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Published 27 julio 2017
The recent Court of Appeal case of FB (by her mother and litigation friend WAC) v Princess Alexandra Hospital NHS Trust  EWCA Civ 334 considered whether there is a difference in the standard of care required of a Senior House Officer (SHO) compared to a more senior doctor, in the context of taking a patient history in Accident and Emergency.
On 18 September 2003 the Claimant, FB, who was 13 months old, became unwell with a temperature, with their symptoms persisting over the next week. After receiving GP advice to stay cool and persist with Calpol, on 28 September 2003 the Claimant's mother, WAC, noted that FB was lethargic and her eyes were rolling. WAC telephoned the out of hours service, spoke to a triage nurse and an ambulance was called.
FB arrived in A&E at 04:45 hours. She was seen by a SHO at 05:20. The paramedic's note, recording lethargy and eye rolling, was not made available to the SHO. The SHO did not elicit a history of eye rolling from WAC or establish that FB had been brought to hospital by ambulance. The SHO diagnosed a respiratory tract infection and discharged her. However, FB's condition worsened and she returned to A&E 12 hours later. On this occasion she was referred to the paediatricians and given antibiotics. On 1 October 2003 FB was transferred to the Great Ormond Street Hospital where she was diagnosed with pneumococcal meningitis and multiple brain infarcts. FB suffered devastating injuries, including permanent brain damage and deafness.
FB brought a claim against the Trust alleging that the SHO was negligent in failing to take an adequate history and in failing to conduct an adequate examination. It was FB's case that had the SHO performed either task to a competent standard she would have been bound to refer her to the paediatric team. It was agreed between the parties that had FB been referred to the paediatric team she would have been given antibiotics which would have prevented the spread of infection and that she would not have suffered any injury.
At Trial the SHO said the Claimant had presented normally, that she was not lethargic (contrary to the parents' evidence) and that the parents had not mentioned eye rolling. The SHO said that if WAC had mentioned eye rolling in the context of a high fever she would have considered this might have been a febrile convulsion and therefore would have referred FB to the paediatricians.
The Judge found that FB, given the level of bacteraemia she must have had when seen in A&E, would have appeared more unwell than a child with a simple respiratory tract infection. However, he did not accept the parents' evidence as to obvious lethargy and concluded that the signs were subtle and would only have been noticed by a more senior doctor. He found that the SHO had not asked the parents why they had brought FB to A&E, however he found only a more senior doctor would have elicited a history of eye rolling on detailed questioning, [and once the subtle signs had been detected]. He found that it was not substandard practise to fail to elicit a history of eye rolling. The judgment was that there was no breach of duty and the case was dismissed.
The Claimant appealed, arguing that the Judge had conflated the standard of care expected of a SHO when confronted with subtle signs on examination and the standard expected of a SHO in obtaining a history. The issue for the Court to consider on appeal was whether there should be a difference in the standard of care required for a SHO, as compared to a more senior doctor, when taking a patient's history.
The main judgment was given by Lady Justice Thirwall. She acknowledged there is often a correlation between complexity of task and the seniority of a doctor. She found that, unlike examination, where the ability to identify subtle signs comes with experience, there was no evidence that enquiring why a child has been brought to A&E could only be done by a senior doctor. The SHO had failed to elicit why FB had been brought to hospital in the early hours, which was probably the result of a flawed approach to history taking. The SHO had, mistakenly, believed that where a parent had witnessed something frightening it was not necessary to specifically ask about that because it would always be volunteered. Further, the SHO, having formed the view that FB was well, did not think about it or did not consider it necessary to establish why FB had been brought to hospital. She did not ask the obvious question; therefore, the conclusion that the history taking was not carried out to the standard expected of a competent SHO was inevitable. History taking was a basic skill that hospital doctors at all levels were expected to possess. The appeal was allowed.
Lord Justice Jackson made further comments which are of interest. He said that the Judge's conclusion at first instance raised the issue of what standard of skill and care was required by law for a young professional early on in their career: Courts generally disregard the personal attributes and experience of defendants but in a professional context, defendants have to exercise the skill and care of a reasonably competent member of their profession. On the one hand, it is harsh to disregard a defendant's limitations and hold them liable for that which they cannot help doing, but on the other hand the Claimant is entitled to expect that those they encounter adhere to certain standards.
In professional negligence the standard required is set out in the case of Bolam –v- Friern Hospital Management Committee , where it was held that the defendant must exercise the skill and care of a reasonably competent member of their profession. Lord Justice Jackson said that the standard of care required of a hospital doctor should be judged by the standard of the post which they are filling. Therefore, where a doctor is not performing their normal role they are to be judged by reference to the post they were fulfilling at the material time, and experience or length of service should not be taken into account. Where a doctor is put in a particular position by a Trust but does not possess the requisite skills, the Trust would be liable as per the case of Wilshire –v- Essex Area Health Authority .
This case reiterates that the relevant standard of care and skill for hospital doctors is that of a reasonably competent practitioner working in the specific role in which the doctor was working at the material time. The Court made clear that the experience or length of service of the doctor is not relevant when considering breach of duty. The case also underlines the importance of doctors eliciting the correct history from the patient and clarifying exactly why they are presenting at hospital. It is not sufficient for the doctor to assume the patient (or FB's parents in this case) will always volunteer the information. For more information on this case, or advice relating to similar matters, please contact Neil Rowe, partner, on +44(0)191 404 4044 or at firstname.lastname@example.org.
+44 (0)191 404 4044
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