Man who lost his eye after being diagnosed with skin cancer in face allowed proof in negligence action

About this case:

• Citation:
  [2022] CSOH 83
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Clark

James McGraw, who was diagnosed with a form of skin cancer in 2013, alleged negligence on the part of a pathologist, a surgeon, and a radiologist all employed by the defender. The defender challenged the relevancy and specification of the claim against the radiologist.

The case was heard by Lord Clark in the Outer House of the Court of Session. Mackay KC appeared for the pursuer and Doherty KC for the defenders.

Need for surgery 

In November 2012, the pursuer went to see his GP about a lesion on his right cheek. He was referred for further examination, with a 2013 biopsy concluding that the lesion was a form of skin cancer known as basic cell carcinoma. The pursuer underwent surgery in 2014 to excise the BCC, after which he was advised that the BCC had been removed. 

Following the development of further symptoms, a view was reached that the cancer had spread further into his left temple. The pursuer underwent further surgery in November and December of 2015. Part of the latter surgery involved the removal of his left eye, following an MRI scan reported upon by a radiologist after the November surgery. 

It was alleged by the pursuer that the pathologist who prepared the post-surgery report in 2014 failed to recognise the existence of a basosquamous tumour on his left temple which, if recognised, would have avoided the need for more extensive surgery later. It was further alleged that, to the extent that the consultant surgeon who carried out the December 2015 operation relied upon particular CT and MRI scan reports by the radiologist, these were wrong, and the radiologist had been negligent in preparing them. 

Counsel for the defenders submitted that, other than the general allegation, no indication had been given of the manner in which the radiologist was negligent. The pursuer had not averred that there was a normal and usual practice in December 2015 that the radiologist had not adopted, or that the course he adopted was one which no consultant radiologist of ordinary skill and care would have taken. Further, no causal link had been averred between the allegedly negligent reporting and the loss of the pursuer’s eye. 

Resulting inference 

Lord Clark, in his decision, observed: “The central issue is whether the pursuer’s averments on breach of duty require to follow the precise wording articulated as the legal test in that case and, if not, whether the wording as expressed by the pursuer equiparates sufficiently with that test. It is no doubt undesirable, and indeed risky, to deviate from the wording in that key authority. Indeed, when dealing with the alleged negligence by the surgeon Mr Wales the pursuer avers that ‘No ordinarily competent Surgeon exercising ordinary reasonable care would have failed…to do so’, and hence closely follows the wording.” 

He continued: “However, there is no absolute requirement for the pleadings to mirror that wording exactly and the fundamental point is whether the pursuer’s version in relation to the radiologist properly corresponds with the test. The court was not taken to any authorities which might show examples of usages of language similar to the pursuer’s use. But, on a brief perusal of the case law, it can be seen that alternative versions of wording have been used to express the test, referring to the standard of the ordinarily competent skilled person.” 

Turning to the averments on causation, Lord Clark said: “It is sufficient for the pursuer to identify the inaccuracies and the resulting inference, to be obviously drawn, is that these should not have been present in the reports. Precisely how the reports should have been expressed does not need to be averred, when the things that should not have been said (the spread of cancer) are clearly identified and the implication is that the reports should have said there was no such spread.” 

He added: “It can readily be inferred from the pleadings that if the points complained about had not been stated in the reports, there would have been no causal link between the loss and the radiology reports. It is a case predicated ‘to the extent Mr Wales relied upon’ the allegedly incorrect radiology reports. That is the averred causal link. It is plainly implicit in this branch of the case that the presence of the inaccuracies caused the loss and that if the inaccuracies were not present the loss would not have occurred.” 

Lord Clark concluded: “The parts of the pursuer’s pleadings that are the subject of challenge are not expressed in the standard or normal fashion. However, I am not able to conclude that this is a very clear case showing a lack of relevancy or specification. The position adopted in the pleadings does not bring it within the rare and exceptional criteria noted in the authorities. From the averred facts and circumstances, relevant and specific allegations of fault and a causal link can reasonably be seen or, at least, inferred.” 

The defenders’ motion to exclude the pursuer’s averments from probation was therefore repelled, and the case proceeded to a proof before answer.