Party litigants’ damages claim in medical negligence action dismissed as ‘irrelevant’ 

Barrie Spark raised a “negligence” action against Western Isles NHS, Benbecula Medical Practice, Uist and Barra Hospitals and three GPs after he had to have a toe amputated, while his wife Eileen Spark also sought damages as a “secondary victim” for the “anxiety and distress” caused as a result.

However, a sheriff in the All-Scotland Personal Injury Court dismissed the action as “irrelevant”.

‘Duty of care’

Sheriff Robert Weir QC heard that the married couple were seeking “substantial damages” over the failure by the defenders to recognise the development of wet gangrene in the first pursuer’s right foot, resulting in him having to undergo emergency surgery to amputate his second toe, which caused “additional pain and suffering”, leading to “mental breakdown” and “patrimonial loss”.

The court was told that Mr Spark had been a patient of the Benbecula Medical Practice since 2004, and had received treatment for previous diabetic foot ulcers and been noted as “high risk” as a result, both in the Uist and Barra Hospital (third defender) and at the Benbecula Medical Practice (second defender). 

The pursuer claimed he attended Benbecula Medical Practice in October 2014 and several times subsequently, seeing Dr Tierney (Sixth Defender) in October and Dr Johnson (Fifth Defender) in November, with concerns about a black spot on his second toe, leg cramps and varicose veins, all to his right leg and foot, but was told by both that these symptoms were “unconnected” and there was “nothing to worry about”. 

It was therefore averred that the doctors were “negligent” in their failure to diagnose the wet gangrene, or if this was beyond their level of competence, in their failure to investigate further and follow the trail or to refer the first pursuer to a specialist until the proper diagnosis could be made. 

It was alleged that the medical practice, Dr Johnston and Dr Tierney (second, fifth and sixth defenders) failed in their “duty of care” to the first pursuer in that they failed to follow the trail of the worsening wet gangrene and infection (sepsis) together with the fact that he had been noted on his file as ischaemic, and in their failure to follow their own practice procedures indicating the necessity for referral to a vascular surgeon.

The party litigant pursuers further averred that these instances of negligence led to the emergency surgery required to save the firs pursuer’s life and also to the life changing condition in which it left him, with the loss of balance, pain, suffering and mental illness, together with the second pursuer’s “mental breakdown” and inability to return to work, and ongoing “debilitating anxiety” to both of them.

‘Wholly adequate averments’

The defenders argued that there was “no prospect” of the pursuers satisfying the test for professional negligence set out in the case of Hunter v Hanley 1955 SC 200. 

To establish liability where a deviation from normal medical practice is alleged, a pursuer must prove (i) that there was a usual and normal practice, (ii) that the doctor did not adopt that practice, and (iii) that the course adopted by the doctor was one which no professional man of ordinary skill would have taken if he had been acting with ordinary care, but the pursuers’ averments of negligence in the treatment of Mr Spark’s condition were “inadequate”.

It was submitted that there were “no relevant or specific averments” to support any causal link between any alleged breach of duty on the part of the defenders and the damage sustained by the first pursuer.

In relation to Mrs Spark’s claim, it was argued that none of the defenders owed a duty of care to the second defender.

In novel situations consideration will focus on the “proximity” between the parties, “reasonable foreseeability” and whether the imposition of a duty of care is “fair, just and reasonable”, but there was “no basis in law” for the duty of care pled by the pursuers.

It was also submitted that the averments were “wholly inadequate” to establish an entitlement for the second pursuers to recover damages as a “secondary victim”.

‘Dismissal unavoidable’

In the result, the sheriff acceded to the motion made on behalf of each of the defenders and dismissed the action.

In a written judgment, Sheriff Weir said: “I agree with the defenders’ submission that…the pleadings fail to disclose any cogent basis for holding that a duty of care was owed to the second pursuer as spouse of the first pursuer. 

“Absent any direct duty of care, I am equally persuaded that the defenders are correct in submitting that no relevant basis has been pled for the recovery by the second pursuer of damages as a secondary victim.

“There have been cases involving secondary victims claiming damages in the context of clinical negligence. Such cases, however, do not appear to dilute the requirement, which the defenders submitted was missing from the circumstances averred in the instant case, for the claimant to have been exposed to a shocking or horrifying event, judged objectively. 

“On the contrary, my reading of the cases cited to me points to there being a requirement, or control mechanism, if you will, for the trigger event to be exceptional in character and suddenly appreciated by the victim. The pleadings do not, in my view, come close to attaining the description of an event of that character.”

In respect of the pursuers’ complaints about the standard of care which should have been adopted on the part of the doctors treating Mr Spark, the sheriff agreed with the defenders’ criticisms of the pleadings which focus on the lack of any averments as to what would have constituted the ordinary and usual practice of the GPs who saw the first pursuer at that time. 

“The absence of such averments means that there is no basis upon which evidence could be led as to what constituted such practice. That would be fatal to any case of this kind after proof,” he added.

Sheriff Weir continued: “Given the problems already identified in the pursuers’ pleadings it is perhaps unsurprising that those problems extend to issue of causation. The short point is that there has to be a causal link between the alleged breach of duty and the damage sustained. 

“The pursuers do not offer to prove that, absent any breach of duty on the part of the GPs, emergency surgical intervention would probably have been avoided.”

He concluded: “The pursuers made their submissions to the court with both courage and courtesy. Ultimately, however, I have reached the conclusion that the action in its present form is indeed irrelevant and so lacking in specification that decree of dismissal is unavoidable.”