Clinical negligence claim dismissed by the High Court

Last week, in the case of Thorley (by his litigation friend) v Sandwell and West Birmingham NHS Trust [2021][1] the High Court dismissed a clinical negligence claim because the Defendant Trust was found to have not breached its duty of care.

It is a reminder of the key requisites for a successful claim.

The Facts

In February 2002, Mr Thorley was diagnosed with atrial fibrillation, a condition that carries an increased risk of blood clots and strokes. His treatment for this condition included a daily 3.5mg dose of Warfarin.

In March 2005, Mr Thorley was suffering with chest pain. A review at Sandwell Hospital concluded that an investigation by coronary angiogram was necessary, and this was scheduled for 27 April 2005. In accordance with the advice given to him because of the bleeding risk in such a procedure, Mr Thorley stopped his daily dose of Warfarin for the 6-day period of 23-28 April. He restarted again on 29 April at a reduced dose of 3mg. The angiogram on 27 April was uneventful and he was discharged home later that day. However, on 30 April, he suffered an ischaemic stroke which has resulted in permanent and severe physical and cognitive disability.

The Claim

To succeed in a clinical negligence claim, the Claimant must first prove that the Defendant breached its duty of care, and secondly, that the breach caused or materially contributed to the condition/injuries. Mr Thorley alleged that the Defendant Trust breached its duty of care on the basis that the period over which Mr Thorley was advised to stop taking Warfarin was too long. Mr Thorley argued that the advice to stop taking Warfarin should have been limited to the 3-day period of 24-26 April 2005 and restarted at the usual 3.5mg. It was alleged that these breaches caused or materially contributed to the stroke he later suffered.

The case changed because of the Defendant Trust’s disclosure in July 2020 of a document titled ‘Anticoagulation and Surgery (Sandwell)’ first published in April 2004. This document contained guidance, which the Claimant alleged, demonstrated a breach of duty in respect of the period for which his Warfarin was stopped. However, Mr Justice Soole stated that:

I am not persuaded that the 2004 guideline has any application to the procedure of angiography.” [2]

This conclusion reduced the breach of duty argument that the Claimant was trying to establish. Mr Justice Soole then examined the expert evidence in detail and concluded:

The expert evidence provides no basis to conclude that a 3-day omission of Warfarin would have constituted ‘better’ practice than 4 or 5 days.” [3]

The Claimant was therefore unable to prove that the medical advice in this case was negligent nor that it caused the stroke. Mr Justice Soole concluded his judgment by stating:

“Any claim of clinical negligence has to establish the requisite ingredients of both breach of duty and causation of injury. For the reasons I have given, the claim must be dismissed.”[4]

If you require further information or advice about medical negligence claims, please contact our Linda Williams.

[1] EWHC 2604 (QB)
[2] Paragraph 57 of Mr Justice Soole’s Judgment
[3] Paragraph 75 of Mr Justice Soole’s Judgment
[4] Paragraph 164 of Mr Justice Soole’s Judgment

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