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OUTER HOUSE, COURT OF
SESSION
[2009] CSOH 22
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OPINION
OF LORD MATTHEWS
in
the cause
JOHN
McEWAN
Pursuer;
against
AYRSHIRE
& ARRAN ACUTE HOSPITALS NHS TRUST
Defenders:
________________
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Pursuer: Armstrong, Q.C., Tait;
Russell Jones & Walker
Defenders: Stephenson,
Devaney; R. F. Macdonald
17 February 2009
[1] This is an action in which the pursuer
seeks damages for certain losses said to have been sustained by him as a result
of medical negligence. As
Mr Stephenson, who appeared for the defenders, submitted in due course,
much of the factual background was not in dispute. The pursuer, who was born on 8 July 1963, was admitted to Crosshouse Hospital on the evening of 22 April 2002 with a
three day history of abdominal pain, nominally under the overall care of
Mr John McGregor, consultant surgeon.
X-rays identified an intestinal obstruction. From about the time of his admission he was
seen and assessed by Mr David Kingsmore, then a specialist registrar
in the third year of his higher surgical training, and by a
pre-registration House Officer. It was
initially thought that he might have a perforation of the bowel but that was
excluded by x-ray taken late on the evening of 22 April 2002. The x-rays were reviewed by
Mr Kingsmore in the early hours of 23 April 2002 and it was concluded that the pursuer had an obstruction of the
small bowel. Initially management was
conservative with the insertion of a naso-gastric tube and rehydration. That was an appropriate treatment at that
time in the hope that resolution of the problem would occur without
surgery. The pursuer was seen by
Mr McGregor as part of his ward rounds on the mornings of 23 and 24 April 2002 but by the latter date there had been no resolution, the pursuer's
condition having deteriorated. During
the morning of 24 April 2002 a
gastrografin meal was attempted unsuccessfully and there was a repeat
x-ray. By about midday
it was apparent that there should be surgical intervention. Operating theatres numbers 3 and 6 were
close to each other and Mr McGregor was scheduled to undertake elective
surgery throughout the day in one of them.
The pursuer's surgery was appropriately delegated by Mr McGregor to
Mr Kingsmore, who had sufficient experience to undertake such a procedure,
having performed such operations on previous occasions during his
training. Mr McGregor was not to be
present throughout the operation but was close by in the other theatre should
he be required to give advice or to assist.
On the afternoon of 24 April 2002 between about
2.00pm and 4.00pm the pursuer underwent a laparotomy to relieve the intestinal
obstruction. That operation was
performed by Mr Kingsmore. During
the procedure he opened the pursuer's abdomen and found a band adhesion causing
total obstruction of the small bowel about 1.5 feet from the ileocaecal
valve. An adhesion is a piece of fibrous
or scar tissue which may form following upon surgery and may mechanically
obstruct organs or other tissue, including the small bowel. An adhesion does not grow into but may stick
to the bowel wall, although a finger or surgical instrument can be placed
between the adhesion and the bowel. In
the pursuer's case it is probable that the adhesion causing his obstruction
formed consequent upon surgery undergone by him in 1994 to repair a ruptured
duodenum. A band adhesion in the context
of the small bowel is an adhesion affecting part of the small bowel
circumferentially and may or may not constrict the blood supply to the bowel
wall. The small bowel blood supply
derives from the mesentery, a fatty tissue running approximately parallel to a
part of the circumference of the bowel and which contains arteries and
veins. During the operation
Mr Kingsmore divided the band adhesion thereby relieving the obstruction
of the small bowel. After taking various
steps, some of which are the subject of dispute, Mr Kingsmore closed the
pursuer's abdomen and he was taken to the high dependency unit. Mr Kingsmore dictated an operation note which
is at page 95 of the Crosshouse Hospital Medical Records, number 6/7
of process. That operation note was
typed on 25 April
2002 and there is a handwritten addition on
it indicating the date of the operation and that the pursuer was in "HDU"
indicating the high dependency unit. The
operation note makes no mention of the appearance of the small bowel wall on or
after release of the band adhesion, nor does it record any steps by
Mr Kingsmore to satisfy himself that the small bowel was viable. Post-operatively the pursuer developed severe
abdominal pain. He became jaundiced,
hypotensive and oliguric. His scrotum
became black, swollen and blistered.
Generally speaking, in the course of 25 and 26 April he became
increasingly systemically unwell, the onset of his clinically apparent
deterioration being between 0430 and 1200 on 25 April 2002. Various possible causes
were considered by the medical personnel involved and it was not appreciated
until the afternoon of 26 April 2002 that he had
developed a form of necrotising fasciitis and that gas gangrene had
developed. In fact he had developed
clostridium myonecrosis. When the
likelihood of this was appreciated he was transferred to the intensive care
unit for optimisation of his condition before surgical treatment. On the evening of 26 April 2002 Mr McGregor and Mr Kingsmore took the pursuer back to
theatre where they undertook debridement of affected tissue, removing a
substantial part of the pursuer's abdominal musculature and scrotal
tissue. During this procedure the small
bowel was examined, including the area which had been beneath the band
adhesion. The small bowel had not
perforated before commencement of the surgery but it was found during the
surgery that the area of the small bowel previously beneath the band adhesion
was friable, or like wet tissue paper, and during handling by Mr McGregor a
hole formed in the area. Resection of
the damaged area of small bowel was undertaken and an anastomosis was performed
with the healthy ends of the bowel being joined together. The pursuer was then admitted to the
intensive care unit before being transferred to Glasgow Royal Infirmary on or
about 7 May
2002.
Post operatively an area of the resected bowel was subject to
histopathological examination and a report (6/7 of process at page 272)
showed inter alia that there was full
thickness transmural necrosis of part of the small bowel and that there was
extensive mucosal ulceration. It is
probable that by the time of the surgery on 24 April 2002 irreversible ischaemic damage to the small bowel wall beneath the
band adhesion had occurred. It is in
dispute as to whether this was or ought to have been apparent at the time of
that surgery.
[2] Mr Kingsmore's judgement that it
was viable was in fact wrong but it is disputed whether his error amounts to
negligence. The bacterium responsible
for causing the pursuer's post operative illness was clostridium perfingens,
which is found naturally in the human gut.
It was due to translocation of that bacterium from the lumen of the
small bowel.
[3] It is fair to say that this is a rare
occurrence, the most common complication of bowel wall death being perforation
giving rise to peritonitis.
[4] At Glasgow Royal Infirmary the pursuer underwent
plastic surgery to provide skin cover to his abdomen and reconstructive surgery
to his scrotum. He spent about
nine weeks in hospital and was unable to return to work until October
2002. He has been left with a
substantial abdominal cosmetic deficit, altered sexual function and an
inability to express semen in his ejaculate.
His difficulties will be expanded upon in due course when I come to
consider the question of damages.
[5] The principal issue between the parties,
on the merits, is whether there was at the time a usual and normal practice in
respect of examination of the small bowel following release of a band adhesion
and, if so, of what that practice consisted, whether Mr Kingsmore did or
did not adopt that practice and whether the course which he did adopt was one which
no surgeon of ordinary skill would have taken if he had been acting with
reasonable care. See Hunter v Hanley 1955 SC 200.
[6] Broadly speaking the pursuer avers that
the development of clostridium myonecrosis was caused by Mr Kingsmore's fault and
negligence. In essence it is said that
he did not properly assess the viability of the area of the pursuer's bowel
underlying the band adhesion and did not follow the normal practice and did not
identify the area of ischaemia. He did
not make any comment on the state of the bowel.
It is said that no reasonably skilled and competent specialist registrar
in general surgery acting with ordinary care would have failed to recognise the
area of ischaemia and either resect or oversew the area. No such registrar acting with ordinary care would
have failed to record the state of the bowel in the operation note. If he had fulfilled his duties it is said
that clostridium myonecrosis would not have occurred.
[7] There was originally a case pled against
Mr McGregor in respect of an alleged failure to exercise adequate
supervision over Mr Kingsmore but having heard the evidence, Mr Armstrong
quite properly did not insist upon that case.
[8] I turn now to consider more closely the
merits of the action.
The merits
[9] At the outset Mr Armstrong QC who
appeared for the pursuer tendered a joint minute which the parties had agreed
in connection with certain photographs and medical records. I allowed him to lodge late a further
inventory of productions containing the CV of a witness.
[10] Mr Stephenson who appeared for the
defenders lodged an amended Closed Record at the bar as well as a supplementary
list of witnesses and an inventory of productions containing certain medical
records.
[11] None of these matters was opposed.
[12] The first witness was the pursuer himself. However since his evidence did not
particularly assist me on the question of liability I shall deal with it when I
come to consider damages in due course.
[13] The first witness as to the merits was
David Brian Kingsmore, the surgeon who carried out the operation on 24 April 2003. He was currently at the
Western Infirmary in Glasgow. He was a general surgeon by
training and sub-specialised in vascular surgery and transplant surgery. His CV was 7/1 of process. He gave details of his early career. After spending one year at pre-registrar
house officer level he had two years of basic surgical work as an SHO, then three
years studying for an MD on a part-time basis while still working and then another
year of general surgery with vascular interest and one year of general surgery
with gastro-intestinal interest and then he entered the higher surgical
training scheme. This was a five year
programme. Page 3 of his CV was a
summary of his surgical training. Year
three of the five year programme was at Crosshouse and he began that in October
2001. He spent approximately a year at
different institutions. He had been at
Crosshouse for around six months at the time of the operation as a specialist registrar.
[14] He was asked some questions about medical
records and indicated that they provided a means of communication to other
doctors and acted as an aide-memoire. They were not written as a defensive
document. They showed progress,
conditions, treatments and outcomes. It
was important for GPs to know why their patient was in hospital and what
ongoing treatment he required. They were
important documents. They ought to
include dates and times as well as names and signatures. There were guidelines about what should be
included and they should have adequate descriptions of findings and plans of
treatment. They should be accurate. They should also be as complete as possible
but such records were notoriously inaccurate.
It would be a fair criticism of an inaccurate note to say that it was
deficient.
[15] He carried out the operation in question on
24 April 2002. He had taken a history from
the patient and his impression was of a possible bowel perforation. A
gastrograffin had been unsuccessful. It
was both a diagnostic and therapeutic intervention. At page 42 there was an indication that
Mr McEwan might need a latarotomy.
The witness saw him when he first presented and remembered the blood
tests and initial treatment. His urine
output was unsatisfactory and he was dehydrated. Steps were taken to relieve that at 0200
hours and he was seen again at 0430 when he was responding to fluids. He was seen again at 0830 and 1630. All of this could be seen at page 439, part
of the nursing notes. No perforation was
noted on the x-rays which had possibly been taken at about 8 or 9 o'clock and which were reviewed by the witness. The x-rays were diagnostic of a small bowel
obstruction. Where such an obstruction
persisted it could lead to perforation but the diagnosis was of an obstruction.
[16] The operation began at 1400 hours on 24
April and finished around 1545. As I
understood it he said that the operation involved initially incising the old
scar from the previous operation. A
standard procedure would be a midline incision to start off with. The ultimate aim would be to relieve the
obstruction and exclude any other pathology.
After the midline incision with a knife there would be a further
procedure down to the deeper layers with diathermy to minimise bleeding. One cut through the fibrous layer of muscles
containing the abdomen and then into the pre-peritoneal fat layer and the
peritoneum itself was incised between two arterial forceps. Then the abdominal viscera would be examined
for abnormalities. The witness said that
he looked at everything. The bowel was
distended, in other words grossly swollen with air and fluid. He lifted it out and put it onto the patient's
chest. The site of the blockage was then
freed and how that was done would depend on what was causing it. If it was a band adhesion that would be
divided by cutting it. The adhesion
would be around the outside of the bowel.
The bowel would be distended above it and below it. Cutting the adhesion reduced the obstruction
and the bowel would then be taken out of the cavity for inspection. One would then inspect what had happened so
far and the bowel would be looked at from top to bottom to see if it had been
damaged. One would also look at what had been done operatively.
[17] The obstruction having been relieved and
the bowel put back into the cavity the wounds would be closed. The bowel would be checked to see if it was
viable or healthy or not and also to see if there was any pathology distal to
it. One would then check to make sure the
surgery had not damaged any other structures.
The viability check was not an exact science. If the bowel was generally pink with good
profusion of blood vessels and had a sheen off it and constricted well then
that would be a good sign. If it was grey
and falling to pieces then the opposite would be the case. One had to be satisfied that the tissue was
viable. It could be seen when the
obstruction was removed and on looking at it again one could see if it was
getting better or worse or not changing.
That was straightforward if an extensive area was involved but less if
the area was small.
[18] If one was unsure one could put warm
packing in the bowel to heat it up and then one would leave it for a time
before coming back to it to check it.
The particular operation was annotated at page 95 of the notes. He was asked how he dealt with this
particular patient and said that the colour had not returned to normal at the
point of constriction so he covered it with a warm pack and proceeded with the
rest of the laparotomy, examining the rest of the abdominal viscera starting
with the stomach and ensuring that the naso-gastric tube was in the right
place. He then looked at the duodenum,
especially the site of the previous injury and checked the liver and the
gallbladder. All was well. He then looked at the colon starting at the
caecum and then into the ascending, the transverse and the descending and
sigmoid colon and eventually looking at the rectum before going back to the
affected part. It had improved in
colour, having moved from a dark red to a lighter red. It looked viable. He then twice examined the small bowel for iatrogenic
injury. Then he closed up.
[19] He agreed that there were four
checks. The first was on division of the
adhesion. The second was when he checked
the viscera etc and went back to the affected area to find it had lightened up
and was therefore viable. The third and
fourth were two further checks of the whole bowel before he closed.
[20] He was asked what expertise he had of this
type of operation and was taken through 7/5 of process which contained a
chronological operations record. The
search started on 1 January 1997 but the first
operation referred to therein was on 10 December 1999. There were, prior to the
current operation, nine operations described in exactly the same terms namely
laparotomy, division of adhesions. The
first of these was on 1 June 2000 and there were
further ones on 5 September 2000, 17 February 2001, 27
April 2001, 16 May 2001, 2
October 2001, 17 December 2001, 28
March 2002 and then the current one.
[21] There were other operations referred to
which might have included division of adhesions for example on 15 March 2000, 8
June 2000 (2) and 29 and 31 August 2000.
[22] He could not say for certain that they all
involved division of adhesions.
[23] An examination of 7/2 of process revealed
that he had done more operations than those revealed in 7/5. It appeared that he may have done 37 of
them. The computer search did not cover
previous operations since records were not on computer prior to the first
entry.
[24] The small bowel was very rarely resected
for other reasons than adhesions. If it
was grossly damaged that might happen but it was fairly uncommon.
[25] He was then questioned about some of the
pre-operative measures before Mr Armstrong returned to the operation note. That
set out the procedure as follows:
"Procedure. The old midline
scar was excised and deepened through the anterior abdominal wall. He had dense adhesions in the under surface
of the abdomen to the small bowel and these were gently mobilised using sharp
dissection. The wound was extended and the site of obstruction seemed to arise
in the ileum 1.5 feet from the ileo-caecal valve."
That was simply to
show the location of the problem. It
went on:
"There was a tight band adhesion here. This was divided and released. Beyond this the bowel was completely
collapsed. The small bowel contents were
milked into the stomach and the wound was closed with two looped nylon and
subuticular Dexon to skin."
There was no
reference as to whether the tissue was viable or not because that was self
evident. If it was not viable he would
not have left it and just sewn up. He
was asked why he did not say it was packed up but in answer he said that he
thought it was viable. The use of a warm
pack was a normal event. It was used
partly to stop hypothermia and it possibly had some therapeutic effect in that
heat might assist in speeding up the process, although he did not know of any
studies comparing warm and cold packs.
[26] The bowel was looking damaged but it was
not ischaemic. Ischaemia had a
characteristic look to it and the bowel did not have it. It looked bruised but it pinked up.
[27] He did not consider putting that into the
notes. He could not say that he never did
it although he did do it since he had found himself in this position. If he had written down what had happened he
would not be in the witness box. He then
went on to say "I was sure that I had done the right thing and I hadn't." He said he was not particularly proud of it.
[28] He did not have the records of his
previous operation to say what he noted as a matter of routine and what he did
not. His reference to doing the right
thing was, he said, based on subsequent events. Mr McEwan was operated on as an
emergency two days later and the bowel at the point of constriction was
dead. He had made a decision at the
first operation that it was viable and he had left it alone.
[29] He was sure it was viable and agreed with
Mr Armstrong who suggested that he "knew" it was. He was asked whether he always said that he
inspected the tissue four times and he said that he was almost certain he had
never said that. He was certain that he
had said that he always checked the small bowel before he closed up and he was
referred to his previous evidence. He
agreed that there were four checks but he had no idea if the number four
appeared anywhere in what he had said.
He must have looked at the area when he milked the small bowel.
[30] He remembered the operation fairly
clearly. He had been trying to take care
of the man and he had almost died. He
was asked whether he had ever said that only three checks had been carried out
and said he did not know. At that point
he was referred to the defences, number 8 of process, and to answer 6
thereof. That contains,, inter alia, the following averments:
"During the said surgical procedure Mr Kingsmore examined the whole
of the pursuer's bowel checking each section. He checked the front and back of
the bowel twice in accordance with his usual practice hereafter returning to
check the point of the bowel where obstruction had been identified for a third
time."
He said that that
was directly related to an expert report which falsely indicated that there was
a bowel perforation but I did not quite understand that answer. He agreed that
the only person who could have supplied the information in answer 6 was himself
and he was asked again whether he checked the bowel three times. In relation to numbers he said that they were
not instructions for an air fix kit.
[31] He was then referred to the closed record
at page 9A-D where the following is said in answer 4:
"The small bowel at the site of the adhesion was bruised. After release the area 'pinked up' and there
was good capillary flow to the area. In
the course of the procedure Mr Kingsmore undertook two checks of the whole
bowel. He then returned to the area
where the adhesion had been and checked that area again. He again returned and checked the said area
after milking the contents of the small bowel into the stomach and before
closing the surgical wounds. The status
and viability of the affected area was therefore checked by Mr Kingsmore
four times."
[32] He said that at least four checks were
made. The first was when the tissue was
released, check two was when it was seen to be pinking up and then there were
two checks at the end. He agreed that
the answers in the Closed Record might tend to indicate that there were six
checks.
[33] He then reiterated the steps he took and
said that numbers in relation to checks were completely artificial. Checks were
an integral part of the whole procedure.
He remembered the operation clearly.
[34] However, there were some things he did
remember and other things he did not. For example, he did not remember milking
the content of the small bowel into the stomach. He remembered clearly dividing the band and
checking whether the tissue was viable because of what happened two days
later. There was hardly a day went by when
he did not think about the purser.
[35] He was asked how often he looked at the
tissue to see if it had pinked up and he said that he could not be certain
about the number of times. He looked at
the area when he first released it, did so again when he was reviewing it and
must have done so when he milked the contents of the small bowel. He also saw it twice when he checked at the
end. All this was normal practice. He would, however, have looked at the area
several times during the course of the whole operation. The checks "were not really a separate part
of the process."
[36] The witness agreed that it was in the
patient's interests to confirm that the tissue underlying the adhesion was
fully viable before the operation was ended and that something would have to be
done if it was not fully viable. If
after a period of time it did not appear that the tissue was going to revive
then the area would be resected and the two ends joined together. If the dead segment was left there were likely
to be consequences specifically in connection with the leakage of bowel content
into the peritoneal cavity. There would
be loss of physical integrity and the patient would suffer from peritonitis and
other problems such as sepsis. Organs
could be compromised due to septicaemia. The surgery was a straightforward
procedure and the checks were concerned were a basic feature which were
intrinsic to it. Mr Armstrong suggested
that in carrying out the operations he failed to identify that the tissue under
the adhesions was not fully viable and he denied that. He said that he did not fail to check but his
decision was quite clearly wrong. His
technical skill was adequate and he made a judgment on the viability of the
tissue which was wrong.
[37] He denied that he had not properly
examined it. It was suggested that if he
had properly examined it that would have appeared in the note but he said that he
did not record that specifically because it was intrinsic to the
operation. Many aspects of the procedure
were not recorded. He would not record
that he checked it and did not find it viable since that would make no
sense. He should have written it down
for defensive purposes. He agreed that
in operations where the viability of tissue was relevant it would be
appropriate to note that there was an examination of it and what its state
was. He said that in 5% of operations
where the bowel was resected there was leakage.
[38] He regretted not writing down what he had
done. He agreed that it was a good idea
to note the fact of the examination and it would have been a good idea on 23 April 2002.
[39] He was referred to the GP records number
6/2 and to page 96 thereof. Those
related to the 1994 operation and at page 97 there was a reference to
examination of the tissue and to its looking healthy. He agreed that that was an example of
confirmation of an examination and that the state of the tissue was an inherent
part of the operation just as it had been in 2002. He was asked why it was appropriate for another
surgeon to note that in 1994 but he thought there was no need to do so in 2002. The suggestion was made by Mr Armstrong that
there was no record of the examination because it had not been done. Mr Kingsmore said that the operation note in
1994 was a legal document because the need for the operation arose from a car
accident and a court appearance might ensue so more information had been
noted. He had not regarded the document
in this case as a legal defence.
[40] In the second place, the operation in 1994
was a more invasive procedure with a higher risk of complications and the
doctor had to justify why he had put the patient at that higher risk. There was a greater onus to mention the
examination in the record.
[41] He disagreed with a suggestion that he had
not carried out the checks. He likened
the operation to taking a car for a MOT. Part of that was to make
sure that the rear left tyre was not flat.
One would see the tyre around forty times but one would not note that it
had been checked forty times. He had
manipulated the area and effectively had walked round the car forty times
during the operation. He saw it many
times during the operation and during this security check at the end of
it.
[42] He presumed that the first operation had
been in connection with a car crash but when it was put to him that it resulted
from a football injury he said that the same procedures would apply because
people could be sued for injury on a football pitch. I found this answer to be
highly unconvincing.
[43] He was then asked about Mr McGregor's role
in the equation. He said that he came in
at the end of the operation to see if he was getting on alright. The patient was still under general
anaesthetic and he was closing the abdominal wound to his best recollection. He did not note down when Mr McGregor came in
and did not recall precisely what part of the abdomen he was closing.
[44] He was referred to 6/7 of process at page
95 and was asked how much time Mr McGregor spent with him. He said that he was not focusing on that
because he was performing the operation.
Mr McGregor spoke to him when he was doing it. He came into theatre and he saw him. At some stage he came into his field of view
and asked him whether everything was alright or something like that. He did not recall if he turned round to see
him and did not remember his exact words.
In reply he would have said something to the effect that everything was
alright and that Mr McEwan had had some adhesions getting into the abdominal
cavity. It was of no significance that
Mr McGregor's name was not on the note.
He was a supervising consultant and that would not be expected. People would have known that he was a supervising
consultant because he was the consultant in charge.
[45] He had spoken to Mr McGregor about the
operation beforehand. He did not recall
the exact words which were used.
[46] He agreed that things did not go well
after the first operation and that a second one was needed. The operative note of that is to be found at
page 94. The operation commenced at 1845
and finished at 2040 hours, according to the anaesthetic record at page
90.
[47] Mr McGregor's name did appear on that note
but he was more involved. The witness
himself was scrubbed up on the other side of the patient and the operation was
performed by both of them. The witness
was aware of what Mr McGregor did in theatre and participated fully himself in
the operation. He said that he kept
thinking that Mr Armstrong was trying to trick him and in general that was in keeping
with his whole approach to the evidence which appeared to me to be somewhat
defensive.
[48] A piece of bowel was resected because the
section of bowel was dead in a diameter of a few millimetres. On delivering the small bowel to the surface
it tore in the hands showing that its structural integrity was
compromised. The two millimetre band was
dead. He did not remember discussing
before the operation what was to happen with Mr McGregor. There would have been some discussion about
the previous operation before it.
Specifically Mr McGregor wanted to know exactly what he had done to
determine why Mr McEwan had his complaint.
Whoever said what, the segment of
tissue which had been discussed in evidence would be investigated in the course
of the second operation. That was
because there was a man who was critically ill and if there was an ongoing
problem with the abdomen that was not treated he would not recover.
[49] He was then referred to page 54, a note of
what happened in theatre but said that that was Mr McGregor's and he was not
involved in the content of the note.
Similarly Mr McGregor compiled the operation note at page 94.
[50] The piece of bowel which was resected was
the same piece of bowel that underlay the adhesion. It was sent to histopathology and a report of
that can be found at page 272. In
particular the microscopy report said the following:
"Sections from the point of constriction described above show
transmural necrosis with extensive necrosal ulceration. Sections from the vicinity of this area show
similarly severe ischaemic changes without full thickness necrosis. The changes diminish in severity away from
the central area and as one approaches the section margins, they are modest
with simple submucosal oedema. There is
quite marked serosal inflammation of the section margins but this is
generalised throughout the specimen."
He said that
transmural meant full thickness so that the piece of bowel under consideration
was completely dead through its full thickness at that point.
[51] Notwithstanding that, he still adhered to
his denial of the suggested failure to check the bowel. He was asked whether he was saying that the
bowel was fully viable when he completed the operation and he said that he
checked the area and it appeared viable to him.
[52] In cross-examination, Mr Stephenson first
of all embarked on a general exercise to explain the anatomy of the area but I
need not go into that in full. Peristalsis ran the length of the small bowel
and squeezed material into the back
passage. That could be seen if it was
working and the abdomen was open and it could also be stimulated by
flicking. The small bowel itself had a
structure of three different tissues from the inside. There was a soft velvety layer known as the
mucosa, then a muscular layer which gave rise to the contractions and then a
superficial layer or serosa on top of that.
If the abdomen was opened one would see the superficial layer and if it
was healthy it would be pink with a shiny or glistening appearance. It had a visible blood supply. Within the mesentery there were blood vessels
and these exited into the wall of the bowel and provided it with blood. Blood vessels could be seen both in the
mesentery and in the small bowel. They
were very small on the surface of the bowel and indeed were capillary
vessels. Ischaemia was a general term
which meant there was no blood supply and it was implicit in that that there
was no oxygen. All tissues needed blood
and oxygen and if the blood supply was reduced the tissue could be described as
ischaemic. There did not have to be a
complete lack of blood supply for there to be ischaemia. If the blood supply to a part of the small
bowel was reduced then there might be ischaemia and damage. There were degrees of ischaemic damage. The bowel's functioning might be impaired in
a particular area because of a lack of blood supply and there might be other
areas adjacent to it lengthwise or depth wise which were more resistant to
iscahemia. The area of damage depended
upon the precise nature and extent of the compromised blood supply. It was not necessarily the case that if there
was reduced blood supply there would be full thickness iscahemia. The damage might be short of that and might
occur at different levels in the structures in the bowel. The only visible part of the bowel when a
laparotomy was done was the serosa. It
followed that if there was no visible damage to that then nonetheless there
might be other damage within the structure which could not be seen. The witness was asked what the visible signs
of ischaemic damage in the serosa would be.
To a naked eye there might be a range of colourations from grey/black
dead tissue to lighter shades of purple, red, pink or even white. White would only imply that no blood was
getting to the area but that would not indicate the recoverability of the
area. Where it was grey or black it was
dead.
[53] If the area was red or purple that did not
give any indication of the ability of the tissue to recover. If there were ischaemic changes in the serosa
it would become dull. Of itself that
would not suggest that the changes were irretrievable.
[54] Ischaemia might impede peristalsis. The muscle would become flaccid and be unable
to contract. He repeated that flicking
the bowel could stimulate peristalsis.
If it contracted it would indicate that the muscle was working but if
not it might indicate that it was dead.
If ischaemia resulted in death of the bowel it might perforate.
[55] He was then asked about the contents of the
small bowel. In normal circumstances the
stomach acidity would destroy most organisms and the small bowel would not
normally contain a lot of them. He would
not expect to find many bacteria in the contents of the small bowel compared to
the large bowel. Bacteria were aerobic or anaerobic, the former needing oxygen
to proliferate and survive and the latter doing so without oxygen. Clostridium was an anaerobic bacterium. If bacteria were present in the small bowel
they would not normally be expected to escape into the surrounding
tissues. The integrity of the bowel wall
would stop that from happening. If the
bowel became ischaemic the ability to block bacteria was compromised. A hole was not necessary. The bowel could be structurally intact but
nonetheless functually incompetent. The
process of moving through the bowel was called translocation. The functional barrier to preclude it relied
on both the contents of the small bowel, the condition of the small bowel and
the integrity of the wall and where there was severe illness or blockage of the
bowel both preventative mechanisms might be incapacitated. Ischaemia could permit it but that was not
necessary. When the bowel was blocked
the stomach and other organs continued to process food down it and that had the
affect of distending the wall. The
contents stagnated, allowed the conditions for bacteria to proliferate and
compromised the ability of the wall to prevent them from getting out. They could escape into the peritoneal cavity
and cause infection. There were many
blood vessels on the way through the
bowel wall and the bacteria could compromise the blood supply and give rise to
a systemic infection or septicaemia.
Bacteraemia was simply the presence of bacteria in the blood whereas
septicaemia was the consequence of that.
The body's response to a blockage was to try to relieve it by having
ever more bowel activity to try to squeeze the contents past the blockage. If the blockage persisted there was an
inflammatory process. The body would send
inflammation cells to the area of constriction and there would be an increase in
the local blood supply. If there were bacteria
in the stagnant zone they might get into the blood supply. The stagnant contents were an ideal
environment for anaerobic bacteria so the obstruction might promote their
proliferation. There was not likely to
be a problem if the bacteria were contained within the small bowel but if clostridia
escaped from it they had the potential to cause very serious infection. One of the infections could be clostridium
myonecrosis which could give rise to gangrene or synergetic gangrene. That occurred where there was no blood supply
and the ischaemic tissues were an ideal circumstance for the proliferation of
clostridia which would spread along the muscle plains and tissues producing
gases such as CO2 or other gases.
There would be local destruction of tissues and severe septicaemic
insult and the body would undergo organ failure. Other toxins would also come into play. One of the infections which led to the
destruction of tissues was necrotising fasciitis and clostridium myonecrosis
was a subset of that. It was a rare
condition. He had come across
necrotising fasciitis before but not clostridium myonecrosis. The more usual problem with the abdominal
cavity when there was a leakage of content into it was peritonitis, which was
an inflammation of the lining of the abdominal cavity marked by severe pain in
the abdomen. One would not expect clostridium myonecrosis.
[56] There
were recognised treatments for peritonitis involving a laparotomy and the
abdominal cavity had to be washed out.
If the small bowel was compromised the treatment would depend on what
the problem was. At some point the
surgeon might want to resect, in other words cut out the compromised section
and join the two ends of the line together.
That was known as anastamosis. It
could be done by suturing or staples. Up
to two thirds of the small bowel could be cut out. One would have to be confident of being able to
carry out the operation and one did not want leakage from the joined ends. It was well recognised, though, that there
was a high leakage rate. This was
extremely serious involving a lengthy hospital stay, possible peritonitis and a
higher death rate. Had a patient been
through one operation having a second operation to repair the leak might be as
much as his body could stand and resection was not something to be taken
lightly.
[57] Doing a
resection was something which was to be welcomed while a surgeon was
training. There were various levels of
technical skill in any skill-based profession and the higher the difficulty the
less likely were the opportunities to do the work. An anastomosis was a key component of basic
surgical training. It had to be carried
out by the surgeon himself because one had to experience it in order to be able
to do it.
[58] If
there had been an obstruction with a build up of bacteria and the bacteria had
proliferated if the bowel was opened up then there could be gross contamination. That was another reason to think twice before
resecting.
[59] He was
then asked about adhesions. They bound
things together and were the result of an inflammatory process. There were very few congenital adhesions and
they were almost exclusively the result of a pathological cause. They could be a result of or a reaction to an
injury or surgical intervention. They
could form in a few weeks and mature over many years but they did not
necessarily give rise to problems. They
were a common consequence of surgery. On
the bowel they prevented the bowel from functioning and could allow it to twist
around itself. One did not interfere with them, though unless they were causing
problems.
[60] He had
not heard of the concept of a loop adhesion.
A band adhesion happened where something like a rubber band constricted
the bowel although it did not have to go all the way round. The main point was that it was compressing
the bowel. One would not need to go
straight to surgery to relieve an obstruction in a bowel. The treatment involved dividing the adhesion
and in doing so one would create at least two more. The first port of call was conservative
management. A naso-gastric tube might be
inserted and further blockage would be prevented by disallowing the patient
from taking any food. Even if the
problem was resolved people tended nonetheless to have recurrences. If it was not resolved then intervention had
to be surgical. If the problem were
associated with an adhesion that had to be cut through in order to free the
bowel wall. It was not an unusual event
to have to free adhesions. It was
extremely common especially if there had been prior surgery. It was bread and butter work for a general
surgeon and was entirely common. It was not technically demanding.
[61] Everything
which had been discussed so far was extremely basic.
[62] At this
point Mr Stephenson went on to explore with the witness his surgical
training. There was a generally
recognised approach. That involved
watching, then assisting, then doing procedures with an experienced surgeon
watching, then seeking advice if needed and then flying solo. That was the approach which the witness
took. He said that he would only expect
surgeons he trained to be able to undertake such an operation as the one under
consideration when he was confident in their ability. He would expect them to be able to do it in
the second half of their training during the higher surgical training. Generally after three years he would expect
them to be able to divide adhesions.
[63] He was
referred to his CV, production 7/1. That
was not prepared for this proof. He
graduated MB ChB in 1992 and became FRCS in general surgery in 2004 and MD in
2005. His training began before 1993
when he was a pre-registrar house officer.
From August 1993-July 1995 he was in the Western Infirmary, his first
ward being Accident and Emergency. He
did general surgery, neuro surgery, cardiothoracic and orthopaedic surgery as
well as conducting laparotomies. His
work included dividing adhesions in the small bowel. From 1995-1998 he was a research fellow at
the department of surgery in Glasgow and his duties
in theatre were reduced. From August
1998-July 1999 he was a senior house officer III in Vascular/General surgery at
Gartnavel Hospital. That also involved the same type of
operation. From August 1999-August 2000
he was in the gastro-intestinal unit at Gartnavel dealing with the lower
gastro-intestinal area and that would also involve the same type of
operation. In year one of his higher
surgical training from December 1999 to September 2000 he was involved in renal
transplantation at the Western Infirmary.
That overlapped to some extent with his work at Gartnavel. He had to do laparotomies not for the
purposes of transplants as such but in surgery for people with renal
problems. That would include dealing
with the small bowel. In year two he was
at Dumfries & Galloway in general surgery from October 2000 until September
2001 and he was also doing the same type of operation. In year 3 he was at Crosshouse from October
2001 to September 2002 doing general surgery and including this type of
operation. That was the period when the
operation under scrutiny took place.
Since April 2002 he had continued to be involved in laparotomies.
Currently he did elective operations on the abdomen and also in emergency cases
and worked on people with renal failures and on transplants and generally
patients who needed vascular surgery. He
regularly carried out operations involving dividing adhesions in the small
bowel. Under reference to page 4 he
indicated that he was one of twelve general surgical consultants who provided
emergency cover in addition to providing the surgical care of patients with
renal failure. This entailed a weekly
throughput of 90-100 emergency admissions and the urgent review of 20-40 inpatients. One week in twelve he had to deal with all of
these. About 5-10% of his work involved
laparotomies. He was asked about his
particular role in connection with checking the blood supply to the bowel. He
said that that could be compromised either over a period of time or over a
period of minutes. He was now
responsible for restoring the blood supply to the bowel if such was obtainable.
Patients would be referred to him or the vascular surgeon on call and the
procedure could be either on an emergency or a non-emergency basis. He would be
called into ongoing operations from time to time.
[64] Perfusion
was the term used to describe how adequately the bowel would be supplied with
blood. He had to consider this question
in connection with the small bowel. He
did not have that special interest back in 2002 but he did now.
[65] Page
five dealt inter alia with his
operative experience. It indicated that
for general surgery he would perform in a year 15-20 laparotomies as
emergencies, 20 appendicectomies, 30-50 hernia repairs, 20-30 cholecystectomies
and 15 large bowel resections. That was
still the case. He did laparotomies for
gastro-intestinal complaints as well as other areas of his practice. As well as large bowel resections he did
small bowel resections.
[66] At page
eight details were given of his memberships of various organisations. He was a level 2 auditor for the Scottish Audit
of Surgical Mortality. He explained that
if a patient died having been under the care of a surgeon the case notes were
summarised and a level 1 auditor would examine them. If there were areas of concern then the full
records were sent to a level 2 auditor for consideration. He had been on the Patient Safety Board under
the general ambit of the Royal College of Surgeons at Edinburgh. He and several other people interested in
patient safety had formed this body to try to unify the approach to improving
the quality of care of patients in Scotland. The Clinical Governance Committee of the
Western Infirmary was a body which was concerned with the quality of care,
especially in the review of incidents in hospitals, and he was a member of
that. Pages 9-13 set out his various
publications. He had also published on
infections in connection with surgery of the bowel in the Lancet and on
necrotising fasciitis after surgery and had written articles in connection with
patient records.
[67] 7/2 was
prepared by him to set out his surgical experience in the context of this
case. It dealt broadly with his
experience as a special registrar and as a senior house officer grade 3. Most of the document was in connection with
elective surgery but on page two the emergency surgery details appeared. He had prepared a summary at the bottom of
page two to draw together the types of operation which most closely
corresponded with that in the current case.
These were colorectal resections, all laparotomies and small bowel
obstructions. 7/5 was a computer
printout. He had been asked to look at
operations with precisely the same name as the one under consideration but that
did not make sense. Experience was
gained in breadth and in depth and the ability to perform surgery should be
gauged both in connection with the breadth of it and in connection with its
specifics. It was unrealistic to look in
isolation at operations involving division of adhesions and not consider other
operations where that work would have been carried out but where the operation
was given a different description because of the main procedure which was
involved.
[68] He had
carried out 41 colorectal resections as a specialist registrar and 17 as an SHO
grade 3. These had been supervised. He had performed 27 alone. The figures for all laparotomies were
separate from the colorectal resections.
He performed 37 as a specialist registrar and 25 as an SHO all under
supervision and had performed 26 of these on his own. The reference to small bowel obstructions was
simply to those operations which had been for that alone. There were nine of these as a specialist
registrar and 17 as an SHO, all supervised, and 6 on his own. All of these operations had taken place
before April 2002.
[69] By
April 2002 he had sufficient experience and knowledge to do this
operation. He had been undertaking such
surgery for a period of time and had no qualms in doing it without a consultant
being present. He had no doubts about
what he was doing and would not have expected a consultant to insist on being
present or checking what he had done. It
was normal procedure by April 2002 for him to do it on his own without a
consultant being present. If he had
thought that a resection was required he would have been able to do it in April
2002.
[70] As far
as Mr McEwan himself was concerned the witness was the first doctor to see him
on 22 April. That was on the ward to
which he had been taken following his admission. Reference was made to 6/7 of
process. Page 40 was his entry
indicating that he saw him at 8.30 pm. His impression was that there might be a
perforation to the bowel and the treatment was to be by intravenous fluids,
analgesia, blood tests, x-rays and possibly an operation. He was seen thereafter by a junior doctor at 9 pm. Page 41 gave
details of blood tests. The haemoglobin
test was not unusual. The white blood count was 12.5, which was mildly
elevated. An inflammation or infection
might be suggested if there was significant elevation. The bilirubin was at 28. That was as a result of the breakdown of haemoglobin
and if it was elevated then it indicated jaundice. A count of 28 was only mildly elevated. The CRP or C reactive protein was 11 which
was also very mildly elevated. If it was
highly elevated such as 300-400 then it would indicate severe illness.
[71] All of
these signs tended to be against a diagnosis of perforation. The x-ray report was at page 285 and
indicated that he was examined at 1026 on 23 April. Pages 439 to 441 gave indications of the
pre-operative investigations. I need not
go into these in any great depth but at the end of the day a laparotomy was
indicated. The operation itself started
at 1400 hours on an emergency basis.
There were other elective operations to be carried out that day. He did not remember what theatre he was in
but Mr McGregor was next door some twenty feet away and if advice or assistance
was required he could easily have obtained it.
The operation note would have been typed the next day and the patient
was taken to the high dependency unit afterwards. In April 2002 he did not
think it necessary to record something if it was not adverse or where what he
did record clearly implied that the other matter had been done. Clearly the viability of the small bowel was
integral to releasing the band. The fact
that the bowel was not resected implied that it was viable in his opinion. In retrospect he wished that he had recorded
the inspection because he felt that it was unlikely that he would be here
today. For that reason he did now record
such matters. The view that the bowel
was viable was a judgement. That
involved partly a balancing of comparative risks. He had a memory of this operation although he
did not remember every operation in 2002.
The patient was operated again within two days and he took part in that
further operation. A huge amount of
tissue had had to be removed and the patient was close to death. That was traumatic for the patient but also traumatic
for the surgeon and was not easy to forget.
He was asked to describe what he saw when he divided the band and he
said that the bowel was tethered down into the pelvis and he could not deliver
it. He retracted the bowel to see where
the tethering was and found that it was a band.
He used scissors to divide the band and allow the bowel to be lifted out
of the abdomen. On releasing it there
was a single linear mark on the bowel that was dark red in colour. It was a straight line a few millimetres
wide. It went most of the way round the
bowel. There was no mark where the
mesentery attached. There was nothing
else apparent on the surface. He did not
recall specifically whether the surface had its sheen on releasing the
bowel. He then set aside the particular
segment from the rest of the bowel to come back to it later, in other words he
put it laterally onto the edge of the wound.
It was in the way of his vision.
He did not check peristalsis at that stage. Then he wrapped it up in a damp cotton swab to
keep it from dehydrating and give it time to recover so he could see if it
changed in appearance. Then he completed
his inspection of the abdominal contents including the rest of the length of
the bowel, the stomach, duodenum, liver, gallbladder and large bowel. There was nothing abnormal. He then returned to the area which had been
delivered perhaps five to ten minutes later although he did not take note of
the time. He then inspected that area to
see if it had changed in appearance and he found that the colour had changed
from dark to lighter red. The bowel
constricted and on the surface he could see small capillaries. He flicked it and there was peristalsis from
above the constricted area to below it.
The capillaries were round the area of the tissue where there had been
an adhesion and he thought that it was viable.
He had no doubts about the matter.
The next thing he did was to milk the small bowel contents up into the
stomach so that it could be aspirated in the naso-gastric tube and then he
checked the small bowel along its entire length before closing the
abdomen. His check was to see if he had
caused any injury and he found none.
During the course of that check he saw nothing to change his opinion
about its viability. The area affected
would have been in full view throughout the operation but he specifically
checked it on a number of occasions. Unfortunately
necrotising fasciitis set in and a further operation was set up. The note of that was at page 94. There was no perforation in the small bowel
initially but a hole developed later when it was handled. The word friable meant that it had lost its
structural strength and the tissue was like wet tissue paper.
[72] He
agreed with the proposition that that meant that the small bowel wall at the
point where the adhesion had been was not viable. He was asked whether he accepted that there
must have been a process between the two operations whereby the small bowel
became increasingly unviable and he said he was not sure how to answer
that. It was clearly not viable at the
second operation but he thought it was viable at the first. He then agreed that there must have been some
process ongoing. It was likely that it
had begun by the time of the first operation.
[73] He was
asked if he accepted to that extent his judgment was ultimately proved to be
wrong and he said that it was mistaken.
He was asked whether given what he had done to check the small bowel his
judgement was a reasonable one. He said
that that was hard to answer in the light of what had happened. He thought at the time that it was a
reasonable decision. He was not sure
that he could say that anymore. In his
view the appearances were in line with what one would expect to see in a viable
piece of bowel. He had no doubt that
other surgeons faced with the same picture would have formed the same
judgement.
[74] In re-examination
he repeated that he would generally be of the view that those he trained were
capable of doing such an operation after three years of higher surgical
training. He had been slightly junior to
that when he had done the operation. The
experience which surgeons gained now was around a fifth of what he had
done.
[75] Under
reference to 7/2 at page 1 he said that Mr McGregor was not supervising. He was performing the surgery on his own but
he came in. Mr McEwan was his
patient and he wanted to make sure everything was alright. He was not supervising him as such. He was not scrubbed up but he came in at the
end when he was cleaning up the wound.
He was the supervising consultant but not necessarily overseeing the
operation as such. He agreed that the
patient was under the overall care of Mr McGregor.
[76] The
next witness was Professor Michael Robert Burch Keighley. He was born in 1943 and was the emeritus
professor of surgery at Birmingham University. His CV was 6/12 of process although a number
of things had changed since it was compiled in October 2006. He had held a number of posts throughout the
world and had written a number of articles.
He was an FRCS from Edinburgh as well and
became professor of surgery at Birmingham 1984 before becoming
head of the department of surgery in 1988.
He retired from the university in 2004 in order to engage in overseas
voluntary work at a teaching hospital in South India. He was now involved largely in private
practice. Along with another author he wrote
the principal textbook of colorectal surgery used throughout the world. His CV is an extremely impressive one.
[77] In
connection with this case he had prepared a report dated 10 May 2008 which was number 6/11 of
process. He went through that with Mr
Armstrong. Pages 3 and 4 of the report
set out a brief history of the pursuer's progress following admission on 22
April till after the second operation.
The only relevant past medical history was the previous laparotomy in
November 1994. It was noted in the
report that at the second operation with which we are concerned there was
turbid fluid in the peritoneal cavity and there was an area of ischaemia at the
site at which the previous band adhesion had been divided which probably dehisced
during mobilisation of the bowel. This
meant that it was intact at the start of the operation but then broke down.
[78] Page 6
set out the medical records which he had seen and he had taken the opportunity
to examine the pursuer that morning. He
had not appreciated previously what the extent of the defect was.
[79] The
1994 operation undoubtedly gave rise to the adhesion which was the subject of
the operation on 24 April.
[80] Pages 8
and 9 set out details of the clinical notes before the first operation. The patient was examined at 8.30 pm and the impression was a possible perforation. That appears at page 40 of the medical records,
6/7 of process. There is an earlier
entry at 9 pm which is in the
records before the entry of 8.30 pm and which notes
a three day history of abdominal pain and refers to the 1994 operation. Blood tests are set out on page 41 and these
can be seen at page 8 of the report.
[81] As far
as these tests were concerned, he said that the white blood cell count of 12.5
was very slightly raised. There was a
range between about 6 and 11 for people which could even fluctuate if tests
were taken on the same day on the same person.
The count indicated that there might have been an infection but not so
gross as to suggest peritonitis or at that stage infarction of the bowel. The bilirubin count was also slightly raised
and might indicate a relatively unimportant infection.
[82] The
operation note at page 95 was set out at page 10 of the report. He said that that was an interesting
note. In the first place this was an
emergency operation and he found it unusual that the note was typed. Nurses and doctors would want to know what
had been happening and this note was typed the following day.
[83] In the
second place the surgeon had only described part of what one would expect an
operation note to indicate. It indicated
that he had gone inside and found lots of adhesions and the wound was extended. It was indicated where the site of
obstruction was. All this was very
useful. It was also indicated that there
was a tight band adhesion. The note then
said that this was divided and released.
Once it was divided and released one could see the bowel. That really should be described. This was a crucial part of the
procedure. If the bowel was normal then that
was fine but if there was a tight, straight band across the bowel it was
important to describe what was found.
There was always a puckering across the bowel at least and there could
be more and in this case there must have been more - something that looked like
an electric burn across the gut. If the
bowel was normal one would expect to see that noted. One would obviously expect to see a note if it
was not normal. It was bound to be
abnormal anyway because the band had caused the blockage.
[84] There
was bound to be something to be seen there and described such as a disparity
between the size of the bowel upstream of the adhesion compared with the
collapsed state of it beyond. Normally
that would be described and then it would be indicated whether the bowel at
that point was healthy.
[85] One
would expect to see a record of the condition of the bowel. That was absolutely standard practice and was
a very important observation. The
position was the same in 2002. Doctors
were told to record things which were seen in patients and time had not changed
that.
[86] He had
in his report made certain drawings in the page immediately after page 40. These were rough drawings to show broadly
speaking what the position would have been.
The top left drawing showed what he would have expected the bowel to
have looked like on admission. The line is
the adhesion band. He believed that it
was quite localised. Above the band the
bowel wall was thickened and swollen because of the obstruction. There would be undigested food in it. The obstruction was caused by the band and
was made worse by the swelling of the bowel wall and the food present. Unless it settled down it would get
worse.
[87] The
picture at the top right was what it must have looked like at the first
operation. The wall was thicker and more
swollen.
[88] The
bottom left hand corner shows how it should have looked after the adhesions
were divided. The obstructed bowel could
be seen and there was a mark which he believed would have been seen, a linear
area of doubtful viability which was known to be dead bowel from the subsequent
histology. The bottom right hand picture
showed what caused the gas gangrene. The
bacteria got through the linear mark, into the peritoneal cavity and then into
the recent incision in the abdominal wall, causing damage to it.
[89] There
would still be a mark there when the abdomen was sewn up. Doctors had to make a judgement, not an easy
one, whether the mark represented a bowel with reduced blood supply (ischaemic)
which could recover or whether the process of reduced blood supply was
irreversible, that is infarction implying necrosis or death of tissue. One could try to work out whether it was
ischaemic or infarctic and he described these in the report as careful
observations, with the use of warm packing to see if the colour would change.
If there was no change in colour after about five minutes of observation then
one assumed that it was dead and needed removal. In his opinion that process
should have been recorded as having been done.
He thought that if it had been done it would have been recorded.
[90] It was
standard practice to carry out that process and that was the case in 2002.
[91] Reference
was then made to page 10 of the report which dealt with the medical records at
pages 42 and 43. This related to the
clinical notes from when Mr McEwan came back from theatre and these notes
went on until about page 16 of his report.
He noted that there was a retrospective entry which complicated matters. He read the entry for 25 April 2002 from his report and made
reference to the TPR chart. He said that he would worry about the entry
for 25 April. This was a patient who had
had a straightforward operation and one would not expect to find bloodstained
urine or reduced urine output or tenderness.
The blood pressure was low per the TPR chart and this
was not a man who was well.
[92] The
notes for 26 April 2002 were read from
the bottom of page 10 of his report to the middle of page 11. These covered pages 43-44 of the medical
records. There were concerning
aspects. One would not expect severe
pain and swollen testicles after a straightforward operation two days earlier
to divide a band of adhesions. The blood
stained urine was not to be expected and the erythematous area on the right
side was an abnormal finding. Something
was going on and to have very swollen testicles which were tender on palpation confirmed
that. He would not be sure what that was
on seeing it for the first time but he would be very concerned, especially in
view of the blood pressure of 90 over 60.
The patient was in shock with a pulse of 114. It was said that he was not in clinical shock
but that was not the case. One would not
expect cellulitis. He would want at that
stage to have checked the blood and done a CT scan. He then turned to the note at page 44 which
was written in retrospect and referred to the position at 1700 hours on 25
April. That was more or less a repeat of
the last entry which related to the position at 0415 hours on 26 April. The patient had therefore had that condition
from 1700 hours the previous day and that was very evident when the charts were
examined.
[93] At the
foot of page 44 there was a further retrospective note which was dealt with at
page 11 of the report and noted the position at 2230 hours on 25 April. This made him very worried that there might
be a form of septicaemia. There was low
blood pressure and jaundice had developed.
The patient had developed signs suggesting septicaemia coming from the
abdomen where he had had a recent operation and his urine output was
borderline, although he had been having a lot of intravenous fluids. He might have been developing renal failure
and the presence of jaundice was very very significant. One did not suddenly become jaundiced after
an operation unless something serious was happening. It would have been presumptuous at that stage
to have thought of gas gangrene but that was one of the key features. The medical personnel must have realised he
was ill, with low blood pressure, swollen testes, jaundice, borderline urine
output and low oxygenation.
[94] Page 12
of the report dealt with the notes from 0445 hours on 26 April at page 45 of
the records. Even in the half hour after
the note from 0415 he had deteriorated.
The blister indicated a form of infection and with a lot of serous exudate,
i.e. a lot of fluid. That could not
possibly be compatible with the earlier diagnosis of epididymo-orchitis which
they had made earlier and which they were still looking at. One did not get blistering with that. Blistering was one of the things which was
found in gas gangrene especially if it affected the scrotum.
[95] Cellulitis
was also of significance. It was rapidly
spreading, from all accounts. That was
highly suggestive of a serious soft tissue infection affecting inter alia the lower abdominal wall and
with the jaundice the diagnosis of gas gangrene should have been entertained at
that stage. Cellulitis was a common
feature of gas gangrene, often with bubbles of gas in it.
[96] The
patient was ultimately confirmed as having necrotising fasciitis. Looking back retrospectively his view was
that it began in the early hours of the morning of the 25th, less
than twenty four hours after the original operation. In this connection he had regard to page 472
of the notes, the charts. At 1900 hours
on 24 April the blood pressure was 125 over 65 and the pulse was 100. They were fairly regular until about 0600 and
0700 hours the following day but from then on the blood pressure fell to
unacceptable levels. At 12 noon it was 100 over
48 and the pulse was 100. Thereafter
going to the end of the page the pulse was at 120 with blood pressure at 90
over 70. The readings were grossly
abnormal from around 12 noon on the 25th. The chart was the sort of thing one would
find at the end of a bed and doctors and nurses would always look at it. They indicated that the patient was unwell
and that was a grossly abnormal response to an operation for division of adhesions. Taking the clinical information into account it
was highly suggestive of a septacaemic process with a serious subcutaneous
infection involving the abdominal wall and the scrotum. He then dealt with page 13 of the report and
the notes for 26 April 2002 at page 46
onwards. He said that it was not understood why the patient was jaundiced and the
staff were exploring whether perhaps he had gallstones or an acute gallbladder
infection so they arranged an ultrasound of the top half of his stomach but it
was normal. That did not take them
anywhere, other than to eliminate a potential cause of the jaundice.
[97] He then
carried on reading his report dealing with the notes from page 47 onwards and
the position from 1030 on 26 April.
He indicated that there was no crepitus in other words no gas in the
tissue. There was an opinion from a
gastro-enterologist. The jaundice had
become a focal point in the thought processes.
They asked a non-surgeon, who would not have understood potential
post-operative complications the way a surgeon would have done, to give a
second opinion as to why he was jaundiced.
He made some suggestions as to what might have been the position
including congenital hyperbilirubinaemia, which was rare, septic embolus to the
liver, which was also rare, and perhaps a drug reaction. Pages 50-51 of the notes dealt with a CT scan
and its consequences at 1640 on 26 April.
That is referred to at pages 14 and 15 of the report and the formal
report of the CT scan (page 280 of the notes), is set out in the professor's
report at those pages. There was
shadowing on the lungs because they were not expanding very well. He thought that this was when the blinds were
suddenly pulled up and there was a diagnosis.
They had suddenly discovered something grossly abnormal going on and
this was a red flag for any doctor, however junior, showing that there was a
serious infection and indicating that something urgent had to be done.
[98] He was
referred to two operation notes, one in manuscript and one in typescript, the
contents of which are set out in his own report at pages 16 and 17. As he
understood it there was no hole at the start of the operation but a hole was
made during the course of it. The
infection was transmural rather than through a hole.
[99] The
histological report was at page 272 of the notes and in his own report at page
18. As far as the small bowel biopsies
are concerned it was as follows:-
"85 mm segment of
small bowel with inflammatory/fibrinous exudate on much of the surface at a
point close to the centre, there is a band around the small bowel, 4 mm in
width, suggesting compression at this point and on one surface the bowel
appears ruptured."
He said that the inflammatory/fibrinous exudate was
secondary to the peritoneal reaction due to the transmigration of
bacteria. There was a reference to
turbid fluid in the cavity in the typed operation note and the inflammation was
a reaction to that.
[100] He was
then taken to the microscopy report, whose contents I have already quoted. He
said that the transmural necrosis was an infarction or death due to the lack of
a blood supply. The mucosal ulceration
was a reaction to the dead bowel wall.
It would become black and tissue would slough off leaving an ulcer. Adjacent to the band there were sections of
the bowel with impaired blood supply but the 4 millimetre part itself was
necrotic, in other words dead. The
oedema was secondary to the earlier obstruction and the serosal inflammation
was a reaction to the turbid fluid.
[101] He agreed
that the external surface was affected by what happened in the peritoneal
cavity and the central part was dead throughout its full thickness. That was the part which was impinged upon by
the pressure of the adhesion.
[102] The rest
of page 18 and onwards till page 23 of the report gave an account of the
pursuer's position following the operation.
He was not only a very ill man but a very lucky man to survive.
[103] At the
top of page 19 there was reference to certain drugs being given on 27 April. These were for cardiac failure in order to
try to raise blood pressure. At the top
of page 21 there is a note for 25 May 2002. He was still on intermittent
haemodialysis. He had significant renal
problems.
[104] He was
later referred to plastic surgeons.
[105] Page 24
started with a discussion of the bowel obstruction which had already been
covered in evidence. Pages 25 from
paragraph 5.2, 26 and 27 were then read
"Gas gangrene is
caused by bacteria usually Clostridia which grow in the absence of oxygen
(anaerobic). Clostridia accumulate
either in dead tissue or within the lumen of the bowel.
Gas gangrene is
due to rapidly multiplying Clostridia which produce gas and toxins. These toxins which have a profound effect on
local tissue perfusion and organ function. (sic)
The toxins cause
death from local destruction with gangrene and from distant organ failure. The destruction and putrefaction of local
tissues necessitates wide excision (debridement). The toxins enter the blood stream causing
cardiac failure, renal shutdown, cerebral dysfunction, liver failure, marrow
suppression and adult respiratory distress (a form on pneumonia).
In this case the
gas gangrene arose from bacteria within the lumen of the bowel which escaped
through a leaky bowel wall as a consequence of localised ischaemia. The bacteria produced gas. The gas forming organisms leaked through the
ischaemic bowel so that bubbles disbursed from the bowel onto its outer surface
and then through the peritoneal cavity into the incision. This resulted in gas gangrene in the wound
and downwards into the root of the penis and scrotum.
5.3 Leaking bowel; ischaemia
The organism
(Clostridia) must have arisen from the lumen of the bowel. The bowel wall however was anatomically
intact but the blood supply to the wall of the bowel even though it was
anatomically intact was ischaemic. Bowel
wall is ischaemia then allowed bacteria to penetrate the membranes that
normally contained bacteria within the bowel lumen through the wall of the
bowel and out onto the serosal surface (outer surface) and thus into the
peritoneal cavity. (sic)
The ischaemia was
caused by localised vascular necrosis from the immediate pressure effects of
the adhesive band made worse by the complete mechanical obstruction and the
swelling of the bowel above the obstruction.
The first
operation was aimed to relieve the mechanical intestinal obstruction by
dividing the band. However a thin rim of
localised bowel iscahemia remained. As
the thin line of iscahemic bowel had not been resected, bacteria were able to
leak through this line of bowel wall ischaemia into the peritoneal cavity,
thereby infecting the wound and the root of the penis and scrotum.
5.4 Ischaemic
bowel; band
The ischaemic
bowel was a direct consequence of the pressure effect of the adhesion
constricting the bowel. This localised
constriction impaired the blood supply just in the small line of bowel lying
underneath the adhesive band (rather like an electrical burn). Eventually this line of localised ischaemia
would have caused a perforation in the bowel and peritonitis. In this particular case the linear area of
bowel wall iscahemia allowed bacteria to penetrate through it even though it
was anatomically intact."
He said that the bacteria must have arisen from the
lumen. The bowel wall was normally impermeable and they were not able to get through. If, however, the blood supply was disturbed
and died even though it was not perforated then they could get through.
[106] Pages
28-29 discussed possible delay before the first operation but Mr Armstrong
did not follow that line. The witness
did, however, read the first paragraph of page 29, which is to the following
effect:
"There was no
indication for an immediate operation on the day of admission on 22.04.02. There might have been an indication for
surgical intervention on 23 April 2002 if the abdominal
pain had become very much more severe or if there was (sic) signs of bowel ischaemia.
The only possible evidence of potential bowel ischaemia was the elevated
white cell count. The white cell count
was elevated on admission being 12.5 on 22
April 2002 and 12 on 23 April 2002. This moderate elevation in white cell count
might imply a segment of bowel ischaemia."
He said that one could not lay one's hat on that and a
diagnosis of ischaemia could not be made based on it. It was, however, consistent with it. He was then taken to page 30 and in
particular to paragraph 6.2 relating to the conduct of the operation. Paragraph 6.2 which runs from pages 30-32 of
the report is in the following terms:
"6.2 Conduct
of the operation for bowel obstruction; failure to detect irreversible linear
ischaemic bowel injury
I am highly
critical of the conduct of the operation on 24.04.02.
It appears that
the consent was obtained by Dr Dninon.
It appears that
the operation was performed by Dr D Kingsmore who was a trainee to the
consultant in question, Mr McGregor. I
have no information of the experience of Mr Kingsmore. However most trainees will undertake
emergency surgery for bowel obstruction.
The operation
describes multiple adhesions making entry into the peritoneal cavity difficult
and thorough examination of the contents of the peritoneal cavity difficult
without enlarging the wound. The
operation note states that there was an obstruction from a band adhesion which
was compressing the small bowel 1 1/2 feet from the ileocaecal valve. The band adhesion was divided and the bowel
underneath it released. What is not
mentioned in the operation note is the appearance of the bowel itself. The operation note merely states that the
bowel below the obstruction was collapsed.
This type of band will have left a linear constriction ring on the
surface of the bowel which (will) have been red or purple in colour. The surgeon under these circumstances would
need to determine whether this colour change on the bowel surface was permanent
or temporary. If there was any
uncertainty as to whether or not the colour change (indicative of ischaemia)
was permanent or temporary, the surgeon should have placed warm packs around
the bowel and have re-examined the bowel 5 or 10 minutes later. If there was no change in the colour of the
bowel, it must be assumed that the bowel was ischaemic at that point and must
be excised. ( The witness explained that the word "ischaemic" should read
"necrotic"). Failure.... would lead to
subsequent perforation and peritonitis.
If on the other hand placing a warm pack around the discoloured line on
the bowel surface resulted in substantially (sic)
improvement in the appearance of the bowel, a further period of waiting and
placing warm packs around the bowel would be used to see if there was further
improvement over another 5-10 minute period.
If there was doubt about the viability of the bowel and a decision had
been taken not to resect it, then relaparotomy should have been arranged for 24
hours later to re-inspect the bowel.
In this case the
appearance of the bowel is not described at all. Failure to describe the appearance of the
bowel amounts to a breach of duty. Given
the subsequent events we know that the bowel will have had a linear mark across
it which was purple. This line of purple
colour would not have changed or improved with hot wet packs because we know
that the bowel was ischaemic
( this should
read necrotic) when the relaparotomy took place 48hr later.
Thus there was a
failure to describe the appearance of the bowel. There was also a failure to act on the linear
discolouration of the bowel so as to determine if there was any improvement
with warm packs and time. It was
negligent to close the abdomen without undertaking this simple exercise. Failure to do so resulted in gas gangrene and
Clostridial myonecrosis.
If the trainee
surgeon was insufficiently experienced to know whether the bowel was ischaemic
under the constricting adhesive band, he should have called a senior person, if
necessary his consultant, to come and observe the bowel and make a decision
about the need to resect it. Thus
irrespective of the seniority of the surgeon, it was either a breach of duty
not to have tested for colour change with time or to have called a senior
surgeon if there was any doubt about the viability of the bowel.
Given the
subsequent findings, the linear band of ischaemia under the constricting
adhesion should have been excised and the bowel ends closed as was undertaken
48hr later on 24.04.02."
He was referred to 7/1 and in particular to page 3
thereof in connection with Mr Kingsmore's experience. He would have expected him to be perfectly
competent to manage the sorts of problems encountered during a resection of
ischaemic bowel and the witness was somewhat surprised that he had not recorded
his findings.
[107] I asked
him about the suggestion that warm packs would be placed around the bowel and
it would be examined 5 or 10 minutes later, after which a further period of
waiting time with warm packs would come into play. He said that one would only do that if the
bowel had not returned to normal. If it
was improving one might want to go and have a cup of tea and come back to look
at it later. If there was still
uncertainty a decision had to be made.
Should there be a resection or should the wound be closed up and a further
operation carried out twenty-four hours later?
[108] We knew
in this case that the line of purple colour would not have changed or improved
with hot wet packs because the bowel was necrotic when the relaparotomy took
place forty-eight hours later. I asked
him about the evidence given by Mr Kingsmore to the effect that it had been
dark red when he first saw it and appeared lighter later on after he had placed
warm packs against it. His opinion was
that it would not have got lighter.
[109] Mr
Armstrong referred the witness to the findings that the resected specimen had full thickness
necrosis and he said that given the subsequent events we knew that the bowel
would have had a linear mark across it which was purple. Mr Armstrong asked whether in every case of a
bowel adhesion division there would be a mark.
That was the case but it would not normally be purple. It could be a range of colours. The most common finding was no major colour
change and just a constricting band. If
there was a colour change, though, it had to be assessed. Red indicated mild ischaemia, purple was more
severe and black meant death. If it had
been black at the time it would have been more obvious and holding the bowel
might have resulted in its breaking down, as it were, in the middle. There was a gradation.
[110] Some time
before the second operation full thickness necrosis occurred. He could not say exactly when that was but he
could tell the consequences of it. The
chart suggested that on the night and into the early hours of the morning of 25
May the bacteria had started getting through.
There had to have been full thickness necrosis then. He suspected that that was the position there
was at the time of the operation but that it had not been there long enough to
cause blackness and falling apart. Mr
Kingsmore's position was put to him and I mentioned to him that the latter had indicated
that he had flicked the bowel to check for peristalsis and he thought that that
was present. The witness was asked what
he thought about the state of the tissue at the time. He said that he was interested in the
question of flicking. That was done to
assess not a small segment of bowel but a large segment. Bowels could get twisted on themselves and a
whole length of bowel could potentially be dead. That was when it was flicked and if there was
a colour improvement also that would make one more confident. When there was a very very small line then
one would not flick that. He said that
he was absolutely certain based on the pathology that that line would not have
changed colour.
[111] He was
referred to the chart at page 472 and said that it suggested that bacteria were
leaking out by around 0600 or 0700 on the 25th. He thought that the mark would not be
completely black at the time of the operation but the line would not have
revived using the packs. There was surrounding
ischaemia according to the report and it was possible that the surgeon might
have found the rest of the bowel with impaired blood supply had pinked up but
he very much doubted whether the linear mark would have changed. Under reference to page 32 he said that he
believed the band must have been a dark purplish colour and would have been
irreversible. There may have been some
discolouration caused by the band and that might have been one of the things
spoken about by the surgeon when he was talking about colour change but it was
the linear area which was in point. If
the band remained dark purple after about five or ten minutes it was an
indication for resection.
At that point the
witness referred to paragraph 6.3 in his report which runs as follows:
"6.3 Delay in
diagnosis of gas gangrene
On 25.04.02 at
15.00hr there was a record of severe abdominal pain and there was bloodstained
material in the urinary catheter.
Furthermore the urine output had tailed off even though the patient was
adequately hydrated. At 17.00hr there
was a record of pain in the right testis and tenderness in the right iliac
fossa and suprapubically. The right
testis was described as swollen and tender.
Although no blood tests in the biochemistry records, (sic) there are some results which have
been filed in the surgical high dependency unit records (page 313). In the blood results entered the only gross
abnormality was a rise in Bilirubin (63) thus the blood tests themselves on
25.04.02 were not sufficient to indicate reintervention. At 22.30hr there was a further medical entry
indicating erythema in the right iliac fossa with low abdominal fullness and
tenderness in the right iliac fossa and also in the lower abdomen. By this stage he was obviously
jaundiced. These observations have all
been written in retrospect presumably because no actual records took place
until the morning of 26.04.02. The
retrospective records continue and indicate that at 04.45hr on 26.04.02 there
was increasing swelling in the right testis and increasing pain in the right
iliac fossa. The pulse rate had risen to
112, there was hypotension with a blood pressure of 90/60 and some hypoxia with
93% saturation on air. By 05.15 there
was a senior review because of the jaundice, tenderness and increasing erythema
associated with guarding in the right iliac fossa, absent bowel sounds and the
blister on the scrotum. There was
increasing swelling and the senior review concluded there was spreading
cellulitis.
The presence of
spreading cellulitis and jaundice in a patient who was hypotensive and had a
poor urinary output should have indicated sepsis and should have prompted a CT
scan."
This was under reference to pages 44-46 of 6/7. The CT scan showed bubbles of gas in the
abdomen.
[112] He was
asked whether it was possible to identify when the clostridia had entered the
peritoneal cavity. He said that, based on
the chart, he believed that the bacteria translocated probably when the low
blood pressure was first recorded, that is in the early hours of the 25th. The germs got through and into the fluid in
the peritoneal cavity and then into the abdominal wound where they
multiplied. Where there was a recent
wound bacteria would proliferate because of the lack of oxygen. If an operation was carried out the tissue
was traumatised. Proliferation was very
rapid. One organism could turn into a
hundred thousand three hours later. He
thought that the beginning of the gas gangrene was between 0400 and 12 noon on the 25th.
[113] He was
referred to page 472, the chart. I asked
him about the difference between infarction and ischaemia and he said that the
band was the external problem. Under the
band was the tissue area. It must have been
infarctic rather than ischaemic. If
ischaemic one hoped that it would recover and that was what he thought the
surgeon thought. He thought that death
started from the inside and worked out because the most fragile membrane was
the mucosa. One used the term infarction
when the ischaemia was irreversible.
Sometimes the process causing impaired blood supply created an
irreversible situation. If one vessel
supplied a target organ and was blocked then the organ would die. If, say, only one of twenty vessels was
blocked then there was a chance of recovery.
In this case the pathology showed the irreversible nature of the problem
and if that was the position forty-eight hours later then he believed that it
was irreversible at the time of the first operation.
[114] It was
the little piece of tissue which had let the bacteria through and it had been
constricted for five days.
[115] He had
no criticism to make of the second operation or the subsequent care. Paragraph 7.2 at page 35-36 was then read as
follows:
"7.2 Resection
of the ischaemic band on 24.04.02
Had the line of
bowel ischaemia been recognised and tested it would have been evident that this
linear discoloration was permanent from irreversible ischaemia in the wall of
the bowel. Consequently this segment of
bowel would have been excised and the bowel would have been excised and the
bowel ends sutured together as took place on 26.04.02. Given that the bowel healed after the
segmental resection under much more severe circumstances on 26.04.02, it is
certain that the same operation undertaken on 24.04.02 would have resulted in
complete healing of the bowel anastomosis without any complications.
Consequently,
resection of the ischaemic band on 24.04.02 would have resulted in a normal
postoperative course, that is to say discharge from hospital by the end of
April and return to work in six weeks without loss of the abdominal wall,
without a prolonged illness on the Intensive Care Unit and without obstructive
infertility."
He pointed out that the irreversible ischaemia in the
second line meant infarction.
[116] Had
resection been carried out on the 24th then there would have been a
normal recovery.
[117] His
conclusions were then read from pages 38 and 39 as follows:
"8. Conclusions
Bowel obstruction
is a common surgical emergency.
Bowel obstruction
in this case was caused by a previous episode of peritonitis which caused
adhesions. In this case the adhesions
were localised to form a band which obstructed the small bowel approximately
two thirds of the way down its length.
The obstruction was complete and had become irreversible.
The band adhesion
had caused irreversible death to the wall of the bowel beneath the adhesive
band. The result of the irreversible
bowel wall death was that organisms, in this case Clostridia within the lumen
of the bowel permeated through the dead bowel wall onto its surface into the
peritoneal cavity. The organism in
question (Clostridium) produced gas and the gas bubbles dispersed through the
peritoneal cavity into the recent abdominal midline wound. The gas was a manifestation of the organisms (sic) ability to produce gas and toxins
which cause death (necrosis) of muscle and fat.
In this case there was death of muscle in the abdominal wall and death
of tissues in the root of the penis and the scrotum. The Clostridium toxins also caused a very serious
systemic disorder resulting in a form of liver failure, acute tubular necrosis,
ARDS, cardiac failure and at one stage early evidence of marrow
suppression. Normally gas gangrene under
these circumstances is fatal.
The patient was
very lucky to survive. The surgical
treatment necessary to resolve the gas gangrene from ischaemia in the wall of
the bowel necessitated a wedge excision of the bowel and radical debridement of
dead tissue in the abdominal wall, the root of the penis and the scrotum. The patient suffered a very prolonged severe
illness which prevented him returning to work and has long-term consequences; a
large abdominal wall defect and obstructive infertility.
There may have
been some delay in the initial surgical intervention for bowel obstruction. Had the Claimant been operated upon on the
morning of 24.04.02 it is just possible that at this stage division of the
adhesion, as took place, would have allowed recovery of the ischaemic segment
in the wall of the bowel such that gas gangrene did not occur. The timing of operating for intestinal
obstruction is not a precise science, it could well be argued that there was no
delay in surgical intervention for bowel obstruction.
There was a gross
breach of duty by the surgeons on 24.04.02 when operating for acute intestinal obstruction
not to have described the appearance of the bowel itself. There was a linear segment of full thickness
ischaemia to the bowel wall underneath the adhesive band. This should have been recognised and should
have been resected with primary anastomosis as occurred 48hr later on
26.04.02. Had this occurred (resection
with anastmosis) there would have been no complications."
[118] He felt
very strongly about the lack of recording of the appearance. He was asked whether his view was that the
tissue under the band was beyond recovery.
It was put to him that the position of Mr Kingsmore was that when he
released the band the bowel underneath was bruised or dark red and he wrapped
it in damp material and then warm packs were applied and he looked at again
after 5 or 10 minutes when it was lighter red.
He flicked it as well as seeing capillary vessels and was
satisfied. Mr Armstrong suggested that
the law allowed a range of acceptable errors and asked whether he considered
that acting in the way he did the surgeon's conduct fell below the acceptable
level. He said that dead bowel was a
death sentence and had to be got right.
Every surgeon in training was taught that. It was absolutely critical and any surgeon
especially in training knew that sometimes one got things wrong. If one was
sure that bowel was dead it was taken out, if absolutely sure it was back to
normal you would leave it alone, if you were in between you would operate the
next day and if you were in training and unsure you would ask a senior
colleague. It was put to him that Mr
Kingsmore said that it had gone lighter red and that he was sure it was
viable. He said that he did not think
one could be sure unless it had returned to a completely normal colour. If it had returned to a normal colour the
patient would have been able to go home.
His opinion was that unless the band had returned to normal colour he
could not have been certain of its viability and if he had been a third year
trainee in those circumstances he would have called someone senior. If there was any doubt at all and if a senior
was not available then he would have resected it. There must have been some doubt in his mind
because the bowel did not return to its normal colour. One of the things they kept telling juniors
was that there was never any harm in asking for advice. If it did not return to its normal colour it
was highly indicative that it was not going to recover and he would have
expected a trainee to seek the opinion of a senior colleague. He did not and that was remiss of him. He was asked about the consequences for the
pursuer and the prospects of his employment and in particular whether he might have
to retire early. Objection was taken to
this on the basis that there was no Record for his situation worsening. I allowed the line subject to competency and relevancy. He said that it might be that he would be
able to work up to his normal retirement age.
He was certainly at a disadvantage.
There was no Record for early retirement and objection was taken to
this. Again I allowed the line under reservation. His understanding was that
the pursuer was a trained engineer and held a relatively sedentary job. He was based largely in an office rather than
a building site. Whilst his present job
and job description remained as they were he did not see any likelihood of
change. If he were made redundant and
sought new employment then he might be considerably compromised in the labour
market if the job description involved physical work. There was no abdominal wall muscle and that
was the major problem. The bulges were
relatively well contained partly because of the support and also because there
was so much scar tissue. Abdominal
muscles were needed to get out of bed.
That disability was very considerable and as one aged it would get
worse. He was compensating by using
other muscles but they too would deteriorate with age. He was asked about his impression of the
possibility of corrective surgery and he said that would be impossible and also
highly dangerous. The pursuer had
suffered a huge defect. It was
physically impossible to improve that and it would not just involve general
surgery. There would need to be a
urologist involved in dealing with the genital defect. There would also require to be plastic
surgery and also general surgery. It was
reasonable for him to be frightened of that prospect. He was fairly static now and there had been
no change in his physical condition over the last few years. He had lived with his condition and managed
to cope.
[119] Lastly
he said that the reference in his report to the pursuer's enjoying playing
football and golf was meant to be a historic one. It was not suggested that he was doing that
now.
[120] In
cross-examination he said that he retired from the National Health Service in
2004 but he continued in voluntary work and was in a teaching hospital in South
India for three to four months of the year.
Page 41 of his report set out his special interests which were
inflammatory bowel disease, colorectal cancer and anorectal incontinence. He was also engaged in emergency
surgery. He was not exclusively involved
in the large bowel and the rectum. He
also worked in Crohn's disease dealing with the small bowel. He had been involved in dividing adhesions
since leaving the National Health Service.
He was on call one day a week and in India he sometimes
came in to assist with such operations.
They were done by trainees, which was no different from the position in
the UK. While he was in the National Health Service
he remained on call and could be called in on an emergency basis. He carried on doing that until he retired.
[121] In India he was involved,
amongst other things, in the supervision of operations to remove small bowel
adhesions. He was in a big teaching
hospital and clinical practice there was the same as in Britain.
[122] He was
referred to page 30 of his report in connection with the information about Mr
Kingsmore's experience and indicated that he thought he had seen his CV some time
after preparing his report. He had, he
thought, passed the information to the solicitors and in particular told them
that he thought that Mr Kingsmore had had sufficient experience. He had no criticism of the fact that he was
allowed to carry out the operation but he did not remember conveying that
opinion to the solicitors.
[123] He was
then referred to the expert declaration at page 43 of his report and in
particular to heads one, three, four, seven and eight thereof. I am not entirely sure what the point of that
exercise was. He said that he was not a
pathologist but he had done a great deal of research in micro-biology
throughout his career and he was still doing it. Some of that was relevant to gas
gangrene. Earlier in his career he ran a
micro-biological lab where Clostridia were grown and looked at in connection
with their effects on the bowel. That was
from 1985 until 1997. He also looked at
the effect of bacteria on tissue in relation to blood flow and he had published
on these matters. He had in all produced
over 500 publications. He was not a
radiologist but doctors and surgeons looked at charts every day. It was like having an extra hand. Radiologists sometimes did not understand the
clinical context. Looking at CT scans
was something that surgeons did all the time and they were interpreted and
discussed with radiologists. He would
not necessarily defer to a radiologist.
[124] He
agreed that there was usually a range of surgical practices but there were
certain fixed rules. In some incidences
you certainly would not do particular things.
[125] He was
asked about the meaning of ischaemia and whether that meant inadequate supply
of blood. He said that he had already
said that he was disappointed that he was not more rigorous in his use of words
in the report. He should have used the
words reversible and irreversible.
Ischaemia was something which might improve and infarction was the position
if tissue was dead. These terms were
used rather loosely. It was reduced
blood supply and it could cause tissue death or it might not. Infarction was irreversible. He was asked whether that meant an area which
was already dead and he said it was.
There was a process and at the end of it there was cell death but the
speed and the prospects of recovery were influenced by a number of
factors. The death of tissue was cell
death. In any tissue there was a
consistent process of cell death and removal and interference with the blood
supply affected that process. In certain
circumstances the process was much quicker and more likely to be
irreversible. He was asked to assume
that the blood supply to the bowel wall was compromised. The path from the first compromise to death
would vary. There were several factors at
play, including the initial health, the extent of the reduction of the blood
supply and the localised area which was affected. If there was no blood, death would be very
quick, indeed immediate. If the blood
supply was reduced the time depended on other factors. He was asked whether the process began at
microscopic level and he said that that depended. All the cells might die at the same
time. That was a strong possibility in
this case because of the nature of the ishaemic process. In this case there was pressure due to a very
localised band which compressed fragile tissue and lasted for a period of five
days and getting worse. Both the cells
and the capillaries would be compressed.
He was less concerned with the capillaries and more concerned with the
pressure to the cells. Effectively they
would be squeezed and blood would not get to them. Death would be likely to start from the
inside or the mucosa where the blood supply to the bowel was affected. In this case, where there was direct pressure, that did not apply. The mucosa did die first when the blood
supply was occluded but in the context of direct pressure the outer layer or
serosa would be the part of the bowel first affected. He was asked whether the damage to the bowel
had anything to do with ischaemia and he said it was like someone having a
crushed foot. The blood did not get to
the tissues and ischaemia was created.
It was the outside of the "hosepipe" in terms of the bowel which got the
worst of the injury. Normally the mucosa died first in ischaemia
but that was in relation to the arterial supply. This was a different set of
circumstances. The real issue was
whether the purple line was reversible or irreversible. There were occasions where there was a twist of
the small bowel, which was called volvulus.
The mesentery would also be twisted and occluded and the loop of bowel
would become ischaemic. In those
circumstances the mucosa would die first.
[126] He was
then asked about the operating note. He
said it was critical to record details about the appearance of the bowel before
and after. He was asked whether of
itself a failure to record meant that the procedure had not been carried out
but he said it made it difficult for medical or nursing staff to understand
what problems might be met later. Nurses
looked up the note and if it had said "dark band seen and assessed and it
improved but no complete resolution was obtained" then it would have indicated
that there was a point of potential injury that might cause trouble. That would have made a difference at 0600
hours.
[127] It was
put to him that checking the viability of the bowel was an integral part of the
process. He said that that depended upon
the judgment of the doctor. If the
doctor was not troubled about the viability he would not do the test. One would hope that he would look at it. Sometimes doctors got carried away by
dividing the adhesions and then sewed up.
It was essential to look at the bowel.
It was an inherent part of the procedure if it was done properly. It was suggested that the fact that no
resection was carried out carried with it an implication that the bowel was
checked. He said that that was pure
conjecture. Trainees were told not to
compromise on writing notes. He was
asked whether it was in the range of reasonable standards of care not to record
the nature of the bowel and he said that he would not have said what he said in
his report if he thought that it was acceptable. There was no difference of opinion about
that. All surgeons would criticise a failure
to describe the bowel. It was put to him
that he had accepted that the surgeon had the necessary experience and he
repeated that these things happened. A
young eager surgeon might be so pleased about the division that he might close
up, although he accepted that division of adhesions was not difficult.
[128] He was
then referred to page 30 of 6/11 where he wrote the following:
"This type of
band will have left a linear constriction ring on the surface of the bowel
which (will) have been red or purple in colour."
He said that there would have been a range and he
believed that it would have been purple given that the obstruction had been
present for five days. He was not
looking at that retrospectively. He
preferred to express his opinion in terms of a range in his report.
[129] He was
asked what produced the red or purple colour and he mentioned the compression
of the tissues under the band and the swelling on either side of it, more
particularly upstream. The pressure
changed the cells and prevented the supply of blood. There were damaged cells
and blood which had been compressed and spilt throughout the tissue. Cells in
any event change colour when they were dying.
It was suggested that this was a bruise and he agreed with that but said
that it was a bit more complicated. If
blood was spilt and stopped in a tissue for a long time it would change colour
from pink to dark red to purple and then black.
It was suggested that if one sustained an ordinary type of bruise on the
arm, for example, the fact that it was black did not mean that it was not
recoverable. He said that that depended. If you drop something on your toe then the
nail may fall off. A bruise usually
involved a wider area of tissue but this was a very narrow band we were dealing
with. It was like a ligature but not all
the way around. I understood him to
accept that the bruising process accounted for some of the colour but surgeons would
not look at it in terms of being a bruising process. They would think of it as being a linear
segment of bowel ischaemia using that word in its proper sense. He agreed that colour change was to be used
as an indicator as to whether the damage was recoverable or not. He was asked whether he would hope to see
some change and he said that one might see change or no change. The normal colour was pale pink/white by which
I understood him to mean off-white with a tinge of pink. It was put to him that if he hoped the mark
would disappear that would be impossible if there was a bruise. He said that if the position was reversible
the bowel colour would return to normal.
There would also be some kind of constriction band where the adhesion
had been but the colour would return to normal.
He was not entirely happy with the bruise analogy. It was not the case that it was a bruise as
ordinarily understood. It was suggested
to him that if the band had been purple it was very unlikely to return to
normal because of what he had said. He
said that it might return to normal but if it was purple it was much less
likely to. It was suggested to him that
another surgeon might say it would not completely disappear and he said he was not
saying that. One would be left with a
mark. It was not discoloured
though. There was very little difference
if there was no ischaemic element. He was
asked whether it would be slightly darker and he said he did not agree with
that. If the mark were red it might
return but if it were purple it was very unlikely. He was asked whether, having removed the
compression, one would be releasing a restriction on the venous drainage for
that area and he said he did not think so.
That would be the case where the bowel was twisted as well as the mesentery.
Blood entered the bowel through the mesentery and where there was a blockage of
that nature then it would be affected. A
band adhesion was anti-mesenteric in other words on the other side of the
mesentery so only the local supply would be affected at that point. The impact of the compression was directly on
the tissue and the immediate vessels. Venous drainage was not involved because
the mesentery was not involved. The circumstances
were entirely different with a loop or twist.
It was put to him that another surgeon opined that only in that
situation would there be a complete resolution of colour and he said that in
the present case his understanding of the position was that there was external
compression from a band. Sometimes the
secondary effect of a band was to allow twisting or volvulus and any
responsible surgeon would say if that had occurred. On untwisting it there would be, if
reversible, a resolution of the colour and that is when one would flick it to
see if there was peristalsis. That was
not the mechanism in the current operation.
It was suggested that in a band adhesion there would not be a complete
resolution and the witness indicated that if the colour was purple then that
was correct. There was, however, a
range. He agreed that part of the
mechanics was bruising. A change of
colour, if there had been severe compression, was less likely. In those
circumstances there was a very high risk that the change was irreversible and a
resection would have to be carried out.
If the colour had not returned there was a very low threshold for
resection. He was asked whether there
was a difference of opinion about that and he said that that depended on the
circumstances but in the circumstances here, where there was a line of
compressed tissue, then he believed there were very few surgeons who would not
operate within that very low threshold.
It was well recognised that such a situation was dangerous. He was asked about his reference to the
judgement not being easy and he said that every case had a difficulty. No one ever fulfilled the requirements of the
textbook. Pragmatically one would
release the adhesion and would want to know if the colour was going to pink
up. One might go away and have a cup of
tea and if after five minutes there was no change then one would resect. If it had improved one might have another cup
of tea and assess it again. Surgeons
wanted it to disappear, more or less. He
was asked whether it was acceptable to leave it if it was still red and he said
that it might be. If a surgeon was not
sure he could reopen in twenty-four hours.
That was a well recognised practice.
Uncertainty always arose. I
understood him to accept that there was a body of opinion who would close up if
it had not returned to almost the same colour.
He represented the majority opinion in this matter. However he reiterated that if one was not
certain then one had to go back in. A
dead bowel was a death sentence. It
might also depend on circumstances. If a
young man of thirty years old was involved one might be more inclined to be
unsure. If an elderly person with heart
disease was involved then one might resect.
The division might be deferred until the next day and if so that would
be recorded so that everybody would know.
If the bowel was still red you would have to be very very sure before
you sewed up and did not come back. He
was asked whether when he talked about substantial improvement he was referring
to his own practice and he said that that was not the case. Some surgeons were taught to make these
decisions. He would be very surprised if
other surgeons thought that a dark red line was acceptable. That would be outwith the bounds of
reasonable opinion. He was then referred
to 6/9, a report from Professor J H Scholefield and in particular to paragraph
eight on page 13 thereof, which is in the following terms:
"In order for the
bowel to have been sufficiently ischaemic to show full thickness necrosis
within thirty-six hours of the original laparotomy it is likely that there were
demonstrable changes in that area of bowel at the time of division of the band
adhesion. It is very important after
dividing a band adhesion to look very carefully at the bowel underneath the
obstructing band adhesion to check its viability. Discolouration of an area of bowel under an
adhesion is always a concern in this type of surgery. A responsible body of surgeons would wait for
five or ten minutes and apply warm packs to see whether the bowel regains a
healthy pink colouration, or remains dusky or black. In the latter case it is good practice to
resect the area."
The word dusky was not one which he would have used. It suggested a rather diffuse change in
colour. He essentially agreed with
Professor Scholefield but he did not want to be too prescriptive about
words. There was a big difference
between being healthy pink and being purple and black. The word "regain" suggested a change back to
near normality and the word "remains" suggested no change. He would concentrate on those two words. If
the colour remained unchanged then he would resect.
[130] He said
that if the line was black one would undoubtedly resect and indeed one would
not even put packs on it. He thought
that "dusky" suggested a purplish colour and so he probably agreed with the
professor. It was put to him that dead
bowel tissue was pale and greyish. He
said that was a very good question but it was a very unusual colour for local
pressure necrosis. When the bowel became
twisted it became purple and one might say dusky and then it became black and
lost its sheen. Before it perforated it
went grey but that was a colour change seen in the volvulus situation not where
there was direct pressure. It was put to
him that another surgeon opined that he would only resect if the area was white
and the witness said that that would be a very unusual and dangerous opinion
and one not held by the majority of surgeons.
[131] Flicking
was useful in a volvulus situation but this was completely different. For this type of injury colour was the
key. Flicking would give no information
at all if it were done. All that had to be considered was the line of purple,
which was very narrow, and if the bowel was flicked one would not get any
information. It was different if one was
flicking a length of bowel, say, 12 centimetres long. He was asked about capillaries and said that
these were microscopic. If a piece of
bowel was inflamed one could see blood vessels on the surface. It was put to him that Mr Kingsmore had
said that he could see capillaries cross the area of the mark and he said that
that might be due to the inflammation but it did not help in determining
whether there was ischaemia. If blood
vessels had been seen on the serous wall that would be neutral.
[132] He had
not seen the samples examined by the histopathologist and in any event that
would have been outside his area of expertise.
He could only comment on the report.
It was absolutely crucial. It
told when the Clostridia got into the abdominal wall. The tissue was dead all the way through and
that explained why there was blood pressure change on the night of the operation
or early hours of the following morning.
In his opinion, at the time of the operation the bowel was dead and
should have been resected. The band
would have been purple, deep/red purple and he did not think that the colour
change would have improved because forty eight hours later the tissue was
dead. The clinical evidence showed that
bacteria were coming through eight to twelve hours after the operation. The area was probably dead at the time of the
operation. He was asked whether he could
exclude the possibility that the colour started as dark red and improved to a
lighter red. He said that the surgeon
who was there saw it but there were certain givens. Forty eight hours after the event the tissue
was dead and only a few hours after the operation it was sufficiently dead to
allow bacteria through. It was highly
improbable that it was not dead at the time of the operation. One did not require full thickness necrosis
to allow translocation of bacteria. One
required impaired blood supply. The
bowel could be ischaemic and not yet dead.
It was suggested that if about four o'clock in the morning
bacteria were passing through that did not imply anything about the
ischaemia. He said that the point of
resecting the bowel was to stop exactly that happening. It was put to him that it did not mean that
the bowel was already dead at the time of the operation and he said that the
whole thing was a process. The purpose
of resection was to prevent the translocation of bacteria through an ischaemic
gut. It took a long time for sections of
bowel to die and it was very dangerous to leave it in. He was asked whether, if it was not fully
dead at 0400, it was possible that at 1400 hours it was better. He agreed that there was a process but in
this case it was a pressure necrosis process.
In his opinion the tissue was dead at the time of the operation. Ischaemic cells might die at different times
but this was a pressure scenario.
[133] He had
been keen to see the CT scan. Bubbles
could be seen in it and they appeared to be gas. He agreed that in a laparotomy one let air
into the stomach which would not normally be there. It could be seen up till around thirty-six
hours later, although he did not demur to the suggestion that it might take up
to five days for it to disperse. He
denied absolutely a suggestion that the bubbles could have been attributable to
this so-called retained air. The
appearances were completely different.
Air which was left inside rose and went to the top of the internal
surface but the bubbles were tiny and were not at the top of the surfaces. They were very small and multiple. They were an absolute indicator of gas
gangrene and were categorically not retained air.
[134] Mr Stephenson
then went on to ask him about differential outcomes, i.e. explored whether the
patient might have suffered complications even if there had been a resection at
the first operation. In due course he intimated that he was not pursuing that
line so I need say no more about it.
[135] He had
carried out an examination of the pursuer for about ten minutes before giving
his evidence, which was as long as was necessary to assess the defect. He had not met him before but had read
reports from other experts and had some information as to what his work
entailed and what he was able to do in terms of recreation. He had also seen the photographs which were
quite old by now.
[136] In
re-examination he reiterated his opinion that at the time of the first
operation the tissue was dead. If,
contrary to that, the tissue was not yet dead at 0400 hours he was asked to
comment on what the colour of the underlying tissue would have been. He said that it would have been slightly less
ischaemic simply on the basis of the passage of time.
[137] It was
very unlikely that it could have improved at the time of the operation and then
gone downhill again later. It only went
one way. He believed that it was dead at
the time of the operation.
[138] His
views on resection were consistent with those of the majority of responsible
surgeons as were his other views.
[139] The next
witness was Mr John Robert McGregor the consultant surgeon. He had been in overall charge of the pursuer's
case.
[140] He
agreed that the viability of tissue had to be checked in an operation such as this
and that was standard surgical practice.
He delegated the operation to Mr Kingsmore who was a senior enough
trainee to do it with back-up nearby if it was needed. The witness had been
involved in connection with the patient's management throughout but not in the
first night. He was involved the next
day through ward rounds and serial assessments.
Before the first operation there would have been a discussion with Mr
Kingsmore about how to approach the work and what to do once he was inside the
abdomen. He did not recall the
details. The witness himself was
operating nearby and went in to check that Mr Kingsmore was happy. He could not recall the details of the conversation
before the operation but plans were discussed between trainees and consultants.
[141] As he
had indicated, he was present briefly during the operation. He was nearby taking out a gallbladder and while
preparations were being made he took the opportunity to have a look at Mr
Kingsmore's operation. The abdomen was
open and the bowel was exposed. Mr
Kingsmore was happy with what was happening as was he. There was a short exchange between them but
he could not recall the exact stage of the operation.
[142] He
remembered walking up to the operating table but he was not in for as long as
fifteen or twenty minutes. If the
anaesthetist had been unhappy he would have spoken to the witness. The patient did not recover as anticipated
and indeed the witness said that he had suffered absolutely unfortunate and
devastating post-operative complications.
A second operation was necessary and he was directly involved in
that. He was asked whether that had been
discussed between him and Mr Kingsmore.
He said that there would have been discussions involving decision-making
and the operative procedure. He made the
diagnosis that afternoon and there was a need for radical debridement. It was of interest to know how this had come
about. He had been a gastro-intestinal
surgeon for around twenty-five years and had been involved in several cases of
necrotising fasciitis but not one after surgery like this. Possible causes went through the mind but the
aim was to deal with the problem rather than worry about the causes. It was an evolving process. He decided to open up in the end. It was not just necrotising fasciitis, which
did not involve muscle, only skin and soft tissue. There was clearly much more involved because
of the CT scan and the muscle debridement which was required. The commonest source of clostridia was the
intestinal tract and it was important to undertake a certain amount of planning
knowing that the operation had to be got right first time. There was systemic sepsis. He agreed that one possibility was bacterial
translocation through the whole of the bowel wall and that he had that in
mind. He was asked whether he considered
the fact that the state of the underlying tissue might be significant and he
agreed with that. One had to consider
all options. He had a talk with Mr
Kingsmore about the underlying tissue on the day of the first operation. I understood part of the teaching process was
to discuss matters retrospectively.
There was considerable discussion prior to the second operation. The picture was confusing with rapidly
progressing jaundice and liver failure.
He could not specifically say that he discussed the assessment of the
validity of the tissue at the time of the first operation. The focus was on the problem rather on
something which had happened previously.
I understood him to agree that he would certainly have discussed the
assessment of the tissues viability if that had been the only problem. The
failure was systemic, not just in the abdomen and all possibilities had to be
considered. The piece of bowel which had
been underlying the original band was resected.
He had it in mind that he would have to check it, the diagnosis being
that the problem was likely to be Clostridium.
That was why he opened the abdomen.
Any tissue compressed by a band adhesion was going to be changed to some
degree. He made a hole in the tissue by
playing with it as part of his assessment.
One needed to feel it and test it and not just look at it. He opened up the abdomen and found no
evidence of free gastro-intestinal tract perforations. There was no sign of a perforation or
contamination of the cavity with gastro-intestinal contents. He was manipulating it to check its integrity
and a hole developed. He would have been
squeezing it to test its tone.
[143] He was
referred to page 94 and to the operation note.
The piece was far from healthy and to be able to cause a hole like that
it must have been necrotic. The biopsy
confirmed that. He was happy with the
timing set out in the first paragraph of the operation note. It was clear that the major deterioration was
overnight from the 25 April into 26 April and continuing thereafter. He spoke to Mrs McEwan, the pursuer's mother,
who had been a nurse. It was normal
practice to speak to the family. It was
put to him that he had indicated that he had gone back into the bowel and that
there was an area which was red and friable which had been cut out. He said he doubted if he would have said it
was red but he agreed with everything else.
It was suggested that he was going back in to check it and he agreed
with that. He was not going in to
determine the cause as such but to put right the problem and the right thing
was done at the time. He agreed that
when manipulating the piece of bowel and causing a hole it had become apparent
that that might have been the cause of the problems but the operative word was "might". The patient had been sick for sixteen
hours. The body preserves blood supply
to vital organs and shuts down the blood supply to those which are less vital,
including the gut. He had had a low
blood supply to that area for sixteen hours.
It was the subsequent histology which showed what the cause was.
[144] He was
referred to a letter of 8 July 2002 at page 83. The suggestion in that letter that there was
no obvious cause of the problem was said to be inconsistent with his
evidence. He said that it was consistent
because that was merely setting out the findings on first opening the
abdomen. There was no evidence of free
gas or gastro-intestinal content when the abdomen was reopened. In any event the General Practitioner would
have seen the operation note. It was
suggested that the words "rather traumatised" in the letter were somewhat
understated but he said that he had seen bowels a lot more traumatised. In any event the real record was contained in
the operation note. He denied that the
letter was indicative of a defensive stance.
[145] In
cross-examination he was taken through his CV.
That is 7/6 of process. He graduated MB ChB in July 1983 and had held
various teaching posts and other roles.
He was currently the clinical director for general surgery at Crosshouse Hospital and had
managerial responsibilities. He was the
lead clinician for colorectal cancer, having taken that post in 2006. That was his particular speciality but he
also had a general surgical practice.
[146] His
clinical appointments were listed at page 2 as were certain duties which he
carried out for the Royal College of Surgeons.
He was chairman of a UK and Ireland committee for
basic surgical examinations.
[147] His
publications were listed at page 3. He had
a longstanding interest in gastro-intestinal surgery in general and had spent
two years as a research fellow in the Western Infirmary. He had published articles on anastomoses. In April 2002 he believed Mr Kingsmore to be
competent as a surgeon and experienced enough to carry out the laparotomy. He would not have allowed him to do it had he
not been. It was the sort of operation
which was done by trainees, depending on their level and experience. His assessment was not just a personal
one. There were annual assessments with
a panel of around fifteen people as well as trainers' reports to be taken into
consideration. He himself had carried
out such operations on many occasions and indeed had undergone one
himself. Adhesions were commonly caused
by operations. 1% of operations would
require an operation again within a year and 3-5% would require such an
operation within the patient's lifetime.
If a patient had one operation to divide an adhesion then he would be
prone to have recurrences.
[148] Dead
bowel was not red but was black or green.
The green colour was because of putrefaction in the wall, or bowel
staining. A band would be across the
bowel but the bowel itself would be difficult to assess although it would be easier
if the mesentery was involved. If so the
effect would be like a tourniquet and when it was released it would pink
up. It might be dusky, in other words
bluish/purple, before it was released.
If the band adhered directly to the bowel it was much more difficult to
assess. Essentially there was bruising
or tissue trauma. Sometimes an adhesion
could compromise the blood supply to the bowel from the mesentery. The judgement was a subjective one and was
affected by a number of factors. The
blood flow, the oxygen level, whether the bowel was distended, the bruising
effect and the contents influenced the matter.
The bowel wall was a very thin structure. Most people would regard it as a pale pink
colour when it was healthy. When the
mesentery was compromised it might be dusky because of a change in the
haemoglobin. If it was occluded the
occlusion acted like a tourniquet.
Oxygen would come out. Venous
pressure was lower than arterial pressure and was occluded before arterial
occlusion. Deoxygenated blood went from
red to deeper red or blue. When the
adhesion to the mesentery was released one would flush out the deoxygenated
blood and it would pick up again. There would be hyperaemia as a result of
metabolites building up and the blood would be very bright red. It was like seeing cold hands heating up in
the house after being outside in the winter.
[149] In Mr
McEwan's case the mesentery was not involved.
There was a difference in such a case.
The viability was much more difficult to assess and was not based just
on colour. When there was a band
adhesion across the bowel there was local trauma to the bowel much like a tight
string around a wrist. There would be
bruising. It involved a rupture of
capillary blood vessels. If there was
bruising in the bowel it normally occurred primarily in the sub-mucosal
level. There were four layers, the
mucosa, the sub-mucosa (the main blood vessel layer), the muscle layer and the
peritoneal surface or the serosa. If
there was direct trauma to the bowel the blood vessels in the sub-mucosa would
be affected and there would be blood lying deep to the muscle layer causing a purple
colour. He was asked whether, when the
adhesion was divided, that bruising would disappear and he replied in the
negative. That was where the difficulty lay.
Bruises took several days to resolve.
It was common to see a bruise unless surgical intervention was very
quick but usually conservative treatment was tried first. In Mr McEwan's case he was operated on on 24th
April and he had had a couple of days before that where treatment had been
conservative, so one would expect bruising in his case.
[150] He was
asked how one tested whether the area was viable. This was multi-factorial. The unequivocal
signs of death were a black or green colour.
The bowel had a peristalsis reflex in it which happened spontaneously
and could also be encouraged by tapping or flicking gently. One would look at that. Did it run right across where the band adhesion
had been? If it did then the tissue was
alive. One also looked at the muscle
tone. He would place a hand on either
side of the band and give it a little squeeze to see if that area distended
more than the other. If so, then that
was a bad sign. One also looked at the
sheen or the surface appearance. The
normal appearance was a healthy glistening one. The bruising itself would not
change. It was a very difficult clinical
judgement if the mesentery was not affected and there was no fail safe test. If
the area was black or green then it was dead but a localised area of bluish
discolouration did not per se mean
that there was an infarction. One would
not necessarily get any colour change if there was a bruise to the bowel and no
twisting. I asked him what the position
would be if there was no twist and pressurised contact. Once the bowel was released would there be
any change of colour? In most cases
conservative management would be tried and if a person had a problem for thirty
six hours it was going to bruise. He was
asked about checking for blood vessels passing across the area and said that he
would do that test. That was more of a
global test rather than being of assistance where the direct pressure was. The blood vessels were too small to see. One could see where the vessels joined the
bowel. All that one could tell was whether blood was flowing into the segment
but that did not indicate what was happening in the segment itself. It was put to the witness that there was a
dark red line according to Mr Kingsmore where the band had been and after five
to ten minutes it went lighter red. He
said that a red line was a favourable sign.
The blood supply was being restored and the area was hyperaemic. That suggested that the area of bowel was
going to recover. Judgments might be
wrong. It happened to well respected
surgeons.
[151] I asked
him how a change from dark to brighter red with the restoration of a blood
supply could square with the fact that bruising would not improve and he said
that the change could be seen through the bruise with enough blood going
through it. He indicated that one would
not necessarily get any colour change if there was a bruise and there was no
twisting. One would get a colour change
if one went in quickly in such circumstances but of course in the current case
Mr McEwan had been conservatively managed.
[152] He was
then asked about bacterial translocation.
It was possible that that had occurred in this case and was most likely
the cause of the clostridial infection.
The bacteria passed through the bowel wall and into the blood
stream. The gut barrier was a
physiological barrier. Normally the
small bowel was sterile although the large bowel had a lot of bacteria. An obstructed small bowel would get colonised
and if the gut barrier broke down it allowed bacteria to escape. Failure of the gut barrier did not mean that
there was cell death. It failed before
that. A whole lot of factors could cause
it including surgery and even reversible ischaemia. It was not necessary for bacterial
translocation that there be full thickness necrosis. It was recognised in gastro-intestinal
surgery in general and he gave the example of pancreatitis in alcoholics. It was very wrong to suggest that full
thickness necrosis was necessary.
[153] The
contents of the small bowel were mostly sterile but stagnation would cause
problems. We knew in retrospect in the
current case that there was irreversible damage to the area of bowel underlying
the band adhesion and that would have caused failure of the gut barrier. As I understood him, that would have given
rise to bacteraemia or bacteria in the blood stream. A new wound was fertile soil. The bacteria seeded into the wound in the
abdominal wall. The mechanism was a
movement from the gut to the bloodstream and into the abdominal wall rather
than spreading directly across the abdominal cavity. The small bowel had been obstructed for a few
days. It was stagnant and colonised by
bacteria including clostridia. They
multiplied in there. The gut barrier
failed. It was easy to say it failed because
of the state of the gut wall but it could have occurred anyway. The bacteria became absorbed into the
bloodstream and they disseminated through the body. At a very late stage it was possible to say
that they went through the bowel wall into the abdominal cavity but that was
later. It was more likely that the problem was caused by bacteraemia, in other
words bacteria going into the blood supply than their going through the bowel
wall. Even if they were seeded in the
bowel wall they needed time to multiply and spread. He became systematically unwell before going
to the theatre and that indicated to the witness that the problem was more
likely to have been blood borne. He
himself had suggested the CT scan. He had
no issue with the suggestion that that scan was indicative of gas
gangrene. He made that diagnosis
himself. He disagreed, though, with
Professor Keighley's interpretation of the question of beads of gas in the
abdominal cavity. That was not mentioned
on the radiological report but he had looked at the CT scan himself and he did
not know what Professor Keighley was talking about. If the abdomen was open then air was allowed
in. It took five days or so to be
absorbed. If one x-rayed five to seven
days after an operation one would expect to see signs of gas in the peritoneal
cavity. It was just residual air. He went over the scans with a consultant
radiologist whose view was even more emphatic than his own. The beads of gas which could be seen were
above the liver.
[154] It was
put to him that it might be suggested that a general surgeon having seen the
histopathology might be able to count backwards to know when full thickness
necrosis was present and when the ischaemic process began but he said it was
very difficult to give timescales. A
later histology indicated that there was irreversible damage at the time of the
first operation but it came down to the judgement of the surgeon. One could not count back and see what must
have happened. There was no evidential
base for doing this. He could not go
back and say that it must have been apparent that there was irreversible
damage. A different surgeon might have
made a different judgement and sometimes surgeons just got it wrong.
[155] In
re-examination I understood him to say that his view as to how the bacteria
permeated would be the accepted view.
There was a disagreement over the interpretation of the CT scan. He had a high volume of expertise as a
gastro-intestinal surgeon. Translocation
was by and large spread through the blood stream.
[156] The last
witness for the pursuer was Professor John Howard Scholefield. He was a professor of surgery at University Hospital in Nottingham. His experience and qualifications are set out
in his CV number 6/18 of process. He was a consultant general and colorectal
surgeon and had been involved in research for a number of years and had sat on
a number of committees and produced a number of publications. It was part of his job as a professor to keep
up to date. His report in the current
case was 6/9 of process. The factual
background was set out at page 4 but I need not go into that. Page 5 set out his summary of conclusions,
pages 8-11 set out a history of the case and pages 12-14 set out his expert
opinion before his conclusions were drawn at pages 15-16. Paragraph one of page 5 was in the following
terms:
"The operative
note on 26th. April is not clear about whether perforation of the
small bowel occurred pre-operatively or intra-operatively. However, when reviewed with the histopathology
report from the resected piece of small bowel, it seems likely that the
necrotising fasciitis resulted from bacterial translocation through an
ischaemic and ulcerated segment of small bowel.
He was told that a hole occurred when the surgeon manipulated
the bowel and proceeded thereafter on that basis. Paragraph two is in the following terms:
"The extent of
the ulceration and full thickness necrosis described by the Histopathologist
make it very likely that this segment of bowel under the band adhesion was
ischaemic at the time of the original laparotomy by Mr Kingsmore on 24th.
April."
He said that there was a time scale involved. His view was that the tissue must have been
ischaemic at the time of the first operation.
He was asked whether it would have been obvious. His position was that a reasonably competent
and experienced surgeon would have recognised that this was the case. If the bowel tissue became like wet tissue
paper fifty-two hours after the previous operation then that confirmed his view
that it could not have been viable at the time of the original operation. Paragraph three is in the following terms:
"The most likely
sequence of events is that there was a patch of ischaemic bowel lying beneath
the band adhesion which was divided on 24th. April. This area subsequently underwent full
thickness necrosis and led to bacterial translocation from the gut lumen to the
peritoneal cavity some time on 25th. April, and within a few
hours of this occurring Mr McEwan developed severe abdominal pain and the downward
spiral began."
He said that the bowel need not be necrotic to its
full thickness for bacterial translocation to occur. It could occur once the sub-mucosal barrier
was broken down. If there was an insult
such as a period of ischaemia then that barrier was often broken down and full
thickness necrosis was not required. The
ischaemia could be transient or permanent.
He was referred to the chart at page 472 and asked about the condition
of the tissue during the first operation.
It was put to him that it had been suggested that around 0440 hours on
the 25th until around twelve noon that day there
was a deterioration in the patient's health and that must have been when the
infection took hold. He noted from the
chart that the blood pressure dropped after about 10
am and stayed down throughout the 25th and the pulse
rate was increasing from the 24th when it was 100 to about 120. That was compatible with the onset of the
septic episode. He was asked about the
condition of the tissue and asked how the chart helped. He said that the readings suggested a trend
involving Mr McEwan becoming bacteraemic and one could infer from that that he
was septic and that bacteria were translocating from the gut wall. It would therefore have been sufficient
ischaemia to allow that. I understood
him to say that the bacteria would escape into the peritoneal cavity and then
into the blood stream from there.
[157] Paragraph
four of his report read as follows:
"A responsible
body of surgeons acting reasonably would be very careful to examine the
viability of the bowel wall underlying a band adhesion at operation. The area under such a band is commonly dusky
initially but pinks up within a few minutes of the band being released. This inspection and the decision over the
viability of the bowel wall is such a critical part of the operation that no
reasonable body of surgeons would fail to undertake this part of the operation
or to record it in the operation note.
There is absolutely no mention of the colour of the bowel after dividing
the band adhesion, nor of any ischaemic patches. I believe this to be evidence of provision of
a substandard level of care."
[158] He was
referred to the operation note at page 95.
He said that any reasonably experienced and competent surgeon conducting
such an operation first divided the adhesion and then looked at the bowel
underneath. That was the next most key
element after the division. It was
common to see a discolouration caused by the compression and usually it looked
unhappy, sometimes bluish. Then the
surgeon's responsibility was to establish that it was either viable or that it
needed to be resected or oversewn.
Sometimes it picked up and became hyperaemic and sometimes one needed to
put packs round it and wait five or ten minutes before going back to inspect
it. It was absolutely core.
[159] If one
looked at a normal small bowel it was the colour of the inside of one's
mouth. If it was compressed by a band
adhesion and released it would be the sort of colour one had if one had blue
lips and on recovering its normal blood supply it would become hyperaemic or
cherry red. If it was not viable it
would stay blue. If dead it went greeny blue,
which indicated necrosis and gangrene.
[160] The
decision when to resect was based on a value judgement based on how the bowel
looked initially and then a few minutes later.
If it stayed clearly blue then most surgeons would be unhappy to leave
it like that and if it went cherry red then it would be alright. He was asked whether during the first
operation the ischaemia would be patent.
He said that if visible there would be an element of bluish
discolouration that did not improve. I
did not think that that really answered the question. At the second stage the condition of the bowel,
which was like wet tissue paper, was important.
That inferred that at the earlier operation it was not healthy tissue
and there would on the balance of probabilities been some fairly clear signs
that it was not. To go from viable to
necrotic in forty-eight hours was rather unlikely. It usually took a bit longer than that. This was a very short space of time for it to
go from healthy tissue to a state of disintegration. The patient had had a three day history of
abdominal pain before being admitted on the 22nd. By the time of the operation he had had at
least five days of it. It depended on
how tight the constriction was but it was obviously a long history. It was a long time to be obstructed and
increased the risk of the band being ischaemic.
It was more reliable to work backwards rather than to infer anything
from this five day period and go forwards.
[161] Paragraph
5 of his report at page 5 dealt with Mr Kingsmore's experience. Amongst other things it said the following:
"The fact that an
area of ischaemia in the small bowel was not recognised implies that Mr
Kingsmore should not have been operating alone in this case."
He was told that Mr Kingsmore was in his third year of
higher surgical training and he had done operations of this type
previously. That did not alter his
view. A third year specialist registrar
might not have spent all of these three years in general surgery. These were subjective judgements and required
a degree of experience. He probably did
not have a log book for the surgeon. The
fact that he did not record anything led the witness to think that he could not
place any credence on how experienced he was.
He did not think that any responsible surgeon acting reasonably would
have failed to recognise the non-viable state of the small bowel then. In terms of paragraph six he opined that had
the area of ischaemia been identified and resected then the patient would have
probably made an uncomplicated recovery from his illness. Paragraph two on page 12 read as follows:
"Mr McEwan has
clearly suffered a very serious illness as a consequence of developing
necrotising fasciitis in his abdominal wall and scrotum. The most likely cause of the necrotising
fasciitis that it occurred due to synergistic gangrene caused by bacterial
translocation through an ischaemic patch of small bowel underlying the band
adhesion, following surgery to relieve an intestinal obstruction caused by a
band adhesion (sic)."
He agreed that we had been discussing the transfer of
bacteria into the peritoneal cavity. He
was asked whether bacteraemia had a role to play and said that it was a
cascade. Bacteria got into the cavity
and then into the bloodstream and then the toxins got into the bloodstream
causing septicaemia. That moved on to
multiple organ failure. Once the
bacteria got into the cavity and the bloodstream, systemic sepsis was almost
inevitable. The first process was
transfer of bacteria into the cavity itself and then into the bloodstream. One led to the other. It was possible for bacteria to get into the
bloodstream before they reached the abdominal cavity but that was not so likely
in this case. The gut had not been
opened in the first operation and there was no obvious mechanism for the bacteria
to get into the system. Paragraphs four
and six were in the following terms:
"4. The Histopathology
report identifies extensive mucosal ulceration and full thickness necrosis of
the bowel wall under the band like area which was probably the site of the band
adhesion. One of the features of the
operation to relieve intestinal obstruction caused by a band adhesion is to
confirm the viability of the bowel wall underlying the band adhesion. Often the area will appear dusky at first,
but on warming (by return to the abdomen or wrapping in saline soaked swabs)
the viability of the bowel can quickly be established. Failure to do this or to record that the
bowel viability was checked is to omit a key part of the operative findings. A responsible body of surgeons acting
reasonably would not omit such an important detail from the operation note."
"6 The time period between the first laparotomy
at 1400 hours on 24th. April to Mr McEwan developing signs of
necrotising fasciitis at 1615 hours on 26th. April is
approximately fifty hours, but Mr McEwan became unwell at 0400 hours on 26th...."
Having seen the chart he said that it looked as if the
blood pressure dropped on the 25th and got progressively worse until
the 26th. That meant there
were signs of systemic sepsis during the afternoon of the 25th, the
blood pressure dropping from about 12 noon that day. The paragraph referred to the perforated
bowel but he retracted that in view of what he now knew about the second
operation. The paragraph went on as follows:
"There is
approximately thirty-six hours between the original laparotomy and
Mr McEwan developing jaundice, testicular pain and spreading cellulitis of
the abdominal wall. Histopathology of
the resected small bowel from the second laparotomy showed full thickness
necrosis of the small bowel wall at the site of the division of the band
adhesion. This would have allowed
bacterial translocation...In any event, the development of full thickness
necrosis of the small bowel would have allowed bacterial translocation and
initiated the process of necrotising fasciitis..."
Even if one proceeded on the basis that Mr McEwan became
unwell at around 0400 hours at 26th that did not alter his opinion
as to the condition of the tissue at the time of the first operation. By the 26th he was really
unwell. Paragraph eight ran, inter alia, as follows:
"8 In order for the bowel to have been
sufficiently ischaemic to show full thickness necrosis within thirty-six hours
of the original laparotomy it is likely that there were demonstrable changes in
that area of bowel at the time of division of the band adhesion."
He was asked whether there had indeed then been full
thickness necrosis and he said it was difficult to know exactly when that
happened and to some extent that was not wholly relevant. The fact that he became septic and developed
synergistic gangrene was due to translocation.
One could have full thickness necrosis without its falling apart but it
was well established in the tissues which are resected. If it was more established it started to
digest itself and became more like wet blotting paper. Paragraphs nine and ten ran as follows:
"9. There is no evidence from the operation note
that Mr Kingsmore identified an area of ischaemia under the band adhesion, or
undertook precautions to make sure the bowel was viable. Nor did he make any note or comment as to the
state of the bowel underlying the band adhesion. In this regard I believe the standard of the
care provided was less than might reasonably be expected of a competent
surgeon.
10. Mr Kingsmore's comment that he divided the
adhesions of the small bowel to the abdominal wall by sharp dissection,
indicate reasonable surgical practice.
It is generally accepted that sharp dissection of such adhesions is
often better than blunt dissection, which may result in the tearing of the
bowel wall and iatrogenic perforation."
Paragraph 11 is as follows:
"11. The onset of Mr McEwan's deterioration appears
to have started from around 1500 hours on 25th. April,
from which point he rapidly became deeply jaundiced, dehydrated, anuric and
very septic. A discolouration of his
scrotum in the early hours of the following morning was undoubtedly a
manifestation of the necrotising fasciitis caused by the clostridial
infection. These organisms were released
from gastro-intestinal contents released from site of the perforation in his
small bowel. The severity of the
jaundice and the renal failure are also a consequence of this rapidly spreading
clostridial infection which causes tissue necrosis and multi organ failure..."
He was asked whether it mattered at what point the
patient became ill and he said that it mattered for those trying to look
backwards for evidence that the bowel was necrotic at the time of the first
operation and I understood him to say that looking at the records it became
more clear that there must have been a significant change at the time of the
first operation and it must have been pretty understandably and recognisably
so. He was asked whether he was
confident that the mechanism involved the bacteria translocating into the
cavity and he said that it was possible that it went into the blood supply if
there was mucosal ulceration. He said
that there was no real difference at the end of the day whether it got into the
cavity first or into the bloodstream first.
Pages 15 and 16, setting out his conclusions, were really a reiteration
of the summary.
[162] In
cross-examination he was taken through his CV and agreed that one of his
special interests was diseases of the colon, rectum and anus especially
pre-malignant cancer. He had a number of
wide ranging publications. He did not
just concentrate on the large bowel but worked in gastro-intestinal disease
generally. He also dealt with Crohn's disease,
which affected any part of the bowel. He
regularly dealt with the small bowel. He would do operations to divide band
adhesions. Registrars did these under supervision
to varying degrees and it was commonly done by trainees with a level of
supervision depending on their experience. He said that band adhesions compressed
the lumen and could also cause damage to the wall. He could not say that in every case one would
expect some degree of damage to the small bowel. If there was an obstruction caused by a band
adhesion which persisted for a time the risk of damage to the bowel wall was
greater but if the adhesion persisted for a short period then often there was
no damage. In the current case there had
been obstruction for about five days so there was a high risk of damage. He was told that it had been suggested that
one of the effects of compression was bruising and he said that that was an
interesting phenomenon. Bruising was
really blood leaking into tissue because blood vessels were damaged. He did not think that he had ever seen that
as a result of a band adhesion and he would not expect to see it. A band adhesion caused gradual compression of
the bowel wall and one normally saw a clear band where it had been. If there was bruising it would spread out and
that would be seen. It was suggested to
him that a band adhesion was like a ligature and he said that a ligature was
usually tied tightly but a band adhesion was more of a gradual
compression. He had never seen bruising
in the bowel.
[163] He
agreed that checking the bowel condition was an inherent part of the
procedure. It was a core element. The operation to relieve the bowel involved,
in the first place, releasing the band and then the key thing was to check the
bowel's viability. If a person did not
make a check that would suggest he did not know what he was doing. If he did know what he was doing he would
expect him to check but he would also expect him to write it in the operation
note.
[164] He was
then asked about colour change. There
might sometimes be little discolouration.
The colour depended on how compressed it had been. If it was dead it would be black or green but
if it was viable it would quickly blush or go hyperaemic. A healthy bowel was pink with a sheen like
the inside of a mouth. It was not light
pink or almost white. The colon was a
paler colour than the small bowel and had muscle bands along it which were
almost white and one could get white patches which were very fine but that was
not the same as when there was a band adhesion.
[165] He was
asked if one would see a dark red line on dividing the band and he said that it
was variable. The return of blood to
tissue would give a blush. If tissue was
compressed there could be red hyperaemia as it recovered. Venous blood could give a bluish
discolouration and as oxygenated blood got in there was hyperaemia. It could be that all one saw was a red
line. If doctors were happy then the
wound could be closed but, if not, one could resect or come back twenty-four
hours later. He was asked whether if all
he saw was a red line that might be seen as viable and he said that he would
always wait a few minutes. When bands
were divided one could see discolouration, sometimes blue. A line might become more hyperaemic before it
faded. If hyperaemic, it was brighter
red than normal. He put more weight on
the histopathology than the chart. He
was asked whether he was really able to say that the state of the band must
have been patently compromised. The
histopathology was the strongest evidence we had. In addition the band was like wet tissue
paper fifty hours after the first operation.
It was very unlikely that it was viable at that earlier time. That was based on his experience of
gangrenous bowels and from going back in to operate. They did not go from being fully gangrenous
to blotting paper in less than thirty-six hours so he thought that at the first
operation there must have been something to indicate that it was not
viable. It was very unlikely that it was
viable at the time of the first operation.
If the operation was done by a responsible surgeon it was very likely
that he would have expected its non-viability to be identified. He based that on his own clinical experience
and on discussions with colleagues during meetings and the like. They had not discussed this case particularly
but there had been audit meetings and experience of going back into theatre
after twenty-four hours. He said that
the reference to thirty-six to forty-eight hours was a rough estimate where it
appeared at item seven of page 13 of his report. It was suggested that since there was no
perforation other than one caused during the operation and that occurred more
than fifty hours after the first operation and, if he was correct, that
suggested that most of the ischaemia had not occurred until after the first
operation. He said that there was no
difference between what was in his report and what he was saying in
evidence. There was no substantial
difference between the timescales.
People were not machines. Perhaps
he should have put it in his report as an approximation and should not have
said that clinical experience dictated that the period between the onset of
ischaemia and perforation was thirty-six to forty-eight hours. In answer to a question by me he said that
the perforation he had in mind was one which occurred without surgical
intervention and it seemed to me that there was no real difference between his
report and what he was saying. He could
not be 100% sure that the bowel must have been ischaemic but he was fairly sure
that there were clinical signs of it. It
would look dusky and would not pink up.
There was nothing in the notes about its state and that worried
him. That suggested that the surgeon did
not understand the principles or know what he was dealing with. He was referred again to the histopathology
report. That recorded extensive mucosal
ulceration and that process would allow the translocation of bacteria before
there was full thickness necrosis. In
other words it could allow it into the bloodstream before it got into the
cavity. The mucosa was usually the first
part of the bowel to be compromised. The
strongest layer was the sub-mucosa.
[166] In
re-examination he said that the appearance of a dark red line would be
consistent with what he knew, looking back.
It was put to him that Dr Kingsmore indicated that there was a dark red
line and he applied warm packs to it.
When he came back five to ten minutes later it had changed to lighter
red. He said that that was not
consistent with what he would have imagined.
He would have expected that if it was viable. If the band was going to recover he would
have expected it to go from a dark to a redder colour. He would also have expected that to be included
in the note because it was a key feature of the operation. It would surprise him if it went from a dark
red to a lighter red. If it was like wet
tissue paper some fifty hours later then he would have expected the mark to
stay dark and discoloured and there would not have been any change.
[167] With
that the pursuer's case was closed.
[168] The only
witness for the defenders was Professor Zygmunt Henderson Krukowski. He was born in 1948 and was the Professor of
Clinical Surgery at Aberdeen University as well as being
a consultant general surgeon at Aberdeen Royal Infirmary. He was a surgeon to the Queen in Scotland. 7/7 of process was an abbreviated CV. He graduated MB ChB in 1972 and had held a
number of posts. He was on the editorial
board of the British Journal of Surgery from 1996-2002, the Medical Research
Council, The Royal College of Surgeons of Edinburgh, took part in work with the
Scottish Executive/Home and Health Department as well as being involved with Grampian
Health Board, Aberdeen Royal Hospital NHS Trust and being the president of the
British Association of Endocrine Surgeons.
He had a special interest in emergency abdominal surgery and was the
co-editor of the third edition of Jones on Emergency Abdominal Surgery
(1998). He had a particular interest in
infective complications of diverticulitis with regular invitations to lecture
including bi-annually at St Marks in London. That was the premier hospital in the UK for dealing with
colorectal surgery. He had written a
chapter on sigmoid diverticulitis in the first four editions of the companion
to the Specialist Surgical Practice series and had additional experience in
severe abdominal infections, laparoscomy and abdominal wall
reconstruction. He had been on the
Faculty of Meetings on this topic and given invited lectures to the Royal
College of Surgeons in Edinburgh and the Annual Meeting of the Association of
Surgeons of Great Britain. He was
interested in surgical infections and in the prevention and treatment
thereof. One of the most severe
complications was the loss of tissue in the abdomen through severe infection,
and he had spoken on that. He had been
involved in most of the cases of that nature which had passed through Aberdeen and which had
been referred to them.
[169] The sort
of loss which was sustained by Mr McEwan was of particular interest to
him. It was an infrequent event but he
was interested. In his practice he managed
patients who had suffered loss of abdominal tissue and he undertook surgical
reconstruction.
[170] In
connection with Mr McEwan he had been given the pleadings, various statements
and reports, medical records and radiological images. He had seen the reports from Professors
Keighley and Scholefield and had examined the pursuer in Aberdeen on 21 May 2008 before producing a report,
number 7/8 of process. Paragraph one set
out the history he was given by Mr McEwan and paragraph two dealt with his
treatment in Glasgow Royal Infirmary and his current position. Paragraph three gave an account of Mr
McEwan's infertility and paragraph four was a report of the examination. Paragraph five ran as follows:
"The loss of the
abdominal musculature has resulted in an extensive hernia of the abdominal
viscera but the protrusion has not progressed over the last few years. This may be due to the effect of the
elasticated abdominal garment. He has no
cutaneous sensation over the extensively skin grafted area."
It might be a combination of the scar tissue and the
abdominal support which had prevented the protrusion from progressing.
[171] Paragraph
seven was in the following terms:
"Mr McEwan
presented as a reasonable individual, not excessively psychologically disturbed
by this traumatic experience. There is a
considerable reduction in the quality of his life following this episode. He cannot take part in physical activity involving
his trunk muscles including former sporting and many normal domestic
activities."
That was what Mr McEwan had reported to him and he
accepted that it would be the case.
Paragraph ten was as follows:
"There is the
potential for him to undergo reconstructive surgery to refashion his abdominal
wall. This should improve the
appearance, potentially improve function and reduce the chance of progression
of herniation. If successful, this could
remove the requirement for the external support garment. However, reconstruction requires major
surgery. Depending on the plan, this
could involve tissue expansion to increase the availability of normal
skin. Mobilising the skin graft over the
abdominal viscera, and the remaining normal skin, subcutaneous tissue and
muscles of his abdominal wall would permit some approximation of existing
normal tissue but the lost abdominal musculature and tendon requires extensive
replacement with prosthetic material.
Covering prosthetic material would require extensive mobilisation of
healthy abdominal skin with subsequent secondary defects."
In other words, the witness thought that Mr McEwan
could undergo reconstruction but it would be more than one procedure and would
be major surgery. The fact that he was
unwilling to do so was a reasonable position for him to take.
[172] Paragraph
eleven read as follows:
"Further surgery
to the abdominal wall carries risks of bowel injury, infection and technical
failure and he is understandably apprehensive about undergoing further surgery. I would consider these risks acceptably low
in his situation were he to decide to proceed."
He reiterated that Mr McEwan's position was a
reasonable one to take.
[173] He said
that far and away the likeliest cause of the patient's clostridial infection was
translocation of the clostridia from the gut lumen. He agreed that he had an extensive systemic
infection by the early hours of 25 April.
[174] He was
of the opinion, having seen the documentation including Mr Kingsmore's CV,
that the latter was sufficiently experienced and trained to carry out the
operation, which was quite a common one. As far as the colour of a normal small
bowel was concerned, he said that it would be fair to describe it as like the
inside of the mouth. It would not
normally be off-white. However, he was
colour blind.
[175] It was a
necessary part of a division to check the validity of the bowel wall underneath
the band. What one would expect to see
was a function of the tightness of the compression and how long it had been in
place. The band could be compared to a
piece of string lying across the bowel and compressed bowel was paler than
normal. The longer the compression, the
paler it would be. It was made pale
because of the restriction of the blood supply.
If blood was oxygenated it would be red but if the bowel was compressed
and no blood going through it would turn pale.
On releasing it, if the bowel was viable it would change colour. There were degrees of change. Sometimes the bowel wall would be dead at one
extreme and sometimes it would return quickly to its normal colour. Sometimes there would be sufficient potency
of the tissue underneath that would allow some colour to return. As the blood returned the colour to which it
returned would be variable. I understood him to say that if there was damage
then there would be leakage of small blood vessels causing bruising. If there was no change at all the surgeon
would be unhappy. If the tissue was
necrotic or damaged it would be pale. If
small blood vessels were damaged and the blood supply was restricted one would
get leakage of blood supply into the tissue.
If it was damaged beyond recovery there would be no return of blood
flow. There might be bruising if the
tissue was damaged but not dead.
[176] He was
asked about the scenario if the band was not divided but still pressed on the
wall and had been there for some time such as two or three days. He agreed that
the constriction would have been pressing on the serosa. During the period when it had been pressing
it would have constricted the blood vessels.
If it had done that it could cause bruising but it need not. He was asked whether it was possible that
there was a bruise under the band which could not be seen because of the band
and he said that depended on how tight it was.
One could not see what was under it when it was still in place. It was possible that there might be a degree
of bruising. He talked about his recent
experience and indicated that there could be some bruising round about. He was asked about the process of bruising
and said that it was the leakage of blood from within blood vessels into the
tissues. Blood started off red and over
time it darkened and along with dead tissue went through various colours till
it was reabsorbed. There was a process
by which it changed through various colours having started out as red. When blood was oxygenated it was red and when
it leaked into the tissues the haemoglobin broke down and it went through
several colours until it was reabsorbed.
In other words it bled into the tissue, being red at first, and then it
decomposed and broke down causing changes.
He was asked how long it took to go from the red colour to a darker
colour and said it took minutes for the oxygen to be used up, half an hour at
maximum. It would then break down over a
period and change colour until it was all reabsorbed completely. It was a necessary part of the operation to
check the area underneath and see if it was viable. Surgeons wanted to look at the degree of
compression to see if the tissue, which could be a very narrow area,
re-coloured or pinked up. One wanted to
see if it was contractile between the two edges of the band. If it remained white and did not change
colour and was non-contractile then it was dead tissue. Sometimes it recovered very quickly and in
between there was a range. There would
always be a residual mark.
[177] One was
not looking for peristalsis as such but a reaction to flicking. One wanted to see if there was such a
reaction between the two edges of the band.
He agreed that one of the other matters to look at was colour change and
when he was asked if there was anything else he said it was not so easy in a
narrow band but one had to look at the sheen.
Furthermore, dead tissue might just give way.
[178] As far
as colour was concerned, he said that initially one would expect the mark to be
pale or white. If it was severely
contracted it was pale. He was asked
what the position was if there had been bruising and he said that the condition
was usually pale. He could not recall a
contraction where there was bruising under the band. One would, though, hope to see return of
blood. I understood him to say that if
the mark was pale and blood came back in, capillaries having been damaged
previously, then one would get leakage and it would turn red. It would be dark red if it was bruising which
was concerned. If there was no distinct
change then he would be worried. If it
changed colour he would be less worried.
Blood could return in front of the surgeon's eyes. It could pick up very quickly and that was
relatively reassuring. If one was not
entirely happy one would come back a little later and have another look. He would not always use warm packs. Generally he would put the bowel back into
the cavity. Packs could not be put on if
the abdomen had not been opened. He was
not all that keen on them since in any event they might cool down. The bowel would generally be left around ten
minutes and if one was not happy then perhaps longer. One was hoping to see that the colour had
improved, that the narrow strip had a sheen and that it was contracting. If it remained a red colour it was reassuring.
One had to make a judgment if resection was required. Inevitably when resection was not thought
necessary there would be occasions when a surgeon would be wrong. He said that if the line was dark red it
probably would not improve over the course of an operation. A dark red line was more likely to be due to
leaked blood. where there was a bruise it would not change colour over the
course of an hour.
[179] He was
asked then about reactive hyperaemia. If
blood supply was restricted for a period and then allowed to come back in, the
blood vessels would dilate and it would appear redder. It would be a good sign. He was asked what would happen if there was
bruising and then reactive hyperaemia and he said that it would be hard to
distinguish that in amongst the bruising, especially in a narrow constricted
band. If it was obscured by bruising one
would not see it.
[180] He
agreed that one had to make a judgment and balance risks. There were risks in leaving it and risks in
resecting it. As far as going back
twenty four hours later was concerned, that was something he might do if a
patient had had a number of operations and lost a lot of bowel tissue. It would be more imperative then to try not
to lose any more. With a young fit man
he would be less likely to leave it twenty four hours and would decide there
and then whether to resect or not.
[181] It was
put to him that Mr Kingsmore said that he saw a dark red line, that he put it
in warm packs and got on with checking other organs and came back five to ten
minutes later. When he looked at the
site he saw that it was a lighter red and he also flicked it, noticing that
there was peristalsis across the band and he saw small blood vessels going
across it. There was nothing in that
which was impossible. If that was what
he saw then he said that it was reasonable to think that it would survive.
[182] If the
area was black or green that would imply that it was already necrotic. If green, it would be a stage on from white
but he had not seen a black line. If it
was necrotic there would be other indications as well, such as softness, and
the fact that it would probably fall apart.
The stage of being green or black was further on from the stage of
whiteness.
[183] He was
asked about the histopathology report.
It was likely that there was a process ongoing in the sub-bowel at the
time of the first operation. It spoke
for itself. He was asked whether it
followed that one could infer that the changes were patent. He said that clearly in this case the right
decision was not made but one could not draw that conclusion. There was a spectrum. He had seen patients suffer a perforation two
days after a band adhesion and he was also aware of them where the wrong
judgment was made but where fibrous adhesions developed, this being seen years
later. Sometimes the decision would be
wrong but it was infrequent.
[184] A modern
French prospective study was done and showed that in three out of seventy three
cases when a bowel was said to be viable it was the wrong decision. He said that they had been collecting data
since 1977 on surgical infection and he could only recall two occasions when
there was perforation after a band adhesion, so it was infrequent. Therefore if Mr Kingsmore's judgement was
wrong, it was not unique.
[185] In
cross-examination he was asked about bruising.
Damage could cause blood to leak into surrounding tissue. The amount of damage to the tissue could
determine the extent of the bruising. It
would depend upon the size of the blood vessels which leaked and the pressure
applied. In his experience there could
be bruising round about a band or adjacent to it. His experience of bands themselves was that
they were pale. It was possible that
there would be bruising in the surrounding areas, particularly upstream of the
band where there was congestion and distension.
[186] He
agreed that translocation of bacteria from the gut lumen through the small
bowel would occur where the gut barrier ceased to be effective. He said that if that happened it was probably
dead. At least the mucosa would be
ulcerated and dead and it was then a question of how lax the muscle and other
tissue were. It would be very
damaged. The key tissue was the
mucosa. Once that was breached it was
easier for bacteria to get through, although the tissue thereafter would not
necessarily be dead.
[187] Where
the band constriction was relatively narrow the flicking test would not be as
constructive as one in a large piece of bowel.
In the current case the band did not go round the whole circumference of
the small bowel but he said that that would not happen normally in a band
adhesion. He was asked whether that was
significant and said that part of it might not have contracted but it was not
the most reliable test.
[188] It was
put to him that it was suggested that one could see blood vessels where the
mesentery joined the small bowel and he agreed with that. He was asked whether it was unlikely to see them
on the surface of the small bowel itself and he said that he could see that
there would be circumstances where that would arise.
[189] With
that the defenders case was closed.
Submissions
for the Pursuer
[190] In
opening his submissions Mr Armstrong invited me to find in favour of the
pursuer, to sustain his first plea in law and to repel pleas three and four for
the defenders. He indicated that he was
not insisting in the case against Mr McGregor and invited me to disregard the
pleadings referable to that to be found in Article 7.
[191] It was
not his intention to refer generally to the clinical notes and he invited me to
have regard to Professor Keighley's report, 6/7 of process, where these notes
were handily summarised between pages 7-23.
[192] It was
plain that Mr McEwan attended the hospital with a history of pain, conservative
treatment did not work and he was operated on on 24 April whereafter he
deteriorated. There was the onset of
multiple organ failure followed by a second operation and he was lucky to be
alive.
[193] He said
that ongoing disability was less significant.
The treatment in hospital would have a bearing on disability but his
ongoing disability arose from the second operation itself.
[194] The real
controversial area was the first operation and exactly what happened.
[195] He
indicated that he had submissions on two fronts.
[196] The
first case was that Mr Kingsmore wholly failed to perform the operation to the
necessary standard of professional practice. In that regard his credibility and
reliability came into sharp focus and I was invited to disregard his
evidence. If I did so, then judgement in
the pursuer's favour would follow.
[197] The secondary
case was that if I accepted Mr Kingsmore's account then he failed to carry out
the necessary standard professional practices properly and reached a clinical
judgement which no ordinary competent specialist registrar in general surgery
would have reached.
[198] He then
turned to some general comments about Mr Kingsmore. There were two aspects which he wished to
look at. The first of these was his
demeanour and the second was the quality of his recollection. As far as his demeanour was concerned, Mr Armstrong submitted that he appeared
defensive, sometimes more defensive than others and also agitated, although in
fairness he did not make much of that given that Mr Kingsmore's professional reputation
was to some extent on the line.
[199] As far
as his recollection was concerned, he said that it was eloquent that there were
aspects of the operation which he could clearly remember apparently and others
where his recollection let him down. The two principal aspects about which he
was clear were that (a) on dividing the band he saw a thin dark red line which
changed to lighter red and (b) that he had no doubt about the viability of the
tissue using such words as "no doubt", "sure" and "certain". Otherwise his memory was less than
complete. Mr Armstrong gave five
examples as follows:
1. As to the presence of Mr McGregor in theatre
and the conversation they had, Mr Kingsmore's account was that Mr McGregor
effectively put his head round the door, although Mr Armstrong was not sure if
that was the expression used, asked if everything was going well and received a
positive response from Mr Kingsmore. The
premise of all that was that he was nearing the end of the operation and in the
act of closing up the abdomen. Mr
McGregor's account, on the other hand, was different. He did not just put his head around the door
but was actually in the theatre and at the patient's side. The operation was ongoing with the abdomen
still open.
2. He said that he could not recall the sheen of
the area of underlying tissue, in respect of its significance.
3. He said that he saw small capillaries or
blood vessels on the surface of the small bowel at the point of
constriction. There was a difference of
opinion as to whether that was possible.
Mr McGregor said that that could not be correct because these vessels
were microscopic. One could see vessels
where the mesentery joined the small bowel but not in the small bowel wall
itself. The significance of it was that
Mr McGregor said that from seeing the blood vessels at the joint all one could
say was that there was a blood supply to the section of bowel rather than to
the particular point of constriction. If
Mr McGregor was right then Mr Kingsmore's account could not be. In fairness, though, Professor Krukowski said
that it might be possible to see small blood vessels perfusing when the blood
supply returned.
4. Mr Kingsmore was unable to give any details
of any discussions between himself and Mr McGregor between the two
operations. Something had obviously gone
wrong and one would expect discussions.
Mr McGregor agreed that conversations had taken place about what had
happened so why was Mr Kingsmore's memory not consistent with that?
5. Mr Armstrong had asked him questions about
the frequency of his checks of the underlying tissue. The original position in the defences at
answer six was that he checked three times but when it came to the Closed Record
at page 9 there were four checks. In
examination in chief, as it wore on, it appeared that there may have been any
number of checks up to six.
Mr Armstrong accepted that in an operation of this type no doubt he
would be conscious of the bowel throughout but nonetheless he submitted that it
was odd that he could not be more certain about what he had actually done.
He had no perfect recall. His recollections were apparently clear on
the critical matter of the state of the tissue and its colour and vague about
everything else.
[200] On the
matter of the condition of the bowel there was a further aspect. The action was raised in 2005, three years
after the operation and it was now six years since these events. The elephant in the room was that the
operation note at page 95 of the records was silent as to the condition of the
bowel. It was strange, therefore, that
his evidence on that was clear.
[201] Mr
Armstrong submitted that Mr Kingsmore had simply failed to carry out the
standard practice of checking the viability of the tissue.
[202] I should
have regard to his powers of recollection and approach that recollection with
caution.
[203] Furthermore,
the opinion evidence was against his version of events, especially that of
Professor Keighley. His position was
that the tissue underlying the bowel must have been non-viable and to have
appeared so. Professor Scholefield said
that it was very likely to be non-viable and to have appeared so.
[204] Professor
Krukowski appeared to accept that the ongoing process had begun before the
first operation.
[205] Five aspects
supported this contention. The
histopathology at page 272 was of significance.
According to Mr Kingsmore, the appearance of the resected bowel was
like wet tissue paper at the second operation.
It was not just necrotic therefore but had reached a further stage and
was falling apart in the surgeon's hands.
There was full thickness necrosis with all four layers affected. Professor Scholefield was confident to work
backwards and his initial timeframe of thirty-six to forty-eight hours in his
report was described by him as an approximation. He had no difficulty with a period of
fifty-one hours (although the operations might have been fifty-one hours apart)
and did not see that as a problem. He
was confident that one could assess the condition of the underlying tissue at the
time of the first operation by reference to the histopathology report.
[206] Professor
Scholefield's assessment was that it was based on his own experience and also
on that of his professional colleagues with whom he discussed matters in
morbidity follow-up meetings. Professor
Keighley's view was that his opinion was consistent with the majority opinion
of ordinary competent surgeons. He was
also happy to work back from the histopathology report. Each of these gentleman thought that the
underlying tissue would have been purple in colour and went on to say two
things.
(a) If it was purple then there was a high risk
that it was not viable and
(b) If it was purple (particularly Professor
Scholefield) one would expect there to be no change in colour.
[207] In
passing, said Mr Armstrong, it was of interest that in terms of the standard
practice there had been a range of opinions given about assessing viability but
there was one standard position taken and that was that there should be a
change of colour. That was
critical. If there was a change then one
would feel happier than if there was none.
In this operation Professor Scholefield would have expected no colour
change and Professor Keighley was even more emphatic. He stated that the tissue could not have been
viable and that fact could not have been missed, assuming it was checked.
[208] The
second aspect of the evidence was this.
The particular circumstances of this band adhesion were that the
mesentery was not constricted which had a significance in connection with
venous return and colour and there was no evidence that the bowel was
twisted. In these circumstances, Mr
McGregor said he would have expected there to be no colour change. He began by suggesting one would not
necessarily see it and when asked when one would see it his ultimate position
was that one would not. Interestingly in
the context of a discussion about bruising Professor Krukowski had said that if
the tissue underneath was dark red at first it probably would not improve in
colour over the duration of the operation and also if there had been bruising
followed by hyperaemia (a bright vivid red) it would be hard to distinguish the
change of colour from the bruising in a narrow band. If there was hyperaemia it would be obscured
by the bruise and one would not see it.
All of this completely contradicted Mr Kingsmore's evidence that it was
changed from dark red to lighter red.
The third aspect was the chart at page 472. Professor Keighley said he had not seen
this before compiling his report and at page 30 of the report he indicated that
he concluded that at the time of the first operation the tissue must have been
red or purple. Having seen the chart, he
said that it must have been purple and discounted redness. The chart was an
indicator that the infection had taken hold between 0400 hours and 1200 hours
on 25 April, around twelve hours after the first operation, and it followed
that the small bowel must have been sufficiently ischaemic to allow
translocation to occur. Per Professor
Krukowski this meant that the barrier in the wall at the mucosal layer was
probably dead twelve hours after the first operation. How ischaemic must it have been at the time
of the operation? There was an issue concerning
how the infection came about and there had been two theories. One was that the bacteria entered the
bloodstream without migrating across the bowel wall and the second was that the
bacteria migrated through the thickness of the wall into the peritoneal cavity
before entering the bloodstream through an inflammatory process, according to
Professor Scholefield. It was
significant that the bowel was dead at most twelve hours after the first
operation. Mr McGregor gave
evidence about bacterial translocation into the cavity and said that sort of
translation could occur but it would be "late on." That led to the inference that the ischaemia
must have been pretty serious at the time of the first operation and also obvious. The fourth point was the three day history of
the patient on admission. By the time of
the operation there had been five days of constriction causing painful
obstruction. That sort of condition
produced ischaemia. That was consistent
with what we had heard from Professor Keighley that the ischaemia leading to
the histopathology report had been ongoing prior to the first operation.
[209] The
fifth point was that the pursuer's white cell count was mildly elevated on
admission, per the notes at page
41. The evidence from Professor Keighley
was that that would be consistent with ischaemia.
[210] These
five aspects supported the contention that what Mr Kingsmore said he did could
not be true. The tissue could not have
been dark red and could not have revived.
[211] A sixth
aspect was the non-recording of the operation.
There were two aspects to that.
The surgeon should record the procedure undergone and certainly it
should describe the viability of the tissue.
Both aspects were missing from the notes and both were described as
critical. Both Professor Scholefield and
Professor Keighley said that they would expect these matters to be recorded in
the note. There was evidence by Mr
Kingsmore that he considered that such recording was not standard practice but
there was an illustration by example of a proper operation note from the
operation in 1994 at pages 96-97 of 6/2 of process.
[212] Mr
Kingsmore said that he considered the operation to be bread and butter and
straightforward and Mr Armstrong suggested to him that it was so
straightforward that he forgot to check.
The fact that there no record of the check meant that the assessment was
not carried out. If the practice was so
critical that it was carried out it would be in one's mind and one would record
it in the notes. If it was not recorded
it suggested that it was not done.
[213] The
evidence was incompatible with Mr Kingsmore's account about his assessment of
the tissue's viability. He could not
have found dark red tissue and there could not have been signs of revival by
its changing to a lighter red. Mr
Armstrong relied on the histopathology, the state of the bowel with the
mesentery not being involved and no colour change being expected, the charts,
the history before and after admission, the elevated white cell count and the
lack of recording in the operation note.
Mr Kingsmore's account could therefore not be accepted and, if so,
there should be a finding in favour of the pursuer.
[214] Mr
Armstrong also dealt with two other matters.
The first of these was the bruising.
Mr Kingsmore and Mr McGregor gave evidence about bruising in the context
of compression of tissue by the adhesions and blood leaking from the blood
vessels into the tissue. The opinion
evidence of these witnesses should not be accepted. Neither could be said to be impartial and
independent. Both were interested
parties and there were, or at least had been, allegations against each. Each had an interest in the action and Mr
McGregor was still working at Crosshouse Hospital. Mr McGregor in particular expressed an
opinion on three aspects viz (a) the
mechanism of bacteraemia; (b) the interpretation of the CT scan (pages 280-281)
apparently showing beads of gas and (c) the relevance of the histopathology
report. Mr McGregor took issue with
Professor Keighley's interpretation of the CT scan and indicated that the
histopathology report was not relevant to the assessment of the timing of
events. Mr Armstrong invited me to hold that
he was not an expert but in any event to treat his evidence with great
caution. The real controversy amongst
experts was between Professor Keighley and Professor Scholefield on one hand
and Professor Krukowski on the other,
[215] Ignoring
what Mr Kingsmore and Mr McGregor said, Professor Scholefield said that he had
not seen bruising as a result of a band adhesion and would not expect to see
it. Damage to blood vessels would be
caused by gradual compression rather than trauma and that would not result in
bruising. The comparison with a ligature
was inept because one would expect a ligature to be drawn tight and that was
not the case here. Furthermore the band
was not wholly round the bowel wall. The
part of it attached to the mesentery was not constricted.
[216] Professor
Keighley said that he would expect bruising but over a wider area and spoke of
diffuse leaking into tissues. He contrasted that with the circumstances of this
case where the band was narrow. It was
not consistent with diffuse leakage.
[217] Professor
Keighley said that such bruising as there might be would not be confined to a
narrow band and would extend beyond it.
[218] The
second aspect under this general submission related to the question of
bacteraemia leading to septicaemia and systematic sepsis. This was raised in cross-examination of Mr
McGregor but had not been put to Professor Keighley, so we did not know what he
would have said about it. Mr McGregor
said that he would expect bacteria to get into the bloodstream while within the
bowel wall. When asked Professor
Scholefield said that he accepted that that was a possible mechanism but he
expected that there would have been translocation into the peritoneal cavity
and thereafter it would get into the bloodstream by a process of inflammation
while in the cavity.
[219] There
was therefore a divergence of opinion and I was invited to prefer Professor
Scholefield.
[220] The relevance
of this issue was that it might affect the timing of events. There was no doubt that there was multiple
organ failure but that should be viewed as a parallel process to what was
happening in the abdominal cavity itself, in other words the emergence of the
gas gangrene and the attack on the abdominal muscle. I should accept the evidence of Professor
Keighley, who had in mind that the damage had been caused by bacteria getting
into the peritoneal cavity and did not consider septicaemia in that context but
it was not put to him. Reference was
made to his report at page 38 where he indicated the mechanism he had in mind.
[221] The
second leg of Mr Armstrong's general submission was made under reference to the
tri-partite test in Hunter v Hanley
1955 SC 200. He submitted that the three parts were proved.
[222] If Mr
Kingsmore's account was to be accepted, then on dividing the adhesion he saw a
dark red linear narrow mark a couple of millimetres wide. He used a damp swab to keep it hydrated and
warm packs to prevent cooling, leaving it for five to ten minutes before going
back to check it. When he looked the
second time, it had turned a lighter red.
In doing that he failed to reach the standard of care to be expected of
a reasonably competent specialist registrar.
Mr Armstrong relied principally on the evidence of Professor
Keighley. Mr Kingsmore's account was put
to him on a hypothetical basis although the professor's view was that it could
not have happened that way. There were
three aspects to be considered.
[223] Professor
Keighley said that having seen the light red colour he should nonetheless have
left the bowel for a further period because he should have been looking for a
pink colour.
[224] In the
second place, the flicking test was inappropriate. That might be appropriate where volvulus was
involved but it was of no significance where a narrow band was involved. There could still be apparent constriction
but because of the narrowness of the band it was difficult to determine if
anything was wrong and the test would be misleading.
[225] If
weight had been put on the result of that test by Mr Kingsmore then he attached
greater weight than he ought to have done.
[226] In the
third place, Mr Kingsmore could not remember the sheen of the tissue. In the context of the tests for colour,
contraction and sheen he appeared to have placed all of his decision making on
the change of colour which he said occurred, if we accept that the flicking
test was not helpful. Mr McGregor said
that there was a very difficult clinical judgement to be made in the context of
there being no twisting of the small bowel and the mesentery not being involved
but despite that, Mr Kingsmore said that he had no doubt. He should have had doubts and should have
resected.
[227] It
seemed to be accepted that there was a need to minimise the risk of making the
wrong decision and judgements had to be careful and measured. Professor Keighley had given evidence
about the consequences of a wrongful decision being conceivably a death
sentence. There should be a low
threshold for resection. Mr Kingsmore
conceded that he had in fact made the wrong decision and that the ischaemia was
ongoing between the operations, having already begun before the first
operation. He regretted not dealing with
it differently although that was not prayed in aid. His qualifications and progress since the
date of the first operation were not relevant, the matter having to be judged
as at 24 April 2002. In that context he did not properly carry out
the procedures. He should have had a
doubt and there should have been a resection.
He was negligent.
[228] As far
as the second operation was concerned, Mr Armstrong made a submission upon
which he did not place great weight.
There were discussions between Mr Kingsmore and Mr McGregor between the
operations and one would expect that. On
the evidence it was reasonable to infer that Mr McGregor had a concern that the
tissue underlying the band might be a possible cause of the problem. With hindsight it was accepted that it was
the most likely cause but he suggested that it must have been in Mr McGregor's
mind to go back to that band of tissue to check it. We had heard from Mr McEwan's mother, who
remembered an exchange with Mr McGregor.
After the second operation he said that he had gone back to find the
tissue red and he had cut it out. He
thought it unlikely he would have described it as red and it was reasonable to
assume that Mrs McEwan had simply got that bit wrong. He did accept however that the conversation
had taken place and he had cut out part of the small bowel. He also said, according to Mrs McEwan, that
he had gone back to check the small bowel.
That was consistent with him having in mind the need to check that part
of the operation. The significance of that was the letter he wrote to the
general practitioner which can be found at pages 33 and 34 of 6/7. Reference has already been made to that in my
opinion. It was suggested that the use
of words like "rather traumatic" was an understatement and Mr McGregor may have
been defensive. He was a consultant in
charge of the operation and if he had doubts about the matter it was consistent
with Mr Kingsmore's having doubts.
[229] He
indicated that this might be thought to be somewhat tenuous. I agreed with him and will say no more about
it.
Submissions
for the Defenders
[230] Mr Stephenson,
in his helpful written submissions, drew my attention to the case being made
against Mr Kingsmore in Article 6 of condescendence. He also drew my attention to the pursuer's
averments as to the normal practice in 2002 which was said to have been as
follows:
"... to examine
carefully the area of tissue under the adhesion in order to assess its
viability, to note areas of discolouration suggestive of ischaemia, to allow a
period of five or ten minutes for re-examination after the application of
warm packs to see if discoloured areas regained a healthy pink colouration,
and, if the tissue appeared non-viable, to resect or oversew the area."
He drew my attention to the fact that the case against
Mr McGregor had been withdrawn. His
evidence had been criticised because he had an interest in the case but it was
only because the case against him had not been dropped at an earlier stage, as
it should have been.
[231] Mr
Stephenson mentioned the case of Hunter v
Hanley, to which reference has
already been made. In order to succeed
the pursuer had to prove that the doctor said to have been negligent was guilty
of such failure as no doctor of ordinary skill would be guilty of if acting
with ordinary care. Where a deviation
from normal medical practice was averred the pursuer had to prove (i) that
there was a usual and normal practice, (ii) that the doctor had not adopted
that practice and (iii) that the course that the doctor adopted was one which
no professional man of ordinary skill would have taken if he had been acting
with ordinary care. He referred to a
number of other authorities but I do not need to concern myself with those
since I regard the test as uncontroversial.
Mr Stephenson submitted that the pursuer needed to establish a
causal connection between the alleged negligent acts or omissions and the injury
and again that is uncontroversial.
[232] He
submitted that expert evidence fell to be tested by reference to the criteria
in Bolitho v City & Hackney Health Authority [1998] AC 232. Where there were competing bodies of opinion
in relation to matters of medical or surgical practice it was not for the Court
to prefer one to the other. He referred
to the Opinion of Lord Hodge in Honisz
v Lothian Health Board [2006] CSOH 24, 10 February 2006. At paragraph 39 Lord Hodge said the
following:
"First, as a
general rule, where there are two opposing schools of thought among the
relevant group of responsible medical practitioners as to the appropriateness
of a particular practice, it is not the function of the Court to prefer one
school over the other (Maynard v West Midlands Regional Health Authority,
Lord Scarman at p. 639F-G).
Secondly, however, the Court does not defer to the opinion of the
relevant professionals to the extent that, if a defender leads evidence that
other responsible professionals among the relevant group of medical
practitioners would have done what the impugned medical practitioner did, the
judge must in all case conclude that there has been no negligence. This is because, thirdly, in exceptional
cases the Court may conclude that a practice which responsible medical
practitioners have perpetuated does not stand up to rational analysis (Bolitho v City & Hackney Health Authority, Lord Browne-Wilkinson at
pp. 241G-242F, 243A-E). Where the judge
is satisfied that the body of professional opinion, on which a defender relies,
is not reasonable or responsible he may find the medical practitioner guilty of
negligence, despite that body of opinion sanctioning his conduct. This will rarely occur as the assessment and
balancing of risks and benefits are matters of clinical judgement. Thus it will normally require compelling
expert evidence to demonstrate that an opinion by another medical expert is one
which that other expert could not have held if he had taken care to analyse the
basis of the practice. Where experts
have applied their minds to the comparative risks and benefits of a course of
action and have reached a defensible conclusion, the Court will have no basis
for rejecting their view and concluding that the pursuer has proved negligence
in terms of the Hunter v Hanley test. ... As
Lord Browne-Wilkinson said in Bolitho
(at p. 243D-E), 'it is only where the judge can be satisfied that the body of
expert opinion cannot logically be supported at all that such opinion will not
provide the benchmark by which the defendant's conduct falls to be
assessed."
[233] Mr
Stephenson submitted that each of the medical witnesses was prima facie qualified to express an opinion on the matters in dispute as
each claimed to undertake the surgical procedure. The principal interests of
Professors Keighley and Scholefield and Mr McGregor lay elsewhere, in colorectal
disease and/or bowel cancer. Accordingly
they were essentially general surgeons in relation to the matter under
dispute.
[234] Mr Kingsmore
had since 2002 developed a particular interest in his role as a vascular
surgeon in the assessment of and restoration of blood supply to the small
bowel. He was the only one of the
witnesses who had sub-specialist knowledge and experience with direct relevance
to the case. He could bring
retrospective analysis based upon his subsequently acquired experience to the
events of 24 April 2002. Professor Krukowski had a special
interest in emergency abdominal surgery and was experienced in relation to
severe abdominal infections. He
undertook abdominal wall reconstruction surgery in cases similar to the pursuer's.
[235] Mr
Stephenson submitted that the lack of unanimity among the witnesses on material
matters relating to normal practice was surprising.
[236] He
accepted that Mr Kingsmore appeared defensive and was not always
articulate. On the other hand, the fact
that he held a consultant post in a major Scottish surgical centre and his
professional appointments suggested that he was well regarded. He was obviously upset by what had happened
which showed how conscientious he was, and he had no direct financial interest
in the outcome.
[237] The fact
that he remembered the important parts of the operation was
understandable. He submitted that
Mr Armstrong's five bases for his attack on Mr Kingsmore's
recollection did not bear scrutiny. He
turned first of all to the supposed discrepancies between the accounts of
Mr Kingsmore and Mr McGregor in relation to the latter's presence in
theatre and the conversation which took place.
I need not go into his submission in detail since I agree with him that
there was no material difference between the two accounts. There was only a short exchange following
which the operation continued and it is not a matter on which I would have
expected the evidence to be exactly the same in every small detail.
[238] Mr Armstrong
had submitted that Mr Kingsmore was unable to recollect the sheen of the
piece of tissue under the band adhesion and that this was indicative of
unreliability generally.
Mr Stephenson said that Mr Kingsmore was not asked in
examination-in-chief about the sheen. On
being asked about it in cross he had said that he did not recall on immediately
releasing it whether there was a sheen but the matter was taken no further and
was not visited in re-examination. There
was no basis for holding that he did not consider the sheen at a later
point. Nonetheless, it seems to me that
the sheen is one of the aspects of the tissue which should have been looked at
and I do not consider that Mr Armstrong's point is entirely without
substance. Of itself it does not amount
to very much but I consider it to be an adminicle of evidence which does in
fact assist the pursuer's case.
[239] Mr Stephenson
then turned to the supposed inconsistency between Mr Kingsmore and Mr
McGregor in relation to the observation of small capillaries on the outer
surface of the bowel wall at the point of constriction. He submitted that Mr McGregor's evidence
was not particularly clear. He initially
said that one could very easily see small blood vessels and he would look for
that before going on to say that they could only be observed where the
mesentery joins the bowel. It was not
clear whether there was any real different between this position and
Mr Kingsmore's, which was that he saw small capillaries on the surface of
the bowel. Perhaps Mr Kingsmore was
simply generalising without appreciating the potential significance of his
comment. The matter was not covered with
him in re-examination and it was appropriate to be cautious about attaching any
weight to this matter. Both accounts were
consistent insofar as it was contended that the small blood vessels would be
something to look for.
Professor Keighley had agreed in cross-examination that one would
normally be able to see small blood vessels running through the serosa of a
healthy bowel, although they were not particularly prominent.
[240] Whether
capillaries themselves can be seen, the issue seems to me to be whether blood
could be seen returning, and I will return to this point in due course.
[241] Mr
Stephenson then submitted that there was nothing in the contention that
Mr Kingsmore was unable to recollect whether he conversed with
Mr McGregor in the period between the two operations and certainly
was unable to recollect any detail of such conversations. Again I agree with Mr Stephenson that there
was nothing in this criticism.
[242] The
fifth point made by Mr Armstrong concerned Mr Kingsmore's
response to questions about the number of checks he had carried out. As Mr Stephenson correctly reminded me
this was a part of the evidence where Mr Kingsmore became agitated. It might be considered, submitted
Mr Stephenson, that he did so because he never deviated from his core
position that he checked the bowel on release of the adhesion, proceeded with
the rest of the laparotomy and then returned to revaluate the area under the
band adhesion. It was submitted that the
confusion largely arose from Counsel's attempts, in pleading the case and in
conducting it, to distil a precise number of "checks" from his account. He was not inconsistent on the critical
issue, namely the viability of the bowel and it was submitted that the lawyers'
desire to reduce surgical procedure to a comprehensible list did not justify
casting doubt upon Mr Kingsmore's evidence generally. This was a valiant attempt by
Mr Stephenson but the pleadings are what they are and Mr Kingsmore's
evidence was what it was. Whether he
performed these checks or he did not is a crucial matter and his agitation seemed
to me to be a factor which I ought to take into account.
[243] Mr
Stephenson then questioned whether there was at the material time a usual and
normal practice in respect of examination of the small bowel following release
of a band adhesion and if so what that practice was. He submitted that there was consensus that
the small bowel had to be checked for viability and that this was an essential
part of the procedure. There was also
consensus that the risk was that irreversible ischaemic damage had been caused
to the small bowel, that, if there was, then an area of bowel wall would die
because it had become infarcted or necrotic resulting in perforation and the
leakage of bowel content into the peritoneal cavity, giving rise to peritonitis
and the risk of infection. There was
also consensus that the check for viability was by examination of the external
surface of the bowel wall (the serosa) where the adhesion had been, that such a
check for viability included visual inspection by reference to the colour of
the serosa, that the area beneath the area where the adhesion had been would
tend initially to be a different colour from that of normal healthy serosa,
that unless one could be certain at once that the bowel wall was viable it was
necessary to wait for a period of between five and ten minutes to check
for improvement as measured by change in colour and that an assessment of
viability required the surgeon to make a judgement, which could be a difficult
one to make.
[244] As far
as it goes I agree with those submissions.
[245] It
seemed to be accepted, said Mr Stephenson, that there was a known
incidence of such judgements being subsequently proved wrong. Mr Kingsmore
was saying they were of the order of 5% with Mr McGregor suggesting that a
recent paper in France threw up a lower
incidence, namely 3%. Professor Krukowski
had referred to a French study which indicated that in 3 out of 77 cases the
decision that the bowel was viable had turned out to be wrong.
[246] I have
certainly no reason not to accept that evidence but I did not think that it
took us very far.
[247] Mr
Stephenson reminded me that Mr Kingsmore's evidence was that he was not
initially happy with the colour of the bowel and he placed it in warm packs
before coming back to it later. His
evidence, expressed in various ways, was that it had improved colour, having
gone from a dark red to a lighter red.
He repeated this at various stages.
He said that the bowel wall looked bruised, not ischaemic and in his
opinion it was viable. The single linear
mark was dark red and was a few millimetres wide but with no indication that
the mesentery had been constricted. He
said also that on the surface he could see small capillaries and he thought it
was viable.
[248] Mr
Stephenson suggested that I should not reject this account, which, as I have said,
was repeated throughout his evidence.
[249] Mr Kingsmore
had said that a normal healthy small bowel serosa was pink,
Professor Keighley said pale pink or white and that under normal
circumstances it was just off-white.
Mr McGregor agreed that it was light pink and Professor Scholefield
said that it was a pink colour like that of the inside of the mouth. It was not an almost white colour although this
was the colour of the external surface of the large bowel.
[250] Professor
Krukowski said that it was pink to red and not off-white, although the colon
was.
[251] It
seemed to me that there was no real difference between these descriptions,
which are, in any event, somewhat subjective.
[252] So far
as the cause of the discolouration beneath an adhesion band was concerned, Mr
Kingsmore attributed it to bruising.
Professor Keighley said that it was because of compression of
tissue under the band. The pressure
prevented blood reaching the cells and there was fluid from the damaged cells
and blood. It was a bruise. It changed from pink to dark red to purple
and eventually to black and the band was like a ligature that did not go all
the way round. Mr McGregor
attributed it to bruising with the subsequent change being due to reactive
hyperaemia, that is increased blood flow.
Professor Scholefield referred to reactive hyperaemia, the return
of blood to vessels which had been deprived of it and said that he had never
seen bruising. He would not expect
bruising to be caused because the effect is of gradual compression of the bowel
wall.
[253] Professor
Krukowski said that the colour would be white due to restriction of the blood
flow to the area caused by compression of the band. There might be bruising. There was bleeding on restoration of the blood
supply to the area into the tissues giving them an initially red colour which
would then darken over time as part of the bruising process.
[254] Once
again it seemed to me that there was no significant difference amongst the medical
personnel, with perhaps such differences as there were being attributable to terminology
rather than being differences in substance.
[255] Mr
Stephenson then turned to the evidence about the range of colours which might
be encountered when a band was first released and what their significance
was. In chief Mr Kingsmore referred to a
viable tissue being pink and dead tissue being grey. In cross-examination he said that there could
be a range of ischaemic damage resulting in different colours with obvious
grey, black tissue at one end of the scale to lighter shades of purple, red,
pink or even white. Grey or black was
indicative of death while purple was indicative of some bruising but was not
diagnostic of the ability of tissue to recover.
I was reminded that he specialised in this area.
[256] Professor Keighley
had referred to puckering across the bowel. In this case there was more,
something that looked like an electric burn across the gut. In fact he said that there "must have been
more" then referred to an electric burn.
[257] He
agreed that in almost every case a band adhesion was divided there would be a
mark underneath but it was not normally purple.
Red colour would indicate mild ischaemia, purple more severe and black
would indicate death. He accepted that
at page 30 of his report he said there would be a red or purple
constriction ring and contrary to the pursuer's submission he adhered to this
as he would prefer to allow a range of red to purple. That was his position in cross. At page 31 of the report he said,
"Given the
subsequent events we know that the bowel will have had a linear mark across it
which was purple. This line of purple
colour would not have changed or improved with hot wet packs because we know
that the bowel was ischaemic when the re-laparotomy took place 48 hours
later."
When he referred to ischaemic he indicated that he
should have used the word necrotic. I
do not think that Mr Stephenson's submission on this is correct. I recall the evidence of the witness in
cross. It was that there would have been
a range and he believed that it would have been purple, given that the
obstruction had been present for five days. He preferred to express his opinion in terms
of a range in his report.
[258] Mr McGregor
indicated that dead bowel was black or green and that it was common to see a
bruise on dividing a band adhesion.
Professor Scholefield said that usually when released the bowel looked
unhappy with a bluish discolouration. As
it recovered it became hyperaemic and went cherry red over the area
compressed. If it was not viable it
would not go cherry red and would stay dusky blue or would go greeny
brown. Depending how compressed the
bowel had been it could be black or green or bluish/purple or it could go
straight to cherry red. One might see a
dark red line. He appeared to accept
that hyperaemia might then cause the red to appear lighter. If one just saw a bit of redness and was
happy that it was viable then one would close.
It might become more hyperaemic then fade back to a normal colour. Cherry was really a very bright red. A dark red line on the bowel was consistent
with what he would expect to be there. Professor Krukowski
said that it could return to pink or go back to a bruised strip.
[259] Mr
Stephenson then turned to the question of what improvement was sufficient to
justify a judgement that the bowel wall was viable or not. He repeated what he said about
Mr Kingsmore's evidence. According
to Professor Keighley, if there was no change after the tissue was left in
warm packs for a period then it had to be assumed the area was dead and
required removal. He liked it to return
to normal before he would happily close the abdomen. If it remained dark purple after it was put
in packs for five to ten minutes that indicated resection. If one was unsure whether it was viable or
not then one would re-operate the next day.
He could not be sure that it was viable unless it returned to normal. If
in any doubt he would have removed it.
If the bowel did not return to its normal colour he would expect someone
in his third year to seek the opinion of a senior colleague and if the colour
did not return to normal there should be a very low threshold for
resection. He said that he represented
the majority opinion in that regard. If
it was not back to light pink then he would defer a decision on resection until
the next day. It was very rare that one
would not look again if the bowel remained red.
[260] Mr Stephenson
suggested that Professor Keighley's position was perhaps the most
extreme.
[261] Mr
McGregor said that a red line was favourable and suggested that the blood
supply was being restored and any damage was reversible. A lighter red colour would be the result of
increased blood flow going through the tissues and masking the bruise. Professor Scholefield referred to
blushing cherry red.
[262] Mr Stephenson
submitted that the Court could not be satisfied that there was a normal and
accepted practice in relation to what colour was or was not an indication for
resection since, except if the area was black or green the witnesses were not
in agreement. No normal and accepted
practice existed in respect of colour.
The pursuer had not proved his averment that the return of colour
required to be a healthy pink colouration.
[263] I do not
read the pleadings as requiring the return of colour to be to a healthy pink
colouration. The normal practice averred
is to examine carefully the area of tissue in order to asses its viability, to
note areas of discolouration suggestive of ischaemia, to allow a period of five
or ten minutes for re-examination after the application of warm packs to
see if the discoloured areas regained a healthy pink colouration and, if the
tissue appeared non-viable, to resect or oversew the area. It is not suggested there that the colour has
to be a healthy pink one, the main point of the averment being that the check
is to see if the tissue appeared to be non-viable.
[264] As I
have already indicated, it seems to me that descriptions of colour can be somewhat
subjective and the real point of the practice averred is that the surgeon has
to see if the tissue appeared non-viable or not. The real point is whether or not there has
been a return of colour, however that colour is described. Is there or is there not an improvement?
[265] Mr Stephenson
then turned to the question of whether Mr Kingsmore did or did not adopt
the normal and accepted practice. He
submitted that that question did not arise since there was no such practice but
then went on to consider whether the course that Mr Kingsmore did adopt
was one which no surgeon of ordinary skill would have taken if he had been
acting with reasonable care. He
submitted that the pursuer was driven to maintain that Mr Kingsmore
undertook no examination of the small bowel wall after dividing the adhesion,
there being unanimity that practice did require such an examination. He also had to maintain that ischaemic change
sufficient to make resection mandatory must have been present and evident on
reasonable inspection at the time of the operation had such inspection been
performed because (a) this was the inference from the HDU chart entry for
25 April according to Professor Keighley and (b) this was the
inference from the histopathology report according to Professor Scholefield. If Mr Kingsmore undertook no examination
of the serosa then his failure to do so was negligent. It was very unlikely that he had so failed. He was experienced in the procedure,
examination was an inherent part of it, if he understood what he was doing and
was experienced enough to undertake the procedure then he knew he had to
examine the serosa and it would be frankly astonishing if he did not do
so. No reason was put forward to explain
why he might not have done so and the duration of the procedure (about
two hours) suggested ample time to examine the serosa. There was no evidence to suggest he was under
any time constraint or other pressure that might have led him to take such a
risk and at the end of the day Mr Kingsmore said that he did in fact
examine the serosa. There was no reason
to disbelieve him.
[266] It might
have been helpful had he recorded the results of his examination in the
operation note but he explained that he considered it implicit in what he had
recorded that he had found nothing untoward.
The absence of a specific mention in the note did not prove that he did
not examine the serosa.
[267] Professors Keighley
and Scholefield were at odds with each other as each opted for a different
basis for the inferences which they drew.
Professor Scholefield saw the histopathology as the important
factor and did not regard the chart results as sufficient. He also had regard to the wet tissue
paper. That undermined the validity of any
conclusion from the charts by Professor Keighley. The latter's position might depend partly
upon his initial view that there must be full thickness necrosis before there
can be bacterial translocation. If he
believed that, he believed that there must have been full thickness necrosis by
the early hours of 25 April and therefore a potentially more advanced process
of ischaemic damage to the bowel wall at surgery on 24 April than need be
the case if translocation can occur before full thickness necrosis. In fairness, he appeared in cross-examination
to contradict his previous assertion that full thickness necrosis is necessary
for translocation. That being so I do
not think that there is any force in Mr Stephenson's submission about
this. In any event the majority view is
that translocation can occur even without ischaemic damage, for example if
there is a process of inflammation within the bowel.
[268] Mr Stephenson
submitted that the retrospective exercise undertaken by each was deeply suspect
and its only basis appeared to be clinical experience on an issue where it was
difficult to see how much if any such experience could be gained and where
there appeared to be no certainties. No
evidential basis was presented for their assertions by way of published
material or studies. Professor Scholefield
asserted in his report that the period between the onset of ischaemia and
perforation was 36 to 48 hours yet there appeared to be agreement that the
onset was before the first operation and there were some 50 to 52 hours
between that operation and the second without any perforation.
[269] It seems
to me though that one has to look at his evidence as a whole.
[270] Neither
Mr McGregor nor Professor Krukowski believed that one could make the
inferential judgement that Professors Keighley and Scholefield purported
to make. An area of non-viable bowel
might take two days or two years to present.
[271] Professor
Scholefield accepted that he could not exclude the possibility that the lack of
viability of the bowel was not patent at the time of the first operation so his
evidence did not exclude acceptance of the evidence of Mr Kingsmore. What in any event are they saying would have
been patent? One had to consider any
allegedly patent signs in the light of the competing evidence as to the circumstances
of colour and colour change in which resection was indicated. If Professor Keighley simply came to the
view that there must have been a red or purple mark left on the serosa then
that was in any event Mr Kingsmore's evidence.
I have already indicated that my understanding of
Professor Keighley's evidence was that the mark would have been purple. Professor Keighley would resect or wait
24 hours and look again because he considered that to be evidence to
irreversible ischaemic damage. Neither
Mr Kingsmore, Mr McGregor nor Professor Krukowski would resect or
re-operate in those circumstances.
Similarly, if Professor Scholefield's evidence came to be that the
presence of a dark red line on the serosa was consistent with what he would
expect to have been there in the light of the whole information he now had then
again that is what Mr Kingsmore said he initially saw. The only issue he
would appear to have with Mr Kingsmore is that he would not have expected the
colour to improve.
[272] Mr Stephenson
said that there might be little of real significance in this part of the
pursuer's evidence. Both Mr McGregor and
Professor Krukowski said that if Mr Kingsmore saw what he said he saw
then it was reasonable for him to think that the bowel would survive and
reasonable not to resect. The issue was
whether in the event that there was a red mark on the serosa with some
lightening this made resection mandatory.
Would a responsible body of surgical opinion accept that there did not
have to be resection and had the pursuer shown that body of opinion to be
deficient in logic in the manner described in Honisz? Mr Stephenson
submitted that no negligence had been proved.
[273] It seems
to me that I have to decide whether Mr Kingsmore did in fact see what he
said he saw. Could he have done so?
[274] Mr
Stephenson then turned to the question of causation. He submitted that even if the pursuer
established that Mr Kingsmore was negligent because he did not examine the
serosa there was no direct evidence of the appearance of it. The pursuer had to establish that had he
examined it he would or should have identified irreversible ischaemic injury so
as to impose upon him a duty to resect.
The only evidence of this was the inference evidence from
Professors Keighley and Scholefield which should not be accepted. If it was accepted then it established no more
than that there was probably colour change that would have led some but not all
surgeons to resect since Mr Kingsmore, Mr McGregor and Professor Krukowski
would not. The pursuer's case then fell
on causation.
[275] This
part of Mr Stephenson's submission is obviously closely linked to the earlier
part. It seems to me that it relies
heavily on initial colour of the bowel on release of the adhesion but ignores
any question of improvement of the colour.
Discussion
on the merits
[276] I have
already made a number of preliminary comments on the submissions of
counsel. I turn now to the matter in
more detail.
[277] I had no
difficulty in accepting Mr Stephenson's general submissions on the
applicable law, there being no controversy over that as I understood it. As far as the expertise of witnesses is
concerned, I have set out their qualifications in some detail and I am
satisfied that each of them was in a position properly to speak to the evidence
which they gave. I did not consider that
Mr Kingsmore for example was now in a better position to give evidence on these
issues because of his particular specialism.
This area is one with which they are all familiar.
[278] Subject
to what I will say about Mr McGregor, there is only one witness whose
credibility and/or reliability is seriously in dispute and that is, of course,
Mr Kingsmore. It seemed to me that
everyone else was doing his level best to tell the truth and give an honest
opinion and if there had been a suggestion to the contrary I would have
rejected it.
[279] Having
said that, there was a suggestion by Mr Armstrong that perhaps
Mr McGregor's evidence should be viewed with caution since he had an
interest in the case. That interest
effectively disappeared when submissions were made but I have to say that I
also found him to be a credible and reliable individual and I do not doubt his
honesty for a moment. I detected no self
interest in anything he had to say.
[280] Mr
Kingsmore gave his evidence in a very defensive fashion. He was plainly agitated and accepted that he
had got his judgement wrong. That is not
an end of the matter of course because the issue is whether that wrong
judgement was or was not the result of negligence. He was plainly upset about what had happened
to the pursuer. He has gone on to carve
out a distinguished career for himself but this matter still preys on his
mind. I agree with Mr Stephenson that he
is a conscientious individual but my impression of his demeanour is that he was
nervous about what happened during the course of the first operation and I am
afraid that that calls into question his reliability. I did not think that he was being dishonest
but my impression was that he was reconstructing what happened and his precise
memory of the operation was perhaps coloured by what he knew should have been
done. However, I cannot base my opinion
solely on that impression.
[281] As I
have indicated already, so far as the facts are concerned any substantial
dispute appears to be as to what happened during the course of the
operation. There is a dispute about the
practice which was prevalent at the time but I have in the first place to make
a finding about the operation itself. The
only eye witness to the operation is of course Mr Kingsmore. The pursuer's case has to be based on such
inferences as can reasonably be drawn on the balance of probabilities from the
other evidence in the case. Obviously if
Mr Kingsmore is correct in what he did and what he saw then the pursuer
cannot succeed. His position is that he
carried out the operation with all due care and attention, properly checked the
tissue under the adhesion and was entitled to be satisfied that was viable, albeit
that judgement later proved to be incorrect.
His only failure, if it can be described as such, lay in the completion
of the operation note. It seems to me to
be plain on the evidence that proper completion of such a note was required by
normal practice and that no responsible medical practitioner in
Mr Kingsmore's position acting with ordinary skill and care would have
failed to complete it properly. It is
noteworthy that the other operation notes to which reference was made during
the evidence gave a full account of the operation with which they were
concerned. Mr Kingsmore's position that the
note was not written as a defensive document was both inherently unconvincing
and at odds with the purpose of such a document. I was not impressed by the suggestion that it
was implicit that the tissue was viable because it was not said not to be,
which is what Mr Kingsmore's evidence came to in this regard. If he is right about that one hardly sees the
need for an operation note at all unless something particularly wrong is
discovered or happens. I do not find the
evidence of Professor Keighley about the purpose of such a note to be in
any way controversial or unconvincing and I accept it. It is doubtless fair to say, as Mr Stephenson
submitted, that the absence of reference in the note as to the condition of the
tissue and the steps taken to check its viability does not mean that
appropriate checks were not made nor the appropriate steps taken by
Mr Kingsmore. However, I am afraid
that I regard it as a significant omission.
Mr Kingsmore accepted that these were important documents and that
it was important for GPs to know why their patient was in hospital and what
ongoing treatment he required. This
should be accurate and as complete as possible. At the very least it seems to
me that the deficiencies in this note weigh in the balance in favour of the
pursuer.
[282] Something
was made by Mr Armstrong of the number of checks which were made and of what
were said to be discrepancies between his evidence and the pleadings both in
the original defences and in the Closed Record.
I think it has to be remembered that Mr Kingsmore himself is not
the defender in this action, though he doubtless supplied the information upon
which the pleadings were based. Whatever
was said in the pleadings, however, Mr Kingsmore appeared to me to be less than
clear about the precise number of checks which were undertaken. He likened the process to putting a car
through an MOT. One would not note that a tyre had been
checked forty times although one might see it forty times during the
examination. He saw the tissue many
times during the course of examination and did not think of it in terms of
numbers of checks. I can see the force
of that but on the other hand it seems to me again to indicate a somewhat
casual approach to matters which, although intrinsic to the operation, are an
extremely important part of it. One
would have thought that particular care would have been taken to make specific
checks and note them.
[283] So far I
have looked at a number of matters which might be regarded somewhat negatively
in the sense that they tend to undermine Mr Kingsmore's position. I have to say that the bulk of his evidence
was non-controversial, consisting as it did of a general discussion of the
anatomy involved and the standard operating procedures. His position ultimately was that he saw a
dark red line which improved to a lighter red.
If that is indeed what he saw where the band adhesion had been then it
seems to me that the pursuer's case must fail.
The question is, did he?
[284] In
answering this the pursuer relies heavily on the evidence of
Professors Keighley and Scholefield.
[285] I have
already referred in some detail to Professor Keighley's evidence and I
need not rehearse it here. I am
satisfied that he has the necessary expertise to comment on the operation and
he is plainly a man of great distinction.
I took from his evidence that he would have expected, on examination of
the charts and the histopathology to have seen a purple line where the band
adhesion had been. He did refer at one
point in cross-examination to a dark red/purple line but the preponderance of
his evidence was that the line would have been purple. He would not have expected to have seen any
improvement based on his examination of the material. He was highly critical of the lack of
recording in the operation note although he agreed in fairness that did not
mean the checks had not been carried out.
[286] It
seemed to me that from what he had to say that the main thing he would be
looking for would be some signs of improvement.
He seems to have been as satisfied as he could be that there would have
been no such improvement at the site of the adhesion and that any improvement
seen would have been in the tissues on either side of it. This seemed to me to be a logical opinion and
I found him to be a highly impressive witness.
[287] I do not
consider that any of Mr Stephenson's criticisms of him hit home.
[288] According
to him he knew that the area was dead bowel at the time of the first operation
from the subsequent histology. He referred also to the charts but he did not
base his opinion only on those and I do not think that Mr Stephenson is right
to suggest that he and Professor Scholefield opted for a different principal
basis for their inferences. Indeed, Professor Keighley indicated in chief that
he was absolutely certain, based on the pathology, that the line would not have
changed colour. In cross he referred to the histopathology report as absolutely
crucial. He did not, it seemed to me, hold to the view that it was necessarily
the case that full thickness necrosis was required before there could be
translocation of bacteria and Mr Stephenson's criticisms of him in that regard
were unfounded. His examination of the
charts and the medical notes seem to me to provide ample support for what he
had to say. As I understood his position
the purple line would not have changed or improved even with hot wet packs
because one knew that the bowel was necrotic when the re-laparatomy took place.
Although he did appear to indicate that he would have wished the bowel to
return to its normal colour the important part of his evidence, it seems to me,
was that he was looking for improvement.
In the absence of improvement then resection was indicated. At the very least advice should have been
sought from a senior colleague or another laparatomy carried out 24 hours
later. Mr Stephenson criticised his
evidence and that of Professor Scholefield on the basis that it was not in
fact based on any empirical evidence but I reject that criticism. I do not think for a moment that either of
these gentlemen would have expressed their opinions if they were not satisfied
about the truth of them based on their wide experience and discussions with
colleagues.
[289] Mr
McGregor had sufficient expertise to comment on the matter. Once again I have set out his experience and
qualifications. As I understood it, his
position was that the bowel wall would be a pale pink colour when it was
healthy. Viability was difficult to
assess and was not based just on colour, however. There would be bruising involving a rupture
of capillary blood vessels. The bruising
would not disappear and in fact took several days to resolve. One would have expected bruising in
Mr McEwan's case. There were a
number of ways of testing the viability of an area. One could look at tapping or flicking. If it
ran across where the band adhesion had been the tissue was alive. One would also look at the muscle tone and
the sheen. The bruising itself would not
change. He indicated that one would not
necessarily get any colour change if there was a bruise to the bowel and no
twisting. He would check for blood
vessels passing across the area but as I understood him that was more of a
global test rather than being of assistance where the direct pressure was. That
echoed the evidence of Professor Keighley that the surgeon might have found the
rest of the bowel with impaired blood supply had pinked up but that he very
much doubted whether the linear mark would have changed. It was put to Mr McGregor that
Mr Kingsmore had said that there was a dark red line where the band had
been and after five to ten minutes it went lighter red. That suggested that the area of bowel was
going to recover. I asked him how a
change from dark to brighter red with the restoration of blood supply would
square with the fact that a bruise would not improve and he said that the
change could be seen through the bruise with enough blood going through
it. He did not consider there was any
evidential basis for counting backwards from the histopathology but this itself
seemed to me to have been something of an assertion and it was not clear to me
that there was any evidential basis for what he had to say about it. He did not undermine in my opinion the evidence
of Professor Keighley and did not assist me in deciding what Mr Kingsmore was
likely to have seen.
[290] Professor
Scholefield was a consultant, general and colorectal surgeon who had been
involved in research for a number of years.
Again I have set out his qualifications and again he seems to me to be a
man whose expertise is beyond question.
In his opinion it was very likely that the segment of bowel was
ischaemic at the time of the original laparatomy. A reasonably competent and experienced
surgeon would have recognised that this was the case according to him. If it became like tissue paper 52 hours
after the previous operation that confirmed his view that it could not have been
viable at the time of the original operation.
Once again he referred to the area "pinking up" within a few minutes of
the band being released. This was a
critical part of the operation which no reasonable body of surgeons would fail
to undertake or to record. He believed
that the lack of mention of the colour of the bowel was evidence of provision
of a substandard level of care. Once
again I took from his evidence an opinion that he would look for signs of
improvement. The fact that bowel was
like wet tissue paper inferred that there would, on the balance of
probabilities according to him, have been some fairly clear signs that it was
not healthy at the time of the earlier operation. To go from viable to necrotic in 48 hours was
rather unlikely because it usually took a bit longer than that. This was a very short space of time for it to
go from healthy tissue to a state of disintegration. He thought it was more reliable to work
backwards rather than to go forwards.
Once again he went through the histopathology report and his opinion was
fairly plain as to the condition of the tissue at the time of the first
operation. It must have been a
significant change at the time of the first operation and it must have been
pretty understandably and recognisably so.
In cross-examination he seemed to me to look for an improvement in the
colour of the line. It is fair to say
that he put more weight on the histopathology than the charts. According to him that was the strongest
evidence we had. Adding the fact that
the tissue was like wet tissue paper 50 hours after the first operation
meant that it was very unlikely that it was viable at the earlier time. That was based on his experience of
gangrenous bowels. He based his opinion
on his own clinical experience and on discussions with colleagues as well. The reference to timescales in his report was
really a rough estimate and made no difference to what he was effectively
saying.
[291] Nothing
in the evidence of Professor Krukowski seemed to me to undermine the
pursuer's case. He was also looking for
some form of improvement. If there was
no distinct change then he would be worried.
Blood could return in front of the surgeon's eyes. When what Mr Kingsmore said he saw was put to
him he indicated that there was nothing in that which was impossible but it
seems to me that that is as far as he went.
The pursuer is not bound to eliminate all possibilities. He has only to prove his case on the balance
of probabilities and one has to bear in mind Professor Krukowski's opinion that
if the line was dark red it would probably not improve in the course of an
operation. Professors Keighley and Scholefield
were plainly of the view, based on their expertise and the examination of the
documentation that Mr Kingsmore simply could not have seen what he said he
saw, principally evidence of improvement, from dark to lighter red. It seems to me that the evidence discloses
that there is an established practice that improvement is looked for. Mr Kingsmore could not in my opinion
have seen any improvement had he looked properly at the area under the band
adhesion. I am satisfied that any
ordinary surgeon acting with reasonable skill and care would have examined the
area carefully and would have either resected or performed a re-laparotomy the
following day. It follows that I find
that Mr Kingsmore was negligent.
[292] It may
be that there is no accepted practice as to what colour requires to be seen
following improvement but an improvement is nonetheless required. I am satisfied that there was none in this
case. Furthermore, it is not clear under which circumstances the practice of flicking should be carried
out but I regard that as a side issue in view of my findings as to the lack of
improvement in the colour. Something was made of bacteraemia in the evidence
and the precise mechanism by which the clostridia found their way into the
bloodstream. I find that the mechanism of translocation was most likely to have
been that described by Professor Keighley, to whom, as I recall it, the
alternative mechanism was not put in terms. He derives support from Professor
Scholefield, whose evidence I also found logical and who seemed not to regard
the point as crucial. In any event, the alternative mechanism seemed to me to
involve too much of a coincidence in all the circumstances.
[293] As far
as causation is concerned, Mr Stephenson submitted that if Mr Kingsmore
did not examine the serosa then there was no evidence as to its colour. As he pointed out, though, the evidence for this was the inferential
evidence from Professors Keighley and Scholefield. Mr Stephenson submitted that this should not
be accepted. He also suggested that if
it was accepted it established no more than that there was probably colour
change that would have led some but not all surgeons to resect. The case accordingly fell on causation.
[294] I do not
accept this. I accept the inferences
which Professors Keighley and Scholefield sought to draw and find that there
was no sign of improvement. In those circumstances,
standing what I have already said about the practice of looking for such a sign
then Mr Stephenson's submissions on causation fail.
Damages
[295] The pursuer's evidence was broadly
uncontroversial but not completely so. The operation which gives rise to this
action took place in April 2002 when he was 38 years of age. His date of birth was 8 July 1963. He married his wife in
1994. She was 36 at the date of the
proof. At the time she worked part-time
for a clothing manufacturer making curtains and household materials. Mr and Mrs McEwan had a daughter
Caitlyn, born 22
June 1998.
[296] At the time the pursuer was in full time employment
with his current employer as a manufacturing engineer. He holds a degree in engineering from Paisley
College namely a BSC in Industrial Engineering (Honours 2:1) (6/14 of process). His employers are now Clyde Pumps, formally
Weir Pumps. In August of 2007 Weir Pumps
sold part of their business to Clyde Pumps but otherwise his employment had
been constant.
[297] He had been with the same employer since
graduating in 1985. I accepted that he
and his wife planned to have more children and he intended to carry on working
with the same firm in the same field and progressing in due course. Prior to his operations he had been a keen
golfer with a handicap of eleven and played two or three times a week at a
local club in Kilmarnock. He was also a keen
footballer, having been a Scottish amateur internationalist. He played for Scotland
from 1990-1994. He then had an accident
playing football and was operated on in that year. Thereafter he played again on a recreational
basis but not at the same level. He had
also started to get into coaching.
Before his operation he played five-a-side football. He would train twice a week and played
football on Saturdays and Sundays. The
earlier injury was a ruptured duodenum which was caused when another player's
knee caught him in the midriff. He spent
two weeks in hospital in connection with that and was operated on. It led to ten weeks off his work.
[298] Just prior to his operation which is the
subject of this matter he began to feel unwell over the course of a
weekend. In the early hours of the
Saturday morning he was wakened because of pain which lasted three days. He had visits from his GP on Saturday, Sunday
and Monday and then his wife took him to hospital on 22 April. He remembered going into the Accident &
Emergency Department at Crosshouse Hospital and being seen there but he had no recollection of what happened
after that until around twelve days later on the Saturday of the following week
in the afternoon. He had not received any pain killers when he had been
assessed on the Monday but events were a blur.
[299] His first recollection was coming round in
the intensive treatment unit. He was on
a ventilator with a tube down his throat.
On the following Tuesday he was transferred to Glasgow Royal Infirmary
and spent four and a half weeks in the renal department. He had been transferred there to have plastic
surgery on his wound but he was taken to the renal department because of kidney
failure. Other organs had also failed
but they had come back into full operation.
He was told that he was suffering from clostridium myonecrosis, a form
of necrotising fasciitis.
[300] When he was in the renal unit he was treated
with dialysis once a day to clear the fluid which the kidneys could not
discharge and then he received it every couple of days. After around four and a half weeks he went
for a skin graft operation at the Glasgow Royal Infirmary. A week after the first skin graft he had
another operation for the same thing and he spent a further three weeks in
plastic surgery before being discharged.
All in all he spent nine weeks in hospital.
[301] During the second operation at Crosshouse a
lot of muscle was removed from the abdomen and that gave rise to the need for
plastic surgery.
[302] The plastic surgery was not easy for
him. In fact it was worse than the other
operations because he was more alert and it was more painful. In the course of both operations skin grafts
were taken from his thighs and placed on the abdominal and groin areas. He had two raw scars on his thighs which were
very painful despite the medication. His
appearance had been significantly altered and that could be seen in a set of
photographs 6/1 of process. These were
agreed to have been taken in June 2005.
[303] His position was broadly speaking the same
now and an observation of him in chambers indicated that that was the case.
[304] There had been, however, a slight extension
in the lower part of his abdomen. On his
thigh could be seen the results of the skin graft operation, rectangular areas
of about 6 inches by 10 inches on each.
The photographs show his state below the rib cage extending to the lower
part of his torso. His genitalia are
also affected. The infection which is
the subject of this action was in that area as well. The only solution to his problem was to cut
away the infected areas until good tissue was found and the root of his penis
had been affected. His penis and his
scrotum had been affected and skin from his thighs had been placed on both of
those.
[305] The second photograph in the bundle shows a view
from the side. His internal organs are pushing against his skin and that causes
him difficulty because he has no support there other than the skin. His sporting pursuits have curtailed
significantly. He gave up playing golf
in a meaningful way and struggled to play a full round. He could not maintain a swing and lasting
eighteen holes was difficult for him. He
had resigned his membership and no longer played. He had not been given a lot of medical advice
about exercising but there was really nothing he could do because there was no
muscle which he could improve. Physical
exercise might in fact make things worse.
[306] He wore elastic supports every day and he
purchased them himself. 6/15 and 6/16 of
process were invoices. Originally he had
obtained supports from Glasgow Royal Infirmary but he had then researched the
matter on the internet and managed to obtain some from the USA. He purchased one every three or four months
at a cost of $29.95 and a shipping charge of $20.00.
[307] His work was 80% desk bound. Sometimes he required to lift heavy objects
but only occasionally. When that was
required he would get someone else to do it because he simply could not. He could not lift stuff at home. He had to be very careful not to make his
condition worse. It was not a major
issue at work and he could get round it.
Sitting at his desk, however, could be uncomfortable because of his
shape and the support which he wore. He
frequently had to get up and move around.
[308] He had had surgery in 1994 but he was even
more vulnerable now. If he got a knock
on his stomach all he had to protect his abdomen from the outside world was a
thin layer of skin. He was even careful
when he played with his daughter. His
friends still played five-a-side football but he could no longer do so. He had no problems watching football in a
stadium where he could sit down, football being a passion of his, but he could
not venture into a crowd where there would be pushing and jostling.
[309] He had been very sporting minded and that
had been taken away from him. His golf,
his football and playing with his daughter had all been taken from him to some
extent. He took her swimming and part of
his wound was there to be seen. That
could be commented on by people and he was aware of them looking at him.
[310] On the whole he had managed to get used to
his condition. Initially for the first
couple of years he was quite angry but he had through time learned to accept
his lot and just get on with matters.
[311] Initially he was of the view that he would
not want further surgery because he had been through enough. He went to see an expert in Aberdeen who told
him certain things which could be done and he had also been to see the plastic
surgeons at Glasgow Royal Infirmary. He
had been told that a further operation would be a very major one involving a
lengthy recovery time and time off work.
He had probably settled for what he was, having had enough of
operations.
[312] His intimate relationship with his wife had
been affected. As could be seen from the
photographs, his testes were above his penis, meaning that when he obtained an
erection it did not come up as normal but went down. Intercourse was very difficult and painful
and his marriage was less physical.
[313] Number 6/4 of process, records of Glasgow
Royal Infirmary contained a letter at page 17 from a D McGill, a trauma fellow
in burns and plastic surgery dated 13 August 2002. Amongst other things that said the following:
"He does have some scar fixation of the base of the penis which does
not allow a lot of movement there."
That was what he
had been referring to. He had not been
offered the prospect of surgery to rectify his condition. If he had been offered it he would have shown
the same reluctance. He did not really
know what the chances were of setting something off again.
[314] He still had sexual intercourse with his
wife and sometimes the pain of it was enough to put him off. 6/2 of process are a set of GP records. At page 66 there is a letter dated 31 January 2003 from the ITU follow up clinic dated 31 January 2003. That indicated that he was looking well and
had reached normal weight, having been seen at the ITU follow up clinic that
day. He was still wearing an abdominal
support and had suffered loss of muscle from the centre of the wound but he was
not keen for any operative intervention.
[315] He had been off work for some six months
including the nine weeks in hospital and returned in about November 2002.
[316] No-one had really told him in detail what
could be done for him but he would be reluctant anyway. Page 65 consisted of a letter of 4 April 2003 from Mr McGregor, the consultant surgeon involved in this
case. Amongst other things it said the
following
"I reviewed Mr McEwan at my
clinic today...I realise that he has discussed on several occasions with our
colleagues in plastic surgery the possibility of further reconstruction but I
think quite understandably he has been unwilling to go ahead with this."
[317] Mr McEwan did not know what the discussions
about reconstruction had been but in any event he would have been
reluctant. Page 62 consisted of a letter
from the consultant plastic and hand surgeon Mr S P Watson dated 7 October 2003. Paragraph 2 thereof is in
the following terms:
"...he has been doing very well generally but I have noticed that he
has increasing sign of herniation of abdominal contents via the skin grafts and
whilst I am loathed (sic) to push him
towards further surgery after his previous experiences it appears that it might
become a necessity for him to have surgery in the long term. I think to reconstruct his abdominal wall
would be a huge challenge and I wanted to ask your advice about what you
thought about the practicality and/or timing of such an undertaking."
That letter was
sent to Mr Taggart, a consultant plastic surgeon at the Glasgow Royal
Infirmary. After the letter was sent he
had an appointment with Mr Taggart to look at his position. He got the same answer from Mr Taggart namely
that an operation would be a large undertaking involving a lengthy time off
work. Very few operations of that type
were done and most people in the pursuer's position chose to live with their
condition and that was what he would choose to do.
[318] He confirmed that he had wanted to expand
his family. The plan was to give Caitlyn
a brother or sister. His family was a
big part of his life and the inability to provide a sibling for Caitlyn was a
big regret. He had noticed at times that
Caitlyn at times could be lonely when her friends were away and she lacked
company. That saddened him. She would occasionally ask why she could not
have a brother or sister and she was told that her father had had an
operation. She was not really sure where
babies came from and in due course when she got older would be given further
details.
[319] He had had tests done and was asked about
the possibility of an artificial solution.
At page 18 of 6/7 (the Crosshouse Hospital
records) there appears a letter to a GP from a Mr Meddings, a consultant
urologist, dated 31 March 2004. Mr Meddings was his initial contact at the
hospital.
[320] The letter inter alia reads as follows:-
"Thank you for asking me to see Mr McEwan. He had a major problem in 2002 and this has
clearly affected the inguinal region and affected the cord tissue which is all tethered there and there
is certainly very little testicular tissue to feel on the left side and perhaps
some testicular tissue on the right side.
On examination the epididymi are palpable on each side just about
although there is certainly soft tissue there to feel and no definitive
vas.
I suspect that he has got an obstructive azoospermia as well as
testicular damage and this was certainly related to the infection and surgery.
His wife is 33. I have organised for a
repeat seminal count. I have checked FSH, LH and testosterone
and if the testosterone is normal it means there is functioning testicular
tissue and if the FSH is elevated then it means that we would probably be unlikely to
successfully aspirate any sperm cells."
[321] He said that he had had two sperm tests
which came back showing no sperm. Page
17 was a letter from Mr Meddings to the same doctor dated 14 June 2004 referring to an ultrasound of the scrotum, reading inter alia as follows:
"The testicles are grossly normal.
Normal intra-testicular arterial and venous Doppler signals are
obtained. No focal abnormality shown
within the testes."
[322] At page 16 there appears another letter from
Mr Meddings to the same doctor date 30 June 2004. That indicated that the pursuer's ultrasound
did show testicular tissue and in addition his hormonal profile showed that he
had an excellent testosterone level of 41.
There clearly was functioning testicular tissue and his FSH was in the middle of
the road at 12.5 so there was a possibility that he was producing sperm cells
and his problem was an obstructive azoospermia.
[323] In other words he was able to produce sperm
but the delivery system was not working.
It was suggested that there could have been intervention if the health
board gave the go ahead. At the time, if
that had been offered, they would have jumped at it. It was not, however, offered. He was told that he would need to make
representations to the health board but because they had a daughter that broke
one of the conditions of funding. He
would have had to pay for it himself privately but he could not afford it.
[324] His general reluctance to have surgery also
impacted on this. He had discussed the
matter with his wife and she was supportive.
They did not want to take any more risks.
[325] In hospital be obtained visits from all his
immediate family including his parents, in laws, brothers and sisters and his
wife. He had spent two weeks in
Crosshouse and seven in Glasgow. All the family lived in the
Kilmarnock area and mostly used a car to visit him. Things at home had to carry on. Caitlyn had to be looked after and the family
mucked in in that regard. The gardening
had to be done as well as things round the house. When he got home his wife looked after
him. He was in bed for part of the time
and up and about for a bit, it being two or three weeks or so when he was most
in need of help. She helped him, for
example, with getting dressed and tying his shoelaces. He was able to wash himself, however.
[326] She would spend about three or four hours a
day looking after him and that continued for the first four to six weeks. By then he was starting to get on his feet
and getting a bit stronger. She was
looking after the garden and doing all the housework. He used to help with that.
[327] He was pretty keen on DIY but it was no longer
a feature of his life. Prior to his
operation he had done the average amount for a married man. Now he did part of the gardening and his wife
assisted. Beforehand he would have done
it all. The garden was about 25 yards
square and there was also some garden ground to the front of the house. In addition there were a number of hedges
which needed to be cut.
[328] The evidence about his employment prospects
was the subject of controversy. He said that his job was largely sedentary but
his future was uncertain. Clyde Pumps
had taken over in August 2008 and there had been a proposal to move to a new
facility in two years. That, however,
had been abandoned three months previously.
Weir Pumps had sold their premises before the takeover and the land had
been earmarked for property development.
Manufacturing in the UK was
going abroad and his company was no different.
They were exploring joint ventures in India and
China and that was causing concern for the workforce.
[329] He was concerned about possible redundancy
but there was no information coming from the owners. He would be at a
disadvantage in the labour market because of his condition. The type of job he did was "few and far between". He would have to look at alternatives to what
he did and manual work would be outwith his reach. Engineering generally was a fairly physical
operation although he was more involved in the planning side of things.
[330] His gross salary was £31,000 and that had
increased incrementally with the cost of inflation as time had gone on.
[331] In cross-examination he confirmed that he
had played competitive football and five-a-side football with friends. He was around 38 at the time of the operation
so his football was recreational but he had not played since.
[332] He had tried to play golf but he was nowhere
near the standard he had been at previously and the game no longer gave him any
pleasure. It was a chore and a labour to
go round the golf course.
[333] He was referred to a number of letters in the
GP records. The first of these was at
page 70 and was a letter of 21 October 2002 from Mr
McGregor. Paragraph 3 thereof was in the
following terms:
"I must say I was delighted to see him looking so well today. His gastrointestinal tract is working normally
and he has regained all the weight he lost.
He has gradually been increasing his activities over the past couple of
months or so and is hoping to return to work very soon. His only real symptoms are of heaviness of
his abdominal wall and swelling which is to be expected given that he has
really no right rectus muscle to support things."
That was a fair
summary of his condition in October 2002.
He was just about to start work then.
He had recovered some lost weight but he was fairly thin. He had lost two stones.
[334] Page 69 was a letter from a Dr Gillespie,
the Weir Pumps company doctor dated 31 October 2002. Inter
alia that said the following:-
"I consulted with John and he stated that he was happy to be at his
work full-time and that his job mostly involved sitting."
[335] Page 68 was a letter of 7 November 2002 to Dr Gillespie from a GP.
It was in the following terms:-
"I enclose the most recent correspondence we have regarding this man's
progress. We last saw him ourselves on
23rd. October when he was well and we performed routine blood tests,
which have come back normal. He also
received a flu vaccination. He is on no
medication currently and I am happy to say that his renal function appears to
have returned to normal. It is therefore
unlikely in the short to medium term that Mr McEwan will run into any further
problems. The consequences of this
illness to his future long-term health are obviously difficult to predict but I
see no reason why there should be any reason why he should have any further
prolonged episodes of work absence."
That was a fair
summary. Page 65 was a letter from Mr
McGregor to his GP typed on 9 April 2003. Amongst other things it said the following:-
"I was delighted to see him looking very well and he tells me that
he is back to all his normal activities both work and social."
That was not
right. He was not looking to play
football at that time and he had not tried to play golf again. His work was fine but his social activities
as far as recreation was concerned were curtailed. He was back working normally other than in
respect of lifting things.
[336] The letter went on:-
"He has got two different abdominal supports both of which he finds
helpful and he really has no complaints whatsoever. In particular his gastrointestinal tract
function is normal with no abdominal pain."
Thereafter the
letter discussed the possibility of further reconstruction. He said that once again this letter was a
fair summary of his condition at that time other than the reference to his
social activities.
[337] Page 23 was a set of clinical notes showing inter alia an episode of low back pain
in May 2005 and treatment for a wart on 14 June of that year. It was fair to say that since around 2004 he
very rarely went back to his doctor. He
went once a year for blood tests and flu jabs.
[338] He told me that he had not done any football
coaching since his operation and I accepted that.
[339] At page 7 of Professor Keighley's report the
following comments appear:-
"John has an engineering degree.
He enjoys playing football as a hobby and he is also a keen golfer."
He had no idea how
the professor came to think that and as I indicated previously these were
historical observations by the author.
[340] As far as infertility was concerned he
confirmed that he had one daughter born in 1998. They had not tried to have another child
between her birthday and the operation, it being in their plans to try again
once Caitlyn was around four or five.
[341] He was 39 in April 2002
and 40 in July 2002. He still had
further children in mind, however. After
the operation he and his wife tried to have children and that was what kicked
off the investigation. His wife was
tested as was he.
[342] Sperm was not being delivered on
ejaculation. There was a possibility of
investigating IVF but finances were a problem as was his general reluctance to
have further surgery and the fact that there was no guarantee of success. He had not made any requests to the health board
but he had received a letter from Glasgow Royal Infirmary stating that funding
would be unlikely to emerge.
[343] He was a graduate in industrial engineering
and described himself as a professional engineer. His firm manufactured components which formed
pumps and equipment was necessary for that.
He looked at how components were made and what equipment was necessary
and was involved in purchasing it. He
was also involved in production systems and methods.
[344] Industrial engineers worked in a wide range
of fields, not just in manufacturing.
They also worked in the service industries looking at processes and
systems. They were not exclusive to the
manufacturing sector.
[345] As well as looking at the engineering side
of it, he also looked at the people side of production. Ultimately it was a fairly broad-based skill
which could be used in a variety of employment contexts. Production engineers generally did the same
type of work and there was some overlap between them but they were not exactly
co-extensive. It depended upon the
company which one worked for.
[346] Production engineers perhaps concentrated
more on the physical process of manufacturing.
He agreed that his job was not really a manual one and was 80% desk
based. Clyde Pumps had hoped to move
into new premises in Cambuslang. The
property was available and it had all the necessary area for the company as
well as being close to motorway links and the Clyde which would supply it
with water. The witness was not aware
that the group of which they formed part had any other premises in Glasgow although he
knew that they had others worldwide.
[347] He was not privy to the discussions at
higher levels as to why the project had failed.
It may have had something to do with the ground not being available or
arguments over investments. The site had
to be vacated by June 2009 to make way for Cala Homes and there were ongoing
discussions about the future. He reiterated
his worries about joint ventures in India and
China because the labour force would be dispensed with. Clyde Pumps employed around 600 people,
mostly at Cathcart but some of them in the service area. They dealt in pump technology and hydraulic
engineering and manufacturing. The key
markets included power generators and up stream as well as down stream oil and
the water industry. The market was very
competitive and Clyde Pumps had less than 5 % of the market share
worldwide. They sold a lot of material
to China who required a lot of their equipment to be manufactured there and
that was another worry. Occasionally
Clyde Pumps would recruit workers but not on a wholesale basis. They still had programmes for apprentices and
had recently set up a pump academy which provided training to all
employees. The witness himself might benefit
from it.
[348] It was suggested that the company had no
lack of confidence in its own future and the witness agreed that that appeared
to be the case but said that the facts contradicted it.
[349] He had worked for the same employer since
1985 apart from the takeover and other than his six months off work he had
never missed a day through absence. He
was a valuable employee and made a valuable contribution to the
undertaking. His concerns about
redundancy were in the context of the workforce generally rather than seeing
himself being selected for redundancy.
There would need to be a closure of the Glasgow business
for him to be involved.
[350] I had no difficulty in accepting the
pursuer's evidence.
[351] The next
witness was Keith Carter, an employment consultant, who had prepared a report
number 6/16 of process. His CV was
attached to the report as Appendix 1. For 24 years he had been the principal of
Keith Carter and Associates who had offices in London and Edinburgh. He oversaw the preparation of labour market
reports for courts and industrial tribunals as well as giving careers advice
and counselling and being involved in management consultancy, salary studies
and recruitment processes. Broadly
speaking he had spent twenty five years looking at and giving evidence in
employment matters.
[352] In
preparing his report he had had access to medical reports from Professors
Schofield and Keighley, had sight of Mr McEwan's P60s over a period of five
years and had also interviewed him. He
had sight of Mr McEwan's CV which was also appended to the report. Pages 1 and 2 gave effectively an executive
summary, pages 4-11 gave a detailed analysis of factors infringing on Mr
McEwan's employability and pages 3, 12 and 13 gave the witness's concluded views.
[356] He was
asked first of all to look at paragraph 8 at page 2 which indicated the
following:-
"The problems facing
Mr McEwan for the future are that:
1. He is a less
flexible employee.
2. He may not be
able to guarantee that in the future so much of his job will be office
based.
3. A factory lay
out may be such that a considerable amount of walking to different sections of
the site may be necessary, or moving into difficult or small spaces to inspect
operations.
4. There may be,
bearing in mind the shrinkage of job opportunities, a greater likelihood that
some physical component would be necessary in his job."
He said that the pursuer would not be able to apply
for certain jobs and if job tasks changed he might not be able to fulfil
them. He had difficulty in manual
operations and sitting was a problem as well.
Around 70% of his work was at his work station although his total time
spent sitting down would be about 80% if meetings were taken into account. The place where he worked was an enormous site. He did not know if that was a problem but it
was a concern. As far as the fourth
element was concerned he foresaw a problem that in a shrinking world he might
have to broaden his range of job applications and not just look for desk- bound
jobs.
[357] Paragraph
9 is in the following terms:-
"9. The dilemma therefore for Mr McEwan is that
he will not be able to seek any job
that becomes available but will have to wait until a vacancy appears which he
will be able to cope with, although isolating a job does not necessarily mean
that he will be appointed as his application will be viewed in competition with
others."
He said that had he been fully fit Mr McEwan could
have looked through the specialist press as well as the national press and
pulled out any vacancies which arose.
Now he needed to ensure that a job fitted not only with his skills but
his physical capabilities. Paragraph 10
is in the following terms:-
"In changing jobs
Mr McEwan is likely to face a loss in earnings, however even in an uninjured
state moving jobs after such a long period with one employer may well have
reduced his earning capacity."
He said that this was a difficult area and he wanted
to put a caveat to his comments. If the
pursuer had to leave his job and secure other employment he was likely to face
a loss of earnings. He might also be at
risk generally because of the recession and if that occurred so that he lost
his job anyway he might have had to take a lower salary in any event. If he left because of his disability there
might be a loss of earnings. Paragraph
11 reads as follows:-
"The problem in
Mr McEwan's case will be:
1. A considerable extension in his job search
period.
2. An ongoing vulnerability in the workplace (if
job processes change he may find he is no longer able to cope with the
position), and,
3. Whether he will now be able to continue in
employment through to his chosen date of retirement."
He said that in a small market the number of jobs open
to him would be smaller. The length of
time to find a job would be extended. If
he left his current employer he might have to leave another employer in due
course. He might think from a job
description that he was able to do the job but not every task was included in a
job description and he might have to leave a subsequent job and go back onto
the market.
[358] Currently
he had a retirement age of 66 but it was likely to be 68 in the near
future. He could not comment as to
whether or not Mr McEwan could carry on working until that age, that being a
medical matter, but if he left his job in his fifties a return to work would be
much harder.
[359] Paragraph
12 was in the following terms:
"12. if Mr McEwan should lose or have to leave his
present job then, although a difficult question, I would estimate an extension
in his job search period of some 9 to 12 months which assuming a potential
annual gross salary of £22,000-£40,000 pa gross, would mean a £15,231-£27,692
gross loss in earnings."
He said that this question was like asking how long a
piece of string was. The typical length
of time for a man in his area and of his age to find a job was six to seven
months and factoring in the disability would make that figure much higher. He had not quantified any figures in
connection with possible early retirement. He would defer to the medical men on that
matter. The Rowantree Trust had done a
study but that was based on disabilities in the round and that was a very broad
figure. Fifty five was a possible age
but Mr McEwan was a very determined character and wanted to continue
working. That of course could change
later. He was currently earning £31,000
gross per annum so a multiplier would have to be applied to that.
[360] The
figures in paragraph 12 were in a range of £22,000-£40,000. He was asked how the pursuer's current income
could be factored into that. As it
happened that was in the middle but the witness had looked at other jobs
available to him in coming up with his figures.
Paragraphs 13-15 were in the following terms:-
"13. The second
two headings in Mr McEwan's case are more difficult to quantify as they relate
to his vulnerability in the workplace and handicap on the labour market.
14. If Mr McEwan were, for example, to have to in
the future change job once or twice there would again be a 9 to 12 month
extended job search period and as such a further loss in earnings.
15. In an uninjured state Mr McEwan could have
expected a default retirement age of at least 66 years of age, but very
probably as norms change in the lead up to a default retirement age of 68, an
extension on this."
Pages 12 and 13
swept up his conclusions, which were all based on the more detailed information
in the intervening pages.
[361] In
cross-examination he said that perhaps 75% of his work was related to
litigation. He reiterated the sources of
his information. The pursuer had in fact
worked with his employers while at university because he was there on a work
placement. He was aware of the proposal
by the employers to relocate. The
pursuer told him about this and that one of his jobs was to look at new
sites. They decided not to move and he
understood from the pursuer that the decision was shelved for the foreseeable
future but that rang certain bells and caused concern for the future. He was asked whether the purser had expressed
concern about his security in his job and he said that he had given him
information about his employers entering a contract in partnership with certain
people in China. The contract was for five generators to be
built in Scotland and one in China. The following year there would be three in China and two in Scotland and then the
following year all of them would be in China. When he asked him if he had any difficulties
in his job he very fairly said that he had difficulty in sitting but he could
do the job. He thought the pursuer was a
very straightforward individual. Nothing
had been said to him by the pursuer about the sale of the site to Cala. He had not seen the site himself. The pursuer did not give any indication that
he was about to lose his job and he had seen nothing to support the suggestion
that the employers were about to go into liquidation. The pursuer was happy there but he was also
concerned about his future. He was
worried about that in a general sense rather than particularly in connection
with his employers. Any loss of income
would only arise if he could not cope because of his disability rather than
because he was laid off. He could not speculate
on that. He was asked what an industrial
engineer did. Weir Pumps gave a good
example of what he would do. They had a
broad based training programme involving man power planning through to
maintaining the factory equipment and that could involve maintenance as he
moved up the ladder. He could for example go into planned maintenance
programmes and emergency ones and the profitability of particular sectors. He believed that he would have gone into the
turbines to understand how they were assembled.
If he lost his job he would have to look at something which might
involve maintenance. He would be
surprised if he had not done some activity such as that with his employers
although he did not specifically ask him.
Any graduate-based training programme would require a full knowledge of
the working process. It was suggested to
him that an industrial engineer would be more involved with systems and methods
rather than spanners etc and that perhaps the witness had proceeded on a
misunderstanding. He rejected that
suggestion. Mr McEwan was now in a
position where he had responsibility in processes and planning but he was
dealing with his early employment. He
would have expected him to go into all departments including maintenance. If he had been uninjured he would consider a
hands on job in the future. He realised
that the pursuer had a broad base of experience. He asked him what his job description meant
and he was told but it was all very technical.
He did not consider the point that industrial engineers might also be found
in the service industries. If he had
worked in a different company then that might be relevant but he did not
believe that he could just look at any job which existed. One had to look at his experience and
preferences. It was suggested that if he
had a wider skill set and was retrained then different factors would apply and
perhaps different salary structures.
That was true but the witness did not think it a probable scenario. If he was taken out and retrained and then
put back in he would not be at the same level.
He had not had a history of absenteeism and in fact had never had a day
off since his operation. That would
certainly have an impact on his looking for other work. He was asked whether he would expect the
pursuer to be involved in lifting and he said that that was a problem. If there was a new turbine and he was
overseeing its installation and inspecting it then that might arise. There was no such thing as a light
construction job. He would not be
expected to pick up spanners but if there was manual work to be done it would
be better if he could perform it. At the
moment he was coping with his work but if things changed it could not be
assumed that he would continue to cope.
[362] Some of
the figures in the report related to process managers and production
engineers. It was suggested that they
were different and the witness said that job descriptions varied widely. He canvassed the various tasks carried out by
the pursuer but the problem was that there were no posts advertised which
exactly matched his skills so a wider job search had to be undertaken. He did not necessarily assume that the
pursuer would start at a lower salary if he got a new job. He only suggested that that could happen. If a new job was started it could not be
assumed that the pursuer would inevitably go in at the top although he accepted
that in appropriate circumstances there might be an increase.
[363] The next
witness was the pursuer's wife Margaret Anne McEwan. At the time of her
husband's admission to hospital in 2002 she was 31 and they had a daughter Caitlyn
who was now aged 10. The witness worked then
as a machinist in soft furnishings in Kilmarnock on a part-time
basis for twenty hours a week. Her net
monthly income was between £400 and £500.
When her husband went into hospital at first she thought he was going in
for an investigation, having had pain over the weekend, but matters became more
serious. She realised that after the
first operation when her mother-in-law telephoned her on the 26th. She was told to go to hospital having
received the call at work at 1400 hours.
Her husband was seriously ill and she saw him. She learned afterwards what was
happening. Mr McGregor spoke to her
after a scan had been taken and indicated that there were air bubbles or gas
gangrene like a form of necrotising fasciitis.
She could not remember if she was told that the condition was life
threatening because it was hard to take it all in. After the second operation she was aware that
her husband was very unwell and would have to spend some time in hospital. He was in hospital for some nine weeks. She visited him every day and her mother
helped with Caitlyn. The pursuer's
mother visited him in hospital. Caitlyn
went to nursery from Mondays to Fridays from about 1230 to 1445. Mrs McEwan would take her and her mother
would pick her up. The witness would
watch the child in the morning and then take her to nursery in Crosshouse. She would spend most of that period with her
husband, the intensive care unit being quite open as far as visiting was
concerned. She would have to juggle
things to get her normal housework etc done.
She visited in the evenings also.
If Caitlyn was not at her mother's she might be at her brother-in-law's. The witness visited her husband at Crosshouse
every evening for some two and a half weeks.
These visits lasted an hour or more.
She had visited him at Glasgow Royal Infirmary every afternoon and some
evenings she would spend time with Caitlyn but she also visited her husband in
the evening in Glasgow. There was always somebody there to visit
him. She agreed that her visits to Glasgow in the evenings
were slightly less frequent than her visits to Crosshouse. She travelled between Glasgow and her home
between visits. She drove.
[364] Because
of all this she stopped work. She thought
that she gave up work in the week after the second operation. She did so in order to be there for her
husband and her daughter. It was
difficult to cope with work when he was in hospital and someone had to be in
the house when he was recuperating. It
was not possible for her to juggle her working hours to suit. The curtain shop where she worked was open
during normal working hours.
[365] When he
came home her husband was, at first, very weak and tired and spent a lot of
time in bed. If he needed to get up she
would help him for example getting into the bath or into the toilet. There were basic things which he could not
do. In fact, there was not a lot he
could do for himself. He was able to eat
but it tired him and he would go to bed.
She had to keep Caitlyn organised and away from him. Her family still came and took Caitlyn from
time to time.
[366] He was
discharged from hospital on 23 June and the nursery broke up for the summer
holidays the following week. Her parents
would still come and take Caitlyn. After
the nursery closed her parents or perhaps some friends would come and take
her. It was her parents who were doing
it rather than the pursuers because they were doing a lot of visiting in
hospital , although her own parents sometimes visited at night. Most of the time Caitlyn was with her parents
when that was necessary.
[367] When her
husband was at home Caitlyn was split between her parents and herself and
sometimes she went to her brother-in-law's or her friend's house but mostly it
was her parents and herself who looked after her.
[368] Her
husband was off work for six months and it was a good three or four weeks after
his return home from the hospital that he was able to start doing things for
himself. If he wanted her she was always
there at his beck and call. After a time
he could do a bit more and that lightened the load a bit but she would still be
helping him in and out of the bath because he had no stomach muscles. She had to do things about the house and
outside. Either her husband would do
these jobs before or they were shared but she was now doing them all. As time went on it was easing up a bit. Quite a bit of her life was taken up with
looking after her husband. Everything
sort of stopped just so she could be there for him. She did not have a break when someone else
took over so that she could go out unless someone came in while she went out
shopping.
[369] She was
asked how long it was before his return to work that he was able to get about
himself and said that it was probably at the end of August or beginning of
September. By then he did not need her
to tend to everything.
[370] This was
a significant life event and it had affected him. There were a number of things he could not
do. He was adjusting at first and took a
day at a time. His character had not
altered in any way, however, and he did not conduct himself in any different
way. He was the same person as before, although
he was limited in what he could do. Some
things that he used to do, such as gardening and DIY and general household
stuff, were no longer available for him.
Occasionally they now paid someone to attend to the garden when it was
needed. There was very little he did
about the house in case he suffered injury. This lady was patently credible and
reliable and I accepted her account.
[371] The next
witness was Mary-Anne McEwan the pursuer's mother. Some of her evidence related to the merits
and some to damages and it is convenient if I simply deal with her as a
whole. She lived in Knockentiber, which
is only about half a mile from Crosshouse.
She had been a nurse latterly at Crosshouse hospital before retiring
when she was aged sixty which I think was in 1994. She had some idea what would be involved when
the pursuer was admitted. She was aware of
what was happening as it was going on and was keen to find out. She spoke to Mr Kingsmore on the Monday night
when he was first admitted and was told that they were going to treat him
conservatively for a day or two. He told
her that the fact that he had been in pain since the Saturday did not alter the
position and he would be treated with drips and suction etc. He was no better the following day and the
day after that was when he was operated on at first. She was there that night but he had not yet
woken and she did not see him until the following day, that is Thursday the 25th. He was declining and complaining bitterly
about pain although that was not something he remembered himself. She spoke to a resident but did not see Mr
Kingsmore or Mr McGregor at that time.
Her son was in the high dependency unit.
[372] The
second operation was radical. No one had
told her on the Friday that her son had got worse. She went in for visiting around 1500 hours
and there was a flap on involving doctors and consultants. She spoke to a medical consultant and he was
asking her if there was anything hereditary which might explain the
problem. She also spoke to the anaesthetic
consultant who was taking him to be stabilised.
In addition, he was going for a scan.
She was in the waiting room when Mr Kingsmore and Mr McGregor came
in and told her that the scan had revealed gas bubbles and necrotising
fasciitis. They were taking him to
theatre.
[373] After
the operation Mr McGregor came into the waiting room. He said that he had had
to go in and remove all the tissue that was infected. He had gone back into the abdomen and had cut
out a section of tissue because it was red and friable. She was asked whether he said why he had done
that and replied in the negative. She
wondered why they had gone back in again and was concerned about the rate the
fasciitis was spreading from the Wednesday to the Friday. She though it was strange that they had gone
back in. The only answer she got was
that the tissue was red and friable but she did not ask about the
infection. Mr McGregor told her that he
wanted to check the bowel as far as she could remember. He did not say why.
[374] She
thought that her son was going to die.
By this time most of his organs had "packed in". The intensive care unit had saved his life at
the beginning.
[375] She
visited him every day for around six weeks in Crosshouse and Glasgow Royal
Infirmary travelling from home each day.
She spent the whole of the visiting time with him. In the urology unit she probably spent
longer.
[376] It took
around three quarters of an hour by car to get to Glasgow but sometimes she had
to go on the bus, which would be a journey of one and a half hours via
Kilmarnock.
[377] Her
daughter-in-law's mother looked after Caitlyn quite a bit. She had been doing so when her daughter-in-law's
parents were visiting which was around two to three times a week. She would pick her up from nursery and keep
her for about six hours until her mother came and picked her up. That was a regular event.
[378] In
cross-examination she said that when the pursuer had his first operation he
went from the theatre to the high dependency unit. Shortly after the second operation he went to
the intensive care unit. These were two
different units. His time in the high
dependency unit was therefore from the Wednesday evening until the Friday
afternoon.
[379] I
accepted the evidence of this witness.
[380] The next
witness was Mrs Catherine Sweetin, the pursuer's mother-in-law. When her son-in-law was in hospital for nine
weeks or so he was visited most of the time by his wife. Her husband and she were involved in looking
after Caitlyn. They had her every day,
taking her home from nursery and looking after her.
[381] The
nursery stopped for the holidays and they had her all of the time because her
mother was at hospital every day.
Whenever she was at hospital the child was with them. That was the case until he came home from
hospital. After that they would go and
collect her for the day and take her to their house for lunch before taking her
back home at night. That happened when
it was necessary. They were always
available for her. In an average week
she thought that they had her probably every day. Her father could not leave the house and if
the child's mother needed them then they would be there. They would have her for some period every
day. They would probably go in in the
morning, take her for lunch and then bring her back at night.
[382] This
happened every day from the time he was in hospital but she could not say how
long it went on after his return.
[383] When her
son-in-law came home her daughter looked after him. She had her hands full. Apart from looking after Caitlyn they helped
with such things as washing, ironing and Hoovering etc if her daughter needed
it. Caitlyn would be at her parents'
house if the witness was there doing such things.
[384] Her
son-in-law was at home for about three months before going back to work. She could not say definitely how long she
continued to help with the family. Once
they felt that he was able to cope and was on the road to going back to work
they more or less stopped.
[385] In
cross-examination she agreed that her daughter was working part-time before the
pursuer had his surgery. At the time he
went through the operation Caitlyn was at the nursery and it stopped thereafter
for the summer holidays. At that point
she looked after Caitlyn a bit more. If
her mother had still been working she would still have been looking after
her. If no operation had taken place and
her mother was still working they would have been looking after Caitlyn anyway
but not for as long. While her mother
was working she only had her two days a week while the nursery was open. She would have her every day during the
summer if her mother was working.
[386] Once
again this witness was perfectly straightforward and plainly telling the truth.
Submissions
on Quantum for the Pursuer
[387] Mr Armstrong
submitted that the pursuer was reasonably well adjusted and that indeed was the
tenor of the evidence. I found him to be
remarkably stoical about his whole lot.
[388] Mr
Armstrong reminded me that the pursuer had gone back to work in six months and
had not had a day off since. He could
not have done more to mitigate his loss and had not troubled his general
practitioner much. He had got on with
his life as best he could.
[389] There
were four heads of damage namely solatium,
disadvantage in the labour market, services (sections 8 and 9 of the 1982 Act)
and miscellaneous expenses including the cost of the elastic supports.
[390] As far
as solatium was concerned he
submitted that Mr McEwan had been very ill, near death with multiple organ
failure, material debridement and plastic surgery. His ongoing problems related to the loss of
abdominal muscles and the effect on his sexual organs. He had lost in respect of his quality of
life. He did not participate in sports
such as golf, football and coaching and had been unable to have a larger
family. He had lost some of the pleasure
of sexual intercourse. If there was a psychological aspect to his problems it was
a fear of further surgical intervention but that was not unreasonable.
[391] I was
invited to consider his disability as it stood and not to take account of any
possibility of reconstruction.
[392] Mr
Armstrong invited me to look at the abdominal injuries themselves and then at
the effect on the sexual organs.
[393] As far
as the abdominal injuries were concerned he referred to a number of authorities. The first of these was the case of Re Stokle Kemp & Kemp J3-002. This related to a
burning injury. It was difficult to find
comparable cases but to a large extent the treatment, pain and suffering in
burns victims was very similar to Mr McEwan's. In that case (dealing with a CICB award) pain
and suffering and loss of amenities were assessed at £70,000 which increased to
£91, 700 taking account of inflation.
[394] He then
referred to the case of McLeod v BR Board 2001 SC 534 and in particular
to paragraph 7, 9 10 and 16 thereof. A
jury had awarded the sum of £200,000 for past solatium and £50,000 for future
solatium in the case of a twelve year old boy who suffered extensive electrical
burning injuries. The burn involved most
of the upper point of his body and covered more than 30% of his total body
surface. It affected the whole thickness
of the pursuer's skin and because of the underlying effects of the electrical
burn it was potentially life threatening.
He was in hospital for about seven months undergoing at least four or
five skin grafting operations involving taking skin from his thighs and putting
it on the areas of his arms, the front of his body and his neck where the skin
had been destroyed. That process would
lead to pain lasting for ten to fourteen days.
He required to be bathed every two or three days and new dressings had
to be put on. He had to wear splints and
have regular physiotherapy. He had been
given painkillers and still had to attend hospital as an outpatient. He had been readmitted on three occasions for
secondary surgery. By the time of the
trial he was 21 and fully grown and had permanent scarring. The visible areas of scarring were on the
left side of his face and neck and he also had scarring on the back and front
of his right hand. This had been
improved by an operation but his little finger was still flexed and this
affected his ability to write and to carry things. The jury at the trial were able to see the
scars and he was somewhat embarrassed when he lifted his shirt. There were also photographs of his appearance
before and after the incident. He said
that he had learned to live with the scars round the left side of his mouth and
then onto his neck. He was unhappy about
taking his shirt off.
[395] The court
did not interfere with the award but Mr Armstrong suggested that it was at the
higher end of the scale which was acceptable.
[396] The
applicant in Stokle had had eight
episodes of surgery from November 1991 to November 1994 incorporating skin
grafts, scar division and release of contractures. He had been a capable sportsman before the
incident but was unable to pursue his activities and his ability to carry out
domestic chores was handicapped by the delicacy of the skin on his hands which
was prone to blistering. He had suffered
full thickness burns to 40% of his upper body including the face, neck, upper
limbs and especially the right dominant hand.
[397] Reference
was also made to the case of Rye v Fields Engine
Service Ltd, Kemp & Kemp, L20-001.1.
This was a case of necrotising fasciitis. Infection had got into the abdominal wall and
debridement of the abdominal wall had been undertaken. The plaintiff had spent nine days in
intensive care undergoing two further debridements and subsequently had skin
grafts with skin being taken from his right thigh and laid onto the raw area of
the abdominal wound. He also contracted
an MRSA infection. He was off work for twenty-seven weeks and he
spent a total of eight weeks in hospital. He was 45 years of age at the time of
the injury. He was left with a very
marked and obvious abdominal wall defect described by a consultant surgeon as a
"marked cosmetic defect" and by the judge who had seen two photographs of the
defect as "horrific". He had had to live
with the defect for more than two years before he had a full
abdominoplasty. Following reconstruction
he had areas of reduced sensation over the anterior abdominal wall and residual
scarring, as a result of which he would not take his shirt off in public. Pain
and suffering and loss of amenities were assessed at £30,000 which rounded up
to £34,000 after inflation.
[398] Mr
Armstrong submitted that there was a clear similarity between the circumstances
of the plaintiff in that case and Mr McEwan's circumstances. The area affected, though, was less than the
area affected in Mr McEwan's case.
Furthermore, he did not simply have a residual scar but a significant
abdominal defect and his case was worse.
[399] Mr
Armstrong suggested that a figure of £75,000 for the abdominal damage would be
appropriate.
[400] As far
as intimate relations were concerned, it was clear on the evidence that Mr
McEwan was sterile. He was not
technically impotent but the mechanics of the sex act were less than usual and
involved pain. Reference was made to McEwan & Paton at page 819 and to the paragraphs dealing with the
reproductive system, quoting the Judicial Studies Board Guidelines. At page 820
it was indicated that cases of sterility usually fell into one of two
categories; surgical, chemical and disease cases (which involve no traumatic
injury or scarring) and traumatic injuries (frequently caused by assaults)
which were often aggravated by scarring.
The most serious cases merited awards approaching £81,500 and the bottom
of the range was the case of a much older man, which merited an award of about
£10,700.
[401] The
pursuer was 38 at the time of the accident with one child and he was now
45. He was sterile. He had conditions aggravated by scarring and
he could not have a normal erection. Mr
Armstrong submitted that he fell in the middle of the range of cases and an
award of around £50,000 would be appropriate under this head. He made reference
also to the case of Adamson v Lothian
Health Board 2000 RepLR44, where a jury awarded £100,000 in respect of solatium following the wrongful removal
of a testicle, with particular consequences, but indicated that he did not seek
an award of anything like that under this head.
[402] In the
normal case of multiple injuries one would fix a global figure for solatium which would be somewhat less
than the sum of the parts but in the unusual case we had here Mr Armstrong
submitted that the award should be cumulative.
They were very separate disabilities.
He had an abdominal disability because of the loss of muscle and that
affected how he conducted himself generally.
His virility affected his family life.
He felt sorry for his child who had no sibling. He felt sorry for himself because he could
not have another child and the pleasure of sexual intercourse was denied him to
a significant extent.
[403] In these
circumstances I should award a total of £125,000 for solatium.
[404] He
invited me to find that two thirds of the solatium should be attributable to
the past at interest at 4% per annum.
[405] He then
turned to the question of disadvantage in the labour market.
[406] The
first point to be made was the risk of redundancy. Clyde Pumps had an uncertain future. The evidence of Keith Carter was that it
might take the pursuer twice as long as another man to find work. It might take him up to a year. His current earnings were £31,000 gross. P60s were lodged in process and there had
been an incremental increase year on year.
Allowing for the possibility of redundancy not manifesting itself for
two years or so I was invited to allow a figure of £30,000 net under this head.
[407] He then
turned to the question of whether the pursuer would be unable to work until his
retirement age. Objection had been taken
to that on the ground of no Record.
There was a general averment to the effect that the pursuer would suffer
disadvantage in the labour market. Mr
Carter had given evidence about that and no objection had been taken. It was only when the point had been put to
Professor Keighley that objection was made.
Mr Carter's report had been lodged in process prior to the proof so the
defenders were not taken by surprise.
The concept of a man being unable to work until his retirement fell
within the concept of disadvantage in the labour market. What underlay that was
the potential for deterioration or his job becoming more demanding.
[408] I was
invited to deal with this on a broad axe basis and Mr Armstrong suggested a
figure of £50,000 under this head as well as the £30,000 for the previous
aspect of it. The two awards related to
different ends of the pursuer's career and different circumstances.
[409] It might
have been helpful to ask for one award of £80,000 made up of two parts.
[410] Professor
Keighley had said that there could be a deterioration and the pursuer might be
affected. It was speculative to some
extent. It might or might not happen and
that was why a broad axe had to be used.
[411] As far
as services were concerned, Mr Armstrong referred me to the evidence from the
pursuer, his wife, his mother and his mother-in-law. He had helpfully produced a schedule setting
out his calculations. An hourly rate of
£5 per hour for the services was used and the schedule dealt in turn with the
activities undertaken by the pursuer's wife, mother and mother-in-law. I understood that the £5 per hour came from the
schedule for 2007/2008 in the Professional Negligence Bar Association Tables
for the Calculation of Damages and was a discounted figure.
[412] The
multiplier for the future of 23.88 for the Section 9 claim was taken from table
1 of the Ogden tables but it should be
discounted as in any event the pursuer would do less as he got older. I was invited to discount it by a factor of
50% so that the figure for the future in terms of section 9 should be £31,000.
[413] The
total figure for loss of services amounted to £62,296. I need not go into
detail as to how this was calculated
since the figures appear on Mr Armstrong's schedule.
[414] There
were miscellaneous costs relating to the
abdominal supports. Reference was made
to 6/15 of process. Mr McEwan had opted
for the less expensive corset at $49.99.
He required to replace it quarterly.
To date he had required twenty four of these which amounted to
$1,200. For the future the same
multiplier of 23.88 was taken at $200 per annum and that amounted to
$4,776. The total figure therefore was
$5,976 which was rounded up to $6,000 and using an exchange rate of 0.575 the Sterling value amounted
to £3,030.
Submissions
on quantum for the Defenders
[415] In opening
his submissions Mr Stephenson renewed his objection to Mr Armstrong's
attempt to elicit evidence which, broadly speaking, would show that the
pursuer's condition could worsen, leading to early retirement.
[416] He
referred to certain dicta of Lord
President Clyde in McGlone v British Railways Board 1965 S.C. 107 at
116-117, Lord President Normand in Ward
v Coltness Iron Co 1944 S.C. 318
at 322 and Lady Paton in Harrison v West of Scotland Kart Club 2001
S.C. 367 at 396. Broadly speaking
his argument was that there was no notice on Record for any suggestion that the
pursuer's condition would worsen, the pleadings as to his physical state being
couched in the present tense. There were
no averments to the effect that any of his physical problems would worsen over
time or that any new physical problems would arise. After setting out his physical state there is
an averment as follows: "The pursuer is
at a disadvantage on the labour market."
Mr Stephenson said that it would have been a simple matter for the pursuer
to lay a foundation on Record for the line that had been taken namely that the
degree of incisional herniation was likely to worsen over time, that the
pursuer was likely to experience increasing physical difficulty as a
consequence of the fact that he had no abdominal muscle and that but for his
injuries he would have worked to a normal retirement age. There was no notice that this line would be
taken and it was not implicit in the averments.
The averment that he was at a disadvantage on the labour market was not
sufficient. The specification of that
averment could only be found in those averments which were made and those
relating to his current physical state, not any future physical state. The pursuer was disadvantaged because he
required to wear an abdominal support, was restricted in his physical abilities
and could not lift objects. It was those
averments which defined his loss of employability claim. He could not, for example, have substantiated
that claim by leading evidence that he was likely to be off work for repeated
dialysis or regular physiotherapy. These
would go beyond the averments and so did the evidence about any future
deterioration. Reference was also made
to McDyer v Celtic Football and Athletic Co Ltd (No.2) 2001 S.L.T. 1387. In that case the issue of early retirement
was expressly dealt with in the pursuer's expert report which had been lodged
in process but that did not happen in this case. In short any distinct future disadvantage on the
labour market had yet to come into existence and could not be encompassed
within the averments that "the pursuer is at a disadvantage on the
labour market".
[417] The
defenders were prejudiced. There was
nothing in the productions from which it might be said that the defenders ought
to have anticipated the line.
Mr Carter's report had deferred to medical experts in this
regard. Neither Professor Keighley
nor Professor Scholefield commented on his future physical state in their
reports. The pursuer was only examined
by Professor Keighley midway through the proof in the Court building and
that raised the possibility that the line was a new departure for the
pursuer. The defenders had instructed an
employment expert for a critique of Mr Carter's report but he was not in a
position to consider what the pursuer's loss was likely to be on the hypothesis
that he had to retire early. Mr Carter
was not cross-examined about the extent of any loss on that hypothesis and the
pursuer himself was not asked during examination-in-chief whether he had
received any medical opinion about early retirement or about any potential
deterioration in his physical abilities.
He was not asked what his normal retirement age would be.
[418] I have
already set out Mr Armstrong's arguments on this line. In reply to Mr Stephenson's submissions
Miss Tait submitted that the objection came too late. Mr Carter's evidence had already been
given that had not been challenged. The
defenders had had Professor Krukowski on their list of witnesses and he
would have been able to comment in relation to the likelihood or otherwise of
any deterioration in the pursuer's condition.
It had been averred by the pursuer that his scarring was severe and
permanent and that was a good indicator that one was dealing with a future
event.
[419] It might
be as well for me to deal with this matter now.
I do not think that it can be said that the objection came too
late. Mr Carter deferred to the
medical experts and his evidence in this regard did not amount to
anything. Objection was timeously taken
when Mr Armstrong sought to elicit the evidence from
Professor Keighley. I think that
Mr Stephenson is well founded in saying that there is no averment that the
pursuer's condition will deteriorate. In
the absence of such an averment I am satisfied that the defenders were given no
notice that such a line might be developed.
The argument presented by Mr Stephenson in this regard seems to me
to be a cogent one and I agree with it.
Accordingly I uphold his objection.
[420] In
relation to solatium
Mr Stephenson submitted that any award should reflect the degree of
physical disfigurement, the pursuer's altered lifestyle, reduced sexual
function and the reduced opportunity to increase his family. The Judicial Studies Board guidelines were of
some assistance. They provided that an
award of up to £86,500 was appropriate for total impotence and loss of sexual
function and sterility in a young man. A
further bracket of £25,500 to £46,300 was appropriate for a middle aged man
with children where impotence was likely to be permanent. The pursuer was not impotent and had not
suffered a total loss of sexual function.
He referred to the ranges in the guidelines which I have already
mentioned. An uncomplicated case of infertility without any aggravating
features for a young man without children would attract an award between
£32,800 and £41,250. A similar case but
involving a family man who might have intended to have more children would
attract between £13,750 and £18,100.
Mr Stephenson submitted that the maximum award of £81,500 would be
appropriate in the case of a young childless man rendered completely sterile
and left with the worst readily visible traumatic injury or scarring. The
pursuer's age, the fact that he had a child, that he had the option of seeking
assisted conception and that his scarring was normally not visible when dressed
all suggested that any award should be well under £81,500. If he had suffered infertility, and only that,
he would fit into the range between £13,750 and £18,100. He was not infertile, in that he could still
choose to proceed with an attempt at assisted conception but he had, on the
other hand, serious abdominal scarring and loss of musculature. Mr Stephenson then referred to a number of
authorities. The first of these was Duffy v Mairs 1998 S.L.T. 433.
In that case a 20 year old pursuer developed necrotising fasciitis
in his right arm which required removal of tissue from the right arm and chest
including excision of the triceps muscle.
He was left with extensive scarring, a marked reduction in all shoulder
movements, occasional pain and swelling in his right arm and a slightly reduced
grip in his right dominant hand. He
underwent several operations involving pain and discomfort over a protracted
period. Solatium was assessed at £20,000 which would now be rounded up to
£26,400. He then referred to Rye v Fields Engine Services Limited on which
Mr Armstrong had relied and submitted that it was notable that the pursuer in this
case had not developed any serious adverse psychological reaction to his
scarring. Nonetheless it seems to me
that there are certain similarities between Rye and the current
case. Mr Stephenson also referred to a
number of burns cases but said that they were not necessarily helpful. The injuries in Re Stokle were more severe, involving burns to 40% of the pursuer's
upper body, chronic back pain, breathlessness and hoarseness and hands that
were prone to blister in sunlight. The
plaintiff had been forced to retire, had limited use of his dominant right hand
and had hearing loss in his right ear. McLeod involved similarly severe
injuries involving electrical burns to most of the pursuer's upper body and
extensive permanent scarring to the face but the award of £250,000 was made by
a jury and was outwith the norm. In Dunn v Carlin 2003 S.L.T. 342 a 74 year old man sustained full depth
burns to 35% of his body, circulation problems, resulting in amputation of his
left big toe, pressure sores and extensive scarring to both legs and feet, both
buttocks, the left hand and arm. He
could not bend his left knee and had no grip strength in his left hand. He required daily tranquilisers for pain in
his left foot and solatium was
assessed at £40,000 (now £47,200). In Stark v Lothian & Borders Fire Board 1993 S.L.T. 652 a
26 year old man sustained burns to 25% of his body, namely his hands,
forearms, upper arms, shoulders, ears, scalp, left lumbar region and left
thigh. He had grafting operations and
was in considerable pain for several months.
He developed post traumatic stress disorder and had periods of
depression and alcohol abuse. He also
required to take a less satisfying job. Solatium was assessed at £26,000 (now
£39,520). The pursuer in Adamson, who
had been rendered infertile, was much younger than the pursuer and had no
children.
[421] Mr
Stephenson submitted that the suggestion that I should arrive at separate
awards for the two aspects of the case and simply add them together was
accepted by Mr Armstrong to be contrary to practice and he submitted that
it was contrary to principal. Solatium was not divisible. I have no difficulty
in accepting this submission.
[422] Mr
Stephenson went on to submit that an award of £125,000 would be unprecedented. The bottom end of the range of JSB guidelines
award for paraplegia was £127,250 as was the bottom end of the range for moderately
severe brain injury.
[423] In all
the circumstances he suggested that a reasonable award for solatium would be £45,000, one third of which should be apportioned
to the past with interest thereon at one half of the prevailing judicial
interest rate (ie. at 4%).
[424] As far
as disadvantage on the labour market was concerned he pointed out that the
pursuer was a qualified industrial engineer with a university degree and was
employed as an industrial engineering supervisor by Clyde Pumps. He had worked for the business since
graduating in 1985. He said that an
industrial engineer was involved in the analysis and planning of work systems
and did not therefore work directly on or with machinery. His skills were widely based and transferable
outwith manufacturing industry.
Industrial engineers could be found working in a wide range of
employment including the service industry. The pursuer returned to work after only about
six months and had remained there since.
He earned approximately £31,000 per annum gross. His job was predominantly desk based and
involved no manual or heavy work. If he
had to lift something heavy he asked a colleague to do this for him and that
was his only current disability. There
was a possibility for a time that Clyde Pumps were to relocate but that plan
had been shelved. There was some
uncertainty as the business might nonetheless need to relocate, its current
premises having been retained by the Weir Group and, according to the pursuer,
sold by them to a property developer.
Despite these concerns the pursuer indicated that his employers had
about 5% of the world market in their products and they employed over
600 people at their premises in Glasgow. The pursuer was a well regarded employee who
contributed positively to his employer's business. He accepted that his job was secure short of
a very major reorganisation or cessation of the business. He did not suggest that he would but for his
injuries ever have sought alternative employment. The only evidence led about the business and
the pursuer's prospects came from the pursuer himself. Had he wished to make more out of this head
of claim he could have led evidence from within the company or from a trade
union if applicable. In the view of Mr
Carter the pursuer had no loss of future earnings unless he was made redundant
in which case he might have a longer job search or he required to retire early. The second aspect of this should not be taken
into account in view of the objection which, as I have indicated, I have decided
to uphold.
[425] The
pursuer had not proved that he had any immediate prospect of losing his current
job through redundancy or otherwise. For
there to be an award under this head there had to be an identifiable loss that
had or would on the balance of probabilities be sustained. It was not a speculative award made in
respect of a merely theoretical risk.
Such an award was inappropriate in respect of a man who had returned to
work for his only employer in the same capacity doing the same job without
difficulty or absence and there should be no award under this head.
[426] In
relation to services Mr Stephenson turned first to the Section 8
claim. He submitted that the pleadings
were sparse. The evidence was that the pursuer's
wife gave up her part-time employment during the pursuer's convalescence, that
she visited him in hospital daily and that for a period of some weeks once he
was home she rendered him assistance with self-care, meals etc. The pursuer's parents visited him in hospital
and looked after their child for periods.
His parents in-law visited him to a lesser extent but took a larger role
in the care of the child until the summer holidays when nursery broke up and
they would have looked after her anyway.
[427] The
Section 8 claim ended at some point before the pursuer's return to work in
late October 2002. It was reasonable to
suppose that, for a period before that, any continuing services tailed off as
his health improved and he recovered his independence.
[428] There
was no evidential basis for the application of particular rates as set out in
the pursuer's schedule and Mr Stephenson submitted that I was not entitled
to look at a book which had not been spoken to in evidence or tested in order
to select rates.
[429] A broad
axe was required. He submitted that in
respect of the wife the figure should be £2,000, and that there should be £750
for each of the parents and parents in-law.
Interest should be allowed at the full judicial rate from the date the
rendering of services ceased and a fair date would be 1 September 2002.
[430] The
Section 9 claim was based on the pursuer's inability to do gardening and
DIY. There was evidence that he formerly
did both albeit that he did what "any normal married man" might do, which was
not altogether helpful. Gardening seemed
to have been a shared task and remained so but with the pursuer's wife
undertaking a greater proportion than before and with someone coming in to do
what was presumably the heavier work.
There were no pleadings and no evidence to support the use of any
particular multiplicand. No quotations,
invoices or other vouching had been lodged in process and a cautious approach
had to be taken. A little over
six years had passed since the pursuer's operation and an award of £1,800
for the past would be reasonable with interest at 4% from the end of April
2002. For the future, taking a broad
approach, an award of £6,000 would be reasonable. He based that on a figure of £350 per annum
with a multiplier of 17 using table 11 of the Ogden tables till the
pursuer was aged 69 to 70 on the basis that his ability to undertake gardening
and DIY would in any event decline with age.
[431] In
relation to additional expenses Mr Stephenson reminded me that the receipt for
two abdominal supports and the reasonableness of incurring the costs
thereof was agreed in the parties' joint minute. It was accepted that the purser derived
benefit from the supports which had been replaced periodically. The pursuer's past figure assumed that they
had been used since July 2002 which appeared not to be correct. The pursuer's figure of £3,030 should be
rounded down to £3,000.
Reply
on quantum for the Pursuer
[432] Miss Tait
submitted that the tables referred to in order to calculate an hourly rate for
the services were no different from the Ogden tables which were readily
accepted and used by the Courts. The
Courts had criticised the unnecessary use of care experts because of their
expense, the time expended on giving their evidence and the extent to which
they actually helped. In fact the
figures used in the schedule were less than those set out in the tables.
Discussion
on quantum
[433] I have
no difficulty in holding that the pursuer, those of his relatives who gave
evidence and Mr Carter were credible and reliable witnesses. Accordingly I accept their evidence. That being so the fact that no further
evidence was led as to the prospects for his employers is neither here nor
there since I accept what he has to say about it. I will deal with that matter at a later stage
however.
[434] The
first consideration is the question of solatium. I should repeat right away that I accept
Mr Stephenson's submission that I have to assess solatium as a whole and not to assess it in relation to particular
factors and then perform an addition sum.
[435] It is
appropriate for me to take account of the disabilities as they stand. In other words I do not consider it
appropriate to take account of the possibility of reconstruction. It is unlikely that the pursuer will proceed
with such an operation and Mr Stephenson accepted that it was reasonable
for him to take that course. I do not
consider it likely that the problem with his ejaculate will be resolved and
again I proceed on the basis that that difficulty is permanent.
[436] As
always seems to be the case none of the authorities to which I was referred was
a parallel with the case under consideration.
I do not derive any assistance from jury awards.
[437] All that
having been said, the case of Rye is of some
assistance. It seems to me however that
the pursuer's situation in the current case is worse than that of the plaintiff
in Rye, looking at his
circumstances as a whole. I need not
repeat those here since I have already set them out.
[438] I assess
solatium in the sum of £65,000.
[439] It seems
to be that the pursuer has very broadly come to terms with his situation and I
agree with Mr Armstrong that two thirds of this should be attributed
to the past. The interest element by my
calculation comes to around £11,791 and I award solatium together with interest in the sum of £76,791.
[440] I turn
now to the question of disadvantage on the labour market. The pursuer's case is obviously based upon
his own evidence and that of Keith Carter.
I have no difficulty in accepting the pursuer's evidence and I do not
regard it as fatal that he did not call someone from the business or from the
union. Has he proved that there is any
prospect of losing his job through redundancy or otherwise? I agree that no award should be made in
respect of a merely theoretical risk.
The pursuer is obviously concerned about possible redundancy and I accept
that his employers were exploring joint ventures in India and China. The premises had been sold before Weir Pumps
were taken over by Clyde Pumps and his evidence was that the site had to be
vacated by June 2009. While the company
appeared to have no lack of confidence in its own future, his position was that
the facts contradicted it. The Chinese
required a lot of their equipment to be manufactured there. Despite the fact, which I accept, that he is
well qualified and that his skills could be transferred to another sector, I am
of the opinion that he has shown on a balance of probabilities that there is a
substantial risk that he will find himself back on the labour market. I am fortified in this by the evidence from
Mr Carter, albeit based on what he was told by the pursuer, about the contracts
for generators to be built. Five of them
were to be built in Scotland and one in China but the
following year there would be three in China, two in Scotland and then in the
following year all of them would be in China. I can detect no reason to reject
Mr Carter's methodology nor Mr Armstrong's general approach. I shall award the sum of £25,000 under this
head.
[441] Had I
been persuaded that the evidence as to the likelihood of early retirement was
admissible I would have accepted that evidence and I would have made a further
award of £40,000 in this regard to reflect the fact that such an eventuality
would not be for some time in the future and in particular would be, in my
opinion, later than any question of redundancy will manifest itself.
[442] I turn
now to the question of services. Once
again I accept the evidence which was given in respect to this.
[443] Despite
the submissions of the pursuer's Counsel I am not persuaded that it is
appropriate to apply an hourly rate. Use
of the Ogden tables is well established
but no authority was cited to me for the use of hourly rates and multipliers in
calculating a claim for services whether under Section 8 or
Section 9. I respectfully agree
with Mr Stephenson that a broad approach has to be adopted. The pursuer's wife visited him every day in
Crosshouse for some two weeks both in the afternoons for about two hours
and in the evenings for about an hour.
She visited him at Glasgow Royal Infirmary every afternoon and on some
evenings. She had to travel between Glasgow and her home
between visits.
[444] I would
allocate her the sum of £1,000 in that regard.
As far as travelling expenses are concerned, she did not go to Glasgow
Royal Infirmary twice a day every day and I would award the sum of £2,000 to
her in that regard.
[445] It is
almost impossible, even if I felt it appropriate, to calculate precisely how
many hours were devoted to her husband at home and again a broad axe had to be
employed. I would award a further sum of
£1,000 in that regard. In respect of the
pursuer's wife therefore I calculate the services award as £4,000. I agree with
the suggestion by Mr Stephenson that interest should run on that sum at the
rate of 8% per annum from 1 September 2002, giving a figure
of £2,064 by way of interest and a total award of £6,064.
[446] As far
as his mother is concerned, she visited the pursuer every day for around
six weeks in Crosshouse and Glasgow Royal Infirmary, the round trip being
around one and a half hours when he was in Glasgow if she drove or
three hours if she used public transport.
She also looked after Caitlyn from time to time when the pursuer's
in-laws visited him in hospital although the bulk of that was borne by the in-laws.
[447] In her
case I quantify the sum, very broadly, as £2,000. Interest on that, calculated
the same way, comes to £1,032 making a total of £3,032.
[448] As far
as the pursuer's mother-in-law is concerned, while the evidence was somewhat
vague it is fair to say that she and her husband bore the brunt of looking
after the child whilst the pursuer was in hospital and also assisted thereafter
for a spell until he was on the road to recovery. In all the circumstances I see no reason to
distinguish between her and the pursuer's mother and an award of £2,000 is, in
my opinion, appropriate also to reflect the services which she had provided.
The same interest calculation falls to be made, resulting in an award of £3,032.
[449] I turn
now to the claim under Section 9.
Mr Armstrong's calculation, based on an hourly rate of £5.00 provides an
annual figure of £2,600, with interest from 24 April 2002 to date. For the future he suggested a multiplier of
23.88 from table 1 of the Ogden tables. I agree with Mr Stephenson that a broad
approach is required. He submitted that
a multiplier of 17 would be appropriate and a multiplicand of £350 per
annum. This would take the pursuer to
the age of 69/70 on the basis that his ability to undertake gardening and DIY
would in any event decline with age.
[450] There
are of course a number of variables. It
may be that once a garden is established it will require little by way of
maintenance, although this will depend on whether or not people are satisfied
with it or wish to change it. It may
depend on whether the pursuer lives in the same house for the rest of his life
or moves perhaps to a smaller house which will require less gardening or a
bigger house which may require more.
Only so much DIY can be undertaken in any one house. Once shelves are put up there may be no room
for any more. On the other hand, moving
to a new house may require a fresh start.
[451] While it
may be that the ability and, for that matter, the inclination to undertake
gardening or DIY may decline with age the opposite may be the case. People may find more time on their hands and
may be more inclined to do things at home rather than go out. For all these reasons a cautious and broad
approach has to be adopted.
[452] I assess
the figure for the past as £4,000 with interest at 4% ( amounting, by my
calculation to £1,088) giving a total of £5,088. In relation to the future I award the sum of
£12,000.
[453] The last
element of the claim is the cost of the abdominal supports. I award £3,000 in respect of those.
[454] The
total award is therefore £134,007.
Decision
[455] I shall repel
the third and fourth pleas-in-law for the defenders, sustain the first
plea-in-law for the pursuer, find the defenders liable to make payment to the
pursuer of the sum of ONE HUNDRED AND THIRTY FOUR
THOUSAND AND SEVEN POUNDS STERLING (£134,007)
and find the defenders liable to the pursuer in the expenses of process as
taxed.
