In cases where it has been accepted that the care provided fell below the standard to be expected by a responsible body of medical opinion acting reasonably, in one or more respects, a defendant can often feel on the ‘back foot’ when trying to defend the balance of any allegations of breach of duty, or worse still, causation only.
There is real concern that once admissions have been made, judicial sympathy will naturally lie with the claimant, making it more likely that any differences in expert opinion will be resolved in their favour. While there is no doubt that making admissions increases litigation risk, the court still has to satisfy itself that liability should rightfully attach.
Gill Stoll discusses how the court approached this in her recent case, which proceeded to trial before His Justice Parker in the Manchester District Registry in November 2014 (for full judgment, please visit: http://www.bailii.org/ew/cases/EWHC/QB/2014/4294.html).
The deceased was morbidly obese, with hypertension and a history of previous myocardial infarction. On 4 January 2010 he arrived at A&E at approximately 08:18, complaining of chest pain and dizziness. An ECG showed a ventricular tachycardia (VT) with an abnormal heart rate of 230 beats per minute.
It was decided that he required immediate treatment by way of synchronised cardioversion (electric shocks to try to convert the heart back to normal sinus rhythm). The preference was for the procedure to be undertaken with anaesthetic support, however, although an anaesthetist was able to assess him briefly, he was subsequently called away to a more pressing emergency. The A&E doctor proceeded to administer the shocks under conscious sedation, with one shock given at a charge of 50 joules, two at 100 joules and one at 150, but he remained in VT.
Cardiology advice was sought and, as a result of a serious communication error, 8mg of magnesium sulphate was administered as a bolus, being four times the appropriate dose. The deceased reported an unpleasant burning sensation and entered cardiac arrest. Despite lengthy resuscitation attempts, he sadly passed away. A post mortem showed a grossly abnormal heart, with extensive coronary artery occlusion.
Breach of duty
It was accepted at the outset that there had been a breach of duty in terms of the magnesium overdose. However, it was also alleged that it was inappropriate to proceed to cardioversion in the A&E department without cardiology and anaesthetic assistance as the deceased’s condition was not sufficiently urgent so as to justify this. This was denied.
At trial, the judge was not impressed by the claimant’s expert’s attempts to downplay the reference to ‘chest pain’ in the records and agreed with the defendant’s A&E expert that the deceased was clearly unstable, such that one would not wait for further deterioration.
The pharmacology experts agreed in their joint statement that the immediate cause of death was the excess dose of magnesium and so the issue was whether the deceased would have died at that time in any event.
The claimant’s cardiology expert indicated that, if he had been treated appropriately (i.e. if he had been treated in a controlled setting, rather than in the A&E department), and but for the overdose of magnesium, he would have come out of the VT and survived a further five years.
Conversely, the defendant’s cardiology expert maintained that, by the time the magnesium was administered, the deceased’s condition was such that he would have died within a matter of seconds or minutes in any event as he had an irreversible tachycardia due to his obesity and coronary heart disease.
The defence maintained that an acceleration of the deceased’s death by a matter of seconds or minutes should be considered ‘de minimis’ and not sound in damages. Helpfully, counsel for the claimant accepted in her skeleton argument, before the trial began, that the claimant would have to show that the deceased would have lived for a significant period of time in order to recover damages, such that the court would not have to be troubled by submissions on ‘de minimis’.
Ultimately, the judge preferred the defendant’s evidence, noting that our cardiology expert had extensive practical experience of performing cardioversion in an emergency setting. He found that the deceased was in a critical condition when treatment began, noting that cardioversion was then attempted four times without success (prior to the overdose). He accepted our expert’s view that, even in the modern era of technology, cardioversion is unlikely to be successful in patients with such a grossly abnormal heart and morbid obesity.
We are now seeking to recover our costs.
Stand firm in appropriate cases
This case shows that it is possible to successfully defend even the most emotive and sensitive cases to trial. This is because a claimant has to establish not only that there has been a breach of duty, but that the said breach has had an adverse causative effect. It is therefore important to assess all of the available evidence and weigh up how a court might approach an analysis of the respective medical evidence, and stand firm in the right cases.