Schembri v Marshall [2020] EWCA Civ 358 (10 March 2020)

The issue to be resolved, on which the judge found in R’s favour, was whether the Deceased would have survived had she been referred promptly by A to hospital. A’s case was, and is, that the Deceased would have died even if she had been so referred. [3]

At about 1600 hours on 25 April 2014, the Deceased attended A’s surgery …She was complaining of chest pain and breathlessness. She had had a previous pulmonary embolism (“PE”) in 2008… She had been successfully treated for that PE on that occasion… The breach of duty admitted by A is that he should have referred the Deceased directly to hospital on the afternoon of 25 April. He did not do so; he examined the Deceased and told her that the most probable cause of her symptoms was muscular strain affecting her hiatus hernia. [4]

The next morning (26 April 2014) both R and the Deceased woke, after uninterrupted sleep.. She collapsed and R called for an ambulance… The Deceased had… suffered by then a cardiac arrest and the attending paramedics were unable to resuscitate her. [6]

had the Deceased been referred to hospital at the proper time on the previous day, she would have been diagnosed as having PE. Potential treatment would have been: a) anticoagulation, i.e. heparin and/or b) thrombolysis or “clot busting”. The drug that would have been used for thrombolysis would have been alteplase which works by dissolving or removing any clots already formed. This is only to be used when indicated, rather than automatically, in such cases, and only where the potential benefits outweigh certain risks, in particular the risk of bleeding. [8]

if the Deceased had attended hospital on A’s referral, she would have received heparin by 9 p.m. on 25 April which would have taken effect to prevent further clotting by about midnight at the latest. There is no further dispute before us as to that finding. However, thereafter, the cases of the parties diverge. [9]

A’s case is heavily dependent upon the hypothesis that what actually happened in the Deceased’s home on 25/26 April 2014 would have happened if the Deceased had been in hospital as she ought to have been. The judge was not prepared to assess the case solely on that basis. The “counter-factual” case of what would have happened in hospital could not be fully assessed on the basis of what did happen at home. [54]

…the judge…was attempting to find out whether a specific mechanism would in probability have prevented the death. He found that he could not do so, but death was the highly likely result of an undiagnosed and untreated PE. The evidence… clearly indicated that she was most unlikely to have died in hospital. He contrasted that with [A’s expert] approach to assessing the case as a typical death from PE which the judge found “tells us little about the risk of death from a massive PE if a patient is admitted to hospital”… That was the judge’s assessment of the overall evidence. In such circumstances, while A says the judge was “driven” to the conclusion that the Deceased would have survived, the judge actually said, “… the above evidence… drives me to the conclusion that on the clear balance of the probabilities she would have survived.” (Emphasis added) [55]

without being able to prove the precise mechanism of survival to the requisite standard, after exhaustive consideration of all the material, R did satisfy the judge “clearly” that the result that occurred was caused by the breach of duty. In my judgment, he was entitled to be so satisfied… Each case (like this one) will be intensely “fact-specific”. [56]

This was a highly complex, and rather puzzling, case on the extensive medical evidence. The very experienced judge heard and read all that evidence with obvious care… [57]

Appeal dismissed [61]