CUTTING THE PATIENT’S LIFE BY FOUR MONTHS – MEDICAL NEGLIGENCE: Cutting v Islam [2014] EWHC 720 (QB)

Image Ruwena Khan

A General Practitioner who had not fully diagnosed a patient’s condition and had failed to advise him to return if the symptoms persisted was found liable for the shortening of the patient’s life by four months.

  • The standard of care required of a doctor was that he acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that particular art.
  • Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 applied
  • Making a diagnosis of haemorrhoids as the likely cause of rectal bleeding was reasonable.
  • However, failing to advise the patient to return if symptoms did not resolve after treatment was not. That care was below standard and his failure to do so was causative.

For the judgment please click here.

The Facts

C alleged that the life of her husband, Mr Christopher Goodhead (G), had been shortened by the negligence of the D (the GP). Four years before his death on 4th January 2009, G had suffered rectal bleeding and had consulted D on 6th April 2005, who diagnosed haemorrhoids. After G continued to suffer bleeding for the next two years, he had another appointment, when D maintained his original diagnosis but also treated him for constipation. On G’s third visit a fortnight later, D referred him to a consultant colorectal surgeon who concluded in June 2007 that G had rectal cancer, but by then it was terminal. G was a young man, aged 41 at the date of his death. He left four young sons and his wife.

The Allegations

1)    D had not conducted a digital examination and had not asked G to return if symptoms persisted;

2)    G would have survived, or at least have lived longer, with timely treatment.

Bolam Endures

The ordinary skilled man acting in accordance with practice accepted as proper by a responsible body of medical men skilled in that particular art.

The case was heard before Mrs Justice Patterson on 17th March 2014. She noted that the standard of care required by a doctor was set out in the well-known case of Bolam:

“The test is the standard of the ordinary skilled man exercising and professing to have that special skill.  A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.

…he is not guilty of negligence if he has acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that particular art…”

A Factual Battle – Consultations:Who/What/When/Why

A reminder as to why it is imperative that medical practitioners should take a thorough note of their consultations and their referral letters should be clear and precise.

C alleged that there was no digital rectal examination and that it was visual only. G was not told to go back for a review if the symptoms did not clear up. D stated that his standard practice within a consultation would have been to undertake a digital rectal examination. It was part of his process of “safety netting” followed by advice to return if the symptoms did not resolve. In cross-examination D accepted that his notes were not well documented and were substandard. His referral letter to the consultant, he was also forced to agree, was “appalling” although it was sent with the complete medical history.

The Factual Aftermath – Bridging the Evidential Gaps

C was not present at the critical times and D’s notes left “a lot to be desired”. A choice had to be made between their respective recollections, noting that both witnesses were honest and doing the best they could to assist the court.

Although the notes were incomplete, Patterson J concluded that where the notes existed they were the best record of what occurred. Thus it was confirmed that a digital rectal examination had taken place as notation of ‘PR’ had been made, which was a term familiar to many of D’s generation indicating digital rectal examination.

However, Patterson J held that “[t]ogether the written records provide contemporary evidence of someone who, at the time, was not practising to the same high standards that he had taught others, as part of his role as GP trainer, to follow.”  Patterson J found the alleged detail of D’s recollection unconvincing. She therefore concluded that D was seeking to transpose what he would normally do as a standard practice with what he did on this particular day and with this particular patient.”  Whatever the precise words D may have used, G had a clear understanding that he had piles and that was all. There was no record of support that D told G to come back for review if the symptoms did not resolve.   That was unlike the position in May 2007 when there was a clear record.

The Body of Medical Opinion – General Practitioners Serve Up One Of Their Own

The GPs reached agreement that the initial working diagnosis given by D was reasonable although there remained other possibilities. However, it was also agreed that it would have been reasonable to advise that a review would become necessary if the bleeding persisted after the course of treatment or in any event after a maximum of one month.

Causation – Did D’s Negligence Lead To An Early Death?

Patterson J considered the following questions:

1)    Did G have overt metastases in 2005?

2)    Was G’s condition curable in 2005?

3)    Would treatment earlier than 2007 have prolonged G’s life?

The Colorectal Surgery experts agreed that had G been referred in May 2005 investigation would have found a lesion in his lower rectum and an urgent colonoscopy and biopsy would have confirmed the diagnosis of an early T1 or T2 rectal cancer at 5cm from the anal margin. The experts differed as to what was likely to be present in 2005 in terms of the micro metastases. However, by having no treatment until May 2007 G was denied a window of care.

As the case developed the oncological evidence assumed the greater importance. The Oncological experts were of the view that G had microscopic metastatic disease in 2005. D’s expert was of the view that G had overt metastases in 2005; C’s expert disagreed. However D’s expert’s view was based upon a variety of grounds which Patterson J found to be questionable as there were “too many imponderables or uncertainties to be able to conclude that in late spring/early summer 2005 on the balance of probabilities that [G] had overt metastases.” 

On the balance of probabilities, the majority evidence was clear that G, who had micrometastases in 2005, would not have been cured by adjuvant chemotherapy in 2005.

The evidence of D’s Colorectal Surgery expert was preferred by Patterson J who found that any prolongation of life would have been unlikely to have been of significant order and would have been no more than 4 months after 4th January 2009.

No Real Winners – Everyone Suffers

The tragedy of a case such as this is that no party will leave court feeling that they have been successful. C is left without a partner and with a young family to look after and will no doubt long every day for those missed months with her husband. D has a medical negligence case against him which will potentially hamper his practice for years to come. 

 

RUWENA KHAN

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