Justice achieved for brain damaged child

A judgement recently handed down by the Court of Appeal, means that an Essex family has achieved justice, with the help of Attwaters Jameson Hill solicitors, in their 13-year long dedicated battle over the negligence of their daughter (known as FB for the sake of anonymity – see notes to editors) at the hands of an NHS doctor, at the Princess Alexandra Hospital, Harlow.

The child had developed pneumococcal meningitis which was not identified and as a result the child suffered severely impaired hearing and brain damage, that manifests itself as memory deficit and learning difficulties.

On 18 September 2003, the child (who was just 13 months old) became ill. Thinking she might be teething, or have some other childhood ailment, her young mother gave her Calpol and hoped that her temperature and cold would pass. However, her symptoms persisted and by 27 September, her mother became increasingly concerned about her child’s health. As it was a Saturday, she sought advice from the out-of-hours GP service and, as the child had improved slightly, was advised to continue with the same course of treatment. As the symptoms worsened later that day, she called the service again and spoke to a different doctor, who advised her to keep the child cool.

After a terrible night and the emergence of a new symptom – severe vomiting – she received a home visit from an out-of-hours GP who suggested that she should continue with the same course of treatment. When the child appeared to begin fitting at 4am, paramedics were called and she was taken as an emergency by ambulance to Princess Alexandra Hospital.

The A&E Registrar who attended her recorded that the child was ‘alert and well’. Her mother maintains that she was extremely unwell and could not possibly be described in these terms. The doctor did not record that her mother had telephoned for an ambulance, or that she had been brought into hospital by paramedics.

In the Court of Appeal’s judgement, the Judges made no criticism of the parents, who were aged 19 and 20 at the time, but found that if the doctor had known this information, she would have noted it and referred the child to a pediatrician.

Head of Medical Negligence at Attwaters Jameson Hill solicitors, Madeline Seibert, felt strongly that the initial verdict of the case was wrong, and together with the child’s family took the case to the Court of Appeal. They did so on the basis that history-taking is the essence of the role of an A&E doctor, in deciding what course of treatment should be pursued. In this case, the A&E doctor breached her duty of care to the child because she should have elicited the fact that the mother had brought the child into hospital via an ambulance because she thought she had suffered a fit. It is not the patient’s job to try to ascertain what facts are and are not important to a treating doctor. In general, the seniority of the doctor must be matched to the task being allocated and if a more senior pair of eyes is needed, to assess the patient’s state of health, then this is what should happen. In this case, the child should have been referred to a pediatrician.

In the Appeal, Lady Justice Thirlwall stated that “it is for the doctor in A&E to use appropriate techniques to elicit why the patient is there at that time”. She went on to say that contrary to normal practice, the ambulance, paramedic and triage notes were not with the A&E front sheet that was given to the doctor when she assessed the child in A&E. The failure to make this important information available to the doctor had not been explained. For that reason, Lady Justice Thirlwall stated that “it is not easy to see how this can be excused”.

On achieving the victory, Madeline Seibert commented: “This Court of Appeal decision means so much to the child’s parents who have been through a 13-year ordeal in respect of this legal case. Her mother carried out all the recommended advice she received, but doctors failed to recognise that the child was developing the life-threatening condition, pneumococcal meningitis. If she had been admitted to hospital and seen by a pediatrician, her condition could have been successfully treated. Her mother did everything she could to help her daughter; instinct told her that her daughter was seriously ill, but no one seemed to listen”.