A New Approach to Causation in Clinical Negligence Claims Judith Kelbie

A NEW APPROACH TO CAUSATION IN CLINICAL NEGLIGENCE CLAIMS

CASE REPORT [2016] EWHC 1604 (QB) JOHN RAGGETT V KINGS COLLEGE HOSPITAL NHS FOUNDATION TRUST AND OTHERS

By Judith Kelbie LLP, Managing Partner, 7 Solicitors LLP

This medical negligence case explores the cause or causes of the above-knee amputation of the claimant, Mr John Raggett (deceased), arising from the failures of three medical professionals. In summation, all three professionals failed to consider a vascular explanation for Mr Raggett’s pain, instead adamantly pursuing neuropathic solutions. This case provides an interesting perspective on causation within a medical negligence claim, as one must determine whether the responsibility for Mr Raggett’s substandard treatment lay solely with one defendant or if it was a coincidental and consistent chain of medical negligence. From the age of 36, Mr Raggett had suffered two strokes resulting in left sided hemiplegia and significant eyesight issues. Mr Raggett was thus identified as an ateriopath, a prime candidate for peripheral artery disease (PAD). After intense foot pain and a diagnosis of Achilles Tendonitis by his GP, Mr Raggett was referred to the Second Defendant, Mr F, an orthopaedic consultant, for an investigation into the source of pain. Mr F’s negligence lay with the ambiguity surrounding a pedal pulse test. The judge criticised the ‘slapdash attitude to his practice of medicine’ and his lack of note-taking, thus doubting the occurrence of any pedal pulse test. Mr F’s alleged claim of the presence of a pulse in the foot meant that he discounted the possibility of vascular ischaemia causing the pain, kick-starting a total misdiagnosis. If Mr F had excluded the possibility of vascular ischaemic causes, it seemed inevitable that he would have passed this onto Dr H, a pain specialist and consultant anaesthetist, during referral. Additionally, when questioning his medical competency, expert witnesses highlighted that the claimant’s unrelenting pain on five occasions should have indicated an incorrect diagnosis. This multitude

of factors led the Judge to determine that Mr F had been negligent from the outset. The allegations of negligence against Dr H mirror those of Mr F. However, Dr H did make a note of ‘secondary ischaemia’ an inaccurate use of medical terminology and an unlikely pairing with severe neuropathic pain. Dr H failed to explore vascular origins, deeming a pedal pulse test ‘inhumane’ due to Mr Raggett’s pain levels but equally not undertaking a Doppler blood flow test. Furthermore, Dr H justified his actions with the indistinct information that previous stroke victims could develop neuropathic pain at any time. Expert witness, Dr Simpson, a pain consultant, discredited this, arguing neuropathic pain was unlikely sixteen years after a stroke. Dr H’s over-confidence and failure to revisit his misdiagnosis resulted in him being found negligent from the outset. Dr G (a consultant rheumatologist to whom Mr Raggett was referred having asked for a second opinion) also failed to diagnose ischaemic pain, instead identifying plantar fasciitis. He provided a steroid injection and local anaesthetic. Ultimately, Dr G failed to utilise proper medical practices such as investigating loss of vascular insufficiency or again checking for a pedal pulse before administering the injection. The difficulty within this case lies with apportioning medical causation through assessing the alternative outcomes if each medical professional had acted competently. Worth noting is the dismissal of the claim against the Fifth Defendant, BMI Healthcare, as their incompetent record keeping was found to have immaterial causal contribution.

Three vascular surgical expert witnesses were conflicted over the impact of the defendants’ medical negligence with regards to the life-span of Mr Raggett’s leg. Professor Bradbury, a vascular surgeon, concluded that the leg could have remained viable for three to five years; a view adopted by the judge. The absence of any classical signs, such as no tissue loss up until the condition was well advanced, indicates that the arteries were not completely occluded and thus an early referral would have permitted a successful revascularisation. The other experts failed to reach a conclusion on the life-span of the leg due to a lack of medical images conveying when the foot had run-off.

Thus, in conclusion, all three defendants were found medically negligent from the outset due to their continual failure to diagnose vascular ischaemia and its effect in triggering the amputation. The key element within this case is the division of responsibility, with the judge ultimately concluding an amassed accountability with incompetency flowing equally from three different parties.

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