Case 8 Man down

Mr Brown, a 46-year-old air traffic controller, awakes one morning at 4.45 am and gets ready to start his early morning shift. He usually cycles the six miles to the control centre but today it is raining heavily. Mr Brown showers and dresses before phoning a colleague, Nick, at 5.05 to ask for a lift to work.

Nick arrives at Mr Brown’s house at 5.35, sends him a text and waits outside in the car. At 5.40, he becomes inpatient and knocks on the front door. There is no answer. Nick looks through the letter box and just as he is about to shout for Mr Brown, he catches a glimpse of a foot poking out beyond the bottom of the kitchen door. Mr Brown has collapsed in the kitchen. Nick immediately calls the ambulance and tries to gain entry through a ground floor window whilst waiting for them.

The ambulance technicians arrive at the house at 6.05. On assessment, they find Mr Brown to be mute. He has a dense right-sided weakness and appears inattentive to that side. Mr Brown is found to have an irregular pulse and a blood pressure of 172/90 mmHg. The ambulance takes him to the emergency department of the local hospital where he arrives at 6.40.

What would you do now?

The triage nurse arranges for Mr Brown to be admitted to the ‘majors’ area for assessment. Nursing staff place him on a cardiac monitor and send routine blood to the laboratory. An ECG confirms AF. An ST2 trainee assesses Mr Brown at 7.10 am and makes a provisional diagnosis of a stroke. He requests a CT scan of the brain to take place that day and asks the bed manager to organize a bed on the stroke unit. Mr Brown is placed nil by mouth on account of impaired swallowing.

The CT subsequently confirms a left total anterior circulation infarction. Mr Brown spends a total of four months in hospital and makes a reasonable recovery. His mobility improves such that he is able to walk without aids. However, he continues to have significant issues with expressive dysphasia and a homonymous hemianopia persists. He remains in atrial fibrillation and is commenced on warfarin.

What do you think of Mr Brown’s management?

Nine months following discharge, the Chief Executive receives a letter from a solicitor representing Mr Brown. The letter requests copies of Mr Brown’s hospital notes and any stroke protocols in use at the Trust at the time of Mr Brown’s original admission. The solicitor states that a negligence claim is being pursued against the Trust as thrombolytic therapy was not offered to Mr Brown when he had presented to hospital 95 minutes following the onset of stroke symptoms.

Expert opinion

Mr Brown presented to hospital within three hours of symptom onset as evidenced by his having been able to shower, dress and converse normally on the telephone with Nick. The time of symptom onset must lie between 5.05 and 5.35 am. Thrombolytic therapy is licensed in acute ischaemic stroke if commenced within the first four and a half hours from symptom onset. Thrombolytic therapy is known to reduce long-term disability levels following stroke although mortality rates are not affected.

The National Institute for Health and Care Excellence undertook a technology appraisal of thrombolytic therapy in acute ischaemic stroke in 2007 and approved the use of thrombolysis for acute stroke. The NHS is required by Government to provide funding and resource for NICE approved technologies within three months of a recommendation.

Mr Brown’s care has been substandard on account of the omission of an evidence-based intervention. A case could be brought against the local service commissioners for failing to provide the expected level of service.

Legal comment

Mr Brown arrived in the Emergency Department at 6.40 am and if thrombolytic therapy had been administered within the first four and a half hours, this may have limited the extent of infarction. However, the requirement to prove a causal link between the clinical outcome and negligent omission to instigate thrombolytic therapy presents a hurdle to the patient bringing an action in clinical negligence.

Even when there has been a Breach of Duty (i.e. in this case a failure to follow an NHS core standard) expert evidence will be required as to whether there would have been a greater than 50% chance of a good outcome but for the negligent failure to provide the thrombolytic therapy. What would Mr Brown’s outcome have been if he had been provided with thrombolytic therapy? Would his level of disability have been similar in any event?

In this case, if a pleaded claim was brought on the basis that harm resulted from a transgression of a protocol (or a failure to follow accepted guidance), without good reason, then the claim is very likely to succeed.

NHS Acute Services are currently commissioned by the local Primary Care Trust (PCT). The role of the PCT and its implication as a potential co-defendant will depend on the facts of the case. For example has the PCT given clear instructions to the NHS Trust and the need to implement the core standard? If so, there would be limited grounds for legal challenge of the role of commissioner. It may be that the PCT has debated and consulted on how to allocate its local resources and promoted other health programmes in preference to implementing thrombolysis for stroke: if so, its decision-making processes may be open to challenge by way of judicial review as a public authority.

What happens if the core standard is not applied to your local population? What happens if there are two competing core standards for resources? Is there a documented audit trail of the local decision-making process for exceptions to implementation of core standards for the Trust patient population?

The Health Act 1989 imposes a statutory duty on PCTs and NHS Trusts to monitor and improve the quality of healthcare. The claim against the NHS Trust will relate to the actions of its employees under the principle of vicarious liability. The case against the PCT for failing to provide the expected levels of service will seek to look at the reasons why. Was it because of insufficient funding or insufficient monitoring? If the core standard has not been implemented for reasons of funding or alleged maladministration, the appropriate legal process would not be an action in tort. Instead, a patient should seek judicial review of the rationality of the decision-making of the PCT. However, claims based upon failure to provide a service and insufficient funding are less likely to succeed and in general the courts are reluctant to interfere with decisions taken in good faith on the allocations of scarce resources by local commissioners.

The aim of compensation is described in some detail in Case 6. Compensation is likely to be structured by way of periodical payments since this ensures a more accurate annual assessment of care needs. It also often makes for better value for money and ensures that all funds remain within the NHS until the next annual periodical payment; as opposed to paying a lump sum upfront to Mr Brown which takes this money out of NHS circulation. Expert evidence will also be required about Mr Brown’s normal life expectancy prior to the incident compared with his life expectancy after the stroke.

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