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5 April, 2021

Jennifer McCulloch and others v Forth Valley Health Board [2021] CSIH 21

On 1 April 2021, the Second Division of the Inner House refused the pursuers’ reclaiming motion and allowed the defenders’ cross-appeal.

Pursuers’ grounds of appeal

The pursuers had reclaimed certain of the Lord Ordinary’s findings after proof which resulted in decree of absolvitor (Jennifer McCulloch and others v Forth Valley Health Board [2020] CSOH 40). The action related to the death on 7 April 2012 of Mr McCulloch, who suffered a fatal cardiac arrest at home as a result of cardiac tamponade. The pursuers’ criticisms related to the care given to Mr McCulloch in hospital prior to being discharged home on 6 April 2012. In the reclaiming motion, the pursuers claimed that the Lord Ordinary erred (i) in finding that there was no duty on the cardiologist to prescribe non-steroidal anti-inflammatory drugs; (ii) in his application of the law on information disclosure as set out in Montgomery v Lanarkshire Health Board 2015 UKSC 11; (iii) in his approach to causation; and (iv) in his assessment of the evidence of the defenders’ independent expert.

In its Opinion, the Inner House discussed the role of the appellate court (at [25] – [26]), and the consideration of skilled evidence in terms of Kennedy v Cordia (Services) LLP 2016 UKSC 59 and Bolitho v City Hackney Health Authority [1988] AC 232 (at [30] – [32]). At [35] – [41], the Inner House agreed with the Lord Ordinary’s approach and Lord Boyd’s analysis in AH v Greater Glasgow Health Board 2018 SLT 535 that the ratio of Montgomery was a limited innovation on the rule in Bolam/ Hunter v Hanley, and that there was no obligation on a doctor to disclose and discuss a treatment that she does not in the exercise of professional judgement regard as reasonable. Montgomery had no application in the circumstances of the present case.

The Inner House also rejected the pursuers’ criticisms of the Lord Ordinary’s assessment of the defenders’ expert witness Dr Bloomfield as an independent witness (at [27] – [34]), and concluded that the Lord Ordinary was entitled to reach the conclusion on the basis of that evidence that there was no duty to prescribe non-steroidal anti-inflammatory drugs (at [41] – [47]).

On the issue of causation, the Inner House confirmed that in cases of medical negligence causation remains a matter of proof to the standard of a balance of probabilities. Where the scenario is hypothetical the issue must be assessed on the general basis of likelihood, having regard to the whole evidence on the matter. The evidence must be looked at in the round; it is necessary to lead evidence which can satisfy the court that on balance, the loss (here the death) would have been avoided had the predicated step been followed. The Inner House was satisfied that the Lord Ordinary approached the evidence on causation on this basis (at [59]). In respect of the prescription of non-steroidal anti-inflammatory drugs, there was no basis upon which the pursuers could have succeeded on causation (at [60]). In respect of the repeat echocardiogram, the Lord Ordinary correctly considered that consideration of the issue of causation involved speculation, given the lack of evidence over what treatment may have commenced or when and the likelihood of it preventing the death, had a repeat echocardiogram been carried out, and that the case on causation failed (at [61]).

Defenders’ cross-appeal

The defenders cross-appealed the Lord Ordinary’s one finding of breach of duty, in respect of the cardiologist’s failure on 3 April 2012 to order that there be a further echocardiogram prior to Mr McCulloch’s discharge. Although the Lord Ordinary found that there was negligence in this single respect, he concluded that the pursuers had not proved on the balance of probabilities that, but for that breach of duty, the death would not have occurred, and accordingly the pursuers’ case failed on causation.

The defenders successfully argued that the Lord Ordinary erred in concluding that the Bolitho test for rejection of  supporting expert evidence was met in respect of Dr Bloomfield’s evidence on this issue that there was no duty to order such a repeat echocardiogram. The Inner House concluded that the Lord Ordinary had erred in his reasoning and conclusions, and that Dr Bloomfield gave clear and defensible reasons for his opinion (at [48] – [57]). The cross-appeal was granted.

Representation

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 Second Division can be found here.

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