C sought publication on the basis that there is said to be a relative paucity of reported liability trials in clinical negligence, and because the discussion of the authorities below may be of wider interest. D submitted that the issues were narrow and fact-sensitive, such that publication was not warranted. Having weighed these competing considerations, and considering transparency and open justice, I have decided that this judgment should be published. C and her litigation friend have expressly confirmed they do not seek anonymisation. [1]
These proceedings concern a stroke which the claimant suffered on 21 July 2016 (“the stroke”) which was caused by atrial fibrillation (“AF”). Prior to the stroke, C attended D on 15 January 2016. It has been admitted by D that D failed to arrange a 24-hour electrocardiogram (“ECG”) monitor in response to C’s symptoms, and it is further accepted that represented a breach of the duty of care which D owed to C. [2]
C asserts that such monitoring would have led to diagnosis of AF whereas D asserts that it would not. D admits that if C had been diagnosed with AF she would have been treated with anticoagulants such that the stroke would likely have been avoided. [3]
I must therefore consider whether the said breach of duty was causative of the stroke, and in doing so the parties have helpfully agreed the key issues for my determination:
a. What was causing any symptoms experienced by the claimant?
b. How frequently were such symptoms occurring?
c. After the 24-hour ECG was done, would a 7-day ECG likely have been performed?
d. Whether either the 24-hour or 7-day ECG would have detected intermittent atrial fibrillation? [4]
C was born in 1964, and therefore at the time of the stroke she was 52 years old. At trial today she is 62 years old. [8]
C detailed that she started noting palpations in 2012 but that they become more noticeable towards the end of 2014, and then more frequent into 2015. She described symptoms of a shortness of breath and how it did not improve through increased exercise, and she detailed her attendances upon her general practitioner in 2015. She described feeling her heart racing as she tried to get to sleep. [9]
D commented that the claimant was referred to him by her general practitioner and the paperwork had been stamped “not for cardiology” and so was passed to him in the general medical team. He stated that the referral referenced that she had been feeling “generally unwell”, “washed out”, “leg swelling” and “episodes of pounding in her chest” (but the referral referenced that an ECG showed “normal cardiac rhythm”). D explained C attended a consultation on 15 January 20[1]6 in which he elicited a history which included “palpitations”, “panic attacks” and “swollen ankles”. On examination he said he listened to her heart which he considered normal, and that the consultation raised “no flags” and that he arranged some blood tests which were all negative. [11]
C and D agree that typical symptoms of AF are “palpitations, shortness of breath, dizziness or fatigue”, and that at some point or points between May 2015 and July 2016 the claimant is likely to have had intermittent AF (“PAF”). [12]
it follows that D’s breach of duty has caused the stroke which C suffered, and I grant judgment in her favour with damages to be assessed. [127]
Comment
The Preface to “Clinical Negligence” (sixth edition, 2023) Powers KC and Barton included the following:
In “Medical Negligence”, a remarkably prescient text, by the Rt Hon Lord Nathan PC published the year before the Bolam decision, the reader was cautioned against being guided by decisions in earlier medical negligence cases. Case law was and remains important, but for legal principles rather than medical facts:
“… a study of past decisions in medical negligence cases will be unrewarding, and indeed misleading… The actual decision in such cases is seldom, if ever, of any lasting significance, for the effect of the decision is simply that a particular defendant in a particular case either did or did not exercise the degree of skill and care… he ought to have exercised… the facts of past cases and the decisions given in them are of value only as indicating in what manner the Courts apply the general principles of the law of negligence to the facts of particular cases, and as showing the sort of conduct which may be capable of amounting to negligence.” (Introductory at page 4)
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