Marshall v Schembri [2019] EWHC 283 (QB) (15 February 2019)

C is the husband of the deceased who died on 26 April 2014. The time of death was declared at 09:37 hours. D is a General Practitioner. It is admitted that D breached his duty of care to the deceased. It is denied that that breach of duty of care caused the deceased’s death. Subject to causation, and therefore to liability, damages have been agreed between the parties. Thus, the sole issue for the court is causation. [1]

On 25 April 2014 the deceased attended D… Her presenting symptoms were chest pain and breathlessness. The deceased had a known history of pulmonary embolism (“PE”) from 2008. The admitted negligence is that D should have referred the deceased directly to hospital. He did not do so and the deceased returned home. She suffered a cardiac arrest at about 8.30 a.m the following morning. The paramedics attended but were unable to resuscitate her. [2]

The central issue between the parties is that C’s case is that the deceased would have survived had she been referred by D to hospital. D’s case is that the deceased would have died in any event. [8]

C has the burden of proving causation. Yet C needs to prove no more than that deceased would have probably have survived had she been admitted to hospital. C does not need to prove the precise mechanism by which her survival would have been achieved. [128]

Thus the expert medical evidence to which I have referred and the statistical evidence demonstrate that at the time when the deceased should have presented at hospital, anybody rating her chances of survival would have put them at being very high. Tragically, she did in fact die out of hospital. In the situation which occurred, detailed analysis of such evidence as we have cannot lead the court to find that by such and such a mechanism, or at any particular stage, the course of events would probably have been different. This is overwhelmingly because of a large number of unknowns. [145]

The court, in looking at the evidence as a whole, must take a common sense and pragmatic approach to that evidence, in circumstances where it is equivocal. The court must also be wary of relying on the statistical evidence in the literature which has a number of variables. Had the statistical evidence, in conjunction with the expert evidence, have led to the conclusion that the deceased’s chances of dying would have been assessed on presentation as only slightly better than 50-50, I would have found for D. However, the above evidence of [experts relied on by C], in conjunction with the medical literature, drives me to the conclusion that on the clear balance of probabilities she would have survived. [146]

…find for C on the issue of causation. [147]