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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Wilson v HM Senior Coroner for Birmingham And Solihull [2015] EWHC 2561 (Admin) (08 September 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/2561.html Cite as: [2015] EWHC 2561 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
MR JUSTICE HOLROYDE
____________________
Ian Clarke Wilson |
Claimant |
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- and - |
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HM Senior Coroner for Birmingham and Solihull |
Defendant |
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(1) Peter Brooks (2) Alan Tringham (3) Alan Lucas (4) University Hospitals Birmingham NHS Foundation Trust |
Interested Parties |
____________________
The Defendants and Interested Parties were neither present nor represented
Hearing dates: 22 July 2015
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Crown Copyright ©
Lord Justice Burnett :
"An historic failure to accurately record post-operative data for all patients resulted in a missed opportunity to identify potential problems at an earlier stage which may have resulted in [the deceased's] operation being dealt with by a different surgeon."
i) It was unfair to rely upon the evidence and reach the conclusion because the claimant was not given a meaningful opportunity to challenge it, in particular by exploring the underlying data which were said to support it;
ii) The coroner failed properly to explore the evidence relating to the conclusion;
iii) The conclusion of the coroner in this regard was irrational.
Background Facts
"The deceased underwent extensive open heart surgery on the 2nd September 2011. His surgery was more extensive than was necessary. Given the extent of his underlying heart condition he did not require 6 coronary artery bypass grafts. As a result of this additional element to his operation he had a prolonged operation and bypass time which, on balance of probabilities, resulted in additional damage to his heart. This contributed to further heart irritability, arrhythmias and cardiac arrest which occurred immediately after surgery. That episode of cardiac arrest caused a brain injury, which was further exacerbated by a series of cardiac arrests on arrival to the ITU which ultimately led to his death. An historic failure to accurately record post-operative data for all patients resulted in a missed opportunity to identify potential problems at an earlier stage which may have resulted in Mr Brookes operation being dealt with by a different surgeon"
Mr Tringham's operation was on 1 June 2012. He died on 6 June 2012. The narrative verdict was:
"The deceased underwent extensive open heart surgery on the 1st June 2012. His surgery was more extensive than was necessary. Given the extent of his underlying heart condition, he did not require the atrial fibrillation ablation procedure. As a result of this additional element to his operation he had a prolonged operation and bypass time. This coupled with a long cardioplegia time of 62 minutes on balance of probabilities, resulted in additional damage to his heart. This contributed to further heart failure postoperatively leading to multi organ failure and his death. An historic failure to accurately record post-operative data for all patients resulted in a missed opportunity to identify potential problems at an earlier stage which may have resulted in Mr Tringham's operation being dealt with by a different surgeon."
Mr Lucas's operation was on 26 April 2012. He died nine weeks later on 29 June. The narrative verdict in his case was:
"The deceased underwent extensive open heart surgery on the 26 April 2012. His surgery was more extensive than was necessary. Given the extent of his underlying heart condition he did not require the tricuspid valve repair atrial fibrillation ablation and only 2 of the 3 coronary artery bypass grafts. As a result of these additional elements to his operation he had a prolonged operation and bypass time. This coupled with a long cardioplegia time of 77 minutes on balance of probabilities, resulted in additional damage to his heart. This contributed to further heart failure postoperatively leading to multi organ failure and his death. An historic failure to accurately record post-operative data for all patients resulted in a missed opportunity to identify potential problems at an earlier stage which may have resulted in Mr Lucas's operation being dealt with by a different surgeon. "
The Inquests
"33. More recently, subsequent to the publication of more detailed data by the SCTS, concerns were raised that Mr Wilson may have provided inaccurate information to the database about certain aspects of the preoperative condition of some of his patients, specifically whether those patients were receiving intravenous nitrates, indicating unstable angina, and/or suffering from pulmonary hypertension.
34. Investigations into these concerns have demonstrated significant over reporting by Mr Wilson of both of these conditions. This has had the effect of raising the predicted rate of death, for Mr Wilson's patients over the last 3 years. Please see chart exhibited hereto and referred to as "DR 1". This consequently makes Mr Wilson's actual mortality rate look artificially low as it is compared to the inflated calculated risk. As the Trust does not have access to national data we are unable to calculate whether Mr Wilson's mortality rates would have triggered an alert from the SCTS, which would have led to an earlier intervention. We have, however, recalculated the Trust's internal monitoring process, run by Professor Pagano, and it is clear that Mr Wilson's mortality would have triggered an internal alert in 2011 which would have led to an intervention at that stage involving at least a restriction in practice."
It is to these matters that the coroner was referring in the impugned sentence. The coroner's interest in this issue was to explore whether Mr Wilson would have carried out the operations on the three deceased patients the subject of the inquests had the internal alert been triggered as suggested by Dr Rosser.
"It's quite a difficult question to answer precisely, because it's very difficult for me to take my mind back to where it would have been back in 2010 with everything I now know. I think it is fair to say that at the very least it would have triggered the same review process that was instigated and I described earlier that led to Mr Wilson's suspension and dismissal. I think this data is more of a flag than actually the flag that we got in 2012. I think it is probably reasonable to say that there's a high likelihood so on the balance of probability I think we would have taken more serious action at that stage. I think the upshot of it being either we would have ended up with the same outcome i.e. Mr Wilson continued to work at [the hospital] or at the very least we would have seen significant alterations to his practice We would have stopped stopped these prolonged periods of cardioplegia at a minimum."
The coroner asked whether had a flag gone up in 2010 Mr Wilson would not have performed these operations. Dr Rosser agreed. He referred to the mis-recording of by-pass and other data going back to 2003 (something discovered in 2012 following the deaths of the 15 patients).
"the process of mis-recording of bypass and (inaudible) which were of course the key data in the disciplinary process, on the basis of the mis-recording going back to 2003, I don't see any reason why the outcome of those processes and the chain of events that I've described would be any different. So I think that a flag in 2010 would have most likely have ended, as the later flag did, in Mr Wilson's dismissal."
"Concerns were raised about two of the seventeen data points One is a surrogate for unstable angina, the other is pulmonary artery hypertension. They were brought to me after one of the other cardiac surgeons looked at the new data released by the [SCTS's] website. [He] noted that Mr Wilson's average incidence of unstable angina and pulmonary hypertension were significantly higher than the national average. The message that relayed through Professor Bigano [said] they couldn't understand any legitimate explanation for that.
So I asked our informatics team again to look at the unstable angina issue. We could do that relatively quickly because all the prescribing is electronic. So that was the easiest way of seeing if there was any underlying concern behind this data anomaly. Two different analysts have to answer this question independently. They discovered 81 patients had been labelled by Mr Wilson on the PATS database receiving one of those two drugs, and therefore having unstable angina, when in fact only four of those patients had any valid prescriptions on the system that would appropriately have triggered that marker. Just for clarity, it is against Trust policy and would be an issue of gross misconduct for a nurse to give a drug on paper prescriptions. So it is highly unlikely if they were not prescribed on the only legal system for prescribing and giving drugs in the organisation.
The pulmonary hypertension data is not held electronically. So that was a more complex and slower process. We arranged for a cardiology research fellow who had no knowledge of the underlying process or why we needed this information to go through the notes and identify the patients who did have pulmonary hypertension, didn't have pulmonary hypertension or those patients [whose] pulmonary blood pressure had never been measured post-operatively. I believe it was sixteen who did actually have a measurement over 60 which is the EuroSCORE definition.
The other thing that comes out from that data is that it is 78 patients. I do have that data here. Of the 78 patients labelled as having pulmonary hypertension, 61 of them were entered on the database as exactly 65."
"He's explained fully why he says the flag would have gone up. You're perfectly entitled to suggest why it might not have gone up, but what we're not going to be doing in this inquest is analysing all of those cases and all of that data, because that would not be an appropriate way forward, in my view. So you can challenge him generally on those figures."
"Coroner: Mr Wilson has been completely open throughout all his evidence about the inaccuracies of recordings. Does he have a view in relation to this? Does he accept that they are right or wrong, or not in a position to say so?
Counsel: He cannot do so because he's not been shown it.
Coroner: Okay. I'm just asking. You might want to turn round. He's got his hand up. Do you want to speak to him? Thank you.
Counsel: It's self-evident he's not in a position to deal with it.
Coroner: Okay.
Counsel: He has a view, but it's self-evident he's not in a position to deal with the substance of it. Of course, had it been the intention to lead this evidence then, or my learned friend, the expectation this evidence was going to be led, then I would have expected at least the broad proposition to be put to Mr Wilson by somebody. Anyway, I'll move on.
Coroner: Well, it was in the statement."
"There are two ways you can deal with this. One, you do what I may have to ask you to do, which is to give me an adequate period of time to address it. Alternatively, you take the view that this is an issue that is best addressed by the General Medical Council, and you know that Dr Rosser has referred this issue to the General Medical Council. I'm not suggesting you dismiss it, but whatever you do with it, you have to deal with it fairly for the family and fairly for Mr Wilson. That's all I'm suggesting."
Counsel for all the other interested parties supported the coroner's stated approach.
"We have some limited information from a separate source, but via Dr Rosser. From that, it appears that the Trust looked at 78 cases. Mr Wilson has not seen the notes for any of those cases."
Mr Garnham has explained that that was a reference to an exhibit to a statement from Dr Rosser in the GMC proceedings which contained the results of the analysis of the data, albeit not the underlying medical notes. We have not seen it but it seems to be the "data" Dr Rosser himself suggested he had with him at the inquests. There was no authority from the GMC to disclose that exhibit into the inquest proceedings. It was, however, a document which came from Dr Rosser (as had Dr Sims' report which was produced into the proceedings) emanating from the Trust's investigation. The GMC were not asked by Mr Wilson's team to authorise the use in the inquest of any material which had come to him through them. Since it was the Trust's document and Dr Rosser indicated he had it with him, the Trust might have agreed to its being introduced in evidence. Dr Rosser's reference to it would suggest he was not concerned. If it was felt by Mr Wilson's team that its use in that way would place him in difficulty with the GMC, as to which I express no view, the coroner could have been invited to use her powers to compel its production: see section 32 and schedule 5 of the Coroners and Justice Act 2009. Be that as it may, Mr Wilson, as was accepted by his counsel at the inquest, had sufficient insight into the exercise that had been undertaken to produce the analyses in question for it to be suggested that he might give evidence on the topic.
"But we went over this so much yesterday and my understanding, which I think everyone else understands, is it doesn't apply to these three patients. The point is that accurate recording of the data would have flagged a trigger on other patients and mortality which would have put a chain of dominoes that would have fallen. That was Dr Rosser's evidence."
"It should be understood that Mr Wilson does not accept the validity of the review. It is fundamentally unsound. The reasons for this can be set out in submissions or explored in evidence with Dr Rosser. Whilst Mr Wilson could be recalled to confirm that he does not accept the validity of the review it is suggested that this is probably not necessary."
Counsel submitted that it was unfair to expect Mr Wilson to deal with this in the absence of disclosure of all the underlying data; and that even were it to be disclosed it would not be possible to deal with it in the inquest. He submitted that the GMC was better suited to deal with the issue.
Submissions
Discussion and Conclusions
"Once again it should not be forgotten that an inquest is a fact finding exercise and not a method of apportioning guilt. The procedure and rules of evidence which are suitable for one are unsuitable for the other. In an inquest it should not be forgotten that there are no parties, there is no indictment, there is no prosecution, there is no defence, there is no trial, simply an attempt to establish facts. It is an inquisitorial process, a process of investigation quite unlike a trial where the prosecutor accuses and the accused defends, the judge holding the balance or the ring, whichever metaphor one chooses to use."
"It is elementary common fairness that neither parties to litigation, their counsel, nor judges, should make serious imputations or findings in any litigation when the persons against whom such imputations or findings are made have not been given a proper opportunity of dealing with the imputations and defending themselves."
Mr Justice Holroyde