A claim against GP Dr F is taken to trial by Medical Protection. Find out how our expert litigation team fought for Dr F by building a robust defence. By Louise Morgan, Litigation Solicitor, Medical Protection
Mr W had a history of degenerative disc disease, for which he had been seen by a consultant. Mr W awoke one morning with symptoms consistent with cauda equina syndrome. He called the out of hours GP service and the ambulance service.
GP Dr F was working in the out of hours service and he telephoned Mr W back at 6.04 am. Dr F successfully elicited red flag symptoms consistent with cauda equina syndrome, including possible saddle anaesthesia. Mr W reported that he had not urinated on waking or tried to do so. Dr F advised him to go to the hospital A&E department because he needed an urgent scan and orthopaedic review.
Mr W did not, in fact, follow this advice because the ambulance service also contacted him and then attended his home. They transported him to hospital. He was assessed in A&E by a junior doctor who referred him on to the orthopaedic team. A junior orthopaedic doctor formed the view that he had painless urinary retention and so an MRI was organised. On review of the MRI, Mr W was referred to another hospital for neurology and neurosurgery, where he underwent decompression surgery within 24 hours from when he awoke with cauda equina symptoms.
Mr W makes a claim
Mr W pursued a claim against Dr F, the ambulance trust and the hospital. There were initially four allegations against Dr F but, by the time of trial, the only one remaining was that he should have called the orthopaedic team at 6.12 am to arrange for Mr W to be treated as an orthopaedic expected patient. The ambulance trust conceded a delay of 19 minutes in admitting Mr W to hospital.
Dr F contacted Medical Protection for assistance after being served with the formal letter of claim and the matter was passed to Medical Protection’s claims delivery team. A claims manager investigated the case, obtained independent expert evidence and prepared and served a letter of response on his behalf, denying the allegations in full. As well as being supported by a claims manager, clinical input was provided by one of Medical Protection’s medicolegal consultants.
The allegations against the hospital were that Mr W was not investigated and treated sufficiently quickly following admission through A&E, despite an MRI within six hours and surgery in under 24 hours from waking with symptoms.
Breach of duty was denied on behalf of Dr F on the basis that he had successfully elicited red flag symptoms and directed the patient to the A&E department of the correct local hospital, it being equipped with an MRI scanner and having access to an orthopaedic team.
Mr W did not accept our defence of the claim and the case went to court. At this stage the case was transferred to Medical Protection’s litigation team and handled by an experienced litigation solicitor.
The outcome
The claims against Dr F and the hospital were dismissed in their entirety at trial. The trial judge noted that there was no national policy on how referral from primary to secondary care should take place in suspected cauda equina cases.
Mr W was not satisfied with the court’s decision and sought and obtained permission to appeal.
Dr F’s legal team maintained their defence and refused an invitation to concede the appeal. The appeal was subsequently dismissed and the original decision upheld. The appeal court commented that they did not find anything to criticise in the conduct of Dr F, a busy out of hours GP, and further expressed their surprise that the claim had been brought against him at all.
Commentary
This case highlights the differences between the medicolegal environment in the UK and what we experience in New Zealand. In New Zealand the bar is very high before a case can go to court, with gross negligence being the required level. This complaint could have gone to the HDC, but certainly not to court. There would probably be no recording of the call, so the defence to the HDC would rely on the notes recorded by Dr F of the call and the advice he gave.
This case reinforces the need for good notes of phone calls with patients, particularly when the symptoms raise significant medical concerns. The question of whether the GP ought to have called the local hospital is difficult to determine from the information we have.