Widow loses medical negligence claim after husband died one day after hospital discharge



Lord Tyre
Lord Tyre

The widow of a man who died from cardiac arrest the day after he was discharged from hospital has been unsuccessful in an action for damages arising from medical negligence.

Jennifer McCulloch, as well as other members of her family, sued Forth Valley Health Boards for the medical negligence of a consultant cardiologist, Dr Catherine Labinjoh, employed by them. The defenders denied all liability for the death of Mr McCulloch, who was aged 39 when he died.

The case was heard in the Outer House of the Court of Session by Lord Tyre.

Uncertain diagnosis

Mr McCulloch had first attended Forth Valley Royal Hospital on 23 March 2012, having become seriously unwell with chest pains, nausea, and vomiting. His condition continued to deteriorate at the hospital, with doctors “not 100 per cent sure” why. Dr Labinjoh first saw him on 26 March, by which time his condition had slightly improved, and she noted that his symptoms were not consistent with pericarditis or pericardial constriction.

On 30 March, Mr McCulloch was discharged from hospital with a follow-up appointment scheduled. However, he was re-admitted on 1 April with a similar chest pain complaint. Doctors expressed concern that fluids (effusion) that were present on previous admission were re-accumulating. Following an echocardiogram, Mr McCulloch’s third since his first admission, a pericardial effusion was identified on his right heart by the sonographer.

Dr Labinjoh reviewed this echocardiogram on 3 April. She again noted that there were no convincing features of tamponade or pericardial constriction. On 6 April, following a CT scan that showed the effusion had resolved, Mr McCulloch was discharged from hospital again, a decision which the first pursuer was unsatisfied with.

The following day, Mr McCulloch suffered a cardiac arrest at home. Following a prolonged period of unsuccessful resuscitation, he died in the emergency room at the hospital. The pursuer’s case was based on Dr Labinjoh’s review on 3 April, which ultimately led to Mr McCulloch’s second discharge.

The pursuers submitted that Dr Labinjoh should have been aware of certain aspects of Mr McCulloch’s condition on re-admission and was required to obtain a history of the presenting complaint. They also submitted that she did not respond appropriately to changes in the echocardiogram, failed to provide a management plan to non-cardiologists that were treating Mr McCulloch, and that she should have arranged a final echocardiogram just before discharge to re-assess the size of the effusion.

The defenders submitted that the pursuers had failed to establish any negligence on the part of Dr Labinjoh, or that any negligence had caused Mr McCulloch’s death. The third echocardiogram had not been materially different from the previous ones, and any variations in opinion between Dr Labinjoh and the three expert witnesses led by the pursuers could be attributed to natural variations of interpretation between clinicians.

Tragic outcome

In his opinion, Lord Tyre began by setting out his task in the present case, saying: “It is not my function to attempt to reach a conclusion as to what was the correct diagnosis of Mr McCulloch’s illness at the time of either his first or second admission: that would be to stray into the realm of medical expertise upon which I am not qualified to pronounce. My task is to apply the [relevant legal] test, and to decide whether one or other of the bodies of expert opinion presented to me is not reasonable and cannot logically be supported.”

Weighing the expert evidence generally, he said: “It is a recurrent theme in Mr McCulloch’s medical records, during both his first and second admissions, that he presented as a complex case, whose diagnosis proved to be very challenging. The expert witnesses were in agreement that this was not a straightforward presentation of acute pericarditis.”

Against this background, he found that there were logically supported expert opinions on both sides in respect of other potential avenues of treatment. On the expert opinions on one potential treatment that was not explored, he said: “Neither of these views can be described as unreasonable or as lacking in logical support, and it is not for the court to choose between them.”

On the pursuer’s submission that a repeat echocardiogram should have been taken, he said: “[T]here was nothing in the evidence to indicate a good reason for not instructing a further echocardiogram, other than [one expert witness’] view that it was unnecessary. Making provision for a further echocardiogram before discharge would not have prevented efforts continuing, as they did, to reach a definitive diagnosis, and the patient could in the meantime continue to be treated, as he was, with antibiotics, or otherwise as seemed appropriate to the medical team in charge of his care in the AAU.” Therefore, he found the pursuers’ case of negligence to have been established in this respect.

In light of this conclusion, Lord Tyre examined whether another echocardiogram could have prevented Mr McCulloch’s death. He said: “The cause of Mr McCulloch’s death was stated to be idiopathic pericarditis and pericardial effusion. These conditions resulted in cardiac tamponade on 7 April. With hindsight it may be inferred that by 6 April Mr McCulloch was very ill. One may therefore further infer that a repeat echocardiogram, if carried out on 6 April, would probably have disclosed a material deterioration in Mr McCulloch’s condition, leading to a need for urgent treatment to be put in place. Beyond that, however, any findings by me would be entirely speculative.”

He concluded: “There is simply no basis in the evidence for an assessment of whether, at whatever time it was commenced, and whatever it may have consisted of, such treatment would have been likely to be successful in preventing Mr McCulloch’s death. His case was a complex one, as all of the cardiologists concerned in this case have emphasised, and the outcome was tragic. But I do not feel able to hold, on balance of probabilities on the basis of the evidence before me, that but for the single negligent omission that I have identified, namely the failure to instruct a repeat echocardiogram before discharge, Mr McCulloch’s death would not have occurred.”

For these reasons, the pursuers’ primary case was held to have failed. A secondary argument based on Dr Labinjoh’s failure to prescribe non-steroidal anti-inflammatory drugs was also rejected.

© Scottish Legal News Ltd 2020



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