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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 81
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OPINION OF LADY
DORRIAN
in the cause
MICHELLE HEPBURN
Pursuer;
against
ROYAL
ALEXANDRIA HOSPITAL
and ANOTHER
Defender:
ญญญญญญญญญญญญญญญญญ________________
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Pursuer: Hajducki, Q.C., Sutherland; Allan McDougall
Defender: Dunlop;
RF Macdonald, Solicitor, Central Legal Office
30 May 2008
Background
[1] This
case came before me on the defenders' minute seeking dismissal of the action on
the basis of inordinate and inexcusable delay on the part of the pursuer in
proceeding with the action.
[2] The
action was raised in April 1998. The
background to the action was that the pursuer had a very rare congenital
condition which led to urinary symptoms for which she had sought
treatment. On investigation it was
discovered that she has no vaginal orifice.
The treatment complained of was treatment embarked upon with a view to
addressing that condition.
[3] At
the time when the action was raised two cases were made. The first against Dr David Gilmore,
Consultant Gynaecologist was that he had carried out a hysterectomy during the
course of which the pursuer's ovaries were unnecessarily removed. It was alleged that he had a duty to retain
the ovaries and to advise the pursuer that their removal was not necessary,
allowing her to decide whether she wished that to be done. The second case, against Mr Webster,
Consultant Plastic Surgeon, was that in the course of a split skin graft
reconstruction of the vagina he created a recto-neo vaginal fistula and did not
attempt to perform a colostomy at an early stage to allow healing of the
fistula. In addition, the pursuer was
discharged home and advised to douche with a syringe which was said to be
inappropriate care by Mr. Webster.
[4] The action was sisted on 28 May 1998 for further investigation and to enable a
legal aid application to be processed.
It was a matter of agreement that virtually nothing was done thereafter
by the agents then instructed who eventually withdrew from acting on 21 September 2004. New agents received instructions at the end
of November 2004.
Submissions for defenders
[5] It
was submitted on behalf of the defenders that the delay between 1998 and
essentially the start of 2005 was inordinate and inexcusable and it appeared
that the pursuer did not, and could not, attempt to justify it. Counsel recognised that once the new agents
took over, the position changed and steps were taken to make progress. Against the unusual background of the case,
Mr. Dunlop accepted that the new agents had proceeded with reasonable dispatch.
His argument was based on the effect of the delay between 1998 and 2005 as
creating overall an inordinate and inexcusable delay in prosecuting the case
and as leading to prejudice to the defenders were the case allowed to proceed.
[6] Counsel
relied on the case of Tonner v Reiach & Hall 2008 S.C.1 in which
the Inner House affirmed that the Court of Session had an inherent power to put
to an end a pending action on the basis that there had been inordinate and
excusable delay together with an added element of unfairness in the relevant
factual and procedural context. The
power is described as a draconian power of last resort and each case requires
to be assessed according to its own facts and circumstances. Mr Dunlop addressed the reasoning of the
Court between paragraphs 121 and 138 of the Opinion, emphasising that where an action has been
started at a late stage in the limitation period, as here, a more severe view
may be taken of any further delay. He noted
that periods of excusable and inexcusable delay should not be regarded as
totally independent, the question being whether delay as a whole had become
inordinate and inexcusable. Finally, he observed
that the existence or otherwise of a remedy against the solicitors was not
relevant to the question and that the defenders in such a situation are
entitled "to let sleeping dogs lie". He
referred also to the cases of McKie v
MacRae 2006 S.L.T.43; B v
Murray
2005 S.L.T.982 and the Inner House report in the same case AS v Poor Sisters of Nazareth
2007 S.C.688.
[7] Mr
Dunlop submitted that the delay from 1998 to the end of 2004 was plainly
inordinate and inexcusable, particularly in an action raised late in the
triennium. Although the new agents
proceeded to obtain appropriate information it was not until November 2007
when extensive adjustments were intimated.
Whilst one could sympathise with the new agents, Mr Dunlop's submission
was that although they might have acted with reasonable dispatch themselves,
the real position was that the initial delay was so extreme that it meant that
the pursuer's case could not properly be focused until the end of 2007 with the
result that the delay in the case as a whole was inordinate and excusable and
was allied to unfairness to the defenders such that the action should be
dismissed.
[8] Having
drawn attention to the state of the original pleadings, counsel referred to ten
pages of fairly closely typed adjustments which were intimated in November 2007,
submitting that these substantially changed the nature of the case against both
Dr Gilmore and Mr Webster.
Articles 3, 4 and 5 were deleted and new articles substituted in their
place. Article 2 was substantially
altered. The case against Dr Gilmore
continued to include a case that he should not have removed the pursuer's
healthy ovaries, averring a duty to discuss it post-operatively with the
pursuer should he have felt it necessary.
It is averred that the ovaries were removed without the pursuer's consent. Apart from these averments against Dr Gilmore
the pursuer avers that he commenced reconstruction surgery without first
counselling her in relation to the risks and benefits of the procedure and
without arranging a joint consultation with a specialist plastic surgeon, all
of which duties were said to be incumbent upon him. It is said that he failed in his duty to warn
the pursuer of the risk of rectal damage.
[9] So
far as Mr Webster is concerned, the case previously made against him is deleted
altogether. No case relating to the
creation of a fistula or inappropriate care is now made. The case is now based on a lack of informed
consent, alleging that he failed in a duty to discuss with the pursuer the
benefits of the surgery and to warn her against the risks of the
procedure. Detailed averments are made
about what he ought to have done.
[10] It was submitted that it was most unfair to require the
defenders to address these new criticisms which were largely dependent on what
was or was not said to the pursuer at the time of treatment 13 years ago. Dr Gilmore's last involvement with the
pursuer had been in 1994 and that of Mr Webster in 1995. The Court required to take into account the
procedural state of the case. The action
had commenced on a wholly different basis and extensive procedure would be
required prior to proof to enable these new allegations to be investigated and
answered. The defenders would be
requiring to investigate matters of some antiquity and the Court would be faced
with a lengthy proof in a case based on novel and unusual circumstances more
than 13 years on from the treatment complained of. The Court would be having to assess the case
according to the prevailing standards of care and clinical management from 1994
and 1995. Mr Dunlop's submission,
based on the authorities referred to, was that the effect of delay on the
quality of justice can be substantially prejudicial. Where there has been such delay it becomes
impossible to test the evidence effectively by cross examination and the Court
cannot be confident of getting an accurate picture.
[11] Mr Webster retired in 2000 and it would be unfair to expect him
to remember exactly what he told the pursuer in 1994 and 1995 relating to the
issue of consent.
[12] So far as Dr Gilmore is concerned the position is even
more acute because he had died of a sudden and unheralded heart attack on 15 March 2002. None of the present allegations had ever been
put to him other than that he should not have removed the ovaries, and it was
now impossible to investigate the case against him properly. Counsel submitted that this was the clearest
evidence of prejudice arising from inordinate delay. He drew attention to correspondence lodged as
7/2 to 7/6 of process which showed that there had been some ongoing discussions
amongst the medical practitioners involved given the unusual congenital
condition with which they were faced. He
submitted that as a result of this the prejudice arising from the delay
resulting in the absence of Dr Gilmore had a bearing on the case against
Mr Webster also.
[13] Counsel submitted that even the original case against
Dr Gilmore had been changed somewhat.
There is now a specific allegation of removal of ovaries without
consent, which would be tantamount to an assault. The pursuer had however consented to total
hysterectomy which counsel submitted included consent for the removal of the
ovaries. The pursuer's position was that
she did not understand that would happen and so did not consent. The defenders are unable to lead evidence of
what took place at the time of signing of that consent form and to allow the
case to proceed would thus be unfair.
[14] In addition, the pursuer was in receipt of legal aid and there
was no real prospect of recovering expenses in the event of the defenders
succeeding. This would be a lengthy and
expensive litigation and it was unfair that, after such a long delay, the
result for the defenders would be that, win, lose or draw, they would require
to pay for it.
[15] The pursuer's answers stated that the medical records still
exist and therefore there is really no prejudice. However the pursuer herself accepts that the
medical records as originally available were incomplete and that it was only in
February 2007, as the answers aver, that "missing records that contained vital
information in relation to assessment of the pursuer's claim" came to
light. Medical records alone cannot be
relied on as a complete and accurate picture of what took place and counsel referred
to the observations made by Lord Reed in McConnell
v Ayrshire & Arran Health Board
2001 Rep.L.R.85 and the comments repeated by Lord Reed, but made by
Lord MacLean in the earlier case of Loughrin
v Lanarkshire Acute Hospitals NHS Trust. Accordingly Mr Dunlop invited me to dismiss
the action.
Submissions for pursuer
[16] In resisting the motion, Mr Hajducki for the pursuer repeated
that the power had been described as a draconian power of last resort. He did not accept that the summons was served
at the end of the limitation period, since the pursuer was receiving a course
of treatment between 1993 and 1997. He
accepted that the original solicitors effectively did nothing to progress the
action between 1998 and end of 2004 and that he was not in a position to excuse
or explain that delay.
[17] He submitted that no attack could be made against the behaviour
of the agents who subsequently were instructed.
[18] He said that this case was unusual compared to other similar
cases because here one had a lengthy period of inactivity followed by a period
of normal and satisfactory activity to progress the action. The original sist was to enable the defenders
to investigate the action. Unlike the
case of Tonner where adjustment was
only anticipated, in this case the pursuer had made adjustments to her
case. In the other cases the issue of
prejudice was a notional one as no effort had been made to recover the evidence
in those cases. Steps had been taken
here, enabling the pursuer to suggest that there had been and would be no prejudice
to the defenders.
[19] He did not accept that the adjustments completely rewrote the
case and asserted that the issue of consent to the removal of the ovaries was
an issue in a case as originally pled and would have been discussed with Dr
Gilmore when he was asked about the averments in the summons.
[20] So far as Mr Webster is concerned it was understood that he
was still in practice although not within the NHS. He and other treating doctors had been
precognosed in the presence of the defenders and have specifically said that
they had no difficulty in remembering the case because it was so unusual. Nor
did they have difficulty going back to the standards of 1994 and 1995 and the
experts who have provided reports had no such difficulty either.
[21] In any event the defenders had been investigating the case,
presumably since 1998 when they wanted it sisted for that purpose. This is not just a case where time has
slipped by: the defenders have been
investigating. The medical records are
all available and are fairly complete.
He invited me to refuse the motion.
Defenders' reply
[22] In a short reply, Mr Dunlop submitted that the pursuer's
argument relating to the sist for investigation was effectively the argument
rejected in Tonner that defenders are
not entitled to let sleeping dogs lie. It
did not matter who put the dog to sleep, the responsibility for making progress
in a case lay with the pursuer. In McKie the original sist had also been at
the hands of the defenders. There was no indication in the original pleadings
that lack of consent was an issue, at most it was implied that the consent
given had been improperly obtained.
[23] Precognition of the witnesses had taken place in February and
March 2007 when the pleadings were still in their original form. In particular, Mr Webster was precognosed in
February 2007 when the case against him was still one of inappropriate and
negligent treatment rather than one of informed consent. As to consent forms it was notorious that a
consent form does not contain everything that a doctor says to a patient.
Discussion
[24] It is clear that there was a significant period of delay
between the raising of the action and effectively the start of 2005 when the
present agents had taken over the case. Until that stage, virtually nothing was
done by the original agents to make progress in the action. Once the new agents took over, it is clear
that the position changed. They set
about obtaining the medical records, appropriate expert reports and the
necessary sanctions from the Legal Aid Board.
The fact that it took them until early 2006 to seek full legal aid
cover and that it was not until late 2007 that significant and lengthy
adjustments were made to the pleadings is not a reflection on the diligence
with which they applied themselves to their task. The reality was that the pursuer's condition
was a rare variant of vaginal agensis which in itself is a very rare
condition. Few surgeons in the UK
have experience of treatment of vaginal agensis and fewer still have experience
of such an unusual variant. The case was
undoubtedly complex, difficult and unusual and the solicitors had difficulty in
identifying appropriate and available experts.
When they did obtain expert reports they discovered that it was necessary
for them to make inquiry of a colo-rectal surgeon in addition to experts in the
disciplines of gynaecology and plastic surgery.
Given the state of the case when they inherited it, the difficult and
unusual nature of the case, the difficulty in identifying appropriate experts,
the number of disciplines involved and the need to obtain legal aid sanction at
various stages as well as delays encountered in receiving the medical records
and permission for precognition of the doctors involved, it seems to me that
the new agents cannot be criticised and that they acted with reasonable dispatch
in all the circumstances once they came into the case. The question is whether, notwithstanding the
best efforts of the present agents, the original lengthy period of inactivity
has resulted in a situation where there has overall been an inordinate and
inexcusable delay resulting in unfairness to the defenders.
[25] I have come to the conclusion that there has been and that the
action should be dismissed. In the first place, there was an immediate delay of
six years, at what on any view is a fairly critical period in an action such as
this. Whatever the time-bar situation, the acts complained of were already
three years in the past at the time the action was raised, and by the time the
present agents even entered the picture, were 9 years in the past. It is
said that the defenders had undertaken investigations, and that is of course
correct. However, it is highly
significant in my view that what they were investigating is in many material
respects quite different from what is now alleged. The case against Dr. Webster
is now wholly different and is made only 12 years after his last involvement in
the case. It is entirely unrealistic and unfair to expect him to address and
indeed to remember, all that might have taken place so long ago on the issue of
informed consent now being raised for the first time. The situation is even
worse regarding the new case made against Dr. Gilmore since no investigation
regarding that can be done beyond what is revealed by the papers. I recognise
that such a situation might have arisen anyway, given Dr. Gilmore's untimely
demise. However, I am of the view that had the original agents proceeded to
investigate and prepare the case with requisite dispatch, it is highly likely
that the cases pled would have been identified at a time when Dr. Gilmore could
have been asked about them. It took the new agents less than three years to
reach the stage of revising the pleadings, and that was in a situation where
they must have been to some extent hampered by the original delay of six years.
The original case against Dr. Gilmore has not been entirely altered but I do
not think it would be fair in all the circumstances even to let that case go
further.
Decision
[26] I will accordingly sustain the first plea in law for the first
defender and the second plea in law for the second defender and dismiss the
action.
