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Nadia Whittaker instructed by Bevan Brittan LLP successfully defends on liability a claim in respect of an alleged delay in the diagnosis and treatment of necrotising fasciitis leading to Fournier gangrene and a loss of both testicles

Appearing before Hugh Southey KC sitting as a Deputy High Court Judge at the Royal Courts of Justice, Nadia Whittaker instructed by Victoria Robinson of Bevan Brittan LLP successfully defends on the issue of causation a claim for damages by Mr Dalchow (represented by Dr Peter Ellis of Hailsham Chambers) in respect of an alleged delay in the diagnosis and treatment of necrotising fasciitis.

The Claimant, aged 48 years at the time, underwent uneventful day surgery to excise a right testicular epididymal cyst on 14 April 2015 performed at St George’s Hospital. He was discharged as planned with pain/discomfort described as being “within patient’s own acceptable limits”. Subsequently, he developed significant pain and presented at 04.30 hours on 15 April 2015 at the accident and emergency department of St George’s Hospital reporting pain scored as 10/10. Upon admission, he continued to experience significant pain with maximum pain scores recorded throughout the morning despite opioid analgesia. He was transferred to the Defendant’s urology team and examined by a Specialist Registrar at 11.00 hours. The Specialist Registrar identified some discolouration and extreme tenderness and discussed the case with a Consultant who then examined the Claimant at 12.00 hours. The Consultant prescribed antibiotics (although these were erroneously not administered until much later in the day) and requested an urgent ultrasound scan. The ultrasound scan was performed at 15.12 hours with a report completed at 16.26 hours. The Claimant was then examined again by the Specialist Registrar at 18.15 hours at which time new blistering was identified, a clinical sign of necrotising fasciitis. The diagnosis of Fournier gangrene was made shortly thereafter. No criticism was advanced by the Claimant of his management following the examination at 18.15 hours or the surgery that took place at 20.00 hours. The Claimant underwent multiple debridements and lost both of his testicles.

Although initially the Claimant pursued allegations in respect of his management at the accident and emergency department, these were abandoned and, by the time of the trial, the focus was on the assessment by the Specialist Registrar at 11.00 hours. The Claimant alleged that, following that assessment, there was a failure to administer antibiotics and request an urgent ultrasound scan. Although it was the Claimant’s pleaded case that an earlier ultrasound would have enabled a differential diagnosis of cellulitis, epididymitis, abscess and necrotising fasciitis, his legal team made it clear at trial that it was accepted that the ultrasound scan in itself would not have enabled a diagnosis of necrotising fasciitis. It was argued that the ultrasound scan would have ruled out the possibility of a haematoma, leaving the Claimant’s extreme levels of pain unexplained, calling for action. It is the lack of explanation for the unusual presentation characterised by significant pain that the Claimant contended should have led the clinicians to consider taking him to theatre earlier than he was.

The Claimant contended that the ultrasound scan should have been performed within 2 hours of the assessment at 11.00 hours and that he would have then been taken to theatre by no later than 15.00 hours. He contended that the alleged delay of 5 hours in taking him to theatre made a difference between viability and non-viability of his testicles. A few weeks before the trial, the Claimant re-re-amended the Particulars of Claim to allege in the alternative that the delay made a material contribution to what he alleged was “an indivisible injury, namely skin and soft tissue necrosis and loss”, leading to loss of testicles. It was expressly recognised by the Claimant that earlier antibiotics alone would not have enabled him to achieve a material difference in the outcome.

The Defendant admitted that antibiotics should have been administered earlier but denied that the timescales within which the ultrasound was performed and reported were outside the parameters of reasonable. The Defendant also denied that an earlier ultrasound scan would have led to the Claimant being taken to theatre any earlier on the basis that without the blistering that was identified at 18.15 hours, there would have been no basis for a diagnosis of necrotising fasciitis and therefore no surgical target. The Defendant denied causation both on the ‘but for’ principles and on the basis of material contribution.

The Judge considered that there was unexplained delay between the Consultant requesting an urgent ultrasound at 12.00 hours and the ultrasound request form being completed at 14.39 hours (see paragraphs 42-48), which he contrasted with the ultrasound being performed within 33 minutes of the request. In the Judge’s assessment, the delay in requesting the ultrasound scan was inconsistent with the clinicians’ own view that the same was required urgently (see paragraph 64). The Judge felt that this raised a prima facie case that needed to be answered with evidence as to why it was not practicable to raise the request earlier. Applying the principles in Wisniewski v Central Manchester Health Authority [1998] Lloyd’s Medical Report 223, the Judge then drew an adverse inference from the absence of the evidence from the Defendant as to why the ultrasound scan was not requested within 2 hours of the assessment by the Consultant (see paragraphs 65 and 96).

Having found the breach of duty in failing to complete an urgent ultrasound scan by 14.00 hours, the Judge accepted that the report from this investigation would still have been available within a similar timeframe as it was in fact available. He therefore concluded that the report would have been available by 15.14 hours (see paragraph 98), i.e. 1 hour and 12 minutes earlier than it was at 16.26 hours. As the Claimant had already accepted that the ultrasound scan would not have enabled a diagnosis of Fournier gangrene, the main issue with regards to the timing of the surgery was whether or not the Claimant would have been taken to theatre without a surgical target. The Judge accepted the evidence of the Defendant’s clinicians that they would not have taken him to theatre without such a target (see paragraphs 100-103) and applying the Bolitho causation check, the Judge also concluded that this would have been reasonable within the Bolam principles (see paragraphs 104-113).  He therefore concluded that an earlier ultrasound scan would not have made a difference to the timing of the surgery, meaning that the Claimant lost on the issue of causation.

Obiter, the Judge concluded that if he was wrong about the timing of the surgery, it was not possible for him to conclude that the Claimant suffered a qualifiable loss. Although earlier surgery would have resulted in a better outcome, it was “impossible to assess how much better” it would have been (see paragraph 128). Whilst the Claimant’s pleading on the issue of material contribution could have provided a mechanism by which he could have argued this point, the Judge rejected it on the basis that the Claimant pleaded that the material contribution was to an “indivisible” injury whereas binding authority from Ministry of Defence v AB  [2010] EWCA Civ 1317 (the Atomic Veterans case) compelled the conclusion that the principle of material contribution only applies where “the disease or condition is “divisible” so that an increased dose of the harmful agent worsens the disease”. Although the Judge found that the condition that the Claimant suffered was divisible in the sense required by the authorities, this was “obviously too late to amend the pleading” (see paragraph 131).

Whilst not mentioned in this judgment, the parties advanced submissions on Mr Justice Soole’s decision in Thorley v Sandwell & West Birmingham Hospitals NHS Trust [2021] EWHC 2604 in which the Court similarly concluded at [147]-[151] that the Atomic Veterans case is binding authority that the test of material contribution has no application to a case where there is indivisible injury and one tortfeasor.

Key messages from the judgment:

  • The approach taken by the Court in this case is a warning to the parties in cases concerned with allegations of delay in the investigations that it may not be sufficient to lead evidence from an expert supporting the period of time taken to complete the investigation under the Bolam/Bolitho principles and that in some cases where there is a prima facie case of unexplained delay it may also be necessary to lead factual evidence explaining why earlier completion of the investigations was not reasonably practicable.
  • Causation in delay cases is often a thorny issue but the principles of material contribution cannot be prayed in aid without a supporting pleading properly invoking the basis for it.

The judgment can be found here.


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