Court Of Appeal Judgment Template - Medical Negligence
Neutral Citation Number: [2020] EWCA Civ 358Case No: B3/2019/0594IN THE COURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM THE HIGH COURT OF JUSTICE,QUEEN’S BENCH DIVISIONMr Justice StewartHQ17C00168Royal Courts of JusticeStrand, London, WC2A 2LLDate: 10/03/2020Before:LORD JUSTICE McCOMBELORD JUSTICE HOLROYDEandLORD JUSTICE PHILLIPS--------------------Between:MARIO SCHEMBRI- and IAN -----------------Alexander Antelme QC and Farrah Mauladad (instructed by Hill Dickinson LLP) for theAppellantRobert Weir QC and Stephen Cottrell (instructed by Irwin Mitchell LLP) for the RespondentHearing date: 6 February 2020---------------------Approved Judgment
Judgment Approved by the court for handing down.Schembri -v- Marshall
Judgment Approved by the court for handing down.Schembri -v- MarshallLord Justice McCombe:Introduction1.This is the appeal of Dr Mario Schembri (“the Appellant”) from Mr Justice Stewart’sorder of 15 February 2019 made after trial. The judge ordered the Appellant to pay toMr Ian Marshall (“the Respondent”) the net sum of 260,000 together with the costsof the action to be assessed. Permission to appeal was granted by Leggatt LJ by hisorder of 16 September 2019.2.The Respondent is the husband of the late Mrs Doreen Marshall (“the Deceased”)who died at 0937 hours on 26 April 2014 as a result of an untreated pulmonaryembolism. The Appellant is a General Medical Practitioner. It was admitted that theAppellant was in breach of his duty of care to the Deceased in failing to refer theDeceased to hospital following a consultation with him on the previous afternoon. Itwas and is, however, denied that this breach of duty caused the Deceased’s death.Subject to that causation issue, damages were agreed between the parties before thetrial.3.The issue to be resolved, on which the judge found in the Respondent’s favour, waswhether the Deceased would have survived had she been referred promptly by theAppellant to Southend Hospital. The Appellant’s case was, and is, that the Deceasedwould have died even if she had been so referred.The Short Facts4.At about 1600 hours on 25 April 2014, the Deceased attended the Appellant’s surgeryat Shoeburyness and was seen in consultation by the Appellant. She was complainingof chest pain and breathlessness. She had had a previous pulmonary embolism (“PE”)in 2008, which had occurred on a visit that she and her husband were making tofriends in Edinburgh. She had been successfully treated for that PE on that occasion ata hospital in Edinburgh. The breach of duty admitted by the Appellant is that heshould have referred the Deceased directly to Southend Hospital on the afternoon of25 April. He did not do so; he examined the Deceased and told her that the mostprobable cause of her symptoms was muscular strain affecting her hiatus hernia.5.The Deceased returned home with her husband after that consultation. She took someibuprofen, as the Appellant had advised, and rested for the remainder of the day. TheRespondent did not recall her complaining of pain during that period and he assumedthat the medication, recommended by the Appellant, had worked. The Deceased wentto bed rather earlier than usual, at about 2030 hours. At that stage she was somewhatbreathless and negotiated the stairs to the bedroom more slowly than usual. When MrMarshall went to bed about 2200 hours, he found the Deceased awake but sleepy.6.The next morning (26 April 2014) both the Respondent and the Deceased woke, afteruninterrupted sleep, at about 0730 hours. The Respondent went downstairs to makecoffee; he returned with the drinks and chatted to the Deceased, including about afamily wedding that they were due to attend later that day. The Deceased then went tothe bathroom. The Respondent heard her calling him and sounding frightened. Herushed to attend to her and found her sitting on the lavatory in distress; she washaving difficulty in breathing and was leaning upon the washbasin. She collapsed and
Judgment Approved by the court for handing down.Schembri -v- Marshallthe Respondent called for an ambulance. The call was recorded as being received at0829 hours. The ambulance arrived very promptly at 0831. The Deceased had,however, suffered by then a cardiac arrest and the attending paramedics were unableto resuscitate her.7.The judge records that the Deceased collapsed and was in a state of cardiogenic shockfrom very shortly before the Respondent’s call for the ambulance. It appeared that thecardiac arrest probably happened within a few minutes of her collapse.Common Ground between the Parties8.It was common ground that, had the Deceased been referred to hospital at the propertime on the previous day, she would have been diagnosed as having PE. Potentialtreatment would have been: a) anticoagulation, i.e. heparin and/or b) thrombolysis or“clot busting”. The drug that would have been used for thrombolysis would have beenalteplase which works by dissolving or removing any clots already formed. This isonly to be used when indicated, rather than automatically, in such cases, and onlywhere the potential benefits outweigh certain risks, in particular the risk of bleeding.9.The judge found that, if the Deceased had attended hospital on the Appellant’sreferral, she would have received heparin by 9 p.m. on 25 April which would havetaken effect to prevent further clotting by about midnight at the latest. There is nofurther dispute before us as to that finding. However, thereafter, the cases of theparties diverge.Disputed Matters10.The Respondent’s pleaded case at trial was stated at paragraph 11 of the Particulars ofClaim as follows:“The negligence of the Defendant caused the death of thedeceased. Had the Defendant discharged his duty of care to theDeceased, the Deceased would have attended hospital on 25thApril where a diagnosis of pulmonary embolism would havebeen made. The Deceased would have been givenanticoagulation treatment so that the massive pulmonaryembolism that caused her death would have been avoided.Although unlikely after anticoagulation treatment, if a massiveor sub-massive pulmonary embolism did occur whilst inhospital thrombolysis and full supportive treatment would havebeen available and on a balance of probabilities she would havesurvived.”This was denied in paragraph 8 of the Defence. Having set out in that paragraph thedefence case as to the timing of when heparin would (hypothetically) have beenadministered on attendance at hospital, the paragraph continued:“(8) Mrs Marshall would therefore have had less than 12 hoursof full anticoagulation before she suffered a massive PE at08.00 hours on 26 April 2014.
Judgment Approved by the court for handing down.Schembri -v- Marshall(9) Failure to achieve stable full heparinisation within 24 hoursof venous thromboembolism is associated with a 4 to 12 foldincreased risk of recurrent pulmonary embolism.(10) Heparin works by interfering with the clotting mechanismin such a way that the clot stops growing and spreading up theleg into the pelvis. New clot is more fragile and probablyembolises more readily. It is likely the clot which embolised onthe morning of 26 April 2014 would already have been presenton 25 April 2014 and anticoagulation would not have dispersedit overnight. Heparin does not operate to dissolve blood clots.When the clot stops growing, the fibrinolytic enzymes in theblood will slowly dissolve the clot and thereby graduallyreduce the risk of part of the clot detaching and causing apulmonary embolism. Accordingly, the risk of recurrent VTEreduces progressively the longer a patient is anticoagulated.(11) Studies suggest that delay in achieving adequateanticoagulation by as little as 24 hours can increase the risks ofrecurrent VTE 4 to 12 fold.(12) On the balance of probabilities, had Mrs Marshall beenanticoagulated at, or around, 21.00 to 22.00 hours on 25 April2014, she would still have suffered the massive PE which killedher at 08.00 hours on 26 April 2014.”11.Each party adduced expert evidence from a respiratory physician (Professor Empey(Respondent); Professor Davies (Appellant)) and a haematologist (Dr Gomez(Respondent); Professor Hay (Appellant)).12.As the judge recorded, in the light of the medical evidence at trial, the Respondent didnot in the end submit that heparin alone would have probably prevented the death. Itwas, however, argued on his behalf that anticoagulation would have had a beneficialeffect and was relevant to the consideration of the causation issue as a whole. It was,in the end, common ground that heparin would have had the effect of stopping thesize of the clot in the Deceased’s leg from increasing. Professor Davies’ view, whichthe judge accepted was that the clot would probably still have been about 95% of thesize that it eventually was.Mr Justice Stewart’s Judgment: [2019] EWHC 283 (QB)13.The judge stated the central questions for him to determine were as follows:“41. Therefore, the central questions for the court to determinenow are:i) Has the Claimant proven on the balance ofprobabilities that there were progressivepulmonary emboli during the nightof 25/26 April2014? [An indicator forprescribing thrombolysis]
Judgment Approved by the court for handing down.Schembri -v- Marshallii) If so:a) would progressive pulmonary emboli havebeen picked up on monitoring had she been inhospital?prescribedb) if so, would thrombolysis have beenand with what effect?iii) If, the answer to (i) and/or (ii) is negative, had thedeceased been in hospital, would thrombolysis havesaved her? In other words, had there not beenprogressive pulmonary emboli, can the Claimant provethat thrombolysis would have saved her had she goneinto cardiogenic shock or arrested in hospital?iv) If the answer to (i)-(iii) are negative in that theClaimant cannot prove a specific train of events ormechanism which would absent the Defendant'snegligence, have saved her. Looking at the evidence asa whole, is it nevertheless more likely than not that theClaimant would have survived had she been referred toSouthend Hospital?”14.The structure of the questions posed by the judge and the formulation of question (iv)is very important in this case and I return to this below. However, for presentpurposes, I can state the judge’s findings on questions (i) and (ii) inclusive relativelyshortly. His answers to questions (iii) and (iv) need to be summarised a little morefully.15.The judge answered (i) and (ii), on the balance of probabilities, as follows:(i) No; therefore (ii) (a) and (b) did not arise. However, as to (ii)(ii) This had to be answered, notwithstanding the negative answer to(i), “as it [had] relevance in relation to ” (iv). On this basis, andsubject to question (iv): (a) Yes; (b) No.I turn to (iii).16.In beginning his discussion of question (iii), the judge said this (paragraph 90):“This question needs to be considered in conjunction with themedical literature. Although I will not at this stage drawconclusions from overall mortality of patients with PE who aretreated in hospital. I will deal with that more fully in answeringquestion 4.”The judge looked at a study of the general effectiveness of thrombolysis (Wan &others (2004)); he quoted this passage (paragraph 95):
Judgment Approved by the court for handing down.Schembri -v- Marshall“Thrombolytic therapy compared with heparin was associatedwith a significant reduction in recurrent pulmonary embolismor death in trials that also enrolled patients with major(haemodynamically unstable) pulmonary embolism but not intrials that excluded these patients ”17.The judge then addressed other papers dealing with the overall outcomes of patientswith PE (paragraphs 96 et seq.). There was a study by Kopcke & others (2011) whichfound that in a hospital survey of 2007/8 there were over 186,000 adult in-patientadmissions and 2583 in-patient deaths. Of those deaths, five had a pre-mortemdiagnosis of DVT or PE. Thus, these five were the only ones who may have beentreated for PE but did not survive. The authors had pointed out that “many patientswho die from pulmonary embolism have other life-threatening conditions” (which theDeceased in this case did not). The judge noted, however, that the paper did not revealthe overall figure of those treated for PE in hospital.18.A further paper (Goldhaber & others (1993)), reviewed by the judge (paragraph 97),showed a better improvement in pulmonary infusion in patients after treatment withalteplase (14.6%) than for those treated with heparin alone (1.5%). Deficiencies inthis paper for the analysis of the Deceased’s case were addressed by the judge.19.The judge also considered an Italian paper from 2012 (Casazza & others) dealing with1716 patients with confirmed PE in 47 Italian hospitals (paragraph 103). Of these11.7% were haemodynamically stable at presentation/diagnosis (as the doctors wereagreed that the Deceased would have been in this present case on hospital admissionat the correct time). Of the 11.7%, death resulted in 1.4%. Of thosehaemodynamically unstable, death from the PE was 23.3%. In unstable patients, deathoccurred in 62.7% of those in cardiac arrest at presentation and in 36.4% of those incardiogenic shock. It was found to be highly probable that all those who receivedalteplase were unstable on presentation/diagnosis though some may have become solater. The authors wrote:“Age over 75, immobilisation lasting more than three daysbefore index PE and haemodynamic impairment wereindependent predictors for in-hospital deaths”(In the Deceased’s case none of these factors was present.)20.The conclusions of the haematologists, on these materials and on the Deceased’s casein the light of them on this point, were summarised by the judge as follows:“101. Doctor Gomez was of the opinion that the study assistedin showing that, if alteplase had been given three hours prior todeath, the deceased would have survived. Further, the deceasedjust had PE. Otherwise she was healthy. She had nothing wrongwith her heart or blood.102. Professor Hay made a number of qualifications as to whatcan be drawn from Goldhaber. He agreed that typicallynowadays alteplase is given by way of a 50mg bolus at theonset, followed by two hours infusion. Although he said it was
Judgment Approved by the court for handing down.Schembri -v- Marshalldifficult to be certain, he said that had Mrs Marshall developedshock and massive PE sometime in the night with enough timefor alteplase to work, then it may well have been lifesaving.”21.On the basis of this material, the judge found:“104. a number of points can be made about statistics.Nevertheless, broadly speaking, had alteplase been prescribed,say, 3 hours earlier than 8.30 a.m., Mrs Marshall wouldprobably have survived.105. That said, I have already found that it cannot be shown,the balance of probabilities, that Mrs Marshall would havereached the threshold for prescription of alteplase at any stageprior to her going into cardiogenic shock.”22.The judge then looked at the evidence on thrombolysis administration in cardiogenicshock and in cardiac arrest. He noted that the Casazza paper presented a number offavourable points from the Respondent’s point of view. Having also reviewed a paperby Sekhri and others (2012), the judge noted (paragraph 112):“112. It is to be recalled that there is a broad similarity of thefigures in Sekhri and Casazza. Thus in Casazza 64% of these incardiogenic shock survived and 37% of those in cardiac arrestsurvived. In the Claimant's favour:a) These figures include people who were in cardiogenicshock or with arrest on presentation at hospital.b) 43% of those in the Casazza study were over 75. Thedeceased was not in that category. Nor was she sufferingfrom co-morbidity.”23.The judge noted the Appellant’s submission before him (paragraph 114) that theDeceased was in cardiogenic shock for only a couple of minutes or so. However, thejudge added that what was not known was the likely duration of cardiogenic shock ifthe Deceased had spent the night in hospital, where as he had noted (at paragraph 110)Professor Davies accepted, the Deceased would have had support including oxygen,electrolyte and fluid balance together with the preparedness of medical staff toadminister thrombolysis. She would have had instantaneous treatment from trainedstaff on the ward and a crash team would have responded promptly. She had in factsurvived an hour of cardiogenic shock in Edinburgh.24.The judge found on this aspect:“115. Looking at the evidence on cardiogenic shock inisolation, I find that:i) The Claimant cannot prove on the balance of probabilitiesthat the deceased would have been in the 64-75% who wouldhave survived; she may or may not have been.
Judgment Approved by the court for handing down.Schembri -v- Marshallii) Nevertheless, her chances of survival would have beensignificantly increased had she been in hospital overnightand at the time she became haemodynamically unstable.116. As to the position with cardiac arrest, the Claimantsubmits that, because of the fact that she was relatively youngand had no comorbidity, she probably would have survivedwith high quality CPR in hospital, and therefore have been inthe group of 35% (Sekhri) – 37% (Casazza) who do not die. Inmy judgment, whilst this is a possibility, it is less likely thanher chances of surviving cardiogenic shock – itself not aprobability.”One must note the judge’s use of the words “in isolation” at the beginning ofparagraph 115. There is a dispute as to what he meant by this and I return to considerthe point below.25.The judge moved to question (iv) – “On the evidence as a whole, is it more likely thannot that the Claimant [sic: the Deceased] would have survived had she been referredto Southend Hospital?”26.He referred to authority relied upon by the Respondent before him. I would mentionin particular Drake v Harbour [2008] EWCA Civ 25, as it is at the forefront of thearguments for the Respondent before us. In that case, Toulson LJ said at [28] this:“28. In the absence of any positive evidence of breach of duty,merely to show that a claimant's loss was consistent withbreach of duty by the defendant would not prove breach of dutyif it would also be consistent with a credible non-negligentexplanation. But where a claimant proves both that a defendantwas negligent and that loss ensued which was of a kind likelyto have resulted from such negligence, this will ordinarily beenough to enable a court to infer that it was probably so caused,even if the claimant is unable to prove positively the precisemechanism. That is not a principle of law nor does it involve analteration in the burden of proof; rather, it is a matter ofapplying common sense. The court must consider anyalternative theories of causation advanced by the defendantbefore reaching its conclusion about where the probability lies.If it concludes that the only alternative suggestions put forwardby the defendant are on balance improbable, that is likely tofortify the court's conclusion that it is legitimate to infer that theloss was caused by the proven negligence.”27.The judge said, however, that he found the authorities of limited assistance andcontinued (at paragraphs 128 -129):“128. As is accepted, the Claimant has the burden ofproving causation. Yet the Claimant needs to prove no morethan that Mrs Marshall would have probably have survived hadshe been admitted to hospital. The Claimant does not need to
Judgment Approved by the court for handing down.Schembri -v- Marshallprove the precise mechanism by which her survival would havebeen achieved.129. There has been very detailed evidence from four expertsdealing with the probabilities of what did happen and whatwould have happened, absent the negligence. I must deal withcausation on the facts of the case and analysis of the expertevidence in conjunction with the medical literature.”28.He then said that he had made a number of find
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