Honisz v. Lothian Health Board & Ors [2006] ScotCS CSOH

"The wounds look alright. There [are] no signs of inflammation. The calf is also supple. The patient will be admitted overnight. Canvas splint will be applied following neurovascular parameters. Possible re-application of a cast tomorrow."

Thus it was decided to keep the pursuer in hospital overnight for observation and he was transferred to a bed in a ward. Significantly the pursuer slept well after admission to the ward at about 0120 hours on 20 November, having received 30 mg of the analgesic, dihydrocodeine. Unfortunately, the pursuer's medical records do not disclose whether a reading of his temperature was taken either in the accident and emergency department or in the ward. Normal practice would have been for the nurses to have done so both on admission to the ward and before the morning ward round. The next extant, recorded temperature reading after his discharge on the afternoon of 19 November is not until 1700 hours on 20 November.

[12 ] Mr Court-Brown saw the pursuer on the morning ward round between 0830 and 0900 hours on 20 November. He noted the following in the medical records:

"Patient has returned with pain in his knee. Cast has been removed and he still seems to have knee pain. There is nothing to see, he is lying with his knee in 20 degrees of flexion. I think we must maintain him in hospital to prevent a flexion contracture and other complications."

At about 1400 hours nurses detected symptoms of infection in the pursuer's right knee. His stitch sites appeared to be hot, swollen and oozing. A swab was taken and bacterial infection was detected. The nurses informed the registrar and the pursuer was given antibiotics intravenously.

[13 ] The pursuer does not criticise the care which he received in the Infirmary after the intravenous antibiotics were administered at about 1400 hours on Saturday 20 November. I therefore do not record the subsequent events in any detail. On 21 November Mr Court-Brown recorded that the pursuer had been difficult to evaluate but that it looked as if he had sepsis in his knee following his arthroscopy on 17 November. He decided that the pursuer's knee should be washed out under general anaesthetic and the same day the pursuer underwent a knee lavage in which his knee was washed out with three litres of saline. Pus flowed freely from the portals and he was diagnosed as suffering from septic arthritis. He underwent repeat knee lavages on 23, 27 and 29 November. In the operation on 27 November the surgeon made a lateral arthrotomy (a cut into the knee joint with a knife) before washing out the knee. On 29 November the surgeon re-opened the lateral arthrotomy to inspect the joint. On 1 December Mr Nutton performed a repeat arthroscopy and discovered intense synovitis with fibrinoid material over the articular surfaces, especially on the suprapatellar pouch (the part of the knee lying above and behind the patella). He performed an arthroscopic debridement, removing this material from the articular surfaces using a power shaver, and inserted a drain into the knee. To improve the movement of his knee, the pursuer underwent a manipulation of the knee under anaesthesia on 20 December. Doctors were concerned about the pursuer's rehabilitation as he did not cooperate with them and lacked motivation. Mr Nutton therefore decided to keep him in hospital so that he could receive intensive physiotherapy, although he was allowed home for Christmas Day. Concerns about the pursuer's reliability as an outpatient led to him remaining in hospital until he was discharged on 3 January 1994. Thereafter the pursuer was given appointments for physiotherapy between January and March 1994.

The pursuer's career and subsequent medical history

[14 ] The pursuer did not pass his standard grades following his operation but, in his evidence, did not attribute his lack of success to the problems with his knee. He did not work for about a year after he was discharged from hospital. His recollection of his employment history in the succeeding years was not clear but he appears to have been in employment for most of the time from 1996 onwards. He has been a determined worker and has shown considerable motivation to obtain and retain employment. He worked on a landscape gardening course, started an apprenticeship as a blacksmith and was employed on a lorry delivering drinks. He also worked as a driver and as an unskilled assistant in the microbiology department of the Western General Hospital in Edinburgh. Between February 2000 and February 2005 he was employed by the Royal Navy, in which he worked as a sonar engineer on shore and in submarines. He was temporarily downgraded in 2000 as a result of an injury to his right knee and again in September 2002 after another injury, on this occasion to his left knee. Eventually in 2004 an MRI scan revealed degeneration of his right knee. He underwent a further arthroscopy and he was then retired on health grounds in late 2004 but continued to receive pay from the Navy until February 2005. Between November 2004 and March 2005 he worked as a security guard in the retail park at Fort Kinnaird but had difficulty with the job because he required to remain on his feet for many hours. More recently he has obtained a job as a security guard with Next plc which he has found easier to cope with as he is able to spend more time at a desk.

[15 ] The pursuer's love of football has caused him to incur further injuries to his knees. He spoke of being addicted to football. Certainly his enthusiasm for the game has caused him to expose his knees to injury when a more prudent person would have protected his knees. He twisted his right knee in September 1998 and underwent a partial lateral meniscectomy of that knee, which involved a surgeon trimming his degenerated lateral meniscus, in the Princess Margaret Rose Hospital in November 1998. The surgeon observed a moderate degree of degenerative change in the patello-femoral and lateral compartments of his knee. In November 2000 he suffered a hyperextension injury to his right knee and was not fully fit for a year afterwards. The pursuer's medical records contain an entry that he suffered a minor injury to his left knee in February 2002 but the pursuer's evidence was that he did not suffer such an injury. He explained that he obtained a medical certificate for that alleged injury in order to avoid having to go camping in Wales. In September 2002 his left knee locked while he was playing football. At around that time he suffered from a continuing depression as a result of his knee injuries and also personal debts.

[16 ] Mr Thomas Mann, who gave evidence on behalf of the pursuer, suggested that degenerative change in the lateral compartment of the pursuer's right knee which was noticed in 1998 and in 2001 might have been caused at least in part by trauma. But he associated the degeneration in the patello-femoral compartment solely with the infection which the pursuer suffered in 1993. The defenders' witnesses challenged this view. By 2001 it was evident that the pursuer had trouble with the lateral compartment of his right knee and Mr Mann suggested that trouble was impending in the other two compartments. He was predisposed to further injury of his knee. Patello-femoral degeneration made it difficult for him to climb stairs. Over time his arthritis was likely to get worse. The defenders' witnesses did not challenge this prognosis.

[17 ] Mr Wallace led the evidence of the employment consultant, Mr Robert Andrew Dewar, on the pursuer's future employment prospects. Mr Dewar explained that the pursuer was determined to remain in employment but that the injury to his knee and the likelihood that his knee would deteriorate over time meant that he was likely to suffer longer periods of unemployment between jobs than he would have if fully fit. This was not challenged. He would be able to work as a driver or a van driver although with some difficulty, or as a retail security guard provided he could sit down frequently.

[18 ] While the pursuer in his evidence blamed his present condition solely on the infection which he suffered in 1993 and suggested that that had led to the loss of his naval career, his counsel submitted that his claim was for disadvantage in the labour market rather than loss of earnings. As his pre-operation knee condition would have ruled out a career as a footballer and as the pursuer was not inclined towards academic or administrative work, the labour market in which he could have operated but for the knee infection in November 1993 would not have included those activities.

The credibility and reliability of the pursuer

[19 ] The pursuer was not a good historian in relating the detail of his treatment or the sequence in which events occurred. He was wrong in his recollection of events when in the Infirmary and that he only attended physiotherapy on three occasions. He frequently exaggerated in his evidence when he described his condition in hospital in November 1993. He was not a reliable witness on these matters. At various times he asserted that on discharge from hospital he was on crutches for several months and that he was given only three physiotherapy sessions. Neither of these assertions was true. There were examples of occasions when his account of his history to other persons did not tally with what he said in court. The defenders also attacked his credibility. There were several instances which were explored on cross-examination where it appeared that he may have knowingly misled others in order to obtain some advantage for himself. On occasion he failed to disclose to his employers, including the Royal Navy, the extent of his knee problems. It also appears that at one stage he claimed sickness benefit when he was in employment. He feigned injury to obtain a medical certificate in February 2002 to avoid going camping when in the Navy. Notwithstanding the defenders' challenge on this matter, I did not form the impression that he was an incredible witness; but I was satisfied that his recollection was not sufficiently accurate that I could place significant weight on his evidence when uncorroborated.

The pursuer's allegations of negligence and the defenders' response

[20 ] Counsel for the pursuer led as his expert witness Mr Thomas Mann, the well-known consultant orthopaedic surgeon, who has retired from medical practice. He produced medico-legal reports for the pursuer in 1994, in 1998 (when this case was first due to come to proof) and again in 2005. Mr Mann had three principal criticisms of the treatment of the pursuer in the Infirmary between 16 and 21 November 1993.

[21 ] First, he argued that the consultants responsible for the care of the pursuer had been negligent in not giving the pursuer prophylactic antibiotics either before or during the operation on 17 November. There were, he suggested, two reasons for administering antibiotics: the prior operations on the pursuer's knee increased the risk of infection, and the decision to trim the lateral meniscus prolonged the operation and thus the pursuer's exposure to infection. The consultants should have been aware of the recent arthroscopies and the risk that there would be infection at the portals created by those operations. He referred to Epps "Complications in Orthopaedic Surgery" (1996), which he suggested showed that there was a 1.89% risk of infection in "outside-in" meniscal repairs. It was standard practice to give prophylactic antibiotics when a patient underwent a knee or hip replacement. The study by Armstrong and others of risk factors for septic arthritis following arthroscopy in "Arthroscopy: The Journal of Arthroscopic and Related Surgery" (1992) (213-223) suggested that the infection rate in arthroscopy of the knee was 0.42%. It identified, among others, prior surgical procedures on the same knee and prolonged operative time as risk factors that increased the risk of infection and recommended among other things aspiration of the joint where the patient suffered persistent pain and swelling after arthroscopy. The paper also suggested that prophylactic antibiotics had a slight protective effect. Mr Mann accepted that there was no normal medical practice of administering antibiotics prophylactically in routine arthroscopies but opined that in this case the prior surgical interventions and the additional repair of the meniscus had made it necessary for doctors to administer antibiotics in the exercise of due care.

[22 ] Secondly, Mr Mann opined that it was negligent for a consultant or senior registrar to have authorised the discharge of the pursuer on Friday 19 November. Knowledge of the previous arthroscopies and the cartilage repair should have caused the doctors to consider whether the pursuer's symptoms of pain meant that an infection was developing. They would have been aware of the high temperature readings on the Thursday. They should not have relied on only one normal temperature reading on the Friday particularly when he had an elevated pulse rate but should have waited until there were further (one or two) normal temperature readings before discharging the pursuer. Mr Mann stated that he had the impression from reading the pursuer's case record that his problems had not settled when he was allowed home. He explained that the evidence of the pursuer and his mother as to the extent of his pain and complaints about that pain was a factor in his reaching the view that it was negligent to discharge him on the Friday afternoon.

[23 ] Thirdly, Mr Mann criticised the care of the pursuer on his readmission to the Infirmary late on the evening of 19 November and on the morning of 20 November. On his readmission and removal of the POP cast at about midnight, the doctors should have carried out blood tests for infection, such as a white blood cell count or an erythrocyte sedimentation rate ("ESR"), and thereby identified the existence of the infection about fourteen hours before it was identified. Had the blood tests shown infection he would have aspirated the knee. He suggested that the staphylococcal infection, which had been activated by the operation, would have been showing signs within forty-eight hours of the operation. He also observed that there was no record of anyone taking the pursuer's temperature, pulse or blood pressure on his readmission. Another opportunity to identify the infection was lost on Mr Court-Brown's ward round on the morning of 20 November when it appeared that he did not inspect the pursuer's knee nor ensure that the pursuer's temperature was taken.

[24 ] The defenders led evidence from doctors who treated the pursuer and from an independent expert to refute these criticisms.

[25 ] In relation to the first case (the failure to administer prophylactic antibiotics), Professor Court-Brown explained that he had involved Mr Nutton in the pursuer's care because he was very experienced in knee arthroscopy and because the operation on 17 November was to be the pursuer's third arthroscopy. He suggested that it was not common practice to give antibiotics for an arthroscopy. The pursuer's earlier arthroscopies had been minor procedures which would not have been likely to cause soft tissue damage in contrast with hip replacements and reconstructive surgery after major fractures both of which devitalise tissue. He did not accept that the decision to trim the meniscus, which was taken during the arthroscopy, materially increased the risk of infection. The Infirmary's protocols did not provide for the administration of antibiotics on routine arthroscopies. On cross-examination Professor Court-Brown explained that in his opinion the risk of dormant infection was very low. The danger posed by previous operations was the devitalisation of tissue, which created suitable conditions for the spread of infection, and such devitalisation was not associated with arthroscopies. There was a debate as to the appropriateness of antibiotics when performing operations on fracture sites where the risk of infection was 1.5% or more. The risk of infection from arthroscopy was about 0.1% and not the 0.42% suggested in the Armstrong paper.

[26 ] Mr Nutton explained that he performed about one hundred arthroscopies each year and that during his career he had performed about four thousand arthroscopies of the knee. Where there had been previous operations on the knee his practice was to examine the portals carefully to ascertain if there were signs of infection. He did not use prophylactic antibiotics routinely for arthroscopies and did not think that his colleagues did. Administration of antibiotics carried the risk of anaphylactic shock. The operation in question was not prolonged; it took about thirty minutes. The overall risk of septic arthritis was very small. In his experience the risk was about 0.05%. He suggested that Armstrong's paper disclosed a risk percentage associated with prior operations which was significantly higher than other studies and suggested that for the results to be helpful one would have needed to know the type of operation, the time lapse between that and the next operation, and the infective agent. Mr Nutton explained that he would have used antibiotics if there had been very recent arthroscopy and the wounds had not healed or were barely healed. He would have used different portals if there had been any signs of infection. He would also use prophylactic antibiotics if he were grafting on foreign material or was performing prolonged surgery. But he would not usually administer prophylactic antibiotics for an arthroscopy of the type which he performed on the pursuer where the prior surgical procedures were over a month ago and the wounds had healed. He was not aware that any of his colleagues who were experienced in arthroscopy would give prophylactic antibiotics in such circumstances.

[27 ] The defenders also called as their independent expert witness, Mr William Hadden, a consultant orthopaedic surgeon and honorary clinical senior lecturer in orthopaedics at Dundee University. He expressed the opinion that while it would have been acceptable practice to administer prophylactic antibiotics to the pursuer, he would not have done so and he did not consider that it was negligent not to do so. He would use prophylactic antibiotics when conducting operations which introduced large foreign bodies into the human body and in operations which lasted longer than one hour but he had never used them in a repair of the meniscus. There were no guidelines or protocols requiring the use of antibiotics and there was the risk of an anaphylactic reaction to them. The pursuer's previous arthroscopies had been short operations and there was no suggestion that the pursuer had suffered any infection as a result of them. Any surgeon would check the portals for infection which if found would justify delaying the operation. Where infection was found, it would be prudent to use antibiotics in the postponed operation. He was referred to the medical literature and commented on Epps, Armstrong and De Lee, observing that none of them advocated the use of antibiotics in circumstances similar to those in this case.

[28 ] In relation to the pursuer's second case (that it was negligent to discharge the pursuer in the afternoon of 19 November) Mr Nutton explained that in his absence a senior registrar would conduct the morning ward round and authorise the discharge of a patient in the afternoon if the patient's condition remained satisfactory. A junior doctor would then authorise the discharge in the course of the afternoon. If a problem were identified, the senior registrar would telephone Mr Nutton for advice. He suggested by reference to the nursing notes which showed the analgesia which the pursuer received and the trend of his temperature on the Thursday and Friday that he would have considered it appropriate to discharge the pursuer on Friday afternoon. It was the trend of the pursuer's temperature, which was returning to normal, rather than any individual reading that was important. Professor Court-Brown described the pattern of the pursuer's temperature as a fairly normal post-operative temperature chart. Mr Nutton observed that there was no record of his pain getting worse or of enhanced analgesia demand. The raised pulse rate could have been caused by his continued post-operative pain and did not indicate that he should be kept in hospital. There was no record of any disproportionate pain. Mr Nutton accepted that theatre-induced infection could flare up within twenty-four hours and that infection was one of the possibilities to be considered on Thursday 18 November. But he suggested that with the benefit of hindsight it was likely that the infection developed later in the pursuer's case as his temperature was coming down on the Thursday and on Friday morning and his need for pain relief diminished.

[29 ] Mr Hadden opined that the downward trend of the pursuer's temperature and the other entries in the nursing notes did not suggest that it was inappropriate to discharge the pursuer on the afternoon of 19 November. He disagreed with Mr Mann's opinion that it was negligent to discharge the pursuer without waiting for another normal temperature reading, stating that he knew of no protocol or practice which demanded that. He considered with hindsight that the pursuer's high temperature and persistent tachycardia may have been caused by the infection, but opined that, without that hindsight, the records did not contain any indication that it was inappropriate to discharge the pursuer.

[30 ] Both Mr Nutton and Mr Hadden gave their opinions on the basis that the medical notes and nursing records accurately recorded the pursuer's condition on 18 and 19 November. By contrast, Mr Mann in expressing his views had regard to the pursuer's account that on 19 November he was in agonising pain and complained of that pain to doctors and nurses. On cross examination Mr Hadden accepted that if the pursuer had been in such pain, was suffering an elevated temperature and there was evidence of pressure from the POP cast on 19 November it would have been negligent to discharge him from hospital. Instead his POP cast should have been removed. But he opined that if the pursuer's temperature was under control, he was mobilising on crutches and he was complaining of pain, he would have done what the doctors in the Infirmary did and sent the pursuer home.

[31 ] In relation to the pursuer's third case (the negligent failure to detect the infection late on Friday or on the Saturday morning ward round), Mr Nutton suggested that the relief which the pursuer enjoyed on removal of the POP cast suggested that the POP cast had been much too tight. He did not favour putting a POP cast on a patient who had had a knee operation as post-operative bleeding into the knee joint was common and could cause extreme discomfort. The pursuer's knee would have looked swollen even if it were not infected and it was clear from the medical notes that Dr de Vriese was looking for signs of infection. There were three possible causes of the pain which the pursuer suffered on the Friday night. They were (i) the POP cast was too tight, (ii) he had suffered a secondary haemarthrosis (bleeding from the operation site twenty-four or more hours after the operation) and (iii) he had developed an infection. It was known that the risk of infection in an arthroscopy was very small. If he had been attending the pursuer on the Friday night he would have aspirated his knee to test for infection but he did not think that it was negligent for a doctor not to do so as the risk of infection was so low. If aspiration revealed an infection he would have commenced antibiotics immediately. He would not have relied on a white cell count. In relation to the absence of any temperature readings on the Friday night, he speculated that the accident and emergency department's records might have been mislaid. A patient's pulse and blood pressure would normally be taken in the accident and emergency department if the doctor were concerned that there was an infection.

[32 ] Professor Court-Brown said that he would not have intervened on the pursuer's readmission. The trend of the pursuer's temperature returning to normal, the absence of any sign of infection in his knee on removal of the POP cast, the pain relief which he enjoyed on that removal and the fact that he was able to sleep thereafter would have persuaded him that it was prudent to wait to see if the discomfort resolved itself. Professor Court-Brown would not have aspirated the knee unless the patient had an elevated temperature as aspiration would have caused pain. Nor did he consider it necessary to take a white cell count because Dr de Vriese had looked for and not found any infection. When he conducted the ward round at about 0830 hours on Saturday 20 November he would have recorded any finding of excruciating pain as that would have been clinically significant. He was sure that the pursuer's temperature would have been taken every four hours even though the nursing notes did not record it. If the pursuer's temperature had been raised on Saturday morning he would have aspirated the knee.

[33 ] Professor Court-Brown opined that there were four possible causes of swelling, pain and elevated temperature. First, there might be trauma to the soft tissue and some bleeding from the operation. Secondly, pressure on the knee from the POP cast could be a cause. Thirdly, there was the possibility of a secondary haemarthrosis. Fourthly, there was the possibility of infection but that was very rare. He explained that pain over two or three days did not amount to the persistent pain to which Armstrong referred in his paper; in that context persistent pain meant pain over about two weeks.

[34 ] Mr Hadden expressed the view that Dr de Vriese on examining the pursuer on his readmission was looking for excessive inflammation or bleeding from the wounds which might indicate compartment syndrome (damage to muscle caused by restricted blood flow due to swelling in a compartment of the knee). He interpreted the medical records as indicating that Dr de Vriese examined the portals and did not find any unexpected degree of inflammation. There were no clinical signs of infection on Dr de Vriese's examination or on Professor Court- Brown's ward round. The doctors were entitled to conclude that the pursuer's problem had been an excessively tight POP cast and treat it by removing the POP cast. The pain relief which the pursuer enjoyed on removal of the POP cast pointed to ischaemic pain (pain caused by lack of blood flow delivering oxygen) rather than infection. He would not have taken a white cell count nor would he have aspirated the knee as the pursuer had responded well to the removal of the POP cast and aspiration would risk infecting the knee. He suggested that on the evidence available to the doctors the overwhelmingly most likely cause of the pursuer's pain was pressure from an over-tight POP cast. He did not accept the suggestion that no reasonably competent senior doctor would have failed to diagnose an infection in the pursuer's knee. The decision to keep the pursuer in hospital on the night of 19 to 20 November for observation was a reasonable one.

[35 ] Mr Hadden's only criticism of the pursuer's care in the months before 20 November 1993 was that, as is common in many large hospitals, there had been no continuity in his clinical supervision. Greater continuity might have brought about an earlier diagnosis of the damaged meniscus and have discouraged the pursuer from playing football. It was possible also that as a result of greater familiarity with the pursuer the clinician might have had a better understanding of the pursuer's pain threshold. Recognition of the extent of the pursuer's pain might have allowed the clinician to identify infection earlier but compression was the most likely cause of that pain.

Decision

Legal issues

[36 ] Counsel for the pursuer referred me to the following cases in relation to the test for negligence: Hunter v Hanley 1955 SC 200, Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634, Bryan Peach and Another v Iain G Chalmers 1992 SCLR 423, Gordon v Wilson 1992 SLT 849 and Bolitho v City and Hackney Health Authority [1998] AC 232. Counsel for the defenders referred me also to Whitehouse v Jordan [1981] 1 WLR 246 and Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871. Parties agreed that the principal test to be applied was that laid down by Lord President Clyde in Hunter v Hanley, namely that the pursuer must prove that the doctor who is said to be negligent had been guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. Further, it was not disputed that, as Lord President Clyde also said (at p.206), to establish liability where he alleges deviation from normal medical practice the pursuer must prove (i) that there was a usual and normal practice, (ii) that the doctor had not adopted that practice and (iii) that the course which the doctor adopted was one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.

[37] As in this case the pursuer alleges that the consultants responsible for his care were the negligent parties, the relevant standard of professional man is the standard of the consultant orthopaedic surgeon of ordinary skill. That this was inherent in the Hunter v Hanley test, and in England in the Bolam test, was confirmed by a trilogy of cases in the House of Lords, namely Whitehouse v Jordan, Lord Fraser of Tullybelton at p.263, Maynard v West Midland Regional Health Authority, Lord Scarman at p.638H, and Sidaway v Governors of Bethlem Royal Hospital, Lord Diplock at pp.892-893 and Lord Bridge at p.897C. This was not disputed.

[38 ] The main area of contention between parties as to the law was what was the proper approach for the court to take to the evidence of the consultant orthopaedic surgeons led by the defenders that they would have adopted the same practices as those which the consultants and senior registrars, against whom negligence is alleged, in fact adopted. Again, however, the matter is one decided by authority which may be summarised briefly in the following propositions.

[39 ] First, as a general rule, where there are two opposing schools of thought among the relevant group of responsible medical practitioners as to the appropriateness of a particular practice, it is not the function of the court to prefer one school over the other (Maynard v West Midlands Regional Health Authority, Lord Scarman at p.639F-G). Secondly, however, the court does not defer to the opinion of the relevant professionals to the extent that, if a defender lead evidence that other responsible professionals among the relevant group of medical practitioners would have done what the impugned medical practitioner did, the judge must in all cases conclude that there has been no negligence. This is because, thirdly, in exceptional cases the court may conclude that a practice which responsible medical practitioners have perpetuated does not stand up to rational analysis (Bolitho v City and Hackney Health Authority, Lord Browne-Wilkinson at pp.241G-242F, 243A-E). Where the judge is satisfied that the body of professional opinion, on which a defender relies, is not reasonable or responsible he may find the medical practitioner guilty of negligence, despite that body of opinion sanctioning his conduct. This will rarely occur as the assessment and balancing of risks and benefits are matters of clinical judgment. Thus it will normally require compelling expert evidence to demonstrate that an opinion by another medical expert is one which that other expert could not have held if he had taken care to analyse the basis of the practice. Where experts have applied their minds to the comparative risks and benefits of a course of action and have reached a defensible conclusion, the court will have no basis for rejecting their view and concluding that the pursuer has proved negligence in terms of the Hunter v Hanley test (paragraph [36] above). As Lord Browne-Wilkinson said in Bolitho (at p.243D-E), "it is only where the judge can be satisfied that the body of expert opinion cannot logically be supported at all that such opinion will not provide the benchmark by which the defendant's conduct falls to be assessed."

[40 ] An example of such a rare case is that of Hucks v Cole [1993] 4 Med L R 393, which Lord Browne-Wilkinson discussed in Bolitho. In that case a general practitioner failed to give penicillin to a lady in a maternity ward who had a septic spot and as a result she developed fulminating septicaemia. The defendant knowingly took a risk that the lady could develop puerperal fever because the risk was small and he was supported in his decision by distinguished expert witnesses. Nevertheless the judge concluded that he was negligent and the Court of Appeal upheld his decision, Sachs LJ holding that there was a lacuna in professional practice and that the defendant knowingly took an easily avoidable risk which elementary teaching had instructed him to avoid. As, in the court's judgment, there was no proper basis for the practice of not giving penicillin it was not reasonable for the medical practitioner to expose his patient to that risk.

The allegations of negligence

[41 ] I am satisfied that the consultants responsible for the pursuer's care acted reasonably in deciding not to administer prophylactic antibiotics before or during the arthroscopy on 18 November. I accept the evidence of Mr Hadden on this matter. Having regard to the calculus of risk, there was a very low risk of infection and there were sound medical reasons for caution in the administration of antibiotics. I accept that the generally accepted measure of the risk of infection from arthroscopy was about 0.1%: see the studies referred to in the review article by Noble and Others, "Complications of arthroscopy of the knee" ("The Knee" 5 (1998) 1-8), including the large study by De Lee which gave a rate of 0.08%. It appears that Armstrong's figure of 0.42% is out of line with the widely accepted risk rate which is lower. I accept Professor Court-Brown's evidence that the risk of infection from arthroscopy is very low. There is a debate in the profession whether to administer antibiotics in the context of fracture surgery where the risk is materially higher, in the region of 1.5% or more, and where there is major surgery or the introduction into the body of foreign material. The arthroscopy carried out on 17 November was not an operation of that complexity or duration. In this case the prior operations did not entail a materially enhanced risk of infection. The most recent had been four weeks before and I accept Mr Nutton's evidence that he would not have operated if there had been scar tissue or any signs of unhealed wounds. Caution in the administration of antibiotics was justified by the risk of allergic reaction and also concern about the dangers of over-prescription. There was therefore a proper basis for not administering antibiotics.

[42 ] I am also satisfied that the senior registrar who on the morning ward round on 19 November authorised the discharge of pursuer later that day was not negligent in so doing. I accept that the medical staff were entitled to look to the trend of the falling temperature and the apparently reduced demand for analgesia and to treat those as consistent with resolving post-operative discomfort. While the pursuer complained of pain during 19 November, I am not satisfied that his complaints were such as would necessarily have alerted a competent consultant or senior registrar to suspect an infection and to postpone his discharge.

[43 ] Thirdly, I am not persuaded that there was any negligence on the part of the consultants or their delegates among the senior medical staff in their failure to detect the infection on the pursuer's readmission late on 19 November or during Professor Court-Brown's ward round on the morning of 20 November. The pursuer's history of a falling temperature and reduced analgesic demand, the absence of signs of infection both when Dr de Vriese removed the POP cast and examined the knee for infection and on examination on the morning ward round, the relief which the pursuer enjoyed on removal of the POP cast and his ability to sleep thereafter all justified the medical staff in taking a "wait and see" approach by keeping him in hospital for observation. Again I accept the evidence of the defenders' witnesses on this matter. The decisions whether to test the pursuer's blood by white cell count or ESR or to aspirate the knee were matters of clinical judgement on which responsible and competent practitioners could reasonably differ. In particular the option of aspirating the knee, which Mr Nutton preferred, was a course which would have involved the pursuer in pain and discomfort. It was consistent with good medical practice in 1993 and now to keep the pursuer in hospital and observe developments.

[44 ] It follows therefore that the pursuer has failed to establish negligence in his treatment in the Infirmary between 17 and 20 November 1993. His action therefore fails. For completeness, however, I now consider issues of causation and quantum.

Causation

[45 ] If the pursuer had been given prophylactic antibiotics, it is probable that he would not have suffered the septic arthritis which has contributed to his subsequent problems with his right knee. The extent of that contribution was disputed. Mr Mann opined that the sepsis would have weakened the lateral compartment of the knee and rendered it prone to injury. He also associated the damage to the medial and patello-femoral compartments with the infection. He suggested that the degeneration of the pursuer's right knee was caused primarily by the infection. Mr Nutton disagreed, opining that there were many possible causes of the degeneration of the patello-femoral compartment, including wear and tear and trauma.

[46 ] While there was little evidence on the extent to which the infection caused the pursuer's continuing knee problems and it is clear that the pursuer was very unwise in continuing to play football because of his weak knee, I am satisfied that the infection made a material contribution to the problems which he has suffered with his right knee. Therefore if I had determined that it was negligent not to have administered prophylactic antibiotics, the pursuer would have been entitled to damages.

[47 ] What is more problematic is the contribution to the severity of the infection which any delay in diagnosis and treatment may have made. Mr Mann recognised the difficulty. His approach was that the longer an infection continued before it was treated the worse the prognosis. Mr Nutton disagreed, arguing that it depended on the nature of the infecting organism and its response to antibiotics. Professor Court-Brown agreed with Mr Nutton, opining that it was the infection itself rather than the time of the start of treatment that set the prognosis. Both thought that on the balance of probabilities an earlier start of the treatment would not have achieved a better outcome. Mr Nutton suggested that the single most important cause of the degenerative change in the pursuer's right knee was sports trauma, the continuing injuries which he suffered from his determination to play football. In particular septic arthritis could have damaged the articular cartilage but it would not have caused the degeneration of the lateral meniscus.

[48 ] I am not satisfied that, if there had been a negligent delay in the diagnosis of infection and the start of antibiotic treatment on 19 and 20 November, the pursuer has established a causal link between that delay and the damage which he has suffered in his right knee. There is no doubt, as Mr Mann accepted, that the pursuer was reckless to continue to play football with a weak knee and that sports trauma has contributed significantly to his present problems. I have found on balance of probabilities that the infection also contributed to his present condition. But while the delay may have exacerbated the infection I am not satisfied on the evidence before me that on balance of probabilities it did.

[49 ] The pursuer faced a further problem on causation in relation to his second case. It was that the discharge on the afternoon of 19 November would have contributed to the delay in diagnosis and treatment only if, but for the discharge, the pursuer's POP cast would have been removed and either (i) infection would have been identified earlier than it was or (ii) if failure to identify infection on removal of the cast at that time would itself have been negligent. But as Dr de Vriese did not detect any infection on removal of the POP cast late on Friday night, and I have concluded that he was not negligent in not doing so, it follows that it is probable that the pursuer would not have manifested identifiable signs of infection if the POP cast had been removed several hours earlier. There is therefore no causal connection between the discharge and the delay in diagnosis.

Quantum

[50 ] If I had found that there had been negligence on the pursuer's first case, I would have awarded damages for solatium, for services under section 8 of the Administration of Justice Act 1982 and for disadvantage in the labour market.

[51 ] In relation to solatium, Mr Wallace referred me to the Guidelines of the Judicial Studies Board (7^th ed) pp.49-50, MacShannon v Ailsa Perth Shipbuilders Ltd 1994 SLT 500 and Young v Scottish Coal (Deep Mining) Co Ltd 2002 SLT 1215. On the use of the Guidelines he referred me to the unreported decision of Lord Kingarth, King v Carron Phoenix Ltd 26 January 1999. He also referred me to the MacShannon case in relation to section 8 services that Mrs Honisz provided the pursuer over approximately six months after his discharge from hospital in January 1994. She helped him put on his shoes and socks; she assisted him climbing and descending the stairs and she took him by car, for example to shop. In relation to disadvantage in the labour market he invited me to apply a multiplier of 2.5 to the pursuer's current earnings of £11,000 net.

[52 ] Mr Anderson submitted that an award of solatium should be minimal as the pursuer had a bad knee before the alleged negligence and he had been and continued to be feckless in his refusal to adapt his behaviour to his knee problem. The damage to the menisci and wear and tear were not, he submitted, attributable to any failure by the defenders' employees. He submitted that the award for section 8 services should be minimal as Mrs Honisz had been in full-time employment and provided limited services for a short period. He invited me to conclude that if the sepsis had caused any disadvantage in the labour market, that was only in the short term and that the pursuer's underlying problems with his knee were the principal cause of any disadvantage. He referred me to Walledge v Brown 1996 SLT 95.

[53 ] In assessing the sums that I would have awarded if I had found the defenders to have been liable in damages for negligence, I have had regard to the facts that the pursuer had a bad knee before the operation in question and he persisted in a lifestyle - playing football and joining the Navy - that caused it further damage. I accept on balance that the sepsis would have had some long-term sequelae but consider the damage to the menisci to be principally caused by trauma and wear and tear. I also take account of these matters fixing a sum to represent disadvantage in the labour market. Accordingly, if I had found the defenders liable under the pursuer's first case I would have awarded the following sums:

Solatium £8,000

Interest on 60% of the above £2,337

(12.17 years from 1 December 1993)

Section 8 services £750

Disadvantage in the labour market £11,000

£22,087

However, having held that the pursuer has not established that there was negligence on the part of the defenders' employees, I sustain the defenders' second and third pleas-in-law and assoilzie them from the conclusions of the summons.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Honisz v. Lothian Health Board & Ors [2006] ScotCS CSOH_24 (10 February 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_24.html Cite as: 2006 GWD 19-414, [2006] ScotCS CSOH_24, [2006] CSOH 24, 2008 SC 235

Scottish Court of Session Decisions