The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
The anxious parents of a 13-month-old girl took her to the accident and emergency department of their local hospital at 4 am, as her mother noticed that she had a high temperature and, at home, her eyes were rolling.
A senior house officer examined the child in the accident and emergency department but failed to ask why her parents brought her in; the doctor diagnosed a respiratory tract infection and discharged her. She went back home, but her condition worsened, and she was readmitted to the same hospital later that day and diagnosed with pneumococcal meningitis. The medical staff administered antibiotics, but, unfortunately, it was too late to prevent permanent brain damage and deafness.
The hospital accepted that if they had admitted the girl and administered antibiotics on the first presentation, then she would not have suffered the brain damage and deafness. However, the issue before the court was whether the senior house office had been negligent in not admitting the child when she came in at 4 am.
At the first hearing, the senior house officer said that the child had presented normally and that her parents had not mentioned the eye-rolling, and the Judge found that the senior house officer had not asked them why they had brought the child to accident and emergency in the early hours of the morning. The Judge also concluded that only a more senior doctor would have noticed the child’s symptoms during the examination or asked the parents about what had prompted the emergency visit. The court concluded it had not been substandard practice for the senior house officer to fail to elicit the history of eye-rolling.
The case then went to the Court of Appeal to determine whether there was a different standard of care in taking a patient’s history as a senior house officer compared to a more senior doctor.
The Judges in the Court of Appeal acknowledged that in clinical negligence cases the concern is when a medical professional misses something relating to a particular task. Often there is a correlation between the complexity of the task and the doctor’s seniority, but the standard of competence required is the same no matter who performs the task.
In this case, the Court of Appeal found that there was no difference between the standard required of a senior house officer or a consultant when taking a patient’s history in accident and emergency. History taking is not a one-size-fits-all task i.e. different skills are required when taking histories from different groups, such as children or the elderly, which is why there are no pre-set questions. An accident and emergency doctor has to use appropriate techniques to find out why the patient is there at that particular time.
The standard of care imposed on the history taker was the same no matter the seniority the person taking the history. In this case, this was a young child with anxious parents arriving in the early hours of the morning. The fundamental question was “Why have brought your child here?”. The Court of Appeal found that the Judge at the first hearing had relied on the evidence that most children brought to accident and emergency are not really unwell. This isn’t enough to explain why the senior house officer failed to take the necessary history to identify the why the child was unwell, particularly where the parents were willing to give the information. The Judge accepted that, if asked, the parents would have mentioned the eye rolling. The Judge at the first hearing found that the senior house officers’ belief that the child was alert and well should have led her to ask why the parents had brought the child to accident and emergency at that particular time. The Court of Appeal found that there was no evidence that the need to question the reason for a 4 am visit would only be apparent to a consultant, and that this type of questioning was within the competence of the senior house officer.
The first Judge's view that there was a lower standard of care for a senior house officer in history taking and that only a more senior doctor would be expected to elicit the eye-rolling information from the parents, is unsustainable. History taking is a basic skill that hospital doctors at all level were expected to possess and, in this case, it was not carried out to the standard expected of a competent senior house officer.
The Court of Appeal found that the senior house officer had breached the child's duty of care, and established negligence; raising a need to assess damages for the injury and consequential financial loss and expense for the duration of the child's lifetime.
This case is typical of clinical negligence cases that the team at Anthony Collins Solicitors handles and we have handled cases involving meningitis diagnosis delays. Urgent diagnosis and treatment of meningitis are critical to avoiding or minimising significant and life-changing injuries.
Anthony Collins Solicitors has a dedicated specialist clinical negligence team, with Legal 500 and Chambers and Partners recommending Anthony Collins Solicitors as one of the leading law firms in clinical negligence in the West Midlands.
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