Henderson v The Hillingdon Hospital NHS Foundation Trust [2018] EWHC 3281 (QB) (29 November 2018)

The claim is therefore brought on behalf of B’s estate and dependents, including his wife, under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. [1]

B sadly died on 21 November 2013 aged 77. The death certificate lists the causes of death as an anoxic brain injury, respiratory and cardiac arrest and severe acute epiglottitis. [2]

It is C’s case that but for the negligence of D, B would not have died. [3]

Evidence that… up until 16 November 2013 B was in good health and spirits. On 16 November he was complaining that he was not feeling well. He felt like he was coming down with the flu, had a sore throat and felt feverish. He went to bed in the early afternoon. On 17 November he continued to feel unwell and was in bed B was struggling to breathe… B was sitting up, gasping for air and his voice was very peculiar. He “sounded like Mr Bean”. An ambulance was called… [6] paramedics attended and identified that the deceased was in both respiratory failure and respiratory distress. He was given an adult dose of nebulised Salbutamol, put on oxygen, given 1g of paracetamol and taken to the defendant’s hospital at 18.37. At hospital he was triaged by a nurse. A chest X-ray was ordered, and bloods were taken. He was seen by the D… and was discharged home with oral antibiotics around 10.00pm. [7]
His wife woke at about 4am on 18 November to find him collapsed and not breathing. Another ambulance was called at around 4.27. Bolton was in cardiac arrest. This was in consequence of airway obstruction due to the epiglottitis. The respiratory and cardiac arrest resulted in an anoxic brain injury and life support was withdrawn with the deceased’s family’s consent on 21 November. [8]

C’s case that the deceased should not have been discharged from hospital. Given the history of respiratory failure and respiratory distress, it is alleged that he should have been admitted and monitored further. The basis of the claim is that there was a failure properly to appreciate that the deceased’s presentation warranted an inpatient admission and that it was not safe to discharge him at 10.00pm. [9]

C argues that I should find that: there was a clear indication of respiratory failure; there was no known history of respiratory disease; any improvement in oxygen saturations were insufficient to confirm that the deceased could safely be discharged; and the working diagnosis of D was unsafe. [10]
C further invites me to conclude that there are only two explanations for the lack of reference to previous respiratory failure and respiratory distress in D’s notes and that those are either, firstly, that D did look at the ambulance records, known as the Patient Report Form (“PRF”) but failed to recognise the severity of B’s presenting condition or, secondly, that he did not look at the PRF and therefore, failed to avail himself of all clinically relevant information before making decisions. For whichever reason he did not appreciate the severity of the presenting complaint. [11]
D denies breach of duty contending that the deceased recovered significantly following the administration of Salbutamol (and oxygen) so that his oxygen saturation levels were 95% on air and his breathing rate, heart rate and temperature were normal, and it was appropriate to discharge him home. [12]

on a balance of probabilities that had D been aware of the contents of the PRF and the triage notes he would have been in breach of his duty in failing to admit B and instead sending him home… Without the benefit of the information in the PRF and the triage notes D could not have properly exercised that judgement and assessed the risk and this amounted to a breach of duty. Further at no point in his witness statement does D set out his thought processes and assessment of risk giving rise to his judgement that it was safe to send B home. That judgment should have been made taking account of the respiratory failure, respiratory distress and so on set out in the PRF and the triage notes and the improvement on Salbutamol. I can only conclude therefore that he did not undertake that exercise but any risk assessment he did undertake was made only on the basis of the information from his own examination and the results obtained thereafter. [158]

…D was in breach of duty and that B should have been admitted and could not be safely discharged home and there will be judgement for C in the agreed sum of £75,000. [159]