Scottish Court of Session Decisions

Pursuer: MacMillan; Thompsons, Solicitors

Defender: McGregor; Denise McVeigh, Solicitors

21 January 2011

Introduction

[1] The pursuer was born on 10 October 1965. He has suffered from epilepsy for many years.

[2] This action is an action for damages brought by him against the general practitioner's practice where he was a patient, and the partners and former partners in the practice as partners and as individuals.

[3] The pursuer avers that in about December 1989 he was prescribed vigabatrin (the propriety name of which is Sabril). He does not aver who it was who initiated this course of treatment, but it was common ground before me that it had been the specialist hospital doctors who were treating his epilepsy. Vigabatrin was used in combination with other anti-epileptic drugs for the treatment of the pursuer's epilepsy.

[4] In condescendence 4 the pursuer avers that in December 1999 he read about the potential for vigabatrin to cause problems with vision and that:

"On or about the 6 December 1999 the pursuer attended at the defenders' said surgery. He saw Dr Regan. He asked the said Dr Regan about the said article that he had read. The said Dr Regan performed a visual field test and told the pursuer that his vision was fine. Said test was a basic "confrontational test" involving said doctor passing his hands sideways across the pursuer's face and asking him when it disappeared from his vision. The said doctor did not refer the pursuer to an ophthalmologist for review. The pursuer continued to regularly attend the defenders' said surgery with other health complaints. On or about February 2004 the pursuer developed a problem with his eye. He attended upon the defenders. He was referred to an ophthalmologist at Monklands Hospital, Airdrie. He was told that he had suffered a diminution of his peripheral vision. He was referred on to a neurologist at the Southern General Hospital, Glasgow. On or about the 20 June 2005 the pursuer was told that he would need to come off the said Sabril. He was required to do this in stages. On or about August 2005 the pursuer was placed on other medication. No ordinarily competent general practitioner acting with reasonable care would have failed to send the pursuer for review by an ophthalmologist after he attended in 1999. No ordinarily competent general practitioner acting with reasonable care would have failed to inform the pursuer that he was required to have his vision reviewed at regular intervals after his attendance in 1999....Had the pursuer been advised to come off vigabatrin in around 1999 then the pursuer would have suffered from significantly less visual field loss than he presently does...(S)ince 1999 at the latest, patients on vigabatrin were required to have their vision tested every 6-12 months. Further explained and averred that the effects of the said vigabatrin were widely publicised in the medical journals between 1997 and 1999. Guidelines were then issued which recommended that patients on vigabatrin should have their visual fields tested every 6 to 12 months. The Committee on Safety of Medicines issued a visual defect warning relating to vigabatrin in volume 24 of "Current Problems in Pharmacovigilance" in March 1998. Special warnings regarding visual defects associated with the use of vigabatrin were added to the Summary of Product Characteristics in August 1999. A number of articles in the BMJ discussed the problems of visual field constriction associated with vigabatrin. Copies of the BMJ articles are produced in process. The pursuer's vision should have been checked every 6 to 12 months. Said Guidelines issued by the Royal College of Ophthalmologists recommended particular standards for testing and measuring field perimetry which could only be achieved by specialist referral. No such checks were carried out. Further explained and averred that if the defenders were unaware of the effects of the said vigabatrin when the pursuer attended at their said practice then they ought to have familiarised themselves with its uses and potential side effects. No ordinarily competent general practitioner exercising reasonable care would have failed to familiarise themselves with the uses and side effects of a drug being used by a patient in their care. The defenders, by their said failures, caused the pursuer to be prescribed the said vigabatrin even whilst it was affecting his vision. Had they not so failed, as hereinbefore condescended upon, the pursuer's vision would not have been affected as it has".

[5] In response the defenders made the following calls upon the pursuer:

"The pursuer is called upon to aver what difference it would have made, had the steps which he alleges should have been taken by an ordinarily competent general practitioner been taken at the relevant point in time. The pursuer is called upon to aver or at least produce material pertaining to the identity of the party which from 1999 at the latest required patients on vigabatrin to have their vision tested every 6-12 months, as the pursuer avers. The pursuer is called upon to aver or at least produce references to the medical journals in which the side effects of vigabatrin were widely publicised between 1997 and 1999, as the pursuer avers. The pursuer is also called upon to produce the Guidelines which he claims were issued and to confirm when these were issued, by whom and to whom they were issued. The pursuer's failure to answer these calls will be founded upon".

[6] In condescendence 6 the pursuer avers:

"This claim is based upon the defenders' fault and negligence at common law. No ordinarily competent general practitioner acting with reasonable care would have failed to send the pursuer for review by an ophthalmologist after he attended in 1999. No ordinarily competent general practitioner acting with reasonable care would have failed to regularly review the pursuer's vision after his attendance in 1999. No ordinarily competent general practitioner acting with reasonable care would have failed to inform the pursuer that he was required to have his vision reviewed at regular intervals after his attendance in 1999. No ordinarily competent general practitioner exercising reasonable care would have failed to familiarise themselves with the uses and side effects of the said drug being used by a patient in their care. In each of the said duties the defenders failed, and by their failure caused the pursuer's injury. The defenders knew or ought to have known that to fail in said duties would result in the pursuer being exposed to a material risk of sustaining injury of the sort that he in fact suffered. Had they fulfilled their said duties then the pursuer would not have suffered the said injury".

[7] The cause came before me for a Procedure Roll hearing to debate the defenders' first plea-in-law:

"1. The pursuer's averments being incompetent et separatim irrelevant et separatim lacking in specification, the action should be dismissed".

The parties' contentions
[8] On behalf of the defenders Mr McGregor's primary submission was that the pursuer's averments were irrelevant and lacking in specification, and that the action should be dismissed. No competency argument was advanced. Mr McGregor's secondary submission was that certain of the pursuer's averments ought not to be admitted to probation.

[9] Mr McGregor submitted that the pursuer's averments anent Dr Regan having a duty to refer the pursuer to an ophthalmologist were irrelevant and lacking in specification. Put shortly, Mr McGregor contended that the pursuer had failed to set out a proper factual basis for the suggested duty to refer.

[10] Mr McGregor was particularly critical of the averments concerning the Royal College of Opthalmologists' Guidelines relating to vigabatrin. The defenders were left in the dark as to precisely when these were said to have been issued, and to whom they were issued and directed. He recognised that this was only one of the items of medical literature upon which the pursuer relied; but in his submission it was the critical one. Without it, the pursuer's averments - including the other references to the literature - did not take the pursuer very far.

[11] Mr McGregor's secondary submission was that the averments anent the defenders duties to review the pursuer's vision every 6-12 months, and to advise him that it should be so reviewed, were irrelevant. The duties to review and advise of the need for review had not been not pled as an alternative case to the duty to refer. As pled, the suggested duties were cumulative to the duty to refer. The only factual averments which might conceivably be said to support the suggested duties were the averments relating to the Guidelines. These were insufficiently specific for the reasons already given. In addition, there was the further problem that the pursuer did not specify what the consequences of the suggested breaches of duty were: at what point would a review have disclosed damage and in what ways would the pursuer's ultimate condition have been better had such checks been carried out?

[12] For convenience sake, I shall refer to the case that Dr Regan ought to have referred the pursuer to an ophthalmologist as "the referral case", and the case that the defenders ought to have regularly reviewed the pursuer's vision, and informed him that it needed to be regularly reviewed, as "the review case".

[13] The defenders' motion was for dismissal of the action, failing which, for the pursuer's averments anent the review case not to be admitted to probation.

[14] In response to the defenders'primary argument Mr MacMillan submitted that the pursuer's pleadings set out a relevant case for inquiry. It was incorrect to focus on the averments concerning the Royal College Guidelines to the exclusion of the other averments concerning the state of medical knowledge at the material time. The pursuer's case was that the effects of vigabatrin on the visual fields of patients had been widely publicised in medical journals between 1997 and 1999, and that Dr Regan ought to have been aware of those effects. Indeed, publicity in relation to those effects had been brought to his attention by the pursuer. Had Dr Regan taken proper account of the literature he would have been clear that a referral to an ophthalmologist ought to have been made, as only testing by an ophthalmologist would be likely to detect signs of visual field disturbance. Mr MacMillan's understanding was that the Guidelines had been issued in 1999 but he was unable to say whether they would have been published before the pursuer's attendance at the surgery on 6 December 1999.

[15] Mr MacMillan accepted that the main plank of the pursuer's case was Dr Regan's alleged failure to refer the pursuer to an ophthalmologist. He eschewed the suggestion that the review case was an alternative case. The referral case and the review cases were cumulative cases and were not inconsistent. Once the pursuer had raised the matter with Dr Regan both the referral and the review duties arose. Mr MacMillan acknowledged that the pursuer did not aver what damage to his visual field regular review would have revealed, or when damage would have been revealed by a review. In spite of these difficulties, his motion was for a proof before answer to be allowed on the existing pleadings.

[16] The only authority to which I was referred was Hunter v Hanley 1955 SC 200 (per Lord Clyde at pages 203-4, and 204-5).

Discussion and Decision
[17] While the pursuer's pleadings are very far from a model of clarity, in my opinion it would be going too far too fast for the action to be dismissed at this juncture.

[18] In relation to the pursuer's primary case of fault against Dr Regan - the referral case - it would be wrong to conclude at this stage that the pursuer is bound to fail (Jamieson v Jamieson 1952 SC (HL) 47 at page 50; Miller v SSEB 1958 SC (HL) 20 at pages 32 - 33). Since I am allowing the referral case to go to proof before answer it is inappropriate to say much more in relation to it than that the duty alleged to have been breached is a duty which at least might have been incumbent in law upon Dr Regan in the circumstances averred. Only once evidence has been heard (i) as to the state of knowledge at the material time of the effects of vigabatrin; and (ii) as to how an ordinarily competent general practitioner exercising reasonable care would have acted in the circumstances averred, will it be possible to conclude whether the suggested duty of Dr Regan to refer the pursuer to an ophthalmologist was indeed incumbent upon him when he saw the pursuer in December 1999.

[19] On the other hand, I am persuaded that the averments relating to the pursuer's secondary case - the review case - ought not to be admitted to probation. The suggested duty to review appears to be predicated upon the Royal College Guidelines. There is inadequate specification in the pursuer's averments of the date of issue, or the terms, of those Guidelines, or to whom they were directed. I am not satisfied on the pursuer's averments that the duties desiderated in the review case might have been incumbent in law upon the defenders. Nor, in my view, do the pursuer's averments make reasonably apparent the alleged loss which is claimed to be attributable to the suggested breaches of the duty to review and the duty to advise as to the need for review. The defenders are indeed in the dark as to precisely (or even approximately) when a review would have shown damage to the pursuer's visual field, what the damage would have been, and how the pursuer's ultimate position would have been better had the suggested review or reviews been carried out by the defenders.

[20] Since I am allowing the pursuer an inquiry on his primary case, I have considered whether I should simply allow a proof before answer on the whole pleadings. In some cases such a course may be attractive and pragmatic, and not productive of any unfairness. In my opinion this is not such a case. For the reasons given in the preceding paragraph, I am not persuaded that it would be right or fair to follow that course here.

Disposal
[21] At this stage I shall sustain the defenders' first plea in law to the extent that I exclude from probation the following averments of the pursuer:

(i) in condescendence 4:

at page 7C "this is why, since 1999 at the latest, patients on Vigabatrin were required to have their vision tested every 6-12 months."

at page 7E "The pursuer's vision should have been checked every 6-12 months."

(ii) in condescendence 6 at page 14D-E:

"No ordinarily competent general practitioner acting with reasonable care would have failed to regularly review the pursuer's vision after his attendance in 1999. No ordinarily competent general practitioner acting with reasonable care would have failed to inform the pursuer that he was required to have his vision reviewed at regular intervals after his attendance in 1999."

Quoad ultra I shall allow a proof before answer.