Henderson v The Hillingdon Hospital NHS Foundation Trust, Court of Appeal - Queen's Bench Division, November 29, 2018, [2018] EWHC 3281 (QB)

Resolution Date:November 29, 2018
Issuing Organization:Queen's Bench Division
Actores:Henderson v The Hillingdon Hospital NHS Foundation Trust

Neutral Citation Number: [2018] EWHC 3281 (QB)

Case No: HQ16C03928



Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 29/11/2018




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Miss J Lee (instructed by Irwin Mitchell LLP) for the Claimant

Mr T Found (instructed by Clyde and Co LLP) for the Defendant

Hearing dates: 12-14 November 2018

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Draft 3 December 2018 14:58 Page 21


The Claim

  1. The claimant, Debra Henderson brings this claim as administratrix of the estate of her father, Dennis Robert Bolton, and on behalf of his dependents including his wife, Sheila Bolton. Mrs Bolton is named in the claim form as second claimant although not in the particulars of claim. No point is taken about this. The claim is therefore brought on behalf of Mr Bolton's estate and dependents, including his wife, under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.

  2. Mr Bolton sadly died on 21 November 2013 aged 77. The death certificate lists the causes of death as an anoxic brain injury, respiratory and cardiac arrest and severe acute epiglottitis.

  3. It is the claimant's case that but for the negligence of the defendant, Hillingdon Hospital NHS Foundation Trust, Mr Bolton would not have died.

  4. Quantum has been agreed subject to liability in the global sum of £75,000. That agreement necessarily includes an agreement about the deceased's life expectancy and so it has not been necessary for me consider the life expectancy evidence consisting of two experts and a considerable amount of literature.

  5. Again, subject to liability, the sum of £75,000, if awarded, will have to be apportioned between Mr Bolton's dependants and I have indicated that I will consider submissions in respect of apportionment and deal with that issue, if appropriate, after handing down judgment on the liability issue.


  6. The evidence is that up until 16 November 2013 the deceased was in good health and spirits. On 16th November he was complaining that he was not feeling well. He felt like he was coming down with the flu, had a sore throat and felt feverish. He went to bed in the early afternoon. On 17th November he continued to feel unwell and was in bed and his wife phoned Mrs Henderson at about 5 o'clock to say that Mr Bolton was struggling to breathe. Mrs Henderson describes going to her parents' house where her father was sitting up, gasping for air and his voice was very peculiar. She said he ``sounded like Mr Bean". An ambulance was called via the NHS 111 line. Mrs Henderson expresses the opinion that her father must have been feeling very unwell because he did not object to the ambulance being called, which was not like him.

  7. The paramedics attended and identified that the deceased was in both respiratory failure and respiratory distress. He was given an adult dose of nebulised Salbutamol, put on oxygen, given 1g of paracetamol and taken to the defendant's hospital at 18.37. At hospital he was triaged by a nurse. A chest X-ray was ordered, and bloods were taken. He was seen by the defendant's doctor, Dr Rosales. He was seen by Dr Rosales again later and was discharged home with oral antibiotics around 10.00pm.

  8. His wife woke at about 4am on 18th November to find him collapsed and not breathing. Another ambulance was called at around 4.27. Mr Bolton was in cardiac arrest. This was in consequence of airway obstruction due to the epiglottitis. The respiratory and cardiac arrest resulted in an anoxic brain injury and life support was withdrawn with the deceased's family's consent on 21st November.

    The Issues

  9. It is the claimant's case, supported by her expert, Mr Morris, that the deceased should not have been discharged from hospital. Given the history of respiratory failure and respiratory distress, it is alleged that he should have been admitted and monitored further. The basis of the claim is that there was a failure properly to appreciate that the deceased's presentation warranted an inpatient admission and that it was not safe to discharge him at 10.00pm.

  10. The claimant argues that I should find that: there was a clear indication of respiratory failure; there was no known history of respiratory disease; any improvement in oxygen saturations were insufficient to confirm that the deceased could safely be discharged; and the working diagnosis of Dr Rosales was unsafe.

  11. The claimant further invites me to conclude that there are only two explanations for the lack of reference to previous respiratory failure and respiratory distress in Dr Rosales's notes and that those are either, firstly, that Dr Rosales did look at the ambulance records, known as the Patient Report Form (``PRF'') but failed to recognise the severity of Mr Bolton's presenting condition or, secondly, that he did not look at the PRF and therefore, failed to avail himself of all clinically relevant information before making decisions. For whichever reason he did not appreciate the severity of the presenting complaint. Thus, the claimant says I need to consider the significance of Mr Bolton's respiratory failure and whether or not Dr Rosales did or should have appreciated it; whether there was sufficient appreciation of that significance in the context of the presentation with respiratory failure, respiratory distress and wheeze and where Mr Bolton had no known history of lung of long-standing respiratory disease; whether or not the increase in oxygen saturations following the administration of oxygen and the Salbutamol nebuliser was sufficient to confirm that Mr Bolton could be safely discharged back into the community; the reasonableness of Dr Rosales's diagnosis/diagnoses and; whether they sufficiently accounted for Mr Bolton's condition before and during his attendance at hospital such that it was safe to discharge him home rather than admitting as an inpatient.

  12. The defendant denies breach of duty contending that the deceased recovered significantly following the administration of Salbutamol (and oxygen) so that his oxygen saturation levels were 95% on air and his breathing rate, heart rate and temperature were normal, and it was appropriate to discharge him home.

  13. In essence the defendant's case is that I should find that, pursuant to the evidence of its expert, Dr Campbell-Hewson, a responsible body of Accident and Emergency medical professionals would have discharged Mr Bolton from hospital when Dr Rosales did.

  14. The defendant relies on the fact that Mr Bolton's condition improved and stabilised without active treatment for four hours; his symptoms and the results of investigations were consistent with a lower respiratory tract infection accompanied by a transient self-limiting condition such as mucous plugging of bronchi, a coughing episode or some degree of laryngospasm; there was no history of reversible airways disease and Mr Bolton did not in fact suffer from chronic obstructive pulmonary disease (``COPD'') or asthma and; normalisation of the observations that had been abnormal earlier on was legitimately reassuring.

  15. I accept and remind myself that it is important when reaching decisions about these issues to judge them prospectively and not retrospectively. The court is not concerned in assessing the reasonableness of Dr Rosales's actions with the benefit of hindsight.

  16. In the circumstances the issue for me to decide therefore is whether or not the defendant was in breach of duty in its care and treatment of the deceased, specifically whether it was a breach of duty not to admit him on 17th November and was a breach of duty to discharge him home at 10.00pm.

  17. Causation is conceded by the defendant in the sense that it is accepted that had he been admitted as an inpatient on 17th November he would have been monitored, his subsequent deterioration would have been identified and prevented/treated so that he would not have suffered the respiratory and cardiac arrest or brain injury and would not have died.

    The Law

  18. There is agreement about the law which applies here. The defendant's doctor, Dr Rosales, was under a duty to act in accordance with a responsible body of medical opinion (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582). The test in Bolam is:

    "the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art...he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art... Putting it the other way round, a man is not negligent if he is acting in accordance with such practice, merely because there is a body of opinion who would take a contrary view''.

  19. The court must assess whether any purported body of expert medical opinion in fact represents "a responsible body of opinion" and will consider whether it stands up to logical analysis (see Bolitho v City and Hackney Health Authority [1998] AC 232). In C v North Cumbria University Hospitals NHS Trust [2014] EWCH 61 (QB), it was said:

    ``the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular, in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable will need to be satisfied that in forming their views the experts have directed their minds to the question of comparative risks and benefit and have reached a defensible conclusion on the matter.''

  20. It was further said...

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