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Dr Bawa-Garba and nurse Amaro

February 8, 2018

The chance of two health workers independently committing clinical negligence manslaughter on the same day, on the same child?

A few weeks ago my colleagues and I wrote in the BMJ about the conviction of Dr Bawa-Garba for clinical negligence manslaughter of her patient, six year old Jack Adcock (click here).  In part, we noted:

“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?”

Much else has been written (e.g. click here for a view from the US) about the pressure Bawa-Garba was under that day, the failings of her employing hospital and of her consultant, and whether a jury can really appreciate the difficulty of diagnosing sepsis in a child, but no-one else seems to have noted this coincidence. Was the simultaneous crime really as unlikely as two closely related people separately winning the lottery jackpot, and if so, did the judge inform the jury correctly?

After the event, the probability of two related individuals winning the jackpot is never as low as people imagine. There are many ways to link people; relatives, neighbours, friends, coworkers etc., and the lottery has run every week for 25 years or so. The fact that members of a family from Tipton won three times (click here) does not really “defy the odds of 350 billion to one”.

But in prospect, given that one particular person has experienced a rare event, the probability of a related person experiencing the same event can be defined.  For each National Lottery game the chance of winning the jackpot is about 1 in 14 million. Once John Smith has won, the chance of his friend Sam Brown winning the same jackpot the following week, assuming he buys a ticket, is 1 in 14 million. If ten friends come round to John’s house the week after his big win, each with a ticket in hand, the chance of one of them walking off with the jackpot that very week is 1 in 1.4 million. Not very likely.

Medical negligence manslaughter is rarer than lottery jackpot wins, but the population that can commit it is also smaller than lottery players. To commit it you must both be one of about 400,000 doctors, nurses, health visitors or midwives working in the UK, and also care for a patient who dies; staff who don’t have a patient die, may do many careless things that day, but they cannot commit clinical negligence manslaughter. About 1,600 people die every day in the UK, so if they were each looked after by only one clinical carer, 1,600 people could potentially commit clinical negligence manslaughter on a typical day.  If more realistically each person who died had been looked after by ten clinical carers, 16,000 people would be potentially able to commit the offence each day.  Since only one person is found guilty every eight years, the daily probability of a health worker committing such an offence is at most 1,600 times 365 days times 8 years, = 1 in 4.6 million, and more realistically, 16,000 times 365 times 8, = 1 in 46 million.

We don’t know the order in which the jury decided the guilt of Dr Bawa-Gaba and nurse Amaro, but they must have found one guilty first. Given that the case had come to court, the jury should not have been unduly surprised to find one of the people in the dock guilty.

But the jury had also been led to believe that there had been no collusion between Dr Bawa-Garba and nurse Amaro – this was no Morecambe Bay, where a group of midwives had allegedly gone “off the rails” together. The prosecution had argued that Dr Bawa Garba and nurse Amaro were each independently almost uniquely incompetent and careless.  If so, what is the chance that on the same day in the same hospital and caring for the same child, another person should independently administer care that was, as the judge instructed, so “truly exceptionally bad” as to amount to clinical negligence manslaughter

If staff commit clinical negligence manslaughter on somewhere between 1 in 4.6 million, and 1 in 46 million patient treatment days where the patient dies, and if say ten other staff cared for that boy on the day in question, the chance in prospect that the second defendant had also committed the same offence was somewhere between 1 in 460,000 and 1 in 4.6 million! i.e. the same order of probability as the chance in prospect, that the week after John Smith won the jackpot, one of his ten friends would also win the jackpot. If someone had told the jury that, would they have still convicted both women?

There are five possible explanations.

  1. A truly extraordinary thing happened that day, an approximately 1 in a million coincidence.
  2. Dr Bawa-Garba and nurse Amaro colluded.
  3. Something about that Leicester hospital’s children’s ward made clinical negligence manslaughter more likely than usual that day.
  4. Clinical negligence manslaughter is more common than we think, and many doctors and nurses are getting away with it.
  5. Dr Bawa-Garba, or nurse Amaro, or both, were wrongly convicted.

Jim Thornton

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3 Comments leave one →
  1. February 8, 2018 3:10 pm

    Possible explanations:
    1. Almost certainly not
    2. No clear motive for this
    3. Already tacitly acknowledged by the subsequent systems change within the hospital, yet inexplicably not taken into account as a mitigating factor by the high court nor GMC.
    4. Possible, but if this case is anything to go by an increase in convictions will also lead to a increase in wrongful convictions given the complexity of the cases and the fact that many doctors deal with patients who subsequently die due to the course of their illness – irregardless of the actions of the doctor.
    5. Most likely explanation

  2. February 12, 2018 10:49 am

    I shared your blog with 2 colleagues who are in the medical defence industry (for that is what it is) and they have made a number of comments which I think it would be useful to share though I take no personal credit while generally agreeing. The first is that using statistics is what did for Meadows but I think that your understanding is probably greater!? the other I paste below and have complete agreement.

    ‘Here the common factor was that a child had been treated very badly. It was exacerbated by factors that the jury rightly or wrongly would find distasteful – like the business of the DNR on the wrong bed, linked to this one being Down’s Syndrome. The more important point is that the single issue merchants have so nibbled away at medical training and continuity of care that we have a generation of doctors who are
    · slanted so as to include more women and BME rather than being chosen for academic excellence,
    · taught to apologise for getting it wrong more rigorously than they are taught to get it right
    · taught basic science in the most cursory fashion
    · worked such short hours that they have no experience of continuity of care – one NCEPOD report described the SpR as a fleeting acquaintance in your hospital journey.

    Having done our best to ensure that they are minimally equipped to recognise a sick patient we then work them with 30% rota gaps – which means they are usually covering a non-existent or absent colleague.

    When something goes wrong it is – despite what Jim says – becoming much more routine to put them up against a wall. Maintaining public confidence in the profession, as the GMC put it actually means shooting an admiral “pour encourager les autres” as Voltaire put it. One more under-prepared mediocre doctor or less is not likely to increase the rota gaps significantly.’

    The GMC has a wonderfully bullying culture, whether it is doctors who have erred or just trying to get through appraisal (where they act as something between Trust policemen and McMafia thugs) and subsequent reaccreditation. They clearly hate it when tribunals find against them and they continue to preach ‘personal responsibility’ even when problems are now down to corporate neglect.

  3. kaspar Hauser permalink
    February 23, 2018 10:33 am

    In relation to option 5, I realise that I am getting steadily more reactionary in my old age but I think that in any assessment of the innocence or guilt of two people accused of gross negligence manslaughter and presented with two possible options, namely:

    1. the verdicts of a jury, properly instructed by a judge on the basis of a trial at which expert evidence was considered; or
    2. a cursory Key Stage 2 maths calculation of probability;

    I’ll take the jury system every time!

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