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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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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