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Paediatrician convicted of manslaughter must be erased from register, rules High Court

BMJ 2018; 360 doi: https://doi.org/10.1136/bmj.k417 (Published 26 January 2018) Cite this as: BMJ 2018;360:k417

Re: Paediatrician convicted of manslaughter must be erased from register, rules High Court

The public need to have confidence in the medical profession, which would be undermined if the General Medical Council did not permanently remove from the register doctors convicted of the most serious criminal offences. Criminal negligence manslaughter is one such offence.

However, the public, and doctors, also need to have confidence in the criminal justice system. At present we do not. The trial summary, as presented by the appeal court, (http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Crim/2016/18...(Bawa-Garba) does not justify the original verdict.

Dr Bawa-Garba, a doctor in training, failed to diagnose severe sepsis in a child – once. To be more precise, she made the correct diagnosis and ordered the correct treatment, albeit after some delay, but failed to appreciate the full seriousness of the child’s condition until it was too late.

She did not kill Jack Adcock. Sepsis killed Jack Adcock. Dr Bawa-Garba tried unsuccessfully to save him by administering intravenous fluid, oxygen, and antibiotics. Her intent to save his life was never in doubt. Everyone agrees that she should have done more, but her failure to do so was not due to intoxication, laziness, malevolence or pride. It was due to cognitive failure; she did not appreciate the seriousness of his condition.

Even in the absence of any mitigating factors, cognitive failure is part of being human. It does not justify such a serious conviction.

In fact the court considered some mitigating factors, the partial failure of the hospital lab results system, the contributory culpability of two other staff members who failed to inform her of abnormal results, made their own monitoring errors, and delayed giving the antibiotics that Dr Bawa Garba had prescribed, as well as her previous unblemished record.

But, according to the appeal court record, the original court did not fully consider the potential co-culpability of the duty consultant who took Dr Bawa-Garba’s reassurance that the child was improving at face value, despite being more senior, ‘in charge’ and also aware of the very low pH. That consultant did not appear in court. Nor, as far as we can see, did the court consider other alleged mitigating factors such as her having to cover for other doctor’s absences, being on her first day back after maternity leave, and not having received any return to work orientation.

The medical expert called by the defence, Dr Martin Samuels, who has also argued in Dr Bawa-Garba’s defence in these pages, (http://www.bmj.com/content/359/bmj.j5223/rr) was a general consultant paediatrician. In contrast the prosecution expert, Dr Nadels, who presumably argued in court that her care “fell so far below the standard of care expected by competent professionals that it amounted to the criminal offence of gross negligence manslaughter” was a consultant in paediatric intensive care. Did the jury understand that, all else being equal, Dr Samuels was better placed to judge the standard of care expected of a general paediatrician?

There is another strange aspect to the jury’s verdict. One of the nurse co-defendants was also convicted of the same offence at the same trial. Medical negligence manslaughter is extremely uncommon, with only 22 convictions and three guilty pleas since 1795 in the UK – fewer than one every eight years. For comparison the National Lottery has created 4,750 millionaires since 1994, nearly 200 per year. Given that there has never been any suggestion that Dr Bawa-Garba and the nurse colluded, it is an extraordinary coincidence that two people should independently commit such a rare offence on the same day, in the same hospital and while caring for the same child?

However, all the above is speculation. We have not seen the full transcript of the original trial. Perhaps there was some particularly heinous behaviour by Dr Bawa-Garba, which justified the verdict. Perhaps the jury was unduly swayed by her mistakenly mixing up Jack Adcock with another child with a “Do No Attempt Resuscitation (DNAR)” order in place, when she attended the final crash call. It’s not difficult to see how that would anger the child’s parents, although the appeal court makes clear, both that there were ample reasons for the mix up, and that it did not alter the final outcome. Perhaps the court erred. Lawyers and juries, like doctors, are not perfect.

We support the call by Drs Moosa Qureshi, James Haddock and Chris Day, for an independent legal opinion on the original criminal trial verdict. https://www.crowdjustice.com/case/help-dr-bawa-garba/

Last year in a letter in these pages Dr David Nicoll wrote:
“How on earth did Dr Hadiza Bawa-Garba ever get convicted of gross negligence manslaughter? It is possible that the judiciary, just like the medical profession, are fallible and there has been a miscarriage of justice - this, however, is a question to be addressed on another day.”

In our opinion, now that the GMC appeal has been upheld, that other day has arrived.

Competing interests: No competing interests

30 January 2018
Jim G Thornton
Professor of obstetrics and gynaecology
Christoph Lees, Susan Bewley
University of Nottingham
City Hospital, Hucknall Road, Nottingham