Charles Honisz V. Lothian Health Board And Others
| Jurisdiction | Scotland |
| Judge | Lord Hodge |
| Neutral Citation | [2006] CSOH 24 |
| Docket Number | A1463/96 |
| Date | 10 February 2006 |
| Court | Court of Session |
| Published date | 10 February 2006 |
| OUTER HOUSE, COURT OF SESSION [2006] CSOH 24 | |
| A1463/96 | OPINION OF LORD HODGE in the cause CHARLES HONISZ Pursuer; against LOTHIAN HEALTH BOARD and OTHERS Defenders: ________________ |
Pursuer: Wallace; McKay & Norwell
Defenders: R Anderson, Q.C., Khurana; Scottish Health Service
10 February 2006
[1] The pursuer is twenty-eight years old. This action concerns events in 1993 when he was sixteen years old. At that time he had a keen interest in football and an ambition to be a professional footballer. He repeatedly injured his knees playing football. In August 1993 he injured his right knee, had local anaesthetic injected into the knee on 28 August and required to undergo an arthroscopy on 31 August. His injury was diagnosed as a patello-femoral dislocation. On 2 October 1993 he again injured his right knee, had an injection of anaesthetic into his knee on that day and underwent a further arthroscopy on 12 October 1993. On this occasion the injury was diagnosed as a lateral meniscus tear and the surgeon removed a small fragment of the posterior horn of the meniscus. He suffered a further injury to his right knee on 15 November 1993 while playing football and was treated at the Royal Infirmary, Edinburgh ("the Infirmary").
[2] This action concerns allegations of negligence on the part of medical staff at the Infirmary in their treatment of the pursuer between 16 and 20 November 1993. In particular it is alleged that the consultants treating the pursuer failed in their duty of care to him by failing to administer prophylactic antibiotics so as to reduce the risk of septic arthritis from a further operation on his knee or in any event by failing promptly to identify and tackle the infection which broke out in his knee. It is alleged that their failures either caused or exacerbated the damage to which that infection gave rise.
The treatment of the pursuer in the Royal Infirmary
[3] The pursuer attended the Infirmary on 16 November 1993. Mr Court-Brown, a consultant orthopaedic surgeon at the Infirmary and since 1999 Professor of Orthopaedic Trauma at Edinburgh University, examined his knee and decided that it required surgery. As his allocation in the operating theatre was cancelled, Mr Court-Brown sent the pursuer home overnight with the instruction to return on the following day for his operation. Mr Court-Brown referred the pursuer to his colleague, Mr Nutton, who also was a consultant orthopaedic surgeon, because the pursuer had already had two arthroscopies and because of Mr Nutton's expertise in arthroscopies of the knee.
[4] Mr Nutton first saw the pursuer on 17 November. Mr Nutton was almost certain that he saw the pursuer's medical notes before operating on his knee. He operated on the pursuer's right knee on the morning of 17 November by means of arthroscopy. This revealed that the pursuer had a haemarthrosis (bleeding into the knee joint) and had torn his lateral meniscus which had become detached and dislocated into the intercondylar notch (the centre of the knee joint). He used sutures to manoeuvre the torn meniscus back into its correct position and to tie it in place, anchoring the meniscus to the capsule. In his medical notes in the hospital records he described the method as an "outside in" technique and explained in evidence that he tied the sutures together subcutaneously before closing the portals which he had opened for the arthroscopy. The pursuer returned from theatre at 1045 hours with a canvas splint on his right knee and was observed to be satisfactory. He had a settled evening and remained in bed.
[5] On the following day, Thursday 18 November, probably in the middle of the day, a technician fitted a plaster of Paris cast ("the POP cast") to the pursuer's right leg to protect the knee. During that day his temperature rose from 36.5 degrees (Celsius) to 38.5 degrees by 1700 hours before falling back in the course of the evening to about 37.5 degrees. He suffered pain in his leg and complained to both medical and nursing staff about that pain. He was given ten milligrams of morphine at 1530 hours and seventy-five milligrams of a pain-relieving drug, Voltarol, at 1915 hours. The nursing notes recorded that the morphine had some effect and the Voltarol had good effect. Because of his pyrexia (elevated temperature) the nursing staff placed a fan close to his bed to reduce his discomfort and gave him paracetamol. He complained of pain and sought reassurance that he had not got an infection. He also asked for his cast to be taken off because of the pain. In the course of the evening Dr Robson, who was either a house officer or senior house officer, examined the pursuer and noted that there appeared to be no problem with the POP cast. He spoke to both the pursuer and his mother who had also expressed concern about her son's pain, and I infer that he must have reassured them that all appeared to be in order notwithstanding the pursuer's complaints of pain.
[6] On the following day, Friday 18 November 1993, the nursing notes record that the physiotherapist mobilised the pursuer and that he was walking on crutches. Observations, which Mr Nutton explained were usually readings of temperature, pulse and blood pressure, were noted to be satisfactory. The nurses also recorded that he was reluctant to do much for himself. On a ward round in the course of the morning a senior registrar examined him and cleared him for discharge from the Infirmary in the afternoon. The nursing notes recorded that his observations were satisfactory and that CSM (colour, sensation and movement) of his right foot were satisfactory, which suggested that there were no circulatory problems in the right leg. His temperature at the start of the day (0600 hours) was 37.5 degrees but fell back towards normal (36.5 degrees) in the course of the day. His pulse remained marginally elevated. He was discharged at about 1600 hours. It is likely that he was sent home with some analgesia.
[7] There was a puzzling conflict of evidence between the nursing records and the pursuer as to his condition on the day of his discharge. The pursuer spoke of being in great pain, of complaining and of crying when waiting for discharge. His mother, who worked and was able to visit him only in the evenings, spoke of him being in great pain from Wednesday onwards and of his crying out in pain. But, on the Friday, the nursing notes did not record any manifestations or complaints of pain and the records of the analgesia which he received did not reveal that he received any strong analgesics on that day as one would have expected if a patient were manifesting severe pain.
[8] The pursuer spoke of complaining to the nurses during his stay in hospital and of their telling him not to be a baby. I am prepared to accept that he did so and infer that the nurses had formed the view either that he had a low pain threshold or that he was upset at being in hospital and was overstating his discomfort. There was evidence that he behaved immaturely and uncooperatively when in hospital and it is likely that he manifested similar pattern of behaviour at this stage. There was a note in the medical records which suggested that the pursuer had a low pain threshold. Mr Nutton described him as an uncooperative patient who did not cope with pain. It may be that he continued to complain of pain to the nurses on Friday 18 November, but I do not accept his evidence that he was screaming with pain on the Friday or that the medical and nursing staff sent him home against his express wishes when he was screaming in agony. As I mention in paragraph [19] below, he was not a reliable witness as he was prone to exaggeration and on occasion careless as to the accuracy of his evidence. Inevitably the passage of time since 1993 has adversely affected his recollection.
[9] His mother, Mrs Honisz, also and again for understandable reasons did not have a detailed recollection of the sequence of events and wrongly suggested that the pursuer had had a POP cast from the time he returned from the operating theatre on Wednesday and that he was complaining of severe pain from then on. On 18 November she did not see the pursuer until about 4 pm when she came to collect him on his discharge. She said that he was still in a lot of pain when she took him home. But she gave no evidence about his crying or screaming on discharge or of making any attempt to persuade the medical practitioners to allow him to stay in hospital. I therefore conclude that when he was discharged from the Infirmary on 18 November he was in pain but was not complaining of severe pain, that he was walking on crutches and that neither he nor his mother suggested that it was inappropriate to discharge him.
[10] When the pursuer went home he suffered continuing pain. His mother described him lying on a settee crying and thought that he had a temperature. She summoned a locum general practitioner to her house and she referred the pursuer back to the Infirmary where he arrived between 2300 hours and midnight. He was seen in the accident and emergency department by Dr de Vriese, who was either a registrar or senior registrar. Dr de Vriese recorded that the pursuer had initially been comfortable but that on Friday he had been in excruciating pain in his POP cast despite pain medication. He examined him and recorded normal dorsiflexion of the ankle although it was very painful. The pulses in his foot were recorded as normal but there was some dysaesthesiae (altered sensations) on the dorsum of his foot which suggested that the POP cast was too tight and that it was interfering with the nerves or the circulation in the right leg.
[11] The medical staff removed the pursuer's POP cast in the accident and emergency department. On removal of the POP cast the pursuer felt instantaneous and considerable relief from the pain which he had been suffering. Both the pursuer and his mother spoke of his knee swelling up to...
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