Wednesday, February 21, 2018

Dr Bawa-Garba case: We only hope this was not a case of ethnic discrimination


Dr Hadiza Bawa-Garba, a trainee pediatrician in the NHS-UK, was convicted of manslaughter by being grossly negligent resulting in the death of Jack, aged 6 years, from sepsis in 2011 by the High Court. The jury returned the verdict 10:2 and she was sentenced to two years in prison, suspended for two years.

Dr Bawa-Garba was held responsible for a series of errors.

·     A wrong working diagnosis: Failing to recognize the early features of sepsis in the child and as such appropriate antibiotic treatment was delayed.
·     Delay in getting and reading the chest x-ray
·     Failing to recognize the implications of seriously deranged blood gas results and failing to fully communicate the implications to her consultant.
·     Mistaking normalizing pH after a fluid bolus for hypovolemic rather than septic shock
·     Failing to prevent enalapril being given, which she did not prescribe 
·     DNR mix up

Dr Bawa-Garba did not write about the system failures of that day in her e-process log up. Instead she was honest and wrote her feelings in the e-process log which was later used against her as evidence.

While taking into consideration the many system failures, the Medical Practitioners Tribunal Service (MPTS) concluded that Dr Bawa-Garba had indeed erred but was “remediable” clinical failings, serious as they were, had been remedied, leaving a low risk of future harm” (High Court, para. 18).

Taking note of her exemplary record (before and after the death of Jack), the testimonies of her seniors supporting her as an excellent doctor, the Tribunal held that “suspending her medical license for a year, until the end of her suspended sentence, was reasonable” and that striking her name off from the medical register was “disproportionate” punishment.

However, the GMC went over and above the conclusion of its own Tribunal and successfully appealed in the High Court for “erasure from the medical register”, so that she could no longer practice medicine in the UK, ostensibly as the only way to protect public confidence in the medical profession. Observing "It necessarily follows that her failings on that day were 'truly exceptionally bad'." That reality "was not properly reflected or respected" in the tribunal's decision”, in January this year, the High Court of Justice directed that “the tribunal’s decision to impose a sanction of 12 months’ suspension be quashed and substituted with a sanction of erasure” as the Tribunal had undermined the verdict of the jury.

The counsel on behalf of the GMC: “… your performance on 18 February 2011 was so poor that, regrettably, regardless of the remediation that you have undertaken, there remains a risk that there would be a further collapse of standards in the future with an inevitable risk to patient safety. He acknowledged, however, that you had done all you could to remediate the specific failings identified. He further submitted that, given the fact that you have been convicted of manslaughter and received a custodial sentence, a finding of impairment is also required in the public interest.”

Was this a case of medical negligence or gross medical negligence? Where was the “criminal intent (mens rea)”? Was it a case of obvious careless act or res ipsa loquitur?  

Enalapril was given by the mother and the allegation was that Dr Bawa-Garba did not tell the family to not give any drug outside the hospital practice. This is the law, which presumes that a patient admitted in a hospital is under the care of that hospital and no medicine outside of hospital practice should be given.

When asked why he did not see Jack, Dr O'Riordan, her senior said that Dr Bawa-Garba had not asked him to; she had not impressed upon him Jack's clinical urgency. Was the onus not on the consultant to review the patient himself and detect the sepsis?


An open letter from the British Association of Physicians of Indian Origin (BAPIO) in January has accused the GMC of treating black and minority ethnic doctors ‘differently and harshly’.

In this case, the accused, a Black, Nigerian doctor practicing medicine in the UK…the victim, a 6-year-old white English boy who died a preventable death…

Would the verdict have been different if Dr Bawa-Garba had been a white doctor? Would the GMC have pursued the matter so vigorously, had she been a white doctor?

“In 2004, a consultant pediatrician who failed to diagnose sores and scars on the severely abused Victoria ClimbiĆ©'s 8-year-old body as intentional injuries had charges of serious professional misconduct against her dropped by the GMC. She also failed to alert social services to signs of abuse led to the child's return to the abusers who killed her. (BMJ. 2004 Sep 18;329(7467):643). The girl died in February 2002 eight months later after suffering 128 injuries at the couple's hands. Dr Ruby Schwartz, a white female pediatrician, wrongly concluded that bruises on the eight-year-old girl caused by torture were the result of scratching because of scabies (http://www.telegraph.co.uk/news/uknews/1471297/Doctor-in-Climbie-tragedy-escapes-censure-by-GMC.html).

Her diagnosis of scabies was decisive in discouraging police and social workers from further investigating the possibility of child abuse. Dr Schwartz had thought that some lesions were the result of scratching caused by scabies and attributed older scars to insect bites or playtime incidents. The Medical Defence Union, which represented Dr Schwartz, said the decision to drop the charges followed an expert report commissioned by the GMC.” (BMJ. 2004 Sep 18;329(7467):643).

The official inquiry report into the eight-year-old's death highlighted the failure of key social welfare agencies … “as Lord Laming shone a light on a "gross failure" of the social services system, he said Victoria's killers were not the only ones responsible. He said he was determined the horror of the child's "lamentable" treatment by those in authority should become a "beacon pointing the way to securing the safety and well-being of all children in our society” (http://www.independent.co.uk/news/uk/crime/how-a-happy-little-girl-was-turned-into-a-broken-wreck-130297.html)



Dr KK Aggarwal


Padma Shri Awardee
Vice President CMAAO
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of India
Immediate Past National President IMA


Two judgements that have changed the practice of medicine in UK will have repercussions in Asian countries too

Dr KK Aggarwal
Recipient of Padma Shri
Vice President CMAAO

The practice of medicine has evolved from ‘paternalism’ to ‘patient-centered care’ typified by shared decision making.

Two recent judgements, the Montgomery case and Dr Bawa-Garba case, both in the UK, reflect this changing trend in the doctor-patient relationship. These cases, which have become landmark cases, will shape the practice of medicine in UK, but their repercussions will be felt in Asian countries too including India.

Montgomery v Lanarkshire Health Board 2015 

Nadine Montgomery, a molecular biologist at Glasgow University, gave birth to a baby boy in October 1999 at Lanarkshire. Hers was a high risk pregnancy that required intensive monitoring owing to the fact that she was small statured and had insulin dependent diabetes mellitus. A baby born to a mother with diabetes is likely to be large for gestational age. Shoulder dystocia is a major concern in such cases as it increases dangers not only to the mother, but also to the baby.

Despite her concern about the size of the baby, she was not told about the risks of her experiencing mechanical problems during labour, particularly about the risk of shoulder dystocia or that an elective caesarean section was a possible alternative to vaginal delivery.

It took about 12 minutes for the baby to be delivered from the time the baby’s head appeared. As a result of complications during the delivery, her baby was born with severe disabilities. After his birth, he was diagnosed as suffering from cerebral palsy due to hypoxic damage to the brain due to umbilical cord occlusion. All four of his limbs were affected by the cerebral palsy. He also suffered a brachial plexus injury resulting in Erb’s palsy.

She claimed damages on behalf of her son for the injuries which he sustained alleging negligence on the part of her obstetrician and gynaecologist responsible for her care during her pregnancy and labour, who also delivered the baby.

In its final judgement, the UK Supreme Court said, “An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.”

On the issue of disclosure of risks, the Court ruled that “there can be no doubt that it was incumbent on Dr McLellan to advise Mrs Montgomery of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section. The risk of shoulder dystocia was substantial around 9-10%. Applying the approach which we have described, the exercise of reasonable care undoubtedly required that it should be disclosed. Shoulder dystocia is itself a major obstetric emergency, requiring procedures which may be traumatic for the mother, and involving significant risks to her health.”

It was argued on behalf of the doctor that her decision to withhold information about the risk of shoulder dystocia from her patients was because they would otherwise request caesarean sections. And the risk of serious injury in this case was small; 0.2% risk of a brachial plexus injury and less than 0.1% risk of cord occlusion.

But, the Supreme Court ruled that Mrs Montgomery should have been informed of the risk of shoulder dystocia and given the option of a caesarean section The question to be addressed, according to the Supreme Court, was Mrs Montgomery’s likely reaction if told of the risk of shoulder dystocia.

And, it was the unequivocal view that Mrs Montgomery would have elected to have a caesarean section if she had been told of the risk of shoulder dystocia. Mrs Montgomery was awarded £5.25 million in damages.

The case of Montgomery v Lanarkshire Health Board from Scotland in 2015 was a landmark judgement of the UK Supreme Court on informed consent reflecting the changing nature of the doctor- patient relationship. This judgement negated paternalism, even though well-intentioned, and made the patient an active partner in decision making regarding treatment. Subsequent to this judgement, in a marked change from the past practice, Bolam test will not be applicable to the issue of consent or provision of information to the patient in any case of alleged negligence in UK. Although the complainant must still prove causation, that the injury was a direct result of breach of duty.

Bolam test has been used to assess the standard of care when deciding cases of medical negligence for the past several decades following the judgement in Bolam v Friern Hospital Management Committee in 1957. It is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising' that art (a health care professional), is not guilty of negligence if he has 'acted in accordance with a practice accepted as proper by a responsible body of medical man skilled in the particular act”.

In Bolam test, the adequacy of information disclosed to the patient for a valid consent must be in accordance with the practice accepted at that time as considered proper by a responsible body of medical opinion. Bolam v Friern Hospital Management Committee upheld the doctors right to withhold information about the dangers or risks, if he believes that the particular treatment is the only hope for a cure for the patient.

In the Montgomery case, the Supreme Court ruled that the doctor has a duty to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments”.

Material risk is defined as a risk which a reasonable person would consider significant or a risk which a doctor knows (or should reasonably know) that the patient would consider it to be significant.

This judgement also has implications for the therapeutic privilege exercised by the doctor, where the doctor is privileged to use his/her judgement to decide if the patient would be hurt by the disclosure and if so, to then withhold the information.

On the duty of doctors for disclosure of information in order to get consent for the treatmentthe Supreme Court in Montgomery v Lanarkshire Health Board ruled that the therapeutic exception is not intended to enable doctors to prevent their patients from taking an informed decision. Rather, it is the doctors responsibility to explain to her patient why she considers that one of the available treatment options is medically preferable to the others, having taken care to ensure that her patient is aware of the considerations for and against each of them.

Dr Bawa Garba v GMC

Another recent judgement in the case of Dr Hadiza Bawa-Garba, which convicted her of manslaughter by gross negligence and gave a two-year suspended sentence for mistakes which led to the death of a six-year-old boy with Down’s syndrome. Her name was erased from the medical register and she was debarred from practicing medicine for life for system failures on an appeal from the GMC, who did this to protect public trust.

Apparently the time has come to practice totally defensive practice.  Always write on case sheets about system deficiencies.

Were the mistakes in famous Dr Bawa Garba Case real enough to be called as manslaughter? Here is a rundown of the mistakes alleged to have been made by her in handling this case.

 Wrong working diagnosis: Missing diagnosis of sepsis

At 10:30 am, Dr Bawa-Garba assessed Jack Adcock, a 6-year old boy with Down syndrome who was referred by the general practitioner (GP) for nausea, vomiting, and diarrhea and low BP. It is not wrong to treat on the lines of hypovolemia.

She made a presumptive diagnosis of fluid depletion from gastroenteritis and administered an intravenous fluid bolus immediately and started him on maintenance fluids. She requested a chest radiograph; sent off bloods for blood count, renal function, and inflammatory markers; and drew blood gases, which showed that Jack was acidotic with a pH of 7 and a lactate
of 11.

The metabolic profile confirmed her working diagnosis of shock from gastroenteritis; but, judging from the tests she ordered, pneumonia was in her differential. After the initial fluid bolus, Jack seemed to be trending in the right direction, metabolically. The repeat blood gas showed he was less acidotic, with a pH of 7.24, heading towards a normal pH of 7.4.

Most of us would do the same.

Delay in getting and reading chest x-ray

Fact: At 3 pm, she looked at the chest x-ray, which showed Jack had pneumonia. She prescribed antibiotics, which were given at 4 pm. The radiograph had been exposed at 12:30 pm.

Radiographs are not routinely interpreted by radiologists; there aren't enough radiologists in the NHS.

In most busy hospitals this would be a routine.

Delay in starting antibiotic

Argument: Had Jack received antibiotics within 30 minutes, rather than 6 hours, his chances of survival would have increased dramatically.

Fact: Antibiotic was given the time pneumonia was confirmed.

Won’t starting antibiotics in every case presenting in such situation may amount to misusing the antibiotics?

Also missing sepsis cannot be called manslaughter; at the most it can be an error.

Not calling her senior

Fact: At 4:30 pm, she met Dr O'Riordan, her boss, in the hospital corridor. She showed him Jack's blood gas results and explained her plan of action. Her boss did not see Jack.

When asked why he did not see Jack, Dr O'Riordan said that Dr Bawa-Garba had not asked him to; she had not impressed upon him Jack's clinical urgency.

Was the onus not on the consultant to sniff out trouble?

Was it not the fault of the seniors?

 Guilty of homicide for mistaking normalizing pH after a fluid bolus for hypovolemic rather than septic shock

Facts: The jury heard about Jack's delayed treatment. But they did not hear about the other patients who were receiving care in the same hospital from Dr Bawa-Garba.

Jack's blood gases were deemed characteristic of sepsis. If they were so characteristic, why did Dr O'Riordan, the peripatetic consultant of the day and Dr Bawa-Garba's supervisor, not instantly diagnose sepsis when he saw the blood gases?

If a resident, who was doing the work of three registrars, can be found guilty of homicide for not understanding acid-base physiology, what does it say about the competence of her supervisor?

Failing to prevent enalapril being given 

In the ward, Jack received enalapril. Dr Bawa-Garba had not prescribed enalapril, and she clearly stated in her plan that enalapril must be stopped. Nor was enalapril given by the nursing staff—they stick to the doctor's orders. An hour after receiving enalapril, Jack had a cardiac arrest.

Fact: The drug was given by the mother and the allegation was that the team did not tell the family not to give any drug outside the hospital practice. Is it not the law?

If UK practices differently and allows the parents to give the medicine because of short staff, can this be a blunder on the part of the doctor.

DNR mix-up

After vigorous attempts at resuscitation, interrupted for a minute by Dr Bawa-Garba mistaking Jack for another child who was not for resuscitation, Jack was pronounced dead.

Fact: The interruption for only for less than a minute and could not have been the cause of failed CPR.



Writing honestly in e-process log

She was honest and wrote her feelings in the e-process log which was later used against her as evidence.

After Jack's death, Dr Bawa-Garba was distraught, and her consultant encouraged her to record her failings in her electronic portfolio. Trainees are encouraged to record their mistakes. She could have, if she wanted, written about the system failures of that day. But that would have been making excuses, and you don't stick around in a field like pediatrics if you're the sort who points fingers at others. But was this not her mistake?

The most merciless expert witness was none other than Dr Bawa-Garba herself. Her electronic portfolio became her confession. She erred because she had confessed to erring.

Was it a doctor’s failure?

The trust led an internal inquiry that identified several system issues that contributed to Jack's death. Medical errors can be caused by system issues and physician factors. The American patient safety movement has taken the high road and placed the blame for medical errors on systems. The Tort system targets both individuals and systems. The truth is that both can contribute.

Not raising an alarm on inadequate staff and system failures

Dr Bawa-Garba's supervisor, Dr O'Riordan, was not in the hospital but teaching in a nearby city.

Dr Bawa-Garba's colleagues (i.e., other registrars) were also away on educational leave. Normally, a registrar each is assigned to cover the wards, the emergency department, and the Children's Assessment Unit (CAU).

On that day, Dr Bawa-Garba covered all three. She was new to the hospital but with no formal induction (i.e., no explanation where things are and how stuff gets done in the hospital). She was expected to get along with the call and find her way around the hospital.

Registrars are the principle decision-makers in hospitals; they function as both a senior resident and an attending.

Shouldn’t she have raised an alarm and wrote about the deficiencies in the system? Will the seniors and the management have allowed that?



Dr KK Aggarwal


Padma Shri Awardee
Vice President CMAAO
Group Editor-in-Chief IJCP Publications
President Heart Care Foundation of India

Immediate Past National President IMA