Elizabeth Rose

Very briefly, the facts of this case involved the sudden death of the pursuer’s 77-year old partner, Ms Graham, in January 2013. Ms Graham died of an ischaemic bowel after being discharged from the Acute Assessment Unit at Glasgow Royal Infirmary, with what was thought, at the time, to be a simple case of viral gastroenteritis. The pursuer argued at Proof that the treating junior doctor, Dr Izzath, was negligent in failing to advise Ms Graham that she required to be admitted to hospital and that this failure resulted in her death. The defenders, on the other hand, argued that, although, with the benefit of hindsight, Ms Graham should have been admitted, Dr Izzath’s failure to admit Ms Graham was not negligent and that, even if she had been admitted, she would have, nonetheless, still have died.

In respect to breach of duty, the defenders argued that Dr Izzath discharged his duty of care by seeking advice on the deceased’s discharge from his superior, the on-duty consultant in the AAU. Lord Pentland, however confirmed that Dr Izzath “owed the deceased a stand-alone duty of reasonable care” and referred to Nettleship v Weston [1971] 2QB 691, CA, where the court held that a learner driver must show the same standard of care as any other driver.

This principle, in Lord Pentland’s view, equally applies in the case of a junior doctor. Inexperience is not an effective defence to an action for professional negligence and Lord Pentland cited Wilsher v Essex Area Health Authority [1987] QB 730 which considered, specifically, the position of junior doctors. In that case, the notion of a duty tailored to the actor was rejected rather than to the act he or she had to perform, regardless of whether that actor was a medical professional or not.

Lord Pentland also referred to a more recent case, the Court of Appeal decision in FB v Rana [2017] PIQR P17, which rejected the trial judge’s opinion that, in taking a case history, a junior doctor owed a lesser duty than would be owed by a more experienced colleague. Lord Pentland ruled that he was satisfied that Dr Izzath should have advised Ms Graham that she should have been admitted to hospital and the fact that Dr Izzath discussed her care with the consultant did not exonerate him for his failure to exercise reasonable care.

The important consideration, therefore, is what the standard of care is for the particular task or role being fulfilled by the criticised practitioner at the material time, regardless of his/her experience and/or length of service. This is particularly important in cases which involve a hierarchy of command, which often exists in a clinical setting.

This judgment, also, contained a progressive outlook on causation. The defenders had submitted that there was no evidence to show when, exactly, the deterioration in the deceased’s condition occurred. Accordingly, they argued that the pursuer would be unable to prove causation as there was no starting point from which to deduce what would have likely have happened had Ms Graham been admitted to hospital. If the pursuer was unable to demonstrate exactly when Ms Graham required lifesaving intervention and on what timescale, the defenders argued that the pursuer had failed to prove his case on causation. Lord Pentland rejected this as “unrealistically narrow and theoretical. Pressed to its limit it would mean that the pursuer had to meet an impossibly high standard of proof by identifying the precise moment when the occlusion occurred. I do not accept that the law on causation imposes such an onerous burden on a pursuer”.

Lord Pentland concluded that there was sufficient evidence led at proof that Ms Graham’s deterioration (the occlusion/acute mesenteric ischaemia) would have been identified and successfully treated by expert medical staff if she had been admitted to hospital. His Lordship referred to McGhee v National Coal Board 1973 SC (HL) 37, 53 and confirmed that “the legal concept of causation is not based on logic or philosophy but rather on the practical way in which the ordinary man’s mind works in the everyday affairs of life”. Common sense, in other words, would prevail when considering timelines for what would have likely occurred had the negligence not occurred.

Lord Pentland’s judgment, in summary, has certainly generated some positivity for those acting for pursuers in what is often a challenging and unforgiving area of litigation.

Elizabeth Rose is an associate at Drummond Miller LLP