Following on from his first Clinical Negligence Case Update, 18 St John Street’s Ian Huffer continues the series detailing the recently reported decision of Mr Justice Soole in Thorley v Sandwell & West Birmingham Hospitals NHS Trust  EWHC 2604 (QB) (01 October 2021)
The recently reported decision of Mr Justice Soole, raises interesting points on the interplay between hospital guidance and breach of duty and in the judge’s analysis of applicable legal principles of material contribution causation to a case where the injury was indivisible.
In 2002 the Claimant was diagnosed with atrial fibrillation and because of increased risk of blood clots and thromboembolic events such as strokes was treated with anticoagulant medication (a 3.5 mg dose of Warfarin). Following chest pain (March 2005) an angiogram was arranged. Because of bleeding risk from the procedure, warfarin was stopped for a 6 day period (23-28 April) and restarted on 29 April at a reduced dose of 3 mg. The angiogram on 27 April was uneventful and he was discharged home. On 30 April 2005 the Claimant suffered an ischaemic stroke which resulted in severe and permanent physical and cognitive disability.
The Claimant’s case was that there was negligent breach of duty in that cessation of warfarin should have been for a 3 day period (24-26 April) and restarted at 3.5 mg on 27 April (same day after the angiogram) and the breaches caused/materially contributed to the occurrence of the stroke. Breach of duty was denied (save that warfarin should have been restarted on 28th April and at the usual 3.5 mg) and whatever conclusion was reached on breach, the Claimant would have suffered a stroke in any event.
The claim failed on both breach of duty and causation.
The Claimant’s argument that there should have been only a 3 day cessation of Warfarin was based on the Trust’s 2004 document on ‘Anticoagulation and Surgery’ (disclosed late in the litigation process) which referred to Warfarin being stopped for three days before the procedure and also guidance that Warfarin was to be restarted as soon as a patient was able to take fluids. The Claimant contended that it amounted to a Trust policy, protocol or guideline which was applicable to angiography and, absent of good clinical reason to deviate in the particular case, ought to have been followed. As the Trust called no evidence to explain or interpret the document, it was contended on behalf of the Claimant that an adverse inference should be drawn against the Trust on the basis of Wisniewski v Central Manchester Health Authority  PIQR P324.
On this point, in his consideration of the language of 2004 protocol document, the judge was not persuaded it had any application to angiography which was not surgery. There was no evidence that the Trust in fact treated the guidance as applying to angiography and no adverse inference to be drawn from the absence of witness evidence from the Trust on that point. Further, the advice ‘to stop warfarin 3 days prior to surgery’ was at odds with the other medical material cited by both experts in the joint report and the Claimant’s expert’s view, in that report which supported the omission of warfarin for 4 or 5 days before angiography.
Comment: Whilst the Mr Justice Soole reached the reasonable and understandable decision that the application of the protocol document had no application, even if it had, I suspect that he would not have drawn an inference adverse to the Trust. In the judgment re referred to the recent decision of Efobi v Royal Maid Group  1 WLR 3863, an employment case where the Supreme Court appeared to row back from the strict legalistic position in Wisniewski –
“The question of whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in [Wisniewski] is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances” (Lord Leggatt)
Breach of duty
As to the application of Bolam/Bolitho, it was argued on behalf of the Claimant that he should have been treated in accordance with the 2004 guidance unless there was good clinical reason not to do so and that in event of breach of that duty it was immaterial that a responsible body of practitioners who were not subject to that guidance would have acted differently, there being no logical basis for the adoption of the alternative practice. The observation of Mantell J in Newell v Goldenberg  6 Med L R that ‘the Bolam principle provides a defence to those who lag behind the times. It cannot serve those who know better’ was cited and, therefore, the Trust through the 2004 Protocol document ‘knew better’ than the practices relied upon by the Trust in the action.
Mr Justice Soole disagreed. The nature of the duty of care of medical practitioners (Bolam/Bolitho) is a question of law, determined by authority at the highest level which requires them to act in accordance with a practice accepted as proper by responsible body of practitioners in that field and which has a logical basis. In this case they had both. “If the observation of Mantell J in Newell is to be read to the contrary, then I would respectfully disagree”. On the issue of when the warfarin should have started the judge preferred the evidence of the Trust’s expert.
The judge also did not accept, on the basis of the expert evidence, that there was a basis for concluding that a 3 day omission of warfarin, a ‘different’ practice, was a better one. He further did not accept that the existence of the 2004 guidance (even if applicable) meant that it is ‘illogical’ to apply the alternative and responsible practice of a body of competent practitioners.
Comment: Although the judge found that the Protocol had no application to the practice adopted in the Claimant’s case, and did not represent better practice anyway, the interest of the case to practitioners is the judge’s refusal to depart from the strict requirements of the Bolam/Bolitho test as to the standard of care to an (alleged) higher or better standard based on a local guidance document.
The Claimant advanced a case on both application of the but for test and on the basis of the material contribution test for causation. The judge held that even if the omission of warfarin for more than three days did not constitute breach of duty, he would reject the case based on but for causation and hold that the Claimant would have suffered his stroke in any event. The judge’s reasoning for doing so is set out in his lengthy analysis of the detailed expert cardiology and haematology evidence on stable warfarin treatment, INR rates and the effects of anticoagulant therapy (paragraphs 85 to 137 of the judgment)
The Claimant’s case in law on material contribution was that whilst an ischaemic stroke was an indivisible injury (which either happens or not and whose size or severity is unaffected by the dose of warfarin), this was no bar to establishing causation based on Williams v the Bermuda Hospital Board  A.C. 888. The Claimant’s Counsel referred to Lord Toulson’s judgment where he endorsed an article on “trite Negligence law’ and referred to the treatment of Bonnington Castings v Wardlow  A.C. 613 as a case where material causation by a single tortfeasor was established on the basis of the presentation to the court that the injury of pneumoconiosis was indivisible and the footnote of Lord Phillips in Sienkiewicz v Greif (UK) Ltd .
The Defendants submitted that the indivisibility of injury was a bar to causation based on material contribution, citing, in particular, the Court of Appeal decisions in Ministry of Defence v. AB  EWCA Civ 1317 and Heneghan v. Manchester Dry Docks Ltd  EWCA Civ 86 which is was contended was binding on the court. Williams did not decide otherwise.
Reference was also made to the obiter remarks of HHJ Auerbach (sitting as a judge of the High Court) in Davies v. Frimley Health NHS Foundation Trust [2021 EWHC 169 (QB) that material contribution had no application where there was a single tortfeasor and indivisible injury.
On consideration of the authorities, Mr Justice Soole held that the Court of Appeal decision in Ministry of Defence v AB was binding on the court (although he did not accept that there was also an implicit endorsement by the Supreme Court of the Court of Appeal on this point in the further appeal) but that Williams, though highly persuasive was not strictly binding even if part of the ratio. He, therefore, held the claim of material contribution failed on the basis that the modified test of causation as it did not apply when there is a single tortfeasor and an indivisible injury.
The judge nonetheless went on to consider the substance of the Claimant’s case on material contribution (if he was wrong on the law), reaching the conclusion on the expert evidence that the omission of warfarin did not make a material contribution to the occurrence of the stroke.
Comment: Whilst this claim failed factually the legal authorities relating to the application of modified test of causation based upon material contribution remain confused and contradictory which does not help practitioners wrestling with cases where it is likely to affect outcome. As Mr Justice Soole says, it is legal issue which is ‘ripe for authoritative review’ by the higher courts.
 “It is trite negligence law that, where possible, defendants should only be held liable for that part of the claimant’s ultimate damage to which they can be causally linked… It is equally trite that, where a defendant has been found to have caused or contributed to an indivisible injury, she will be held fully liable for it, even though there may well have been other contributing causes…’. (Causation in Negligence, Professor Sarah Green (2015))
 ‘…there was no suggestion that the pneumoconiosis was “divisible”, meaning that the severity of the disease depended on the quantity of dust inhaled’
 ‘Where the disease is indivisible, such as lung cancer, a defendant who has tortiously contributed to the cause of the disease will be liable in full. Where the disease is divisible, such as asbestosis, the tortfeasor will be liable in respect of the share of the disease for which he is responsible.’
 ‘…we accept that, at least so far as cancers are concerned, the claimants cannot rely on proving that the radiation exposure has made a material contribution to the disease, as i nBaileyandBonnington Castings.This principle applies only where the disease or condition is ‘divisible’ so that an increased dose of the harmful agent worsens the disease…
 ‘There are three ways of establishing causation in disease cases. The first is by showing that but for the defendant’s negligence, the claimant would not have suffered disease. Secondly, where the disease is caused by the cumulative effect of an agency part of which is attributable to breach of duty on the part of the defendant and part of which involves no breach of duty, the defendant will be liable on the ground that his breach of duty made a “material contribution” to the disease: [Bonnington]. The disease in that case which is a divisible disease (i.e. one whose severity increases with increased exposure to the agency). Thirdly, where causation cannot be proved in either of these ways, for example because the disease is indivisible, causation may be established if it is proved that the defendant materially increased the risk of the victim contracting the disease: the Fairchild exception. Mesothelioma, the disease in that case] is an indivisible disease.’
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