Decree of absolvitor for Greater Glasgow Health Board

Ampersand’s Una Doherty Q.C. acted for the defenders in Alan McNab and others v Greater Glasgow Health Board [2020] CSOH 53. The pursuers were relatives of the late Ms McNab. They alleged clinical negligence on the part of a consultant urological surgeon employed by the defenders. Quantum was agreed between the parties. A proof proceeded in relation to negligence and some disputed aspects of causation. The proof was heard over five days. On 28 May 2020, Lady Carmichael granted decree of absolvitor.

The issues
The deceased died as a result of multi-organ failure secondary to sepsis. The sepsis was caused by a right rigid ureteroscopy procedure carried out by the defenders’ consultant urological surgeon, Ms Seaward. No ureteric stone was found, during the ureteroscopy. There is a small risk of sepsis with ureteroscopies.

The pursuers claimed that there had been a failure by Ms Seaward to obtain the deceased’s informed consent to the procedure, and that the deceased would not have given consent if fully informed. They also claimed that Ms Seaward failed to confirm the continued presence of a ureteric stone by further imaging prior to performing the procedure, and that in the absence of such imaging she should have cancelled the procedure. They claimed that she had a duty to check the deceased’s urine cultures before proceeding.

Lady Carmichael found on the evidence that the deceased’s previous episode of postoperative urosepsis did not mean that she was at an increased risk of sepsis. She found on the evidence that the deceased’s informed consent to the procedure was obtained, despite the lack of a full contemporaneous record.

In relation to the alleged failures to confirm the presence of the stone by imaging and to cancel the procedure, Lady Carmichael heard competing evidence from the pursuers’ expert Mr Baird and from the defenders’ expert Professor McClinton. She accepted Professor McClinton’s evidence that a reasonable body of clinicians would have acted as Ms Seaward did in the circumstances, and that there was a logical basis to proceed to a ureteroscopy. That procedure would demonstrate conclusively whether there was a stone present, in the context of a patient still complaining of pain which she described as the same she had experienced previously from a stone.

The final case based on a failure to obtain urine cultures also failed. There was no case on causation as to what the outcome would have been, had such urine cultures been obtained. Further, Lady Carmichael accepted Professor McClinton’s evidence that there was a practice at the material time of carrying out a dipstick test of urine on the morning of the procedure, as occurred in the deceased’s case.

Representation
Una Doherty Q.C. appeared for the defenders. Geoff Clarke Q.C. and Ranald Macpherson, Advocate, appeared for the pursuers.

Opinion of Lady Carmichael can be viewed here.

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Decree of absolvitor for Forth Valley Health Board

Ampersand’s Una Doherty Q.C. acted for the defenders in the action Jennifer McCulloch and others v Forth Valley Health Board [2020] CSOH 40, 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.

Quantum
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.

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 Lord Tyre can be viewed here.

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Lauren Sutherland QC launches Clinical Negligence Law & Ethics blog

Ampersand’s Lauren Sutherland QC has launched a blog providing comment on legal cases in the area of clinical negligence and patient consent.

Lauren’s blog has been created in a way that is accessible to lawyers, and medical professionals but also patients and members of the public interested in this area of the law.

For over 30 years Lauren has been very privileged to have worked in the courts in this interesting area of the law. She has also lectured to lawyers, medical and dental students on the law and patient consent and has written extensively on this topic.

Lauren said “Over the years I have met some truly inspiring people both in the medical field and also patients and families of patients who have been harmed by medical negligence. This is an area of the law I am extremely passionate about and I hope my blog will reflect these passions and be of some use to the reader.”

Lauren’s blog can be viewed here.

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