Annabelle Bell Against Alliance Medical Limited And Jackie Mccoll And Forth Valley Health Board
| Jurisdiction | Scotland |
| Judge | Lord Boyd of Duncansby |
| Neutral Citation | [2015] CSOH 34 |
| Court | Court of Session |
| Published date | 02 April 2015 |
| Year | 2015 |
| Date | 02 April 2015 |
| Docket Number | A517/11 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 34
A517/11
OPINION OF LORD BOYD OF DUNCANSBY
In the cause
ANNABELLE BELL
Pursuer;
against
ALLIANCE MEDICAL LTD
Defenders;
and
JACKIE McCOLL
Third Party;
and
FORTH VALLEY HEALTH BOARD
Second Third Party:
Pursuer: Mackenzie; Morton Fraser LLP
Defender: Dunlop QC, Watson, Solicitor Advocate; Simpson & Marwick
Third Party: Weir QC, Reid; CMS Cameron McKenna LLP
Second Third Party: Dunlop QC, Watson, Solicitor Advocate; Simpson & Marwick
2 April 2015
The parties
[1] The pursuer is Annabelle Bell. She is 49 years old, married and lives in Maddiston, Falkirk. She was formerly a civil servant but is now unemployed. This is an action arising out of the cannulation of Mrs Bell’s arm during an MRI scan at Falkirk and District Royal Infirmary on 26 January 2009. The defenders are Alliance Medical Ltd who were contracted by Forth Valley Health Board to carry out MRI scanning at the hospital and accordingly were responsible for the management and operation of the MRI scanning unit at that time. The first third party is Jackie McColl, an employee of the defenders and the radiographer who carried out the cannulation of the arm. The second third party are the Health Board who own and operate the hospital.
Introduction
[2] In October 2008 Mrs Bell underwent bilateral surgery for the removal of her ovaries. Following surgery she began to experience severe headaches. Dr Christian Neumann, consultant neurologist, recommended that she have an MRI scan and lumbar puncture. Subsequently she was booked in for an MRI scan at the Falkirk and District Royal Infirmary on 26 January 2009. The MRI scan required the injection of a contrast medium, gadolinium, by means of a cannula inserted into a vein in the antecubital fossa of the left arm. It is accepted by the defenders and both third parties that it was in fact inserted into the brachial artery.
[3] Deliberate puncture of arteries is a common feature of surgical practice. Brachial artery puncture is used for performing such procedures as angiography and coronary artery procedures. In most cases it is done without any problems. It is not without risks and inadvertent punctures which go unrecognised can result in clotting or dissection of the artery. This may in turn lead to ischemia of the limb and gangrene.
[4] In this case it is accepted that Mrs Bell developed ischemia in her left arm. This was caused by an occlusion in the brachial artery. It is also agreed between the parties, on the basis of a consensus of expert evidence, that the occlusion of the artery was caused by the cannulation. Damages were agreed in the sum of £700,000. Accordingly the issues as between the pursuer and the defenders were liability and causation. The defenders in turn claim that any liability on the part of the defenders has been occasioned by the breach of contract on the part of the first third party and that they are entitled to be indemnified by her against any consequential liability to make payment to the pursuer. If they are not to be indemnified then, on the hypothesis that they are found liable to make payment to the pursuer, they are joint wrongdoers in terms of section 3 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 and are entitled to a contribution towards payment from the first third party.
[5] The first third party denies any liability. She denies that the defenders are entitled to be indemnified by her. However she says that if they are so entitled, or if she is found liable as a joint wrongdoer in terms of section 3 of the 1940 Act, she in turn is entitled to a contribution from the second third parties. That is denied by the second third parties.
The pursuer’s case
[6] The case against the defenders is quite simple. Mrs Bell says that when the cannula was removed following the MRI scan there was a spurt of blood which left her arm and went on to her trousers. That is indicative of an arterial puncture. However she says the spurt of blood was ignored by Mrs McColl. Mrs Bell says that at that stage medical assistance should have been sought. Had assistance been sought it is said that it is probable that she would not have suffered the loss and damage which occurred to her.
[7] The averments of fault are as follows,
“It was her (the first third party’s) duty in the exercise of reasonable care to identify blood spurting from the skin on removal of the cannula as potentially being indicative of arterial puncture. It was her duty thereafter to seek immediate medical treatment for the pursuer before she left hospital.”
[8] The defenders and the first and second third parties deny that there was a spurt of blood. However they all accept that if there was a spurt of blood that should have alerted the first third party, Mrs McColl, to the potential of an arterial breach and she should have sought medical assistance. Accordingly they accept that, on the hypothesis of fact put forward by the pursuer, the test in Hunter v Hanley 1955 SC 200 would be met.
[9] There is therefore a sharp issue of fact to be established; whether there was a spurt of blood on removal of the cannula by Mrs McColl.
[10] If that issue of fact is established then a further issue of causation arises. Did the first third party’s negligence cause the injury to the pursuer?
Evidence
[11] The pursuer told the court that prior to 2009 she had been in good health. She had gone to the gym, played golf, run in a 5k race and helped out in a local pub. She had been in a road traffic accident which had given her pain in the neck but that cleared with time. In 2008 however she had had her ovaries removed. Following this she had suffered severe headaches. She had been referred to a neurosurgeon who had sent her for an MRI scan at the Falkirk and District Royal Infirmary. That took place on 26 January 2009. She had not had an MRI scan before. She had however had a cannula inserted in her hand. At the time of the scan she did not know the difference between cannulation into a vein or into an artery. Her main concern when she went for the scan was that she might have a brain tumour. She was frightened. She was wearing a t-shirt and white jeans. The scanning suite was in a small building attached to the hospital. She was shown into a small area next to where the scanner was and told to change. She took off her top and bra and put on a gown. Two people (the radiographers) were in the scanner room. She was sat on the bed of the scanner and the cannula was inserted into her left arm. It is accepted that this was done by the first third party, Jackie McColl. She described the sensation as being uncomfortable. She was not asked which was her dominant arm. She is left handed.
[12] A scan was taken and she was then injected with contrast before a further scan was taken. She described the sensation when the contrast was put in as warm and uncomfortable. She said that she felt it going up her arm towards her shoulder. It was put to her that she had told Mr Drury that it was agony. She said that was later but at the time it was very uncomfortable. She had felt discomfort from the elbow down to the hands.
[13] After the second scan with the contrast she had noticed that one of the operators had gone away and come back with a man in a white coat whom she assumed was a doctor. He had looked at the monitor and they had then told her that they were going to do another “burst”. She was terrified as she thought that meant that they had found something. She said that she started to cry.
[14] She was then taken out of the scanner. She sat up on the bed and the cannula was removed. A spurt of blood came out and landed on her trousers slightly above her left knee on the inner aspect. She was asked how much and she said it was the size of a tennis ball though said it might have been that large because she had rubbed at it. Some blood was also on her arm. She said that Mrs McColl had laughed and said “I’m getting better at this”. Mrs McColl had been fast with cotton wool which she had been holding in her other hand when she removed the cannula and placed it over the wound. She asked the pursuer to hold it while she placed tape over it. She said that she had not been asked to apply pressure and had not done so. She was certain that Mrs McColl would have seen the blood. The pursuer had asked about the outcome of the scan and was told that the neurologist would be in touch.
[15] She had then left the MRI suite and gone out to the car where her husband was waiting for her. She told him that she thought that they had found something and explained about the man in the white coat coming into the MRI suite.
[16] She had gone home. She said that her arm had got worse in the course of the afternoon. While she was peeling potatoes for the evening meal about 5pm she found the pain in her hand horrendous, so much so that she dropped the potato peeler.
[17] The general practitioner’s medical records show that Mrs Bell saw her GP, Dr Stephen Brown, later that day. Mrs Bell had no recollection of the appointment and Dr Brown did not remember it. The notes showed that Mrs Bell had had the MRI scan that day and that she was still having headaches. Mrs Bell’s position was that by that time the headaches had in fact subsided. In cross examination she was adamant that she had not told Dr Brown that she was still having headaches. There is no mention of pain in the fingers or arm and no note of concern by Mrs Bell about the MRI scan.
[18] Her next appointment with her GP was on 4 February. The notes show that she was feeling better with less headaches. It also notes that her arm was sore since the “injection” for the MRI scan. Dr Brown noted a possible diagnosis of phlebitis and thrombophlebitis. Dr Brown explained that he thought at that point that there was a possible clot in the vein. Mrs Bell said that she told Dr Brown that from the time of the “injection” her hand had been really sore...
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