Consultant cardiac surgeon fails in legal challenge against FAI determination

A judge in the Court of Session refused the petition for judicial review after ruling that the sheriff’s determination was “legitimate and appropriate”.

Lord Armstrong heard that the petitioner Fraser Sutherland FRCS was on duty at the Golden Jubilee National Hospital in Clydebank in the morning of 26 March 2010, when Robert Young Baird was admitted to Monklands General Hospital in Airdrie complaining of severe chest pain.

A CT scan indicated, inter alia, findings consistent with haematoma and following discussion, it was believed that Mr Baird was suffering from an aortic dissection.

A request was made that he be transferred for cardiac surgery to the Golden Jubilee, which was the local centre for cardio-thoracic surgery in the west of Scotland.

The petitioner considered that there was uncertainty over the diagnosis and when Mr Baird arrived at the Golden Jubilee, the petitioner arranged for further investigation in the form of a transoesophageal echocardiogram (TOE) be carried out by a consultant cardiologist and a specialist registrar in cardiology.

Before carrying out the TOE, they reviewed the CT scan taken at Monklands General and their notes stated that there was “no convincing dissection seen”.

No aortic dissection was seen during the TOE and the consultant cardiologist arrived at the diagnosis of pericarditis, upon which the petitioner decided that Mr Baird did not require surgery and steps were taken to return him to Monklands General.

Mr Baird was returned to Monklands General Hospital at 2am on Saturday 27 March, but at 12 noon, he suffered a cardiac arrest and died.

A post mortem examination discovered no evidence of primary pericarditis, and that the cause of death was hemopericardium due to thoracic aortic dissection.

In due course an FAI was held before the sheriff at Airdrie and in his determination dated 9 December 2015 he made inter alia a finding under section 6(1)(c) of the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976 in the following terms: “a reasonable precaution whereby the death and the accident resulting in the death might have been avoided was for Mr Fraser Sutherland, consultant cardiac surgeon at the Golden Jubilee National Hospital in Clydebank to have sought experienced consultant radiology opinion on the CT scan performed at Monklands General Hospital.”

However, the petitioner sought reduction of that determination on the grounds that it arose from a “misdirection in law” and that the sheriff failed to take into account matters that were in evidence before him which he ought to have taken into account.

In the context of the challenge made, it was accepted that Mr Baird had been suffering from aortic dissection and that the wrong diagnosis had been made, thus there was no challenge to the sheriff’s finding as to the cause of the death.

It was recognised that an FAI is not a fault finding exercise and that section 6 of the 1976 Act conferred no power to make a determination of fault or to apportion blame between any persons who may have contributed to the death, but the petitioner said it was relevant to note that he was expressly named in the determination.

The sheriff had misdirected himself in his consideration of hindsight, reasonable foreseeability, and what is meant by a “reasonable precaution” for the purposes of section 6, in the context of a case involving clinical judgment.

With reference to Hunter v Hanley 1955 SC 200, it was argued that what amounted to a “reasonable” precaution ought to involve some consideration of best practice in the particular circumstances concerned.

Although it could now be said that if further radiological opinion had been obtained, the death might have been avoided, that was with the benefit of hindsight. On the other hand, to have operated without sufficient reason to do so would have been contrary to good medical practice.

In such a situation, the issue of the reasonableness of what had taken place required to be taken into account. By failing to consider that, as he ought to have done, by following the approach consistent with that set out in the cases of Marion Bellfield and Lynsy Myles, the sheriff had fallen into error in making his determination.

However, the judge held that the sheriff did not err in law in approaching his determination under section 6(1)(c) in the manner that he did, whether in relation to his consideration of hindsight, reasonable foreseeability, the meaning of “reasonable precaution”, or otherwise.

In a written opinion, Lord Armstrong said: “Notwithstanding the subtlety of the argument presented for the petitioner, I am not persuaded that the rationale behind the decision in Hunter v Hanley, or any part of it, has any application in a determination made under section 6(1)(c). An analysis of what would have been a reasonable course of action for the medical practitioner concerned, in the light of information known at the time, is not a relevant consideration in determining whether a reasonable precaution might have resulted in the death being avoided. Whether the death might have been avoided is a matter to be determined on a consideration, with the benefit of hindsight, of the whole facts which emerge from the enquiry, including the according of due weight to relevant expert medical opinion.”

As to the extent of the evidence bearing on the determination, the petitioner submitted that the available evidence was not sufficient to justify the finding in relation to the precaution identified.

The petitioner argued that the term “experienced” in the context of radiological opinion did not provide adequate definition of what was meant and that there had been nothing specific in the evidence to indicate that a radiologist of the requisite experience, as assessed by the sheriff, would have been available.

But the judge found that in the light of the evidence before the sheriff, there was a sufficiency of evidence to support the determination made under section 6(1)(c).

Lord Armstrong said: “I conclude that the level of expertise to which reference is made in the determination under section 6(1)(c) is clear, that there was a proper basis in the evidence to support the conclusion that to seek a further opinion from such a source would have been reasonable, that such expertise would have been available, and that the determination under challenge was therefore practicable. In these circumstances, I find that, in approaching the evidence as he did, the sheriff did not err, and that, contrary to the submission for the petitioner, he did not fail to take into account matters which he ought to have taken into account. Rather, I find that the sheriff’s determination under section 6(1)(c) of the 1976 Act was supported by the evidence arising from the inquiry, and was legitimate and appropriate.”