842

in the biliary tree was causing the fistula. The consultant surgeonwas consulted. An ultrasound scan on Jan 23 revealed a retainedstone and suggested that the fistula was due to a slipped cystic ductligation. The scan failed to show up the lower end of the commonbileduct although there was a suggestion that higher up, at the levelof the common hepatic duct, it was dilated, indicating blockagelower down. However, the increasing drainage of bile indicated afistula and, probably, blockage in the part of the common bileductwhich the ultrasound scan had not revealed. Both surgeons thoughtthat the fistula would probably close without ERCP and the nursingnotes read "Allow to end of week to settle; if not, ERCP".One cause of persistent discharge of bile after this type of

operation is irritation caused by the end of the drain tube at or nearthe site of the transection of the cystic duct which prevents it fromhealing. On Jan 28 the drain was withdrawn a little to see if thesituation would improve. By Jan 31 the discharge had virtuallyceased, and the tube was withdrawn a little more. When it was beingfurther shortened on Feb 3 the drain came out; since there had beenno leakage for 4 days, it was not replaced. ERCP was not done andthe patient was discharged on Feb 6.

2 days after discharge the patient, in some discomfort, consultedhis GP, who found no signs of gross distension and did not suggest a

. return to hospital. On Feb 11 (a Saturday) the patient’s conditionhad worsened and his wife telephoned the registrar who told thepatient to come in on the Monday. He had abdominal distension,looked unwell, and had some fever. At operation 9 litres ofbilestained fluid were removed from the abdominal cavity and anX-ray investigation disclosed blockage of the common bileductclose to its junction with the duodenum. One of the two ligatureshad cut through the wall of the cystic duct and that was the site of thefistula. The consultant did a transduodenal sphincteroplasty toremove the obstructing gallstone. (This operation carries a 2% riskof pancreatitis, which may lead to necrotising pancreatitis, which isfatal in 50% of patients.) By Feb 20 there were signs of furthercomplications. A discharge started, and a third operation disclosedan abscess of the pancreas. The patient died on March 20.The Court of Appeal was unanimous in disagreeing with

judge’s interpretation of the medical evidence. Lord JusticeBeldam said that the question for the judge was not whetherthe risk could have been avoided if an ERCP had been done

(the kind of finding which a sheriff might have made at aScottish fatal accident inquiry) but whether the surgeons, indeciding not to ask for this diagnostic procedure when thefistula appeared to have closed, displayed such lack ofclinical judgment that no surgeon exercising proper care andskill could have reached the same decision. At issue was thedecision of two clinicians handling a surgical case of a sort atwhich they were skilled and experienced; their decision hadbeen endorsed by one witness, practising in the samesurgical specialty. The fact that others were critical of thedecision did not prove that the surgeons had fallen short intheir standard of care. This was made "abundantly clear" bythe House of Lords decision in Maynard v West MidlandsRegional Health Authority (1984).1 If the trial judge hadapplied the correct test, he could only have concluded thatno fault had been proved in the failure to refer for an ERCPand in discharging the patient from hospital.The Court of Appeal also held that, on the balance of

probability, the trial judge should not have concluded thatthe omission of an ERCP or the timing of discharge causedthe man’s death. The risk of pancreatitis as a result of ERCPwas not dissimilar to the risk in transduodenal

sphincteroplasty. Had the consultant operated on Feb 6,when the patient was discharged, he could properly haveelected to carry out the same procedure, and it was notsuggested that at that stage ERCP should have been

preferred. The surgeons refuted allegations that by Feb 13the patient was less able to withstand the operation. He hadwalked into the ward and tests on readmission showed that,if anything, his condition had improved. The fluid aspirated

from the stomach during the operation was clear and sterile,and there was no peritonitis.Beldam LJ said that "The question was whether, on the

evidence, it was reasonable for the consultant surgeon andhis registrar to take the view that the condition had ’settled’,and whether it was in accordance with a practice accepted asproper by a responsible body of medical opinion not to referthe deceased for ERCP ...". On the evidence he could notconclude that either the failure to carry out ERCPexamination or the discharge of the deceased from hospitalwas an effective cause of his death. Butler-Sloss and Fox Zjyagreed.Hughes v Waltham Forest Health Authority, Court of Appeal: Beldam,

Fox, and Butler-Sloss ZJ7. Oct 25,1990. [1991] 2 Med LR 155.

Diana Brahams

1. [1984] WLR 634; see Brahams D. Can a judge’s preference for one body of medical opinion justify a finding of negligence? Lancet 1984; ii: 177.

Obituary

J. R. A. Mitchell

Professor Mitchell died suddenly on March 23, aged 62.In his 21 years as foundation professor of medicine in theUniversity of Nottingham he engendered respect,

1/1 friendship, and affection. Asymposium to mark hisretirement last year

recognised his massivecontribution to clinicalmedicine locally, nationally,and internationally.

His reputation, based on totalintellectual integrity and a fiercelyindependent approach to medicalscience, was not unexpected inview of his distinguished earliercareer. From a first in physiologyin 1950 at the University of

Manchester, MB ChB with

honours in 1953, and a goldmedal for his MD thesis in 1965,

Tony Mitchell proceeded to Oxford, obtained a D Phil, and over 12years there established the scientific basis of his innovative researchinto platelets and arterial diseases, working with Gwyn McFarlaneand later becoming first assistant to Sir George Pickering. WithJohn French, John Poole, Colin Schwartz, and many others-ledand stimulated by Lord Florey- the contributions to

atherosclerosis from the young investigators at Oxford during the1960s were unique, and Tony Mitchell was always at the centre ofthe ideas and the work.The sincerity of Tony Mitchell’s commitment to medical science

was formidable and one of his greatest strengths as a teacher andleader of the profession. Some regarded his views as iconoclastic,but this was an impression derived from his unwillingness ever todissemble and his suspicion of those who do and those who regardconsensus in developing areas of medicine as either possible ordesirable.

Tony Mitchell will be remembered particularly for successfullybringing together the University Medical School and the healthservices in Nottingham, and by many outside Nottingham for hiswise advice to government and national committees. He was

president of the Association of Physicians in 1983. So many peoplewill have good memories of this unassuming and immenselyfriendly man, who was fortunate in having a contented and fullfamily life.

Michael Oliver