UK: Misguided Treatment

Last Updated: 30 November 2001
Article by Ross Brain

Co-written by Patricia Hitchcock

At inquest, neglect is now more broadly defined in medical cases, say Patricia Hitchcock and Ross Brain

MH WAS 38 years old when he died at Medway Maritime Hospital, Gillingham, Kent on 16 November 1999, of multi-organ failure due to sequestration of sickle cells during a severe sickling crisis. MH suffered from haemoglobin SC disease, a sickle cell disorder, and had a long history of admissions. He had suffered two lung crises in the mid-1980s but was in reasonably good health between crises.

He was admitted on 11 November with all the typical features of a painful sickling crisis and was treated with diamorphine and fluids. The following day, a Friday, he was still in some pain and had developed basal crepitations and a slight cough; the plan was to send sputum for culture and to treat any pyrexia with antibiotics. MH was not seen by a doctor over the weekend despite continuing pain and pyrexia and was not given antibiotics. On Sunday night, he collapsed with severe diarrhoea, fecal incontinence and vomiting. No doctor attended. By Monday morning, he had deteriorated considerably. Blood chemistry results showed raised urea, creatinine and potassium levels. Dextrose, insulin and calcium were given. Later that day, the pain was generalised in back, buttocks and abdomen and was reported to be far more severe than that experienced in previous sickling crises. His haemoglobin had dropped from 11 to 9.5 g/dl.

On Tuesday morning MH was confused and distressed and in severe pain; he was bleeding per rectum and had significant abdominal tenderness around the liver. Sickling, involving the brain and viscera, was diagnosed; haematology results returned in the late morning showed 5.2 g/dl. Six units were cross-matched. Before any blood had been transfused, at about midday, he collapsed with unrecordable blood pressure and fixed and dilated pupils. He was transferred to ITU, where he became tachycardic and a haemoglobin of 2.0 g/dl was recorded. There was ample clinical evidence of disseminated intravascular coagulopathy. Resuscitation was discontinued shortly before 14.30 and MH was certified dead at 17.50.

Coroner admits expert evidence

The coroner, who had initially intended to rely on the evidence of the treating doctor, was persuaded to admit expert evidence from Professor Sir David Weatherall, acknowledged by all parties to be the leading world authority on sickle cell disorders.

He emphasised the importance of careful monitoring and particularly criticised the 48hour gap in medical treatment over the weekend, the failure to consider exchange transfusion at any time or to give antibiotics. By the time that direct transfusion was considered, the window of opportunity had closed. In Professor Weatherall's view vigorous transfusion therapy was clearly indicated on the Sunday evening and such treatment, even given on the Monday, would probably have saved MH's life.

The coroner declined to leave a verdict of unlawful killing to the jury but directed them on natural causes, 'natural causes to which neglect contributed' and an open verdict. He defined neglect in accordance with the leading case of R v HM Coroner for North Humberside & Scunthorpe, ex p Jamieson [1994] 3 WLR 82 as 'a gross failure to provide medical attention' and directed the jury that to return such a verdict they must believe that 'there was a clear causal connection between the gross failure and the death'. The jury returned a verdict of natural causes to which neglect contributed.

Test for neglect

The case is interesting because the Jamieson test had formerly been considered to require a total absence of care, or a failure to take an obviously necessary step (such as call a doctor). The tests for neglect set out in Jamieson require in this context that the need for basic medical attention must be obvious, the patient must be dependent on others to provide that attention and there must be a gross failure to provide or procure it.

Poor medical care was held not to meet this test in at least two cases following Jamieson. In R v HM Coroner for Birmingham, ex p Cotton [1995] 160 JP 123, the court took the view that, where death resulted from a clinical judgment (which might or might not be negligent), the issue must not be left to the jury. The issue was also raised in R v HM Coroner for Surrey, ex p Wright [1997)] QB 786, a case where death resulted from failure to maintain a patients airway during minor dental surgery and the coroner had declined to empanel a jury and returned a verdict of accidental death. Tucker J, determining the application for review, agreed that, despite the coroner's finding of fact that death resulted from lack of care the verdict was appropriate; he held that neglect must be 'continuous or at least non-transient', that it was not an appropriate description of the negligent lack of care here and reiterated that matters of negligence are better decided in a civil action by a judge. It seemed that any medical treatment, however inept, would lift the case out of the 'neglect' bracket.

The first attempt to broaden the rule came in Re Clegg (reported as R v HM Coroner for Wiltshire, ex parte Clegg [1996] 161 JP 521). This was a case of aspirin overdose, where the deceased reached hospital some 12 hours before she died; the coroner considered the Jamieson test and allowed the verdict to go to the jury although some care had been provided, since there had been a failure to treat the aspirin poisoning from which the patient was dying. The Divisional Court, although alerted to the ratio of Cotton, supported the coroner's approach (the editors of Jervis on Coroners comment that this directly contradicts Cotton and that the court had neither a transcript nor a report of that judgment).

MH: treatment misguided

In this case, MH had received medical and nursing treatment over a period of five days in hospital and his true condition was correctly diagnosed. Nonetheless, it was argued that the treatment given was so misguided that it was of little more use than no treatment at all. The coroner accepted that in the circumstances the verdict could properly be left to the jury. Essentially, the test was here broadly applied to allow a jury to consider whether or not medical treatment actually given was so poor (or irrelevant to the patient's true condition) as to amount in fact to a gross failure to provide basic medical attention.

The correctness of this approach has now been confirmed by the Court of Appeal in R v HM Coroner for Inner London North, ex p Touche (21 March 2001, unrep). Mrs Touche died at the Portland Hospital of a cerebral haemorrhage 11 days after giving birth to twins, and the inquest heard expert evidence to the effect that the failure to monitor her blood pressure and identify severe hypertension was 'astonishing'.

Conclusion

It is encouraging that the courts are no longer prepared to ignore issues relating to the quality of treatment at the inquest stage; it is to be hoped that some of the delays, cost and risk of clinical negligence litigation may be alleviated by this early scrutiny.

It also underlines the need for families to be properly represented at the inquest stage: in the recent case of R v HM Coroner for Inner West London, ex p Scott (13 Feb 2001, unrep), for example the family's solicitor conceded at the inquest that neglect was not open to the jury where a suicidal schizophrenic man hanged himself in custody. The Administrative Court (Keene LJ and Penry-Davey J) were persuaded otherwise and, quashing the jury's verdict, ordered a fresh inquest.

Patricia Hitchcock is a barrister practising from Cloisters chambers. Ross Brain is a solicitor in the clinical negligence department at Kingsley Napley.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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