Honisz v Lothian Health Board
| Jurisdiction | Scotland |
| Judgment Date | 10 February 2006 |
| Docket Number | No 19 |
| Date | 10 February 2006 |
| Court | Court of Session (Outer House) |
Court of Session Outer House
Lord Hodge
Reparation - Personal injury - Medical negligence - Dispute between experts - Test to be applied
The pursuer repeatedly injured his knees playing football and required medical treatment. On 15 November 1993 he suffered a further injury to his knee and was treated at the Royal Infirmary in Edinburgh. He raised an action alleging negligence on the part of medical staff at the infirmary in their treatment of him between 16 and 20 November 1993. He led expert evidence that the consultants responsible for his care had been negligent in not giving him prophylactic antibiotics either before or during the operation on 17 November 1993; that the consultant or senior registrar had negligently authorised his discharge on 19 November 1993; and that doctors had missed opportunities to identify the infection of the knee on his readmission on 19 and 20 November 1993. The defenders led expert evidence to refute these criticisms. The parties were also in dispute regarding the proper approach for the court to take to the evidence of the experts led by the defenders that they would have adopted the same practices as those adopted by the consultants and senior registrars against whom negligence was alleged.
Held that: (1) as a general rule, where there were two opposing schools of thought among the relevant group of responsible medical practitioners as to the appropriateness of a particular practice, it was not the function of the court to prefer one school over the other; but the court did not defer to the opinion of the relevant professionals to the extent that, if a defender led evidence that other responsible professionals among the relevant group of medical practitioners would have done what the impugned medical practitioner did, the judge must in all cases conclude that there has been no negligence; this was because in exceptional cases the court might conclude that a practice which responsible medical practitioners had perpetuated did not stand up to rational analysis; it would normally require compelling expert evidence to demonstrate that an opinion by another medical expert was one which that other expert could not have held if he had taken care to analyse the basis of the practice; and where experts had applied their minds to the comparative risks and benefits of a course of action and reached a defensible conclusion, the court would have no basis for rejecting their view and concluding that the pursuer has proved negligence (para 39); (2) the consultants acted reasonably in deciding not to administer prophylactic antibiotics before or during the arthroscopy, the senior registrar was not negligent in authorising the pursuer's discharge, and there was no negligence in the failure to detect the infection on the pursuer's readmission (paras 41-44); and defenders assoilzied.
Hunter v HanleySC 1955 SC 200 applied
Maynard v West Midlands Regional Health AuthorityWLR [1984] 1 WLR 634 applied
Bolitho v City and Hackney Health AuthorityELR [1998] AC 232 applied
Charles Honisz brought an action of reparation in the Court of Session seeking damages from Lothian Health Board and the Royal Infirmary of Edinburgh National Health Trust in respect of alleged medical negligence. The summons was signetted in November 1996. On 1 October 1997 the court allowed a proof before answer. A six-day diet of proof commencing on 27 October 1998 did not proceed. The cause called before the Lord Ordinary for a proof before answer on 26 to 28 April, 3 to 6 May and 15 to 18 November 2005.
The full circumstances are adequately set forth in the opinion of the Lord Ordinary (Hodge).
Cases referred to:
Bolam v Friern Hospital Management CommitteeWLRUNK [1957] 1 WLR 582; [1957] 2 All ER 118
Bolitho v City and Hackney Health AuthorityELRWLRUNK [1998] AC 232; [1997] 3 WLR 1151; [1997] 4 All ER 771
Gordon v Wilson 1992 SLT 849; [1992] 3 Med LR 401
Hucks v Cole [1993] 4 Med LR 393
Hunter v HanleySC 1955 SC 200; 1955 SLT 213
King v Carron Phoenix Ltd 1999 Rep LR 51
MacShannon v Ailsa Perth Shipbuilders LtdUNK 1994 SLT 500; 1993 SCLR 818
Maynard v West Midlands Regional Health AuthorityWLRUNK [1984] 1 WLR 634; [1985] 1 All ER 635; (1984) 81 LSG 1926
Peach and anr v ChalmersUNK 1992 SCLR 423
Sidaway v Board of Governors of the Bethlem Royal HospitalELRWLRUNK [1985] AC 871; [1985] 2 WLR 480; [1985] 1 All ER 643
Walledge v Brown 1996 SLT 95
Whitehouse v JordanWLRUNK [1981] 1 WLR 246; [1981] 1 All ER 267; (1981) 125 SJ 167
Young v Scottish Coal (Deep Mining) Co Ltd 2002 SLT 1215; 2001 Rep LR 107
Textbooks etc. referred to:
Armstrong, RW, Bolding, F, and Joseph, R, "Septic Arthritis Following Arthroscopy: Clinical symptoms and analysis of risk factors" (1992) 8 Arthroscopy: The Journal of Arthroscopy and Related Surgery 213-223 (Elsevier Science/Arthroscopy Association of North America and International Society of Arthroscopy, Knee Surgery and Orthopaedic Sports Medicine)
DeLee, JC, "Complications of Arthroscopy and Arthroscopic Surgery: Results of a national survey" (1985) 4 Arthroscopy: The Journal of Arthroscopy and Related Surgery 214-220 (Elsevier Science/Arthroscopy Association of North America and International Society of Arthroscopy, Knee Surgery and Orthopaedic Sports Medicine)
Epps, CH, Complications in Orthopaedic Surgery (3rd ed, Lippincott, Williams & Wilkins, Philedelphia, 1994)
Judicial Studies Board, Guidelines for the Assessment of General Damages in Personal Injury Cases (7th Bell et al ed, Oxford University Press, Oxford, 2004), pp 49, 50
Noble, J, Ilango, B, and Obeid, M, "Complications of Arthroscopy of the Knee" (1998) 5 The Knee 1-8 (Elsevier Science/British Association for Surgery of the Knee and Australian Knee Society)
At advising, on 10 February 2006-
Lord Hodge- [1] The pursuer is 28 years old. This action concerns events in 1993 when he was 16 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.
[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 the University of Edinburgh, 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 10:45 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 17:00 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 10 milligrams of morphine at 15:30 hours and 75 milligrams of a pain-relieving drug, Voltarol, at 19:15 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...
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