JAH v Burne & Ors

Urgent vascular referral for suspected limb ischaemia depends on the clinical picture. In the circumstances considered, the relevant combination was intermittent claudication, ischaemic pain at rest and absent or markedly reduced pedal pulses. Without that combination, urgent referral was not required. An ulcer may nevertheless indicate a later stage of ischaemia requiring urgent referral.

A claimant must establish causation on the balance of probabilities. Where a defendant’s breach has deprived the court of the best evidence concerning a hypothetical sequence of events, the court may resolve evidential uncertainties in the claimant’s favour. Damages cannot be awarded for loss of a chance in clinical negligence where the issue is whether injury would probably have been avoided.

The claimant brought a clinical negligence claim arising from multiple attendances at hospital and general practice in May and June 2012. She alleged that failures to examine pedal pulses, obtain an appropriate vascular history, refer her urgently and communicate relevant information caused thrombo-embolic ischaemia, resulting in amputation of her left arm and both parts of her left leg.

Damages were agreed at £600,000 if both limbs should have been saved and £150,000 if only the arm should have been saved. Breach was admitted in relation to some attendances. The principal issues were the presence of pedal pulses, the existence of intermittent claudication and ischaemic rest pain, the appropriate timing and consequence of vascular referral, and whether anticoagulation would probably have avoided either amputation.

1. 6 May 2012. The hospital’s triage of the claimant as category 3 was reasonable because the apparent vascular compromise was improving and did not present as a critically ischaemic limb requiring attention within 10 minutes. A capable patient could choose to leave before seeing a doctor. The hospital’s duty was sufficiently discharged by advising her to remain and informing the GP of the attendance and self-discharge; it did not extend to communicating a likely diagnosis which no doctor had been able to make.
2. Earlier GP and hospital attendances. The appropriate clinical inquiry was whether there was a combination of intermittent claudication, ischaemic foot pain at rest and absent or markedly reduced pedal pulses. If present, urgent referral was required. On the facts, the pulses were present, there was no true history of intermittent claudication and there was no convincing history of ischaemic rest pain. The alleged breaches therefore did not cause the amputations.
3. Dr Jackson. By 11 June 2012 the foot ulcer and continuing foot pain required urgent vascular referral. That breach was admitted. Although the leg was already beyond saving, a vascular surgeon would probably have investigated the unusual embolic process and initiated anticoagulation in time to prevent the later embolic occlusion of the arm.
4. Causation was determined on the balance of probabilities. Applying Gregg v Scott [2005] 2 AC 176, there was no separate loss-of-chance basis for recovery. However, where negligence created an evidential gap concerning the hypothetical treatment sequence, the court could adopt a benevolent approach to the claimant’s evidence, supported by Keefe v Isle of Man Steam Packet Co [2010] EWCA Civ 683 and Raggett v King’s College Hospital [2016] EWHC 1604 (QB).
5. The claim was dismissed against the First, Second and Fourth Defendants. Judgment was entered for the claimant against the Third Defendant in the agreed sum of £150,000.