Duty of care – Defendant doctor examining claimant and diagnosing colic – Claimant being admitted to hospital and found to have meningitis
Doy (a child by his litigation friend Joanne Doy) v Gunn: Court of Appeal, Civil Division: 8 May 2013
On 25 January 2002, the claimant, K, was born prematurely. On 16 March, he was seen by a general practitioner at the practice at which he was registered. The doctor's notes recorded that K had been wheezy and short of breath for two days and had been crying fractiously. That doctor thought that colic was the most likely diagnosis and gave K's mother (and litigation friend) a prescription for Infacol and advised her to bring K back for review if he did not improve.
In the afternoon of 19 March, K was seen by a health visitor and another GP for his standard check. That evening, the mother telephoned the out-of-hours contact service. The receptionist noted the history given to her as 'persistent, constant crying for three hours - very out of character, won't take milk'. The call was referred to the defendant doctor who was on duty. The defendant contacted the mother a few minutes later and advised her to bring K to an examination. The defendant diagnosed colic.
On 21 March, K was admitted to hospital where he was found to have acute bacterial meningitis due to Group B streptococcus and was treated with antibiotics. The meningitis left K with severe problems, including moderate learning difficulties, development difficulties and significant gross motor difficulties. K's mother issued clinical negligence proceedings on K's behalf against the defendant. The allegation was that the defendant ought to have referred him and that, had she done so, K would have been prescribed antibiotics immediately which would have had the effect of preventing the development of meningitis.
The judge heard evidence from the mother, K's father, and the medical professionals who had treated K in the days before the relevant consultation as well as having seen their contemporaneous medical records. He also heard evidence from the defendant as to her 'inadequate' note of the consultation and her usual practice. He found that, due to discrepancies between the mother's account and the contemporaneous records, the mother's account could not be relied upon. The experts were agreed that, if the defendant's notes were accurate and the mother's recollection was not, then breach of duty was ruled out.
Accordingly, the judge held that, had K been admitted to hospital on 19 March, he would have been prescribed antibiotics and that would have prevented the development of bacterial meningitis. However, the claim was dismissed because the defendant had not acted negligently in not having made a hospital referral. The claimant appealed. The claimant submitted that, inter alia, the overall factual matrix had been strongly suggestive of significant symptomology which had been consistent with his case and inconsistent with the defendant's. The appeal would be dismissed.
On the evidence, the judge had made no material error in his approach nor in his conclusion. He had had the advantage of seeing and hearing the witnesses give evidence (see - - of the judgment). Decision of Owen J  All ER (D) 128 (Dec) affirmed.
John Stevenson (instructed by Morgan Jones & Pett Ltd, Norwich) for the claimant; Lord Faulks QC (instructed by MDU Services Ltd) for the defendant.