[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Muir v Grampian Health Board [2000] ScotCS 73 (17 March 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/73.html Cite as: [2000] ScotCS 73

[New search] [Help]

[1] 12 June 1991 started like any other day in the Muir household at Bridge of Don, Aberdeen. Christopher Muir and his wife, Christian, got up, had a cigarette and some coffee and Mr Muir left for work at about 7.30 a.m. There was no indication then of any of the problems which were to arise. The two children, Karen, aged 14, and Iain, aged 6, were still in bed. Mr Muir arrived at his work in Altens shortly before 8.00 a.m. When he got there Karen was on the telephone to say that Mrs Muir had collapsed. He went back home immediately. Karen had been having breakfast when she heard her mother call her. She went up to the bedroom and found her lying on the bed in a state of collapse. She was pale and hot and having difficulty in breathing. She was very faint and weak. She asked Karen to telephone her parents, who lived on the other side of the road, but not the doctor. Mrs Muir's mother, however, telephoned for the doctor.

[2] When Mr Muir got home at about 8.15 a.m. his mother-in-law was with his wife in the bedroom. His wife was drained of colour and seemed unconscious. She was complaining of pains in her arms and chest. An ambulance was called for before the doctor arrived. Dr McKay arrived at about 8.40 a.m. He was not Mrs Muir's normal general practitioner. Indeed, he had not dealt with her before, although her parents were patients of his. Her normal general practitioner was his partner, Dr Anderson. Dr McKay's records have since been destroyed but he remembered the events. When he arrived Mrs Muir was in bed. She was distressed and for that reason she could not say very much. She seemed to be having chest pain. He was unsure what the cause was but decided to admit her to hospital with a possible diagnosis of heart attack. Having made that decision the hospital was bound to admit her. He telephoned the Coronary Care Unit at Aberdeen Royal Infirmary. He told them that Mrs Muir was having severe chest pain. Normally he would write a letter which would go with the patient in the ambulance but he was not sure if in the urgency of the situation he did so on the this occasion. He thought he did but in the hospital nursing notes it is recorded that no letter was sent. The senior house officer (Dr Richardson) could not remember seeing one. Certainly there was none in the hospital records made available at the proof. In these circumstances it cannot be affirmed that he did write such a letter. Dr McKay gave Mrs Muir an injection of nalbuphine, which is a powerful analgesic used instead of morphine. He could not remember whether and, if so, to what extent it had been effective. The nursing staff at the hospital knew that Dr McKay had given an analgesic; that is recorded in the nursing notes, although it is not said what analgesic it was. There was no evidence that that information was passed on to the medical staff, although Dr Jennings would have been surprised if analgesia had not been given, since the deceased had had severe pain.

[3] Mrs Muir was taken by ambulance to the Coronary Care Unit at Aberdeen Royal Infirmary. Mr Muir followed in a car. He went to the administration office to give her personal details and then went to see her in the Coronary Care Unit. She was in bed then and being monitored. She was still distressed but was no longer in pain - it was now 10.45 a.m. She said she had experienced a queer feeling coming over her with tightening in her chest over the heart and pain in her left arm. Mr Muir stayed with her for about an hour and then left so that her parents could see her. He went home.

[4] On her admission an electrocardiogram was immediately taken, as is usual with such patients. The nurses did this. The senior house officer who saw Mrs Muir shortly thereafter was Dr Jeremy Richardson. As senior house officer he would normally receive the telephone call from the general practitioner saying that the patient was coming. In this case, however, he did not remember any such contact. Dr McKay did not say who it was that he had spoken to. It is therefore not possible to determine who it was that he spoke to when he telephoned the hospital. In any event, Dr Richardson saw Mrs Muir at 9.15 a.m. She was in bed then and being monitored. By this time he had already seen three ECGs, all timed at 8.53 a.m. They were normal. Dr Richardson took a history from Mrs Muir which he noted as follows:

He then noted Mrs Muir's previous medical history, family history and social history. The only items of significance from a cardiac point of view were a strong family history on her father's side of ischaemic heart disease and that she smoked 15 cigarettes a day. Dr Richardson then carried out a thorough examination of her. He noted that she was "anxious ++". She was very upset and crying when he first saw her. There was no evidence of myocardial infarction on the ECG but he asked that it should be repeated in one hour. He also asked for a full blood count, biochemical screening, enzyme tests and a chest x-ray. The nurses would see to all this. Dr Richardson was with Mrs Muir for about 30-45 minutes and was noting his findings as he went along. The notes then went on to a trolley in the ward where all such notes were kept.

[5] In fact the repeat ECG was not done until just after midday. Why there was that delay is not known. Although the opposite is recorded in the nursing notes, there was a change on the trace at that time. The T-waves in leads V1 and V2 were now inverted and those in V3 flat. Dr Richardson was shown the trace by the nursing staff. He recognised that there was a change and showed it to the consultant cardiologist in charge, Dr Jennings. No particular action was taken at that time. On his ward round at about 4.00 p.m. Dr Jennings saw Mrs Muir. Dr Richardson was with him. So was a member of the nursing staff. Before he saw her he read and considered Dr Richardson's notes of the history and his examination. He was aware of the ECG traces taken at 8.53 a.m. The change in the trace taken at midday had also been drawn to his attention. He regarded it as a slight change which could be due to many causes, only one of which was cardiac disease. He considered that the change was not compatible with acute myocardial infarction. Dr Jennings took a history from Mrs Muir and examined her. When he saw her she was calm and seemed well. Her vital signs - pulse and blood pressure - were normal. She conversed with Dr Jennings in an articulate way. Nothing that Dr Jennings got from his examination was materially different from what Dr Richardson had found in the morning. Exercising his clinical judgment Dr Jennings came to the view that Mrs Muir's symptoms were not cardiac in origin but were oesophageal. In order, however, to cover the outside chance that there had been a silent myocardial infarction at some earlier time prior to the event which led to Mrs Muir's admission he asked for the enzyme tests which had been done to be checked. He knew that such tests, based on a blood sample taken shortly after the patient's admission, could not reveal whether the pain which had led to her admission was due to a myocardial infarction; it was too soon for that. But if the enzyme tests were normal he was satisfied that Mrs Muir could go home. He prescribed maalox, which is an antacid. He noted all this in the hospital records. Dr Richardson telephoned the laboratory to get the results of the enzyme tests. They were normal. Dr Richardson then wrote the discharge note addressed to Dr Anderson, the general practitioner. In it he wrote, inter alia: "No ECG changes". By this he meant no changes suggestive or diagnostic of myocardial infarction. The diagnosis was given as oesophageal spasm. A fuller, typed report to the general practitioner, giving more detail, would normally have followed later.

[6] When Mr Muir was told that his wife could come home he went back to the Royal Infirmary. She was still in bed and was anxious to come home. He explained in evidence that she did not like hospitals. Dr Richardson told him that the problem was not heart related but was an oesophageal spasm. On the way home they went and got the maalox which had been prescribed. They got home at about 6.00 p.m. Mr Muir got his wife some tea and made her comfortable. She went to bed early, at about 7.00 p.m. Before that she complained of tightness in her chest. An hour or so later she complained of pain in her chest and he reported this to Dr Anderson by telephone. Dr Anderson told him to let him know if there was any further change. Mrs Muir settled for a while but at about 11.00 p.m. complained again, more strongly this time, of chest pain. Mr Muir telephoned Dr Anderson and told him. Dr Anderson came out and examined her. He told Mr Muir that it might be a few days before the pain disappeared. Shortly thereafter Mr Muir retired to bed. At about 4.30 a.m. his wife woke him complaining again of severe pains in the chest. She said she could not bear it. Mr Muir telephoned Dr Anderson and Dr Anderson came out again immediately. By the time he arrived Mrs Muir's condition had worsened. She became hysterical and then lapsed into unconsciousness. Dr Anderson told Mr Muir to call for an ambulance, which he did. In the meantime Dr Anderson started heart massage on Mrs Muir but got no response. When the ambulance arrived defibrillation was attempted but again without response. Mrs Muir was taken by ambulance to the Accident and Emergency Department in Aberdeen Royal Infirmary. From there she was taken to theatre but all attempts at resuscitation failed. She was pronounced dead at 5.50 a.m. Mrs Muir (hereinafter referred to as "the deceased") was aged 35 years.

[7] Post mortem examination of the deceased's body revealed that the anterior descending branch of the left coronary artery was severely atheromatous over the proximal 6 cms with 70% occlusion of the lumen and an e-centric plaque. The circumflex branch was also severely atheromatous with up to 90% luminal obliteration. The right coronary artery showed circumferential atheroma with approximately 40% narrowing and 3 cms from the origin there was an area of plaque rupture with associated haemorrhage. Death was due to coronary artery disease. The area of plaque rupture, possibly complicated by overlying thrombus, would have accounted for her presenting symptoms. Mottling found on the myocardium was consistent with a very recent infarction, probably less than 8 hours before death.

[8] By the time the proof took place before me some eight and a half years had elapsed since the death of the deceased. In the course of the evidence mention was made of a Fatal Accident Inquiry which was held in 1992 but I was naturally not made aware of the result and the evidence in it was not referred to in the course of the proof. The holding of the Fatal Accident Inquiry no doubt explains some of the delay that took place before the action was raised, but not all of it. The action was raised only a short time before the triennium expired. It was then sisted for over two years to enable the pursuers to apply for legal aid. It was more than three years after that before the proof was heard. As a result of this long passage of time the recollections of some of the witnesses were inevitably somewhat blurred. In many cases that might well have affected the outcome. As it turned out, however, in this case I do not think that anything material in the evidence was lost, because for the most part there was no material dispute between the parties as to the facts. Senior counsel for the pursuers submitted that on the balance of probabilities Dr Jennings, although having seen the ECG trace taken at midday, failed to note the changes in it. He submitted that Dr Richardson's comment in the discharge note - "No ECG changes" - supported that. As I have indicated, however, I rejected these submissions. I will return to this point later because it was critical to the pursuers' case.

[9] There were originally five pursuers - Mr Muir, Mr Muir as guardian for his son Iain, Karen Muir and the deceased's father and mother. By the time of the proof, however, only Mr Muir, in both capacities, remained. I shall still refer to the pursuers, however, and where necessary to the first and second pursuer. In the pleadings the pursuers made no criticism of Dr Richardson and the evidence of all the independent experts was that his actions were entirely appropriate. The pursuers' case of fault was directed solely at Dr Jennings. Essentially it was averred that he was negligent in failing to appreciate the significance of the changes in the ECG trace taken at midday. In light of those changes it was averred that he was negligent in discharging the deceased from hospital before an enzyme test had excluded a cardiac origin as a cause of her symptoms on the morning of 12 June. As the blood sample for the test was taken at about 9.30 a.m. and the enzymes tested, AAT and LDH, would not show abnormal levels indicative of a myocardial infarction for at least 24 hours, the averment was that it was Dr Jennings's duty to keep the deceased in hospital for at least 24 hours, that is, until at least 9.30 a.m. on 13 June 1991.

[10] In support of their case the pursuers led two distinguished consultant cardiologists in evidence. The first was Dr Douglas Reid. He has been Consultant Cardiologist in the Regional Cardio-Thoracic Centres, Newcastle Hospitals N.H.S. Trust, Newcastle-upon-Tyne, and Honorary Lecturer in Clinical Cardiology at the University of Newcastle-upon-Tyne since 1977. He has been the author or co-author of numerous publications in the medical literature relating to cardiology and, in particular, ischaemic heart disease. A full curriculum vitae was lodged in process. His report dated 7 May 1997 was also lodged in process. This, and his evidence, was based essentially on his reading of the Aberdeen Royal Infirmary records relating to the deceased. He noted the findings in Dr Richardson's note of his examination of the deceased that there was a strong family history on her father's side of ischaemic heart disease and that she was a smoker. These factors increased the likelihood of coronary heart disease even in the case of a woman aged 35, who was basically in a very low probability category for such disease. Dr Reid thought, however, that the symptoms recorded by Dr Richardson were much more likely to have a cardiac origin than oesophageal, although he accepted that they could be the latter. Turning to the detailed findings, Dr Reid said that the normal ECGs at 8.53 a.m. did not exclude the possibility that a myocardial infarction had occurred at home that morning, and a further ECG in one hour would not do so either. It took longer than that for ECG changes to evolve. His practice would be to take a further ECG 24 hours later. It was, however, reasonable practice to repeat the ECG at midday, as had been done. That one showed changes from the ones taken at 8.53 a.m. in that there was T-wave inversion in leads V1 and V2 and flattening of the T-wave in V3. These changes were not diagnostic of heart attack but they did increase the likelihood that the deceased's chest pain was cardiac in origin. They made it more likely that the deceased was suffering from an acute coronary syndrome. Continued observation and further evaluation were therefore required. With regard to further enzyme tests Dr Reid said that the correct practice in 1991 was to test a small range of enzymes in order to diagnose whether a myocardial infarction had occurred. These enzymes are released from the heart muscle, but only slowly, and are not seen at relevant levels for a number of hours after the suspected myocardial infarction, a minimum of 8 hours but nearer to 12 hours. Therefore the blood sample which enables the enzymes to be tested should not be taken until that period has elapsed, in this case until at earliest the late afternoon on 12 June. It was appropriate for Dr Jennings to order enzyme tests to be done and if they were normal, for the deceased to be discharged, but it was inappropriate to base the tests on a blood sample taken at 9.30 that morning. Of the two enzymes tested here Dr Reid explained that AAT shows a raised level earlier and reduces to a normal level earlier. LDH takes longer to show a raised level and remains high for longer. Nevertheless Dr Reid accepted that, although a wrong diagnosis was in fact made in this case, the probability that someone such as the deceased who presents with chest pain but has a normal ECG has actually had a heart attack is low. It would therefore not have been unreasonable to consider discharging the deceased at that stage, i.e. soon after 9.00 a.m. Dr Reid doubted if there was a normal practice for such patients in the United Kingdom since it would be impractical to admit or keep in hospital all patients with chest pain who have a low probability of coronary artery disease as a cause of their symptoms. In that situation it was not necessary to wait for the resu

[11] If the deceased had not been discharged, she would have been observed and further steps taken depending on how matters developed. Most importantly, however, given how matters did develop, the deceased would have still been in hospital later that day and in the early hours of the following day and the probability is that she would have survived. If she had been in hospital when she began to feel chest pain again at about 7.00 p.m. it is likely that another ECG would have been done and it probably would have shown a change. That would have influenced the diagnosis and probably led to a change of management. Aspirin and, if the diagnosis now was acute coronary syndrome, probably also heparin would have been given. Again, when she had further severe pain at about 11.00 p.m. she would have had a further ECG and, depending on the result, been given appropriate treatment. Dr Reid said that none of this treatment would necessarily have prevented the heart attack which the deceased had but it would have reduced its likelihood. And when she did have it, which on his interpretation of the history and the findings at post mortem examination, occurred at about 4.50 - 5.00 a.m. on 13 June 1991, she would undoubtedly have had characteristic changes. He thought that if she was in hospital at the time the likelihood of her having the heart attack would still be more than 50% but with appropriate treatment earlier it might have been less severe, at most a moderate heart attack. That would have improved the prognosis thereafter and it was more than 50% likely that she would have survived the attack. Indeed, he put the likelihood at 90%. He explained that it was not the heart attack itself which proved fatal but the ventricular fibrillation associated with it and that was treatable. Thereafter, the diseased areas of the deceased's coronary arteries could have been repaired with grafts. That would have extended her life but with three-vessel artery disease such as she had following the heart attack it would probably have been restricted to a further 10 years. There was ultimately no significant difference between the experts in relation to the matters dealt with in this paragraph.

[12] The second expert witness led on behalf of the pursuers was Dr Thomas Fyfe. He has been Consultant Physician and Cardiologist at the Southern General Hospital, Glasgow, and Honorary Senior Clinical Lecturer at Glasgow University since 1978. He has also been the author or co-author of a considerable number of publications in the medical literature on topics related to cardiology. His curriculum vitae was also lodged in process. Like Dr Reid, Dr Fyfe gave his evidence on the basis of what is recorded in the deceased's hospital records. From what is recorded at the time of her admission to the hospital, he said that she was displaying some of the classic symptoms of a cardiac problem and the possibility was that she had had a heart attack. Oesophageal pain can be almost identical in its symptoms to cardiac pain. However, you cannot prove oesophageal pain and so he said that he would treat her as if she had had a heart attack until he had excluded it. That would involve admitting her, doing several ECGs and enzyme level tests. The steps that Dr Richardson took after examining her were appropriate. In particular, it was appropriate to order a later ECG. A normal ECG on admission would not exclude a heart attack but if it had happened, it would show on later ECGs. The deceased should not have been discharged home on the basis of her chest pain having settled by the time of her admission and the ECGs taken at about that time being normal. That would not have been reasonable, because by that time there was no evidence that her pain was not cardiac in origin. It was essential to do serial ECGs. It would have been negligent not to have done the second ECG, the one done at about midday. Dr Fyfe accepted that, as a 35 year old woman, the deceased was in a very low risk category for a heart attack and he accepted that chest pain is a common medical emergency. Nevertheless, with symptoms which were text book of cardiac pain, albeit of oesophageal pain also, no patient should be discharged until cardiac pain had been excluded. This meant that a large number of patients had to be kept in hospital overnight, although not necessarily in the Coronary Care Unit. With advances since 1991, however, enzymes which peak earlier are used for these tests now and so it is possible to turn patients around more quickly. Dr Fyfe said that the alteration in the T-waves on leads V1, V2 and V3 on the ECG trace taken at midday represented a definite change. They were not diagnostic of a cardiac problem but he did not think that they could be due to postural changes on the part of the patient or the positioning of the leads. They could have been due to other non-cardiac causes but on balance would have reinforced his inclination that the problem was cardiac. In any event, there was enough to warrant looking at the matter further. He would therefore have done further ECGs. Moreover, the changes in that ECG at midday would have made him more interested in the enzyme levels. Since the AAT enzyme would peak at 12-24 hours after any heart attack (sooner than LDH), that would mean that it should be measured from a blood sample taken not less than 12 hours after the suspected heart attack. That would have meant that the deceased should have been kept in hospital until at least 8.00 p.m. on 12 June for the blood sample to be taken and then some time after that to await the result. The deceased should not have been sent home before the results of these enzyme tests were known. He was highly critical of Dr Jennings's decision to send her home when he did. He interpreted Dr Jennings's diagnosis of oesophageal spasm as implying that he had excluded a cardiac cause of the problem. But in his view it certainly had not been excluded. If Dr Jennings had seen the trace of the ECG done at midday he had either failed to observe the change

[13] As I have indicated, the evidence of both Dr Reid and Dr Fyfe was based on their reading of the hospital records and on their view of proper practice as at June 1991. No medical witness as to what occurred in the hospital was led by the pursuer. The first such witness was Dr Richardson, who was led by the defenders. He described events as he recollected them and, of course, with the aid of the records. So far as the critical question of whether the deceased should have been discharged when she was was concerned, he said that he was not qualified to say. He was in his first year as a senior house officer at the time and was not a cardiologist. Indeed, his only cardiology experience was for two months in 1991. He is now a registrar in the Accident and Emergency Department at Aberdeen Royal Infirmary.

[14] The next witness led by the defenders was Dr Jennings himself. Like Dr Reid and Dr Fyfe he is also a distinguished consultant cardiologist. He has been Consultant Cardiologist at Aberdeen Royal Infirmary since 1983 and is a member of a number of bodies concerned with cardiology. His particular field of interest is acute cardiac heart disease and he has many publications to his name in the medical literature on that subject. His full curriculum vitae was also lodged in process. He said that Aberdeen Royal Infirmary is a large busy hospital and is the Regional Cardio-thoracic Centre for some 650,000 people. It serves the whole of the north-east of Scotland in respect of serious heart disease and is the only one in the area to do so. The nearest hospital to provide a coronary care unit is in Dundee but it is not a Regional Cardio-thoracic Centre and does not provide a full range of cardiac services. Aberdeen Royal Infirmary's catchment area extends from the Northern Isles to the northern part of Tayside. In 1991 there were only 11 beds for acute cardiological patients in the Coronary Care Unit at Aberdeen Royal Infirmary. There were a further 34 beds for chronic but not acute cardiological patients. There was always pressure on these beds. The system which operated in 1991 was not to have all these acute beds occupied all the time because space had to be kept for the admission of new acute patients. Nor was it possible to admit all patients with chest pain. The frequency of chest pain was too great to allow that. So symptoms had to be stratified in such a way as to enable it to be decided which patients should be admitted to the Coronary Care Unit and which not. By this I understood him to mean which patients should be kept in hospital following admission and which not. That is because the decision to admit initially was the general practitioner's and the hospital had no choice in the matter at that stage. Dr Jennings accepted that occasionally wrong decisions were made in deciding which patients to keep in hospital but the published results showed that 95% of them were correct. With regard to the deceased Dr Jennings said that he remembered the situation clearly. That was because he was shocked when she died and he had looked back over what had taken place. There had also been the Fatal Accident Inquiry. He had seen the deceased once. That was a routine visit on his ward round at about 4.00 p.m. While he was heavily committed during the day with other duties he was always available if necessary but there had been no request for his attendance before his ward round. Before seeing the deceased he received an account of what had happened from Dr Richardson and the nurses. He also looked at the available records, with the exception of the nursing notes. He would not normally see these: any nursing input would be given to him verbally on the ward round. He was, however, fully aware of what Dr Richardson had recorded and gave consideration to it all. He also saw and considered the ECG traces taken on admission and at midday. He recognised that there was a change in the latter. These, however, were slight in his view and could be due to many causes, only one of which was cardiac disease. They were not compatible with acute myocardial infarction. It was true that they increased the likelihood of a cardiac change taking place but that was heavily outweighed by the fact that a woman of the deceased's age was so unlikely to have coronary disease. All this took place before Dr Jennings examined the deceased. He then saw the deceased. He took a history from her and examined her. At that time she was no more concerned than most people in her situation and she seemed well. She conversed with him in an articulate way. Her vital signs - pulse and blood pressure - were normal. There was nothing that was s

[15] Dealing with the criticisms which had been made by Dr Reid and Dr Fyfe, Dr Jennings accepted that if he had thought there was a likelihood of the deceased having cardiac disease, he would not have discharged her at that time. He said he was at complete variance with the view expressed by Dr Fyfe that the deceased should not have been discharged until a cardiac origin for her chest pain had been excluded, if by that was meant exclusion by serial ECGs and enzyme tests. Dr Jennings had earlier pointed out that one had to take account of available capacity in Aberdeen Royal Infirmary. It was different from Edinburgh and Glasgow where there was more than one hospital in the area with a coronary care unit. In Aberdeen if the patient was very unlikely to have cardiac problem, the case could not be managed on the basis that that unlikely event might materialise. Regard had to be had to available resources. Socio-economic factors had also to be taken into account, particularly when in most cases it would be wholly unnecessary to keep the patient in hospital. In any event, in his own mind and using his clinical judgment he thought he had excluded a cardiac origin for the pain. He was in total agreement with the view expressed by Dr Reid in paragraph 8.2 of his report that it was "impractical to admit or keep in hospital all patients with chest pain who have a low probability of coronary artery disease as a cause of their symptoms". He also agreed with the view expressed in the same paragraph that in view of the findings following her admission to hospital, it would not have been unreasonable to consider discharging the deceased at that stage. Dealing with the criticisms which Dr Reid made of the decision to discharge her in the face of the changes in the ECG at midday, Dr Jennings suggested that Dr Reid now had the benefit of hindsight which of course he, Dr Jennings, did not have. He also made the point that Dr Reid did not see the deceased in the Coronary Care Unit and so had not been able to bring his clinical judgment to bear. Dr Jennings thought that was crucial, adding that otherwise one would practice medicine by telephone or e-mail.

[16] The defenders then led the evidence of an independent expert, Professor Keith Fox. Professor Fox has been Duke of Edinburgh Professor of Cardiology in the University of Edinburgh and Honorary Consultant Cardiologist at Edinburgh Royal Infirmary since 1989. He is also head of the Cardiovascular Research Department there. Until about a year ago he took his full share of all the acute cardiology cases in the Infirmary but that has now been reduced by about half to accommodate his research, teaching and academic commitments. Like the other experts in the case, he has contributed considerably to the medical literature on cardiology. He has specific research interests in acute coronary artery disease, threatened heart attack and the treatment of heart attack. A summary of his curriculum vitae was lodged in process. He explained that Edinburgh Royal Infirmary is a large hospital with some 900 beds. It receives patients both from its local area and also from elsewhere in the country and on occasions from abroad. Looking at the position in 1991 Professor Fox was in agreement with Dr Reid when in para. 8.2 of his report he doubted that there was a "normal" practice as to whether patients with chest pain should be admitted and kept in hospital. It was impractical to admit and keep in hospital all such patients. For example, at Edinburgh Royal Infirmary about 6,000 patients per annum present with suspected cardiac pain. It would be impossible to retain them all in hospital. It was necessary, therefore, to decide who was likely in fact to have cardiac pain. Professor Fox also said that in 1991 there were three publications which reported that half of all hospital presentations with chest pain were not admitted. Given the deceased's age and gender she was at low risk of cardiac problems. A strong family history of ischaemic heart disease and smoking were risk factors but were not very specific. About 40% would give a similar family history and in 1991 a third of women of that age were smokers. But a large number of people with a similar history would not go on to have a heart attack. Professor Fox thought that it was extremely unlikely that the deceased had had a heart attack on the morning of 12 June. It was very unusual for a person to have a heart attack and at the same time to have remitting pain and a normal ECG. Moreover, there was no history of sweating, no pallor, the pulse was not substantially elevated and blood pressure was normal. There was also no history of pain on exertion. That was unusual in a person who had underlying heart disease. We now know that the deceased did in fact have extensive heart disease and in retrospect Professor Fox thought that what the deceased had that morning was unstable angina, although the symptoms were the same as for pain of a non-cardiac origin. Not only was Professor Fox of the view that the deceased's symptoms indicated that it was unlikely that she had had a heart attack on the morning of 12 June, but the fact that the ECG was normal on admission and the chest pain was resolving argued strongly against an evolving heart attack. They did not exclude it but made it highly unlikely. Only 2-3% of those who had an evolving heart attack would have an entirely normal initial ECG. He agreed with the view expressed by Dr Reid in para. 8.2 of his report that it would not have been unreasonable to consider discharging the deceased at that stage. He added that in North America, where there are greater resources, more patients would be retained but a significant proportion would still be sent home. With regard to Dr Fyfe's view that the patient should be kept in hospital until a cardiac origin for the chest pain had been scientifically excluded, that is, for about 24 hours, Professor Fox said that that was a statement of the ideal but was not consistent with United Ki

[17] Turning to the ECG at midday Professor Fox said that there were changes in the T-waves in three of the leads, but they were not diagnostic of a cardiac condition. They could be due to that but could be due other causes. They were non-specific. They are part of the evidence which consisted of all investigations performed and the clinical assessment. The latter was the most important element. He did not agree with Dr Reid's view expressed in para. 8.6 of his report that it would have been normal practice in light of the changes in the ECG to have monitored the deceased in the Coronary Care Unit as well as repeating the ECGs and the enzyme tests. That, he thought, was a statement of the ideal but in 1991 it was common for people showing inversion of the T-waves to be discharged from hospital after having presented with chest pain. He was therefore of the view that Dr Jennings was not negligent in discharging the deceased when he did.

[18] On questions of fact I had no hesitation in accepting the evidence of both Dr Richardson and Dr Jennings. Having seen and heard them give their evidence I am quite satisfied that they were both credible and reliable witnesses. The findings that I recorded earlier in this opinion with regard to what happened when the deceased was in hospital reflect that. (The findings with regard to what happened both before the deceased was admitted to hospital and after she was discharged reflect the evidence of the family witnesses and Dr McKay. There was no dispute about any of that evidence and I accepted it.) With regard to what happened in hospital I should perhaps repeat that the staff there had no choice in deciding whether the deceased should be admitted in the first place. That was for the general practitioner, Dr McKay, to decide. Once in hospital the deceased presented to Dr Richardson as he noted in the records. The ECG at about midday showed some T-wave changes. Dr Richardson saw these and drew them to the attention of Dr Jennings. Dr Jennings was not asked about this particular point but I accepted Dr Richardson's evidence about it. In any event, before Dr Jennings saw the deceased on his afternoon ward round he saw that ECG and noted the T-wave changes. Apart from that there is no evidence that Dr Jennings had any more information of any materiality as to the deceased's history and symptoms beyond those recorded earlier by Dr Richardson. On the basis of that information and also, most importantly, his clinical judgment having examined the deceased himself, Dr Jennings came to the conclusion that her chest pain was not cardiac in origin but was oesophageal. Subject to the enzyme tests being normal, he therefore discharged her.

[19] There is no doubt now that unfortunately the chest pain which the deceased had on the morning of 12 June 1991 was cardiac in origin. The evidence was all one way on that. If that had been known at the time or thought to be the position, then of course Dr Jennings would not have discharged her when he did. But the issue which I have to decide is not whether Dr Jennings was mistaken in discharging her at that time. The issue I have to decide is whether he was negligent in doing so. The two concepts are different. A mistake may, or may not, be negligent. Whether it is negligent depends upon whether it satisfies the legal test for negligence: see, for example, Whitehouse v Jordan 1981 1 WLR 246, Lord Fraser of Tullybelton at page 263. In Scotland that test is to be found in the well known dictum of Lord President Clyde in Hunter v Hanley 1955 SC 200 where his Lordship said this (at pages 204-5):

In England reference is usually made to the dictum of McNair J. in Bolam v Friern Hospital Management Committee 1957 1 W.L.R. 582 but the test is essentially the same. Indeed, in the English case of Maynard v West Midlands Regional Health Authority 1984 1 W.L.R. 634 Lord Scarman said in the House of Lords that he did not think the words of Lord President Clyde quoted above could be bettered, adding only that a doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. In the present case Dr Jennings did profess a special skill. He was a consultant cardiologist. His actions therefore have to be tested against those of a consultant cardiologist of ordinary skill acting with ordinary care. To assist me in deciding this matter I was favoured with the evidence of three distinguished independent consultant cardiologists and of Dr Jennings himself, who is also a distinguished consultant cardiologist. Before dealing with that evidence, however, it is important to remember that Dr Jennings's actions can only be judged on the basis of the information that he had. That may be a statement of the obvious but it can easily be lost sight of when the information that he had was different from the information that others had or may have had. In this case he had, in particular, the information contained in the notes made by Dr Richardson when he saw and examined the deceased on her admission to the Coronary Care Unit. He also had the ECGs taken at 8.53 a.m. and at about midday. And he had his own clinical assessment. There was no dispute among the experts that that was most important. He did not have any letter from the general practitioner. Moreover, there is no evidence that he had any information communicated over the telephone by the general practitioner or any information from members of the family which was additional to or different from that recorded by Dr Richardson.

[20] Before I consider the evidence any further I should say that I found all the medical witnesses impressive in their various ways. As I have already indicated, I was in no doubt that Dr Richardson and Dr Jennings were credible and reliable witnesses who were doing their best to recollect events eight and a half years earlier and assist the Court. Equally, I was in no doubt that the independent experts were doing their best to assist the Court. As I have already noted, however, Dr Reid and Dr Fyfe based their evidence on their reading and interpretation of the hospital records. This was unfortunate because, in light of the later evidence of Dr Richardson and Dr Jennings which I accepted on matters of fact, it led to misinterpretation which, particularly in Dr Fyfe's case, coloured their evidence. Starting at the beginning, however, there was no dispute that the chest pain and other recorded symptoms which the deceased had on the morning of 12 June could be cardiac in origin or could be oesophageal. There was also no dispute that despite it being noted that there was a family history of ischaemic heart disease on her father's side and that she smoked 15 cigarettes a day, by reason of her gender and age she was at low risk of having cardiac disease. Moreover, there was nothing in Dr Richardson's examination which pointed to a cardiac origin for the chest pain as opposed to an oesophageal origin. In particular, there was no history of previous similar pain and no history of sweating at the onset of this pain. There was no pallor when she was examined by Dr Richardson and pulse and blood pressure were both within normal limits. The initial ECGs - three of them taken at much the same time, probably, it was thought, because some of the leads were thought not to be properly positioned or connected - were entirely normal. It was against this background that the first major division of opinion the experts occurred.

[21] Dr Fyfe was of the opinion that the deceased should not have been discharged home on the basis of her chest pain having settled by the time of her admission and the ECGs taken at about that time being normal, because by that time the possibility of her chest pain having been cardiac in origin had not been excluded. In taking this view he was in a minority of one among the experts. Not only did Dr Jennings disagree but so did the pursuer's other expert, Dr Reid, and Professor Fox. In this state of the evidence the pursuers' senior counsel did not seek to support Dr Fyfe's position, in my view rightly.

[22] The real issue between the experts arose as to whether in light of the changes in the ECG at midday it was negligent for Dr Jennings to diagnose the deceased's chest pain as oesophageal in origin and discharge her without doing further tests. Taking Dr Reid on this point first, it is to be noted that in his report (para. 9.3) his view that Dr Jennings was negligent is based on two premises. The first is his assumption that Dr Jennings did not look at the ECG taken at midday. The second is his assumption that Dr Jennings was placing weight for the purposes of diagnosing the origin of the deceased's chest pain that morning on the enzyme tests based on the blood sample taken soon after her admission to the hospital. Both assumptions were in fact wrong. Dr Jennings did look at the ECG taken at midday - and did notice the changes in it. And he knew perfectly well that the enzyme tests based on the blood sample taken soon after admission could not be of any direct help in diagnosing whether the deceased's chest pain that morning was of cardiac origin. Unfortunately, this misunderstanding by Dr Reid is the result of expert evidence being based entirely on a reading of the hospital records without any input from those who were actually there at the time. Such a situation would have been avoided, and would probably have been to the ultimate benefit of all concerned, if the pursuers' advisers had either had a report or reports from those who were there at the time or had led them in evidence first so as to establish the factual position on which the experts could then base their opinion.

[23] Be all this as it may, Dr Reid's evidence was that the changes in the ECG taken at midday indicated that the deceased's chest pain that morning was more likely to be cardiac and not oesophageal in origin. They were important changes in that context, although not in themselves diagnostic of heart disease. In his view the deceased therefore required continued monitoring and observation and further evaluation, including repeat ECGs and enzyme tests. This would have meant her being kept in hospital for at least 24 hours. Whether she would have been discharged then would have depended on how things had evolved. I got the impression, however, that not only was Dr Reid's evidence coloured by the wrong assumptions that I have mentioned but it was also, at least to some extent, affected by hindsight. For example, in his examination-in-chief he said that the deceased's symptoms on admission indicated that an oesophageal origin for her chest pain was "much, much, much less likely" than a cardiac origin. And yet he accepted that it would have been in order for the deceased to have been discharged at any time prior to the further ECG at midday. I must confess I found the logic of this difficult to follow because, as Dr Reid accepted, any decision to discharge taken before midday would obviously have taken into account the deceased's symptoms on admission. In any event, his evidence was that the changes in the ECG taken at midday was the nub of the thing. In his view they outweighed all other factors, including Dr Jennings's clinical assessment reached on all the information he had, including the ECG changes.

[24] Dr Fyfe similarly misunderstood some of the entries in the hospital records. He made the same false assumption as Dr Reid with regard to Dr Jennings's note relating to the enzyme test. As I said earlier, that coloured his evidence. So did his view that a patient such as the deceased should not be discharged unless and until a cardiac origin for her chest pain had been excluded, which could only be done by serial ECGs and enzyme tests based on a blood sample taken at a meaningful time. I felt that these factors weakened the force of his evidence to a considerable extent but nevertheless he was of the view that the changes in the ECG at midday in themselves meant that further investigations were necessary and that the deceased should not have been discharged until they were done.

[25] Professor Fox, on the other hand, gave evidence after Dr Richardson and Dr Jennings had done and no doubt, as the defenders' expert, he was aware of what in essence their evidence was likely to have been or, indeed, had been. That was a big advantage. It meant that he came to give evidence unencumbered by any misunderstandings as to what was recorded by these two doctors in the hospital records. Moreover, he was not faced for the first time in the witness box with the position as Dr Jennings saw it. He had had time to think about it in advance and form his views on the matter. That was certainly the impression I got. Indeed, it went further than that with regard to the ECGs, because he said he had seen them at the time of the Fatal Accident Inquiry. Senior counsel for the pursuers submitted that his approach was over-academic and lacked the practical approach of Dr Reid and Dr Fyfe. His approach was somewhat more academic. That is to be expected in his circumstances but I rejected any suggestion that that was a weakness in his evidence. On the contrary, it seemed to me to provide a solid foundation for his evidence. In any event, he also had wide practical experience and his evidence was given with a very clear view as to the practicalities of the situation facing Dr Jennings. He gave his evidence with great care and precision and despite, or perhaps because of, a very thorough cross-examination, I found it compelling. I preferred it to the evidence of Dr Reid and Dr Fyfe.

[26] Having come to this view in relation to the evidence of the independent experts and, in particular, of Professor Fox, it follows that the pursuers have failed to pass the test in Hunter v Hanley. In light of his evidence I am unable to hold that in discharging the deceased when he did, Dr Jennings "has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care". See also Bolitho v City & Hackney Health Authority 1998 AC 232; and Gordon v Wilson 1992 SLT 849. I have already said something about the way Dr Jennings gave his evidence. It is appropriate, nevertheless, for me to say a little more. He was naturally in an unenviable position. As it turned out, his decision to discharge the deceased was plainly wrong and it led to the deceased's death. Naturally he felt that keenly. The subsequent Fatal Accident Inquiry and this action could only have exacerbated that. Nevertheless, having seen him and heard him give evidence I was left with the clear impression of a careful and very caring doctor who took his heavy responsibilities with all the seriousness that they require. Of course, the death of the deceased must have been a terrible shock for the pursuers and the rest of the family and it is a tragedy for them all. It was natural in the circumstances for Dr Jennings's decision to discharge her to have been questioned but I am satisfied on the basis of the evidence that I heard at the proof that that decision was not a negligent one.

[27] It remains for me to deal with the question of damages had I been in favour of the pursuers. There was no dispute that had the deceased not been discharged when she was, she would have survived the heart attack which she sustained a few hours later. However, with the disease of the coronary arteries that she had her expected lifespan would have been greatly reduced. Against that background the quantification of damages had I been in favour of the pursuers was largely agreed by Joint Minute. In respect of loss of society I would have awarded the first pursuer £15,000 with interest on that sum of £6,000. That was to 2 December 1999. Interest on £15,000 at 8% per annum from then to the date of decree would have added a further £350. Loss of society for the second pursuer would have been £8,000 together with interest of £3,200 to 2 December 1999. Interest on £8,000 at 8% per annum from then to the date of decree would have added a further £200. In respect of loss of the deceased's services the total sum for the first and second pursuers would have been £50,000 together with interest of £20,000 to 2 December 1999. Interest on £50,000 at 8% per annum from then until the date of decree would have added a further £1,200. I would also have awarded the first pursuer the cost of the funeral, which was agreed at £851.53. Interest on that sum at 8% per annum from, say, 1 July 1991 to the date of decree would have been £600. I have calculated these sums for additional interest in round terms. The total award for the first pursuer would therefore have been £58,401.53 and for the second pursuer £47,000.

[28] On the whole matter, however, I shall repel the pleas-in-law for the pursuers, sustain the second and third pleas-in-law for the defenders and assoilzie them from the conclusions of the summons.