Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Duncan v. Beattie & Ors [2003] ScotCS 241 (29 August 2003)
URL: http://www.bailii.org/scot/cases/ScotCS/2003/241.html
Cite as: [2003] ScotCS 241

[New search] [Help]

Duncan v. Beattie & Ors [2003] ScotCS 241 (29 August 2003)

OUTER HOUSE, COURT OF SESSION

A1348/01

OPINION OF T.G. COUTTS, QC

(Sitting as a Temporary Judge)

in the cause

MRS ELAINE IRENE DUNCAN

Pursuer;

against

DR JAMES BEATTIE AND OTHERS

Defenders:

________________

Pursuer: MacAuley, Q.C., Haldane; Balfour & Manson

First Defender: Maguire, Q.C.; Shepherd & Wedderburn, W.S.

Second Defender: R.F. Macdonald

29 August 2003

[1] In this action, the pursuer sues as first defenders a partnership of general practitioners and as second defender a hospital trust for damages arising from alleged negligence related to diagnosis and treatment. The hospital, trust is sued as vicariously liable for a registrar within one of its departments. The second defender has agreed that the case against it may proceed by way of Proof before Answer. The first defenders, however, sought dismissal at procedure roll on the basis that the action was not relevantly pled, that there was no proper specification of fault at an appropriate standard and that, in any event, there was a lack of specification establishing a causal link between the first defenders' alleged negligence and any loss.

The Pleadings
[2] The pleadings against the first defenders, so far as appropriate, begin with the instance naming nine general practitioners "in partnership and with a surgery and principal place of business at Inverurie". The doctors, be it noted, are sued as a group and not as individuals jointly and severally.

[3] Condescendence 2 reads:

"In about June 1995 the pursuer began to consult her General Practitioner, one or other of the partners of the first defenders, in relation to complaints of severe headaches and shooting pains in the region of her sinuses. These complaints were diagnosed variously as Hay Fever, Sinusitis and Sinus Congestion. The pursuer's visits to the surgery became increasingly frequent throughout 1996, with consistent complaints of pain in her head, her sinus, pain in the left neck and jaw, blocked nose and bloody discharge from her nose. In particular on 8 April 1996 she complained of pain in her left maxillary sinus. Again 15 April 1996 the Pursuer complained of pain in her left neck and jaw. On 9 May 1996 she complained of sinus congestion. On 28 May 1996 she complained that her nose was blocked and that she suffered from occasional bloody discharge. Nose bleeding in such circumstances needs to be considered seriously and action ought to be taken urgently to exclude any serious pathology. Again on 9 July 1996 nose bleeding was noted. On 11 July 1996 blood streaking was noted. On 18 July 1996 the Pursuer complained of being very 'choked up'. She also complained of deteriorating eyesight in the left eye. Other than the prescription of antibiotics on two occasions no steps were taken by any of the General Practitioners who consulted with the pursuer to cause further investigations to be carried out, such as an X ray or referral to an Ear Nose and Throat specialist. Such investigations ought to have been instigated by the General Practitioner following upon the consultations of 28 May 1996 and 9 July 1996. The persistence of such unrelieved symptoms can be an indication of a serious pathology. The first defenders, having obtained a history of nose bleeding from the pursuer, ought to have taken steps to exclude any serious pathology by urgent referral for specialist advice or by having the pursuer x-rayed. Eventually, after at least nine visits to her general practitioner in connection with these complaints, in November 1996 the pursuer was referred to the ENT Department of Aberdeen Royal Infirmary."

[4] The Condescendence alleging fault reads:

"The pursuer's loss injury and damage was caused by fault and negligence on the part of the first defenders. They had a duty to exhibit the standard of skill and care to be expected of General Practitioners of ordinary competence. In the exercise of such skill and care it was their duty to take note of the ongoing and consistent history given by the pursuer, in particular the history of bloody discharge from the nose, and consider it as meriting further investigation. It was their duty to refer the pursuer for specialist advice promptly following upon her visits to them on 28 May 1996, and during July 1996 at which time the history of bloody discharge was noted. In any event in May and July 1996 it was their duty to perform or cause to be performed an x-ray of the pursuer's sinuses. In each of the aforesaid duties the first defenders failed and in so doing caused the pursuer the loss, injury and damage hereinafter condescended upon."

In answer 2 the first defenders' averments specify the doctor who made the referral in November 1996. They also intimate the name of the doctor who saw the pursuer on 28 May 1996 and, in addition, to in relation to 9 July 1996 narrate that it was a telephone call which took place with a third, named, doctor. The defenders go on to aver the name of a fourth doctor who did see the pursuer on 18 July 1996. The pursuer does not admit those averments.

The Appropriate Law
[5] It was not disputed between the parties that the appropriate test in a case of this sort is that in Hunter v Hanley 1955 S.C. 200 where the Lord President said, at page 205,

"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."

In relation to any suggestion of deviation from normal practice, the Lord President stated that firstly, there had to be proved that there is a normal and usual practice and that the defender had not adopted it. He went on,

"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"

The deviation must be of a kind, if it exists, which satisfies the third of those requirements.

The Contentions for the First Defenders.
[6] The first defenders attacked the pursuer's pleadings as follows. First, the pursuer had not appropriately offered to prove a case based on the Hunter and Hanley test. Second, the pursuer failed to distinguish between the duties of individual general practitioners on each of the two dates she specified. Third, there was a lack of essential specification in that the pursuer failed to offer to prove what investigations or referral no ordinarily competent general practitioner would have failed to instigate; failed to specify the nature or direction of any such referral or investigation; failure to give a date which no ordinary competent general practitioner would have allowed to pass before making such referral or investigation and what the result of such action would have been. She offered no specification about any causal link between the failure and any loss. A general practitioner did refer the pursuer for special advice in November. It is not said why that was inappropriate in relation to the passage of time between July and November.

Pursuer's Response
[7] It was asserted that there were sufficient averments in the pleadings to entitle the pursuer to a Proof before Answer against these defenders which was, in essence, a failure to react timeously to the condition noted. It does not matter which doctor failed in the treatment diagnosis and, so far as what would have resulted from a referral is concerned, much will depend on the evidence about the progression of the disease. There was adequate notice in that regard.

Decision
[8] The case against the first defenders began and continued inappropriately. The entire practice is sued as if it were a single doctor capable of a Hunter v Hanley type failure. In my judgement this is inappropriate. Professional negligence must be judged in relation to the action, or inaction, of one individual professional person. No doubt the practice in which the doctors operate by way of partnership may be vicariously liable for a partner's negligence but that does not impose a personal duty on a partnership so as to permit a partnership as such to be guilty of professional negligence if one or more partners is negligent. There are no averments of corporate or system failure, which might involve liability on a different basis. So pled, the case is irrelevant and cannot be allowed to proceed to probation. There is no Hunter v Hanley duty which could lie against a legal as opposed to an actual person.

[9] The matter, however, does not end there in that the averments of fault, inappropriately directed as above noted, do not in any event conform to the standard set in Hunter v Hanley. There are no averments that no doctor, or medical man in the practice was guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. The pursuer does, in Condescendence 4, when pleading a case of fault against the hospital trust as vicariously liable for the registrar, use the tested formula that no medical practitioner of ordinary competence would have reached the diagnosis he did or indeed have continued to diagnose in the way he did when certain facts were brought to his attention. It is, in addition, not said in the case against the first defenders that no doctor of ordinary competence would fail to refer on either of the specified dates and accordingly for that reason also the case against the first defenders requires to be dismissed.

[10] There is a further difficulty for the pursuer. In the narration of events in Condescendence 2, it is said that the first defenders, who are said to have obtained the history, "ought to have taken steps by way of urgent referral for specialist advice or by having the pursuer x-rayed." That formulation would indicate that it would be sufficient discharge of whatever duty was incumbent upon the first defenders had they had the pursuer x-rayed. The pursuer's pleadings however are totally silent about what that would have achieved and how, having obtained an x-ray, the first defenders were bound to have acted to the pursuer's benefit. The matter is significant because it is re-united in the condescendence of fault as an alternative duty, again without any follow up by way of specification or narration.

[11] The other criticisms made by defenders' counsel of the pursuer's pleadings were also significant where they attacked the absence of any proper averment in relation to the effect of the "delay" between July and November when the pursuer was admittedly referred. Since it is known that the pursuer was in fact referred in November and that nothing of benefit to the pursuer occurred from that referral, it would require averment and explanation to indicate what difference it would have made had the referral been in July as opposed to November. There are no averments that, had the matter been referred, the result would have been any different once the second defender became involved.

[12] For all these reasons therefore, the pursuer's case against the first defenders, as a partnership, is irrelevant and lacks specification. I shall accordingly sustain the first defenders' first plea-in-law and dismiss the action against them.