Dalchow v St George’s University NHS Foundation Trust [2022] EWHC 100 (QB) (20 January 2022)

This claim relates to an alleged delay in taking steps that it is said would have resulted in the speedier diagnosis and treatment of Fournier gangrene (‘FG’), a life-threatening infection of skin and other soft tissues… on 15 April 2015. FG is a form of necrotizing fasciitis (‘NF’), which in FG is mainly confined to the perineum and scrotum. [1]

The agreed case summary states:

The Claimant’s case is that there was a failure to investigate his condition by means of an urgent ultrasound or CT scan, and to start intravenous broad spectrum antibiotic therapy, following review by Dr Faure Walker at around 11.00 hours. [2]

D accepted at the outset a breach of duty in failing to commence C on intravenous antibiotics by 12:00 hours (although breach of duty alleged by C from 11:00 hours is denied). However, it has been denied that provision of this treatment would have made any difference to C’s outcome. It has been denied throughout that the failure to investigate C by way of an ultrasound scan (‘USS’) was a breach of duty or that the same would have led to a differential diagnosis of NF to be made such that C would have been taken to an operating theatre. It is argued that earlier surgery was required if injuries were to have been less. [3]

C was born on 18 October 1966. [12]

On 14 April 2015 C was subject to routine and uncomplicated scrotal surgery for removal of a benign epididymal cyst… The procedure is said by C to have been ‘uncomplicated’. It is said to have been ‘uneventful’ by D. [15]

C then suffered increasing pain which became so severe that by 04:30 on 15 April he went back to hospital [17]

C was plainly presenting in an unusual manner. The most obvious indication of this is the fact that C was suffering a very high level of pain. [57]

If surgery would reasonably not have been conducted earlier following an earlier USS, that implies that no loss was caused by the breach of duty that I have found. [113]

the evidence about the effectiveness of antibiotics means that no loss can be established once I have rejected the claim that surgery should have been commenced earlier. Arguments about whether broad spectrum antibiotics should have been administered earlier do not appear to assist me. Any benefit is extremely uncertain and so it cannot be demonstrated on balance of probabilities that there would have been a significant difference in the outcome. Any benefit is also likely to be limited because of the impact of necrosis on the effectiveness of antibiotics… In other words what is pleaded is that it was the combination of antibiotics and surgery that was required to make a material difference. [120]

if… earlier surgery (with earlier antibiotics) should have occurred… no qualifiable loss was caused. [121]

I must dismiss this claim. Although it appears to me that breach of duty has been established (including breach of duty not admitted), it cannot be proved that the breach of duty caused loss [132]