ALM &LSM-v-Royal United Hospital Bath NHS Trust

The infant Claimant ALM (born 05.03.1994) was admitted to the Defendant Trust Hospital in Bath for a routine hypospadias repair on Tuesday 6th August 1996.

He was discharged on the evening of Wednesday 7th August 1996 around 7.00pm, informally. By Friday 9th August 1996, ALM developed urinary retention and renal failure, and had to be admitted to the Intensive Care Unit in the Bath hospital before being transferred to Bristol Royal Hospital for Sick Children. There he had to undergo debridement procedures due to extensive post-operative infection of the genitalia.

In essence, following a hypospadias repair, where no stent was used, it was vital for the nurses on the paediatric ward to properly monitor the fluid intake and output. It was found as a matter of fact by the Judge on the evidence of both sides’ experts, that a proper record of output was not kept.

The Daily Fluid Balance Sheet for the 24 hour period 7.00am on the 6th August 1996 to 8.00am on the 7th August 1996 was in two column format. The column on the left dealt with intake of fluid, and the column on the right, output. Although intake was clearly noted, output, apart from one vomit, was not.

The Evaluation Daily Progress Report said that by 8.00pm on Tuesday evening ALM had not passed urine, and the Fluid Balance did not show that he did before the next morning.

The Diet Record Sheet for the 7th August 1996 should also show what went in and what came out. It had three entries: 06.00 7th August 1996 “pu small in bed”, then at 10.00 “wet bed +++”, and at 13.00 “wet nappy”, but thereafter there was no further record to demonstrate that the child’s passing of urine was being monitored.

There was a single entry in the nursing clinical note simply timed at “am” on the 7th August 1996 stating “pu but in pain”, and then “pm” another entry saying “pu well into nappy and drinking ++: 1 x vomit”.

This was the sole extent of the records available as to the child’s output. All the experts for the Claimant and for the Defendant agreed that the records were woefully inadequate. There were no accurate times, nor any measurement of the volume of output.

In fact, the Defendant’s urological surgeon expert offered the evidence that the nappy should be weighed dry and wet to arrive at a volume of output.
Particulars of Claim

The allegations of negligence made on behalf of the infant Claimant were:

* The First Claimant should not have been discharged, because he was in pain and with indications of retention.
* Specific instructions should have been given to the Second Claimant to telephone the ward or a suitable contact number if she was unhappy with the child’s situation, or the First Claimant ran into any problems.

* Upon the Second Claimant speaking to the ward on the telephone, she should have been told to bring the First Claimant back to hospital immediately.

* The First Claimant should have been kept in hospital, so that his inability to pass urine would have become obvious to the nursing and medical staff, and an early insertion of a catheter would have been arranged.

Split Trial

The Defendants denied liability throughout the action. The Judge at the Case Management Conference made the decision that liability should be split off from causation/quantum. The Trial Judge observed that, with the wisdom of hindsight, this was not a case for a split trial.
Liability

The Trial Judge heard evidence from the child’s mother, the Second Claimant, and her partner; the Registrar who examined the child on the morning of the 7th August 1996, and the two Staff Nurses who were on duty on the afternoon of the 7th August 1996.

Having heard the witnesses of fact give evidence, the Judge noted that for the first time during the trial, one of the Staff Nurses alleged that the decision to discharge ALM was taken by a doctor, rather than the nurses themselves.

The Judge gave the Defendants’ Solicitors an opportunity to produce any Attendance Note or draft Witness Statement to support this evidence, but they were not able to do so. The Judge emphasised that he did not say that the Staff Nurse was making it up. He said that she might well believe that there was a doctor there. However, neither the Second Claimant LSM, nor the other Staff Nurse, recalled a doctor being present.

The Judge therefore ruled that because this crucial factor never surfaced in any Statement, nor formed part of the Defence, until the trial was underway, where there was a material conflict between the mother’s evidence and the nurses’ evidence, if the nurses’ evidence was not supported by contemporaneous medical records, the Judge stated that he preferred the evidence of the mother.

During the course of the trial, the Defence also sought to draw a distinction between nurses allowing a child home “on leave”, and a formal discharge. In this way, they hoped to get around the fact the records did not show that a doctor had authorised the child’s discharge.

The nurses also alleged that they specifically asked the mother to contact the ward the following morning.

The Judge therefore had to decide whether it was a breach of duty to send the child home at all on the 7th August 1996. The Judge relied heavily on the note of the joint conference of experts. The Judge observed that both he and the experts were hampered by the lack of adequate records.

Although the Claimant’s Paediatric Urologist said that he himself would not have sent the Claimant home, he conceded that allowing ALM home was not “necessarily” negligent.

The Judge found that because there was evidence earlier in the day of ALM passing urine adequately, and the mother agreed that at least once during the afternoon she saw the bandage covering the operation site was moist, he felt the Defendants were justified in discharging the child, notwithstanding the mother’s view that he was in a considerable amount of pain.

The Judge found as a matter of fact that no doctor spoke to the mother in the afternoon before the discharge. He also found that nothing was said to her about the child being sent home “on leave”, nor that the Second Staff Nurse requested that she should ring the next day.

A very important point made by the Judge was that the mother made her Statement a great deal earlier than any of the other witnesses. It was dated the 13th March 1997. All the other witnesses’ statements were made 3 to 4 years after the event.

Mother’s Statement was only 7 months later than the event that she was seeking to record, and the Judge considered that there was no difference between what she said in her Statement and the evidence given to him over the 2 day liability trial. He stated that she had been wholly consistent from start to finish.

Although he felt that she was clearly very emotional and upset about what had happened (and indeed this formed the basis for a claim for damages for her own psychological sequelae), the Judge found that the first Staff Nurse probably did give instructions and information to the mother and ask her to ring the hospital, but because the mother was upset at the child’s failure to thrive, she did not take it in. The Judge therefore found that the instructions were not sufficient or adequate, and that no attempt was made to check that the mother understood.

Having decided that it was a justifiable decision on the evidence available to the hospital staff to send ALM home, the Judge found as a matter of fact that the second Nurse rang the mother the following morning.

The second Nurse stated in her Witness Statement that she had been requested to do so by “one of the doctors”. She said that “mother did not express any concerns, and certainly none of the symptoms” recorded in the Particulars of Claim. She further gave evidence “I recall relaying this information to the doctor who was with me at the time of the call. He requested that I reiterate the discharge advice regarding the importance of encouraging (ALM) to drink, to ensure that he continued to pass urine, and to give regular pain relief. I passed all of this information to (LSM), and I also reinforced the importance of contacting the ward if she had any concerns”.

The Judge therefore found that if the second Nurse’s recollection of the telephone conversation was correct, then not calling the infant Claimant back would not amount to a breach of duty, and would have been a proper decision.

The mother said in her Statement “On Thursday morning, the 8th August, (ALM)’s eyes were more glazey, the black bits in the middle were really large, and he was hot. He was still grizzly and shifting everywhere in the chair like a caged animal who could not escape from the pain”. She said that she gave this information to the second Nurse. She agreed that the second Nurse left the telephone and consulted with a third party, but, crucially, her evidence was that the second Nurse came back and said “that’s normal after that operation”.

The Claimant’s case was that this description of the child’s symptoms should have alerted the nursing staff to a potential problem, and ALM should have been brought straight back into hospital for assessment. The experts all agreed with this view.

The Judge found that there was no contemporaneous record that showed that a doctor authorised ALM’s discharge on that morning. There was no contemporary record that mother said that he had passed a perfectly satisfactory night. There was nothing to support the second Nurse’s evidence at all. As before, the Judge therefore stated that he had to prefer the evidence of the mother.

The Defendant’s Barrister put it to the Judge that it was most unlikely that the second Nurse would (as alleged by the mother) have telephoned her and at first only asked the whereabouts of a Winnie the Pooh video that could not be found on the ward.

However, the Judge found that this was a very important bit of evidence. He ruled that the detail was not necessary for the mother’s case. He said that if she wanted to manufacture a case against the hospital, to show that they did not at first ask anything about ALM’s condition, she could have said something a lot stronger. He therefore felt that this apparently inconsequential remark helped to confirm his impression that the mother’s account of events was accurate, and that the Defendant’s witnesses were hampered by the lack of records and were simply doing their best to reconstruct what should have happened, based on best practice, years after the event.

The experts agreed that urinary retention could develop in only 24 hours. The Defendant’s urological surgeon accept that the mother’s descriptions of the child’s symptoms on the day after ALM returned home were consistent with what subsequently happened two days later.

The Judge therefore ruled that the Hospital were in breach of their duty of care towards the child not to re-admit him immediately on the morning of the 8th August 1996.
Medical Evidence

The infant Claimant relied on a Consultant Paediatric Urologist and a Paediatric Nursing expert. The psychological sequelae, and condition and prognosis of the child ALM, were assessed by a Clinical Psychologist. He suffered continuing ‘white coat phobia’ and nocturnal enuresis and soiling. A diagnosis of PTSD was made.

The psychological sequelae suffered by the mother, who gave evidence that she thought her child was going to die, so that she developed a formal adjustment disorder, was given by a Consultant Psychiatrist in adult mental health.
The History of the Action

The Claimants’ Solicitors disclosed medical reports on a without prejudice basis and made a without prejudice offer to settle the claim for both Claimants in without prejudice letters dated in October 1999. They sought damages for ALM of £60,000.00 and LSM of £5,000.00.

The Defendants rejected the offers, and made no Counter-Offers.

A protective Claim Form was issued in November 1999. The Particulars of Claim and supporting medical reports evidencing condition and prognosis were served in March 2000. The Defence was served on the 23rd May 2000. A Case Management Conference took place on the 18th July 2000.

Exchange of experts’ reports took place on the 10th November 2000. Both side submitted questions to their opponents’ experts under CPR 35/8. The joint meeting of experts took place in February 2001. The trial was listed for the 24th/25th April 2001.

The Defendants/NHSLA insisted that Solicitors should not be present, to save costs, but that a transcript should be prepared by their employee. This led to extensive additional correspondence after the meeting, so it is not clear that any costs saving was in fact achieved.

As late as the 20th April 2001, the Defendants made an ex-parte application to the District Judge to try and debar the Claimant’s experts from attending the first day of the trial, and indeed they sought to argue that there should be no oral expert evidence at all. The District Judge ordered that there should be no authority for the costs of the experts to be met, unless the Trial Judge said that the costs should be met.

The Claimant’s Counsel explained to the Trial Judge that there was no conceivable way in which he would be prepared to conduct a medical negligence trial without his experts in Court to hear the witnesses of fact and the treating doctors and nurses give evidence. He said this was particularly so in a case like this, where so much turned on the evidence of the witnesses of fact.

The Trial Judge heard the Defendant’s arguments, at the end of the liability trial, but stated he would allow the Claimant's costs of the experts’ attendance on the first day.

The Judge ordered that there should be a further Case Management Conference. This took place in June 2001, without an attendance, as directions were agreed.

In the meantime, the Defendants paid £3,500.00 into Court in settlement of the Second Claimant’s damages for the adjustment disorder on the 16th July 2001, and this Part 36 payment in was accepted by the Second Claimant.

A further experts meeting involving the urological surgeons took place on the 20th July 2001, to address issues of causation.
Causation & Quantum

The First Claimant’s case was that as a result of the failure of the Defendants to re-admit ALM to hospital on the 8th August 1996, a non-negligently caused post-operative infection remained undetected, and therefore the Claimant suffered considerable loss of tissue from his penis as a result of the debridement procedures that would not have been necessary, but for the failure to re-admit. In addition, he suffered psychological sequelae that would have been avoided with prompt re-admission and early control of the post-operative infection.

In November 2001, ALM’s treating surgeon reviewed him again, and indicated that because the rescue surgery undertaken in November 1996 (when the hypospadias repair was compromised by the destruction of tissue) had not been successful, the Claimant would need to undergo a further two operations during his adolescence. The procedures would be a two-stage buccal mucosal graft, and thereafter a cosmetic procedure to tidy up the damage to the child’s penile shaft.

The Defendants agreed to the child’s expert Psychologist being instructed to prepare a further report on a joint basis to avoid further upset to the infant Claimant, and the Psychologist’s joint condition and prognosis report was received in March 2002.

A hearing to resolve causation and quantum was scheduled to commence on the 8th April 2002 for two days. Following negotiations, settlement was eventually reached in respect of the First Claimant’s claim on the 25th March 2002, on the basis of a once and for all settlement figure of £40,000.00. A draft Consent Order was duly prepared, and the Claimant’s Solicitors attended on the 8th April 2002 as an Infant Settlement Approval Hearing.

Because the First Claimant was only 8 years old at the date of settlement, it was impossible to find an expert who could offer a firm opinion as to how the psychological disturbances attributed to the severe consequences failed surgery might manifest themselves during his teenage and young adult years. Only those problems due to the negligent failure to re-admit were compensatable, not problems due to the initial non-negligent breakdown of the new repair.

Valuation of the child’s claim for psychiatric injuries was complicated by the fact that the child showed signs of developmental delay, and therefore this feature had to be separated out from the trauma arising from the Defendant’s negligence.
General Damages for Pain, Suffering and Loss Amenity
First Claimant

A Claimant’s revised Part 36 Offer to settle was put forward on 19th March 2002 at a figure (taking into account the risks of litigation and a possible better prognosis) of £40,000.00 nett of CRU. This was accepted by the Defendants on 25th March 2002.

Separate heads of damage were in respect of the unnecessary damage to the penis in the order of £12,000 to £15,000.00 PSLA damages and £13,000 to £27,500 moderately severe Post Traumatic Stress Disorder in accordance with the JSB Guidelines. The breakdown of the claim calculated by the Claimant’s Solicitors on a best cases basis:

Once all the claims were consolidated and discounted: General Damages £25,000.00 to £30,000.00 a mean figure of £27,500.00.
Second Claimant

Temporary adjustment disorder DSMIV £3,500.00 nil CRU.
Special Damages
First Claimant

Provision for future surgery £8,500.00. Future psychotherapy/counselling £2,500.00.

Past and future care: £5,000.00. Special Damages; nappies, laundry costs and replacing soiled bed linen/clothing: £2,500.00.

Apart from the family’s out-of-pocket expenses in relation to past medical treatment, the largest component of the First Claimant’s damages was the cost of future surgery, and possible psychotherapy. Given the NHSLA/Defendants' refusal to contemplate a settlement on a provisional damages basis, the Claimants’ Solicitors felt that because of the Claimant’s youth, the interest on the damages invested in Court until his majority would protect the infant Claimant, if it turned out that the prognosis was slightly worse than the prognosis set out in the agreed urological and psychological evidence.

CRU

The Compensation Recovery Unit issued a certificate claiming care component of Disability Living Allowance totalling £8,569.40, which was paid by the Defendants in addition.
Comment

This case has several interesting features.

* Witness Statements

First of all, the case demonstrates the desirability, where possible, of obtaining a full and early Statement from the Claimant or Litigation Friend as the nearness of the statement to the events complained of may turn out (as in this case) to be of crucial importance in the mind of the Judge when it comes to weighing the evidence for both sides.

* Full and Accurate Clinical Notes / Patient Information Leaflets

Secondly, the case demonstrates only too clearly how important it is that nurses and junior doctors keep accurate, properly timed, notes of all their encounters with patients and of advice given. It also demonstrates that NHS Trusts should now take care to prepare plain English information leaflets for patients on discharge, so that they know what to look out for, and there can be no doubt that they are alerted to the necessity of urgently re-admitting a child who does not thrive following a day case procedure.

* Inappropriate Discharge Arrangements

Note the confusion caused by nurses apparently taking the decision to allow a child home 'on leave' to free up a bed, when if the child had been formally discharged by a doctor, with appropriate advice, this whole sad state of affairs may have been avoided.

Inappropriate reassurance solely on the basis of a telephone conversation is no substitute for asking a parent to call back to the unit with a child, so that a proper examination by a doctor can take place.

* Psychological Sequelae of Iatrogenic Injury

The case also demonstrates that there can be significant psychological sequelae to failure to promptly re-admit to arrest infection in failed surgery cases of this type, both for an infant and for their parent(s). In this case, and despite the fact that both the First and Second Claimant had parallel non-negligent discrete factors that would themselves cause psychological difficulties, there was sufficient evidence to relate a significant part of their pathology to the sequence of events in August 1996 that enabled the parties to negotiate a sensible sum in settlement of this aspect.

Costs

The NHSLA/Defendants’ apparent determination not to negotiate at any stage for more than 4 years, meant that the Claimants’ legal costs alone (agreed at £76,000.00) were nearly double the damages. The overall cost of the action to the NHSLA also includes the Defendant’s legal costs. This is a matter of regret for all concerned, and is a feature that may hopefully now be a thing of the past if the new NHS Complaints Procedures and Alternative Dispute Resolution avoid the high costs of adversarial struggles implicit in litigation.
Experts

The First Claimants’ experts were:

Mr Christopher Rance – Paediatric Urological Surgeon
Miss Anne MacDonald – Paediatric Nursing Consultant

The Second Claimant’s expert was:

Dr Christopher Churcher-Brown – Consultant Adult Psychiatrist

Joint expert:

Dr Kevin Hewitt – Chartered Clinical Psychologist

Defendant’s experts:

Mr Padraig Malone – Consultant Paediatric Urological Surgeon
Ms Amelia Denny – Paediatric Urology Nurse Specialist
Counsel/Solicitors

For the Claimants:

Charles Lewis/Gerry Ferguson of Withy King Solicitors

For the Defendant

Raymond Ng / Heather Durston-Hillyer and Corrine Slingo of Beachcroft Wanbroughs Solicitor