The duty of care of tertiary centres
EP v King’s College Hospital NHS Foundation Trust [22.05.19]
This case considered the duty of a tertiary centre when managing patients with post-surgical complications. The court held that transfer was not mandated from a district general hospital despite there being a risk of further bleeding. Kennedys represented the Trust.
The deceased, EP, attended King’s College Hospital (the Trust) for a central pancreatectomy and pancreaticogastrostomy (a rare procedure) on 10 December 2013. Having made a good recovery, EP was discharged home on 17 December. On 11 January 2014, she experienced an episode of haematemesis and was taken by ambulance to the William Harvey Hospital (WHH) - a district general hospital - where she was treated endoscopically for an ulcer at the site of the anastomosis created during her recent surgery. Haemostasis was achieved and EP was stabilised following advice from the Trust.
The teams at WHH and the Trust remained in constant communication throughout EP’s admission. The Trust requested investigations, which showed no bleeding or aneurysm. However there remained a risk of further re-bleed. Management was conservative, with a working diagnosis of anastomotic ulcer, and EP continued to improve.
On 20 January 2014, EP suffered a further internal bleed. She was taken to theatre for an emergency laparotomy with the treating surgeon from the Trust in attendance 90 minutes into surgery, having driven immediately to WHH upon being notified of the developments. Vascular control could not be obtained despite best efforts and EP sadly passed away from a second cardiac arrest during surgery.
EP’s husband, who alleged the Trust should have requested EP was transferred to King’s as soon as she was clinically stable following the first episode of bleeding, pursued the claim. It was alleged that had EP been at the Trust, she would have survived laparotomy (which was agreed, would have been required in any event) as specialist hepatopancreaticobiliary surgeons would have been able to control the bleeding. The claimant did not criticise the treatment provided by WHH.
The claim was dismissed with judgment for the defendant Trust on both breach of duty and causation.
The court held that conservative management as advised by the Trust was justified and there was no clinical indication for transfer. No potential cause of bleeding was excluded and reasonable diagnostic testing advised by the Trust (as subsequently performed by WHH), did not indicate an alternative diagnosis. The Trust offered to transfer EP if to do so became clinically indicated, and the decision not to transfer fell well within the ambit of reasonable practice.
In line with Bolitho the court had to consider what the treating surgeons at King’s would have done had they been treating the re-bleed on 20 January 2014. It was found that they would have done the same. The claimant’s suggestion that WHH surgeons contributed to the ‘torrential bleeding’ at laparotomy was not accepted by the court, and on the balance of probabilities, the outcome would have been the same under any surgeon at any hospital.
We are pleased the court has recognised the reality of the situation and purpose of tertiary centres. District general hospitals are fully equipped to deal with certain post-operative complications and it would be practically impossible for all patients facing post-operative complications to be transferred to tertiary centres. Not only does transfer carry its own risk to the patient, it would also be a further pressure on NHS resources. This case shows there are other reasonable ways of managing patients when faced with post-operative complications, provided good lines of communication and appropriate diagnostic testing is in place.