Scottish Sheriff Court Decisions

JUDGEMENT BY SHERIFF A GRANT McCULLOCH

 

 

 

LAURA SIMMS -v- NHS TAYSIDE A979/06

 

 

Dundee, 25 October 2007

 

The Sheriff having resumed consideration of the cause, on Pursuer's motion allows the Record to be opened up and amended as follows, in condescendence 2 by deleting 2^nd and substituting 3^rd in the first line thereof, by adding "on 5 July 2003" between "midday" and "the" in the 7^th sentence thereof; in condescendence 3 by deleting "3^rd" and substituting "5^th" in the 6^th sentence thereof, and by deleting "6^th" and substituting "5^th" in the 7^th sentence thereof; Thereafter Sustains the Defenders first plea in law; Dismisses the action, and decerns; Finds the pursuer liable to the defenders in expenses as same may be taxed, and remits the account thereof, once lodged, to the Auditor of Court, to tax and to report; Certifies the cause as suitable for the employment of Junior Counsel.

 

 

 

 

NOTE :

[1].            On 2 July 2003 the pursuer was admitted to Ninewells Hospital in Dundee, and in the early hours of the following morning she gave birth to a baby boy. Following various reviews she was transferred to Arbroath Infirmary, and eventually discharged home on 6 July. Thereafter the pursuer complained of severe pain and was readmitted to hospital. After examination she had a procedure to remove a 10 cm clot in the vagina, and 10 cm cotyledon adherent to the fundus of the uterus. She was prescribed antibiotics and discharged the following day.

 

[2].            The pursuer has raised an action for loss injury and damage caused by the fault and negligence of persons for whose acts and omissions defenders are responsible. After sundry procedure, including amendment, the case called for debate on the defenders' first plea in law. The defenders sought dismissal of the action, with expenses.

 

 

[3].            Counsel for the defenders referred to his revised rule 22 note, number 14 of process from which he confirmed that he had one main point, and a number of subsidiary points. However the main thrust of his argument was that the pursuer was not offering to prove, by her averments, all the necessary tests as laid down in the classic case of Hunter v. Hanley.

 

[4].            In the case of Gerrard v Royal Infirmary of Edinburgh NHS Trust, 2005 SC 192 it was held that.... "The test of medical negligence was as set out in Hunter v Hanley, and the Lord Ordinary erred in holding that the pursuers failed because they had not established that a normal and usual practice existed in the circumstances; that was simply the first of three facts which had to be established where a deviation from normal practice was alleged, and the crucial fact was the third, that the course the doctor adopted was one no professional man of ordinary skill would have taken if acting with ordinary care - the same test as in circumstances where no such deviation was alleged." In the present case the pleadings disclosed no appropriate averment that the midwifes' course of action was one no midwife of ordinary skill would have taken if acting with ordinary care. It was argued, and indeed accepted by the pursuer, that for the purposes of the test one could read "midwife" for "Doctor". In the Gerrard case, it was indicated that the test set down in Hunter v Hanley was still the appropriate test, quoting Lord Scarman in Maynard v West Midlands Regional Health Authority, [1985] 1 AER 635, at p638, in discussing the criterion for medical negligence, thus "I do not think the words of Lord President Clyde in Hunter v Hanley can be bettered."

 

 

 

[5].            The defenders also sought support from the case of Duncan v. Beattie 2003 SLT 1243. In this case the pursuer sought damages against, inter alia, a partnership of General practitioners for alleged negligence related to diagnosis and treatment. The case against defenders as a partnership was held to be irrelevant, but in any event the pursuer's averments failed to conform to the standard set in Hunter v Hanley. Temporary judge Mr Coutts QC, at p1245F said " The matter however does not end there in that the averments of fault, inappropriately directed as above noted, do not in any event conform to the standard set in Hunter v. Hanley. There are no averments that no doctor, or medical man in the practice, was guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care..... and accordingly for that reason also the case against the first defenders requires to be dismissed." The present case alleges departure from normal practice in management or treatment. The relevant passage is found in condescendence 2: "Where placental tissue has been retained or there is the continued presence of blood clots normal clinical practice requires that midwifery staff advise a qualified doctor of the retained placenta and/or the blood clots. Normal clinical practice would thereafter (be) for the doctor to carry out a full vaginal examination to ascertain that no further active vaginal bleeding was occurring. No such referral by midwifery staff or examination by a doctor occurred." It was argued that this does not deal with the third leg of the Hunter v Hanley test, and that this was fatal to the pursuer's case.

 

[6].            The defenders first subsidiary point was that it was not clear from the pleadings whether the case was purely against midwifes, or a larger group of "medical staff". In condescendence 3 there was reference to "medical staff....... in particular midwifery staff"; in condescendence 4 and in the first plea for the pursuer there was reference to "medical staff". The defenders were entitled, on the principle of fair notice, to know whether the case was restricted to alleged failings of midwives, or whether the case went further.

 

[7].            The second subsidiary point related to the passage in condescendence 2 which alleged inadequate evaluation of the placenta. Was this a case being made against the defenders? If it was then the narrative terms were too vague in the context of clinical judgment. There are no averments as to what "adequate evaluation" would amount to. It was inappropriate to use the formula" believed and averred". If the averments of fault in condescendence 3 were examined, it is clear that such duties as were claimed to be incumbent upon the defenders followed on after examination of blood clots. There were no averments about the evaluation of the placenta in condescendence 3. Thus reference to evaluation of the placenta was irrelevant.

 

[8].            Thirdly, they were inconsistent pleadings on the timings of the blood clots. In condescendence 2 the pursuer avers midday on 3rd July, but in condescendence 3 its 3rd and 6th. The defenders position is that the appropriate date was 5 July, but this was an important point as the pursuer's case was predicated on the basis that certain duties kick in after the blood clot appears. Thus it was important to know exactly when that was.

 

[9].            The next subsidiary point was directed at the averments of fault in condescendence 3. There it is alleged that "In the circumstances it was the duty of said midwifery staff to properly and regularly observe the pursuer after the discovery of the said blood clot on 6 July 2003". There are no averments of what "properly and regularly" means. There should be proper specification, with a clear indication of how long the midwives ought to have observed, how frequently, and from when. Accordingly, this was irrelevant, and should not be allowed to probation.

 

[10].        The next point was again directed to the averments of fault in condescendence 3, in the sentence " It was the duty of the midwifery staff to inform a doctor of those facts and not to allow the pursuer to be discharged home until satisfied there was no likelihood of postpartum haemorrhage and that no products of conception had been retained". There were no averments of what it was the staff had to do to ensure this position. The pursuers did plead the case that midwifery staff should have called a doctor, but this averment goes further. Further, and in any event, there was no averment that this was not done when it should have been done in the exercise of reason care. Accordingly, this was irrelevant, and should not be allowed to probation.

 

[11].        The final point was a new one, not contained in the Rule 22 note. It related to the averments of loss and particularly the sentence "She suffers from psychological problems". Fair notice demands further specification, as it is not clear what the problems are, for how long the pursuer has suffered them, or might continue to suffer them.

 

[12].        The defenders Counsel was of course aware that latitude is given to pursuers in personal injury cases, but the pursuer's pleadings were so fundamentally flawed that there was no prospect of success. The case should be dismissed.

 

[13].        For the pursuer, Counsel urged me to repel the defenders first plea and to allow proof, or alternatively a proof before for answer if there were still matters of law outstanding. Counsel also confirmed by way of clarification, the date from which the pursuer claimed there had been fault was 5 July. He sought leave to amend as necessary, to which there was no opposition.

 

[14].        I was reminded that this was a personal injury case first and foremost and that therefore it was only open to me to dismiss the action if I was totally satisfied that there was no prospect of negligence being proved. As was said by Lord Normand in Jamieson v Jamieson 1952 SC(HL) 44, at p50 " The true proposition is that an action will not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer's averments are proved. The onus is on the defender who moves to have the action dismissed and there is no onus on the pursuer to show that if he proves his averments he is bound to succeed". In the present case it was submitted that the averments were sufficient. Condescendence 2 sets out the factual basis of the clinical practice which should have been followed. It was not followed. The court would be entitled, having heard the evidence, to consider the facts and then to decide whether or not the test as laid down in Hunter v Hanley had or had not been met. I was reminded that both that case, and Gerrard were cases in which evidence had been led. It was for the court, after hearing all the evidence, to assess it, and to determine whether or not the departure of practice was one no midwife of ordinary skill would have done if exercising reasonable care.

 

[15].        The pursuer must plead, and give notice, of what should have been done, and what was not done. That is sufficient for a proof before answer, as all the facts need to be heard by the court to ascertain whether or not the actings fell below the required standard. The issue of whether or not the standard has been attained must be considered after the proof. It is sufficient at this stage merely to identify what the failure was, and what course of action should have been taken. Accordingly the defenders first plea should be repelled. Reference was made to Miller v SSEB 1958 SC(HL) 20, where Viscount Simonds at p32 confirmed that "it is undesirable, except in a very clear case, to dismiss an action on the ground that the pursuer's averments are irrelevant and insufficient in law". This was not such a very clear case that dismissal must follow.

 

[16].        So far as the various subsidiary points were concerned, the pursuer's Counsel dealt with them as follows. In the first place he confirmed that the case was just restricted to midwifery staff, of that there could be no confusion. In the second place the word "adequate" should be given its normal usage. This passage was of background information, and it was conceded that it might be thought to be irrelevant, but there was no prejudice to the defenders, given the way the case had been otherwise pled. The third point was met by amendment to 5 July, without objection. The criticism of the fourth point was accepted but Counsel pointed out that it could be assumed that there had to be an observation by midwives of the pursuer because the fault complained of was the failure to get the doctor when the blood clot was noted. The fifth subsidiary criticism was also accepted. The court could delete the criticised part of the sentence and the case could still thereafter go to proof. The final criticism, in condescendence, was met with the suggestion that it was appropriate to give notice of a psychological injury so that there was no question of the defenders being surprised at proof. The defenders could make their own investigations, having been put on notice. While accepting that it was somewhat lacking in specification, it could be expanded at a later stage if proof was allowed.

 

[17].        In summary even if the defenders were successful in all their subsidiary points, that would not amount to dismissal. It was accepted by the pursuer that the critical issue was whether or not it was appropriate to aver the Hunter v Hanley test. Here there was a clear averment of proper clinical practice and the failure to meet it at all. Accordingly the third test could be decided after hearing evidence at a proof, or proof before answer. At the present time, it was sufficient for it to be inferred. The court could not be satisfied, on the pleadings, that the case would fail. Therefore dismissal was not appropriate. The court should allow proof before answer, subject to the minor amendments and concessions made.

 

Discussion

[18].        The test laid down by the Lord President (Clyde) in Hunter V. Hanley has stood the test of time. At page 206 he states " To establish liability by a doctor where deviation from normal practice is alleged three facts required to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted as one which no professional man of ordinarily skill would have taken if he had been acting with ordinarily care." In the present case, the pursuer avers a usual and normal practice in condescendence 2, at the three sentences commencing "Where placental tissue....". The pursuer goes on to offer to prove that the defenders did not follow usual and normal practice. However the pursuer does not aver anywhere in the pleadings that what was actually done was something which no midwife of ordinary skill would have done if she had been acting with ordinary care. The question for me is whether or not this failure is fatal to the pursuer's case. The various subsidiary points do not, in my view, amount to dismissal of the action, even if I were to accept them all. I shall deal with them below.

 

[19].        In my view the failure to aver that the failure was one which no midwife of ordinary skill would have done if exercising ordinary care is fatal to the pursuer's case. I was urged to accept that such could be inferred from the pleadings, and that whether or not the test was met would be able to be determined after hearing the evidence. I do not agree with that approach. Leaving to one side how the pursuer would be able to lead any evidence anent the third part of the test without any pleadings to support such evidence, it is clearly a matter of proper pleading and fair notice for the pursuer to make such averments. Without them, I cannot see how the pursuer's case can do anything but fail, even if the pursuer proves all that she offers to prove in the current state of the pleadings. The Hunter v Hanley test is well known and well understood, yet it remains incumbent on pleaders to indicate what it is that they offer to prove. In failing to address all three parts of the test, the pursuer's case is irrelevant, and falls to be dismissed.

 

[20].        For completeness, I find that there is merit in most of the defenders subsidiary points. In particular, there is confusion in the pleadings as to whether the pursuer restricts her case just to midwifery staff. This requires attention, but is not of itself justification for dismissal. The pursuer accepted at debate that the case is only against the midwifes. The second point is also with merit. The reference to "and any adequate evaluation of the placenta following delivery on 3 July 2003 should have noted that (an) insufficient area of placenta had been passed" is a criticism of the defenders, but it is not subsequently supported by any averment of fault, nor of what should have been done, nor what was "adequate". As such, those words are irrelevant, and cannot, but for dismissal, be admitted to probation. The third point, of inconsistent pleading of the relevant date, was met by amendment, which I allowed. Fourthly, the ground of fault alleged in Condescendence 3, "to properly and regularly observe..." is not preceded by averments in Article 2, which would be necessary for proper specification of this alleged fault. It cannot be allowed to probation. Similarly, the allegation of fault by "not to allow the pursuer to be discharged home.....been retained" has no grounding in averments of fact, and is irrelevant. But for dismissal, I would not allow it to probation. The final point was relating to the psychological problems. I accept that this is lacking in specification, but I would allow that to remain, if a proof before answer were to be allowed. It would be necessary for the pursuer to expand upon the averment in due course, but as is often the case in personal injury cases, the loss and damage are ongoing, requiring the pleadings to be updated as events and symptoms unfold. I therefore reject that point

 

[21].        In respect of expenses, it was agreed that they would follow success. As the defenders have had their preliminary plea sustained, and the case is dismissed, they must be entitled to their expenses. As a relatively complex and unusual case, I certify the cause as suitable for Counsel.

 

 

 

 

 

 

 

 

 

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