Doy v Gunn [08.05.13]
Court of Appeal upholds finding that out-of-hours general practitioner not negligent for failing to refer Claimant to hospital; trial Judge correct to accept GP’s account of consultation.


At first instance it was held that the Defendant was not negligent when she decided against referring the Claimant to hospital, despite the judge criticising the Defendant's entry in the notes.

The case turned on a factual dispute and the judge had tested the reliability of the evidence of the Claimant's mother by considering the contemporaneous evidence of the Claimant's consultations with two other GPs and a health visitor around the time of the alleged negligence, in addition to the Defendant’s entry in the records. He had also considered the Defendant's account of her usual practice and the microbiological expert evidence which stated that the Claimant did not have meningitis at the time of the consultation with the Defendant.

Whilst there is no substitute for a detailed entry in the notes, a poor entry in the notes does not necessarily mean that a claim cannot be defended. It is important to look at contemporaneous evidence around the time of the alleged negligence for inconsistencies and history that may undermine the claimant's credibility. It is also important to ensure all notes are obtained such as health visitor and district nursing notes that do not form part of the GP records. The maker of the note should be 'proofed' in relation to their usual practice.


Kieran Doy was born prematurely on 25 January 2002. On 21 March 2002 he was admitted to hospital where he was found to have acute bacterial meningitis due to Group B streptococcus. The meningitis has left him with severe problems, including cerebral palsy.

A claim was brought against an out-of-hours GP, Dr Gunn, who saw Kieran on the evening of 19 March 2002. She diagnosed colic and did not refer him to hospital.

The claim failed at first instance. Mr Justice Owen held that, if Kieran had been referred to hospital on 19 March 2002, he would have been prescribed antibiotics and this would have prevented the development of bacterial meningitis. However, Dr Gunn had not been negligent when she decided against a hospital referral.


Lord Justice Maurice Kay dismissed the Claimant’s appeal on the basis that there was no material error in Owen J’s approach or findings, observing in particular:

  • Owen J had to determine facts in relation to events which occurred over a decade before the hearing, in the context of a claim which was only brought to the attention of Dr Gunn seven years after those events.
  • Owen J had accepted the evidence of Dr Gunn in relation to the consultation because he considered that her reconstruction was reliable, even though it was based in part on an inadequate note. It was also based on her evidence about her usual practice.
  • The agreed evidence of the microbiologists was that Kieran did not have meningitis on the evening of 19 March 2002 but was probably bacteraemic. A bacteraemic child may or may not exhibit symptoms of obvious illness.

Whilst obviously having sympathy for the Claimant and his parents, Maurice Kay LJ recognised that whilst this form of meningitis is very rare, the Claimant’s history of symptoms as presented to the Defendant is very common.