Dalchow v St George’s University NHS Foundation Trust  EWHC 100 (QB)
The Claimant brought proceedings alleging a delay in the diagnosis and treatment of Fournier’s Gangrene. The condition is one in which there is necrotising fasciitis of the perineum and scrotum. The Claimant had undergone a day case elective removal of an epididymal cyst the day before and had reattended hospital the following morning complaining of severe pain at the operative site.
The case hinged on whether the Claimant ought to have urgently undergone either CT or ultrasound scanning following his review at 11.00 that day, and whether if he had been, his outcome would have been different. He did not undergo an ultrasound scan until 15.12 that afternoon and it was not until 18.15 that the diagnosis was made on clinical examination. Thereafter the Claimant was taken to theatre for emergency debridement. He ultimately underwent several procedures which amounted to radical debridement, skin grafting and bilateral orchidectomy.
Inference from Absence
One interesting feature of the judgment was the judge’s consideration of the extent to which he could draw an inference from the absence of evidence. The Court considered the case of Wisniewski v Central Manchester Health Authority  EWCA Civ 596, in which Brooke LJ gave the following guidance:
“(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.
(2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.
(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.
(4) If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.”
Upon reviewing the Claimant, the Defendant’s treating clinicians had decided that an ultrasound scan would be beneficial. This scan was not requested for over two hours. There was no explanation for the delay given by the Defendant’s witnesses, who suggested only that in some cases clinicians might encounter difficulty in arranging such scans. The Judge applied the approach of the court in Wisniewski in holding that in the absence of an explanation not only was he entitled to find that the scan could have been conducted quicker, but also that there had been no good reason for the delay. In effect, the Court found that arranging the scan had been overlooked.
Application of Bolitho
The Court also undertook a detailed consideration of the legal principles pertaining to breach of duty, in particular, the requirement from Bolitho v City and Hackney Health Authority  AC 232,  UKHL 46 that a body of opinion relied upon be reasonable, responsible, and ultimately logical.
The Claimant had presented to hospital complaining of pain which the Defendant’s treating clinician accepted was a “very, very unusual presentation for post-operative pain or small haematomas”. Nevertheless, the Defendant’s expert witness expressed the view that a working diagnosis of post-operative haematoma or infection was reasonable on the grounds that “common things are common”. The Judge rejected this analysis as flawed. Given the evidence that the extent of the Claimant’s pain was so unusual, it could not be logical for him to then advance an expert opinion predicated on the basis the Claimant’s presentation represented something typical or ordinary. In respect of the Claimant’s case that an ultrasound scan needed to be arranged urgently, the Judge commented “Professor Sethia disagrees but it appears to me that his conclusions are undermined by the flaw in logic I have just identified. That is the failure to grapple with the level of pain being experienced by the Claimant. That appears to have been unusual.” The court thereby applied Bolitho to prefer the evidence of the Claimant’s expert over that of the Defendant as to the appropriate timing and urgency of the ultrasound.
Both the Claimant and Defendant’s experts were in broad agreement that whilst earlier surgery would have reduced the necessary debridement, it was not possible to state to what extent. The allegation in the Particulars of Claim read:
“the delay in administering antibiotic therapy and performing surgical debridement materially contributed to an indivisible injury, namely skin and soft tissue necrosis and loss”
The Court considered the nature of the Claimant’s condition. Fournier’s Gangrene is a condition in which bacterial infection causes death of soft tissues. The condition is progressive with the area of tissue affected increasing over time. In Ministry of Defence v AB (2011) 117 BMLR 101 the Court of Appeal commented that:
“(a) disease or condition is “divisible”… (when) an increased dose of the harmful agent worsens the disease. … Cancer is an indivisible condition; one either gets it or one does not. The condition is not worse because one has been exposed to a greater or smaller amount of the causative agent”
The Court held that there is a clear distinction between cases where there is a dose/exposure relationship between the effect of the breach of the duty and the degree of harm caused and cases where there is no such relationship. In this case the effect of the breach was delay. As the delay increased so too did the harm suffered by the Claimant. The loss could therefore not be pleaded as an indivisible injury. In the circumstances, it was inappropriate to allow an amending of the pleadings at such a late stage.
Ultimately, the issues above were to prove largely academic in the context of the case as a whole. Having established that there was no good reason for delaying the ultrasound, the question then arose as the consequence of that delay. Forensic analysis and application of the case law could not overcome the fundamental flaw in the Claimant’s case, namely that an earlier ultrasound would have shown at most the same appearances as that which was ultimately performed. The Defendant’s position that they would not in any event have performed surgery on the basis of the scan results obtained was accepted by the Court. In such circumstances, the claim was dismissed on causation grounds. The case does however highlight the need for experts to carefully apply their minds to the facts of the case, and the willingness of judges to scrutinise the logic underlying their conclusions.