Hilda Jean Ferguson V. David Herd
| Jurisdiction | Scotland |
| Judge | Sheriff Principal Sir Stephen S.T. Young |
| Court | Sheriff Court |
| Date | 04 February 2003 |
| Docket Number | A701/99 |
| Published date | 05 February 2003 |
SHERIFFDOM OF GRAMPIAN HIGHLAND AND ISLANDS AT INVERNESS
A701/99
| JUDGEMENT of SHERIFF PRINCIPAL SIR STEPHEN S T YOUNG Bt QC | ||
| in the cause | ||
| HILDA JEAN FERGUSON | ||
| Pursuer and Appellant | ||
| against | ||
| DAVID HERD | ||
| First Defender and Respondent | ||
| and | ||
| HIGHLAND ACUTE HOSPITALS NHS TRUST (formerly RAIGMORE HOSPITAL NHS TRUST) | ||
| Second Defenders and Respondents |
Act: Mr Arthurson, advocate, instructed by Anderson Shaw & Gilbert, Inverness
Alt: Mr MacLean, advocate, instructed by MacNeill & Critchley, Inverness
Inverness: 4th February 2003
The Sheriff Principal, having resumed consideration of the cause, sustains the appeal and recalls the interlocutor of the sheriff dated 12th February 2002; excludes from probation the averment in article 3 of the condescendence which reads: "It was the second defenders' duty to take reasonable care for the safety of patients under their care, including the pursuer, and not to expose them to unnecessary risk of injury"; quoad ultra before answer allows parties a proof of their respective averments and appoints the proof to proceed on a date to be afterwards fixed; certifies the appeal as suitable for the employment by both the pursuer and first and second defenders of junior counsel; reserves meantime all questions of expenses both before the sheriff and on appeal and appoints parties to be heard thereon on Wednesday 12th February 2003 at 2.00 pm.
Note
- In this case the pursuer and appellant was referred to Raigmore Hospital, Inverness, by her general practitioner and subsequently admitted for an operation known as a laparoscopic sterilisation. The hospital is operated by the second defenders and respondents and staffed by their employees, one of whom was at the material time the first defender and respondent. He was a consultant gynaecologist at the hospital and it is admitted that the second defenders are responsible for his actings in the course of his employment with them.
- In a nutshell the pursuer's case is that various things went wrong before, during and after the operation on account of the fault and negligence of the first defender and she now seeks payment from him and the second defenders of the sum of £60,000 to compensate her for the loss, injury and damage said to have been sustained by her as a result of the first defender's fault and negligence.
- The first and second defenders tabled a general plea directed to the relevancy and specification of the pursuer's averments, and after a debate the sheriff by interlocutor dated
12th February 2002 sustained this plea and dismissed the cause. Subsequently by interlocutor dated 27th February 2002 he granted the first and second defenders' unopposed motion for the expenses of the cause as the same might subsequently be taxed. - On 7th March 2002 a note of appeal was lodged on behalf of the pursuer in which it was stated that she appealed on the following grounds:-
- At page 26 of his judgement the sheriff referred to certain of the pursuer's averments in article 2 of the condescendence as being "scattered like confetti", and it is certainly true that, at first blush, it is not easy to discern from the pursuer's pleadings exactly what it is that she maintains that the first defender did wrong. But in the course of his submissions counsel for the pursuer helpfully sought to disentangle the various strands in her case, and it may be of assistance to set out at length the averments in articles 2 and 3 which are said to support each of these various strands. As counsel explained, these fall into three separate time frames, namely (a) before surgery, (b) during surgery, and (c) after surgery.
- In the first stage counsel explained that there were two complaints against the first defender. Firstly, the pursuer should have been warned of the risks inherent in the operation which she was to undergo. Thus in article 2 she avers: "She should have been warned by the defenders of the risk of organ damage during the operation and from having a laparotomy, which was not done". Article 3 begins with some fairly standard averments, and then the pursuer avers: "It was the duty of the first defender to provide the pursuer with the standard of care to be expected of an ordinarily competent surgeon gynaecologist exercising ordinary skill and care". Under reference to this first complaint she then avers: "It was his duty, if acting with ordinary competence, to warn the pursuer of the risk of organ damage during the course of the operation and from having a laparotomy. It was his duty if acting with ordinary competence given the pursuer's age, weight and height to consider whether there were other more suitable methods of contraception which were available to the pursuer".
- The pursuer's second complaint at the first stage is, in short, to the effect that the operation should not have been performed at all. Thus at page 2 of the closed record in article 2 she avers: "The pursuer was 40 years of age, weighing 78.5kg (12st 4lbs) and was 1.5m in height
(4ft 11in). The pursuer was above average weight. There were other methods of contraception which were available to the pursuer, such as by the administration of progestogenic injections or the insertion of a coil. Such other methods of contraception would have been suitable for the pursuer but were not offered to her by the first defender. Although the pursuer requested a sterilisation, the first defender had to make a clinical judgement as to whether in her particular case it was appropriate to perform such an operation on her given her age, the extent of her obesity and given that other methods of contraception were available. No steps were taken by the first defender to postpone the operation, were he intending to carry it out, until the pursuer had lost weight. Had the operation been postponed until the pursuer was about two stones in weight lighter, the operation would have been easier to perform because the difficulties presented by the pursuer's weight would have been reduced. In the circumstances of the pursuer's case given her age, height and weight no ordinarily competent consultant gynaecologist would have proceeded to offer her a laparoscopic sterilisation without first offering her alternative methods of contraception or delaying such surgery until the pursuer had lost weight". Then on page 3, still in article 2, the pursuer avers: "In the present case, given the pursuer's weight and the use of laparoscopy to carry out the operation, there was a risk that complications would occur during the surgery, such as damage to the bowel in inserting the trocar". And in article 3 counsel drew attention to the averment already quoted, namely: "It was his duty if acting with ordinary competence given the pursuer's age, weight and height to consider whether there were other more suitable methods of contraception which were available to the pursuer". - In the second stage counsel explained that there were three complaints against the first defender. The first of these arose from the difficulty in vision which was experienced by the first defender in the course of the operation. The pursuer describes in article 2 how, when the operation was performed, 4.5 litres of CO2 gas were inserted into her abdomen. She then says that, while the placement of the first trocar was straightforward, insertion of the second trocar was difficult due to her weight and tenting of the peritoneum, requiring three attempts. She also says that maintenance of her abdominal distension would have been difficult due to her obesity. She then avers: "The difficulty in maintaining the abdominal distension due to the obesity of the pursuer would have obscured the vision of the first defender in carrying out the operation". These averments are supported by the averments of breach of duty in article 3 which are, as counsel explained, to the effect that the first defender should not have kept going with the operation when he found that he could not see properly into the second insertion into the pursuer's abdomen. Thus at page 7 in article 3 the pursuer avers: "It was his duty, if acting with ordinary competence, to insert the second port under direct vision, in order to avoid damage to the bowel in so doing and in order to be aware of such damage should it occur. It was his duty, if acting with ordinary competence, having encountered difficulties with insertion of the second trocar and finding his vision of the insertion site and path obstructed, to abandon the laparoscopic sterilisation and convert to an open laparotomy, to which the pursuer had consented prior to commencement of said laparoscopy ...... He knew or ought to have known that failure to see the trocar being inserted would increase the risk of injury to the bowel ...... No ordinarily competent surgeon gynaecologist exercising ordinary skill and care would have proceeded with the laparoscopy if it was not possible to see the second port being inserted".
- The pursuer's second complaint against the first defender during the operation itself was to the effect that he had failed to notice that he had perforated her bowel. She avers that he did so by making a hole in the greater omentum passing down to a hole in the anterior aspect of the sigmoid loop, and she also believes and avers that this damage occurred when the first defender was attempting to insert the second trocar. She then avers: "No steps were taken by the first...
The pursuer has averred sufficiently fully and relevantly the facts leading to pursuer's injury, the practice of ordinarily competent surgeons in the field of obstetrics and gynaecology and the manner in which, through his failure to meet the standards of said practice, the first defender caused pursuer's said injuries. The sheriff has accordingly erred in law in sustaining the first plea-in-law for the defenders, finding the pursuer's averments to be irrelevant, and dismissing the cause.
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