I relatively recently settled a clinical negligence case that raised an interesting issue relating to the standard of care to be applied to an A&E SHO and, coincidentally, a not dissimilar issue was before the Court of Appeal in March this year, with judgment being given in May.

In the court of appeal case of FB[1], the claimant was appealing against the decision of Mr Justice Jay who had concluded that the history taken and examination performed by an A&E SHO had not been negligent. In short, whilst at home early in the morning, FB, aged just over 1 year old, became unwell with a high temperature, erratic behaviour and eye rolling. FB’s parents called the ambulance service who took her to A&E where she was seen by an SHO. The SHO diagnosed an upper respiratory tract infection (URTI) and discharged FB home. Sadly, FB deteriorated and was re-admitted 12 hours later with pneumococcal meningitis and multiple brain infarcts causing permanent brain damage.

With respect to the examination, FB’s parents’ evidence was that she was lethargic and, although confirmed by the ambulance records, the SHO refuted this. The judge found that the experts concluded that with such a high level of bacteraemia FB would likely have shown “abnormal state variation” (ASV) when the SHO examined her and would have appeared more unwell than if she had just had an URTI. Nevertheless, the judge also found that the clinical signs of ASV which FB had were subtle and would need an experienced eye to detect them, concluding that it would not be unacceptable for an SHO to fail to do so. Regarding the history, the SHO had failed to record that FB had had eye rolling, which is what the judge found was the factor that precipitated the A&E attendance. FB’s parents would have provided the information about eye rolling if they had been asked. The judge found that an A&E consultant or a paediatrician would have embarked upon a line of enquiry that would likely have elicited the eye rolling history, but again concluded the SHO was not negligent for failing to do so.

The appeal concerned the standard of competence of a District General Hospital A&E SHO taking a history and performing an examination. The leading judgment was given by Lady Justice Thirlwall. Unlike the examination point, on which the expert evidence was that the ability to pick up subtle signs came with experience which would only be apparent to a consultant, with respect to the history the expert evidence supported that an A&E SHO should have asked FB’s parents what had prompted the A&E attendance and it was not good enough to expect parents to volunteer information such as eye rolling: it was for an A&E SHO to elicit the reason a child is being brought to A&E. Accordingly, the Court of Appeal considered that this failure was a breach of duty and the trial judge had erred as there was no evidence that there was a lower standard of care for an SHO than for a consultant with respect to history taking in A&E.

Lord Justice Jackson added some interesting comments. He noted that the general rule is that the court disregards the experience and personal attributes of the defendant in determining whether they have been negligent. He noted the case of Wilsher[2], in which it was considered by the Court of Appeal that a hospital doctor was to be judged by the standard of skill appropriate to the post they were fulfilling at the material time and their particular experience and length of service were to be left out of account; further, a health authority was liable if the doctor it put in a particular position did not possess the requisite skills. In the FB case, the A&E SHO was to be judged against the standard of a reasonably competent A&E SHO: that she was “relatively inexperienced” did not diminish the required standard; nor did the fact that she had some paediatric experience elevate it.

My case was very different factually but raised a similar issue.

Briefly, the case concerned a very unpleasant finger injury caused by a fall down some stairs, with my client attending A&E and being reviewed by an A&E SHO. The SHO took a history, examined the swollen finger, arranged for an x-ray, which was normal, diagnosed a “soft tissue injury” and discharged my client to the care of the GP. There was a factual dispute as to what exactly was said to my client about follow-up but, nevertheless, he did not attend for follow-up until a severe contracture had formed resulting in permanent deformity even after significant subsequent attempted reparative surgery (although there was an issue with the performance of some of that surgery). The claim against the hospital revolved around the management by the A&E SHO and, essentially, that an incorrect working diagnosis of “soft tissue injury” had been made and proper conservative treatment for what in fact was a serious finger “pulley” injury had negligently not been implemented; and, had it been, there would have been a very good recovery with no long term complications (e.g. a “swan-neck” deformity).

At the point of exchange of factual witness statements, it became clear from the A&E SHO’s CV that he was, in fact, a very experienced orthopaedic surgeon who was working full-time as a “Specialty Grade Orthopaedic Surgeon” at the defendant hospital trust but who was working as a locum A&E SHO when he treated my client.

This raised the question as to what was the standard against which this doctor should be judged?

In their expert discussions, the A&E experts agreed that: it would be expected that a reasonable doctor would use their knowledge and experience in the management of their patients; an A&E SHO would not be expected to consider a finger pulley injury in this particular case; it would have been reasonable for an A&E SHO to have relied upon advice from the orthopaedic Specialty Grade Surgeon if the latter had been available in A&E to give that advice; accordingly, the standard of care of the orthopaedic Specialty Grade Surgeon acting as a locum A&E SHO was to be judged by that of an orthopaedic Specialty Grade Surgeon and not an A&E SHO, and they would defer to the orthopaedic experts on the point.

The orthopaedic experts agreed that: it was mandatory for a doctor to use his knowledge and experience in the management of his patient even if in an A&E rather than an orthopaedic setting; the orthopaedic surgeon’s own knowledge and experience should make a difference to the standard of care against which he was to be measured; and, accordingly, the treating doctor should have conducted a more thorough examination of the hand than an A&E SHO would be expected to have done, should have had a greater appreciation of the potential seriousness of the finger injury and should have arranged appropriate specialist hand clinic follow-up.

These agreed views were highly relevant, as in essence they meant that the experts agreed that an A&E SHO would not be expected to have considered the diagnosis of a finger pulley injury but an orthopaedic Specialty Grade “acting down” as an A&E SHO would have been expected to do so, with the appropriate follow-up then being arranged.

The issue was not tested in court because the case settled for just shy of a six-figure sum a couple of weeks before trial. Nevertheless, the view taken by the experts in my case should perhaps be compared and contrasted to the comments made by Jackson LJ in the FB case, in particular his comment (at paragraph 63 of the judgment[3]) that: “… the fact that [the A&E SHO] had spent six months in a paediatric department does not elevate the required standard. Other SHOs in A&E departments will have different backgrounds and experience, but they are all judged by the same standard”. Jackson LJ’s view does rather seem to contrast with the views of both sides’ A&E and orthopaedic experts in my case.

I must confess that, despite FB, I am with the experts in my case on the point: I still consider there would have been an inherent illogicality if such an experienced orthopaedic doctor (who had been practising for nearly 25 years since obtaining his FRCS and, in reality, was not far from consultant grade) was to be judged against a lower A&E SHO standard when considering a patient presenting with an injury squarely within the realm of his significant specialist orthopaedic knowledge and experience, in effect enabling him to ignore that knowledge and experience just because he was “acting down” in a more junior, and slightly different, role.

If the doctor in FB had been a consultant paediatrician acting down as a locum A&E SHO, would the allegation about the subtle findings being detected on examination still have been decided in favour of the defendant; or is it a matter of degree?