By Dr Sophie Haroon, Medicolegal Consultant, Medical Protection
Mrs Z was 30 years old; unbeknown to her, she had congenital kidney disease. When she registered with a local GP practice she had a new patient check. Her blood pressure (BP) was found to be normal but she had significant protein in her urine. She was advised to have this repeated in a couple of weeks but never did.
At a subsequent consult with Dr A, no observation of BP and proteinuria was made. At a second consult with Dr A, Mrs Z’s BP was noted to be slightly up but the previous proteinuria went unnoticed. She saw Dr A a third time that year and a raised BP was again recorded. This time the previous proteinuria was seen and Mrs Z was advised to have this repeated. She never did and this was not picked up. Mrs Z had no further investigations at this time.
Two years later, Mrs Z saw Dr B for a contraceptive pill check. Her BP was raised and her previous proteinuria was picked up. She was again told to have repeat urinalysis but again this never materialised. She saw Dr B a further three times that year and Dr A one more time. On each occasion her BP was raised. Dr A considered 24-hour BP monitoring but this was not arranged further. Mrs Z had no further investigations at this time.
Five years after her new patient check, Mrs Z had some blood tests done. Her eGFR was found to be 76. Later that same year she became pregnant. The local hospital took over her antenatal care due to persistent raised BP and proteinuria. At one point during her antenatal care, she saw a nephrologist who ordered further blood tests, 24-hour BP monitoring, formal urine protein/creatinine testing and an ultrasound. The latter revealed a crossed fused ectopia of the kidneys, effectively forming a single kidney.
Mrs Z had her baby without event and was discharged. There was no follow up arranged nor any communication given to her or her GP about the results of the investigations they had done.
The year after Mrs Z had delivered, she had several BP checks at a new GP practice. These consistently showed borderline or raised BPs. She voiced her concerns to Dr D who noted the same and ordered some blood tests. Her eGFR was found to have fallen to 52 and was filed with no action.
When Mrs Z’s child was nearly two, she saw Dr E complaining of low mood and tiredness. Her BP was 177/118. Blood tests were ordered and the plan was to either do home BP monitoring or start an anti-hypertensive. Tests showed Mrs Z’s eGFR to have fallen very slightly again, to 50. Dr E filed these with no action.
Mrs Z continued to present to her GP practice the following year. Further renal function tests showed her creatinine to be raised at 131 and her eGFR had fallen to 42. Dr D marked these as abnormal and for repeat in three months. When this happened, her creatinine was 147 and her eGFR was 37. Mrs Z was out of the country when the results came back but Dr D marked them as abnormal and to be discussed with the patient on her return.
This did occur, four months later, when again the creatinine had risen, now at 161, and the eGFR had fallen, now at 33. Dr D marked them for repeat in three months. Mrs Z circumvented this, however, and saw Dr E. He noted variable but often raised BP over several years, Mrs Z’s lack of compliance with any suggested home BP monitoring, and deteriorating renal function plus proteinuria. A referral to nephrology was made for stage 3 chronic kidney disease (CKD).
Nephrology confirmed Mrs Z’s crossed fused ectopia of her kidneys and also found scars in the upper and mid poles. They started her on an angiotensin receptor blocker, which stabilised her eGFR at 32 and improved her BP control.
Mrs Z’s condition subsequently progressed. Her latest eGFR was 19 and she was to have a kidney transplant from her mother when she reached an eGFR of 15. She had reduced her working hours due to fatigue.
Mrs Z makes a claim
Allegations of negligence were brought against the hospital who cared for Mrs Z in her pregnancy and also her GPs over a period of eight years. In respect of the hospital it was alleged there was failure to recognise her underlying renal condition and ensure there was postnatal follow up by a nephrologist.
Regarding the GPs, it was alleged that there were several missed opportunities to note and act on Mrs Z’s proteinuria, hypertension and declining renal function, especially in someone as young as she was, and a failure to refer to nephrology earlier.
Mrs Z’s solicitors went on to plead that if she had been started on antihypertensives then the onset of her renal disease, including her predicted end stage renal failure (ESRF), could have been delayed by up to 20 years. They accepted that ESRF was inevitable but contended that the defendants’ negligence had accelerated the progression of the disease and advanced the predicted onset of it. Their expert went on to predict when Mrs Z might need a renal transplant or, if not available or not successful, when lifelong dialysis might be required.
How Medical Protection assisted
Several GPs were involved in Mrs Z’s care. Only one was a member of Medical Protection and expert GP evidence was sought. Whilst not critical of the GPs’ initial care at the start of Mrs Z’s presentation, concern was raised about subsequent care and failure to manage Mrs Z’s BP over a prolonged period of time, act more aggressively on the deteriorating renal function, and not repeat the urinalysis for protein. Additionally, a referral to nephrology was deemed mandatory from any time point after Mrs Z had had her baby. Relying on the NICE guidance for hypertension and CKD at the material time, the expert deemed there were serial failures by the GPs to reflect the practice contained therein and that this amounted to a breach of duty for them.
Turning to causation, again expert evidence was sought by Medical Protection, and by each of the other defence organisations involved, from various consultant nephrologists. The expert for Medical Protection confirmed that while Mrs Z’s underlying renal disease was not amenable to a cure, there had been the missed opportunity of slowing progression to ESRF, that she had not benefited from careful BP control, and that eventual deterioration to ESRF and renal replacement therapy (RRT) was certain.
However, the real crux of this case lay in how much the decline could have been slowed by earlier treatment, and how much ESRF could have been put off – likewise dialysis or time to transplant. Overall, the various experts were less optimistic than that of Mrs Z. Various predictions and models were proposed, all accepting that there was some difficulty inherent in the postulations due to lack of renal results from the very start of Mrs Z’s story. However, figures consistently reducing those of Mrs Z were deemed, on balance, to be more likely.
Consequently, while all parties accepted their respective breach allegations, the extent of Mrs Z’s causation argument was contested. It was also noted that Mrs Z’s pregnancy had, in itself, accelerated the decline in her renal function, and that on several occasions she had showed non-compliance with medical instruction in terms of monitoring her BP at home, having blood tests or undertaking urine sampling.
Various damages for Mrs Z’s case were considered by her solicitors. These would have covered matters like pain, suffering and loss of amenity, loss of earnings, expenses, care support, travel, future losses, future therapies and reduced life expectancy. The initial schedule of loss was significant. This did not include the solicitor’s costs.
This was a case to be settled given the breach of duty and that this led to causation. However, Mrs Z’s expert and the defendants’ experts disagreed on the extent of that causation and this in turn had an impact on the likely damages to be paid to Mrs Z. Taking this into account, a counter-offer on behalf of all defendants was made, which was substantially less than what Mrs Z’s solicitors proposed.
Arguments to reduce Mrs Z’s damages were that her lack of compliance with previous medical instructions was such that she would have done the same if investigations had been offered to her, that she had yet to prove she would have been compliant with treatment if offered to her earlier, and that ESRF had only been accelerated by approximately five years due to the delay – much less than that proposed by Mrs Z’s solicitors.
This was accepted by Mrs Z’s solicitors. The defendants’ expert evidence was overwhelmingly consistent in their conclusion. Medical Protection settled the case for a small share of a moderate sum, which was substantially less than what Mrs Z’s legal team had put forward.
Experts will turn to the guidance for the material time of the claim to substantiate their conclusions on allegations. Being compliant with guidance, such as by NICE, is important but if it is deviated from, you must be able to reasonably justify why.
Sometimes experts lack definitive guidance and need to rely on previous research, models and predictions. These can draw different conclusions. Where there is parity of evidence, more strength can be weighed on those conclusions. Different defendants can work together where their evidence is similar, to mitigate the similar losses they face. It is also important that all parties have access to good balanced experts whose knowledge is up to date.
The damages proposed by claimants can seem exorbitant. However, there is often a realistic prospect of mounting a counter-offer and efforts to do this should be attempted (even if this incurs some costs) as it can save so much more in the long run.
Contributory negligence cannot form a complete defence but is a useful tool in an argument to reduce damages. For more on this topic, see "Non-compliant patient sues doctor: whose fault is it?" by Dr Dawn McGuire.