Before : WINSTON HUNTER QC SITTING AS A JUDGE OF THE HIGH COURT Between :

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1 Neutral Citation Number: [2017] EWHC 3244 (QB) IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION Case No: HQ15C05101 Royal Courts of Justice Strand, London, WC2A 2LL Date: 15/12/2017 Before : WINSTON HUNTER QC SITTING AS A JUDGE OF THE HIGH COURT Between : Carol Thornton (as Executrix of the Estate of William Thorton Deceased) - and - Homerton University Hospital NHS Trust Claimant Defendant Mr Andrew Perfect (instructed by Slater and Gordon) for the Claimant Mr John Coughlan (instructed by Bevan Brittan) for the Defendant Hearing dates: November Judgment

2 Winston Hunter QC: 1. On 21 December 2012 Mr William Thornton ( Mr Thornton ) then aged 74 died from oesophageal cancer. 2. This claim for damages is brought by his daughter on behalf of his estate and for bereavement damages in respect of treatment given to Mr Thornton by Dr Paul Candler at the Emergency Department of Homerton Hospital on 9 January On that day Mr Thornton had attended the hospital with a food bolus lodged in his throat. The bolus had been lodged for some time reported as being approximately 18 hours. It is common ground that the bolus cleared during the course of his attendance and whilst awaiting an appointment with a doctor and in any event prior to him being seen by Dr Candler. Following a consultation involving the taking of a medical history, an assessment of the presenting problems, an examination and discussion of treatment options Mr Thornton was discharged without any recommendation for further investigation but with what has been described, at least in this litigation, as safety net advice to return to the Emergency Department if Mr Thornton felt unwell or if he was unable to tolerate fluids or food. 3. Mr Thornton did not return to Homerton Hospital for any further appointment. 4. In July 2012 Mr Thornton attended upon his GP with a one month history of vomiting and weight loss. He was referred back to Homerton Hospital for an upper gastrointestinal (GI) assessment. In mid-august 2012 Mr Thornton underwent an endoscopy and was diagnosed with oesophageal cancer. It is now alleged that Dr Candler was negligent in his management of Mr Thornton s admission on 9 January It is said that Mr Thornton should not have been discharged without specific advice to pursue further investigation. It is alleged that such further investigation would have led to an earlier diagnosis of the malignancy. It is further alleged that this negligent management was responsible for a delay in the diagnosis and treatment of Mr Thornton s disease. 5. By a claim form dated 10 December 2015 proceedings were issued in the High Court by Carol Thornton suing as the Executrix of the estate of Mr Thornton. The Defendant is the Trust with responsibility for the administration of the Homerton University Hospital and the employer of Dr Candler. By her Particulars of Claim dated 19 th of March 2016 the Claimant alleges that the treatment of Mr Thornton was negligent in a number of material respects. In particular it was alleged that the Defendant by its servants or agents: (a) (b) (c) Failed, on or after 25 th of March 2008, to arrange any or any adequate follow-up arrangements after the diagnosis of Barrett s oesophagus; failed, on or about 9 January 2012 to take any or an adequate full history of relevant matters, particularly dysphagia and Barrett s oesophagus and to act upon the same; failed to carry out any or any adequate examination of the deceased, and failed to refer to or obtain relevant notes of his relevant medical history;

3 (d) (e) (f) (g) (h) (i) failed to establish the nature and site of the impacted bolus; failed to establish whether there was an underlying condition responsible for the impaction of the food bolus; failed to heed the well-recognised risk of a new episode of food impaction being the first manifestation of a significant condition affecting the oesophagus in a patient of the deceased s age; failed to refer the deceased urgently for upper gastrointestinal investigations including endoscopy, at the least as an outpatient; failed thereby to take advantage of an opportunity to diagnose and begin treatment of the oesophageal cancer; failed to provide the appropriate standard of care; 6. Those allegations of breach of duty are listed in full because the Claimant s Particulars of Claim has been the subject of amendments on two occasions including an amendment made without notice at the outset of the trial before me. On the 30 th of October 2017 the Claimant issued an application to amend the Particulars of Claim to add a further allegation of negligence. That application was determined by a consent order dated 15 th of November The amendment was to paragraph (g) of the particulars of negligence which by the amendment now reads: failed to refer the deceased urgently or non-urgently via the GP, or even to advise the Claimant to speak to his GP about the need for upper gastrointestinal investigations, including endoscopy, at the least as an outpatient. 7. At the commencement of this trial a further application was made for the reamendment of the Particulars of Claim. Mr Coughlan, counsel appearing on behalf of the Defendant, had foreshadowed in the Defence skeleton argument the probable need for an amendment or at least clarification of the Claimant s case, identifying as he did that the Amended Particulars of Claim did not reflect the witness evidence that the Claimant intended to adduce. Whilst not inviting an application to amend, the Defendant, rightly, in my view, sought clarification of the case it was required to meet. 8. The relevant passage is at paragraph 9 of the witness statement of Carol Thornton, the daughter of the deceased, dated 2nd December That paragraph, so far as material states as follows: However my brother advised the consultant that my father had been having difficulty swallowing for a while. This appeared to be an allegation that the doctor in question had not simply failed to ask the appropriate questions in order to elicit the correct information but a much stronger allegation, namely that Dr Candler had actually been provided with the relevant information. Mr Coughlan submitted that if it was part of the Claimant s case that Dr Candler had been informed that Mr Thornton was experiencing

4 swallowing difficulties then this was a central and material allegation and required to be pleaded. It was also said to be inconsistent with the allegation that Dr Candler had failed to elicit relevant information. 10. Although the precise nature of this allegation of breach had not been formulated by Mr Perfect at the time he made his application for permission to amend, I gave permission for this issue to be formally raised by way of a Re-Amended Particulars of Claim conditional on a written formulation of the allegation being served on the Defendant and submitted to the court and provided that the same fell within the ambit of the evidence at paragraph 9 of the Claimant s witness statement. On the second morning of the trial Mr Perfect, counsel for the Claimant, introduced by amendment an additional allegation to the Amended Particulars of Claim as follows: (bb) Failed, on or about 9th of January 2012, to record, consider, and or act upon such information as was provided, including, for the avoidance of doubt, that the deceased had difficulty swallowing during All allegations of negligence were denied. 12. By its Defence the Defendant contended that at the consultation on 9 January the clinician Dr Candler had carried out a reasonable examination including eliciting an appropriate medical history. It was contended that on the basis of the presentation appropriate questions were asked. It was contended that Mr Thornton attended hospital complaining of a food bolus lodged in his throat but the same had cleared spontaneously whilst waiting to be seen. It was alleged that the nature and site of the food bolus could not have been discovered because it had passed by the time Mr Thornton was seen by Dr Candler. It was denied that any further action other than that advised by Dr Candler was required at the time. It was alleged that having carried out an appropriate examination and elicited such information as was reasonably required, Dr Candler gave appropriate advice. In particular it was said that the fact that the food bolus had cleared and the fact that it was not accompanied by any other serious or material symptoms, details of which had been investigated appropriately by Dr Candler, indicated that there was no reasonable indication or suspicion of a malignancy. It was contended that the Defendant s care and treatment of Mr Thornton did not fall below the standard to be expected of a reasonable and responsible clinician in Dr Candler s position and the decisions made by him accorded with a body of reasonable and respectable medical practitioners. As such any negligence on the part of the Defendant their servants or agents was denied. 13. In the event that liability was to be established the parties are agreed as to the issue of quantum. The Witnesses 14. I heard oral evidence from four witnesses. The Claimant herself gave evidence in accordance with her witness statement dated December The Defendant called Dr Candler, now a consultant in adult intensive care medicine but at the time an ST4 in emergency medicine.

5 15. In addition, I heard expert evidence from Mr Heyworth a Consultant in the Emergency Department at University Hospital Southampton, a past President of the Royal College of Emergency Medicine, Past President of the British Association for Emergency Medicine and past Editor of the Journal of Accident and Emergency Medicine. The Defendant relied upon expert evidence of Dr Jonathan Jones a consultant in emergency medicine at the Leeds Teaching Hospitals Trust and fellow of the Royal College of Emergency Medicine. At the time of the preparation of his report Dr Jones was the clinical lead of the West Yorkshire Major Trauma Operational Delivery Network. 16. Both parties had permission to rely on oncology expert evidence in relation to condition and prognosis. The Claimant obtained a Part 35 report from Prof Johnson Consultant General Pancreas Biliary and GI Surgeon and the Defendant had obtained report from Dr Graham Read a Consultant in Clinical Oncology. The experts in like disciplines produced joint statements and it became apparent that there was agreement between the experts on issues relating to condition and prognosis. 17. In addition to his report on condition and prognosis dated 22 nd January 2016 Prof Johnson had in May 2014, which was sometime before proceedings were issued and indeed before the initial Protocol Letter was sent, produced a report addressing both breach of duty and causation. It is to be noted that Prof Johnson does not practise in Accident and Emergency medicine and as such his opinion on the standard to be expected of a reasonably competent clinician in this field of medicine was likely to be of limited value to a court. Nonetheless and perhaps as part of the early investigation into the issues, it appears that his views were sought by those advising the Claimant. At the time Professor Johnson was invited to express an opinion on breach of duty it is clear from his report that he was not in possession of all the relevant records. His report was based solely on the discharge summary that had been sent by Dr Candler to the GP and did not include the contemporaneous notes of the consultation. Professor Johnson was made aware of the fact that Mr Thornton had had a history of previous investigations including an endoscopy. He was clearly of the opinion that Dr Candler had been aware of some of this information. He concluded that there had been a failure on the part of the treating clinician to elicit the history of dysphagia and Barrett s oesophagus Prof Johnson opined that a failure to obtain a full history of relevant matters fell below the standard of care expected. He went on to comment that the correct management of Mr Thornton should have been to arrange referral to the gastroenterology department for further investigation by endoscopy. He concluded that in any case, the symptom of food bolus obstruction always requires investigation and that no reasonable body of medical opinion would dismiss that symptom without investigation. 19. Mr Heyworth provided a medicolegal report in April In this report Mr Heyworth expressed agreement with the views contained within the report of Prof Johnson and in particular appeared to agree that Mr Thornton should have been referred for an endoscopy. At the outset of the trial Mr Perfect sought the Court s permission to adduce the evidence of Prof Johnson in support of his allegation of breach of duty against Dr Candler. The application was supported by a submission 1 A benign condition in which cells in the oesophagus grow abnormally.

6 that Mr Heyworth had positively endorsed the views of Prof Johnson, that the matters commented on by Prof Johnson were clearly relevant issues and that the court would be assisted by his evidence. 20. The application was opposed. 21. It was submitted by Mr Coughlan on behalf of the Defendant that Prof Johnson had no relevant expertise in the practice of Accident and Emergency medicine, that no evidence from him on this issue had been the subject of permission, that the Claimant had an expert in that relevant discipline who had engaged in joint discussions with the Defendant s expert, Dr Jones, and that the fact Mr Heyworth had commented on Prof Johnson s observation was irrelevant. 22. I refused the Claimant s application. I was satisfied that Prof Johnson s comments in relation to the standard of care to be expected of a reasonably competent clinician in a discipline in which he Prof Johnson did not practise, might have been of some, albeit limited value to the Claimant s solicitors in their investigation of the claim, however it was of little or no value to the court in deciding whether Dr Candler had been Bolam negligent. Such standard is to be judged against a reasonable and responsible body of clinical practice in that area. Relevant evidence as to what such standards were at the time of the acts or omissions complained of is to be given by those qualified to express reliable opinion on the same to the court. Prof Johnson did not fall into that category. In addition, the court had restricted permission for expert evidence on breach of duty to one expert for each party in the discipline of Accident and Emergency Medicine. 23. It was agreed by both parties that there were no other issues on which Prof Johnson and Dr Read disagreed and as such neither expert played in further part in the trial. The factual witnesses 24. I heard evidence from Carol Thornton. She is the daughter of Mr Thornton. She works as a senior business analyst. She confirmed that Mr Thornton had lived an active life until his retirement in In 2007 he was referred by his GP for an upper gastrointestinal examination. An endoscopy in December 2007 showed Mr Thornton to have some suspected abnormality and he had a further endoscopy in 2008 which showed that the ulcer was healing. A small segment of Barrett s oesophagus was noted and it is alleged that Mr Thornton was told that he would be followed up in two years time. It was said by her, and is not challenged, that no follow-up was ever arranged. I should observe that although this matter was the subject of an allegation of breach, it was not alleged that this breach was causative of any damage. Mr Coughlan described the allegation as being inchoate and for completeness Professor Johnson, the Claimant s oncologist was in agreement that insofar as there was a failure to follow-up the 2008 diagnosis the same is not directly relevant to the matters under consideration. 25. Carol Thornton gave evidence that in September 2010 she took her father to the Accident and Emergency department at Homerton Hospital because he was choking on his food. She told the court that she had informed a consultant who saw her father that he had previously received treatment for an oesophageal stricture. Her

7 recollection was that the consultant was more interested in her father s high blood pressure and did not carry out any tests. 26. Carol Thornton was not present when her father attended the Accident and Emergency department on 9 January Her statement records that the problem resolved whilst he was waiting to be seen. It also states that he was reassured that nothing was wrong and advised to commence with a soft diet and seek further review if his symptoms recurred. The source of this part of her evidence is not stated in her witness statement and it was not explored in cross-examination, however nothing turns on this since it accords with the contemporaneous records and may well be merely a recitation of the contents of the same. 27. At paragraph 9 of her statement Carol Thornton stated: The records note that the patient reports that he had no swallowing difficulty. However, my brother advised the consultant that my father had been having difficulty swallowing for a while. This aspect of her evidence was the subject of some cross-examination to which I will return. Carol Thornton also gave evidence about a further visit by her father to his GP on 20 July She states that he had been vomiting for a month, was unable to keep down solids and had lost weight. He also reported that he was suffering from heartburn and was as a consequence referred for an upper gastrointestinal assessment. On 3 August 2012 he was seen at Homerton Hospital and an endoscopy arranged. The endoscopy was carried out on 16 August 2012 and this showed a tumour of the oesophagus. The remainder of Ms Thornton s witness statement addressed issues relating to her father s end of life care in respect of which a number of criticisms were being made. 28. In cross-examination Ms Thornton accepted that she had used the term consultant in a generic sense when describing the doctor who had seen her father in September As to the suggestion contained in paragraph 9 of her statement, namely that her brother had told Dr Candler that her father had been having difficulty swallowing, she admitted that she had no first-hand knowledge that this was said and was reliant on what her brother had told her. She confirmed that her brother had died on 7 July She confirmed that she had first seen solicitors in 2013 to investigate her father s treatment. She accepted that the initial focus of her complaint and the investigation had been in respect of what was believed to have been a negligent failure to follow up the diagnosis of Barrett s oesophagus in 2008 and in respect of what was felt by the family to have been substandard care in the latter stages of her father s life following the diagnosis of cancer. She confirmed that she had been asked by solicitors to collate information from her family and that she had spoken to her brother about the events at the time of the consultation on 9 January In answer to a question from Mr Coughlan she said that she had taken a statement from her brother and that this was included as part of her statement. She was asked why no statement was available from her brother given that on her own evidence these matters were being investigated from 2013 and her brother died in July Ms Thornton repeated what her brother had said had been incorporated into her statement. As to the alleged history of

8 swallowing problems she stated that she could recall several occasions where her father had been choking on his food and that it had been necessary to perform the Heimlich manoeuvre. Ms Thornton was taken to several entries in the medical and GP records both prior to and after the attendance on the 9 January The significance of such entries was said to be the absence of any record that Mr Thornton was experiencing swallowing difficulties. By way of example at page 118 of the documents bundle an upper GI suspected cancer referral form dated 20 th of July 2012 can be found. This was less than one month before the diagnosis of oesophageal cancer. Under section 3 headed Clinical Information a reference is made by way of a tick to Persistent vomiting and weight loss but there is no reference to dysphagia even though the same is identified as a possible symptom that could be highlighted as a presenting condition. Further, nowhere in the records is there a reference to any swallowing difficulties. Ms Thornton described her father as a stoical man but suggested that she would have expected him to report previous swallowing difficulties. 29. In re-examination she expanded her evidence further, alleging not only prior problems with swallowing but suggesting that these events had been present from 2011 and in 2012 and perhaps even earlier in 2010, and that they had been increasing. This was somewhat new evidence going beyond what had been said in her evidence in chief and challenged in cross-examination. As such I permitted Mr Coughlan to ask supplementary questions. Ms Thornton agreed that if what she was now saying about the history and frequency of swallowing difficulties was correct, then it was surprising that they were not mentioned in any relevant records between 2010 and The Defendant called evidence from Dr Paul Candler, now a consultant in adult intensive care medicine at Nottingham University Hospitals NHS Trust. Dr Candler completed his foundation training and qualified in At the time of the events in 2009 he was working as a Senior Trainee in Emergency Medicine. He confirmed that his first and only involvement in Mr Thornton s care was on 9 January Understandably Dr Candler had no direct recollection of this consultation and was reliant on the contemporaneous notes and on his practice at the time. By reference to his notes Dr Candler was able to confirm that the patient had attended the Emergency Department at and that he was seen at Based on those notes Dr Candler confirmed that he took a history from the patient and noted that he had had a piece of food lodged in his upper throat since 8.00pm the preceding evening had been unable to swallow fluids, saliva or take medication. He did not have any chest or abdominal pain, and had been passing urine and opening his bowels as normal. Dr Candler confirmed that at that time he saw the patient the bolus had resolved and the patient was not complaining of any symptoms. It was Dr Candler s evidence then as the bolus had resolved by the time of the examination he was not able to determine the nature of the foodstuff nor the precise site of the obstruction when the throat was examined. 32. Dr Candler recorded in his notes that the patient had said that he felt that the obstruction had been in his upper throat. Dr Candler observed that patients are not necessarily able to accurately judge where the site of any obstruction might be but that when a patient says they have foods stuck in their throat they tended to mean an obstruction higher up. Dr Candler confirmed that he had asked the patient about his

9 past medical history and had noted that he had suffered from gout, hypertension and gastritis. Dr Candler was unable after such a length of time to say how much detail he had gone into these conditions or as to whether or not the deceased had mentioned whether he had had previous endoscopies. However Dr Candler stated that had such matters been mentioned he would have recorded them and therefore the fact that they have not been recorded suggest to him that they had not been mentioned. Likewise had the patient mentioned Barrett s oesophagus, he would have recorded this fact. In his witness statement Dr Candler also stated I do not recall having access to the deceased s hospital records at the time. This sentence in the witness statement assumed some importance in cross-examination because of a suggestion made to Dr Candler and developed in closing submission, to the effect that Dr Candler may have had access to historical clinical records and that he might have obtained information from those records and copied these into the consultation notes rather than having received such information from the patient or his son. 33. Dr Candler stated that he had performed an examination and that he had noted that the patient was systemically well and asymptomatic at the time of the examination. His pulse rate was regular, his chest and abdominal examinations were normal and his neurological system was grossly intact. The patient s throat was examined and noted NAD which means nothing abnormal detected. Dr Candler further confirmed that he was aware that oesophageal malignancy can present with oesophageal obstruction and as a consequence he made sure that he questioned the patient about possible symptoms that would be suggestive of malignancy. Dr Candler referred to the discharge letter completed by him following the attendance. 34. In cross-examination and in re-examination Dr Candler explained that the consultation notes and discharge letter must be seen as part of one complete picture comprising the history as taken from the patient, the findings on examination and the treatment options arising therefrom. As such he identified the discharge letter as an important record of the history, examination and a treatment plan. In this case the discharge letter confirmed that there was no weight loss, swallowing difficulties or other symptoms suggestive of malignancy. In his statement he confirms that as was his usual practice, he would have been alert for any alarming features such as swelling of lymph nodes, hepata or splenomegaly, bleeding or bruising. Having found nothing to justify further investigation whether by endoscopy or a GP referral for further investigation, he advised the patient to have a soft diet. This was explained on the basis that often the throat can be sore from the fact and duration of the obstruction. He also advised that Mr Thornton was to seek further input if he became unwell or was once again unable to tolerate fluids or foods. He confirmed that that was the sum total of his involvement with Mr Thornton. 35. It was Dr Candler s evidence that the food bolus blockage is not uncommon in the Emergency Department. He believes that even if the patient had mentioned his history of Barrett s oesophagus and previous endoscopies his immediate management would not have changed because the bolus had resolved and as such there was no requirement for any urgent treatment because the patient was at the time well with no obvious obstruction. However, Dr Candler accepted that with knowledge of this history he would have advised the patient to go to his GP and to ask to be referred for further investigations. 36. Dr Candler was subjected to detailed and appropriate cross examination.

10 37. He accepted that all patients presenting with a food blockage of the oesophagus had to be treated as individuals. He accepted that the presence of a bolus could be a sign of something more serious. In terms of the frequency or otherwise of such conditions he accepted that in his four years as a clinician in the emergency department he had seen 4 or 5 similar cases. He thought that on average his fellow clinicians in the same department would have seen a similar number. He accepted that it was important to obtain a history and that a number of features from such history might be viewed as relevant. Dr Candler confirmed that the handwritten clinical notes and the discharge letter to Mr Thornton s GP may well have been written at or about the same time which would have been immediately after the consultation had ended. He was prepared to accept that the handwritten notes may have been started during the consultation, however his evidence was that it was important to read both documents together because details as to the history elicited from the patient may be ascertained not just from reading the consultation notes but also by looking at what is said in the discharge letter. 38. Dr Candler was asked a series of questions seeking to determine whether or not he had been in possession of clinical records that may have been prepared at the time of a previous in-patient admission of Mr Thornton to the hospital. His evidence, which I accept, was that it was not routine for a clinician working in the Emergency Department to have and to access the records from a previous inpatient stay. What would be available would be the Triage computerised sheet with the essential details identifying the presenting condition or complaint, and possibly reference to previous admission(s) to the Emergency Department providing the date of the same. He accepted that the patient s records relating to a previous period of inpatient stay would be available somewhere in the hospital and that had he required these records he could have called for their production. He guessed that calling for their production might have taken between an hour and several hours. In the particular circumstances of this case he saw no reason why he would seek to obtain previous records relating to an earlier inpatient stay. The purpose of questions relating to the earlier records seems to have been twofold. Firstly, to determine whether Dr Candler had additional information as to the patient s medical history that would have been contained in such records and to consider whether by reason of the same Dr Candler ought to have been on notice of any previous relevant entry or information relating to prior clinical presentation relevant to the admission on the 9th January. Secondly, it was suggested to Dr Candler that there was a similarity between his note of the patient s previous medical complaints, namely gout, hypertension and gastritis and the manner in which such entries had been recorded in earlier clinical records. The implication put somewhat tentatively to Dr Candler was that he might have simply copied the entries from the pre-existing records into his clinical notes relating to the visit. Dr Candler accepted that it was possible that he had had access to those early records but confirmed that he believed that it was more probable that he did not have such access. He was clear that he would not have copied entries from earlier records rather than seeking such information from the patient. 39. Having heard Dr Candler s response to this line of questioning and observed the manner in which he gave his evidence generally, I am satisfied that Dr Candler did not have access to the earlier records nor was there any reason for him to consider that he should seek access to them. I m also satisfied that Dr Candler made such entries as

11 he did in his hand written notes based entirely upon the information either elicited from the patient or his son or secured by reason of his examination of Mr Thornton. 40. Much of Mr Perfect s cross-examination of Dr Candler centred around what was described as factors that Dr Candler ought to have noted and attached significance to when reaching a decision as to the appropriate course to take. These factors were said to include the age of the patient, the precise food type forming the obstruction, where in the throat the obstruction was, the duration of the blockage, whether it was partial or total and the patient s previous medical history. 41. Dr Candler was prepared to accept that the patient s age, and his previous medical history were relevant and that the duration of the blockage in some circumstances, might be relevant. In the present case he did not consider that the type of food or the fact that the obstruction had been total or that it had been present for a lengthy duration were of particular relevance. Dr Candler s evidence was that the blockage had resolved spontaneously, that his examination of the patient did not suggest any other problems, that there were no red flags either by reference to the examination or by reference to the history obtained from the patient. In the circumstances it was in his judgement appropriate to treat Mr Thornton as a patient who had presented with an isolated episode of food blockage that had resolved spontaneously and someone who did not require either endoscopy or advice for further follow-up treatment. 42. Mr Perfect, as he was duty-bound to do cross-examined Dr Candler on whether he had been specifically told that Mr Thornton had a history of swallowing difficulty. It was put to Dr Candler that it was possible that he had been told of this and that he had failed to remember this information when completing his notes or even if he had not forgotten this information he had failed to record this fact in his notes. 43. Dr Candler was prepared to admit of a possibility that a piece of information might be given by a patient during a consultation and that he as the examining doctor might forget to record this information. However he rejected the suggestion that that was likely or probable in this case. He referred to the fact that he had made a positive entry in the discharge letter to the effect that Mr Thornton did not have swallowing difficulties. He considered it to be highly unlikely that he was told that Mr Thornton did have swallowing difficulties and yet chose to record that there were none. He rightly identified that the presence or otherwise of swallowing difficulties was clearly a matter of significance and would have amounted to a red flag issue. In those circumstances, he would not have made a contrary entry in his discharge letter to Mr Thornton s GP. His evidence therefore was that he did not believe that that information, namely that Mr Thornton had had previous swallowing difficulties had been conveyed to him. His evidence was that, for whatever reason when the question had been asked of Mr Thornton he had been provided with information by Mr Thornton or his son, to the effect that there had been no such difficulties. Dr Candler was cross-examined on his technique when asking questions. This line of cross examination was relevant to the Claimant s alternative case, namely that if it was to be found that Dr Candler had not been told of previous swallowing difficulties, he ought nonetheless to have obtained this history through questioning and the history of a previous Barrett s oesophagus diagnosis should also have been elicited. 44. It is part of the Claimant s pleaded case that the history taking was inadequate. Dr Candler accepted the distinction between open and closed questions and the

12 importance of asking specific directed questions in order to elicit relevant history. Dr Candler s evidence was that it was not possible to include every possible question and answer in the notes of a clinical consultation in the busy environment of an Accident and Emergency department. However, he was well aware of the importance of questioning and that he had in mind the issue of possible malignancy and that he was satisfied that the questioning would have been directed with that issue in mind. He drew counsel s attention to the discharge letter as demonstrating that the issue of malignancy had not been ignored and had been addressed. 45. Dr Candler was cross-examined on his decision not to recommend further investigation. It was put to him that even if a decision had been reasonably made not to refer Mr Thornton for an endoscopy, he should have been advised to seek further treatment and advice from his GP rather than to advise him to return if he became unwell or symptoms relating to further food blockage occurred. Dr Candler accepted that he could have advised a follow-up with the GP and that with hindsight and his knowledge of the subsequent developments in Mr Thornton s case he probably ought to have done so. However, he was also clear that he does not consider that a referral is to be made merely as a matter of course and in circumstances where in his judgement he sees no reason to do so. He confirmed that his judgement in this particular case had been to regard the incident as an isolated episode with no other suspicious features and hence one that did not justify a referral. Evaluation of the factual evidence 46. I was able to see and hear the two factual witnesses. It is understandable that Ms Thornton feels strongly that her father s medical care was in some way mismanaged. Much of her witness statement related to treatment that he received following the diagnosis of his oesophageal cancer. Whilst clearly distressing and of some concern to the family, those matters do not fall within the compass of the issues being litigated in the action before me. 47. The most important aspect of her evidence is that relating to the history of alleged swallowing difficulties and the extent to which this information was communicated to Dr Candler. There are a number of significant and unexplained features relating to this evidence. Firstly, if Dr Candler had been told of a history of swallowing difficulties then it is common ground between the medical experts that he should have acted on such information and advised further investigation. As such this issue, one would imagine, ought to have been a central plank of the Claimant s case. According to Ms Thornton she was asked to investigate the facts and she spoke to her brother and elicited this information from him. It is suggested that this was in 2013 or 2014 and certainly and self-evidently before he died. 48. On the 2nd October 2014 Claimant s solicitors wrote a pre-action protocol letter of claim to the Trust. This was a detailed letter setting out the history and the allegations of breach. Nowhere in that protocol letter is it alleged that Dr Candler was told of swallowing difficulties. Neither does the protocol letter refer to a history of swallowing difficulties or a suggestion that in September 2010 Mr Thornton when seen at the Homerton hospital presented with a history of choking on his food. These are significant omissions of matters that would have been of obvious relevance to the case being advanced, namely that the Trust had failed to act upon a history of swallowing difficulties.

13 49. It is also of significance that when proceedings were issued and allegations of breach of duty were set out they did not include the allegation that Dr Candler had failed to act upon the information provided to him relating to swallowing difficulties. On the contrary it was alleged that he had failed to elicit relevant information. Mr Coughlan in submission drew my attention to the fact that there was no written evidence from Ms Thornton s brother to support the fact that he or his father had told Dr Candler of this history, nor was there any evidence given by Ms Thornton as to the circumstances in which this information had been provided so as to allow an evaluation as to its reliability. The point was made that it was not necessary for the Defendant to invite the court to disbelieve Ms Thornton because even if it was found as a fact that she had been told that which she gave evidence about, there was no evidence that what she was told was true or accurate. It was submitted by Mr Coughlan that this evidence was in truth no more than valueless hearsay. 50. The assertion that Dr Candler had been told of previous swallowing difficulties did not form part of the Claimant s pleaded case until an amendment was made at the outset of the trial. Set against the obvious deficiencies in this aspect of the Claimant s factual evidence is the contemporaneous record of the discharge summary created at the time of the consultation and forwarded to Mr Thornton s GP. That discharge summary contains a specific reference to the fact that Mr Thornton had no history of swallowing difficulties. I have no hesitation in concluding that Dr Candler wrote that at a time when he genuinely believed and had reasonable grounds for believing that this was the true position. I am satisfied that the grounds for such a belief were the questions asked by Dr Candler and the answers that he received. Dr Candler himself gave evidence in an entirely straightforward modest and convincing manner. He was willing to accept matters put to him and was in many ways more accommodating than in fact the evidence required him to be. 51. On this issue I am satisfied that he was not provided with a history of swallowing difficulties, that having asked the question in an appropriate and sufficient manner he was provided with answers that allowed him to reasonably reach the conclusion that he did. It is not necessary for the court to determine whether Mr Thornton did indeed have significant swallowing difficulties in 2010 or 2011 or indeed However, if a finding was required on these issues I am not satisfied that such difficulties as were mentioned in evidence by Ms Thornton accurately reflected the picture that existed at that time. I draw support for this finding from the fact that these allegations were not contained within the protocol letter and I note that they are not supported by the clinical records in 2010 or in 2012 following the January consultation. In particular even though Mr Thornton was being referred in July for endoscopic investigation, and it was reported that he was having significant difficulties with vomiting, there was no suggestion that he was having problems swallowing as opposed to retaining in his stomach the contents of that which he had eaten or drunk. I find it difficult to accept that Mr Thornton would have been having such difficulties and yet there is no reference in the record and, in particular in the tick box form, to dysphagia. This would be precisely the type of question that the GP would have been prompted to ask in order to populate the required information on the referral form. 52. I am therefore satisfied that, in respect of the first issue which is one of fact, the evidence given by Dr Candler as to what he elicited from his examination of Mr Thornton and his history taking was accurate. I am satisfied that he was not told of

14 any history of swallowing difficulties. I am satisfied that Dr Candler asked the question and received a response that led him to include the entry in the discharge letter, namely that there was no history of swallowing difficulties. 53. However, the making of those findings of themselves do not, according to the Claimant, absolve the Trust of responsibility because it is contended that even if it was the case that Dr Candler had acted reasonably on what he knew, he has nonetheless fallen below the standard to be expected any reasonable and responsible clinician in his position. This was, it is said, because he had failed the spot a number of red flags and had also failed to elicit additional relevant information from Mr Thornton. 54. Consideration of whether these allegations are made good requires the court to consider whether the remaining aspects of Dr Candler s assessment accorded with the standards supportable by a reasonable body of responsible medical clinicians practising in his field at the relevant time. The legal principles 55. These were not controversial. These were summarised in the written skeleton of the Defendant and in closing it was agreed by Mr Perfect that there was no dispute as to Mr Coughlan s formulation. I am happy to accept the same as an accurate summary of the law. 56. To amount to medical negligence, any alleged error in treatment or investigation or omission to provide adequate treatment must be shown to derive from a failure to attain the required degree of skill and competence of a reasonable practitioner. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of a competent man exercising that particular art. (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, at 586 per McNair J.) 57. In determining whether those treating Mr Thornton fell below the required standard of care, the court must look to and judge his conduct having regard to responsible medical opinion. The court must also keep in mind the fact that reasonable doctors may differ. A practitioner who acts in conformity with an accepted current practice is not negligent merely because there is a body of opinion which would take a contrary view (Bolam at per McNair J). 58. In Clerk & Lindsell on Torts (21st ed) it is noted that: proving fault in a doctor on the basis of his choice of a particular technique or method can be very difficult. Since even a relatively small body of supportive medical opinion may be effective to satisfy the Bolam test, the Claimant effectively has to show that no body of respectable medical opinion would have supported what the doctor did. [10-68].

15 59. However, in order for the practice to be defensible it has to be respectable, responsible and reasonable and has to have a logical basis; and where it involved weighing comparative risks, it had to be shown that those advocating it had directed their minds to the relevant matters and reached a defensible conclusion: Bolitho v Hackney HA [1998] AC 232, at 241H-242A per Lord Browne-Wilkinson. 60. A finding of Bolam negligence is not a matter of determining the numbers who support and those who criticise. In other words it is not simply a head counting exercise: it is open to a Judge to consider that a small number of specialists constitute such a body [Clerk & Lindsell et seq]. 61. Whilst it is open to the court to conclude that a practice advocated by a body of medical opinion is not respectable or responsible, this is likely to be somewhat unusual because what the court is concerned with is the decision-making exercise in the real environment of the Accident and Emergency Department at the time and not following a reflective forensic exercise in the courtroom. Mr Coughlan drew my attention to the following passage in the opinion of Lord Browne-Wilkinson in Bolitho at 243C-D: I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman [a reference to 238F-H of the Judgment] makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant s conduct falls to be assessed. I consider the same to be relevant to the present case. 62. I was also reminded of the true role of the court which is to avoid judging the conduct in question using hindsight. See: Eckersley v Binnie 18 Con LR 1, at where in a slightly different context the court observed:...the standard is that of the reasonable average. The law does not require of a professional man that he be a paragon, combining the qualities of polymath and prophet. In deciding whether a professional man has fallen short of the standards observed by ordinary skilled and competent members of his profession, it is the standards prevailing at the time of his acts or omissions which provide the relevant yardstick. He is not... to be judged by the wisdom of hindsight. This of course means that knowledge of an event which happened later should not be applied when judging acts and omissions which took place before that event....

16 63. The Claimant s pleaded case is that even if I were to conclude that the swallowing difficulties were not mentioned by Mr Thornton, I should find firstly, that there was in fact a history of significant difficulties in relation to Mr Thornton s swallowing and other oesophageal history, and secondly, Dr Candler had he carried out sufficient investigations including targeted questioning, should and indeed would, on a balance of probabilities, have elicited the same. 64. At trial the Claimant advanced what appears at first blush to be a contention that any presentation at the Accident and Emergency Department with a lodged food bolus is not only indicative of a serious underlying condition but that the same cannot be determined by examination and questioning at the Accident and Emergency Department and therefore further investigation will be necessary. If correct the Claimant s case succeeds because it is common ground that Mr Thornton clearly presented at the Accident and Emergency Department with the lodged food bolus, albeit one that cleared spontaneously before treatment, and that he was not advised to embark upon further investigation. 65. It is therefore necessary to consider whether this argument is supported by the expert medical evidence produced on the issue of breach of duty. 66. The Claimant relies upon a report and the contents of joint statements prepared by Mr Heyworth and the Defendant on the report and joint statements prepared by Dr Jones. There are two versions of the joint statement of these experts. It appears that the parties were not able to agree upon the precise nature of the questions to be asked and in the event presented their own agendas. 67. There appears to be significant common ground between Mr Heyworth and Dr Jones. They are agreed as to the matters that a reasonably competent clinician would seek to elicit on presentation by a patient in the Emergency Department with a lodged food bolus. They agree that even a first episode of food obstruction is recognised as a potential manifestation of a more significant condition. They agree that if the food bolus remained impacted following the initial treatment in the Emergency Department then immediate referral for an endoscopy was mandatory. The experts also agree that given Mr Thornton s age of 73 years at the time of the events in question, the past history of Barrett s oesophagus and his assessment by a gastroenterologist in 2012, the index of suspicion for a serious oesophageal condition being responsible for the episode of food bolus impaction should have been increased, provided all of this information had been available to the assessing doctor. 68. As part of the agenda drafted by the Defendant the experts were asked to comment on the history that had been elicited by Dr Candler. The experts agree that: If the contemporaneous notes and A&E to GP discharge letter are taken as a whole, then we are agreed that a reasonable history has been taken. It should however be noted that the findings of this history contrast with a witness statement provided by the daughter of the deceased. The experts further agree that