Scottish Court of Session Decisions

[1] In this action the pursuer seeks damages against the defenders for the alleged negligence of three surgeons for whose acts and omissions the defenders are liable. The case came before me on procedure roll on the defenders' plea to the relevancy when counsel for the defenders argued that the averments directed against one of the surgeons were so lacking in specification as to be irrelevant and should be excluded from probation.

[2] The pursuer avers that on 28 January 1994 she sustained fractures of the right tibia and fibula in a fall. She was taken to Ayr Hospital and was operated on that evening by a surgeon, Mr Foxworthy, who inserted a nail and two cross screws in her tibia. On 31 January she was seen by another surgeon, Mr Muirhead, and the tibia was noted to be deformed. On 4 February the fracture was manipulated under anaesthesia, and on 9 February x-ray photographs showed the tibia fracture to be displaced. On 10 February a protruding spike of the tibia was excised and a single ""Partridge band" was used as cerclage to hold the fracture in position. On 21 February the pursuer was discharged from hospital. The pursuer was reviewed as an out-patient by Mr Muirhead on 3 and 5 April, 10 May and 14 June 1994. On the last occasion the fibial fracture had healed satisfactorily, but there was little evidence that the tibial fracture was healing. On 19 June a bone graft from the pelvis was carried out to try and enhance healing of the tibia, but on 8 September x-rays showed there to be no significant healing of the fracture. On 5 January 1995 the pursuer still had pain in the area of the fracture and there was only a tenuous bony union across the fracture posteriorly. The nail had become prominent. On 17 June 1995 the fracture had still not reunited and the situation remained tenuous. The pursuer was reviewed as an out-patient by Mr B Tauro, orthopaedic registrar in Mr Muirhead's clinic, on 4 December 1995. The position was essentially unchanged but she was discharged from that clinic. The pursuer avers that as a result of the foregoing she sustained loss, damage and injury.

[3] The pursuer makes averments of fault against Mr Foxworthy, Mr Muirhead and Mr Tauro. Counsel for the defenders confined his attack to the averments directed against Mr Tauro. Those averments were as follows.

The words "such surgeon" referred back to the phrase "any surgeon of ordinary competence exercising reasonable skill and care" which was used in the averments of fault against the other surgeons.

[4] Counsel for the defenders submitted that the case against Mr Tauro was so lacking in specification as to be irrelevant. He quoted the well-known passage from the Opinion of Lord President Clyde in Hunter v Hanley, 1955 SC 200 at page 204,

This analysis had been approved in Sidaway v Governors of Bethlem Royal Hospital, 1985 1 AC 871 at 899. The appropriate averments depended on the kind of doctor involved. The present case was concerned with orthopaedic surgeons and accordingly the test to be applied should be based on what any orthopaedic surgeon of ordinary competence exercising reasonable skill and care would have done. The averments directed against Mr Foxworthy made clear what he should not have done and what he should have done. In Mr Tauro's case it was averred that he was an orthopaedic registrar and only became involved in the pursuer's treatment two years after her accident. The pursuer had averred what he should not have done, he should not have discharged the pursuer from Mr Muirhead's clinic, but there was no averment as to why he should not have done that or what he should have done. In these circumstances there was no fair notice of the case against him. He was not told why he should not have discharged the pursuer. He was not told what the normal practice was and how he had departed from it. The averments against him were lumped in with averments against the other surgeons but, had they stood alone, they would not have been sufficient to entitle the pursuer to a proof.

[5] Counsel for the pursuer argued that the case of Hunter v Hanley was concerned with a deviation from normal practice. The present case however was not concerned with a deviation from normal practice and accordingly Hunter v Hanley did not apply. All the pursuer was saying was that Mr Tauro should not have done what he did. Counsel relied on the oft cited dicta of Lord Normand in Jamieson v Jamieson 1952 (HL) 44 at p. 50, and Lord Keith of Avonholm in Miller v SSEB 1958 SC (HL) 20 at page 33.

[6] Contrary to the submissions of counsel for the pursuer, I consider that counsel for the defenders was right to submit that the test enunciated by Lord Clyde in Hunter v Hanley continues to apply in cases of medical negligence. Where a doctor is thought to have been negligent, however simple or minor his error may have been, it is for the pursuer to consider and then to aver what a doctor of ordinary competence exercising reasonable skill and care would have done in the circumstances and in what way the defender had diverged from that. In this case the alleged negligence took a very simple form, namely discharging the pursuer from Mr Muirhead's clinic. At page 206 of Hunter v Hanley Lord Clyde said,

[7] What the pursuer has failed to do is to aver specifically that the normal practice would have been not to discharge the pursuer, and that Mr Tauro deviated from it. Where the allegedly negligent action is as simple as it is in this case, and it is averred that no surgeon of ordinary competence exercising reasonable skill and care would have done it, I consider that it can reasonably be inferred that the normal practice would have been not to discharge the pursuer and that the surgeon deviated from it. I do not read Hunter v Hanley as requiring the pursuer to aver in every case why the doctor should not have done what he did, but even if it did, I consider it to be obvious that if the pursuer had not been discharged, she would have continued to be under medical review with the result that any requirement for further treatment could more readily have been ascertained. In my view these inferences are sufficiently obvious that I do not consider it appropriate to withhold the case against Mr Tauro from proof in effect on the ground that the pursuer has failed to adhere to an established verbal formula.

[8] In these circumstances I shall allow a proof.