Widow fails in damages claim in medical negligence case against health board following husband’s death in A&E

Lord Arthurson
Lord Arthurson

The family of a man who died in hospital after being admitted to the accident and emergency department have failed in their claim for damages despite the health board accepting that its staff were “negligent”.

A judge in the Court of Session ruled that notwithstanding the fact that hospital staff failed to provide the appropriate treatment to the patient, their negligence did not cause the death and that even if they had acted earlier it would have made “no difference” to the “tragic outcome”.

Lord Arthurson heard that on 12 August 2011, David Bruce, 62, was taken by ambulance to Ninewells Hospital in Dundee.

But following his admission to the accident and emergency department, which is timed in the records at 2125 hours, Mr Bruce ultimately died and was pronounced dead in the early hours of the next morning, 13 August 2011, at 0241 hours.

The post-mortem examination report, which was prepared by Dr Sadler following an examination of Mr Bruce’s body on 22 August 2011, recorded the only medical cause of death as atherosclerotic coronary artery disease.

Negligence admitted

Heather Bruce, his wife of 40 years, raised an action for damages against Tayside Health Board and the defenders admitted negligence, meaning the only issue on which the parties went to proof was that of causation.

A minute of admission stated: “the defenders admit that on the night of 12/13 August 2011 at the emergency department of Ninewells Hospital, Dundee the defenders’ staff failed to commence the late Alexander Bruce with IV fluids and hyperkalaemia treatment timeously and the deceased should have been commenced on (a) IV fluids (0.9% saline) by 2225 hours and received 2 litres within 2 hours, ie by 0025 hours; and (b) treatment for hyperkalaemia by 2325 hours by way of calcium gluconate (10 mls of 10% solution) and dextrose/insulin infusion (50mls at 200mls per hour, ie over 15 minutes).”

Each side led evidence from a single expert respectively – Professor Patrick Nee for the pursuers and Dr Monika Beatty for the defenders – to address the single issue raised in the case, which was: what would have been the likely outcome for Mr Bruce in terms of his survival had the admitted duties, referred to in the minute of admission, been complied with by the defenders’ medical staff.


The court was told that Mr Bruce had “significant co-morbidities”, including Type 2 diabetes, retinopathy in both eyes and a body mass index of 31.85.

He had previously been admitted to hospital for angioplasty to his proximal left anterior descending coronary artery and hypertension was also recorded in his medical history.

At 0020 hours Dr Thakore spoke to Mr Bruce’s family and he apologised for the delay in recognising Mr Bruce’s illness, advising that “treatment should have commenced on his arrival at Ninewells”.

Dr Thakore recorded the following note at the time: “Mr Bruce’s condition was so poor that I do not believe earlier recog(nition) would necessarily have affected outcome”.

At 0155 hours Mr Bruce suffered a cardiac arrest. He was transferred to the intensive care unit at 0210 hours and pronounced dead at 0241 hours.

Window of opportunity

According to Professor Nee’s analysis of the progress of Mr Bruce’s condition as at the point of his arrival at hospital, he had “acidosis and kidney injury” and had been compensating; nevertheless his consciousness level was intact and he had not yet reached a stage that appropriate treatment would have been unlikely to succeed.

Professor Nee’s position was that correct treatment involved an infusion of 3 or 4 litres of warm fluids and that 2 litres would have lead to a “widening of the window of opportunity to lead Mr Bruce to the intensive care unit, meaning that he survives beyond that unit and onto discharge”.

It was argued that due to the failure by the defenders to appreciate Mr Bruce’s condition on arrival, there were no test results before 2321 hours.

There was a “significant deterioration” in his condition between 2225 and 2335 hours and it was not a logical approach to assume that the change in his condition between 2335 and 0027 hours was an appropriate comparator with a likely outcome had he had treatment between 2225 hours and 2335 hours.

Mr Bruce’s condition was deteriorating rapidly over the course of the few hours that he was in hospital, and it was accepted by counsel for the pursuer that by midnight he was “essentially beyond help”.

Tragic outcome

Counsel for the pursuers invited the court to prefer Professor Nee and to accept his opinion of Mr Bruce’s prognosis, but counsel for the defenders invited the court to prefer the evidence of Dr Beatty and to conclude that even with the agreed non-negligent treatment set out in the Minute of Admission, Mr Bruce, on a balance of probabilities, would not have survived.

The judge decided to prefer the opinion of the defenders’ expert, Dr Beatty on the single critical issue.

In a written opinion, Lord Arthurson said: “My reasons for so doing can be summarised as follows. It was clear to me from the content and tenor of Professor Nee’s responses to the agreed level of infusion, as set out in the Minute of Admission, that he appeared to have had in his own mind throughout his instruction a much quicker and more aggressive treatment regime than that agreed in this case… He himself appeared to lack confidence in his own opinion, and on that basis, so did I.”

By contrast, the judge observed, Dr Beatty grew in confidence on her opinion on survival as her evidence progressed and ably defended her use of medical literature.

Lord Arthurson continued: “She supported her opinion by reference to the cumulative factors referred to by 19 her in the records, together with observations by staff on matters such as mottling of the skin, as mentioned above, and the agreed factual background of Mr Bruce’s significant co-morbidities.”

“On all of these matters I have chosen to prefer the measured and evidence-based approach of Dr Beatty as one soundly rooted in current Scottish practice and more in keeping with the whole picture which emerged at the proof regarding Mr Bruce’s true position on his admission to Ninewells on 12 August 2011.”

Lord Arthurson concluded: “For these reasons I find that, notwithstanding the agreement of parties that there was indeed negligence on the part of the defenders’ staff at Ninewells Hospital on 12 August 2011, the non-negligent infusion as set out and agreed between the parties in the Minute of Admission would have made no difference to the tragic outcome for Mr Bruce and of course 21 for his family. I am satisfied on the evidence led that this negligence accordingly did not cause the death of Mr Bruce, which was, instead, from the point in time of his admission to hospital an inevitable end-point of his medical journey there.”

© Scottish Legal News Ltd 2020

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