Lauren Sutherland QC appointed new PEOPIL Medical Negligence Head
PEOPIL (Pan European Organisation of Personal Injury Lawyers) President John Beer has today welcomed the appointment of Ampersand’s Lauren Sutherland QC as the new head of its medical negligence section comprised of Specialist European Clinical Negligence Lawyers. The section’s objectives include putting together a framework for the exchange of cross-border information on issues of medical negligence, organising medico-legal conferences and lobbying European institutions to protect victim’s rights.
Commenting on her appointment PEOPIL President John Beer said today “We are delighted that a person of the calibre and experience of Lauren Sutherland QC has agreed to become the
new Chair of our medical negligence section. Lauren’s career has centred around fighting for the rights of medical negligence victims to receive proper compensation for injuries caused
by medical negligence. In 2009 she was one of two Counsel’s appointed by the Scottish Government to lead the Vale of Leven Hospital inquiry into the outbreak of C difficile at the
hospital and has lectured extensively to lawyers and doctors on clinical negligence”.
If you wish to contact Lauren to discuss the benefits of becoming a PEOPIL member and to join this group please email her at Laurenadv@aol.com or simply click this link to become a
PEOPIL member .
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CHAPTER 42A: NEW PROCEDURE INFORMATION EVENT
*Faculty of Advocates event*
To provide information, explanation and discussion about the new rules and their implications for litigation practitioners which have been designed to facilitate the more efficient exchange of information.
Registration, tea and coffee will be available from 4 pm. Event to be followed by networking drinks for attendees.
The event will be chaired by The Hon. Lord Armstrong
The speakers for this event include:
- Maria Maguire QC
- Amber Galbraith, Advocate
- Darren Deery, Solicitor, Partner. Drummond Miller
- Norma Shippin, Director of the CLO and Legal Adviser to the NHS in Scotland
AGENDA
CHAIR: The Hon. Lord Armstrong
4.00 to 4.30 Registration
4.30 to 4.40 Welcome and opening remarks from Chair
4.40 to 5.00 Maria Maguire QC: Introduction and overviewProviding a background to the changes, how the new rules and practice note were developed and the key objectives for the new process. How this procedure aims to improve efficient progress of actions, through early disclosure, discussion and co-operation.
5.00 to 5.20 Amber Galbraith, Advocate: New Rules in Practice. Consideration of the practice note and focus on what will be required in terms of particular steps now to be taken at an earlier stage in the process: additional documents to be considered/drafted, what would be expected from Counsel and how that could/should be managed and organised with the assistance of the Clerks.
5.20 to 5.40 Darren Deery, Solicitor, Partner. Drummond Miller:New Rules in Practice, from the perspective of a pursuer’s agent. To consider what changes in approach or methodology might be required from a pursuers’ agent. For example, what investigations will require to be carried out at an earlier stage, and what additional information should be obtained or considered. Also, to address how earlier positive engagement with Counsel and the defenders’ representative might be managed.
5.40 to 6.00 Norma Shippin, Director of the CLO and Legal Adviser to the NHS in Scotland: New Rules in Practice, from the perspective of a defenders’ agent. To address the new rules, as they will affect the defenders’ agents in practice. What investigations and information should be obtained, and how effective liaison and discussion with pursuer’s agents might be managed.
6.00 to 6.30 Q&A/panel discussion
6.30 Closing remarks from Chair.
DRINKS
Full details and how to sign up on Eventbrite here.
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Allan Johnstone v Grampian Health Board [2019] CSOH 90
The patient in this case, Mr Johnstone, argued that he had not been properly consented for a neurosurgical procedure that he underwent. His position was that he had not been told of the risks involved in the procedure, nor had he been told about the appropriate alternatives to surgery. The defenders contended that he had been appropriately consented.
Following a two-week proof Lord Glennie concluded that the patient had been told of the risks and the alternatives, and his action failed.
The patient was represented by Lauren Sutherland QC. The defenders were represented by James McConnell.
The Opinion of Lord Glennie can be found here.
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Lord Glennie rejects claim that surgery was performed without the pursuer’s informed consent
Allan Johnstone v Grampian Health Board [2019] CSOH 90
Case comment by Michael Way, advocate
13 November 2019
Facts
The pursuer suffers from acromegaly, which results when the pituitary gland produces excessive growth hormone and can result in benign tumours growing in the pituitary gland and acute arthritis. In 1980, the pursuer underwent successful surgery in connection with his acromegaly. By 2010, the pursuer’s condition was reviewed and MRIs showed tissue suggestive of a persistent pituitary adenoma. There were multi-disciplinary team (“MDT”) discussions about how to deal with this. Endoscopic surgery or radiosurgery were considered possible.
In September 2010, the pursuer and his wife met with consultant neurosurgeon, Mr Kamel. Accounts differed between the parties as to the nature and content of their discussions. The result of the meeting, however, was that the pursuer was listed for surgery. The pursuer underwent surgery on 31 January 2011 and signed a consent form. There was a further dispute about whether any explanation was given prior to the operation.
After surgery (where no tumour was found) the pursuer was discharged from hospital. He became unwell. He suffered a cerebrospinal fluid leak and meningitis, with a result that he will require medication for the rest of his life and now suffers from other medical issues. In the event of liability being found, quantum had been agreed and so these matters were not in issue.
Issues
There was one principal issue for the Court:
1. Did the pursuer give true consent on the basis of full or sufficient information about the potential risks of the operation, the alternative treatments available and the risks attached to them, and the option of simply doing nothing – or not?
Decision
Informed Consent
This case relied on the Supreme Court authority of Montgomery v Lanarkshire Health Board 2015 SC (UKSC) 63. Lord Glennie summarised the pursuer’s “essentially straightforward” case at [122]. The defenders had a duty to take reasonable care to ensure the pursuer was aware of any material risks, reasonable alternatives and the option of having no treatment. The defenders failed in this duty. Any consent given by the pursuer was therefore, not true andinformed consent. Operating, in the absence of such informed consent was a breach of duty. The defenders were liable for the consequences of that breach of duty.
The defenders formulated the question slightly differently, arguing that the duty was breached only where the action fell below the Hunter v Hanley standard of accepted medical practice. However, even if the lower standard of ‘reasonable care’ was applied, the evidence established that Mr Kamel had taken reasonable care.
Lord Glennie considered that, taking into account the time lapse since the events (some 9 years), the witnesses could all be considered to be doing their best to tell the truth and that the case could not be decided simply on the basis of one side being inherently more credible than the other (at [127]).
Lord Glennie went on to distinguish what the case was not about. It was not about a misdiagnosis of a tumour, when there turned out to be none. It was not about whether the pursuer should have had no treatment, because the weight of medical opinion was that he should. It was not about whether the operation or post-operative case was negligent. Nor was it about whether specific GMC guidance had been followed to the letter.
Turning to what the case was about, the pursuer’s meeting with Mr Kemal on 16 September 2010 was crucial. A note of that meeting, said to be produced shortly afterwards, and a letter from Mr Kemal to another member of the MDT, Prof Bevan, dated the same day were produced. The content of the note is summarised at [139]. In short, it detailed a reasonably full discussion of the risks and options available. The pursuer’s evidence (see [140]) about the meeting contradicted much of this note. The pursuer’s account was supported by his wife’s recollection. Ultimately, Lord Glennie considered that Mr Kemal’s note was a fair and accurate summary. To the extent that it differed from the pursuer’s recollection, the Court preferred the account in the note.
There was a further question of consent on the day of the operation. A note had been produced, suggesting that Mr Kemal had obtained pre-operative consent that day. There was a weight of evidence against such a conclusion – instead a Mr Bodkin had. Lord Glennie noted at [147] that “the true provenance and purpose of this note remains shrouded in mystery”. However, the Court was satisfied that, on the evidence provided, Mr Bodkin had likely followed a reasonable pre-operative consent procedure.
Lord Glennie was ultimately satisfied that the actions of Messrs Kemal and Bodkin were each sufficient to comply with the Montgomery duty of care (at [149]). Any subsidiary criticisms advanced by the pursuer were not held to be well founded. Accordingly, decree of absolvitor was granted in favour of the defenders.
Analysis
Although Lord Glennie described the issue in the post-Montgomery case as being “relatively straightforward”, it’s clear from the 82 pages and 154 paragraphs that proving a case of this sort remains a major undertaking.
As in so many cases, however, ultimately the case boiled down to a dispute over the reliability of documentary evidence when placed against witnesses’ recollections many years down the line. Perhaps unsurprisingly, Lord Glennie ultimately preferred the documentary evidence – in particular with respect to the crucial 16 September 2010 meeting. That said, there was a major discrepancy with respect to the “mystery” of the pre-operative note. However, in the absence of any suggestion that the note was fabricated, and given that Mr Kemal had no recollection of the note, there was only a limited amount that could be taken from it.
The takeaway for medical professionals, as ever, is the value of proper note-taking and record keeping. Given the length of time that tends to elapse between an alleged incident of negligence and a proof diet, a detailed contemporaneous note is likely to be accepted as the most reliable source of evidence, even in the face of the most emphatic witness recollection.
Representation
The patient was represented by Lauren Sutherland QC. The defenders were represented by James McConnell.
The Opinion of Lord Glennie can be found here.
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Ampersand Advocates Top Rankings success in latest Chambers and Partners UK Bar Guide
Ampersand has again received top tier rankings across a number of areas of practice in the latest published guide to the legal profession, Chambers and Partners UK Bar Guide 2020.
Ampersand received 60 listings across 16 areas of practice, ranking as top tier (band 1) in Clinical Negligence as a Set, and band 2 in Administrative & Public law, Civil Liberties & Human Rights, Commercial Dispute Resolution, Planning & Environment, Personal Injury, Product Liability and Restructuring/Insolvency as a Set. 5 members are noted as “star individuals”.
Noted as a Band 1 set for Clinical Negligence, Ampersand has 18 rankings in this area, including 2 “Star Individuals”. The guide says “Ampersand dominates the Scottish medical negligence market due to its outstanding reputation and impressive offering of advocates. It has a wide selection of juniors and silks at the stable, who act on behalf of both claimants and defenders. Members have far-reaching expertise, covering all areas of clinical negligence, including the most severe birth injuries, fatal surgical errors and cancer cases, as well as widely publicised group actions concerning medical device liability, such as the pelvic mesh litigation. Instructing solicitors point out that the set “has depth and very strong, specialised practitioners.” The clerks also receive high praise “The service is first class. The clerks are extremely approachable, very helpful and nothing is too much trouble for them.” “Alan Moffat is the lead clerk and is a good point of contact. He is helpful and accommodating, so I can go directly to him if I need something urgently.” The “Star Individuals” are Maria Maguire QC and David Stephenson QC.
Band 2 listings include Administrative and Public law where Ampersand is noted as a “Highly regarded stable which possesses several standout advocates acting in important constitutional, commercial and human rights cases. The advocates represent petitioners and respondents in judicial reviews, advise public bodies on the interpretation of regulations and legislation, and act for core participants in public inquiries”. In Civil Liberties & Human Rights the Band 2 listing notes Ampersand as a “A highly regarded stable, Ampersand Advocates has members who represent both claimants and defendants in high-profile civil liberties and human rights cases. Advocates regularly appear at the highest courts in Scotland and the UKSC, as well as the ECtHR and CJEU.”.
In Commercial Dispute Resolution it states “Ampersand Advocates is a highly regarded stable, noted for its involvement in a wide range of complex commercial disputes. The stable houses a number of experienced commercial advocates at both silk and junior levels, and attracts instructions from a diverse client base that includes several financial institutions and large corporates. Its advocates offer expertise in professional negligence, construction and commercial contracts disputes, as well as matters involving intellectual property, planning and insolvency.”
Ampersand’s Commercial expertise is further noted in Restructuring and Insolvency, which includes “Star Individual” David Sellar QC, stating Ampersand “Ampersand Advocates is a strong stable, housing some of the most distinguished restructuring and insolvency advocates in Scotland. It is a go-to stable for companies and their directors, banks and various government departments seeking restructuring advice and representation in major insolvency cases. Members are also regularly instructed by insolvency practitioners to assist with asset recovery matters, and offer significant expertise in international asset-tracing.”
Ampersand’s Personal Injury work is again acknowledged with the guide noting “A highly regarded stable in the personal injury market, Ampersand Advocates retains its reputation as a go-to stable for all manner of injury claims. In addition to offering representation to pursuers in complex and high-value catastrophic and fatal injury claims, the stable’s advocates are also regularly instructed by defenders, and have experience acting on behalf of government agencies and several major insurers. Areas of particular strength for the stable include cases arising from RTAs, accidents at work and accidents abroad, and its advocates are noted for their expert handling of complex employers’ and occupiers’ liability claims. The tenants are also frequently called upon to represent a variety of parties, including local authorities, health boards and bereaved families in fatal accident inquests. Instructing solicitors praise Ampersand as “a very professional stable which provides a high level of service,” adding that “you can tell that everyone there really cares about what they’re doing.”. The clerks get a special note for being “very organised and you can rely on the team to get back to you.” “The clerks are very good at dealing with any queries and are very flexible and very friendly – you never have any difficulties getting in touch with them.” “The clerking team is friendly, reliable, quick at responding and always happy to help.” The “very proactive and easy to deal with” Alan Moffat is the head clerk.” The listing includes Maria Maguire QC and Graham Primrose QC as “Star Individuals”.
In Planning and Environment it states “Ampersand Advocates is distinguished for the substantial planning and environmental expertise of its advocates. It acts for local authorities and all kinds of developers in cases heard at all levels of the court system, including the Supreme Court. The environmental aspects of energy developments are a great source of instructions for Ampersand Advocates. Members of the stable are regularly involved in high-profile matters, including the public inquiry into the refusal of planning permission for the development of the Royal High School in Edinburgh, a challenge to the planning consent for Aberdeen FC’s new stadium and a Supreme Court case dealing with the complexities of European law in relation to a wind farm development.” This includes “Star Individual” Malcolm Thomson QC.
Ampersand is also a Band 2 set in Product Liability stating “A respected presence in the product liability field, with a strong track record of representing pursuers and defenders in a broad array of claims. The stable is able to draw on its impressive capabilities in professional liability and personal injury.”
Ampersand’s full listings can be viewed on the Chambers and Partners website here.
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Ampersand Advocates ‘goes above and beyond at all times’ in latest Legal 500 UK Bar listings
Ampersand is delighted to be once again be recommended as a top-tier set by The Legal 500 UK Bar Directory in their latest listings for 2019 published today.
The guide says “‘From a user’s perspective’, Ampersand Advocates ‘goes above and beyond at all times to assist wherever possible’. Like the other Scottish stables, a diverse range of work comes through its doors, however, tort, real estate, and commercial matters are key strengths, and arbitration is a growing area of focus. ‘All the clerks are friendly, accommodating and very professional’, however at the most senior level Alan Moffat ‘will go out of his way to make sure you get the right counsel for the job’, and his deputy Sheena Hume is ‘particularly efficient and easy to deal with’. Vinit Khurana QC and Una Doherty QC took silk in 2018.”
Ampersand has 36 listings across 10 areas of practice in the Legal 500 UK 2019 guide. The Scottish bar section can be viewed here.
Civil liberties, human rights, public inquiries, and public and administrative law (including local government)
Key areas of work at Ampersand Advocates include EU law, judicial review, and procurement matters. Aidan O’Neill QC recently lead on behalf of the petitioners in Wightman v Secretary of State for Exiting the European Union, an Court of Justice of the European Union case concerning if it was possible for a member state to revoke its notification of intent to leave the European Union under Article 50.
Leading Seniors
Aidan O’Neill QC – Ampersand Advocates ‘ Intellectually impressive and creative in his approach to dealing with issues of public law. ’
Douglas Ross QC – Ampersand Advocates ‘ Highly intelligent and tenacious, with good common sense ’
Dorothy Bain QC – Ampersand Advocates ‘ Highly recommended for civil liberties work. ’
Leading Juniors
Laura-Anne van der Westhuizen – Ampersand Advocates ‘ A first-class legal mind who deals well with complicated cases. ’
Timothy Young – Ampersand Advocates ‘ Technically excellent in public procurement matters. ’
Commercial litigation
Ampersand Advocates is home to a strong contingent of commercial litigators, with experience in a wide range of commercial cases. Notable recent highlights include Take-Two Interactive Software Inc and Rockstar Games Inc v Aaron Renicks, in which Usman Tariq acts, as junior to Roddy Dunlop QC for the developers of Grand Theft Auto who are pursuing a claim against the developer of a modification for the game. Giles Reid recently acted for the borrower in a case concerning the oral variation of a loan agreement, as well as interim orders preventing the lender from commencing bankruptcy.
Leading Seniors
Alan Dewar QC – Ampersand Advocates ‘ Hugely experienced, completely unflappable and always fights his client’s corner. ’
Robert Howie QC – Ampersand Advocates ‘ His depth of knowledge in commercial matters is unparalleled. ’
Leading Juniors
Ross Anderson – Ampersand Advocates ‘ Never afraid to take on even the largest of legal challenges. ’
Giles Reid – Ampersand Advocates ‘ A legal encyclopaedia. ’
Usman Tariq – Ampersand Advocates ‘ His advice and knowledge is consistently of the highest standard. ’
Company and insolvency
Members of Ampersand Advocates are particularly experienced in insolvency matters, acting for all parties in such cases. Of recent note, Timothy Young recently acted for the liquidators in Rowallan Asset Management Limited v Morris & Co, which involved a claim for gratuitous alienation (a transfer under value to dissipate assets) relating to a large agricultural property holding company.
Leading Seniors
David Sellar QC – Ampersand Advocates ‘ His technical knowledge of company and insolvency law makes him a go-to. ’
Leading Juniors
Timothy Young – Ampersand Advocates ‘ Clients appreciate his confident yet approachable demeanour. ’
Employment
Russell Bradley of Ampersand Advocates acts for employers in a wide range of first instance matters, with particular expertise of defending whistle-blowing and unfair dismissal claims.
Russell Bradley – Ampersand Advocates ‘ Extremely tenacious when needed and great with clients. ’
Intellectual property, information technology and media
Usman Tariq at Ampersand Advocates is highly recommended for contentious intellectual property matters, as well as maintaining a substantial presence in the IT sector, particularly in matters concerning gaming and digital applications. Recent instructions include a substantial trade mark infringement and passing off dispute between two manufacturers of electronic cigarettes, where Tariq acted for the pursuers, as well as conducting breach of interdict cases on behalf of large rights-holders such as Sky and the Performing Right Society.
Usman Tariq – Ampersand Advocates ‘ The best all-round IP junior in Scotland. ’
Personal injury and medical negligence
Ampersand Advocates is home to one of the key teams in personal injury and clinical negligence within Scotland, and has ‘real strength in depth’ across all levels of call. Members have significant expertise in all areas of such work, with recent cases including fatal accidents, medical device litigation, catastrophic injury and birth injury. A notable recent case for the set is Gibson v Babcock International, a leading case on the issue of secondary exposure to asbestos, in which Simon Di Rollo QC led for the pursuers.
Leading Seniors
Lisa Henderson QC – Ampersand Advocates ‘ Highly numerate, excellent at drafting complex schedules of loss and very personable. ’
Geoffrey Mitchell QC – Ampersand Advocates ‘ Highly respected by both health boards and claimant solicitors ’
Douglas Ross QC – Ampersand Advocates ‘ A relatively new silk who already posesses all the qualities of an experienced one. ’
Simon Bowie QC – Ampersand Advocates ‘ Recommended for significant clinical negligence cases. ’
Una Doherty QC – Ampersand Advocates ‘ Extremely reliable, quick-witted and efficient. ’
Maria Maguire QC – Ampersand Advocates ‘ Combines superb advocacy skills and a forensic attention for detail. ’
Simon Di Rollo QC – Ampersand Advocates ‘ Highly experienced in industrial disease claims. ’
Lauren Sutherland QC – Ampersand Advocates ‘ Leaves no stone unturned to find a path to a successful outcome. ’
Leading Juniors
Jamie Dawson – Ampersand Advocates ‘ Fantastic at dealing with complex medical evidence and technical details. ’
Fiona Drysdale – Ampersand Advocates ‘ Well-prepared, good with clients and has an eye for detail. ’
Chris Marney – Ampersand Advocates ‘ A very safe pair of hands with good commercial sense. ’
Jennifer Nicholson – Ampersand Advocates ‘
A strong negotiator who has achieved fantastic results for clients. ’
Planning, environmental and licensing
Ampersand Advocates is home to planning law specialists Marcus McKay QC and Laura-Anne van der Westhuizen, who are often instructed in complex or high-profile inquiries and appeals. Notable recent highlights include McKay’s representation of The Viking Wind Farm in a consent application under crofting legislation, and Westhuizen’s work on behalf of the Scottish ministers in an appeal lodged by a dairy farm following the refusal of planning permission for a large greenbelt development.
Leading Seniors
Marcus McKay QC – Ampersand Advocates ‘ Highly experienced in energy-related planning work. ’
Leading Juniors
Professional Negligence
Members of Ampersand Advocates are instructed by both pursuers and defenders in professional negligence cases, across the full range of industry sectors. Recent highlights include Midlothian Council v Bracewell Stirling, where Paul Reid acted as a junior to Alastair Duncan QC on behalf of the defenders, an architectural firm alleged to be liable for negligent ground investigations carried out by another company.
Paul Reid – Ampersand Advocates ‘ One to watch for professional negligence matters. ’
Property, construction and agriculture
Members of Ampersand Advocates are instructed in a wide range of commercial development and property disputes, as well as agricultural issues and nuisance claims. Timothy Young recently advised the defenders on several potential cases concerning property damage caused by incorrectly constituted mortar in the development of a large residential estate.
Leading Seniors
Leading Juniors
Ross Anderson – Ampersand Advocates ‘ Definitely one to watch for property litigation. ’
Timothy Young – Ampersand Advocates ‘ Exceptionally intelligent with a gift for honing in on the points that matter. ’
Tax, trusts and pensions
Ross Anderson at Ampersand Advocates has significant experience acting for HM Revenue and Customs in both the First-Tier and Upper Tribunals. He also appeared as appearing as a junior to Kieron Beal QC of Blackstone Chambers in London, again on behalf of the Revenue, in the Supreme Court case Frank A Smart & Sons v HMRC, which concerned the deductability of VAT incurred when purchasing entitlements to the Single Farm Payment, a European Union farming subsidy.
Ross Anderson – Ampersand Advocates ‘ He has made a sure-footed transition from academia to the Bar. ’
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