Jennifer McCulloch and Others v Forth Valley Health Board

[2020] CSOH 40 Lord Tyre

Introduction

This was a medical negligence action brought on behalf of the relatives of Mr Neil McCulloch who died on 07/04/2012 aged 39. It was a matter of agreement that the cause of death was cardiac tamponade [1].

Issues of Fault

The action was directed against the failures of Dr Catherine Labinjoh, Consultant Cardiologist at Forth Valley Health Board (FVHB).

The averments of fault against her were as follows:

1. That on Mr McCulloch’s second admission to FVHB she had a duty having reviewed the echocardiogram [4] performed to be aware that he had pericarditis [5] and a pericardial effusion [6] and prescribe a non-steroidal anti-inflammatory (NSAID) such as brufen.

2. That she should also have prescribed the drug colchicine [7].

3. That given what was seen on the echocardiogram at the time of the second admission, when compared to the two prior echocardiograms she had a duty to instruct a repeat echocardiogram be performed prior to discharge from hospital on the 06/04/2012.

These cases proceeded in the basis of the Hunter v Hanley [8] test of negligence. Had she not failed in her duty of care the pursuers offered to prove Mr McCulloch’s death would on balance of probabilities have been avoided.
The claimants also brought an information disclosure case based on the principles found in Montgomery v Lanarkshire Health Board [9]. The information disclosure case was based on a failure to have a discussion with Mr McCulloch when she reviewed him about his condition and the options for treatment.   
The claimants alleged that Dr Labinjoh had a duty to have a discussion about the reasonable treatment options and the risks and benefits of those options. The treatment options were paricardiocentisis, drug therapy with brufen and/or colchicine. The option of no treatment should also have been discussed and the risks and benefits of that approach. Each option had risks and benefits but the pursuers contended that it was for Mr McCulloch having weighed up the risks and benefits of the various options to choose.

The Facts – The first admission

Mr McCulloch had two admissions to hospital and there was no allegation of negligence at the court hearing in relation to the first admission but it was argued that the facts of the first admission were relevant to the assessment of what should have been done on the second admission. This was particularly so since Dr Labinjoh had reviewed him on the first admission when he was seriously unwell.
Mr McCulloch had become unwell on 23/03/2012 with severe pleuritic chest pain [10] worse with inspiration and nausea and vomiting. He attended FVHB and was assessed and had an ECG [11] which was consistent with a diagnosis of pericarditis. Sepsis was suspected and he was treated with antibiotics and fluid. A CT scan reported changes consistent with atypical pneumonia and it was also noted that there was a pericardial effusion. His condition deteriorated rapidly and he was admitted to ITU and was intubated and ventilated.

At that time there was discussion with a view to transferring him to Glasgow Royal Infirmary in case he required pericardiocentesis which is a procedure whereby a needle is inserted to drain the fluid from around the heart. There was no ability to perform this at the weekend at FVHB. However Mr McCulloch improved quickly having received a number of drugs including steroids. By 25/03/2012 a decision had been made that he did not require transfer to Glasgow. The working diagnosis at that time was pericarditis with chronic ill-defined ill health.
Dr Labinjoh was involved with him on this first admission and reviewed him on 26/03/2012. She recorded that his presentation did not fit with pericarditis and that his jugular venous pressure (JVP) [13] was not elevated which in her view made significant pericardial construction very unlikely. She did not review the echocardiogram prior to reviewing him but said she did so afterwards.
A second echocardiogram was performed on 26/03/2012 and it was noted that the pericardial effusion was small and there was normal ventricular free wall motion.
The claimants in this case were able to have all of the echocardiograms available for the court to view. The pursuer’s contended that there was a reduction in the size of the effusion between the first and second echocardiogram.
Mr McCulloch continued to improve and on 30/03/2012 he was discharged home with antibiotics with a review in 4 weeks by General Medicine with a repeat echocardiogram and chest X ray to be performed prior to that time.

The Facts – The second admission

Initially on going home Mr McCulloch appeared to be improving however within a day he deteriorated again and on 01/04/2012 at 22.22 he was re-admitted to FVHB complaining of pleuritic chest pain similar to the previous admission and he was pale, hypotensive [14] and had a tachycardia [15]. On this occasion he was admitted under the care of the General Physicians in a medical ward.

The sonographer who performed the echocardiogram concluded that there was an approximately 1.5cm pericardial effusion seen at the right heart with collapse of the freewall in late diastole [16]. All tests previously performed to ascertain a reason for the pericardial effusion were negative.

Dr Labinjoh reviewed the echocardiogram and went to see Mr McCulloch in the AAU. She stated that she was unaware that he had been discharged and re-admitted by ambulance. Her position in evidence was that she did not go to review him but to check his presentation in the context of the echocardiogram and she found him to be well and walking around the ward.
She made a note to the effect that the echocardiogram was essentially unchanged, the JVP was low, there was no palpable paradox, there was a tachycardia and she noted “all of which go against pericardial constriction” [17].
Her position was that there had been no significant change in the effusion when compared to the previous echocardiograms. She recorded that the effusion was rather small to justify the risk of aspiration against possible diagnostic utility. She stated that she was not certain where to go for a diagnosis. There had been a further ECG performed at the time of this admission. The court heard evidence on all of the ECG’s performed and their relevance. Mrs McCulloch gave evidence that when she saw her husband that day he was unwell and complaining of pain.
Dr Labinjoh did not prescribe NSAID such as brufen and her reason was that Mr McCulloch was  not in pain at the time she saw him. She said that had he complained of pain she would probably have prescribed a NSAID. She accepted she did not instruct a further echocardiogram as she said there was a management plan in place for one as an outpatient. She stated that it was not common practice in 2012 to prescribe Colchicine.
She did not return to review him and she was unable to have a discussion with any doctor on the medical ward. She did not write any instructions for management.
Mr McCulloch was reviewed on 04/04/2012 by the physicians and they now were looking for other causes of the effusion and were attempting to exclude oesophageal rupture. They ordered a CT scan. No further ECG recordings were performed and no echocardiogram was performed. The CT demonstrated a persisting small pericardial effusion. There was a plan for discharge.

Mr McCulloch was discharged on 06/04/2012 and it was noted that his wife was not happy for him to be discharged. She spent some time arguing that he was not well enough to be discharged home and this was recorded in the medical notes. She was reassured that he was improving. There was a telephone call to Dr Labinjoh who was at that time in cardiac theatre at the Royal Infirmary.
Mr McCulloch was discharged on the evening of 06/04/2012 and at that time his wife said he was unwell and complaining of chest pain and required to be taken out of hospital in a wheelchair.On 07/04/2012 the day after discharge Mr McCulloch suffered a cardiac arrest and died. It was not disputed between the parties that the cause of death was cardiac tamponade where the fluid around the heart impairs the ability of the heart to function.

Expert Evidence

The pursuer led expert evidence from Dr Andrew Flapan, Consultant Cardiologist and the defenders led expert evidence from Dr Peter Bloomfield, Consultant Cardiologist. The pursuer also led expert evidence from Dr Robin Weir, Consultant Cardiologist in particular on what was seen on the three echocardiogram’s but also on the issue of treatment with drugs for pericarditis with a pericardial effusion and how patients responded to such drugs.

Prescription of NSAID’s

Dr Bloomfield accepted that the use of NSAID’s was recommended in all the text books as the first line treatment and also that patients got better when they were prescribed. He was of the view that if a patient was not in pain there was no need to prescribe but in his view applying the professional practice test there was no breach of duty in failing to prescribe NSAID’s to Mr McCulloch when Dr Labinjohn reviewed Mr McCulloch on the second admission.

Prescription of Colchicine

Dr Flapan was of the view if Dr Labinjoh had decided not to proceed with pericardiocentesis she should have commenced both NSAID’s and colchicine, and that the side effects of the drugs were minimal and could be reduced by prescription level. It was Dr Weir’s practice to prescribe both drugs. Dr Bloomfield was of the view that it would not have been good practice to prescribe Colchicine as it could affect the liver.

Further Echocardiogram prior to discharge case

Dr Flapan was of the view that Dr Labinjohn had a duty to instruct a further echocardiogram prior to Mr McCulloch being discharged. He stated that it was important to assess what had happened to the pericardial effusion and whether it had reduced. Dr Weir was also of this view. It is worthy of note that there was a second echocardiogram in the first admission to assess the size of the effusion and whether it had reduced prior to discharge. Dr Bloomfield gave evidence that it was reasonable to discharge Mr McCulloch without a further echocardiogram and applying the professional practice test Dr Labinjoh was not negligent.

Causation – could the death have been prevented?

In Dr Flapan’s opinion treatment would have prevented the death and Dr Bloomfield was of the view that on balance of probabilities it would have made no difference at all. Evidence was led from Dr Flapan and also Dr Weir that as a fact when they had patients with pericarditis and a consequent pericardial effusion and they got better quickly when given brufen. This factual evidence was not referred to by the court in the decision.

The test of Negligence

The court applied the Hunter v Hanely test of negligence to the issues of failures to prescribe the drugs and also the failure to arrange a further echocardiogram prior to discharge. The court considered the use of the Bolitho test [18] and the famous passage from Lord Browne-Wilkinson [19].
Lord Tyre applied the test to analysis of the evidence on what Dr Labinjoh should have done on 03/04/2012 when she reviewed the third echocardiogram. He said that where the court is faced with competing expert opinion it is not open to the court to simply prefer one body of expert opinion. The court requires to analyse that opinion and determine whether it has a logical and reasonable basis.
The pursuers submitted that there were a number of reasons why the evidence of the defenders expert witness could not be accepted by the court.
The court did not reject the defender’s expert evidence that there was no requirement to prescribe either NSAID’s or colchicine prior to discharge.  Applying Bolitho principles the court in this case did reject the defender’s expert witness Dr Bloomfield as illogical and unreasonable on the basis that the echocardiogram should have been repeated prior to discharge and found that Dr Labinjoh was negligent.

Findings on Causation

Lord Tyre only addressed causation related to what would have happened if a further echocardiogram had been performed prior to discharge. Lord Tyre stated that he was unable to hold that on balance of probabilities the death would have been avoided had there been a repeat echocardiogram and the pursuers case failed. The pursuers also had an argument based on material contribution and that argument also failed.

Information Disclosure case

Lord Tyre was of the view that the question of whether there is a risk in a proposed treatment is a matter of professional judgement. He made reference to Lord Boyd’s decision in AH v Greater Glasgow Health Board [20]. He was of the view that Montgomery did not require a doctor to discuss the risks associated with a recommended course of treatment if he or she in the exercise of her professional judgement did not consider was reasonable. He considered that the Hunter v Hanley test would be applied to the issue. He recognised that Dr Labinjoh decided not to discuss the NSAID’s because she felt it was inappropriate to do so and also that she did not even consider colchicine. Lord Tyre then found that there was “accordingly, no risk in a recommended course, or reasonable alternative, to discuss with him.” [21].

Quantum

In this case it was not possible to agree awards for two of the children under s4(3)(b) of the Damages (Scotland) Act 2011 and Lord Tyre helpfully reviewed the authorities provided to him on the issue. Mr McCulloch’s daughter was 7 at the time of his death and now aged 15 and his son was 18 months and is now aged 9. Lord Tyre indicated that had the pursuers been successful he would have awarded the sum of £80,000 for each of the children in terms of the s4(3)(b) claim.

Comment

This case may be of use to Scottish lawyers on the issue of the level of damages for children in terms of s4 (3) (b) of the Damages (Scotland) Act 2011. Parties had been unable to come to agreement on the appropriate award for Mr McCulloch’s children and the court made an award based on witness statement evidence about the effect of the death on the children.
The court also was asked to consider the application of the Bolitho test [22] to the expert opinion of the defenders expert Dr Bloomfield and test whether that opinion had a logical and reasonable basis rather than simply accepting the view he expressed without any analysis.

In Scotland has been a tendency to refer to the decision in Honisz v Lothian Health Board when asking the court to scrutinise the opinion of the expert but Bolitho is a decision of the House of Lords and is the principle authority on the issue.
There were detailed submissions from all parties on how the Bolitho test should be applied. The claimant referred the court to the excellent article “Trumping Bolam: a critical legal analysis of Bolitho’s gloss” [23].
It was submitted on behalf of the claimants that there were a number of different scenarios where a court may find an expert opinion illogical and unreasonable applying the Bolitho test to the professional practice test and these included:

1. Where the opinion overlooks a clear precaution that was available to avoid the adverse outcome with reference to Huck’s v Cole [24]

2. Where there was a failure to weigh the comparative risks and benefits of the chosen course of conduct with reference to Birch v. University College London Hospital N.H.S. Foundation Trust [25]

3. Where the opinion cannot be correct when taken in the context of the whole factual evidence. In his article “Are the Courts Excessively Deferential to the Medical Profession?” [26] Lord Woolf MR has noted that the phrase, “Doctor knows best”, should now be followed by the qualifying words “if he acts reasonably and logically and gets his facts right”. Where an expert proceeds to support a doctor’s conduct in circumstances where that expert proceeds on an incorrect factual basis the expert testimony cannot be logically sustainable or defensible [27].

4. Where the opinion expressed is not internally consistent. It must make sense as a whole and no part of the opinion should contradict the other with reference to Khoo v. Gunapathy d/o Muniandy [28] and Smith v. Southampton University Hospital N.H.S. Trust [29]

5. Where the court was satisfied that the approach of a body of doctors e.g in this case to fail to prescribe Colchicine had no logical or reasonable basis on assessment of the facts of the case.

There also have been cases more recently when the courts have held that the Bolam test does not apply where there is a dispute amongst experts about a question of fact. In that situation the court requires to resolve that dispute. In Penny, Palmer and Cannon v East Kent Health Authority [30] it was said that the court required to resolve the factual question of what could be seen on the slides [31].
In this case there was an issue of what could be seen when comparing the three echocardiograms performed on Mr McCulloch. Dr Labinjoh stated in evidence that there was little difference between echocardiograms. It was submitted to the court that what could be seen on the echocardiograms was a matter of fact for the judge to decide assisted by expert evidence but was not a matter which the Hunter v Hanley professional practice test had any application.

The court also had detailed submissions on the test to be applied to information disclosure following the Supreme Court decision in Montgomery. It was submitted by those representing the claimants that the Hunter v Hanley and Bolam tests had no place in the court’s assessment of the information disclosure and specific passages from the Montgomery decision were put before the court. The court rejected this submission.
The test set down by the Supreme Court is based on the stance adopted by Lord Scarman in Sidaway [32], and Lord Woolf MR in Pearce [33] subject to the refinement made by the High Court of Australia in the case of Rogers v Whitaker [34].

“A doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.”

The test derived from Rogers v Whitaker is a two-limbed test. A risk is material if in the circumstances of the particular case a reasonable person in the patient’s position, if warned of the risk would be likely  to attach significance to it (the objective limb), or if the medical practitioner is or should reasonably be aware that the particular patient would be likely, if warned of the risk attach significance to it (the subjective limb). It was recognised that the relevance of a risk to the patient’s decision does not depend solely upon its magnitude or a medical assessment of its significance.

In Montgomery it was held that:

“…it is a non sequitur to conclude that the question of whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient is also a matter of purely professional judgement. The doctor’s advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient’s entitlement to decide on the risks to her health which she is willing to run (a decision which may be influence by non-medical considerations). Responsibility for determining the nature and extent of a person’s rights rests with the courts, not with the medical profession.”

“It follows that the analysis of the law by the majority in Sidaway is unsatisfactory, in so far as it treated the doctor’s duty to advise her patient on the risks of the proposed treatment as falling within the scope of the Bolam test…There is no reason to perpetuate the application of the Bolam test in this context any longer.” [35]

Lady Hale said that:

“Once the argument departs from purely medical considerations and involves value judgements …it becomes clear.. that the Bolam test, of conduct supported by a responsible body of medical opinion becomes quite inapposite.” [36]

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[1] Cardiac tamponade is a condition where fluid in the sac around the heart builds up causing a compression effect on the heart and this is a recognised medical emergency
[2] Bolitho v City and Hackney Health Authority [1998] AC 232
[3] [2015] UKSC 11
[4] This is a test that uses ultrasound to show how the heart muscles and valves work.
[5] This is inflammation of the pericardium, a thin two layered sac that surrounds the heart
[6] This is an abnormal collection of fluid in the pericardium
[7] This is a medication used for treating inflammation and pain
[8] 1955 S.C.200, which is the Scottish equivalent of the English Bolam test found in Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582
[9] 2015 UKSC 11
[10] The relevance of pleuritic chest pain is that this is pain on breathing in and this can be related to pericarditis although it was accepted it can also be related to other conditions
[11] This is a test used to check the heart rate, rhythm and electrical activity
[12] The right ventricle is the right sided pump of the heart
[13] This reflects pressure in the right atrium
[14] Low blood pressure
[15] Fast heart rate
[16] The claimants point on this was that this echocardiogram was similar to the first one when he was seriously ill and that the effusion had increased in size again and the right sided function of the heart was being affected by the effusion
[17] This is normally a thickened pericardium affecting the ability of the heart to function
[18] Bolitho v City and Hackney Health Authority [1998] AC 232 considered in Scotland in Honisz v Lothian Health Board 2008 SC 235
[19] 241-42, 243
[20] 2018 SLT 535
[21] Para 112
[22] Bolitho v City and Hackney Health Authority [1998] AC 232
[23] Rachel Mulheron, Cambridge Law Journal 2010, 69(3), 609-638
[24] [1993] 4 Med. L.R. 393; see also Lowe v. Havering Hospitals N.H.S. Trust (2001) 62 B.M.L.R. 69.
[25] [2008] EWHC 2237 (Q.B.), at [55] see also Kingsberry v. Greater Manchester Strategic H.A., [2005] EWHC 2253 (Q.B.), 87 B.M.L.R. 73
[26] (2001) 9 Med. L. Rev. 1, at 1
[27] See Khoo v. Gunapathy d/o Muniandy Singapore Court of Appeal [2002] 2 S.L.R. 414, at [65]-[66]
[28] [2002] 2 S.L.R. 414, at [75]
[29] [2007] EWCA Civ 387
[30] [2000] Lloyd’s Rep.Med 41
[31] See also Muller v King’s College Hospital NHS Foundation Trust [2017] EWHC 128 (QB)
[32] Sidaway v Board of Governors of the Bethlem Royal Hospital [1984] Q.B. 493
[33] Pearce v United Bristol Healthcare NHS Trust [1999] PIQR p53
[34] Rogers v Whitaker [1992] 109 A.L.R. 625
[35] Para 86
[36] Para 115

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