Middleton v Frimley Health NHS Foundation Trust  EWHC 2981 (KB)
Deputy High Court Judge Jonathan Glasson KC heard this case concerning the timing of revascularisation surgery at Frimley Park Hospital, and whether it was mandatory for the Claimant to be operated on within 6 hours of the onset of his symptoms of leg ischaemia, and in priority over another patient, Patient B.
Much of the factual context of the case was not seriously in dispute. The Claimant’s symptoms of numbness and pain to his right leg started between 10.00 and 11.00 on 18 November. By 12.30, the Claimant was unable to move his right leg, and the plan was for an urgent CTA (computed tomography angiography) and for him to be nil by mouth in anticipation of possible surgery. The CTA was reported at 16.55, and it was decided that there was a need for urgent surgery. The hospital only had one emergency operating theatre. Patient B had gone into theatre at 14.10 for a laparoscopic small bowel resection and did not finish until 17.57. At 16.55, there was already another patient already booked ahead of the Claimant for a diverticular perforation and peritonitis –surgery took place from 18.00 to 23.25. The Claimant was intubated at 23.36 and was in theatre at 23.56, undergoing a femoro-femoral crossover graft, which created a new route for blood to flow from the left side of the groin to the right, thereby restoring blood flow to the right leg.
The Claimant’s expert opined that the Claimant should have been in theatre between 14.00 and 15.00, i.e. within six hours of developing ischaemia to the right leg between 10.00 and 11.00. The Defendant’s expert, in contrast, considered that the Claimant needed urgent surgery, but not immediate surgery, in particular because he had had a history of vascular disease (so was better able to withstand occlusion), and the leg was not cold and mottled.
The Judge found in favour of the Defendant. Surgery was not mandated by 15.00 for nine reasons that he enumerated. These included that, while surgery was urgent, the Claimant was a patient with a chronic history of vascular disease which meant he could withstand ischaemia for longer; where a patient falls within the range of urgent cases is a question of clinical judgment; it was reasonable for a CTA to be obtained before surgery; and it would not have been reasonable to put an operating theatre ‘on hold’ for the Claimant (i.e. to delay the treatment of other patients).
However, the Judge went on to find that even had it been mandatory for the Claimant to be in surgery by 15.00, he would not have been more urgent than Patient B who was already in surgery at that point, nor indeed had the Claimant established that Patient B’s surgery could have been delayed.
This case therefore demonstrates the considerable difficulties that a claimant may face in trying to establish that urgent surgery should have taken place by a specific point in time. First, ‘urgency’ may be considered a matter of degree, informed by clinical judgment on the specifics of a patient’s situation. Second, a claimant’s case does not fall to be considered in isolation, but rather in the historical context of what was happening in the hospital at the time, and establishing that a claimant should ‘jump the queue’, or that theatre should be put ‘on hold’ for a particular patient, can be very difficult.
Hannah Noyce appeared for the Defendant. She did not contribute to this article.