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SECOND DIVISION, INNER HOUSE, COURT OF SESSION
[2021] CSIH 21
A502/14
Lord Justice Clerk
Lord Menzies
Lord Pentland
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in the Reclaiming Motion
by
JENNIFER McCULLOCH and OTHERS
Pursuers
against
FORTH VALLEY HEALTH BOARD
Defenders
Pursuers: Sutherland QC, Waugh; Drummond Miller LLP
Defenders: Doherty QC, E Campbell; National Services Scotland NHS Scotland Central Legal
Office
1 April 2021
Introduction
[1]
The pursuers are the widow and other relatives of Mr Neil McCulloch, who died on
7 April 2012 following a cardiac arrest. The pursuers' case proceeded on the basis of the
alleged negligence of Dr Catherine Labinjoh, an employee of the defenders, for whose acts
and omissions the defenders are responsible. Dr Labinjoh is (and was at the time of
2
Mr McCulloch's death) a consultant cardiologist at Forth Valley Royal Hospital [`FVRH']
and clinical lead for cardiology NHS Forth Valley.
[2]
Quantum was largely agreed, so the proof primarily focused on liability and
causation. The key areas of dispute at the proof which are relevant for the purposes of this
reclaiming motion were:
(i)
whether Dr Labinjoh ought to have prescribed non-steroidal anti-inflammatory
drugs [NSAIDs];
(ii)
whether she should have instructed that a repeat echocardiogram be carried out
prior to Mr McCulloch's discharge from FVRH, which took place on 6 April 2012; and
(iii)
whether her failure to prescribe those drugs or to instruct that echocardiogram was
negligent.
[3]
Linked to these questions was the issue of whether Dr Labinjoh fulfilled her duty to
advise Mr McCulloch of any material risks associated with the treatment recommended to
him in line with Montgomery v Lanarkshire Health Board 2015 SC (UKSC) 63. Whether any
negligence on the part of Dr Labinjoh was causative of Mr McCulloch's death was also in
dispute.
[4]
The Lord Ordinary found that negligence had been established in respect of the
failure to order a further echocardiogram prior to Mr McCulloch's discharge. However, the
pursuers had not proven, on the balance of probabilities that but for that breach of duty
Mr McCulloch's death would not have occurred. Accordingly, the pursuers' case failed on
causation.
[5]
Although this is a reclaiming motion, for convenience, given the cross-appeal,
reference is made throughout to the "pursuers" and "defenders". The submissions of
3
counsel are attributed to the parties themselves. The glossary of medical terms helpfully
produced by the Lord Ordinary is reproduced as an appendix to this opinion.
Background
[6]
The background to the events giving rise to the death of Mr McCulloch is set out at
length within the opinion of the Lord Ordinary and is not repeated in detail. The key events
are as follows.
First admission
[7]
Mr McCulloch was admitted to FVRH on 23 March 2012. He was acutely unwell,
with severe chest pains, worse with inspiration, and worsening nausea and vomiting,
against a background of weight loss and lethargy. An initial electrocardiogram ["ECG"]
showed abnormalities compatible with the diagnosis of pericarditis. A CT scan reported
changes compatible with an atypical pneumonia. Also noted was the presence of a
pericardial effusion, fluid in the abdomen, and around the hepatic portal. The diagnosis
was uncertain. A consultant anaesthetist, Dr Howie, who reviewed Mr McCulloch noted
her impression as "? atypical pneumonia +/- pericarditis +/- intra-abdominal issue +/-
vasculitis +/- immuno-compromised". Her plan was for assessment by the ITU team,
intubation, ventilation, with additional antibiotics. She noted "echo would be useful".
Examination in the ITU led to an initial working diagnosis of Adult/Acute Respiratory
Distress syndrome (ARDS) due to infection. His condition continued to worsen, and
Dr Howie's notes indicated "we are not 100% sure why". Mr McCulloch was reviewed in
the ITU by Dr Longmate, who noted "uncertain diagnosis", and "working diagnosis: sepsis;
pneumonia; could pericardial constriction be cause?". Dr Fraser Wood, the consultant
physician on call reviewed the radiological examinations with the consultant radiologist. It
4
was felt that changes in the lung field that appeared and then resolved may have been due
to pulmonary oedema. Dr Wood instructed an echocardiogram, from which the
sonographer concluded that there was a moderate pericardial effusion.
[8]
Consideration was given to transfer of the patient to Glasgow should a cardiocentesis
become necessary. Overnight "diagnostic uncertainty" was noted by a consultant in
intensive care, Dr Hawkins, who also noted a marked pulse pressure variation "in keeping
with some tamponade". However in view of improvement noted on chest X ray, and the
small size of the effusion the patient was not transferred to Glasgow. Mr McCulloch's
condition thereafter started to improve, and by 25 March the working diagnosis was
"pericarditis with chronic ill-defined ill health", with a "huge improvement" being noted.
Mr McCulloch was first seen by Dr Labinjoh on 26 March 2012. She recorded that his
presentation did not fit with a diagnosis of pericarditis. Her note stated:
"This man's presentation does not fit with a diagnosis of pericarditis. He has been
unwell with weight loss for months and presents with vomiting, abdo pain, fever
and hypotension, pleuritic chest pain. Anaemic on admission at 97. CRP 40. His
JVP [ie jugular venous pulse] was not elevated making significant pericardial
constriction very unlikely.
I will discuss with Dr Woods [sic] who was exploring immunocompromise,
malignancy. Care to continue under general medicine. I'll review echocardiogram."
[9]
A second echocardiogram on 26 March 2012 showed that the effusion had reduced in
size. Mr McCulloch continued to show signs of improvement and was discharged home on
30 March 2012. The management plan was to continue with antibiotics, and to be seen by
Dr Wood in four weeks' time, with a repeat echocardiogram and chest x-ray to be arranged
in advance of that consultation.
Second admission
[10]
On 2 April 2012, Mr McCulloch was again admitted to FVRH. Again, he presented
5
with pleuritic chest pain. He was pale, hypotensive with a tachycardia. His jugular
pressure was not elevated. He was given IV fluids and antibiotics and admitted under care
of the medical team. The presentation was noted to be similar to the previous week, and
there was concern that fluid (ie the effusion) was again building up. The impression
recorded in A&E was of ongoing lower respiratory tract infection with pleuritic chest pain,
but medical staff wished to exclude a worsening pericardial effusion. Mr McCulloch was
transferred to the acute admission unit (AAU) where he was noted to be pyrexial. The liver
enzymes were raised. The impression noted was "somewhat atypical Hx; presumed recent
episode of; ? viral myo pericarditis; ? other eg atypical pneumonia". A repeat
echocardiogram, described as being a "focused study on assessment of pericardial effusion",
showed a pericardial effusion approximately 1.5 cm in size. On 3 April all blood and urine
cultures were negative. Virological tests, HIV test and legionella and mycoplasma
antibodies were also negative. The treating physician noted the cardiologist was to "review
images and get back to me today/tomorrow".
[11]
Dr Labinjoh reviewed the echocardiogram on 3 April. Having carried out her
review, she saw Mr McCulloch in the AAU, to assess whether his clinical presentation was
consistent with her interpretation of the echocardiogram. After seeing Mr McCulloch she
made the following note:
"I note echocardiogram, essentially unchanged. No convincing features of tamponade or
pericardial constriction.
On examination
tachycardia BP ~ 80 systolic
no palpable paradox
no oedema
6
JVP low RR = 20
- all of which go against pericardial constriction. The effusion is rather small to justify the
risk of aspiration v possible diagnostic utility.
I am not certain where to go for a diagnosis from here. Happy to liaise. Please keep us
informed."
[12]
No further ECG or echocardiogram recordings were made. It should be noted that at
the time, and on 6 April, Dr Labinjoh was not aware that Mr McCulloch had been
discharged and readmitted. On 5 April a CT scan showed a persisting small pericardial
effusion. The C reactive protein was recorded as raised, indicating ongoing inflammation.
On 6 April, Mr McCulloch was seen by a junior doctor, Dr Fuller, who noted previous
reviews and observed "we will clarify with cardiology if they want to follow patient up".
The plan, subject to that clarification, was for discharge. The first pursuer was not happy
with the discharge of her husband from the care of FVRH. Dr Fuller advised that the CT
scan showed that the pleural effusion had resolved. The note continued:
"Reassured improving signs. Has follow-up with Dr Wood. Discussed with cardiology
happy for Dr Wood to follow up and be informed of any issues. Needs nutrition likely to get
this at home better than here. Extensively lx. We are not adding anything to management in
hospital."
[13] The "discussion with cardiology" referred to by Dr Fuller took the form of a brief
telephone call on 6 April to Dr Labinjoh who, at the time of the call, was scrubbed up and
about to commence heart surgery in a different hospital. She was unable to review the
patient or give advice. When asked whether she agreed with the proposed discharge, she
stated that that decision should be made by the responsible consultant with whom she was
happy to liaise. She was informed of the plan for follow up with Dr Wood and indicated
that she saw no need for a separate appointment with cardiology to be arranged at that time.
7
She did not recall being informed either of any ongoing symptoms or that discharge was to
take place the same day.
Third admission
[14]
Mr McCulloch was discharged on 6 April 2012. The Lord Ordinary accepted as
credible and reliable the first pursuer's description of her husband's condition at discharge
as very unwell, with a description which included his having to lean on her to walk,
struggling to climb the steps to his house, and complaining of chest pain and a severe sore
throat. She heard him retching and being sick during the night. The next day 7 April he
suffered a cardiac arrest at home. Despite the resuscitation efforts of staff at FVRH he could
not be revived. It was a matter of agreement between the parties that Mr McCulloch died as
a result of a cardiac arrest caused by cardiac tamponade related to pericarditis and
pericardial effusion.
The proof
[15] The first pursuer (the wife of the deceased), Dr Fraser Wood and Dr Labinjoh were
factual witnesses. Expert evidence was provided to the court by Dr Andrew Flapan,
consultant cardiologist, and Dr Robin Weir, consultant physician, cardiology and general
medicine, led on behalf of the pursuers, and Dr Peter Bloomfield, retired consultant
cardiologist, led by the defenders. Parties agreed the evidence of Dr John Reid, a consultant
radiologist, prior to Proof.
The Lord Ordinary's Decision
The legal test
[16]
The Lord Ordinary noted the well-known test for negligence set out by Lord
President Clyde in Hunter v Hanley 1955 SC 200. The Lord Ordinary noted that it was not
8
his function to decide what was the correct diagnosis of Mr McCulloch's illness at the time
of either his first or second admission: that would be to stray into the realm of medical
expertise. His task was to determine whether any of the acts or omissions of Dr Labinjoh
arising out of her examination of Mr McCulloch on 3 April 2012 were negligent as averred,
according to the Hunter v Hanley test. That involved, in a case such as this where there were
competing schools of thought arising on the expert evidence, applying the test as formulated
by Lord Browne-Wilkinson in Bolitho v City and Hackney Health Authority [1998] AC 232 at
pages 241-243; that is, to decide whether any of the bodies of expert opinion presented to
him were not reasonable and could not logically be supported. It was not simply open to
him to prefer one or other body of expert evidence.
Independence of Dr Bloomfield, expert witness led by the defenders
[17]
At proof, senior counsel for the pursuers submitted that the expert witness led by the
defenders, Dr Bloomfield, could not be accepted as an independent expert and that no
weight should be attached to his evidence. The Lord Ordinary rejected that submission,
giving reasons for doing so at paras [84] and [85] of his opinion.
Failure to prescribe NSAIDs
[18]
On the alleged negligent failure to prescribe NSAIDs, this was an area where the
court was faced with two opposing schools of thought amongst experts in the field, to which
the Lord Ordinary required to apply the Bolitho test. Applying that test to the evidence, he
concluded that adherence to either school of thought could not be said to be unreasonable or
illogical and that thus the Bolitho test, and by extension the Hunter v Hanley test had not been
met in respect of this aspect of the case.
Repeat echocardiogram
[19]
Turning to the case based on alleged negligence arising from a failure to instruct a
9
repeat echocardiogram prior to Mr McCulloch's discharge from hospital on 6 April, the
Lord Ordinary reached a different conclusion, holding that the Bolitho test had been met on
this aspect of the case and that Dr Bloomfield's evidence on the issue required to be rejected.
This decision is the subject of the cross-appeal.
Causation
[20]
On the question whether failure to instruct a third echocardiogram had been
causative of death, the Lord Ordinary stated that the evidence did not allow him to hold that
but for this single negligent omission the death would not, on balance of probabilities, have
occurred.
The reclaiming motion
[21]
Detailed written submissions were provided by both parties. We do not repeat these
or attempt to summarise them. The general content of the submissions should be apparent
from the discussion which follows in respect of individual grounds of appeal.
The grounds of appeal
[22]
The pursuers reclaim on the grounds that the Lord Ordinary:
(i)
erred in his assessment of the expert evidence relative to the prescription of NSAIDs.
Had the Lord Ordinary made a finding in fact that the deceased presented with
pericarditis and worsening pericardial effusion a practice of not prescribing NSAIDs
could not be supported as logical or reasonable and was a failure in care;
(ii)
erred in law in his application of the principles in Montgomery to Dr Labinjoh's
decision not to prescribe NSAIDs;
(iii)
erred in his approach to causation; and
10
(iv)
erred in law in his assessment of the evidence presented by Dr Bloomfield, as to the
latter's role as an independent expert.
[23]
The grounds of appeal do not assert that the Lord Ordinary erred in his
understanding or application of the Bolitho test, although that came to be the submission.
They do not assert that Kennedy v Cordia 2016 SC (UKSC) 59 had any bearing on the issues at
proof, yet it was also submitted that the Lord Ordinary had erred in his understanding and
application of the principles derived from that case.
[24]
It is important to note that, save to the extent suggested by the second part of ground
one, the grounds of appeal do not assert that the Lord Ordinary erred in making any
particular findings of fact; nor do they assert that he should have made alternative findings
of fact, despite asserting in grounds (i) and (iv) that he erred in his assessment of the
evidence. This court was not asked to make any findings of fact. In common with this
approach, the submissions in support of these grounds contain a great deal of discussion of
the evidence, and what it is said to have shown, and an exposition of certain principles
which it is said can be drawn from a list of cases, but feature little in the way of specification
of errors on the part of the Lord Ordinary. The nub of the reasoning might without
unfairness be said essentially to be (i) that the Lord Ordinary erred in failing to reject the
evidence of Dr Bloomfield, either on the basis of lack of independence or on application of
the Bolitho test; (ii) that had he done so he would have had to find in the pursuers' favour on
the issue of alleged negligence in failing to prescribe NSAIDs; (iii) that there was evidence,
which the Lord Ordinary accepted, that NSAIDs can be used successfully to treat
pericarditis; (iv) Mr McCulloch had pericarditis; and (v) had he been prescribed NSAIDs his
death is likely to have been avoided. In respect of the echocardiogram, the reasoning was
that had a third echocardiogram been carried out Mr McCulloch would not have been
11
discharged when he was; would have remained in hospital for monitoring and further
treatment; and as a consequence his death could have been avoided.
The role of the appellate court
[25]
The role of an appellate court examining a decision made after proof at first instance
is well-understood, based on a line of authority coming through Thomas v Thomas 1947 SC
(HL) 45 via McGraddie v McGraddie 2014 SC (UKSC) 12 and Henderson v Foxworth Investments
following a detailed analysis of the authorities, concluded that they confirmed the flexible
and undogmatic approach long adopted by the courts in Scotland, based firmly on the
advantage enjoyed by the trial judge of having seen and heard the witnesses. Those
advantages were particularly acute in relation to issues of credibility and reliability, which
may be affected by demeanour and attitude, and in the determination of primary facts. In
such cases, as the court noted in S v S 2015 SC 513, para 23, a demanding test is applied:
"In an appeal which seeks to challenge findings in fact, an appellate court must have
due regard to the limitations of an appeal process, with its `[narrow focus] on
particular issues as opposed to viewing the case as a whole' ... When considering
reversing a first instance judge's findings in fact, therefore the appellate court should
confine itself to situations where it can categorise the findings as incapable of being
reasonably explained or justified in terms of the dicta quoted in Henderson v Foxworth
Investments Ltd (paras 63-65)."
[26]
When it comes to inferences drawn from primary fact the appellate court has more
freedom to act. It may reassess the inferences drawn by the trial judge from proven facts.
Care must of course be taken in reversing evaluative decisions made by first instance judges,
in respect of which the court will apply the ordinary standards of logic and common sense.
In cases based on expert evidence an appeal court may be as well placed as the judge at first
instance to assess the logic and sustainability of the approaches adopted by the expert
witnesses. The court should not shrink from that task, although it ought to give appropriate
12
weight to the trial judge's opinion. An appeal court may interfere where the trial judge has
erred on questions of law, including the application of legal principles to the facts of the
case, or where the reasons given are plainly insufficient to justify the decision reached.
Dr Bloomfield as an independent witness
[27]
The issue regarding the approach of Dr Bloomfield arose during his evidence, when
it became apparent that there were two slightly different versions of his initial report in
circulation. It transpired that when he submitted his report to the defenders' solicitors he
was asked and agreed- to exclude references to witness statements which had been
provided to him and relied upon in his opinion. This had two consequences. First, that the
report provided to the pursuers' agents contained an incomplete and inaccurate statement of
the information relied upon by him in forming his professional expert opinion; and second,
that confusion arose when he quoted a passage from one of the statements, which at first
sight appeared to be a quotation from the medical records.
[28]
The Lord Ordinary considered very carefully whether this matter was such as to
impugn Dr Bloomfield's impartiality as an expert witness; however, having heard his oral
evidence the Lord Ordinary was ultimately satisfied that it did not do so, and that the
opinions expressed were entirely honestly held and impartially arrived at.
[29]
In support of this ground of appeal it was submitted that in assessing whether the
Hunter v Hanley test was met, the court required to consider the application of the principles
found in Kennedy v Cordia and Bolitho relating to expert evidence. Before any question of
complying with accepted practice could arise under Hunter v Hanley, the court had to be
satisfied on the evidence presented to it that there was a responsible body of professional
opinion supporting the practice. Otherwise it must be rejected. The principles outlined by
the Supreme Court in Kennedy were now the starting point for the court in the assessment of
13
expert evidence. The Bolitho assessment was simply a reflection of what is expected of a
court when analysing expert witness opinion evidence. The expert opinion must be the
independent product of the expert uninfluenced as to form and content by the exigencies of
litigation and referring to all material facts which would detract from his concluded opinion.
The Lord Ordinary failed to take account of the fact that reports founded on by
Dr Bloomfield had been prepared without access to the full medical notes, and failed to
record other relevant aspects of the notes. Had the Lord Ordinary properly applied the legal
tests in Kennedy and Bolitho he should have concluded that these factors, when combined
with the deficiencies in Dr Bloomfield's expert opinion evidence on NSAIDs and the repeat
echocardiogram meant that his evidence should be rejected. The Lord Ordinary was also
criticised for stating that Dr Bloomfield's opinions were honestly held. The issue was not
whether he was honest but whether he was independent.
[30]
In our view the criticisms of the Lord Ordinary are misplaced, and conflate three
different issues. The test in Hunter v Hanley is concerned with negligence. In addressing
whether the three elements of that test have been satisfied, the Lord Ordinary will require to
consider whether there was a usual and normal practice, whether or not it was followed,
and whether the course in fact adopted was one which no professional person of ordinary
skill would have taken if acting with ordinary care. In reaching a conclusion on these
matters the Lord Ordinary will require to have regard to the skilled evidence which has
been led on these matters. Kennedy v Cordia and Bolitho both relate to the way in which that
evidence may be considered by the Lord Ordinary, but in quite different ways.
[31]
Kennedy is largely concerned with the admissibility of the evidence, and the
qualifications of the witness as an independent person of skill eligible to opine on the issues
in hand, hence the observations made therein about independence, lack of bias, fulfilling the
14
duties expected of an expert and so on. The Lord Ordinary understood this, and correctly
considered whether the issue which had arisen with Dr Bloomfield's report was such as to
impugn the evidence which had been given. In that assessment, reached at the stage at
which the evidence has been given, the Lord Ordinary should quite properly consider all the
evidence which the witness has given, not just the terms of any reports which he has made
during the course of the litigation. The point made by the pursuers about the nature of
Dr Bloomfield's first report is a little difficult to follow. During evidence, at the point where
the issue was discovered, the Lord Ordinary noted that it did not seem that the pursuers had
been deprived of anything to which they should have been entitled. The relevance of the
first report to the issues at proof was marginal at best. Part of the criticism seems to be that
in the report Dr Bloomfield was only addressing the case which was then being made
against the defenders, but as long as he did so properly we can see no basis for criticism in
this. A further complaint is that he adopted his first report in giving his evidence yet at the
time of writing it he had not seen all the medical records. It is clear however that when
stating his opinion in court he had reviewed all the medical records. In any event, the issue
of "adoption" of a report has to be looked at in the context of what the witness says in
evidence, and Dr Bloomfield made clear in his evidence that he had changed his mind on
one issue since his original report, on receipt of additional material.
[32]
One of the issues relevant to the admissibility of an expert report as described in
Kennedy is whether the opinion given is the independent product of the expert uninfluenced
as to form or content by the exigencies of litigation. That necessarily touches on the
credibility, and the honesty of the witness. The criticism that the Lord Ordinary addressed
whether the opinions stated were honestly held is misplaced; it is an illustration of the
confusion in the submissions between Kennedy and Bolitho. In the assessment with which
15
the former is primarily concerned, the honesty of the witness is an essential element. If the
opinions are not honestly held, and if the court does not consider them to be unbiased, the
assessment under Bolitho where the honesty is assumed, will not take place because the
evidence will have been determined to be inadmissible as skilled testimony. Relevant to the
honesty of a witness will be whether he has been open to changing his mind on receipt of
additional information. Dr Bloomfield in his report of 9 December 2019 explained that on
viewing additional material he had changed his opinion from that which he had previously
expressed. Although submissions were made to the Lord Ordinary to the effect that this
undermined Dr Bloomfield's impartiality, it was not suggested to Dr Bloomfield that it did
so or that he was other than honest and independent.
[33]
The submission that Dr Bloomfield had not worked as a cardiologist since 2012 is not
borne out by the evidence. His CV was placed before the court and it noted that although
retired from full time practice he had maintained his full licence to practice and continued
some part time clinical practice within Borders General Hospital. He continued to teach
medical students at Edinburgh University and to participate in postgraduate teaching
examinations. The Lord Ordinary (para 4) considered him to be "eminently well-qualified"
to express opinions on the matters in respect of which he gave evidence, as were Drs Flapan
and Weir.
[34]
Having concluded that the issues raised on behalf of the pursuers did not cast
serious imputations over the evidence of Dr Bloomfield the Lord Ordinary proceeded to
consider that evidence and the evidence of other expert witnesses. It is abundantly clear
that in doing so he understood the implications of the Bolitho test and sought to apply that
test. We say more about this when we deal with the substantive points in relation to
prescription of NSAIDs and a repeat echocardiogram. In the meantime we need only
16
observe that we are quite satisfied from paras 62-66 of his opinion that the Lord Ordinary
properly identified, and understood, the applicable law.
Montgomery v Lanarkshire Health Board
[35]
Whilst addressing matters of law it is convenient to deal with ground of appeal 3,
which asserts that the Lord Ordinary erred in his application of the test in Montgomery on
the issue of information disclosure. The pursuers had averred that Dr Labinjoh had been
under a duty to discuss with Mr McCulloch the options of pericardiocentesis and the use of
NSAIDs, colchicine and aspirin to reduce the size of the pericardial effusion. Of these, only
the use of NSAIDs remained a live issue in the reclaiming motion. As an aside, we should
mention that the rider to that averment, namely that the obligation was to discuss the use of
NSAIDs "to reduce the size of the pericardial effusion" raises other issues which we touch
on in our assessment of the Lord Ordinary's approach to that issue, but for the sake of
brevity it should be noted that it should not be assumed that the rider was established by the
evidence.
[36]
As to the application of Montgomery, the Lord Ordinary stated that it had:
"effected a significant development of the law, but care must be taken not to apply it
to circumstances that lie beyond the scope envisaged by the Supreme Court. It is
concerned with the discussion of, and obtaining of consent to, material risks
identified by the doctor in connection with a recommended course of treatment.
...there is an important distinction between the doctor's role when considering
treatment options and his or her role when discussing with the patient the risks of
injury in the course of the recommended treatment. The question of whether or not
there are risks of injury inherent in a particular course of treatment remains a matter
for the professional judgement of the doctor."
[37]
The Lord Ordinary indicated that he agreed with the observations made by
Lord Boyd in
AH v Greater Glasgow Health Board 2018 SLT 535. The argument being
advanced is essentially that which was advanced to Lord Boyd in AH v Greater Glasgow
Health Board:
17
"[42] The pursuers argue that what is a reasonable alternative is to be defined by
the patient. What the patient considered to be reasonable would emerge from the
discussion that the doctor would be expected to have with the patient. The doctors
on the other hand say that the range of alternatives are those that the doctor
considers reasonable exercising his or her skill and expertise as a reasonably
competent doctor (the Hunter v Hanley/Bolam test) and are available."
[38]
Rejecting the pursuer's argument, Lord Boyd said:
"[43] In my opinion the submissions for the doctors are to be preferred. If the
pursuers are right the doctor may well be obliged to advise the patient of alternative
treatments which he or she as a doctor would not consider as clinically suitable for
the patient. Take, for example, the case of a patient with a pre-existing condition
who is being treated for another illness. There is common and available treatment
which is usually available to a patient with this illness. However it is dangerous for
those with the pre-existing condition. That may arise where, for example, the
combination of drugs used by the patient to treat the pre-existing condition with
those used to treat the illness gives rise to complications imposing unacceptable risks
to the patient. According to counsel for the pursuers the duty on the doctor is to
advise the patient of the existence of the alternative remedy even if, in the particular
case it is not considered to be a reasonable alternative by the doctors. The
explanation for this approach is that the patient may wish to get a second opinion."
[39]
Lord Boyd went on to explain that in his view this was not consistent with the
approach in Montgomery. The submissions in that case had been premised on a basis that
decisions about diagnosis and treatment remained within the professional skill of the doctor,
but that the patient was entitled to decide whether to submit to the proposed treatment.
That approach served to emphasise that the ratio of Montgomery was a limited, albeit
important, innovation on the rule in Bolam/Hunter v Hanley. Lord Boyd went on to say:
"[45] What the treating doctor cannot do is to withhold information about a
reasonable alternative treatment and the risks associated with it on the basis of their
own preferences. If a treatment is reasonable and available it should be discussed
with the patient."
[40]
In our opinion Lord Boyd's analysis is correct. Montgomery was about advising of
the risks associated with a proposed course of action, which would of course include the
risks if that course of action were not adopted. It does not follow that where a doctor
concludes that a course of treatment is not a reasonable option in the circumstances of the
18
patient the duty under Montgomery nevertheless arises. The patient's right is to decide
whether or not to accept a proposed course of treatment. That right can only be exercised on
an informed basis, which means that the patient must in such a situation be advised of the
risks involved in opting for that course of treatment, or rejecting it. If alternative treatments
are options reasonably available in the circumstances the patient is entitled to be informed of
the risks of these accordingly. But where the doctor has rejected a particular treatment, not
by taking on him or herself a decision more properly left to the patient, but upon the basis
that it is not a treatment which is indicated in the circumstances of the case, then the duty
does not arise. The doctor may of course, have made an error, but if so the consequences of
that error, and an assessment of whether there was negligence, would be assessed on the
standard Hunter v Hanley basis, as the Lord Ordinary in the present case correctly observed
(para 111):
"Montgomery imposes an obligation on the doctor to discuss the risks associated
with a recommended course of treatment and to disclose and discuss reasonable
alternatives. It does not go so far as to impose upon the doctor an obligation to
disclose and discuss alternatives that he or she does not, in the exercise of
professional judgement, regard as reasonable. If the doctor is wrong either about
the risks of the recommended course or about the reasonableness of any alternative,
then he or she might be liable for any consequent loss or injury, but that would be
decided by application of the Hunter v Hanley test."
The simple fact is that Montgomery has no application in the circumstances of the present
case.
Application of the Bolitho test and assessment of the evidence of Dr Bloomfield
[41]
The Lord Ordinary noted (para 62) that "this is a case in which the court is faced with
two opposing schools of thought among experts in the field. The legal principles applicable
in that situation are not in doubt...". Where, as in the present case, the court heard
conflicting evidence as to whether or not the course adopted by a doctor was in accordance
19
with a usual and normal practice, it was necessary to heed the warning by Lord Scarman in
Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 639 that in the realm
of diagnosis and treatment negligence is not established by preferring one respectable body
of professional opinion to another. That did not mean that in such circumstances a pursuer
could not establish negligence: rather it meant that in his assessment of the evidence the
judge required to address the test in Bolitho, which he quoted at length. It was not open to
him simply to prefer one or other body of expert evidence. If the opinion of Dr Bloomfield
that Dr Labinjoh adhered to a usual and normal practice was to be rejected, the Lord
Ordinary required to be satisfied that that opinion was not reasonable and could not
logically be supported.
[42]
At para 6.5 of the pursuers' submissions it is stated that:
"The Lord Ordinary rightly acknowledged that he required to subject the expert
opinion evidence of Dr Bloomfield to judicial scrutiny ... and provide reasons for
doing so that were properly supported by evidence. He correctly understood that he
not only required to consider the evidence but he had to consider the logic of the
opinion evidence advanced".
The submission then proceeds to arguments suggesting that the error lay in the application
of the test, not in its identification. It seems therefore that it was not being disputed that the
Lord Ordinary identified the correct test. Elsewhere however, it is suggested that the fact
that he had concluded that Dr Bloomfield's opinions were honestly held erroneously
intruded into the Lord Ordinary's Bolitho assessment. For the reasons noted above, we are
satisfied that this is incorrect, and that the honesty of the witness was examined only in its
proper context. For the avoidance of doubt we are quite clear that the Lord Ordinary
identified the correct test to be applied in the situation which faced him. We turn therefore
to his application of that test.
20
[43]
First of all, the Lord Ordinary identified what he considered to be the extent of the
dispute between the experts, which was a narrow one. The Lord Ordinary noted a measure
of common ground in relation to prescription of NSAIDs to treat pericarditis. The experts
agreed that it was standard practice to do so, and that clinical experience showed that the
patient usually got better, often quite quickly. Their use was advocated in leading text
books. Although their effectiveness was not proved by any randomised control tests, their
use was supported by European Society of Cardiology (ESC) Guidelines and by clinical
practice. They were effective in relieving pain by reducing inflammation.
[44]
There was, however, disagreement among the expert witnesses regarding
prescription of NSAIDs to a patient who was not in pain. Dr Flapan regarded it as usual
practice to prescribe NSAIDs even in the absence of pain, asserting that treatment of
inflammation would result in reduction in size of a pericardial effusion. Dr Bloomfield did
not consider that there was any benefit from NSAIDs if they were not required for pain
relief; there was no evidence from clinical trials that NSAIDs altered the natural history of
pericardial effusions even if they successfully treated pain and inflammation. Patients often
simply got better on their own. Dr Weir accepted that there could be variations in practice
in the use of NSAIDs where no pain was reported and where there were other issues
suspected, such as respiratory infection.
[45]
At this stage it is worth noting a number factual matters which had been established
in evidence, and which thus formed the backdrop against which the Lord Ordinary made
his assessment and which illustrate the context in which his reasoning must be assessed.
i.
The evidence that NSAIDs were commonly used, with success, in the treatment of
pericarditis requires to be seen in the context of the typical presentation and symptoms of
pericarditis. A classic sign of pericarditis, probably the one most commonly seen, is chest
21
pain, typically sharp and pleuritic, which is alleviated by leaning forward. The condition for
which NSAIDs are commonly used is therefore one characterised by complaints of chest
pain. Dr Flapan relied heavily on the European Society of Cardiology (ESC) Guidelines in
giving his evidence that NSAIDs had a benefit beyond pain relief. However, although the
guidelines confirm NSAIDs as a standard treatment for acute pericarditis, it is less clear that
they offer support for the remainder of Dr Flapan's hypothesis. Whilst the guidelines do not
expressly say that NSAIDs are just used for the pain, the table reproduced at p 1221 of the
Joint Appendix suggests that the purpose of prescribing NSAIDs is to treat the chest pain, or
pericardial rubbing which causes the pain. In addition, the submissions of the pursuers to
the Lord Ordinary and to this court referred to the literature which had been placed before
the court as supporting the pursuers' case. However, even a brief examination of that
literature shows that the picture is not all one way. For example in production 7/44, an
extract from a text on the "Diagnosis and Management of Pericardial Disease" by
Khandaher et al, it is stated:
"The 2004 ESC guidelines recommended the use of an NSAID for the treatment of
idiopathic or viral acute pericarditis, with the goal of therapy being the relief of pain
and the resolution of inflammation. Ibuprofen or aspirin has been most commonly
used and provides prompt relief of pain in most patients, but does not alter the
natural history of the disease."
A further text, Braunwald's Heart Disease (2008), in the chapter on pericardial disease, 7/5 of
process, states, in respect of the use of NSAIDs:
"Because of its excellent safety profile we prefer ibuprofen (600-800mg po three times
daily) with discontinuation if pain no longer present after 2 weeks."
Braunwald also states, in relation to the ESC 2004 Guidelines, that:
"Although these are useful, there have been virtually no randomized clinical trials
devoted to the diagnosis or management of pericardial disease. Therefore it is
important to keep in mind that controlled data to support the following
22
recommendations for management of acute pericarditis, as well as other pericardial
diseases, is limited."
In Current Diagnosis and Treatment by Michael Crawford, 4th Ed, in the Chapter on
Pericardial Diseases by Massimo Imazio, it is suggested that treatment with NSAIDs is to
supress the clinical manifestations ie. pain. It goes on to mention `symptom control',
recommending that the dose can be tapered when the patient is asymptomatic and markers
of inflammation are normalised. Essentially the literature does not seem to support the
assertion that NSAIDs have a benefit beyond pain relief.
ii.
Mr McCulloch's presentation during the first admission included severe chest pain.
He was not treated with NSAIDs at all during that period of hospitalisation, even when a
working diagnosis of pericarditis was made on 25 March. He was treated with antibiotics
and steroids.
iii.
At his second admission the presentation included pleuritic chest pain. Again he
was not treated with NSAIDs. On each occasion those treating him would be expected to be
familiar with standard treatments for pericarditis, which is commonly treated in acute
admissions departments. As Dr Labinjoh explained in her unchallenged evidence on this
aspect, all clinical physicians regularly look after cardiac patients, including those with
pericarditis. In general, it is not cardiologists who manage patients with pericarditis.
iv.
At all stages the presentation was not typical of idiopathic acute pericarditis, which
on all the evidence was identified as a self limiting disease without significant complications
in the vast majority of patients. Instead of a standard presentation indicative of acute
idiopathic pericarditis, Mr McCulloch presented a complex picture. The Lord Ordinary
noted (para 87) that it was a recurrent theme of the medical records that Mr McCulloch
presented as a complex case, whose diagnosis proved to be very challenging. He noted that
23
the expert witnesses were in agreement that this was not a straightforward presentation of
acute pericarditis. This was a factor which figured in the Lord Ordinary's reasoning.
v.
When Dr Labinjoh saw Mr McCulloch on 3 April, he was not complaining of pain.
Dr Labinjoh assessed him as having been much improved from when she last saw him (she
was unaware that he had been discharged and re-admitted). It was submitted to the Lord
Ordinary that the first pursuer's evidence that her husband was "poorly" on 3 April should
lead him to conclude that Dr Labinjoh had not been entitled to conclude that he was "much
improved". The Lord Ordinary rejected that, on the basis of the medical records, including
the Early Warning System (EWS) chart. This refers to a standardised observation chart used
to record measurements and observations of certain clinical parameters, which are marked
on a scale from 0 (well) to 4 and above (requiring hourly observation and urgent further
assessment). The Lord Ordinary noted that the EWS chart recorded a complaint of mild
pain only on admission on 2 April, and no pain thereafter. A nursing note at 1205 on 2 April
recorded "no further chest pain" and an EWS of 1 (having been 4 on his admission on
1 April). The EWS on 3 April was still 1, with a note of "no pain". The patient objected to a
decision to transfer him to another ward as he was feeling much better. When Dr Labinjoh
saw him, he was up and about the ward, and had just been for a shower. On direct
questioning by her he denied being in any pain. The Lord Ordinary thus accepted that
when seen by Dr Labinjoh on 3 April Mr McCulloch was not complaining of any pain and
that his condition seemed much improved. The Lord Ordinary also found that, given the
history just narrated, even if Dr Labinjoh had asked Mr McCulloch about pain over a longer
period of time it is unlikely that she would have received an answer which would have
caused her to prescribe NSAIDs. It is clear that the Lord Ordinary accepted that on 3 April
24
Mr McCulloch was not complaining of pain and Dr Labinjoh was entitled to consider his
condition "much improved".
vi.
Another issue (related to i above) is whether there was any evidence that NSAIDs
were effective not only in treating pain but in reducing the size of an effusion. Dr Flapan
gave evidence that clinical experience suggested that NSAIDs were effective in reducing an
effusion because they reduced the inflammation that was causing it. Dr Weir however
seemed surprised by the suggestion that NSAIDs might be effective in reducing the size of
an effusion. When asked if the treatment of pericarditis with NSAIDs would have an effect
on the effusion he answered as follows:
"I don't necessarily think that anti-inflammatories would reduce the size of the
effusion that's there."
It was not something which he had thought of prior to being questioned about it. He did
not necessarily think that anti-inflammatories would reduce the size of the effusion, but he
supposed it was theoretically possible. Dr Bloomfield's clinical experience did not suggest
that NSAIDs would assist in resolving a pericardial effusion. Asked whether prescription of
NSAIDs would prevent an effusion, he answered in the negative, noting that he did not
think there was evidence to support that. Trials on this issue had never been done. As
noted above, according to Braunwald, the use of ibuprofen does not alter the natural history
of the disease. The Lord Ordinary noted as part of his reasoning that there is no study-based
evidence in medical literature that NSAIDs prevent the development or progression of
pericardial effusions, or that the effect of reduction of inflammation is reduction of the size
of an effusion.
vii.
The final part of the context which is relevant also relates to the evidence of
Dr Flapan. He had referred in his evidence to certain studies which he principally relied
25
upon for his opinion on the failure to prescribe colchicine (which had been another ground
of fault), but they were also relevant to his evidence on NSAIDs. The Lord Ordinary
accepted that his evidence in these respects could be criticised on two grounds. First, the
sample sizes of the trial were small and the confidence intervals correspondingly wide, so
that no reliable conclusions could be drawn from them. In his evidence Dr Flapan had
persisted in relying on these in the face of the statistical difficulties, and the Lord Ordinary
clearly thought his evidence on this was not impressive, something we can understand
having read the cross-examination in particular. Secondly, Dr Flapan sought to use the
results of the trials to support propositions that had not been their object: for example to
assess the value of using colchicine to treat an initial attack of acute pericarditis, or to
demonstrate that NSAIDs were effective in resolving pericardial effusions. The sample
sizes in the studies were small, they related to recurrent pericarditis not to first presentation
thereof, and patients with herpatic symptoms, such as Mr McCulloch would have been
excluded from them. In so far as Dr Flapan sought to derive conclusions from the figures
regarding the effectiveness of colchicine in resolving acute pericarditis, or regarding the
effectiveness of prescription of NSAIDs, the Lord Ordinary did not consider that these
conclusions had a solid statistical foundation in any of the test results, and he could not
attach weight to them. In this respect it is worth noting comments in AW v Greater Glasgow
Health Board (para 69) regarding statistical evidence that
"Weight can be given to it, according to how compelling the statistics appear to be,
but a court should normally look for other corroborating evidence to justify the
statistical inference. Furthermore, the basis for the statistics must in all cases be
subjected to critical examination; if it appears to be based on defective
epidemiological studies, it should be disregarded."
[46]
This then is the background against which the Lord Ordinary came to assess the
issue regarding NSAIDs, which was a very narrow one: namely whether Dr Labinjoh's
26
decision on 3 April not to prescribe NSAIDs was negligent. Dr Labinjoh's position was quite
clear. The patient appeared to be much improved, and significantly, was not complaining of
pain. Dr Flapan's evidence was that NSAIDs were not prescribed only for pain, but this
view was expressed in the context of an opinion, not shared by the other experts, that his
clinical experience suggested that NSAIDs served to interfere with the inflammatory process
and thereby reduce an effusion and change the course of the illness. Dr Weir said that he
personally would have prescribed NSAIDs but he accepted that usually the reason they
might be given is a complaint of pain; that pain is usually caused by the two layers of the
pericardium rubbing together so NSAIDs are given for their anti-inflammatory effect, which
usually settles the chest pain very quickly. Dr Weir agreed that if no pain was being
reported by the patient, and if there were other suspected issues, for example a suspected
respiratory infection, there would be a variation in practice whether to prescribe NSAIDs.
He stated that the clinical assessment of the doctor will dictate the approach to management.
If, for example, the working diagnosis was that this was not pericarditis but part of a multi-
system disorder, or respiratory ailment, or other condition, several of which can cause
pericardial effusion, then the doctor could not be criticised for not giving NSAIDs.
Dr Bloomfield said that in practice NSAIDs were given because they relieve pain. It was
reasonable not to prescribe NSAIDs in the absence of pain: they were not indicated and
could have caused gastrointestinal side effects, in a patient who already had gastrointestinal
symptoms. Mr McCulloch had a long history of recurrent vomiting, weight loss and gastro-
intestinal problems. Such problems are a known side effect of NSAIDs, and although the
effects can be reduced by drugs such as omeprazole, they would not be eliminated. Given
the mantra "do no harm" there was no pressing need to give him NSAIDs in the absence of
pain. Whilst in his own practice when he prescribed NSAIDs for patients with acute
27
pericarditis they often got better, equally there were many instances of undiagnosed
pericarditis which resolved without any form of treatment at all.
[47]
In our view, having regard to all this evidence, the Lord Ordinary was entitled to
reach the conclusion that he could not say that Dr Bloomfield's evidence about Dr Labinjoh's
decision not to prescribe NSAIDs was unreasonable or illogical.
Cross appeal: repeat echocardiogram
Repeat echocardiogram
[48]
It is noticeable that despite reference to the first pursuer's evidence about the
condition of the deceased at the time of discharge, no case has been presented that the
decision of the doctor who discharged him was erroneous or negligent; the allegation is that
Dr Labinjoh was at fault in not instructing a further echocardiogram prior to discharge.
There is a degree of confusion over what is meant by this assertion. Is it meant to suggest
that she should have instructed the echocardiogram on 3 April? Or that she should have
instructed one to be carried out when informed on 6 April that there was a plan for his
discharge? At para 42 the Lord Ordinary notes the case as being that she should have
instructed a repeat echocardiogram "prior to discharge". However, he also notes at para 32,
that "No criticism is now directed by the pursuers against Dr Labinjoh in relation to
anything said or done by her on 6 April", recording elsewhere that "it is the acts or
omissions of Dr Labinjoh on 3 April which form the basis of the pursuers' case against the
defenders". In his assessment of negligence he states that he accepted that "in failing on
3 April to make provision for this" Dr Labinjoh was negligent. The pursuers maintain that
he was entitled to make this finding. We therefore proceed on the basis that this reflects the
28
way in which the case was presented and that the focus should be on the actions of
Dr Labinjoh on 3 April.
[49]
The Lord Ordinary noted that this was another area where there was divergence
among the experts. He concluded that Dr Bloomfield's evidence on this point was incapable
of being logically supported, and that the Bolitho test was met. His reasons for so concluding
were (i) that Dr Bloomfield, in emphasising that Dr Labinjoh was not in charge of
Mr McCulloch's treatment, failed to take account of the fact that the consultants in the AAU
were relying upon the cardiology specialists for directions in relation to cardiology
investigations, at a time when pericarditis was still in the frame as a possible diagnosis, yet
her note gave no guidance as to what measures, if any, were required, from the point of
view of cardiology, prior to discharge; (ii) that this "created the risk which eventuated, that
Mr McCulloch's discharge had to be determined by a relatively junior doctor at a time when
Dr Labinjoh was occupied with other matters and unable to provide direct assistance"; and
(iii) Dr Bloomfield's opinion proceeded upon a factual assumption that at the time of
Dr Labinjoh's visit Mr McCulloch was well; this was not consistent with the third
echocardiogram results. The Lord Ordinary considered that where the trend in relation to
pericardial effusion appeared to be moving in the wrong direction, Dr Bloomfield's view
that it was unnecessary to take any action to confirm prior to discharge that that trend had
reversed lacked logical support. The existing plan for review could not be relied upon, as it
had been formulated before the first discharge and second admission, when the
echocardiogram showed a positive trend. Further, there was no reason not to carry out a
repeat echocardiogram.
[50]
In relation to the Lord Ordinary's comment that although Dr Labinjoh was not in
charge of Mr McCulloch's care, the AAU consultants were relying on her for directions in
29
relation to cardiological investigations we consider that the Lord Ordinary has placed
erroneous and undue emphasis on the latter and insufficient emphasis on the former, having
regard to the clear evidence on this issue, and the evidence which he himself accepted. In
the course of this second admission Dr Labinjoh had had no input into the care and
treatment of Mr McCulloch, who was under the care of consultants in the AAU. The request
on 3 April was not for a review of the patient but for a review of the third echocardiogram,
the treating physician having considered that the interpretation of a cardiologist was to be
preferred over his own. Dr Labinjoh went to see Mr McCulloch not to conduct a general
review of his care but to ascertain whether his presentation accorded with her interpretation
of the echocardiogram. As far as Dr Labinjoh was concerned, as at 3 April Mr McCulloch
was, and continued to be, an inpatient under the care of AAU physicians who could be
relied upon to determine any appropriate investigations or treatment which might be
required should his clinical condition demand it, or change in any way. Both the first and
second echocardiograms had been instructed by such physicians, not by Dr Labinjoh or any
other cardiologist. There was unchallenged evidence that pericarditis is not routinely
managed by cardiologists. The Lord Ordinary's conclusions as to the reliance on
Dr Labinjoh by those treating Mr McCulloch appear therefore to be significantly over-stated,
having regard to the evidence. It is difficult to square the Lord Ordinary's reasoning in this
section of his opinion with the findings he made at para 90, that
"Dr Labinjoh's visit to Mr McCulloch is not properly characterised as a review which
included a need to take a full history. As Dr Labinjoh emphasised, she had
responded to a request to review the results of the echocardiogram taken on 2 April.
The purpose of her visit was not to carry out a review but to confirm that her
interpretation of the echocardiogram was consistent with his clinical presentation."
[51]
At the time Dr Labinjoh saw Mr McCulloch on 3 April no decision regarding his
discharge had been made. There was a working diagnosis of lower respiratory tract
30
infection associated with pericardial effusion. It was reasonable for her to understand that
the infection was being treated, especially since she was unaware that he had already been
discharged and readmitted, which had not been mentioned to her when she was asked to
review the echocardiogram.
[52]
It is difficult to understand what is meant by the Lord Ordinary's reason (ii). There
is absolutely no doubt that Dr Labinjoh did not have charge of Mr McCulloch's care. As the
Lord Ordinary noted, no case was being presented against Dr Labinjoh in respect of her
input on 6 April. The decision whether to discharge him would not have been a decision for
her, but for those in charge of his care, who would be expected to make that decision based
on all the known facts at the time the decision was made. This would no doubt include Dr
Labinjoh's interpretation of the third echocardiogram, but it would also include the
discharging physician's assessment of Mr McCulloch's clinical condition at the time the
decision was made, which seems to have been discussed during the day and confirmed at
1840hrs on the 6 April. It is difficult to see how the alleged negligence of Dr Labinjoh on
3 April could have resulted in the circumstance referred to in the Lord Ordinary's second
reason.
[53]
In any event, it would not be reasonable, on the evidence to expect a decision on
discharge to be made solely on the interpretation of the third echocardiogram. Dr Weir
explained that the most important part of any assessment is the clinical assessment, which
"almost trumps everything" and that you would not make a management decision based
purely on an echocardiogram. There seems to be no basis in the evidence to conclude that
any action or inaction on the part of Dr Labinjoh resulted in a decision on discharge being
left inappropriately in the hands of a junior doctor.
31
[54]
On 6 April Dr Labinjoh was told that the plan for discharge which had previously
been formulated, involving subsequent review by Dr Wood, with a repeat echocardiogram
around 19 April, remained in place. Given that she was not aware of his
discharge/readmission the Lord Ordinary's implication that the plan required to be
reviewed is not knowledge which can be attributed to her. Moreover, this again does not
seem to be linked to her alleged negligence on 3 April.
[55]
It is also difficult to identify the basis of the Lord Ordinary's reasoning that
Dr Bloomfield proceeded on the basis that at the time of Dr Labinjoh's visit, Mr McCulloch
"was well", and that this was not borne out by the third echocardiogram, even with the
application of hindsight. As has been noted above, the echocardiogram is only one aspect of
assessment, which depends significantly on the clinical assessment also. In his findings as to
Mr McCulloch's presentation on 3 April the Lord Ordinary seems to have accepted the
evidence of Dr Labinjoh of Mr McCulloch being much improved from when she had seen
him previously, and making no complaint of chest pain. There was evidence that his EWS
was 1, having been 4 on 1 April, and he is recorded in the notes as indicating he was feeling
much better. There seems to be nothing in the evidence of Dr Bloomfield to suggest that he
proceeded on an assessment of Mr McCulloch's condition on 3 April that was anything
other than that which the Lord Ordinary himself seems to have accepted in evidence. The
only issue was in relation to the interpretation of the echocardiogram, the differences in
which Dr Labinjoh, supported by Dr Bloomfield, considered to be of little significance.
[56]
In the case of the echocardiogram in question there was a clear difference of opinion
between the evidence of Drs Flapan and Weir on the one hand, and Drs Bloomfield and
Labinjoh on the other. The former considered the second and third echocardiograms to
show a downward trend, the latter, whilst recognising that there were changes, did not
32
think that the trend was concerning. Dr Weir said that the picture between the first and
second echo was a bit better; between the second and third a bit worse. He would himself,
like Dr Flapan, have wished to obtain a further echo to ensure that the effusion was not
increasing in size, and felt that the majority of cardiologists would have felt the same. There
was some room for variation in practice and in any event a period of weeks could pass
before the repeat echocardiogram, if the patient was thought to be clinically stable.
However, the experts on each side of this debate, Drs Flapan and Weir on the one hand, and
Dr Bloomfield on the other, gave clear and defensible reasons for their opinions. Looking at
the factors we have just outlined in respect of this aspect of the case, it is very difficult to see
a sound basis for the Lord Ordinary's view that Dr Bloomfield's justification for his opinions
failed to meet the Bolitho Test.
[57]
As to the observation by the Lord Ordinary that "there was no reason not to" repeat
the echocardiogram, we fail to see this as a relevant factor. No doubt in any given medical
situation there may be "no reason not to" pursue a particular course of action: that is not the
test to be applied however. The test is whether the treatment is indicated in the
circumstances and whether failing to take it is a step which would not be taken by any
competent doctor in the exercise of ordinary care.
Causation
[58]
The Lord Ordinary did not address the issue of causation in respect of NSAIDs, other
than on the issue of material contribution, which is not now the way the matter is presented
for the pursuers. The argument is that had NSAIDs been prescribed, this would have
stopped the leakage from blood vessels, thus limiting the effusion. The averment was that
had Mr McCulloch been given NSAIDs he would have been monitored for response in
33
hospital and any deterioration would have been picked up before it progressed to a fatal
situation. This line of argument is heavily dependent on the evidence of Dr Flapan,
discussed above, that the effects, and purposes, of prescribing NSAIDs was to reduce or
limit the effusion. We have noted the extent to which that evidence was not in accordance
with other evidence in the case. Dr Flapan stated that had the deceased been treated with
NSAIDs the echocardiogram would have been repeated within 48 hours, the effusion would
have been smaller, and the early signs of tamponade would have been resolved. Unless one
assumes Dr Flapan to be correct about the effect of NSAIDs the assertion that the effusion
would have been smaller on an echocardiogram carried out 48 hours later is nothing but
speculation. Again, it should be noted that there was no evidence of tamponade, not even
early signs thereof on 3 April. There was no evidence of tamponade on the third echo or on
3 April when Dr Labinjoh examined the deceased. Dr Reid did not see evidence of
tamponade on a CT scan dated 5th April. There is nothing to suggest that there was
evidence of tamponade on 6 April. What Dr Flapan was actually meaning, when his
evidence is examined carefully, was simply that there is a risk of tamponade developing
from an effusion which increases in size. The Lord Ordinary was correct therefore in
summarising the evidence of Dr Flapan as being that NSAIDs would have reduced the
inflammation of the pericardium, leading to a smaller effusion and a resolution of
Mr McCulloch's condition, and in not concluding that there were any signs of tamponade.
[59]
It is trite to state that causation in cases of medical negligence remains a matter of
proof, to the standard of a balance of probabilities. The pursuer must show that the
negligence was the cause of the loss averred. Where one is dealing, as the Lord Ordinary
noted, with a hypothetical scenario, when it cannot be known what an investigation would
have disclosed, or what treatment would have followed, the issue must be assessed on the
34
general basis of likelihood, having regard to the whole evidence on the matter. The pursuer
must show on the evidence that had the predicated action been taken it is more likely than
not that the harm complained of would have been avoided. On this question the evidence
must be looked at in the round, and although the pursuer need not prove in detail every link
in the possible chain of events, it is nevertheless necessary to lead evidence which can satisfy
the court that on balance, the loss would have been avoided had the predicated step been
followed. The Lord Ordinary understood this and approached assessment of the evidence
on causation on this basis.
[60]
In respect of NSAIDs, the issue of causation does not arise for discussion, given the
conclusions we have reached, in agreement with the conclusions of the Lord Ordinary.
However, on this aspect of the case, we can see no basis upon which the pursuers could
have succeeded. The list of issues affecting this aspect of the case, summarised at para [46]
above are mostly also relevant to the issue under consideration here, most significantly the
evidence which suggests that the primary reason for prescribing NSAIDs is pain relief,
rather than for any anticipated effect on the progression of the condition.
[61]
In respect of the echocardiogram, the pursuers' case was that had a further
echocardiogram been carried out, Mr McCulloch would have required to remain in hospital
and discussion of options for treatment and further serial echocardiograms to assess the size
of the effusion and its effect on the heart would have followed. In these circumstances he
would not have died. The Lord Ordinary, correctly in our view, considered that to a large
extent consideration of this issue involved speculation. He considered that there was no
evidence to support a finding that it was more likely than not that an echocardiogram would
have been performed on or before Friday 6 April. Working back from the death from
cardiac tamponade on 7 April, he was willing to infer, with hindsight, that Mr McCulloch
35
must have been very ill on 6 April. He was also willing to infer that a repeat
echocardiogram carried out on 6 April would probably have disclosed "a marked
deterioration" in Mr McCulloch's condition, leading to a need for urgent treatment to be put
in place. Beyond that, he considered that any findings would be entirely speculative. There
was no basis in the evidence for an assessment of whether, at whatever time it was
commenced, and whatever it may have consisted of, such treatment would have been likely
to be successful in preventing Mr McCulloch's death. The Lord Ordinary repeated that this
was not a straightforward case of pericarditis, but a complex situation. We note that
treatment in cases of severe effusion may include pericardiocentesis, about which the
Lord Ordinary heard evidence. This is a procedure which in itself carries significant risks,
including death, and which may even have required transfer to another hospital. Dr Weir
would only carry out pericardiocentesis in a near life-threatening emergency, and Dr Flapan
accepted that in the case of the deceased it would carry significant risk. We agree with the
Lord Ordinary that esto negligence on this aspect of the case were established the case would
still fail on causation. The result is that the reclaiming motion must fail, and the cross appeal
for the defenders must succeed.
36
APPENDIX
Glossary of terms
Pericardial sac: The heart is a muscular pump which sits within the pericardial sac. The
outer surface of the heart is the visceral pericardium and the sac is the parietal pericardium.
There is normally a small amount of fluid within the pericardial sac to allow free movement
of the heart during contraction.
Pericardial effusion: Fluid can accumulate in the pericardial sac, due to inflammation,
infection or secondary deposits of malignant cancerous cells. If the two layers of
pericardium become separated by the accumulating fluid, this is a pericardial effusion.
Pericardial effusions which accumulate gradually may become very large before
compromising cardiac function, in contrast to rapidly accumulating effusions which may
begin to cause cardiac compromise after only 300-400 ml.
Pericarditis: In most cases, inflammation of the pericardial sac is called pericarditis. As the
pericardium becomes inflamed, more fluid is produced. In health the pericardium is elastic,
but an inflamed pericardium loses its elasticity very quickly and cannot stretch to
accommodate an effusion. Viral infections are one of the main causes of the inflammation
which produces the effusion. Other conditions that can cause pericarditis and effusions
include cancer; injury to the sac or heart from a medical procedure; heart attack; severe
kidney failure; autoimmune disease; and bacterial infections. In many cases no cause can be
found for the pericarditis and it is referred to as idiopathic pericarditis.
Pericardial tamponade: Tamponade occurs when a large pericardial effusion compresses
the heart and does not allow adequate filling. Restriction in filling increases the pressure in
the two main veins draining into the right side of the heart: the superior and inferior venae
37
cavae. As filling is reduced, blood pressure falls, and there is normally a compensatory
increase in heart rate to help maintain cardiac output. Clinical features of tamponade are
elevation of the jugular venous pressure, marked pulsus paradoxus, low blood pressure,
and a compensatory increase in heart rate. Echocardiographic features of tamponade are
imaging a large pericardial effusion, collapse of the right atrium, compression and collapse
of the right ventricle, fixed distension of the inferior vena cava with a failure of this to
collapse with respiration. Since the right atrium is thin walled and at low pressure, it is
usually the first cardiac chamber to show signs of collapse when intra-pericardial pressure
rises.
There are degrees of tamponade. Tamponade may be mild causing a reduction in cardiac
output that may be compensated for by an increase in heart rate. Cardiac tamponade may
be more severe causing a reduction in cardiac output such that despite an increase in heart
rate there is inadequate cardiac output to perfuse vital organs such as kidney and brain.
Cardiac tamponade may be complete such that there is no cardiac output.
Jugular venous pulse: The jugular venous pulse is a physical sign that is observed in the
neck. In health the blood returns to the heart from the head through the jugular vein.
Normally it is just visible at the clavicle. If there is an increase in the pressures in the heart
(particularly the right atrium), this increase in pressure is transmitted to the jugular vein and
the column of blood becomes visible as the vein distends and fills with blood.
Pericardial constriction: In constrictive pericarditis, the heart cannot expand or relax
because it is held in a constricted tight pericardium with no elasticity. Pericardial
constriction usually develops over a longer time course in comparison with cardiac
tamponade resulting from a pericardial effusion. The two conditions both lead to a
reduction in cardiac output but there are differences between them.
38
Pericardiocentesis: Also known as pericardial aspiration, this is a process whereby
pericardial fluid is removed by aspiration through a needle. It is normally done under
ultrasound guidance. This enables the size and location of the pericardial effusion to be
precisely identified and the needle inserted along a safe track directly into the effusion. The
risks are laceration of the liver if an inferior approach is used and laceration of one of the
coronary arteries or puncture of the right ventricle if the needle is advanced too close to the
heart itself.
Pulsus paradoxus: This term refers to the variation in strength of the pulse as measured in
the blood pressure with the cycles of respiration. There is normally a small rise and fall in
the strength of the pulse when breathing in or out. The term is a misnomer as it is not
paradoxical but an accentuation of the normal respiratory variation in the strength of the
pulse. A large pericardial effusion results in pulsus paradoxus as the chambers of the heart
are constricted and cannot vary their volume in response to the changes of filling associated
with respiration.
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