DS V NHS Grampian

Paul Reid KC and Shane Dundas of Ampersand Advocates successfully acted for NHS Grampian (the defender, respondent and cross-appellant) (“the respondent”) in a recent appeal concerning allegations of clinical negligence directed against a Consultant Neuroradiologist.

The pursuer, appellant and cross-respondent (“the appellant”) had been experiencing symptoms of nausea, headaches, pins and needles, tinnitus and visual disturbances. Her GP referred her for an MRI scan of her brain to investigate the underlying cause of her symptoms. In January 2013 the scan was reviewed by a Consultant Neuroradiologist, who reported that no abnormalities were present.

As her symptoms persisted, the appellant underwent another MRI scan in 2015. On that occasion, the neuroradiologist reporting on the scan identified the presence of a pineal cyst. The cyst had not been identified on the reporting of the 2013 scan but, in retrospect, it had been present on the earlier imaging. The appellant underwent surgery for the removal of the cyst which was performed by a neurosurgeon in Germany in July 2015. Following surgery, the appellant reported an improvement in her symptoms.

The appellant brought an action for damages against NHS Grampian alleging that Dr Robb, Consultant Neuroradiologist had breached her duty of care in failing to identify and report on the pineal cyst which had been present on the initial MRI scan. The appellant contended that, had the cyst been identified at that time, she would have undergone surgical treatment approximately two years earlier than she in fact did. As a result, the appellant claimed that she experienced two years of non-specific symptoms (including headaches, tinnitus, and nausea), developed gastrointestinal issues, and was unable to secure permanent employment.

The appellant was successful at first instance. However, she appealed the decision in respect of the amount of damages which had been awarded to her following proof. The respondent lodged a cross-appeal in which it contended that the sheriff had erred in finding negligence in the reporting of the scan. The respondent further contended that the sheriff had erred in finding that the appellant had proved a causal link between the non-reporting of the cyst and such symptoms as had been experienced by her.

The Sheriff Appeal Court (“SAC”) upheld the submissions of the respondent and set aside the sheriff’s findings on negligence and causation. The SAC held that the non-reporting of the cyst on the 2013 scan did not constitute negligence because an ordinarily competent neuroradiologist, exercising ordinary skill and care, could reasonably have not reported on the presence of the cyst due to several factors which made it difficult to observe. The SAC also held that the appellant had failed to prove a causal link between the cyst and the symptoms experienced by her following its non-reporting.

The decision of the SAC provides important guidance to practitioners about the approach which the court will take to issues that are frequently encountered in clinical negligence cases. It is likely to inform the approach to clinical negligence cases in the Sheriff Court in future.

In determining the cross-appeal, the SAC required to consider the proper approach to resolving competing expert evidence on issues of breach of duty. The SAC explained that it was not the function of the court to choose between different schools of expert opinion. Instead, the correct approach was to scrutinise the evidence of the expert opining against negligence and assess whether it stood up to scrutiny and thus constituted a responsible or respectable body of medical opinion. If so, the case in negligence would fail because the pursuer would have failed to prove that no doctor, exercising ordinary skill and care, would have acted in that way (the third limb of the Hunter v Hanley test). The SAC held that the expert evidence led by the respondent constituted a responsible body of medical opinion: it was properly reasoned, logical and stood up to scrutiny. Thus, the appellant’s case failed on negligence.

The SAC also provided guidance on the proper approach to causation. It reiterated that the burden of proof lies with the pursuer who requires to establish, through evidence, matters of causation. In relation to medical causation, the court noted that the pursuer had not led evidence from a neurologist (who would have been the correct speciality to comment on causation). Thus, the SAC found that the appellant had not discharged the burden of proof in relation to matters of medical causation. This serves as an important reminder to practitioners to ensure that evidence is led at proof from experts who are appropriately qualified to comment on the matters in dispute.

The case also gave rise to interesting issues of factual causation: in particular, whether the appellant would have obtained surgery abroad had the cyst been reported on earlier. Whilst it was the appellant’s position in evidence that she would have sought and obtained surgery abroad in 2013, the court explained that evidence which is given with the benefit of hindsight requires to be treated with caution. The appellant did not lead evidence from the neurosurgeon who performed surgery in 2015 that he would have performed the same procedure 2 years earlier (before the acute deterioration in her symptoms). Despite the appellant’s evidence to that effect, there was no sufficient basis to conclude that even if the cyst had been reported on in 2013 the appellant would in fact have obtained earlier surgery. In concluding that surgery would have been available abroad in 2013, the sheriff at first instance relied on medical literature which had been cautioned against by the respondent’s experts at proof. However, drawing on the decision of the Supreme Court in Sienkiewicz v Greif, the SAC emphasised that medical literature requires to be treated with caution by courts. Whilst medical literature can assist the court in its assessment of expert evidence, the SAC was clear that it is not the function of the court to draw its own conclusions based on medical literature alone. Practitioners will require to be cognisant of the fact that, whilst it can be helpful, medical literature is not a substitute for properly reasoned expert evidence.

Against that background, the appeal was refused, the cross-appeal was allowed and decree of absolvitor was pronounced.

Opinion of the court, delivered by Sheriff Joan F Kerr, can be viewed here.

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Marlene Simpson & Faye Anne Campbell v Dumfries & Galloway Health Board

Ampersand’s Scott Clair acted as sole counsel for the defender and respondent health board in this appeal (having also appeared at first instance), in relation to whether a fatal claim for clinical negligence was time-barred due to the operation of the Prescription and Limitation (Scotland) Act 1973, and, in the event the claims were found to be time-barred, whether the court ought to exercise its equitable discretion to allow the pursuers and appellants to bring their claims albeit late.

The case was tragic and involved the suicide of a young man. The pursuers argued that nurses employed by the defender and respondent had negligently assessed the deceased earlier on the day that he died, which led to his death. They went on to make a formal complaint to the defender and respondent shortly after the deceased’s death and, where that was not upheld, to the Scottish Public Services Ombudsman (‘SPSO’). The SPSO did not produce its decision until more than three years following the date of the deceased’s death. The pursuers argued that, whilst they were ‘suspicious’ of negligence on the part of the nurses, the three-year limitation period did not commence until the date on which they received the SPSO decision.

The defender and respondent were successful at first instance before Sheriff Fife. He found that the pursuers’ claims were time-barred as they knew all they required to know for the three year period to commence at the time they made a formal complaint to the health board, and, that in the circumstances it was not equitable to allow them to bring their claims late. The pursuers appealed both parts of that decision and the Sheriff Appeal Court have now dismissed the appeal in its entirety.

The judgment of the Sheriff Appeal Court can be found here.

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