Judgment was handed down on 5 October 2020 by HHJ Cotter QC in the matter of HAC (A protected person by her litigation friend JS) v Ms TH and Dr ALC [2020]: the first trial for NHS Resolution's existing liabilities scheme for general practice (ELSGP).
Background
The claimant, aged 24, suffered a catastrophic subarachnoid haemorrhage (“SAH”) on 8 June 2016. It was alleged that there was a failure to elicit the onset of severe headaches preceding the SAH when the claimant attended a nurse (D1) on 19 May 2016 and her GP (D2) on 27 May 2016, such that had she been referred to hospital and undergone neurosurgical treatment prior to the SAH, she would have made a complete recovery.
Quantum was agreed at a capitalised value of £7m in advance of the liability trial on 7 September 2020.
Misdiagnosis of sentinel headaches is relatively common, as the symptoms can present in a similar way to migraines. The claimant's headaches were unilateral and had started around 5 May 2016, over one month before the SAH during which time the claimant was assessed by a number of medical practitioners. In addition to being seen by the defendants on 19 and 27 May, the claimant was also assessed by paramedics when an ambulance was called on 29 May, an OOH GP later on 29 May, and different GPs on 31 May, 3 June and 7 June. They mostly suspected she was suffering from migraines and none of them referred her to hospital. Curiously, the claimant chose neither to pursue the other medical practitioners nor were they called to give evidence at trial.
The key issues for the Judge to consider on breach were:
- whether the defendants elicited a history of the onset of headaches and,
- if not, would they have been sudden onset (often described as "thunderclap") or gradual; the latter being a question for the neurosurgical experts.
A sentinel headache is a retrospective diagnosis of a headache which precedes a SAH. They are usually caused by (i) a warning leak (a small bleed) or by (ii) aneurysmal expansion. It was not disputed, in this case, that the causal mechanism was slow aneurysmal expansion (not warning leak). The neurosurgeons also agreed that sentinel headaches are usually of sudden onset, but not always.
The facts in this case were of headaches which were atypical of sentinel headaches:
- they were unilateral not occipital
- they lasted for a few days before resolving whereas sentinel headaches typically resolve within days if not one day
- more than 30 days elapsed from the first headache before the SAH, whereas most warning headaches occur within two weeks of a SAH.
Outcome
The Judge preferred the evidence of the defendants' neurosurgical expert, Mr Mannion; the aneurysm in this case caused pain due to its location low on the skull base, where the wall of the aneurysm stretched the artery wall and the overlying dura which would cause a severe persistent headache, alleviated temporarily by pain medication, but would not be of sudden onset.
The Judge rejected the claimant's neurosurgical evidence of Mr Goodden who suggested a series of five sudden onset headaches due to aneurysm expansion causing repeated tears within the artery wall. The judge found that the facts did not fit Mr Goodden's theory: "An expert trying to mould the facts to fit a theory is not an edifying sight".
The Judge found in favour of both defendants on breach of duty and the claim was dismissed. He found the nurse's evidence to have been "entirely honest, consistent, forceful and compelling and undamaged by cross-examination". The nurse ruled out red flag signs as her usual practice was to use the same mnemonic to question patients presenting with headache. Despite the GP's note being very sparse, the Judge accepted this was because he had spent so long with the claimant; he had given her an injection of Diclofenac allowing that to take effect, and had taken a full blood count and ESR. He also followed his own mnemonic which included eliciting onset of headaches.
Even though the Judge was not obliged to rule on factual causation, he preferred the evidence of the defendants' neuroradiologist, Dr Bradley, over that of the claimant's expert, Dr Craven, and found that even had the Clamant been referred to her local hospital the aneurysm would not have been picked up on plain CT scan.
Learning from the case
- Clear records – it is important to record the findings of red flags, even a negative response. Although the Judge found that the defendants did elicit the onset of headaches, the claim would not have reached trial had they recorded this in their notes.
- Cases turn on the facts, which cannot be skewed to fit the literature - the claimant's case hinged on literature which confirmed that most sentinel headaches are of sudden onset. However, the facts were plainly clear that this was not a typical sentinel headache. The Judge accepted that "the unusal does happen".
We were delighted to achieve the correct result of dismissal of this claim with the vast saving to the public purse.
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