Outer House judge dismisses highly delayed negligence action by woman who suffered pains after spinal anaesthetic 

About this case:

• Citation:
  [2022] CSOH 39
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Clark

Arlene Chisholm claimed that a spinal anaesthesia had been performed negligently prior to the operation, leaving her with ongoing leg and back pain. The defender contended that, as no export report dealing with causation had been lodged on behalf of the pursuer, the case should be dismissed. 

The case was heard by Lord Clark in the Outer House of the Court of Session. Khurana QC and Dundas, advocate, appeared for the defender, with the pursuer appearing as a party litigant. 

Repeated delay 

It was the pursuer’s case that the specialist who administered her spinal anaesthesia, Dr Moore, had negligently positioned the needle, having attempted to position it on around seven occasions. She also averred that Dr Moore had failed to seek assistance from a consultant at an appropriate stage and failed to obtain informed consent from her by not informing her of the risk of nerve damage at the time the anaesthetic was administered. 

The defender denied the pursuer’s allegations, averring that informed consent had been obtained in advance of the procedure and that Dr Moore had had attempted to insert the needle on an appropriate number of occasions prior to seeking assistance from a senior colleague. It was also averred by the defender that, in any event, the administration of spinal anaesthesia had not in any way caused or otherwise contributed to the continuing pain in respect of which the pursuer now sued. 

Initial summons was served on the defender in February 2017, but the case was sisted on several occasions pending the outcome of the pursuer’s legal aid application. During the course of the sists, it was determined by a neurosurgeon that causation was complex, and the opinion of a chronic pain specialist was required. An expert witness, Dr Seckin, was eventually instructed in April 2021, however no report on causation had been lodged by November 2021. 

Counsel for the defender submitted that despite repeated delay at the instance of the pursuer she had still failed to produce any expert evidence supporting her averments on causation. The pleadings as they stood were wholly generic and unfocused, and thus the pursuer was in breach of her duty to provide fair notice of her case. 

Gross disadvantage

In his decision, Lord Clark observed: “The pursuer has told the court that Dr Seckin ‘supports causation’. However, no correspondence from Dr Seckin and no other form of evidence from him to that effect has ever been shown to the court. More fundamentally, the pursuer’s failure to obtain, let alone lodge, an expert report on causation has persisted despite much more than an ample time period having been allowed for that to be done.” 

Addressing the balance of the case, he said: “The rules of court provide a framework within which to balance the interest of both sides, that balance being inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than the represented opponent. Such an advantage enjoyed by a party litigant imposes a corresponding disadvantage on the other side.” 

He continued: “The stage has now been reached where gross disadvantage has been suffered by the defender in being exposed to this unfounded claim for a lengthy period of time. In a clinical negligence case of this kind, expert evidence must be provided to support causation. The absence of such a report results in this case requiring to be dismissed.” 

Lord Clark concluded: “It is not surprising that, without such expert support, the pleadings for the pursuer on causation are merely assertive and inspecific. The defender’s position, that fair notice of the pursuer’s case remains essential even where the pursuer is a party litigant, is undoubtedly correct. For the reasons given in the defender’s Note of Argument, there are no averments which give fair notice of why the alleged negligence is said to have caused the leg and back pain. The pursuer’s pleaded case is therefore irrelevant.” 

The action was therefore dismissed.