Prosecution or persecution?

It was a typically busy night in the regional neonatal intensive care unit. The nursing staff informed a junior doctor that an infant's intravenous cannula had “tissued.” The doctor inserted a new cannula but, on attempting to flush the cannula with water, it was obvious that the cannula had been sited extravascularly.

Crucial statements were littered with inaccuracies, inconsistencies, and blatant errors of fact

While the doctor collected equipment for another cannulation attempt, the infant had a profound cardiorespiratory collapse from which he could not be resuscitated. An opened ampoule of intravenous phenytoin, intended for another patient, was found near to the deceased infant, raising the dreadful possibility that an erroneous administration of phenytoin had contributed to the infant's death.

Let us hope that the CPS will never again attempt to destroy the career of an innocent doctor

The doctor who had attempted to replace the intravenous cannula was immediately suspended. The coroner was informed, police officers took statements from the attending staff, and post mortem analysis confirmed that the infant had received phenytoin. The Crown Prosecution Service (CPS) decided that the suspended doctor should be prosecuted for manslaughter.

The accused doctor was certain that he had not erroneously administered the phenytoin and he vigorously protested his innocence. However, being suspended, unemployable, and with his passport confiscated, he could only wait while the due process of the law proceeded painfully slowly. The fact that NHS trust indemnity does not cover criminal proceedings and the doctor did not have personal clinical indemnity insurance exacerbated the immense psychological and financial strain on him and his young family. Fortunately, he was eventually granted legal aid. More than a year later, the case was heard in the crown court.

As soon as the trial opened, the prosecution's case began to disintegrate when its main expert medical witness expressed grave misgivings and withdrew. Analysis of phenytoin levels systemically and within the various cannulae of the deceased infant indicated that it was most unlikely that the accused doctor had administered the drug. Four days into the trial, the prosecutor called the first of several nurses to present her account of the events leading to the infant's death. Under cross examination she refused to continue her evidence. With his case crumbling, the prosecutor declined to offer any further evidence, the judge directed the jury to return a not guilty verdict, and, at last, justice was done.

But had justice been done? The bereaved family's grief had been prolonged by futile legal proceedings, an innocent doctor's career had been devastated, and he and his family may never fully recover from the enormous strain placed upon them. Should this case ever have been allowed to come to trial? Crucial statements from the nurses involved were littered with inaccuracies, inconsistencies, and blatant errors of fact. There was disagreement over whether one of the nurses had tried to flush the deceased infant's tissued cannula. Accounts conflicted over which nurses had prepared, checked, and administered medications given to various infants that night. The timing of drug administrations differed between statements. Nor was there even agreement over which of the junior doctors had attempted to flush the cannulae of the deceased infant. Bizarrely, one of the nurse's statements carefully described the accused doctor's activities on the unit at a time when he had not even started to work that night.

It seems astounding that the CPS decided to prosecute the junior doctor on the basis of so many conflicting statements, and the eventual collapse of the prosecution's case was entirely predictable. To what extent had the prevailing climate of political and media near-hysteria concerning the perceived deficiencies of certain medical practitioners influenced the CPS? Was this actually a prosecution or a persecution?

There are lessons to be learnt from this unhappy episode. A lone member of staff should not be singled out for suspension when there is uncertainty over who has been responsible for a patient's death. Doctors must ensure that they are protected by personal clinical indemnity insurance in case they face criminal proceedings arising from their medical practice. Deficiencies in the working environment and systems often contribute to serious medical errors and it is highly contentious whether individual healthcare workers should be prosecuted for manslaughter in such circumstances.

If, as in the case described, responsibility for a medical error is unclear, then the CPS would appear to be a completely inappropriate agency through which to try to resolve this difficult issue. Let us hope that the CPS has learnt this lesson and will never again attempt to destroy the career of an innocent doctor.