(1) Diane Hopkins & (2) Frances Ryan v HM Coroner for Swansea and Neath Port Talbot [2018] EWHC 1604 (Admin) Judgment here.

This was a straightforward application of the High Court’s power under s13 Coroners Act 1988 to quash the determinations and findings made at an inquest and order a new one, in the light of new evidence.  But the facts make surprising reading and reveal important lessons for coroners.

Mrs Pokoyski was an 85 yr old care-home resident. After a series of strokes left her paralysed she required a puréed diet. Her family were concerned that she was often being inappropriately fed in a reclining position so causing her to choke. One day she was said by care staff to have suffered a ‘bad episode” of vomiting and aspirated vomit; she became ill, struggling to breathe; she was taken to hospital but died a few days later.

Following a post-mortem examination a consultant histopathologist, Dr Thomas, gave the cause of death as “aspiration pneumonia with locally advanced carcinoma of the lung”. However, at the inquest Dr Thomas changed his opinion. Having heard the factual witness evidence he said he now wasn't clear if choking had occurred and that the food material he saw in the lungs might have come from the stomach rather than from aspiration. Dr Thomas now gave a different cause of death - pneumonia caused by lung cancer - which the assistant coroner accepted as part of his conclusion.

However, the deceased’s daughters had legitimate concerns about how their mother had been fed and and so after the inquest obtained an independent expert pathologist’s opinion. Professor Soilleux gave a damning analysis of Dr Thomas’s evidence. Not only had the original cause of death been correct, but the deceased had died from the worst aspiration pneumonia this expert had ever seen under the microscope.

Professor Soilleux observed abundant food particles in the bronchioles and alveoli associated with a very intense inflammatory response. Indeed there was evidence of food material in different stages of being broken down, supporting the accounts of choking/aspiration on multiple occasions. Dr Thomas had apparently contended that a ‘giant cell response’ was needed to diagnose aspiration pneumonia: he was simply wrong about that. The expert concluded that Dr Thomas lacked knowledge of the pathology of and diagnostic criteria for aspiration pneumonia and had wrongly inflated the importance of the cancer.

When presented with Professor Soilleux’s report, Dr Thomas readily accepted her conclusion as to cause of death.  He explained that he was a general histopathologist with a special interest in urological pathology but that he “was not an expert in pulmonary or autopsy pathology”.

The application

Given the medical consensus that the recorded cause of death was incorrect the success of the family’s s.13 application for a fresh inquest was perhaps inevitable. The Attorney General gave his fiat, however, when presented with the claim form and asked to agree to a consent order, the coroner declined to do so. It is hard to understand why this was so, given that the assistant coroner was now well aware that Dr Thomas fully accepted that the cause of death he had provided at the inquest was wrong. Parties can sign consent orders and so avoid the delay and expense of a court hearing. The coroner’s refusal to do so now meant that this family (who had already incurred the expense of an expert report and irrecoverable legal fees in making the fiat application to the Attorney General) were now to be put to the additional expense of instructing counsel to represent them in the administrative court and preparing a full court bundle. Furthermore the coroner’s refusal to consent in December 2017 meant six months additional delay for this bereaved family before the High Court judgment date in June 2018.

Costs

The authorities are clear that, despite the general rule that coroners who do not appear to defend their decisions will not be ordered to pay costs, where coroners unreasonably refuse to sign a consent order costs can be awarded against them.     This coroner had been unreasonable in his refusal and so was ordered to pay £6,634 - ie all the applicant’s costs following service of the claim form.

Lessons

One hopes that this level of error in a pathologist’s work is rare, but coroners can take some general lessons from the case:

  • Consider whether a general histopathologist conducting a post-mortem examination has appropriate expertise. Dr Thomas “was a general histopathologist with a specialised interest in urological pathology and medical renal biopsies”.   When his opinion was questioned he readily acknowledged that he was “not an expert in pulmonary or autopsy pathology”.  One might think that some expertise in pulmonary and autopsy pathology is a basic requirement for conducting coronial post-mortems, particularly where pneumonia is such a common cause of death in the elderly.
  • Given the recognised shortage of consultant pathologists available and willing to conduct coronial post-mortems, instruction of a pathologist with appropriate expertise may need systemic consideration in terms of the arrangements made in each coroner area. An important part of this process will be good communication with local pathologists, so that coroners and their officers understand what particular expertise each of their local histopathologists actually has, and histopathologists understand the need to highlight to the coroner service where matters fall outside their expertise such that a different opinion should be sought.
  • Any substantive change of opinion by a pathologist should be subject to intense scrutiny, remembering that the decision as to cause of death is the coroner’s; the coroner need not accept a pathologist’s opinion as to cause of death. There may be circumstances in which it would be appropriate for coroners to reach their own conclusions or decide that further evidence is needed before a conclusion can be reached.
  • Facts are for the coroner not the expert. This pathologist changed his conclusions because of his own assessment of the factual evidence he heard at the inquest (combined with his erroneous understanding of the relevant histopathology). Factual findings are for the coroner and so any expert opinion that turns on factual findings should be elicited on the basis of the possible alternative factual scenarios.  Here the coroner ultimately found that the deceased’s daughters had provided honest accounts – which included the deceased choking.
  • When it is clear that things have gone wrong agree to a consent order promptly. Refusing to sign a consent order in an obvious case will cause additional months of delay for a bereaved family seeking resolution and the expense of a costs order against the coroner.