Reclaiming Motion By Jd Against Lothian Health Board
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord Glennie,Lord Brodie |
| Neutral Citation | [2017] CSIH 27 |
| Court | Court of Session |
| Docket Number | A270/15 |
| Published date | 28 April 2017 |
| Date | 28 April 2017 |
| Year | 2017 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2017] CSIH 27
A270/15
Lord Brodie
Lady Clark of Calton
Lord Glennie
OPINION OF LORD BRODIE
in the reclaiming motion
by
JD
Pursuer & Reclaimer
against
LOTHIAN HEALTH BOARD
Defender & Respondent
Pursuer & Reclaimer: Party
Defender & Respondent: Pugh; NHS Scotland Central Legal Office
28 April 2017
Introduction
[1] This is a reclaiming motion (appeal) against an interlocutor of Judge R A Dunlop QC, sitting as a temporary Lord Ordinary, dismissing the action at the instance of the pursuer, JD, against the defender, Lothian Health Board. The interlocutor is dated 11 March 2016. The pursuer appeared before this court as a party litigant as has been the case throughout his conduct of the litigation. The defender was represented by Mr Pugh, Advocate.
[2] The pursuer sues for damages in the sum of £125,000 by reason of what the pursuer avers to have been a negligent misdiagnosis of late onset hypogonadotrophic hypogonadism and a consequential or associated failure to investigate further with a view to relating the pursuer’s condition to his childhood asthma. The diagnosis was intimated to the pursuer by a consultant endocrinologist, Dr Stuart Ritchie, at a hospital appointment on 24 January 2013. The summons in the action passed the signet on 2 April 2015.
[3] Although this is a personal injury action to which the procedure under Chapter 43 of the Rules of the Court of Session would otherwise apply, authority was granted to have the action withdrawn from the personal injuries procedure and to proceed as an ordinary action, on the basis that there were exceptional circumstances such as would justify the granting of a motion under rule 43.5 (1). As an action raised after 1 May 2013 it is subject to the case management provisions of Chapter 42A of the Rules. As is provided for by rule 42A.2, the cause was appointed to a hearing on the By Order (Adjustment) Roll before Lord Armstrong on 28 October 2015. At that hearing Lord Armstrong appointed the cause to the Procedure Roll for debate on the defender’s preliminary pleas. Following further procedure which included refusal, on 17 November 2015 and again on 8 December 2015, of the pursuer’s motions for a sist, and further adjustment of the pleadings in terms of interlocutor dated 8 December 2015, the action came before the temporary Lord Ordinary, on 19 February 2016, for the debate which had been ordered by Lord Armstrong. It is the interlocutor of the temporary Lord Ordinary issued following that debate which is the subject of the reclaiming motion.
The debate before the Lord Ordinary
[4] The Lord Ordinary records his view at paragraph [2] of his opinion of 11 March 2016 that, as might be expected where they had not been prepared by a person accustomed to drafting pleadings, the pursuer’s averments contained much extraneous and irrelevant material. The Lord Ordinary further records that the pursuer had readily conceded that that was so and that the pursuer “was content for large tracts of the condescendence to be excised in the event that the action was allowed to continue further”. It would appear from what is stated at paragraph 4 in the defender’s note of argument that the pursuer’s concession followed from the Lord Ordinary having spent time discussing the purpose of the hearing on Procedure Roll with the pursuer. In the course of that discussion the pursuer had explained that his case was restricted to one of misdiagnosis. That is consistent with what appears in paragraph [7] of the Lord Ordinary’s opinion with the qualification, if it be a qualification, that the Lord Ordinary also understood the pursuer to aver that Dr Ritchie had been negligent in not investigating alternative causes for the pursuer’s low levels of testosterone. It is also consistent with the “proposed note of deletions to reflect concession that case relates to ‘misdiagnosis’ by Dr Ritchie” prepared by the Lord Ordinary and included in the court process. By way of amplification of what appears in paragraph [2] of the Lord Ordinary’s opinion, Mr Pugh, who had appeared for the defender before the Lord Ordinary, explained that at the debate the pursuer had intimated that he was not insisting in (in other words not seeking proof of) what Mr Pugh described as the “superfluous” averments and that, with Mr Pugh’s encouragement, the Lord Ordinary had taken a note of what was identified as extraneous and irrelevant with a view to the debate proceeding as a discussion of the case as directed against Dr Ritchie and, in the event of the Lord Ordinary allowing the case to go to proof, the pursuer thereafter amending his pleadings by deletion of these identified averments.
[5] The averments that the pursuer agreed to delete should proof be allowed, as noted by the Lord Ordinary (“to reflect concession that the case relates to ‘misdiagnosis’”), are: all of Article 8 of condescendence; page 17E - “as more astute people than the pursuer can manipulate said spoken matters”; page 18 – “The pursuer found that matters of complaint” through to “be investigated at page 18D; all of Article 11; all of Article 12 except “Explained and averred that Dr Gibb’s letter…” at page 23F; page 25 – from “The pursuer then contacted …” at page 25A through to the end of the article; page 27D “He had never before”; page 38E – “This was clearly a message …” through to “blatantly misdiagnosed him”; page 41B-C – “When NHS Lothian …” through to “… could be done for the pursuer”; page 41 onwards – any reference to “Edinburgh Endocrinologists” to be replaced with “Dr Ritchie”; page 42B – “It was negligent of NHS Lothian …”through to “… in this case however” at page 41D-E; all of Article 21.
[6] The Lord Ordinary records at paragraph [23] of his opinion that, by way of further explanation of what his case was, the pursuer stated that the only causal connection which he sought to establish was that he had suffered the emotional consequences described in his pleadings as a result of the misdiagnosis.
[7] With that preliminary to the debate it was argued on behalf of the defender that the pursuer’s case was irrelevant for three reasons. First, in what was said to be a case of clinical negligence the pursuer had failed to plead such a case by reference to the appropriate legal test: that the clinician who was being blamed had done something or failed to do something which no clinician of ordinary skill acting with ordinary care would have done or failed to do (Hunter v Hanley 1955 SC 200 at 204-205). Second, there were no averments which properly addressed the question of causation. The pursuer did not offer to prove what the cause of his low level of testosterone was. Thus, even if there was a duty to investigate the question of his asthma, a failure to do so led nowhere without averments that but for that failure the outcome would have been any different than what it was. Moreover, Dr Ritchie had, on 24 January 2013, offered testosterone treatment which is the treatment that the pursuer is now receiving and which has alleviated his symptoms. Third, the only damage averred by the pursuer was of the nature of emotional upset. In the absence of physical injury, merely emotional consequences short of psychiatric injury are insufficient to allow recovery of damages (Rorrison v West Lothian College 1999 Rep LR 102).
[8] The Lord Ordinary upheld the first and third arguments advanced on behalf of the defender and accordingly dismissed the action as irrelevant.
Grounds of appeal
[9] The pursuer has now appealed that decision. His grounds of appeal state that an expert in endocrinology, Dr Richard Quinton, had, on 7 November 2013, established that he did not have any type of hypogonadism and that Dr Quinton had dismissed and critiqued the diagnosis of late onset hypogonadotrophic hypogonadism. Dr Quinton has confirmed in writing that he is more than willing to appear as a witness in the case. It was erroneous to have dismissed what was a fact-based case on the basis of Dr Quinton not being the independent medical witness that he clearly is. Having a relevant independent medical witness clearly meets the Hunter v Hanley test. It was negligent of the NHS Lothian Endocrinologists to fail to investigate the pursuer’s childhood asthma which is generally known to cause hormonal failure. The case should be allowed to go to proof. Were the pursuer’s case not allowed to go forward to proof his human rights and particularly his rights which are guaranteed by Article 6 of the European Convention on Human Rights would be contravened.
Procedural hearing
[10] It would appear that the pursuer thought better of what he had agreed with the Lord Ordinary at the Procedure Roll debate. On 13 July 2016 there was a Procedural Hearing in relation to the reclaiming motion before Lord Drummond Young. The minute of proceedings records that the pursuer stated that he had felt “pressganged” into making changes to his pleadings at the Procedure Roll debate and that he wished to present the motion for review of the Lord Ordinary’s interlocutor of 11 March 2016 on the basis of the original pleadings. Lord Drummond Young is recorded as advising that he would allow the version of the pleadings contained in the reclaiming print (that is the pleadings in their original state without any deletions) to be considered at the Summar Roll hearing (the appeal hearing).
The pursuer’s case as set out in the Closed Record
[11] The pursuer’s pleadings are extensive. They disclose a number of respects in which the pursuer has been dissatisfied with the treatment and care he has received from the defender and more than one general practitioner, the steps he has taken to complain about this, and his dissatisfaction with different complaints’ procedures. I would agree with the Lord Ordinary’s description of much of what is pled by the pursuer as being extraneous to his case of negligent misdiagnosis and failure to...
To continue reading
Request your trial
-
Cheyne v Alfred Cheyne Engineering Ltd
...CSIH 19; 2017 SLT 376 Hepburn v Royal Alexandra Hospital NHS Trust [2010] CSIH 71; 2011 SC 20; 2010 SLT 1071 JD v Lothian Health Board [2017] CSIH 27; 2018 SCLR 1; 2017 GWD 15-234 Jamieson v Jamieson 1952 SC (HL) 44; 1952 SLT 257; [1952] AC 525; [1952] 1 All ER 875; [1952] 1 TLR 833; 116 JP......
-
The Ball's In Your Court
...to seek assertive case management of complex negligence claims, following Lord Glennie's comments in JD v Lothian Health Board [2017] CSIH 27. JD, a party litigant, sued Lothian Health Board in the Court of Session. He alleged his consultant negligently misdiagnosed him with hypogonadotroph......