By SAURABH JHA

This is the second part of Dr. Jha’s conversation with Dr. Jonathan Cusack, who was the former supervisor and mentor of Dr. Bawa-Garba, a pediatrician convicted of manslaughter of fetal sepsis in Jack Adcock. Read the first part of this series here.

Dr. Jonathan Cusack versus the General Medical Council

I spoke with Dr. Jonathan Cusack, consultant neonatologist at Leicester Royal Infirmary (LRI), and former supervisor and mentor of Dr. Bawa-Garba, the trainee pediatrician convicted of manslaughter for delayed diagnosis of fatal sepsis in Jack Adcock, a six-year-old boy with Down’s syndrome. We had drinks at The George, pub opposite the Royal Courts of Justice.

In the first part of the interview we discussed the events on Friday February 18^th, 2011, the day of Jack presented to LRI. In the second part of the interview we talk about the events after fatal Friday – how the crown prosecution service got involved, the trial, the manslaughter charge, the tribunal and the General Medical Council.

The Role of Dr. O’Riordan

Saurabh Jha (SJ): After Jack’s death what was Dr. Bawa-Garba’s immediate reaction?

Jonathan Cusack (JC): I think it’s one of those moments one neither forgets nor recalls. I imagine the most overwhelming feeling was one of incredulity. How and why did Jack decompensate? It’d have struck her as physiologically implausible. Though she was experiencing that grief familiar to all pediatricians when a child dies, she was trying to understand why. She didn’t know that he died from Group A Streptococcal septicemia, then.

SJ: She had no idea of the storm brewing.

JC: No one had any idea of the storm brewing, for quite some time. No one could have predicted the predicament we find ourselves in today.

SJ: But did Dr. O’Riordan, her consultant, intuit?

JC: What do you mean?

SJ: Did he correctly intuit the significance of events?

JC: To be fair, I don’t think even he knew the magnitude of the storm that was heading her way.

SJ: So, let’s get back to Dr. O’Riordan – I’m assuming you’re comfortable talking about him.

JC: I’m happy to discuss O’Riordan’s role. Let’s make sure we distinguish between fact and conjecture.

SJ: Let’s get back to the handover, 4 pm – Dr. Bawa-Garba met Dr. O’Riordan. Did he offer to see Jack?

JC: No he didn’t. And neither did Hadiza ask him to see Jack.

SJ: But Dr. Bawa-Garba told him about Jack’s original blood gas? He knew that the lactate was 11 in the 1^st set of gases.

JC: Not at the time the bloods were drawn – he was in Warwick then. He was told during handover at 4 pm. So, he’s right in saying he had no idea about Jack’s original presentation. Also, when Hadiza informed him, Jack was improving.

SJ: That’s sort of my point. What I’m trying to get at isn’t that Dr. O’Riordan should be held responsible for Jack’s death instead of Dr. Bawa-Garba. Rather, Jack’s improving metabolic status would reassure any reasonable pediatrician that Dr. Bawa-Garba’s management of Jack wasn’t unreasonable. In fact, I don’t think it’s too outlandish for consultants to rely on registrars or competent senior house officers to tell them which patients need their review – that’s certainly the NHS I remember. However, what’s unacceptable is when a trainee is unsupported by the consultant if things go wrong.

Can you explain how Dr. O’Riordan counselled Dr. Bawa-Garba after Jack’s death?

JC: A few days after Jack’s death, O’Riordan met a distraught Hadiza. He spoke to her about Jack and what might have gone wrong and what she could have been done better.

SJ: Which is what a consultant should do. Nothing wrong with that.

JC: He completed a “Training encounter form” and catalogued the errors Hadiza made in managing Jack. He asked her to sign the form – which made her uneasy. Then he asked her to take some time off from clinical services.

SJ: He suspended her? Was that within his jurisdiction?

JC: In extreme circumstances a trainee can be taken off duty, and it’s technically not a “suspension.”

SJ: And, you can see how Dr. O’Riordan’s actions have two interpretations. One is that he’s a transparent truth seeker who sought justice for Jack. The other is that he was signaling his displeasure with Dr. Bawa-Garba and distancing himself from her, so that he could legitimately say “sorry, I had no idea Jack was near death’s door. It was all her fault, guv.” I really want to give him the benefit of the doubt but it’s hard.

Did he move to Ireland to escape the aftermath of the trial?

JC: That’s conjecture. He’s Irish – he may always have planned to return to Ireland. He might not have “fled.”

The Crown Prosecution Service

SJ: I should clarify something – I always thought it was the Adcocks who pursued the case against Dr. Bawa-Garba. I was wrong.

JC: No, it wasn’t the Adcocks who pressed charges against Hadiza, it was the Crown Prosecution Service (CPS). I think you’re likening this to the American tort system where the patient sues the doctor. To be clear, this wasn’t a case of civil tort, it was a criminal charge.

SJ – Why did the CPS bring charges against her. After Jack’s death Dr. Bawa-Garba was interrogated by the police. Is this standard practice? Am I confusing the police with the CPS?

JC – There are many routine things after a child dies in a hospital, unexpectedly. The police do get involved – that’s nothing personal against Hadiza. They’re just making sure there is nothing suspicious about the child’s death. Also, the police decided that there was no case to pursue. The case was referred to the coroner – again this is nothing personal or unusual. LRI also did their due diligence. They identified several system issues which needed correcting.

SJ – Sure. But a distraught trainee, unsupported by her consultant, made to confess errors for the death of a child for which she’s suffering regret, now gets grilled by the police. I don’t think we’re making acute medicine sound enticing for future doctors. What was Dr. Bawa-Garba feeling then?

JC – She was lonely and frightened, unable to sleep at night. It was then she reached out to me – I had worked with her before. But as distraught as Hadiza was, neither she nor I in our wildest nightmares expected a charge of manslaughter.

SJ – What was the turning point? I mean, what single event led to the charge?

JC – The turning point was the coroner’s inquest. The expert witness at the coroner’s inquest, a pediatric intensivist, after vigorous questioning from the coroner claimed that Jack’s death was preventable, that Hadiza’s clinical judgment was subpar, and her poor management of Jack contributed to his death. The coroner’s report set rolling the ball which later became an avalanche.

SJ – “Preventable” is a broad term. But, let me recap what you’re saying – that “preventable” and “below par clinical performance” are all it took for the CPS to press manslaughter charges against Dr. Bawa-Garba?

JC –In England, you don’t need to prove “intention to harm” or that one’s actions are “willful” or “deliberate” to be charged with manslaughter. You just need to prove that a physician’s gross negligence contributed to death.

SJ – Then, why were you so shocked that the CPS charged her with manslaughter?

JC – I should have been clearer. I was surprised that neither the coroner nor the expert witness made any allowance for the fact that Jack died from Group A Streptococcus – it should have been known to physicians in general, and pediatricians in particular, that this organism is very dangerous, and has a high mortality even with the best of care.

SJ – And this is one of the many tautologies in this case which the law can’t deal with. If Jack faced an organism which demanded such immediate action for a fighting chance of survival that a delay of three hours in starting the antibiotics could be the difference between life and death, then it’s conceivable that Jack’s fate was already sealed by the time he arrived in LRI. That is, the more preventable one deems Jack’s death the less likely the delayed administration of antibiotics contributed to it. An analogy I’d use is crossing a road in a residential area with a car hurtling towards you – your reflexes are more likely to help you avoid a car traveling at 30 mph than 80 mph.

The Trial

SJ – I’d love to discuss the intricacies of the trial, but I know you have to catch your train to Leicester, so I will focus on the salient parts.

JC – I wasn’t there for most of the trial as I was one of the witnesses for the defense, and I wasn’t allowed to hear the proceedings before I took stand, in case I’d be biased. There are many details I can’t recount first hand.

SJ – The most important question I have – did Dr. Bawa-Garba’s reflections indict her?

JC – This is controversial.

SJ – I know. I was taken to task by some enthusiastic safety advocates in the NHS that I was spreading fake news by suggesting that her confessions were used against her, like in a medieval court.

JC – It’s not fake news, it’s a technicality. And it’s important to understand the technicality. The jury weren’t shown her reflections, but they were seen by the prosecution and therefore ‘fed into’ the trial. Her defense team were technically right in saying that her reflections weren’t adduced by the jury.

SJ – But it seems like a distinction without a difference, legal pettifoggery. I’m not sure junior doctors will be comforted knowing only the prosecution, not the jury, will have access to their reflections, in the event they’re ever charged with manslaughter.

JC – I understand why the safety movement is concerned. It’s a blow to patient safety and sets its mission back by several years. The point of the trainee reflection is to improve the care for the next patient, not destroy the career of a doctor.

SJ – At the conclusion of the legal arguments in the trial, what did the judge instruct the jury to do?

JC – Justice Nichol asked the jury to find Hadiza guilty if they thought that the care she delivered to Jack was “truly exceptionally bad.”

SJ – Now we get to the crux of the charge. What exactly did the prosecution, with the help of the expert witness, insinuate about Dr. Bawa-Garba’s care that made it “truly exceptionally bad.” Surely, they did not suggest that her failure to give Jack antibiotics instantly is a criminal offense.

JC – No, that was not the gross failure, according to the prosecution, though they alleged that a series of failures did indeed delay the antibiotics. They listed several failures, including delay in seeing the chest radiograph she ordered.

SJ – And you so eloquently explained why she got to the chest x-ray late in the first part of our interview – she wasn’t updating her status on Facebook; she was performing a lumbar puncture.

JC – The major flaws, the ones which made her “truly exceptionally bad” – were her failure to appreciate Jack’s initial clinical presentation and the significance of the elevated lactate and creatinine.

SJ – You’re pulling my leg. She was charged for manslaughter for having a differential diagnosis for shock, and for putting hypovolemic shock at the top of the differential? For not responding to laboratory parameters when they may be at odds with a patient’s improving clinical condition? Are we going to permanently euthanize the adage “treat the patient not the lab results”?

JC – It was argued that the lactate and creatinine were red flags for sepsis which any competent doctor should know.

SJ – But that’s patently incorrect. I’m a radiologist but even I know, from recollection of my final exams, that dehydration can lower the ph and elevate the creatinine. There is something known as pre-renal renal failure, FFS!

I need another drink.

JC – Me too.

(JC gets a pint of bitter and I get a triple gin with tonic)

SJ – One could, with hindsight, also make the case that an elevated creatinine was a sign that Jack was entering multi-organ failure, and his prognosis by the afternoon was dismal. Anyway, did no one explain that an elevated creatinine does not necessarily mean sepsis?

JC – It’s not as simple as that – I assume you have, touch wood, never been inside a court. Legal reasoning is very different from medical reasoning. Once you know the outcome, once you know that a child died, it’s hard mitigating the significance of events along the path to a patient’s death – it sounds like you’re making excuses, and a skilled barrister will take you apart, and make you appear clueless and incompetent to a jury. Hadiza fell apart in the cross examination. She’s not very good at sticking up for herself.

SJ – I realize courts are not like multiple choice questions in medical examinations. In the court you know the answer – there’s no uncertainty about what actually happened. Still, many people are surprised by her defense – could they not have mounted a more clinically insightful defense of her?

JC – Some do wonder whether her defense could have been better. But the nuances that you have cited are better suited to the blameless environments of root cause analysis, than the inherently adversarial environment of law courts.

SJ – Did the jury consider system issues – like the IT system being down, Dr. Bawa-Garba being new to the children’s assessment unit, her covering more than what’s typically on the menu, the inexperience of doctors on her service?

JC – This, too, is controversial – I mean the extent to which the jury considered system issues in mitigating, or inculpating, her will never be known – we can’t cross examine jurors – this is the bedrock of our legal system. You could say that the fact that Hadiza was convicted of manslaughter meant the jury did not consider system factors. Or that Hadiza was convicted despite the jury knowing about the systemic issues. Or that the jury took system factors into consideration whilst convicting her. There’s no way of knowing which of the three is true. I’m sorry – it’ll be a permanent unknown for us.

SJ – It’s time to bring Dr. O’Riordan back. I assume he didn’t take stand for the defense.

JC – He said during the trial that Hadiza hadn’t impressed upon him the significance of Jack’s clinical condition and had she done he would have assessed Jack. There was an implication that Jack could have lived if he had assessed him, so Hadiza’s failure to involve him was yet another example of how her care was “truly exceptionally bad.”

SJ – He truly threw her under the bus. But we encounter another tautology. She didn’t ask Dr. O’Riordan to assess Jack because she thought Jack was on the mend. It wasn’t a separate error but followed from her judgment, wrong in retrospect, that Jack was improving. Otherwise, it is like repeatedly saying “you were wrong because you were wrong.”

JC – Be that as it may. However, the legal reasoning was that just because O’Riordan might have been wrong didn’t make Hadiza right.

SJ – I get that. Two wrongs don’t make a right but two wrongs do make each wrong less wrong. Had Dr. O’Riordan acknowledged, right in the beginning, that Jack’s metabolic profile was consistent with hypovolemic shock, it might have given credence to the fact that Dr. Bawa-Garba had not egregiously erred in her management of Jack.

I want to ask something about Dr. Bawa-Garba – it has been said that she never apologized to Jack’s parents. Is that true?

JC – She did apologize to Jack’s mother after his death – i.e. she said she was sorry for his death. She also apologized in writing through her lawyer at the time – but the family never received this.

But the question, I think you’re asking is – did she specifically apologize for making errors in Jack’s care? That wouldn’t be so much an apology as an admission of guilt, and it’s something defense lawyers, rightly or wrongly, advise against. The adversarial nature of the legal system in cases like Jack’s pits family and physicians against each other.

People also remarked that Hadiza did not look at Jack’s mother during the trial, that she seemed indifferent. They don’t know what was going on inside Hadiza’s mind. I do. After the jury found her guilty, she came to court the next day to hear the sentencing. She said goodbye to her children, arranged for childcare, and was carrying a large suitcase with all her clothes because she thought she would be taken straight from the court to jail. As she was waiting for Justice Nicol to announce the sentence, she wasn’t being indifferent – she was staring nervously at the Koran she had in her hand, praying to Allah for leniency. This was the eventuality for a person who wanted to be a doctor since the age of thirteen, whose mission was to take care of sick children.

SJ – Heart breaking. The British public need to treat their doctors with less vituperation, otherwise they’ll get the shortage of doctors they deserve.

Tribunal

SJ – Some 18 months after being convicted of manslaughter, and receiving a suspended sentence, Dr. Bawa-Garba faced the Medical Practitioners Tribunal (MPT). This independent body met to determine her fitness to practice. Your role was significant here. Can you explain?

JC – After being convicted of manslaughter, Hadiza’s confidence plummeted even further. As I mentioned, she was mercilessly cross examined and fell apart during the cross examination. Hadiza asked me to give evidence about her performance, training and remediation as she wasn’t planning to give evidence on the stand.

SJ – That was quite a burden on your shoulders. In a sense, you were batting for her. How did you prepare for that?

JC – After Jack’s death Hadiza worked at LRI with varying levels of supervision – on the wards and in the clinics. We put her through many simulations about sick kids presenting with undifferentiated symptoms. She did several practice tests. Very few pediatric registrars read or knew more than her. Needless to say she devoured tomes on sepsis. I collected a mountain of evidence, objective evidence, that she was a safe and competent pediatrician. Defending her was easy.

SJ – I think you’re being modest. I heard they had you on the stand for over 6 hours, and you were relentlessly grilled about Dr. Bawa-Garba. Can you tell us about a few questions you were asked?

JC – What they were trying to do was to see if I would undermine the jury decision – which I wasn’t going to. To put this more clearly, the tribunal is not a retrial, and the tribunal absolutely can’t go against, or be seen to undermine, a jury decision. They are very conscious about that. If I had ranted against the jury decision – that the conviction of manslaughter was a travesty – it would have hurt Hadiza.

SJ – Essentially you had to vouch for Dr. Bawa-Garba’s clinical competence whilst respecting the jury’s decision convicting her of manslaughter for gross incompetence. How did you walk this tight rope?

JC – It wasn’t easy – as you can appreciate, logical consistency can get you into rabbit holes. What I said was that Hadiza had remediated and because of her remediation she was low risk – or no higher risk than other pediatric registrars. To be honest, I believe Hadiza is one of the safest pediatricians around, precisely because Jack’s death motivated her to an extraordinary degree of learning.

SJ – And the tribunal’s deliberations have the fingerprints of your defense. They, too, acknowledged and respected the jury decision, said that she had indeed erred, but her erring was not irremediable.

JC – The only way the tribunal could absolve her without facing a legal cognitive dissonance with the jury trial was to suspend her license for a year. We felt a sense of victory at the tribunal – victory because Hadiza hadn’t been struck off.

The General Medical Council

SJ – But the victory was short lived. The GMC were indefatigable in their desire to snatch Dr. Bawa-Garba’s medical license, ostensibly to maintain public confidence in the medical profession.

JC – The GMC appealed against the tribunal’s decision because they felt that the tribunal had over stepped its role. Specifically, they felt that by only suspending Hadiza for a year, and not removing her from the medical register, the tribunal had undermined the jury decision. The provisional court sided with the GMC. Today’s appeal is against the decision of the provisional courts.

SJ – To be clear to the readers, this is not an appeal against the manslaughter conviction, as unjust as that was, but against the successful appeal of the GMC, who appealed the recommendations of their own tribunal. This is really a case of GMC versus MPT, rather than GMC versus Dr. Bawa-Garba.

There is one thing else I want to point out which may or may not be relevant to this case. Doctors from ethnic minorities are excessively deferential to hierarchy and institutions. We are repeatedly told by our elders, when growing up, that we should not rock the boat, that we should be grateful that we’re living in Britain, grateful and honored that we’re physicians. Many people from my culture tend to be deferential to authority, though I am a mutant in this regard. This is why doctors from such cultures can so easily find themselves unstuck when errors happen.

The Aftermath

SJ – This case is pivotal for the NHS. If the court sides with the GMC who gains?

JC – This case is one of those pyrrhic victories in which no one wins. Everyone has lost here – the Adcocks, Hadiza, pediatrics, junior doctors, the NHS, British legal system, the MPT, patient safety, transparency, public confidence. But the biggest losers are the GMC. The profession’s confidence in their regulatory body will take years to mend.

SJ – How do you feel about the Adcocks?

JC – I have immense sympathy for them – they have been through the worst thing that any parent can imagine. Losing a child is devastating. I have no words to describe their grief.

SJ – The GMC haven’t helped their grief. In a sense they have behaved like Iago – fueling angst.

JC – You might have heard the story of Elaine Bromiley, the lady who died because she could not be intubated during elective surgery. Her husband, Martin Bromiley, an airline pilot, insisted on an inquiry, not to enter an interminable legal blame game, but so that others could learn from what went wrong. He realized that his wife died not because any individual was at fault, but because the system was at fault. He spread the wisdom of the inquiry to other hospitals. He formed the Clinical Human Factors Group. His wife’s death made the system safer.

Patients like Jack are rare. Some general pediatricians might not see even a single patient like Jack in their careers. We missed a golden opportunity to learn from Jack’s death. Instead of investing time and resources into improving systems and understanding human factors in errors, we’re spending money playing a legal blame game. What a waste.

SJ – I have to say that this case has raised my respect for the American safety movement. Sure, they exaggerate the number of deaths from medical errors. But to their credit they have always blamed systems, rather than individual doctors.

JC – There is much we can learn from the Americans.

SJ – Hindsight is 20/20 but if there was one thing Dr. Bawa-Garba could have done differently what should that have been?

JC – Ask her consultant for help. I’ll say this to all junior doctors in acute medicine – don’t hesitate to ask for help. If in doubt, ask. If in doubt, err on the side of asking frivolously.

SJ – But I think it’s important to emphasize that her not asking her consultant for help wasn’t a sign of hubris, but humility and strong work ethic. I remember from my days as a surgical senior house officer that I was reluctant to ask the registrar or consultant for help, not because of pride, but so that I didn’t shirk my responsibilities.

JC – I must dash to St. Pancras.

SJ – One last question before you leave. Why? Why did you help Dr. Bawa-Garba? Why did you spend countless, at least two hundred, hours of your spare time helping her? When most doctors, even the reasonable ones, would have justifiably distanced themselves from a doctor convicted of manslaughter, why did you still support her?

JC – Hadiza is a competent pediatrician. She’s an above average doctor. She thinks of little else other than medicine. I would not be here today in the Royal Courts of Justice if I didn’t think that the British public would lose out if Hadiza lost her medical license. I’m just doing my job.

Saurabh Jha is a radiologist and contributing editor to THCB. He was once a junior doctor in the NHS. He can be reached on Twitter @RogueRad