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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 39
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A412/05
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OPINION OF C. J.
MACAULAY, Q.C.
(Sitting as a
Temporary Judge)
in the cause
ARLENE BOWIE
Pursuer;
against
ARGYLL & CLYDE
HEALTH BOARD
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer:
Mackenzie; Balfour & Manson
Defenders: Davie; Central Legal Office
22 February 2007
Introduction
[1] This
is an action for damages for medical negligence. The defenders' first plea-in-law is to the
effect that the pursuer's averments are irrelevant and lacking in
specification. The matter came before me
on procedure roll. The defenders argued
that the action should be dismissed whereas the pursuer argued that I should
allow a proof before answer.
Pleadings
[2] The
pursuer avers that on 19 March 2002 she was admitted to the Inverclyde Royal Hospital for a laparoscopic
sterilisation. She underwent a general
anaesthetic and the procedure was apparently concluded without mishap. However later that same day the pursuer felt
extreme pain in her stomach and it was suspected that she had suffered an
intra-abdominal haemorrhage. She
underwent a laparatomy and a haematoma was discovered underneath the right
rectus abdominus muscle. A haemorrhage
from the inferior epigastric was identified and that artery was tied. Two and a half litres of blood and clot were
removed from the abdomen. The pursuer's
condition stabilised and she was eventually discharged home on 25 March 2002.
[3] The
pursuer avers that in order to perform a laparoscopic sterilisation that an
incision is made in the umbilicus and thereafter a trocar is inserted into the
incision and a telescope with a light at the end is then inserted through the
trocar. The pursuer goes on to make the
following averments:
"It is usual and normal
practice when performing such operations to transilluminate the abdominal wall
before making a second incision in the abdomen, through which another trocar is
inserted, through which, in turn, the operating instrument is passed. Transillumination involves pointing the light
at the end of the telescope (which is within the abdomen) towards the abdominal
wall. That highlights blood vessels
towards the surface of the abdomen, thereby reducing the risk of such blood
vessels being damaged during the insertion of the second trocar. During transillumination the operating lights
require to be dimmed or turned away from the patient. Prior to inserting the second trocar it is
usual and normal practice to positively identify the deeper blood vessels to
avoid damaging them. When the second
trocar is inserted it is usual and normal practice to view the insertion
through the telescope to ensure that the trocar does not damage a deeper blood
vessel. It is likely that the pursuer's
inferior epigastric artery was damaged during the insertion of the second
trocar. If (a) transillumination is
performed prior to insertion of the second trocar, and (b) the deeper
blood vessels are positively identified prior to insertion of the second trocar
and (c) the insertion of the second trocar is viewed through the
telescope, it is extremely unlikely that the inferior epigastric artery will be
damaged, particularly in a patient such as the pursuer who is not obese. In these circumstances it is believed and
averred that Dr Anthony failed to adequately perform these steps prior to
and during the insertion of the second trocar.
As a result of Dr Anthony failing to adequately perform these steps
the pursuer has suffered the loss, injury and damage hereinafter condescended
upon."
[4] It is
to be noted that in the averments introduced by the words "It is usual and
normal practice" the pursuer focuses upon three separate steps as forming an
essential part of the laparoscopic sterilisation procedure.
[5] In
response to these averments the defenders make a number of admissions in
response to the pursuer's averments as to usual and normal practice. However, the defenders do not admit that
during transillumination the operating lights required to be dimmed or turned
away from the patient. Nor do they admit
that prior to inserting the second trocar it was usual and normal practice to
positively identify the deeper blood vessels to avoid damaging them. Those parts of the pursuer's averments are
covered by the defenders' general denial
[6] The
defenders go on to aver that Dr Anthony did perform transillumination
during the pursuer's laparoscopic surgery and that the transillumination was
carried out prior to insertion of the second trocar. They also aver that the insertion of the
second trocar was viewed through the telescope.
However the defenders go on to aver that transillumination will not in
all cases identify every blood vessel and that transillumination can only reduce
but not eliminate the risk of injury to the inferior epigastric artery. The defenders aver that there is a 1.5% risk
of such injury occurring during laparoscopic surgery and that it is a recognised
complication of laparoscopy.
[7] In
response to the defenders' averments the pursuer admits that there is a risk of
injury to the inferior epigastric artery during laparoscopic surgery but that
the risk is "extremely small in a patient such as the pursuer when the steps
hereinbefore condescended upon are taken".
The pursuer goes on to aver that if the transillumination is performed
and if the trocar is inserted correctly the risk of damaging the inferior
epigastric artery is "significantly less than 1 in 1,000".
[8] In her
averments of duty the pursuer contends that Mr Anthony failed to take
reasonable care when inserting the second trocar and failed to take reasonable
care to adequately transilluminate the abdominal wall before inserting the
second trocar. She also avers that he failed
to take reasonable care to positively identify the deeper blood vessels before
inserting the second trocar and failed to take reasonable care to adequately
view the insertion of the second trocar through the telescope.
[9] In her
averments of loss the pursuer avers that following the laparotomy her abdominal
wound became infected and that she developed an incisional hernia. Consequently on 3 April
2003
she required to undergo a hernioplasty at the Royal Inverclyde Hospital. She has been left with a large and unsightly
scar on her abdomen.
Submissions
for the defenders
[10] In
inviting me to sustain the defenders' preliminary plea to the relevancy and
specification of the pursuer's action the main submissions presented by Ms Davie
can conveniently be subsumed under two broad heads. Firstly, she argued that the pursuer had
failed to advance an adequate formulation of fault. She submitted that on the pursuer's averments
the case fell within the category of case known as medical misadventure. Secondly, she argued that on the pleadings it
appeared that the pursuer was not in a position to make a relevant case because
in the circumstances of this case, the maxim amount to res ipsa loquitor could not be invoked.
[11] In
relation to her first main submission, Ms Davie argued that to establish
fault the pursuer required a definite averment of fault and that the pursuer's
use of the formula "believed and averred" was inappropriate. In developing this part of her submission she
placed particular reliance upon Brown v
Redpath 1963 S.L.T. 219. Subsequently she also drew attention to the
decision in Burnett v Menzies Dougall 2005 S.L.T. 929,
but the decision in that case was not available to her until she replied to the
pursuer's submissions. Under reference
to what was said in that case, she submitted that the pursuer had failed to
make sufficient averments from which an inference of fault could be made.
[12] The
main thrust of Ms Davies' argument was that the pursuer's pleadings were
insufficient to take the case beyond that of one of medical misadventure. Her point was that if there is a recognised
risk even, as the pursuer's contended, only a risk of one in one thousand, then
the fact of damage was not synonymous with negligence. Once you have a situation where there is a
recognised risk more has to be said than simply making reference to the risk to
take it out of the type of case that would be considered to be a medical
misadventure. Her position in this case
was that the pursuer's averments were inadequate for that purpose.
[13] In
developing her submission on medical misadventure, Ms Davie referred to Roe v Minister of Health & Another 1954 2 Q.B. 66, White v West Minster Hospital Board of Governors 26 October 1961
(unreported), Jones, Medical Negligence (3rd edition)
at paragraph 5-006, Jackson &
Powell, paragraph 12-080 and Joyce
v Merton, Sutton & Wandsworth Health
Authority [1996] 7 Med. L.R. 1. She also drew attention to two Canadian
cases, Chubey v Ahsan 71 D.L.R. 550 and Kappur v Marshall 85 S.L.R. 566.
[14] The second
main submission advanced by Ms Davie centred upon the maxim res ipsa loquitor. Her point was that once the pursuer accepted
that there could be a risk without negligence then the maxim could not
apply. In presenting this submission Ms Davie
made reference to Radcliffe v Plymouth & Torbay Health Authority 1998
Lloyds Law Reports Medical 162
and two Canadian cases, Considine v Camphill Hospital 133 D.L.R. 11 and Grey
v Webster 406. In fact Ms Davie was anticipating a line
of argument that did not materialise. Mr Mackenzie
accepted that he was not seeking to invoke the maxim res ipsa loquitor.
[15] The
final part of Ms Davie's submissions related to a challenge she made on an
averment made by the pursuer that following the stabilising of her condition
she was investigated for an episode of shortness of breath at the Southern
General Hospital, Glasgow. The short
point she made was that there was no negligence averred in relation to that
particular matter and that in the context of this case the averment was irrelevant
and should be excluded from probation.
Submissions
for the pursuer
[16] In
inviting me to allow a proof before answer Mr Mackenzie submitted that the
pursuer had averred a sufficiently relevant case. He argued that it was not possible to conclude
on the basis of the pleadings and without enquiry into the relevant facts that
the pursuer's action was bound to fail.
He reminded me that the test for relevancy was that an action was not to
be dismissed as irrelevant unless it must necessarily fail even if all the
pursuer's averments were to be true. He
also submitted that only in rare and exceptional cases would an action claiming
damages for alleged negligence be disposed of on relevancy. He maintained this was not such a case. In developing those particular lines of
argument Mr Mackenzie referred to Jamieson
v Jamieson 1952 S.C.
(H.L.) 44, Wilson v Norwich Union Fire Insurance Society 1999 SLT 1139 and Miller v The South of Scotland Electricity Board 1958 S.C. (H.L.) 20.
[17] Mr Mackenzie
went on to analyse the pursuer's pleadings and in particular the averments that
I have set out in paragraph [3].
His position was that although the pursuer accepted that there was a
recognised risk of damage to the interior epigastria artery during surgery the
position was that if the three steps desiderated upon in the averments set out
at paragraph [3] had been undertaken then it was "extremely unlikely" that
the interior epigastric artery would have been damaged. He argued that the pursuer was entitled in
such circumstances to seek to prove by inference that these three steps were
not taken and that the failure to take these three steps was negligent. As I have already observed, Mr Mackenzie
indicated that he was not relying upon the maxim res ipsa loquitor because the pursuer by setting out the three
steps and drawing the inference that there was a failure was averring a cause
for the damage.
[18] In
responding to Ms Davies' submissions challenging the use of the formula
"believed and averred" Mr MacKenzie argued that the use of that formula
was appropriate in this case. What
actually happened during the laparoscopic sterilisation operation was not
within the pursuer's precise knowledge for the obvious reason that she was
under anaesthetic at the time. He relied upon Shaw v Renton and Fisher Ltd 177
S.L.T. (N) 60, McArthur v Raynesway Plant Ltd 1980 S.L.T. and
Magee & Co (Belfast) Ltd v Bracewell Hamson and Cotton 1980
S.L.T. (N) 102 in presenting this limb of his argument.
[19] Mr Mackenzie
also argued that there were a number of factual matters in dispute which
required to be determined before the law could be applied. I have already set out in paragraph [5] those
aspects of what the pursuer contends to be usual and normal practice that are
covered by the defenders' general denial.
Mr Mackenzie argued that there was, for example, an important
factual dispute as to whether it was usual and normal practice to positively
identify the deeper blood vessels prior to insertion of the second trocar. There was a factual dispute as to what
transillumination required. He also
pointed to the factual dispute in relation to the duties incumbent upon the
operating surgeon. Although the defenders
admit that the treating surgeon had a duty to take reasonable care to adequately
transilluminate the abdominal wall before inserting the second trocar, in their
general denial they denied that the treating surgeon had a duty to take
reasonable care to perform steps two and three.
[20] In
relation to Ms Davie's short pleading point, Mr Mackenzie submitted
that the averment under challenge was simply there to complete the background
narrative of the pursuer's course of treatment up to the date of her discharge.
Discussion
[21] The
thrust of Ms Davie's submissions, at least initially, was that to
establish a failure in care the pursuer required to make a definite averment to
that effect and could not rely on the believed and averred formula. She sought support for that contention from
the case of Brown v Redpath Brown & Co Ltd. In that case the Lord Justice Clerk (Thomson)
said at page 222:
"The use of the formula
'believed and averred' is frequent and convenient in our pleading, but its
appropriate function is to aver an inference which the user seeks to draw from
certain facts; and they are generally facts which are not and cannot be fully
known to him ...
Where definite averment of
facts which a party must establish is necessary, the formula is quite
inappropriate. Here it is an expression
of hope rather than of fact and I can read it only as an attempt to salve the
conscience of the pleader."
[22] In Burnett v Menzies Dougall the Lord Ordinary relied upon that particular
passage in concluding that a definite averment was necessary to make the
pursuer's case relevant. However that
decision was reclaimed and in the Opinion of the Court the following
observations were made at page 993:
"The proper use of the
formula 'believed and averred' is described in the first sentence of the
passage of the opinion of Lord Justice Clerk Thomson in Brown quoted in paragraph 14 above, and in the passages from
the opinion of Lord Osborne in Strathmore
Group Limited and from Macphail on
Sheriff Court Practice quoted in paragraph 15 above. In our opinion, any material fact may be pled
by means of the formula 'believed and averred' if there are also averments of
primary fact which are capable of supporting the inference that the matter
which is believed and averred is true.
There is no category of fact which cannot be advanced in that way as a
matter of inference. The Lord Ordinary
appears to have held otherwise on the basis of what was said by Lord Justice
Clerk Thomson in Brown. That, in our opinion, discloses a
misunderstanding of what the Lord Justice Clerk said. He said that the use of 'believed and
averred' was inappropriate "[where] a definite averment of facts which a person
must establish is necessary". In our
opinion, he did not mean (as the Lord Ordinary appears to have taken him to
mean) that there is a category of fact so important that it always requires
categorical assertion, and can never be advanced as a matter of inference. Rather he was making the point that, in the
absence of categorical averments of facts and circumstances capable of supporting
the inference, the use of the formula 'believed and averred' is
inappropriate. A definite averment is
necessary if the fact is not a matter of inference from other averred facts but
if there are averments of primary fact to support the inference, inference is
always a legitimate way of establishing an essential fact, however important it
may be to the parties' case."
[23] I
suspect that in the presentation of her initial submissions Ms Davie may
have fallen into the same trap as the Lord Ordinary did in Burnett v Menzies Dougall. In any
event, in light of what is said in Burnett
v Menzies Dougall, the critical
question here is whether the averments I have set out at paragraph [3] and
in particular the three steps desiderated upon by the pursuer are insufficient
in the context of this case to permit an inference of fact to be drawn that
there was a failure in care. The essence
of the pursuer's case is that if these steps are performed then "it is
extremely unlikely that the inferior epigastric artery will be damaged" because
the risk of such damage is "significantly less than one in one thousand". Ms Davie relied on cases such as Considine v Camphill Hospital where the risk was 1% to 4% that in a
prostate operation incontinence could result, Grey v Webster, where the
risk of pregnancy in women after a tubal ligation ranged from one in every
three hundred to five hundred to two to five persons per one thousand and Chubey v Ahsan where the statistical evidence suggested that only one aorta
was damaged in seven thousand disc operations.
In each of these cases the Courts refused to find medical negligence
established after proof since the risk that materialised could occur in a
non-negligent way. These cases turned on
their own facts. Accepting the position
advanced by the pursuer pro veritate
her position is that the damage to the epigastric artery is an extremely rare
consequence and ought not to occur if the steps averred are taken. Decisions in other cases on the statistical
risk of unwanted damage occurring during a particular medical procedure may go
to show that even when the risk is small, it does not mean that when it
materialises there has been negligence but at this stage I cannot gauge that
the nature of the risk averred by the pursuer in relation to the particular
operation concerned must necessarily mean that she will fail at proof. Inevitably a case of this kind will turn on
the strength of the expert medical evidence and it seems to me that, when the
pursuer is in effect offering to prove that the extremely rare risk of damage
to the inferior epigastric artery should not materialise if the steps set out
in her averments are followed, it would be premature at this stage of relevancy
to decide she will necessarily fail to establish negligence. Also as the pleadings stand, there is a
dispute of fact in relation to what ought to be done in the course of a
laparoscopic sterilisation and the duties incumbent upon the operating doctor,
and, so far as I can tell at this stage, that dispute may be of some relevance
to the issue of fault. In summary I am
unable to conclude at this stage that proof of the steps averred as essential
to a successful outcome cannot permit the inference to be drawn that it was a
failure in care that resulted in the damage to the inferior epigastric artery.
[24] So far
as the short pleading point taken by Ms Davie is concerned, I do not
understand the averment that she focussed upon to be directed by way of
criticism against the defenders and as Mr Mackenzie submitted it simply
forms part of the general narrative prior to the pursuer's discharge from the
Inverclyde Royal Hospital on 25 March 2002. Indeed it is admitted by the defenders. In the circumstances I am not inclined to
exclude that particular averment from probation.
Conclusion
[25] In the foregoing circumstances I propose to allow a proof
before answer on all of the parties' averments with all pleas standing.
