Marshall v Schembri [2019] EWHC 283 (QB)
This article originally appeared in Issue 3 (November 2019).
In this judgment of Stewart J the court considered a claim brought by the widower of a woman who died due to cardiac arrest. She had a history of pulmonary embolism (“PE”). It was admitted by the Defendant, a GP, that he should have referred the deceased to hospital when she attended his surgery with chest pain and breathlessness. In fact, he did not refer her, and she died at home the next morning. The only issue was causation.
A large amount of detailed evidence was led as to what would have happened to the deceased had she been admitted to hospital, and whether such treatments would have led to her survival. Of note, however, is [128] of the judgment in which Stewart J commented:
“As is accepted, the Claimant has the burden of proving causation. Yet the Claimant needs to prove no more than that Mrs Marshall would probably have survived had she been admitted to hospital. The Claimant does not need to prove the precise mechanism by which her survival would have been achieved.”
Stewart J then went on to make a number of findings on the balance of probabilities as to what would have happened had the deceased been admitted to hospital.
However, he then stated at [139] to [140] that:
“All these possibilities set out in closing submissions have been individually assessed on the evidence. There cannot be an inference, much less a finding, merely on the basis that a number of possibilities amount to a probability that death would have been avoided. That said, this concentration on each possible stage of what would have happened where much is uncertain and difficult to resolve, must be considered against some important overall evidence.
Overall most people do not die of PE when they are in hospital. The deceased was not very elderly and had no comorbidity. In addition, Professor Empey said that his experience and that of many of his colleagues is that once a patient is admitted to hospital, properly assessed and given the appropriate treatment: heparin, oxygen, monitoring and other observations they do not die. It is very, very unusual. Similarly, Doctor Gomez said that he would have fully expected the deceased to survive because of the package of care that would be given to her.”
He ultimately went on to find in the Claimant’s favour on causation, making the following comments at [145] to [146]:
“Thus the expert medical evidence to which I have referred and the statistical evidence demonstrate that at the time when Mrs Marshall should have presented at hospital, anybody rating her chances of survival would have put them at being very high. Tragically, she did in fact die out of hospital. In the situation which occurred, detailed analysis of such evidence as we have cannot lead the court to find that by such and such a mechanism, or at any particular stage, the course of events would probably have been different. This is overwhelmingly because of a large number of unknowns.
The court, in looking at the evidence as a whole, must take a common sense and pragmatic approach to that evidence, in circumstances where it is equivocal. The court must also be wary of relying on the statistical evidence in the literature which has a number of variables. Had the statistical evidence, in conjunction with the expert evidence, have led to the conclusion that Mrs Marshall’s chances of dying would have been assessed on presentation as only slightly better than 50-50, I would have found for the Defendant. However, the above evidence of Professor Empey and Doctor Gomez, in conjunction with the medical literature, drives me to the conclusion that on the clear balance of probabilities she would have survived.”
Comment
The judgment is notable for the somewhat broad-brush and pragmatic approach to causation taken by the judge. Whilst a number of detailed findings as to causation were made, these were expressed in terms of ‘possibility’ as opposed to ‘probability’ at [133] to [138]. He then ultimately considered these in the context of expert evidence that, by one treatment or another, deaths from PE in hospital are extremely rare and also statistical evidence that deaths from PE in hospital are very low. This then appeared to lead him to the conclusion that the Claimant would likely have survived had she been admitted to hospital, but with no clear findings as to exactly how.
An appeal is outstanding to the Court of Appeal and so it is likely that further analysis of the correctness of this approach is to come.
