FB v. Princess Alexandra Hospital NHS Trust  EWCA Civ 334, 12 May 2017, Court of Appeal – read judgment
All the advocates in this case were from 1 Crown Office Row, Elizabeth-Anne Gumbel QC for the claimant/appellant FB, and John Whitting QC and Alasdair Henderson for the hospital. None of them were involved in the writing of this post.
FB fell ill with meningitis when she was just one. The illness was diagnosed too late, and she suffered brain damage. This appeal was against the judge’s dismissal of the claim against the hospital, where she was seen, some time before she was admitted and the infection treated. All agreed that avoiding the time between being seen and being admitted would have led to the brain damage being avoided.
But should the junior doctor have picked up enough about her condition to admit her?
A little after 0400, FB’s mother phoned the out of hours service, as a result of which a triage nurse phoned the ambulance service, and said that FB had a temperature of up to 40C, was rolling her eyes, and her breathing was a bit erratic. The paramedics arrived swiftly, and mother gave them the same information. The ambulance arrived at the hospital at 0450, and FB was seen by the junior Senior House Officer at 0520.
For whatever reason, the SHO, Dr Rushd, did not elicit the information which had been passed on to the triage nurse and the ambulance service. This case turned on why this was. The SHO accepted that, had she been told this, she would have referred FB to the paediatricians, who would in all probability have treated her promptly. But the SHO’s examination described an apparently well child – that was the conundrum for the judge.
The oddity was that in the course of an otherwise full note Dr Rushd did not record why the parents brought FB in. The judge concluded that a consultant would have elicited this, but that it was not substandard for Dr Rushd not to have done so. Hence, the claim was dismissed by the judge.
The Court of Appeal, in Thirlwall LJ’s judgment, accepted that the judge seems to have conflated two expectations of an SHO, (1) what she might have reasonably been expected to pick up on examination, and (2) what she might have picked up on taking a history.
The upshot was that the CA decided that, contrary to the judge, the SHO should have elicited the eye-rolling history, in which case liability established.
History-taking is not some algorithmic process (nor is cross-examination by an advocate, and if it tries to be, it often falls flat on its face, because the witness says something deeply unexpected). It very much depends upon the first answer, where the doctor goes with the second question, and the second answer, where the third question goes etc etc. So lots of senior officials in NICE cannot prescribe that A question must be followed by B, and B by C.
But, all that said, it (to an outsider to the case) does rather speak for itself that the SHO should have got out of the parents what it was that caused them to get up at 03-something in the morning to take their child into hospital.
So the CA reversed the judge’s decision and found for FB in negligence.
Jackson LJ, a renowned professional negligence lawyer in practice, added an interesting judgment, agreeing with Thirlwall LJ, but expanding on the issue posed by a learner doctor being the one in the firing line.
Do you judge their performance by the fact that they are a learner, or that the NHS is employing them as a doctor? The classic case in the law generally is the learner driver who was judged by the standards of a competent and experienced driver. Bit unfair on them, but equally unfair on the rest of the world by whom they might be injured, as they judder or weave or speed their way in the general direction of competence.
The key case on this is Wilsher v Essex AHA  1 QB 730. The CA held that a hospital doctor should be judged by the standard of skill and care appropriate to the post which he/she was fulfilling, for example the post of junior houseman in a specialised unit. That involves leaving out of account the particular experience of the doctor or their length of service. So if the NHS makes them do something which is above their pay grade, then so be it: if someone is injured thereby, then it is not unreasonable to expect the NHS to pay for it.
As Jackson LJ put it at 
Thus in professional negligence, as in the general law of negligence, the standard of care which the law requires is an imperfect compromise. It achieves a balance between the interests of society and fairness to the individual practitioner.
He supported the decision finding the SHO negligent – but not without sympathy with the plight of junior doctors. They
work long hours under considerable pressure. They are often involved in life and death decisions. The pressures can be even greater when they are working all night, as Dr Rushd was here. If mistakes are made, it is devastating for the patient and it is expensive for the NHS trust. Doctors, however, are human. Even good and conscientious doctors may, from time to time, fall short. That is not a reason to lose heart or (even worse) to abandon medical practice. Those who have learnt from past mistakes often have even more to offer.
Let NHS managers and the ministers who make the macro-decisions about the NHS read and think about this. Part of the problem has been to ignore the risk of massive damages liabilities in the pursuit of cost-cutting. Each brain damage case in which it is found liable costs the NHS many millions of pounds.
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