OUTER HOUSE, COURT OF SESSION [2007] CSOH 204
	OPINION OF LORD UIST in the cause (FIRST) SCOTT MICHAEL LEARMONT (AP) (a) as an individual and(b) with ROSS MICHAEL LEARMONT as Executors of the late CATHERINE LEARMONT and (SECOND) LAUREN ANN LEARMONT (AP) Pursuers against DR FIONA VERNON Defender ­­­­­­­­­­­­­­­­­________________

Pursuers: Caldwell QC, L Sutherland; Brodies LLP.

Defender: I W F Ferguson QC, A MacLean; Shepherd & Wedderburn WS.

19 December 2007

Introduction

[1] In December 1999 Catherine Learmont ("Mrs Learmont ") was a bright, attractive 37 year old woman who was divorced and lived with her two children, Scott, then aged 17, and Lauren, then aged 14, in Dumfries. She had two part-time jobs as a cleaner, one in a nursing home and one in a doctor's surgery. She began to feel unwell on 24 December. She felt worse on Christmas morning. On Christmas afternoon at about 5.57 pm she consulted the defender ("Dr Vernon") about her symptoms at the Out of Hours Surgery in Dumfries. She was told by Dr Vernon that she had a viral infection which would get worse before it got better and that she should go home. She then drove home, stopping on the way at her sister's house to drop off the two children. She went to bed and continued to be unwell. At about 4 am on 26 December Scott saw her sitting in bed coughing. At about 10.30 am that day Lauren found her dead in bed. She had been dead for about four hours. The cause of death (as agreed by joint minute 27 of process) was acute bacterial meningitis. The question which I have to decide is whether Dr Vernon was professionally negligent in her examination of Mrs Learmont on Christmas Day.

Meningitis

[2] Meningitis is an infection that causes inflammation of the membranes covering the brain and spinal cord (the meninges). It is usually caused by a viral or bacterial infection. Viral meningitis is usually considered to be benign, and is a fairly common complication of virus infections. There is no specific treatment for it. On the other hand, bacterial meningitis is an extremely serious illness which progresses very rapidly and is potentially fatal. A doctor who suspects bacterial meningitis in a patient must give the appropriate prophylactic antibiotic and immediately refer the patient to hospital. The two bacteria which cause meningitis are meningococcus and pneumococcus. (Meningitis caused by a third bacterium, Haemophilus Influenzae type b - Hib - has been virtually eradicated since the 1990s due to the introduction of new vaccines.) Meningococcal bacteria (Neisseria meningitides) are the most common cause of bacterial meningitis in the United Kingdom. These bacteria cause two distinct forms of disease - meningococcal meningitis and meningococcal septicaemia, which may occur separately or together. Meningococcal septicaemia is the more dangerous and occurs when meningococcal bacteria enter the blood stream and multiply uncontrollably, poisoning the blood and completely overwhelming the immune system, damaging the blood vessels, tissues and organs. The blood poisoning caused by meningococcal septicaemia can give rise to a rash and a simple test known as "the glass test" or "the tumbler test" can be carried out to determine if the rash is a sign of meningococcal septicaemia. The side of a glass or tumbler is pressed against the rash and if the rash does not fade or blanch it could be a sign of meningococcal septicaemia. Symptoms of bacterial meningitis include severe headache, stiff neck, dislike of bright light (photophobia), stiff body or jerky movements, confusion and drowsiness, fever, vomiting or diarrhoea and difficulty supporting one's own weight. Symptoms of meningococcal septicaemia include rash, leg pain, cold hands and feet, difficulty breathing, abdominal, joint or muscle pain and abnormal skin colour. One of the signs of meningeal irritation is known as Kernig's sign, in which one knee is extended with the hip fully flexed: when positive there is pain and spasm of the hamstrings.

The background to the consultation

[3] It is first of all necessary to examine the circumstances giving rise to Mrs Learmont's consultation with Dr Vernon on Christmas Day. The evidence relating to this came from the two children, Scott and Lauren, and from recordings of telephone conversations. Before turning to the events of 24 to 26 December 1999, I should mention that in mid December 1999 Scott had been off work suffering from a bout of flu.

[4] Although I deal with the evidence of Lauren and Scott in much greater detail below, it would be helpful if at this stage I gave a brief summary of their evidence of events leading up to the consultation. The evidence of Lauren in that connection was as follows. On 24 December 1999 she and her mother went into Dumfries to do some last minute Christmas shopping, returned home and had dinner. After dinner her mother said she wasn't feeling too well and that "she thought she'd got Scott's flu." She went to bed. Lauren got up at about 8 or 9 am on Christmas Day, and Scott at about the same time. Lauren went into her mother's bedroom and saw that she was unwell and did not wish to get up. Her mother said she had a sore stomach and neck and felt sick, she just wanted to lie in bed and she would open her presents later in the day. Beside her bed there was a basin containing phlegm. Lauren and Scott took her Christmas presents up to their mother in bed but she was unable to open them. She was lying on her left side facing them. She looked "very white, awful, tired" and more or less just wanted to go to sleep. She had never previously wanted to stay in bed all day. All she wanted was a drink of water. She had a wet flannel or towel over her head. Lauren then went out to visit her Aunt Annette (Mrs Learmont's sister, Annette Layden, who also lived in Dumfries) at 12.30 or 1 pm and Scott remained at home. When Lauren returned home at about 4 or 5 pm her mother was still in bed, looking worse than she had in the morning. Lauren described her as "paler, like a ghost, coughing, she looked really, really unwell, and complained of a sore stomach and head". Her mother said that her neck was really stiff and sore and that she could barely move it. She also had a rash on her arms. Lauren could not remember if the rash was on both arms as she just looked at her left arm. Some of the rash consisted of red or pinkish "big bits" and some of it consisted of "bits like wee dots", the colour of which Lauren could not remember. Her mother had done the glass test on her arm when Lauren was not there and said to Lauren "I hope I've not got meningitis". Lauren could not remember if her mother had said whether or not the rash had gone away when she did the test. Lauren did the glass test to check the rash, which appeared to remain when the glass was held against it. When Scott returned a short time later and did the glass test the rash did not go away. He then phoned Aunt Annette, who gave him the telephone number for the Out of Hours GP Surgery. He phoned the surgery and a short time later a doctor at the surgery (Dr Vernon ) phoned back and spoke first to Lauren and then to their mother. At the end of the call her mother said she was going to see the doctor and all three of them set off in the car, her mother driving.

[5] The evidence of Scott was generally to the same effect. He said that on Christmas morning his mother remained in bed, saying she had a sore head and was not feeling well. She looked pale and was not her usual self. He had previously seen her unwell, but not to the point where she could not get out of bed. She had nothing to eat. He had to open her presents from himself and Lauren. He went out at about 1 pm. He returned at about 4 or 4.30 pm. Lauren and his mother were in the house. His mother, who was still in bed, said she was feeling sick and had a sore head. She had a rash on, he thought, her arms and legs. He looked at the rash on the inside of her left arm. It looked like red spots, some in clusters, all over the arm. Lauren mentioned a glass test which he had never heard of and said that if the rash did not go away when the side of the glass was pressed against it then that indicated meningitis. He pressed the glass against his mother's left arm, not forcefully but enough to apply pressure, and the rash remained. He was worried as he knew meningitis could kill. He phoned his Aunt Annette and she gave him the number for the Out of Hours Surgery. He phoned the number and spoke to a receptionist. A doctor (Dr Vernon) phoned back and spoke to his mother, who by that time had got out of bed. After her conversation with the doctor his mother got dressed and she, Lauren and himself went to the surgery in the car. His mother looked pale and unwell and was not at all her normal self when they set off. She could not turn her head when driving and he and Lauren had to look to the sides for her.

[6] The phone conversation from the Learmont household to the surgery and that from the surgery to the Learmont household were recorded. The first conversation, between Scott and the receptionist, which began at 17.03 and 55 seconds, ran as follows:

"RECEPTION: After Hours Medical Service.

SCOTT: Hello. It's .... My mum's not very well ... (one/two words indistinct).

RECEPTION: Right. Are you phoning from her home?

SCOTT: Aye.

RECEPTION: What's the phone number there please with the dialling code?

SCOTT: 01387...

RECEPTION: Uh huh.

SCOTT: .... 252821.

RECEPTION: 821, and your mum's name?

SCOTT: Catherine Learmont

RECEPTION: L-E-A-R, is it?

SCOTT: L-E-A-R ....

RECEPTION: M-O-N-T?

SCOTT: M-O-N-T.

RECEPTION: And what's her address?

SCOTT: 4 Lorimer Crescent.

RECEPTION: That's Lochside, isn't it?

SCOTT: Aye.

RECEPTION: What age is your mum?

SCOTT (speaking to his mother): What age are you?

RECEPTION: Have you got her date of birth? That would be better still.

SCOTT: A second. 21^st of the 1^st, '62.

RECEPTION: And who's her doctor?

SCOTT (speaking first to his mother): Who's your doctor? It's Dr Jamieson.

RECEPTION: Jamieson, all right, and what's the problem with her?

SCOTT: She's .... (one word indistinct). Well, she's no been feeling well the day and she's just came out in a rash.

RECEPTION: She's got a rash?

SCOTT: Well, she ... (one word indistinct) just couldnae move her neck this morning.

RECEPTION: She cannae move it. Is it still like that?

SCOTT: Aye.

RECEPTION: She can't move her neck. Right. Has she got a temperature or anything?

SCOTT: Eh ... I think she had.

RECEPTION: Right, Okay. What I'll do is I'll pass the call through to the doctor and we'll phone you back shortly. It may be within the next ten to fifteen minutes.

SCOTT: (One/two words indistinct.)

RECEPTION: It's quite busy at the moment. Okay? So at 252821?

SCOTT: That's it, aye.

RECEPTION: Okay now. Bye.

SCOTT: (One/two words indistinct.)"

At the end of that call the receptionist made the following entry for Mrs Learmont in the computer:

"Message received: unwell most of today, difficulty moving neck and has a rash."

[7] At 17:16 and 14 seconds Dr Vernon ("DR V") phoned the Learmont household. The call was answered by Lauren, who then handed the phone to her mother ("MRS L"). The conversation ran as follows:

"LAUREN: Hello.

DR V: Hello. Is that Catherine Learmont's house?

LAUREN: Ehm, yes.

DR V: Ah! Is that Catherine I'm talking to?

LAUREN: No, it's her daughter.

DR V: Right, can I have a wee word with Catherine, please? It's the doctor phoning back.

LAUREN: Mum, it's the doctor. Right, here she is.

DR V: Thank you.

MRS L: Hello.

DR V: Hello, Catherine. Dr Vernon from the After Hours. How can I help you?

MRS L: Well, I've actually .... I've .... Last night I wasnae feeling at all well and could hardly lift my head up off the pillow.

DR V: Right.

MRS L: And my neck's really sore.

DR V: Uh huh.

MRS L: And I've come out in a rash.

DR V: Uh huh.

MRS L: On my arm.

DR V: Uh huh.

MRS L: And I just really wanted somebody to come and check me over, really.

DR V: Right.

MRS L: If possible.

DR V: Right. Well, let's go through that with you. You were fine yesterday?

MRS L: Yes.

DR V: Right, and now your neck's all just a bit sore?

MRS L: Yeah.

DR V: Right, but you're obviously up and about now?

MRS L: I am, I am now, yeah.

DR V: Right.

MRS L: But I wasnae earlier on.

DR V: No. Uh huh. Any other part of your body sore? Is it your arms or your legs or headache or ...?

MRS L: Just my neck. I've had headaches and I've been a bit sick.

DR V: Uh huh. Uh huh.

MRS L: (Two/three words indistinct.)

DR V: So you've been sick today?

MRS L: Yeah.

DR V: Right.

MRS L: Having the likes of the rash.

DR V: Right. What's the rash like?

MRS L: Eh, just kind of red blotches.

DR V: Uh huh. Have you taken anything that might cause that maybe? What have you taken so far to help?

MRS L: I've only, like, had a paracetamol tablet, but, I mean, that doesnae usually bring me out in a rash or anything.

DR V: No, no. Uh huh. So is there definite red blotches?

MRS L: Red, pimply, yeah.

DR V: Mhm hm. Mhm hm. (Coughs.) Excuse me. (Coughs.) Sorry about that.

MRS L: Mhm.

DR V: Well ... (one word indistinct) quite happy to have a wee look at you, but we'll probably send you a taxi to come over ....

MRS L: Mhm hm.

DR V: ... you know, rather than sending the doctor out.

MRS L: Right.

DR V: As you can understand, we need to keep him available for emergencies ...

MRS L: Yeah.

DR V: ... and things like that.

MRS L: Uh huh.

DR V: So I don't think this is anything unduly to worry about.

MRS L: Right.

DR V: But until we see it we can't be 100% sure.

MRS L: Mhm hm.

DR V: So have you got transport or would you like us to send ....

MRS L: I've got a car.

DR V: Well, why don't you just come up to Nithbank and we'll have a wee quick look at you?

MRS L: Right.

DR V: Okay. Do you know where to go?

MRS L: Ehm, I'm no very sure.

DR V: right, say coming along, ehm, as if you're going to the Infirmary.

MRS L: Uh huh.

DR V: When you get to that roundabout where the garage is ...

MRS L: Yeah.

DR V: go through it as if you're going to the Infirmary, and turn immediately left.

MRS L: Right.

DR V: And you'll see a green sign that says 'Doctors After Hours'. It's really at the back of Nithbank.

MRS L: Right. Okay.

DR V: So if you sort of follow that round, follow the signs round, you'll come to a parking area.

MRS L: Uh huh.

DR V: And then walk up the wee path. You'll maybe need a torch. Ehm, you know, if you just come along and be prepared to wait, we'll see you when we can.

MRS L: Right.

DR V: Okay, Catherine?

MRS L: Okay.

DR V: Bye.

MRS L: Bye."

At the conclusion of that call Dr Vernon made the following entry for Mrs Learmont in the computer:

"17:18 25-Dec-1999 triage by Vernon, Fiona (TRIAGE): changed to PCC. Sore neck all day, fine red rash on arms. Would like an assessment. Will come to PCC."

"PCC" stands for Primary Care Centre, meaning in this case the Out of Hours Surgery.

The Consultation

[8] The evidence relating to the consultation itself came from the hearsay evidence of Mrs Learmont and the evidence of Dr Vernon, including her written note of the consultation. The note indicates that the consultation began at 17:57 and that the diagnosis was entered at 18:03. The note of the diagnosis reads as follows:

"Looks well. One tender gland on right of neck. Good ROM of neck. Fine non-specific rash on left forearm. Re-assured - early viral infection and observe."

[9] Dr Vernon graduated MB ChB from the University of Glasgow in 1982. She did her vocational training in Dumfries from 1983 to 1986. She obtained the Diploma of the Royal College of Obstetricians and Gynaecologists (which required a period of six months training in the speciality and the passing of an exam) in 1984. She was a part-time principal in a GP practice in Cumnock from 1986 to 1994. She then job-shared at the Thornhill Practice in Dumfries until March 1996, since when she had been a full-time principal there. She became (through assessment of her performance) a member of the Royal College of General Practitioners in 2003. Only 30 GPs have obtained membership in that way. She passed the assessment in consultation skills with merit, which was the highest attainable level. She had been a trainer of GPs since March 2002, having been a deputy trainer since 1986. Since December 1999 she had worked about ten times a year for the Dumfries and Galloway Out of Hours Service. Her principal interests were in training and in the Well Woman side of things. She had created a video lending library for the practice. One of the videos given to the practice related to meningitis, which was a very important condition. She had previously dealt with two cases of meningitis, one in 1998 and one in 1992. The 1998 case involved a home visit to a 15 year old girl who was clearly unwell with a sore throat, headache and feeling sick and whose curtains were closed. It was obvious she had meningitis. She was given antibiotics, taken to hospital and recovered. The 1992 case involved the 2 year old child of a friend, whom she immediately had taken to hospital by ambulance.

[10] Dr Vernon, who was called as the first witness for the pursuers, explained that on Christmas Day 1999 she was on duty in the Out of Hours Service in Nithbank, Dumfries from 3 pm to 9 pm. When she came on duty there was already another doctor on duty, who was replaced at 6 pm. Her duty was to take phone calls and phone patients back. The other doctor also answered the phone and possibly saw patients at the centre and in addition did the house calls. Phone calls were initially taken by the receptionist, who typed a note of the call into the computer. The note of the call was then read by Dr Vernon on the screen. Dr Vernon then called the patient back and herself made an entry in the computer. When she saw a patient in the surgery she also entered the details on the computer, and these details were faxed to the patient's home surgery the next day. She did not enter the time of any entry she made in the computer and she did not know if the entry was automatically timed by the computer.

[11] On Christmas Day 1999 Dr Vernon read on the computer the details of the entry made by the receptionist about Mrs Learmont, which I have set out above. She then phoned the Learmont household and spoke to Mrs Learmont as she wanted to hear the history of the illness in detail from the patient herself. Her recollection was that Mrs Learmont said she had taken unwell the previous night, had had a headache and been sick. Mrs Learmont was particularly concerned when she saw she had a rash, which had precipitated the call. Dr Vernon thought she should be seen at the surgery as there was the possibility she would be thinking about meningitis. She saw Mrs Learmont, who was brought through into the consulting room, at about 6 pm on Christmas Day. That was the first occasion on which she had seen Mrs Learmont. Dr Vernon then looked at each thing in turn, the rash first of all, pulse and temperature, the throat and neck, and ended by doing Kernig's sign. There was a large tender lymph gland on Mrs Learmont's neck at the right side of her jaw and movement of the neck to the right and left was particularly sore. When looking at the rash Dr Vernon asked Mrs Learmont to sit down and show it to her. Mrs Learmont pointed to her left forearm, where there was a red, almost salmony pink rash about 1.2 x 0.8 cm. Dr Vernon was satisfied that it was a blanching rash when she placed her thumb on it. Mrs Learmont told her that her children had pressed on the rash with a glass at home and seemed happy when Dr Vernon was happy that it was a blanching rash. Dr Vernon took Mrs Learmont's pulse and temperature. Mrs Learmont's throat looked OK when Dr Vernon shined her oroscope in it. When Dr Vernon asked Mrs Learmont to look to her left and right Mrs Learmont seemed a bit uncomfortable. Dr Vernon asked Mrs Learmont to look up at the ceiling and down at the floor and she was able to do so. Mrs Learmont lay on the examination couch for Kernig's Sign, which involved extending the hip joints and flexing the knee.

[12] In light of her examination Dr Vernon felt that Mrs Learmont had an early viral infection and that she had excluded meningitis. She accepted that meningococcal meningitis was an emergency and could be fatal, and that, as it was difficult to diagnose in its early stages, it was important to take a careful history and to do a careful and thorough examination of the patient. Symptoms of vomiting, headache and a sore neck should make a GP think about meningitis. It was important for the doctor to know the tempo of the illness - when it started and how it developed. The patient could have been perfectly well the previous day. If the doctor had a suspicion of meningitis, it was important to administer antibiotics and refer the patient to hospital. At the Nithbank Surgery they had benzo-penicillin and an appropriate alternative, and Dumfries and Galloway Royal Infirmary was only a few minutes away.

[13] On being referred to the receptionist's note (6/5 of process, p 39), Dr Vernon stated that "the first thing that passes through your mind is meningococcal meningitis with septicaemia". When the tape of the telephone conversation between her and Mrs Learmont was played, Dr Vernon said that she did not feel that Mrs Learmont sounded like someone who desperately needed the doctor as soon as possible and that she thought it was reasonable to ask her to come to the surgery as soon as possible. She was re-assured by the description of the rash. The conversation was not a detailed one, but only for the purpose of deciding whether the patient needed to be seen or not. When she said to Mrs Learmont "You're obviously up and about now" she was not trying to downplay the situation. She accepted that she did not ask Mrs Learmont how long she had been in bed or how long she had been up. When Mrs Learmont came to the surgery she said she had a headache, was feeling washed out and the development of a rash concerned her. Dr Vernon did not ask her if she had been sick during the night but she said she was still a little bit nauseous. Dr Vernon got the impression that things were improving as Mrs Learmont had not been sick for a number of hours and was up and about. Mrs Learmont told her that her throbbing and generalised headaches had started the previous evening and when she did get up she was finding it difficult to lift her head up off the pillow. Dr Vernon did not ask her if she had been in bed all that day or if she had anything to eat: she assumed that she had not had anything to eat. Dr Vernon did not ask Mrs Learmont about her social circumstances and did not think it significant that she had been in bed all of Christmas Day, but they talked about her past medical history, which was very little.

[14] The passage of Dr Vernon's evidence-in-chief dealing with her examination of Mrs Learmont's rash was as follows:

"Then if I can ask you about the rash, you said that you pressed it with your thumb? - Yes.

Is that right, and you told us that it was about one centimetre by just under one centimetre. Is that right? - Approximately.

And did you press on the redness itself? - Yes.

Did your thumb cover all of the redness? - It would do.

Did any of the redness remain at all? - Before I lifted my thumb?

Yes - no, after you lifted your thumb? - Possibly a little bit.

Were there any spots remaining within the general area of redness? - No.

Are you aware that there can be a type of rash which is a generalised red rash with petechial spotting inside it? - Yes, I am aware of that but there was no sign of that whatsoever.

And if it was a rash like that the non-specific part of the rash, the red bit would blanch but the darker spots would not. Do you agree? - I agree.

Do you agree that a better method for testing any rash is to use a glass, a tumbler, and press the tumbler against the skin? - Well, I don't think there is anything wrong with the method that I used, which is very acceptable by medical people. The glass test also works and that is what is taught to lay people.

Because you can see through the glass to see whether or not everything blanches or not. Is that right? - Yes.

Why did you not do the glass? - Well, it is not what GPs do. What you do is, you're pressing on it to see if the blood flows out of it and if you lift a finger quick enough there is a tiny delay before the blood comes back and makes the rash red again.

And did you ask Mrs Learmont - well I think you didn't ask Mrs Learmont - to undress so that you can examine the rest of her body for rash? - I asked her to show me the rest of the rash and she said - I don't understand this - but she said to me 'that's it' and I asked her again because I was surprised that she had said that.

You were surprised that she had said that? - Yes, because I expected that there was going to be more than one spot or more than one area.

But did you clarify with her what she meant? - Well, I asked her twice and she gave me the impression that this was the extent of the rash.

You asked - sorry. Just I am getting mixed up. What did you ask her twice? - To show me her rash. My impression was that there would be more than one what we call lesion, one rash, and when she showed me the one on her arm we dealt with that and then I asked to see the rest of the rash and she said 'that's it' and I asked her again because I thought ....

What did you ask her again? What were your words approximately? - I just asked to see the rest of the rash. I don't know what my exact words were but I thought she understood that I wanted to examine any other rashes that she had.

And it may have been of course that she did have rash elsewhere but she was not aware of it. Do you agree with that? - It could have been.

So, she may not have known that she had rashes elsewhere. Do you agree? - That is possible, but as I say I asked her twice over and she said that that was it.

But she cannot tell you of a rash she doesn't know of. You agree with that? - Yes.

And that would be why it is important for the doctor to ask the patient to undress and for the doctor to examine the rest of the patient's body? - Yes, I understand that.

So, for all you know there might have been a rash elsewhere or rashes elsewhere but you didn't look for them. Is that right? - This is correct because the examination didn't go any further but I certainly asked on two occasions to let me examine her.

Well, I'm sorry. What you said earlier was that you asked her to let you see the rash, the rest of the rash, and your evidence was that she said 'that's it'? - Yes.

You didn't say to her, well, you'd better undress so that I can check your back? - No.

Or the backs of your legs or anything like that. Is that right? - That's right.

And you agree that it is important that the doctor when suspecting particularly meningococcal meningitis to examine the patient's body to see if there are any rashes that the patient doesn't know about? - Yes, that's true.

And you didn't do that? - I didn't do that.

BY THE COURT: What did you think the rash was, Doctor? - Well, I termed it a non-specific rash, which means that it is not diagnostic of anything in particular - for example, shingles. It is a very definite rash that chicken pox has, but this red area could really have been anything.

So, you did not know what it was. Is that what it comes to? - It was not diagnostic of anything in particular and it is the kind of rash that we commonly see with viral infections. So, I sort of concluded that that was what I was dealing with.

That was the next thing I was going to ask you. Could a virus have caused the rash? - Yes, very much so but we do see that quite often and nowadays it is not unusual for patients to phone up particularly if they have got children and they have got a temperature, a bit of a headache and the minute that any rash of any type develops they phone up, and I think that that is because there is such an awareness of meningitis and septicaemia in the public now.

EXAMINATION CONTINUED: So, you're getting people phoning you up thinking that they have got meningitis because they have got some sort of rash and they come along and you tell them or look at them and it is not the meningococcal type of rash. Is that right? - This is quite a common scenario nowadays.

And is that what you thought in this particular instance had happened? - That was my conclusion, having examined her and talked to her. I didn't think she had meningitis or meningococcal septicaemia and I put it down to the early stages of viral infection.

The fact that the rash didn't blanch does not exclude meningitis. Would you agree with that? - This can happen, yes".

[15] Dr Vernon then went on to say that, in testing for neck stiffness, she also lifted Mrs Learmont's head up off the examination couch so that her chin touched her chest. That was done before the test for Kernig's sign. When asked by me what it was that caused her to exclude a diagnosis of meningitis, she replied that it was a combination of things - her first impression that Mrs Learmont did not strike her as someone who was worryingly unwell, the fact that the rash was a blanching one, that she did not have a fever or a rapid pulse, that her sore neck was explicable by a swollen gland and her feeling that things were not rapidly getting worse and if anything she seemed a bit better at that point than she had been earlier in the day. She was reassured by the way that Mrs Learmont spoke to her on the phone, the fact that she was able to drive to the surgery and the fact that when she came to the door of the consulting room she was not looking as if she had a stiff neck. She formed the view from Mrs Learmont's appearance that she did not have photophobia as it is something that is perfectly obvious when present. She did not look in Mrs Learmont's ears or examine her chest as she did not think it necessary to do so. She was concentrating mainly on whether it was a case of meningitis or not, and there were no symptoms suggestive of that. She thought Mrs Learmont was suffering from an early viral infection as that was the only explanation she could reach because she was feeling unwell and there was nothing very positive to find apart from the gland and the rash: she was happy with everything else. Very often a raised temperature was not found in a viral infection. There was no complaint by Mrs Learmont of a raised temperature, shiver or chill, muscle pain, wheezing, red or sore throat or a runny nose, symptoms often found in a viral infection. At that time there was no focus of infection. The reason she saw Mrs Learmont was to exclude meningitis and she was happy that it was not meningitis. There was nothing to support the diagnosis of meningitis requiring further assessment. Her conclusion, taking everything into consideration, was that this was not a case of meningitis. When she first saw Mrs Learmont , whom she had never seen before, she did not look seriously unwell. She put a lot of emphasis on first impressions. When she wrote the words "and observe" at the end of her note of the consultation she meant "wait and see what develops", or, in other words, if things changed the patient or a relative would get back in touch. She told Mrs Learmont that if she went on to develop a petechial rash (the nature of which she explained to her) she would obviously need to get back in touch with the Out of Hours Service and also to get in touch if she felt that things were getting a lot worse rather than better. In more general terms she told Mrs Learmont that if any of the symptoms seemed to get worse and caused her any concern to get back in touch. She said to Mrs Learmont that her condition might get worse before it got better but if she had any concerns to get back in touch. From the fact that Mrs Learmont had been in bed and sick and was now up and had come to the surgery she assumed that her condition was improving but she had no idea whether she would be worse later on or the next day or by the beginning of the week. She was in no doubt about her diagnosis of an early viral infection and if she had been in any doubt about it being meningitis she would, because of its serious nature, have referred Mrs Learmont to hospital. At that point in time she was confident in her own mind that this was not a case of meningitis. If she had had any real worry about Mrs Learmont having meningitis she would have referred her to hospital for further assessment, but she was perfectly happy to send her home. She firmly believed that if she had sent her to hospital she would not have been admitted and the receiving officer would have sent her home. If she had had any suspicion at all that it was meningitis the correct thing to do would have been to refer Mrs Learmont to hospital but she was 100% happy that she was not dealing with a case of meningitis and in her own mind had excluded it.

[16] Dr Vernon was asked about the timings on her note of the consultation with Mrs Learmont. She stated that she did not enter a time and she did not know how the computer worked but thought the timing "1757" was probably entered by the computer itself when she opened up the screen. Once Mrs Learmont left she entered the diagnosis, for which a time of 1803 was given. That tended to indicate that the duration of the consultation was six minutes, and it could possibly have been as short as five minutes or as long as seven minutes. She denied a suggestion that the taking of a history and the carrying out of an examination could not be done in a period of between five and seven minutes: she thought there was plenty of time in that period as she was taking the history and examining at the same time. In this particular case she already knew "what we were about" and, like Mrs Learmont, "was keen to have a look at that straight away", so Mrs Learmont sat down and she just proceeded from there, looked at the rash and moved on to the next thing and the next thing. What was in her mind was simply to exclude meningitis. As they went along she was addressing the rash, her neck and her headache at the appropriate time. Dealing with the rash, she said:

"Well, we looked at the rash together. I asked to see the rash. She put her hand forward and we looked at it together. I pressed on it and I reassured her that this was a good sign, that this was a blanching rash. She seemed to me to agree with that. She was happy with it anyway, and accepted that it was not a worrying rash. What I would be worried about if it was non-blanching, if it was like a bruise and wouldn't go away when you pressed on it."

She then moved on, put her thermometer under Mrs Learmont's arm and took her pulse. She then examined her throat using an oroscope and felt her neck and the gland. Mrs Learmont knew the gland was tender because she was moving away when Dr Vernon was examining it. She then got Mrs Learmont to move her head from left to right and up and down. She then got her to lie on the couch, explained what she was going to do and why she was going to do it, tested for neck stiffness by taking her head in her hand and moving her chin onto her chest and after that testing for Kernig's sign. It did not take long to do those things. The one question she was concentrating on was whether Mrs Learmont had meningitis or meningococcal disease and needed to be referred on. Her conclusion, given the history and findings, was that this was an early viral illness. She agreed that her note of the consultation was not adequate in that it did not record the history of the presenting complaint or the tests which she carried out. In explaining the terms of her note of the consultation she stated as follows in two separate answers:

"Yes, I will admit that this is not what I would normally do. It is not adequate, but there we go. It is what I happened to write on that night after seeing her, but it doesn't mean that I didn't do it.

...... There are things missing but that is not to say that I didn't do them. I think it kind of reflects my level of suspicion, that I was quite happy with this lady, wrote some things down and I expected that this is exactly where it would end and I wouldn't be standing here defending this."

In response to a suggestion that one interpretation of her note was that she never suspected meningitis at all from the start she stated that she could understand that as there was nothing written down, but she could give an assurance that she did. The shorthand "ROM" referred to movements to the right, left, back, forwards and roundabout - the normal movements of the neck. She wished she had written down that she had done the Kernig's test. She conceded that there was nothing in the note to say that she had considered meningitis and said she regretted "the poor notes that are here". It would have been better if she had written down that she had considered meningitis.

The evidence of the family

[17] The evidence of Lauren was as follows. The house in which they lived at the time was a three bedroom terrace house and her mother's bedroom was at the front upstairs. Her mother cared very much about her appearance: she got up an hour early just to put her make-up on, she always dressed smartly in a suit and her hair was perfect all the time. She was very kind, too kind, and had a cheerful personality. She was hardly ever off work: only when she was really ill did she take a day off work. On Christmas Eve 1999, which was a Friday, Lauren went into town with her mother to do last-minute Christmas shopping and they returned home roughly at dinner time (5 o'clock). After dinner her mother said she wasn't feeling too well, that she thought she had caught Scott's flu and went to bed roughly about 10 o'clock. Normally on a Christmas morning Lauren and Scott would get up and her mother would later join them to open their presents downstairs in the living room. That year they were planning on having Christmas dinner in the house, contrary to their usual practice of going to Aunt Anita's round the corner. Lauren and Scott got up about 9 am but her mother remained in bed. Lauren went into her mother's bedroom to see her. Her mother was not well at all and was complaining that she did not want to get up. She was going to open her presents later that day because she couldn't manage out of her bed, but she did not get out of bed at all and Lauren and Scott brought her presents up to her. She was complaining of a sore stomach, sore neck and feeling sick. One answer given by Lauren was in the following terms:

"She had a sore stomach and a stiff neck, well, sore neck, and complaining of feeling sick. So, she just wanted to lie there and she would open her presents later on that day."

When Lauren was asked if she knew that her mother might have been sick, she replied that she thought "she might have got up during the night because there was next to her at the side of the bed a basin containing phlegm, just phlegm". When she was shown the presents her mother did not move at all in bed and was not very interested in the presents. She looked very white, awful and tired, and she more or less just wanted to go to sleep. She had a few glasses of water to drink and asked for a wet flannel or towel. Her mother said to her and Scott that she was feeling fine, but they knew that she was not. She told them to go out. Lauren went up to visit her Aunt Annette and left Scott to look after their mother. A little while later Scott appeared there as well, having been told by his mother to go there because it was Christmas. Lauren then went back home and found her mother still in bed and worse than she was in the morning. She looked even more pale, like a ghost, just coughing and "she just looked really, really unwell". She was still complaining that she had a sore stomach and a sore head and was feeling sick. She said her neck was really stiff and sore, she could barely move it and "she also had a rash up her arms as well". Her mother said to Lauren that she also had a rash on her arms and was complaining of feeling unwell and sick and having a sore head. Lauren could not remember if the rash was on both arms but it was on her mother's legs as well, although she never saw it on her legs. Lauren looked only at the inside of her mother's left forearm. The detailed evidence of Lauren in the form of question and answer about the rash was as follows:

"And what did the rash look like? - Some of it was big, some of it was wee rashes like dots - not dots, but not blotches neither. I do not know what it looked like but there were some bits were big and some bits were wee on her arm.

And what colour were the big bits? - Kind of reddish - well, not red, red, but enough to know that it was a rash.

Pinkish? - Yes.

And what about the wee bits that you were talking about? What colour were they? - I can't remember what colour they were but it was enough to know that there was something there.

Were the wee bits the same colour as the bigger bits or were they a different colour? - I honestly can't remember.

And what did your mum say about this rash? - That because I had given her the glass of water that morning she had put the glass over it because she was worried herself because I don't think she had ever been that unwell before. She put the glass over her arm and she said 'I hope I've not got meningitis'.

Well, why was she putting the glass over her arm? What was she doing? - I don't know because I wasn't there at the time.

But did you know why she was doing it? What did you know about this? - Well, at school there had been talks about meningitis and there had been things on the television telling you about meningitis and what to do if there are symptoms there.

What did it tell you to do? - Well, the glass test, I knew about that.

Tell me about the glass test. What did you know about it? What was it that was important? - To roll it up your arm and press not too hard, not too soft, and if it faded away or it didn't.

And what was the significance if it faded away? - Well, I do not know. Probably you didn't have meningitis.

And if it didn't fade away, did that mean that maybe you did have meningitis? - Maybe it did. I do not know. It was still .... I had actually done it as well after my mum had said.

Right. When you did it then, did you roll the glass up and down her left forearm? - Yes, I did.

And what happened to the rash? - It didn't go away."

[18] Scott returned shortly afterwards from their Aunt Annette's house and she told him about the glass test and rash and how their mother was feeling. Scott then did the glass test a third time to make sure. The rash did not go away. He didn't know what to do, so he phoned Aunt Annette and explained what was wrong with their mother and she gave him the phone number for the Out of Hours Service. Scott then phoned the Out of Hours Service. Their mother was still in bed at that time but she got up when the doctor phoned back. Lauren answered the phone in the downstairs lobby and handed it over to her mother, who by that time had got up. Their mother agreed to go to the Out of Hours Surgery to see the doctor. She did not wash or shower and her hair was everywhere because she just got out of her bed and put something on so she could get there as soon as she could. She just looked ill - awful. All three of them went in the car to Nithbank. Their mother drove. When she was turning corners she couldn't move her neck: it was that stiff she had to ask Lauren or Scott if anything was coming from the right or the left. In the car park she parked as close as possible to the surgery because she could hardly walk, she was like an old woman and needed help to walk. Lauren thought they had to wait at least half an hour before their mother was called in to see the doctor. When she was called in to see the doctor she just looked awful, her face was white, she looked just white as a ghost, her hair was everywhere and she just didn't look the same. She was in with the doctor about two or three minutes, four minutes at the most, about three minutes. When asked whether her mother when she came out told her what the doctor had said, Lauren replied:

"I can remember her saying when we had got out ... asked her if she'd got anything or if she was .... what had got said and I can always remember her saying 'Oh, it's just a viral infection, the doctor said it will get worse before it gets better', and she said about her stiff neck that ..... something to do with her glands, that's why her neck was being stiff."

Her mother did not say whether the doctor had told her to call back if she got worse and made no mention of the rash. She had been advised by the doctor just to get plenty of rest.

[19] Her mother, Scott and herself left the surgery and went to Aunt Annette's house. They met Aunt Annette drawing up in her car as she had been to their house to see if their mother was in. Aunt Annette invited them in and her mother had to hold onto Aunt Annette so that the latter could help her walk a bit. Aunt Annette gave her mother paracetamol and then helped her mother back out to the car. Lauren stayed in Aunt Annette's house and walked home on her own at about 9.30 pm. When she got home she found her mother coming out of the toilet having suffered from diarrhoea and gave her a hot water bottle. Her mother said that she had diarrhoea and a really, really sore stomach and she looked worse than she had earlier. Her mother then went to bed. Lauren went to bed not long after. During the night she heard her mother coughing "like she was gasping for air or breath". She got up about 10 o'clock, half past 10, went downstairs to watch television, thought she heard her mother up, went to her room round about 11 o'clock to check and found her mother, who was lying in an awkward position, to be dead. Lauren then called on Scott and a neighbour and the ambulance and police were summoned.

[20] In cross-examination Lauren stated that when she did the glass test on her mother's arm she looked through the top of the glass and one side of it and was clear that the rash did not change, fade or disappear. She thought that her mother told her "maybe it could be meningitis". In the following passage of evidence Lauren explained how she knew about the glass test:

"Why was it you were doing the glass test? - Because of the rash on her arm. We had been taught at school about meningitis and the symptoms. So obviously I thought 'we'll have to try' because it had been going around about that time - meningitis.

Meningitis had been going around? - I mean a young boy had died of it and I thought 'Well, I'm going to have to try and see (inaudible)'.

So it's something you were aware of from school and also from the death of a boy ... was this in the neighbourhood or Dumfries or ... ? - It was in Dumfries, yes.

So you would know pretty well, wouldn't you, what you were looking for? - I didn't know what exactly everything was but (inaudible) if the rash is still there that's one of the symptoms.

Right. So, just to be clear about this, did you know that if the rash didn't go away that would tend to indicate meningitis? Is that what you were thinking? - That's what I was thinking at the time."

When Lauren came into the house her mother said to her that she had done the glass test and Lauren thought she would check in case her mother was not seeing it properly. Scott later rolled the glass on their mother's arm and when it did not fade they didn't know what to do so they phoned Aunt Annette. Lauren knew from the fact that the rash did not fade that her mother either had or might have meningitis, which was potentially life-threatening. She knew it was a very, very serious matter: that was why Scott phoned their aunt and then contacted the doctor. Lauren never saw a rash anywhere on her mother's body apart from her left inner arm. Her mother had said to Lauren when she came in that "she had now got a rash on her arms". When Lauren did the glass test the bedroom light and, she thought, a side lamp were on and her mother never said that she had any trouble with the light being on. The light had been on when they had spent about an hour opening their presents. Lauren would have had to put the light on when she returned to the bedroom to do the glass test. The bedroom light was on throughout the 30 to 45 minutes she and Scott were in the bedroom. She was quite sure that the glass test was done three times and she was not just making up the fact it was done three times to "beef up her case". She could not explain why, in the statement she gave to the police at her home just after noon on 26 December, she did not mention any glass test having been done. She was 14 at the time and didn't know what was going on, she couldn't remember everything because she was that young and had just lost her mum. There was no mention in the police statement of helping her mother to drive, having to wait at the surgery, of her mother saying that the doctor told her she would get worse before she got better, of her mother coming out of the toilet and the house smelling of diarrhoea or of her mother having a stiff (as opposed to a sore) neck. She was hysterical at the time. Her mother's neck was sore and stiff. When she was driving to and from the surgery the difficulty which she had was turning her head from right to left. She managed to drive home from Aunt Annette's house without any assistance, turning corners up to possibly seven times. The headlights of other cars did not affect her mother's ability to drive. The waiting room at the surgery was fairly well lit and when her mother was called through to the consulting room she went through on her own, just taking her time. She was not in the consulting room long. As Lauren put it, "It was just like she went in and then she was straight back out." She was not painting an exaggerated picture of how unwell her mother appeared. Her mother looked really unwell. It was correct, as she had stated in her police statement, that her mother had said in the afternoon that she was feeling a wee bit better than in the morning but not much: she would just say it anyway because she and Scott kept asking her how she was, that was the kind of person she was. After the death of their mother she fell out with Scott because he accidentally broke her nose when they were "mucking about" in his room. Scott then went to Cyprus to work, after which he returned home. They had both lived together there since then.

[21] Scott Learmont said that he had his seventeenth birthday on 18 December 1999. His mother was an attractive woman with a bubbly personality who cared about her appearance, liked to be well-dressed, normally wore make-up and looked after her hair. She was not someone who easily took a day off work because she was not feeling well. In December 1999 he had been off work with the flu. On the evening of Christmas Eve he went out for drinks with his workmates and then went home. He did not think he saw his mother that night. When he got up on Christmas morning his mother was in bed. She said that she wasn't feeling very well and she just wanted to lie down for a while. She looked kind of pale, not very well. He had previously seen his mother unwell, but not to the point where she couldn't get out of bed. When he first went in to see her she was lying on her back and mentioned she had a sore head. There was a bucket next to her bed. The Christmas presents were opened in her room, but she was not particularly interested in them and was not moving at all in bed. He thought Lauren got her a glass of water. At roughly one o'clock he went out to see his cousin Gregg, Aunt Annette's son. Lauren had already gone out and his mother told him to go out. All she wanted before he left was water. He returned about 4 or half past 4, by which time Lauren had already returned. He went to see his mother in bed. She was feeling sick and had a sore head. She also had a sore neck and a rash on her arms and legs. He saw the rash on her left arm but did not look at her right arm. The rash on her left arm was "just all over, kind of scattered" on the inside of her arm. It looked like "spots if you like - red spots", some of them were in clusters. Lauren mentioned the glass test so they just pressed a glass against it. He had never heard of this glass test. Lauren said "if the rash didn't go away they were symptoms of meningitis". When he pressed the glass against his mother's arm and rolled it up the rash stayed. He was worried. He did not know a lot about meningitis, just that it could kill. He then phoned his Aunt Annette, who gave him the number for the Out of Hours Surgery, which he then phoned. The call had been precipitated because of the rash not going away plus the fact that his mother would always get up for Christmas, so he "knew that something was up". When he phoned the Out of Hours Service he phoned from the telephone in the lobby and his mother was upstairs in bed. When the tape of the phone call was played to him he stated that he thought his mother would have told him that she could not move her neck. When the doctor phoned back his mother spoke on the phone in the lobby and was dressed "in her sleeping clothes". He was not too sure, but he thought she got up to speak to the doctor on the phone. She had not been up very long, maybe 5 minutes, when she spoke to the doctor on the phone. At the end of that phone call his mother said they had to go up to the surgery and she put on her clothes without getting washed. She did not put on her make-up. She looked pale, unwell, not her normal self at all. When his mother was driving to the surgery she couldn't really turn her head, so he and Lauren had to give her directions if she wanted to turn left or right. She said her neck was sore. At the surgery they were in the waiting room roughly about ten minutes before his mother was called in to the consulting room. She was in seeing the doctor not long, about five minutes he thought, if that. When she came out he asked her if she was going to be OK and she replied "Yes, the doctor said it will get worse before it gets better". She said that the doctor told her she had a viral infection. He was pleased at the fact it was a viral infection and not meningitis. She said the doctor had told her to go and get some rest and that the rash was caused by the viral infection. The three of them then went to Aunt Annette's house, roughly ten minutes drive from the surgery. They met Aunt Annette outside her house and went into her house. His mother was in the house only a couple of minutes because she just wanted to go to bed and sleep. He stayed with his cousin Greg and returned home the following morning about 3.30 am. On arriving home he heard his mother coughing in bed and went in to see her. She was just sitting up coughing and said nothing at all to him. He asked her if she was OK but did not get any reply. He thought she was just coughing so he went to bed. He could not remember if he put the light on in his mother's bedroom. The next thing he remembered was Lauren, who was hysterical, coming to wake him up at about 10 or half past 10 in the morning. He got up, went into his mother's bedroom, touched her and found she was cold and then phoned an ambulance. Lauren went next door to get their neighbour Mrs McQuaid, a nurse. The ambulance and the police came and his mother was found to be dead. A while after that he went away to Cyprus to work for six months. He returned to live with Lauren at 4 Lorimer Crescent, Dumfries, where he had lived since then.

[22] In cross-examination Scott said that he went to Cyprus because he and his sister were arguing and he punched her and broke her nose. The argument was not about the circumstances surrounding his mother's death, but just because they were staying in the house together. When they opened the presents in his mother's bedroom on Christmas morning he would think the lights were on. Before he went out on Christmas Day he asked his mother and she said "Just go and enjoy yourself". When he went out with his cousin on Christmas Day he was dancing and drinking and returned home about 3.30 am on 26 December, by which time he had had a lot to drink. When he had returned to the house on Christmas afternoon Lauren said to him that their mother was not well and that she (Lauren) had done the glass test. He honestly did not know what it (the glass test) was about. When asked what Lauren said he replied:

"She said she'd seen it on TV - I don't know - or something and you push a tumbler against the skin and if the rash disappears you're OK and if not .... could be meningitis."

He thought his mother had done the glass test before his sister but he was not sure. Lauren told him that when their mother had done the test the same had happened as when Lauren had done it. When he did the glass test he found "just like a rash that was kind of clumped up and you just pushed against it - the glass against it - and it didn't go away, it was still there." The rash looked like red spots dotted about over the forearm, just some here and some there. Even if he had not got the result he did with the glass test he would have phoned the doctor because his mother was not well. When it was put to him that the rash did in fact fade when he did the glass test he denied that that was the case, adding "there was red dots and they didn't go away". The doctor could not have missed the rash scattered over the forearm. His mother said that she had a sore neck which hurt when she tried to move it. It was sore for her to turn her head from side to side when she was driving. He corrected what he said earlier about Lauren linking arms with their mother when the latter was called into the consultation room and explained that the linking of arms was from the car to the waiting room (which was quite brightly lit) and that his mother walked into and came back from the consultation room on her own. All he could remember his mother saying was "I've a viral infection, it's going to get worse before it gets better". When he said to her "What about the rash?" she replied "That's the viral infection, it will get worse before it gets better". He could not remember her mentioning a gland on her neck. He accepted that in the statement which he gave to the police on 26 December he said that when he came home about 3.30 on Christmas morning his mother was not responding to him and was gasping for air.

[23] Annette Layden was the elder sister of Mrs Learmont by six years and an auxiliary nurse working nights at a home for the elderly. According to her Mrs Learmont cared about her appearance "very much so", normally wore make-up and was always smartly dressed. She had a nice personality, could be quite bubbly sometimes, and was a caring person. On Christmas Day 1999 Mrs Layden received a phone call after 6 o'clock (the time given was obviously wrong) from Scott who said that his mother was not feeling well, had been feeling sick and had terrible headaches and a stiff neck. He also said she had a rash on her arm, which made her say it sounded like meningitis. When Scott had come down earlier at 1 o'clock in the afternoon he had told her his mother was not well and in bed and there would be no Christmas dinner that day. This was not normal for her sister, who, even if she was not well, would never stay in bed or be off work: she was always up and about. Scott said to her on the phone that they had done the tumbler test and that the rash still showed through. Scott wanted her to go up to the house but she thought it was better to phone the doctor first and gave him the phone number for the doctor. She rang back about ten minutes later to find out what was going on and there was no answer. She was worried and therefore got into her car and drove to her sister's house (about four minutes drive away), where she found a light on but nobody in. After making inquiries from a neighbour she drove home and discovered her sister's car behind her as she pulled up outside her own house. Her sister got out of her car herself and then she linked arms with her to walk into the house. Her sister was not looking well at all, she was very pale and her hair was just hanging limp like a rag doll: she said that she was feeling nausea, headaches, a stiff neck and that she had a rash on her arms. In the kitchen she looked at the rash on the inside of her sister's left forearm. Her description of the rash was: "It was a pinprick, it wasn't bright red, it was a wee bit paler". As her sister was complaining of a terrible headache she gave her a packet containing three remaining paracetamol tablets. Her sister said that the doctor had said it was a viral infection and that she wasn't given anything, just to go home and told it would get worse before it got better. She told her sister she would phone her the next day and her sister went home. She was in the house only a few minutes. The following morning when she was in bed after doing her night shift one of her sons came into the room and told her Scott had phoned to say there was an ambulance at the Learmont house and she went up straight away and found her sister dead. She thought that when she went into her sister's bedroom she said something like "I don't understand this viral infection, she had all the symptoms of meningitis". Scott and Lauren were upset. Asked about how long it would take to drive between her sister's house and the surgery at Nithbank, Mrs Layden she had driven the route and it took roughly seven minutes, as did the drive between the surgery and her own house. After Mrs Learmont's death Lauren came to stay with Mrs Layden for about six months and her son Greg went to stay with Scott. When Lauren returned to stay with Scott they did not get on and he went off to Cyprus.

[24] In cross-examination Mrs Layden stated that when she saw her sister on Christmas Day she was very limp, just sort of very unwell looking. When Mrs Learmont came into the house she said that she wasn't feeling well, she had a headache and Mrs Layden told her that she looked awful. The fluorescent light in the kitchen was on. The rash on her left forearm was scattered about from the wrist to the elbow and fairly obvious: she did not have to have it pointed out to her. When Scott had phoned in the afternoon he told her he had done the glass test and later on (not that day) he told her that Lauren had done it earlier. Her sister mentioned that the doctor had said it was probably a swollen gland in her neck and touched the side of her neck. She was very concerned about her sister going home on her own. She thought it could not be meningitis because the doctor had sent her home and not given her anything. She accepted that in her statement to the police there was no mention of the doctor having told her sister she would get worse before she got better, nausea, headaches, stiff neck or a rash on the arm.

Evidence of others involved in events

[25] Mrs Dawn McQuaid, the neighbour of Mrs Learmont, was a registered general nurse who had qualified in 2001 and become a staff nurse. In 1999 she was a student nurse and lived at 8 Lorimer Crescent, Dumfries. She had met the Learmonts not long after she moved there in 1996 and Lauren was a friend of her daughter Louise. On 26 December 1999 Lauren phoned to say that her mother was lying in bed cold and that she could not wake her. Lauren asked her to come round. When she went to the Learmont house Lauren was at the door waiting for her very upset and crying. She went up to the bedroom with Lauren and Scott, approached the bed, shouted Mrs Learmont's name and received no response. She then pulled the quilt back, saw that Mrs Learmont was not breathing and felt no carotid pulse. She chased the children from the bedroom as they were hysterical and she wanted to assess the condition of Mrs Learmont. Mrs Learmont was half on her back, half on her left side and stiff and cold. She knew that Mrs Learmont was dead and shouted on the children to call an ambulance, which arrived not long after. The ambulance personnel put a monitor on her "and there was nothing". She then went downstairs to tell the children, who were inconsolable, particularly Scott, who was hysterical. When she had pulled back the quilt she found "a mottling kind of appearance" and "darker discolouration" on Mrs Learmont's skin. She didn't know where, but her forearms and thighs were visible and it would have been one of the two. Mrs Learmont's left arm was covered by her body. The discolouration was like dark red bruising and she did not know if it was in more than one area. There was a bucket or basin by the bed but she did not look to see if there was anything in it. In cross-examination Mrs McQuaid said Mrs Learmont was wearing a knee length dressing gown with a tie in the middle. She was looking at Mrs Learmont to see if she was still alive and probably not paying much attention to the mottling or bruising, which she noticed in passing.

[26] Detective Constable Steven Saunderson attended at the Learmont house upon the death of Mrs Learmont. He found her lying on her back in bed with the covers thrown off. There was a bucket beside the bed with bile or vomit in it. He seized it and thought he took it to the mortuary. Lauren told him his mother had gone to the Out of Hours Surgery with a sore head, stiff neck and a rash, which was of particular concern. He particularly remembered that they (Scott and Lauren) said they'd carried out the test on Mrs Learmont's arm (he could not remember which arm) and he thought they had indicate that the rash had not disappeared. He took statements. When taking a statement he just basically got the person to relate what occurred and then repeated it. He read it over to the witness to make sure the contents were accurate and more often than not he got the witness to sign it. He noted the time of the statement in the margin of his notebook. He thought Scott's statement was short because he was particularly distressed. On Monday 27 December 1999 he contacted Dr Vernon by telephone to ascertain certain facts as she could recall initially and to make an appointment to take a statement from her. He noted what she said on the phone in his notebook (6/19 of process) as follows:

"On 25 December 1999 I was the duty doctor for the Out of Hours Surgery, Nithbank Hospital, Dumfries. I was rostered on from 3 pm until 9 pm that day. I was triaging all day, which means that I take calls from patients (and) give advice to them over the phone after taking their symptoms from them. Once I have all the information I decide whether I can give advice to the person or whether I need to examine them.

About 1707 hours on 25/12/99 I took a call from a Catherine Learmont of 4 Lorimer Crescent, Dumfries.

There would be a tape recording relating to this call which would document exactly what Miss Learmont said.

Miss Learmont attended for examination and I had no concerns for her at that time. She looked well. I found that she had one tender gland on the right of her neck (and) a fine non-specific rash on her left forearm. I reassured Miss Learmont that she did not have anything other than early signs of a viral infection."

[27] On Tuesday 28 December 1999 he took a statement from Dr John Brian Cathcart (54), who had attended at the Learmont house on Mrs Learmont being discovered dead there. Dr Cathcart's statement read as follows:

"On Sunday 26 December 1999 I was on duty from 8 am to 1 pm at the Out of Hours Doctors' Surgery, Nithbank Hospital, Dumfries. On that morning a call was received in our vehicle. I was actually out in a house on a call. We have a driver and he sits in the vehicle while I do the calls.

When I got back into the vehicle the driver told me we had an urgent call to go to, the sudden death of a female. He told me that the ambulance staff were already there or were attending.

On arrival at 4 Lorimer Crescent, Dumfries, where the death had occurred, I spoke to a police officer and then I spoke to the ambulance staff, who told me the circumstances and what they had done. I then briefly examined the female who had died in bed, and from the examination I concluded that no obvious cause of death was apparent. There was no evidence of any struggle or signs that the female had been in extreme discomfort.

I pronounced life extinct at 1140 hours. I spoke briefly to the family members of the deceased female and I spoke to a police inspector who informed me that he had contacted the duty police surgeon.

After I had spoken to the family members they told me that the female had been at Out of Hours the previous evening, at which time she had had a rash on her arms and legs. I then went back up to examine the female again but found no signs of any rashes.

With meningitis the rash does not fade after death, but there was no sign of any rash during my examination."

[28] At 1715 hours on Tuesday 28 December 1999 he noted a statement from Dr Vernon in the following terms:

"I was on duty as a triaging doctor from the hours of 1500 to 2100 hours on 25 December 1999 at the Out of Hours Surgery.

Triaging means that I take calls from people, give advice over the phone or if I feel I need to see somebody I invite them to attend at the surgery in Dumfries if they are local. If it is out of the area a doctor will attend from the area if required.

About 1707 hours a call was received from a Scott Learmont of 4 Lorimer Crescent, Dumfries, who stated that his mum Catherine Learmont had been unwell all day, had difficulty moving her neck and had a rash. This first call was taken by Susan who is a telephonist. I phoned back at 1716 hours and spoke to Catherine Learmont. Mrs Learmont sounded fine on the phone, although she said her neck was really sore and she had a rash on her arm, and could somebody come out and look at her.

My job then is to decide whether the person really needs to be seen, to get a bit more information on the symptoms, if advice can just be given over the phone or whether an examination is required.

We then discussed the symptoms and then I said if she could either get a taxi or had transport I would have a look at her. Mrs Learmont was agreeable to this and said she had transport and would attend. I told her I didn't think it was anything to unduly worry about and that I couldn't be 100% sure of what it was until I saw her.

She attended and I examined her at 1757 hours. The first thing I thought initially when I saw her was that she looked fine. I then checked the movement of her neck and it appeared fine. She had a good range of movements of the neck and wasn't in too much discomfort at all. The only thing I found was one tender gland on the right side of her neck.

She then showed me a small red rash, about 5 cms x 5 cms on the inside of her left forearm, fine red dots. The next thing I did was pressing my finger on the rash. The rash disappeared and then came back. With meningitis the rash stays and it's called non-blanching. This rash was not non-blanching and the patient smiled and agreed with this as she'd already tried this.

I reassured Mrs Learmont that everything was okay, that it was probably just a viral infection and she was happy with that.

I told her to keep an eye on it, get some rest and take some paracetamol, and if anything else developed to let us know.

She wasn't given any medication at this time.

In my opinion Mrs Learmont was not too unwell. I definitely did not think she had meningitis as the symptoms did not support it. I was extremely surprised to hear on 27 December 1999 that Mrs Learmont had died and was very upset by this."

[29] In cross-examination Constable Saunderson said that he thought it was the children who had brought up the possibility of death by meningitis. He thought it was the daughter who had carried out the glass test on Mrs Learmont . The description was of a rash on the left arm.

[30] Louis Stankovitch was a Paramedic Team Leader in the Scottish Ambulance Service in Dumfries with over 22 years experience. He was called to the Learmont house at 1109 hours on 26 December and commenced treatment on Mrs Learmont at 1116 hours. She was lying on her left side on the right side of the bed. She was absolutely still and he could tell by her pale facial colour and touching her that she had been dead for a while. She was cold and rigid to touch and in the early stages of rigor mortis. He could see post mortem staining on her legs and arms. There was sickness on her clothing and a bin beside the bed.

Medical evidence of consultants

[31] The post mortem examination of the body of Mrs Learmont was carried out by Dr I H Gibson, Consultant Pathologist, at the mortuary of Dumfries and Galloway Royal Infirmary at 0815 hours on Wednesday 29 December 1999. The cause of death given in the autopsy report (6/13 of process) is acute meningitis (consistent with bacterial infection - organism not isolated). Included in what he found on external examination of the body were hypostasis on the back, focally on the front and slightly more to the left than to the right, absence of rigor mortis and faint freckling of the skin of both arms. The brain weighed 1170 g, no obvious abnormality was identified on the surface or on sectional examination and in particular no significant quantities of pus were identified. On histological examination acute inflammatory exudate was found on the surface of the cerebral cortex and cerebellum indicating acute meningitis of bacterial origin. Gram stain was not conclusive and apparently associated with artefact. (Gram staining is a method of differentiating bacterial species into two large groups, Gram positive and Gram negative, based on the chemical and physical properties of their cell walls. The method is named after its inventor, the Danish scientist Hans Christian Gram (1853-1938), who developed the technique in 1884. On the Gram stain process being applied Gram positive bacteria appear blue or violet under the microscope, while Gram negative bacteria appear red or pink.) The lungs were expanded and touched each other over the upper part of the heart and the ascending aorta. The left lung weighed 570 g and the right 520 g. They were congested and slightly oedematous. The adrenals were unremarkable and in particular showed no evidence of haemorrhage. In the heart there was focal minimal myocardial fibrosis and a single small subendocardial collection of polymorphs. In his Commentary at the conclusion of his report Dr Gibson wrote as follows:

"In my opinion death was due to natural causes resulting from acute meningitis (inflammation of the lining of the brain).

This condition would explain the clinical symptoms and sudden death. The patient had suffered from a 'flu' like illness with headaches and a stiff neck. While the latter may have been suggestive of the condition, they are not necessarily specific, being present in other infections such as influenza and other viral diseases."

[32] In his oral evidence Dr Gibson explained that the body of Mrs Learmont had been kept in the mortuary fridge. He had carried out a brief external examination of the body and an examination of the brain and skull on Tuesday 28 December 1999 and carried out a full post mortem examination the following day. He looked for thickening or pus on the surface of the brain. On the Tuesday he took swabs of the brain. On the Wednesday his more experienced mortician thought there might have been thickening of the meninges. He did not see a large swollen gland in the neck: if he had seen it he would have recorded it. He saw no rash, but he could have missed it if it were covered by the change of colour on an area of hypostasis. The pus that he saw microscopically was substantial and widespread on the pieces of tissue that he looked at, varying between 6 and 30 cells. When he saw it he thought Mrs Learmont had had meningitis, contrary to his preliminary view that she had died of an acute asthmatic attack. In cross-examination he said that if there had been a rash that is something he would have expected to notice. He had previously seen petechial rashes on legs at post mortem and he would have expected to see one on an arm or both arms and on a leg. The glands were among the soft tissues of the neck, to which he was not paying particular attention and it is possible that he missed a swollen gland. A well-known complication of septicaemic meningitis was damage to the adrenal glands, more common in the case of meningococcal meningitis, but he would not necessarily have expected to see such damage. In re-examination he stated that at autopsy he would see or feel a very large swollen gland under the right jaw which felt swollen to the touch and restricted neck movement to right and left and record that. A rash on the left arm might not have been conspicuous if there were lividity there.

[33] Dr David Breen was the medical consultant responsible for public health in the Dumfries and Galloway area. He had been in that post since 1988. The public health management of meningitis was absolutely fundamental to his function. There existed a Control of Infection Committee on meningitis which issued a manual to all general practitioners. In 1999 there were over 300 copies available and it was now issued through an Intranet. It was also issued to schools through the Director of Education. In a case of bacterial meningitis he had to establish, by confirming the diagnosis with the laboratory, whether it was a case of meningococcal meningitis. He had to ensure that the source of the infection was eradicated by distributing antibiotics to family contacts to stop any secondary case. The Meningitis Research Foundation disseminated information about meningitis, particularly to children and students. The pamphlet 6/28 of process was an example of the literature they published and they also published more elaborate booklets and large posters. Many children, including his own, were familiar with the tumbler or glass test. In the year 1999 he had had six cases of meningitis in his area. There were two fatalities that year - a 13 or 14 year old schoolboy at Dumfries High School in May and Mrs Learmont in December. The schoolboy was the son of a prominent businessman who started a fund in his memory and the death gave rise to a lot of public anxiety and there was extensive media coverage. The Meningitis Research Foundation visited Dumfries High School to give out information about meningitis. Pneumococcal infection had no public health significance as it had no effect on anyone else.

[34] Professor Anthony Busuttil was Regius Professor of Forensic Medicine at the University of Edinburgh and a full-time forensic pathologist for the previous 18 years, carrying out approximately 1300 autopsies per year. He had about one case every four weeks of a person suspected of having died of bacterial meningitis. So far as Mrs Learmont was concerned, he had studied the post mortem report and the other medical notes relating to her condition. Most cases of meningitis at post mortem were bacterial meningitis, but you could have viral meningitis as well. The bacterial infection started in a variety of ways, usually in the nose or throat, and then went into the blood stream. Certain bacteria homed in on the meninges. Septicaemia occurred when specific types of bacteria in large numbers divided in the blood stream and overwhelmed the blood and defence systems, producing poison. Most cases of meningitis were due to specific organisms. Staphylococcus and streptococcus were in the Gram positive group. Gram negative bacteria caused meningococcal meningitis and septicaemia. You could develop meningitis on its own. It could be secondary to septicaemia or the other way around. Death was a combination of two things - meningeal irritation and inflammation, which clogged up the circulation around the brain and in simple terms produced pus. In a case of bacterial meningitis and septicaemia you had an insult to the brain itself and poison to the other organs. In death meningitis was something which the pathologist could see with the naked eye: the meninges were clouded with pus. On being referred to the autopsy report on Mrs Learmont, Professor Busuttil pointed out that the longer after death the body was autopsied the more it changed. The bacteria would not like the fridge. So far as the time of death was concerned, Mrs Learmont must have died very soon after she was seen alive at 4 am on 26 December 1999, possibly within the hour. He had looked at the slides of the brain. There was no question at all she had a well-established meningitis, with loads of pus cells surrounding the brain. The cause of death was acute meningitis of bacterial origin. The meningitis which she had was, in his words, "enough to kill an elephant". In his report Dr Gibson had mentioned micro-abscesses in the kidney and a bit of pus in the heart, so there must have been pus elsewhere, suggesting a septicaemic process associated with the meningitis. He could not say what Mrs Learmont's symptoms would have been at 6 pm on 25 December 1999, but headache, stiff neck and sickness would be entirely consistent with meningococcal meningitis as a cause of death and it was more likely than not that she would have had a raised temperature or fever and a raised pulse rate. A petechial rash pointed to meningococcal meningitis. Staphylococcus and streptococcus could both produce a rash, including a petechial one, but a petechial rash was far commoner in meningococcal disease. A petechial rash consisted of pinky pinpoint-sized spots. It could be missed by the pathologist at post mortem examination, depending upon where it was situated on the body. Even where a clinician has said there was a rash, a pathologist may not find it at post mortem in a good light. That would be even more so the case in a less well-lit bedroom. Rashes were difficult to see at post mortem. It could be difficult sometimes to distinguish a bruise from lividity on post mortem examination. The rash could fade post mortem but it should not disappear completely because it was due to haemorrhage and the staining could not be removed but changes in the colour of the skin post mortem might obscure it and a pathologist had to search very carefully for it. There was no mention of a rash in Dr Gibson's report, but that might be because it was obscured or limited by lividity or because it had faded. If somebody had mentioned a rash the pathologist would be looking for it. He would have expected a rash to be visible at 10 or 11 am on 26 December 1999 and for a GP to have found it then. He would not have expected him to find any rash other than a petechial one as any other rash could have faded. The doctors should have found a petechial rash but the fact they did not do so did not mean that it was not there. The adrenal glands were not necessarily destroyed by meningitis. Dr Gibson had said that on microscopy petechial haemorrhages were present. The absence of gross findings in the adrenals did not in itself exclude meningococcal meningitis. Engorgement of the meningeal blood vessels was not recorded: in meningococcal meningitis it was found more often than not, but not invariably. He would have expected the pathologist to have found a swollen gland at post mortem examination as he must have dissected the neck very, very closely. Having viewed the brain slides he was of the view that the meningitis produced the septicaemia as there was massive inflammation of the brain and only micro-abscesses. There were loads of pus cells visible on microscopy, which suggested to him that the pus should have been visible to the naked eye. The absence of a petechial rash and adrenal damage, Mrs Learmont's age group and the existence of micro-abscesses pointed away from meningococcal infection.

[35] Dr Robert Masterton was a Consultant Microbiologist and Medical Director with Ayrshire and Arran Health Board. He explained that in meningococcal disease the patient acquired the organism, it colonised at the back of the throat, went up through the ethmoid plate to the meninges and infected the brain. Alternatively, it travelled into the bloodstream and then infected the brain. The bacteria started to multiply in the meninges and the body fought the infection by polymorphs or leucocytes being attracted to the bacteria and causing pus resulting in headache, nausea, vomiting, photophobia, a stiff neck on flexion and swelling of the brain resulting in death. If the bacteria went into the blood stream that was called SIRS and if the antagonists were not successful in keeping the cascade under control that resulted in serious sepsis and death. The same development occurred in pneumococcal disease. He had looked at the brain slides, which showed clear evidence of meningitis with polymorphs. He was not able to detect any organisms, and therefore could not say if they were Gram positive or Gram negative. He arranged for a further test known as the Polymerase Chain Reaction (PCR) test, which detected a small amount of DNA from the organism and multiplied it. He also had 15 samples of adrenal gland. He tried to detect the three main causes of adult meningitis but the result was negative. The material in question was not ideal as it had been processed at post mortem and fixed for histology and so the test was not a conventional one, but it did not invalidate the conclusion in the post mortem report. There was definitely a clear inflammatory process in the brain. All three types of organism caused rapid death within a few hours and had a similar presentation. In a case of septicaemia he would expect the patient to have a rise in temperature, a rapid pulse and a drop in blood pressure and, after the cascade, organ failure in the heart, lungs, kidney, liver or brain. He had never come across a case of meningitis where there had not been an abnormal temperature or pulse (in either direction). In the early stages of meningitis there was a general malaise like flu. A non-specific rash tended to consist of generalised fine spots which blanched on pressure. A purpuric rash was purple in colour but could appear red like fresh blood in the early stages, the lesions varied in size but could be larger, were fewer in number and more scattered in distribution and did not blanch under pressure. For the rash to blanch it had to go pure white: if redness remained it could be an early purpuric lesion. It was best to do the test with a glass as you could see the area you were pressing on. He did not think it was possible to comment on the evidence of Dr Vernon on her examination of Mrs Learmont's rash as what she described could be the return of blood after the removal of pressure. It was possible to have a non-specific rash and a petechial rash in the same area. A non-specific rash could vanish after death. Very, very few infections could cause a petechial rash.

[36] When the symptoms of Mrs Learmont on 24 December were put to Dr Masterton he expressed the view that she was presenting with the early stages of an infection, although it was not possible to say what the infection was. Her symptoms of headache, nausea and vomiting on 25 December suggested the involvement of the brain and in the course of the day the infection was getting gradually worse. He would have expected her to have had an elevated temperature and rapid pulse at 6 pm and thought that at that stage she might well have been showing signs in her neck of pain and resistance on flexion. He would have expected her to look particularly unwell, whether the infective organism was pneumococcus or meningococcus. He would have expected her to have had the signs and symptoms of meningitis 12 hours before death and believed it would have been clear that she had meningitis. Even if she had only a viral illness he would have expected her to look unwell (but not as unwell as she would have looked with meningitis) with raised temperature and pulse. With a viral infection it tended to be multiple glands that were swollen. A bacterial infection in the throat would be visible. If Mrs Learmont had been sent to hospital at 6 pm on 25 December and appropriately treated for meningitis or meningitis and septicaemia she would have been likely to have survived as there was an 80% survival rate.

[37] In cross-examination Dr Masterton stated that a purpuric rash took weeks to disappear. He would have expected it to be seen at post mortem, even three or four days after death. He would not recognise "pink" or "pinkish" as a description of a purpuric rash. Scott's description of the rash as "a pinprick, it wasn't bright red, it was a wee bit paler" sounded like the description of a non-specific rash. Lauren's description of "red spots, just all over, kind of scattered" sounded like the description of a non-specific rash. Her earlier description "some of it was big, some of it was wee rashes like dots, the big bits were pinkish" could refer to a mixture of purpuric and non-specific rashes. Blotches were not characteristic of a purpuric rash, and he would be much more interested to know whether it blanched or not. The words purpuric and petechial were synonymous. A purpuric rash was particularly associated with meningococcal septicaemia. It could appear before your face in minutes. In his consultant career he had been involved in hundreds of cases of meningococcal meningitis and in three cases in the previous two months. He would expect a doctor being aware of the possibility of meningitis being a cause of death to look for a rash on the body and to find it. Post mortem lividity could obscure a purpuric rash, but he would expect an ordinarily competent GP or pathologist to observe it. He had looked at the same pathology as Dr Doyle (see below) and was unable to identify any Gram positive organisms. He therefore did not agree with Dr Doyle's statement that "the Gram stained preparations showed small Gram positive bodies, most attached to small threads, which were probably small cocci". He was more competent to judge micro-organisms than Dr Doyle and he could not say if the organisms were Gram positive or Gram negative. In cases of meningitis in Mrs Learmont's age group 60% were pneumococcal and 20% meningococcal. Damage to the adrenal glands occurred in only 10% of cases of meningococcal meningitis. An enlarged gland was a neutral sign. Against the circumstances described the infective pathogen was more likely to be pneumococcus. The histopathology showed that polymorphs had started to get down into the brain surface, the time for which varied in individual cases. In septicaemia the rise in pulse and temperature occurred very early in the process. He would have expected such rises to have occurred at or around the outset of the symptoms late on 24 December or early on 25 December. The signs of meningeal irritation were headache, restricted neck flexion and photophobia. The headache was a bursting one and a very prominent sign. A photophobic person could tolerate surgery lights or sit in a kitchen with a strip light, but driving at night was likely to cause discomfort. Dr Vernon's note "looks well" went against his expectation and he could not explain it. Having seen the histology, he had reason to suggest that the meningitis was more advanced than might appear from Dr Gibson's report. He could not say if meningitis or SIRS caused death. He did not favour the view that Mrs Learmont died of the septicaemic process as he had not seen it happen in several thousand cases in his experience.

[38] In re-examination Dr Masterton said that he would not have expected Mrs Learmont to have been looking well when she saw Dr Vernon as she was within 12 hours of death from meningitis. It was possible to have well established meningitis without experiencing photophobia. Epidemiology could not be used to say what had happened in a single patient. Redness remaining after the application of pressure to a rash indicated that it was non-blanching. He could not see how Dr Vernon could see over her thumb when applying pressure to the rash. A 1 cm x 1 cm rash was not consistent with a non-viral rash. The evidence of the two children suggested a purpuric rash. In further cross-examination he said that Dr Vernon's examination of the rash showed that she knew the difference between a blanching and non-blanching rash, but he was concerned that she had not investigated the lesion appropriately. Thumb pressure was not a recommended technique. Dr Vernon was unlikely to have confused blood not going away with blood returning.

[39] Dr William Wallace was a consultant histopathologist specialising in examination of lung tissue. He had examined the medical material in this case and produced a report (6/53 of process). The sections which he had were not a full set and not the same as those seen by Dr Gibson. He did not see any bacteria himself but there was oedema in the cortex of the brain consistent with acute meningitis, indicated by the presence of neutrophils.

[40] Dr David Doyle was a consultant neuropathologist who had retired in 2002. He had worked at the Institute of Neurological Sciences in Glasgow from 1971 to 2002, having been Head of Department from 1994 to 2002. He had been asked to provide an opinion at a time when it was being asserted on behalf of Dr Vernon that death was due to an acute asthmatic attack. He had produced two reports, the first dated 9 May 2002 (6/14 of process) and the second dated 27 December 2004 (6/54 of process). When he wrote his first report there was no issue about the organism. He had examined three blocks of brain tissue and all three showed purulent meningitis His conclusion was that Mrs Learmont had died with purulent meningitis at least 10 hours after having visited Dr Vernon. Post mortem studies proved purulent meningitis with evidence of septicaemia. In the section dealing with microscopy results he stated: "The Gram stained preparations showed small Gram positive bodies, most attached to fibrin threads, which were probably small cocci". The word "possibly" would, he thought, be a better word in place of "probably". In his second report he stated on p3, when dealing with the question of the time of the onset of meningitis before death:

"Microscopy evidence of the duration of meningitis includes the number and type of inflammatory cells in the meningeal spaces, the spread of inflammatory cells into the brain (and) the presence of fibrin in the subarachnoid space. In this case, there are many polymorphs. There are bound to be variations in these features but my view is that if there is an established polymorph leukocyte infiltration into the subarachnoid space several hours must have elapsed and if there is involvement of the adjacent, superficial layers of the brain at least twelve hours must have elapsed from the inception of the meningitis."

On p 2 he wrote:

"The absence of observed pus in the meninges at autopsy is plausible, more in meningococcal meningitis than when the meningitis is caused by pus forming organisms such as streptococci. It happens not infrequently that pus is not seen and that the diagnosis of meningitis waits until microscopy reveals it."

He explained that meningococci rarely produced a thick layer of pus like the other bacteria did. By and large the pathological changes in the brain were the same no matter which bacterium caused them. Meningococcal and pneumococcal bacteria could cause the same presentation. It did not take much exudates or pus to cause neck stiffness, which was an early clinical sign of meningitis. He thought it very likely that Mrs Learmont had signs of meningeal irritation at 6 pm on Christmas Day. If she had had a swollen gland in the neck it would still have been there to be seen at post mortem, as would pus in the throat.

[41] Dealing with the reference in his first report to what he described as "small Gram positive bodies .... which were probably small cocci" he wrote:

"In the sections I examined there were small rounded profiles which could have been bacteria, but they could also have been tissue components. If other techniques were to show the presence of meningococcal components these Gram positive profiles would become irrelevant."

He went on to explain that, having looked at the bodies again and noted their patterns, it was possible but doubtful that they were small Gram positive cocci. There were so few that they could not form a pattern and they were not the shape of pneumococci. They were not smooth, and some were too large by a factor of 3 or 4. He could not say that they were Gram positive cocci. If, as he tended to think, they were definitely not bacteria then they were irrelevant.

[42] He also wrote (on p 1):

"The absence of meningococci in the microscopy of sections from the brain does not exclude the presence of meningococcal disease. My experience contains patients who have died from meningococcal disease in whom the bacteria have been proven to be present by growing meningococci from blood or CSF, but in whom no organisms could be demonstrated in post mortem tissue sections. This discrepancy does not depend on the length of time between death and post mortem examination."

He believed that meningococci died quite rapidly.

[43] In his opinion the central matter was the failure by Dr Vernon to suspect bacterial meningitis. Mrs Learmont was seen by Dr Vernon for five minutes, a time which he believed to be insufficient for a full examination of neck stiffness, leg raising, temperature, fundoscopy, total skin examination for spotted fever and adequate history taking. She was sent home with a diagnosis of viral infection but died of acute, purulent meningitis. Had she been referred to hospital there was a probability that she would have been adequately examined, observed, treated and would have survived.

[44] In cross-examination Dr Doyle confirmed that at no stage was any Gram negative organism identified. He was now doubtful that there had been Gram positive bodies. He was in two minds at the time and wished he had not used the word "probably" in his first report. He thought anyone with meningitis would have difficulty with any neck movement at any stage. Flexion was a clinical test and was the easiest way to demonstrate difficulty in neck movement. Rotational difficulty with neck movement might or might not indicate meningitis. The muscles at the back of the neck were in a state of spasm, making the neck stiff. It did not follow from the fact that there were no macroscopic signs of meningitis at post mortem that Mrs Learmont did not have severe or advanced meningitis. A rash was supportive, but never completely diagnostic, of meningococcal meningitis. Only a very small proportion of patients with meningococcal disease had damage to the adrenal glands, and the absence of damage there did not suggest that the organism was not meningococcus. He could not dispute that the most common pathogen for causing meningitis in someone of Mrs Learmont's age group was pneumococcus. He did not agree that the absence of a petechial rash at post mortem and of damage to the adrenal glands pointed away from meningococcal infection. On the information he had he could not say which organism caused the meningitis. He thought the onset of the illness was twelve hours before death but he could not be dogmatic as it was "far from an exact science". The information about how Mrs Learmont was 12 hours before death was consistent with the findings at post mortem. At least 12 hours must have elapsed from the inception of the meningitis and she would therefore have been likely to have had clinical signs at least 12 hours before she died. Asked about his comments on the duration of Dr Vernon's examination of Mrs Learmont, he confirmed that he himself did examine living patients and said he "would take his hat off to anyone who could do all that in five (or seven) minutes". He could not imagine the examination being done adequately in ten minutes. Fundoscopy was very time consuming if done properly. In re-examination he affirmed that if Mrs Learmont had a purpuric non-blanching rash that raised the probability that she had meningococcal disease. Such a rash was seen as "a red flag diagnostic sign".

[45] Dr Christopher Ellis was a consultant physician at Birmingham Heartlands Hospital, a large general hospital with 1000 beds. He had held that post since 1981 and also been a senior lecturer in the Department of Medicine at Birmingham University since then. He was an examiner for the Royal College of Physicians of London. He had published extensively in the areas of internal medicine and infection. He dealt with the entire range of infectious diseases and was always on call to deal with infection. He explained that in a case of meningococcal meningitis the patient usually gave a very short history of illness (up to 24 hours), of having been inspecifically unwell, vomited once or twice, had a headache (often described as the worst they had ever had), had dislike of light, and sometimes neck stiffness. The patient could develop a rash: it sometimes developed almost in front of your eyes and you could see it changing within half an hour. At first it consisted of a little pink spot, then half a dozen and one or two would disappear when you pressed them: at the very earliest stage you could push the blood back. After an hour the rash became definitely dark and after several hours it became purplish and did not blanch at all. It was possible for a rash not to develop and it was not unusual for a patient with meningococcal meningitis to die without having had a rash. The symptoms of pneumococcal meningitis were in many ways identical but in such a case the patient usually had a preceding problem such as sinusitis, otitis media or pneumonia and more often than not had a prior infection or underlying medical condition such as cirrhosis of the liver or diabetes. It was unusual to have pneumococcal meningitis without any prior infection or underlying disorder: he saw at most one or two such cases in a year in his unit, sometimes none.

[46] Dr Ellis thought that the symptoms of Mrs Learmont on 24 and 25 December were entirely consistent with meningitis, but he would not care to judge which bacterium was the cause. As Mrs Learmont was previously of good health he marginally favoured meningococcus rather than pneumococcus. A non-blanching rash at 6 pm on 25 December would certainly make meningococcus more likely. He would have expected Mrs Learmont's temperature at 6 pm to have been high (38 plus - normal is 37.5) and her pulse 90 or greater (normal varies around 70 depending on fitness) and that she would be suffering from neck stiffness. Anyone with a headache did not like having his head rotated, but in someone suffering from meningitis it was particularly neck flexion that was affected. He would not have expected her to look well, but it was hard to specify how she would look. In his report 6/26 of process he stated as follows:

"In my opinion the crucial issue here is the history of the illness. It is clear that the medical services were told that Mrs Learmont had been unwell for most of Christmas Day, had difficulty moving her neck and had a rash. This is clearly documented in her children's retrospective account but is also stated in the first message received by the Out of Hours Service. Appropriate management at this point is summarised in the British National Formulary provided free of charge to all doctors. This states that initial 'blind' therapy consists of transferring the patient urgently to hospital and, if bacterial meningitis, and especially if meningococcal disease, is suspected, general practitioners should give benzyl penicillin before urgent transfer to hospital. Alternatives are given for patients who are thought to be penicillin allergic, as Mrs Learmont was.

It is clear that Dr Vernon felt that Mrs Learmont looked well and did not have neck stiffness but she did note the rash. This contrasts with the picture painted by her children and it is obviously possible that the family and the doctor have different standards for what constitutes an ill patient. However, the crucial point is that doctors should certainly err on the side of over-diagnosing meningitis since the treatment is comparatively very safe and the earlier the treatment is given the better for patients who do have the infection. Therefore, given the clear account of the illness given by her children and the fact that a history of having been unwell most of the day with difficulty moving the neck and a rash was actually recorded in the GP's notes, I have to conclude that Mrs Learmont should either have been treated with penicillin at her first contact with Dr Vernon, or, had Dr Vernon been concerned by the history of penicillin allergy, then she should have been referred immediately to hospital, where she would have received an alternative antibiotic. Had either of these courses of action been followed then I believe that, on the balance of probabilities, she would have survived since most women in good health aged 37 will survive meningococcal infection if treated promptly at a point when they have the symptoms which Mrs Learmont experienced when she contacted the doctor."

[47] It was absolutely not the case that meningococcal meningitis necessarily destroyed the adrenal glands. Septicaemia was more than just bacteria in the blood stream: it was a state of disordered physiology which involved rapid pulse, low blood pressure and disturbance of oxygenation. Disturbed adrenals occurred in very ill patients with circulatory collapse. The adrenals need not necessarily be damaged in the absence of septicaemia. In some patients death occurred through inflammation of the brain (coning), but Mrs Learmont did not have significant cerebral swelling. If there were significant disturbance to the brain at cellular level the patient would die. It was assumed that brain disturbance caused pulmonary oedema. In the year 2000 there were round about 2000 cases of meningococcal meningitis, of which 10% were fatal, in the United Kingdom. There were a total of 5000 or 6000 cases of meningitis, of which a shade more than 10% were fatal. Dr Ellis himself treated between five and ten cases of meningococcal meningitis and three or four cases of pneumococcal meningitis a year, and five times those numbers of patients with suspected meningitis. He thought the most likely explanation in the case of Mrs Learmont was that she had a meningococcal infection which produced meningitis, of which she died.

[48] In cross-examination Dr Ellis accepted that he did not have a pathology qualification and that he was not a GP. He "still looked down a microscope". He examined about 50 patients a week. His particular interest was in imported infections and now in medical management overseeing acute medical infections. His research had been in malaria and, earlier, in HIV, but he had always taken an interest in diseases of the nervous system, including meningitis. A patient with suspected meningitis who was referred to hospital would be dealt with by a consultant general physician. He accepted that his report depended on the accuracy of the history provided by the children, the transcripts of the phone calls and the post mortem findings, but when expressing a view on the correct management of Mrs Learmont by the GP he did not take into account the post mortem findings. He explained that a petechial rash developed very quickly and commonly changed in appearance: it became more and more apparent. It did not disappear in life and he should think not in death, but gravitational changes after death could obscure it. He would have expected Mrs Learmont's rash to have got worse after 5 pm on Christmas Day, and that it would change in distribution and intensity (that is, the size of the petechiae). If there was an area which did not blanch at all on pressure, that was in keeping with a purpuric rash. It was possible to have an outer area of rash which blanched and an inner area which did not. When the evidence of Dr Vernon about the rash (set out above) was put to him and he was asked whether what she described was consistent with blood returning to a blanching rash, he answered that most rashes disappeared completely for a few seconds. He would not have expected an area of redness in the centre of the rash to remain when the thumb was removed from a blanching rash. It was unusual for even a little bit of the rash to remain: he was troubled by Dr Vernon's words "possibly a little bit". He found that there was very clearly a difference between a purpuric rash and other rashes. The common description of the headache given by a patient suffering from meningitis was that it was the worst he had ever had. Patients did not usually wax lyrical about the headache as they were in severe pain. It could be described as a bursting type of headache, although such a description was not volunteered in the majority of cases. While it might lessen a little, it usually worsened progressively. He would have expected Mrs Learmont's headache to have been severe at 6 pm on Christmas Day. So far as photophobia was concerned, he would expect the meningitis sufferer to be averse to a well lit environment. Very often the light was turned off by the nurse before he saw the patient. Driving at night would be possible for the patient but not enjoyable. It was the whole constellation of other symptoms that led to a diagnosis. Vomiting should be noted. In relation to the neck he would regard anything other than complete flexion as a worrying point for meningitis. If Mrs Learmont was fully able to flex her neck completely when she was seen by Dr Vernon he would assume that she did not have very far advanced meningitis at that point. What was taught, probably correctly, was that inability to flex the neck was due to inflamed meninges. What a doctor would be looking for was restriction of neck flexion: meningitic neck stiffness was usually strikingly present on flexion. He personally would be happy to ask the patient just to flex his neck. If the neck were resistant to flexion the patient would not be enthusiastic about rotation because of the headache. Rotation of the neck might be painful if there were an enlarged lymph node, which might be consistent with a viral infection. The fact that Mrs Learmont was up and about before she saw Dr Vernon did not really tell us anything. With regard to the post mortem findings, he would not have expected to see signs of gross irritation. What mattered was what was found at the microscopic level and enough pus was found at that level to cause death by meningitis. It was not necessary to see damage to the adrenal glands in severe meningococcal meningitis. The fact that Mrs Learmont had been previously healthy made him favour meningococcal meningitis. He suspected that a figure of 60% pneumococcal infection did not apply for someone aged 37. He would not have expected Mrs Learmont to look well when she saw Dr Vernon, but the judgment was a subjective one and it would be easier for a family member accustomed to seeing her to notice that she looked unwell. In most deaths from illness there was a fever 10 hours earlier, but there were exceptions and he had seen patients without raised temperatures, even with lower temperatures. On the evidence which Dr Vernon had the prudent course of action would have been to have said "this could be meningitis".

[49] In re-examination Dr Ellis asserted that the fact that Mrs Learmont reported a neck problem on the phone should have very clearly rung alarm bells about meningitis.

The primary facts

[50] In light of all the above evidence it is necessary that findings of the primary facts be made before the issue of medical negligence is considered. It was submitted, I think rightly, on behalf of the pursuers that two questions of primary fact arose, namely:

(1) What were Mrs Learmont's signs and symptoms when she consulted Dr Vernon on 25 December 1999?

(2) What examination of Mrs Learmont did Dr Vernon perform?

Once these questions have been answered, the question of professional negligence will have to be addressed by a third question being asked and answered:

(3) What examination of Mrs Learmont would an ordinarily competent general practitioner have performed?

Mrs Learmont's signs and symptoms

[51] I shall deal with each of these in turn.

(i) Mrs Learmont's general appearance

[52] In her note of the consultation Dr Vernon entered the words "looks well" as describing Mrs Learmont. I cannot accept that Mrs Learmont looked well at the time when she consulted Dr Vernon. The evidence satisfied me that Mrs Learmont was anything but well at the material time and also that she looked unwell. Moreover, I think it would have been obvious to anyone who saw her, even someone (such as Dr Vernon) who had never seen her before, that she looked unwell. I cannot begin to understand how Dr Vernon thought that Mrs Learmont looked well. There is clear evidence from Mrs Learmont's children and sister, which I accept, that she looked unwell and I infer from these descriptions that it would have been obvious to anyone, even someone who had not met her before, that she looked unwell. Dr Vernon had seen the note made by the receptionist ("unwell most of today, difficulty moving neck and has a rash") and had herself been told on the telephone by Mrs Learmont what her general symptoms were. It would, on the face of it, be surprising if someone who had remained in bed on Christmas Day, reported the symptoms which Mrs Learmont did and requested that a doctor come out to see her looked well. Mrs Learmont had suffered from the previous evening from a headache, had been sick and was feeling nauseous, had had trouble lifting her head off the pillow and had a rash on her left arm. It was submitted on behalf of Dr Vernon that when Mrs Learmont saw Dr Vernon she had been up and about and it was a fair inference from this that she was a bit better than she had been earlier on. Reliance was placed on the comment by Scott in cross-examination "Well, I was pleased that she was well of course" (referring to the point in time when his mother had come out from the consultation with Dr Vernon) as something that flew in the face of her being acutely unwell or increasingly more unwell, as averred on record. I do not think any reliance can be placed by Dr Vernon on that comment by Scott as it was based on what his mother told him she had been told by Dr Vernon: in other words, it was based on Dr Vernon's diagnosis.

[53] Dr Vernon's initial impression at the consultation that Mrs Learmont looked well was explained by her in the following passage of evidence in examination-in-chief:

"Well ... now you said to his Lordship that one of the things that you went on was that when you initially clapped eyes on Mrs Learmont you thought that she looked well? - She didn't look like someone that the warning bells would be going. She didn't look seriously unwell.

And she was somebody that you had never seen before. Is that right? - Yes.

You would not know what she normally looked like? - That's right, but I was basing my judgment on my experience of many patients. In my practice I go from my consulting room to my waiting room and I put a lot of emphasis on first impressions and if someone comes in with a sore neck you can usually tell straight away by the way they're holding their neck. They're holding it stiff.

You said that you would put a lot on first impressions. With respect, it sounds as if you have formed a view after a telephone, hearing a voice on the phone and looking at her? - I didn't, but I took that into account in the overall assessment.

Now, on this particular occasion she was not wearing make-up. Is that right? - I don't know. I couldn't comment on that.

Her hair was lank? - Again I couldn't comment on that because, as you say, I had never met her before.

Can you remember what the patient was wearing that day? - I can't. I cannot picture her clothing.

Can you picture her? - I can picture her roughly.

(The witness then identified a smiling Mrs Learmont from a photograph of three ladies shown to her.)

And was she looking like that that day? - No, she was not looking like that. I don't know whether she had make-up on or not. I think that she had darker clothes on and she certainly wasn't smiling."

In cross-examination the following passage occurred:

"What was your reaction when Mrs Learmont first came into the examination room? - I think that is the first thing that did hit me, that she looked quite normal, and from the point of view specifically thinking about her neck.

We can see in your notes .... says "looks well". Was that an accurate description of how she looked to you? - That is my way of making a differential between someone who is obviously unwell and someone who looks reasonable, shall we say.

So if someone is obviously unwell what would you have written? - 'Looks unwell', but 'unwell looking' is what I would write."

[54] The impression which Dr Vernon formed that Mrs Learmont looked well that day is at odds with the description of her given by all the other witnesses who saw her that day. Even allowing for what Dr Ellis described as the possibility "that the family and the doctor have different standards for what constitutes an ill patient", I cannot see how Dr Vernon could have described Mrs Learmont as looking well. Although he did not see Mrs Learmont, Dr Masterton said he would have expected her to look particularly unwell. It was submitted for Dr Vernon that the family's description of Mrs Learmont was of a woman who cared about her appearance, was well-dressed, regularly wore make-up and arranged her hair and that persons accustomed to seeing her like that, namely, at her best, would be likely to consider her to be ill if she were pale and not wearing make-up. I do not think that is a reasonable criticism of their evidence. The descriptions of Mrs Learmont on Christmas Day given by Lauren, Scott and Mrs Layden (which I have set out above and need not repeat) are such that it would have been clear to anybody that Mrs Learmont was unwell, even to someone who had not seen her before. Indeed, it was accepted on behalf of Dr Vernon that these three witnesses were saying that anyone who saw Mrs Learmont that day would have recognised that she was unwell, but at the same time submitted that if their descriptions were correct it was all the more extraordinary that Dr Vernon should have written "looks unwell" and I was asked to find the family to be unreliable and to prefer Dr Vernon's account where there was a conflict between her and the family members. No reason was proffered as to why I should prefer Dr Vernon's account on this point, and I decline to do so. The descriptions given by the family are much more in keeping with the whole general picture of an obviously unwell woman than the description of Mrs Learmont by Dr Vernon, "looks well". I am therefore satisfied that, when she saw Dr Vernon, Mrs Learmont looked unwell and that that would have been obvious to anyone who saw her then.

(ii) The neck symptoms

[55] The averments on record are that Mrs Learmont presented at the surgery suffering from symptoms of "neck stiffness" (p 10A-B) and that, given the timing of her death, she would have been unable to flex her neck and would not have had a full range of neck movement (p 12C). It is further averred (p 30A-B) that Mrs Learmont presented to Dr Vernon with a history of neck stiffness, that she had obvious neck stiffness and that it was such that she was unable to turn her head. Objection was taken on behalf of Dr Vernon to the leading of any evidence on behalf of the pursuers of difficulty in neck flexion on the ground of lack of record and I allowed evidence of the restriction in Mrs Learmont's neck flexion to be led subject to relevancy and competency. The objection was insisted in at the stage of closing submissions and I must now rule upon it. The basis of the objection was that, under reference to the averments at p 30A-B, it was not part of the pursuers' case that Mrs Learmont could not flex her neck, the words "unable to turn her head" being referable only to neck rotation and not habile to cover neck flexion (and extension). These words could not be fairly or properly read as covering neck flexion and, given the importance of restriction of neck flexion as a sign of meningeal irritation, the absence of an averment that Mrs Learmont was suffering from it was telling and strongly suggested that it was not present: had she been suffering from it, it was more than a racing certainty that such an averment would have been made. The response on behalf of the pursuers was that the expression "neck stiffness" did cover restriction of neck flexion and that, looking at the pleadings as a whole, it was quite clear that what was being put in issue was neck stiffness impeding forward flexion. While the averment at p 30B was that Mrs Learmont's neck stiffness prevented her turning her head, the bulk of the other averments were about neck stiffness impeding forward flexion. There were averments additional to those mentioned above at pages 10A-B, 12C and 30A-B. The averment at p 9C that Mrs Learmont told Dr Vernon on the phone that she "could hardly lift her head up from the pillow" implied a problem with neck flexion. It was averred at p 10B-C that at the material time all ordinarily competent general practitioners were aware that among the cardinal signs of bacterial meningitis was "neck stiffness impeding forward flexion". There was an averment at p 11B that an ordinarily competent medical practitioner "would have tested the patient's neck to ascertain whether or not it could be flexed". Additionally, one had to bear in mind what averments the pursuers could have made. Dr Ellis had said that neck stiffness was something elicited by the examining doctor: the patient would have noticed that the neck was stiff but might not have noticed a particular problem with flexion as neck flexion was not something everybody did and the examining doctor elicited it by asking the patient to touch her chest with her chin or by tilting the patient's head forward until a point was reached when the head stopped. According to Dr Ellis the patient herself might have noticed just neck stiffness. He would not have expected a 17 year old boy to say that his mother had a problem with neck flexion. A patient with a stiff neck and a headache would not be keen to rotate her head. The pleadings on this point went as far as they could go.

[56] Having considered the competing submissions on this point, I have decided to repel the objection taken on behalf of Dr Vernon to the leading of evidence about difficulty in neck flexion. It seems to me that the objection focused too much on the averments at p 30A-B and failed to have regard to the other averments on this point. I am in no doubt that Dr Vernon was given fair notice of the leading of evidence about neck flexion. It is averred in terms at p 10A-B that Mrs Learmont would have been unable to flex her neck when she saw Dr Vernon and it is averred in terms at p 11B that an ordinarily competent general practitioner would have tested the patient's neck to ascertain whether or not it could be flexed. These averments are more than sufficient to give fair notice of the evidence which the pursuers sought to lead. Moreover, the context here must be borne in mind. It is neck stiffness caused by meningeal irritation which causes the inability to flex the neck: the patient will not know that she cannot flex the neck until she attempts to flex it. As Dr Ellis pointed out, it is for the examining doctor to ascertain whether the patient can flex her neck. Inability to rotate a stiff neck is not necessarily inconsistent with simultaneous inability to flex it.

[57] I therefore turn to consider the evidence about Mrs Learmont's neck symptoms. According to Lauren on Christmas morning her mother complained of a "stiff neck, well, sore neck", in the afternoon she said her neck was stiff and sore, she could barely move it, and on the journey to the surgery when she was turning corners she could not move her neck, it was that stiff she had to ask her and Scott if anything was coming from the right or the left. In cross-examination she made clear that her mother's neck was both sore and stiff. Scott said that on Christmas afternoon his mother had a sore head and that when driving to the surgery she said her neck was sore and could not really turn her head. When he spoke on the phone to the receptionist he told her that his mother "just couldnae move her neck this morning". When Mrs Learmont spoke on the phone to Dr Vernon she told her that "last night I wasnae feeling at all well and I could hardly lift my head up off the pillow and my neck's really sore and I've come out in a rash". Mrs Layden said that when Scott spoke to her on the phone he said that his mother had a stiff neck and when she later saw her sister she complained of a sore neck. According to Detective Constable Saunderson Lauren mentioned to him on 26 December that his mother had gone to the doctor with a stiff neck. Dr Vernon's evidence was that there was a large tender lymph gland on Mrs Learmont's neck at the right side of her jaw and movement of the neck to the right and left was particularly sore. When she asked Mrs Learmont to look up at the ceiling and down at the floor she was able to do so. She also lifted Mrs Learmont's head up off the examination couch so that her chin touched her chest. She thought the sore neck was explicable by the swollen gland. The evidence of Dr Ellis was that a stiff neck was one of the symptoms of meningococcal meningitis, that he would have expected Mrs Learmont to have had neck stiffness at about 6 pm on Christmas Day and that he would regard anything other than complete neck flexion as a worrying point for meningitis.

[58] In light of the above evidence I am satisfied that when Mrs Learmont saw Dr Vernon on Christmas Day she had neck stiffness and would not have been able to flex her neck fully. The statements on the phone by Scott (that his mother "just couldnae move her neck this morning") and Mrs Learmont ("I could hardly lift my head up off the pillow this morning") to my mind plainly imply a problem with neck flexion. It is true, as was pointed out on behalf of Dr Vernon, that being unable to lift your head up off the pillow would imply a problem with neck flexion only if you were lying on your back in bed when you tried to lift your head up off the pillow. In my view it is clear, when the totality of the evidence on neck symptoms is looked at, together with the findings at post mortem, that Mrs Learmont had a painful neck (caused by meningeal irritation) which was impeding movement in all directions - that is to say, rotation, flexion and extension. I do not accept that her neck stiffness was restricted to difficulty with rotation due to a swollen gland. Dr Gibson did not find a swollen gland at post mortem examination. In his evidence-in-chief he said that if he had seen it he would have recorded it. In cross-examination he said that the glands were among the soft tissues of the neck, to which he was not paying particular attention, and that it was possible he missed a swollen gland. In re-examination he said that he would see or feel a very large swollen gland under the right jaw which felt swollen to the touch and restricted neck movement to right and left and record that. Professor Busuttil's evidence was that he would have expected the pathologist to have found a swollen gland at post mortem examination as he must have dissected the neck very, very closely. Dr Doyle was of the view that if Mrs Learmont had had a swollen gland in the neck it would still have been there to be seen at post mortem examination. I am satisfied from Dr Gibson's evidence in re-examination that, although he did not dissect the neck very, very closely as Professor Busuttil thought he would have done, he would have found a very large swollen gland under the right jaw which Dr Vernon felt swollen to the touch and he would have recorded that finding. Such a finding is consistent with the general views of Professor Busuttil and Dr Doyle.

(iii) The Rash

[59] There is no doubt that Mrs Learmont had a rash on her inner left forearm. It was seen by Lauren, Scott and Mrs Layden, mentioned by Scott and Mrs Learmont in the phone conversations, and seen by Dr Vernon and noted by her in her note of the consultation.

[60] The descriptions of the rash given in evidence varied. Lauren said the rash was on the inside of her mother's left forearm and described it in the passage of evidence as "big, some of it was wee rashes like dots - not dots, but not blotches neither ..... there were some bits were big and some bits were wee on her arm". She described the big bits as "kind of reddish - well, not red, red, but enough to know that it was a rash" and agreed that they could be described as pinkish. Scott said the rash "was on her arms and legs" and described the rash on her left arm as "just all over, kind of scattered, just like spots if you like, red spots". He went on to say "Some of them were in clusters but there was obviously different parts - if you know what I mean - just there and up the arm." Although he said he saw a rash on his mother's legs, he gave no description of it. When he was shown in cross-examination four photographs of a septicaemic rash in the leaflet from the Meningitis Research Foundation (6/28 of process) he identified the rash he had seen on his mother's arm as looking more like the rash on the top photograph (which depicts red spots with a tumbler being pressed against it). The following passage of evidence then occurred:

"These are red spots? - Yes, that's kind of what it looked like - red spots, yes.

And these were over the whole area of your mum's inner arm? - They were dotted about over the forearm (inaudible).

Were they evenly distributed over her forearm or were there just some here and some there? - Just some here and some there."

Mrs Layden said that the rash on the inside of her sister's left forearm looked like it was pinprick, it wasn't bright red, it was a wee bit paler and it was "scattered about". Mrs Learmont in her phone conversation with Dr Vernon described the rash on her arm as "just kind of red blotches" and "red pimply".

[61] The averment on behalf of Dr Vernon in answer 2 (at pages 22E to 23A) is that the "rash was oval in shape and measured approximately one inch long by half an inch wide", but this description was never put to her in her evidence. Her description of the rash in her note of the consultation was "fine, non-specific rash on left forearm". In her police statement of 28 December 1999 (6/20 of process) she described the rash as "a small red rash, 5 x 5 cm and small red dots". In re-examination she said that she knew for sure the rash was not 5 cm, it was smaller than that, it was probably 1.2 x 0.8 cm, she did not know whether the police officer made a mistake, she did not pick up on the mistake but she now disputed the dimensions given in her police statement. Her description of the rash in evidence-in-chief emerges from the following passage:

"And if I can just go over again what you said that you did. You said that you first of all looked at the rash. Now, where was this rash? - I asked the lady to sit down and show me the rash and she pointed to the rash on her forearm, on her left forearm, between the elbow and the wrist.

And what size was this rash? - I would say it was just over one centimetre by just under one centimetre. Say 1.2 by 0.8.

And I think that you indicate that it was on the inside of the left forearm? - Yes.

And what was the appearance of the rash? - It was red in appearance and almost salmony-pink."

[62] Mrs Dawn McQuaid, who saw Mrs Learmont dead in her bed on the morning of 26 December, described what she saw as a mottling of the skin with darker discolouration like bruising, but was unclear where the discolouration was, and in cross-examination accepted that she was not paying much attention to it and that she saw it in passing (which is perfectly understandable).

[63] No rash of any kind was observed or noted by Dr Cathcart when he examined the body of Mrs Learmont in her bedroom within hours of her death or by Dr Gibson at post mortem examination, but in light of all the above evidence it is clear to me that Mrs Learmont did undoubtedly have a rash when she saw Dr Vernon. The next question to be considered is what kind of rash it was, and, in particular, which organism caused it. This question is of importance because a petechial or purpuric rash is caused by the meningococcal bacterium, does not blanch on pressure being applied to it and does not fade or disappear after death. The fact that neither Dr Cathcart nor Dr Gibson saw a rash on Mrs Learmont's body post mortem does not mean that she did not have one then. According to Professor Busuttil, a petechial rash in places other than the eyes and the lips may be missed by a pathologist in good light (more so in a less well lit bedroom) even when a clinician has told him that a rash was present and it was sometimes quite difficult to distinguish a bruise from lividity on external examination. Dr Gibson himself accepted that he could have missed a rash on an area of hypostasis.

[64] Both Professor Busuttil and Dr Masterton were of the opinion that the infective pathogen in Mrs Learmont's case was pneumococcus, not meningococcus. The reasons given by them for this opinion were: (i) no petechial rash was seen post mortem by Dr Cathcart or Dr Gibson; (ii) no Gram negative organism was identified in the histological samples taken post mortem; (iii) there was initially a possible identification of Gram positive bodies by Dr Doyle (although he later sought to retract such an identification); (iv) pneumococcus was the most common infective organism in Mrs Learmont's age group; (v) micro-abscesses seen in the histological samples of heart and kidney tissue were more likely to have been caused by Gram positive organisms, of which pneumococcus is one, than by Gram negative organisms, such as meningococcus; (vi) the absence of damage to the adrenal glands (not always present); (vii) a swollen lymph gland is a common sign of pneumococcal infection. On the other hand, Dr Ellis said he would have described Mrs Learmont's rash as a petechial rash and that patients with pneumococcal meningitis usually had a prior infection such as sinusitis, otitis media or pneumonia, or an underlying medical condition, such as cirrhosis of the liver or diabetes: it was unusual for someone to have pneumococcal meningitis without any prior infection or medical disorder, and in his unit he saw one or two, and possibly no, cases of pneumococcal meningitis each year. The fact that Mrs Learmont had previously been healthy made him favour meningococcal meningitis in her case. Dr Breen said that people with pneumococcal meningitis usually had an injury or ear infection and the organism got entry that way.

[65] In my opinion it is necessary, when considering whether the infection was meningococcal or pneumococcal, to consider both the factual evidence of the rash and the medical evidence. The main point so far as the rash itself is concerned is whether it blanched on pressure. Having considered all the evidence on this point, I have reached the conclusion that it did not. I accept the evidence of Lauren and Scott in this connection. I am satisfied that it was the fact that the rash did not disappear on the occasions when the glass or tumbler test was done which was the cause of great worry in the Learmont household and prompted the making of the phone call to the Out of Hours Surgery, although Scott said he would have called the doctor even had there been no rash. A piece of evidence which I think is very significant is the evidence of Constable Saunderson that Lauren had told him on 26 December that the rash was of particular concern, that they had carried out the test on her mother's arm and that he thought they indicated the rash had not disappeared. In cross-examination he said that, although Lauren's statement did not mention a glass test, he did remember being told about the glass test having been performed. I am therefore quite satisfied that Lauren did, shortly after the death of her mother on 26 December, mention the glass test to Constable Saunderson and indicated to him that the rash had not disappeared on the test being done. The fact that such statements were made by Lauren to Constable Saunderson at that time confirms the credibility and reliability of her evidence about the rash and the glass test. I also find that there is no good reason not to accept the evidence of Scott about the rash and the glass test. The evidence of Dr Vernon about the rash was in my view just not acceptable. Her description of the rash varied, as noted above. She said that when she pressed her thumb on the rash (described in evidence as being about one centimetre by just under one centimetre) "possibly a little bit" of redness remained after she lifted her thumb. Dr Masterton emphasised that for a rash to blanch it had to go pure white and if any redness remained it could be an early purpuric lesion. Dr Thornton, a GP from Carnoustie led on behalf of Dr Vernon, to whose evidence I refer below, said that if some colour remained the rash could not be described as a blanching one. Accordingly, even on the evidence of Dr Vernon herself the rash was not a blanching one. Mrs Vernon had no underlying infection or other medical condition, as would have been expected had the infective organism been pneumococcal in nature. The evidence of Dr Ellis, the consultant with the greatest clinical experience of meningitis, supports the factual evidence that Mrs Learmont had a petechial or purpuric rash which was a sign of meningococcal meningitis.

(iv) The headache

[66] Mrs Learmont said to Dr Vernon on the phone that she'd had headaches and been a bit sick. Mrs Layden said that on the phone Scott reported to her that his mother had terrible headaches and that when her sister came to her house she "kept complaining of a terrible headache". In her police statement Mrs Layden said that Scott stated on the phone that his mother "had headaches". In his evidence Scott said his mother "was feeling sick and had a sore head and that's about it". Lauren mentioned headaches in her police statement but did not mention a headache until the second day of her evidence.

[67] There is no mention of a headache in Dr Vernon's note of the consultation. In examination-in-chief, referring to Mrs Learmont's description of the headache, Dr Vernon said "she said it was throbbing, it was generalised, these were the words that she used." When asked "She said generalised?" Dr Vernon answered "yes". In cross-examination the following day she said "I made a mistake yesterday because I think she would probably say 'all over' rather than 'generalised'". She then said that she could not remember precisely what Mrs Learmont had said. Her position was that the headache reported to her was not being reported as a serious headache, although she accepted that she did not ask Mrs Learmont about the severity of the headache. In re-examination she changed her position again and said that Mrs Learmont described the headache as "all over and throbbing".

[68] In light of the above evidence I am satisfied that Mrs Learmont was suffering from a significant headache at the time she saw Dr Vernon and had been, to a greater or lesser extent, since she had become ill on 24 December. It is unfortunate that she was not asked by Dr Vernon how severe the headache was and that no mention of the headache was made by Dr Vernon in her note of the consultation. The fact that Mrs Learmont mentioned to Dr Vernon on the phone that she had had headaches and the fact that she complained to her sister of a terrible headache are sufficient to persuade me that the headache was regarded by Mrs Learmont as being well out of the ordinary. A headache, of course, is a non-specific symptom and not referable solely to meningitis, but it was relevant in the context of the entire signs and symptoms displayed by Mrs Learmont.

(v) Nausea and Vomiting

[69] Mrs Learmont told Dr Vernon on the phone "I've been a bit sick". Dr Vernon then asked her "So you've been sick today", to which she replied "Yea". Dr Vernon accepted in evidence that she understood Mrs Learmont to have said that she had vomited and said that when Mrs Learmont came to the surgery she told her that she was still a little bit nauseous but had not vomited for a number of hours. That is the evidence of Dr Vernon's knowledge of Mrs Learmont's symptoms of nausea and vomiting. There is also objective evidence from Lauren, Scott and Constable Saunderson about the basin beside the bed, which supports her evidence that she had been sick. I am therefore satisfied that Mrs Learmont had vomited before she saw Dr Vernon, that she was nauseous when she saw Dr Vernon, and that Dr Vernon was aware of these two symptoms. While vomiting is a sign of meningeal irritation, it is not in itself diagnostic of meningitis and Mrs Learmont could have vomited for reasons unconnected with meningeal irritation.

(vi) Temperature and Pulse

[70] Professor Busuttil was of the view that it was more likely than not that Mrs Learmont would have had a raised temperature or a fever and a raised pulse at 6 pm on 25 December, whether the condition was pneumococcal or meningococcal meningitis. Dr Masterton said that he had not seen a case of meningitis where abnormal temperature and pulse (in either direction) were not present and that when septicaemia occurred he would expect a rise in temperature and rapid pulse. He would have expected Mrs Learmont's temperature to have risen at or about the time of the onset of her symptoms late on 24 or early on 25 December. Dr Ellis said he would have expected Mrs Learmont's temperature to be high (38+) at 6 pm and her pulse to be 90 or greater (normal pulse varies depending on the fitness of the patient, but is usually around 70). On the basis of the evidence of these three consultants I am satisfied that at about 6 pm on 25 December Mrs Learmont had a raised temperature and a raised pulse, and I reject the evidence of Dr Vernon to the contrary.

The examination of Mrs Learmont performed by Dr Vernon

[71] I have set out in detail above the evidence given by Dr Vernon about the examination of Mrs Learmont, the terms of her note of the consultation and of her statements to the police. The only other evidence about the examination came from the statements made by Mrs Learmont to her children and sister after the examination, which I have set out above.

[72] The submission for the pursuers was that the evidence of Dr Vernon at the proof had to be looked at with great care: in contrast to every other witness at the proof, she was a most unsatisfactory witness. To accept her evidence I would have to reject the evidence of Scott and Lauren, Mrs Layden and independent witnesses such as Mrs McQuaid, Constable Saunderson, and the medical experts Professor Busuttil and Doctors Masterton, Doyle and Ellis. There was no reasonable basis for rejecting their evidence where it differed from that of Dr Vernon.

[73] It was submitted on behalf of Dr Vernon that her credibility was central to the issue of what examination she performed of Mrs Learmont, that for the pursuers to succeed I had to reject her account of the consultation, prefer to draw from the evidence of Mrs Learmont's children and sister an inference about how she appeared and hold Dr Vernon to be incredible, while at the same time explaining the note made by her of the consultation, as it was inconceivable that she would have invented her description of Mrs Learmont's appearance. It was inconceivable that an experienced GP, well used to seeing ill patients, would have got things as wrong as the pursuers maintained: the reason why she noted Mrs Learmont's appearance as she did was because that was exactly how Mrs Learmont appeared to her. The entry "looks well" was significantly in her favour because GPs took account of the first appearance of a patient. The family's description was of a woman who cared about her appearance, was well-dressed, regularly wore make-up and arranged her hair. The family were accustomed to seeing her at her best and were therefore likely to consider her to be ill if she was not wearing make-up and looked pale. The other parts of the note confirmed that Dr Vernon had examined Mrs Learmont's rash and neck movements, found a reason for the pain on rotation of her neck and explained the diagnosis. If the pursuers were right, Dr Vernon had to have been badly wrong in her assessment of Mrs Learmont and of each of her recorded findings in the note and to have lied under oath about her suspicion of meningitis and the need to see Mrs Learmont at all, as well as about the nature, extent and findings of her examination. It was necessary to bear in mind that these were matters which had assumed a significance which they perhaps did not have at the time. It was more likely that the family's recollection was poor than that Dr Vernon was lying. This was not a case where Dr Vernon could simply be mistaken in her recollection of events. So far as suspicion of meningitis was concerned, Mrs Learmont mentioned the glass test to Dr Vernon, which confirmed that Dr Vernon had meningitis in mind. The glass test was peculiar to meningitis and Dr Vernon was testing to see if the rash blanched: coupled with the fact that Mrs Learmont's neck movements had been tested, it was clear that Dr Vernon did suspect meningitis. That was why she had asked Mrs Learmont to come to see her. Dr Vernon had come to court to vindicate her actions at considerable risk to her professional reputation. It was fanciful that she would make up a history of how Mrs Learmont appeared at the consultation, of what she did when she examined Mrs Learmont, of what was said by and to Mrs Learmont and then come to court with the pre-conceived intention to lie, embellishing her version still further. She would have had little, if any, idea of the evidence the family would be likely to give. Their evidence could easily have exposed any lie she intended to tell to cover her back: for her to have attempted to resist the claim on that basis would have been an act of complete and utter folly. It had to be borne in mind that she gave her evidence first, before any of the witnesses to fact, and therefore was not in a position to tailor her evidence even had she so wished. It was accepted that I had to form my own view of Dr Vernon, but the recording of her phone conversation with Mrs Learmont did not leave the impression of a careless, condescending, flippant or even tired and over-worked physician, but, rather, of a caring and conscientious GP, keen to re-assure the patient. The purpose of the phone call was to see if it was necessary to see the patient, whom she did not wish to panic. No criticism was now made of the fact that the patient had to go to see the doctor instead of the doctor going to see the patient. She was a GP trainer and a doctor who had continued her medical education by obtaining her MRCGP through assessment of her performance, which was the more difficult route to such a qualification. She was an honest witness who gave a detailed account of the consultation under lengthy, sustained and sometimes hostile questioning on behalf of the party who called her as a witness. She had been willing to accept that not all the evidence supported unequivocally her version of events: she was not a stubborn and unrepentant practitioner who could not accept that she had made an error and whose pride clouded her judgment and affected her recollection of events. It was simply unrealistic to expect a witness describing an event which took place years earlier and which lasted under ten minutes to maintain an entirely consistent account over two days of questioning. I had to consider her evidence as a whole, but not with a view to identifying inconsistencies. Her note of the consultation was key to her credibility. I had to be careful on what inference I drew from the fact that something was not recorded in a medical note: the fact that something had not been recorded in such a note did not mean that it had not been done. The fact that Dr Vernon was not rushed did not mean that her note should have been fuller. That a note was not as full as one might have hoped did not entitle me, in the absence of other supporting evidence, to conclude that Dr Vernon had not had meningitis in mind. I could not conclude from the absence of the word "meningitis" in her note that it was not in her mind. The note was potentially for other doctors to read and Dr Thornton (whose evidence I refer to below) said that it would have indicated to another doctor that meningitis had been considered. Dr Vernon had stated in evidence on a number of occasions that the main reason she wanted to see Mrs Learmont was to rule out the suspicion of meningitis that the history of vomiting, sore and stiff neck and a rash would have suggested. These were all matters referred to in the phone calls and it was most unlikely that Dr Vernon did not have meningitis in mind. It had been suggested to Dr Vernon that she had not thought of meningitis until she received the phone call from the police on 27 December. The fact that her account to the police was not as detailed as her evidence over more than one day did not entitle me to conclude that she did not consider meningitis or carry out the examination which she said she did carry out. Her description in evidence of her statement to the police suggested it was a formality. Its purpose was not to justify her actions. At the time it was thought that asthma was the cause of death. It was not until three weeks later that she was told that meningitis was the cause of death. In these circumstances it was perhaps unsurprising that she did not mention meningitis to the police or give the police a more detailed account of her examination. There was no evidence to support the assertion made on behalf of the pursuers that during this phone call she had her note of the consultation in front of her, and it was going too far to infer from the content of what she said to the police that she did. She had seen her note when she saw the police officer the following day, 28 December.

[74] I regret to have to say that I accept the description of Dr Vernon as a most unsatisfactory witness, and that causes me to have serious doubts about the credibility and reliability of her evidence of what happened at the consultation. Having considered all the relevant evidence, I have reached the view that she was not an entirely credible and reliable witness in relation to events at the consultation. I have reached that view for the following reasons.

[75] First, I gained the clear impression from the evidence that Dr Vernon from the outset approached her dealings with Mrs Learmont with a certain attitude, which was that there was nothing seriously wrong with her, other than possibly a viral infection. She told Mrs Learmont on the phone "I don't think there is anything unduly for you to worry about", mentioned that "you're obviously up and about now" (without knowing why she was up and about) and told her she was "quite happy to have a wee look at you" but "be prepared to wait, we'll see you when we can". The last statement seems to me to indicate that she did not consider that Mrs Learmont's case was a potential medical emergency and that she should be assessed urgently. That is clear from the fact that she told Mrs Learmont she would probably send her a taxi to come over (to the surgery) rather than send the doctor out "as we need to keep him for emergencies". A potential case of meningitis is a medical emergency as the condition can prove fatal in a matter of hours.

[76] It was further submitted for the pursuers that the first impression which Dr Vernon formed of Mrs Learmont ("looks well"), and which I have found above to have been a wrong impression, weighed far too heavily in her mind, influenced her thinking right from the outset, caused her to discount what she was actually being told by Mrs Learmont and devalue the importance of the history in her own mind. In my opinion there is considerable force in that submission. I accept that when Dr Vernon spoke to Mrs Learmont on the phone she hardly gave Mrs Learmont a chance to speak and was downplaying what Mrs Learmont was saying to her. When Mrs Learmont told Dr Vernon that "last night I wasnae feeling at all well and could hardly lift my head up off the pillow" and went on to describe her sore neck and rash Dr Vernon responded "Right, but you're obviously up and about now". In my view this amounted to putting words into the mouth of the patient and suggesting that her condition had improved because she had got out of bed. Dr Vernon did not ask Mrs Learmont, and did not know, why she had got out of bed. Moreover, it seemed to me obvious that when Mrs Learmont uttered the words "Having the likes of the rash", she was about to go on to explain what her concern about the rash was when she was interrupted and cut off by Dr Vernon. Had Dr Vernon allowed Mrs Learmont to continue speaking, she might well have heard her expressing concern at the possibility that she was suffering from meningitis, but she did not give her an opportunity to elaborate on the subject of the rash.

[77] Secondly, I attach significance to the length of the consultation which Mrs Learmont had with Dr Vernon. The evidence of Lauren about the length of the consultation was as follows:

"Now .... so presumably, did you and Scott wait in the waiting room while your mum was in seeing the doctor? - Yes, we did.

And can you remember how long it was before she came out? - About two or three minutes - four minutes at the most she would have been in. About three minutes.

Four minutes at the most? - If that I would say."

[78] Scott's evidence was as follows:

"Can you remember how long she was away in seeing the doctor before she came back? - Not long. She was in for about five minutes I think, if that."

[79] There was also the evidence of the times which appear in Dr Vernon's note of the consultation. The entries read as follows:

"17:57 25-Dec-1999 Doctor Vernon, Fiona (TRIAGE) consultation begin (sic)

18:03 25-Dec-1999 diagnosis entered."

[80] I have already referred above to what Dr Vernon said in evidence about these timings, but for the sake of precision it is convenient to set out here the exact questions and answers:

" ...... and then at 1757 the consultation begins. Now, do you type in the consultation? - No.

Right, do you know how that entry is made? - No.

But you type in something? - When she comes in?

Yes, or do you type in something after she has gone out? - You put in the diagnosis.

But you put in the diagnosis and that is all? - Yes.

So you do not know who put in the 1757? - No.

Is it possible that that has been put in by the person bringing the patient into the room? - I don't think so, the only thing I can suggest - I was never shown actually how these things work, possibly because we only infrequently went to this particular place, we covered our own practice as well - and possibly it is when you would open up the screen.

That would prompt a timing? - I would think that is probably how it works.

And then once the patient has gone out you enter the diagnosis? - I did with this lady.

So, that would seem to indicate then that the duration of the consultation is 1757 to 1803. Is that right? - Well again I do not know exactly at what point 1803 gets recorded.

But assuming that you are right and that is when you enter the diagnosis that would tend to indicate that the duration of the consultation was about six minutes? - I would think so.

And in fact I suppose it could be as short as five minutes and as long as seven minutes, if we can infer from these timings? - Possibly."

[81] On the basis of the above evidence about the length of the consultation I conclude that it lasted approximately five minutes. I think it is a reasonable inference from the evidence of Dr Vernon that the computer into which she was typing her note of the consultation automatically entered a time at the beginning of any entry made. For present purposes it matters not whether the time mechanism was displaying the correct time: what is important is that the computer timed the entry for the beginning of the consultation at 1757 and the entry for the making of the diagnosis at 1803. As seconds were not recorded, the former entry could have been at 1757 exactly, 1757 and fifty nine seconds or at any time between those times and the latter entry at 1803 exactly, 1803 and fifty nine seconds or at any time between those times. Accordingly, the minimum period between the times recorded on the computer is six minutes exactly and the maximum time is seven minutes minus one second. Making allowance for the fact that some time would have been taken up with Mrs Learmont saying hello and goodbye to Dr Vernon and also for the fact that there would have been a short time gap between Mrs Learmont leaving the consultation room before Dr Vernon began to enter the note of the diagnosis, and taking into account the impression (for that is all it could have been) which Scott and Lauren had about how long the consultation lasted, I think it is a fair inference that it lasted about five minutes. Although Dr Doyle is a consultant neuropathologist and not a GP, he stated that he also examined living patients when he remarked that he "would take his hat off to anyone who could do all that in five or seven minutes" and that he could not imagine it being done adequately in ten minutes. In my opinion there is considerable force in that observation.

[82] Thirdly, I attach importance to the inadequate note of the consultation made by Dr Vernon. She herself recognised that it was a poor note in that it did not record everything which she said she had done and in the course of her evidence apologised for it. I was asked on her behalf to accept that she had carried out examinations of Mrs Learmont which are not mentioned in the note, such as checking that the rash was a blanching rash, the taking of pulse and temperature, examining Mrs Learmont's throat, examining for neck flexion and performing Kernig's test, as well as that she took a history from Mrs Learmont beyond what she got from the receptionist and on the phone herself from Mrs Learmont. While bearing in mind the warning given by Lord Reed in McConnell v Ayrshire and Arran Health Board [2001] Rep LR 85 at p 86, para 28 that "courts should treat with caution submissions which are made on the basis that medical records must be expected to be a complete record of events", I think that there is in this case substance in the submission for the pursuers that the poor note reflected a poor examination of Mrs Learmont (in a short time). The note is not, of course, in itself necessarily conclusive of what was done, it is not for me to prescribe what a GP should write in the note of a consultation and the fact that the note of a consultation was inadequate could not in itself provide a causative link to the subsequent death of the patient. Nevertheless, the note is an adminicle of evidence which I am entitled to take into account along with all the other evidence in deciding what did, or did not, happen at the consultation. I think it is significant that there is no mention whatsoever in the note of the possibility of meningitis or that Mrs Learmont thought that she might be suffering from meningitis. Indeed, nothing in the content of the note directly indicates that Dr Vernon had any suspicion of meningitis and that she carried out the full examination which she said she did. As meningitis is a condition which can prove rapidly fatal, I find that more than surprising. The purpose of the examination, if the evidence of Dr Vernon is to be accepted, was to exclude the possibility of a rapidly progressing fatal disease, but there is nothing in the note to indicate that that was the case.

[83] Fourthly, Dr Vernon did not (as I find), when interviewed by Constable Saunderson on 27 December, make any mention of the possibility of meningitis. I find that also to be surprising as she knew by then that Mrs Learmont had died. I refer to the terms of the statement which she provided. Constable Saunderson's evidence was that he could not remember if Dr Vernon mentioned the word "meningitis" on the phone, but he thought that if it had been mentioned he would have written it down. He impressed me as a careful and sensible police officer and I accept that if the word "meningitis" had been mentioned on the phone by Dr Vernon he would have made a note of it.

[84] Fifthly, Dr Vernon's description of Mrs Learmont's rash in evidence varied considerably from the description of it which she gave to Constable Saunderson on 28 December. She told Constable Saunderson that the rash was about 5 cm x 5 cm, but her evidence was that it was about 1.2 cm x 0.8 cm. That is not just a small or insignificant variation in the description of the rash, but two significantly different descriptions of it, and must give rise to doubts about her credibility and reliability. The two descriptions cannot both be correct.

[85] Sixthly, in the course of her evidence she stated both that, so far as Mrs Learmont was concerned, she felt that things were not rapidly getting worse, and if anything she seemed a bit better, but also accepted that she told Mrs Learmont that things would get worse before they got better. It seemed to me that in making these statements she was contradicting herself. I do not see how she could at the same time have been of the view that Mrs Learmont was in the early stages of a viral infection which would get worse and also that she seemed a bit better.

[86] Seventhly, as I have already indicated, I cannot accept her evidence that Mrs Learmont had a good range of movement of her neck, being satisfied from the evidence of the family that her stiff neck was a major problem for Mrs Learmont.

[87] Eighthly, there is her equivocal evidence (referred to above) about the description which Mrs Learmont gave of her headache.

[88] Having regard to the generally poor impression I formed of Dr Vernon as a witness for the above reasons, and consequently my serious doubts about her credibility and reliability, I have reached the conclusion that the consultation which she had with Mrs Learmont was short, cursory and superficial. In my judgment she could not have taken a full history and carried out all the examinations of Mrs Learmont which she said she did in the period of about five minutes which the consultation lasted. I am satisfied that she considered to a certain degree Mrs Learmont's neck symptoms and the rash on her left arm. Mrs Learmont was obviously concerned about these two symptoms when she spoke to Dr Vernon on the phone and they are both mentioned in the note of the consultation and in Dr Vernon's police statement of 27 December. In that police statement she said that Mrs Learmont had one tender gland on the right of her neck and a fine, non-specific rash on her left forearm. In her police statement of 28 December she said that she checked the movement of Mrs Learmont's neck and it appeared fine, she had a good range of movements and wasn't in too much discomfort at all, the only thing she found was one tender gland on the right side of her neck. She went on to say in that statement that Mrs Learmont then showed her a small red rash about 5 cm x 5 cm on the inside of her left forearm, that she pressed her finger on the rash and it disappeared and then came back. On the other hand, I find that Dr Vernon did not test Mrs Learmont's neck for forward neck flexion, and I reject her evidence that Mrs Learmont had a good range of movement of her neck. Mrs Learmont could not possibly have a had a good range of movement of her neck at the time of the consultation in light of what she said on the phone and the evidence of the family, which I accept. Additionally, it is now known that Mrs Learmont died from meningitis about 12 hours after seeing Dr Vernon and the medical evidence from consultants indicates that she could reasonably be expected to have had a stiff neck at the time of the consultation. I am satisfied that, had Dr Vernon tested Mrs Learmont's neck for flexion, she would have discovered either that she could not flex her neck at all or that she had great difficulty in doing so. I simply do not know how Dr Vernon was able to conclude that Mrs Learmont had a good range of movement of her neck. Further, I hold that the rash did not blanch on pressure being applied to it. Dr Vernon's evidence was that her thumb covered all of the redness (which would clearly have been impossible had it measured 5 cm x 5 cm, as she told Constable Saunderson on 28 December) and that after she lifted it possibly a little bit of redness remained, but no spots within the general area of redness. The evidence of four doctors (Ellis, Masterton, Hewitt and Thornton - the last two of whom are referred to below) was to the effect that if any redness remained the rash was not a blanching one and was a worrying sign. The submission for the pursuers was that Dr Vernon did not think about meningitis till 27 December. If she did press her thumb on the rash, that would tend to indicate that she was testing for a petechial rash and therefore for meningitis, but I agree with the submission for the pursuers that if she did entertain the possibility of meningitis she did so only very fleetingly. I hold that she either tested the rash inadequately by not realising that the fact that possibly a little bit of redness remained when she applied pressure meant that the rash was a non-blanching one, or she did not test the rash at all. She admitted that she never asked Mrs Learmont the result of the glass test which she had carried out at home. As stated above, I think that Dr Vernon approached this consultation with a certain attitude, which caused her not to fully consider the history of Mrs Learmont's illness and her signs and symptoms. She went on to make a diagnosis without considering fully the whole picture because her view was that Mrs Learmont was suffering from a virus.

What examination of Mrs Learmont would an ordinarily competent general practitioner have performed?

[89] The legal criterion for liability for medical negligence is so well known that it hardly needs repetition, but as it is necessary that I should apply it to the facts which I have found in this case it is convenient to cite that test as stated by Lord President Clyde in Hunter v Hanley 1955 SC 200 at pages 204-5:

"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other medical men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing 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 of ordinary skill would be guilty of if acting with ordinary care - Glegg, Reparation (3^rd Ed), p 509."

His Lordship went on at p 206 to formulate the test more precisely in the following terms:

"To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly, it must be proved that the defender has not adopted that practice; and, thirdly, (and this is of crucial importance) it must be proved that the course which the doctor adopted is one which no professional man of ordinary skill would have taken if acting with ordinary care. There is clearly a heavy onus on a pursuer to establish these three facts, and without all three his case will fail. If this is the test then it matters nothing how far or how little he deviates from the ordinary practice. For the extent of deviation is not the test. The deviation must be of a kind which satisfies the third of the requirements just stated."

[90] In Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 McNair J quoted the first of the above two passages from Lord President Clyde and went on to state:

"I myself would prefer to put it this way: a doctor 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. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion."

[91] In Bolam v City and Hackney Health Authority [1998] 2 AC 232 Lord Browne-Wilkinson said at p 243C:

"But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible.

I emphasise that in my view it will seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable."

[92] In this case evidence of medical practice was led from two well qualified and experienced general medical practitioners. The pursuers led Dr Ninian Hewitt (56), an Edinburgh GP, a Fellow of the Royal College of General Practitioners elected in 1996 and a GP trainer. On behalf of Dr Vernon there was led Dr Peter Thornton (56), a GP from Carnoustie, a Fellow of the Royal College of General Practitioners since 1995 and a GP trainer. It is true to say that there was little substantive difference between the evidence of these two witnesses. Dr Hewitt did not think that Dr Vernon could have carried out the examinations described by her in six minutes, and it was less likely that she could have done so in four or five minutes: he considered it remarkable that a GP could take a full history and do a full examination in five minutes. He thought it was extraordinary that there was no mention of meningitis in the note if the reason why Dr Vernon saw Mrs Learmont was to exclude the possibility of meningitis, and he was of the view that negative findings should have been recorded in the note. Dr Thornton did not agree with him on these matters. On the subject of the practice to be adopted by a GP in a case of suspected meningitis both these doctors stated that if a GP suspected that a patient may be suffering from meningitis he had to take a history by asking questions of the patient and listening to what the patient had to say. They agreed that the GP should take the patient's pulse and temperature, test for restriction of neck flexion, preferably by carrying out a passive neck flexion test, and examine any rash present. It is not necessary for me to go into the evidence of these two doctors in any further detail, for it was conceded on behalf of Dr Vernon that if I found as a fact that Mrs Learmont presented at the consultation with either or both of restricted forward neck flexion and petechial rash then Dr Vernon ought to have suspected meningitis. It was further conceded that, had Mrs Learmont been referred to hospital by Dr Vernon at about 6 pm on 25 December, she would have survived. As I have found that Mrs Learmont did present at the consultation with these symptoms it follows that Dr Vernon ought to have suspected meningitis, prescribed an antibiotic blind and referred Mrs Learmont to the nearby Dumfries and Galloway Royal Infirmary, in which event Mrs Learmont would have survived. As Dr Vernon did not refer Mrs Learmont, she was professionally negligent, the three facts set out by Lord President Clyde in Hunter v Hanley (supra) at p 206 having been established.

Damages

[93] Damages were agreed in a joint minute (26 of process) in the following sums: (a) to the first pursuer and Ross Michael Learmont as Executors of Mrs Learmont, £3,000 inclusive of interest to 11 January 2005; (b) to the first pursuer as an individual, £63,500 inclusive of interest to 11 January 2005; and (c) to the second pursuer as an individual, £73,500 inclusive of interest to 11 January 2005, all with simple interest from 12 January 2005 on 50% thereof at 4% per annum until the date of decree.

Decision

[94] For the reasons set out above the first plea-in-law for the pursuers will be sustained and the pleas-in-law for the defender repelled and damages awarded in the agreed sums set out in the joint minute (26 of process). The case will be put out By Order for an agreed calculation of interest to be provided so that the required interlocutor can be pronounced.