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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sutcliffe v BMI Healthcare Ltd [2007] EWCA Civ 476 (18 May 2007) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/476.html Cite as: [2007] EWCA Civ 476 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
HHJ JUDGE REDDIHOUGH sitting as a Judge of the High Court
Strand, London, WC2A 2LL |
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B e f o r e :
THE RT. HON. LORD JUSTICE MAY
and
THE RT. HON. LORD JUSTICE LONGMORE
____________________
BARRY SUTCLIFFE (by his wife and litigation friend JULIE SUTCLIFFE) |
Claimant/ Appellant |
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- and - |
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BMI HEALTHCARE LIMITED |
Defendant/Respondent |
____________________
WordWave International Ltd
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7421 4040 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
(instructed by Messrs Boyes Turner) for the Claimant/Appellant
Miss Susan Rodway QC and Mr Vikram Sachdeva
(instructed by Messrs Dla Piper Rudnick Gray Cary) for the Defendant/Respondent
Hearing dates : 2-3 April 2007
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Crown Copyright ©
Lord Justice May :
Introduction
Facts
The judge's judgment
"In my judgment, all the evidence relating to the claimant's condition on the ward between 20.30hrs on 7 November and 08.15 the next morning clearly indicates that he appeared well and to be making a perfectly normal recovery from his operation. He was having a disturbed and mainly sleepless night, which was not unusual for a patient who had had the operation in question under general anaesthetic."
"The nurses on the ward in my judgment were entitled to take account of all the circumstances regarding the claimant. Throughout the night, as I find, in accepting their evidence, the claimant had been well. He was alert, chatting, eating and drinking, watching and operating television, and all of the hourly PCA observations (which were in excess of those required under the Protocol) were normal (as agreed by Drs Simpson and Davies), and the blood pressure at 03.00 was within normal limits. The ICP, as I have observed earlier, allowed for variances including those based on nursing judgment. I consider that, in deciding to allow the claimant to sleep at 06.00hrs for the reasons which they gave, the nurses exercised reasonable clinical judgment in accordance with, as Mrs Johnson maintains, what would be a responsible body of nursing opinion. It is also to be noted that the nurses at 06.00 properly discussed the situation before making that decision, having carried out the PCA observations which were again normal. … Further, in my judgment, on the evidence, nurses on the ward did properly satisfy themselves that the claimant's snoring was normal and that his airway was not compromised."
Expert evidence
"Even if the claimant had been on continuous oxygen overnight, the sequence of events would have evolved in any event and the initial aspiration would not have been prevented as the causes were the morphine and fatigue. At best, the claimant would have been allowed by such oxygen administration a few additional minutes before profound hypoxia occurred."
The radiologically demonstrated "whiteout" was a clinical sign of a single large aspiration. The continuous administration of oxygen would have had no influence on Mr Sutcliffe's gag and cough reflexes. An aspiration of the severity suffered by Mr Sutcliffe was extremely rare. Although a combination of morphine and deep sleep had suppressed the gag/cough reflex, there was no reason to suspect that Mr Sutcliffe's consciousness was impaired to anything worse than a deep level of sleep. It was something beyond normal sleep. But he would have expected him to have been aroused, if a nurse had tried to arouse him. In his experience of patients in this state due to morphine, this is an apparently deep sleep with normal respiration rates, and such patients would be fairly easy to arouse. The claimant, he thought, could have been aroused at 7.00 a.m. or thereafter and would have returned to and remained in the same state of sleep until aspiration occurred. Any minor aspirations after 6.00 a.m. would have been of little consequence. It was a massive aspiration which caused the damage. It was an idiosyncratic result and the performance of none of the observations or tests in the ICP or PCA Protocols would have detected that there was a problem.
The judge's findings on the expert evidence
"In my judgment, Dr Davies, by reference to the literature and from his own experience was able to demonstrate that such suppression of the gag/cough reflex could occur as a side effect of morphine without the claimant being unconscious or unrousable. It follows that I find that at all material times when the claimant was in this state of deep sleep, he would have been rousable. Although this suggestion was initially firmly rejected by Professor Cartlidge, he did concede that with suppression of the cough reflex, the patient could be roused, albeit, he thought, with great difficulty. In so far as Professor Cartlidge's view on this point differs from Dr Davies, I prefer the view of the latter, Professor Cartlidge not having the degree of expertise in relation to morphine, as enjoyed by Dr Davies. It is also important to stress that Dr Davies was postulating suppression of the gag/cough reflex sufficient to allow aspiration, not obliteration of the reflex. I further bear in mind that Dr Davies-Jones supported the opinion of Dr Davies.
I also find on a balance of probabilities, as concluded by Dr Davies, that whilst there is a possibility of some minor inconsequential aspirations having occurred, it was a single major aspiration which rapidly caused the claimant's brain damage within minutes. I particularly find that this scenario is established by reason of the 'whiteout' shown on the chest X-ray."
Grounds of appeal
"These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge's satisfaction that the body of opinion relied upon is reasonable or responsible. 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 informing their opinion. 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.
I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views, both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant's conduct falls to be assessed."
"Well, all I can say is that my experience of patients who are in this state due to morphine, that is, apparently deeply asleep, on morphine with a normal respiratory rate, taking that as a global picture, they would be fairly easy to rouse."
And then at page 1083:
"I think that if she [the nurse] had tried to arouse him at 7 o'clock he would have been fairly readily aroused. And of course he had no more morphine after that time, and so I think he would have remained in the same state until the aspiration occurred."
Given that the judge preferred and accepted the opinion of Dr Davies, these passages of evidence not only clearly support the judge's finding, but also dispose of the case advanced on appeal that the judge did not deal with degrees of rousability. According to Dr Davies, the claimant would have been fairly easy to rouse, the clear implication being that his condition in that respect, as in others, would not have given cause for concern. It is in this context of general interest that Dr Simpson and Dr Davies had agreed at an experts' meeting on 18 April 2006 that, unless continuous instrumental monitoring and continuous observation had been employed, the brain damage could not have been prevented and that intermittent monitoring of levels of consciousness/sedation alone would not have altered the course of events. There is no suggestion on this appeal that there should have been continuous instrumental monitoring or continuous observation.
Lord Justice Longmore:
Lord Justice Auld: