Criminal Negligence in Professional Practice

This is the case of a lady who first presented at an Accident and Emergency Department with crampy abdominal pain and was noted to have a swelling in part of an abdominal scar to which she had surgery three or four years previous. The swelling was tender to touch. She was seen by a consultant surgeon and diagnosed as having “an incisional hernia which is stuck”. She was admitted to hospital and booked for a CT scan the following morning, which was a Saturday. The Consultant Radiologist refused to do the scan and suggested an ultrasound examination would be more appropriate and that, if really necessary, he would perform it on the Sunday. The consultant surgeon did not usually undertake ward rounds at the weekend, and did not see patients unless called in by his junior staff.

On the Saturday night, she suddenly developed very severe pain in the whole of her abdomen. The junior staff member who was called to see her administered pain relief, erected IV fluids and wrote “query for ultrasound tomorrow morning”.

At 1am on Sunday morning, she was seen again because of very severe pain with a fast pulse and decreased blood pressure. She had not passed any urine in the previous three hours. She was given further pain relief and extra intravenous fluids, and the same junior doctor wrote “to be seen by surgical team in the morning, query for ultrasound”. 

Later on Sunday morning, the surgical registrar saw her around 9am and decided she had an internal rupture of an incisional hernia but was now so ill that she required to be seen by an anaesthetist for resuscitation prior to surgery. He contacted the anaesthetist on call, who saw her at 1pm and took her to the intensive care unit for resuscitation prior to surgical intervention. An emergency laparotomy was carried out around 6pm by the consultant surgeon and confirmed the diagnosis. Unfortunately, the 46-year-old lady did not recover and died later that evening.

Gross negligence is a rare occurrence and requires a reckless disregard to the life of another person to whom a duty of care is owed. It usually involves acts of commission or, as in this case, omission, as it is most unlikely that this lady would have died had she had her surgery on the night of admission or even the following morning. The Consultant who first saw her on the Friday night would clearly know the implications of a patient with abdominal pain and the tender incisional hernia, yet did not follow his patient over the weekend or make an enquiry about her. Rather, the care was left to junior staff, who, in an attempt to follow out his instructions and obtain a CT scan, were frustrated the following day by the attitude of the Consultant Radiologist. They did not inform the Consultant Surgeon, but rather were content to wait, possibly until the following morning, for an ultrasound test.

On the Saturday evening, she suddenly became very unwell, and the junior staff, although recognising she now had peritonitis, did not call the Consultant Surgeon and decided to wait until the following day for “the team” to review her, persisting with this even after she went into shock in the early hours of the Sunday morning. Further, the Consultant Anaesthetist who had been asked to see her at 10am on the Sunday morning decided to go to his religious observance and did not see her until 1pm on his way home. While it is unlikely that this omission altered the outcome, the attitude of mind reveals a lack of care towards the patient.

The state-of-mind criteria for considering whether a defendant’s actions amount to gross negligence manslaughter includes:

1. Was there an obvious indifference to the risks of the patient’s condition?
2. Being aware of the risk, did they not take any action to mitigate or prevent it?
3. Did the doctor ignore the risk, even though he was aware of the serious potential for death?
4. Overall, was the degree of inattention or failure to have regard of the risks far beyond mere “inadvertence”?

A case in medical manslaughter therefore depends on the seriousness of a doctor’s departure from reasonable or responsible practice and the perceived “state of mind” at the time.

For fast and effective screening of all potential medical negligence cases, contact Peyton Medico Legal Services now on +44 (0)28 87724177 or email rpeyton@rpeyton.com