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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Dougan (AP) v Lanarkshire Acute Hospitals NHS Trust [2001] ScotCS 83 (3 April 2001)
URL: http://www.bailii.org/scot/cases/ScotCS/2001/83.html
Cite as: [2001] ScotCS 83
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD NIMMO SMITH in the cause ISABELLA DOUGAN (AP) Pursuer; against LANARKSHIRE ACUTE HOSPITALS NHS TRUST Defenders:
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Pursuer: MacAulay, Q.C., Dougal; Brodies (for Keegan Walker & Co., Glasgow)
Defenders: Stewart, Q.C., Brodie; Ranald F. Macdonald
3 April 2001
[1] In this action of reparation the pursuer (whom I shall call "Mrs Dougan") seeks an award of damages for loss, injury and damage allegedly caused by the fault and negligence of the medical staff responsible for her care following her admission to Law Hospital, Carluke, on 24 August 1994. At that time Law Hospital was operated by the defenders' predecessors and was staffed by their employees. With the benefit of hindsight (the "cruel vision of hindsight", as Dr Petrie, one of the expert witnesses called it), it is not in dispute that Mrs Dougan had suffered an aneurysmal subarachnoid haemorrhage (of a type called by some of the medical witnesses a "sentinel bleed") on 17 August 1994 and that her symptoms at the time of her admission were attributable to it. She was discharged from the hospital on the next day, 25 August, without a diagnosis of the subarachnoid haemorrhage having been made. One procedure by means of which a subarachnoid haemorrhage may be diagnosed is the carrying out of a lumbar puncture. No lumbar puncture was carried out on Mrs Dougan. The consultant who was in charge of her case following her admission, and who decided that she should be discharged, was Dr Ronald Baxter (Dr Baxter). By the conclusion of the proof, the first main question for me to decide came to be whether, in deciding that Mrs Dougan should be discharged without a lumbar puncture having been carried out, Dr Baxter was negligent. I shall refer to this as "the negligence issue". No evidence was led, and it was not suggested at the hearing on evidence, that any other member of the medical staff was negligent.
[2] During the night of 27 to 28 August 1994, when she was at home, Mrs Dougan suffered a second, more severe, subarachnoid haemorrhage. She was admitted again to Law Hospital and was transferred from there to the Institute of Neurological Sciences at the Southern General Hospital, Glasgow. After various investigations, on 5 September 1994 an operation was carried out by Mr Kenneth Lindsay, a consultant neurosurgeon. A second operation required to be carried out on 24 October 1994. Unfortunately, as a result of the second subarachnoid haemorrhage Mrs Dougan has suffered severe disability. The second main question for me to decide is whether, if Dr Baxter was negligent in discharging Mrs Dougan without a lumbar puncture having been carried out, his negligence caused the second subarachnoid haemorrhage and all that ensued, apart from the first operation which would have been necessary in any event. Another way of expressing this question is whether, if a lumbar puncture had been carried out, the second subarachnoid haemorrhage and all that ensued, apart from the first operation, would probably have been prevented. I shall refer to this as "the causation issue".
[3] The burden of proof, on the balance of probabilities, in respect of both the negligence issue and the causation issue, is on Mrs Dougan. Only if she succeeds in discharging the burden of proof in respect of both issues is she entitled to any award of damages. It will not be necessary for me to decide on the quantum of damages to which she will be entitled in that event because by joint minute the parties have agreed inter alia that, in the event of her succeeding in this action, damages will be awarded in the sum of £350,000, being the measure of damages for her loss, injury and damage as a consequence of her second subarachnoid haemorrhage. This sum, I may perhaps say, is in itself an eloquent demonstration of what Mrs Dougan has suffered as a result of the second subarachnoid haemorrhage.
[4] During the course of the proof I heard evidence from Mrs Dougan, her husband Peter Dougan, their daughter Mrs Marie Frame, Dr Brian McGill of Motherwell Health Centre, Mrs Dougan's general practitioner, Dr David Northridge, a consultant cardiologist at the Western General Hospital in Edinburgh, Professor Ian Whittle, Forbes Professor of Surgical Neurology in the Department of Clinical Neurosciences at the University of Edinburgh, and Dr Christian Lueck, a consultant neurologist in the Department of Clinical Neurosciences at the Western General Hospital in Edinburgh, who were called as witnesses for the pursuer; and from Dr Baxter, Mr Lindsay, Dr John Irving, a consultant physician/cardiologist at St. John's Hospital, Livingston, and Dr Gavin Petrie, a consultant chest physician at the Victoria Hospital, Kirkcaldy, who were called as witnesses for the defenders.
Mrs Dougan's Hospital Treatment
[5] According to the Oxford Textbook of Medicine, 3rd Edition (1996), spontaneous subarachnoid haemorrhage is caused, in the majority of cases, by the rupture of an intracranial saccular aneurysm. The clinical picture is distinctive. The onset is with sudden headache, usually but not always severe, which is often occipital and radiates over the head and down the neck, sometimes down as far as the back or legs, as blood tracks down the spinal canal. Consciousness is often impaired or lost transiently at the onset and if the haemorrhage is extensive the patient remains comatose. Meningism develops, but sometimes not for several hours. I would add at this point that the expert witnesses were agreed that nuchal rigidity (a distinctive stiffness of the neck), which is an indication of meningeal irritation, is regarded as a classic sign of subarachnoid haemorrhage. The textbook continues with the statement that the patient is often irritable, confused, photophobic, and drowsy for several days, and the headache may persist for weeks. The diagnosis of subarachnoid haemorrhage can be most easily confirmed by early C.T. (computed tomography) scan. Several of the expert witnesses gave evidence about the effectiveness of this diagnostic method. Even if carried out immediately after the subarachnoid haemorrhage a positive result is not assured, especially if no more than a relatively small amount of bleeding has taken place. In the days following the initial bleed, C.T. scan becomes progressively less effective. It is because of this that the textbook continues by stating that if a C.T. scan is carried out but is negative, then lumbar puncture is mandatory and the cerebrospinal fluid (C.S.F.) will be bloodstained. If the haemorrhage is more than about twelve hours old, C.S.F. (which is normally clear) becomes xanthrochromic due to altered blood pigment. About 25% of patients die within twenty four hours of aneurysmal subarachnoid haemorrhage. Another 25% die in the first month (usually due to recurrent haemorrhage, or infarction as a consequence of vasospasm) and 50% survive for longer, but still with a risk of re-bleeding (about 2% per annum). The first week is the time of maximum risk of re-bleeding so, if possible, neurosurgical intervention to clip the aneurysm should be as soon as possible. However, the risk of surgery is unacceptably high if the patient is unconscious or has a severe neurological deficit. If the patient is conscious with little or no deficit, then four-vessel angiography should be undertaken to delineate the site of the bleeding and surgery carried out soon afterwards.
[6] Mrs Dougan was born on 23 August 1941. Her home address was in Motherwell. She had an extensive previous medical history. Among other ailments, she suffered from migraine headaches and from cervical spondylosis, for the latter of which she tended to wear a collar with which she had been supplied by a physiotherapist. She had at various times received treatment for depression and anxiety. On Wednesday 17 August 1994 Mrs Dougan and her husband were in London, where they had gone to visit their son. In the morning she got up to go to the lavatory. When she went back to bed she experienced a sudden severe headache, which caused her to jump back out of bed. In court, she indicated that the pain was in the left temporal region, but in my view she was mistaken about this: the hospital clinical notes, based on the history she gave at the time, described the pain as occipital. She had never experienced such a headache before. She went back to the lavatory where she vomited and had diarrhoea. She was "crazy with the pain". A general practitioner, Dr Sainsbury, was sent for and came rather later that morning. Mrs Dougan told him about her recent symptoms. She also told him about the cervical spondylosis. She had been wearing her collar, but was not wearing it when he saw her. Dr Sainsbury told her that her symptoms were attributable to the cervical spondylosis. He prescribed analgesics and told her to wait until Saturday 20 August. I should mention at this point that in the defenders' pleadings there are some averments critical of Dr Sainsbury, but these were not developed in the evidence or in the submissions of counsel, so I disregard them and I treat his involvement as no more than part of the narrative.
[7] Mrs Dougan had no further memory for events after 17 August until some months later, so the following history is derived from other sources. Mr Dougan said that in the days following Dr Sainsbury's visit his wife was very poorly, complaining of pain in her head all the time, despite taking analgesics. She continued to vomit. On Sunday 21 August she began to experience an intolerance of light. This is the first reference to this symptom. On that day Mr Dougan drove her from London directly to Law Hospital. She was seen there at about 7.30 p.m. by Dr M. T. Ahmed, a senior house officer in the Accident and Emergency Department. He recorded that for one week she had experienced a severe sharp headache, all over the head and into the orbits. She had had headaches in the past but they were usually only occipital or parietal, not all over. This time they had been particularly bad and were present all day. They were made worse by coughing, walking, stooping and light (but, the doctor recorded, "no photophobia as such"). She had had several episodes of nausea. She had not felt dizzy or drowsy and had not had any fits or blackouts. She had neck pain, which he attributed to the cervical spondylosis for which she wore a collar. On examination Dr Ahmed found no abnormality neurologically. He found difficulty in assessing her fundi because she could not keep her eyes and head still. Dr Ahmed discussed Mrs Dougan's case with the medical registrar and gave her some analgesics to go home with. He advised her to see her general practitioner the next day. On 22 August he wrote to Dr Sturgeon, one of the general practitioners in the practice of which Mrs Dougan was a patient, in the foregoing terms, and asked him to refer her for an out-patient appointment for her headaches.
[8] Mr Dougan took his wife home on the evening of 22 August and put her to bed. The next morning he called in Dr Sturgeon. According to Mr Dougan, Mrs Dougan was at that time in bed, wearing dark glasses because she could not stand the light, and also wearing her collar. Dr Sturgeon recorded in his clinical notes that she had "neck pain and occipital headache", and prescribed coproxamol (an analgesic) and diazepam, the latter perhaps as a muscle relaxant.
[9] Mr and Mrs Dougan's daughter, Mrs Frame, was a psychiatric nurse. Her training included general nursing. She visited her parents every day, as they looked after her children while she was at work. Her evidence supplements Mr Dougan's account of the events which ensued. After Dr Sturgeon's visit Mrs Dougan's condition deteriorated. She was taking analgesics more often. She complained of a sore head and vomited from time to time. She wore dark glasses all the time. She was unable to get up from bed.
[10] On Tuesday 24 August Dr McGill, who was Dr Sturgeon's partner, was called in. He saw Mrs Dougan at about midday. He decided that she should be admitted to hospital forthwith. In the letter which he wrote for that purpose, he stated that she had developed a severe onset headache one week previously while she was in London. This headache had persisted despite analgesia and the passage of time. She was normatensive and on H.R.T. She had a past history of neck pain, possibly attributable to spondylosis, and general rheumatic pains. She was very anxious. Neck movements were resisted. (Dr McGill said in his evidence that he would have taken off her collar to examine her.) She wore dark glasses to protect her eyes from light. There were no focal neurological signs. The fundi were not visualised. He concluded by stating that he felt that a subarachnoid haemorrhage had to be excluded, despite a previous suggestion of cervical spondylosis pain and tension headache. Dr McGill explained in his evidence that in view of the symptoms he found, he thought that possibly the diagnoses of the doctors who had seen Mrs Dougan previously were wrong, and that the possible diagnoses should be investigated in hospital. In general practice, the correct diagnosis was not always obvious, and this was particularly so in the case of an anxious patient. His letter suggested a differential diagnosis.
[11] Mrs Dougan was admitted to Ward 23 of Law Hospital at about 12.40 p.m. on 24 August 1994. Law Hospital was a district general hospital and Ward 23 was an acute receiving ward. The consultant responsible for her care was Dr Baxter, who was a consultant physician in general medicine and cardiology. Of these specialities, the relevant one for present purposes is general medicine. Mrs Dougan was seen first by Dr A. Al Said, a senior house officer. Dr Baxter said in his evidence that he himself had been on leave until two days previously. He thought that Dr Al Said had been appointed to that post on 1 August 1994, and that this was the first day he had worked for Dr Baxter personally. Dr Al Said took a history from Mrs Dougan and recorded in the clinical notes inter alia:
"This 53 yrs old lady gave 7/7 history of headache. It is mainly occipital and was of sudden onset. It was associated with nausea/vomiting and photophobia. She had very little relief with NSAIDs [non-steroidal anti-inflammatory drugs]. The pain lasted for 7/7 with same severity. She is known to have migraine headache, but she feels this is different and more severe than her migraine. She is also known to have arthritis, including cervical spondylosis."
On examination by Dr Al Said Mrs Dougan was wearing dark glasses and was moderately distressed. With a one-week history of severe occipital headache, photophobia, nausea and vomiting, his differential diagnosis was (1) possible subarachnoid haemorrhage, (2) severe migraine and (3) tension headache secondary to cervical spondylosis. His plan of action stated, firstly, that Mrs Dougan needed a C.T. scan of the brain to rule out subarachnoid haemorrhage. If the scan was negative, a lumbar puncture should be considered. He prescribed dihydrocodeine, pethidine and metoclopramide. Dihydrocodeine and pethidine are analgesics, and metoclopramide counteracts vomiting induced by the other drugs. I shall return to the medication which was in fact administered to Mrs Dougan in due course.
[12] Dr Baxter explained in his evidence that he wanted to keep a close eye on Dr Al Said as a member of his emergency team, more than he would have with someone more experienced. He himself was at an out-patient clinic from 9.00 a.m. to 1.00 p.m. Thereafter he visited the ward and discussed with Dr Al Said the admissions which had taken place that day. He saw the clinical notes at the time and discussed them with Dr Al Said just before 2.00 p.m. All that was available to Dr Baxter at that time were Dr McGill's letter and Dr Al Said's clinical notes: the records of Mrs Dougan's attendance at the Accident and Emergency Department on 22 August were not in the folder. Dr Baxter had no input into Dr Al Said's written plan: he said that in the circumstances he would have expected him to query the presence of a subarachnoid haemorrhage and whether a lumbar puncture should be done. Dr Baxter also examined Mrs Dougan, and agreed with the proposed course of action. Dr Baxter told Dr Al Said about the procedure for having a C.T. scan carried out, and then attended to other duties, including giving a lecture, for the rest of the afternoon until about 5.30 p.m.
[13] Law Hospital had obtained a C.T. scanner for the first time in May 1994. Dr Baxter described it as a modern, state-of-the-art scanner. The radiologists had been trained in its use and in the interpretation of scans. The C.T. scan was carried out at 4.19 p.m. on 24 August by a radiologist, Dr M. El-Sayed. Dr Baxter returned to Ward 23 at about 5.30 p.m. in order to examine the emergency admissions with Dr Al Said. He expected that the result of the C.T. scan would be available by then, but it was not. The radiologists had gone off duty at 5.00 p.m., and there was no radiologist in the Radiology Department to give the result. Dr Baxter said that Dr El-Sayed would have to be contacted at home at the end of the ward round. This was duly done. Dr El-Sayed said that the C.T. scan was normal and Dr Al Said made an entry in the clinical notes to that effect. Dr Baxter always contacted the ward from home in the late evening to discuss the new emergency cases. When he telephoned that evening at about 10.00 p.m. he was told that the C.T. scan was normal. On 25 August Dr El-Sayed prepared a written report, in which he stated that there were normal appearances and no evidence of subarachnoid haemorrhage. At this point I should record, that despite a suggestion by Professor Whittle that it did, it is not part of Mrs Dougan's written case that the C.T. scan showed evidence of a subarachnoid haemorrhage, and I must, as I see it, proceed on the basis that it did not and that the report was correct. In any event, that is what Dr Baxter was told.
[14] At 2.00 p.m. on 24 August 50 mg of pethidine was administered to Mrs Dougan intramuscularly. According to the progress notes written by the nursing staff, she continued to complain of headache. Dr Al Said was informed, and a further 50 mg of pethidine was administered intramuscularly at 7.10 p.m. with little effect. At about 8.00 p.m. Mrs Dougan vomited undigested foodstuff. She was very restless and distressed overnight, constantly complaining of severe headache. Dr Al Said was informed and 30 mg of dihydrocodeine was given orally at 10.00 p.m. with no effect. Another 50 mg of pethidine was given intramuscularly at 11.00 p.m. with some settling effect. Reassurance was given to Mrs Dougan and she slept for a short spell. At 3.15 a.m. she vomited a large amount of undigested foodstuff and complained of severe headache. At 3.30 a.m. 6 mg of sumatriptan (a specific migraine therapy) and 10 mg of metoclopramide were administered intramuscularly "with eventual effect". The morning entry in the progress notes made by the nursing staff records that Mrs Dougan had a settled morning. She was assisted with personal hygiene. She continued to complain of headache. Analgesia was administered "as charted". According to the chart this was paracetamol, which was given at 10.00 a.m. and 2.30 p.m. on 25 August. The note continues:
"Seen by Dr Baxter. For home later today. Mobilising as desired. Taking diet and fluids well. Uncomplaining on reporting [at the change of shift of the nursing staff]."
She was discharged home at 4.00 p.m. with a discharge prescription for paracetamol.
[15] The decision to discharge Mrs Dougan was taken by Dr Baxter at about 10.00 a.m. on 25 August when he made his ward round, during which he saw all the patients who had been admitted as emergency cases on the previous day. He had received a report from the nursing staff about Mrs Dougan's condition and treatment overnight. According to him, when he saw her there was a transformation, a dramatic change. She was not wearing dark glasses, she did not require her collar, and her headache had settled. She said to him that her headache had completely cleared up. When he examined her she had no nuchal rigidity and could move her neck. His evidence was that there was no neck stiffness of any sort. He took the view that the vomiting could well have been an adverse effect of the administration of pethidine. In the clinical notes he recorded a diagnosis of severe tension headache with or without cervical spondylosis. This had now settled, so Mrs Dougan should be discharged. In the same entry he also wrote "up and about, no neck stiffness". One witness seemed to question when these words were written, but I see no reason to doubt Dr Baxter's evidence that he wrote them at the same time as the rest of the entry. He said that but for the resolution of the neck stiffness and the headache he would not have discharged Mrs Dougan from hospital.
[16] Meantime, Mr Dougan had returned to London with the car he had driven north the previous Sunday. He asked Mrs Frame to look after her mother. She was telephoned at about 3.00 p.m. on 25 August and went to Law Hospital at about 3.30 p.m. to take Mrs Dougan home. She took clothes for her and helped her to dress. She described her mother as being too weak to dress herself. She was leaning to one side. According to her, Mrs Frame expressed concern to the nursing staff, saying that she was not convinced that her mother was well enough to be discharged. Nevertheless, she walked Mrs Dougan out of the ward and to her car, and then took her home by way of the pharmacy, where she obtained the paracetamol which she had been prescribed. At home Mrs Frame had to support Mrs Dougan as she was quite clumsy. She helped her upstairs and into her night-clothes. Mrs Dougan told her daughter that her headache was still as bad as before, her eyes were still hurting and there had been no change since she went to hospital.
[17] The progress notes only record that Mrs Dougan was discharged home at 4.00 p.m. There is no mention of Mrs Frame, or of anything she said. I have come to the view that, without any intention of giving misleading evidence, Mrs Frame's perception of events has, quite understandably, been coloured by hindsight. I see no reason to doubt Dr Baxter's evidence about Mrs Dougan's condition at 10.00 a.m. Obviously one explanation for the discrepancy between his account of Mrs Dougan's condition at that time and Mrs Frame's account of her condition at 4.00 p.m. might be that there had been some deterioration during the course of the day, which had been unnoticed by the nursing staff, except to the extent that Mrs Dougan was given paracetamol. If there had been a marked deterioration, however, I cannot suppose that the nursing staff would have failed to notice it and to report it to the medical staff, which would no doubt have resulted in Mrs Dougan's continued detention in hospital. What is in any event relevant for present purposes is what Dr Baxter found at 10.00 a.m. His evidence about Mrs Dougan's condition at that time is consistent with the progress notes, at least so far as the more serious symptoms are concerned. Quite apart from this corroborative material, I was impressed by the conscientious manner in which he gave evidence, and the amount of detail which he was able to provide, and I therefore accept his account of Mrs Dougan's condition at 10.00 a.m.
[18] Dr Baxter's judgment in deciding to discharge Mrs Dougan, as he agreed in the witness box without hesitation, was erroneous. She had indeed suffered a subarachnoid haemorrhage. Mr Dougan returned home at about 5.00 p.m. on 25 August and found his wife in bed and their daughter still in the house. He confirmed Mrs Frame's evidence about Mrs Dougan's condition then. The next day she seemed to be getting worse. She stayed in bed and took paracetamol. On 27 August she again stayed in bed. It is not in dispute that at about 10.00 p.m. that day she suffered the second subarachnoid haemorrhage. On the morning of 28 August a locum G.P. was called in and arranged for Mrs Dougan to be sent to hospital by ambulance. She was taken to Law Hospital, but was transferred immediately to the Institute of Neurological Sciences at the Southern General Hospital.
[19] On admission to the Neurosurgical Unit she had eye opening to speech, gave a confused verbal response and obeyed commands. A right hemi-paresis was present. C.T. scan on 28 August showed a large haematoma within the left frontal lobe and extensive intraventricular haemorrhage. Angiography on 29 August showed a bilobed aneurysm arising at the junction of the pericallosal and callosal marginal arteries. Extensive vasospasm was present involving both anterior cerebral arteries. On 30 August her condition deteriorated to making no verbal response and her right hemi-paresis worsened. An external ventricular drain was inserted on 30 August and renewed on 3 September. By 4 September there was slight improvement to giving a confused verbal response. In view of this slight improvement it was decided to proceed with operative repair since two bleeds had already occurred. On 5 September, through a right frontal flap the pericallosal artery aneurysm was dissected out and uneventfully clipped. Over the subsequent two weeks Mrs Dougan's condition gradually improved. She eventually began to give a confused verbal response and there was some improvement in the right hemi-paresis. The craniotomy wound which merged with the drain wound required re-suturing at one point on 16 September. She was eventually transferred back to Law Hospital for further care on 22 September. Mr Lindsay's discharge summary concluded with the statement that if the patient's condition deteriorated, this could be due to hydrocephalus and an urgent referral back to the Neurosurgical Unit for treatment would be required.
[20] On 20 October 1994 Mrs Dougan was re-admitted to the Neurosurgical Unit in view of possible developing hydrocephalus. It was felt that she had initially made some improvement but she then became confused and incontinent. She also complained of headache. On examination she had spontaneous eye opening, obeyed commands and gave a confused verbal response. There were no focal neurological signs. C.T. scan showed significant ventricular dilatation with periventricular lucency. A lumbar puncture was performed on 20 October and a drain inserted on 21 October for temporary C.S.F. drainage. An operation was carried out on 24 October for insertion of a ventriculo-peritoneal shunt. After the operation she rapidly regained her previous state and, although in the subsequent twenty four hours she appeared more alert, she remained confused. C.T. on 31 October confirmed a reduction in ventricular size. She was discharged back to Law Hospital for further care on 31 October 1994.
[21] As I have said, Mrs Dougan continues to suffer from severe disability, the details of which were not explored in evidence because the quantum of damages had been agreed in the joint minute.
The Negligence Issue
[22] While Dr Baxter's judgment may have been erroneous, this does not of itself mean that he was negligent. Negligence, for present purposes, is as stated in Hunter v Hanley 1955 SC 200. In that case Lord President Clyde said at pp. 204-5:
"To succeed in an action based on negligence, whether against a doctor or against anyone else, it is of course necessary to establish a breach of that duty to take care which the law requires, and the degree of want of care which constitutes negligence must vary with the circumstances - Caswell v Powell Duffryn Associated Collieries [1940] A.C. 152, per Lord Wright at pp. 175-176. But where the conduct of a doctor, or indeed of any professional man, is concerned, the circumstances are not so precise and clear cut as in the normal case. In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care ... The standard seems to be the same in England ..."
At p. 206 the Lord President said:
"It follows from what I have said that in regard to allegations of deviation from ordinary professional practice ... such a deviation is not necessarily evidence of negligence. Indeed it would be disastrous if this were so for all inducement to progress in medical science would then be destroyed. Even a substantial deviation from normal practice may be warranted by the particular circumstances. To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on a pursuer to establish these three facts, and without all three his case will fail. If this is the test, then it matters nothing how far or how little he deviates from the ordinary practice. For the extent of deviation is not the test. The deviation must be a kind which satisfies the third of the requirements just stated."
These passages have been treated ever since as a correct statement of the law in Scotland.
[23] During the hearing on evidence reference was also made to a number of English cases. In Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582, McNair J. at p. 587 quoted the passage from the opinion of the Lord President in Hunter v Hanley at pp. 204-5. He then proceeded to say:
"If that statement of the true test is qualified by the words 'in all the circumstances,' [counsel for the plaintiff] would not seek to say that that expression of opinion does not accord with the English law. It is just a question of expression. I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."
[24] In Bolitho v City & Hackney Health Authority [1998] AC 232 the principal issue before the House of Lords was one of causation. At first instance the judge held that, in the circumstances of the case, a doctor had been in breach of duty in failing to attend a child who had been admitted to hospital suffering from respiratory difficulties, despite having twice been summoned by a nurse, but that even if she had attended she would not have arranged for the child to be intubated. For the purposes of determining whether such a failure to intubate would have been negligent so as to show that the breach of duty to attend had caused the injury suffered, the judge applied the Bolam test. He held that since an expert in paediatric respiratory medicine called by the defence had been of opinion that, on the symptoms presented by the child, intubation would not have been appropriate, a decision by the doctor not to intubate would have been in accordance with a body of responsible professional opinion and causation had not been proved. The Court of Appeal having, by a majority, upheld the judge's decision, the House of Lords, dismissing a further appeal, held that although in the generality of cases the Bolam test had no application in deciding questions of causation, where the breach of duty consisted of an omission to do an act which ought to have been done, the question of what would have constituted a continuing exercise of proper care had the initial failure not taken place, so as to determine if the injuries would have been avoided, fell to be decided by reference to that test; that in applying the test the court had to be satisfied that the exponents of a body of professional opinion relied upon had demonstrated that such opinion had a logical basis and in particular had directed their minds where appropriate to the question of comparative risks and benefits and had reached a defensible conclusion; that if, in a rare case, it had been demonstrated that the professional opinion was incapable of withstanding logical analysis, the judge was entitled to hold that it could not provide the benchmark by reference to which the doctor's conduct fell to be assessed, but that in most cases the fact that distinguished experts in the field were of a particular opinion would demonstrate the reasonableness of that opinion; and that, accordingly, since the judge had directed himself correctly and there had been good reason for acceptance of the defendants' expert opinion, it had not been proved that the doctor's failure to attend had caused the injuries complained of. This summary (which I have taken from the rubric) reflects passages in the speech of Lord Browne-Wilkinson, especially at pp. 241-2. At p. 242 his Lordship referred to Hucks v Cole [1993] 4 Med. L. R. 393 (a case from 1968) in which Sachs L.J. in the Court of Appeal laid particular emphasis on the reasons given for putting a patient at risk.
[25] These English authorities do not appear to me to affect the continued applicability of the Hunter v Hanley. Taken together, however, the cases demonstrate, as one would expect, the need to justify reference to a standard practice and any departure from it, in a case where reliance is placed on standard practice in support of an allegation of professional negligence. Of course, in many cases, of which, for reasons I shall give, this is one, there may be no applicable standard practice. Whether or not there is a standard practice, the question remains whether the course the doctor adopted is one which no professional man or woman of ordinary skill would have taken if he or she had been acting with ordinary care. Since the negligence issue turns on Dr Baxter's decision to discharge Mrs Dougan without the carrying out of a lumbar puncture, it appears to me that this must be determined by reference to the standard of care reasonably to be expected of a consultant of comparable status in a district general hospital. Dr Baxter was therefore negligent if the course he adopted was one which no consultant physician in general medicine in an acute receiving ward in a district general hospital would have taken if he or she had been acting with ordinary care. It is for the pursuer to prove this, if she can, by leading appropriate expert evidence. Evidence was led from three expert witnesses for the pursuer, Dr Northridge, Professor Whittle and Dr Lueck. All three held posts at the Western General Hospital in Edinburgh, which is inter alia a regional referral centre for neurosciences. None of them heard Dr Baxter give evidence (he was called as the first witness for the defenders) and their opinions about the course taken by him were based on the contents of the hospital records.
[26] Dr Northridge was a consultant cardiologist at the Western General Hospital. He had previously held posts in various hospitals in general medicine and more recently in cardiology. As he put it, he was still doing a little general medicine in 1989-91, but had done none since. He said that after seven days C.T. scans would pick up about 50% of bleeds, especially larger ones, while small bleeds might readily be missed. If a C.T. scan was negative, it was normal medical practice to perform a lumbar puncture. This caused minor discomfort, but it was a safe technique. A doctor of middle grade would be competent to perform this procedure. He referred to the passage from the Oxford Textbook of Medicine which I have already quoted. In his written report he stated that in his opinion a doctor competent in acute medical receiving should know that C.T. scanning can miss a diagnosis of subarachnoid haemorrhage and for that reason general textbooks of medicine recommend performing a lumbar puncture when the C.T. scan is negative. He went on to state that Dr Baxter's entry in the notes about Mrs Dougan's discharge was very short and it was not at all clear how detailed his assessment was. It was clear that Mrs Dougan had had a very troubled night with continued severe headache, difficult to control with analgesia, and she had vomited on more than one occasion. To send a patient home in this condition would be contrary to normal medical practice. Normal reasonable practice would dictate that a lumbar puncture should have been performed. Asked in his evidence-in-chief if a lumbar puncture was something a doctor, especially a doctor in Dr Baxter's position, would have failed to carry out if exercising reasonable care, he said that he felt that someone doing acute general medical receiving should be well aware that making a diagnosis of subarachnoid haemorrhage was very important. The features here were very suggestive, and appropriate investigation should have been carried out. What happened here fell below the standard of competence to be expected. In cross-examination he agreed that, by contrast by what happened at a regional referral centre for neurosciences, such as those at the Western General Hospital in Edinburgh or the Southern General Hospital in Glasgow, in an acute receiving ward in a district general hospital many patients were admitted who were suffering from headaches, only a few of which had serious underlying causes. There were levels of clinical suspicion. Here Mrs Dougan had a typical presentation of subarachnoid haemorrhage. He agreed that there was a practice of not doing lumbar punctures in some cases, but not where the level of suspicion was as high as it was in the present case. Even if Mrs Dougan's symptoms were settling on the morning of 25 August, following analgesia, serious consideration should still have been given to a possible subarachnoid haemorrhage, even more so if she still had headache and neck stiffness. He made clear that he was speaking about how a patient should be managed in a general medical ward. He agreed, however, that opinions might differ as to what was competent practice in an acute receiving ward. He was sure that there would be a responsible body of contrary opinion. He added in re-examination that he would be surprised, in the context of this case, if the vast majority of consultants with experience in general medicine did not support his view.
[27] Professor Whittle had been Forbes Professor of Surgical Neurology in the Department of Clinical Neurosciences at the University of Edinburgh since October 1996, and Honorary Consultant Neurosurgeon at the Western General Hospital and Royal Infirmary of Edinburgh since 1987. He had previous held neurosurgical posts in Australia and in Edinburgh, as well as academic posts in Edinburgh before being appointed to his present Chair. In his written report he said that because no lumbar puncture was done Mrs Dougan was misdiagnosed and sent home. This raised a question of substandard clinical practice in terms of her in-patient stay. This would be much more the realm of a consultant physician in a district general hospital than of a consultant neurosurgeon who was dealing with this problem. However, he believed it fair to say that, given the fairly strong consideration of the diagnosis of subarachnoid haemorrhage which was clearly documented in the notes, appropriate tests should have been made to exclude the diagnosis. During his evidence he explained that subarachnoid haemorrhage is a very common condition in clinical neurology. About one hundred and twenty patients a year were treated with this condition at the Western General Hospital. The practice was to carry out a C.T. scan on patients who had been referred with suspected subarachnoid haemorrhages. If the C.T. scan was negative, a lumbar puncture was carried out. The value of a C.T. scan was reduced by the passage of time. If carried out within 48 hours of the ictus, it was 95% effective. After seven days, it was 50% effective. If there had been some delay, a lumbar puncture was essential after a negative C.T. scan. It would have been standard practice, even in a district general hospital, to do a lumbar puncture when subarachnoid haemorrhage was the primary differential diagnosis. In his unit, it would have been negligent not to perform a lumbar puncture. Even in a district general hospital, failure to perform it fell below the appropriate standard.
[28] In cross-examination, Professor Whittle said that the question of negligence was more one for a consultant physician in a district general hospital. It should be judged by the standard of the person in question. He did a lot of teaching. He emphasised very strongly the importance of diagnosis of subarachnoid haemorrhage. It was a fairly fundamental message. He agreed that opinions might differ. In his report he had stated that it was important for a physician with experience in a district general hospital to be involved. He had seen no report from such a person.
[29] Dr Lueck was a consultant neurologist in the Department of Clinical Neurosciences at the Western General Hospital in Edinburgh. In the course of his career, between November 1985 and September 1987, he had held two posts as a registrar in general medicine in hospitals in England. Since then he had held specialist posts, which since 1990 were in neurology. In his written report he expressed the view that a failure of medical care occurred when Mrs Dougan was admitted on 24 August 1994 by the on-call medical team. She had a C.T. scan but no lumbar puncture was performed. In his view, any admitting medical team in a district general hospital which was practising with the accepted ordinary level of care would have known that a lumbar puncture should have been performed and would have performed this test. He developed this in his evidence by explaining that it is well recognised that a C.T. scan will miss approximately 20% of subarachnoid haemorrhages. The longer the passage of time from the sudden onset of a headache, the more important it became to carry out a lumbar puncture. The failure to carry out a lumbar puncture in the present case fell below the expected standard of care: it was incompetent not to do a lumbar puncture in the receiving unit. If there was improvement in Mrs Dougan's condition overnight, this did not affect his view. Symptoms might subside, but this did not alter the risk of a re-bleed. He could not see why normal practice had not been followed. He himself had worked as a registrar in a district general hospital with responsibility for dealing with exactly this question. Management was the same, whoever did it: if one was considering a possible subarachnoid haemorrhage and the C.T. scan was normal, a lumbar puncture had to be done to exclude a subarachnoid haemorrhage. In cross-examination he said that anyone who is practising correctly does a subarachnoid haemorrhage. Even if there is a widespread practice of not doing lumbar punctures, it is not a proper practice. Mistakes will be made, but that does not stop them from being mistakes. If a patient had suffered a sudden, severe headache which persisted for more than fifteen minutes, there had to be a C.T. scan and, if it was negative, a lumbar puncture. He would regard the carrying out of a lumbar puncture as standard practice. He doubted if opinions could differ about this. Every medical textbook he had looked at said the same, that a lumbar puncture was mandatory. He did not think that by the time Mrs Dougan's case reached a general physician the subarachnoid haemorrhage should have been missed. He would not like to have been managed in such a way himself.
[30] I turn now to the defenders' witnesses. Dr Baxter said that he had experience of receiving acute medical cases over many years. In the course of one year, among a large number of patients admitted for other reasons, he would see forty to fifty patients suffering from headaches of various kinds, including migraine. Over the period since 1979 he had seen three to five patients a year who were suffering from headache and had a high index of suspicion of subarachnoid haemorrhage. Only a minority of patients who reported that they had experienced their worst-ever headaches had suffered subarachnoid haemorrhages. During his training and for many years afterwards lumbar puncture was the standard method for diagnosing subarachnoid haemorrhage. He had not done one personally since 1987. At that time C.T. scans were starting to be used. From 1987 to 1994, if there was a high index of suspicion of a subarachnoid haemorrhage in a patient, the practice was not to carry out a lumbar puncture at Law Hospital but to transfer the patient to the Southern General Hospital in Glasgow. Lumbar puncture only continued to be carried out at Law Hospital in cases of suspected meningitis. The reports he received from the Southern General Hospital indicated that the use of C.T. scans had brought about a remarkable transformation. It seemed that this had become a very sensitive technique for the diagnosis of subarachnoid haemorrhage. A C.T. scanner was obtained for the first time at Law Hospital in May 1994, and in the event Mrs Dougan was the first patient with a suspected subarachnoid haemorrhage whom he had referred for a C.T. scan on the new scanner.
[31] Dr Baxter did not accept that, on the basis of his findings, he had been negligent in discharging Mrs Dougan without a lumbar puncture having been carried out on her. It was reasonable of Dr McGill, her general practitioner, to seek to have a subarachnoid haemorrhage excluded. Dr Baxter was reassured that the C.T. scan which was carried out on Mrs Dougan was reported as normal. I have already referred to his evidence that the next morning there was a transformation in her condition, such that he had no suspicion now of a subarachnoid haemorrhage. He discharged her on the basis that she had presented with a severe headache which had lasted for a week, and for which there could have been a number of causes, but with none of the classical signs of subarachnoid haemorrhage. When the C.T. scan was reported as normal and her symptoms had settled he felt quite secure in his diagnosis. If the neck stiffness and headache had not resolved he would not have discharged her. If there had been persistent nuchal rigidity he would have thought a lumbar puncture to be appropriate. This was a straightforward procedure, but not to be embarked on lightly: it was painful and not without some risk to the patient. In the event the lumbar puncture carried out on Mrs Dougan at the Southern General Hospital was described in the notes as "very difficult". Dr Baxter continued by saying that since 1994 there had been a growing appreciation of the limitations of C.T. technology, but his understanding up to that time was that when he had referred patients to the Southern General Hospital the staff there relied on C.T. scanning, and at the time of dealing with Mrs Dougan's case he relied on it himself. Since then his practice had changed, and he would do a lumbar puncture even if the C.T. scan was reported as negative in the case of a suspected subarachnoid haemorrhage.
[32] During the course of his evidence Dr Baxter referred to an article by Stevenson, Dutta and MacWalter, The Management of Acute Headache in Adults in an Acute Admissions Unit, Scot Med. J. 1998; 43: 173-176 ("the Dundee study"). This related to a retrospective case-note study of all patients admitted with headaches to the Acute Medical Admission Ward of Ninewells Hospital, Dundee, over a six month period. There were one hundred and fourteen admissions with headache (2.4% of all admissions); C.T. scans were done in sixty eight (59.6%) and were abnormal in twenty one patients. Twenty four patients (21.1%) had serious underlying causes for headaches. In the article, predictors for C.T. abnormalities were discussed. Eighteen patients had lumbar punctures and six had abnormal results. Most patients were discharged after one day, nine were transferred to the Neurosurgical Unit and there were two deaths. Deficiencies in record keeping were identified, as was a lack of precision in diagnosis. The authors concluded that changes in practice were needed to improve patient care and that perhaps national guidelines were required. At p. 175 the authors stated:
"A lumbar puncture was done in eighteen patients (15.8%) and was abnormal in six. We feel that at the present time, we are not doing enough lumbar punctures. Subarachnoid haemorrhage should be suspected in all cases of severe headache of sudden onset. We identified several patients in our series who were admitted with a working diagnosis of possible subarachnoid haemorrhage, had normal C.T. scans but then did not go on to have lumbar punctures. The reason for this often was that the patient's headache had improved after admission and that a lumbar puncture was not felt necessary on clinical grounds. The occurrence of 'sentinel' or warning bleeds in subarachnoid haemorrhage is well recognised and the fact that the C.T. scan may be normal in up to 5% of patients who are investigated within one to two days after onset makes a lumbar puncture mandatory. Lumbar puncture is, of course, required to diagnose viral and bacterial meningitis."
Dr Baxter referred to this article in support of his evidence that in a significant number of cases where patients had presented with severe headaches, and even in some in whom a subarachnoid haemorrhage was suspected, lumbar puncture was not done. (When the passage I have quoted was put to the expert witnesses for the pursuer, their reaction was that it demonstrated the prevalence of bad practice.) In cross-examination, however, Dr Baxter admitted that Mrs Dougan was the only patient he had dealt with who had had a suspected subarachnoid haemorrhage and on whom a lumbar puncture had not been carried out after a C.T. scan was reported as normal. At the time, however, he had no reason to doubt the accuracy of C.T. scanning, which had become the "gold standard". At the time he thought that the C.T. scan would give a 100% result, and that if Mrs Dougan had suffered a subarachnoid haemorrhage one week previously it would show up on the scan. He regarded the C.T. scan and his clinical examination as determinative, and in this particular case felt a lumbar puncture was not necessary. At that time he had every confidence in C.T. scanning. He pointed out that the third edition of the Oxford Textbook of Medicine, in which, in the passage I have quoted, it is stated that, if a C.T. scan is normal, then lumbar puncture is mandatory, was published in 1996, and the Dundee study was published in 1998. His own textbook, by Souhami and Moxon, which was published in 1993, stated that C.T. scanning was extremely sensitive in detecting small amounts of blood, and did not comment on the effect of the passage of time on the detection rate. (No copy of the relevant passage from this textbook was lodged as a production, and I do not have a note of its title.) Dr Baxter concluded by saying that he had every confidence in his clinical judgment because of the number of patients he had referred to the Southern General Hospital with suspected subarachnoid haemorrhages in whom the diagnosis was confirmed by C.T. scanning. In Mrs Dougan's case, his clinical judgment was that a possible diagnosis of subarachnoid haemorrhage had been excluded.
[33] Dr Irving had been a consultant physician/cardiologist at St. John's Hospital, Livingston, since 1980. He had previously held posts in other hospitals. He was also a member of the clinical teaching staff in the Department of Medicine at the University of Edinburgh. He said that in general practice or in a district general hospital the proportion of patients presenting with sudden headaches who had suffered subarachnoid haemorrhages was very small. By the time that patients arrived at specialist neurological centres they had already been screened. Because of this, C.T. scanning had a high degree of accuracy in the confirmation of suspected cases of subarachnoid haemorrhage. There was room for a clinical judgment in the management of cases of headache of sudden onset in an acute receiving ward. With specific reference to the present case, there was room for the exercise of a clinical judgment in 1994 where a subarachnoid haemorrhage was suspected. On the basis of the records relating to Mrs Dougan, there was in his opinion a role for the exercise of clinical judgment in deciding whether to proceed to a lumbar puncture. In his view, having regard to his grade and speciality, Dr Baxter did not fall below the standard to be expected of him in exercising a clinical judgment. His understanding was that, particularly at that time, many physicians did not go on to carry out a lumbar puncture when the initial C.T. scan was normal. This was still the practice, despite neurological guidelines: physicians still exercised clinical judgment in deciding whether to go on to lumbar puncture. This practice was strongly influenced by experience in the pre-C.T. scan era. Lumbar puncture was hazardous and unpleasant, it caused a persistent headache, one hesitated before performing it and it was not to be undertaken lightly.
[34] In cross-examination, Dr Irving agreed that there was a 20% risk that a C.T. scan would not pick up a subarachnoid haemorrhage after seven days, so the only way a diagnosis of subarachnoid haemorrhage could be excluded would be by proceeding to carry out a lumbar puncture. A physician should be aware of the limitations of C.T. scanning in reaching an appropriate decision. If he had been in Dr Baxter's position he would not have proceeded to a lumbar puncture without reviewing the clinical picture. Mrs Dougan had a history of cervical spondylosis and migraine, and it was necessary to take these other factors into account. A balance had to be struck, having regard to the problems associated with lumbar puncture. Medicine was about taking risks and making a clinical judgment. There was a danger of hindsight. If one followed textbook medicine, every patient with a suspected subarachnoid haemorrhage would be subject to C.T. scan and lumbar puncture, which would involve submitting a large number of people to a painful procedure. In Mrs Dougan's case, however, he agreed that she should not have been discharged: the fact that she was discharged showed that the standard of care fell below what was acceptable. In re-examination he explained this by saying that while she was certainly better on the morning of 25 August, he had to express concern that she had had such a disturbed night. But in discharging her, Dr Baxter did not fall below the standard of care to be expected of a physician of ordinary competence. It was a balancing of risks.
[35] Dr Petrie had been a consultant chest physician at the Victoria Hospital in Kirkcaldy since 1979. He had previous experience in a number of hospitals. At the Victoria Hospital he took part in a rota for general medical receiving duties. He described this as a troubling case. With the cruel vision of hindsight Mrs Dougan had a warning bleed on 17 August. Active consideration was given to the possibility of subarachnoid haemorrhage and a C.T. scan was quite appropriately requested. This gave a normal result which served to reassure the attending medical team. When she was assessed the next morning she had improved. She was up walking around the ward and was discharged home. The Dundee study reflected current medical practice in the late 1990s and showed that in a reputable district general hospital not all patients were subjected to lumbar puncture, even where a diagnosis of subarachnoid haemorrhage had been considered. Lumbar puncture was itself not without morbidity in terms of headache and discomfort for the patient. Physicians who found that C.T. scanning had supplanted lumbar puncture as the diagnostic method of choice might not be as aware as practising neurosurgeons and neurologists that a negative C.T. scan does not completely exclude subarachnoid haemorrhage. The painful experience of disasters might be more appreciated in the late 1990s than in 1994. Dr Petrie said that in his experience of general medical receiving not all individuals with headache in whom a subarachnoid haemorrhage was entertained as a possible diagnosis would go on to have lumbar punctures. This would particularly be the case if the C.T. scan was normal, if the evidence for meningeal irritation was unconvincing and if the patient's clinical state had improved whilst under observation. The assessment of Mrs Dougan was made more difficult by the presence of her cervical spondylosis. The history of the sudden onset of severe pain did suggest the possibility of subarachnoid haemorrhage and this was pursued. Her course within hospital was misleading in that she was assessed as having improved. In his own unit, if an individual similar to Mrs Dougan were to appear and if his assessment of the clinical features was along the lines that Dr Baxter made, he though it quite likely that he might not have proceeded to a lumbar puncture. It came down to clinical judgment and the difficulty of being right on every occasion. Even with the knowledge he had gained, in preparing for this case, of the fallibility of normal C.T. scans, if the clinical progress was judged to be completely satisfactory he was not sure that he would have insisted in going on to recommend a lumbar puncture. Dr Baxter's decision to allow the patient home without proceeding to a lumbar puncture was not unreasonable. It was understandable and one which another physician might similarly have taken. Dr Petrie said that he found himself uncomfortable on reading the forthright expressions of opinion in the reports written by Professor Whittle and Dr Lueck, whose experience was much more intensive than was the case in district general hospitals. The pattern of illness seen in centres of excellence was different and so the perceived risks of different courses of action were different.
[36] Dr Petrie said that he had discussed this case with Dr MacWalter, the senior author of the Dundee study, and with four of his consultant physician colleagues. It was not unusual for patients to be discharged after normal C.T. scans. There was room for clinical judgment. One had to look at the history, examine and assess the patient as she presented and make one's mind up. About one-third of medical admissions went home the next day if they had settled. It all depended on the weight of the index of suspicion that a subarachnoid haemorrhage was present. Dr MacWalter had told him that he might well have sent Mrs Dougan home. Dr Petrie concluded by saying that he had sympathy for both Mrs Dougan and Dr Baxter.
[37] I turn now to consider what conclusions I draw from this evidence. At the outset, I should state that I found Dr Baxter to be an entirely honest witness. He gave his evidence with care, and with no attempt to colour the facts so as to improve his position. As I have said, he candidly accepted that, in deciding to discharge Mrs Dougan, his judgment was erroneous. I have already stated that I accept his evidence about the significant improvement in her condition when he saw her at 10.00 a.m. on 25 August. I therefore proceed on the basis that he was exercising a clinical judgment in a factual context which was as recorded by him at the time and as stated by him in his evidence. There are a number of important features about this factual context which it is necessary to bear in mind in deciding whether he was negligent.
[38] Although, with hindsight, there is no dispute that Mrs Dougan's symptoms were attributable to a sentinel bleed which she had suffered on 17 August, and were in many respects typical of a subarachnoid haemorrhage, it cannot be said that the clinical picture was so clear at the time. She had a history of migraine and of cervical spondylosis. Patients experience severe headaches for a number of reasons, including these, and only a minority have in fact suffered subarachnoid haemorrhages. Mrs Dougan was seen by three doctors before Dr McGill, to his credit, suspected a subarachnoid haemorrhage. From the time of her admission to hospital and until Dr Baxter saw her at 10.00 a.m. on 25 August subarachnoid haemorrhage was ranked first in the differential diagnosis. Dr Baxter indisputably had this in mind at all material times. This is not therefore a situation in which he could be said to have failed to apply his mind to a possible diagnosis of subarachnoid haemorrhage. It was therefore entirely appropriate that he should take steps to see whether this could be excluded as a diagnosis.
[39] Attitudes towards the use of C.T. scans appear to have followed a not unfamiliar pattern: initial acceptance of the results produced by the latest technology, followed by greater caution once its limitations become more apparent. It is one of the unfortunate features in Mrs Dougan's case that a C.T. scanner had been installed at Law Hospital in May 1994 and that, as it happened, she was the first patient of Dr Baxter's with a suspected subarachnoid haemorrhage on whom he requested the carrying out of a C.T. scan at Law Hospital rather than at the Southern General Hospital, as he would otherwise have done. It was not in dispute that it was a correct decision to request that a C.T. scan be carried out on her. But Dr Baxter was less aware than a consultant neurosurgeon such as Mr Lindsay would have been that a negative result, particularly seven days after the initial bleed, was not sufficient to exclude the diagnosis of subarachnoid haemorrhage. There was, however, some justification for the extent to which he relied on the result of the C.T. scan, having regard to the extent to which suspected subarachnoid haemorrhages were confirmed by C.T. scanning in patients whom he had referred to the Institute of Neurological Sciences at the Southern General Hospital.
[40] It is unfortunate that the result of the C.T. scan was not made available to Dr Baxter until after he had gone home that evening. He cannot be blamed for this, but the result was that the opportunity was lost for him to take a decision about whether a lumbar puncture should be carried out that evening. In the circumstances it was reasonable for him to take personal responsibility for the decision whether a lumbar puncture should be carried out, and that depended not only on information about the result of the C.T. scan but also on a personal assessment of Mrs Dougan's condition. Although opinions about it varied to some extent, the carrying out a lumbar puncture is not, as I understand it, something which would be lightly undertaken on any patient. None of the expert witnesses suggested that one should be carried out without a personal assessment of the patient's condition. As I understood it, the consensus of the expert witnesses was that it was reasonable in the circumstances for Dr Baxter to leave a decision about whether a lumbar puncture should be carried out until he saw Mrs Dougan on the morning of 25 August. That is to say, it was not suggested that he was negligent in failing to have a lumbar puncture carried out on the evening of 24 August.
[41] It was, I think, implicit in the evidence of all the expert witnesses that if a lumbar puncture had been carried out on the morning of 25 August there would have been sufficient xanthochromia of the C.S.F. to be detectable and to lead to sufficient confirmation of a working diagnosis of subarachnoid haemorrhage for her to be transferred to the Southern General Hospital. The carrying out of a lumbar puncture following a negative C.T. scan in cases of suspected subarachnoid haemorrhage is described as mandatory in the 1996 edition of the Oxford Textbook of Medicine and in the 1998 Dundee study. No publication was produced which pre-dated Mrs Dougan's admission to hospital and which stated that in such circumstances a C.T. scan was mandatory. I have already commented on the extent to which at the material time there may have been a perception by general physicians in district general hospitals that a C.T. scan was able to give a more definitive result in a case of suspected subarachnoid haemorrhage than had come to be recognised in the specialist units in Glasgow and Edinburgh. I do not accept that at the material time there was sufficiently general recognition of the shortcomings of C.T. scanning as a means of diagnosing subarachnoid haemorrhages for a consultant physician in Dr Baxter's position to be expected to treat lumbar puncture as mandatory following a negative report of a C.T. scan. The reality of the situation was in fact that Dr Al Said's proposed course of action, which Dr Baxter approved, was that a lumbar puncture should be performed following a negative C.T. scan. This, therefore, was something which Dr Baxter had actively under consideration and he does not therefore appear to me to have considered at any time that a negative C.T. scan would be decisive.
[42] What was decisive was the improvement in Mrs Dougan's condition by the time that he saw her the next morning. Whatever may have caused this I have accepted as a fact that it did take place. Obviously, with hindsight, the most likely explanation for it is the effects of the medication she received after her admission. Given the known history of migraine and cervical spondylosis, however, it was not unreasonable to regard her symptoms as having been caused by either of these conditions. The clinical picture, as it presented itself to Dr Baxter on the morning of 25 August, was thus not unequivocally one of a patient who had suffered a subarachnoid haemorrhage, and it was not unreasonable, albeit erroneous, for him to reach the view that subarachnoid haemorrhage had been eliminated from the differential diagnosis. By the time that he took the decision to discharge her, she had ceased to be a patient in respect of whom he entertained a suspicion of subarachnoid haemorrhage.
[43] It is important to remember that lumbar puncture is regarded, by those who so regard it, as mandatory following a negative C.T. scan in cases of suspected subarachnoid haemorrhage. This way of putting it appears to me to assume that there is no material change of circumstances following the C.T. scan, and that the lumbar puncture will be carried out quite soon after the scan. In the present case, for the reasons I have discussed, there was a significant period of time overnight during which there was a material change of circumstances such that by the time that Dr Baxter saw Mrs Dougan at 10.00 a.m. on 25 August there was an improvement in her condition to the extent that he no longer suspected a subarachnoid haemorrhage. All three expert witnesses for the pursuer appeared to me to make insufficient allowance for this change in Mrs Dougan's condition, documented as it was in the hospital records. All three of them held posts at the Western General Hospital in Edinburgh, where there is a specialist neurosurgical unit and, although Dr Northridge was not a specialist in that unit, all three appeared to me to have their attitudes coloured by the standards and procedures applicable to such a unit. It is not an easy task for an expert witness accustomed to the standards of a specialist unit to remember that negligence in a case such as this is not a failure to do what he would expect of himself or his colleagues, but is a failure to comply with a lower standard, in this case the standard applicable to a consultant in general medicine in an acute receiving ward in a district general hospital. The expert witness who had the most relevant current experience of the standards applicable in such a context was Dr Petrie. The passage I have previously quoted from the Dundee study also casts some light on what happens in practice in cases such as the present. Dr Petrie had taken the precaution of speaking to one of the authors of the Dundee study as well as to some of his own colleagues. I found that, of all the expert witnesses, he was the most impressive. He appeared to me to have taken the trouble to inform himself of what might be regarded as negligence for present purposes. Otherwise, he approached the question not only against a background of relevant experience but with a genuinely open mind. For these reasons I accept his evidence.
[44] Given my view of the expert evidence, this appears to me to be one of those unfortunate cases in which a conscientious consultant physician, doing his best to arrive at the correct diagnosis of the cause of a headache in light of appropriate diagnostic techniques and his assessment of the patient's clinical condition from time to time, has made an error of judgment which everyone, including he himself, would rather he had avoided, but not of a kind which could be characterised as negligent in the necessary sense. In my opinion therefore the pursuer has not succeeded in proving that Dr Baxter was negligent and her case accordingly fails on the negligence issue.
The Causation Issue
[45] Because of the view I have reached about the negligence issue, what I have to say about the causation issue is obiter, but I should nevertheless express a view about it. It raises a question of pure fact, which can be put in this way: if, instead of being discharged from Law Hospital on 25 August, Mrs Dougan had been transferred on that date to the Institute of Neurological Sciences at the Southern General Hospital, would she probably not have suffered the second subarachnoid haemorrhage before being operated upon? The evidence of Mr Lindsay, who was the surgeon who carried out the operation on 5 September 1994, was that if she had been transferred on 25 August, and an angiogram had been carried out that day, she would not have been operated upon before Monday 28 August. He explained that surgery for aneurysms was not carried out on an emergency basis. Although, if a patient was transferred in good grade, the aim would be to operate while the patient was in similarly good grade, the results of surgery were marginally worse if it was carried out in the period from the seventh to the tenth days after the initial haemorrhage; so even if the patient was transferred in good grade during that period, the operation would be postponed until after it. In the case of Mrs Dougan, 28 August would have been the eleventh day after the initial haemorrhage, so that was the earliest day on which she would have been operated upon. At the hearing on evidence, counsel for the pursuer accepted that on the evidence it was not proved as a matter of fact that surgery would have taken place before 28 August, and this is the basis on which I shall proceed. Mrs Dougan did in fact suffer a second subarachnoid haemorrhage at about 10.00 p.m. on 27 August, which is of course before the earliest date on which she would have been operated upon. So the question comes to be whether it is proved, on the balance of probabilities, that if she had been transferred to the Southern General Hospital on 25 August and remained there as an in-patient until being operated upon, she would probably not have suffered a second haemorrhage. At the hearing on evidence counsel for the defenders submitted that the pursuer's case on record was that surgery would have been undertaken urgently, and thus before the time of the second haemorrhage, if she had been transferred when she should have been, and Mr Lindsay's undisputed evidence about the timing meant that this case could not succeed. This is indeed the pursuer's primary case. There are however averments on her behalf to the effect that patients in good grade generally remain in good grade with a high probability of a good outcome if detained in hospital, and that in hospital the combination of bed rest and stronger analgesics improve the prospects of success. In my view these averments are sufficient to support a case that Mrs Dougan would probably not have suffered a second haemorrhage if she had been transferred on 25 August and had remained in hospital until being operated upon, even if that did not happen until 28 August or later.
[46] It is convenient at this point to refer to some of the literature which was discussed by the expert witnesses who gave evidence relevant to this issue. Patients who have suffered aneurysmal subarachnoid haemorrhages (among other categories of patient) may be assigned a grade before undergoing surgery. Two scales are in use: the Hunt and Hess scale (Hunt and Hess 1968) and the World Federation of Neurological Sciences (W.F.N.S.) scale (Teasdale and others 1998), the latter of which has now come into general use. In Ogilvy and Carter, A Proposed Comprehensive Grading System to Predict Outcome for Surgical Management of Intracranial Aneurysms, Neurosurgery 42: 959-970, 1998 (Ogilvy and Carter), a review was carried out of clinical outcomes of a series of four hundred and thirty four operations carried out from 1990 to 1994 on four hundred and nine patients harbouring a total of four hundred and eighty nine aneurysms. The authors found, using multivariate logistic regression analysis, that age of patient, size of aneurysm, severity of subarachnoid haemorrhage and clinical condition (Hunt and Hess grade) were each independently and strongly associated with long-term outcome. In addition, there was a trend for increased risks with larger posterior circulation lesions. They proposed a new grading system, assigning one point for each of these five features, as an aid to predicting surgical outcome for both unruptured and ruptured cerebral aneurysms. At p. 960 they stated that for clinical grade, each patient was assigned a Hunt and Hess grade before undergoing surgery. If there had been improvement of clinical condition in response to ventricular drainage or if a patient had deteriorated before surgery, the clinical condition immediately before surgery was used. Table 10 on p. 964 showed inter alia that of one hundred and sixty patients to whom grade 1 was assigned, 94% had an excellent outcome and 2% had a good outcome. The remainder had an unsatisfactory outcome or died.
[47] In Le Roux and others, Improved outcome after rupture of anterior circulation aneurysms: a retrospective 10-year review of 224 good grade patients, J. Neurosurg. 83: 344-402, 1995 (Le Roux) the authors stated that the results in the series studied by them demonstrated that favourable outcomes can be expected in approximately 90% of patients who suffered ruptured anterior circulation aneurysms and who were classified as Hunt and Hess grade I or II at admission, and 81% who were classified as grade III (p.400). All patients admitted with these classifications were included in the analysis, including those who subsequently deteriorated or died before surgery. A number of points may be noted. Seventy five per cent of the patients were operated upon within seventy two hours of their subarachnoid haemorrhage (p. 400). Aneurysm re-bleeding was observed in 4.9% of the patients; no factors that predicted re-bleeding were identified (p. 396). During the preoperative course, re-bleed, insertion of a ventricular shunt, or clinical deterioration predicted an unfavourable outcome (p.397). The authors undertook a multivariate analysis to determine which variables were the most predictive of outcome. In the preoperative mode, which included preoperative variable and admission characteristics, re-bleed exhibited the strongest association with an unfavourable outcome (p. 398).
[48] In Neil-Dwyer and Lang, "Brain attack" - aneurysmal subarachnoid haemorrhage: death due to delayed diagnosis, Journal of the Royal College of Physicians of London, Vol. 1, January/February 1997, pp. 49-52 (Neil-Dwyer and Lang), the authors concluded that of the hundred and thirty six patients included in the study, diagnosis was delayed in 51%, of whom 65% suffered a second or third haemorrhage before being diagnosed. As a direct consequence of this delay significantly more patients died or were severely disabled than those whose haemorrhage was diagnosed without delay. At p. 49 the authors stated:
"It proved straightforward to divide the patients into two groups: delayed diagnosis and referral; prompt diagnosis and referral. Delay was deemed to have occurred if a patient had a classical history of sudden onset of severe persistent headache, following which the condition was not recognised medically either at home (by the general practitioner), in an accident and emergency department (by a doctor) or when admitted to hospital (by a hospital physician), i.e. the diagnosis was 'missed' and resulted in inappropriate action being taken. This had caused a clear delay in time (ranging from a matter of hours to many weeks) and a further clinical event occurred before appropriate diagnostic investigations were done."
At p. 50 the authors stated that there was a significant difference in outcome between patients in whom the diagnosis was delayed and in those in whom there was prompt recognition of the diagnosis. The delay itself or sequelae of delay, e.g. re-bleeding, were unequivocally the cause of the poor outcome and no other responsible factor could be identified. At p. 51 the authors stated:
"In this study re-bleeding occurred in 65% of patients in whom the diagnosis was delayed. Previous papers have emphasised the increased risk of re-bleeding - 20% of patients within the first two weeks of the initial SAH and 50% by six months - and the high mortality rate of those who re-bleed. The poor outcome in the delayed group of patients was principally due to re-bleeding and other unrecognised sequelae of SAH."
[49] In Kassell and others, The International Cooperative Study on the Timing of Aneurysm Surgery Part II: Surgical Results, J. Neurosurg. 73: 37-47 1990 (Kassell) a prospective, observational clinical trial was conducted to determine the best time in relation to the haemorrhage for surgical treatment of ruptured intracranial aneurysms. The study related to 3521 patients admitted to hospital no more than three days after their first major subarachnoid haemorrhage. It was a prospectively epidemiological survey, not a randomised controlled clinical trial (pp. 38-45). Analysis by a pre-specified "planned" surgery interval demonstrated that there was no difference in early (zero to three days after the bleed) or late surgery (eleven to fourteen days). Outcome was worse if surgery was performed in the seven to ten day post-bleed interval (this accords with Mr Lindsay's evidence). At p. 43 it is stated that the number of patients with re-bleeding increased progressively with longer intervals of planned surgery from approximately 6% for days zero to three to approximately 22% for days fifteen to thirty two. At p. 45 it is stated that the risk of waiting two weeks for surgery is accompanied by a 12% risk for re-bleeding.
[50] Professor Whittle was the main expert witness for the pursuer on the causation issue, and the only one on whose evidence counsel for the pursuer relied at the hearing on evidence. He expressed the view that Mrs Dougan's clinical grade was grade I on both the Hunt and Hess and W.F.N.S. scales on 24 and 25 August, and grade IV on both scales on 28 August. I did not understand this view to be disputed, so I need not go into the details in the hospital records which led him to it. He also expressed the view that on 24 and 25 August Mrs Dougan would have had a score of 1 on the grading scale proposed by Ogilvy and Carter. He said that with this score there would have been a 96% chance of an excellent or good outcome. Although this grading system was novel and perhaps a little optimistic, the figures were in line with the results discussed in Le Roux. On 28 August she would have had a score of 3 on the Ogilvy and Carter scale, which would have been associated with a good or excellent outcome in 49% of cases and an unsatisfactory outcome in 51% of cases. These considerations led him to say that he thought it fairly categoric to state that if Mrs Dougan had been transferred to the Southern General Hospital on 25 August, rather than being discharged from Law Hospital, there was a highly significant probability that her outcome would have been better than that which subsequently transpired. He went on to say that the study in Kassell, which he described as a multicentre prospective randomised study, had categorically shown that there was no difference in outcome whether patients are subject to early investigation and occlusion of their aneurysms compared with patients who had been admitted to hospital but who had later occlusion of their aneurysms: it was the admitting clinical condition that predicated outcome. The reason for this was related to two factors: there were significantly fewer re-bleeds reported in patients admitted with good clinical grade, and the likelihood of delayed ischaemic deficits was also significantly lower in patients admitted in good grades. The evidence, he said, strongly suggested therefore that a cohort of patients admitted in good clinical grade did far better than a cohort of patients admitted in poor grade. He concluded by stating that there was a relationship between the failure to diagnose Mrs Dougan's subarachnoid haemorrhage at Law Hospital on 24-25 August 1994 and her subsequent poor outcome, in view of the overwhelming evidence of the relationship between good outcome and good admission clinical grade and poor outcome and poor admission clinical grade after subarachnoid haemorrhage, and evidence from a randomised controlled trial (by which I understood him to mean Kassell) showing that clinical grading is an important factor for patients admitted for management of subarachnoid haemorrhage in neurosurgical units irrespective of whether the aneurysm is secured early or late. If Mrs Dougan had not been discharged on 25 August, she would have been significantly less likely to suffer a re-bleed. If she had been transferred to the Southern General Hospital on that date it was more likely than not, in his opinion, that she would have been clipped in good grade and had a good result. In cross-examination Professor Whittle said that on his interpretation of the data in the literature, admission to hospital resulted in a substantially lower rate of re-bleeding than the 65% rate where diagnosis was delayed (Neil-Dwyer), though the reason for this was conjectural.
[51] Although, as I have said, counsel for the pursuer relied only on the evidence of Professor Whittle on the causation issue, I should mention passages in the evidence of the other two expert witnesses for the pursuer. Dr Northridge, who gave evidence before Professor Whittle did, said that if Mrs Dougan had been transferred expeditiously to a neurosurgical centre, in her case to the Institute of Neurological Sciences at the Southern General Hospital, she would have received strong analgesics and treatment for vomiting. This treatment was of particular relevance, not only for her general care, but to reduce the risk of a further haemorrhage. Anything which was liable to increase a patient's blood pressure, such as pain, excitement and anxiety, causing variations in and high peaks of blood pressure, would increase the risk of a further haemorrhage. Strong analgesics were required because it was unlikely that paracetamol would be effective to control the pain. It was impossible to be dogmatic as to whether keeping her in hospital would probably have prevented a further haemorrhage, but it would have reduced the risk of it. On the balance of probabilities the second haemorrhage would have been prevented if Mrs Dougan had been kept in hospital and given appropriate treatment, and surgery had been carried out expeditiously. In cross-examination he said that this view was not speculation. It was based on sound medical principles. It could not, however, be backed up by the collection of data on the prolongation of the pre-operative period. Dr Northridge was not asked during the course of his evidence to comment on any of the articles later referred to by Professor Whittle.
[52] Dr Lueck was asked in cross-examination about the Neil-Dwyer article. He said that the authors did not say that re-bleeding would occur in 65% of cases. Anyone with a subarachnoid haemorrhage might re-bleed. In the case of Mrs Dougan, one could argue that if she were in hospital the re-bleed might not have occurred. He had, however, no figures on which to base this view. The question whether a second haemorrhage would have been prevented had Mrs Dougan not been discharged was, in his view, one for a neurosurgeon.
[53] Mr Lindsay had been a consultant neurosurgeon since 1988 and had been at the Institute of Neurological Sciences since then. This is a regional referral unit for neurosurgical cases. If Mrs Dougan had been transferred there from Law Hospital on 25 August she would have been admitted under his care, as she was on 28 August. I have already referred to his undisputed evidence that in that event she would not have been operated upon until 28 August. He said that he had carried out and published research on the risk of re-bleeding and its prevention with clotting agents in patients with a first subarachnoid haemorrhage. He daily managed patients with a risk of re-bleeding. In his opinion, if Mrs Dougan had been transferred rather than discharged from Law Hospital on 25 August, her re-bleed would not have been prevented. There was no evidence that bed rest or analgesics would prevent re-bleeding, and in his experience they did not. His management did not involve strict bed rest, and patients were allowed to visit the lavatory if they wished. Many years previously the practice had been to confine patients to bed, perhaps in a darkened room, and to treat them with analgesics, but there was no evidence that this prevented re-bleeding. He had not seen the Neil-Dwyer article before, but commented that the patients in the group described as "delayed diagnosis and referral" were those in whom a further clinical event had occurred before their referral to hospital, and in 65% of them the further clinical event was re-bleeding. He said that this was of no value at all in relation to Mrs Dougan's case. He had seen the Le Roux article for the first time the previous night, but not in detail. He said that it supported the view that the patient's condition at admission was an index of the outcome. There was a suggestion in it that the worse the grade of the patient on admission, the higher the risk of re-bleeding. The risk of re-bleeding, he said, depended very much on the timing of surgery in relation to the initial bleed. It was quite clear in the Ogilvy and Carter paper that, where there had been a deterioration in the patient's condition, the condition prior to surgery was used. In his view, however, statistics were not relevant in this case. While it was likely that if Mrs Dougan had been transferred in good grade she would have remained in good grade, in fact the picture changed and she had a re-bleed. He could see no reason why the re-bleed would not have occurred if she had been admitted to a neurosurgical unit: she would have re-bled in any event. There was nothing that transfer to a neurosurgical unit would have done to have stopped that.
[54] At the hearing on evidence, counsel were agreed that my decision on the causation issue depended primarily on which I preferred of the competing views of Professor Whittle and Mr Lindsay. For the pursuer to succeed, I would need to be persuaded, to a sufficient extent, of the soundness of Professor Whittle's approach, which counsel for the defenders described as selective and mischievous. While I do not accept this description, I am not persuaded that his opinion is soundly based on the material on which he sought to rely. Although the matter was not brought out in evidence, perusal of the Kassell article shows that it was not a randomised study, as stated by Professor Whittle. In a randomised study, patients would have been randomly assigned into various groups. The authors expressly stated (at p. 45) that their results must be interpreted cautiously: they were obtained from an observational study, not a randomised clinical trial, and accordingly could not be interpreted with the same weight as a randomised trial. In any event the study was directed to the timing of surgery on patients admitted no more than three days after suffering a subarachnoid haemorrhage. In such patients, there is a risk of re-bleeding of approximately 6% for days zero to three to approximately 22% for days fifteen to thirty two after the subarachnoid haemorrhage. The Kassell study related to patients in all grades. The Le Roux article related to patients admitted in good grade, among whom 4.9% suffered re-bleeding, even though 75% of the patients were operated upon within 72 hours of their subarachnoid haemorrhage. The re-bleeding exhibited the strongest association with an unfavourable outcome, which occurred in 10% of patients in Hunt and Hess grade I or II and 19% in grade III at admission. There is thus a quantifiable risk of re-bleeding in patients admitted in good grade.
[55] I am not satisfied that there is any sound evidence that patients who are initially in good grade but who are not admitted to hospital run a significantly higher risk of re-bleeding within any specified period of time (for present purposes, eleven days) than do patients who have not been admitted to hospital. To obtain reliable results would require the undertaking of a randomised clinical study, under which some patients with subarachnoid haemorrhages were admitted to hospital while others were sent home. For obvious reasons, such a study could not be undertaken. It might be thought that a study such as that undertaken by Neil-Dwyer would serve as an acceptable evidential alternative, but only to the extent that relevant comparisons could be made between the two groups. In that article, however, delay by definition was deemed to have occurred inter alia where a further clinical event had occurred before appropriate diagnostic investigations were done. There was a wide variation in the periods of time between the ictus and the further clinical event. I share Mr Lindsay's view that this does not afford statistical support for the pursuer's case. The figure of 65% of patients in the group in respect of whom there had been delayed diagnosis and referral and who had suffered a second haemorrhage is not statistical evidence of the proportion of patients in whom diagnosis is delayed and who go on to suffer a second haemorrhage, still less of the proportion who do so after any specified period of time.
[56] It is perhaps worthy of note that in forming his opinion on this issue Professor Whittle did not draw on his own experience or on any statistics derived from the work of his own unit. Mr Lindsay, on the other hand, did do so. He clearly had a considerable amount of relevant experience of the risk of re-bleeding in patients who had been subject to different regimes in hospital, and he had reached the conclusion that bed rest and analgesia did not have any effect on the risk of re-bleeding. This serves to negate what might otherwise have been a plausible hypothesis that bed rest and analgesia in hospital result, perhaps through their effect on blood pressure, in a reduction of the risk of re-bleeding. In any event, in the present case Mrs Dougan had bed rest at home and some analgesia in the form of paracetamol, so the real comparison is between paracetamol and more potent analgesia such as would be available in hospital, and there is no evidence to demonstrate a difference in outcome such that it could be concluded that more potent analgesia materially reduces the risk of re-bleeding.
[57] There is therefore no convincing evidence before me which would serve to counteract Mr Lindsay's evidence that if Mrs Dougan had been transferred into his care on 25 August rather than 28 August she would nevertheless probably have suffered the re-bleed on 27 August. I accept Mr Lindsay's evidence that it would have made no material difference to her as an individual if she had been transferred on 25 August rather than discharged home. The defect, as it appears to me, in Professor Whittle's presentation (quite apart from the absence of any relevant statistical evidence to support it), is that Mrs Dougan is not one of a statistical group about whom predictions are being made. She not only had a risk of a re-bleed, she did in fact suffer a second haemorrhage and the evidence which I accept establishes that transfer to the Southern General Hospital would have made no material difference to this; she would still have suffered the second haemorrhage. It is unfortunate for her that she was one of a minority of patients who have suffered a sentinel bleed and have gone on to suffer a re-bleed before operation, but it cannot be said that in her case earlier diagnosis would have made any difference unless it would have resulted in operation before the time when the re-bleed occurred, which is not what would have happened in her case. The pursuer's case on the causation issue therefore fails too.
Result
[58] For these reasons, I shall sustain the second and third pleas-in-law for the defenders, repel the pleas-in-law for the pursuer and pronounce decree of absolvitor.