The Appellant successfully argued that the Respondent hospital was liable for failing to elicit the correct history from the parents of a one-year old child who took the child to the Respondent’s Accident and Emergency department in the early hours of the morning. The child subsequently sustained permanent brain damage.
This case was an appeal against an order of Jay J dismissing the clinical negligence claim taken by the Appellant (“FB”) against the Respondent. The Respondent was the second defendant in the initial claim. The judge’s dismissal of the claim against the first defendant – a GP in a local out-of-hours service – was not appealed.
FB, who was born in August 2002, became unwell on 18 September 2003. Between 04:00 and 04:24 on Monday 29 September, FB’s mother phoned the out-of-hours service and spoke to the triage nurse, who called an ambulance stating that FB had a temperature, erratic breathing and was rolling her eyes. The ambulance arrived a few minutes later, with the paramedics recording that the mother had said that the child was very lethargic and that her eye rolling was not coordinated. The trial judge found that the eye-rolling did occur and prompted the mother’s call to the service.
The ambulance arrived at the Respondent’s hospital at 04:45. FB was seen by the triage nurse, and then she and her parents went to a consultation with Dr Rushd, a Senior House Officer (SHO) in the A&E department at 05:20. Dr Rushd diagnosed an upper-respiratory tract infection (URTI), and as a result, FB was discharged at 05:55.
However, her condition worsened and went back to the hospital about 12 hours later, where she was referred to paediatricians and given antibiotics. On 1 October 2003, he was transferred to a Great Ormond Street Hospital, where she was diagnosed with pneumococcal meningitis and multiple brain infarcts. She sustained permanent brain damage as a result.
Evidence and judgment in the High Court trial
It was accepted by the judge that the ambulance, paramedic and triage notes were not included in the A&E front sheet that was seen by Dr Rushd.
Dr Rushd’s evidence was that her practice to begin a consultation with an open ended question along the lines of “why are you here?” and then if necessary ask follow up questions.
Dr Rushd had physically examined FB. The judge accepted that there had been a thorough examination of FB leading to her diagnosis of a URTI. The judge further recorded Dr Rushd’s evidence that children with this type of presentation were seen by her in A&E at least once a day.
Dr Rushd’s evidence was that if FB’s mother had said that her child’s eyes were uncoordinated she would have recorded it but “that on its own is not a worrying sign. Rolling eyes can be voluntary. I would have taken it into consideration”.
She later gave evidence that if the history given was of the child’s eyes rolling in the context of a high fever, she would have considered that this might have been a febrile convulsion, and that if there had been any hint of a febrile convulsion, she would have referred the case to paediatricians.
The parent’s evidence was that FB was lethargic during the examination, but Dr Rushd stated that FB was not lethargic during that time, and that the parents did not say she was.
The judge found that the expert evidence was clear that a child with high level of bacteraemia (which was agreed FB had when seen by Dr Rushd) would show “abnormal state variation” (“ASV”) and appear more unwell than one with a simple URTI. However, Dr Rushd recorded that FB looked well. It was accordingly accepted by the judge that FB at least exhibited ASV when Dr Rushd examined her.
The judge did not accept the evidence as to obvious lethargy at the time of examination, concluding that signs as were there were subtle and would need an experienced eye to detect. He relied on the Respondent’s expert evidence, stating that that expert did not say it would not be unacceptable for an SHO to fail to detect ASV, but that he drew that conclusion nonetheless. As such, he found there was no breach of duty in how Dr Rushd carried out the examination.
It was common ground that Dr Rushd did not record why the parents brought FB to hospital. The parents did not give this information. The judge identified the issue to determine as whether it was sub-standard practice for an SHO in Dr Rushd’s position to fail to obtain this information from the parents.
He found that a Consultant A&E doctor or paediatrician would have detected the ASV or embarked on a line of inquiry which was likely to have elicited the fact that the eye rolling was the reason for the emergency call, and that an experienced doctor would probably have said to the parents something like “this child looks fine to me, how was she different earlier?”
However, he concluded that for Dr Rushd, it was not substandard to have failed to elicit this history.
The appeal arose from the judge’s conclusions about the conduct of Dr Rushd.
The only issue in dispute was breach of duty. It was agreed that had FB been referred to the paediatrician team she would have been given antibiotics by 09:00 on 29 September, which would have prevented the spread of the infection and FB would not have suffered any injury.
FB’s case was that Dr Rushd was negligent in:
- Failing to take an adequate history of FB; and
- Failing to conduct an adequate examination of her.
It was FB’s case that had Dr Rushd performed either to the standard of a competent SHO, she would have been bound to refer FB to the paediatrician team.
FB’s submissions focused on the first ground, namely that when dealing with the history taking, the judge applied the wrong standard of care. The Respondent submitted that this was a challenge to the judge’s finding of fact and should be dismissed.
FB submitted that the judge had conflated the standard expected of an SHO when confronted with subtle signs in examination, and the standard expected of an SHO in obtaining a history.
Thirlwall LJ gave the main judgment.
She stated that there is often a correlation between complexity of task and seniority of doctor, but that many tasks are carried out by doctors of different seniority. When performed by a registrar, the standard of competence required is the same as that required of a consultant. Here, the relevant standard of competence is that of an SHO taking a history in an A&E department.
Dr Evans, an expert in emergency medicine called by FB, had stated at trial that it was a breach of duty to fail to elicit why FB was brought to hospital in the early hours. He stated he would want to know specifically why they presented them and try to find out why. As to whether there was a variable standard applicable to history taking in A&E depending on seniority, Dr Evans had stated that every A&E doctor would know that parental opinion and concern is very important.
Thirlwall LJ acknowledged that there was no evidence as to whether a question to the effect of “the child is looking well to me. Is this how she has been over the recent period?” would be outwith the competence of an SHO in A&E.
The trial judge had found that no expert had criticised Dr Rushd’s technique of asking an open facilitative question and possibly follow up questions. However, although she was not criticised for asking an open question to start, Dr Evans was critical of her failure to ask questions eliciting why the parents brought FB to hospital. Thirlwall LJ stated that the judge had observed that there was a failure to elicit this, and that there could be no doubt about that. The question was whether that failure as a breach of duty.
Dr Maconochie, the Respondent’s expert on paediatrician emergency medicine, had given evidence that it is common to see people present with children with temperatures, and that this depends on parental anxiety amongst other factors. He stated that “asking the question “what is the problem?” is usually adequate to ascertain the precipitator”.
Three things arose from that according to Thirlwall LJ. Firstly, Dr Maconochie did not disagree that Dr Rushd had not elicited an explanation. Secondly, he did not suggest ascertaining why the child was brought in was something normally expected only of a consultant. Thirdly, that open question he identified was ‘usually’ adequate – thus it was not always so.
What Dr Maconochie’s evidence came to was that Dr Rushd had elicited a history from which she could make a diagnosis fitting with the most common one. It was not addressed that she had not elicited the precipitant and thus had not obtained the history.
Dr Rushd had told the court that if there are “rolling eyes, that is scary. I wouldn’t need to ask the right question; the parents would tell me first of all… you don’t need to ask the question”. Thus, she seemed to be unaware or had excluded from her consideration that the parents had seen the eye rolling but had not told her. Furthermore, she could not know how often a parent had not volunteered information. An approach predicated on a mistaken belief that there are some things which do not need to be asked about was plainly flawed.
The judge placed great weight on Dr Maconochie’s evidence that parents may attend A&E at all hours without any direct and obvious reason, and that although there was a clear reason here, human nature is such that there often is not.
Here, the judge fell into error. The fact there is often no clear precipitating factor was not an answer to a failure to elicit such a factor where there is one. There was nothing overly rigorous about the proposition that it is for an A&E doctor (absent special features such as drunkenness) to elicit the reason for a child being brought to A&E: this is a basic requirement of the history taker.
Unlike the examination, where ability to detect subtle signs comes with experience, there was no evidence that the need for a question like the one posed by the judge would be apparent only to a consultant. The judge’s view that there was a lower standard of care for an SHO than for a consultant in history taking in A&E was unsupported by evidence.
Dr Rushd did not elicit why the parents brought FB to hospital in the early hours. This was probably the result of a flawed approach to history taking. Firstly, she believed wrongly that where a parent witnessed something frightening it was not necessary to elicit it as it is always volunteered. Secondly, having formed the view the child was well, she did not think about it or did not consider it necessary to establish why she was brought to hospital. Thus, she did not ask the judge’s obvious question or the equivalent.
Therefore, the conclusion that the history taking was not carried out to the standard to be expected of a competent SHO is inevitable. Dr Rushd was thus in breach of duty and negligence is established, and the appeal was allowed.
King LJ agreed with Thirlwall LJ. Jackson LJ also agreed, and added further comments set out below.
The judge had effectively stated that it would have been negligent if an experienced doctor had failed to elicit the relevant facts, but that such a failure by an SHO in the A&E department did not amount to negligence. This raises the question: what standard of skill and care should the law require from a young professional person in the early years of her career? This question was addressed in three stages: the general law of negligence; professional negligence; and the present case.
Firstly, on the general law of negligence, Jackson LJ stated that the issue was to what extent the personal attributes and experience of the defendant are relevant in determining whether they are negligent. The general rule is that the court disregards them. However, some characteristics cannot be ignored, such as the defendant being a child.
One on hand, it is harsh to disregard a defendant’s limitation and hold them liable for that which they could not help doing, or for failing to achieve that which they could not. On the other hand, a claimant is entitled to expect that those they encounter in the ordinary transactions of life will adhere to certain general standards. The law of tort thus compromises. It takes account of characteristics which cannot be ignored, such the defendant being a child or being blind, but subject to that it imposes a general duty of care on all society not tailored to their individual strengths and weaknesses.
Secondly, on professional negligence, the foundational authority setting the required standard of skill and care is Bolam v Friern Hospital Management Committee  1 WLR 582. The defendant must exercise the skill and care of a reasonably competent member of their profession.
In Wilsher v Essex AHA  1 QB 730, the Court of Appeal considered the standard of care required of a junior doctor. The majority held that a hospital doctor should be judged by the standard appropriate to the post which they are fulfilling. That involves leaving out of account the experience or length of service of the doctor. This works in hospitals, where there is a clear hierarchy. Whether doctors are performing their normal role or are ‘acting up’, they are judged by reference the post they are fulfilling at the material time. The health authority or trust is liable if the doctor whom it puts in a particular position does not possess the requisite standard for that task. Thus, in professional negligence as with the general law of negligence, the standard of care the law requires is an imperfect compromise.
Finally, as to the present case, Dr Rushd’s conduct must be judged by the standard of a reasonably competent SHO in an A&E department. The fact she was 25 and relatively inexperienced does not diminish the required standard of skill and care. Neither did the fact she had spent nearly six months in a paediatric department elevate the required standard.
History taking is a basic skill which hospital doctors at all levels are expected to possess. Jackson LJ thus could not accept the judge’s conclusion that only a more senior doctor can reasonably have been expected to elicit that FB’s eyes had been rolling and that that was why she was taken to hospital.
This judgment underscores that the relevant standard of care and skill for a hospital doctor is that of the reasonably competent practitioner working in the specific role or position in which they are working at the material time. Thus, it makes it clear that the experience or length of service of the doctor is not relevant to considering a breach of duty. The doctor is to be compared with reasonably competent doctors who work in that specific position.
The judgment further highlights the importance of the practitioner eliciting the correct history of the patient, and clarifying exactly why they are presenting at the hospital. It is not sufficient for the practitioner to assume that the patient or their parents will always volunteer information which the practitioner believes is especially likely to be volunteered.