Marcus v Medway Primary Care Trust & Anor

In a clinical negligence claim, the claimant must prove on the balance of probabilities that the breach caused the injury for which damages are sought. Where the evidence shows that the serious injury would probably have occurred even with proper treatment, damages are limited to additional suffering or other loss caused by the breach. A claimant cannot recover substantial damages for the loss of a limb merely because negligent delay deprived him of a possible, but unproved, chance of avoiding amputation. The court must assess causation by examining the medical evidence, the timing and progression of the condition, and the likely effectiveness of treatment at the relevant dates.

The claimant developed severe ischaemia in his left foot and underwent a below-knee amputation. The first defendant admitted that its employee should have secured an urgent vascular referral. The second defendant admitted that immediate referral was required on three occasions. Quantum had been agreed, leaving causation as the sole issue.

The claimant alleged that earlier referral would have saved his leg, or would at least have avoided amputation by permitting anticoagulant treatment. The defendants contended that the limb was already beyond salvage when their breaches occurred. The central issue was whether earlier intervention would probably have altered the outcome.

1. Causation. The claimant failed to establish on the balance of probabilities that earlier referral would have saved his leg or avoided amputation. The evidence showed progressive arterial occlusions in the foot and calf, followed by occlusion of the popliteal artery.
2. The court preferred the evidence of Professor McCollum and Mr Brearley on the significance of the crural arteries. All three relevant vessels had probably been occluded by 6 April 2005, by which time the limb was materially symptomatic. The palpation of a pulse by Dr Thom was given very little weight because false positive findings were recognised and the overall clinical picture pointed the other way.
3. Anticoagulant treatment could prevent further clotting but could not dissolve existing blockages. The available window for such treatment to save the limb had closed by 6 April 2005. Thrombolysis and embolectomy would probably have failed if attempted on or after 14 April 2005.
4. The procedures attempted on 13 May 2005 were not almost successful. The downstream blockages in the calf and foot meant that clearing more proximal vessels would not probably have restored lasting flow.
5. Applying the approach in Hotson v East Berkshire Area Health Authority [1987] AC 750, the claimant could not recover damages for the amputation because it would probably have occurred despite proper care. He was, however, entitled to damages for avoidable pain caused by the negligent failure to provide appropriate analgesia during the relevant period.
6. Judgment was therefore entered for £2,000, comprising £2,000 against the second defendant and joint and several liability for £1,500 during the overlapping period. The provisional contribution between the defendants was £750 from the first defendant and £1,250 from the second defendant.

First instance decision. No prior appellate history is stated in the judgment.