(1) VERONICA STRACHAN McLEOD, (2) KERRY OGILVIE STEWART AND (3) MARGARET REEKIE JOHNSTON STRACHAN AGAINST TAYSIDE HEALTH BOARD
OUTER HOUSE, COURT OF SESSION
[2014] CSOH 141
A101/11
OPINION OF LORD McEWAN
In the cause
(FIRST) VERONICA STRACHAN McLEOD; (SECOND) KERRY OGILVIE STEWART; (THIRD) MARGARET REEKIE JOHNSTON STRACHAN
Pursuers;
against
TAYSIDE HEALTH BOARD
Defenders:
First Pursuer: Party
Second Pursuer: Party
Defenders: Fitzpatrick; National Health Service Scotland Central Legal Office
12 September 2014
[1] This case concerns the death of a lady in a Dundee hospital in February 2008. The first pursuer is her daughter (Veronica) and the second is her granddaughter (Kerry). There are now no other pursuers. Put shortly, the claim is for medical negligence and it is an ordinary action
[2] Only two authorities were put before me. Viz Hunter v Hanley 1955 SC 200 and Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
[3] Pleadings are not in the usual form but do give clear and fair notice of what is alleged.
[4] The Record for the debate may be briefly summarised. Article 4 deals with the admission of the deceased to Ninewells and iodine poisoning is narrated in a lengthy highlighted passage. Her medical history is given and there is then a complaint that she should not have been put in an Infectious Diseases unit. Thereafter there follows a detailed account of her treatment and progress over the six days before her death. Little of this is disputed in the corresponding Answer.
[5] In article 5 the duties of care are narrated. It is said she should have been admitted to a general surgical unit for investigation. The critical averment in this article does not say that surgery would have prevented the death. The passage is again highlighted.
[6] The only other matters in the Record to notice are in article 10 where it is said that during her impatient period there was a failure to seek immediate medical and surgical attention when the family became concerned; and in article 11 where it is said there was a failure to investigate iodine toxicity. This is linked to an alleged failure in duty by NHS 24 (General Practitioners).
[7] The defenders lodged a written Note of Argument dated 22 October 2012. I refer to it for its terms and need not set it out here. Counsel for the defenders moved me to sustain his first plea-in-law and dismiss the action.
[8] He pointed to various passages in the Record where there were complaints about the management of the deceased’s illness, the investigations and the reviews. There was no offer to prove negligence causing death. Mention was made of being in a different ward and having sooner investigations. However there were no averments to show how any of this would have avoided the death or altered the progress of the illness. It was not said that the staff in Ward 42 lacked expertise or how management in a different ward would have altered anything. It was clear that reviews did take place and the underlined passage in article 5 was hostile to any idea of causation.
[9] Article 10 was vague and did not say what difference any of the treatment demanded would have made. There were no averments of fact to back up why it was mandatory to go to a different unit. There were no allegations of departure from normal medical practice. All that the Record contained were assertions.
[10] The particular allegation about iodine poisoning was never developed. There was no offer to prove it was implicated in the death. Article 8 was just another theory posing a question. As to article 11, the defenders were not liable for any GP or NHS 24.
[11] Having asked me to dismiss the case for want of relevancy, Mr Fitzpatrick then looked at some of the pursuer’s productions. He said that if any of these revealed the semblance of a case he would draw this to the attention of the court and try to assist the pursuers if he could. There were four reports. He looked at them in some detail and argued that even on the most charitable reading they did not allow for any improving amendment to be made to the case as presently pled. As counsel put it, there was no latent claim “…waiting to get out…”
[12] There were two documents emanating from Dr Bowen Jones who is a physician viz No. 6/6 which is a report and No. 6/7 which is a letter of 13 March 2013 in response to a question posed by solicitors then acting for the pursuers. (It is not clear what was the question he was asked). More particularly he began by looking at No. 6/6 of process. It is dated 5 December 2010. Counsel referred to pages 2, 10, and 11. The reference to treatment being “suboptimal” did not square with the test in Hunter v Hanley. The report was inconclusive and referred to the need to consult other experts. Dr Brecker’s report of 30 March 2009 (No. 6/5) suggests getting the advice of a surgeon and a physician. On 3 August 2010 Mr Scurr, a surgeon, reported (No. 6/4). The effect of his report was that no surgery was indicated (see pages 13, 14 and 15.) Nearly three years later Dr Bowen Jones wrote the letter, No. 6/7 of process, to Dundee solicitors (13 March 2013). The problem with this letter is that it is not known what questions he was asked. The letter expressly discounted iodine as a cause.
[13] In summary counsel said that none of these reports showed that a relevant case could ever be made, and the present case could not be improved.
[14] The case for the pursuers was presented with skill and moderation, and to that end I heard Kerrie Ogilvie Stewart, the second pursuer, in reply. She was nervous but spoke well in support of her case. She seemed to accept that she had missed out causation. Surgery might not have made any difference as her grandmother had been left brain dead for so long. Her GP had asked that she be admitted to a general ward but she had been put in Ward 42 which was an ID unit. The iodine factor should have been investigated. She then took me to all four reports and made the following observations. She said No. 6/6 indicated that surgery would have prevented a brain stem event and so did No. 6/5. The treatment given was all too late. On my questioning she said that the solicitors Allan McDougall had withdrawn from acting. Blackadders had come in only to receive the letter from Dr Bowen Jones in 2013. She was unable to tell me what question had been put to the Doctor. Her grandmother did not have any infectious disease. She should have had earlier treatment. Surgery was never considered. She ended by saying Hunter v Hanley was in point.
[15] I should say a word or two about the two cases which were put before me, although only Hunter was looked at in any detail. It is interesting to remember that each of these cases arose from jury trial. In Hunter where a general practitioner was sued for allegedly leaving a needle in a patient the issue was one of misdirection by the trial judge. In Bolam a patient in a mental hospital was injured during ECT. The correct test is not in dispute. To establish
“... negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor or ordinary skill would be guilty of, if acting with ordinary care ...”.
A medical man is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.
[16] In my opinion the pursuers here had not averred a relevant case for any form of inquiry and I agree with counsel that an examination of the productions does not show that any improvements can be made. There are no averments to show how admission to a different unit and sooner investigation would have altered the course of the deceased’s final illness and there is no factual basis alleged for either of those matters being accepted medical practice in the Hunter v Hanley sense. Also there is no causal link with the death and iodine toxicity even if the condition was established. Further, whatever failings there may be with the general practitioner or NHS 24, these are not matters for which the defenders are liable.
[17] I have no enthusiasm for having to dismiss the case now. It is clearly an anxious and distressing matter for the family but it would be no kindness to the pursuers to allow it to proceed further, with the huge expense to them and the inevitability of failure. Counsel for the defenders is to be commended for his efforts to help, done in the best traditions of the Bar but to no avail. For the reasons given earlier I will sustain the defenders’ first plea-in-law and dismiss the action; reserving meantime all questions of expenses.