13 May, 2020

Jennifer McCulloch and others v Forth Valley Health Board [2020] CSOH 40

Action in which the pursuers claimed that there had been negligence in a cardiologist’s care of the late McCulloch which resulted in his death aged 39. The proof was heard over eight days, with the majority of quantum agreed in advance. On 7 May 2020, Lord Tyre granted decree of absolvitor.

Mr McCulloch suffered a fatal cardiac arrest at home, having had two admissions to hospital. He died as a result of cardiac tamponade (compression of the heart by a pericardial effusion). The pursuers criticised the care given during the second hospital admission, when Mr McCullosh had a persisting pericardial effusion. Their primary case included criticisms that the cardiologist failed in her duties (i) to prescribe Colchicine; (ii) to prescribe a non-steroidal anti-inflammatory drug; and (iii) to instruct a repeat echocardiogram prior to discharge.

Lord Tyre required to apply the Bolitho test, given the conflicting expert evidence as to whether or not the course adopted by the cardiologist was in accordance with usual and normal practice. He was satisfied that the Bolitho test was met only in relation to the issue of the instruction of a repeat echocardiogram, as he concluded that the defenders’ expert view that it was not necessary to instruct a repeat echocardiogram was not reasonable. On this issue alone he found the pursuers’ case of negligence to have been established.

On causation, he concluded that there was no basis in the evidence to enable him to hold, on the balance of probabilities, that but for the single negligent omission the death would not have occurred. As a result, the pursuers’ primary case failed.

Material contribution case
The pursuers also contended in the alternative that the failure to prescribe non-steroidal anti-inflammatories made a material contribution to the death and there should be liability on this basis. Lord Tyre commented on this alternative case although it did not strictly arise given his decision on negligence. In his view there was no room for application of any modification of the usual “but for” causation given the pursuers’ case on Record and in evidence.

Duty to advise of risks of treatment and alternatives
The pursuers also claimed that the cardiologist was in breach of her duty to take reasonable care to ensure that Mr McCulloch was aware of any material risks involved in the recommended treatment and of any reasonable alternative treatments (per Montgomery v Lanarkshire Health Board). They claimed that had the risks and benefits been discussed with him, Mr McCulloch would have consented to the prescription of non-steroidal anti-inflammatories. Lord Tyre agreed with the view expressed by Lord Boyd in AH v GGHB 2018 SLT 535 and considered that Montgomery did not impose upon a doctor an obligation to disclose and discuss alternatives that he or she does not, in the exercise of professional judgement, regard as reasonable. He concluded that the case based on failure to advise of risks or alternative courses of treatment failed.

Had liability been established, parties had agreed the value of the majority of the claims and these are set out in the opinion. The values of the section 4(3)(b) claims for two young children (aged 7 and 1 at date of death) were not agreed. Lord Tyre would have allowed £80,000 plus interest, in keeping with the jury award of £80,000 in Anderson v Brig Brae Garage Ltd 25 June 2015. The total value of the claims was over £1 million.

Ampersand’s Una Doherty Q.C. represented the defenders, along with Ewen Campbell, Advocate. The pursuers were represented by Ampersand’s Lauren Sutherland Q.C., along with Yvonne Waugh, Advocate.

Opinion of Lord Tyre can be viewed here.

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