was three weeks into his first orthopaedic rotation. His record made following that review reads as follows:

“Obs stable, Afebrile, Pt d/c, Pt pain under control – likely all from lower back, Pt keen to go home, Home as prev arranged.”

[25]In accordance with that record, Mr Long returned home. The discharge letters sent to Mr Long’s GP did not note the blood test results that had been obtained at the hospital or note the plan and provisional diagnosis recorded as “Rpt. Bloods ? Infection” made by the hospital. The discharge letter said: “pain in hip probably from lumbar spine”.

[26]Mr Long was re-admitted to the hospital at approximately mid-day on 5th May 2008 via the ambulance service during the morning of 5th May 2008, his GP having attended him at his home, he having been called by Mr Long’s wife. On admission, Mr Long had a raised temperature, a CRP of 405, and a WCC of 16.8. An infection of unknown origin was diagnosed and shortly thereafter Mr Long was prescribed empirically, broad spectrum, intravenous antibiotics.

[27]On 7th May 2008, an ultrasound guided aspiration of the hip was performed, and it was noted that there was, “a fluid collection centred just distal to the femoral stem”, from which, “a small volume of blood stained fluid”,was aspirated, although culture of the aspiration did not reveal any organisms.

[28]On 8th May 2008 it was noted that, “R Hip tender, serous ooze from distal wound hot, ↓ ROM. R groin lymphadenopathy.” Blood tests revealed a CRP of 354 and a WCC of 13.5.

[29]At 01.00 hours on the morning of 10th May 2008, it was noted that Mr Long’s wound had burst, and 300mls of pus had come out. In the circumstances, Mr Long was taken to theatre later on the same day for a washout of the wound, and the following note was made:

“Old wound opened up & large amount of pus came out. Going down to the implant. Stitches opened up & necrotic tissue debrided. Thorough washout done…”

[30]On 12th May 2008, at a further operation the metal work in Mr Long’s right hip was removed and the infected area further debrided. The infection from which Mr Long suffered that led to septicaemia in his case was traced to the Staphylococcus Aureus bacterium.

[31]In the light of the limits of the issues that remain for decision I need not further detail the history of Mr Long’s treatment.

THE LAW

[32]The relevant law applicable to this action is not controversial.

[33]The test to be applied in respect of breach of duty in respect of clinical negligence is well known. It was set out in a jury direction by Mcnair J in Bolam v Friern Hospital Management Committee

[1957] 1 WLR 583

as follows:

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

[34]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.”

[35]On a different point, I note the case of Johnston v NEI International

[2007] UKHL 39

in which at paragraph 19 Lord Hoffman considered, in a personal injury case, the question of what amounts to damage. In a case in which the Claimant had proved that he was suffering from pleural plaques, a condition that caused no symptoms, Lord Hoffman said this:

“It seems to me with respect that Smith LJ asked herself the wrong question. One is not concerned with whether the plaque is in some sense “injury” or (as she went on to decide) a “disease”

. The question is whether the claimant has suffered damage. That means: is he appreciably worse off on account of having plaques?”

THE EVIDENCE

[36]I heard from Mr Long and his ex-wife, Mrs Kim Long. Expert evidence was called on his behalf from Mr Faux, an Orthopaedic Consultant, and Dr Stone, a Microbiologist.

[37]Statements of witnesses for the Defendants, Dr Saif Al-Nahhas, Dr Ayling and Dr Adam were agreed. For the Defendants I heard from Miss Williams, Dr Jefferies, Mrs Kendall, Mr Singh, Mr Taylor, Mr Moss, and Miss Burgert.

[38]Expert evidence was given for the Defendants by Professor Atkins, an Orthopaedic Consultant, and Professor French, a Microbiologist.

[39]I will note the evidence of those witnesses that I consider relevant and significant to the remaining issues and my conclusions in this case.

[40]Mr Long told me that on arrival at the hospital on 29th April 2008 he repeatedly explained to the doctors that there was something wrong with his hip, not just because the pain was so great but because he was vomiting, drowsy and the pain was far beyond anything that anyone at the hospital had told him to expect. He told me that when he was discharged on 30th April he was given no advice or follow up. Over the course of the next few days his condition deteriorated. He was permanently vomiting, the pain became unbearable and he felt terribly unwell. He began to slip in and out of consciousness and became jaundiced.

[41]Mrs Long told me, and Mr Long confirmed, that before Mr Long’s admission on 29th April 2008, because of the vomiting that afflicted Mr Long, she had obtained both stronger pain killers and anti-sickness medication for Mr Long. There is no record from the GP’s surgery, a pharmacy or in the hospital record of drugs on admission to confirm that prescription.

[42]Dr Jefferies told me that he had no recall of Mr Long’s case but he said that he “would have” discussed his case with a senior colleague before authorising his discharge.

[43]Neither Mr. Taylor nor Mr. Singh said they had been consulted by Dr Jefferies; they were not on duty at the time. No record of who was the orthopaedic consultant on duty at the relevant time has been produced by the Defendants. Dr Jefferies accepted that there is no clinical note of his evidencing any discussion by him with a senior colleague before he authorised Mr Long’s discharge.

[44]Dr Stone told me that septicaemia from the Staphylococcus Aureus bacterium is a virulent and dangerous condition with a 30% mortality rate. It spreads to other parts of the body and it is, therefore, essential to treat it quickly and aggressively with antibiotics. The infection should have been treated with antibiotics no later than 2nd May 2008.

[45]Mr Taylor endorsed Dr Jefferies decision to discharge Mr Long. He was of the view that Mr Long should have been advised to re-attend for a further blood test within one or two weeks.

[46]Mr Singh’s evidence was that he would have discussed Mr Long’s case with Mr Taylor before discharging Mr Long. He would have required the blood test to be repeated the next morning i.e. 1st May 2008.

CONCLUSIONS

[47]I turn to my conclusions.

[48]I will deal firstly with the evidential issue, did Dr Jefferies consult with a senior colleague before he authorised the discharge of Mr Long on 30th May 2008?

[49]I am satisfied that he did not. As already noted, Dr Jefferies has no recollection of doing so and can only say that he would have done so. I find it hard to accept that if he considered it important to consult on Mr Long’s case with a senior colleague he would not have thought it equally important to note that discussion in Mr Long’s medical notes. In my judgment, faced with the clearly expressed view of Miss Williams that from a physiotherapy point of view Mr Long was fit for discharge that day, combined with the improved clinical picture in Mr Long’s case and the keenness of Mr Long to return home Dr Jefferies, a junior member of the orthopaedic team, thought it appropriate, upon his own authority, to discharge Mr Long.

[50]I turn now to the issue to which the expert evidence was directed, namely the duty of care to be fulfilled by the hospital staff towards Mr Long in the circumstances of this case and whether or not that was fulfilled. More specifically the question must be, did Dr Jefferies fulfil his duty of care towards Mr Long or was he in breach of that duty?

[51]During Mr Long’s admission on 29/30th April 2008 those treating Mr Long were faced with a problem of differential diagnosis i.e. the distinguishing of a particular disease or condition from others that present similar symptoms. In applying differential diagnostic procedures it is important that medical professionals take appropriate steps to eliminate any imminently life-threatening conditions from which a patient may be suffering even where the signs and symptoms of a patient point more strongly to an alternative diagnosis than to a life threatening condition, the signs and symptoms of which are present in a patient to a less strong degree than those of the alternative diagnosis. Exactly what is the best course in the particular circumstances of a particular patient will often be a matter of fine and difficult judgment for a clinician. However, where an alternative diagnosis is of a life threatening but treatable condition a clinician, acting responsibly, must be concerned in dealing in a case where a differential diagnosis may fairly be arrived at, to reduce the risks from either, or all, the diagnostic possibilities.

[52]I accept that Mr Long presented with normal vital signs, his temperature was only mildly raised on 29th April 2008 and seems to have returned to normal or nearly normal by the following day, and his wound was clean and dry. As accepted by Mr Faux, none of this was indicative of infection. The fact that Mr Long’s pain and mobility improved dramatically during his admission pointed towards the cause of that pain being either unrelated back symptoms as diagnosed by Miss Williams or recovery from the slipping episode or episodes reported by Mr Long on admission rather than infection. That, or those episodes, might well have been related to the collapse of metal work in Mr Long’s hip joint. The wound showed no signs of infection. Whilst Mr Long’s blood markers were elevated, especially the CRP, I accept Professor Atkin’s evidence that that was as consistent with inflammation following the operative treatment given to Mr Long on 15 May 2008, as infection.

[53]However, that was not the whole story. Mr Long had recently had extensive surgery. Infection from the Staphylococcus Aureus bacterium from the skin of the patient or other sources is a well recognised complication of surgery of the kind which Mr Long had just undergone. Deep seated infection may be hard to detect. Mr Long’s blood markers were a sign wholly consistent with infection. I accept that a combined elevated CRP, WCC and ESR, is a clear, although not conclusive, indication of infection, a proposition supported by a paper kindly produced for me by Dr Stone entitled: “Prospective Analysis of Preoperative and Intraoperative Investigations for the Diagnosis of Infection at the Sites of Two Hundred and Two Total Hip Arthroplasties” by Mark J. Spangehl – [1999 - The Journal of Bone and Joint Surgery]

[54]Mr Taylor knew all this and correctly suggested the differential diagnosis of infection and correctly advised a repeat blood test for the following day. If the markers produced by such a repeat test had been much as before or had reduced, then the case for the diagnosis of post operative inflammation would have been strengthened. If the markers produced by such a repeat test had been raised then the case for the diagnosis of infection would have been strengthened.

[55]I accept that medical professionals must be prepared to respond to changing circumstances. However, I do not consider that the circumstances here had changed to the point where Dr Jefferies was entitled, on his authority alone, to abandon the treatment plan of Mr Taylor.

[56]Perforce, it must be speculation what course would have been advised by the consultant to whom I judge Dr Jefferies should have referred the decision as to whether or not Mr Long could be discharged. Those consultants now asked that question are put in the invidious position of giving an answer with the benefit of hindsight. Mr Singh said he would have required a further blood test to be performed the next morning. Mr Taylor said that he would have been content with a discharge of Mr Long so long as a blood test was to be repeated within a week or two. Mr Faux would have required an early follow up blood test, Professor Atkins would not have required such a test.

[57]None of the professionals was willing to defend the discharge information provided to Mr Long’s GP. Importantly, that did not detail the blood test results or note Mr Taylor’s differential diagnosis of infection. No advice was given to Mr Long on discharge that he might be brewing an infection and that such a condition, if present, could be of life threatening significance and the consequent need for him urgently to seek further medical advice if his condition deteriorated, rather than improved, as it had done in the period before his discharge.

[58]In my judgment in all the circumstances of this case, I consider that the staff of the hospital should have required a follow up blood test for Mr Long the next day whether as an in-patient or an outpatient. I consider that the probability is that if Dr Jefferies had referred Mr Long’s case to a consultant clinician that would have been the course determined.

[59]It follows from the foregoing that I answer in the affirmative the question earlier posed, namely, were the Defendants in breach of duty in discharging Mr Long, as they did on 30th April 2008, without making arrangements for Mr Long’s blood to be re-taken to test his inflammatory markers on 1st May 2008 so that his condition could be re-assessed, as an inpatient or an outpatient, on that day.

[60]I turn to the second question earlier posed. I will consider the question on the assumption that it would be appropriate, despite Mr Barnes’ powerful arguments to the contrary to allow the proposed amendments to the pleadings. Having heard the case and the evidence relevant to this issue, I consider it would be unfortunate for this aspect of the case to be determined on a pleading point alone.

[61]As a preliminary, I cannot help making the following observation. Mr Long has suffered very severe misfortune as a result of the fracture of his hip. The history of treatment and the slow and painful course of his rehabilitation can only evoke great sympathy in all right thinking people. Fortunately, in the past year or two he has told me that he has made considerable progress; the conclusion of this litigation can only be beneficial for his future progress.

[62]Of course, if all, or most, of his post fracture pain, treatment and his continuing disabilities were all attributable not to his fracture but the negligence of the Defendants then he would be entitled to a very considerable sum by way of damages. In the assessment of such a sum, ordinarily, a description of the matters determining that sum would not include a day by day analysis of the damages attributable to each day passed by Mr Long since the negligent act relied upon. It would be determined by reference to total periods in hospital, the number and nature of operations performed and most importantly the remaining disability from which Mr Long suffers. In a case of treatment as complex as this, there may well be differences between the optimum recovery time that could be achieved where all circumstances militate in an injured persons favour, and the more likely circumstance, where delays arise in the course of treatment for a variety of reasons, some perhaps attributable to inefficiencies or fault, others to matters beyond human control. In my judgment sense and proportionality militate against performance of such a day by day analysis or identification and analysis of such minor delays.

[63]In this case, unusually I am called upon to make a judgment in which I am to seek to place a value upon what, on any view is a very small fraction of Mr Long’s misfortune since his accident, an unusual and difficult task especially as, in effecting that valuation, I am to compare the actual history with the history as I must judge it would have been, if the treatment I have judged should have been given, had been given.

[64]It is accepted by the parties that Mr Long’s septicaemia could not have been avoided even if the breaches of duty that occurred had not occurred. The only case sought to be made as to damages is the case that Mr Long’s period of suffering would have been slightly shortened if the breaches of duty had not occurred; put the other way around he would have got to his present state a few days earlier.

[65]If Mr Long had remained in hospital and had a blood test on the morning of 1st May 2008, in which the inflammatory markers were raised to a point to raise the level of suspicion of infection, the next step would have been to aspirate the hip. The same course would have been indicated if the blood test had been performed, Mr Long being treated as an outpatient. I suspect that there would have been a little more delay than if the test had been performed as an outpatient.

[66]It is certain that aspiration up to at least 7th May 2008 would have produced a negative result as that was the result that was produced when aspiration was done that day.

[67]I must try and determine what signs or symptoms Mr Long suffered in the period from his discharge until his readmission on 5th May 2008. His evidence as set out above can be read as a somewhat dramatic down turn in that period. However, I have some difficulty with that evidence. The fact is that it was not until 5th May 2008 that Mr Long and his wife sought further medical help following a discharge, at which time he was reasonably mobile and well. Whilst I am satisfied that Mr Long and his ex-wife have done their best to assist me with their recollections, I consider some are coloured by hindsight. In particular, I am not satisfied that Mrs Long obtained stronger pain killers and anti –emetics before Mr Long’s admission on 29th May 2008. I cannot accept that all three of the GP’s surgery, the dispensing pharmacy and the hospital failed to make any record of those prescriptions. I consider it much more likely that the Longs have taken a later prescription history and transposed it to an earlier time.

[68]A significant step to control the infection was taken on 5th May 2008, when broad spectrum intra-venous antibiotics were administered to Mr Long. Even if Mr Long had stayed in the hospital from 30th May until 5th May 2008 I consider it is far from proved that antibiotics would have been prescribed before or much before that time by the medical staff. On the evidence I have heard, in the absence of an obviously infected wound, it would not have been appropriate to start antibiotics until either an aspiration was positive for infection or the patient had deteriorated to the point where it was appropriate to prescribe broad spectrum antibiotics empirically. I am not satisfied on the evidence before me that the breach of duty that I have found occurred, resulted in a delay in the prescription of antibiotics to Mr Long.

[69]I turn to the admitted delay of four days in undertaking debridement between 6th and 10th May 2008. I accept that in either case, Mr Long would in any event have been in hospital, in bed, in pain, and unwell with septicaemia, and there is no evidence before me to the effect that his condition would have been materially better, or if better, the extent to which it would have been better during that period. Ironically, as was explained to me by Professor Atkins, with earlier diagnosis, Mr Long might in fact have had to undergo a further surgical procedure.

[70]In my judgment, there is no sufficient evidence before me upon which I could, or should, find that the Defendants’ breaches of duty caused damage to Mr Long upon which I could base a quantified award of damages for pain, suffering, and loss of amenity. Whilst I appreciate the very different facts of the Johnston case, [supra] applying Lord Hoffman’s test, in my judgment Mr Long has failed to demonstrate that delay in this case has caused him to be “appreciably worse off.”

[71]It follows from the foregoing that this claim must be dismissed. HHJ Collender QC