Deborah Ann Young Against Borders Health Board
| Jurisdiction | Scotland |
| Judge | Sheriff P Arthurson |
| Neutral Citation | [2016] CSOH 13 |
| Court | Court of Session |
| Docket Number | A496/12 |
| Published date | 15 January 2016 |
| Date | 15 January 2016 |
| Year | 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 13
A496/12
OPINION OF SHERIFF P A ARTHURSON, QC
(Sitting as a Temporary Judge)
In the cause
DEBORAH ANN YOUNG
Pursuer;
against
BORDERS HEALTH BOARD
Defenders:
Pursuer: McCauley QC, L Sutherland; Balfour + Manson
Defender: Kinroy, QC, Khurana; NHS Central Legal Office
15 January 2016
Introduction
[1] This action came before the court as a preliminary proof on limitation in terms of sections 17(2)(b)(ii) and 19A of the Prescription and Limitation (Scotland) Act 1973. The context was one of alleged clinical negligence on the part of accident and emergency staff at Borders General Hospital in the course of dates in February 2007 following upon the pursuer’s admission to that hospital with severe pain in her left leg. Two failures in duty were contended for on the part of the pursuer, namely (i) a failure to ask for an immediate orthopaedic review; and (ii) a failure to consider a diagnosis of infection with compartment syndrome and to refer the pursuer for orthopaedic review. The pursuer’s case accordingly amounted to an allegation of harmful delay in reaching the correct diagnosis and consequent provision of the correct treatment.
[2] When the correct diagnosis was made by a consultant orthopaedic surgeon on 19 February 2007, a series of surgical procedures followed leaving the pursuer with significant sequelae in terms of loss, injury and damage. Issues of quantum, causation and the merits were not canvassed at the preliminary proof; instead, the issues addressed by parties were related solely to the primary matter of consideration of the time bar plea tabled on behalf of the defenders relative to section 17 of the 1973 Act and to the secondary question of whether relief sought by the pursuer in terms of section 19A of the Act should be granted by the court. For the pursuer, two witnesses were led, namely the pursuer herself and Dr Laura Ryan, formerly the clinical lead at the Borders Emergency Care Service. The defenders led no evidence. A joint minute dealing with the provenance of relevant documentation and medical records helpfully limited the scope of parole evidence led before the court.
The evidence
[3] The pursuer was aged 47 when she gave evidence, having formerly worked as an ambulance technician based in Kelso. On 15 February 2007 she had attended the gym, not having done so for a long time, for a one hour assessment. She advised that she did not injure herself during that session but that later on that day, some two to three hours later, she had noted pain behind her left knee and calf. She proceeded to undertake a night shift commencing at 11.00pm that date. On 16 February 2007 she attended her general practitioner who thought that she had pulled a hamstring or sustained a possible calf strain and provided analgesia. That evening she telephoned a 24 hour NHS out of hours service and later that evening attended Kelso Hospital where muscular injury was diagnosed and codeine added to the treatment by the out of hours doctor. On 17 February 2007 in the morning the pursuer’s husband telephoned the out of hours service and the same doctor from the evening before attended the pursuer at her home. On 18 February 2007, she described herself as being in agony and reported that her husband had required to drive her to Borders General Hospital where she attended at 11.20 hours. A diagnosis was made following an examination at 11.54 hours of “cardio-vascular-pulmonary embolism”. The pursuer recalled in her evidence that after this initial examination had been completed, a nurse whom she happened to know said that “she thought it was compartment syndrome”, and not a deep vein thrombosis (“DVT”). She was admitted to ward 5 and at a ward round at 16.00 hours another doctor provided a diagnosis of a “probable DVT”. On 19 February 2007 the pursuer’s case was discussed with a consultant orthopaedic surgeon who indicated that compartment syndrome required to be considered. Significant cellulitis was noted up to the mid-thigh. The admission note by the orthopaedic surgeon of the same date states clearly that he thought that the pursuer either had significant compartment syndrome or necrotising fasciitis. He noted that the pursuer’s renal function was deteriorating and she was transferred to theatre on an emergency basis for decompression and debridement of the left leg. Sundry surgical procedures followed and the pursuer was discharged home on 14 March 2007.
[4] In the course of close questioning by her own senior counsel and cross‑examination by senior counsel for the defenders, the pursuer came across as a patient who had found herself, understandably, to be utterly bewildered by such a swiftly moving deteriorating set of circumstances as those which befell her in February 2007. Such were the sequelae for her that she has never returned to work. She entered court in a wheelchair to give her evidence. She has continued to take significant and varied medication for a considerable period and repeatedly described herself as being in a “bubble” within her own world and continuously very tired. Her focus after these events was very much upon getting well. Nevertheless she was able, she accepted, to attend her general practitioner in August 2007 in order to obtain letters for an insurance company and an airline in order to allow her to take a holiday to Cyprus. On 10 January 2008 she confirmed with her treating physiotherapist that she was happy to be referred to a pain clinic, and, such a referral having been made by her general practitioner on 1 February 2008 following a consultation with her on 28 January 2008, the pursuer had duly attended the pain clinic from late April 2008.
[5] There was a significant chapter of evidence concerning the pursuer’s dealings with the Borders Citizens Advice Bureau (“CAB”). A letter from CAB dated 27 March 2008 was sent to the defenders in the form of a formal complaint. An undated letter from the pursuer was attached to that letter. That undated letter, in terms, set out the background circumstances and narrated that “It has now been 6 months since this happened”. The letter set out nine numbered questions, stating at the end that “There is also talk of pain clinics to deal with continuing problems.” This formal complaint procedure continued until December 2008, the defenders replying initially at some length on 1 August 2008 in a letter which included a reference to the opinion of Dr Ryan, who also gave evidence at the proof, to the effect that the unusually large amount of pain relief provided prior to admission was a “red flag” for consideration of admission to hospital for further assessment. A further letter from CAB was sent on 24 September 2008 on behalf of the pursuer and there was a final lengthy reply on behalf of the defenders on 1 December 2008. It was of note that at an early stage during this process before the defenders’ lengthy reply of 1 August 2008, a caseworker for CAB wrote to the complaints officer at Borders General Hospital on 20 June 2008 stating that “my client firmly believes her condition was misdiagnosed by the Bordoc doctor … in the BGH A&E department.” The pursuer’s position in respect of the complaint procedure was that the anniversary of the events in February 2007 had acted like a trigger making her think about whether or not her illness might have been avoided if she had received the correct diagnosis. She and her husband had carried out internet research for a period of two to three weeks following the anniversary. This process had led to the undated letter which accompanied the initial complaint letter from CAB. The pursuer emphatically denied that her undated accompanying letter predated the pain clinic referral of 1 February 2008. Her position was that it was only from the anniversary later that month that she had started to relive her experience and think along lines leading to the position set out in her undated letter and in due course to her firm belief of misdiagnosis as set out in the letter from CAB dated 20 June 2008. In cross-examination, however, she accepted that she had realised that there had been a delay in diagnosis when her undated letter accompanying the initial CAB letter of complaint had been drafted, and further that she had realised then that there had been something wrong about the diagnosis. Her firm belief in a misdiagnosis was, she accepted, what her accompanying letter was all about; indeed, even before the defenders’ response of 1 August 2008, she told the court that she and her husband “had that in mind” and were asking questions. Put short, this passage of evidence confirmed that by the time her undated accompanying letter was drafted, she believed that there had been a misdiagnosis by the Bordoc doctor (the out of hours service) and staff at accident and emergency at Borders General Hospital, and that, in her own words, “time had been lost”.
[6] Dr Laura Ryan’s evidence was in short compass and covered the terms of the response letter from the defenders dated 1 August 2008 to which she had contributed, as already referred to. She expressed the view that when she met with the Bordoc doctor in April 2007 and reviewed the notes there were aspects of note taking that she felt that could properly be the subject of criticism and that at the time she considered that there could be later litigation on the basis that she felt that questions could reasonably asked about the choice of care and whether that had had an impact on the outcome for the pursuer.
Submissions for the pursuer
[7] Senior counsel for the pursuer moved the court to repel the defenders’ plea in law in respect of limitation and to allow the closed record to be opened up and amended in terms of the pursuer’s minute of amendment and the defenders’ answers, the terms of which had been included within the scope of the proof in terms of interlocutors of the court dated 23 May 2014 and 15 July...
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