Melissa Malone Against Greater Glasgow And Clyde Health Board
| Jurisdiction | Scotland |
| Judge | Lord Brailsford |
| Neutral Citation | [2017] CSOH 31 |
| Year | 2017 |
| Date | 24 February 2017 |
| Docket Number | A377/14 |
| Court | Court of Session |
| Published date | 24 February 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 31
A377/14
OPINION OF LORD BRAILSFORD
In the cause
MELISSA MALONE
Pursuer
against
GREATER GLASGOW AND CLYDE HEALTH BOARD
Defenders
Pursuer: Clancy QC, McConnell; Drummond Miller LLP
Defenders: Kinroy QC, Khurana; NHS Scotland Central Legal Office
24 February 2017
[1] In this action the pursuer seeks damages in respect of alleged clinical negligence on the part of a consultant haematologist employed by the defenders.
[2] Proof was heard in the case over 10 days between 10 May and 2 June 2016. The proof was confined to issues of liability, the parties having reached agreement in relation to quantum in the event of a finding of liability on the part of the defenders[1].
[3] The pursuer gave evidence on her own behalf. In addition evidence was adduced by the pursuer from five clinicians involved in her care in 2002/3: Dr Mark Drummond, Dr Anne Parker, Dr Grant McQuaker, Dr Andrew Seaton and Dr Smith. The pursuer further adduced opinion evidence from two experts, Dr Barry Valance, consultant physician and cardiologist, Ross Hall Hospital, Glasgow and Dr H W Habboush, consultant haematologist, Royal Glamorgan Hospital, Mid Glamorgan. The defenders led evidence from Mrs Kate Blacklock. Expert opinion evidence was adduced on behalf of the defenders from Dr Peter Bloomfield, consultant cardiologist, Royal Infirmary of Edinburgh, Dr Dominic Culligan, a consultant haematologist and Dr Jane McLennan, a consultant psychiatrist.
Overview
[4] It is possible and, given the relatively complicated factual background, probably helpful to state an overview of the case.
[5] In 2001-2 the pursuer, then aged 25, consulted her GP complaining of a number of non-specific symptoms. The GP performed a number of tests and ascertained that the pursuer was anaemic. He was unable to determine the cause of the pursuer’s anaemia and therefore in February 2002 the GP referred her to the Haematology Department of Glasgow Royal Infirmary (“GRI”) for investigation. The pursuer’s treatment in that department at GRI is the subject matter of this action and is examined in detail in my discussion of the factual evidence.
[6] The cause of the pursuer’s symptomology was, as a matter of fact, an atrial myxoma. An atrial myxoma is a rare, non‑malignant tumour of the heart. Whilst atrial myxoma are benign they grow and pieces can break off the tumour and cause a stroke or embolus. Atrial myxoma will be detected if a sufferer undergoes an echocardiogram (“ECG”). As part of the investigation into the cause of the pursuer’s anaemia an ECG was instructed by a consultant in the Haematology Department of GRI in August 2002. The purpose of the clinician when instructing the ECG was to exclude the possibility that the pursuer was suffering from sub-acute endocarditis (“SBE”), an infective disease. The pursuer failed to attend the appointment for an ECG. No case of failure to diagnose atrial myxoma is pled in the current action but it was common ground between the parties that had the ECG instructed in August 2002 been performed the pursuer’s atrial myxoma would have been detected, treatment given and she would thereafter have avoided a stroke she suffered on 27 October 2006.
[7] The complaints in the present case arise out of the management of the pursuer’s care in the Department of Haematology, GRI in 2002-3, the clinician whose actions are criticised being Dr Grant McQuaker, a consultant in that department.
[8] Dr McQuaker is alleged to have fallen below the standard required of him on two separate instances, one in 2002 and the other in 2003. In respect of the first ground it is alleged that Dr McQuaker failed to exercise the skill and care of an ordinarily competent consultant haematologist acting with ordinary skill and care by discharging the pursuer from his haematology clinic on 9 December 2002 without having obtained ECG results previously instructed. The second alleged ground of negligence was an alleged failure by Dr McQuaker to arrange to see the pursuer in May 2003 following referral from the pursuer’s general practitioner in April of the same year. A third case is pled against Dr McQuaker alleging that he failed to take reasonable care to ensure that the pursuer was aware of an alternative treatment or investigatory option, an ECG, open to her both in December 2002 and again in 2003.
Factual Evidence
[9] The pursuer gave evidence that in 2001 she had consulted her GP in relation to complaints of weight loss, excessive tiredness and discolouration of her fingers and toes. Blood tests were taken and in August 2001 she was diagnosed as being anaemic. The pursuer’s anaemia did not resolve with drug treatment prescribed by the GP and as a consequence on 15 February 2002 she was referred to the Department of Haematology at GRI for an opinion as to whether further investigation was required in order to determine the cause of her amnesia[2].
[10] The pursuer was given a series of outpatient appointments in the said department and attended appointments on 26 March 2002 when she was seen by Dr Marie Hughes[3], 23 April 2002 when she was seen by Dr Mark Drummond[4], 21 May 2002 when she was seen by Dr Fiona Cutler[5], 18 June 2002 when she was seen by Dr Grant McQuaker[6] and 26 August 2002 when she was seen by Dr Anne Parker[7]. Drs Hughes, Drummond and Cutler were specialist registrars in haematology. Drs McQuaker and Parker were consultant haematologists. It should also be noted that the pursuer was given an appointment in the department for 16 July which she failed to attend.
[11] A number of investigations were conducted on the instructions of the said clinicians in the department into the pursuer’s anaemia in the period March to August 2002. The conclusion of these investigations was that the pursuer was diagnosed as suffering from anaemia of chronic disease. Tests were conducted to ascertain the cause of this illness and a number of common infections, inflammatory diseases and malignancies were excluded. The tenor of the evidence was that by August 2002 when Dr Parker saw the pursuer the likely causes of the anaemia had been excluded and Dr Parker had reached the stage where she regarded it necessary to consider unlikely causes for the anaemia and consult with other medical specialities who might be able to offer advice into the underlying cause of the condition. Dr Parker explained this situation to the pursuer’s general practitioner in a letter dated 3 September 2002[8]. On the same date Dr Parker wrote a referral letter to Dr Seaton, a consultant in infectious diseases at Gartnaval General Hospital in Glasgow[9]. In that letter Dr Parker described the pursuer’s symptoms as known to her and the investigations which had been conducted in her department in the period March-August 2002. In relation to the state of her investigations she stated in the course of the letter:
“I have arranged for an echo to exclude occult SBE but I am really reaching the end of my investigative limits. I have sent off blood this time for CMV, EBV and toxoplasma and I note that we have not checked Brucellosis or for Lyme disease but would welcome any thoughts that you might have.”
The procedure referred to as “an echo” is an echocardiogram designed to exclude the possibility that the pursuer was suffering from SBE, a bacterial infection of the lining of the heart. In her evidence about this letter and her thoughts about the underlying cause of the pursuer’s anaemia at this stage Dr Parker stated that she was “scraping the bottom of the barrel trying to diagnose what this was”. Her expressed view was that she felt she needed to seek the help of a specialist in either infectious diseases or rheumatology. She said that a specialist in infectious diseases would have greater insight than she possessed on infectious or non-infectious diseases which might cause chronic anaemia. A rheumatologist would have greater insight into causes associated with an underlying malignancy. As between these two options her view was that she could properly have chosen either but having regard to the pursuer’s overall clinical presentation she felt that an infection was a more likely cause than a malignancy and therefore she preferred to refer to an expert in infectious diseases than to one in rheumatology.
[12] Dr Seaton saw the pursuer on 12 September 2002 and reported his findings to Dr Parker in a letter dated 13 September 2002[10]. In evidence he stated that he found no clinical grounds to suspect that the pursuer might have SBE. In his opinion the pursuer looked relatively well when she attended his clinic, a factor which he would not expect if she had been suffering from SBE. He examined her heart, and found no murmur, a sign which could be expected in any cases of SBE. As he saw no signs of that illness he took none of the steps such as prescribing antibiotics, taking blood cultures, admitting the pursuer to a ward or expediting the echocardiogram which had been ordered by Dr Parker which he would have done had he considered a diagnosis of SBE likely. In reporting his findings to Dr Parker he said that “[E]xamination today was really unremarkable…”. He concluded by stating: “I do not feel I can add very much to your already very thorough assessment of this lady. I suspect one diagnosis will not explain all the problems.” Dr Seaton also made arrangements for the pursuer to have screening for some sexually transmitted infections and indicated to Dr Parker that he had arranged to review the pursuer in his clinic in six weeks time. Dr Seaton subsequently wrote to Dr Parker on 5 December 2002[11] informing her that the pursuer did not attend for her review appointment at his clinic. In the same letter he informed Dr Parker that the tests he had carried out at his meeting with the pursuer in September had resulted in negative findings.
[13] As noted in her letter to Dr Seaton dated 3 September Dr Parker made...
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