Thorley v Sandwell & West Birmingham Hospitals NHS Trust [2021] EWHC 2604 (QB)

Summary

The Claimant had atrial fibrillation for which he was prescribed warfarin. Following a coronary angiogram, the Claimant had an ischaemic stroke. This left him physically and cognitively disabled. The Claimant brought a negligence claim against the Defendant Trust. He alleged that the Trust had caused or, in the alternative, materially contributed to his stroke for two reasons. Firstly, the Trust advised him negligently to stop warfarin four days, as opposed to three days, prior to the angiogram. Secondly, the Trust failed to restart warfarin on the evening of his procedure.

The Trust denied breach of duty, bar admitting that warfarin should have been restarted no later than one day following the angiogram. Causation was denied.

Mr Justice Soole made the following findings: there was no breach of duty beyond that which was admitted by the Trust; the case failed on ‘but for’ causation; and material contribution would not apply where indivisible injuries are caused by a single tortfeasor.

Facts

The Claimant was diagnosed with atrial fibrillation in 2002 and prescribed long-term warfarin. In March 2005, the Claimant was diagnosed with acute coronary syndrome following an episode of chest pain. A follow up investigative coronary angiogram was arranged for 27 April 2005. To combat the risk of bleeding associated with the procedure, the Claimant was advised to stop warfarin four days prior to the angiogram. On 22 April 2005, the final pre-angiogram warfarin dose was taken.

The angiogram took place on 27 April and was uneventful. On 29 April 2005, the Claimant restarted warfarin as advised. On 30 April 2005, the Claimant had an ischaemic stroke which culminated in severe physical and cognitive disability.

Initially, the Claimant alleged that warfarin should have been restarted on the evening of the procedure, not two days later. Disclosure of a 2004 Trust guideline document entitled ‘Anti-coagulation and Surgery’ stated that warfarin should be stopped for only three days in cases of intermediate and major surgery. Accordingly, the claim was amended to include the allegation that advising the Claimant to stop warfarin four days in advance of the angiogram constituted a breach of duty: the document amounted to a Trust policy, protocol or guideline; it was applicable to angiography; and there was no good reason for not following it.

Applying the principles set out in Wisniewski v Central Manchester Health Authority [1998] EWCA Civ 596, the Claimant further argued that an adverse inference could be drawn from the Trust’s failure to call evidence to explain or interpret the guideline document.[1]

The Claimant alleged that had warfarin been stopped for three days only, on the balance of probabilities, a stroke would have been avoided. Alternatively, it was argued that delay in restarting warfarin materially contributed to the Claimant having a stroke.

The Trust admitted warfarin should have been restarted on 28 April 2005. Otherwise, breach of duty and causation were denied.

Outcome

Following Efobi v Royal Mail Group Ltd [2021] UKSC 33, recently reviewed by Ryan Ross of Farrar’s Building, the judge was entitled to rely on “common sense” when determining whether or not an inference should be drawn.[2] Accordingly, the Judge found no basis upon which an adverse inference could be drawn from the Trust’s failure to call witness evidence to clarify the document guideline.

The judge held that the Trust did not breach its duty of care in failing to apply the provisions of the document guideline for the following reasons:

1. The guidance within the document guideline related to anticoagulation and surgery;
2. An angiogram does not constitute surgery;
3. Guidelines are not in place for all procedures. When there is no guideline clinicians use their experience and judgement in assessing risks;
4. Having considered the Claimant’s risk of a stroke secondary to atrial fibrillation, the judge was not persuaded that the guidance, contained within the document guideline, would have been appropriate for him in any event.
5. Substantial material, in line with responsible practice, exists to support withholding warfarin for four or five days before angiography. [3]

The judge held that there was nothing to substantiate the argument that omitting warfarin for three days was “better” practice than omitting it for four or five days.[4] Applying Bolam, cessation of the Claimant’s warfarin for a period of four days in advance of the procedure did not constitute a breach of duty. Further, had the Trust restarted warfarin on 28 April 2005, a duty of care would not have been breached. Accordingly, the trust did not breach duty of care beyond that which had been admitted.

The Claimant’s case on ‘but for’ causation failed. On the balance of probability, even if the omission of warfarin had been for three, four or five days instead of six days, the Claimant would still have had a stroke.[5]

Material contribution remained in issue only to the extent of the breach admitted by the Trust. It was accepted on behalf of the Claimant that ischaemic stroke was an indivisible injury but the judge rejected the Claimant’s submission that this was relevant only to quantifying damages and was not a bar to establishing causation on the basis of material contribution.[6] The judge held that he was bound by Ministry of Defence v AB [2010] EWCA Civ 1317 and Heneghan v Manchester Dry Docks Ltd [2016] EWCA Civ 8: the modified test of causation, as per Bonnington Castings Ltd v Wardlaw [1956] AC 613, is not applicable where a single tortfeasor is responsible for an indivisible injury. Whilst not binding precedent, the judge acknowledged the persuasiveness of the Privy Council decision in Williams v. The Bermuda Hospitals Board [2016] UKPC 4, the findings of which provided a countering argument assisting the Claimant’s case.

The judge held that if he was incorrect in the law, failure to restart warfarin the day after the procedure made no material contribution to the stroke.

Comment

Material contribution is central to this judgment. Determining whether the modified test of causation is applicable to cases involving indivisible injuries remains a continuing point of uncertainty in this area of law. Bound by AB and Heneghan, the judge approved the recent case of Davies v Frimley Health NHS Foundation Trust [2021] EWHC 169 (QB): where an indivisible injury is caused by a single tortfeasor, causation by material contribution is barred. However, the judge acknowledged the persuasiveness of the Privy Council’s judgment in Williams, which, in contrast to AB and Heneghan, lends support to the view that in the context of material contribution, a single tortfeasor can contribute to an indivisible injury. Describing this area of law as “ripe” for authoritative review,[7] the judge has highlighted the need for clarity.

Case review by Lucie Danti, a Pupil at Farrar’s Building.

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[1]At para [25]

[2] Ibid [55]

[3] Ibid [60-67]

[4] Ibid [75]

[5] Ibid [134]

[6] Ibid [147]

[7] Ibid [151]

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