Rowan v Steinberg
| Jurisdiction | Scotland |
| Judgment Date | 08 January 1998 |
| Date | 08 January 1998 |
| Docket Number | No 39 |
| Court | Court of Session (Outer House) |
OUTER HOUSE
Lord Marnoch
PrescriptionTimebarReparationGeneral medical practitioners allegedly negligent in not withdrawing pursuer from drug treatmentWhether continuing omissionPrescription and Limitation (Scotland) Act 1973 (cap 11), secs 6 and 17(2)(a)1
ReparationNegligenceMedical practitioners repeatedly prescribing tranquilliser over several years without attempting to withdraw pursuerTwo conflicting bodies of medical evidence as to reasonable practice in medical professionWhether defenders' expert evidence unreasonableWhether pursuer put unnecessarily at riskWhether negligence established
The pursuer sued her general medical practitioners for negligence in their repeatedly prescribing a tranquilliser, Equanil, for the pursuer after 1983 when it was alleged that the risk of dependency on the drug through long-term use became known in the medical profession. The pursuer had first been prescribed Equanil in about 1978 for anxiety and depression. The Lord Ordinary (Marnoch) found that the pursuer had become dependent on Equanil by the end of 1978; that had it been discontinued, the pursuer would not have been found to be then suffering from any mental illness; and that had a committed effort been made by the defenders to take the pursuer off Equanil, the pursuer would have ceased to be dependent on it within a short time. Both parties led evidence as to proper practice in the medical profession at the material time, the defenders' evidence being to the effect that the defenders had acted with the care reasonably to be expected of competent general medical practitioners. The defenders also stated a plea that the obligation on which the pursuer sued had prescribed.
Held (1) that the defenders' expert evidence was not unreasonable, let alone Wednesbury unreasonable, and accordingly the pursuer had failed to prove that the defenders, in not withdrawing Equanil, had been guilty of such failure as no general medical practitioner of ordinary skill would be guilty of if acting with reasonable care; (2) that in not withdrawing Equanil the defenders had not put the pursuer unnecessarily at risk because the risk of dependency had materialised by the end of 1978, long before 1983 when negligence was alleged; and (3) that the omission, if it were an omission, to take the pursuer off Equanil was a continuing one within the meaning of sec 17(2)(a) of the Prescription and Limitation (Scotland) Act 1973; and defenders assoilzied.
Mrs Christine Rowan or Kennedy brought an action of damages against her general medical practitioners for their alleged negligence in respect of her dependency on a tranquilliser, Equanil.
The cause called before the Lord Ordinary (Marnoch) for proof before answer.
Cases referred to:
Associated Provincial Picture Houses v Wednesbury CorporationELR [1948] 1 KB 223
Bolitho v City & Hackney Health Authority [1993] 4 Med LR 381
Hunter v HanleySC 1955 SC 200
Maynard v West Midlands Regional Health AuthorityWLR[1984] 1 WLR 634
Phillips v Grampian Health Board [1991] 3 Med LR 16
At advising, on 8 January 1998, the Lord Ordinary assoilzied the defenders.
Lord Marnoch's OpinionIn November 1988 the pursuer, who I understand has the benefit of legal aid, noticed an advertisement in the window of her now Glasgow solicitors, Messrs McGuire Cook & Co, which read: Drug Addiction. Are you addicted to tranquillisers? Come in and see us.
The pursuer accepted the invitation, claiming that she was dependent on the drug, Equanil, and the result, eight years later, is the proof which I have just heard in the present action for damages. That action is directed against the medical practice where the pursuer has been a patient for over 20 years but I understand that, in the interim, consideration was also given to suing the manufacturers. One unfortunate result of all this is that in the course of preparation for litigation the pursuer was shown data sheets issued by the manufacturers of the drug which referred, as do most such data sheets, to a number of possible side-effects. These, apparently, are now a cause of some concern to the pursuer, but I did not understand that any of these side-effects had up to now shown any sign of materialising in her case and nor did I understand that this particular concern formed any part of her claim for damages.
Another rather remarkable feature of the present action, as it seems to me at least, is that the pursuer to this day has remained a patient of the defenders' practice and continues, even now, to receive from that practice prescriptions for Equanil. In this connection it was suggested by counsel for the defenders, in the course of his closing submissions, that the defenders should properly be seen as having been sued as individuals rather than as a partnership. However I am quite satisfied that, while the pursuer has chosen not to include amongst the defenders the medical partnership as a separate legal persona, it is clear from the pleadings, read as a whole, that the three defenders, Dr Steinberg, Dr Steingold and Dr Wiggins are sued in their capacity as partners of the medical practice in question, with all that that entails so far as vicarious liability for the acts of each other is concerned.
As to the factual history of this matter, there is, I think, relatively little dispute between the parties. The first medical record of relevance is dated 23 March 1973, when the pursuer is noted as having complained of a weird mistiness over her eyes. Apparently this was the first occasion when she was prescribed Equanil. The pursuer was adamant that on this occasion she had seen the second defender, Dr Steingold, but Dr Steingold was equally adamant that the relevant handwriting (to be found in No 30/2 of Process at p 40) was neither his nor that of any member of the practice at that time. The suggestion made by Dr Steingold was that this was an entry written up by the pursuer's previous general practitioner. Whatever the precise position, the entry in question is dated some seven months after the birth of the pursuer's daughter on 15 August 1972, and at a time when the pursuer was pregnant with her second child, a son, born on 18 August 1973. From then until about 1976 it is, in my opinion, clear that the pursuer was quite seriously ill with depression or anxiety or a combination of the two. During this period she was prescribed a variety of drugs including Librium, Valium, Lentizol, Tryptizol, Tranxene and Sinequan, none of which appeared to have any real effect. She was also referred to two consultant psychiatrists, a Dr Carlyle and a Dr Sluglett. Dr Carlyle, in a letter dated 4 June 1973 (No 30/2 of Process, p 100) reported that her depression was marked enough to require treatment and Dr Sluglett, in a letter dated 27 January 1975 (No 30/2 of Process, p 99), reported as follows: I saw your patient at Carswell House on 24 January 1975. Since her story must be completely familiar to you, I will not go into it in any detail. The salient fact which emerges is that this change in her personality occurred as she discovered she was pregnant for the second time, when her first child was only three months old. Her fear of blindness may be in some way connected with the...
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