Scottish Court of Session Decisions

[1] On 23 February 1996 the pursuer, who is a 39 year old mother of four, underwent a total abdominal hysterectomy with bilateral salpingo-oopherectomy at Hairmyres Hospital, East Kilbride. The operating gynaecologist was Dr Anne Calder who at that time was a Registrar in Obstetrics and Gynaecology under a consultant, Dr John Grant. She was assisted in the operation by Dr Gillian Irvine who was a Senior Registrar in the same department. Dr Grant had decided, in the knowledge of the pursuer's gynaecological history, that the operation lay within the competence of Drs Calder and Irvine. He therefore must have taken account, among other features, of the fact that on 26 November 1993 the pursuer underwent D & C, anterior colporrhaphy with excision of a wedge of the anterior lip of the cervix and thus that there was likely to be scarring of the cervix; and of the fact that when he himself on 5 May 1995 performed a diagnostic laparoscopy, he found deposits of endometriosis in the rectovaginal pouch with surrounding scarring. By reason of the scarring and the endometriosis it was unlikely that the operation carried out on 23 February 1996 would be either straightforward or uncomplicated.

[2] In light of certain symptoms shown by the pursuer, and as a result of various tests, it was determined three days after the operation that while the right kidney was functioning well, the left kidney was virtually non-functioning. That tended to indicate obstruction of the left ureter. To relieve that situation a percutaneous nephrostomy was placed and that ensured normal kidney function on that side. Further tests suggested that there was an obstruction to the left ureter, about 3 - 4cms above the bladder. The consultant urologist in charge of the pursuer, Mr Peter Orr, performed a laparotomy on 11 March 1996 in order that the left ureter, which he divided above the point of obstruction, could be re-implanted in the bladder. That operation was successful and a full flow of urine was restored. In the course of the operation he did not dissect down to the area of blockage which he had by previous tests already determined was total, because there was endometriosis which was not particularly extensive, and a healing blot clot. So he did not explore the area. The obstruction was between 3 and 5cms up from the ureter orifice in the bladder. It was obvious to him that the obstruction of the left ureter was caused by the operative procedure. The urinary problem had appeared 48 hours or so after surgery and on operation he saw no other explanation when he examined the area. In his opinion the left ureter must have been damaged when it was clamped and tied or tied in the course of the operation on 23 February 1996. He was satisfied that in the area of the obstruction there was not a double ureter, despite the ambiguous note he made after the operation. There was however a double ureter at the top, descending from the kidney on the left side. That was unaffected by the operation on 23 February 1996. The obstruction, he said, was in the classic area for damage to the ureter in the course of hysterectomies, and that was close to the bottom of the uterus in the area where the uterine artery lay. I will return to Mr Orr's opinion evidence later in this judgment.

[3] I turn now to the evidence given by Dr Calder about the operation she carried out on 23 February 1996. The defenders' proof opened with her evidence. So she gave evidence after the pursuer's two expert witnesses, Drs Farquharson and Brown, and also after Mr Orr. I shall have something to say in due course about this arrangement of the evidence. I would like to say immediately that I had no hesitation in accepting Dr Calder as a truthful and reliable witness, although she obviously felt under considerable strain as the operator who had in some way brought about the obstruction of the pursuer's left ureter, and indeed the person blamed for that along with Dr Irvine. Dr Irvine, too, I found to be a wholly credible and reliable witness, although she now had very little recollection of the operation, not having been asked in any detail about the operation until the beginning of this year.

[4] Dr Calder took her membership of the Royal College of Obstetricians and Gynaecologists in 1993. In 1994 she became a career registrar in rotation in the West of Scotland in obstetrics and gynaecology. In February 1996 she was appointed a registrar in the same field with the Hairmyres National Health Service Trust. By the time of the operation on 23 February 1996 she had taken part in well over two hundred abdominal hysterectomies. Twenty or thirty of these had been unsupervised by a consultant, although assistance from such a source was available if required. Overall, by then, she had been present at more than five hundred hysterectomies. In the years 1994 to 1996 she performed about two hundred hysterectomies. She had known Dr Gillian Irvine for about seven years.

[5] Dr Calder's operation notes, which she wrote up immediately after the operation, purport to set out what she did and what she found. As I will explain, they do not reveal all that she did. Nor do they accurately record the exact order in which she carried out certain stages of the operation. These notes are to be found in the hospital records (No.7/1 of process) at page 36. A typed out version is to be found in Dr Farquharson's report (No.6/13 of process) at page 3. I may say that the operation was considered in great detail in the evidence but in my judgment I do not require to follow that detailed course. It is sufficient if I concentrate on the vital parts which are, in my opinion, central to a consideration of what in fact happened.

[6] The reason for the operation was endometriosis, a pelvic condition from which the pursuer appeared to be increasingly suffering. When she opened the abdominal cavity Dr Calder found a bulky endometriotic uterus. She also found old endometriotic deposits and scarring around both uterosacrals. She knew about endometriosis because she had worked alongside someone who specialised in that condition at Stobhill Hospital, Glasgow. As she progressed with the operation she reached the point where the bladder had to be mobilised away from the uterus. To do that, she incised the uterine ligament fold in order to reflect the bladder downwards. When that is achieved, the ureters tend to move out of the operative field. This, however, was when the first complication in the operation occurred. The bladder was found to be adherent to the uterus as a result of cervical scarring or adhesions from the previous operation on 26 November 1993. The first sharp dissection was not successful; so Dr Calder had to carry out a further dissection before the bladder was released. When she checked the bladder after the first dissection Dr Calder said that she checked the position of the left ureter by palpation and found it "close". As the bladder was released, bleeding from the old adhesions occurred in the left paravesical venous plexus. This comprises, as its name suggests, a network of veins. Attention had immediately to be given to this unexpected development. A swab applied to the area did not stop the bleeding which continued to ooze out. It was obvious to both operators that the bleeding would have to be controlled by clamping and stitching. Dr Calder said that she then palpated the left ureter and located it to her satisfaction before applying a clamp to the area of bleeding. Before tightening the clamp she checked the position of the left ureter again by palpating it. In order to stitch satisfactorily it is necessary to take up a certain amount of tissue in the tip or tongs of the clamp. The stitch or suture is then inserted round the tip or tongs of the clamp. Dr Calder in her operation notes describes the suture as "superficial". Technically that was intended to convey the fact that it did not involve any underlying structures. As a result of the suture, the bleeding lessened but it was still significant in quantity. She discussed the matter with Dr Irvine, and it was decided then to switch attention to the parametrial area which was a centimetre or so away, and to clamp, divide and secure the uterine arteries on both sides of the uterus. The thinking was that this might control or at least lessen the bleeding which had occurred.

[7] Dr Calder said that she felt for and located the ureters on both sides before applying the clamps to the uterine arteries. She said that Dr Irvine also felt for the ureters and was satisfied that they were out of the area of clamping. Before tightening the clamps Dr Calder said she palpated the ureters again. She added that she used not only the traditional method of palpation that she had been taught - that is, by running the structure between thumb and forefinger - but also the method adopted by Dr Grant which was a variation of that. It was well recognised, she said, that this was the area in which ureteric damage could occur if great care were not taken to locate the position of the ureters. The evidence indicates that this was especially so on the left side because anatomically the left ureter passed closer to the uterus in that area than on the right side.

[8] The suturing of the left uterine artery did not have the desired effect of lessening the bleeding. What Dr Calder then did was, in my clear opinion, critical and central to an understanding of the damage which the pursuer sustained as a result of the operation. She returned to the area of bleeding in the left paravesical plexus and clamped and sutured again. This time that procedure was successful in stopping the bleeding. Once again, the suture is described as "superficial" by Dr Calder in her contemporary notes. When she was asked if she felt for the ureter again before clamping and suturing a second time, she replied that she was not sure. She had felt for the ureter on that side when clamping and suturing there the first time. She may have done so on the second occasion, but she could not say that she did. She did not recall Dr Irvine doing so either. When the first suture was inserted she was confident that the left ureter was lateral to where she was working and out of the way by a centimetre or so. On the second occasion she re-clamped the same distance away from the left ureter. The depth of the stitch she applied was between 1mm and 2mm. That, in Dr Calder's opinion, would not involve the ureter. She did not think that either of the sutures involved the ureter. Her judgement, when she clamped and sutured a second time, was that the ureter was far enough away not to be involved. She could not be sure if she palpated the ureter after suturing. She had not been taught to do that. Once she had stopped the bleeding with these two haemostatic stitches, she proceeded with the operation which led ultimately to the removal of the uterus; the ovaries and fallopian tubes having been removed earlier in the operation.

[9] Dr Irvine, who is now a consultant in obstetrics and gynaecology and had taken her membership of the Royal College of Obstetricians and Gynaecologists two years before Dr Calder, was, as I have said, a senior registrar at the time of operation. She now holds an M.D. degree. She said about the operation:

She could not remember what attempts were made to arrest the bleeding. She herself had encountered bleeding in that area three to five times before. It was a relatively infrequent occurrence. Her normal procedure was to palpate the ureters and make sure they were well away from the site. She would mop out the blood in order to get a clear view. She would then apply a clamp to what she felt was the source of the bleeding. If she felt the ureter was close, she would palpate again. Then she would apply the clamp and suture, asking for the clamp to be removed as she secured the stitch. Dr Calder was quite experienced. If however she had felt that Dr Calder was deviating from her, Dr Irvine's practice, she would have stopped Dr Calder and taken over. She would only have intervened if there had been a clear departure from standard practice. She could not recall intervening. (It was accepted that she had not done so). Dr Irvine was in my view a careful witness and I had no reason to doubt that if in the course of her supervision of the operation she had seen a departure from her own practice, she would have drawn that to the attention of the operator and taken over the operation if necessary.

[10] The first question which arises is where the ureteric obstruction was. I may say that I accept Mr Orr's evidence that if you can use the word "totally", the left ureter was totally blocked, 18 - 16cms down from the ureteric exit from the kidney, or 3 or 4 or 5cms up from the ureteric orifice in the bladder. That area of obstruction could encompass both the work done on the uterine artery on the left side and the work done on the left paravesical venous plexus to arrest the bleeding there. Dr Farquharson and Dr Brown thought that it could have occurred in either area but that on a balance of probabilities the obstruction occurred when the work was carried out in the former area, but they thought that because that was the area of greatest risk for ureteric damage and where it commonly happened. Further, and more crucially, neither of them heard the evidence of Dr Calder and Dr Irvine and the steps, which according to Dr Calder, they both took to locate the left ureter in that area. Dr Calder palpated twice and Dr Irvine once before any suturing took place there. Dr Calder agreed that she showed great care in that area. I believe that she and Dr Irvine both did so in that area. What I considered to be of greatest significance, however, is Dr Calder's uncertainty about whether she located the left ureter before clamping and inserting the second suture in the latter area - that is, in the area of the left paravesical venous plexus. She was uncertain about little else in connection with the operation. This has led me to the conclusion that she did not do so. I can see why she did not. The area was still bleeding and needed immediate attention. She could see the position of the first stitch. In relation to that stitch she thought that she knew from the earlier palpation where the left ureter lay. And so she proceeded to clamp and stitch without re-palpating the left ureter first. The conclusion I have reached increases the probability in my judgment that the obstruction of the left ureter took place in the area of the left paravesical venous plexus. I am clear that that is where it occurred.

[11] The next question is what was the nature of the obstruction. Was it a kinking of the ureter, or encirclement by a stitch? The former could have occurred by the drawing in of tissues into the stitch, resulting in a kinking of the ureter which lay outside the stitches but in nearby affected tissues. Mr Orr had never seen total obstruction caused in this way. Nor had he read any literature to this effect, although he would not dispute any medical paper that recorded it. Professor Calder (no relation of Dr Calder) who gave evidence for the defenders, had never encountered it himself, although it could happen. Both Dr Farquharson and Dr Brown favoured encirclement as the cause, Dr Brown adding the colourful description of the action as "lassoing". Dr Grant, the consultant in charge, had had some experience of kinking, but it was so different from the present case, involving as it did a fistula with urine escaping into the vagina, that I did not consider it of much relevance. The whole weight of the expert medical evidence is undoubtedly in favour of the cause of the obstruction being encirclement by a stitch, and I so find.

[12] From this finding it is a simple step to the next finding and that is that it was the second suture which encircled the left ureter. The whole factual background was put to Professor Calder and indeed he heard some of Dr Calder's evidence in chief. He said that on balance it was more likely to be the second suture. So also did Dr Grant. The reasons they advanced for this were clear and understandable. The tissues in the area had to some extent been re-arranged by the first suture. That could have affected the position of the left ureter by drawing it nearer to the area to be clamped and sutured. In addition, because of the previous medical history of the pursuer, the ureter may have been less pliable and more likely to be stuck to tissue. So it may have been more easily drawn up by the clamp along with the tissues to be sutured. Both Dr Brown and Dr Grant speculated that since this was a further attempt to control the bleeding, a second clamping and suturing may have been deeper than intended, notwithstanding Dr Calder's note that it was superficial. These reasons, together with Dr Calder's failure to re-palpate, persuade me that the total obstruction occurred when Dr Calder clamped and sutured on the second occasion in the bleeding area.

[13] I turn now to the question whether that failure to re-palpate which was the cause of the ureteric damage, amounts to fault on her part. But, before doing so, I should say something about the expert witnesses in this case. To some extent Mr Orr and Dr Grant were witnesses of fact, but they also gave opinion evidence. The other experts, Dr Farquharson, Dr Brown and Professor Calder, all hold appointments as consultants in the Royal Infirmary of Edinburgh and the Simpson Memorial Maternity Hospital. All are eminent, without doubt. All are very experienced. Although Professor Calder's principal interest lies in obstetrics, and his gynaecological operating list, especially with regard to hysterectomies, is smaller than those of Drs Brown and Farquharson, that in no way diminished his standing in my judgment. The difficulty which I have in assessing the extensive body of medical evidence is that Dr Farquharson and Dr Brown gave their evidence without appreciating all that Dr Calder said that she did in the course of the operation. They relied for their opinions largely upon her operation notes together with what was averred in the Closed Record on behalf of the defenders. In addition, Mr Stewart, senior counsel for the defenders, put in cross-examination some, but not all of the actions which Dr Calder performed in the course of the operation. I intend no criticism of Mr Stewart. He was not obliged strictly to put anything to them. At first, Dr Farquharson and Dr Brown had assumed from the operation notes that there had been no palpation of the ureters since there was no mention of that in the notes. (I suspect that Dr Brown held a somewhat extreme view that in 1996 this should have been recorded, but nevertheless it must be good practice to do so). It was only in the course of Dr Calder's evidence that it became apparent that, despite the terms of her operation notes, she had not clamped and sutured the two "superficial" sutures in the left paravesical plexus before proceeding to clamp, divide and secure the uterine arteries. Instead, she clamped and inserted one stitch only, before dealing with the uterine arteries and then returning to clamp and insert the second suture. This was unfortunately not put to Drs Farquharson and Brown. Nor was it put to them that when the second clamping and suturing took place Dr Calder may not have re-palpated and re-located the left ureter. So, apart from what these two eminent specialist said with regard, as it were, to first principles, I do not know what opinion they would have held about Dr Calder's actions and whether they amounted to negligence. It is in my experience always an uncertain guide towards an understanding of what in fact happened, to proceed on the basis of what is recorded in hospital records. Frequently they are found to be incomplete and unreliable. As I said more than once during the Proof, if in cases of alleged medical negligence like, this the defenders' pleadings are not considered to be sufficiently revealing - they seldom are - and if a precognition of the operator or practitioner is not available for whatever reason, the only sensible course to follow is for the pursuer to cite and lead such a person as the first or at least as an early witness. Only in that way can it be determined what the person blamed accepts that he or she did. Once that is understood, the experts can scrutinise and test it, and give an informed opinion about it. In recent years there has been a departure from this highly effective practice.

[14] In a case such as this where the allegation is a failure to follow a standard operating practice, namely palpation in order to locate the position of a ureter, the well-known test advanced by Lord President Clyde in Hunter v Hanley 1955 SC 200 is entirely apt and applicable. I do not consider that the later, English cases, carry that test further or affect it in a case like this. Lord President Clyde said at page 204:

He went on to point out (on page 206) that to establish liability on the part of a doctor where deviation from a normal practice was alleged, three facts had to be established. First, it had to be proved that there was a usual and normal practice. Secondly, it must be proved that the doctor had not adopted that practice. And, thirdly, it must be established that the course the doctor adopted was one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. The ultimate question in this case comes to be a very narrow one in my opinion. Was it established that before each clamping and suturing in the left paravesical plexus the normal or standard practice was that there should be palpation of the left ureter so that on each occasion it could be located? Not even Dr Brown maintained that. And Dr Farquharson indicated that re-palpation after the suture had been inserted in an area of bleeding in order to be assured that the ureter was not involved in the suturing, was not desirable because more bleeding might thereby be provoked. Those who understood that the two sutures were not inserted sequentially, but that the second suture was inserted on a later return to the area, namely Professor Calder and Dr Grant, said, respectively, that in that situation it might have been prudent to re-palpate or wiser to re-palpate. They did not support the view that a failure to re-palpate was a failure of which no operator of Dr Calder's experience and medical standing would be guilty if acting with ordinary care. What Dr Calder did was to use her judgement as to where she clamped and sutured on the second occasion, having earlier determined where the left ureter lay in relation to the first suture. In that, she did not on the evidence depart from normal practice. If in these circumstances the suture encircled the left ureter, as I have held that it did, that in Dr Farquharson's words was a misjudgement. In my opinion it has not been proved that that misjudgement also amounted to negligence on her part. Equally, it has not been proved that there was negligence on the part of Dr Irvine. Mr Orr said that it was "extremely bad luck". I would add that that was especially so for the pursuer. I agree with Mr Stewart that this is a hard case. The pursuer is deserving of much sympathy for all that she has had to endure. Unfortunately, damages can be awarded only if fault is established on the part of the person or persons blamed. These damages, I should add, were agreed in a joint minute to be £40,000 inclusive of interest to 16 March 2000, on the assumption that liability was established.

[15] I will repel the pursuer's pleas. I will sustain the defenders' second and third pleas. And I will grant decree of absolvitor.