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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 204
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OPINION OF LORD UIST
in the cause
(FIRST) SCOTT
MICHAEL LEARMONT (AP) (a) as an individual and(b) with ROSS MICHAEL LEARMONT
as Executors of the late CATHERINE LEARMONT and (SECOND) LAUREN ANN LEARMONT
(AP)
Pursuers
against
DR FIONA
VERNON
Defender
ннннннннннннннннн________________
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Pursuers:
Caldwell QC, L Sutherland; Brodies LLP.
Defender: I
W F Ferguson QC, A MacLean; Shepherd & Wedderburn WS.
19 December 2007
Introduction
[1] In
December 1999 Catherine Learmont ("Mrs Learmont ") was a bright,
attractive 37 year old woman who was divorced and lived with her two children,
Scott, then aged 17, and Lauren, then aged 14, in Dumfries. She had two part-time jobs as a cleaner, one
in a nursing home and one in a doctor's surgery. She began to feel unwell on 24
December. She felt worse on Christmas
morning. On Christmas afternoon at
about 5.57 pm she consulted the defender ("Dr Vernon") about her
symptoms at the Out of Hours Surgery in Dumfries. She was told by Dr Vernon that she had
a viral infection which would get worse before it got better and that she
should go home. She then drove home,
stopping on the way at her sister's house to drop off the two children. She went to bed and continued to be
unwell. At about 4 am on 26
December Scott saw her sitting in bed coughing. At about 10.30 am that day Lauren found
her dead in bed. She had been dead for
about four hours. The cause of death
(as agreed by joint minute 27 of process) was acute bacterial meningitis. The question which I have to decide is
whether Dr Vernon was professionally negligent in her examination of Mrs Learmont
on Christmas Day.
Meningitis
[2] Meningitis
is an infection that causes inflammation of the membranes covering the brain
and spinal cord (the meninges). It is
usually caused by a viral or bacterial infection. Viral meningitis is usually considered to be
benign, and is a fairly common complication of virus infections. There
is no specific treatment for it. On the
other hand, bacterial meningitis is an extremely serious illness which
progresses very rapidly and is potentially fatal. A doctor who suspects bacterial meningitis
in a patient must give the appropriate prophylactic antibiotic and immediately
refer the patient to hospital. The two
bacteria which cause meningitis are meningococcus and pneumococcus. (Meningitis caused by a third bacterium,
Haemophilus Influenzae type b - Hib - has been virtually eradicated since the
1990s due to the introduction of new vaccines.) Meningococcal bacteria
(Neisseria meningitides) are the most common cause of bacterial meningitis in
the United Kingdom. These bacteria
cause two distinct forms of disease - meningococcal meningitis and
meningococcal septicaemia, which may occur separately or together. Meningococcal septicaemia is the more
dangerous and occurs when meningococcal bacteria enter the blood stream and
multiply uncontrollably, poisoning the blood and completely overwhelming the
immune system, damaging the blood vessels, tissues and organs. The blood poisoning caused by meningococcal
septicaemia can give rise to a rash and a simple test known as "the glass test"
or "the tumbler test" can be carried out to determine if the rash is a sign of
meningococcal septicaemia. The side of
a glass or tumbler is pressed against the rash and if the rash does not fade or
blanch it could be a sign of meningococcal septicaemia. Symptoms of bacterial meningitis include
severe headache, stiff neck, dislike of bright light (photophobia), stiff body
or jerky movements, confusion and drowsiness, fever, vomiting or diarrhoea and
difficulty supporting one's own weight.
Symptoms of meningococcal septicaemia include rash, leg pain, cold hands
and feet, difficulty breathing, abdominal, joint or muscle pain and abnormal
skin colour. One of the signs of
meningeal irritation is known as Kernig's sign, in which one knee is extended
with the hip fully flexed: when positive there is pain and spasm of the
hamstrings.
The background to the consultation
[3] It is
first of all necessary to examine the circumstances giving rise to Mrs Learmont's
consultation with Dr Vernon on Christmas Day. The evidence relating to this came from the
two children, Scott and Lauren, and from recordings of telephone
conversations. Before turning to the
events of 24 to 26 December 1999, I should mention that in mid December 1999
Scott had been off work suffering from a bout of flu.
[4] Although
I deal with the evidence of Lauren and Scott in much greater detail below, it
would be helpful if at this stage I gave a brief summary of their evidence of
events leading up to the consultation.
The evidence of Lauren in that connection was as follows. On 24
December 1999 she and her mother went into Dumfries to do some last minute
Christmas shopping, returned home and had dinner. After dinner her mother said she wasn't
feeling too well and that "she thought she'd got Scott's flu." She went to bed. Lauren got up at about 8 or 9 am on
Christmas Day, and Scott at about the same time. Lauren went into her mother's bedroom and
saw that she was unwell and did not wish to get up. Her mother said she had a sore stomach and
neck and felt sick, she just wanted to lie in bed and she would open her
presents later in the day. Beside her
bed there was a basin containing phlegm.
Lauren and Scott took her Christmas presents up to their mother in bed
but she was unable to open them. She
was lying on her left side facing them.
She looked "very white, awful, tired" and more or less just wanted to go
to sleep. She had never previously
wanted to stay in bed all day. All she
wanted was a drink of water. She had a
wet flannel or towel over her head.
Lauren then went out to visit her Aunt Annette (Mrs Learmont's
sister, Annette Layden, who also lived in Dumfries) at 12.30 or 1 pm and
Scott remained at home. When Lauren
returned home at about 4 or 5 pm her mother was still in bed, looking
worse than she had in the morning.
Lauren described her as "paler, like a ghost, coughing, she looked
really, really unwell, and complained of a sore stomach and head". Her mother said that her neck was really
stiff and sore and that she could barely move it. She also had a rash on her arms. Lauren could not remember if the rash was on
both arms as she just looked at her left arm.
Some of the rash consisted of red or pinkish "big bits" and some of it
consisted of "bits like wee dots", the colour of which Lauren could not remember. Her mother had done the glass test on her
arm when Lauren was not there and said to Lauren "I hope I've not got
meningitis". Lauren could not remember
if her mother had said whether or not the rash had gone away when she did the
test. Lauren did the glass test to
check the rash, which appeared to remain when the glass was held against
it. When Scott returned a short time
later and did the glass test the rash did not go away. He then phoned Aunt Annette, who gave him
the telephone number for the Out of Hours GP Surgery. He phoned the surgery and a short time later
a doctor at the surgery (Dr Vernon ) phoned back and spoke first to Lauren
and then to their mother. At the end of
the call her mother said she was going to see the doctor and all three of them
set off in the car, her mother driving.
[5] The
evidence of Scott was generally to the same effect. He said that on Christmas morning his mother
remained in bed, saying she had a sore head and was not feeling well. She looked pale and was not her usual
self. He had previously seen her
unwell, but not to the point where she could not get out of bed. She had nothing to eat. He had to open her presents from himself and
Lauren. He went out at about 1 pm. He returned at about 4 or 4.30 pm. Lauren and his mother were in the
house. His mother, who was still in
bed, said she was feeling sick and had a sore head. She had a rash on, he thought, her arms and
legs. He looked at the rash on the
inside of her left arm. It looked like
red spots, some in clusters, all over the arm.
Lauren mentioned a glass test which he had never heard of and said that
if the rash did not go away when the side of the glass was pressed against it
then that indicated meningitis. He
pressed the glass against his mother's left arm, not forcefully but enough to
apply pressure, and the rash remained.
He was worried as he knew meningitis could kill. He phoned his Aunt Annette and she gave him
the number for the Out of Hours Surgery.
He phoned the number and spoke to a receptionist. A doctor (Dr Vernon) phoned back and
spoke to his mother, who by that time had got out of bed. After her conversation with the doctor his
mother got dressed and she, Lauren and himself went to the surgery in the car. His mother looked pale and unwell and was not
at all her normal self when they set off.
She could not turn her head when driving and he and Lauren had to look
to the sides for her.
[6] The
phone conversation from the Learmont household to the surgery and that from the
surgery to the Learmont household were recorded. The first conversation, between Scott and
the receptionist, which began at 17.03 and 55 seconds, ran as follows:
"RECEPTION: After Hours
Medical Service.
SCOTT: Hello. It's ....
My mum's not very well ... (one/two words indistinct).
RECEPTION: Right. Are you phoning from her home?
SCOTT: Aye.
RECEPTION: What's the phone
number there please with the dialling code?
SCOTT: 01387...
RECEPTION: Uh huh.
SCOTT: .... 252821.
RECEPTION: 821, and your mum's name?
SCOTT: Catherine Learmont
RECEPTION: L-E-A-R, is it?
SCOTT: L-E-A-R ....
RECEPTION: M-O-N-T?
SCOTT: M-O-N-T.
RECEPTION: And what's her
address?
SCOTT: 4 Lorimer Crescent.
RECEPTION: That's Lochside,
isn't it?
SCOTT: Aye.
RECEPTION: What age is your
mum?
SCOTT (speaking to his
mother): What age are you?
RECEPTION: Have you got her
date of birth? That would be better still.
SCOTT: A second.
21st of the 1st, '62.
RECEPTION: And who's her
doctor?
SCOTT (speaking first to his
mother): Who's your doctor? It's Dr Jamieson.
RECEPTION: Jamieson, all
right, and what's the problem with her?
SCOTT: She's .... (one word
indistinct). Well, she's no been
feeling well the day and she's just came out in a rash.
RECEPTION: She's got a rash?
SCOTT: Well, she ... (one word
indistinct) just couldnae move her neck this morning.
RECEPTION: She cannae move
it. Is it still like that?
SCOTT: Aye.
RECEPTION: She can't move
her neck. Right. Has she got a temperature or anything?
SCOTT: Eh ... I think she had.
RECEPTION: Right, Okay. What I'll do is I'll pass the call through
to the doctor and we'll phone you back shortly. It may be within the next ten to fifteen
minutes.
SCOTT: (One/two words
indistinct.)
RECEPTION: It's quite busy
at the moment. Okay? So at 252821?
SCOTT: That's it, aye.
RECEPTION: Okay now. Bye.
SCOTT: (One/two words
indistinct.)"
At the end of that call the receptionist made the
following entry for Mrs Learmont in the computer:
"Message received: unwell
most of today, difficulty moving neck and has a rash."
[7] At 17:16 and 14 seconds Dr Vernon
("DR V") phoned the Learmont household.
The call was answered by Lauren, who then handed the phone to her mother
("MRS L"). The conversation ran as
follows:
"LAUREN: Hello.
DR V: Hello. Is that Catherine Learmont's house?
LAUREN: Ehm, yes.
DR V: Ah! Is that
Catherine I'm talking to?
LAUREN: No, it's her
daughter.
DR V: Right, can I have
a wee word with Catherine, please? It's the doctor phoning back.
LAUREN: Mum, it's the
doctor. Right, here she is.
DR V: Thank you.
MRS L: Hello.
DR V: Hello, Catherine. Dr Vernon from the After Hours. How can I help you?
MRS L: Well, I've
actually .... I've .... Last night I wasnae feeling at all well and could
hardly lift my head up off the pillow.
DR V: Right.
MRS L: And my neck's
really sore.
DR V: Uh huh.
MRS L: And I've come
out in a rash.
DR V: Uh huh.
MRS L: On my arm.
DR V: Uh huh.
MRS L: And I just
really wanted somebody to come and check me over, really.
DR V: Right.
MRS L: If possible.
DR V: Right. Well, let's go through that with you. You were fine yesterday?
MRS L: Yes.
DR V: Right, and now
your neck's all just a bit sore?
MRS L: Yeah.
DR V: Right, but you're
obviously up and about now?
MRS L: I am, I am now,
yeah.
DR V: Right.
MRS L: But I wasnae
earlier on.
DR V: No. Uh huh.
Any other part of your body sore? Is it your arms or your legs or
headache or ...?
MRS L: Just my
neck. I've had headaches and I've been
a bit sick.
DR V: Uh huh. Uh huh.
MRS L: (Two/three words
indistinct.)
DR V: So you've been
sick today?
MRS L: Yeah.
DR V: Right.
MRS L: Having the likes
of the rash.
DR V: Right. What's the rash like?
MRS L: Eh, just kind of
red blotches.
DR V: Uh huh. Have you taken anything that might cause
that maybe? What have you taken so far
to help?
MRS L: I've only, like,
had a paracetamol tablet, but, I mean, that doesnae usually bring me out in a
rash or anything.
DR V: No, no. Uh huh.
So is there definite red blotches?
MRS L: Red, pimply,
yeah.
DR V: Mhm hm. Mhm hm.
(Coughs.) Excuse me. (Coughs.)
Sorry about that.
MRS L: Mhm.
DR V: Well ... (one word
indistinct) quite happy to have a wee look at you, but we'll probably send you
a taxi to come over ....
MRS L: Mhm hm.
DR V: ... you know,
rather than sending the doctor out.
MRS L: Right.
DR V: As you can
understand, we need to keep him available for emergencies ...
MRS L: Yeah.
DR V: ... and things like
that.
MRS L: Uh huh.
DR V: So I don't think
this is anything unduly to worry about.
MRS L: Right.
DR V: But until we see
it we can't be 100% sure.
MRS L: Mhm hm.
DR V: So have you got
transport or would you like us to send ....
MRS L: I've got a car.
DR V: Well, why don't
you just come up to Nithbank and we'll have a wee quick look at you?
MRS L: Right.
DR V: Okay. Do you know where to go?
MRS L: Ehm, I'm no very
sure.
DR V: right, say coming
along, ehm, as if you're going to the Infirmary.
MRS L: Uh huh.
DR V: When you get to
that roundabout where the garage is ...
MRS L: Yeah.
DR V: go through it as
if you're going to the Infirmary, and turn immediately left.
MRS L: Right.
DR V: And you'll see a
green sign that says 'Doctors After Hours'.
It's really at the back of Nithbank.
MRS L: Right. Okay.
DR V: So if you sort of
follow that round, follow the signs round, you'll come to a parking area.
MRS L: Uh huh.
DR V: And then walk up
the wee path. You'll maybe need a
torch. Ehm, you know, if you just come
along and be prepared to wait, we'll see you when we can.
MRS L: Right.
DR V: Okay, Catherine?
MRS L: Okay.
DR V: Bye.
MRS L: Bye."
At the conclusion of that call Dr Vernon made the
following entry for Mrs Learmont in the computer:
"17:18 25-Dec-1999 triage by Vernon, Fiona (TRIAGE): changed to
PCC. Sore neck all day, fine red rash
on arms. Would like an assessment. Will come to PCC."
"PCC" stands for Primary Care Centre, meaning in this
case the Out of Hours Surgery.
The
Consultation
[8] The
evidence relating to the consultation itself came from the hearsay evidence of Mrs Learmont
and the evidence of Dr Vernon, including her written note of the
consultation. The note indicates that
the consultation began at 17:57 and that the diagnosis was
entered at 18:03. The note of the
diagnosis reads as follows:
"Looks well. One tender gland on right of neck. Good ROM of neck. Fine non-specific rash on left forearm. Re-assured - early viral infection and
observe."
[9] Dr Vernon
graduated MB ChB from the University of Glasgow in 1982. She did her vocational training in Dumfries from 1983 to 1986. She obtained the Diploma of the Royal
College of Obstetricians and Gynaecologists (which required a period of six
months training in the speciality and the passing of an exam) in 1984. She was a part-time principal in a GP
practice in Cumnock from 1986 to 1994.
She then job-shared at the Thornhill Practice in Dumfries until March 1996, since
when she had been a full-time principal there.
She became (through assessment of her performance) a member of the Royal
College of General Practitioners in 2003.
Only 30 GPs have obtained membership in that way. She passed the assessment in consultation
skills with merit, which was the highest attainable level. She had been a trainer of GPs since March
2002, having been a deputy trainer since 1986.
Since December 1999 she had worked about ten times a year for the Dumfries and Galloway Out of Hours
Service. Her principal interests were
in training and in the Well Woman side of things. She had created a video lending library for
the practice. One of the videos given
to the practice related to meningitis, which was a very important condition. She had previously dealt with two cases of
meningitis, one in 1998 and one in 1992.
The 1998 case involved a home visit to a 15 year old girl who was
clearly unwell with a sore throat, headache and feeling sick and whose curtains
were closed. It was obvious she had
meningitis. She was given antibiotics,
taken to hospital and recovered. The
1992 case involved the 2 year old child of a friend, whom she immediately had
taken to hospital by ambulance.
[10] Dr Vernon,
who was called as the first witness for the pursuers, explained that on
Christmas Day 1999 she was on duty in the Out of Hours Service in Nithbank, Dumfries from 3 pm to 9 pm. When she came on duty there was already
another doctor on duty, who was replaced at 6 pm. Her duty was to take phone calls and phone
patients back. The other doctor also
answered the phone and possibly saw patients at the centre and in addition did
the house calls. Phone calls were
initially taken by the receptionist, who typed a note of the call into the
computer. The note of the call was then
read by Dr Vernon on the screen. Dr Vernon
then called the patient back and herself made an entry in the computer. When she saw a patient in the surgery she
also entered the details on the computer, and these details were faxed to the
patient's home surgery the next day.
She did not enter the time of any entry she made in the computer and she
did not know if the entry was automatically timed by the computer.
[11] On
Christmas Day 1999 Dr Vernon read on the computer the
details of the entry made by the receptionist about Mrs Learmont, which I
have set out above. She then phoned the
Learmont household and spoke to Mrs Learmont as she wanted to hear the
history of the illness in detail from the patient herself. Her recollection was that Mrs Learmont
said she had taken unwell the previous night, had had a headache and been
sick. Mrs Learmont was
particularly concerned when she saw she had a rash, which had precipitated the
call. Dr Vernon thought she should
be seen at the surgery as there was the possibility she would be thinking about
meningitis. She saw Mrs Learmont,
who was brought through into the consulting room, at about 6 pm on
Christmas Day. That was the first
occasion on which she had seen Mrs Learmont. Dr Vernon then looked at each thing in
turn, the rash first of all, pulse and temperature, the throat and neck, and
ended by doing Kernig's sign. There was
a large tender lymph gland on Mrs Learmont's neck at the right side of her
jaw and movement of the neck to the right and left was particularly sore. When looking at the rash Dr Vernon
asked Mrs Learmont to sit down and show it to her. Mrs Learmont pointed to her left
forearm, where there was a red, almost salmony pink rash about 1.2 x 0.8
cm. Dr Vernon was satisfied that
it was a blanching rash when she placed her thumb on it. Mrs Learmont told her that her children
had pressed on the rash with a glass at home and seemed happy when Dr Vernon
was happy that it was a blanching rash.
Dr Vernon took Mrs Learmont's pulse and temperature. Mrs Learmont's throat looked OK when Dr Vernon
shined her oroscope in it. When Dr Vernon
asked Mrs Learmont to look to her left and right Mrs Learmont seemed
a bit uncomfortable. Dr Vernon
asked Mrs Learmont to look up at the ceiling and down at the floor and she
was able to do so. Mrs Learmont
lay on the examination couch for Kernig's Sign, which involved extending the
hip joints and flexing the knee.
[12] In
light of her examination Dr Vernon felt that Mrs Learmont had an
early viral infection and that she had excluded meningitis. She accepted that meningococcal meningitis
was an emergency and could be fatal, and that, as it was difficult to diagnose
in its early stages, it was important to take a careful history and to do a careful
and thorough examination of the patient.
Symptoms of vomiting, headache and a sore neck should make a GP think
about meningitis. It was important for
the doctor to know the tempo of the illness - when it started and how it
developed. The patient could have been
perfectly well the previous day. If the
doctor had a suspicion of meningitis, it was important to administer
antibiotics and refer the patient to hospital.
At the Nithbank Surgery they had benzo-penicillin and an appropriate
alternative, and Dumfries and Galloway Royal Infirmary was only a few minutes
away.
[13] On
being referred to the receptionist's note (6/5 of process, p 39), Dr Vernon
stated that "the first thing that passes through your mind is meningococcal
meningitis with septicaemia". When the
tape of the telephone conversation between her and Mrs Learmont was
played, Dr Vernon said that she did not feel that Mrs Learmont
sounded like someone who desperately needed the doctor as soon as possible and
that she thought it was reasonable to ask her to come to the surgery as soon as
possible. She was re-assured by the
description of the rash. The
conversation was not a detailed one, but only for the purpose of deciding
whether the patient needed to be seen or not.
When she said to Mrs Learmont "You're obviously up and about now"
she was not trying to downplay the situation.
She accepted that she did not ask Mrs Learmont how long she had
been in bed or how long she had been up.
When Mrs Learmont came to the surgery she said she had a headache,
was feeling washed out and the development of a rash concerned her. Dr Vernon did not ask her if she had
been sick during the night but she said she was still a little bit
nauseous. Dr Vernon got the
impression that things were improving as Mrs Learmont had not been sick
for a number of hours and was up and about.
Mrs Learmont told her that her throbbing and generalised headaches
had started the previous evening and when she did get up she was finding it
difficult to lift her head up off the pillow.
Dr Vernon did not ask her if she had been in bed all that day or if
she had anything to eat: she assumed that she had not had anything to eat. Dr Vernon did not ask Mrs Learmont about her
social circumstances and did not think it significant that she had been in bed
all of Christmas Day, but they talked about her past medical history, which was
very little.
[14] The
passage of Dr Vernon's evidence-in-chief dealing with her examination of Mrs Learmont's
rash was as follows:
"Then if I can ask you about
the rash, you said that you pressed it with your thumb? - Yes.
Is that right, and you told
us that it was about one centimetre by just under one centimetre. Is that right? - Approximately.
And did you press on the
redness itself? - Yes.
Did your thumb cover all of
the redness? - It would do.
Did any of the redness
remain at all? - Before I lifted my thumb?
Yes - no, after you lifted
your thumb? - Possibly a little bit.
Were there any spots
remaining within the general area of redness? - No.
Are you aware that there can
be a type of rash which is a generalised red rash with petechial spotting
inside it? - Yes, I am aware of that but there was no sign of that whatsoever.
And if it was a rash like
that the non-specific part of the rash, the red bit would blanch but the darker
spots would not. Do you agree? - I
agree.
Do you agree that a better
method for testing any rash is to use a glass, a tumbler, and press the tumbler
against the skin? - Well, I don't think there is anything wrong with the method
that I used, which is very acceptable by medical people. The glass test also works and that is what
is taught to lay people.
Because you can see through
the glass to see whether or not everything blanches or not. Is that right? - Yes.
Why did you not do the glass?
- Well, it is not what GPs do. What you
do is, you're pressing on it to see if the blood flows out of it and if you
lift a finger quick enough there is a tiny delay before the blood comes back
and makes the rash red again.
And did you ask Mrs Learmont
- well I think you didn't ask Mrs Learmont - to undress so that you can
examine the rest of her body for rash? - I asked her to show me the rest of the
rash and she said - I don't understand this - but she said to me 'that's it'
and I asked her again because I was surprised that she had said that.
You were surprised that she
had said that? - Yes, because I expected that there was going to be more than
one spot or more than one area.
But did you clarify with her
what she meant? - Well, I asked her twice and she gave me the impression that
this was the extent of the rash.
You asked - sorry. Just I am getting mixed up. What did you ask her twice? - To show me her
rash. My impression was that there
would be more than one what we call lesion, one rash, and when she showed me
the one on her arm we dealt with that and then I asked to see the rest of the
rash and she said 'that's it' and I asked her again because I thought ....
What did you ask her again?
What were your words approximately? - I just asked to see the rest of the
rash. I don't know what my exact words
were but I thought she understood that I wanted to examine any other rashes
that she had.
And it may have been of
course that she did have rash elsewhere but she was not aware of it. Do you agree with that? - It could have
been.
So, she may not have known
that she had rashes elsewhere. Do you
agree? - That is possible, but as I say I asked her twice over and she said
that that was it.
But she cannot tell you of a
rash she doesn't know of. You agree
with that? - Yes.
And that would be why it is
important for the doctor to ask the patient to undress and for the doctor to
examine the rest of the patient's body? - Yes, I understand that.
So, for all you know there
might have been a rash elsewhere or rashes elsewhere but you didn't look for
them. Is that right? - This is correct
because the examination didn't go any further but I certainly asked on two
occasions to let me examine her.
Well, I'm sorry. What you said earlier was that you asked her
to let you see the rash, the rest of the rash, and your evidence was that she
said 'that's it'? - Yes.
You didn't say to her, well,
you'd better undress so that I can check your back? - No.
Or the backs of your legs or
anything like that. Is that right? -
That's right.
And you agree that it is
important that the doctor when suspecting particularly meningococcal meningitis
to examine the patient's body to see if there are any rashes that the patient
doesn't know about? - Yes, that's true.
And you didn't do that? - I
didn't do that.
BY THE COURT: What did you
think the rash was, Doctor? - Well, I termed it a non-specific rash, which
means that it is not diagnostic of anything in particular - for example,
shingles. It is a very definite rash
that chicken pox has, but this red area could really have been anything.
So, you did not know what it
was. Is that what it comes to? - It was
not diagnostic of anything in particular and it is the kind of rash that we
commonly see with viral infections. So,
I sort of concluded that that was what I was dealing with.
That was the next thing I
was going to ask you. Could a virus
have caused the rash? - Yes, very much so but we do see that quite often and
nowadays it is not unusual for patients to phone up particularly if they have
got children and they have got a temperature, a bit of a headache and the
minute that any rash of any type develops they phone up, and I think that that
is because there is such an awareness of meningitis and septicaemia in the
public now.
EXAMINATION CONTINUED: So,
you're getting people phoning you up thinking that they have got meningitis
because they have got some sort of rash and they come along and you tell them
or look at them and it is not the meningococcal type of rash. Is that right? - This is quite a common
scenario nowadays.
And is that what you thought
in this particular instance had happened? - That was my conclusion, having
examined her and talked to her. I
didn't think she had meningitis or meningococcal septicaemia and I put it down
to the early stages of viral infection.
The fact that the rash
didn't blanch does not exclude meningitis.
Would you agree with that? - This can happen, yes".
[15] Dr Vernon
then went on to say that, in testing for neck stiffness, she also lifted Mrs Learmont's
head up off the examination couch so that her chin touched her chest. That was done before the test for Kernig's
sign. When asked by me what it was that
caused her to exclude a diagnosis of meningitis, she replied that it was a
combination of things - her first impression that Mrs Learmont did not
strike her as someone who was worryingly unwell, the fact that the rash was a
blanching one, that she did not have a fever or a rapid pulse, that her sore
neck was explicable by a swollen gland and her feeling that things were not
rapidly getting worse and if anything she seemed a bit better at that point
than she had been earlier in the day.
She was reassured by the way that Mrs Learmont spoke to her on the
phone, the fact that she was able to drive to the surgery and the fact that
when she came to the door of the consulting room she was not looking as if she
had a stiff neck. She formed the view
from Mrs Learmont's appearance that she did not have photophobia as it is
something that is perfectly obvious when present. She did not look in Mrs Learmont's ears
or examine her chest as she did not think it necessary to do so. She was concentrating mainly on whether it
was a case of meningitis or not, and there were no symptoms suggestive of
that. She thought Mrs Learmont was
suffering from an early viral infection as that was the only explanation she
could reach because she was feeling unwell and there was nothing very positive
to find apart from the gland and the rash: she was happy with everything
else. Very often a raised temperature
was not found in a viral infection.
There was no complaint by Mrs Learmont of a raised temperature,
shiver or chill, muscle pain, wheezing, red or sore throat or a runny nose,
symptoms often found in a viral infection.
At that time there was no focus of infection. The reason she saw Mrs Learmont was to
exclude meningitis and she was happy that it was not meningitis. There was nothing to support the diagnosis
of meningitis requiring further assessment.
Her conclusion, taking everything into consideration, was that this was
not a case of meningitis. When she
first saw Mrs Learmont , whom she had never seen before, she did not look
seriously unwell. She put a lot of
emphasis on first impressions. When she
wrote the words "and observe" at the end of her note of the consultation she
meant "wait and see what develops", or, in other words, if things changed the
patient or a relative would get back in touch.
She told Mrs Learmont that if she went on to develop a petechial
rash (the nature of which she explained to her) she would obviously need to get
back in touch with the Out of Hours Service and also to get in touch if she
felt that things were getting a lot worse rather than better. In more general terms she told Mrs Learmont
that if any of the symptoms seemed to get worse and caused her any concern to
get back in touch. She said to Mrs Learmont
that her condition might get worse before it got better but if she had any
concerns to get back in touch. From the
fact that Mrs Learmont had been in bed and sick and was now up and had
come to the surgery she assumed that her condition was improving but she had no
idea whether she would be worse later on or the next day or by the beginning of
the week. She was in no doubt about her
diagnosis of an early viral infection and if she had been in any doubt about it
being meningitis she would, because of its serious nature, have referred Mrs Learmont
to hospital. At that point in time she
was confident in her own mind that this was not a case of meningitis. If she had had any real worry about Mrs Learmont
having meningitis she would have referred her to hospital for further
assessment, but she was perfectly happy to send her home. She firmly believed that if she had sent her
to hospital she would not have been admitted and the receiving officer would
have sent her home. If she had had any
suspicion at all that it was meningitis the correct thing to do would have been
to refer Mrs Learmont to hospital but she was 100% happy that she was not
dealing with a case of meningitis and in her own mind had excluded it.
[16] Dr Vernon
was asked about the timings on her note of the consultation with Mrs Learmont. She stated that she did not enter a time and
she did not know how the computer worked but thought the timing "1757" was
probably entered by the computer itself when she opened up the screen. Once Mrs Learmont left she entered the
diagnosis, for which a time of 1803 was given.
That tended to indicate that the duration of the consultation was six
minutes, and it could possibly have been as short as five minutes or as long as
seven minutes. She denied a suggestion
that the taking of a history and the carrying out of an examination could not
be done in a period of between five and seven minutes: she thought there was
plenty of time in that period as she was taking the history and examining at
the same time. In this particular case
she already knew "what we were about" and, like Mrs Learmont, "was keen to
have a look at that straight away", so Mrs Learmont sat down and she just
proceeded from there, looked at the rash and moved on to the next thing and the
next thing. What was in her mind was
simply to exclude meningitis. As they went
along she was addressing the rash, her neck and her headache at the appropriate
time. Dealing with the rash, she said:
"Well, we looked at the rash
together. I asked to see the rash. She put her hand forward and we looked at it
together. I pressed on it and I
reassured her that this was a good sign, that this was a blanching rash. She seemed to me to agree with that. She was happy with it anyway, and accepted
that it was not a worrying rash. What I
would be worried about if it was non-blanching, if it was like a bruise and
wouldn't go away when you pressed on it."
She then moved on, put her thermometer under Mrs Learmont's
arm and took her pulse. She then
examined her throat using an oroscope and felt her neck and the gland. Mrs Learmont knew the gland was tender
because she was moving away when Dr Vernon was examining it. She then got Mrs Learmont to move her
head from left to right and up and down.
She then got her to lie on the couch, explained what she was going to do
and why she was going to do it, tested for neck stiffness by taking her head in
her hand and moving her chin onto her chest and after that testing for Kernig's
sign. It did not take long to do those
things. The one question she was
concentrating on was whether Mrs Learmont had meningitis or meningococcal
disease and needed to be referred on.
Her conclusion, given the history and findings, was that this was an
early viral illness. She agreed that
her note of the consultation was not adequate in that it did not record the
history of the presenting complaint or the tests which she carried out. In explaining the terms of her note of the
consultation she stated as follows in two separate answers:
"Yes, I will admit that this
is not what I would normally do. It is
not adequate, but there we go. It is
what I happened to write on that night after seeing her, but it doesn't mean
that I didn't do it.
...... There are things missing
but that is not to say that I didn't do them.
I think it kind of reflects my level of suspicion, that I was quite
happy with this lady, wrote some things down and I expected that this is
exactly where it would end and I wouldn't be standing here defending this."
In response to a suggestion that one interpretation of
her note was that she never suspected meningitis at all from the start she
stated that she could understand that as there was nothing written down, but
she could give an assurance that she did.
The shorthand "ROM" referred to movements to the right, left, back,
forwards and roundabout - the normal movements of the neck. She wished she had written down that she had
done the Kernig's test. She conceded
that there was nothing in the note to say that she had considered meningitis
and said she regretted "the poor notes that are here". It would have been better if she had written
down that she had considered meningitis.
The evidence
of the family
[17] The
evidence of Lauren was as follows. The
house in which they lived at the time was a three bedroom terrace house and her
mother's bedroom was at the front upstairs.
Her mother cared very much about her appearance: she got up an hour
early just to put her make-up on, she always dressed smartly in a suit and her
hair was perfect all the time. She was
very kind, too kind, and had a cheerful personality. She was hardly ever off work: only when she
was really ill did she take a day off work.
On Christmas Eve 1999, which was a Friday, Lauren went into town with
her mother to do last-minute Christmas shopping and they returned home roughly
at dinner time (5 o'clock). After
dinner her mother said she wasn't feeling too well, that she thought she had
caught Scott's flu and went to bed roughly about 10 o'clock. Normally on a Christmas morning Lauren and
Scott would get up and her mother would later join them to open their presents
downstairs in the living room. That
year they were planning on having Christmas dinner in the house, contrary to
their usual practice of going to Aunt Anita's round the corner. Lauren and Scott got up about 9 am but
her mother remained in bed. Lauren went
into her mother's bedroom to see her.
Her mother was not well at all and was complaining that she did not want
to get up. She was going to open her
presents later that day because she couldn't manage out of her bed, but she did
not get out of bed at all and Lauren and Scott brought her presents up to
her. She was complaining of a sore
stomach, sore neck and feeling sick.
One answer given by Lauren was in the following terms:
"She had a sore stomach and
a stiff neck, well, sore neck, and complaining of feeling sick. So, she just wanted to lie there and she
would open her presents later on that day."
When Lauren was asked if she knew that her mother
might have been sick, she replied that she thought "she might have got up
during the night because there was next to her at the side of the bed a basin
containing phlegm, just phlegm". When
she was shown the presents her mother did not move at all in bed and was not
very interested in the presents. She
looked very white, awful and tired, and she more or less just wanted to go to
sleep. She had a few glasses of water
to drink and asked for a wet flannel or towel.
Her mother said to her and Scott that she was feeling fine, but they knew
that she was not. She told them to go
out. Lauren went up to visit her Aunt
Annette and left Scott to look after their mother. A little while later Scott appeared there as
well, having been told by his mother to go there because it was Christmas. Lauren
then went back home and found her mother still in bed and worse than she was in
the morning. She looked even more pale,
like a ghost, just coughing and "she just looked really, really unwell". She was still complaining that she had a
sore stomach and a sore head and was feeling sick. She said her neck was really stiff and sore,
she could barely move it and "she also had a rash up her arms as well". Her mother said to Lauren that she also had
a rash on her arms and was complaining of feeling unwell and sick and having a
sore head. Lauren could not remember if
the rash was on both arms but it was on her mother's legs as well, although she
never saw it on her legs. Lauren looked
only at the inside of her mother's left forearm. The detailed evidence of Lauren in the form
of question and answer about the rash was as follows:
"And what did the rash look
like? - Some of it was big, some of it was wee rashes like dots - not dots, but
not blotches neither. I do not know
what it looked like but there were some bits were big and some bits were wee on
her arm.
And what colour were the big
bits? - Kind of reddish - well, not red, red, but enough to know that it was a
rash.
Pinkish? - Yes.
And what about the wee bits
that you were talking about? What colour were they? - I can't remember what
colour they were but it was enough to know that there was something there.
Were the wee bits the same
colour as the bigger bits or were they a different colour? - I honestly can't
remember.
And what did your mum say
about this rash? - That because I had given her the glass of water that morning
she had put the glass over it because she was worried herself because I don't
think she had ever been that unwell before.
She put the glass over her arm and she said 'I hope I've not got
meningitis'.
Well, why was she putting
the glass over her arm? What was she
doing? - I don't know because I wasn't there at the time.
But did you know why she was
doing it? What did you know about this?
- Well, at school there had been talks about meningitis and there had been
things on the television telling you about meningitis and what to do if there
are symptoms there.
What did it tell you to do?
- Well, the glass test, I knew about that.
Tell me about the glass
test. What did you know about it? What
was it that was important? - To roll it up your arm and press not too hard, not
too soft, and if it faded away or it didn't.
And what was the
significance if it faded away? - Well, I do not know. Probably you didn't have meningitis.
And if it didn't fade away,
did that mean that maybe you did have meningitis? - Maybe it did. I do not know. It was still .... I had actually done it as
well after my mum had said.
Right. When you did it then, did you roll the glass
up and down her left forearm? - Yes, I did.
And what happened to the
rash? - It didn't go away."
[18] Scott
returned shortly afterwards from their Aunt Annette's house and she told him
about the glass test and rash and how their mother was feeling. Scott then did the glass test a third time
to make sure. The rash did not go
away. He didn't know what to do, so he
phoned Aunt Annette and explained what was wrong with their mother and she gave
him the phone number for the Out of Hours Service. Scott then phoned the Out of Hours
Service. Their mother was still in bed
at that time but she got up when the doctor phoned back. Lauren answered the phone in the downstairs
lobby and handed it over to her mother, who by that time had got up. Their mother agreed to go to the Out of
Hours Surgery to see the doctor. She
did not wash or shower and her hair was everywhere because she just got out of
her bed and put something on so she could get there as soon as she could. She just looked ill - awful. All three of them went in the car to
Nithbank. Their mother drove. When she was turning corners she couldn't
move her neck: it was that stiff she had to ask Lauren or Scott if anything was
coming from the right or the left. In
the car park she parked as close as possible to the surgery because she could
hardly walk, she was like an old woman and needed help to walk. Lauren thought they had to wait at least
half an hour before their mother was called in to see the doctor. When she was called in to see the doctor she
just looked awful, her face was white, she looked just white as a ghost, her
hair was everywhere and she just didn't look the same. She was in with the doctor about two or
three minutes, four minutes at the most, about three minutes. When asked whether her mother when she came
out told her what the doctor had said, Lauren replied:
"I can remember her saying
when we had got out ... asked her if she'd got anything or if she was .... what had
got said and I can always remember her saying 'Oh, it's just a viral infection,
the doctor said it will get worse before it gets better', and she said about
her stiff neck that ..... something to do with her glands, that's why her neck
was being stiff."
Her mother did not say whether the doctor had told her
to call back if she got worse and made no mention of the rash. She had been advised by the doctor just to
get plenty of rest.
[19] Her
mother, Scott and herself left the surgery and went to Aunt Annette's
house. They met Aunt Annette drawing up
in her car as she had been to their house to see if their mother was in. Aunt Annette invited them in and her mother
had to hold onto Aunt Annette so that the latter could help her walk a
bit. Aunt Annette gave her mother
paracetamol and then helped her mother back out to the car. Lauren stayed in Aunt Annette's house and
walked home on her own at about 9.30 pm.
When she got home she found her mother coming out of the toilet having
suffered from diarrhoea and gave her a hot water bottle. Her mother said that she had diarrhoea and a
really, really sore stomach and she looked worse than she had earlier. Her mother then went to bed. Lauren went to bed not long after. During the night she heard her mother
coughing "like she was gasping for air or breath". She
got up about 10 o'clock, half past 10, went downstairs to watch
television, thought she heard her mother up, went to her room round about 11 o'clock
to check and found her mother, who was lying in an awkward position, to be
dead. Lauren then called on Scott and a
neighbour and the ambulance and police were summoned.
[20] In
cross-examination Lauren stated that when she did the glass test on her
mother's arm she looked through the top of the glass and one side of it and was
clear that the rash did not change, fade or disappear. She thought that her mother told her "maybe
it could be meningitis". In the
following passage of evidence Lauren explained how she knew about the glass
test:
"Why was it you were doing
the glass test? - Because of the rash on her arm. We had been taught at school about
meningitis and the symptoms. So
obviously I thought 'we'll have to try' because it had been going around about
that time - meningitis.
Meningitis had been going
around? - I mean a young boy had died of it and I thought 'Well, I'm going to
have to try and see (inaudible)'.
So it's something you were
aware of from school and also from the death of a boy ... was this in the
neighbourhood or Dumfries or ... ? - It was in Dumfries, yes.
So you would know pretty well,
wouldn't you, what you were looking for? - I didn't know what exactly
everything was but (inaudible) if the rash is still there that's one of the
symptoms.
Right. So, just to be clear about this, did you
know that if the rash didn't go away that would tend to indicate meningitis? Is
that what you were thinking? - That's what I was thinking at the time."
When Lauren came into the house her mother said to her
that she had done the glass test and Lauren thought she would check in case her
mother was not seeing it properly.
Scott later rolled the glass on their mother's arm and when it did not
fade they didn't know what to do so they phoned Aunt Annette. Lauren knew from the fact that the rash did
not fade that her mother either had or might have meningitis, which was
potentially life-threatening. She knew
it was a very, very serious matter: that was why Scott phoned their aunt and
then contacted the doctor. Lauren never
saw a rash anywhere on her mother's body apart from her left inner arm. Her mother had said to Lauren when she came
in that "she had now got a rash on her arms".
When Lauren did the glass test the bedroom light and, she thought, a
side lamp were on and her mother never said that she had any trouble with the
light being on. The light had been on
when they had spent about an hour opening their presents. Lauren would have had to put the light on
when she returned to the bedroom to do the glass test. The bedroom light was on throughout the 30
to 45 minutes she and Scott were in the bedroom. She was quite sure that the glass test was
done three times and she was not just making up the fact it was done three
times to "beef up her case". She could not
explain why, in the statement she gave to the police at her home just after noon on 26 December, she
did not mention any glass test having been done. She was 14 at the time and didn't know what
was going on, she couldn't remember everything because she was that young and
had just lost her mum. There was no
mention in the police statement of helping her mother to drive, having to wait
at the surgery, of her mother saying that the doctor told her she would get
worse before she got better, of her mother coming out of the toilet and the
house smelling of diarrhoea or of her mother having a stiff (as opposed to a
sore) neck. She was hysterical at the
time. Her mother's neck was sore and
stiff. When she was driving to and from
the surgery the difficulty which she had was turning her head from right to
left. She managed to drive home from
Aunt Annette's house without any assistance, turning corners up to possibly
seven times. The headlights of other
cars did not affect her mother's ability to drive. The waiting room at the surgery was fairly
well lit and when her mother was called through to the consulting room she went
through on her own, just taking her time.
She was not in the consulting room long. As Lauren put it, "It was just like she went
in and then she was straight back out." She was not painting an exaggerated picture
of how unwell her mother appeared. Her
mother looked really unwell. It was
correct, as she had stated in her police statement, that her mother had said in
the afternoon that she was feeling a wee bit better than in the morning but not
much: she would just say it anyway because she and Scott kept asking her how
she was, that was the kind of person she was.
After the death of their mother she fell out with Scott because he
accidentally broke her nose when they were "mucking about" in his room. Scott then went to Cyprus to work, after which he
returned home. They had both lived
together there since then.
[21] Scott
Learmont said that he had his seventeenth birthday on 18 December
1999. His mother was an attractive
woman with a bubbly personality who cared about her appearance, liked to be
well-dressed, normally wore make-up and looked after her hair. She was not someone who easily took a day
off work because she was not feeling well.
In December 1999 he had been off work with the flu. On the evening of Christmas Eve he went out
for drinks with his workmates and then went home. He did not think he saw his mother that
night. When he got up on Christmas
morning his mother was in bed. She said
that she wasn't feeling very well and she just wanted to lie down for a
while. She looked kind of pale, not
very well. He had previously seen his
mother unwell, but not to the point where she couldn't get out of bed. When he first went in to see her she was
lying on her back and mentioned she had a sore head. There was a bucket next to her bed. The Christmas presents were opened in her
room, but she was not particularly interested in them and was not moving at all
in bed. He thought Lauren got her a
glass of water. At roughly one
o'clock he went out to see his cousin Gregg, Aunt Annette's son. Lauren had already gone out and his mother
told him to go out. All she wanted
before he left was water. He returned
about 4 or half past 4, by which time Lauren had already returned. He
went to see his mother in bed. She was
feeling sick and had a sore head. She
also had a sore neck and a rash on her arms and legs. He saw the rash on her left arm but did not
look at her right arm. The rash on her
left arm was "just all over, kind of scattered" on the inside of her arm. It looked like "spots if you like - red
spots", some of them were in clusters.
Lauren mentioned the glass test so they just pressed a glass against
it. He had never heard of this glass
test. Lauren said "if the rash didn't
go away they were symptoms of meningitis".
When he pressed the glass against his mother's arm and rolled it up the
rash stayed. He was worried. He did not know a lot about meningitis, just
that it could kill. He then phoned his
Aunt Annette, who gave him the number for the Out of Hours Surgery, which he
then phoned. The call had been
precipitated because of the rash not going away plus the fact that his mother
would always get up for Christmas, so he "knew that something was up". When he phoned the Out of Hours Service he
phoned from the telephone in the lobby and his mother was upstairs in bed. When the tape of the phone call was played
to him he stated that he thought his mother would have told him that she could
not move her neck. When the doctor
phoned back his mother spoke on the phone in the lobby and was dressed "in her
sleeping clothes". He was not too sure,
but he thought she got up to speak to the doctor on the phone. She had not been up very long, maybe 5 minutes,
when she spoke to the doctor on the phone.
At the end of that phone call his mother said they had to go up to the
surgery and she put on her clothes without getting washed. She did not put on her make-up. She looked pale, unwell, not her normal self
at all. When his mother was driving to
the surgery she couldn't really turn her head, so he and Lauren had to give her
directions if she wanted to turn left or right. She said her neck was sore. At the surgery they were in the waiting room
roughly about ten minutes before his mother was called in to the consulting
room. She was in seeing the doctor not
long, about five minutes he thought, if that.
When she came out he asked her if she was going to be OK and she replied
"Yes, the doctor said it will get worse before it gets better". She said that the doctor told her she had a
viral infection. He was pleased at the
fact it was a viral infection and not meningitis. She said the doctor had told her to go and
get some rest and that the rash was caused by the viral infection. The three of them then went to Aunt
Annette's house, roughly ten minutes drive from the surgery. They met Aunt Annette outside her house and
went into her house. His mother was in
the house only a couple of minutes because she just wanted to go to bed and
sleep. He stayed with his cousin Greg
and returned home the following morning about 3.30 am. On arriving home he heard his mother
coughing in bed and went in to see her.
She was just sitting up coughing and said nothing at all to him. He asked her if she was OK but did not get
any reply. He thought she was just
coughing so he went to bed. He could
not remember if he put the light on in his mother's bedroom. The next thing he remembered was Lauren, who
was hysterical, coming to wake him up at about 10 or half past
10
in the morning. He got up, went into
his mother's bedroom, touched her and found she was cold and then phoned an
ambulance. Lauren went next door to get
their neighbour Mrs McQuaid, a nurse.
The ambulance and the police came and his mother was found to be
dead. A while after that he went away
to Cyprus to work for six
months. He returned to live with Lauren
at 4 Lorimer Crescent, Dumfries, where he had lived since
then.
[22] In
cross-examination Scott said that he went to Cyprus because he and his sister
were arguing and he punched her and broke her nose. The argument was not about the circumstances
surrounding his mother's death, but just because they were staying in the house
together. When they opened the presents
in his mother's bedroom on Christmas morning he would think the lights were
on. Before he went out on Christmas Day
he asked his mother and she said "Just go and enjoy yourself". When he went out with his cousin on
Christmas Day he was dancing and drinking and returned home about 3.30 am on
26 December, by which time he had had a lot to drink. When he had returned to the house on
Christmas afternoon Lauren said to him that their mother was not well and that
she (Lauren) had done the glass test.
He honestly did not know what it (the glass test) was about. When asked what Lauren said he replied:
"She said she'd seen it on
TV - I don't know - or something and you push a tumbler against the skin and if
the rash disappears you're OK and if not .... could be meningitis."
He thought his mother had done the glass test before
his sister but he was not sure. Lauren
told him that when their mother had done the test the same had happened as when
Lauren had done it. When he did the
glass test he found "just like a rash that was kind of clumped up and you just
pushed against it - the glass against it - and it didn't go away, it was still
there." The rash looked like red spots dotted about
over the forearm, just some here and some there. Even if he had not got the result he did
with the glass test he would have phoned the doctor because his mother was not
well. When it was put to him that the
rash did in fact fade when he did the glass test he denied that that was the case,
adding "there was red dots and they didn't go away". The doctor could not have missed the rash
scattered over the forearm. His mother
said that she had a sore neck which hurt when she tried to move it. It was sore for her to turn her head from side
to side when she was driving. He
corrected what he said earlier about Lauren linking arms with their mother when
the latter was called into the consultation room and explained that the linking
of arms was from the car to the waiting room (which was quite brightly lit) and
that his mother walked into and came back from the consultation room on her
own. All he could remember his mother
saying was "I've a viral infection, it's going to get worse before it gets better". When he said to her "What about the rash?"
she replied "That's the viral infection, it will get worse before it gets
better". He could not remember her
mentioning a gland on her neck. He
accepted that in the statement which he gave to the police on 26 December
he said that when he came home about 3.30 on Christmas morning his mother was
not responding to him and was gasping for air.
[23] Annette
Layden was the elder sister of Mrs Learmont by six years and an auxiliary
nurse working nights at a home for the elderly. According to her Mrs Learmont cared
about her appearance "very much so", normally wore make-up and was always
smartly dressed. She had a nice
personality, could be quite bubbly sometimes, and was a caring person. On Christmas Day 1999 Mrs Layden
received a phone call after 6 o'clock (the time given was obviously
wrong) from Scott who said that his
mother was not feeling well, had been feeling sick and had terrible headaches
and a stiff neck. He also said she had
a rash on her arm, which made her say it sounded like meningitis. When Scott had come down earlier at 1 o'clock
in the afternoon he had told her his mother was not well and in bed and there
would be no Christmas dinner that day.
This was not normal for her sister, who, even if she was not well, would
never stay in bed or be off work: she was always up and about. Scott said to her on the phone that they had
done the tumbler test and that the rash still showed through. Scott wanted her to go up to the house but
she thought it was better to phone the doctor first and gave him the phone
number for the doctor. She rang back
about ten minutes later to find out what was going on and there was no
answer. She was worried and therefore
got into her car and drove to her sister's house (about four minutes drive
away), where she found a light on but nobody in. After making inquiries from a neighbour she
drove home and discovered her sister's car behind her as she pulled up outside
her own house. Her sister got out of
her car herself and then she linked arms with her to walk into the house. Her sister was not looking well at all, she
was very pale and her hair was just hanging limp like a rag doll: she said that
she was feeling nausea, headaches, a stiff neck and that she had a rash on her
arms. In the kitchen she looked at the
rash on the inside of her sister's left forearm. Her description of the rash was: "It was a
pinprick, it wasn't bright red, it was a wee bit paler". As her sister was complaining of a terrible
headache she gave her a packet containing three remaining paracetamol
tablets. Her sister said that the
doctor had said it was a viral infection and that she wasn't given anything,
just to go home and told it would get worse before it got better. She told her sister she would phone her the
next day and her sister went home. She
was in the house only a few minutes.
The following morning when she was in bed after doing her night shift
one of her sons came into the room and told her Scott had phoned to say there
was an ambulance at the Learmont house and she went up straight away and found
her sister dead. She thought that when
she went into her sister's bedroom she said something like "I don't understand
this viral infection, she had all the symptoms of meningitis". Scott and Lauren were upset. Asked about how long it would take to drive
between her sister's house and the surgery at Nithbank, Mrs Layden she had
driven the route and it took roughly seven minutes, as did the drive between
the surgery and her own house. After Mrs Learmont's
death Lauren came to stay with Mrs Layden for about six months and her son
Greg went to stay with Scott. When
Lauren returned to stay with Scott they did not get on and he went off to Cyprus.
[24] In
cross-examination Mrs Layden stated that when she saw her sister on
Christmas Day she was very limp, just sort of very unwell looking. When Mrs Learmont came into the house
she said that she wasn't feeling well, she had a headache and Mrs Layden
told her that she looked awful. The
fluorescent light in the kitchen was on.
The rash on her left forearm was scattered about from the wrist to the
elbow and fairly obvious: she did not have to have it pointed out to her. When Scott had phoned in the afternoon he
told her he had done the glass test and later on (not that day) he told her
that Lauren had done it earlier. Her
sister mentioned that the doctor had said it was probably a swollen gland in
her neck and touched the side of her neck.
She was very concerned about her sister going home on her own. She thought it could not be meningitis
because the doctor had sent her home and not given her anything. She accepted that in her statement to the
police there was no mention of the doctor having told her sister she would get
worse before she got better, nausea, headaches, stiff neck or a rash on the
arm.
Evidence of
others involved in events
[25] Mrs Dawn
McQuaid, the neighbour of Mrs Learmont, was a registered general nurse who
had qualified in 2001 and become a staff nurse. In 1999 she was a student nurse and lived at
8 Lorimer Crescent, Dumfries. She
had met the Learmonts not long after she moved there in 1996 and Lauren was a
friend of her daughter Louise. On
26 December 1999 Lauren phoned to say that her mother was lying in bed
cold and that she could not wake her.
Lauren asked her to come round.
When she went to the Learmont house Lauren was at the door waiting for
her very upset and crying. She went up
to the bedroom with Lauren and Scott, approached the bed, shouted Mrs Learmont's
name and received no response. She then
pulled the quilt back, saw that Mrs Learmont was not breathing and felt no
carotid pulse. She chased the children
from the bedroom as they were hysterical and she wanted to assess the condition
of Mrs Learmont. Mrs Learmont
was half on her back, half on her left side and stiff and cold. She knew that Mrs Learmont was dead and
shouted on the children to call an ambulance, which arrived not long
after. The ambulance personnel put a
monitor on her "and there was nothing".
She then went downstairs to tell the children, who were inconsolable,
particularly Scott, who was hysterical.
When she had pulled back the quilt she found "a mottling kind of
appearance" and "darker discolouration" on Mrs Learmont's skin. She didn't know where, but her forearms and
thighs were visible and it would have been one of the two. Mrs Learmont's left arm was covered by
her body. The discolouration was like
dark red bruising and she did not know if it was in more than one area. There was a bucket or basin by the bed but
she did not look to see if there was anything in it. In cross-examination Mrs McQuaid said Mrs Learmont
was wearing a knee length dressing gown with a tie in the middle. She was looking at Mrs Learmont to see
if she was still alive and probably not paying much attention to the mottling
or bruising, which she noticed in passing.
[26] Detective
Constable Steven Saunderson attended at the Learmont house upon the death of Mrs Learmont. He found her lying on her back in bed with
the covers thrown off. There was a
bucket beside the bed with bile or vomit in it. He seized it and thought he took it to the
mortuary. Lauren told him his mother
had gone to the Out of Hours Surgery with a sore head, stiff neck and a rash,
which was of particular concern. He
particularly remembered that they (Scott and Lauren) said they'd carried out
the test on Mrs Learmont's arm (he could not remember which arm) and he
thought they had indicate that the rash had not disappeared. He took statements. When taking a statement he just basically
got the person to relate what occurred and then repeated it. He read it over to the witness to make sure
the contents were accurate and more often than not he got the witness to sign
it. He noted the time of the statement
in the margin of his notebook. He
thought Scott's statement was short because he was particularly distressed. On Monday 27 December 1999 he contacted
Dr Vernon by telephone to ascertain certain facts as she could recall
initially and to make an appointment to take a statement from her. He noted what she said on the phone in his
notebook (6/19 of process) as follows:
"On 25 December 1999 I was the duty doctor for the Out of Hours Surgery, Nithbank Hospital, Dumfries. I was rostered on from 3 pm until 9 pm
that day. I was triaging all day, which
means that I take calls from patients (and) give advice to them over the phone
after taking their symptoms from them.
Once I have all the information I decide whether I can give advice to
the person or whether I need to examine them.
About 1707 hours on 25/12/99 I took a call from a Catherine Learmont of 4 Lorimer
Crescent, Dumfries.
There would be a tape
recording relating to this call which would document exactly what Miss Learmont
said.
Miss Learmont attended for
examination and I had no concerns for her at that time. She looked well. I found that she had one tender gland on the
right of her neck (and) a fine non-specific rash on her left forearm. I reassured Miss Learmont that she did not
have anything other than early signs of a viral infection."
[27] On
Tuesday 28 December 1999 he took a statement from Dr John Brian
Cathcart (54), who had attended at the Learmont house on Mrs Learmont
being discovered dead there. Dr Cathcart's
statement read as follows:
"On Sunday 26 December 1999 I was on duty from 8 am
to 1 pm at the Out of Hours Doctors' Surgery, Nithbank Hospital, Dumfries. On that morning a call was received in our
vehicle. I was actually out in a house
on a call. We have a driver and he sits
in the vehicle while I do the calls.
When I got back into the
vehicle the driver told me we had an urgent call to go to, the sudden death of
a female. He told me that the ambulance
staff were already there or were attending.
On arrival at 4 Lorimer
Crescent, Dumfries, where the death had occurred, I spoke to a police officer
and then I spoke to the ambulance staff, who told me the circumstances and what
they had done. I then briefly examined
the female who had died in bed, and from the examination I concluded that no
obvious cause of death was apparent.
There was no evidence of any struggle or signs that the female had been
in extreme discomfort.
I pronounced life extinct at
1140 hours. I spoke briefly to the
family members of the deceased female and I spoke to a police inspector who
informed me that he had contacted the duty police surgeon.
After I had spoken to the
family members they told me that the female had been at Out of Hours the previous
evening, at which time she had had a rash on her arms and legs. I then went back up to examine the female
again but found no signs of any rashes.
With meningitis the rash
does not fade after death, but there was no sign of any rash during my examination."
[28] At 1715
hours on Tuesday 28 December 1999 he noted a statement from Dr Vernon
in the following terms:
"I was on duty as a triaging
doctor from the hours of 1500 to 2100 hours on 25 December 1999 at the Out
of Hours Surgery.
Triaging means that I take
calls from people, give advice over the phone or if I feel I need to see
somebody I invite them to attend at the surgery in Dumfries if they are local. If it is out of the area a doctor will
attend from the area if required.
About 1707 hours a call was
received from a Scott Learmont of 4 Lorimer Crescent, Dumfries, who stated that his mum
Catherine Learmont had been unwell all day, had difficulty moving her neck and
had a rash. This first call was taken
by Susan who is a telephonist. I phoned
back at 1716 hours and spoke to Catherine Learmont. Mrs Learmont sounded fine on the phone,
although she said her neck was really sore and she had a rash on her arm, and
could somebody come out and look at her.
My job then is to decide
whether the person really needs to be seen, to get a bit more information on
the symptoms, if advice can just be given over the phone or whether an
examination is required.
We then discussed the
symptoms and then I said if she could either get a taxi or had transport I
would have a look at her. Mrs Learmont
was agreeable to this and said she had transport and would attend. I told her I didn't think it was anything to
unduly worry about and that I couldn't be 100% sure of what it was until I saw
her.
She attended and I examined
her at 1757 hours. The first thing I
thought initially when I saw her was that she looked fine. I then checked the movement of her neck and
it appeared fine. She had a good range
of movements of the neck and wasn't in too much discomfort at all. The only thing I found was one tender gland
on the right side of her neck.
She then showed me a small
red rash, about 5 cms x 5 cms on the inside of her left forearm, fine
red dots. The next thing I did was
pressing my finger on the rash. The
rash disappeared and then came back.
With meningitis the rash stays and it's called non-blanching. This rash was not non-blanching and the
patient smiled and agreed with this as she'd already tried this.
I reassured Mrs Learmont
that everything was okay, that it was probably just a viral infection and she
was happy with that.
I told her to keep an eye on
it, get some rest and take some paracetamol, and if anything else developed to
let us know.
She wasn't given any
medication at this time.
In my opinion Mrs Learmont
was not too unwell. I definitely did
not think she had meningitis as the symptoms did not support it. I was extremely surprised to hear on 27 December 1999 that Mrs Learmont had died and was very upset by
this."
[29] In
cross-examination Constable Saunderson said that he thought it was the children
who had brought up the possibility of death by meningitis. He thought it was the daughter who had
carried out the glass test on Mrs Learmont . The description was of a rash on the left
arm.
[30] Louis
Stankovitch was a Paramedic Team Leader in the Scottish Ambulance Service in Dumfries
with over 22 years experience. He
was called to the Learmont house at 1109 hours on 26 December and commenced
treatment on Mrs Learmont at 1116 hours.
She was lying on her left side on the right side of the bed. She was absolutely still and he could tell
by her pale facial colour and touching her that she had been dead for a
while. She was cold and rigid to touch
and in the early stages of rigor mortis.
He could see post mortem staining on her legs and arms. There was sickness on her clothing and a bin
beside the bed.
Medical
evidence of consultants
[31] The
post mortem examination of the body of Mrs Learmont was carried out by Dr I
H Gibson, Consultant Pathologist, at the mortuary of Dumfries and Galloway Royal Infirmary
at 0815 hours on Wednesday 29 December 1999. The cause of death given in the autopsy
report (6/13 of process) is acute meningitis (consistent with bacterial infection
- organism not isolated). Included in
what he found on external examination of the body were hypostasis on the back,
focally on the front and slightly more to the left than to the right, absence
of rigor mortis and faint freckling of the skin of both arms. The brain weighed 1170 g, no obvious
abnormality was identified on the surface or on sectional examination and in
particular no significant quantities of pus were identified. On histological examination acute
inflammatory exudate was found on the surface of the cerebral cortex and
cerebellum indicating acute meningitis of bacterial origin. Gram stain was not conclusive and apparently
associated with artefact. (Gram staining
is a method of differentiating bacterial species into two large groups, Gram
positive and Gram negative, based on the chemical and physical properties of
their cell walls. The method is named
after its inventor, the Danish scientist Hans Christian Gram (1853-1938), who
developed the technique in 1884. On the
Gram stain process being applied Gram positive bacteria appear blue or violet
under the microscope, while Gram negative bacteria appear red or pink.) The lungs were expanded and touched each
other over the upper part of the heart and the ascending aorta. The left lung weighed 570 g and the
right 520 g. They were congested
and slightly oedematous. The adrenals
were unremarkable and in particular showed no evidence of haemorrhage. In the heart there was focal minimal
myocardial fibrosis and a single small subendocardial collection of
polymorphs. In his Commentary at the
conclusion of his report Dr Gibson wrote as follows:
"In my opinion death was due
to natural causes resulting from acute meningitis (inflammation of the lining
of the brain).
This condition would explain
the clinical symptoms and sudden death.
The patient had suffered from a 'flu' like illness with headaches and a
stiff neck. While the latter may have
been suggestive of the condition, they are not necessarily specific, being
present in other infections such as influenza and other viral diseases."
[32] In his
oral evidence Dr Gibson explained that the body of Mrs Learmont had
been kept in the mortuary fridge. He
had carried out a brief external examination of the body and an examination of
the brain and skull on Tuesday 28 December 1999 and carried out a full
post mortem examination the following day.
He looked for thickening or pus on the surface of the brain. On the Tuesday he took swabs of the
brain. On the Wednesday his more experienced
mortician thought there might have been thickening of the meninges. He did not see a large swollen gland in the
neck: if he had seen it he would have recorded it. He saw no rash, but he could have missed it
if it were covered by the change of colour on an area of hypostasis. The pus that he saw microscopically was
substantial and widespread on the pieces of tissue that he looked at, varying
between 6 and 30 cells. When he saw it
he thought Mrs Learmont had had meningitis, contrary to his preliminary
view that she had died of an acute asthmatic attack. In cross-examination he said that if there
had been a rash that is something he would have expected to notice. He had previously seen petechial rashes on
legs at post mortem and he would have expected to see one on an arm or both
arms and on a leg. The glands were
among the soft tissues of the neck, to which he was not paying particular
attention and it is possible that he missed a swollen gland. A well-known complication of septicaemic meningitis
was damage to the adrenal glands, more common in the case of meningococcal
meningitis, but he would not necessarily have expected to see such damage. In re-examination he stated that at autopsy
he would see or feel a very large swollen gland under the right jaw which felt
swollen to the touch and restricted neck movement to right and left and record
that. A rash on the left arm might not
have been conspicuous if there were lividity there.
[33] Dr David
Breen was the medical consultant responsible for public health in the Dumfries and Galloway area. He had been in that post since 1988. The public health management of meningitis
was absolutely fundamental to his function.
There existed a Control of Infection Committee on meningitis which issued
a manual to all general practitioners.
In 1999 there were over 300 copies available and it was now issued
through an Intranet. It was also issued
to schools through the Director of Education.
In a case of bacterial meningitis he had to establish, by confirming the
diagnosis with the laboratory, whether it was a case of meningococcal
meningitis. He had to ensure that the
source of the infection was eradicated by distributing antibiotics to family
contacts to stop any secondary case.
The Meningitis Research Foundation disseminated information about
meningitis, particularly to children and students. The pamphlet 6/28 of process was an example
of the literature they published and they also published more elaborate
booklets and large posters. Many children, including his own, were
familiar with the tumbler or glass test.
In the year 1999 he had had six cases of meningitis in his area. There were two fatalities that year - a 13
or 14 year old schoolboy at Dumfries High School in May and Mrs Learmont
in December. The schoolboy was the son
of a prominent businessman who started a fund in his memory and the death gave
rise to a lot of public anxiety and there was extensive media coverage. The Meningitis Research Foundation visited Dumfries High School to give out information
about meningitis. Pneumococcal
infection had no public health significance as it had no effect on anyone else.
[34] Professor
Anthony Busuttil was Regius Professor of Forensic Medicine at the University of Edinburgh and a full-time forensic
pathologist for the previous 18 years, carrying out approximately 1300
autopsies per year. He had about one
case every four weeks of a person suspected of having died of bacterial
meningitis. So far as Mrs Learmont
was concerned, he had studied the post mortem report and the other medical
notes relating to her condition. Most
cases of meningitis at post mortem were bacterial meningitis, but you could
have viral meningitis as well. The
bacterial infection started in a variety of ways, usually in the nose or
throat, and then went into the blood stream.
Certain bacteria homed in on the meninges. Septicaemia occurred when specific types of
bacteria in large numbers divided in the blood stream and overwhelmed the blood
and defence systems, producing poison.
Most cases of meningitis were due to specific organisms. Staphylococcus and streptococcus were in the
Gram positive group. Gram negative
bacteria caused meningococcal meningitis and septicaemia. You could develop meningitis on its
own. It could be secondary to
septicaemia or the other way around.
Death was a combination of two things - meningeal irritation and
inflammation, which clogged up the circulation around the brain and in simple
terms produced pus. In a case of
bacterial meningitis and septicaemia you had an insult to the brain itself and
poison to the other organs. In death
meningitis was something which the pathologist could see with the naked eye:
the meninges were clouded with pus. On
being referred to the autopsy report on Mrs Learmont, Professor Busuttil
pointed out that the longer after death the body was autopsied the more it
changed. The bacteria would not like
the fridge. So far as the time of death
was concerned, Mrs Learmont must have died very soon after she was seen
alive at 4 am on 26 December 1999, possibly within the
hour. He had looked at the slides of
the brain. There was no question at all
she had a well-established meningitis, with loads of pus cells surrounding the
brain. The cause of death was acute
meningitis of bacterial origin. The
meningitis which she had was, in his words, "enough to kill an elephant". In his report Dr Gibson had mentioned
micro-abscesses in the kidney and a bit of pus in the heart, so there must have
been pus elsewhere, suggesting a septicaemic process associated with the
meningitis. He could not say what Mrs Learmont's
symptoms would have been at 6 pm on 25 December 1999, but headache,
stiff neck and sickness would be entirely consistent with meningococcal
meningitis as a cause of death and it was more likely than not that she would
have had a raised temperature or fever and a raised pulse rate. A petechial rash pointed to meningococcal
meningitis. Staphylococcus and
streptococcus could both produce a rash, including a petechial one, but a
petechial rash was far commoner in meningococcal disease. A petechial rash consisted of pinky
pinpoint-sized spots. It could be
missed by the pathologist at post mortem examination, depending upon where it
was situated on the body. Even where a
clinician has said there was a rash, a pathologist may not find it at post
mortem in a good light. That would be
even more so the case in a less well-lit bedroom. Rashes were difficult to see at post mortem. It could be difficult sometimes to
distinguish a bruise from lividity on post mortem examination. The rash could fade post mortem but it
should not disappear completely because it was due to haemorrhage and the
staining could not be removed but changes in the colour of the skin post mortem
might obscure it and a pathologist had to search very carefully for it. There was no mention of a rash in Dr Gibson's
report, but that might be because it was obscured or limited by lividity or
because it had faded. If somebody had
mentioned a rash the pathologist would be looking for it. He would have expected a rash to be visible
at 10 or 11 am on 26 December 1999 and for a GP to have found
it then. He would not have expected him
to find any rash other than a petechial one as any other rash could have
faded. The doctors should have found a
petechial rash but the fact they did not do so did not mean that it was not
there. The adrenal glands were not
necessarily destroyed by meningitis. Dr Gibson
had said that on microscopy petechial haemorrhages were present. The absence of gross findings in the
adrenals did not in itself exclude meningococcal meningitis. Engorgement of the meningeal blood vessels
was not recorded: in meningococcal meningitis it was found more often than not,
but not invariably. He would have
expected the pathologist to have found a swollen gland at post mortem
examination as he must have dissected the neck very, very closely. Having viewed the brain slides he was of the
view that the meningitis produced the septicaemia as there was massive
inflammation of the brain and only micro-abscesses. There were loads of pus cells visible on
microscopy, which suggested to him that the pus should have been visible to the
naked eye. The absence of a petechial
rash and adrenal damage, Mrs Learmont's age group and the existence of
micro-abscesses pointed away from meningococcal infection.
[35] Dr Robert
Masterton was a Consultant Microbiologist and Medical Director with Ayrshire
and Arran Health Board. He explained
that in meningococcal disease the patient acquired the organism, it colonised
at the back of the throat, went up through the ethmoid plate to the meninges
and infected the brain. Alternatively,
it travelled into the bloodstream and then infected the brain. The bacteria started to multiply in the
meninges and the body fought the infection by polymorphs or leucocytes being
attracted to the bacteria and causing pus resulting in headache, nausea,
vomiting, photophobia, a stiff neck on flexion and swelling of the brain
resulting in death. If the bacteria
went into the blood stream that was called SIRS and if the antagonists were not
successful in keeping the cascade under control that resulted in serious sepsis
and death. The same development
occurred in pneumococcal disease. He
had looked at the brain slides, which showed clear evidence of meningitis with
polymorphs. He was not able to detect
any organisms, and therefore could not say if they were Gram positive or Gram
negative. He arranged for a further
test known as the Polymerase Chain Reaction (PCR) test, which detected a small
amount of DNA from the organism and multiplied it. He also had 15 samples of adrenal
gland. He tried to detect the three
main causes of adult meningitis but the result was negative. The material in question was not ideal as it
had been processed at post mortem and fixed for histology and so the test was
not a conventional one, but it did not invalidate the conclusion in the post
mortem report. There was definitely a
clear inflammatory process in the brain.
All three types of organism caused rapid death within a few hours and
had a similar presentation. In a case
of septicaemia he would expect the patient to have a rise in temperature, a rapid
pulse and a drop in blood pressure and, after the cascade, organ failure in the
heart, lungs, kidney, liver or brain.
He had never come across a case of meningitis where there had not been
an abnormal temperature or pulse (in either direction). In the early stages of meningitis there was
a general malaise like flu. A
non-specific rash tended to consist of generalised fine spots which blanched on
pressure. A purpuric rash was purple in
colour but could appear red like fresh blood in the early stages, the lesions
varied in size but could be larger, were fewer in number and more scattered in
distribution and did not blanch under pressure. For the rash to blanch it had to go pure
white: if redness remained it could be an early purpuric lesion. It was best to do the test with a glass as
you could see the area you were pressing on.
He did not think it was possible to comment on the evidence of Dr Vernon
on her examination of Mrs Learmont's rash as what she described could be
the return of blood after the removal of pressure. It was possible to have a non-specific rash
and a petechial rash in the same area.
A non-specific rash could vanish after death. Very, very few infections could cause a
petechial rash.
[36] When
the symptoms of Mrs Learmont on 24 December were put to Dr Masterton
he expressed the view that she was presenting with the early stages of an
infection, although it was not possible to say what the infection was. Her symptoms of headache, nausea and
vomiting on 25 December suggested the involvement of the brain and in the
course of the day the infection was getting gradually worse. He would have expected her to have had an
elevated temperature and rapid pulse at 6 pm and thought that at that
stage she might well have been showing signs in her neck of pain and resistance
on flexion. He would have expected her
to look particularly unwell, whether the infective organism was pneumococcus or
meningococcus. He would have expected
her to have had the signs and symptoms of meningitis 12 hours before death
and believed it would have been clear that she had meningitis. Even if she had only a viral illness he
would have expected her to look unwell (but not as unwell as she would have
looked with meningitis) with raised temperature and pulse. With a viral infection it tended to be
multiple glands that were swollen. A
bacterial infection in the throat would be visible. If Mrs Learmont had been sent to
hospital at 6 pm on 25 December and appropriately treated for
meningitis or meningitis and septicaemia she would have been likely to have
survived as there was an 80% survival rate.
[37] In
cross-examination Dr Masterton stated that a purpuric rash took weeks to
disappear. He would have expected it to
be seen at post mortem, even three or four days after death. He would not recognise "pink" or "pinkish"
as a description of a purpuric rash.
Scott's description of the rash as "a pinprick, it wasn't bright red, it
was a wee bit paler" sounded like the description of a non-specific rash. Lauren's description of "red spots, just all
over, kind of scattered" sounded like the description of a non-specific
rash. Her earlier description "some of
it was big, some of it was wee rashes like dots, the big bits were pinkish"
could refer to a mixture of purpuric and non-specific rashes. Blotches were not characteristic of a
purpuric rash, and he would be much more interested to know whether it blanched
or not. The words purpuric and
petechial were synonymous. A purpuric
rash was particularly associated with meningococcal septicaemia. It could appear before your face in
minutes. In his consultant career he
had been involved in hundreds of cases of meningococcal meningitis and in three
cases in the previous two months. He
would expect a doctor being aware of the possibility of meningitis being a
cause of death to look for a rash on the body and to find it. Post mortem lividity could obscure a
purpuric rash, but he would expect an ordinarily competent GP or pathologist to
observe it. He had looked at the same
pathology as Dr Doyle (see below) and was unable to identify any Gram
positive organisms. He therefore did
not agree with Dr Doyle's statement that "the Gram stained preparations
showed small Gram positive bodies, most attached to small threads, which were
probably small cocci". He was more
competent to judge micro-organisms than Dr Doyle and he could not say if
the organisms were Gram positive or Gram negative. In cases of meningitis in Mrs Learmont's
age group 60% were pneumococcal and 20% meningococcal. Damage to the adrenal glands occurred in
only 10% of cases of meningococcal meningitis.
An enlarged gland was a neutral sign.
Against the circumstances described the infective pathogen was more
likely to be pneumococcus. The
histopathology showed that polymorphs had started to get down into the brain
surface, the time for which varied in individual cases. In septicaemia the rise in pulse and
temperature occurred very early in the process. He would have expected such rises to have
occurred at or around the outset of the symptoms late on 24 December or early
on 25 December. The signs of meningeal
irritation were headache, restricted neck flexion and photophobia. The headache was a bursting one and a very prominent
sign. A photophobic person could
tolerate surgery lights or sit in a kitchen with a strip light, but driving at
night was likely to cause discomfort. Dr Vernon's
note "looks well" went against his expectation and he could not explain
it. Having seen the histology, he had
reason to suggest that the meningitis was more advanced than might appear from Dr Gibson's
report. He could not say if meningitis
or SIRS caused death. He did not favour
the view that Mrs Learmont died of the septicaemic process as he had not
seen it happen in several thousand cases in his experience.
[38] In
re-examination Dr Masterton said that he would not have expected Mrs Learmont
to have been looking well when she saw Dr Vernon as she was within
12 hours of death from meningitis.
It was possible to have well established meningitis without experiencing
photophobia. Epidemiology could not be
used to say what had happened in a single patient. Redness remaining after the application of
pressure to a rash indicated that it was non-blanching. He could not see how Dr Vernon could
see over her thumb when applying pressure to the rash. A 1 cm x 1 cm rash was not
consistent with a non-viral rash. The
evidence of the two children suggested a purpuric rash. In further cross-examination he said that Dr Vernon's
examination of the rash showed that she knew the difference between a blanching
and non-blanching rash, but he was concerned that she had not investigated the
lesion appropriately. Thumb pressure
was not a recommended technique. Dr Vernon
was unlikely to have confused blood not going away with blood returning.
[39] Dr William
Wallace was a consultant histopathologist specialising in examination of lung
tissue. He had examined the medical
material in this case and produced a report (6/53 of process). The sections which he had were not a full
set and not the same as those seen by Dr Gibson. He did not see any bacteria himself but
there was oedema in the cortex of the brain consistent with acute meningitis,
indicated by the presence of neutrophils.
[40] Dr David
Doyle was a consultant neuropathologist who had retired in 2002. He had worked at the Institute of Neurological Sciences in Glasgow from 1971 to 2002, having
been Head of Department from 1994 to 2002.
He had been asked to provide an opinion at a time when it was being
asserted on behalf of Dr Vernon that death was due to an acute asthmatic
attack. He had produced two reports,
the first dated 9 May 2002 (6/14 of process) and the
second dated 27 December 2004 (6/54 of process). When he wrote his first report there was no
issue about the organism. He had
examined three blocks of brain tissue and all three showed purulent meningitis
His conclusion was that Mrs Learmont had died with purulent meningitis at
least 10 hours after having visited Dr Vernon. Post mortem studies proved purulent
meningitis with evidence of septicaemia.
In the section dealing with microscopy results he stated: "The Gram
stained preparations showed small Gram positive bodies, most attached to fibrin
threads, which were probably small cocci".
The word "possibly" would, he thought, be a better word in place of
"probably". In his second report he
stated on p3, when dealing with the question of the time of the onset of
meningitis before death:
"Microscopy evidence of the
duration of meningitis includes the number and type of inflammatory cells in
the meningeal spaces, the spread of inflammatory cells into the brain (and) the
presence of fibrin in the subarachnoid space.
In this case, there are many polymorphs. There are bound to be variations in these
features but my view is that if there is an established polymorph leukocyte
infiltration into the subarachnoid space several hours must have elapsed and if
there is involvement of the adjacent, superficial layers of the brain at least
twelve hours must have elapsed from the inception of the meningitis."
On p 2 he wrote:
"The absence of observed pus
in the meninges at autopsy is plausible, more in meningococcal meningitis than
when the meningitis is caused by pus forming organisms such as
streptococci. It happens not
infrequently that pus is not seen and that the diagnosis of meningitis waits
until microscopy reveals it."
He explained that meningococci rarely produced a thick
layer of pus like the other bacteria did.
By and large the pathological changes in the brain were the same no
matter which bacterium caused them.
Meningococcal and pneumococcal bacteria could cause the same
presentation. It did not take much
exudates or pus to cause neck stiffness, which was an early clinical sign of
meningitis. He thought it very likely
that Mrs Learmont had signs of meningeal irritation at 6 pm on
Christmas Day. If she had had a swollen
gland in the neck it would still have been there to be seen at post mortem, as
would pus in the throat.
[41] Dealing
with the reference in his first report to what he described as "small Gram
positive bodies .... which were probably small cocci" he wrote:
"In the sections I examined
there were small rounded profiles which could have been bacteria, but they
could also have been tissue components.
If other techniques were to show the presence of meningococcal
components these Gram positive profiles would become irrelevant."
He went on to explain that, having looked at the
bodies again and noted their patterns, it was possible but doubtful that they
were small Gram positive cocci. There
were so few that they could not form a pattern and they were not the shape of
pneumococci. They were not smooth, and
some were too large by a factor of 3 or 4.
He could not say that they were Gram positive cocci. If, as he tended to think, they were
definitely not bacteria then they were irrelevant.
[42] He also
wrote (on p 1):
"The absence of meningococci
in the microscopy of sections from the brain does not exclude the presence of
meningococcal disease. My experience
contains patients who have died from meningococcal disease in whom the bacteria
have been proven to be present by growing meningococci from blood or CSF, but
in whom no organisms could be demonstrated in post mortem tissue sections. This discrepancy does not depend on the
length of time between death and post mortem examination."
He believed that meningococci died quite rapidly.
[43] In his
opinion the central matter was the failure by Dr Vernon to suspect
bacterial meningitis. Mrs Learmont
was seen by Dr Vernon for five minutes, a time which he believed to be
insufficient for a full examination of neck stiffness, leg raising,
temperature, fundoscopy, total skin examination for spotted fever and adequate
history taking. She was sent home with
a diagnosis of viral infection but died of acute, purulent meningitis. Had she been referred to hospital there was
a probability that she would have been adequately examined, observed, treated
and would have survived.
[44] In
cross-examination Dr Doyle confirmed that at no stage was any Gram
negative organism identified. He was
now doubtful that there had been Gram positive bodies. He was
in two minds at the time and wished he had not used the word "probably" in his
first report. He thought anyone with
meningitis would have difficulty with any neck movement at any stage. Flexion was a clinical test and was the
easiest way to demonstrate difficulty in neck movement. Rotational difficulty with neck movement
might or might not indicate meningitis.
The muscles at the back of the neck were in a state of spasm, making the
neck stiff. It did not follow from the
fact that there were no macroscopic signs of meningitis at post mortem that Mrs Learmont
did not have severe or advanced meningitis.
A rash was supportive, but never completely diagnostic, of meningococcal
meningitis. Only a very small
proportion of patients with meningococcal disease had damage to the adrenal
glands, and the absence of damage there did not suggest that the organism was
not meningococcus. He could not dispute
that the most common pathogen for causing meningitis in someone of Mrs Learmont's
age group was pneumococcus. He did not
agree that the absence of a petechial rash at post mortem and of damage to the
adrenal glands pointed away from meningococcal infection. On the information he had he could not say
which organism caused the meningitis. He
thought the onset of the illness was twelve hours before death but he could not
be dogmatic as it was "far from an exact science". The
information about how Mrs Learmont was 12 hours before death was
consistent with the findings at post mortem.
At least 12 hours must have elapsed from the inception of the meningitis
and she would therefore have been likely to have had clinical signs at least 12
hours before she died. Asked about his
comments on the duration of Dr Vernon's examination of Mrs Learmont,
he confirmed that he himself did examine living patients and said he "would
take his hat off to anyone who could do all that in five (or seven) minutes". He could not imagine the examination being
done adequately in ten minutes. Fundoscopy
was very time consuming if done properly.
In re-examination he affirmed that if Mrs Learmont had a purpuric
non-blanching rash that raised the probability that she had meningococcal
disease. Such a rash was seen as "a red
flag diagnostic sign".
[45] Dr Christopher
Ellis was a consultant physician at Birmingham Heartlands Hospital, a large general hospital
with 1000 beds. He had held that post
since 1981 and also been a senior lecturer in the Department of Medicine at Birmingham University since then. He was an examiner for the Royal College of
Physicians of London. He had published
extensively in the areas of internal medicine and infection. He dealt with the entire range of infectious
diseases and was always on call to deal with infection. He explained that in a case of meningococcal
meningitis the patient usually gave a very short history of illness (up to 24
hours), of having been inspecifically unwell, vomited once or twice, had a
headache (often described as the worst they had ever had), had dislike of light,
and sometimes neck stiffness. The
patient could develop a rash: it sometimes developed almost in front of your
eyes and you could see it changing within half an hour. At first it consisted of a little pink spot,
then half a dozen and one or two would disappear when you pressed them: at the
very earliest stage you could push the blood back. After an hour the rash became definitely
dark and after several hours it became purplish and did not blanch at all. It was possible for a rash not to develop
and it was not unusual for a patient with meningococcal meningitis to die
without having had a rash. The symptoms
of pneumococcal meningitis were in many ways identical but in such a case the
patient usually had a preceding problem such as sinusitis, otitis media or
pneumonia and more often than not had a prior infection or underlying medical
condition such as cirrhosis of the liver or diabetes. It was unusual to have pneumococcal
meningitis without any prior infection or underlying disorder: he saw at most
one or two such cases in a year in his unit, sometimes none.
[46] Dr Ellis
thought that the symptoms of Mrs Learmont on 24 and 25 December were
entirely consistent with meningitis, but he would not care to judge which
bacterium was the cause. As Mrs Learmont
was previously of good health he marginally favoured meningococcus rather than
pneumococcus. A non-blanching rash at 6 pm
on 25 December would certainly make meningococcus more likely. He would have expected Mrs Learmont's
temperature at 6 pm to have been high (38 plus - normal is 37.5) and
her pulse 90 or greater (normal varies around 70 depending on fitness) and that
she would be suffering from neck stiffness.
Anyone with a headache did not like having his head rotated, but in
someone suffering from meningitis it was particularly neck flexion that was
affected. He would not have expected
her to look well, but it was hard to specify how she would look. In his report 6/26 of process he stated as
follows:
"In my opinion the crucial
issue here is the history of the illness.
It is clear that the medical services were told that Mrs Learmont
had been unwell for most of Christmas Day, had difficulty moving her neck and
had a rash. This is clearly documented
in her children's retrospective account but is also stated in the first message
received by the Out of Hours Service. Appropriate
management at this point is summarised in the British National Formulary
provided free of charge to all doctors.
This states that initial 'blind' therapy consists of transferring the
patient urgently to hospital and, if bacterial meningitis, and especially if
meningococcal disease, is suspected, general practitioners should give benzyl
penicillin before urgent transfer to hospital.
Alternatives are given for patients who are thought to be penicillin
allergic, as Mrs Learmont was.
It is clear that Dr Vernon
felt that Mrs Learmont looked well and did not have neck stiffness but she
did note the rash. This contrasts with
the picture painted by her children and it is obviously possible that the
family and the doctor have different standards for what constitutes an ill
patient. However, the crucial point is
that doctors should certainly err on the side of over-diagnosing meningitis
since the treatment is comparatively very safe and the earlier the treatment is
given the better for patients who do have the infection. Therefore, given the clear account of the
illness given by her children and the fact that a history of having been unwell
most of the day with difficulty moving the neck and a rash was actually
recorded in the GP's notes, I have to conclude that Mrs Learmont should
either have been treated with penicillin at her first contact with Dr Vernon,
or, had Dr Vernon been concerned by the history of penicillin allergy,
then she should have been referred immediately to hospital, where she would
have received an alternative antibiotic.
Had either of these courses of action been followed then I believe that,
on the balance of probabilities, she would have survived since most women in
good health aged 37 will survive meningococcal infection if treated
promptly at a point when they have the symptoms which Mrs Learmont
experienced when she contacted the doctor."
[47] It was
absolutely not the case that meningococcal meningitis necessarily destroyed the
adrenal glands. Septicaemia was more
than just bacteria in the blood stream: it was a state of disordered physiology
which involved rapid pulse, low blood pressure and disturbance of oxygenation. Disturbed adrenals occurred in very ill
patients with circulatory collapse. The
adrenals need not necessarily be damaged in the absence of septicaemia. In some patients death occurred through
inflammation of the brain (coning), but Mrs Learmont did not have significant
cerebral swelling. If there were
significant disturbance to the brain at cellular level the patient would die. It was assumed that brain disturbance caused
pulmonary oedema. In the year 2000
there were round about 2000 cases of meningococcal meningitis, of which 10%
were fatal, in the United Kingdom. There
were a total of 5000 or 6000 cases of meningitis, of which a shade more than
10% were fatal. Dr Ellis himself
treated between five and ten cases of meningococcal meningitis and three or
four cases of pneumococcal meningitis a year, and five times those numbers of
patients with suspected meningitis. He
thought the most likely explanation in the case of Mrs Learmont was that
she had a meningococcal infection which produced meningitis, of which she died.
[48] In
cross-examination Dr Ellis accepted that he did not have a pathology
qualification and that he was not a GP.
He "still looked down a microscope".
He examined about 50 patients a week.
His particular interest was in imported infections and now in medical
management overseeing acute medical infections. His research had been in malaria and,
earlier, in HIV, but he had always taken an interest in diseases of the nervous
system, including meningitis. A patient
with suspected meningitis who was referred to hospital would be dealt with by a
consultant general physician. He
accepted that his report depended on the accuracy of the history provided by
the children, the transcripts of the phone calls and the post mortem findings, but
when expressing a view on the correct management of Mrs Learmont by the GP
he did not take into account the post mortem findings. He explained that a petechial rash developed
very quickly and commonly changed in appearance: it became more and more apparent. It did not disappear in life and he should
think not in death, but gravitational changes after death could obscure it. He would have expected Mrs Learmont's
rash to have got worse after 5 pm on Christmas Day, and that it would
change in distribution and intensity (that is, the size of the petechiae). If there was an area which did not blanch at
all on pressure, that was in keeping with a purpuric rash. It was possible to have an outer area of
rash which blanched and an inner area which did not. When the evidence of Dr Vernon about
the rash (set out above) was put to him and he was asked whether what she
described was consistent with blood returning to a blanching rash, he answered
that most rashes disappeared completely for a few seconds. He
would not have expected an area of redness in the centre of the rash to remain
when the thumb was removed from a blanching rash. It was unusual for even a little bit of the
rash to remain: he was troubled by Dr Vernon's words "possibly a little
bit". He found that there was very
clearly a difference between a purpuric rash and other rashes. The common description of the headache given
by a patient suffering from meningitis was that it was the worst he had ever
had. Patients did not usually wax lyrical
about the headache as they were in severe pain. It could be described as a bursting type of
headache, although such a description was not volunteered in the majority of
cases. While it might lessen a little,
it usually worsened progressively. He
would have expected Mrs Learmont's headache to have been severe at 6 pm
on Christmas Day. So far as photophobia
was concerned, he would expect the meningitis sufferer to be averse to a well
lit environment. Very often the light
was turned off by the nurse before he saw the patient. Driving at night would be possible for the
patient but not enjoyable. It was the
whole constellation of other symptoms that led to a diagnosis. Vomiting should be noted. In relation to the neck he would regard anything
other than complete flexion as a worrying point for meningitis. If Mrs Learmont was fully able to flex
her neck completely when she was seen by Dr Vernon he would assume that
she did not have very far advanced meningitis at that point. What was taught, probably correctly, was
that inability to flex the neck was due to inflamed meninges. What a doctor would be looking for was
restriction of neck flexion: meningitic neck stiffness was usually strikingly
present on flexion. He personally would
be happy to ask the patient just to flex his neck. If the neck were resistant to flexion the
patient would not be enthusiastic about rotation because of the headache. Rotation of the neck might be painful if
there were an enlarged lymph node, which might be consistent with a viral
infection. The fact that Mrs Learmont
was up and about before she saw Dr Vernon did not really tell us anything. With regard to the post mortem findings, he
would not have expected to see signs of gross irritation. What mattered was what was found at the
microscopic level and enough pus was found at that level to cause death by
meningitis. It was not necessary to see
damage to the adrenal glands in severe meningococcal meningitis. The fact that Mrs Learmont had been
previously healthy made him favour meningococcal meningitis. He suspected that a figure of 60%
pneumococcal infection did not apply for someone aged 37. He would not have expected Mrs Learmont
to look well when she saw Dr Vernon, but the judgment was a subjective one
and it would be easier for a family member accustomed to seeing her to notice
that she looked unwell. In most deaths
from illness there was a fever 10 hours earlier, but there were exceptions and
he had seen patients without raised temperatures, even with lower temperatures. On the evidence which Dr Vernon had the
prudent course of action would have been to have said "this could be
meningitis".
[49] In
re-examination Dr Ellis asserted that the fact that Mrs Learmont
reported a neck problem on the phone should have very clearly rung alarm bells
about meningitis.
The primary
facts
[50] In
light of all the above evidence it is necessary that findings of the primary
facts be made before the issue of medical negligence is considered. It was submitted, I think rightly, on behalf
of the pursuers that two questions of primary fact arose, namely:
(1) What were Mrs Learmont's
signs and symptoms when she consulted Dr Vernon on 25 December 1999?
(2) What examination of Mrs Learmont
did Dr Vernon perform?
Once these questions have been answered, the question
of professional negligence will have to be addressed by a third question being
asked and answered:
(3) What examination of Mrs Learmont
would an ordinarily competent general practitioner have performed?
Mrs Learmont's
signs and symptoms
[51] I shall
deal with each of these in turn.
(i)
Mrs Learmont's general
appearance
[52] In her
note of the consultation Dr Vernon entered the words "looks well" as
describing Mrs Learmont. I cannot
accept that Mrs Learmont looked well at the time when she consulted Dr Vernon. The evidence satisfied me that Mrs Learmont
was anything but well at the material time and also that she looked unwell. Moreover, I think it would have been obvious
to anyone who saw her, even someone (such as Dr Vernon) who had never seen
her before, that she looked unwell. I
cannot begin to understand how Dr Vernon thought that Mrs Learmont
looked well. There is clear evidence
from Mrs Learmont's children and sister, which I accept, that she looked
unwell and I infer from these descriptions that it would have been obvious to
anyone, even someone who had not met her before, that she looked unwell. Dr Vernon had seen the note made by the
receptionist ("unwell most of today, difficulty moving neck and has a rash")
and had herself been told on the telephone by Mrs Learmont what her
general symptoms were. It would, on the
face of it, be surprising if someone who had remained in bed on Christmas Day,
reported the symptoms which Mrs Learmont did and requested that a doctor
come out to see her looked well. Mrs Learmont
had suffered from the previous evening from a headache, had been sick and was
feeling nauseous, had had trouble lifting her head off the pillow and had a
rash on her left arm. It was submitted
on behalf of Dr Vernon that when Mrs Learmont saw Dr Vernon she
had been up and about and it was a fair inference from this that she was a bit
better than she had been earlier on. Reliance
was placed on the comment by Scott in cross-examination "Well, I was pleased
that she was well of course" (referring to the point in time when his mother
had come out from the consultation with Dr Vernon) as something that flew
in the face of her being acutely unwell or increasingly more unwell, as averred
on record. I do not think any reliance
can be placed by Dr Vernon on that comment by Scott as it was based on
what his mother told him she had been told by Dr Vernon: in other words,
it was based on Dr Vernon's diagnosis.
[53] Dr Vernon's
initial impression at the consultation that Mrs Learmont looked well was
explained by her in the following passage of evidence in examination-in-chief:
"Well ... now you said to his
Lordship that one of the things that you went on was that when you initially
clapped eyes on Mrs Learmont you thought that she looked well? - She
didn't look like someone that the warning bells would be going. She didn't look seriously unwell.
And she was somebody that
you had never seen before. Is that
right? - Yes.
You would not know what she
normally looked like? - That's right, but I was basing my judgment on my
experience of many patients. In my
practice I go from my consulting room to my waiting room and I put a lot of
emphasis on first impressions and if someone comes in with a sore neck you can
usually tell straight away by the way they're holding their neck. They're holding it stiff.
You said that you would put
a lot on first impressions. With
respect, it sounds as if you have formed a view after a telephone, hearing a voice
on the phone and looking at her? - I didn't, but I took that into account in
the overall assessment.
Now, on this particular
occasion she was not wearing make-up. Is
that right? - I don't know. I couldn't
comment on that.
Her hair was lank? - Again I
couldn't comment on that because, as you say, I had never met her before.
Can you remember what the
patient was wearing that day? - I can't.
I cannot picture her clothing.
Can you picture her? - I can
picture her roughly.
(The witness then identified
a smiling Mrs Learmont from a photograph of three ladies shown to her.)
And was she looking like
that that day? - No, she was not looking like that. I don't know whether she had make-up on or
not. I think that she had darker
clothes on and she certainly wasn't smiling."
In cross-examination the following passage occurred:
"What was your reaction when
Mrs Learmont first came into the examination room? - I think that is the
first thing that did hit me, that she looked quite normal, and from the point
of view specifically thinking about her neck.
We can see in your notes ....
says "looks well". Was that an accurate
description of how she looked to you? - That is my way of making a differential
between someone who is obviously unwell and someone who looks reasonable, shall
we say.
So if someone is obviously
unwell what would you have written? - 'Looks unwell', but 'unwell looking' is
what I would write."
[54] The
impression which Dr Vernon formed that Mrs Learmont looked well that
day is at odds with the description of her given by all the other witnesses who
saw her that day. Even allowing for
what Dr Ellis described as the possibility "that the family and the doctor
have different standards for what constitutes an ill patient", I cannot see how
Dr Vernon could have described Mrs Learmont as looking well. Although he did not see Mrs Learmont, Dr Masterton
said he would have expected her to look particularly unwell. It was submitted for Dr Vernon that the
family's description of Mrs Learmont was of a woman who cared about her
appearance, was well-dressed, regularly wore make-up and arranged her hair and
that persons accustomed to seeing her like that, namely, at her best, would be
likely to consider her to be ill if she were pale and not wearing make-up. I do not think that is a reasonable
criticism of their evidence. The
descriptions of Mrs Learmont on Christmas Day given by Lauren, Scott and Mrs Layden
(which I have set out above and need not repeat) are such that it would have
been clear to anybody that Mrs Learmont was unwell, even to someone who
had not seen her before. Indeed, it was
accepted on behalf of Dr Vernon that these three witnesses were saying
that anyone who saw Mrs Learmont that day would have recognised that she
was unwell, but at the same time submitted that if their descriptions were
correct it was all the more extraordinary that Dr Vernon should have
written "looks unwell" and I was asked to find the family to be unreliable and
to prefer Dr Vernon's account where there was a conflict between her and
the family members. No reason was
proffered as to why I should prefer Dr Vernon's account on this point, and
I decline to do so. The descriptions
given by the family are much more in keeping with the whole general picture of
an obviously unwell woman than the description of Mrs Learmont by Dr Vernon,
"looks well". I am therefore satisfied
that, when she saw Dr Vernon, Mrs Learmont looked unwell and that
that would have been obvious to anyone who saw her then.
(ii) The neck symptoms
[55] The
averments on record are that Mrs Learmont presented at the surgery
suffering from symptoms of "neck stiffness" (p 10A-B) and that, given the
timing of her death, she would have been unable to flex her neck and would not
have had a full range of neck movement (p 12C). It is further averred (p 30A-B) that Mrs Learmont
presented to Dr Vernon with a history of neck stiffness, that she had
obvious neck stiffness and that it was such that she was unable to turn her
head. Objection was taken on behalf of Dr Vernon
to the leading of any evidence on behalf of the pursuers of difficulty in neck
flexion on the ground of lack of record and I allowed evidence of the
restriction in Mrs Learmont's neck flexion to be led subject to relevancy
and competency. The objection was
insisted in at the stage of closing submissions and I must now rule upon it. The basis of the objection was that, under
reference to the averments at p 30A-B, it was not part of the pursuers'
case that Mrs Learmont could not flex her neck, the words "unable to turn
her head" being referable only to neck rotation and not habile to cover neck
flexion (and extension). These words
could not be fairly or properly read as covering neck flexion and, given the
importance of restriction of neck flexion as a sign of meningeal irritation,
the absence of an averment that Mrs Learmont was suffering from it was
telling and strongly suggested that it was not present: had she been suffering
from it, it was more than a racing certainty that such an averment would have
been made. The response on behalf of
the pursuers was that the expression "neck stiffness" did cover restriction of
neck flexion and that, looking at the pleadings as a whole, it was quite clear
that what was being put in issue was neck stiffness impeding forward flexion. While the averment at p 30B was that Mrs Learmont's
neck stiffness prevented her turning her head, the bulk of the other averments
were about neck stiffness impeding forward flexion. There were averments additional to those
mentioned above at pages 10A-B, 12C and 30A-B. The averment at p 9C that Mrs Learmont
told Dr Vernon on the phone that she "could hardly lift her head up from
the pillow" implied a problem with neck flexion. It was averred at p 10B-C that at the
material time all ordinarily competent general practitioners were aware that
among the cardinal signs of bacterial meningitis was "neck stiffness impeding
forward flexion". There was an averment
at p 11B that an ordinarily competent medical practitioner "would have
tested the patient's neck to ascertain whether or not it could be flexed". Additionally, one had to bear in mind what
averments the pursuers could have made.
Dr Ellis had said that neck stiffness was something elicited by the
examining doctor: the patient would have noticed that the neck was stiff but
might not have noticed a particular problem with flexion as neck flexion was
not something everybody did and the examining doctor elicited it by asking the
patient to touch her chest with her chin or by tilting the patient's head
forward until a point was reached when the head stopped. According to Dr Ellis the patient
herself might have noticed just neck stiffness. He would not have expected a 17 year old boy
to say that his mother had a problem with neck flexion. A patient with a stiff neck and a headache
would not be keen to rotate her head. The
pleadings on this point went as far as they could go.
[56] Having
considered the competing submissions on this point, I have decided to repel the
objection taken on behalf of Dr Vernon to the leading of evidence about
difficulty in neck flexion. It seems to
me that the objection focused too much on the averments at p 30A-B and
failed to have regard to the other averments on this point. I am in no doubt that Dr Vernon was
given fair notice of the leading of evidence about neck flexion. It is averred in terms at p 10A-B that Mrs Learmont
would have been unable to flex her neck when she saw Dr Vernon and it is
averred in terms at p 11B that an ordinarily competent general
practitioner would have tested the patient's neck to ascertain whether or not
it could be flexed. These averments are
more than sufficient to give fair notice of the evidence which the pursuers
sought to lead. Moreover, the context
here must be borne in mind. It is neck
stiffness caused by meningeal irritation which causes the inability to flex the
neck: the patient will not know that she cannot flex the neck until she
attempts to flex it. As Dr Ellis
pointed out, it is for the examining doctor to ascertain whether the patient
can flex her neck. Inability to rotate
a stiff neck is not necessarily inconsistent with simultaneous inability to
flex it.
[57] I
therefore turn to consider the evidence about Mrs Learmont's neck symptoms. According to Lauren on Christmas morning her
mother complained of a "stiff neck, well, sore neck", in the afternoon she said
her neck was stiff and sore, she could barely move it, and on the journey to
the surgery when she was turning corners she could not move her neck, it was
that stiff she had to ask her and Scott if anything was coming from the right
or the left. In cross-examination she
made clear that her mother's neck was both sore and stiff. Scott said that on Christmas afternoon his
mother had a sore head and that when driving to the surgery she said her neck
was sore and could not really turn her head.
When he spoke on the phone to the receptionist he told her that his
mother "just couldnae move her neck this morning". When Mrs Learmont spoke on the phone to
Dr Vernon she told her that "last night I wasnae feeling at all well and I
could hardly lift my head up off the pillow and my neck's really sore and I've
come out in a rash". Mrs Layden said that when Scott spoke to
her on the phone he said that his mother had a stiff neck and when she later
saw her sister she complained of a sore neck.
According to Detective Constable Saunderson Lauren mentioned to him on
26 December that his mother had gone to the doctor with a stiff neck. Dr Vernon's evidence was that there was
a large tender lymph gland on Mrs Learmont's neck at the right side of her
jaw and movement of the neck to the right and left was particularly sore. When she asked Mrs Learmont to look up
at the ceiling and down at the floor she was able to do so. She also lifted Mrs Learmont's head up
off the examination couch so that her chin touched her chest. She thought the sore neck was explicable by
the swollen gland. The evidence of Dr Ellis
was that a stiff neck was one of the symptoms of meningococcal meningitis, that
he would have expected Mrs Learmont to have had neck stiffness at about 6 pm
on Christmas Day and that he would regard anything other than complete neck
flexion as a worrying point for meningitis.
[58] In
light of the above evidence I am satisfied that when Mrs Learmont saw Dr Vernon
on Christmas Day she had neck stiffness and would not have been able to flex
her neck fully. The statements on the
phone by Scott (that his mother "just couldnae move her neck this morning") and
Mrs Learmont ("I could hardly lift my head up off the pillow this
morning") to my mind plainly imply a problem with neck flexion. It is true, as was pointed out on behalf of Dr Vernon,
that being unable to lift your head up off the pillow would imply a problem
with neck flexion only if you were lying on your back in bed when you tried to
lift your head up off the pillow. In my
view it is clear, when the totality of the evidence on neck symptoms is looked
at, together with the findings at post mortem, that Mrs Learmont had a
painful neck (caused by meningeal irritation) which was impeding movement in
all directions - that is to say, rotation, flexion and extension. I do not accept that her neck stiffness was
restricted to difficulty with rotation due to a swollen gland. Dr Gibson did not find a swollen gland
at post mortem examination. In his
evidence-in-chief he said that if he had seen it he would have recorded it. In cross-examination he said that the glands
were among the soft tissues of the neck, to which he was not paying particular
attention, and that it was possible he missed a swollen gland. In re-examination he said that he would see
or feel a very large swollen gland under the right jaw which felt swollen to
the touch and restricted neck movement to right and left and record that. Professor Busuttil's evidence was that he
would have expected the pathologist to have found a swollen gland at post
mortem examination as he must have dissected the neck very, very closely. Dr Doyle was of the view that if Mrs Learmont
had had a swollen gland in the neck it would still have been there to be seen
at post mortem examination. I am
satisfied from Dr Gibson's evidence in re-examination that, although he
did not dissect the neck very, very closely as Professor Busuttil thought he
would have done, he would have found a very large swollen gland under the right
jaw which Dr Vernon felt swollen to the touch and he would have recorded
that finding. Such a finding is
consistent with the general views of Professor Busuttil and Dr Doyle.
(iii) The Rash
[59] There
is no doubt that Mrs Learmont had a rash on her inner left forearm. It was seen by Lauren, Scott and Mrs Layden,
mentioned by Scott and Mrs Learmont in the phone conversations, and seen
by Dr Vernon and noted by her in her note of the consultation.
[60] The
descriptions of the rash given in evidence varied. Lauren said the rash was on the inside of
her mother's left forearm and described it in the passage of evidence as "big,
some of it was wee rashes like dots - not dots, but not blotches neither .....
there were some bits were big and some bits were wee on her arm". She described the big bits as "kind of
reddish - well, not red, red, but enough to know that it was a rash" and agreed
that they could be described as pinkish.
Scott said the rash "was on her arms and legs" and described the rash on
her left arm as "just all over, kind of scattered, just like spots if you like,
red spots". He went on to say "Some of
them were in clusters but there was obviously different parts - if you know
what I mean - just there and up the arm." Although he said he saw a rash on his
mother's legs, he gave no description of it.
When he was shown in cross-examination
four photographs of a septicaemic rash in the leaflet from the
Meningitis Research Foundation (6/28 of process) he identified the rash he had
seen on his mother's arm as looking more like the rash on the top photograph
(which depicts red spots with a tumbler being pressed against it). The following passage of evidence then
occurred:
"These are red spots? - Yes,
that's kind of what it looked like - red spots, yes.
And these were over the
whole area of your mum's inner arm? - They were dotted about over the forearm
(inaudible).
Were they evenly distributed
over her forearm or were there just some here and some there? - Just some here
and some there."
Mrs Layden said that the rash on the inside of
her sister's left forearm looked like it was pinprick, it wasn't bright red, it
was a wee bit paler and it was "scattered about". Mrs Learmont in her phone conversation
with Dr Vernon described the rash on her arm as "just kind of red
blotches" and "red pimply".
[61] The
averment on behalf of Dr Vernon in answer 2 (at pages 22E to 23A) is
that the "rash was oval in shape and measured approximately one inch long by
half an inch wide", but this description was never put to her in her evidence. Her description of the rash in her note of
the consultation was "fine, non-specific rash on left forearm". In her police statement of 28 December 1999 (6/20 of process) she described the rash as "a small
red rash, 5 x 5 cm and small red dots".
In re-examination she said that she knew for sure the rash was not 5 cm,
it was smaller than that, it was probably 1.2 x 0.8 cm, she did not know
whether the police officer made a mistake, she did not pick up on the mistake
but she now disputed the dimensions given in her police statement. Her description of the rash in
evidence-in-chief emerges from the following passage:
"And if I can just go over
again what you said that you did. You
said that you first of all looked at the rash.
Now, where was this rash? - I asked the lady to sit down and show me the
rash and she pointed to the rash on her forearm, on her left forearm, between
the elbow and the wrist.
And what size was this rash?
- I would say it was just over one centimetre by just under one centimetre. Say 1.2 by 0.8.
And I think that you indicate
that it was on the inside of the left forearm? - Yes.
And what was the appearance
of the rash? - It was red in appearance and almost salmony-pink."
[62] Mrs Dawn
McQuaid, who saw Mrs Learmont dead in her bed on the morning of 26
December, described what she saw as a mottling of the skin with darker
discolouration like bruising, but was unclear where the discolouration was, and
in cross-examination accepted that she was not paying much attention to it and
that she saw it in passing (which is perfectly understandable).
[63] No rash
of any kind was observed or noted by Dr Cathcart when he examined the body
of Mrs Learmont in her bedroom within hours of her death or by Dr Gibson
at post mortem examination, but in light of all the above evidence it is clear
to me that Mrs Learmont did undoubtedly have a rash when she saw Dr Vernon. The next question to be considered is what
kind of rash it was, and, in particular, which organism caused it. This question is of importance because a
petechial or purpuric rash is caused by the meningococcal bacterium, does not
blanch on pressure being applied to it and does not fade or disappear after
death. The fact that neither Dr Cathcart
nor Dr Gibson saw a rash on Mrs Learmont's body post mortem does not
mean that she did not have one then. According
to Professor Busuttil, a petechial rash in places other than the eyes and the
lips may be missed by a pathologist in good light (more so in a less well lit
bedroom) even when a clinician has told him that a rash was present and it was
sometimes quite difficult to distinguish a bruise from lividity on external
examination. Dr Gibson himself
accepted that he could have missed a rash on an area of hypostasis.
[64] Both
Professor Busuttil and Dr Masterton were of the opinion that the infective
pathogen in Mrs Learmont's case was pneumococcus, not meningococcus. The reasons given by them for this opinion
were: (i) no petechial rash was seen post mortem by Dr Cathcart or Dr Gibson;
(ii) no Gram negative organism was identified in the histological samples
taken post mortem; (iii) there was initially a possible identification of
Gram positive bodies by Dr Doyle (although he later sought to retract such
an identification); (iv) pneumococcus was the most common infective
organism in Mrs Learmont's age group; (v) micro-abscesses seen in the
histological samples of heart and kidney tissue were more likely to have been
caused by Gram positive organisms, of which pneumococcus is one, than by Gram
negative organisms, such as meningococcus; (vi) the absence of damage to
the adrenal glands (not always present); (vii) a swollen lymph gland is a
common sign of pneumococcal infection. On
the other hand, Dr Ellis said he would have described Mrs Learmont's
rash as a petechial rash and that patients with pneumococcal meningitis usually
had a prior infection such as sinusitis, otitis media or pneumonia, or an
underlying medical condition, such as cirrhosis of the liver or diabetes: it
was unusual for someone to have
pneumococcal meningitis without any prior infection or medical disorder, and in
his unit he saw one or two, and possibly no, cases of pneumococcal meningitis
each year. The fact that Mrs Learmont
had previously been healthy made him favour meningococcal meningitis in her
case. Dr Breen said that people with
pneumococcal meningitis usually had an injury or ear infection and the organism
got entry that way.
[65] In my
opinion it is necessary, when considering whether the infection was
meningococcal or pneumococcal, to consider both the factual evidence of the
rash and the medical evidence. The main
point so far as the rash itself is concerned is whether it blanched on pressure. Having considered all the evidence on this
point, I have reached the conclusion that it did not. I accept the evidence of Lauren and Scott in
this connection. I am satisfied that it
was the fact that the rash did not disappear on the occasions when the glass or
tumbler test was done which was the cause of great worry in the Learmont
household and prompted the making of the phone call to the Out of Hours
Surgery, although Scott said he would have called the doctor even had there
been no rash. A piece of evidence which
I think is very significant is the evidence of Constable Saunderson that Lauren
had told him on 26 December that the rash was of particular concern, that they
had carried out the test on her mother's arm and that he thought they indicated
the rash had not disappeared. In
cross-examination he said that, although Lauren's statement did not mention a
glass test, he did remember being told about the glass test having been
performed. I am therefore quite
satisfied that Lauren did, shortly after the death of her mother on 26
December, mention the glass test to Constable Saunderson and indicated to him
that the rash had not disappeared on the test being done. The fact that such statements were made by
Lauren to Constable Saunderson at that time confirms the credibility and
reliability of her evidence about the rash and the glass test. I also find that there is no good reason not
to accept the evidence of Scott about the rash and the glass test. The evidence of Dr Vernon about the
rash was in my view just not acceptable.
Her description of the rash varied, as noted above. She said that when she pressed her thumb on
the rash (described in evidence as being about one centimetre by just under one
centimetre) "possibly a little bit" of redness remained after she lifted her
thumb. Dr Masterton emphasised
that for a rash to blanch it had to go pure white and if any redness remained
it could be an early purpuric lesion. Dr Thornton,
a GP from Carnoustie led on behalf of Dr Vernon, to whose evidence I refer
below, said that if some colour remained the rash could not be described as a
blanching one. Accordingly, even on the
evidence of Dr Vernon herself the rash was not a blanching one. Mrs Vernon had no underlying infection
or other medical condition, as would have been expected had the infective
organism been pneumococcal in nature. The
evidence of Dr Ellis, the consultant with the greatest clinical experience
of meningitis, supports the factual evidence that Mrs Learmont had a
petechial or purpuric rash which was a sign of meningococcal meningitis.
(iv) The headache
[66] Mrs Learmont
said to Dr Vernon on the phone that she'd had headaches and been a bit
sick. Mrs Layden said that on the
phone Scott reported to her that his mother had terrible headaches and that
when her sister came to her house she "kept complaining of a terrible headache". In her police statement Mrs Layden said
that Scott stated on the phone that his mother "had headaches". In his evidence Scott said his mother "was
feeling sick and had a sore head and that's about it". Lauren mentioned headaches in her police
statement but did not mention a headache until the second day of her
evidence.
[67] There
is no mention of a headache in Dr Vernon's note of the consultation. In examination-in-chief, referring to Mrs Learmont's
description of the headache, Dr Vernon said "she said it was throbbing, it
was generalised, these were the words that she used." When asked "She said generalised?" Dr Vernon
answered "yes". In cross-examination the following day she
said "I made a mistake yesterday because I think she would probably say 'all
over' rather than 'generalised'". She
then said that she could not remember precisely what Mrs Learmont had said. Her position was that the headache reported
to her was not being reported as a serious headache, although she accepted that
she did not ask Mrs Learmont about the severity of the headache. In re-examination she changed her position
again and said that Mrs Learmont described the headache as "all over and
throbbing".
[68] In
light of the above evidence I am satisfied that Mrs Learmont was suffering
from a significant headache at the time she saw Dr Vernon and had been, to
a greater or lesser extent, since she had become ill on 24 December. It is unfortunate that she was not asked by Dr Vernon
how severe the headache was and that no mention of the headache was made by Dr Vernon
in her note of the consultation. The
fact that Mrs Learmont mentioned to Dr Vernon on the phone that she
had had headaches and the fact that she complained to her sister of a terrible
headache are sufficient to persuade me that the headache was regarded by Mrs Learmont
as being well out of the ordinary. A
headache, of course, is a non-specific symptom and not referable solely to
meningitis, but it was relevant in the context of the entire signs and symptoms
displayed by Mrs Learmont.
(v) Nausea and Vomiting
[69] Mrs Learmont
told Dr Vernon on the phone "I've been a bit sick". Dr Vernon then asked her "So you've
been sick today", to which she replied "Yea".
Dr Vernon accepted in evidence that she understood Mrs Learmont
to have said that she had vomited and said that when Mrs Learmont came to
the surgery she told her that she was still a little bit nauseous but had not
vomited for a number of hours. That is
the evidence of Dr Vernon's knowledge of Mrs Learmont's symptoms of
nausea and vomiting. There is also
objective evidence from Lauren, Scott and Constable Saunderson about the basin
beside the bed, which supports her evidence that she had been sick. I am therefore satisfied that Mrs Learmont
had vomited before she saw Dr Vernon, that she was nauseous when she saw Dr Vernon,
and that Dr Vernon was aware of these two symptoms. While vomiting is a sign of meningeal
irritation, it is not in itself diagnostic of meningitis and Mrs Learmont
could have vomited for reasons unconnected with meningeal irritation.
(vi) Temperature and Pulse
[70] Professor
Busuttil was of the view that it was more likely than not that Mrs Learmont
would have had a raised temperature or a fever and a raised pulse at 6 pm on
25 December, whether the condition was pneumococcal or meningococcal meningitis. Dr Masterton said that he had not seen
a case of meningitis where abnormal temperature and pulse (in either direction)
were not present and that when septicaemia occurred he would expect a rise in
temperature and rapid pulse. He would
have expected Mrs Learmont's temperature to have risen at or about the
time of the onset of her symptoms late on 24 or early on 25 December. Dr Ellis said he would have expected Mrs Learmont's
temperature to be high (38+) at 6 pm
and her pulse to be 90 or greater
(normal pulse varies depending on the fitness of the patient, but is
usually around 70). On the basis of the
evidence of these three consultants I am satisfied that at about 6 pm on
25 December Mrs Learmont had a raised temperature and a raised pulse, and
I reject the evidence of Dr Vernon to the contrary.
The
examination of Mrs Learmont performed by Dr Vernon
[71] I have
set out in detail above the evidence given by Dr Vernon about the
examination of Mrs Learmont, the terms of her note of the consultation and
of her statements to the police. The
only other evidence about the examination came from the statements made by Mrs Learmont
to her children and sister after the examination, which I have set out
above.
[72] The
submission for the pursuers was that the evidence of Dr Vernon at the
proof had to be looked at with great care: in contrast to every other witness
at the proof, she was a most unsatisfactory witness. To accept her evidence I would have to
reject the evidence of Scott and Lauren, Mrs Layden and independent
witnesses such as Mrs McQuaid, Constable Saunderson, and the medical
experts Professor Busuttil and Doctors Masterton, Doyle and Ellis. There was no reasonable basis for rejecting
their evidence where it differed from that of Dr Vernon.
[73] It was
submitted on behalf of Dr Vernon that her credibility was central to the
issue of what examination she performed of Mrs Learmont, that for the
pursuers to succeed I had to reject her account of the consultation, prefer to
draw from the evidence of Mrs Learmont's children and sister an inference
about how she appeared and hold Dr Vernon to be incredible, while at the
same time explaining the note made by her of the consultation, as it was
inconceivable that she would have invented her description of Mrs Learmont's
appearance. It was inconceivable that
an experienced GP, well used to seeing ill patients, would have got things as
wrong as the pursuers maintained: the reason why she noted Mrs Learmont's
appearance as she did was because that was exactly how Mrs Learmont
appeared to her. The entry "looks well"
was significantly in her favour because GPs took account of the first
appearance of a patient. The family's
description was of a woman who cared about her appearance, was well-dressed,
regularly wore make-up and arranged her hair.
The family were accustomed to seeing her at her best and were therefore
likely to consider her to be ill if she was not wearing make-up and looked pale. The other parts of the note confirmed that Dr Vernon
had examined Mrs Learmont's rash and neck movements, found a reason for
the pain on rotation of her neck and explained the diagnosis. If the pursuers were right, Dr Vernon
had to have been badly wrong in her assessment of Mrs Learmont and of each
of her recorded findings in the note and to have lied under oath about her
suspicion of meningitis and the need to see Mrs Learmont at all, as well
as about the nature, extent and findings of her examination. It was necessary to bear in mind that these
were matters which had assumed a significance which they perhaps did not have
at the time. It was more likely that
the family's recollection was poor than that Dr Vernon was lying. This was not a case where Dr Vernon
could simply be mistaken in her recollection of events. So far as suspicion of meningitis was
concerned, Mrs Learmont mentioned the glass test to Dr Vernon, which
confirmed that Dr Vernon had meningitis in mind. The glass test was peculiar to meningitis
and Dr Vernon was testing to see if the rash blanched: coupled with the
fact that Mrs Learmont's neck movements had been tested, it was clear that
Dr Vernon did suspect meningitis. That
was why she had asked Mrs Learmont to come to see her. Dr Vernon had come to court to
vindicate her actions at considerable risk to her professional reputation. It was fanciful that she would make up a
history of how Mrs Learmont appeared at the consultation, of what she did
when she examined Mrs Learmont, of what was said by and to Mrs Learmont
and then come to court with the pre-conceived intention to lie, embellishing
her version still further. She would
have had little, if any, idea of the evidence the family would be likely to
give. Their evidence could easily have
exposed any lie she intended to tell to cover her back: for her to have
attempted to resist the claim on that basis would have been an act of complete
and utter folly. It had to be borne in mind
that she gave her evidence first, before any of the witnesses to fact, and
therefore was not in a position to tailor her evidence even had she so wished. It was accepted that I had to form my own
view of Dr Vernon, but the recording of her phone conversation with Mrs Learmont
did not leave the impression of a careless, condescending, flippant or even
tired and over-worked physician, but, rather, of a caring and conscientious GP,
keen to re-assure the patient. The
purpose of the phone call was to see if it was necessary to see the patient,
whom she did not wish to panic. No
criticism was now made of the fact that the patient had to go to see the doctor
instead of the doctor going to see the patient. She was a GP trainer and a doctor who had
continued her medical education by obtaining her MRCGP through assessment of
her performance, which was the more difficult route to such a qualification. She was an honest witness who gave a
detailed account of the consultation under lengthy, sustained and sometimes
hostile questioning on behalf of the party who called her as a witness. She had been willing to accept that not all
the evidence supported unequivocally her version of events: she was not a
stubborn and unrepentant practitioner who could not accept that she had made an
error and whose pride clouded her judgment and affected her recollection of
events. It was simply unrealistic to
expect a witness describing an event which took place years earlier and which
lasted under ten minutes to maintain an entirely consistent account over two
days of questioning. I had to consider
her evidence as a whole, but not with a view to identifying inconsistencies. Her note of the consultation was key to her
credibility. I had to be careful on
what inference I drew from the fact that something was not recorded in a
medical note: the fact that something had not been recorded in such a note did
not mean that it had not been done. The
fact that Dr Vernon was not rushed did not mean that her note should have
been fuller. That a note was not as
full as one might have hoped did not entitle me, in the absence of other
supporting evidence, to conclude that Dr Vernon had not had meningitis in
mind. I could not conclude from the
absence of the word "meningitis" in her note that it was not in her mind. The note was potentially for other doctors
to read and Dr Thornton (whose evidence I refer to below) said that it
would have indicated to another doctor that meningitis had been considered. Dr Vernon had stated in evidence on a
number of occasions that the main reason she wanted to see Mrs Learmont
was to rule out the suspicion of meningitis that the history of vomiting, sore
and stiff neck and a rash would have suggested. These were all matters referred to in the phone
calls and it was most unlikely that Dr Vernon did not have meningitis in
mind. It had been suggested to Dr Vernon
that she had not thought of meningitis until she received the phone call from
the police on 27 December. The fact
that her account to the police was not as detailed as her evidence over more
than one day did not entitle me to conclude that she did not consider
meningitis or carry out the examination which she said she did carry out. Her description in evidence of her statement
to the police suggested it was a formality.
Its purpose was not to justify her actions. At the time it was thought that asthma was
the cause of death. It was not until
three weeks later that she was told that meningitis was the cause of death. In these circumstances it was perhaps
unsurprising that she did not mention meningitis to the police or give the
police a more detailed account of her examination. There was no evidence to support the
assertion made on behalf of the pursuers that during this phone call she had
her note of the consultation in front of her, and it was going too far to infer
from the content of what she said to the police that she did. She had seen her note when she saw the
police officer the following day, 28 December.
[74] I regret
to have to say that I accept the description of Dr Vernon as a most
unsatisfactory witness, and that causes me to have serious doubts about the
credibility and reliability of her evidence of what happened at the
consultation. Having considered all the
relevant evidence, I have reached the view that she was not an entirely
credible and reliable witness in relation to events at the consultation. I have reached that view for the following
reasons.
[75] First,
I gained the clear impression from the evidence that Dr Vernon from the
outset approached her dealings with Mrs Learmont with a certain attitude,
which was that there was nothing seriously wrong with her, other than possibly
a viral infection. She told Mrs Learmont
on the phone "I don't think there is anything unduly for you to worry about",
mentioned that "you're obviously up and about now" (without knowing why she was
up and about) and told her she was "quite happy to have a wee look at you" but
"be prepared to wait, we'll see you when we can". The last statement seems to me to indicate
that she did not consider that Mrs Learmont's case was a potential medical
emergency and that she should be assessed urgently. That is clear from the fact that she told Mrs Learmont
she would probably send her a taxi to come over (to the surgery) rather than
send the doctor out "as we need to keep him for emergencies". A potential case of meningitis is a medical
emergency as the condition can prove fatal in a matter of hours.
[76] It was
further submitted for the pursuers that the first impression which Dr Vernon
formed of Mrs Learmont ("looks well"), and which I have found above to
have been a wrong impression, weighed far too heavily in her mind, influenced
her thinking right from the outset, caused her to discount what she was
actually being told by Mrs Learmont and devalue the importance of the
history in her own mind. In my opinion
there is considerable force in that submission. I accept that when Dr Vernon spoke to Mrs Learmont
on the phone she hardly gave Mrs Learmont a chance to speak and was
downplaying what Mrs Learmont was saying to her. When Mrs Learmont told Dr Vernon
that "last night I wasnae feeling at all well and could hardly lift my head up
off the pillow" and went on to describe her sore neck and rash Dr Vernon
responded "Right, but you're obviously up and about now". In my view this amounted to putting words
into the mouth of the patient and suggesting that her condition had improved
because she had got out of bed. Dr Vernon
did not ask Mrs Learmont, and did not know, why she had got out of bed. Moreover, it seemed to me obvious that when Mrs Learmont
uttered the words "Having the likes of the rash", she was about to go on to
explain what her concern about the rash was when she was interrupted and cut
off by Dr Vernon. Had Dr Vernon
allowed Mrs Learmont to continue speaking, she might well have heard her
expressing concern at the possibility that she was suffering from meningitis,
but she did not give her an opportunity to elaborate on the subject of the
rash.
[77] Secondly,
I attach significance to the length of the consultation which Mrs Learmont
had with Dr Vernon. The evidence
of Lauren about the length of the consultation was as follows:
"Now .... so presumably, did
you and Scott wait in the waiting room while your mum was in seeing the doctor?
- Yes, we did.
And can you remember how
long it was before she came out? - About two or three minutes - four minutes at
the most she would have been in. About
three minutes.
Four minutes at the most? -
If that I would say."
[78] Scott's
evidence was as follows:
"Can you remember how long
she was away in seeing the doctor before she came back? - Not long. She was in for about five minutes I think,
if that."
[79] There
was also the evidence of the times which appear in Dr Vernon's note of the
consultation. The entries read as
follows:
"17:57 25-Dec-1999 Doctor Vernon, Fiona
(TRIAGE) consultation begin (sic)
18:03 25-Dec-1999 diagnosis entered."
[80] I have
already referred above to what Dr Vernon said in evidence about these
timings, but for the sake of precision it is convenient to set out here the
exact questions and answers:
" ...... and then at 1757 the
consultation begins. Now, do you type
in the consultation? - No.
Right, do you know how that
entry is made? - No.
But you type in something? -
When she comes in?
Yes, or do you type in
something after she has gone out? - You put in the diagnosis.
But you put in the diagnosis
and that is all? - Yes.
So you do not know who put
in the 1757? - No.
Is it possible that that has
been put in by the person bringing the patient into the room? - I don't think
so, the only thing I can suggest - I was never shown actually how these things
work, possibly because we only infrequently went to this particular place, we
covered our own practice as well - and possibly it is when you would open up
the screen.
That would prompt a timing?
- I would think that is probably how it works.
And then once the patient
has gone out you enter the diagnosis? - I did with this lady.
So, that would seem to
indicate then that the duration of the consultation is 1757 to 1803. Is that right? - Well again I do not know
exactly at what point 1803 gets recorded.
But assuming that you are
right and that is when you enter the diagnosis that would tend to indicate that
the duration of the consultation was about six minutes? - I would think so.
And in fact I suppose it
could be as short as five minutes and as long as seven minutes, if we can infer
from these timings? - Possibly."
[81] On the
basis of the above evidence about the length of the consultation I conclude
that it lasted approximately five minutes.
I think it is a reasonable inference from the evidence of Dr Vernon
that the computer into which she was typing her note of the consultation
automatically entered a time at the beginning of any entry made. For present purposes it matters not whether
the time mechanism was displaying the correct time: what is important is that
the computer timed the entry for the beginning of the consultation at 1757 and
the entry for the making of the diagnosis at 1803. As seconds were not recorded, the former
entry could have been at 1757 exactly, 1757 and fifty nine seconds or at any
time between those times and the latter entry at 1803 exactly, 1803 and fifty
nine seconds or at any time between those times. Accordingly, the minimum period between the
times recorded on the computer is six minutes exactly and the maximum time is
seven minutes minus one second. Making
allowance for the fact that some time would have been taken up with Mrs Learmont
saying hello and goodbye to Dr Vernon and also for the fact that there
would have been a short time gap between Mrs Learmont leaving the
consultation room before Dr Vernon began to enter the note of the
diagnosis, and taking into account the impression (for that is all it could
have been) which Scott and Lauren had about how long the consultation lasted, I
think it is a fair inference that it lasted about five minutes. Although
Dr Doyle is a consultant neuropathologist and not a GP, he stated that he
also examined living patients when he remarked that he "would take his hat off
to anyone who could do all that in five or seven minutes" and that he could not
imagine it being done adequately in ten minutes. In my opinion there is considerable force in
that observation.
[82] Thirdly,
I attach importance to the inadequate note of the consultation made by Dr Vernon. She herself recognised that it was a poor
note in that it did not record everything which she said she had done and in
the course of her evidence apologised for it.
I was asked on her behalf to accept that she had carried out
examinations of Mrs Learmont which are not mentioned in the note, such as
checking that the rash was a blanching rash, the taking of pulse and
temperature, examining Mrs Learmont's throat, examining for neck flexion
and performing Kernig's test, as well as that she took a history from Mrs Learmont
beyond what she got from the receptionist and on the phone herself from Mrs Learmont. While bearing in mind the warning given by
Lord Reed in McConnell v Ayrshire and Arran Health Board [2001]
Rep LR 85 at p 86, para 28 that "courts should treat with caution
submissions which are made on the basis that medical records must be expected
to be a complete record of events", I think that there is in this case
substance in the submission for the pursuers that the poor note reflected a
poor examination of Mrs Learmont (in a short time). The note is not, of course, in itself
necessarily conclusive of what was done, it is not for me to prescribe what a
GP should write in the note of a consultation and the fact that the note of a
consultation was inadequate could not in itself provide a causative link to the
subsequent death of the patient. Nevertheless,
the note is an adminicle of evidence which I am entitled to take into account
along with all the other evidence in deciding what did, or did not, happen at
the consultation. I think it is
significant that there is no mention whatsoever in the note of the possibility
of meningitis or that Mrs Learmont thought that she might be suffering
from meningitis. Indeed, nothing in the
content of the note directly indicates that Dr Vernon had any suspicion of
meningitis and that she carried out the full examination which she said she did. As meningitis is a condition which can prove
rapidly fatal, I find that more than surprising. The purpose of the examination, if the
evidence of Dr Vernon is to be accepted, was to exclude the possibility of
a rapidly progressing fatal disease, but there is nothing in the note to
indicate that that was the case.
[83] Fourthly,
Dr Vernon did not (as I find), when interviewed by Constable Saunderson on
27 December, make any mention of the possibility of meningitis. I find that also to be surprising as she
knew by then that Mrs Learmont had died.
I refer to the terms of the statement which she provided. Constable Saunderson's evidence was that he
could not remember if Dr Vernon mentioned the word "meningitis" on the
phone, but he thought that if it had been mentioned he would have written it
down. He impressed me as a careful and
sensible police officer and I accept that if the word "meningitis" had been
mentioned on the phone by Dr Vernon he would have made a note of it.
[84] Fifthly,
Dr Vernon's description of Mrs Learmont's rash in evidence varied
considerably from the description of it which she gave to Constable Saunderson
on 28 December. She told Constable
Saunderson that the rash was about 5 cm x 5 cm, but her evidence was that it
was about 1.2 cm x 0.8 cm. That is not
just a small or insignificant variation in the description of the rash, but two
significantly different descriptions of it, and must give rise to doubts about
her credibility and reliability. The
two descriptions cannot both be correct.
[85] Sixthly,
in the course of her evidence she stated both that, so far as Mrs Learmont
was concerned, she felt that things were not rapidly getting worse, and if
anything she seemed a bit better, but also accepted that she told Mrs Learmont
that things would get worse before they got better. It seemed to me that in making these
statements she was contradicting herself.
I do not see how she could at the same time have been of the view that Mrs Learmont
was in the early stages of a viral infection which would get worse and also that she seemed a bit better.
[86] Seventhly,
as I have already indicated, I cannot accept her evidence that Mrs Learmont
had a good range of movement of her neck, being satisfied from the evidence of
the family that her stiff neck was a major problem for Mrs Learmont.
[87] Eighthly,
there is her equivocal evidence (referred to above) about the description which
Mrs Learmont gave of her headache.
[88] Having
regard to the generally poor impression I formed of Dr Vernon as a witness
for the above reasons, and consequently my serious doubts about her credibility
and reliability, I have reached the conclusion that the consultation which she
had with Mrs Learmont was short, cursory and superficial. In my judgment she could not have taken a
full history and carried out all the examinations of Mrs Learmont which
she said she did in the period of about five minutes which the consultation
lasted. I am satisfied that she considered to a
certain degree Mrs Learmont's neck symptoms and the rash on her left arm. Mrs Learmont was obviously concerned
about these two symptoms when she spoke to Dr Vernon on the phone and they
are both mentioned in the note of the consultation and in Dr Vernon's
police statement of 27 December. In
that police statement she said that Mrs Learmont had one tender gland on
the right of her neck and a fine, non-specific rash on her left forearm. In her police statement of 28 December she
said that she checked the movement of Mrs Learmont's neck and it appeared
fine, she had a good range of movements and wasn't in too much discomfort at
all, the only thing she found was one tender gland on the right side of her neck. She went on to say in that statement that Mrs Learmont
then showed her a small red rash about 5 cm x 5 cm on the inside of her left
forearm, that she pressed her finger on the rash and it disappeared and then
came back. On the other hand, I find that
Dr Vernon did not test Mrs Learmont's neck for forward neck flexion,
and I reject her evidence that Mrs Learmont had a good range of movement
of her neck. Mrs Learmont could
not possibly have a had a good range of movement of her neck at the time of the
consultation in light of what she said on the phone and the evidence of the
family, which I accept. Additionally,
it is now known that Mrs Learmont died from meningitis about 12 hours
after seeing Dr Vernon and the medical evidence from consultants indicates
that she could reasonably be expected to have had a stiff neck at the time of
the consultation. I am satisfied that,
had Dr Vernon tested Mrs Learmont's neck for flexion, she would have
discovered either that she could not flex her neck at all or that she had great
difficulty in doing so. I simply do not
know how Dr Vernon was able to conclude that Mrs Learmont had a good
range of movement of her neck. Further, I hold that the rash did not blanch
on pressure being applied to it. Dr Vernon's
evidence was that her thumb covered all of the redness (which would clearly
have been impossible had it measured 5 cm x 5 cm, as she told Constable
Saunderson on 28 December) and that after she lifted it possibly a little bit of redness remained,
but no spots within the general area of redness. The evidence of four doctors (Ellis,
Masterton, Hewitt and Thornton - the last two of whom are referred to below)
was to the effect that if any redness remained the rash was not a blanching one
and was a worrying sign. The submission
for the pursuers was that Dr Vernon did not think about meningitis till 27 December. If she did press her thumb on the rash, that
would tend to indicate that she was testing for a petechial rash and therefore
for meningitis, but I agree with the submission for the pursuers that if she
did entertain the possibility of meningitis she did so only very fleetingly. I hold that she either tested the rash
inadequately by not realising that the fact that possibly a little bit of
redness remained when she applied pressure meant that the rash was a
non-blanching one, or she did not test the rash at all. She admitted that she never asked Mrs Learmont
the result of the glass test which she had carried out at home. As stated above, I think that Dr Vernon
approached this consultation with a certain attitude, which caused her not to
fully consider the history of Mrs Learmont's illness and her signs and
symptoms. She went on to make a
diagnosis without considering fully the whole picture because her view was that
Mrs Learmont was suffering from a virus.
What
examination of Mrs Learmont would an ordinarily competent general
practitioner have performed?
[89] The
legal criterion for liability for medical negligence is so well known that it
hardly needs repetition, but as it is necessary that I should apply it to the
facts which I have found in this case it is convenient to cite that test as
stated by Lord President Clyde in Hunter v Hanley 1955 SC 200 at pages 204-5:
"In the realm of diagnosis
and treatment there is ample scope for genuine difference of opinion and one
man clearly is not negligent merely because his conclusion differs from that of
other medical men, nor because he has displayed less skill or knowledge than
others would have shown. The true test
for establishing negligence in diagnosis or treatment on the part of a doctor
is whether he has been proved to be guilty of such failure as no doctor of
ordinary skill would be guilty of if acting with ordinary care - Glegg,
Reparation (3rd Ed), p 509."
His Lordship went on at p 206 to formulate the test
more precisely in the following terms:
"To establish liability by a
doctor where deviation from normal practice is alleged, three facts require to
be established. First of all it must be
proved that there is a usual and normal practice; secondly, it must be proved
that the defender has not adopted that practice; and, thirdly, (and this is of
crucial importance) it must be proved that the course which the doctor adopted
is one which no professional man of ordinary skill would have taken if acting
with ordinary care. There is clearly a
heavy onus on a pursuer to establish these three facts, and without all three
his case will fail. If this is the test
then it matters nothing how far or how little he deviates from the ordinary
practice. For the extent of deviation
is not the test. The deviation must be
of a kind which satisfies the third of the requirements just stated."
[90] In Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 McNair J quoted the first of the
above two passages from Lord President Clyde and went on to state:
"I myself would prefer to
put it this way: a doctor is not guilty of negligence if he has acted in
accordance with a practice accepted as proper by a responsible body of medical
men skilled in that particular art. I
do not think there is much difference in sense. It is just a different way of expressing the
same thought. Putting it the other way
round, a doctor is not negligent, if he is acting in accordance with such a
practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a
medical man can obstinately and pig-headedly carry on with some old technique
if it has been proved to be contrary to what is really substantially the whole
of informed medical opinion."
[91] In Bolam v City and Hackney Health Authority [1998]
2 AC 232 Lord Browne-Wilkinson said at p 243C:
"But if, in a rare case, it
can be demonstrated that the professional opinion is not capable of
withstanding logical analysis, the judge is entitled to hold that the body of
opinion is not reasonable or responsible.
I emphasise that in my view
it will seldom be right for a judge to reach the conclusion that views genuinely
held by a competent medical expert are unreasonable."
[92] In this
case evidence of medical practice was led from two well qualified and
experienced general medical practitioners.
The pursuers led Dr Ninian Hewitt (56), an Edinburgh GP, a Fellow
of the Royal College of General Practitioners elected in 1996 and a GP trainer. On behalf of Dr Vernon there was led Dr Peter
Thornton (56), a GP from Carnoustie, a Fellow of the Royal College of General
Practitioners since 1995 and a GP trainer.
It is true to say that there was little substantive difference between
the evidence of these two witnesses. Dr Hewitt
did not think that Dr Vernon could have carried out the examinations
described by her in six minutes, and it was less likely that she could have
done so in four or five minutes: he considered it remarkable that a GP could
take a full history and do a full examination in five minutes. He thought it was extraordinary that there
was no mention of meningitis in the note if the reason why Dr Vernon saw Mrs Learmont
was to exclude the possibility of meningitis, and he was of the view that
negative findings should have been recorded in the note. Dr Thornton did not agree with him on
these matters. On the subject of the
practice to be adopted by a GP in a case of suspected meningitis both these
doctors stated that if a GP suspected that a patient may be suffering from
meningitis he had to take a history by asking questions of the patient and
listening to what the patient had to say.
They agreed that the GP should take the patient's pulse and temperature,
test for restriction of neck flexion, preferably by carrying out a passive neck
flexion test, and examine any rash present.
It is not necessary for me to go into the evidence of these two doctors
in any further detail, for it was conceded on behalf of Dr Vernon that if
I found as a fact that Mrs Learmont presented at the consultation with
either or both of restricted forward neck flexion and petechial rash then Dr Vernon
ought to have suspected meningitis. It
was further conceded that, had Mrs Learmont been referred to hospital by
Dr Vernon at about 6 pm on 25 December, she would have survived. As I have found that Mrs Learmont did
present at the consultation with these symptoms it follows that Dr Vernon
ought to have suspected meningitis, prescribed an antibiotic blind and referred
Mrs Learmont to the nearby Dumfries and Galloway Royal Infirmary, in which
event Mrs Learmont would have survived.
As Dr Vernon did not refer Mrs Learmont, she was
professionally negligent, the three facts set out by Lord President Clyde in Hunter v Hanley (supra) at p 206 having been established.
Damages
[93] Damages
were agreed in a joint minute (26 of
process) in the following sums: (a) to the first pursuer and Ross Michael
Learmont as Executors of Mrs Learmont, г3,000 inclusive of interest to 11
January 2005; (b) to the first pursuer as an individual, г63,500 inclusive of
interest to 11 January 2005; and (c) to the second pursuer as an individual,
г73,500 inclusive of interest to 11 January 2005, all with simple interest from
12 January 2005 on 50% thereof at 4% per annum until the date of decree.
Decision
[94] For the
reasons set out above the first plea-in-law for the pursuers will be sustained
and the pleas-in-law for the defender repelled and damages awarded in the
agreed sums set out in the joint minute (26 of process). The case will be put out By Order for an
agreed calculation of interest to be provided so that the required interlocutor
can be pronounced.
