Asante v Guy's and St Thomas' NHS Foundation Trust

Medical negligence is assessed by asking whether the treatment accorded with a practice accepted as proper by a responsible body of relevant clinical opinion and capable of logical support. The court must evaluate the evidence as a whole, including the medical records and the reasons given for treatment decisions. Where records are incomplete or ambiguous, the defendant should not obtain the benefit of those deficiencies or unexplained absence of relevant witnesses. In this case, the failure to undertake further debridement in the presence of significant purulence, followed by tissue coverage of exposed cortical bone, fell outside the range of reasonable practice. The later decision to remove a sequestrum without seeking to eradicate established chronic osteomyelitis was, on the evidence, reasonable. The earlier breaches probably caused chronic osteomyelitis, prolonged infection and pain.

The claimant sought damages for negligent treatment of osteomyelitis associated with sickle cell disease at St Thomas’ Hospital in 1999 and 2000. The trial concerned breach of duty and causation only.

The principal issues were whether the hospital should have undertaken further debridement and a gastrocnemius flap in August and September 1999, and whether it should have provided tissue cover and antibiotics after surgery in March 2000. The court also considered the significance of incomplete records, missing witnesses and conflicting expert evidence.

1. Applicable standard. The court applied the Bolam v Friern Hospital Management Committee test, as modified by Bolitho v City and Hackney HA: treatment must accord with a practice accepted as proper by a responsible body of relevant clinical opinion and capable of logical support. A judge must not merely prefer one professionally respectable opinion to another, consistent with Maynard v West Midlands Regional Health Authority.
2. Evidence. Although the burden remained on the claimant, the defendant was not entitled to benefit from incomplete or ambiguous records, or from unexplained failures to call relevant witnesses. The court accepted the approach reflected in Keefe v Isle of Man Steam Packet Company, Raggett (deceased) v King’s College Hospital NHS Foundation Trust and Harding v Buckinghamshire Healthcare NHS Trust.
3. August and September 1999. The evidence showed significant purulence after the initial operation. The claimant should have been returned to theatre for further debridement on 16 August. Exposed cortical bone without periosteal cover was at risk of desiccation, necrosis and continuing infection. A gastrocnemius flap should have been used once the wound was sufficiently clear. Leaving the bone exposed and later attempting direct closure was outside reasonable practice.
4. March and April 2000. The court found that the guttering operation was directed to removal of a sequestrum against a background of chronic osteomyelitis, rather than eradication of the chronic infection. On that footing, the treatment was within the range of reasonable practice.
5. Causation and outcome. Had the August breach been avoided, the claimant probably would have been cured of osteomyelitis, or free from it for a substantial period, and would have avoided the subsequent crater, friable skin, infection and pain. The claimant succeeded on breach of duty and causation. Quantum remained outstanding.

First-instance judgment determining breach of duty and causation. Quantum remained to be determined.