- On the 1st January,
1998,
Mrs. Susan Mellor ("Mrs.
Mellor") died following a a cardiac arrest in an ambulance on
her way to Rotherham District
General Hospital. She was born
on the 2nd February, 1954 and was, accordingly, aged only 43
at the time of her death.
- An autopsy was carried out on the 2nd January,
1998.
The post mortem report ("the PM") of Dr. Slater,
a Consultant Histopathologist,
included the following:
" Thoracic
Cavity & Neck: There is symmetrical
hypertrophy of the left ventricle to 19 mm. There are scattered areas
of fribrosis up to 2 mm in diameter. There is no evidence of infarction….
The right coronary artery displays 20% luminal occlusion by atheroma.
There is no thrombotic occlusion. The left common coronary artery
displays 30% luminal occlusion by atheroma but no thrombotic occlusion.
The left circumflex coronary artery displays 60% luminal occlusion
by atheroma but no thrombotic occlusion. The left anterior descending
coronary artery displays focal 95% luminal occlusion by atheroma
but no thrombotic occlusion….
CONCLUSIONS
In my opinion immediate death was due to gross congestion
of the lungs (pulmonary oedema) secondary to the presence of a combination
of severe hypertensive and ischaemic heart disease…. I have been
informed that Mrs. MELLOR’s essential hypertension was known during
life. I have also been informed that there may have been a family
history of some type of heart disease. In view of the severity of
hardening of Mrs. MELLOR’s blood vessels, I have recommended to HM
Coroner’s Officer that the immediate family… are screened for possible
lipid (fat) abnormalities….
In
my opinion
the cause of death was … (a) Pulmonary oedema due to or as
a consequence of Hypertensive and ischaemic heart
disease…"
- Given the debate at the trial as to the cause of death and the significance
of the pathologist’s observations, it will be necessary to return
to the PM later. For the moment, it suffices to underline the following
matters of importance arising from the PM:
- The
pathologist found significant left ventricular hypertrophy
("LVH"). In simple terms, LVH means a thickening
of the muscle in the area of the left ventricle; the effect
of the muscle thickening is that the left ventricle has to
work harder than would normally be the case to pump or supply
sufficient blood to the body’s organs for which it is responsible.
In neutral terms, LVH may be caused by hypertension (i.e. raised
or high blood pressure, "BP") and/or coronary artery
disease ("CAD"), also known as ischaemic or coronary
heart disease ("IHD" or "CHD"). LVH is
itself
a known
cause of sudden death, even if no IHD is present.
- IHD
results in the narrowing ("stenosis") of the coronary
arteries; on the material before me, it is the leading cause
of death in the United Kingdom. In the case of Mrs. Mellor,
it is of note that the important left anterior descending ("LAD")
coronary
artery
showed 95% narrowing.
- The
heart muscle ("myocardium") showed scattered
areas of fibrosis
(scarring). Again in simple terms, such fibroses or
scarring occur when or because the muscle outgrows its
blood
supply;
the muscle dies and is replaced by scarring. Fibroses
may be
attributable
or secondary to LVH and /or CAD.
- At
least in the vast majority of cases, a heart attack,
to use the
colloquial expression, has two components: a coronary
thrombosis (i.e.
a blood clot in a coronary artery) resulting in the
death of a
part of the heart muscle (myocardium) by reason of lack
of blood
supply – in more technical language, a myocardial infarction
("MI"). The pathologist found no evidence
of infarction
or thromboses.
- The PM does not state whether the focal 95% stenosis of the LAD
was found in the proximal (i.e. early), mid- or distal (end)
segment of the LAD.
- The
pathologist’s use of the word "focal" may be
taken as meaning
that
there was one discrete or localised lesion.
- The pathologist was sufficiently concerned to recommend the screening
of Mrs. Mellor’s immediate family.
- The Claimant
("Mr. Mellor") is the widower and administrator
of the estate of the deceased Mrs. Mellor ("the estate").
He brings this action on his own behalf, on behalf of his son Kirk
Mellor ("Kirk"), a child of the marriage, aged 11 as at
the date of Mrs. Mellor’s death
and now aged 17 and for the benefit
of the estate. Claims are brought under the Fatal Accidents Act 1976
as amended and under the Law
Reform (Miscellaneous Provisions)
Act 1934. In addition, Mr. Mellor
brings a claim for nervous shock.
- The action has been discontinued against the Second to Fifth and Eighth
to Tenth Defendants. The Defendants against whom the action continues
are the First, Sixth and Seventh Defendants.
- The Sixth
and Seventh Defendants ("Dr. Groves" and "Dr.
Richards", respectively) are General Practitioners ("GPs").
Essentially, the case against
the GPs is that, over the period
1992 to 1996, they were negligent in failing, timeously, to diagnose
that
Mrs. Mellor may have been suffering
from IHD and to refer her to
a cardiologist. Specific criticism is made of Dr. Groves in respect
of a consultation on the 9th January, 1992 and of Dr.
Richards in respect of consultations on the 22nd and 28th April,
1994, the 3rd November, 1995 and the 29th March,
1996. It may be noted that Dr.
Richards in fact referred Mrs.
Mellor to Dr. West ("Dr. West"),
a Consultant Cardiologist at
the Royal Hallamshire Hospital, Sheffield, on the 29th April,
1996. Had a timely referral been made, it is alleged that Mrs. Mellor’s
IHD would have been diagnosed in sufficient time for it to be effectively
treated within the routine timetable for such treatment.
- The First Defendant is the body now responsible for the acts and omissions
of clinical staff at the Royal Hallamshire Hospital in 1996 and 1997.
The case against the First Defendant turns on the allegation that
Dr. West negligently discharged Mrs. Mellor on the 13th January,
1997. In coming to his decision
to discharge Mrs. Mellor it is,
in particular, alleged that Dr. West negligently interpreted the
result
of an Exercise Tolerance Test
("ETT") conducted on the
14th August, 1996. Furthermore, it is alleged that Dr.
West negligently gave Dr. Richards and Mrs. Mellor reassurance as
to Mrs. Mellor’s chest pain not being cardiac in nature. The Claimant’s
case is that Dr. West should instead have conducted further investigations
into Mrs. Mellor’s condition, which investigations would, as a matter
of probability, have led to urgent surgical intervention saving Mrs.
Mellor’s life.
- It has to be said that, at the start of the trial and as Mr. Holl-Allen
for the First Defendant submitted, the Claimant’s case on causation
as against the First Defendant was anything but clear. I therefore
invited Mr. Gardner QC, leading counsel for the Claimant, to pin
his colours to the mast. He did so, in writing, as follows:
" It
is C’s case that W was negligent in:
(1) describing the result of the exercise test as negative
(2) diagnosing the chest pain as not cardiac in nature
and discharging Mrs. M without further investigation
(3) assuring her and her GP that the chest pain was
not cardiac in nature, rather than advising them that the test result
was inconclusive, that CHD [coronary heart disease] could not be
excluded, and that persisting symptoms should be monitored
(4)
in view
of her symptoms, young age, inconclusive exercise test, low
exercise tolerance and multiple risk factors,
including significant family
history,
failing to arrange within 3 months (or at least offer) an angiogram
to determine whether she
had CHD. This, on the balance
of probabilities,
would have demonstrated stenosis in the proximal segment of
the LAD coronary artery requiring
a PCI [i.e. an angioplasty] as
a matter
of urgency, either during the same admission or at least within
3 months."
- Had Mrs. Mellor survived, the Claimant’s case is that her life expectancy
would have been some 19 years – a significant prolongation of life
obviously desirable to her and her family.
- Dr. Groves,
Dr. Richards and the First Defendant (in practical terms, Dr.
West)
all deny
negligence. Even if negligence is established, there are significant
disputes
as to
causation. As regards Drs. Groves and Richards, the nature
of these disputes will become apparent in
due course. So far as Dr. West
is concerned,
the question arises, notably, of whether the Claimant can show,
on a balance of probability,
that had he followed a pathway
which
cannot be criticised as unreasonable, the timescale was such
that Mrs. Mellor’s life would have been saved.
Furthermore, there is an issue
as to
whether angioplasty – even if reached "in time" –
would,
on the balance of probability, have been effective to save
Mrs. Mellor’s life.
- In a nutshell, the issue as to liability is whether the deceased’s
death was not only tragic (which is of course common ground) but
also avoidable by the exercise of due diligence on the part of the
Defendants, or any of them.
- If the Claimant does make good his case on liability then, as to quantum,
there has been a significant measure of agreement between the parties.
Issues however remain as to claims for emotional support, care and
attention, pain and suffering, nervous shock and a remoteness argument
advanced on behalf of Drs. Groves and Richards.
THE FACTUAL HISTORY
- I come to the evidence of fact. In general, it will be convenient to
record the evidence and to defer conclusions on disputed topics until
later.
- (1) Background: Before turning to the detail, it should
be recorded that Mrs. Mellor had a longstanding history of health
problems. There was no or no real dispute that a number of these,
together with the other matters in the list which follow, disclose
risk factors associated with IHD:
- Longstanding high BP;
- Raised cholesterol levels (albeit that these would have given
rise to markedly less concern in 1992-1997 than they might
now);
- A smoking habit;
- Family history: Mrs. Mellor’s mother and sister had both suffered
MIs at the age of 43. Her father had suffered from angina (i.e.
pain felt in the chest when there is reduced oxygen supply
to the heart muscle and therefore heart related).
- Other health problems, unrelated to IHD included:
- A subarachnoid haemorrhage in August, 1993, leading to neurosurgery.
In November 1993, a shunt was inserted. Subsequently, she remained
under the observation of neurosurgeons and underwent further
surgery to her shunt before it was finally removed in January
1997.
- A variety of what may be termed (loosely) gastric concerns, including
hiatus hernia and oesophagitis.
- Recurrent anaemia, a matter which, as it seems to me, was of
undoubted significance in November 1995.
- (2) Dr. Groves: From
1988
to 2000, Dr. Groves was a practising GP at the Crystal Peaks
practice in Sheffield ("the practice").
He now works as a medical manager
in the
Medical Services Department of the Benefits Agency in Leeds.
- Dr. Groves’ first contact with Mrs. Mellor was a home visit on the
night of the 7th March, 1988 at about 21.00. He referred
her to the Northern General Hospital that night with a suspected
MI. His notes included the following:
"Chest & arm
pain … sweating arm
14 fast int[ermittent] pain
1 weeks chest pain
Occasional/ stabbing, clammy…
BP200/120…
Smokes 20 per day Mother
Has IHD (MI x 4)
® NGH?
MI"
- As he explained in his evidence, he was concerned by the need for a
home visit, her BP was abnormal, she was sweaty and clammy (which
might be significant) and he recorded the risk factors (associated
with IHD) as set out in the notes. In the event, Mrs. Mellor was
discharged the next day by the hospital, on the ground that her symptoms
were atypical and there was no sign of MI; a letter from the hospital
to Dr. Groves, dated 23rd March, 1988, records the diagnosis
as "Nonspecific chest pain".
- Subsequently, Dr. Groves saw Mrs. Mellor on a number of occasions.
There were recurrent BP problems and difficulties counteracting it,
given that Mrs. Mellor had significant problems with Beta Blockers.
On the 5th October, 1989, Dr. Groves noted that he had
impressed on Mrs. Mellor the
need to avoid MI and strokes.
Later notes are to like effect and record "poor compliance" by
Mrs. Mellor in taking the prescribed medication. I should make it
clear that Mrs. Mellor was plainly concerned about side effects;
there was no suggestion that "poor compliance" was wilful
or casual.
- Dr. Groves’ notes for the 13th September,
1991
gave rise to controversy. The note for that day records that
Mrs. Mellor had
stopped taking her BP tablets.
A side
note, which then "loops" around
and under an entry for the 25th September – which simply
recorded that Mrs. Mellor "DNA" (did not attend) a consultation
for that day – states "discussed high risk BP including stroke
and heart …". The next note recorded that a letter was sent
by the practice to Mrs. Mellor
on the 30th September,
1991 concerning her DNA and her high BP.
- Mr. Gardner explored this topic in cross-examination. He put to Dr.
Groves that he had felt vulnerable at a later stage and therefore
felt the need to add the note. Mr. Gardner indicated that he could
not say when the note was added and drew back from suggesting that
it was added after Mrs. Mellor’s death, accepting (rightly) that
he would need a proper basis before advancing any such allegation.
It emerged in Dr. Groves’ evidence that he did not know of any allegation
against him until 2001, after he had ceased practising as a GP. Moreover,
as Dr. Richards explained, after Mrs. Mellor’s death, her records
had been transferred to the health authority. For the avoidance of
any doubt, I should make it plain that I regard any suggestion that
Dr. Groves altered the notes after Mrs. Mellor’s death as wholly
unfounded. As to some later alteration but before Mrs. Mellor’s death,
I regard this as implausible; no good reason appears as to why, between
1993 and 1998, Dr. Groves should have thought more of his involvement
with Mrs. Mellor; certainly Mr. Gardner had no persuasive suggestion
to offer in this regard. While the non-contemporaneous alteration
of these notes inevitably gives rise to curiosity, I regard Dr. Groves’
explanation as the most likely; there was nothing sinister about
the alteration and he made it in the context of the sending of the
letter of the 30th September, 1991, while the discussion
with Mrs. Mellor remained fresh in his memory.
- So far as the case against Dr. Groves is concerned, the key consultation
was that held on the 9th January, 1992. It is,
indeed, the only consultation in respect of which a complaint is
pursued against Dr. Groves. His notes of that consultation read as
follows:
" Not
sleeping
Flu
6-7 weeks ° [= no]
cough chest pain
And arm pain
SOB
(short of breath) chest Ö
BP 184/102
Atenelol 50 mg
Migraleve duo
Amoxycillin 250 mg tds
REQ
sleeping tabs temazepam 10 mg 1/12"
- Unsurprisingly, at this distance in time, Dr. Groves does not remember
the 9th January, 1992 consultation. Working from his notes,
the consultation appears to have been complicated. Note taking was
difficult. For instance, there was no note as to headaches but migraleve
(for headaches) was prescribed. The primary presenting symptoms were
not sleeping and flu. Dr. Groves remains
puzzled and unsure about the
entry "° cough
chest pain and arm pain". He is not sure whether that meant
(1) no cough but chest pain and arm pain; or (2) no cough and no
chest pain and arm pain. In his first witness statement he tended
to think that (1) was the right interpretation. However, his doubts
even led him to produce a second witness statement in which he canvassed
the interpretation in (2). In his oral evidence, he said that he
remained unsure but on balance he preferred interpretation (1).
- Dr. Groves did not think that Mrs. Mellor was or might be suffering
from angina. This was very different from 1988. Then she had been
clammy; here the chest complaint appeared secondary. If he had thought
there was a real risk of angina, he would have thought of trying
a GTN spray (i.e., a Glyceryl Trinitrate spray used to ease the pain
of angina) and discussing a referral.
- At the outset in cross-examination, Dr. Groves agreed to a number of
principles or parameters applicable to his approach as a GP:
- The duty of the GP was to find out what is or maybe wrong with
the patient and, if potentially serious, to refer. The GP’s
task was to recognise the small percentage of cases where the
patient may be seriously ill; in performing that task, the
GP should consider symptoms described by the patient and information
given by the patient as to history and lifestyle.
- The most common killer in the United Kingdom was CHD.
- Often, CHD was present but without physical symptoms.
- The history could mean an increased risk of CHD; where even one
of the patient’s mother, father or sister had suffered from
IHD, that was significant; here, where all three had suffered,
the history was as significant as a history could get.
- Long-standing high BP and smoking would involve an increased
risk of IHD; raised cholesterol levels were not to be ignored
– though less was known in 1992 than now as to cholesterol
as a risk factor.
- All these risk factors could be present in young women – though
the risk of IHD was lower in young women.
- A
combination of the presence of these risk factors and
chest pain
("CP") means that CHD should be considered
as a differential diagnosis, because it could evidence
angina and stenosis
with
the risk of heart attack and sudden death.
- A GP would try and spot if a chest pain was angina – in order
to treat it the earliest opportunity.
- All the above risks of IHD were to be kept in mind even if the
patient presented prioritising other matters; it was also to
be kept in mind that some patients were more or less intelligent
than others and might be poor historians. The patient cannot
be relied on to volunteer everything.
- The GP should record the answers given by the patient to the
GP’s questions so as to build up the information available
on the patient’s history.
- Susan Mellor, said Dr. Groves, was astute and knew her own mind. They
had discussed and she was aware of BP and heart disease.
- As to the 9th January
1992
consultation, Dr. Groves was convinced that he must have asked
about the chest pain; but he made
no record of any such queries.
He was
aware of the risks affecting Mrs. Mellor and so was she. He
was convinced they would not have
gone through the consultation
without
excluding IHD and angina (though CHD cannot be excluded by
excluding angina). He cannot believe he
would not have asked questions
designed
to exclude these. Mr. Gardner put it this way: three of the
four classic symptoms of angina were
present; chest pain, radiating
to the
arm and shortage of breath ("SOB"); if considering CHD and seeking to exclude angina,
it was, he suggested "essential" to know how the pain felt,
its duration and its relationship
with exertion. While maintaining
that SOB was not typical, Dr. Groves accepted that he should have
asked such questions (to exclude
IHD and angina) but believes
that he did ask; the difficulty, which
he further accepted, was that
there was no note or record to that
effect. If he did not ask, he
accepts that it was a failure on his part which should not have occurred.
It was not, however, always possible
to write everything down. Nor
could he help on what Mrs. Mellor had
said to rule out IHD. He agreed
that there were, accordingly,
no notes on a vital decision,
on what questions had been asked and as to what answers were given.
- Asked about
his referral (in fact, a hospital admission) in 1988, he agreed
that
his decision had a "low threshold". A number
of GPs would not have admitted.
He took
no chances on that occasion. He was influenced by the need
for a home visit and her being sweaty.
- Dr. Groves
denied that his second witness statement was a "sign
of desperation". His conscience is and always has been clear.
It was some ten years after the
relevant consultation before
he was told of the allegations against him.
- Re-examined by Mr. Hugh-Jones (representing both Dr. Groves and Dr.
Richards), Dr. Groves underlined that in his notes of the 9th January,
1992 consultation, he did not write that Mrs. Mellor’s pain
had radiated to her arms. Had Mrs. Mellor then been suffering from
angina, it was more likely that the pain would have radiated.
- As to why he had reacted differently in 1988 and 1992, essentially
Dr. Groves said that in 1988 he suspected a possible MI (heart attack);
by contrast, in 1992, he did not think that Mrs. Mellor was or might
be suffering from angina. This was a patient who often had flu (or
flu like ailments). The symptoms in 1992 were not typically suggestive
of angina; instead, they were suggestive of a viral illness. Had
he been concerned, however, he would have referred in 1992 as he
had done in 1988.
- On the assumption that he had referred in 1992 and on the basis of
his understanding of the practice at the hospital, he was in any
event unsure whether an ETT would have been given to Mrs. Mellor,
by reason of her presenting with atypical features for angina.
- (3) Dr. Richards: Dr.
Richards
qualified in medicine in 1986; she became a GP at the (Crystal
Peaks) practice in 1992
and remained there until 2001
when
she moved away from the area. She saw Mrs. Mellor between 1993
and her death on more than 90 occasions.
She had not "taken over" the care of Mrs. Mellor; it had
been Mrs. Mellor’s choice to
come to her, perhaps because
they got on well. Before turning to the detail of the consultations,
it is
convenient to record Dr. Richards’
evidence as to her general approach.
- General approach: In general terms, Dr. Richards indicated that
relevant inquiries as to the risk of angina would include these.
First the location of the pain; central chest pain could be indicative
of angina, the more so if it radiated to the shoulders, the left
shoulder being more likely than the right. Secondly, the character
of the pain; burning pain would not be associated with angina; pressure
would be more suggestive of angina. Thirdly, the duration of the
pain; a few seconds meant that angina was unlikely; a few minutes
was a different matter. Fourthly, was the pain exacerbated by exertion
(exercise) or emotion? Was it relieved by rest (stopping what the
patient had been doing) or by the use of a GTN spray under the tongue?
If the answers to these questions were yes, then they were or could
be suggestive of angina.
- In response to Mr. Gardner, Dr. Richards agreed with the following:
(1) It was the GP’s task to find out what was wrong or maybe wrong
with a patient; (2) If the matter was serious or potentially serious,
a GP could and did refer; (3) The GP would try and spot the few patients
with serious conditions; (4) IHD was something to look out for, not
least having regard to the patient’s history; (5) Patients could
suffer from concurrent complaints; it was important to guard against
some of those complaints masking others; (6) Women more often presented
atypically; (7) Given the grave results which may occur if angina
was not treated, it was right to rule it out rather than in; (8)
A risk/benefit analysis was an essential consideration; the benefit
of a referral might be the saving of life; the risks of a referral
were nil. In re-examination, Dr. Richards underlined that, most of
the time, a GP did not reach a concluded diagnosis.
- Explaining
her criteria for referral, Dr. Richards put it this way: she
would refer
if she
thought that there was a possibility that notwithstanding atypical
symptoms,
the patient
may have angina. With regard to Mrs. Mellor she took into account
that (1) women may have
atypical symptoms (2) Mrs. Mellor
had a
tendency to tell Dr. Richards what she wanted Dr. Richards
to know; (3) the risk factors, including
family history and smoking. Dr.
Richards
would not refer on the basis of risk factors alone; she would
refer when suspicious of symptoms,
taking into account the risk
factors.
With reference to a chart, "Risk
of Coronary Heart Disease", used by GPs in the 1990s and introduced
into evidence by Dr. West ("the chart", of which more later),
Dr. Richards said that, in percentage
terms, Mrs. Mellor was throughout
in the low or mild category of CHD risk.
- Lastly in this immediate context, Dr. Richards explained that time
could be used as a factor in making a differential diagnosis. It
would be helpful to monitor a patient over a period of time, in order
to form a view as to the possible true nature of the patient’s complaint.
- The consultations: Dr. Richards first saw Mrs. Mellor on the
8th February, 1993. Clearly, a detailed examination was
undertaken. Her notes record Mrs. Mellor telling her that she had
had flu for some two weeks and was feeling tired and run down. She
spoke of chest pain, front and back. It lasted a few seconds, several
times a day but there was no tightness. Dr. Richards’ assessment
was that Mrs. Mellor was suffering from a viral illness. She excluded
angina, because of the duration of the chest pain (a few seconds)
and the fact that there was not tightness.
- On the 16th February,
1993,
Dr. Richards saw Mrs. Mellor again. On this occasion, Mrs.
Mellor spoke of a pain in the back
which felt "like a foot in back of chest". It was worse
on "inspiration". The notes go on to record that Mrs. Mellor
felt "SOBOE [i.e. short of breath on exertion] + hot + cold".
On the basis of all the material
available to her, Dr. Richards
was satisfied that here the chest complaint was attributable to chest
infection – and no criticism
is advanced in respect of this
consultation.
- Over a series of many consultations in 1993, a picture emerges of the
unfortunate Mrs. Mellor’s non-cardiac related complaints. These included:
- Viral
(flu like) problems; indeed for much of 1993, if on an
intermittent
basis, Mrs. Mellor was suffering from what she described
as "flu";
- Neurological problems;
- Stomach or gastric concerns, covering indigestion, reflux and
the like; reflux, it may be noted, was capable of giving rise
to chest pains;
- Anaemia.
In short and in answer to Mr. Holl-Allen, Dr. Richards
said that Mrs. Mellor’s attended her GP considerably more frequently
than was to be expected from a person of her age and sex. Mrs. Mellor
suffered from a number of separate pathologies – several of which
were significant.
- Pausing there, when Dr. Richards began to treat Mrs. Mellor, she had
read Dr. Groves’ notes. She picked up that Mrs. Mellor was a smoker
and that her family history was significant. In dealing with Mrs.
Mellor, IHD was always in the back of her mind but from explanations
given by Mrs. Mellor she was satisfied that Mrs. Mellor’s problems
did not include IHD.
- April 1994: I come now to the first time period, in respect
of which criticism is made of Dr. Richards, namely, April 1994. I
start with the 19th April, 1994, though no criticism is
made of this particular consultation.
On this occasion, Mrs. Mellor
was complaining of feeling "flu-like" with
tenderness in the front of the
chest. Dr. Richards did not suspect angina. She
was in any event seeing Mrs.
Mellor regularly with regard
to BP problems after her subarachnoid haemorrhage operation.
- The first consultation of which specific criticism is made was that
on the 22nd April, 1994. This was a home visit
by Dr. Richards. Her notes include the following:
" Felt
a lot better yesterday
Today feels unwell
burning pain across chest and pressure on
chest comes and goes
There a few min
Also intermittent pain
at different points along
arms º cough º sputum
Been hot. Nausea. Vomited
yesterday not today Headaches
OK today …
Tender across chest anteriorly
on pressing ….
Abdo[men] soft some mild epigastric
discomfort …
Shunt not inflamed …
Chest pain not ischaemic
Not on exertion but describes
as
pressure for GTN trial …"
- Dr. Richards’
view was that a number of symptoms here were not suggestive
of angina,
or were
atypical of it; these were the burning nature of the pain,
the fact that it
was intermittent
or came and went and the fact that pain was felt at different
points along the arms. Moreover,
the tenderness on the chest was
inconsistent
with angina and the discomfort in the abdomen region made her
think of indigestion rather
than a cardiac related pain.
Still
further, it was not suggested that the chest pressure was related
to exercise or exertion; if anything,
the notes suggest the contrary.
Conversely,
Dr. Richards thought it right to stop and think given the reference
by Mrs. Mellor to "pressure".
Bearing in mind the risk of women presenting with atypical angina
pains, Dr. Richards took the view that a GTN trial should be undertaken;
if the GTN spray "worked" in the sense of relieving the
pain, that would point to angina;
if it did not, then angina would
be negatived or unlikely.
- Cross-examined by Mr. Gardner, Dr. Richards accepted that relief from
the GTN spray could be highly significant. However, any such information
should not be considered in isolation, all the more so when the GTN
spray was used as a trial. Dr. Richards wanted more information before
making a referral. She was uneasy because of the reference to pressure
and arranged to see her the next day. Dr. Richards thought that the
symptoms were atypical of angina and she did not think Mrs. Mellor
did have angina or that the problem was IHD; but Dr. Richards was
trying to see whether it could possibly have been angina – hence
she had given Mrs. Mellor the spray as a trial. While there was no
risk in a referral, she would not refer every patient simply on the
basis of having prescribed a chest spray. In not referring Mrs. Mellor
at this stage, Dr. Richards did not think she was taking unnecessary
risks.
- On the next day, the 23rd April, 1994, Dr. Richards made
another home visit. Mrs. Mellor felt a lot better. The chest pain
had settled; she had not needed the spray. Dr. Richards recognised
that these were early days but she felt reassured. Mrs. Mellor was
in any event to see her in the surgery the next week.
- On the 28th April, 1994, the next consultation of
which specific criticism is made, Mrs. Mellor attended at the surgery.
Dr. Richards’ notes include the following:
" Still
under weather
Better than ….23rd…
Headache today started lunchtime …
shunt not tender …
chest ok used GTN spray 1 x
Monday 25th Not
since "
The
notes
did not record whether the spray had "worked";
In her evidence, Dr. Richards said that she presumed it had not worked;
had the spray worked she would not have ignored it. Asked whether
Mrs. Mellor had mentioned using her mother’s spray, Dr. Richards
was strongly of the view that Mrs. Mellor had not said so; Dr. Richards
would "definitely" have recorded that if Mrs. Mellor had
said anything of the sort.
- Cross-examined by Mr. Gardner, Dr. Richards said that a single use
of the spray did not mean that Mrs. Mellor was suffering from angina.
She did not think that Mrs. Mellor did have angina. One episode of
using the GTN spray had not provided sufficient information to refer.
Dr. Richards was convinced that she had told Mrs. Mellor to monitor
whether the spray worked for pain – even though this was not recorded.
- November 1995: Coming next to the 3rd November,
1995, another consultation in respect of which specific
criticism is advanced, Mrs. Mellor was again feeling run down;
she had various complaints; she was to see the neurosurgeons;
she had cold sores; Dr. Richards suspected anaemia. Dr. Richards
took the opportunity to arrange for blood tests to be done.
Of direct relevance here, the notes record the following:
" …
used GTN Sat night for pain
Chest
settled"
Dr. Richards took the view that nothing much could be
deduced from one use of the spray; it had to have been the same spray
as Dr. Richards had prescribed back in April 1994, some 18 months
previously. If the spray had not been used over that 18 month period,
then this was a new presentation.
- Dr. Richards accepted in cross-examination that she had not recorded
the location, nature and duration of the pain; she presumed that
she had not done so because she did not think it was significant.
She did not act on the fact of the use of the GTN spray, because
she did not regard one use of the spray over an 18 month period as
significant. There was not enough there to refer; thousands of patients
have chest pain; doctors cannot refer them all.
- Dr. Richards
was firmly of the view that if the spray had been used over
this
18 month
period, Mrs. Mellor would have reported it and she would have
recorded it. She
said
that she asked Mrs. Mellor to tell her (Dr. Richards) if she
had used the spray. She could not
say, however, that she asked
on every
occasion. A "negative" (i.e.
non-use of the spray) did not
necessitate
recording. Dr. Richards regarded it as very unlikely that Mrs.
Mellor had simply continued
to use the spray over 18 months.
With
regard to 1994/ 1995, she would have been surprised if Mrs.
Mellor had used the spray without telling
her, albeit that she accepted
that
such may have been the case in 1997, after the reassurance
given by Dr. West (see below). In her
mind, the outcome of the trial
was that
the GTN spray had not been used. If Mrs. Mellor had suffered
from angina, the fact that she
had used the spray once over
18 months
was very surprising. Therefore the absence of reported use
was reassuring.
- In re-examination
by Mr.
Hugh-Jones, Dr. Richards emphasised Mrs. Mellor’s haemoglobin
reading
of 8.5 in November 1995. That reading, suggestive of an iron
deficiency and anaemia,
was "pretty worrying".
It could not be left and was,
at the
time, of more concern than possible angina. A referral was
indeed made to an appropriate specialist for
this matter to be attended to.
- March 1996: On the 15th March, 1996, Dr. Richards
saw Mrs. Mellor again. She reported chest pains but these appeared
atypical.
- On the 29th March, 1996, the last of the consultations
forming the subject of criticism, Mrs. Mellor again had a number
of other complaints; it was noted that she was due to have a hospital
appointment for gastric matters in a few weeks and she had suffered
from diarrhoea and vomiting. Importantly, however, the notes also
record this:
"Used
spray 2 x
Took discomfort away
Lasted few secs to min only
Therefore use spray PRN + monitor
only gets discomfort on exertion not at rest…
See
3/52 [i.e. in 3 weeks]"
On the one hand, the fact that the pain lasted only
for a few seconds was atypical of stable angina. Conversely, the
reference to discomfort on exertion and the fact that the spray had
been used twice, were of concern. The spray had, however, only been
used twice. Dr. Richards decided not to refer. She wanted more information.
She was due to see Mrs. Mellor in three weeks anyway.
- Cross-examined
by Mr. Gardner, Dr. Richards said that she did not refer because
the spray
had simply been used twice and the pain had lasted
a few seconds only. In any event,
she had
made arrangements for Mrs. Mellor to return within 3 weeks.
Although
this was the first time that the word "monitor" appeared
in her
notes, it was her practice to say that to a patient such as
Mrs. Mellor.
- Mr. Gardner made it plain that the 29th March, 1996 was
being investigated not because of any causative impact of a failure
to refer on that occasion (it was rightly not suggested that there
was) but to explore the threshold applied by Dr. Richards before
making a referral; it was suggested that Dr. Richards was applying
the wrong test and had only referred Mrs. Mellor when satisfied that
she had angina. Dr. Richards insisted that she would refer when suspicious
rather than when satisfied of angina; in this regard, she relied
on the terms of her letter of referral to Dr. West (see below).
- April 1996 and the referral letter: On the 19th April,
1996, Mrs. Mellor cancelled the appointment which had been arranged.
- On the 23rd April, 1996, Dr. Richards saw Mrs. Mellor. On
this occasion, she decided that it was appropriate to refer Mrs.
Mellor to see Dr. West. The notes read as follows:
" Using
spray - 10 x since last seen
but for sharp pain in chest
Not ischaemic in nature
Suggest refer Dr West for assessment
?
exercise ECG"
Dr. Richards felt that the threshold for a referral
had been crossed. The spray had been used on a significant number
of occasions. She was suspicious that this may be an atypical presentation
of angina.
- By letter dated the 29th April,
1996
("the referral
letter"), Dr. Richards made a referral to Dr. West, Consultant
Cardiologist at the Royal Hallamshire
Hospital, Sheffield. The referral
letter included the following:
" I
would
be grateful if you would see this 42 year old lady who I am
finding difficult to assess. She has been
hypertensive following her first
pregnancy
in 1976 and she had a subarachnoid haemorrhage ….in 1993.
She
has a
strong family history of ischaemic heart disease and I suspect
that Susan herself may have angina. She was initially
given a GTN spray in April 1994
for chest
pain which did not sound like typical angina. She said
she had
a burning pain across the chest but she also described it as
a pressure which came and went, she
said it was there for a few minutes
at a
time and was not related to anything…. She was given a trial
of a GTN and on looking through
her notes she has used it occasionally
since
then for chest pain but never on a regular basis. However,
when I saw her recently she
said she had pain again in her
chest
and again it was only a short lasting pain for a few seconds
to a few minutes, but she had used
her spray and she said it took
the discomfort
away. On questioning she said she only got the discomfort on
exertion….."
- Subsequent to the referral letter: In answer to Mr. Holl-Allen,
Dr. Richards said that as of September 1996, Mrs. Mellor’s predominant
complaint was of headaches. As already foreshadowed, she underwent
a neurosurgical procedure for shunt revision. There was no record
of chest pain in 1997; had it been mentioned, it would have been
recorded. That said, Mrs. Mellor was reticent in reporting problems,
in that she knew that Dr. Richards would be likely to act on those
she reported.
- Asked by
Mr. Gardner, what she would have done had she received an equivocal
letter
from
Dr. West, she said that cardiologists did not send equivocal
letters; their
letters
said "yes" or "no".
Dr. West’s letter of 13th January, 1997, discharging Mrs.
Mellor, had been conclusive at that stage and reassuring.
- When she heard of Mrs. Mellor’s death, she was concerned that Mrs.
Mellor might have died from colonic cancer. She did not think then
that CHD might have been the cause.
- (4) Dr. West: He is a consultant cardiologist at the
Royal Hallamshire Hospital, Sheffield. He was appointed a consultant
in 1994 and was seen in that capacity by Mrs. Mellor in 1996. There
were, at the time, two consultant cardiologists at that hospital.
- As to the referral letter, Dr. West knew the (Crystal Peaks) practice
well. He read the symptoms as being fairly long-standing and stable.
Had the practice wanted urgency, they would have said so.
- On the 4th July, 1996, Mrs. Mellor was seen at the hospital
by Dr. Yellop, the SHO, then undertaking six months full-time cardiology.
Although Dr. West did not recall any consultations with Mrs. Mellor,
he described his practice at the time as follows. New patients would
be seen by the SHO, who would take a full history and examine the
patient. Thereafter, the SHO would go into his (adjoining) consulting
room and discuss the case with him. He would then go back with the
SHO, introduce himself to the patient and discuss the planned treatment.
- Dr. Yellop’s
notes record the following. Mrs. Mellor was complaining of
chest
pain.
She spoke of 6 months of intermittent chest pain, currently
some three times per
week.
The duration of the pain was a number of seconds. It was unpredictable.
It occurred mainly in
bed at night and also with exertion
when
going up stairs. As to the location of the pain, there was
central chest discomfort and it radiated
into the back and right shoulder.
The notes
listed the various drugs Mrs. Mellor was taking. The risk factors
associated with IHD (already
set out) were recorded, as was
a discussion
with Dr. West, leading to a decision to conduct an ETT. A diagram
was drawn showing "epigastric
discomfort" in an abdominal area contiguous with the chest.
The notes remarked that the risk factors were "++" but
that the history was "atypical". Cholesterol levels were
to be checked.
- As to Dr. Yellop’s notes, Dr. West made a number of observations:
- The
notation "risk factors ++" recognised
Mrs. Mellor’s high blood pressure, heavy lifelong cigarette
smoking and family history.
Against that, basing himself on the chart, there was
a low absolute risk of MI, even allowing for these risk
factors.
- The
reference to "atypical history" reflects the
fact that
a diagnosis of angina is essentially a clinical diagnosis
based
on information supplied by the patient. Typically, the
pain
in the chest will radiate to the back and arms, it will
be related
to exertion and it will be relieved in minutes. That
which Mrs. Mellor described and which is recorded in
Dr. Yellop’s
notes was atypical of angina; this was not a clinical
history
of angina. The duration of the pain was in seconds and
it was
unpredictable.
- On this occasion, the ECG was normal; there was no electronic
evidence of thickening (i.e., LVH). With a normal ECG and atypical
history, the best way of clarifying the position was by way
of an ETT. Hence the decision to undertake an ETT.
- As
to the "epigastric discomfort",
this was an important sign. The site of the pain was
contiguous with the chest; palpation of the
stomach resulted in pain. This was neutral with regard
to angina
but raised other concerns. Indeed Mrs. Mellor had a
long history of non-cardiac pathology.
- As
recorded in the notes, Mrs. Mellor was, at the time,
taking a "battery" of
drugs, intended to combat high BP, heavy periods and
acid reflux; she was also taking night-time tranquilisers.
- On the 4th July, 1996, Dr. Yellop wrote to Dr. Richards.
The letter summarised her notes (set out above) and concluded in
the following terms:
" I
have
discussed her case with Dr. West. She obviously has strong
factors for ischaemic heart disease in that
she is a smoker, she has a strong
family
history of heart disease and she is hypertensive [high blood
pressure]. However, we thought
her history was atypical. We
have
ordered her an exercise tolerance test and checked some routine
bloods including a lipid screen [cholesterol].
She will be reviewed with the
results of these tests."
- On the 2nd August 1996, Dr. Yellop wrote again to Dr. Richards.
Blood tests had, inter alia, revealed that cholesterol was raised
at 6.4
"…and
may require
treatment if we find she has a positive exercise test. We have
also found her to be anaemic with
an iron deficiency picture. Her
Hb is 10.2…"
- In simple
terms, the ETT involves the patient working "against" a
treadmill. At the lowest stage, the treadmill is set at a speed of
1.7 mph, with an elevation of 5° .
The speeds and elevation are then increased, up to a maximum, at
the highest stage, of 6 mph, at an elevation of 22° .
Again simply put, the test is
designed to produce enough exercise
to bring the heart rate up to the maximum predicted rate for the
patient in question and then
to see what changes there are
to the ECG.
- Turning to the ETT, it was carried out by a trained cardiac technician
on the 14th August, 1996. Dr. West was not personally
present at the time but would
have seen the report either on
the next day or within a few days. Mrs. Mellor, at the age of 42,
barely
completed the lowest stage, having
to stop no more than 4 seconds
into stage 2. In other words, she could not effectively accomplish
more than 1.7 miles in an hour
on a 5° slope.
The maximum predicted heart rate
for a woman of Mrs. Mellor’s
age was 178 but Mrs. Mellor’s heart rate rose only from 95 to 118.
As
recorded by the test report dated
14th August, the test
had to be terminated after 3.04
minutes because of "Chest pains
S.O.B. [shortness of breath]". Symptoms during the exercise
were recorded as chest pains, S.O.B. and leg pains. No ECG changes
were recorded. On the test report, Dr. West gave the "Conclusion" as "Negative".
- Dr. West’s
evidence was that he drew some comfort from the ETT. An ECG
reading
was taken
before ("resting"), during and after
the test. The "resting" ECG was normal; there was no trace
of any thickening of the heart muscle (i.e., LVH). The ECG during
the test showed no significant abnormalities. On the basis of a concern
as to IHD, the focus would have been upon the ECG pattern, heart
rate ("HR") and BP. The rise during the test of BP (from
146/99 to 165/104) and the rise
in HR, suggested good health
rather than the reverse; a drop in BP or HR suggests the most risk
of coronary
heart disease. Moreover, there
was no pattern of ST depression.
Although Mrs. Mellor’s usual symptoms had been reproduced (SOB and
chest pains),
there was no evidence of IHD.
He was therefore confident she
was not suffering from angina.
- An appointment was booked for the 30th December, 1996 which
Mrs. Mellor did not attend. She was then seen on a routine basis
on the 13th January, 1997. Dr. West’s note of that consultation
are, to say the least, exiguous. They say simply this:
" [ETT]
neg[ative] sub-maximal
Imp[ression]:
atypical CP [chest pain]"
He
said
though that his practice was to summarise his thoughts in a
contemporaneous letter to the GP (see below). Dr. West
explained why he had recorded
the observation "negative sub-maximal".
The reason was that, taken overall,
though
Mrs. Mellor had reproduced her usual symptoms in the test,
she had shown no signs of IHD. Therefore
he characterised the test as
negative.
There were no ECG changes and neither the BP nor the HR changes
were worrying.
- He did not think there was any urgency in the matter. Mrs. Mellor’s
low exercise tolerance – as shown by the ETT – was explained by co-morbidity,
probably anaemia or cigarette smoking.
- This had
been an obvious tragedy, involving "sub-clinical" coronary
heart disease; all cardiologists live in fear of that. Other features
of the history had included a life threatening cerebral haemorrhage,
indigestion and pathological anaemia. Moreover, there were concerns
about cancer of the stomach or the gastric tract – these (as his
letter to the GP made clear) were to be investigated by others. "Taken
in its entirety", on death there was material which led to a
suspicion that she had been suffering
from sub-clinical coronary artery
disease all along.
- With regard to the consultation of the 13th January, 1997,
it was conducted by him alone. He did not now recall it but his usual
practice was to re-take the history. If anything featured in the
history was different from that recorded by Dr. Yellop, he would
have recorded it. In the event, on the 13th January, 1997,
Dr. West wrote to Dr. Richards
in the following terms ("the
13th January letter"):
" …[Mrs.
Mellor]
gave a history of rather atypical chest pain. I think she can
be reassured that this is not cardiac
in nature.
She does, however, have a collection of cardiovascular
risk factors and I have reiterated the importance of stopping smoking.
I think her …[shortness of breath] … can be attributed
to the recurrent iron deficiency anaemia which is being separately
investigated…
Her
recent
treadmill exercise test was negative and there were no significant
ST segment changes during her normal symptoms."
- Dr. West did not accept that he had said at the consultation on the
13th January (or in his letter to the GP) that there was
nothing to worry about. The second paragraph of the 13th January
letter had dealt expressly with risk factors.
- Staying with the 13th January
letter,
the statement that Mrs. Mellor’s chest pain was "not cardiac in nature" reflected
the fact that Dr. West thought
it appropriate
to give reassurance. In his judgment, the pain did not fit
the clinical picture of angina.
He disagreed that it would be
appropriate
to make the jump from a negative (or even equivocal) ETT to
angiography. Certainly at the
time, it was wrong to portray
angiography
as having all gain and no risk. The statistics showed the risk
of a fatal heart attack or
stroke to be 1/1000 and the risk
of very
distressing vascular complication to be 1/100. Every year,
Dr. West and his colleagues see something
like 1000 patients; over 10 years,
if they
had carried out angiography on each one, statistically they
would have been likely to have caused
10 unnecessary deaths and 100
vascular
complications. In his opinion, coronary angiography was not
justified here, given the risks.
- Had he thought it necessary to undertake further investigations, he
would have conducted a thallium scan, involving the insertion of
a radioactive tracer in a vein (not in an artery). This was a non-invasive
way of obtaining more specific information than could be obtained
from an ETT. If the findings of such a scan showed multiple defects
throughout the heart muscle, that would have shown a patient most
at risk – and therefore a situation likely to lead him to proceed
to angiography. If he decided on angiography, he would have done
it – but at the Northern General hospital rather than the Royal Hallamshire.
For urgent angiography, he would have needed to see characteristic
angina symptoms, profound BP/HR/ECG changes on the ETT and large
deficits on the thallium scan. As to then proceeding to angioplasty,
he would not have been in favour of treatment on the same day; such
an approach would negate informed consent. The degree of stenosis
would in any event have to be such as to justify proceeding to angioplasty,
despite the risks in that procedure. Something like 90% stenosis
would have been needed; if less, he would favour secondary intervention
aimed at stopping smoking and reducing cholesterol. For urgent angioplasty,
the patient would have had to be an in-patient on a cardiac ward,
in severe pain not settled by intra-venous medication and facing
a threatened heart attack. There was in any event no evidence of
which Dr. West was aware that angioplasty improved the patient’s
prognosis.
- Cross-examined
by Mr. Hugh-Jones, Dr. West said that the referral letter was,
qualitatively, "well above average". Dr. West thought
that reflux was very important
– it
causes pain in the chest and is difficult to distinguish from
coronary related chest pains. Dr.
Yellop in her 4th July notes had made no mention of the
GTN spray; this was because the spray was too non-specific to be
useful in the exercise of diagnosis. Further, Mrs. Mellor had not
exhibited classical angina.
- Reverting
to various features of Dr. Richards’ notes of April 1994, the "burning",
the pressure
coming and going and the intermittent nature of the pain were
all atypical. Throughout, the shunt problems
were important. Overall, the
symptoms
in 1994 were even more atypical of angina than those manifesting
themselves in 1996; that said, Dr.
West was adamant that the symptoms
in 1996
were not typical. Dr. West could not say what would have happened
had he received a referral
letter couched in the language
of Dr.
Richards’ notes of April 1994. Had Mrs. Mellor been referred
following a consultation with Dr. Richards
on the 29th March, 1996 (i.e., about one month earlier
than she was referred) he very much doubted that it would have made
any difference.
- Cross-examined by Mr. Gardner, Dr. West clarified that if angiography
had been decided upon, he would himself have performed it but at
the Northern General hospital, rather than the Royal Hallamshire;
if an angioplasty had been called for, he would not have undertaken
it but would instead have referred it to an appropriate specialist
at the Northern General hospital.
- In 1997, he had done some 150 angiograms; of that number, about 30%
had led on to angioplasty. As to thallium scans, some 5 per week
were undertaken throughout the year at the Royal Hallamshire.
- Dr. West
was cross-examined on some medical literature available in
1997. First, "Effective Health Care" of October 1997, an
NHS Bulletin. Secondly, "Management of stable angina pectoris",
recommendations of the Task Force
of the European Society of Cardiology,
European Heart Journal (1997). In summary:
- Dr.
West accepted that coronary heart disease ("CHD"),
i.e. narrowing of the coronary arteries, is the leading cause
of death in the United Kingdom. Accordingly, those with angina
were an important group to target. However, as he pointed out,
the same literature, while noting that angioplasty can improve
relief in some patients, contained the observation that "it
has not been shown to improve survival".
- Dr.
West accepted that angina may be under-diagnosed in young
women and
symptoms of chest pain in this category were "often
atypical". That he appreciated in 1996; he would nonetheless
have
expected
to find one or two major characteristics.
- Against this background, Dr. West accepted that atypical chest
pains might be angina based, though ultimately the patient
might or might not suffer from angina.
- Dr.
West further accepted that with proper management the
symptoms
of angina
could usually be controlled and the prognosis substantially
improved.
He pointed however to the same literature observing
that an "initial non-invasive strategy …[was] ..
appropriate for most
patients."
- Dr.
West agreed that "suspected" angina patients should
receive prompt and appropriate cardiological investigation,
within the constraints of the NHS. It may be noted that the
recommendation in question calls for "As a minimum, each
patient should have a carefully taken history and physical
examination, an assessment of risk factors and a resting electrocardiogram".
- When
the "diagnosis remains uncertain or functional assessment
is inadequate, especially when there are electrocardiographic
features which are difficult or impossible to interpret",
Dr. West
agreed
that alternative investigations were needed; but that was not
this case; there was no difficulty here in
interpreting
the ECG.
- He accepted that an invasive strategy could be justified if angina
was suspected, even though it was ultimately established that
the patient did not suffer from angina; Dr. West, however,
underlined throughout the risks involved in angiography.
- Returning to the referral letter, Dr. West knew well that there would
have been no reference from that practice unless the GP needed assistance
and that Mrs. Mellor had been referred to him because the practice
had suspected angina. He underlined the atypical features described
in the referral letter; the burning pain, the fact that it came and
went and that the pain was unrelated to exercise. He could not, however,
exclude angina on the symptoms described in the letter. The GTN spray
did not assist one way or another. The reference to exertion was
very suspicious but that was not the history he had been given when
Mrs. Mellor attended at the hospital (see Dr. Yellop’s notes). The
referral letter would be taken into account and would be the prompt;
the history upon which he would ultimately rely would be that taken
by the SHO from the patient. In effect, his judgment was based on
the patient in front of him.
- As to the 4th July
consultation,
there would have been no examination by him. It was a matter
of interpreting the patient’s
history. He accepted that the
only
noted record of his involvement was the discussion referred
to by
Dr. Yellop. He accepted that the history as taken by Dr. Yellop,
though
atypical, could not exclude angina. Family history gave
rise
to a significant risk factor – though Dr. West was adamant
that it
was no
more or less of a risk factor than cigarette smoking. The notation "++" indicated
the presence of significant risk
factors. Therefore, the decision
was taken to conduct an ETT and a cholesterol check. The letter written
by Dr. Yellop to Dr. Richards, on the 4th July, 1996,
had been written by her on his behalf.
- The letter
writtten by Dr. Yellop to Dr. Richards on the 2nd August, 1996,
confirmed
the discovery
of raised cholesterol levels; that was to be taken into account
though
it did not necessarily increase the risk. He later remarked
that
this was not far above the average.
He regarded the figure of 10.2
for Hb,
however, as "pathological" and
an abnormality, albeit within
the normal range.
- Cross-examined at some length on the ETT, Dr. West’s answers can be
shortly summarised:
- He accepted that the HR had not gone up to the maximum required
when seeking to carry out the test.
- However,
the symptoms of Mrs. Mellor’s chest pains had been reproduced
at less
than the maximum heart rate with no objective evidence
of ischaemia.
Moreover, although the fact of no ECG changes could
be
attributed to the test not being effective, the fact
that
there were no changes within the 3 minutes and 4 seconds
for which
the test lasted "excluded ischaemia of the type
which benefits from revascularisation".
- The
test had been stopped at the lowest level (or 4 seconds
thereafter)
because
Mrs. Mellor had been unable to keep up. A lot of patients,
especially
women, found the mechanics of the treadmill difficult.
But the
essence of the matter was that the stopping of the test
did not surprise him in the light of Mrs. Mellor’s "clinical
condition".
- The explanation for Mrs. Mellor’s chest pains was reflux; cigarettes
and anaemia explained the SOB.
- The characterisation of the test was best expressed, as in his
note but not in the 13th January letter, as "negative
sub-maximal", not simply "negative". With hindsight
and with the classifications now in use, he would characterise
the test as "equivocal".
- Turning to the 13th January
letter,
it was put to him that there was nothing to alert the GP to
the fact that the test had to
be stopped. He disputed this,
pointing
to the second paragraph of the letter as listing the risk factors
and also to the referral of
the anaemia and abdominal pain
to others.
He was convinced that the cause of nausea and ongoing sickness
was a hiatus hernia. He accepted
that the letter did not alert
the GP
to the equivocal nature of the test and Mrs. Mellor’s exercise
intolerance. He accepted that of
course angina could co-exist
with
other health difficulties but stressed the nightmare of "sub-clinical" coronary
disease.
He emphasised that Mrs. Mellor had not given a clinical history
of angina. Indeed,
he remains of the view (I think)
that
she never did have angina; certainly at the time, he was more
concerned about possible abdominal
disease. He could not be certain
that
Mrs. Mellor did not have CHD – but he was of the opinion that
she did not have CHD which could
benefit from revascularisation.
- He accepted that in 1996 an angiogram could determine whether or not
Mrs. Mellor had CHD. He had not proceeded to undertake angiography
as he was satisfied that her problems were not cardiac; he also took
into account the risks in angiography. A jump to angiography could
not be justified simply on the basis of a negative ETT. He accepted
that the assessment of risk and the decision to be taken in the light
of that had not been put to Mrs. Mellor. But he was adamant that
had his diagnosis been different, he would have opted for a thallium
scan not angiography, applying the principle that the physician should
do no harm. He had reassured the GP and Mrs. Mellor because he had
concluded that her problems were not cardiac though CHD could not
be excluded. Asked why he did not say instead that he could not be
sure and therefore that Mrs. Mellor should be monitored, he said
that paragraph 2 of the 13th January letter set out the
risks. It should not be assumed that the GP and other medical practitioners
whom Mrs. Mellor was in any event seeing would not re-refer and would
not continue to monitor the patient. Allowing for all the risk factors,
the chart – as he underlined, in GP use in 1996-1997 - showed that
Mrs. Mellor had a 5-10% risk of a coronary event over 10 years, equivalent
to a 1% risk per annum; even doubling that risk would produce a risk
of no more than 2% per annum.
- Dr. West was challenged as to whether in fact he had re-taken Mrs.
Mellor’s history on the 13th January and, if so, why it
had not been noted. Dr. West maintained the account given in his
evidence in chief; namely, that his practice was to re-take the patient’s
history but that he probably did not note it because it was not different
from that recorded by Dr. Yellop (in the previous July).
- In re-examination by Mr. Holl-Allen, Dr. West said that had he proceeded
to undertake a thallium scan, he would not have classified it as
urgent; Mrs. Mellor’s symptoms suggested a relatively low absolute
risk of a coronary event; within its limitations, the outcome of
the ETT excluded the need for urgent investigation.
- (5) Ms. Woodcock: Ms. Woodcock was in 1997 the Cardiology
Services Manager at the Northern General Hospital. Her evidence was
straightforward and reassuring. Had angiography or angioplasty been
urgently required, such treatment would have been promptly accommodated
by the hospital. Interposing, I am bound to say that had Ms. Woodcock’s
evidence in this regard been different, then other issues would necessarily
have arisen; fortunately, however, that is not this case.
- (6) Mr. Mellor: Mr.
Mellor
married Mrs. Mellor in 1971; they had a good relationship;
she had been a good mother and a "brilliant" wife;
he could not have wished for anything more. They were always together.
He had been in trouble with the law some years ago; Mrs. Mellor’s
influence and strength of character had much to do with him thereafter
keeping "straight". Neither Mr. nor Mrs. Mellor had worked;
she did the most with regard
to running the house and household,
arranging holidays, spending money and the like; he helped when he
could. As to her hospital or
medical appointments, with one
exception (to which I shall come),
he would drive her to the appointments
but would not himself come in.
- Although, as became apparent, he could not be precise as to dates,
he thought he remembered that from about 1994, Mrs. Mellor had used
a spray to alleviate pains and tightness in her chest. It used to
help a lot. She had difficulty walking any distances; what she could
do, could be measured in yards. It was hard for her, as she was very
short of breath. She frequently complained of pains in the chest
– but nothing seemed to be done; she was given pain killers and anti-biotics.
- With regard to the ETT, he took her to the hospital and waited for
her; when he saw her, she was very red and out of breath; she had
not completed the test.
- On the occasion when Dr. West discharged Mrs. Mellor (the 13th January,
1997), Mr. Mellor had attended.
He and
Mrs. Mellor spent some 5-10 minutes with Dr. West, who had
given Mrs. Mellor a clean bill of
health. The ETT had been negative;
he did
not think that she had a heart problem; the pain and SOB she
encountered had more to do
with the tablets she was prescribed
by her
GP for other matters, her high BP and anaemia. Mr. Mellor had
his doubts but Dr. West had
convinced him. Mrs. Mellor thought
she had
been given an "all
clear". Any pain – and she continued to have pain – was not
to do with her heart.
- On the 1st January,
1998,
he had been watching television; Mrs. Mellor had gone upstairs
to have a bath. Their son Kirk, then
aged 11, came running down to
say that
she was "poorly".
Her face was red; she could not
breathe;
she had been sick; an ambulance was called; He did not think
the problem was related to her heart;
he thought it was a problem to
do with
her head or the tablets she had been taking. At all events,
Mr. Mellor followed the ambulance
to hospital. His expectation
was that he would later bring
her home.
- Shortly after his arrival at the hospital he was seen by medical personnel.
They told him that Mrs. Mellor was dead. He was disbelieving and
shocked. He let out a scream. They asked him if he wanted to see
her. He said yes. This proved very distressing. She was in a theatre
of sorts. Her tongue had been out of her mouth and was tied down
near her chin. It was not right. A nurse cut the string at his insistence.
He constantly thinks back to that; he cannot get it out of his mind.
- He was
devastated. He would visit her grave every day, perhaps 2-3
times a day.
He wanted
to be near to her. He took flowers regularly. He felt very
alone. His daughter,
Kerry
Mellor ("Kerry")
came every day and provided "tremendous input", for both
him and Kirk. She did the cleaning
and the cooking. These were very
difficult times for him. On two occasions he contemplated suicide.
He has had mood swings. He has
not looked at the future. Even
now, after six years, his distress
has only eased a little.
- Cross-examined
by Mr. Holl-Allen, he was asked whether, given his perception
of Mrs.
Mellor’s very bad headaches and other (heart unrelated)
medical
problems, her ability to carry
out domestic
tasks had been reduced after the operation for the shunt. Mr.
Mellor did not think so; none
of this had stopped her trying
to do
things around the home. She was a strong person. Mr. Mellor
did however accept that she had bad
headaches throughout. Likewise
she had
had bad periods and anaemia. He was not sure about tiredness
but he accepted that she had suffered
from SOB. Roy Mellor was "not sure" whether Mrs. Mellor
had complained of chest pain
in the last year of her life.
He accepted that in her last year of life, she had complained of
headaches.
- Asked as to his overall impression of Mrs. Mellor’s health towards
the end of her life, he had not noticed that she had been putting
on weight; she seemed the same but did suffer from SOB.
- Mr. Mellor said that he remained on anti-depressants, which he takes
regularly together with tablets for his back.
- Cross-examined by Mr. Hugh-Jones, it became clear that Mr. Mellor was
uncertain as to dates. He was not sure why he had taken April 1994
as the start date for her chest pains. He could not distinguish between
chest pains due to her suffering from flu, or heartburn or acids,
or cardiac problems. He thought she had used her mother’s GTN spray
from 1994 and even before it had been prescribed but he might be
wrong. He could not assist as to why Mrs. Mellor had apparently told
Dr. Yellop, the SHO, in July 1996 (set out above) that she had suffered
from 6 months (rather than years) of chest pains. When asked whether
the start date for her chest pains was 1996, rather than 1994 as
suggested in his statement, he answered that he did not think so.
Mr. Mellor could not assist with regard to an entry in the medical
notes for September 1994 (relating to the shunt) which said that
she had no problems with breathing and smoked some 10-20 cigarettes
a day. He agreed that she had probably used the spray more towards
the end.
- Re-examined, Mr. Mellor said that he had found giving evidence an upsetting
experience. He does now have a memory problem; but did not have one
prior to Mrs. Mellor’s death.
- (7)
Kerry Mellor ("Kerry"): Kerry
spoke of Mrs. Mellor as having been a "brilliant mother" who took
good care of the family. She was chatty, funny and very much liked.
To her, Mrs. Mellor had been both a mother and a very good friend.
Mrs. Mellor had looked after the house well; she was also a good
cook; Kerry Mellor missed that "a hell of a lot". Mrs.
Mellor had spent a lot of time
with Kirk, who had no learning
difficulties before her death but had not fared well since.
- Kerry remembered her mother’s chest pains. She remembered her mother
saying it felt tight; some times she had to sit down. Kerry dated
the start of these pains as 1994; she was then pregnant with her
first son, Jordan and she spent a lot of time with her mother. She
had no doubt that her mother very much wanted to go on living; if
investigations or operations had been suggested, her mother would
have gone through with them. Her mother’s chest pains had continued
until her death.
- Mrs. Mellor’s mobility had not been too good for a person her age;
she was out of breath easily and would sweat a lot. Kerry remembers
that this was the case just after Jordan was born (in April 1995).
Some times her mother was white and clammy; then she would be red
from the chest upwards, bright red. While her mother would try to
work around the house, Kerry would help a lot. Mrs. Mellor’s mobility
worsened; she found it tiring to play with Jordan.
- Her mother’s
death had not been at all expected. Kerry had, however, moved
on.
From
then and continuing even now, she had become a mother as well
as older sister to Kirk.
He did
not get on at all well at school; she helps him with everything,
including filling in forms
for applications. What she is
doing
now is likely to continue in the future "for as long as it takes".
There is no one else Kirk
can come to.
- As to her father, after her mother’s death, her father was sad, on
his own and had been crying – something she had never seen him do
before. He needed watching for his suicidal tendencies; when he had
mood swings, he had to be left alone. His demeanour in court was
much as he was every day; he does not remember. She has taken on
running the family; she can keep coping; she is strong like her mother.
- With regard to emotional support for her father, Kerry Mellor estimated
that she devoted about 3 hours per day for a 3 year period, followed
by 1.5 hours per day thereafter and continuing.
- Cross-examined, Kerry was asked why she had visited her father’s house
some 2-3 days per week in 1998 but every day from 1999. She said,
frankly, that this was because neither she nor her father wanted
to be on their own. She had enrolled her first son, Jordan, at a
school near her father’s house. She spent her time at her father’s
home doing things which she did at her own; cleaning, washing and
helping Kirk – though with regard to Kirk, she accepted that on an
ordinary day he would then have gone to school before she arrived
and would not have returned before she left. He was, however, bullied
a good deal and was not infrequently out of school. Kerry accepted
that, inevitably, a large amount of time was spent looking after
her second son, Blaine, born on the 28th October, 1998
and then an infant. The presence
of the grandson(s) helped her
father. Kerry further accepted that her father was not present throughout
her visits to his home; he was
away at the cemetery visiting
Mrs. Mellor’s grave during her visits,
perhaps 3-4 times a week. While
she resisted the suggestion that
the time claimed for emotional
support (in effect listening, talking and bringing the grandchild
to her
father’s home) was excessive,
she accepted that her visits
could be described as "mutual support";
she supported her father; he
supported her.
- Turning
to her mother’s symptoms, Kerry’s evidence in cross-examination
was that her
mother
had not complained "that often" of
chest pains in 1995; but that
she had
noticed the problem. Her mother’s predominant complaint at
the time was nausea and not being able to
eat. She denied however that
the nausea
and the chest pains were, so far as she was aware, associated.
Her mother’s chest pains worsened
in 1996-7; she could remember
dates
by reference to Jordan’s age. Nausea was a recurrent symptom.
With regard to 1997, headaches were
significant. Moreover, her mother
was tired.
She noticed chest pains a lot more in 1997; not just that –
her mother was sweating; she
had a red neck and face; she
would
hold on to things and she was catching her breath. She disagreed
in this regard with her father;
her mother’s chest pains were
worse in 1997.
- Still further, Kerry accepted that her mother’s subarachnoid haemorrhage
in 1993 had altered her lifestyle; she had worked as a cleaner before
then but not thereafter. In 1995 when Kerry was pregnant with Jordan,
she had visited her mother daily; she did not notice much about her
mother’s mobility then. The medical notes of September 1994 which
had recorded her mother as having no problems with her breathing,
accorded with her recollection. Her mother had taken a turn for the
worse in 1996-7, when Jordan was one to two years old.
THE EXPERT EVIDENCE - LIABILITY
- There were three groups of expert witnesses: (1) The GPs – Dr. Isaac
called by the Claimant, Dr. Crouch called by the Sixth and Seventh
Defendants; (2) The cardiologists – Dr. Dawkins called by the Claimant,
Dr. Saltissi called by the First Defendant and Prof. Littler called
by the Sixth and Seventh Defendants; (3) The psychiatrists - Dr.
Hayes called by the Claimant, Dr Bradley called by the Defendants
jointly. As the psychiatrists were relevant only to quantum, it is
convenient to defer reference to their evidence until quantum comes
to be dealt with. As with the witnesses of fact, it is convenient
to begin by recording the evidence of the experts and, in general,
to postpone comments and conclusions until later.
- (1) The GP experts: I start with Dr. Isaac.
He has been a partner in a GP practice since 1986; he was an approved
GP trainer over the period 1990-1997; he is on the list of approved
GP experts for AVMA (Action for Victims of Medical Accidents); so
far as his appearances as an expert are concerned, the approximate
division is 65% claimant work and 35% defendant work.
- General approach: In Dr. Isaac’s opinion, once a patient’s symptoms
give a possible indication of IHD, a GP should make a referral to
a cardiologist. He emphasised that Mrs. Mellor was, for a GP, an
extremely unusual patient, both in terms of her family history of
cardiac related problems and because it would be very rare to find
a young, pre-menopausal woman presenting with the suspicion of cardiac
concerns. The context in which to consider her complaint of chest
pain included her family history, her age and sex, her history of
poorly controlled BP and the fact that she was a smoker. The purpose
of making such a referral would be to eliminate a cardiac cause for
her chest pain. Dr. Isaac did, however, make it plain that he would
not have made a referral on the basis of risk factors alone. While
he accepted it was true that cardiac units in hospitals could not
cope if every patient with chest pain was referred because of possible
angina, in his view this patient was not such a run of the mill case.
There ought in this case to have been a high index of suspicion and
no more than a low threshold to be satisfied in order for a referral
to be made. The criterion was the need – to take reasonable care,
as he accepted in evidence – to rule out a cardiac cause for the
chest pain.
- Dr. Isaac accepted that a GP was entitled to assess the possible alternative
causes of chest pain and, if he/she proceeded carefully, to come
to a conclusion. Reasonably careful GPs could disagree; there was
a range of opinion which could properly be held by careful GPs as
to the assessment of alternative diagnoses. Though the patient’s
history and symptoms were to be taken into account, he was not advocating
diagnosis, so to speak, by ticking a list.
- With regard to angina (at least of the variety relevant to these proceedings),
it was necessary to have regard to the location, nature and duration
of the pain, together with its relationship with exertion. The key
was the relationship between pain and exertion. Indeed, if the symptoms
were atypical, a connection with exertion was necessary to trigger
the suspicion of angina. As to the relationship between the pain
and exertion, the reason, he accepted, was physiological. Bearing
in mind that angina is cardiac related pain, once the occlusion passed
the 50% level, it would cause pain on exertion. Such pain was reproducible;
hence the utility of the (treadmill) ETT.
- Criticism of Dr. Groves: Criticism of Dr. Groves was, as already
foreshadowed, confined to the 9th January, 1992 consultation.
The basis for this criticism best appears from the joint responses
of Drs. Isaac and Crouch, following their telephone conference held
on the 17th December, 2003:
" We
both
agree that according to the notes there should have been further
specific questions asked about the chest
pain, i.e. its duration, radiation,
cause
of onset, whether exacerbated with exercise and relieved by
rest. We cannot say from the notes
what was said at this consultation."
- Against this background and as Dr. Isaac’s further answers made clear,
the question of whether criticism of Dr. Groves was warranted (apart
from criticism of his note-taking as such), turned, upon analysis,
on a short question of fact. While Dr. Isaac was of the view (understandably
and as conceded by Dr. Groves) that if the above questions were asked
they and the answers to them should have been noted, he agreed that
if such questions had been asked and negative answers were given,
then he could not say that a referral should have been made. If the
questions were not asked, then further investigation ought to have
taken place and, if the answers were other than negative, then a
referral should have been made. In this regard, Dr. Isaac further
agreed that the questions contemplated by him and Dr. Crouch were
questions which would be second nature to a GP – they would be asked,
as it were, by rote.
- Criticism of Dr. Richards: The broad thrust of Dr. Isaac’s
criticism of Dr. Richards, in his supplementary report (dated 24th February,
2004) and oral evidence, proceeded as follows. In April 1994, given
that Dr. Richards thought it appropriate to consider prescribing
the GTN spray (used to relieve pain associated with IHD), then, always
bearing in mind Mrs. Mellor’s risk factors and young age, even one
use of the spray to positive effect (i.e. serving to relieve chest
pain) ought to have triggered referral. In the light of Dr. Richards’
notes of the 22nd and 28th April consultations,
she should then have referred Mrs. Mellor to a cardiologist. The
effectiveness of the spray would give rise to a suspicion that Mrs.
Mellor’s pain was angina, crossing Dr. Isaac’s threshold for referral.
In his experience, he had never come across a woman in her late thirties
or early forties using a GTN spray.
- As to the period between April 1994 and November 1995, Dr. Isaac was
critical of Dr. Richards for not following up her inquiries. If Dr.
Richards had told Mrs. Mellor to monitor her condition, he would
have expected that to have been recorded – as it was in Dr. Richards’
notes of the later 29th March, 1996 consultation. Likewise,
questions put by Dr. Richards as to any recurrence of chest pain
or use of the spray, together with the answers given by Mrs. Mellor,
whether positive or negative, should have been recorded. If the GTN
spray had been prescribed as a trial in April 1994, the lack of recorded
follow-up made it an unsatisfactory trial.
- As to the 3rd November, 1995 consultation, given
the reference in Dr. Richards’ notes to the use of the GTN spray,
Dr. Isaac’s view was that a referral should then have been made.
- As to the 29th March, 1996 consultation, the reference
in Dr. Richards’ notes to the use of the GTN spray required a referral
without more ado; all the more so, said Dr. Isaac, when regard was
had to the entry linking Mrs. Mellor’s discomfort to exertion and
therefore indicative of angina.
- Dealing
with the absence of recorded complaint as to chest pains by
Mrs. Mellor
to Dr.
Richards after April 1996, in Dr. Isaac’s view it was possible
that Mrs. Mellor
simply
used the spray to relieve pain and, perhaps, restricted exercise
so as to manage it. It was
for doctors to ask questions
of their
patients; if they did not ask, they would not get answers.
Moreover, it was to be kept in mind that
patients might have "different agendas" from their doctors.
- Cross-examination of Dr. Isaac yielded the following answers of significance:
- Save
that reliance was placed on the reference in Mr. Mellor’s
witness statement to Mrs. Mellor having used a GTN spray
in
1994
to relieve her chest pain, no criticism was advanced
in Dr. Isaac’s first report in respect of the April
1994 consultations.
Dr. Isaac’s
explanation was that he had "missed" the
28th April consultation, both in his first report
and in his meeting with Dr. Crouch.
- Dr. Isaac accepted that Dr. Richards’ notes were of a high standard,
suggestive of attentive care. On the face of it, Dr. Richards
and Mrs. Mellor had enjoyed a good doctor-patient relationship;
Dr. Richards had seen Mrs. Mellor on some 93 occasions, far
in excess of the average of 4 GP consultations per patient
per year. Further, following Mrs. Mellor’s subarachnoid haemorrhage,
Dr. Richards had made a beneficial intervention with regard
to bringing Mrs. Mellor’s BP under some degree of control and
she had doggedly investigated Mrs. Mellor’s anaemia. Dr. Richards’
referral letter (of 29th April, 1996) had been a
letter "of quality".
- Ordinarily, an 18 month gap without a report of chest pain, such
as that between April 1994 and November 1995, would be reassuring;
such a gap would be unusual if the patient was suffering from
angina – though Dr. Isaac maintained that angina should not
be discounted on the basis of this gap alone. Moreover, said
Dr. Isaac, much turned on whether in fact Mrs. Mellor had not
used the spray over that period.
- No doctor had positively diagnosed angina prior to Mrs. Mellor’s
death; this was true even of the anaesthetists who saw Mrs.
Mellor in connection with her other non-cardiac problems.
- Ultimately, as it appeared to me, the core criticisms which Dr. Isaac
maintained against Dr. Richards were these:
- One successful use of the GTN spray in April 1994 to relieve
pain, following its prescription, was sufficient to require
a referral. It was negligent to await a pattern of use or a
link between the pain and exertion.
- It was no answer, or at least not one which Dr. Isaac was minded
to accept, that Dr. Richards had done no more than prescribe
a trial use of the GTN spray in April 1994, out of an abundance
of caution.
- In the absence of recorded questions and answers, the gap between
April 1994 and November 1995 during which there is no report
of chest pain or the use of the spray, did not provide the
reassurance for which Dr. Richards was contending.
- In the light of the entries in Dr. Richards’ notes for the dates
in questions, a referral should have been made following the
consultations on the 3rd November, 1995 and the
29th March, 1996, even if not before.
- Dr. Crouch: Dr.
Crouch
has been a partner in a GP practice since 1973. He holds various
other posts relating to
GP training and assessment. He
is also
a non-executive director (receiving an honorarium as such)
and a member of the council of the Medical
Protection Society ("MPS") – a mutual non profit making
body and effectively the insurer
standing behind Dr. Groves and
Dr. Richards in these proceedings. In the present case he had produced
his expert’s report at the request
of the MPS, which had much earlier
asked him to give an opinion to
its claims committee at a stage
when the MPS was deciding whether
or not to defend the claim. As
an expert witness, some 65% of Dr. Crouch’s work involved instructions
from
defendants and some 35% involved
instructions from claimants;
in short, the inverse of the ratio applicable to Dr. Isaac. Dr. Crouch
had last given evidence in court
some four years ago.
- General approach: Dr. Crouch’s general approach was broadly
to the following effect. Having regard to the chart, taking account
of all Mrs. Mellor’s risk factors while recognising that in the period
1992-1996 cholesterol was not the concern it is today, she was at
low absolute risk of a coronary event. All the more so, given that
following her subarachnoid haemorrhage, Dr. Richards had done much
to bring her BP under control. In Dr. Crouch’s view, the most crucial
factor was the link between chest pain and exertion; granted that
angina could present atypically, there nonetheless had to be a relationship
between the pain complained of and exertion for angina to be suspected
and for a referral to be warranted.
- When considering the picture as presented by Mrs. Mellor to the GPs,
it was to be kept in mind that viral illnesses (such as flu) do cause
muscle pain; moreover, though the spotlight (with hindsight) was
here on Mrs. Mellor's cardiac problems, viral complaints were to
be taken seriously and could not be dismissed out of hand.
- Patients
could of course have "concurrent symptoms". It was
important to avoid one symptom masking another. One of the tasks
of the GP was to try and pick up what was important and to prioritise
appropriately. It was also very rare that a GP would be given a classical
description of any condition. "Bits" of the history would
be given over a period of time;
it was important to try and build
up a picture. It was not Dr. Crouch’s practice to refer a patient
to a cardiologist based on one
consultation possibly indicative
of angina.
- The position of Dr. Groves: With regard to the criticism made
of Dr. Groves, Dr. Crouch stood by the agreed comment made by him
and Dr. Isaac in their telephone conference of 17th December,
2003:
" Any
patient
[who] .. attends a GP is entitled to have an appropriate history
and examination. The GP should note
relevant clinical details and
management."
It
was important
too that negatives were recorded. All that said, in his oral
evidence, Dr. Crouch contrasted the "ideal" and
the "real" worlds. Given the limits on a GP’s time, especially
when a patient presented, as
Mrs. Mellor did on the 9th January,
1992, with several symptoms,
it was understandable that note
taking could suffer – notwithstanding that considerations of "good
practice" pointed towards the taking of a good note.
- The position of Dr. Richards: On the basis of the available
material as to the consultation of the 22nd April,
1994, Dr. Crouch would not have made a referral. While the reference
to "pressure" would have rung alarm bells, Mrs. Mellor
was also describing something different in the form of "burning" pain
– not typical of angina. The reference in these "excellent" GP
notes to pain "at different points along the arms" was
again not typical of angina. Most importantly, the notes recorded
that the pain was "not on exertion". In all the circumstances,
it was reasonable for Dr. Richards
to reach the conclusion that
the pain was not ischaemic in origin.
- The prescription of a GTN trial (possibly out of an abundance of caution)
was not a matter for criticism; reasonable GPs could disagree over
whether to have prescribed the spray or not. A decision either way
could not properly be criticised. The fact that Dr. Richards had
prescribed the trial did not impact on the question of whether the
time had come for a referral to be made. In Dr. Crouch’s view, it
was still appropriate to wait for a link between the pain and exertion.
- On the 23rd April, 1994, Dr. Richards had again seen Mrs.
Mellor. Had the pain in truth been angina, he would have expected
Mrs. Mellor to have used the spray immediately; yet the notes recorded
that the spray had not been used.
- Coming on to the consultation on the 28th April, 1994,
Dr. Crouch accepted that the fact of no chest pain coupled with the
use of the spray was significant. However, on the available material,
again he would not have made a referral. Had the pain in fact been
angina, he would have expected the spray to have been used more than
once over six days. Before referring, he would have wished to see
some repetition of use associated with a relationship between the
pain and exercise. Certainly he would have wanted to know more before
referring; for example, how often the spray had been used and how
quickly it had worked. He emphasised the history and the difficulty
of reaching a diagnosis of angina given the absence of a reported
link between the pain and exertion. The instruction to a patient,
use the spray (if you feel pain) and report, was a common instruction
given by GPs, especially when uncertain as to the diagnosis.
- As to the consultation of the 3rd November, 1995,
Dr. Crouch was firmly of the
view
that he would not have wished to make a referral based on one
use of the spray over an 18 month period.
The expectation, in the case
of a
patient with angina, is that use of the spray would have increased.
In a perfect world, there would
have been more noted as to the
pain
and the use of the spray; overall, however, Dr. Richards’ notes
were excellent. Further, treating the
single use of the GTN spray as
a "re-trial" was a reasonable
course to adopt. In any event,
at the
time, Mrs. Mellor’s haemoglobin level of 8.5 was of greater
significance; anaemia had to take precedence
and there were concerns as to
cancer.
- Finally, as to the consultation on the 29th March, 1996,
although there was now a reference to the spray having been used
twice and a link between pain and exertion, Dr. Crouch would have
wished to build up more of a picture before referring. He emphasised
that, according to the chart, Mrs. Mellor remained at low (absolute)
risk.
- (2) The cardiology experts: Dr. Dawkins, the cardiologist
expert called by the Claimant, is the senior cardiologist at the
Wessex Cardiac Unit, Southampton University Hospital. Amongst his
qualifications, Dr. Dawkins includes a BSc in Pathology; he has an
interest in post-mortems, especially those concerning the heart.
He also has a particular interest in angioplasty. His team carries
out some 450 angioplasty procedures per year; the highest in the
United Kingdom for an individual team.
- It will
be convenient to record Dr. Dawkins’ evidence (and in due course
that of
the other
cardiology experts) under the following broad headings: (i)
background and the alleged
negligence
of Dr. West ("negligence");
(ii) causation; (iii) evidence of relevance to the position of Drs.
Groves and Richards ("the GPs").
- Negligence: Dr. Dawkins explained that heart disease has a
genetic basis; Mrs. Mellor therefore was at high risk of premature
cardiac disease, her mother and sister having had a major cardiac
event at the same age.
- As to the referral letter, the symptoms were not entirely typical.
However, it was noteworthy that the GTN trial was effective and the
discomfort was linked to exertion. With the caveat that the GTN spray
can relax or relieve certain pains of non-cardiac origin, in Dr.
Dawkins’ view the GTN spray can be used to identify cardiac pain.
- As to Dr. Yellop’s notes, the primary complaint was chest pain. A number
of features remarked on in her notes support the diagnosis of angina,
though a few features were not typical. The references to the pain
having existed for some six months and to it occurring three times
a week were suggestive of angina; the duration (seconds) and the
unpredictable nature were atypical. All cardiologists were, however,
aware of the difficulty of assessing chest pain in young women. Pausing
there, the fact that Mrs. Mellor gave a history of six months (rather
than several years) for her chest pains, was neither here nor there;
as with many patients, a consistent history is not always given.
A very important matter in connection with classic angina was linkage
between exertion and pain. Also suggestive of classic angina was
central chest pain, radiating to the arms and back, well described
in Dr. Yellop’s notes. On all the material in the notes, the balance
favoured a diagnosis of angina. On other matters referred to in the
notes, Dr. Dawkins could not agree that the tenderness in the abdominal
region, the epigastric discomfort, could be confused with chest pain.
- With regard to Dr. Yellop’s letter of 4th July, 1996 to
Dr. Richards, it contained only one diagnosis – namely, possible
angina.
- As to Mrs. Mellor’s cholesterol level of 6.4 (reported by Dr. Yellop
to Dr. Richards) on the 2nd August, 1996, this was elevated,
even at the time. The figure of 10.2 for Hb was indicative of very
mild anaemia, the lower limit being 11. Anaemia would not be confused
with chest pain.
- Turning to the ETT, even an unfit 43 year old should have reached the
4th stage. As all three cardiology experts had agreed
in the report following their meeting on 8th February,
2004 ("the cardiology meeting"), Mrs. Mellor’s performance
disclosed "a very restricted exercise capability indeed".
On the treadmill for only a short
time, Mrs. Mellor displayed a
number of symptoms; a small amount of exercise had resulted in chest
pain.
With reference to the ECG readings,
Dr. Dawkins agreed there were
no changes and no ST segment changes; however, a modest increase
in the heart rate had resulted
in chest pain. Mrs. Mellor’s
symptoms prevented her reaching the predicted heart rate for her
age and gender.
Here, there had been no ECG change
when the exercise had been negligible.
The lower the workload, the less likely the test would show an ECG
change.
- In summary, the ETT was a simple, non-invasive, reproducible test.
It had its limitations but, if the patient could reach the maximum
predicted HR without symptoms, the probability of important, occlusive
CHD would be low, if not negligible. The test here had been inadequate
to stimulate the heart; the conclusions must therefore reflect the
inadequacy of the test. On the basis of this test, Dr. West could
not properly describe the test as negative; it was a non-contributory
test. This was a young person, with severely reduced tolerance and
no cause had been found.
- Dr. Dawkins
disagreed with Dr. West’s suggested explanations for Mrs. Mellor’s
ETT
performance.
Mrs. Mellor’s anaemia was mild; had she been suffering from
flu, the
ETT would
not have taken place; she did have neurological complaints
but these were not the cause of
SOB or chest pains. Smoking was
not an
acceptable explanation of Mrs. Mellor’s exercise intolerance.
More
than 50% of patients on the treadmill were smokers, the
test
being one for CHD. Unless there was evidence of lung disease
(absent
here), smoking was not an issue - save that Mrs. Mellor was
unfit.
But her
performance was way below that expected for an unfit person
of her age and gender; it showed
a "profound" rather than a "subtle" reduction
in exercise capability. Likewise,
a hiatus hernia was not an explanation.
All these points were irrelevant. The absence of ECG or ST changes
were likewise not relevant –
given that insufficient exercise
had been undertaken. The test was
positive for symptoms even without
ECG changes. At all events, the
test could not be called negative.
- As to the 13th January letter, Dr. West had not been justified
in giving the reassurance contained in the first paragraph. As to
the third paragraph, anaemia (at least of the degree suffered by
Mrs. Mellor) could not explain breathlessness.
- As to the discharge of Mrs. Mellor without further investigation, this
was a young patient, with multiple risk factors for CAD. Her chest
pain had a number of features suggestive of angina. It was possible
that this was atypical angina. It was important not to dismiss atypical
symptoms in young women; a failure to investigate and treat them
had been recognised for many years. Dr. West was wrong to discharge
this young patient without any cause having been found and without
any follow-up having been arranged; by discharging her, he put the
GPs off the scent.
- Given the seriousness of the risks should CHD materialise (including
death), CHD had to be ruled out. Dr. West needed to be sure that
CHD was not the cause of the symptoms. The investigations thus far
had not done that.
- Instead of discharging Mrs. Mellor, further investigations should have
been undertaken. As explained below, these, in the opinion of Dr.
Dawkins, would and should have involved proceeding to an angiogram,
with or without a prior thallium scan and, thereafter to intervention
by way of angioplasty.
- Causation: As it seems to me, it is helpful here to disentangle
a number of separate strands of Dr. Dawkins’ thesis. First, the basis
on which an urgent angiogram would have been mandatory. Secondly,
the basis on which urgent angioplasty would have been mandatory.
Third, the cause of death and its relationship to the question of
whether angioplasty would have been effective (on the balance of
probability) to prolong Mrs. Mellor’s life.
- Before proceeding further, much of the discussion on causation is best
understood when considered in the light of agreed evidence as to
waiting times in Sheffield in 1997- 98 for the procedures in question.
It is therefore convenient to introduce at this stage the evidence,
agreed between the cardiology experts, both as to the waiting times and
their reasonableness:
- 2-3 months for a thallium scan;
- 6 weeks for a follow up clinical appointment;
- 1 year for non-urgent coronary angiography;
- 1 year for non-urgent coronary intervention, whether by way of
angioplasty or by-pass surgery.
- Reverting
to Dr. Dawkins’ evidence, a thallium scan would show areas
of the
heart
muscle getting an inadequate blood supply. It was relatively
non-invasive and a little more
sensitive
and specific than an ETT. But it does not show the "plumbing" of
the heart in the way an angiogram would do.
- An angiogram
was a routine procedure; in 1996 more than 100,000 were undertaken,
as day
cases, under local anaesthetic. The test involved
the taking of x-ray pictures,
it lasted
some 15-20 minutes and involved a very low level of discomfort.
It was associated with a small risk
of fatality, something like 1/1000
in 1993
and less subsequently. On a risk/benefit analysis, this was
the only way of obtaining a
full picture as to CHD; the matter
could
be put to the patient as carrying a low risk but that there
was no other way of getting such
information. As Dr. Dawkins put
it, this "must be one of the
most common invasive tests in the United Kingdom"; some 165,000
were now performed per annum.
- Although Dr. Dawkins would himself have preferred to proceed directly
from the ETT to an angiogram, he recognised that there were two approaches.
The first involved proceeding via a thallium scan. Although he was
concerned that such a scan might be equivocal, he would not criticise
the reasonableness of this approach. The second (his preferred option)
was to go directly from an ETT to an angiogram, accepting the risk
that for, say, 15% of patients it would prove to have been unnecessary;
at least in such cases reassurance could be given ruling out occlusive
CHD.
- Here, on the balance of probability, a scan would have shown a large
area of heart muscle, in the region of the left ventricle (the main
pumping chamber) with inadequate blood supply. Such a discovery would
have made an angiogram mandatory.
- As to the timescale for proceeding to an angiogram, Dr. Dawkins’ first
report said nothing. In the report following the cardiology meeting,
Dr. Dawkins had said this:
"On
the balance
of probabilities and taking
into account the local waiting times, this test [i.e. angiography]
would
have
been undertaken prior to death." [Italicisation
added].
- In the light of the italicised words, it appeared from that report
that Dr. Dawkins envisaged proceeding to an angiogram, not as a matter
of urgency but in accordance with non-urgent, routine, waiting times.
However, in his subsequent supplementary report (of 24th February,
2004), Dr. Dawkins stated that, following the ETT, Mrs. Mellor should
have been offered a thallium scan (if one formed part of the local
investigation pathway) and an angiogram as a matter of urgency: within
three months of referral. In answer to questions in cross-examination,
Dr. Dawkins said that urgency had come to a head in the cardiology
meeting. Challenged that the need for urgency would not become apparent
until the angiogram had been performed (which on the evidence
of Dr. Dawkins to which I shall presently come, would have disclosed
the proximal occlusion of the LAD), Dr. Dawkins said that a stage
by stage approach was to be followed.
- As to why
there should have been urgency in proceeding to an angiogram,
Dr.
Dawkins’
opinion may be summarised as follows: (1) Mrs. Mellor’s risk
factors; (2) Mrs. Mellor’s
age;
(3) the outcome of the ETT; (4) the pattern shown by the
thallium
scan indicating that a large amount of heart muscle was in
jeopardy (a "sizeable defect").
- Cross-examined as to Mrs. Mellor’s risk level in the light of the chart,
Dr. Dawkins said that Mrs. Mellor should have been placed in the
moderate or high category, i.e., a 10-20% or 20-40% risk of a coronary
event in 10 years – rather than the mild category, a 5-10% risk -
by reason of her having CHD at the time. He accepted, however, that
Dr. West did not know that at the time. In any event, Dr. Dawkins
added that the chart dealt with absolute risk whereas in relative terms,
Mrs. Mellor’s risk was high – as a 43 year old woman, she should
have had a negligible risk of a coronary event.
- Challenged as to his statement in the report following the cardiology
meeting that, in the light of the ETT:
" It
would
have been appropriate .. to suggest to the general practitioner
that
had her symptoms persisted … further investigation would have
been
appropriate with a view to reaching
a definitive diagnosis…"
he said that he stood by it; however, this statement
and his approach to urgency were not mutually exclusive and all his
answers in that report were to be read together.
- With regard to the commencement of the three month period within which
the urgent investigations were to be undertaken, Dr. Dawkins expressed
the view that Dr. West had simply conveyed to Mrs. Mellor in the
13th January, 1997 consultation a conclusion he had arrived
at in August 1996; accordingly, the three month period for urgent
action began to run from August 1996 (a start date different, it
may be noted, from the January 1997 date given by Mr. Gardner, when
pressed early on in the trial to clarify his case). Dr. Dawkins did
accept that if the local investigation pathway had been followed,
some 6-7 months would have elapsed from the start date (whatever
it was) to the angiogram, taking into account the thallium scan conducted
on the way.
- As expressed for the first time in Dr. Dawkins’ supplementary report
(of the 24th February, 2004, post-dating the cardiology
meeting) on the balance of probability, an angiogram would have shown
severe stenosis in the proximal segment of the LAD.
- As to the
significance of the location of the stenosis, there were two
coronary arteries,
the left
and the right. Both come from the aorta. They perfuse different
areas
with blood, to allow the heart to pump. The left artery
divides
into two branches, one down the front (the LAD) and one (the
circumflex)
down the back. The LAD was a vital artery; colloquially,
an occlusion
in the proximal segment (i.e. close to the origin of
the vessel)
was known as a "widow
maker" – because a blockage here meant that so large an area
was compromised. As a result,
the heart pump would not prove
sufficient to maintain output or an abnormal heart rhythm would ensue.
The LAD
tapers further downstream.
- Dr. Dawkins recognised that there were two problems with the PM. First,
it contained no histology. Secondly, it did not say where in the
LAD the 95% occlusion was to be found. However, in his oral evidence,
Dr. Dawkins gave the following reasons for his view that on the balance
of probability, the narrowing of the LAD was in the proximal segment:
- As contained in his supplementary report, the patient’s sudden
death from a malignant rhythm disturbance; a narrowing in this
segment commonly kills young patients suffering from CHD;
- The pathologist’s (unusual) concern for the family;
- Mrs. Mellor’s symptoms;
- The fact that the pathologist felt able to estimate that the
occlusion had been 95%, an estimate more readily made of the
LAD before it tapered; a 95% occlusion, meant that only a pinhole
was left.
- Pulling the threads together, with such a narrowing, the heart muscle
could not perform. This would be reflected in chest pain (angina).
Other consequences could be a heart attack or unstable heart rhythm.
There had here either been a MI (heart attack) or, if not, then the
cause of death was that the rhythm was so fast that the heart could
not pump; a person could not survive more than two minutes given
the lack of output.
- Assuming
that an angiogram had revealed severe stenosis of the LAD in
the proximal
segment,
Dr. Dawkins’ supplementary report stated that it called for "urgent intervention, either on the same
hospital admission, or failing that, within three months". It
was, as he said in evidence,
inconceivable that a patient
with 95% occlusion in proximal segment would be sent away to return
in a year.
- It must be underlined, however, that Dr. Dawkins’ view as to urgency
(or prioritisation) depended critically on the location of the occlusion
in the proximal segment. In his report following the cardiology meeting,
Dr. Dawkins said this:
" …
the presence
of a ‘95%’ occlusion of the left anterior descending in such
a young patient would have led to urgent
revascularisation, on the assumption
that
the lesion was in the proximal segment of the vessel (which
was not
specified in the post mortem report). However, had the 95%
stenosis
been in the mid or distal vessel, she would have had only routine
priority."
- Given that a further trigger for mandatory angioplasty was the severity
of the occlusion in the proximal segment of the LAD, the question
arose as to what was known in this regard. On death, the PM recorded
95% occlusion at least in one area (though the PM was, as already
observed, not more specific). Other than that the occlusion on death
was greater than that in life (vivo) and that the stenosis in life
would have been severe, it was difficult to say, Dr. Dawkins thought,
what that occlusion was in life. Moreover, even if a 65-70% stenosis
might not on grounds of severity alone have prompted urgent angioplasty
(which Dr. Dawkins did not accept), its character too would have
needed consideration (irregular, undercut, fissured). At all events
the decision as to angioplasty would be based on a number of factors
and, for his part, Dr. Dawkins remained of the view that the lesion
was severe enough to warrant intervention, if in the proximal segment,
as a matter of urgency. Certainly, in his view, the lesion had been
such to provoke malignant arrythmia.
- As to the mode of intervention, Dr. Dawkins favoured angioplasty (treatment
of the stenosis using a minimally invasive technique with a balloon,
with or without stenting to hold the artery open) over by-pass surgery
(involving the use of a vein taken from elsewhere in the body to
by-pass the coronary stenosis or blockage). Angioplasty was a relatively
safe technique, performed on a single overnight hospital stay. Angioplasty
was very good at dealing with symptoms. There was some dispute as
to the impact of angioplasty on life expectancy, there being no definitive
trial proof (although, as Dr. Dawkins put it, penicillin had not
been subject to any such study). For his part, Dr. Dawkins estimated
that had angioplasty been performed, Mrs. Mellor’s life would have
been prolonged by some 18-19 years. Clinicians favoured angioplasty
on the basis of a mix of science, pragmatism and commonsense.
- Turning to the cause of death, Dr. Dawkins agreed that there was no
evidence of MI but was of the opinion that there had not been time
for it to develop. He accepted too that thrombosis had not been observed
visually by the pathologist. He agreed that LVH had been recorded
in the PM.. This was significant, in keeping with her hypertension
(high BP) and pre-disposed her to arrythmia. Fibrosis too was seen,
was a manifestation of CAD and could have triggered arrythmia. The
cause of the arrythmia, however, was inadequate blood supply. The
fibrosis was present at time of death and could have been there for
some 2-3 months prior to death.
- As to whether
the arrythmia was triggered by a lesion in the proximal segment
of the
LAD – a lesion somewhere in that artery was undoubtedly
present on death – or whether
that
lesion was simply coincidentally present, Dr. Dawkins thought
that,
on the balance of probability, there was a lesion in
the proximal
segment and the pinhole supply was the trigger for the arrythmia
which
was the immediate cause of death. It was "far-fetched" or
counter-intuitive
to say that severe narrowing of the LAD (as found in the PM)
was not related
to the cause of death. Dr. Dawkins
did accept
that if the arrythmia had been caused by a MI and if an untreated
stenosis in the LAD had
precipitated the MI, the mechanism
would
have been thrombosis and there was no evidence of the pathologist
having seen a thrombosis.
As to whether an angioplasty
would
have served to prevent death on the 1st January, 1998, it was put to Dr. Dawkins that
the primary arrythmia was triggered by chronic, long-standing ischaemia
and therefore that an angioplasty would have made no difference.
Dr. Dawkins disagreed; his view, as already noted, was that an angioplasty
would (probably) have prolonged Mrs. Mellor’s life.
- The GPs: At least as expressed in his supplementary report,
Dr. Dawkins was of the opinion that:
" Had
a referral
been made by the general practitioner in 1992, 1994 or 1995
it is likely that she would have been able
to complete an exercise test
and that
this would be positive for both symptoms and ECG change; then
a myocardial perfusion scan would
have been positive, and she would
have
proceeded to coronary arteriography at an earlier date. This
would have documented the existence of coronary
artery disease, although the
extent
is likely to have been less severe than in 1997. Having documented
the presence of coronary artery disease,
the general practitioner and
hospital
consultant would have been alerted to the importance of the
need for close surveillance and
the institution of the appropriate
medication
and or intervention which would have prevented her death in
1998."
- Dr. Dawkins accepted, however, that over the period 1992 – 1995, there
were non-cardiac causes which might have explained chest pain, for
instance infection; further, reflux oesophagitis could mimic it.
While emphasising that young women presented atypically with angina,
Dr. Dawkins agreed that it was difficult to say whether or not in
1992 – 1994 Mrs. Mellor did have angina; even in 1996, some fine
judgment was called for. On balance, however, he thought that she
probably did have angina, at least from 1994. As he was not in favour
of working back from the PM to ascertain the severity of stenosis
in life, Dr. Dawkins accepted that guesswork would be involved in
such estimation; again, regard would have to be had to Mrs. Mellor’s
symptoms. Dr. Dawkins fairly said that it was very difficult to know
what to make of the 18 months between April 1994 and November 1995,
when there was no recorded complaint as to chest pains; much, he
said, depended on whether Mrs. Mellor in fact had chest pains and
used the spray; if she had the symptoms but did not complain that
would be consistent with angina. On the basis that Mrs. Mellor had
been referred in November 1995 for her anaemia to be corrected, Dr.
Dawkins agreed that it would take some 2-3 months to do so.
- Dr. Saltissi: He is a Consultant Physician and Cardiologist
at the Royal Liverpool University Hospital. He started doing angiograms
in 1977; he performs invasive but not interventionist procedures;
accordingly, he does not undertake angioplasties – although he has
daily experience of them in the course of his working life. He has
a particular expertise in thallium (or nuclear) scans.
- In his
report, Dr. Saltissi had remarked that Dr. West was "an
experienced Cardiologist working within a major teaching hospital
who is well versed in cardiological matters and capable of performing
his own invasive cardiological tests including coronary angiography
without need to refer elsewhere". Cross-examined by Mr. Gardner
on this passage of his report, Dr. Saltissi said that he had met
Dr. West some 3 or 4 times at medical meetings and had undertaken
a peer review of Dr. West’s unit some 10-12 years previously. Basing
himself on this foundation, Mr. Gardner mounted an attack on Dr.
Saltissi’s independence; it was unacceptable that this "association" with
Dr. West had remained undisclosed until cross-examination; Dr. Saltissi’s
personal knowledge of Dr. West was unique, gave rise to a risk of "bias
and unfairness" and raised questions as to whether it was appropriate
for Dr. Saltissi to act as an
expert in this case. Having at
this stage noted Mr. Gardner’s complaint, it is convenient to defer
for
the time being my assessment
of it.
- Negligence: Dr. Saltissi began with some clarification of the
terminology. Angina, was chest pain attributable to reduced oxygen
supply to the heart muscle. Typical angina pain, exhibited all or
almost all of the classical features already mentioned. Non-cardiac
chest pain would exhibit none or almost none of those classical features.
Where some of the classical features were present, the pain was atypical
and may or may not signify angina.
- Dr. Saltissi agreed that the referral by Dr. Richards demonstrated
that the GP needed assistance in assessing the patient. Dr. Saltissi
accepted that there was a problem of young women presenting atypically
for angina but said that this had come more to the fore recently
and had not been as well appreciated in 1996-7. Neither the referral
letter nor Dr. Yellop’s notes (of the 4th July, 1996)
could rule out the possibility that Mrs. Mellor’s chest pain was
of cardiac origin. Hence the decision taken by Dr. West that Mrs.
Mellor should undergo blood tests and perform the ETT.
- As to the
ETT, Dr. Saltissi’s thesis may be summarised as follows. It
was common
ground
that the ETT had not generated abnormal ECG findings or ST
segment depressions.
If an
ETT results in a ST segment depression when there is chest
pain, then myocardial ischaemia will
be presumed; if so, the ETT will
have
been "positive".
If there is no ST segment depression,
then
the conclusion is either that there has not been enough exercise
(so that the test was simply
ineffective) or that there is
no CHD.
Here, however, Mrs. Mellor had developed her chest
pain.
If, therefore, her chest pain was angina, then she had done
enough exercise to induce ischaemia.
But if that be right, then a
ST segment
depression would have been expected, yet the ETT did not show
it. It followed, said Dr. Saltissi,
that a responsible cardiologist
could
conclude that Mrs. Mellor’s pain was not attributable to CHD.
Pulling the threads together, Mrs.
Mellor’s symptoms did not mean
that
the ETT could be described as positive. The ETT was inconclusive
but not
negative; that said, the absence of a ST segment depression
provided
a "lot of reassurance" that
Mrs. Mellor’s pain was unlikely
to be
angina. All the more so if it was to be said that the stenosis
was proximal. Accordingly, the
ETT furnished no evidence of
ischaemia.
The likelihood of any CAD was reduced though it could not be
entirely excluded. The likelihood
of very severe disease was excluded
or minimised.
- Neither this analysis nor Dr. West’s decision to discharge Mrs. Mellor
was undermined by Mrs. Mellor’s risk factors. To place these in context,
the correct position was that, following the chart, she had a low
absolute risk of a coronary event, in the order of 0.5 - 1% per annum
(equivalent to 5-10% over 10 years); in other words, there was a
99.5% chance of no event in year 1. Dr. Saltissi accepted, however,
that relative to others of the same age and sex, she had a raised
level of risk.
- As to Mrs. Mellor’s performance of the ETT, this could be attributable
to a non-cardiac cause:
- First,
subjective reasons for a patient "giving up" should
not be
discounted. The technician would respond to a patient’s
request
to stop. Here Mrs. Mellor had completed the first stage
(3 minutes)
and gave
up 4 seconds after a change to a higher workload.
- Secondly,
there were a "bunch of factors" which went
to explain
Mrs. Mellor’s poor exercise tolerance; these were:
(a) anaemia; (b) concurrent flu like illness; (c) acute
neurological
problems;
(d) her subarachnoid haemorrhage; (e) the fact that
she was
a smoker.
- Moreover, there was here a convincing alternative (non-cardiac) diagnosis
for Mrs. Mellor’s symptoms of chest pain: namely, reflux oesophagitis
secondary to her hiatus hernia. Such a conclusion was entirely reasonable.
Mrs. Mellor was at low absolute (cardiac) risk; she had been describing
atypical chest pain (for angina); the only positive physical sign
had been tenderness in the abdomen. Put together, all these matters
pointed to Mrs. Mellor’s pain having a gastro-intestinal cause.
- Summarising his views on this aspect of the matter, Dr. Saltissi said
that it was the duty of a cardiologist to investigate the symptoms
and come to a reasonable and responsible conclusion. While cognisant
of the risks involved, it was unreal to postulate any clinician working
on the basis that given any possibility of heart disease,
it was mandatory to investigate further. Here it was relevant to
have regard to (1) Mrs. Mellor’s low absolute risk, (2) the normal
ECG during her pain when performing the ETT, (3) the changed probability
of CAD and, a fortiori, serious CAD in the light of the knowledge
gained from the ETT and (4) the very convincing alternative diagnosis
of a gastro-intestinal cause for her pain. Against this background,
it was a reasonable conclusion that Mrs. Mellor did not have CAD.
In the circumstances, it was further reasonable and responsible not
to investigate further and thus not to expose Mrs. Mellor to the
mortality risk of coronary investigation; coronary treatment was not a
no risk option.
- Causation: From the outset, Dr. Saltissi’s views here were plain
and consistent. In summary: assuming the exercise of all due care,
it was improbable that Mrs. Mellor would have been prioritised so
as to come to angioplasty before the date of her death (on the 1st January,
1998) and, in any event, it was
improbable that angioplasty would
have been effective to prolong her life and prevent her death. With
regard to prioritisation, Dr.
Saltissi made the point that
it involved prioritisation over others
and questions of "opportunity cost".
- Thallium scans were, as already noted, a particular expertise of Dr.
Saltissi. Such scans did not give information as to prognosis. A
scan here would have shown ischaemic changes within the heart, in
the territory supplied by the LAD; but a scan would not have
shown the location of the focal stenosis within the LAD. Dr. Saltissi
said that he could not recall ever having ordered an urgent angiogram
on the basis of a thallium scan.
- Had Mrs.
Mellor reached angiography "in time", the question
would next have arisen of whether
urgent
angioplasty would have been mandatory. In this regard, it was
relevant to consider both the severity
of any stenosis and its location.
- As to severity, Dr. Saltissi’s report (relying on some much praised
writing of a Prof. Davies) said this:
" Had
Mrs.
Mellor undergone coronary angiography, I agree with Dr. Dawkins
that the principal finding would have been
an LAD stenosis. The degree of
narrowing,
however, would have been less than that estimated visually
at PM by 25-30% …. During life,
an angiogram would therefore
probably
have found a 65-70% LAD stenosis …. It should also be borne
in mind that there would probably have
been progression of her coronary
atherosclerotic
disease in the 18 months between Mrs. Mellor first being seen
in Dr West’s clinic and
her death. Bearing this and the
post
mortem discrepancy in mind… coronary angiography, if performed
in mid
to late 1996, would, on the balance of probabilities…
have
identified an LAD stenosis of borderline significance (50-60%)."
A 60% occlusion would be significant and could be the
underlying cause for angina but in terms of urgency it was not the
same as a 95% occlusion.
- As to the location of the stenosis within the LAD, Dr. Saltissi regarded
neither the fact of sudden death nor the pathologist’s remarks as
being of any assistance. As to sudden death, the LVH revealed on
the PM was to be kept in mind; LVH on its own was a potent cause
of sudden death. The pathologist’s concerns as to screening Mrs.
Mellor’s family demonstrated good practice but said nothing as to
the location of the stenosis.
- Turning to the cause of death, it was or became apparent that Dr. Saltissi’s
analysis differed in significant respects from that of Dr. Dawkins.
In his report, Dr. Saltissi said this:
" The
PM showed
that Mrs Mellor died as a result of pulmonary oedema secondary
to a cardiac arrest with no evidence
of recent MI pathologically (although
this
does take time to develop) and, importantly, with no evidence
of coronary
arterial thrombosis (the underlying pathophysiology
of an
MI or heart attack). Thus, on the balance of probabilities,
it is
highly likely that Mrs Mellor’s cardiac arrest (whether ventricular
fibrillation,
VF or asystole) occurred as a primary arrhythmia
and not
in the setting of acute MI. She was predisposed to this
type
of spontaneous and potentially fatal arrhythmia because of
her extensive CAD and significant LVH,
both shown at PM. "
Not
only
did Dr. Saltissi dispute that angioplasty was in general shown
to be effective to prolong life but, in the light
of this analysis, his view was
that
there was "no evidence" that
an earlier angioplasty would
have prevented Mrs. Mellor’s
death.
- In his oral evidence, Dr. Saltissi explained these opinions as follows:
- While
it could be understood that there had not been time for
a MI to
develop, in the absence of evidence of a coronary thrombosis,
it could
not be said (at least in the vast majority of cases)
that
there
had been a "heart attack".
- He would attribute the LVH shown on PM as being 90% due to long-standing
high BP and 10% due to CAD.
- Both
he and Dr. Dawkins agreed that Mrs. Mellor suffered from
CAD
and LVH. They further agreed that by reason of her CAD
and LVH,
she had scattered fibroses, though in his view, these
had developed
over 1-2 years rather than a period of months. Further
and in his view, LVH was a cause of fibrotic scarring,
independently
of CAD. In the area around each one of these scars,
the
muscle was electrically unstable. When the balance of
hormonal
and chemical influences was "right",
the electrically
unstable heart muscle would spontaneously initiate
(more likely) a VF arrest. That was (probably) the
cause
of death; such spontaneous cardiac events occur in
their thousands
each year. He disagreed with Dr. Dawkins that there
had been an acute ischaemic event; there was no evidence
for
it.
- The
95% occlusion of the LAD found on PM was not a "coincidence",
in that
it contributed to the fibroses over a period of time.
But it
was not a trigger for Mrs. Mellor’s death. Dr. Saltissi
accepted
that severe stenosis in the proximal segment of the
LAD (if that is what it was) was associated with an adverse
prognosis
and that, by itself, inadequate blood supply could
give
rise to arrhythmia. But the stenosis here could only
be presumed as the cause of death if Mrs. Mellor’s LVH
was ignored. With
significant LVH and no stenosis, Mrs. Mellor would have
been
at the same level of risk. CAD was not irrelevant but,
given
the scarring, it was not likely that an angioplasty
would have
reduced
the risk of sudden death or prevented death.
- In any event, unless Mrs. Mellor had complained as to her symptoms,
Dr. Saltissi would not have referred her for an angioplasty;
in his view, an angioplasty was undertaken to treat symptoms;
angioplasties had not been shown to have prognostic benefits.
- The GPs: In his report, Dr. Saltissi had said this:
" Her
post
mortem ... showed that by the time of her death ... she had
already developed fairly severe and widespread
atherosclerosis affecting her
coronary
arteries and cerebral arteries. In particular, she had a very
severe narrowing (at least 95%) of
her LAD (a vital coronary artery)
and a significant 60% narrowing
of her LCx.
The
process
of atherosclerosis is known to require 5-10 years at least
to reach this degree and hence we can be sure that
it was present for a number of
years
prior to her death and was certainly present when she was seen
by Dr. West in 1996. "
- While Mrs. Mellor had some CHD in 1992 and 1994, some CHD did
not mean that she then had significant CHD. In Dr. Saltissi’s
view, again drawing on the literature, an occlusion of some 50-70%
would be required to cause angina. If Mrs. Mellor’s LAD had been
60% occluded in January 1997, a deduction of some 10-15% should be
made in the previous year, to allow for her progressive atheroma.
- Prof. Littler: In common with the other cardiology experts,
Prof. Littler is impressively well-qualified; suffice to say that
he is the Medical Director of the University Hospital Birmingham
NHS Trust, a Consultant Cardiologist at that hospital and Professor
of Clinical Cardiology at the University of Birmingham. In summarising
Prof. Littler’s evidence it is appropriate to adjust the headings,
so as to take into account his particular focus on matters relevant
to the Sixth and Seventh Defendants (while always bearing in mind
that it was not for Prof. Littler, as an expert cardiologist, to
evaluate the performance of GPs).
- The GPs: In 1992, while he could not rule it out, Dr. Littler
thought it unlikely that Mrs. Mellor had angina. In 1994, he did
not believe that Mrs. Mellor’s symptoms were angina based; they were
likely explained by viral and muscular problems. As to the
18 month "gap" between April 1994 and November 1995, it
was not usual to have long intervals between episodes of angina.
In November 1995, it was likely that Mrs. Mellor did have angina.
However, given Mrs. Mellor’s Hb of 8.6, suggestive of severe anaemia,
cancer would have been a greater and more immediate concern than
any coronary matters. No ETT would in any event have been conducted
on a patient with such a Hb level. The right course was to treat
the anaemia and then re-assess the patient. As it was likely that
such treatment would take 2-3 months, a referral in November 1995
would have produced an outcome not very different from the pathway
actually followed. Commenting on the suggestion that Mrs. Mellor’s
stenosis would have developed at 10-15% per annum by reason of her
aggressive atheroma, Prof. Littler said that while speculative this
was "reasonable speculation"; it was, however, necessary
to bear in mind that any such
progression may not be linear.
At all events, some 50% narrowing would have been necessary before
the symptoms
would be observed.
- Had Mrs.
Mellor been referred by the GPs to a cardiologist at the various
times
contended
for by the Claimant, Prof. Littler summarised his views of
the likely outcome(s)
in his "Supplementary Comments" dated
1st March, 2004:
" A.
Had Mrs.
Mellor been referred to a Cardiologist in January, 1992, I
do not believe that an exercise test would have
been carried out on the basis
of the
history. Had an exercise test been carried out, I believe that
on the balance of probabilities
it would have been negative.
B. Had Mrs. Mellor been referred to a Cardiologist in
April 1994, I do not believe that an exercise test would have been
carried out on the basis of the history which suggested an infection
and musculo-skeletal pain. Had an exercise test been undertaken,
I believe that on the balance of probabilities it would have been
negative.
C.
Had Mrs.
Mellor been referred to a Cardiologist in November 1995, I
believe that an exercise test would have been carried
out but only after her anaemia
(Hb 8.6)
had been corrected. This could have taken two to three
months.
I believe that on the balance of probabilities, the result
would have been the same as that in
1996, namely inconclusive."
- The position of Dr. West: Negligence: Prof. Littler was critical
of Dr. West. His criticisms proceeded as follows:
- Dr.
West had been consulted on the basis of an "excellent" referral
letter from Dr. Richards, who was faced with a "diagnostic
dilemna".
- Mrs. Mellor presented with a number of known risk factors for
CAD. Her absolute risk was low and this took into account all
the factors of which mention had been made; namely, family
history, her smoking, high BP and cholesterol level. However,
her relative risk (i.e. relative to other 43 year old females)
was high. The risk factors were important, albeit that further
investigation was not mandatory on the basis of risk factors
alone.
- Dr.
West was wrong to describe the ETT as "negative".
The result
of the ETT was neither negative nor positive; it was
inconclusive. There were no significant ECG changes
but the patient
had not exercised to 85% of her capacity. While the
absence
of ST segment depressions reduced the probability of
significant CAD, given the inconclusive outcome of the
ETT he would
not have been happy to discharge the patient. Further
investigation
was warranted; it was a breach of duty to fail to do
so.
- (ii) Causation: Logically,
the first
question to be explored here was whether, following a thallium
scan, Mrs. Mellor would probably
have been accorded priority in
proceeding
to an angiogram or whether she would have been placed on the
routine waiting list. Prof. Littler’s
practice was to determine priority
by reference
to (1) symptoms and (2) performance on the ETT. As the ETT
was "notoriously difficult" for
young women and as Mrs. Mellor’s ETT had been inconclusive, the question
of whether to proceed from a thallium scan to angiography or to prescribe
a full regimen of anti-angina medication on a "wait and see" basis,
would turn on her symptoms. Here, there was (as he understood the
facts) a genuine difficulty. Up until 1997 her symptoms were, he
thought, inconclusive. He did, however, have "genuine respect" for
the description of her symptoms
given by Kerry. The fact that
Mrs. Mellor neither proceeded to angiography nor was prescribed anti-angina
medication flowed from Dr. West’s
decision to discharge her. At
all events, Prof Littler stood by the
answer which he and Dr. Saltissi
had given in the report following
the cardiology meeting (and which
it is convenient to set out in full at this stage):
" Both
experts
agree that Susan Mellor died 1 year following her outpatient
review
by Dr. West on 13/1/97 ... and 17 months following her first
outpatient
appointment
on 4/7/96. It was clear to both experts that by simply summating
the waiting times
[recorded earlier]...(a total
of approximately
2 years 4 months ) then, on the balance of probabilities, Mrs
Mellor would have died
before undergoing coronary intervention.
Furthermore,
both experts agree that had a coronary angiogram been carried
out in ..[1997]
.. on Mrs Mellor, it is unlikely
that
the findings would have been so prognostically adverse as to
have led her medical attendants to
credit her with such priority
on their
waiting list that intervention would have occurred before her
death."
- Again logically, the next inquiry is whether urgent angioplasty would
have been mandatory following an angiogram (had one been carried
out). In his report, when summarising the autopsy, Prof. Littler
had written the following:
" The
left
anterior descending artery had a 95% narrowing proximally" [Italicisation
added]
At
the very
outset of his evidence, Prof. Littler stated that the word "proximally" had been written in error; he
could give no reason for the error but what he intended to write
was "focally". He was at that stage of his report intending
to summarise that which had been
written in the PM. Understandably,
Mr. Gardner probed this error in cross-examination; in particular,
he questioned whether it betrayed
a view as to what Prof. Littler
regarded as probable and realistic.
Though the matter was not entirely
straightforward (there were pointers
elsewhere in Prof. Littler’s
evidence going, arguably, either way), I should say at once that,
having seen and heard Prof. Littler
give evidence, I unhesitatingly
accept his explanation; this was
no more than an (uncharacteristic)
slip with no deeper significance.
- Prof. Littler went on to express his view as to the location of the
stenosis. As appears (at least inferentially) from his answer given
in the report following the cardiology meeting (set out above), he
could not conclude that it had probably been in the proximal segment
of the LAD. Nor could he agree with Dr. Dawkins as to the matters
the latter had relied upon for his conclusion in this regard. First,
the mode of death gave rise to no such indication; there was no particular
pattern of coronary disease in patients who die a sudden death; accordingly,
sudden death did not give rise to an implication of stenosis in the
proximal segment. Secondly, the pathologist’s remarks owed as much
to the family history as to any likely disposition of Mrs. Mellor’s
cardiac disease. Thirdly, the reference by the pathologist to a 95%
occlusion was no more than a guesstimate; that reference does not
assist as to whether it had been taken at the point where the artery
was 3mm or 2mm or 1mm wide.
- Turning to the cause of death and the likely advantages of angioplasties,
Prof. Littler’s opinion may be summarised as follows:
- There was no evidence of a thrombosis or MI on the 1st January,
1998.
- He agreed with Dr. Saltissi that LVH was a potent risk factor
causing sudden death.
- On
a balance of probability, the cause of death was a fatal
arrhythmia;
as he
expressed it in his report, "the substrate for the
fatal arrhythmia was probably the ischaemic and hypertensive
damage of the left ventricle demonstrated … at autopsy".
- The fatal arrhythmia could have been triggered without any acute
ischaemia. On the available material, it was impossible to
know whether stenosis or LVH had been the cause of death.
- The longer Mrs. Mellor had suffered from hypertension (high
BP), the more likely the LVH. The greater the degree of LVH,
the more likely that it would give rise to fibrotic changes.
That said, on the balance of probablity, stenosis too was a
contributory cause of the fibrosis. To do so, however, it would
have been necessary to have at least 50% stenosis.
- He was an interventionist as was Dr. Dawkins. Angioplasty was
appropriate for most standard arteries. His experience was
that angioplasty had prognostic benefits and he would so advise
his patients. He shared Dr. Dawkins’ view that a timely angioplasty
would have been likely to prolong Mrs. Mellor’s life by some
18-19 years.
- A postscript: Late in his cross-examination of Prof. Littler,
Mr. Gardner asked questions of him as to what his treatment
of Mrs. Mellor would have involved. He answered, amongst other possibilities,
that (after the thallium scan) he would have prescribed a regimen
of drugs and then, depending on the response, he would have considered
going on to angiography. Subsequently, I asked Prof. Littler as to
why the drugs would have been prescribed. He answered that there
was a real expectation that they would have improved Mrs. Mellor’s
symptoms and some drugs were shown to have beneficial prognostic
effects.
- Mr. Gardner then sought to put a further question as to whether (regardless
of surgical intervention) the regimen of drugs or medicines would
or might have served to prevent the cardiac arrest on the 1st January,
1998 and thereby have prolonged her life. At this the Defendants
vigorously objected and invited me to exclude any such questioning.
Mr. Gardner said that he should be allowed to ask the question and
obtain an answer; he could then consider his position.
- I ruled in favour of the Defendants’ objection. My reasons were these:
- The case had not been pleaded that way. More than that, when
invited to clarify the Claimant’s case at the start of the
trial, Mr. Gardner’s response was as already recorded. On the
basis of that response, the Claimant’s case was premised on
the fact that Mrs. Mellor’s condition had been such that urgent
surgery was mandatory. That was the case in fact pursued during
the trial. A contention that a regimen of drugs would probably
have saved Mrs. Mellor’s life was not only outwith the Claimant’s
case as clarified and pursued, it was fundamentally inconsistent
with it.
- Questions relating to the prescription of a full regimen of anti-angina
medication let alone any prognostic benefits in terms of the
preservation of life, had not been explored with any previous
witnesses (or, for that matter, on any systematic basis with
Prof. Littler). Were such an issue to be introduced at so late
a stage, it would have been necessary to recall Dr. Dawkins,
Dr. Saltissi, Dr. West on any view and, arguably, Drs. Groves
and Richards as well.
- A negative or equivocal answer to Mr. Gardner’s proposed question
would obviously take the matter no further. But a positive
answer (i.e. that a regimen of medication would have had prognostic
benefits in terms of preservation of life) would likewise have
gone nowhere – unless or until the Claimant obtained permission
to amend.
- To my mind, by reason of the matters set out in i) and ii) above,
any application to make so fundamental an amendment would have
been overwhelmingly likely to fail. Lateness in this instance
could not be cured by orders as to costs. The likelihood of
prejudice to the Defendants was real. The consequences for
case management would have been grave indeed. In all the circumstances,
I was amply satisfied that, in the exercise of my discretion,
the correct course was to allow the Defendants’ objection.
- I add only this. In the light of the totality of the evidence
from all the cardiology experts, it was inherently implausible
that, had Mr. Gardner’s questioning been pursued, it would
have disclosed a simple answer to Mrs. Mellor’s condition,
short of surgery, which had hitherto eluded all concerned.
THE RIVAL CASES - LIABILITY
- Having set out the evidence at some length, I can summarise the rival
cases as to liability relatively briefly. I follow the order of the
final speeches.
- For the First Defendant, Mr. Holl-Allen’s submissions
proceeded as follows. As to negligence, the issue was whether
Dr. West had negligently discharged Mrs. Mellor. The duty of the
cardiologist was not to take all steps definitively to rule out cardiac
disease; it was instead to investigate the symptoms and then to make
a reasonable judgment as to whether to investigate further. Superficially
attractive though the Claimant’s risk-benefit argument was, the task
of the cardiologist was to distinguish between those who reasonably
required further investigation and those who did not. Considerations
of opportunity cost arose; so too did the need to take into account
the risks of the procedures themselves.
- In considering the decision taken by Dr. West, the relevant test was
that contained in Bolitho v City and Hackney HA [1998] AC
232. This was a case of professional
negligence; what Dr. West had
done was defended by Dr. Saltissi a distinguished expert in the field;
that went a long way to countering
allegations that the course followed
by Dr. West had been unreasonable;
the mere fact that other experts
took a different view was neither
here nor there. The decision
by Dr. West to discharge Mrs. Mellor had been defensible (i.e. reasonable),
not least given the "bunch of factors" outlined by Dr.
Saltissi which (even putting to one side his reference to flu) served
to explain Mrs. Mellor’s performance on the ETT. Further, again as
explained by Dr. Saltissi, there was a reasonable alternative non-cardiac
related diagnosis for Mrs. Mellor’s chest pain. On the basis that
Dr. West’s decision to discharge Mrs. Mellor did not constitute a
breach of duty, then neither his characterisation of the ETT as "negative" nor
the wording of the 13th January letter disclosed an independent
head of negligence.
- If, contrary to his submissions, Dr. West had been negligent, then
Mr. Holl-Allen contended that the Claimant in any event failed to
make good his case as to causation. As expressed in the First Defendant’s
written submissions:
" In
order
to succeed C must show that with all due care Mrs Mellor would
have come [to] surgery (angioplasty) before
the date of her death on 1st January 1998 and that angioplasty
would have been effective to
prevent that death."
The relevant test was again to be found in Bolitho (supra);
first, it was necessary to ascertain
what
Dr. West would have done had he not discharged Mrs. Mellor;
secondly,
it was necessary to consider whether Dr. West’s "hypothetical" management
was defensible in accordance with
the principles set out in Bolam
v Friern Hospital Management Committee [1957] 1 WLR 537.
- The stages in the local investigation pathway were clear; such a pathway
would have involved a thallium scan, followed by an outpatient appointment,
angiography and, if appropriate, angioplasty. There was no sustainable
basis for criticising that pathway. Accordingly, having regard to
the agreed evidence as to waiting times, the Claimant’s case, said
Mr. Holl-Allen, faced grave and ultimately insuperable difficulty.
Against that background, the late evolution in Dr. Dawkins’ evidence
on the question of urgency required close scrutiny. For his part,
Mr. Holl-Allen submitted that the correct start date was January
1997 (after the 13th January consultation). There was
no cogent basis for arguing that urgent angiography was mandatory;
accordingly, it could not be said that Mrs. Mellor would have reached
even that stage. But if that was wrong, it was accepted by all the
cardiology experts that there would have been no urgency in proceeding
from angiography to an angioplasty unless the angiography had (at
least) revealed a stenosis of the LAD which was both severe and proximal.
As to severity it would have been substantially less in life than
that found on death; but even if that hurdle was overcome, there
was no logical basis for concluding that the stenosis had been located
in the proximal segment of the LAD. Finally, given the uncertainty
surrounding the cause of death and Mrs. Mellor’s LVH (a significant
risk factor in its own right), it could not be shown that an angioplasty
would have been effective to save Mrs. Mellor's’ life.
- For the Sixth and Seventh Defendants, Mr. Hugh-Jones
submitted that a GP is to be judged by the ordinary standard of the
reasonably competent GP. Hindsight must be excluded. It would be
simplistic to seek to encapsulate the GP’s duty as being to rule
out angina; in particular, allowance had to be made for differences
of opinion between responsibly or reasonably held views. The answers
of the GPs themselves as to their own duties should not be taken
out of context.
- As a matter of fact, it was improbable that Mrs. Mellor had suffered
from angina in 1992-1994. The expert evidence from both Dr. Saltissi
and Prof. Littler pointed to that conclusion. So did the weight of
the lay evidence, properly analysed.
- As to the case of negligence against Dr. Groves, it turned on whether
he made the relevant inquiries in that single consultation of the
9th January, 1992. It was entirely likely that he had
done so; not only were those "knee jerk" inquiries but
he was also very much alive to
the risks facing Mrs. Mellor.
- The starting point for considering the case against Dr. Richards was
the care of exceptional quality which she had provided over a number
of years. It was plain that she knew her patient well; occasional
reticence on Mrs. Mellor’s part paled next to the frequency and regularity
of the consultations which took place. As to the individual consultations
forming the subject of criticism, in April 1994 there were ample
reasons for not making a referral. Dr. Richards’ caution in prescribing
a trial with the GTN spray should not be turned against her. It was
noteworthy that though Dr. Isaac’s first report had fully noted the
consultations in question, he had then made no criticisms of this
period at all, save for those which were contingent on Mr. Mellor’s
evidence; as with Dr. Dawkins, the late evolution of Dr. Isaac’s
opinions required close scrutiny. There was no proper foundation
for the criticisms of Dr. Richards’ monitoring of the use of the
GTN spray, themselves formulated only late in the day. It was a reasonable
inference that Mrs. Mellor had not used the spray between April 1994
and November 1995 but, if she had done so and did not tell Dr. Richards,
Dr. Richards’ duty did not extend to prising that information out
of her. Dr. Richards’ decision not to make a referral on the 3rd November
1995, in the light of a single reported use of the spray after an
18 month interval, was defensible. As to the 29th March,
1996, this was an occasion when
Dr. Richards properly, as Mr.
Hugh-Jones put it, made "..clinical use of time – deferring any conclusions
to await the emergence of symptoms or for time to confirm their absence".
- As to causation, the case against both GPs was throughout speculative
and Prof. Littler’s views were relied upon. As to November, 1995
in particular, once the 2-3 months were allowed for – so that Mrs.
Mellor’s anaemia could be treated – there was no significant difference
between a referral then and the pathway actually followed.
- For the Claimant,
Mr. Gardner
QC began by underlining that Mrs. Mellor had died unexpectedly,
at a young age, "from
CAD", which she had had for some 5-10 years and which had remained
undiagnosed.
- Duty:In considering the duty owed by all the medical practitioners,
Mr. Gardner emphasised the importance of a risk/benefit analysis
in the context of coronary disease. Such an analysis should have
resulted in a high index of suspicion. Classic angina had four features:
(1) character: a feeling of tightness or pressure; (2) location:
in the centre of the chest, often with radiation to the arms, shoulder,
back, neck or jaw; (3) duration: more than a few seconds; provocation/relief: exercise/
rest. Faced with a patient presenting with symptoms of chest pain
which, not least in the light of other risk factors, might possibly
be angina, it was incumbent on a medical practitioner to make appropriate
inquiries and to record the answers given, including negatives; in
that way a detailed record concerning the patient could be compiled.
A medical practitioner should be aware that young women, in particular,
could present atypically and should likewise be alert to the danger
that concurrent complaints could mask the presence of a serious condition,
such as angina. The answers given by Drs. Groves and Richards in
evidence were revealing as to the extent of their duties. On the
part of a GP, in the case of suspected angina, there should be a
low threshold for referral. Once referred to a cardiologist, it was
for the cardiologist, who had the necessary means at his disposal,
to determine whether a patient did or did not have CHD. In the case
of both the GP and the cardiologist, CHD was to be ruled out, not
ruled in. The aim was to diagnose and treat CHD at the earliest opportunity.
- Criticism of experts: Mr. Gardner advanced severe criticism
of both Dr. Crouch and Dr. Saltissi.
- In the case of Dr. Crouch, the Claimant’s written Final Submissions
said this:
" ...it
is unsatisfactory in the extreme, there being many entirely
independent experts available, for the GPs
to seek to rely on the opinion of an expert who works
for,
and receives a stipend from, the GP’s defence society,
and may
have been involved in the decisions as to the defence
of this
case.....
Such
association not only gives rise to an impression but
also a real risk of bias... which the court should take
into
account
when judging what he had to say..."
In answer to an observation from Mr. Hugh-Jones,
Mr. Gardner disputed the existence of any practice of calling
experts who had a connection with the MPS.
- As
to Dr. Saltissi, his evidence was "unsatisfactory in
the extreme". The Claimant’s written Final Submissions
continued:
" This
was consistent with the fact that he knew and had done
an audit of Dr. West’s unit and had formed a view
as to his competence. This view gave rise to the risk
that
it influenced him when considering the alleged negligence
on the
occasion in question. Such knowledge on the part of
an expert is not only unacceptable and in our experience
unique,
but gives
rise to a risk of bias and unfairness. For this association
to remain
undisclosed until cross-examination is totally unacceptable
and does
him little
credit..."
- In particular against this background, it was to be borne in
mind that the court, not the experts, decided cases.
- The GPs: As to Dr. Groves, he had accepted that it would have
been a breach of duty not to make the relevant inquiries; but if
he had made them, it was extraordinary that he had not noted the
answers to them. The absence of any such record was more consistent
with a failure to suspect a diagnosis of CAD.
- As to Dr. Richards, it was true that she had done good things but her
thought processes were inconsistent and confused. Mr. Gardner relied
on Kerry’s evidence (in particular) as to Mrs. Mellor’s worsening
condition from 1994. With regard to the 22nd April, 1994
consultation, he drew attention
to the reference in the notes
to "pressure" and
to the reported duration of the
pains. As to the 28th April,1994
consultation and the ensuing 18 month period, the thrust of Mr.Gardner’s
criticism focused on the suggested contradiction between prescription
of a GT spray and a failure both to monitor its use and to make a
referral when told that Mrs. Mellor had used it. As to the 3rd November,1995
consultation, Dr. Richards had wrongly ignored Mrs. Mellor’s reported
use of the spray. As to the 29th March, 1996 consultation,
the clock was ticking; this was not a time to wait and see; Dr. Richards’
failure to refer on this occasion betrayed that her criterion for
referral was the probability rather than the possibility of
CAD.
- As to causation and the Gps, with the exception of the 29th March,
1996 consultation (which was not said to be causative), a
timely referral should have led to the diagnosis of Mrs. Mellor’s
CHD in sufficient time for it to be effectively treated within the
routine timetable.
- Dr. West: Dr.
West’s
decision to discharge Mrs. Mellor had been illogical and unsustainable.
Mrs. Mellor’s risk factors told against
the decision; the ETT could not
be relied
upon in support of it; the "bunch of factors" suggested
by Dr.
Saltissi were unpersuasive; the alternative diagnosis did no
more than suggest a concurrent complaint.
Dr. Saltissi’s evidence was to
be rejected
and did not preclude a finding of negligence against Dr. West.
- Following the reassurance given to Mrs. Mellor by Dr. West she had,
it would appear, continued to suffer pain but had simply used the
GTN spray to alleviate it and (not appreciating its true significance)
had not reported it to Dr. Richards or any other medical practitioner.
- As to causation, even assuming the reasonableness of undertaking
a thallium scan, this was a case which should have been accorded
priority when proceeding to an angiogram. The reason was that Mrs.
Mellor was an unusual case, both in terms of age and risk. Dr. Dawkins’
evidence in this regard should be accepted.
- As to the location of the lesion in the proximal segment of the LAD
and hence the requirement of an urgent angioplasty, the starting
point was that the pathologist had not said that the stenosis
was not located there. The opinion
of Dr. Dawkins (summarised earlier)
accorded with commonsense and should be accepted. Further, if the
stenosis had a causative effect
on the death then it was, said
Mr. Gardner, more likely that it would
have been in the proximal segment;
still further, such a location
would have been consistent with
the presentation observed by Mr. Mellor prior just before Mrs. Mellor
was taken to hospital. Finally
in this regard, Mr. Gardner emphasised "practical" considerations
with reference to the dimensions
of a nail; the fact that the
pathologist was able to estimate – with the naked eye and in the
time available
- the degree of narrowing at
95% which would present as a
pinhole in a 3 mm artery, made it more consistent that the stenosis
was to
be found in the (wider) proximal
segment than in any more narrow
downstream segment.
- As to cause of death, Mr. Gardner’s submissions were succinct. Either
there had been a MI directly attributable to the stenosis; or the
stenosis was in any event a contributory cause of the fibrosis –
if therefore the cause of death was an arrhythmia due to LVH, the
stenosis would still have had a causative effect.
DECISION – LIABILITY
- (1) The legal framework: In the course of argument I
was helpfully referred to the following authorities (amongst others): Bolam (supra),
esp. at pp. 586-7; Maynard v West Midlands RHA [1984] 1 WLR
634, esp. at p.638; Sidaway v Gov. of Bethlehem Royal Hospital [1985]
1 AC 871, esp. at pp. 892-4; Eckerslie v Binnie (1988) 18
Constr LR 1, esp. at p.79; Bolitho (supra), esp. at
pp. 238-243. Guided by these authorities and informed by the rival
submissions (and such evidence as has been relevant thereto), I would
venture to summarise the legal framework, for present purposes, as
follows:
- An allegation of professional negligence is a serious matter.
The burden of proof rests on a claimant advancing such a claim,
both as to breach of duty and as to causation.
- The duty of a medical practitioner is to exercise reasonable
skill and care. In the case of a GP, it is to exercise such
skill and care as is to be expected from a reasonably competent
GP. In the case of a cardiologist, it is to exercise such skill
and care as is to be expected from a reasonably competent cardiologist.
This duty is the same whether it arises in contract or tort.
- Where a patient presents to a GP with symptoms which are possibly
cardiac-related, it is the duty of the GP to take reasonable
care in determining whether and, if so, when to refer such
a patient to a specialist cardiologist. Where a patient has
been referred to a cardiologist, it is the duty of the cardiologist
to take reasonable care in determining whether to discharge
that patient or whether that patient should undergo further
investigation and/or treatment and, if so, what investigation
and/or treatment and with what, if any, priority. By way of
amplification as to the duty and its performance:
- If there is no possibility of the patient’s symptoms being
cardiac-related, there is plainly no duty to refer, investigate
or treat as the case may be; indeed there is the risk
that advising unnecessary and inappropriate investigations
or treatment may, in some circumstances, itself amount
to a breach of duty. But to my mind, the mere existence
of a possibility that the patient’s symptoms are cardiac-related
does not, without more, result in a GP coming under a
duty at once to make a referral; nor, again without more,
does it result in the cardiologist coming under a duty
to advise that the patient should undergo further investigation
and treatment.
- The task of the GP and cardiologist, within their respective
spheres, is to exercise reasonable care in distinguishing
between those of their patients with possible cardiac-related
symptoms who reasonably require referral, further investigation
and treatment (as the case may be) and those who do not.
- In coming to any such judgment, the GP and the cardiologist
are entitled and bound to take into account any other
relevant (non cardiac-related) conditions affecting the
patient, while taking care to keep in mind that patients
may suffer from concurrent complaints and that lesser
complaints may, on occasion, mask more serious concerns.
Likewise, in coming to any differential diagnosis, reasonable
alternative diagnoses will fall to be considered. Further
still, it will no doubt be appropriate for the GP and
the cardiologist, in their respective spheres, to take
into account the degree of risk faced by the patient
in question of suffering a coronary event (heart attack)
and the seriousness of the consequences of the
risk should it materialise. As to the degree of risk,
this extends to both "absolute" risk (i.e.
the percentage risk faced by the individual in question,
in the light of his/her particular characteristics) and "relative" risk
(i.e. how the patient compares with others of the same
sex and age). Because the consequences of a coronary
event, should one materialise, may be so serious (extending,
obviously, to death), these stand as an obvious pointer
to the GP and cardiologist, respectively, erring on
the side of caution. But it does not follow that the
GP must at
once refer to a cardiologist any patient who has any
possibility of CAD. As it seems to me, that would be
an abdication of the GP’s own function; not every patient
who presents at a GP’s surgery with chest pain should
be referred to a cardiologist. Nor does it follow that
a cardiologist must at once propel any patient
who has any possibility of CAD down a path of further
investigation and treatment. Not least in this regard,
it is necessary to bear in mind that there are or may
be risks inherent in such investigations and treatment.
Conversely, at least in the generality of cases, I very
much doubt that it would be right for the GP or cardiologist
to await a probability of CAD before proceeding
down the pathway of referral, investigation and treatment.
- In
my view, therefore, while the objective of the
GP
and cardiologist must undoubtedly be to diagnose
and treat
CAD at the earliest opportunity, the relevant
duty cannot be encapsulated into any simple formula,
such as definitively "ruling
out" CAD. In any event, any such formula would necessarily
require qualification so as to recognise that the duty
resting on a medical practitioner is one of reasonable
care rather than strict.
- With specific reference to GPs, there is a duty to make relevant
inquiries of a lay patient arising out of the history given
by the patient, together with the symptoms with which the patient
has presented and to record those inquiries and the answers
to them. Some times (there can be no universal rule), the recording
of negative answers will itself be significant. The importance
of this duty to record inquiries and answers lies not so much
in any arid questions of note taking but rather in the compilation
(for future use) of a detailed record as to the patient’s history.
The duty resting on the GP to make inquiries is, however, necessarily
limited. It is one thing to probe that which the GP is told
or can reasonably observe or already has reason to monitor;
it is quite another to suggest that a GP comes under a duty
to cross-examine a reticent or unwilling patient; as it seems
to me, the former is but the latter is not, at least generally,
within the scope of any duty resting on the GP. Furthermore,
the mode of performance of any duty to monitor may depend on
the nuances of the GP - patient relationship in the individual
case; in an appropriate case, the GP’s duty may not extend
beyond a request to the patient to monitor the use and effect
of medication and to report back.
- Any consideration of whether a GP or cardiologist has performed
the duty resting upon him/her, is accordingly and necessarily
fact sensitive. The wisdom of hindsight must be excluded. Especially
in the field of diagnosis and treatment, ample allowance must
be made for differences in responsible and reasonable professional
opinion; there is seldom only one correct answer to problems
of professional judgment. Provided the decision of a medical
practitioner accords with a body of competent professional
opinion, the practitioner will not be negligent merely because
the conclusion to which he has come differs from that of other
medical professionals or even another body of competent professional
opinion; nor will he be negligent, simply because the court
prefers another body of professional opinion. While the court
is not bound by the opinion of an expert, however distinguished:
" …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."
Bolitho (supra), per Lord
Browne-Wilkinson, at p.243.
Finally in this regard, not every error of judgment
constitutes negligence.
- It is not always appropriate or necessary to have recourse to Bolam or Bolitho (supra),
in order to determine whether or not there has been negligence.
Where there is no applicable general and approved practice,
the question is simply whether, in all the circumstances of
the particular case, the relevant act or omission was negligent: Jackson & Powell
on Professional
Negligence (5th ed.), at para.
12-115.
- Turning
to causation, a claimant must establish his case that
the
injury, loss and damage flow from the negligence alleged.
As already
remarked, the burden of proof rests on him. The standard
of proof is a balance of probability; the authorities
do not
suggest that this issue is to be determined on the basis
of a "loss of a chance" and, certainly, there was
no such
contention
in the present case. In addressing causation following a negligent
omission, two questions arise. The first
is the
purely
factual question: what would have happened (on a balance of
probability) if the negligent omission had not
occurred?
The Bolam test (supra) is irrelevant
to this inquiry. The second question is whether that which
would have happened would itself have been negligent. The Bolam test
is "central" to this second inquiry. See, Bolitho (supra),
at pp. 239-240.
- (2) The expert witnesses: Before coming to my conclusions
of fact and to the application of the relevant legal principles to
the facts as found, it is appropriate to say something of the expert
witnesses as to liability.
- In summary:
- I am satisfied that all the expert witnesses as to liability
were honestly seeking to assist the court. Their opinions,
as stated in evidence, were genuinely held.
- With regard to the experts called by the Claimant, Dr. Isaac
and Dr. Dawkins, I do have a very real concern as to the significant
evolution in their thinking as expressed in their supplementary
reports prepared at about the time of or shortly after the
commencement of the trial. If I may say so and emphatically
without suggesting any impropriety, the impression which I
have formed is that this has at least something to do with
the rather late but obviously energetic entry of Mr. Gardner
into the case. At all events, it is striking that the experts
have gone considerably further in their supplementary reports
than they were prepared to go in their first reports. In the
case of Dr. Isaac, criticism of the April 1994 consultations
did not feature before, save for matters contingent on Mr.
Mellor’s factual evidence. In the case of Dr. Dawkins, an implicit
acceptance of a wait for routine angiography and neutrality
on the location of the stenosis, have been replaced by strongly
expressed views supporting an urgent requirement for both angiography
and angioplasty. On the one hand, it is important that the
Claimant should not suffer because only late in the day the
expert witnesses have been required to focus on the real issues.
On the other hand, such noteworthy developments in expert thinking
require very close scrutiny; honest and genuine experts can
succumb, all too often and however inadvertently, to hindsight
based over-enthusiasm.
- As to Dr. Crouch and Dr. Saltissi, the Claimant’s criticisms
have already been recorded. There was no application to debar
either from giving expert evidence. But that said, when considering
the weight to be given to Dr. Crouch’s evidence and notwithstanding
my view that he sought to give his evidence entirely fairly,
it will be necessary to take carefully into account his close
connection to the MPS. Such a connection could very easily
have a sub-conscious effect on his perspective. As a relative
outsider to this field, I am wary of any general pronouncements;
but having regard to experience in other areas of the law,
I cannot avoid saying that Dr. Crouch’s links to the MPS strike
me as disquieting.
- So far as Dr. Saltissi is concerned, I acquit him of the charges
advanced by the Claimant. I think he was neither biased nor
unfair; it is true that he gave certain of his answers vigorously
but that is a reflection of his temperament rather than a disclosure
of any partiality. Moreover, I think that much of the Claimant’s
criticism missed its mark; Dr. Saltissi’s peer review of Dr.
West went to his general competence. But Dr. West’s general
competence was not in issue in this trial. The issue in the
trial was whether Dr. West, an otherwise competent cardiologist,
was negligent on this single occasion. What remains was Mr.
Gardner’s criticism that Dr. Saltissi’s peer review of Dr.
West’s unit should have been disclosed prior to cross-examination;
to my mind, that criticism had force; it is unfortunate that,
for whatever reason, timely disclosure was not made. The impression
that late disclosure may have created was avoidable and should
have been avoided.
- Finally here, it is necessary to keep well in mind the danger,
in a case such as this, of expert witnesses eliding their own
practices and preferences with their opinions as to the demands
of reasonable or responsible practice.
- (3) The case against Dr. Groves: I have no hesitation
in dismissing the case against Dr. Groves.
- With regard to alleged negligence, as has become clear, it turns
exclusively on the consultation of the 9th January,
1992. Further still, it comes down to the factual question of
whether Dr. Groves made appropriate inquiries designed to exclude
IHD and angina and received satisfactory answers; Dr. Groves, it
will be recollected, did not dispute that if such was not the case,
then he had failed in his duty. It was alleged that had Dr. Groves
asked the relevant questions, then the answers given would and should
have led him to refer Mrs. Mellor to a cardiologist. Conversely,
it was not or not seriously in dispute that if Dr. Groves asked the
appropriate questions and received satisfactory answers, then there
was no duty on him to refer.
- For my
part, I regard it as wholly implausible that Dr. Groves did
not make the appropriate
inquiries.
He was well aware of the risk factors impacting on Mrs. Mellor;
the questions
were of the knee jerk variety; he had himself
acted
decisively in 1988 and caused Mrs. Mellor to be admitted to
hospital.
Against this background, it is overwhelmingly unlikely
that
he simply overlooked questions as to suspected IHD or angina.
I conclude
that on the balance of probability he did ask the
necessary
questions and received satisfactory answers. It is true that
Dr.
Groves
failed to record the questions put and the answers given; he
plainly should have done; I view Dr.
Crouch’s evidence (as to the
contrast
between the "ideal" and "real" worlds)
as explaining but not excusing
that
breach of duty; if and insofar as Dr. Crouch’s evidence went
further, I would be unable to accept
it. The failure to record is
not,
however, the gravamen of the Claimant’s case against Dr. Groves
– not least because in terms of causation
it does not go anywhere. Accordingly,
as the
Claimant fails to make good any allegation of relevant breach
of duty against Dr. Groves
its case against him must fail.
- Even had I concluded that Dr. Groves had been negligent, the Claimant’s
case against Dr. Groves would in any event have failed on causation
grounds. First, I accept the evidence of Prof. Littler that it was
unlikely that Mrs. Mellor had angina in 1992; such evidence is reinforced
by Dr. Saltissi’s view that even if Mrs. Mellor had some CHD
in 1992, it did not mean that she had significant CHD then.
For completeness, Dr. Dawkins’ evidence was, at its highest, equivocal
as to Mrs. Mellor’s condition in 1992. Secondly, viewed in this light,
I regard as wholly persuasive Prof. Littler’s opinion as to the likely
outcome of a referral in 1992 – namely, it is unlikely that an ETT
would have been carried out and that, if carried out, it would probably
have been negative. The reality is that the Claimant’s case in terms
of causation against Dr. Groves was, at best, speculative.
- (4) The case against Dr. Richards: On all the evidence,
the picture presented of Dr. Richards is that of a competent, caring
and attentive GP; Dr. Isaac himself accepted that her notes were
(generally) of a high standard; her referral letter (of 29th April,
1996) attracted praise across
the spectrum of the witnesses
and was described by Prof. Littler as "excellent". Nonetheless,
the claim against Dr. Richards
must be considered without pre-conceptions;
competent professionals can have uncharacteristic lapses. Having
approached the claim against
Dr. Richards in this manner,
I have reached the clear conclusion that it fails; I am not persuaded
that
Dr. Richards was negligent but,
if I am wrong and she was, any
negligence on her part was not causative. My reasons follow.
- Alleged negligence: I start with the consultation
of 22nd April, 1994. I am wholly unable to accept
the submission that it was negligent of Dr. Richards not to refer
Mrs. Mellor to a cardiologist following this consultation.
- Dr. Richards’ view at the time was that Mrs. Mellor did not then
have angina. That view now enjoys the support of Prof. Littler,
reinforced (at least inferentially) by Dr. Saltissi. On 1994,
Dr. Dawkins was again equivocal. It is not altogether easy
to see how a claim for negligence in respect of a failure to
refer in April 1994 can get off the ground, faced with the
weight of the expert evidence as to Mrs. Mellor’s actual condition;
albeit with the aid of hindsight evidence, the probability
is that Dr. Richards was correct in her diagnosis that Mrs.
Mellor did not then have angina. It may be that this conclusion
is sufficient to dispose of the allegation against Dr. Richards
in respect of April 1994 but I do not leave the matter there;
it is appropriate instead to address the argument that the
suspicion of angina was such as nonetheless to warrant a referral
in April 1994. For this purpose, I turn to the evidence of
Mrs. Mellor’s condition at the time.
- I start with the evidence of family members, namely Mr. Mellor
and Kerry. While in his evidence in chief Mr. Mellor had taken
April 1994 as the start of Mrs. Mellor’s chest pains, spoke
of her using the GTN spray to relieve those pains and described
other symptoms consistent with angina, in cross-examination
he accepted that he was not sure why he had done so. He accepted
that he was uncertain as to dates. It seems unlikely, to put
it no higher, that Mrs. Mellor would have used her mother’s
GTN spray even before one had been prescribed for her. Mr.
Mellor was doing his best to assist the court; however, to
my mind and although he resisted the suggestion and indeed
also said (curiously) that he could not be sure whether she
had chest pain in 1997, his description provides a broadly
accurate picture of Mrs. Mellor’s condition in 1996-1997, rather
than 1994.
- On the appearance presented by her evidence, Kerry Mellor was
a witness with strength of character and I have anxiously considered
what she had to say. Again, I have no doubt that she was seeking
to assist the court. On the balance of her evidence, though
Mrs. Mellor did have some chest pains in 1994 and 1995, they
worsened in 1996-1997. Kerry had a framework for fixing dates;
she used the birth in 1995 of her first son, Jordan, as a point
of reference. Notably, Kerry said that in 1995, when visiting
her mother daily while pregnant with Jordan, she had not noticed
anything in particular about her mother’s mobility.
- It
follows in my judgment, that the evidence from family
members,
while
demonstrating some chest pains in 1994 and 1995 points
to significant
worsening in 1996-97. The "family" evidence
does
not, to my mind, demonstrate significant use of the
GTN spray
in 1994 (other than that referred to in Dr. Richards’s
notes,
to which
I shall shortly come).
- These conclusions as to the evidence given by Mr. Mellor and
Kerry are fortified when regard is had to various hospital
notes relating to Mrs. Mellor’s admissions in respect of her
other complaints. On the 27th September, 1994, it
was noted
that
Mrs. Mellor had "no problems" with
breathing
and no
chest pains. By contrast, on the 29th November,
1996, there are stark references to central chest pain, its
relationship with exertion and the use of the GTN spray to
relieve it. In between these two dates, there is of course
the evidence from Dr. Yellop’s notes of the history given to
her by Mrs. Mellor herself on the 4th July, 1996.
In those notes, Mrs. Mellor spoke of six months (not two years)
intermittent chest pain.
- I
turn next to Dr. Richards’ notes of the consultation
in question,
with
the perspective furnished by her own evidence as well
as that
given by Dr. Isaac and Dr. Crouch. The background was
that
Mrs. Mellor had been complaining of a "flu like" illness.
Dr. Richards
was sufficiently concerned (and diligent) to make a
home visit. With regard to possible CHD, there were
admittedly
some
worrying symptoms – the reference to pressure and the
duration
of the pain, recorded as a few minutes. Conversely,
however,
the burning pain, the fact that it occurred at different
points
along the arms and the fact that it was (expressly)
not related to exertion, were all inconsistent with
or atypical
of angina.
For my part, against this background, I cannot fault
Dr. Richards’
reaction; she did not think Mrs. Mellor had angina
but she wished to prescribe the GTN spray as a trial.
Some
GPs would
have prescribed the spray while others would not have
done so; Dr. Richards could not have been criticised
either way. In my judgment it is both unfair and fallacious
to suggest
that
Dr. Richards’ position disclosed a dilemma – either
there was no
need to prescribe the spray or she was dutybound to
make a referral. That approach, with respect, stands
the reality
of the
situation on its head. It was instead entirely appropriate
for Dr.
Richards to form a view that Mrs. Mellor did not have
angina
but to prescribe the spray out of an abundance of caution
and to
review
the matter in due course.
- It follows that I am unable to accept Dr. Isaac’s criticisms
of Dr. Richards with regard to the 22nd April consultation.
As to his first report, his criticisms were contingent on Mr.
Mellor’s evidence –which, as I have already concluded, is properly
referable to a much later date. As to Dr. Isaac’s supplementary
report, I fear, with respect, that impermissible hindsight
has swayed his judgment.
- On the material available at the time, Dr. Richards’ conclusion
that Mrs. Mellor’s pain was not ischaemic and her decision
not to refer at the time were reasonable and responsible.
- I come next to the 28th April, 1994 consultation.
As already set out, the notes
for this
consultation refer to "chest
ok" and "used GTN spray 1x Monday 25th not since".
For my part, I accept Dr. Richards’
evidence as to this consultation
and (bearing in mind fully the need for caution, given Dr. Crouch’s
connection with the MPS), I prefer
Dr. Crouch’s evidence to that
given by Dr. Isaac. In summary:
- Dr. Richards did not record whether the use of the spray had
been successful. She should have done. But having gone to the
trouble of prescribing the GTN spray, it would have been curious
if she had not recorded the fact that the use of the spray
had been successful, if indeed it had been.
- It can hardly be said of Dr. Richards that she failed to refer
because she had overlooked the possibility of angina; she had
herself prescribed the spray. Nor can it be said that Dr. Richards
was (say) stubbornly resistant to making referrals; she readily
made a number of referrals over the period during which she
cared for Mrs. Mellor.
- In any event, had the pain been symptomatic of angina, it is
further surprising that the spray had only been used once in
six days.
- It remained the case that there was no reported link between
the reported pain and exertion. In all the circumstances, a
single use of the spray did not make a referral mandatory.
- I come next to the interval between April 1994 and November 1995. As
the trial and Dr. Isaac’s evidence developed, so too did criticism
of Dr. Richards’ alleged failure to monitor use of the GTN spray.
I do not think that such criticism was either warranted or made out.
- I accept Dr. Richards’ evidence that she had asked Mrs. Mellor
(albeit not on every occasion when she saw her) to tell her
if she had used the spray.
- Even
though (as will be apparent) I regard the duty to record
significant
inquiries and answers as an important duty resting on
a
GP, I am not persuaded that the absence of a reference
to "monitor" in Dr. Richards’ notes of the 22nd April
or 28th April was significant. That is to stretch
the duty
too far.
It is true that there was a reference to "monitor" in
Dr. Richards’
notes
of the 29th March, 1996 consultation;
I decline
however
to construe Dr. Richards’ notes as if they were a statute,
so that the absence of a reference to "monitor" is
to be
taken
as implying that Dr. Richards had not asked Mrs. Mellor to
report back on any use. Similarly, while certainly
with
hindsight
it would have been preferable if Dr. Richards had recorded
questions and negative answers over this 18 month
interval,
having
regard both to Dr. Richards’ evidence and her general conscientiousness,
I am not prepared to conclude
(contary
to her
evidence) that she asked no such questions over the entire
period. Nor would I be prepared to accept that
over
the many
meetings between Dr. Richards and Mrs. Mellor during this period,
it was incumbent on Dr. Richards to record
every
inquiry
and every answer received, including negatives; the suggestion
involves a loss of proportion as to the GP’s
duty
to record
significant inquiries and answers; it also entails losing
sight
of the true rationale of that duty, as explained earlier.
- Mrs. Mellor was seeing Dr. Richards frequently over the period
in question, in connection with other matters. If she had used
the spray, there is no good reason – certainly at that time
– why she would not have mentioned it. On all the evidence
of Mr. Mellor and Kerry, I do not think it probable that Mrs.
Mellor was making unreported use of the spray over this period.
Further, if Mrs. Mellor had used the spray regularly over this
period, it is remarkable that she reported only one use at
the 3rd November, 1995 consultation (see below);
there could have been no good reason at that stage, for Mrs.
Mellor to report inaccurately.
- Given the relationship between Dr. Richards and Mrs. Mellor,
I do not think it was unreasonable for Dr. Richards to rely
on Mrs. Mellor reporting back if she had used the spray.
- If Mrs. Mellor had used the spray but chose not to report that
fact to Dr. Richards, it was, in the circumstances, no part
of Dr. Richards’ duty to prise that information from Mrs. Mellor.
- In all the circumstances, faced with a period of 18 months without
any reported use of the spray, Dr. Richards was entitled to
approach the 3rd November, 1995 conference with
a degree of reassurance that Mrs. Mellor had not been suffering
from angina. Had Mrs. Mellor been suffering from angina over
this period, it must be likely that the spray would have been
used more often over this period. The reason is straightforward;
as already mentioned, angina is pain consequent on a restricted
oxygen supply to the heart; once the blockage is sufficient
to cause such pain, it is inherently likely that the pain will
recur from time to time, prompting repeated use of the spray.
- The 3rd November, 1995 consultation requires careful
consideration. By now, Prof. Littler’s evidence, which I accept,
was that Mrs. Mellor probably did have angina. At the time, Dr. Richards
of course did not know that. Was Dr. Richards negligent in not referring
Mrs. Mellor to a cardiologist at this stage? I am not persuaded that
she was. First, for the reasons already given, Dr. Richards was entitled
to be reassured by the passage of 18 months without a reported incident
of chest pain or the use of the spray. A single use of the spray
after such an 18 month interval did not oblige Dr. Richards to refer;
it may well be that some GPs would have done; but I cannot say that
Dr. Richards was in breach of duty for not doing so. Secondly, to
my mind, it was on all the evidence, entirely reasonable at this
juncture for Dr. Richards to regard the anaemia and concern as to
cancer as taking priority. For completeness, I have not lost sight
of the criticisms as to Dr. Richards’ notes of this consultation;
while I accept that they do leave something to be desired, they do
not undermine the conclusions to which I have come in respect of
Dr. Richards’ actions arising out of this consultation.
- Finally, I turn to the 29th March, 1996 consultation,
as to which I can express my
conclusions
very briefly. By now there had been repeated and effective
use of the spray. To my mind, the
facts as they then appeared would
have
required a referral but for one matter; namely, the "clinical use of time" to
adopt
Mr. Hugh-Jones’s phrase; for the 29th March consultation
cannot properly be evaluated without having regard to the fact that
Dr. Richards arranged to see Mrs. Mellor again in three weeks’ time.
That Mrs. Mellor did not attend on the 19th April, so
that the consultation had to be postponed to the 23rd April,
is neither here nor there. I do not accept that it was unreasonable
of Dr. Richards to keep the matter under review in this fashion;
once hindsight is removed, it was not reasonably apparent that the
clock was ticking (Mr. Gardner’s phrase). Nor do I think that by
proceeding in this way, Dr. Richards was applying the wrong test
of only referring on a probability of angina.
- Causation: For all these reasons, therefore, I have concluded
that the case of negligence against Dr. Richards must fail. If, however,
I was wrong about that, then it seems plain to me that the case against
Dr. Richards must in any event fail on causation grounds. My conclusions
here can be summarily expressed:
- For the reasons given by Prof. Littler, it is improbable that
a referral in 1994 would have resulted in an ETT but, if it
had, it is probable that any such test would have been negative.
To the extent that Dr. Dawkins, in his supplementary report
(but not before) and orally expressed a contrary opinion, I
view his evidence on this topic as no more than speculative.
- With regard to November 1995, it is improbable that an ETT would
have been carried out until after Mrs. Mellor’s anaemia had
been corrected. As that would have taken some 2-3 months, the
difference between the hypothetical pathway that would then
have been followed and the pathway actually followed is, in
my judgment, immaterial. Furthermore, it is probable that the
result of any such ETT would have been the same as that carried
out in August, 1996 – to the characterisation of which I shall
shortly be coming.
- The failure to refer on the 29th March, 1996 was,
realistically, not said by Mr. Gardner to be causative of any
loss or damage, bearing in mind that the actual referral was
made on the 29th April, 1996.
- (5) The case against Dr. West: Negligence: I agree
with Mr. Holl-Allen that the issue here is whether the Claimant can
show that Dr. West was negligent in discharging Mrs. Mellor. As it
seems to me, the characterisation of the result of the ETT and the
terms of the 13th January letter are simply part and parcel
of the same issue; they do not give rise to independent grounds of
negligence.
- As I have already underlined, the allegation of professional negligence
is a serious matter. I remind myself that a mere difference of professional
opinion or the preference for one course of action over another,
does not disclose negligence. On all the evidence, which I have anxiously
weighed, my conclusions as to the picture presented to Dr. West after
Mrs. Mellor had undertaken the ETT are as follows:
- The
case had been referred to him by a respected GP practice,
on the
basis of an excellent referral letter; plainly, the
GP concerned
faced, as Prof. Littler put it, "a diagnostic
dilemma". Dr. West needed to address that dilemma.
- As
to risk factors, it was true that Mrs. Mellor had a "mild" absolute
risk
of a coronary event: 5-10% over 10 years, or 0.5% -
1% per annum.
But her relative risk was high; as a young woman, suspected
of having
angina, she made an unusual patient.
- The history given to Dr. Yellop contained some features which
supported a diagnosis of angina and others which were not typical.
The location of the pain (central chest), its radiation into
the back and right shoulder, its relationship with exertion
and the fact that there was now a history of such pain for
6 months with the pain occurring three times per week, all
pointed to angina. Conversely the duration of the pain (seconds)
and its unpredictable nature told against angina. That said,
on the evidence I have seen, Dr. West appreciated or certainly
ought to have appreciated, the risk of young women presenting
atypically. There was certainly enough here to warrant, at
the least, a real suspicion of angina. That that is so is confirmed
by Dr. Yellop’s annotation of the risk factors and her subsequent
letters to Dr. Richards of 4th July and 2nd August,
1996. At all events, there was sufficient concern to prompt
Dr. West himself to direct that an ETT should be undertaken,
a decision which was undoubtedly correct and which has not
been the subject of any criticism.
- Over-dramatisation
is to be avoided but, to my mind, Mrs. Mellor’s performance
of the ETT should have given rise to real concern. In
colloquial
terms, it is striking that a 43 year old woman should
be capable of accomplishing no more than 1.7 mph at
an elevation
of 5° . It reveals,
as Dr. Dawkins put it, a "profound" reduction in
exercise capability; indeed all the cardiology experts were,
as noted, agreed that the ETT showed Mrs. Mellor to have "a
very restricted exercise capability indeed".
- With
respect, I am unable to accept Dr. Saltissi’s "bunch
of factors" as serving to explain Mrs. Mellor’s performance
or as
suggesting
a non-cardiac cause. Even making allowance for subjective factors
impacting on performance of an ETT,
such
considerations
were only part of a much larger picture and should have been
outweighed by other concerns. Nor was
I persuaded
that
Mrs. Mellor’s anaemia (mild at the time), or her neurological
problems
or history, could adequately explain her performance,
or her
chest pain or her breathlessness. As to Mrs. Mellor having
a concurrent flu like illness, Mr. Holl-Allen
realistically
accepted
that this was a false point; had Mrs. Mellor indeed been suffering
form such an illness, the test
would
not have
been undertaken at all. As to Mrs. Mellor being a smoker, I
found Dr. Dawkins’ analysis unanswerable; the test
is only
performed
by those who are suspected of having CHD; more
than
50% of the patients undergoing the test are smokers; there
was no evidence of lung disease; other than showing that
Mrs.
Mellor
was unfit, smoking had no relevance; but Mrs. Mellor’s performance
was way
below that expected for an unfit person
of her age and gender. As to a convincing alternative diagnosis
(of a gastric or gastro-intestinal nature), for my part, I
can understand keeping an open mind on it; but, given the possibility
of concurrent complaints and the weight of suspicion as to
angina, I cannot accept that the possible alternative diagnosis
could or should have led to the ruling out of angina at this
stage.
- A more formidable point raised by both Dr. West and Dr. Saltissi
was the fact that although Mrs. Mellor’s symptoms (chest pains
and SOB) had been reproduced by the test, the ETT had not generated
abnormal ECG findings or ST segment depressions; this, it was
said, provided reassurance that Mrs. Mellor’s pain was not
angina. The difficulty, here, however, is that insufficient
exercise had been undertaken; accordingly, the reassurance
that would otherwise have been provided was necessarily limited.
For my part, this feature of the ETT did not entitle Dr. West
to rule out or discount CAD; the correct conclusion was that
this feature demonstrated a reduced probability of significant
CAD.
- In
my judgment, the ETT was neither positive or non-contributory
(Dr.
Dawkins) nor negative (Dr. West). It was instead inconclusive
(Dr.
Saltissi and Prof. Littler). Very fairly, Dr. West accepted
that,
with hindsight and with the classifications now in use,
the test
was to be characterised as equivocal. For completeness,
the danger
in describing the ETT as "negative sub-maximal" (Dr.
West’s
notes) is that it is not at once apparent to anyone
other than Dr. West as to what is meant by it.
- Pulling the threads together, this was a young person, with multiple
risk factors for CAD and severely reduced exercise tolerance.
The ETT had proved inconclusive; it had not been able to establish
a cause for that reduced exercise capability. Bearing in mind
the reason for commissioning the ETT in the first place, namely,
a real suspicion of angina, I regret that I can see no logically
sustainable reason for the decision to discharge Mrs. Mellor
without further investigations. The ETT simply could not have
given sufficient confidence that cardiac pain could be ruled
out or discounted. The position reached in August 1996 was
fundamentally different from that (for instance) facing Dr.
Richards when she prescribed the GTN spray trial in April 1994.
In August 1996 and January 1997, as it seems to me, Mrs. Mellor’s
case necessitated further investigations.
- It follows that, in my judgment, Dr. West, on this occasion, failed
to exercise reasonable skill and care in his treatment of Mrs. Mellor.
He should not have discharged her without further investigation.
Even taking into account the risks inherent in further coronary investigation
and treatment, there was no good reason for not at least proceeding
to a thallium scan. The risk/benefit calculation for taking such
a course pointed overwhelmingly towards doing so. I accept that Dr.
West gave his evidence honestly and fairly; I accept further that
he genuinely and strongly believed that Mrs. Mellor’s problems were
not cardiac in nature; still further, that what the GP required of
him was a decision, not an expression of his doubts. What I am unable
to accept however, is that there was any tenable analysis of the
facts which justified a decision to discharge Mrs. Mellor without
more. In that regard, it cannot seriously be suggested that the second
paragraph of the 13th January letter cured the defects
in the decision taken; plainly it did not.
- In coming to this conclusion, I have not overlooked that Dr. West’s
decision to discharge Mrs. Mellor was supported by Dr. Saltissi.
With respect, on this aspect of the case, his views do not deter
me. First, because here, I am not at all sure that the question of
any applicable general and approved practice arises; the issue is
simply whether in all the circumstances the decision to discharge
was negligent. On such an issue, the view of an expert, no matter
how eminent, cannot be determinative. Secondly, because even if Bolam (supra) is
applicable to this issue, then on the analysis to which I feel driven,
any practice of discharging a patient in the circumstances in question
would not be logically sustainable. Thirdly, I have already acknowledged
the force of Dr. Saltissi’s observations as to the absence of significant
ECG changes in the course of the ETT, notwithstanding the reproduction
of Mrs. Mellor’s symptoms. For reasons already given, essentially
going to the limitations of the ETT, on the question of negligence,
I regard that point as decisively outweighed by others; I shall return
to it, however, when dealing with causation, a sphere in which it
is of not inconsiderable significance.
- By way of a postscript as to negligence, following the
reassurance provided by Dr. West’s decision to discharge Mrs. Mellor,
she did not subsequently complain to Dr. Richards or other doctors
as to her chest pains. I accept in this regard Kerry’s evidence and
conclude that Mrs. Mellor did indeed suffer from worsening chest
pains in the course of 1997 (along, no doubt, with a variety of other
complaints); that Mr. Mellor could not now recall such pains is neither
here nor there. During this period too, I am satisfied that Mrs.
Mellor did make more frequent use of a GTN spray but she did not
report it to Dr. Richards; the likelihood is that Mrs. Mellor now
used the spray because it gave relief but, having been told that
her pain was not cardiac related, she saw no need to report its use
and effect.
- Causation: To recap, the inquiry here, as correctly formulated
by Mr. Holl-Allen, is whether, with the exercise of all due care
and had Dr. West not discharged her, (1) Mrs. Mellor would have come
to angioplasty before the date of her death on 1st January,
1998 and (2) that angioplasty would have been effective to prevent
her death. Unless the Claimant succeeds on this area of the case,
the claim against the First Defendant must fail.
- There was no doubt as to the stages in the pathway which Dr. West would
have followed: (1) a thallium scan; (2) an outpatient appointment;
thereafter, if required: (3) angiography; (4) angioplasty. Further
and certainly by the conclusion of the trial, there was no or no
serious suggestion that this pathway would itself have been negligent.
Still further, there was no suggestion that the routine waiting times
(set out earlier) were unreasonable.
- What remains is the critical dispute as to whether Mrs. Mellor would
and/or should have been accorded priority treatment (so as to override
the routine waiting times) and whether, if so, such treatment would
in any event have been effective. It is here, in my judgment, that
the Claimant’s case against the First Defendant breaks down. I am
not persuaded that, as a matter of probability, Mrs. Mellor would
have reached angiography before the 1st January, 1998;
the highest I would put it, is that there was a possibility that
she would have done so. Without the benefit of hindsight, a failure
to proceed to urgent angiography would not have given rise to any
proper criticism of Dr. West (or the First Defendant). But even if
I am wrong about angiography and its timing, I cannot see any logically
cogent basis for concluding that the stenosis was in the proximal
segment of Mrs. Mellor’s LAD; and unless it was, then all the
cardiology experts agree that Mrs. Mellor would (perfectly properly)
only have had routine priority for angioplasty and would not have
come to angioplasty before the 1st January, 1998. Finally,
given Mrs. Mellor’s significant LVH, I am unable to conclude that
angioplasty in this case would have been effective to save
Mrs. Mellor’s life; it would certainly have been attractive to try
angioplasty; it may well have succeeded; but I cannot say that, as
a matter of probability, it would have succeeded. Any one of these
conclusions is fatal to the Claimant’s case against the First Defendant; a
fortiori, all of them. The claim against the First Defendant
must accordingly be dismissed. I turn to my reasons.
- (1) The start date, the thallium scan and angiography: At the
outset here, some cautionary remarks are appropriate. First, there
should not be a search for spurious precision when considering the
hypothetical timetable. Secondly, when assessing what Dr. West would
have done, the relevant assumption is that Dr. West had not thought
it right to discharge Mrs. Mellor; instead, he had determined that
further investigations were appropriate. Accordingly, Dr. West’s
hypothetical mindset would have been different from his actual mindset.
Thirdly, however, a distinction must be drawn between the need to
investigate further and the urgency which such investigation demanded.
- There was no or no substantial criticism of the January 1997 start
date for the hypothetical timetable. As recorded, that was the date
given by Mr. Gardner early in the trial when pressed on the point;
it ties in with the 13th January, 1997 consultation and
letter of the same date in which Dr. West communicated his decision
to discharge Mrs. Mellor. It is fair to say that Dr. Dawkins contended
for an August 1996 start date, linked to the time when the result
of the ETT became known; he did so on the premise that, in the 13th January,
1997 consultation, Dr. West did no more than communicate a decision
already made. Even assuming that Dr. Dawkins is right on that latter
point, there is no proper basis for assuming an earlier start date
than January 1997, unless either it is to be inferred that
Dr. West would have brought forward his consultation had he decided
on further investigations or the waiting time for that consultation
is to be criticised. To my mind, it cannot be inferred that Dr. West
would have brought forward the date of the consultation. Nothing
in his evidence suggested that he would have done so; moreover, here,
the fact that there were no significant ECG changes during the ETT
would, in my judgment, have told against Dr. West prioritising that
consultation. As already indicated, there is no foundation for any
criticism of the waiting time for the January 1997 consultation.
- It follows that time for the hypothetical timetable starts running
from January 1997. Some 2-3 months were then required waiting for
a thallium scan. Even allowing no additional time for an outpatient
appointment, it follows further that unless angiography was to be
prioritised, on the basis of a one year routine waiting time, it
would not have been reached before the 1st January, 1998.
- Would angiography have been prioritised? It is unnecessary to repeat
the evidence which has already been set out but its tenor can be
shortly summarised. Dr. West would not have accorded it urgency.
Dr. Saltissi plainly would not have done so; he could not recall
ever having ordered an urgent angiogram based upon a thallium scan.
Prof. Littler’s answer seemed to me understandably equivocal in that
his view would likely have turned on a precise analysis of the symptoms
of the individual case, though he stood by the answer which he and
Dr. Saltissi had given in their report following the cardiology meeting,
premised on a routine waiting time for angiography. Dr. Dawkins,
to my mind, plainly contemplated in his report following the cardiology
meeting that routine waiting times would have been applicable. In
his supplementary report and in oral evidence, he vigorously contended
for urgent angiography.
- The matter is not easy. On the one hand, Mrs. Mellor’s age (making
her an unusual patient with a high relative risk) and the sizeable
defect which in Dr. Dawkins’ view the thallium scan would have revealed,
point to the fact that some doctors would have proceeded to urgent
angiography. Assuming in Dr. Dawkins’ favour that his supplementary
report and oral evidence reflect his true views, it can be inferred
that he would have accorded Mrs. Mellor priority. Again, if Mrs.
Mellor’s symptoms had worsened significantly and had been appropriately
reported, Prof. Littler might have moved from prescribing a regimen
of medication to urgent angiography. But conversely, given Mrs. Mellor’s
low absolute risk and the absence of significant ECG changes during
the ETT, I cannot conclude that Dr. West would have done so. Nor,
on all the evidence, could I begin to conclude that it would have
been negligent not to proceed to urgent angiography. As it
seems to me, this is a classic instance where, without the advantage
of hindsight, reasonable and responsible medical professionals might
have held divergent opinions.
- In summary, unless I can conclude that either (1) the start time would
or should have been brought forward to August 1996 or (2) that angiography
would or should have been accorded priority, then I cannot say that
Mrs. Mellor would have reached angiography before the 1st January,
1998. For the reasons already given, I cannot arrive at either conclusion
(1) or (2). The most that can be said is that some cardiologists
might have prioritised angiography, although, even then, it would
remain unlikely that angiography would have been reached until well
into 1997. If I am right so far, then the Claimant’s case against
the First Defendant must fail on this ground alone; but in case I
am wrong I turn to the question of whether urgent angioplasty would
have been mandatory.
- (2) Angioplasty: To my mind the position here is relatively
clearcut and, by itself, destructive of the Claimant’s case on causation.
Important though this topic is, my conclusions can be shortly stated:
- There is no factual evidence that the stenosis was in
the proximal segment. The pathologist did not say it was.
- In the report following the cardiology meeting, Dr. Saltissi
and Prof. Littler were emphatically of the view that urgent
angioplasty was unlikely. In the same report, Dr. Dawkins was
studiously neutral on the location of the stenosis and hence
neutral on the need for urgent angioplasty. I regard that as
telling. There is no good reason why Dr. Dawkins, if he thought
that the stenosis was in the proximal segment, should not then
have said so. Conversely, Dr. Saltissi and Prof. Littler have
consistently maintained that the location of the stenosis cannot
be determined.
- The reasons which Dr. Dawkins has subsequently advanced in support
of the argument that the stenosis was in the proximal segment,
with respect, lack cogency. They strike me, again with respect,
as afterthoughts. To my mind, Prof. Littler’s reasons for disagreeing
with these later thoughts of Dr. Dawkins are compelling; no
inference as to location can be drawn from the cause of death;
nor from the pathologist’s remarks as to screening the family;
nor from the guesstimate given by the pathologist as to percentage
occlusion.
- For completeness, nothing in Mrs. Mellor’s condition immediately
prior to going to the hospital on the 1st January,
1998 (a point canvassed by Mr. Gardner in his final submissions)
assists at all on the location of the stenosis.
- In the event, there is simply no proper basis on which I could
infer that the stenosis was, as a matter of probability, located
in the proximal segment of Mrs. Mellor’s LAD. On this footing,
as is by now apparent, all the experts agree that Mrs. Mellor
would not have reached angioplasty (even with the exercise
of all due care) by the 1st January, 1998. Regardless
of any other conclusion as to causation, that is an end to
the claim as against the First Defendant.
- Finally (and for completeness), I have not lost sight of a point
emphasised in particular by Dr. Saltissi, going to the severity
of the stenosis. I am persuaded that in life, the severity
would probably have been reduced by some 25-30%, so that in
mid- late 1997 it would likely have been of the order of 65-70%.
I would not, however, on that ground have ruled out the need
for and likelihood of urgent angioplasty, had it been established
that the stenosis was located in the proximal segment of the
LAD.
- (3) The effectiveness of angioplasty in this case: In
case
it should be necessary to do so, I go on to consider this topic
(on
the assumption that angioplasty
was reached "in time").
I preface my remarks by saying
that
nothing which follows is intended to or should cast doubt on
the likely effectiveness of angioplasty
generally in terms of prognostic
benefits.
So far as the generality of this matter is concerned, I prefer
the views expressed by Dr.
Dawkins and Prof. Littler to
those of Dr. Saltissi.
- Reverting
to this case, the starting point here must be the cause of
death. Having
regard
to the PM, there is difficulty in supporting the suggestion
of a "heart attack"; while the absence of
evidence of MI can be explained (there was not time for it to develop),
the absence of any evidence of a thrombosis is significant. If there
was no heart attack, then, in the circumstances, the probable cause
of death was a fatal arrhythmia. Dr. Dawkins thought it "far-fetched" to
conclude that the stenosis was
unrelated to the cause of death;
but, as it seems to me, the matter does not permit so simple an answer.
There was force, both in Dr.
Saltissi’s view that stenosis
could only be presumed as the cause
of death if Mrs. Mellor’s LVH
was ignored and in Prof. Littler’s observation
that, on the available material,
it was impossible to know whether the cause of the arrhythmia was
stenosis or the significant LVH.
Even assuming that the stenosis
was itself (as well as the LVH) a
contributory cause of the fibrosis,
it seems inescapable that the
LVH caused fibroses independently
of CAD (and hence independently of any omission on the part of Dr.
West).
- That brings me to the nub of the present issue: whether an angioplasty,
unblocking a focal stenosis would have served – as a matter of probability
- to save Mrs. Mellor’s life, given the significant LVH found on
PM. In colloquial terms, the angioplasty would have been addressing
an important part, but still only a part, of the problem. In my judgment,
having regard to the carefully reasoned evidence from Dr. Saltissi
(in particular) on this part of the case, I do not feel able to conclude
that an angioplasty would probably have prevented death. I repeat
that this is no reflection on the generality of angioplasties. Here,
however, I must have regard to the fact that with her significant
LVH and (assuming) no stenosis, Mrs. Mellor would have been at the
same level of risk. Any one of the fibroses could, as I understand
the evidence, have given rise to the fatal arrhythmia. Against this
background, an angioplasty eliminating the stenosis in the LAD would
have left untouched a part of the problem independent of it. If in
fact the fatal mechanism was independent of the stenosis in the LAD,
then it is unlikely that an angioplasty would have prevented Mrs.
Mellor’s death. On the available evidence, I do not see how such
a hypothesis can be described as improbable.
- In summary, had the relevant stage in the pathway been reached, an
angioplasty would have been worth trying. It might have been successful
in saving Mrs. Mellor’s life. But, given her significant LVH, I cannot
say that it probably would have been. For this reason too, the Claimant’s
case on causation cannot succeed.
QUANTUM
- In the light of my conclusions so far, quantum is of course academic.
I therefore do no more than record summarily my conclusions on the
major issues, essentially for completeness and out of deference to
the arguments advanced.
- (1) Past pecuniary loss: This
figure was agreed at £36,500.
- (2) Past Emotional support: This
was a
claim brought in respect of alleged emotional support provided
by Kerry to Mr. Mellor, in
particular in the light of his
depression.
The Defendants disputed this claim arguing that Kerry spent
time with her father because
neither wished to be alone; in
short,
the time spent amounted to mutual support and did not give
rise to any recoverable claim. If
the claim was well-founded, then
an hourly
rate of £6.25 was agreed.
In my judgment, an amount would have been due under this heading
but much reduced from the £30,000 odd claimed. Doing the best I can,
I would have allowed 10 hours a week for 1998 but nothing thereafter.
The total figure would therefore have amounted to 52 x 10 x £6.25
= £3,250.00.
- (3) Loss of future services of wife: On
the basis
of a life expectation of 19 years, a multiplier agreed at 8.97
and a multiplicand
agreed at £4,500, this claim would have amounted to £40,365.00.
- (4) Emotional support for the Claimant for the future: This
claim for £28,000 odd was advanced in respect of future emotional
support to be provided by Kerry
to Mr. Mellor. I would have disallowed
this claim.
- (5) Loss of maternal care and attention for Kirk: I
would
have allowed this claim in the (ultimately) agreed amount of £5,000.00.
- (6) Loss of Mrs. Mellor’s care and attention of Mr. Mellor: This
was disputed by the Defendants
in principle;
if recoverable, quantum was agreed at £5,000.00. On the bases that this claim is logically
distinct from the claim for loss of services and that it was confined
to a very modest amount, I would have allowed it in principle. As
to quantum, I would not have quibbled with the £5,000.00 agreed.
- (7) Funeral expenses, Mr. Mellor’s continued travel to the
cemetery and continued purchase of flowers for Mrs. Mellor’s
grave: The Defendants, responsibly in all the circumstances,
were
minded
to agree this claim at £9,000.00 but on terms that
it was
not a
precedent and on the ground that argument as to this claim
would have been disproportionate. I agree.
- (8) Bereavement: This
claim resulted in an agreed figure of £7,500.00.
- (9) Cost of therapy for Mr. Mellor: This
claim was agreed at £2,500.00.
- (10) Mrs. Mellor’s pain and suffering: On
the assumption
that I had reached the same conclusions as to liability as
already set
out but that I had decided causation
in favour
of the Claimant as against the First Defendant, I would have
awarded £3,000.00 under
this heading in respect of 1997.
- (11) Nervous shock: Under
this
heading the Claimant claimed £30,000.00
and the Defendant was ultimately prepared to pay £10,000.00. Some
brief observations are appropriate:
- Intriguingly, though he was criticised by the Claimant for his
connections to the MPS, Dr. Bradley, the psychiatrist called
by the First Defendant, gave evidence more favourable to the
Claimant than did Dr. Hayes, the psychiatrist called by the
Claimant.
- The
key question here was whether the Claimant’s nervous
shock could be
separated out from the "ordinary" grief
flowing
from bereavement. After Dr. Bradley had given evidence,
the First
Defendant indicated its readiness to agree this claim
in principle.
- For
my part, I would have allowed it in the amount which
the First
Defendant was prepared to pay, namely £10,000.00. In
all the
circumstances,
that was an ample sum.
- I add only this. One of the key components of this claim, was
the shock suffered by the Claimant when shown his wife’s body
at the Rotherham District General Hospital; I have summarised
the facts when dealing with Mr. Mellor’s evidence and it is
unnecessary to repeat them here. I bear in mind of course that
that hospital is not one for which the First Defendant is answerable.
But with a view to the future, I am bound to observe that,
on the basis of the Claimant’s account of these events, consideration
should be given by all concerned as to how such sensitive matters
could be more thoughtfully handled.
- I record that the Sixth and Seventh Defendants advanced an argument
that any claim for nervous shock was, against them, too remote.
It is unnecessary to express any view on this contention and
I do not do so.
CONCLUDING OBSERVATIONS
- As is apparent, Mrs. Mellor’s widower and daughter gave evidence in
this matter and, I should add, attended court regularly throughout
the trial. If I may say so, they conducted themselves throughout
with dignity.
- For the reasons already given, the Claimant’s claim fails against both
Dr. Groves and Dr. Richards; in both cases, neither breach of duty
nor causation has been established.
- Also for the reasons given, I have concluded that Dr. West, the cardiologist,
for whom the First Defendant is answerable, should not have discharged
Mrs. Mellor on the 13th January, 1997 and was negligent
by doing so. That said, no causative link has been established between
this breach of duty and Mrs. Mellor’s death. The Claimant’s claim
therefore fails against the First Defendant.
- The sad fact is that Mrs. Mellor was in a variety of unfortunate respects
a very ill woman. Her death at so early an age was a tragedy but
not one which any of the Defendants could have avoided by the exercise
of due diligence.
- I shall be grateful for the assistance of counsel in connection with
drawing up the order and all questions of costs.