(first) A.b. Against Dr. K Palanimurgan, Dr A.w. Rigg And Dr. S. Indriz, (second) Dumfries And Galloway Nhs Board
| Jurisdiction | Scotland |
| Judge | Lord Doherty |
| Neutral Citation | [2015] CSOH 26 |
| Court | Court of Session |
| Published date | 17 March 2015 |
| Year | 2015 |
| Date | 17 March 2015 |
| Docket Number | A163/11 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 26
A163/11
OPINION OF LORD DOHERTY
In the cause
A B
Pursuer;
against
(FIRST) DR K PALANIMURUGAN DR A W RIGG and DR S INDRIZ; (SECOND) DUMFRIES AND GALLOWAY NHS BOARD
Defender:
Pursuer: Hofford QC, Smart; Digby Brown SSC
First Defender: Bowie QC, Burnet; MDDUS
Second Defender: Kinroy QC, Heaney; NHS Central Legal Office
17 March 2015
Introduction
[1] This action for medical negligence arises as a result of administration of an enema to the pursuer on 20 June 2008. The pursuer avers that her GP, Dr Palanimurugan (one of the partners in the first defenders) and a community nurse, Nurse Bryson (employed by the second defenders) were negligent in a number of respects. She avers that Nurse Bryson inserted the nozzle of the enema into an open surgical wound rather than into her anus; and that the administration of the enema into the wound caused a fistula between her rectum and her vagina.
[2] A proof before answer on liability and quantum was set down for 12 days commencing on 13 May 2014. On the first day of the proof it was evident that the diet allocated would be inadequate for both the merits and quantum to be disposed of. Parties agreed that the proof should be restricted to liability and causation, and an interlocutor so restricting the proof was pronounced. On the tenth day of the diet it was adjourned to allow an expert witness, Professor Paul Horgan, to be recalled. His further evidence was heard on 2 December 2014. Closing submissions followed and I made avizandum on 4 December 2014.
Background
[3] The pursuer was aged 52 at the date of the proof. She gave birth to her first child in 1986 at Cumberland Infirmary, Carlisle. She underwent a forceps-aided delivery and had an episiotomy which required subsequent repair. Thereafter she developed anal sphincter disruption which over time resulted in chronic faecal incontinence. In October 2001 she had a tension free vaginal tape procedure to address symptoms of urinary incontinence. In July 2006 she had a vaginal hysterectomy, a pelvic floor repair, and associated repair of the perineal body. In late 2007/early 2008 she was examined at Cumberland Infirmary. She was found to have a palpable external anal sphincter defect between the nine and one o’clock positions. Mr Palmer, the consultant general and colorectal surgeon in charge of her case, recommended an anterior anal sphincter repair. On 12 June 2008 Mr Palmer carried out that operation. At the same time he performed a levatoroplasty. The surgery involved refashioning of the tissues between the vagina and the rectum to improve the muscles which relax to let the bowel open and faeces to be passed and which tighten to close the anal passage. Mr Palmer left a small opening at the centre of the surgical wound in the perineum to allow drainage of the sub-cutaneous tissues. Following the operation the pursuer remained an in-patient until her discharge home on 16 June 2008.
The pleadings
[4] The pursuer avers:
“Cond. 2 … Following discharge from hospital, the pursuer developed constipation and pain on attempting to pass stools. On 19 June 2008, at around 02.00hrs the pursuer contacted NHS 24 out of hour’s service complaining of constipation and pain. She was advised to add senna, a mild laxative, to her existing prescribed laxative, and to contact her own GP…On the morning of 19 June the pursuer contacted the first defenders’ practice due to continuing pain and inability to move her bowels. A district nurse, Isabel Gunning, attended the pursuer. Nurse Gunning administered a Microlax enema… Thereafter, Nurse Gunning arranged for Dr Palanimurugan to visit the pursuer…. Dr Palanimurugan examined the pursuer and recorded that the suture line around the anus was painful and swollen. No rectal examination was carried out. Abdominal examination did not disclose any sign of a palpable mass suggestive of faecal impaction. The pursuer was advised to continue laxative treatment but that if her condition worsened she was to contact the surgery. On 20 June 2008, the pursuer contacted the first defenders’ surgery and spoke to another district nurse, Sylvia Swallow. The pursuer advised Nurse Swallow that she remained in pain and was unable to move her bowels. Nurse Swallow discussed the pursuer’s condition with all three of the first defenders at a clinical team meeting on 20 June 2008. The first defenders and Nurse Swallow decided that the pursuer should be given a Fletchers’ phosphate enema, at half normal volume. As the doctor who had last seen the pursuer, Dr Palanimurugan was in the position to make the final decision on her management and had responsibility therefor. District Nurse Bryson … attended the pursuer on 20 June. Nurse Bryson administered the Fletchers’ enema in two stages. During the procedure the enema tubing was directed into the open surgical wound rather than the rectum. The administration of the enema resulted in a traumatic disruption of the suture line of the previous surgical repair, causing the wound to extend through to the vagina (a recto-vaginal fistula)… The pursuer became aware of severe pain when Nurse Bryson was administering the second half of the enema. She was unable to catch her breath or cry out. She was utterly shocked by the extent of the pain. Nurse Bryson left immediately after giving the pursuer the enema and did not wait for any result from the enema …”
[5] The case pled against the first defenders is that it was Dr Palanimurugan’s duty not to authorise the Fletchers’ enema on 20 June without first reviewing the pursuer’s condition, reaching a diagnosis of faecal impaction, and assessing the risk of trauma from an enema; that it was his duty not to authorise the enema without explaining the risks of the procedure to her and obtaining her informed consent to it; that it was his duty to seek advice from the surgical team on 20 June before authorising an enema; and that if he was aware that enema fluid had appeared at the suture line on 19 June he ought to have referred the pursuer back to hospital immediately. The pursuer avers that Dr Palanimurugan breached each of these duties. The first defenders admit that Dr Palanimurugan was negligent in authorising the enema without first taking action to clarify the appropriateness of its use such as by contacting the surgical team. They aver that this breach of duty was not causative of loss; and that had Dr Palanimurugan contacted the surgical team administration of an enema would have been likely to have been recommended, either in the community or at the hospital. They aver that he was not informed of the appearance of Microlax enema fluid on the suture line on 19 June.
[6] Of the cases pled against the second defenders the only ones ultimately insisted upon were that it was Nurse Bryson’s duty to carry out her own clinical assessment of the pursuer and of the appropriateness of the enema, and to question its appropriateness with Dr Palanimurugan; and that it was her duty not to insert the enema into the surgical wound. The second defenders admit that it was Nurse Bryson’s duty to take reasonable care not to deliver the enema into the wound but they deny that in the circumstances it was her duty to carry out her own clinical assessment of the appropriateness of the enema.
[7] In cond. 5 the pursuer avers:
“As a result of the defenders’ failures in duty the pursuer sustained loss, injury and damage. As a result of the administration of the enema, and the direction of at least part of the enema into the open surgical would, a fistula formed between the surgical wound at the rectum and the vaginal wall. The pursuer was in severe pain following the administration of the enema. She began to pass stool through her rectum and vagina…There is no evidence of any recto-vaginal fistula being present prior to the enema being administered. The pursuer moved her bowels normally while in hospital. The enema administration resulted in a breach between rectum and vagina…”
The evidence
The pursuer’s case
The pursuer
[8] The pursuer indicated that after her anal sphincter operation, when she was in hospital between 12 and 16 June 2008, “I opened my bowels four or five times”. She said that at home on Monday 16 June and Tuesday 17 June she was tired and uncomfortable. She opened her bowels at home on Monday 16 June: but that on Wednesday 18 June she was in considerable pain and was getting worse because she could not open her bowels. Around midnight her husband had phoned the NHS after hours service for advice. The next morning she had spoken by telephone to a nurse at the first defenders’ surgery. Nurse Gunning had visited her at home. She had administered half of a Microlax enema to her. Nurse Gunning had said she would get Dr Palanimurugan to come and see her. He had come later that afternoon. He had visually examined her surgical wound and had felt her stomach. He had advised her to continue taking laxatives, painkillers and an antibiotic. On Thursday and Friday she was unable to open her bowels. She passed some brown faecal fluid from her anus. The pain continued to get worse. On Friday 20 June she telephoned the surgery. Nurse Bryson came to see her that afternoon. She had said that she was going to give her a half volume Fletchers’ enema. She had not advised her of any risks which might be involved. If she had been told there was a risk she would not have agreed to have the enema. She had lain down on her bed on her left side. Nurse Bryson had said to let her know if she had any pain when she was administering the enema. The enema nozzle used looked about the same size as that on the enema bottle 6/44 of process. Nurse Bryson “gave me an enema into the back passage and took it out”. She had been aware of it going in and coming out. When it was taken out she had looked over her shoulder towards Nurse Bryson and asked “Is that it?” Nurse Bryson had been holding the enema up and...
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