Robin Donald And Others V. Ayrshire And Arran Health Board &c
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2013] CSOH 23 |
| Court | Court of Session |
| Docket Number | A754/06 |
| Published date | 07 February 2013 |
| Date | 07 February 2013 |
| Year | 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 23 | |
| A754/06 | OPINION OF LORD GLENNIE in the cause ROBIN DONALD AND OTHERS Pursuers; against AYRSHIRE & ARRAN HEALTH BOARD AND OTHERS Defenders: ________________ |
Pursuers: Dewar QC, Henderson; Drummond Miller LLP
First Defenders: Stephenson QC, McSporran; R F Macdonald
Second Defenders: Bain QC, Davie; MDDUS
7 February 2013
Introduction
[1] This action concerns the death of Maria Bernadette Donald on 6 August 2003. She died in the Accident & Emergency Department of Ayr Hospital of a massive bilateral pulmonary embolism following a deep vein thrombosis ("DVT").
[2] The first pursuer is Robin Donald, her husband at the time of her death. He has recently remarried. Their daughters, Gillian, Emma, Sarah and Ruth, are respectively the second to fifth pursuers. Together they sue for loss, injury and damage sustained by them as a result of her death.
[3] The first defenders named in the action are the Ayrshire & Arran Health Board, who were sued in respect of alleged failings at Ayr Hospital, not at the time of Mrs Donald's death but on an earlier occasion in 2001 when, so it was alleged, they ought to have diagnosed the possibility of recent or recurrent DVT. On day 9 of the proof the pursuers abandoned their action against the first defenders and decree of absolvitor was granted in the action insofar as directed against them.
[4] The second defenders are all registered general practitioners. They practice in partnership with a surgery and principal place of business in Mauchline, Ayrshire. The practice is currently known as the "Ballochmyle Practice", because it covers the adjacent town of Ballochmyle as well as the village of Mauchline. They are sued in respect of alleged failings of two of the partners at the time, Dr John Cleland and Dr David Richardson. Both have since retired.
[5] In the course of the proof, a joint minute was entered into in terms of which all questions of damages and interest were agreed in the event of a finding of liability.
[6] Before turning to consider the merits, I should thank counsel for their very comprehensive submissions, both written and oral. I should also express my particular gratitude to junior counsel on both sides who not only typed out their very full notes of the evidence but also co-operated with each other so as to provide the court with a version of the evidence which was largely agreed. I must also express my regret that this Opinion has taken longer to finalise than it ought to have done.
The central issues in this case
[7] A number of allegations of negligence were made on record. As the case progressed, some of these fell by the wayside. The live issues remaining can be summarised in this way:
(1) Was Dr Cleland negligent is failing to refer Mrs Donald ...on 28 July 2003?
(2) Was Dr Richardson negligent in failing to refer Mrs Donald ... on 4 August 2003?
(3) Was Mrs Donald suffering from DVT on (a) 28 July and/or (b) 4 August 2003?
(4) Would Mrs Donald's life have been saved had she been referred on (a) 28 July and (b) 4 August 2003?
As will be apparent, there are a number of possible permutations. It might be, for example, that the answer to question (1) and/or (2) is in the affirmative even though the answer to question (3) is in the negative; or it might be that the answers to question (1) and/or (2) are negative even though the answer to question (3) is in the affirmative. But the questions also overlap, since the answer to question (3) is likely to inform the answers to questions (1) and (2); and vice versa.
Approach to assessment of the evidence
[8] I was urged by Ms Bain QC, for the second defenders, to assess the evidence as a whole rather than approach each issue as a discrete chapter of evidence before moving on to consider other aspects. That was particularly important in this case, she argued, where the expert medical evidence from vascular surgeons was relevant not only to issues of causation, to which it was primarily directed, but also to an assessment of the probabilities of what happened at key moments. A particular example relates to the events of 28 July 2003, when Mrs Donald attended Dr Cleland at the surgery and there is a direct conflict between Mr Donald (who was there) and Dr Cleland as to the symptoms with which Mrs Donald reported. Any conclusions as to the reliability of the respective accounts given by Dr Cleland and Mr Donald must take account of the expert medical evidence about the probability or improbability of the DVT having developed by that time; and vice versa. I accept this submission which, I think, echoes the approach articulated by Sedley LJ in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 477:
"... a civil judge will not make a discrete assessment of the probable veracity of each item in the evidence; he or she will reach a conclusion on the probable factuality of an alleged event by evaluating all the evidence about it for what it is worth. Some will be so unreliable as to be worthless; some will amount to no more than straws in the wind; some will be indicative but not, by itself, probative; some may be compelling but contra-indicated by other evidence. It is only at the end point that, for want of a better yardstick, a probabilistic test is applied. ... it is fallacious to think of probability (or certainty) as a uniform criterion of fact-finding in our courts; it is no more than the final touchstone, appropriate to the nature of the issue, for testing a body of evidence of often diverse cogency."
That approach has met with approval in a number of cases, including Morton v West Lothian Council [2005] CSOH 142 and Gibson v Whyte [2007] CSOH 17. Until all the evidence has been considered, any assessment of any particular evidence relating to any particular aspect of the case which might affect or be affected by other aspects can only be provisional. I have attempted to keep this in mind when considering the evidence in this case. It arises acutely in the present case where there are a number of overlaps between the factual and expert evidence. The fact that in discussing the evidence and setting out my findings I have focused from time to time on particular episodes in the narrative does not mean that I have overlooked the potential impact on my conclusions of other evidence directed principally to a different topic.
Mrs Donald and her family
[9] It is necessary to paint a brief portrait of Mrs Donald and her family. Mrs Donald was born on 10 February 1958 and was 45 at the time of her death on 6 August 2003. She was commonly referred to, by her husband at least, as "Bernie" (short for Bernadette). She and Mr Donald met as childhood sweethearts. They married in May 1980 when Mrs Donald was 22. Soon after they married they went to live in Mauchline, Ayrshire, just above the pharmacy. They lived there for over 20 years.
[10] Mrs Donald registered with the GP practice when they moved to Mauchline. Initially she saw Dr Rawson, who was then the senior partner in the practice, but after he retired in about 1990 Mrs Donald tended to see Dr Cleland. He was her GP from then on.
[11] Mr and Mrs Donald had four daughters: Gillian (who was 21 at the time of her mother's death); Emma (16); and Sarah and Ruth (both 15). Emma, Sarah and Ruth were living at home at the material time, while Gillian was living in Catrine, a village some two and a half miles (or about five minutes drive) away. Gillian, Emma and Ruth gave evidence at the proof.
[12] It was clear from the evidence I heard that the Donald family were extremely close. Until Gillian moved out in the year before her mother died, they all lived together. In the evidence Mrs Donald was variously described as passionate about all her daughters, supportive, kind, loving, caring, generous, everything you expect a mother to be. This closeness of the family is of some importance in assessing the evidence given by Mr Donald and the three daughters who gave evidence. Although it is clear that they were sometimes kept in the dark about Mrs Donald's treatment for depression and her complaints about marital difficulties, the closeness of the family meant that both Mr Donald and the daughters could speak with familiarity and authority on a number of relevant matters.
[13] It was clear from Mr Donald's evidence that Mrs Donald was initially a vibrant, dynamic, witty and bright individual. She loved opera, concerts, ballet and cinema. However, an enormous part of her adult life was coloured by depression. When they were first married, Mrs Donald worked in a bank. She gave this up to become a home-maker for the children. For a while she took a full time job in the pharmacy above which they lived - she was not a qualified pharmacist but worked in the front of the shop - but when this impinged too much on her time with the children she went part time. This continued up until a few weeks before her death. Her depression began soon after they married, though it was not recognised as depression until some time later. Mr Donald said that the depression "evaporated" during Mrs Donald's three pregnancies, which he described as "glorious", but otherwise, as he described it, it became like living with an alcoholic - when she was "up" it was fantastic but when she was "down" she was "colder than an iceberg", in utter denial. During those periods of depression she would blame Mr Donald for just about everything. She had treatment for depression - the GP records contain many entries about this - though Mr Donald would not always know about it at the time. (The records also make reference from time to time to reports from Mrs Donald of marital difficulties, but Mr Donald was unaware of her having told her GP about such difficulties and nothing turns on this in any event.)
[14] Mr Donald explained that Mrs Donald was in denial and embarrassed about her depression. She struggled to cope with it by...
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