BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Scottish Court of Session Decisions |
||
|
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Morgan v. Dumfries And Galloway Actue & Maternity Hospitals NHS Trust [2004] ScotCS 251 (23 November 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/251.html Cite as: [2004] ScotCS 251 |
||
[New search] [Help]
|
OUTER HOUSE, COURT OF SESSION |
|
|
|
OPINION OF LORD DRUMMOND YOUNG in the cause LESLEY JOYCE MORGAN Pursuer; against DUMFRIES AND GALLOWAY ACUTE & MATERNITY HOSPITALS NHS TRUST Defenders:
________________ |
Pursuer: J.J. Mitchell, Q.C.; Wright Johnston & Mackenzie
Defenders: Fitzpatrick, Ranald F. Macdonald
23 November 2004
[1] On 14 March 1999 the pursuer was admitted to Dumfries Royal Infirmary for a hysterectomy operation. The operation was performed on 15 March. It involved a horizontal incision in her abdomen, which was closed following the operation. The pursuer was discharged from hospital and returned home on Friday 19 March. Over the weekend she either remained in bed or lay on a sofa. She was visited by her general practitioner, Dr Littler, on the Monday morning and by the district nurse on Tuesday, at about noon. Staples had been used to close the operation wound, and the district nurse removed these. Shortly thereafter, the pursuer visited the lavatory and her wound burst open and the internal organs in her abdomen spilled out of it. Her family assisted her and an ambulance was called. She was taken back to Dumfries Royal Infirmary where she underwent a further operation. It was a matter of agreement that she had suffered a dehiscence, or bursting of the abdominal wound. [2] It is not suggested that the performance of the operation itself had been negligent. Dehiscence is a rare occurrence, but can follow a competently performed operation. An incipient dehiscence does, however, give rise to certain signs and symptoms. The pursuer's contention is that, during the period between the first operation and her discharge from hospital, she was exhibiting such signs and symptoms and made them known to a member of the medical staff, Dr Abijit Basu, who had examined her prior to her discharge on Friday 19 March. Dr Basu, however, had not recognised the significance of the pursuer's description of her condition. That is said to have been negligent, and it is said that that negligence resulted in the very distressing injury that the pursuer suffered the following Tuesday. For the defenders it was contended that the pursuer had not proved on a balance of probabilities that she had made the relevant signs and symptoms known to Dr Basu, and that accordingly it had not been established that Dr Basu was at fault in failing to recognise her condition. The critical issue in the case is accordingly what the pursuer said to Dr Basu in the course of their discussion on Friday 19 March. In order to understand the significance of the discussion, however, it is necessary to know something about wound dehiscence and its signs and symptoms, a matter that was spoken to by expert witnesses, and it is to this issue that I will turn first.Medical evidence
[3] Two expert witnesses gave evidence on the surgical aspects of the case, Dr Jeremy Livingstone for the pursuer and Dr Laura Cassidy for the defenders. Both were very experienced gynaecologists. Dr Livingstone had, before he retired in 1997, been a consultant at a number of hospitals, including Edinburgh Royal Infirmary and the Eastern General Hospital in Edinburgh. Dr Cassidy was a consultant gynaecologist at Inverclyde Royal Hospital, and served on the Council of the Royal College of Obstetricians and Gynaecologists. There was in fact considerable agreement in the substance of their evidence. Dr Livingstone gave evidence that dehiscence was known to occur following abdominal surgery, but was rare with the type of incision used in the pursuer's case, a transverse horizontal incision. It was caused by the failure of the internal stitches inserted after the operation to hold the internal wound in the rectal sheath, the muscle that covers the abdomen. The sign of an incipient dehiscence was a bulging of the abdominal wound site with some leakage at the edges. The bulge becomes greater when the patient stands up, and the dehiscence can be felt clearly by the examining doctor if the patient is invited to cough. If a dehiscence is suspected, the patient should be invited to cough while standing, and the doctor should feel the cough impulse. The patient should then be asked to lie down, and the swelling will tend to disappear. If the patient is invited to cough, the cough impulse should still be palpable. The bulging of the abdomen can produce a pouch like phenomenon. The protrusion of the abdomen was, according to Dr Livingstone, probably the most important sign of an incipient dehiscence, but a feeling of heaviness in the abdomen and the patient's feeling the need to hold herself together were also signs. The clearest indication, however, is the difference in appearance of the patient when standing and when lying down. Apart from these matters, the other indications of an incipient dehiscence are dependent on examination. Thus it is the overt signs that are likely to be noticed by the patient that are important in alerting a doctor to the existence of the condition. Dr Cassidy agreed generally with Dr Livingstone's account of the signs and symptoms of an incipient dehiscence, although it is fair to say that she placed the greatest emphasis on the difference in appearance of the patient standing and lying down. [4] The standard of care that is relevant to the present case is of course that of a doctor of ordinary competence exercising ordinary skill and care; that was a matter of agreement between counsel. Both Dr Livingstone and Dr Cassidy gave evidence about the standard of conduct that they would expect from a doctor of ordinary competence in the position of Dr Basu. Both doctors agreed that dehiscence is rare following a hysterectomy carried out using a transverse lateral incision. It follows that there was no reason for a doctor in the position of Dr Basu to suppose that a dehiscence was incipient unless he were alerted to something that suggested the possibility. Dr Livingstone had been present in court throughout the pursuer's evidence. He was asked during examination in chief whether, if her account as given in evidence was accepted as accurate, a gynaecologist of ordinary competence ought to have examined her standing up as well as lying down. He replied that a gynaecologist of ordinary competence should have done so. Dr Livingstone further stated that, if such an examination had been carried out, the approaching dehiscence would have been discovered. He was confident of that. If it had been discovered the incident that occurred during the following week would not have happened. Consequently the dehiscence that the pursuer had suffered could not have happened without negligence. Dr Livingstone further indicated that infection could be ruled out as a cause of the dehiscence, because a swab had been taken during the operation to correct the dehiscence and no significant organisms had been discovered. [5] At the close of his examination in chief, I asked Dr Livingstone the criteria that he applied in expressing the opinion that there had been negligence. He replied that he based his views on the pursuer's evidence, and on three features in particular which, if made known to Dr Basu, ought to have alerted him to the possibility of an incipient dehiscence. First, the pursuer had experienced a feeling of heaviness during the period after the operation but before her discharge from hospital. Secondly, she had described a pouching effect that had been observed during that period when she was standing up, by her husband in particular. Thirdly, she felt that she had to hold herself together, using her hands for the purpose. In the light of these signs, Dr Livingstone thought that a doctor of ordinary competence in the position of Dr Basu ought to have examined the pursuer in a standing position as well as lying down. If there was a suspicion of dehiscence, the patient should be examined in a standing position. I then asked Dr Livingstone whether the three signs that he had referred to in the pursuer's evidence operated as a totality or independently. He replied that they operated independently, and that the projection of the abdomen in the standing position was probably the most important of the signs. In cross-examination, Dr Livingstone accepted that his conclusion was based on the premise that the pursuer's account of her complaints in hospital was honest and accurate. It was also based on the accuracy of her claim that she told the doctor who examined her prior to her discharge that she had a swelling that disappeared when she lay flat. At a later point, however, when Dr Livingstone was asked about the basis for his view that the pursuer had signs of an incipient dehiscence, he referred to the pursuer's feeling of fullness and the pouch that disappeared when she lay down; these were typical of a dehiscence. Dr Livingstone accepted that the pursuer's medical records relating to her stay in hospital made no mention of any manifestation of an incipient dehiscence. In re-examination, he stated that the account as given by the pursuer and her husband of her feelings and appearance prior to her discharge from hospital were exactly as would be expected for an incipient dehiscence. I accept Dr Livingstone's evidence on all of the foregoing matters. [6] During her examination in chief Dr Cassidy was asked about the signs and symptoms that the pursuer had experienced before her discharge from hospital. She stated that all of the pursuer's complaints were significant. Nevertheless, heaviness in the area of the operation and swelling in the area of the wound in the abdomen were quite common complaints. On the basis of the note made by Dr Basu when he examined the pursuer, she formed the view that nothing abnormal had been seen; otherwise it would have been noted. She accepted, however, that if the pursuer indicated that a pouching effect was only visible when standing, and disappeared when lying down, the doctor should have examined her standing up. If, on the other hand, the pursuer had only said that she was suffering from swelling, or that the area of her wound was sore, Dr Cassidy would not consider it necessary for the examining doctor to examine her standing up. In cross-examination Dr Cassidy accepted that, on a balance of probabilities, it was likely that the internal stitching in the rectal sheath had given way before the pursuer left hospital. Dr Cassidy further agreed that, if the patient described swelling of the abdomen when standing but not when lying down, that would indicate a need to examine the patient while standing, as it would suggest some degree of herniation. In that event a full examination should be carried out; the doctor should ask the patient to stand and then to cough. Dr Cassidy's evidence was largely based on the premise that, because there was no record of anything abnormal in the note of Dr Basu's examination, nothing of that nature could have been brought to his attention; otherwise it would have been noted. This assumes, however, that a full and complete note was written after the examination. On the basis of the pursuer's evidence, as discussed below, I conclude that the note of the examination was not full and complete. Consequently, to the extent that there were differences between the evidence of Dr Cassidy and that of Dr Livingstone. I prefer the views of Dr Livingstone.Evidence of fact
[7] The evidence in chief of the pursuer was as follows. On 17 March, two days after the operation, she had been allowed to get up and move about. Initially she had felt that there was nothing to complain about, but in the afternoon she noticed that her wound was swollen, and she thought that it was heavy and sore. She had spoken to a nurse about the matter, but the nurse said that the wound was fine. She had noticed that her wound looked different from that of a neighbouring patient who had undergone the same operation. The following day, Friday 19 March, she asked if she would be able to go home. Thereafter she went to the lounge in the ward. A nurse came to tell her that there was a doctor at her bed, and she had gone to her bed. She said that she had told the doctor that her abdomen looked swollen and was sore. When walking to the bed, she had been holding her stomach as she was walking, because it had seemed heavy. The doctor at her bed she described as a young Indian doctor; it was a matter of agreement that he was Dr Basu. She told him about her wound and he said to lie on the bed. When she did that, her stomach flattened out. She told him that her stomach was swollen and sore, and felt heavy. He did not, however, ask her to stand up. The doctor had said that there was a piece of red skin near the wound, and that it was weeping. He took a swab and said that the pursuer must wait for the result. Dr Basu had not said anything about his opinion of the wound, but she had the impression that he thought that it was swollen but otherwise fine. Dr Basu had left, and later that day, at about lunchtime, the pursuer had seen Dr Mensah, the consultant who had charge of her, and a Dr Currie, who had discussed her medication. She had told Dr Mensah that the wound was swollen and sore, but he had not examined her; it was accepted that he had not been at fault in not carrying out an examination at this time. Thereafter she had been allowed home at approximately 7 pm that day. [8] In cross-examination the pursuer went through the history of her stay in hospital in considerable detail. On the crucial examination by Dr Basu, she stated that she thought that she had seen him at about 10.30 that morning, but it could have been later in the day. She had been told that she could go home later that day. The pursuer agreed that she had told Dr Basu that her stomach felt heavy but that he did not think that anything was wrong. In re-examination the pursuer was questioned further about her interview with Dr Basu on the morning of her discharge, and it was at this point that she gave the fullest account of what was said. I accordingly listened to the tape recording of this part of her evidence, and the account that follows is based on the recording. The pursuer stated that she had told Dr Basu that her stomach was swollen. He had said to lie down, and looked at the wound. He had placed his fingertips at her sides and above the wound, but not any further down, in the area below the wound. She then said "When I stood up [the swelling] was there. When I lay flat it wasn't there". The evidence continued:Q- "Yes. Did you tell him that?"
A- "Yes".
Q- "Are you sure about that?"
A- "Yes. Yes I'm sure".
Q- "It's quite important you told him there's a difference standing".
A- "Yes".
Q- "Do you remember what words you used?"
A- "The only way I could describe it is that I felt very heavy".
Although that passage occurred in re-examination, the pursuer's conversation with Dr Basu had been covered in considerable detail in the course of her cross-examination. It was in re-examination that the pursuer gave the most comprehensive account of what she said.
[9] The foregoing passage in the pursuer's re-examination is clearly of great importance. I have no hesitation in concluding that the pursuer was credible in her account of what she said to Dr Basu. I am also satisfied on a balance of probabilities that she drew Dr Basu's attention to certain features of her condition that ought to have alerted him to a possible risk of dehiscence. In particular, I am satisfied on a balance of probabilities that she told Dr Basu that she was feeling heavy, and that a pouching effect or protrusion was observable. I reach that view not only on the basis of her direct evidence about the conversation, but also on the basis of evidence from the pursuer, from her husband and from a friend of the pursuer, Mrs Donna McTaggart, that she had been particularly concerned about the pouching effect on her abdomen and the way that she felt heavy, in an unusual fashion. It is clear from the evidence of the pursuer's husband and Mrs McTaggart that the pursuer was worried about these features of her condition. In view of her clear concern, I consider it likely that she would have brought these signs to Dr Basu's attention. Indeed, in her examination in chief she stated that as she walked towards her bed to see Dr Basu she had been holding her stomach as she was walking, because she had felt it heavy. She also mentioned in examination in chief that she had told Dr Basu that she felt heavy. That by itself was one of the signs referred to by Dr Livingstone as indicating a risk of an incipient dehiscence. [10] Both Dr Livingstone and Dr Cassidy were in agreement that, if the pursuer did tell Dr Basu that the swelling was present when she was standing but not when she was lying down, he should have suspected an incipient dehiscence and carried out a further examination. Moreover, Dr Livingstone attached importance not merely to the existence of a swelling that disappeared on lying down, but also to a feeling of heaviness and the patient's need to hold herself in. I am satisfied that in expressing that view Dr Livingstone was setting out proper standards of professional practice, such that they should be followed by any gynaecologist of ordinary competence. On that basis, the pursuer was experiencing a number of signs that suggested a risk of dehiscence, and, on her evidence in re-examination, she drew Dr Basu's attention to at least two of those signs. That is sufficient for me to hold that there was negligence on Dr Basu's part. [11] I should add that there was some dispute between counsel as to what the pursuer actually said in evidence. In particular, counsel for the defenders stated that, according to his notes, the pursuer had said: "When I stood up it was there, when I lay down it was not". She was then asked: "Did you ask Dr Basu that?", and she replied "Yes, I'm sure I did". The implication was that she had been uncertain as to whether she did, and had used the expression "I'm sure" to indicate that she supposed that she had mentioned the disappearance of the swelling when lying down, rather than to indicate certainty. The primary and literal meaning of the word "sure" is "certain", but in ordinary usage the expression "I'm sure" can be used either to indicate certainty or to indicate that facts are supposed, which clearly carries an implication of doubt. As I have mentioned, I listened to the tape recording of the critical passage in the pursuer's re-examination, and I have set out the most important questions and answers in paragraph [8] above. That passage by itself indicates that the word "sure" was used in its normal signification, to indicate certainty. Moreover, when she answered "Yes" to counsel's questions about whether she told Dr Basu that the swelling was not there when she lay flat, the tone of her voice was extremely positive. I am accordingly satisfied that the interpretation that counsel for the defenders sought to put on the pursuer's re-examination was misplaced, and that the proper conclusion is as described in paragraph [9] above. [12] The pursuer's husband, Philip Morgan, had visited his wife in hospital after her operation. She had told him that her wound was different from her neighbouring patient's. He had looked at it and had noticed that it formed a kind of pouch at the top of the wound. Mr Morgan produced a very clear drawing of what he had observed. He had noticed that the pouch was not visible when his wife was lying down; when she lay down, her stomach was flat apart from a slight swelling across the wound itself. He had noticed it, however, when she stood up. The pursuer had also told him that she felt very heavy. Evidence was led from Mrs Donna McTaggart, a friend of the pursuer who had visited her in hospital. When she visited the pursuer she had been shown the pursuer's wound. She had noticed that her abdomen bulged out from the wound. The pursuer had pointed to that, and asked if anything was wrong. The pursuer had not thought that her wound was right; she had said that she felt very heavy and did not feel right. Mrs McTaggart had no experience of such wounds, and was therefore unable to comment. She did, however, state that the pursuer was quite concerned about the state of the wound. Both Mr Morgan and Mrs McTaggart impressed me as truthful witnesses, and I thought that both were careful in giving their evidence. [13] Dr Basu also gave evidence. At the relevant time he had been a specialist registrar at Dumfries and Galloway Royal Infirmary. By that time he had had extensive experience of various areas of medicine, notably obstetrics and gynaecology, in both India and Britain. I have no doubt that he was a well-trained and competent gynaecologist. He was referred to the entry that he made in the pursuer's medical notes regarding his examination of the pursuer on 19 March 1999. He had been asked to see the pursuer, probably to allow her to be discharged home. Nothing in the record of his examination of the pursuer showed any significant concern. Weeping in the middle of the wound was recorded, but that was not an uncommon finding. Dr Basu stated that the pursuer would have been examined flat, because that was the conventional position for examination. He would have examined her standing if there were a specific complaint of anything relating to posture. Dr Basu was asked whether the pursuer had told him that her abdomen was swollen standing but disappeared when she was flat. He said that was possible; he could not remember. If he had been told that, however, he would have conducted an examination in an erect posture, and would have recorded it. [14] The main difficulty with Dr Basu's evidence is that he had only been contacted about the case within the last ten days prior to the proof. At that point he looked at the medical records. It was clear, however, that he had no recollection of the particular examination in question. That is hardly surprising after the elapse of some five years. Moreover, the pursuer had not been his patient, and it is quite possible that the examination in question was the only time when he examined the pursuer. That makes any recollection of the pursuer even less likely. It is perhaps surprising that Dr Basu was not contacted much earlier about the case, at a time when he might have been expected to have some recollection of events. His position is clearly unfortunate, and difficult. Nevertheless, I must decide the case on the evidence led before me, without speculating about the evidence that Dr Basu might have been able to give had he been contacted earlier. [15] By contrast, the pursuer had a vivid recollection of events, as set out in paragraph [8] above. While her evidence on points of detail was not always totally clear, I consider that her evidence was satisfactory on the essential part of her case. In particular, I am satisfied on a balance of probabilities that she did mention to Dr Basu that her abdomen was displaying a pouch and that she was feeling heavy. In addition, it was clear from the evidence of the pursuer's husband and Mrs McTaggart that the pursuer had been very concerned about her condition immediately after the operation, and in particular about the pouch on her abdomen. I think that that adds considerably to the likelihood that she would have mentioned the signs that she was exhibiting to Dr Basu. The pursuer's account of events is further supported by Dr Livingstone. He stated that the pursuer's account of her condition, as stated in her evidence, was wholly consistent with an incipient dehiscence. She could not possibly have made the symptoms up, because she had given a detailed account of them very shortly after the dehiscence occurred. In all the circumstances I prefer the pursuer's account of the examination, essentially for the reasons given in paragraph [9] above. [16] Counsel for the defenders relied on certain other features of the evidence to suggest that the pursuer was an unreliable witness on the critical examination. First, he pointed out that the pursuer had seen Dr Currie on the morning of her discharge to discuss hormone replacement therapy, but did not say anything about the swelling in her abdomen. Secondly, he referred to a visit to the pursuer made by Dr Littler, her general practitioner, on 22 March, after she had gone home. There was no evidence that the pursuer had said anything about the swelling on that occasion. Thirdly, the district nurse had visited the pursuer to remove her stitches. The pursuer had referred to the swelling, but did not say that it was different when she was standing and lying. Fourthly, the pursuer had not even mentioned the swelling when she went back into hospital. In relation to the first three of these matters, I consider that the context was quite different from the meeting with Dr Basu. In the first and third cases the discussion or visit had a specific purpose, and it is hardly surprising that the pursuer did not mention other concerns that she had. The visit by Dr Littler was to check on her general welfare, but the pursuer had discussed her concerns prior to her discharge from hospital, and it is perhaps hardly surprising that she did not mention them on a routine visit by her general practitioner. In relation to the fourth of these matters, counsel founded on the evidence of Dr Mensah about the discussion that he had with the pursuer after her return to hospital. Dr Mensah stated that, on that occasion, she said that she had told someone once or twice that her abdomen felt heavy, and that when she had been examined she had been made to lie down, with the result that the swelling went away. This evidence did not affect my general view of the pursuer's account of events. At the time when she spoke to Dr Mensah the pursuer had only recently suffered the dehiscence. In any event, it is clear that she was concerned at that time about both the swelling and the feeling of heaviness. I consider that, if anything, that makes it more likely that she mentioned these factors to Dr Basu.Conclusion
[17] My conclusion, accordingly, is that the pursuer has established fault against the defenders. I should state, however, that this does not involve severe criticism of Dr Basu. He was called to examine the pursuer at short notice, and was no doubt extremely busy at the time. On the account of events that I have accepted, he missed the significance of certain critical signs that the pursuer described to him. Dr Livingstone stated that that can easily happen, a view which I fully understand. [18] The parties were agreed that, if the defenders were found at fault, the damages awarded should be £47,000. That sum covered solatium, loss of wages and loss of services. It was agreed that interest on that sum should run from 19 March 2004. In view of my finding of fault, I will sustain the pursuer's first plea in law, repel the defenders' first three pleas in law, and pronounce decree for the sum of £47,000, with interest at the judicial rate from the agreed date. In addition, I will certify as expert witnesses Dr Livingstone, Professor James Furnell and Dr John Crichton, all of whom gave evidence for the pursuer, the latter two on matters relating to quantum, and Dr Cassidy and Dr Turner, who either gave evidence or prepared a report for the defenders.
