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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POSTPONED – Ampersand Advocates Summer Clinical Negligence Seminar 2020 (new date to be confirmed)
At the time of the COVID-19 outbreak plans for the forthcoming Ampersand Clinical Negligence conference on 19 June were reasonably well advanced. The vast majority of the speakers are medical expert witnesses. Understandably their availability is now very uncertain and not a priority given the demands which are likely to be placed on health professionals in coming months The current government guidance from the UK and Scotland is to minimise non-essential social contact as far as possible, for an indefinite period. For those reasons the decision has been made now to postpone the conference to a future date.
We regret any inconvenience caused to delegates, thank you for your understanding and will be in contact with delegates once a new date has been fixed.
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Vincent Friel v Dr Brown [2020] CSIH 7
Reclaiming Motion on the effect of S10 of the Law Reforms (Misc Prov) (Scotland) Act 1968 and what constitutes abuse of process in Scotland.
The defender was the pursuer’s General Medical Practitioner. The action was based upon his alleged negligent prescription of a drug. The pursuer averred that the drug caused him to lose consciousness while driving. This resulted in a collision on a pedestrian crossing which left one person dead and another seriously injured. The interlocutor, which was pronounced after a debate on the Procedure Roll, stated that the dismissal was on the basis that the action was “an abuse of process”. The reasoning behind that was that the pursuer had been convicted of causing death and serious injury by dangerous driving under respectively sections 1 and 1A of the Road Traffic Act 1988. The jury’s verdict involved a rejection of the pursuer’s special defence of automatism; viz. that he had lost consciousness prior to the accident.
Held that action is not abuse of power. Reclaiming motion is in substance refused and action dismissed.
Lauren Sutherland QC for Pursuer and Reclaimer.
Opinion of First Division can be found here
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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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