Doy v Gunn

In a clinical negligence claim, breach of duty and causation must each be established on the balance of probabilities. Where expert evidence and contemporaneous medical records materially conflict with a claimant’s recollection, the court may prefer the records and a reconstruction based on them. A claimant fails on breach where the accepted account of the consultation shows that the examination and findings did not make hospital referral mandatory. Causation may nevertheless be established where evidence shows that a referral would probably have led to timely antibiotics preventing the subsequent illness. The claim fails if breach is not proved, even where the claimant establishes that earlier treatment would probably have avoided the injury.

The claimant, a prematurely born child, sought damages for alleged negligence during an out-of-hours consultation with the defendant general practitioner on 19 March 2002. He later developed Group B streptococcal meningitis and sustained significant neurological disabilities.

The claim alleged failures to take an adequate history, examine the child and refer him to hospital. The defendant disputed both breach and causation. The central issues were whether the claimant’s condition was attributable to meningitis, whether earlier referral would probably have resulted in effective antibiotic treatment, and which account of the consultation was reliable.

1. Causation. On the balance of probabilities, the claimant’s disabilities were attributable to the meningitis rather than an antenatal event causing periventricular leucomalacia. The agreed expert evidence, together with the apparently normal ultrasound scan and the assumed competence of the radiologist, enabled an antenatal cause to be ruled out ([25]).
2. The microbiological evidence established that the claimant probably had Group B streptococcal bacteraemia on 19 March, before meningitis had developed. Intravenous antibiotics given on 19 or 20 March would have eradicated the bacteraemia before invasion of the meninges, subject to the limited disagreement about the precise outcome of treatment on 20 March ([26]).
3. If referred to hospital on the evening of 19 March, investigation would probably have revealed a raised C-reactive protein. In the context of the history recorded by the defendant, that finding would probably have created a sufficient suspicion of infection to require immediate antibiotics. Referral would therefore probably have prevented the development of meningitis ([27]–[31]).
4. Breach of duty. The court assessed the claimant’s mother’s evidence against the evidence of the earlier examining doctors, the defendant’s contemporaneous note and the hospital records. Those records were materially inconsistent with the alleged prolonged poor feeding, drowsiness and failure to examine the child. Despite deficiencies in the defendant’s note, its entries that the child was alert, afebrile, had a soft abdomen, normal ears and no rash could not realistically have been fabricated and showed that an examination had occurred ([43]–[70]).
5. The defendant’s account of the consultation was accepted. The GP experts agreed that, on that account, hospital referral was not mandatory. The claimant therefore failed to establish breach of duty, and the claim was dismissed ([71]–[72]).