Case Background

The Claimant in this action sought damages from the Defendant for the wrongful death of her husband, Mr John Davies, for the events which occurred during his time in hospital in early January 2010. Mr Davies attended hospital in the early morning of the 4th January 2010 having felt unwell on the drive to work. Upon admission to Accident & Emergency he complained of chest pain and was sweating. An ECG was performed which showed Mr Davies was in ventricular tachycarida with a heart rate of 235bpm.

Mr Davies was 57 years old when he died and had a number of risk factors for cardiac illness. His father had died of a myocardial infarction; he had been morbidly obese since at least 1998; he weighed over 20 stone at the time of death; his body mass index was 48.2kg/㎡; he was a persistent smoker; he had previously had an acute myocardial infarction; and in 2001 he developed atrial fibrillation.

Upon admission Mr Davies was reviewed by Dr Khan (a specialist registrar in A&E). Dr Khan noted the ventricular tachycardia and at this time Mr Davies was alert and awake to the extent that he was able to give a full history and accurate description of his symptoms. In light of the chest pain and abnormal cardiac rhythm, Dr Khan made the decision to treat by way of synchronised cardioversion. Dr Khan sought assistance from an anaesthetist, Dr Fanning, who considered Mr Davies to be a high risk  of anaesthesia because of his body mass index, large neck (which rendered intubation difficult), large face and goatee beard (which impedes a mask to the face).

During the treatment in A&E Dr Fanning was called away to a different patient with an impending upper airway obstruction (considered to be an anaesthetic emergency). At this time Dr Khan informed Dr Fanning that in view of Mr Davies’ condition he would carry out cardioversion under sedation. The first cardioversion of 50 joules was delivered but was not effective; a second cardioversion of 100 joules was administered but was also in effective. At this stage, Dr Khan sought the assistance of Dr McClement (the on call medical registrar) who arrived approximately as the third cardioversion at 100 joules was being delivered. Dr McClement sought advice from Dr Reid (the on call consultant cardiologist) who advised that magnesium should be administered. As a result of an error 8mg of magnesium was administered which was four times the appropriate dose. Mr Davies immediately complained of a burning sensation and went into cardiac arrest. Subsequent efforts were made to resuscitate Mr Davies, including the use of two defibrillators simultaneously, but none were successful. Mr Davies death was confirmed at 10.36 am.

The judge, Mr Justice Kenneth Parker, was asked to determine whether Mr Davies’ condition was rapidly deteriorating to an extent which necessitated the decision to carryout cardioversion. The judge rejected the Claimant’s assertion that the condition upon arrival in A&E did not necessitate cardioversion. In rejecting this, Kenneth Parker J went further and concluded that the cardioversion, as carried out by the Defendant, did not fall below the level expected of a reasonable practitioner. In reaching this conclusion the judge accepted the Defendants’ argument that the serious deterioration in Mr Davies’ condition was the result of the ventricular tachycardia and that notwithstanding the magnesium dose Mr Davies would not have been successfully resuscitated.

Contributor Comments

This case provides an interesting twist on a fairly common scenario which was, unfortunately, for the purpose of academic understanding, not pursued by the Claimant: namely, acceleration of death.

The facts of the case are not complex in that Mr Davies had a number of risk factors for cardiac arrest and the Defendants followed established guidelines for cardioversion. The difference of opinion between the expert cardiologists- Dr Cooke for the Claimant and Prof. Channer for the Defendant- while noteworthy is not unexpected and provides little guidance for future cases. Ultimately, the court was persuaded by Prof. Channer’s opinion that Mr Davies’ history, combined with his physical state when admitted to A&E, meant that cardioversion was unlikely to have been successful and his cardiac arrest, and subsequent death, could not be prevented. While the reader’s eye may be drawn to the admitted negligent overdose of magnesium this does not, in the sense of pure causation, play any significant role as the factual matrix already had all the component parts before the dose was administered.

What is interesting for future cases is the question of acceleration under the Fatal Accidents Act 1978. It is uncontroversial that under section 1(1) of the FAA a death must have been caused by the breach and that, in normal circumstances, acceleration is does not satisfy causation. However, comments to the contrary in Brown v Hamid [2013] EWHC 4067 (QB) appear to question this principle. In Brown the Claimant argued that the Defendant was negligent in failing to prescribe Warfarin. The Claimant ultimately died due to the effects of his pulmonary hypertension and the Defendant argued that the failure to prescribe Warfarin only had the effect of accelerating the Claimant’s death. Jeremy Baker J found for the Claimant stating that, on the evidence, the failure had accelerated the onset of more severe symptoms. While this may be true on one level, at the fundamental level the symptoms are only a manifestation of the underlying condition which ultimately caused the death. It is a fact of life, and litigation, that death is only ever accelerated which leads to the question: ‘to what extent must acceleration take place for causation to be satisfied?’ This question will be answered by the author in the up-coming article: “She should have died hereafter? When is death caused by breach of duty?

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