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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robertson v. Forth Valley Health Board [2004] ScotCS 95 (13 April 2004)
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Robertson v. Forth Valley Health Board [2004] ScotCS 95 (13 April 2004)
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OUTER HOUSE, COURT OF SESSION |
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XA155/01
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OPINION OF T G COUTTS, QC (Sitting as a Temporary Judge) in the cause ERIC CAMPBELL ROBERTSON (A.P.) Pursuer; against FORTH VALLEY HEALTH BOARD Defender: ________________ |
Pursuer: Stewart QC, Sutherland, (Allan McDougall & Co)
Defender: Dean of Faculty QC, Khurana, (R. F. Macdonald)
13 April 2004
Introduction
[1] The pursuer who was born on 29 November 1939 required an operation to a giant aneurysm situated in his right internal carotid artery. He sustained significant neurological damage following upon that operation but no suggestion was made or indeed could have been made, that the operation to remove the aneurysm was conducted negligently. In summary the pursuer's case is that a consultant general physician, Dr Howie, failed to refer him timeously for neurological opinion. Quantification of the damage sustained by the pursuer was substantially agreed by way of Joint Minute. The Court was presented with a body of evidence from consultants. In addition to Dr Howie, who was accused of negligence, Dr Teasdale, Dr Durward and Dr Barnes and Professors Bone, Mendelow and Campbell gave evidence. All that evidence, except that from Dr Howie and Professor Bone, was purely opinion evidence. The other evidence came from two general practitioners Dr Evans and Dr Cathcart and from the pursuer and his wife.History of the litigation
[2] The task of the Court in evaluating the evidence and the difficulty for witnesses in recollection of events and recall of the state of medical knowledge and equipment at the relevant times was considerably increased by the delay in the progress of the action. A further difficulty lay in the need to avoid being influenced by hindsight - i.e. the eventual discovery of the rare condition from which the pursuer was suffering and any assessment of when that might have been discoverable. The final episode and injury was in 1987. The action was raised in Stirling Sheriff Court in 1990 and tabled there on 18 September 1990. The case was then sisted to enable the pursuer to apply for legal aid, a matter which did not appear to have been attended to prior to the raising of the action. The sist was only recalled on 12 May 1992 when the cause was remitted to the Court of Session. On 29 May 1992 the Court on the pursuer's motion sisted the cause again this time "to enable negotiations to take place". That sist was not recalled until 14 September 2001 and on 26 October 2001 I allowed defences to be received late. The adjustment, which followed, was extended and the Record was not closed until 15 May 2002. Proof took place in October 2003. In view of the said delay and a perceived conflict in the evidence, and because of its technicality the Court had the notes of evidence extended. The extended notes demonstrate considerable deficiencies in the present system of recording of evidence as compared with the use of shorthand writers and very many gaps required to be filled from my own notes and recollection. The result has been further delay, this time in the production of my opinion.The pursuer's case as pled
[3] The pursuer averred that he exhibited signs and suffered symptoms from a progressive cerebral aneurysm from 1980. His case however is pled only against a consultant physician, Dr Howie, whom he first saw in September 1983. He had a history of headache and had a convulsive attack in 1983 which prompted his general practitioner to refer him to Stirling Royal Infirmary. There he saw Dr Howie who arranged for an isotope brain scan and an EEG to be conducted. These showed nothing amiss. The pursuer goes on to aver that a patient who had headache and seizures must be presumed to have a tumour and have appropriate investigations arranged such as a CT scan of the brain, or alternatively, that it would have been proper practice to refer the pursuer to the Institute of Neurological Sciences for investigation. It is averred that a CT scan would at that time have been performed and a diagnosis of an aneurysm would have been made. A further episode of seizure occurred in May 1984 when the pursuer had ceased to take Phenobarbitone. [4] In September 1985 the pursuer suffered a transient ischaemic attack (TIA) and was again referred to the same consultant physician. The letter of referral indicated that certain symptoms had occurred. Dr Howie had an isotope brain scan performed. It was asserted by the pursuer that appropriate investigation of transient ischaemic attacks in 1985 should have included angiography and also required referral to a neurologist. [5] A further referral to Dr Howie occurred on 27 April 1987. The circumstances surrounding and following that referral are discussed below. [6] The pursuer tabled allegations of fault against Dr Howie alleging negligence in respect of a failure of ordinary skill and care in failing to arrange a CT scan and failing to refer the pursuer to a neurologist in 1983. Again he claimed that in 1985 Dr Howie should have referred him for CT scanning and/or angiography and to a neurologist. In April 1987 it is said that an arrangement should have been made for an immediate and urgent referral to a neurologist. [7] A scan in 1983, it is averred, would have demonstrated the aneurysm "very clearly" and surgery thereafter would have been uneventful. Had imaging been performed in 1985, the aneurysm would have been demonstrated and surgery uneventful. Had a CT scan been performed in April 1987, surgery would have been successful. In his Condescendence of loss, however, the pursuer avers,"Had the operation been undertaken before November 1987 the pursuer would have been left without significant disability. In any event the delay in diagnosis and in the operation deprived him of a chance of being left without significant disability".
Equipment available
[10] It is important to note how the availability of diagnostic equipment has altered since 1983 and 1987 and consequently how far standard practice has changed since 1983. Long before the date of the proof, in the 1990's but well after the events discussed here, CT scanning equipment became generally available and in particular was made available to Stirling Royal Infirmary. By contrast in 1983 only two CT scanning machines were available in the West of Scotland. These were regarded as scarce resources and specifically as research tools. Access to such equipment was strictly rationed. A consultant physician at Stirling Royal Infirmary was a 'filter' and could not as a matter of course at any time between 1983 and 1987 have arranged a CT scan. That might have been made available on a tertiary referral. A major part of the case averred against Dr Howie was accordingly misconceived. Visiting neurological consultants were available at Stirling Royal Infirmary. The neurologist was Dr (now Professor) Bone, he visited monthly and was "the gate keeper" to the scanning facilities. He could, had he considered it appropriate, have arranged for such a scan. Current techniques have advanced further still and a person like the pursuer would probably now be investigated by means of magnetic resonance imaging. Further, according to Dr Teasdale, a consultant neuro-radiologist at the Southern General Hospital, Glasgow, a new model CT scanner which provided enhanced imaging and contrast only became available in November 1985. In 1983 imaging was of poor quality and would not on the balance of probability have resulted in the diagnosis contended for by the pursuer as quoted above. It also follows that such imaging performed in September 1985 would have been no different. [11] In addition current practice can avoid the angiogram which carried an inherent risk of significant proportion. There was a reluctance between 1983 and 1987 to perform angiogram because of the dangers of the procedure, although the pursuer was given one in 1987, when it was deemed essential. [12] A referral by Dr Howie in 1985 would have been to Dr Bone. He would have decided what, if any, further investigations should occur in relation to the matter referred to him. Since at that time it was not possible for a Stirling consultant physician himself to instruct the investigation by way of either CT scan or angiogram, the only case remaining to the pursuer on his pleadings is one of failure to refer, not one that a CT scan or angiogram should have been performed or arranged by Dr Howie. [13] It is most unfortunate that had current techniques and technology been available to the pursuer's medical advisors in 1985 the pursuer might have been successfully diagnosed and treated earlier than it was.The 1983 referral
[14] Any relevant medical events or circumstances preceding the referral in 1983 were not fully before Dr Howie. It was not until 1987 that incidents averred as having taken place before 1983 were disclosed to Dr Bone. The pursuer came to Dr Howie by way of a specific referral by his GP, Dr Evans. That is 15/8/6 of process. That referral was in relation to a fit. It narrated that the pursuer had headaches over the last few months, had normal blood pressure and normal fundi. He had been treated for degenerative disc lesions with analgesic and anti arthritic drugs but at the beginning of 1983 he "took a fit lasting 5 or 10 minutes followed by a post ictal state. His fundi were normal, there were no focal neurological signs and the practitioner queried whether the pursuer was harbouring a tumour. [15] He was seen by Dr Howie whose account is narrated in 15/8/7. He noted the complaint of persistent headache for the past 6 months although the site varied. Headache was present on waking and was a throbbing discomfort. There was no vomiting, occasional blurring of vision, no diplopia and no symptoms in the limbs. The headaches had "not really changed" since they began. Towards the end of August 1983 the pursuer had an episode of not being fully aware of where he was with perhaps no loss of consciousness, had a dizzy feeling once every three days but did not describe true vertigo, had no deafness or tinnitus and it was noted that there was no past history save that his brother had been investigated for persistent headache. Again there were no focal neurological signs, heart sounds were normal and although the headache could not be accounted for in that its site seemed to vary Dr Howie arranged for a brain scan and EEG and that said that the pursuer should continue on his Phenobarbital. [16] The EEG and brain scan were normal. The pursuer attended as an outpatient and in December 1983 was noted as having the occasional sore head (sic) but less frequent and much less severe, but there had been no further seizures. In 1984, however, he had a further major seizure. It was stated in evidence that that was as a result of failure to take the tablets, but this was not noted at the time of the consultation. When Dr Howie saw him in October 1984 he had had no fits since May and only occasional headache and was discharged from regular follow up. [17] These were the facts and circumstances as known to and as investigated by Dr Howie prior to the second referral. It is plain that it was thought that the pursuer was suffering from epilepsy. At that time that was a reasonable assumption to make and one which was not convincingly challenged even with hindsight.Referral of 27 September 1985
[18] The pursuer's GP, Dr Cathcart, re-referred the pursuer to Mr Howie following upon an incident at the pursuer's work. The pursuer had been seen by a doctor in Alloa who wrote a letter to Dr Cathcart giving a clear account of his findings. That doctor's letter was not sent to Dr Howie. In it the Alloa doctor said "I would suspect he had had TIA". [19] Dr Cathcart's letter (15/8/15) recounted the Alloa doctor's description as "A dizzy turn" and narrated that the pursuer became slightly confused and disorientated with slurred speech. At that time, he was found to have slight nystagmus to the right, he could not move his eyes fully to the left, his left patellar reflex was described as "increased" and right plantar as "upgoing". The doctor felt that the most likely explanation of this was a "TIA". When the pursuer was seen by one of the doctors from his own practice approximately an hour later he was described as having "virtually returned to normal". [20] Dr Howie examined the pursuer and his report to the general practitioner dated 8 October 1985 is (15/8/16) of process. Dr Howie noted that there had been no convulsive movements, that speech had apparently remained slurred for about 2 hours but was normal thereafter, and that since then on two occasions, he had felt light headed and faint and his wife had noted that his colour became poor. On both those occasions he sat down and recovered within an hour. Over the 3 weeks before the consultation the pursuer had been aware of a constant right-sided frontal headache throbbing in type with some discomfort in the right side of his neck. There were no visual problems and in particular "He has had no symptoms in his limbs and his general health is otherwise good". On examination there were no focal neurological signs, the reflexes were all present and equal and plantars both flexor. There were no carotid bruits and the optic fundi were normal as were the heart sounds. Dr Howie expressed the view that it was difficult to be sure about the events that happened at work but it did not seem that there had been any convulsive movements. He arranged a further brain scan. He opined that the more recent episodes of light-headedness seemed more like a simple faint. There was no abnormality on examination. The brain scan was normal and there was no follow up. [21] In his evidence Dr Howie accepted that there had been a TIA at Alloa on the narrative he had been given. He did not mention TIA to the general practitioner in his reporting letter but did not consider it was necessary to do so. It was put to Dr Howie under reference to a history taken by Dr Bone in September 1987 that there had been gait disturbance in 1985, which took 2 weeks to settle. Dr Howie stated that he had not been so told, but, if he had been told he would have noted it. Whether or not there was gait disturbance is not necessary for the Court to resolve since I accept that Dr Howie was not so informed. I also note that the account of events given by Dr Bone in September 1987 following upon his examination and his taking of history is not wholly accurate. It illustrates the difficulties of ascertaining a history some time after the events. In particular when he discussed the pre-1985 history Dr Bone seemed to be of the view that there had been a seizure in August 1982 and a further episode in 1983. That was not the case. There was an episode in August 1983. Mrs Robertson seemed to indicate from her recollection that there had been a previous episode before the 1983 referral but nobody mentioned such an event in 1984 or the explanation for it which was the pursuer ceasing to take phenobarbitone at the time in question. [22] Dr Howie's attention was directed towards a problem created by the two different manifestations, one of which seemed like epilepsy and another which seemed like TIA. The TIA on the narration to him was a unique event and not a series of episodes. There was no obvious relationship between these events, they were manifestations of events in different parts of the brain. [23] The other consultants who gave evidence were of the view that the event in 1985 was a TIA (with the exception of Professor Campbell who had not been convinced). This is illustrative of how expert professional opinion may vary in the matter of diagnosis. It also explains the non admission by the defender of the fact that a TIA had occurred. However, for present purposes it is sufficient that Dr Howie accepted, though he did not say so expressly to the referring GP, that the pursuer had suffered a TIA. There was no evidence of any other TIA, before or since.The 1987 referral and events thereafter
[24] The pursuer was not referred again to Dr Howie until 27 April 1987. That referral was direct and urgent. Dr Howie saw the pursuer on 28 April. The referral letter to Dr Howie narrated that over the past week the pursuer had been choking on liquids and solids, that his wife had noted some drooping of the right eyelid and on 27 April had noted that the pursuer's right pupil was big. His headaches were said not to be a problem. On examination the only abnormality noted by the general practitioner was a large fixed right pupil. [25] These events were considerably expanded upon by Dr Howie in his report to the general practitioner of 28 April, in which he noted that the pursuer had had no further fits since his first presentation but, strangely, wrote that he had no headaches since first presentation. So far as headaches are concerned that was obviously incorrect as he knew. He noted however that over the previous 2 weeks the pursuer had developed what he described as a choking sensation when swallowing liquids or solids. Dr Howie felt that that was caused by food irritating the back of the pursuer's throat and making him cough. Dr Howie took the view that the pursuer did not seem to be describing true dysphasia. He noted that the pursuer had tended to laugh inappropriately over the last 3 months, that the pursuer's wife had noted slight drooping of his right eyelid when tired and dilation of the right pupil on the day before he attended. The swallowing difficulty was not described as varying according to the time of day or as associated with fatigue. There was no other muscle weakness, no change in voice or speech, no diplopia and no sensory disturbance. [26] At examination Dr Howie noted that the puruser's right pupil was dilated and did not react to light in contrast with the left which was normal. The pursuer did laugh inappropriately but there were no other focal neurological signs and the optic fundi were normal. Dr Howie was unable to get the pursuer to reproduce the choking sensation when swallowing. In view of the pupillary change he arranged for a further isotope brain scan. That brain scan was normal but an outpatient interview was arranged. At that outpatient review it was noted that the pupil remained fixed and dilated, but there was no other focal neurological sign. The senior house officer, who saw the pursuer as an outpatient on 2 June 1987 discussed the situation with Dr Howie. Dr Howie was said to be rather puzzled and to wish to discuss the case with Dr Bone. [27] Dr Howie did discuss the case within a few days and reported that Dr Bone thought that the spontaneous laughing was more likely to be a functional symptom unrelated to the dilated pupil or the difficulty in swallowing. The pursuer was in any event, to be seen again. The essence of that discussion with Dr Bone was transmitted to the pursuer and his G.P. by letters of 9 June 1987 and the pursuer was invited to report if his symptoms changed before the next appointment scheduled for two months later. [28] At the next appointment on 11 August 1987 it was noted that there was no improvement. The pursuer and his wife, however, were complaining that the symptoms were worse, that there was difficulty in eating and drinking in public, although again the pursuer was unable to demonstrate that difficulty for the senior house officer. The inappropriate laughing persisted, the pupil was still dilated and there was drooping of the right eyelid. There was noted at the examination a positive jaw jerk. Reflexes were generally brisker in the legs but there was sustained clonus in both ankles with down-going plantars. However the pursuer reported no visual problems or sensory or motor disturbance. There was a discussion with Dr Bone and Dr Bone indicated that he wished to see the pursuer in his clinic. Syphillis serology, a blood count and ESR were performed. A lumbar puncture indicated no abnormality and cerebral spinal fluid findings were normal. Dr Howie arranged or organised an accelerated appointment with Dr Bone. This took place on 29 September 1987. [29] Dr Bone found that there was a clear requirement for investigation of the brain stem region in the first instance by MRI CT (sic) imaging as well as an assessment of his serology in view of the pupillary findings. Dr Bone noted the difficulty of fitting together the progressive brain stem symptomatology with either the previous history of epilepsy or the episode in October 1985 which he said "sounds to be transient hind brain vascular". He wrote "I suppose one possible explanation of progressive brain stem symptomatology which is vascular is a possibility of a fusiform aneurysm of the basilar artery". [30] That scan, on 27 October 1987, demonstrated a space occupying lesion which was thought to be a thrombosed giant aneurysm of the basilar artery. Angiography was arranged and the pursuer was referred to Mr Johnston the neurosurgeon at Glasgow Southern General Hospital. His note of 30 October1987 describes the matter as a very interesting case and said that the aneurysm looked like a giant internal carotid aneurysm causing right to left shift of the basilar artery in the brain stem. Mr Johnston discussed the operative risk with the pursuer and operated on the aneurysm on 10 November 1987. [31] Due to the 30mm size of the aneurysm (anything over 25mm is considered "giant"), extensive and difficult clipping procedures were necessary to avoid catastrophic blood loss during repair. In the event, although the pursuer's life was saved, the length of time during which the blood supply to the area of the brain being operated upon was interrupted has left him with a permanent deficit. That remains despite a moderate recovery from the left sided hemiparesis and hemianopia which resulted from the operation. In the event the operation has left him with deficits which are more severe than those of his pre-surgery days. It follows that the pursuer, had he had his operation earlier in 1987 would have been worse off at an earlier stage.Was Dr Howie negligent in making no referral for neurological opinion in 1985?
[32] In the light of the evidence of Dr Bone as to what would have happened had there been such a referral, the question of whether non referral was negligent is not material. The pursuer's case depends upon referral resulting in a CT scan and in addition, as is now known an angiogram would have been required to diagnose an aneurysm. [33] When Dr Bone was asked in cross-examination what he would have done had he seen the pursuer in 1985 instead of Dr Howie replied "I probably would not have done anything". However, in view of certain trials in which he participated at that time, looking at surgery of narrowed arteries of the neck in patients with TIA, he said that probably, if he could have localised the event, he would have arranged an ultrasound of the neck blood vessels. That, in fact, would not have revealed this aneurysm within the pursuer's head. When pressed further and asked whether in the circumstances then pertaining he would have ordered an angiogram, he replied "most definitely not". The matter was taken up in re-examination. Dr Bone repeated that he would examine the arteries in the neck, but explained that in 1985 with angiograms he had a choice of views of the head or views of the neck. At that time, if he had felt that there had been a TIA in the territory of the carotid artery and an ultra sound has shown carotid artery disease, he would have proceeded to an angiogram of the neck. Had it been negative, he would have gone no further. In this case he would not have looked within the head. [34] In 1985 he participated in an evaluation which he did not pace Professor Mendelow (infra) describe as a "TIA clinic". It was a clinic for neurosurgeons as part of the European Carotid Artery Surgery Evaluation. That clinic was run with Mr Mendelow. In response to a question as to whether or not investigation of the cerebral circulation was to be carried out the decision to do so or not was one made by either himself or Mr Mendelow in a TIA setting. He agreed to a proposition that in order to know whether such a decision might have been made, Mr Mendelow would have had to be involved and asked whether he could have been involved. [35] Further Dr Bone's evidence was that aneurysms as such do not cause TIA. It is very rare to have any association between the two. From that it can be inferred that had a single TIA been referred to him in 1985 Dr Bone would not have thought that aneurysm would have been the cause. [36] Dr Bone's evidence does not however end there, he also was of the view that a non referral in 1985 was in accordance with practice in the hospital at that time. He was not surprised that he was not referred to in 1985 and plainly did not take the view that non referral at that time was negligent. [37] Professor Mendelow was asked about this matter. He felt able to explain the pursuer's progression of symptoms as due to the aneurysm having existed all along. That meant its having existed in 1983, in 1985 as well as in 1987. Professor Mendelow is a neurosurgeon, not a consultant general physician. He did say that in 1985 a patient in his 40's who presents with a TIA, with episodes of unconsciousness would have been investigated and that his own preference would have been to do an angiogram. He would not, however, have gone straight to angiogram but would have done a scan of the brain, a CT scan. He thought that the CT scanner at the Southern General Hospital had been changed to a more modern scanner in 1985 so he said, erroneously in view of the date of the possible referral and Dr Teasdale's evidence of the date of change of scanner, that such a scan then would certainly have picked up an aneurysm. When asked about the probabilities of a patient from Stirling being referred with a question of TIA he thought that such a person might have come under his care. He was, he said, the only neurosurgeon who did the TIA clinic and he would be the natural neurosurgeon to refer to at that time. That depended however on a neuro-surgeon being involved which was not proved to have been inevitable. [38] Dr William Durward, a consultant physician at the Southern General Hospital having given the view that an 1983 episode would have been "an appropriate matter for referral", in relation to 1985 said that he would have expected referral to a neurologist and appeared to assume that a CT scan, which was an option open to a neurologist would have been carried out. [39] However, since it is in my view quite clear on the evidence of Dr Bone in relation to the single TIA in 1985, that had it been referred to him, neither a CT scan or an angiogram would have been arranged, any alleged failure by Dr Howie to refer at that time is of no consequence.Decision on non referral in 1985
[40] Dr Durward a witness of forthright opinion strongly expressed the view that Dr Howie should have known he was out of his depth in 1985 and made a reference. There was other evidence on this matter. As noted above, Professor Mendelow was of the opinion in view of the age of the pursuer and the fact of the TIA, that even in 1985 reference to neurology was the appropriate course. There was similar evidence from Dr Barnes, a consultant physician at Darlington Memorial Hospital. [41] Dr Barnes' consultant post was roughly equivalent to that of Dr Howie. He, too, was a general physician at a hospital which used consultant neurology services from a regional centre. He was a very cautious physician. He thought that he would have referred even in 1983, although he accepted that it was not negligent of Dr Howie not to have done so, and plainly, would have referred in 1985. His reasons for doing that were somewhat oblique in that he said that one reason for making an early referral was to put the patient in the queue if other matters arose. His reference would have been for consultant input and not specifically for a CT scan or angiogram. How his referee then treated the case would be a matter for him. Dr Barnes was not specific in his criticism of Dr Howie's conduct in 1985 but what can be taken from his evidence is that he himself would have been referring as a matter of caution as opposed to an appreciation of a specific potential risk. [42] Professor Campbell was not convinced that the symptoms described a TIA at all but if he had been convinced that there was a TIA he might or might not have made a referral. That would depend on his view of the whole circumstance and he had no criticism of Dr Howie for not having referred. [43] In considering the events between 27 April and end November 1987 the question arises whether reference on 27 April would have resulted in a materially earlier operation. From knowledge of what happened after referral to Dr Bone in August 1987 it is clear that some months would have elapsed before operation. Referral on 27 April might have led to an operation in September. There is no evidence that such an operation would on the balance of probabilities have led to any different outcome. Indeed the evidence of the size and progress of the aneurysm means that even an operation in April or May 1987 would not have led to any different result. By April 27 the aneurysm was already giant and there was no evidence from which it could be established that it increased in size thereafter. [44] On this aspect of the case even had it been proved that referral would have had any different consequences from those which ensued I would have found in the light of the conflicting evidence that the pursuer had not established that there was a breach of duty by Dr Howie in 1985.Progress of the aneurysm
[45] Although not free from reasonable doubt I consider that the opinion of Professor Mendelow that the pursuer did have a progressive aneurysm from before 1983 may be correct. He regarded that as explaining the varying symptoms albeit they were in different compartments of the brain. They produced different effects and were secondary manifestations produced as a consequence of rather than directly by the aneurysm located where it was. Dr Bone was not convinced but could think of no other unifying cause, if a unifying cause had to be found. [46] It is necessary to attempt to determine what the progression of the aneurysm was, because the time at which it reached giant status would could be used to determine the likelihood of a different outcome from that which did occur. Despite counsel's best efforts Professor Mendelow was unable to say more than that the aneurysm would not have been larger in 1985 than it was in 1987. He thought however that the indicator of the aneurysm having reached giant size were the April 1987 symptoms. He said that the large size ultimately reached was probably when the third nerve palsy appeared (the eye symptoms) around April 1987. Once the third nerve palsy had manifested itself in 1987 the aneurysm had reached a large, probably its maximum size, and from that point was producing symptoms which could be produced by a giant aneurysm. Professor Mendelow discussed the probabilities of a trouble free outcome from an operation. At no point did his evidence amount to proof on the balance of probabilities of the pursuer's case which is that surgery performed around 1985 would have been uneventful or that it would have been successful in April 1987. Basically he said the smaller the better, but he could provide no evidence whatsoever about the size of the aneurysm at any particular point prior to April 1987. Aneurysms, he said, could either progress or develop in a series of steps. It could, he said, have remained small up until April 1987 and then suddenly enlarge. [47] Risk of a bad result following operation progresses linearly between a 5% risk at 5mm to 25% risk with a giant aneurysm. He also said that this particular aneurysm is extremely difficult to deal with. There is a high probability of a poor outcome. The risk (of total failure) would be about 40%. [48] The pursuer has to establish following Hunter v Hanley 1955 SC 200 at p. 204-5 that Dr Howie in diagnosis or treatment was proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. The test for Dr Howie would involve the substitution of "no consultant general physician" for "doctor". In other words unless the gap between 27th April and mid-August 1987 can be shown to have been crucial the pursuer cannot establish that failure to refer as a matter of urgency in April caused his injury. Nor is the non-referral in April negligent. [49] Dr Howie did realise after making such investigation as he could in 1987 that the pursuer's condition was inexplicable to him and he set about consulting Dr Bone and referring to him when it appeared that matters were not resolving, within, I find, a reasonable time. [50] The pursuer's condition was extremely rare and unusual. None of the signs and symptoms which had been demonstrated to Dr Howie were susceptible of any clear solution and indeed seemed contradictory, unless they could be explained as they have been by sequelae from a wholly exceptional presentation. Accordingly the issue is not whether the pursuer should have been referred in April 1987. The issue is only whether he should have been referred at a stage earlier than happened. With the benefit of hindsight that might indeed seem to some of the consultants who gave evidence to have been the case but Dr Howie was entitled in my view, accepting Professor Campbell, to deal with the matter himself until it became obviously inexplicable. He did discuss the matter with Dr Bone in June some two months after the April 1987 referral but was not assisted by that discussion and indeed Dr Bone's diagnosis even in September was not the correct answer. It is only with hindsight and in the knowledge of the actual disease that matters began to be have an explanation. [51] Thus in the light of the difficulties of diagnosis, the conflict of expert evidence in relation to possible negligence and the changing availability and sophistication of diagnostic technology which I found affected that evidence, the pursuer has failed to establish that he suffered any injury as a result of any failure in duty by Dr Howie.Loss of a chance of a better outcome
[52] In the light of the above findings the question of whether the pursuer might have had a chance of a better outcome had he been referred earlier does not arise. However the matter was deployed in the pleadings and was argued to some extent. [53] The matter was introduced by the averment at page 27E of the Record "In any event the delay in diagnosis and in the operation deprived him of the chance of being left with out significant disability". That averment, of course, is not confined to the April 1987 episode. [54] The Dean of Faculty under reference to Kenyon v Bell 1953 SC 125 and Gregg v Scott [2003] MLR 105 argued that the pursuer had to establish that the urgency had to be such that the reasonable inference was that the chance of avoiding the catastrophic consequences of the operation was so material that the consequences were due to the lack of such treatment or the delay in it. [55] In Gregg v Scott, it is suggested in the commentary to the report that an appeal to the House of Lords, of which no trace can be found had been contemplated. The Court of Appeal in Gregg by a majority, in a case where the damage alleged was loss of life expectancy which caused a reduction in the chances of survival from 42% to 25% rejected the proposition that the proper approach was merely a question of quantum of damages and not of causation. They stated that the requirements of policy were that the claimant should prove on the balance of probabilities that the negligence had reduced his life expectancy. It appeared in that action to be that reduction from a less than 50% chance to an even lower percentage chance did not avail the claimant. [56] In the present case the pursuer has failed to establish on the balance of probabilities that the delay of a matter of months caused his injury and no claim for the loss of a chance of a better outcome, even had it been established on the facts, can be relevantly pled. [57] The pursuers' position was that all that was needed was to prove some material injury. If so, the pursuer's cause of action is complete and the matter is one of quantum. If the negligence is established then it would be for the defenders to show that there was no material injury. [58] An earlier operation would have avoided the pursuer suffering from the symptoms which disappeared after the operation; these were principally suffering treatment for alleged epilepsy and his choking sensations. [59] An agreed report by Dr Christian Lueck narrates the extent of the pursuer's disabilities. His left arm was rendered effectively useless, he can walk but only for limited distances with a splint and stick, and he has mild cognitive problems. He depends on the care of his wife and in short is in an infinitely worse state than he was prior to his operation. He has suffered no financial loss as a result of the delay between April and November 1987.Damages
[60] In the event of a different view being taken about any of the aspects of the above decision damages can readily be worked out depending on what view is taken from the Joint Minute agreed between the parties. [61] In the result however I sustain the defender's second and third pleas-in-law, repel the pursuer's pleas and grant decree of absolvitor.