Scottish Sheriff Court Decisions

SHERIFFDOM OF LOTHIAN AND BORDERS AT SELKIRK

 

Ref: A152/01

 

JUDGEMENT

 

in causa

 

MICHAEL McCOLM

PURSUER

 

against

 

BORDERS GENERAL HOSPITAL

NHS TRUST

DEFENDER

 

 

Selkirk, 19 October 2007

 

The Sheriff, having resumed consideration of the cause, FINDS IN FACT:-

 

1.                  The Parties are as designed in the Instance.

 

2. On 18 August 1997 the Pursuer sustained injury when a quad bike he was riding overturned.

 

3. He was admitted to Borders General Hospital where a displaced fracture of the distal third of the Pursuer's right tibia was diagnosed. The Pursuer was admitted to the hospital under the care of Mr William G Dennyson, a consultant orthopaedic surgeon.

 

4. Borders General Hospital is a District General Hospital run by the Defender serving the needs of the Borders geographic area. The hospital has, inter alia, an orthopaedic department staffed by consultant orthopaedic surgeons assisted by junior doctors. These surgeons deal with a range of orthopaedic problems including injuries such as sustained by the Pursuer.

 

5. The orthopaedic surgeons included in their number between August 1997 and May 1998 the said Mr William G Dennyson, Mr Driver-Jowitt, Mr Charles Clowes and Mr Christopher Tiemessen all employed by the Defender who is vicariously liable for the acts or omissions of employers.

 

6. On 18 August 1997 the Pursuer's fracture was manipulated under anaesthetic by Mr Dennyson and the Pursuer's leg placed in plaster.

 

7. On 21 August 1997, following a loss of position at the fracture site, Mr Dennyson operated on the Pursuer under general anaesthetic inserting a metal rod (an intramedullary nail) into the internal cavity of the Pursuer's right tibia. The nail was inserted at a point immediately below the Pursuer's right knee and passed down through the bone and across the fracture site into the distal fragment of the tibia. To insert the nail in the medullary canal (internal cavity) of the tibia, it was first reamed. The nail was locked in place by means of a screw passing through the skin and soft tissue above the ankle locking into the nail within the medullary canal of the distal fragment of the tibia. The Pursuer's leg was then put in plaster and he was started on a course of antibiotics.

 

8. The reaming procedure carried out generated heat within the medullary canal of the Pursuer's right tibia resulting in damage to tissues in and surrounding the bone. This can lead to bone and tissue death rendering the Pursuer's leg prone to develop infection. Bone necrosis was not generally recognised as a consequence of reaming in 1997 and the consultant orthopaedic surgeons treating the Pursuer at Borders General Hospital between August 1997 and April 1998 could not reasonably have been expected to have been aware of this infection risk.

 

9. Following his discharge from hospital the Pursuer's progress was reviewed on 30 August 1997. It was noted by Dr Blaikie, a junior doctor, that a leaking wound was not infective and the Pursuer was advised to continue with the antibiotics and painkillers.

 

10. The Pursuer was again reviewed at the fracture clinic on 5 September 1997 and was seen by Miss Dobie a staff grade surgeon. The Pursuer's leg was examined with the plaster removed. It was noted that a fracture blister had developed over the anterior tibia. This "wound" was found to be dirty with exudate. Miss Dobie took a swab for analysis and the Pursuer's leg was put back into plaster.

 

11. On 8 September 1997 the bacteriology report issued from the hospital laboratory indicated there had been no significant growth from the swab taken on 5 September 1997.

 

12. On 12 September 1997, the Pursuer was again seen by Mr Dennyson. The blister previously seen by Miss Dobie had broken down. Mr Dennyson found that there was no function in the Pursuer's extensor hallucis longus which is the tendon controlling the big toe. A swab taken on 11 September revealed the infective organism enterobacter. The Pursuer was given the antibiotic Ciprofloxacin on 13 September 1997 to treat the infection and discharged on 18 September.

 

13. The Pursuer was seen again by Mr Dennyson on 22 September 1997 with the plaster removed. The Pursuer's wound was noted to be granulating and seemed clean. Mr Dennyson reviewed an x-ray and considered this showed evidence of callus which is a sign that a fracture may be progressing to union. A swab was taken and the Pursuer's leg was placed into a below the knee walking cast.

 

14. The Pursuer was seen again by Mr Dennyson on 29 September 1997. It was noted that the swab taken was sterile, the fracture blister was smaller and it was felt that the Pursuer continued to improve. Arrangements were made for the Pursuer to be reviewed again in two weeks' time.

 

15. Four days later on 3 October 1997 the Pursuer attended the Accident and Emergency Department of the hospital complaining of increased exudates from the blister site. Dr Chapell, a junior doctor, measured the blister as 2cm x 3cm and took a swab for analysis.

 

16. On 6 October 1997 the bacteriology report disclosed a heavy growth of Methicillin Resistant Staphylococcus Aureus generally known as MRSA. It was noted that the MRSA was resistant to Penicillin, Flucloxacillin and Erythromycin.

 

17. Staphylococcus Aureus (SA) is a bacterium which may cause infection varying in degree of severity from minor to life threatening. MRSA is a term used to describe strains of SA that have developed variable resistance to standard antibiotics including Methicillin. Since it is resistant to standard antibiotics, MRSA infection is more difficult to treat than infection with non MRSA forms of SA. MRSA is eradicated by administering intravenous Vancomycin. It is the usual and normal practice. This treatment requires to be undertaken in hospital. Vancomycin is toxic and may have unpleasant side effects. The level of the antibiotic in the patient's bloodstream requires to be monitored carefully.

 

18. Dr John Wilson, the Pursuer's general practitioner was informed by telephone by the presence of MRSA.

 

19. On 10 October 1997 Dr Wilson wrote to Mr Dennyson indicating he had been told about the MRSA and also indicating that a small splinter of bone appeared to be being extruded from the wound.

 

20. On 13 October 1997 the Pursuer was again seen by Mr Dennyson. It was noted that MRSA had been cultured and that it was resistant to the antibiotics which the Pursuer was then being given. It was noted that the granulation tissue of the Pursuer's wound appeared to be healthy and improving. Mr Dennyson considered the possibility of admitting the Pursuer for inpatient treatment with intravenous Vancomycin but decided not to do so. His reason was to try to keep the Pursuer out of hospital and on other antibiotics unless his condition deteriorated in which event he would require possible inpatient treatment for intravenous Vancomycin with or without Gentamicin.

 

21. Arrangements were made for the Pursuer to see Mr Dennyson when he returned from holiday in six weeks' time. Mr Dennyson made an arrangement for the Pursuer to be seen in two weeks' time should there be a deterioration in his condition.

 

22. On 14 October 1997 Mr Dennyson spoke to Dr Morag Brown, the consultant microbiologist at Borders General Hospital about the Pursuer since he was concerned about the bacteriology. She agreed with his proposed treatment plan.

 

23. Mr Dennyson also telephoned Dr Wilson indicating that if the Pursuer's position deteriorated he should be seen earlier than six weeks and that an appointment would be sent to the Pursuer for two weeks hence. Mr Dennyson also wrote to Dr Wilson indicating that if the wound deteriorated then the Pursuer may require admission for Vancomycin treatment.

 

24. MRSA is generally difficult to treat and can have serious consequences. There is no support in medical literature for leaving MRSA untreated. Mr Dennyson did not take steps to check if the MRSA organism was sensitive to Ciprofloxacin then being administered to the Pursuer. Mr Dennyson considered it important to find out. A failure to treat the MRSA infection creates the risk of the infection spreading.

 

25. Mr Dennyson accepted that osteomyelitis may have developed in the tibia by 13 October 1997. Early treatment drastically reduces the incidence of subsequent chronic osteomyelitis and osseous destruction.

 

26. The policy of attempting to achieve bony union before dealing with an infection such as MRSA is not supported by any medical text book or other medical literature.

 

27. The Pursuer took up the appointment and attended Borders General Hospital on 27 October 1997. He was seen by Mr Driver-Jowitt, a locum consultant orthopaedic surgeon who accepted the view of the Pursuer that his wound was getting smaller. Mr Driver-Jowitt noted in the medical records "he tells me that the wound is constricting progressively". Mr Driver-Jowitt was aware that radiology demonstrated two or more tiny fragments of bone which appeared to be in the process of being extruded. Mr Driver-Jowitt concluded that the less surgical interference with the Pursuer the better. He did not believe that these fragments were an "aggravating matter". Mr Driver-Jowitt concluded that the ulcer over the fracture site was probably as a result of damage inflicted at the time of injury. Mr Driver Jowitt took no further action and arranged that the Pursuer would see Mr Dennyson on 12 November 1997.

 

28. It is uncommon to see small pieces of bone in a wound. It is generally an indication of infection deep within the limb since fragments of bone will only make their way to the surface and extrude in the presence of infection. Fragments of bone do not come out in the absence of infection. If the fragments had been a result of the initial injury there would not have been an ulcer over the fracture site and the fragments would not have come up to the surface. A sequestrated fragment tends to refer to a fragment of bone that has died as a result of infection. Small pieces of bone extruding where there is a fracture were, in the circumstances, evidence of osteomyelitis.

 

29. The main reference orthopaedic text book Rockwood and Green's Fractures in Adults, Volume 1, 4^th Edition states that "the cornerstone of the successful treatment of chronic osteomyelitis is the complete removal of all involved bone and soft tissue". On 27 October 1997 the Pursuer had chronic osteomyelitis but Mr Driver-Jowitt did not treat the Pursuer for this condition. He did not carry out a debridement which is the surgical removal of all devitalised bone and soft tissue. He did not admit the Pursuer for treatment with intravenous Vancomycin.

 

30. Thereafter the Pursuer's condition worsened. He developed a second ulcer and his original ulcer enlarged in size. Although the Pursuer was not to be seen at the hospital until 12 November, he returned to the hospital on 7 November 1997 and was seen by another locum consultant Mr Paul Ofori-Atta. He noted that the original ulcer was now 4cm x 4cm in size and the second ulcer was 1cm in diameter. The wounds were swabbed and any further assessment in respect of the Pursuer's condition was left to be dealt with by Mr Dennyson on 12 November. Mr Paul Ofori-Atta took no action to deal with the worsening infection.

 

31. On 12 November 1997 in the absence of Mr Dennyson, the Pursuer was seen by Dr Dobie who consulted Mr Charles Clowes, consultant orthopaedic surgeon for advice. He took over responsibility for the Pursuer's care and arranged to admit the Pursuer the following day for treatment with intravenous Vancomycin. The treatment continued until 24 November 1997 when the ulcers appeared to look smaller and cleaner. No MRSA was then being cultured from the surface swabs taken but infection remained present. There was still discharge from the ulcers. Mr Clowes did not carry out a debridement.

 

32. The Pursuer was discharged to outpatient follow up on 26 November 1997. On 27 November 1997 Mr Clowes wrote to Dr Wilson, the Pursuer's GP, indicating that he did not anticipate that the discharge from the wounds would completely resolve until the intramedullary nail and the locking screw inserted into the Pursuer's leg on 21 August 1997 were removed. It was not proposed that the nail be removed until the fracture had healed. The approach of Dr Clowes was to seek union of the fracture before removal of the metalwork.

 

33. The Pursuer was further reviewed by Mr Clowes on 4 December 1997 and 22 December 1997. The Pursuer reported pain on attempting to weight bear but was encouraged to continue trying to do so.

 

34. The Pursuer was again reviewed by Mr Clowes on 14 January 1998. By this time the distal locking screw had fallen out of its own accord. There was a copious discharge from the Pursuer's wound but bacteriology swabs taken from the surface of the wound did not indicate the presence of MRSA organisms. Mr Clowes decided to admit the Pursuer for elevation and bacteriology. It was decided thereafter to pass the care of the Pursuer to Mr Christopher Tiemessen who had just taken up a consultancy post at Borders General Hospital. Mr Tiemessen took over the Pursuer's care on 20 January 1998 by which time there was another organism pseudomonas.

 

Mr Tiemessen had previously trained and worked as a consultant orthopaedic surgeon in South Africa. He had considerable experience in dealing with infected fractures in South Africa. As part of his training he had worked with Mr Charles Lautenbach a leading authority in the treatment of infected fractures including septic non-unions.

 

35. On taking over the care of the Pursuer, Mr Tiemessen accepted that the Pursuer had chronic osteomyelitis and a chronic leg infection. He also accepted that the fracture would not heal if left as it was in January 1998 when he took over the Pursuer's care. His plan was to establish bony union in the presence of sepsis then deal thereafter with the infection. He accepted that the appropriate treatment was debridement as standard practice but he was of the opinion that the way of doing it and the timing of it were both relevant factors.

 

36. Mr Tiemessen performed a fibular osteotomy on the Pursuer on 21 January 1998. Fibular osteotomy is the deliberate surgical breaking of the fibula the purpose being to assist compression of the ends of the tibia at the fracture site.

 

37. No medical literature was produced to support the practice of undertaking a fibular osteotomy in the case of an infected non-union of the tibia.

 

38. Mr Tiemessen's plan of treatment was to control the Pursuer's ongoing infection, secure some union at the fracture site and thereafter proceed with a "Lautenbach" debridement. This involved removal of the intramedullary nail combined with a debridement reaming and irrigation. The irrigation is used to treat the infection in the intramedullary canal. The planned treatment was a method developed by Mr Charles Lautenbach in South Africa to treat septic non-union of fractures. One of its advantages is that the periosteum (a membrane on the outside of the bone with a blood supply) is retained which may assist subsequent bone growth.

 

39. Septic non-union of the tibia is an uncommon problem. Not many consultant orthopaedic surgeons in the UK will encounter the Pursuer's condition. Where is does occur in the UK the treatment is radical debridement of all infected bone and tissue followed by attempts to secure union of the fracture. This could include bone graft or bone transport procedure. The Lautenbach procedure is not one with which many surgeons in the United Kingdom would be familiar.

 

40. Mr Tiemessen reviewed the Pursuer as an inpatient on 26 January. There appeared to be some compression at the fracture site following the fibular osteotomy. Mr Tiemessen discharged the Pursuer to outpatient encouraging the Pursuer to weight bear to encourage union. Mr Tiemessen reviewed the Pursuer again on 6 February 1998 as an outpatient. There was a continuing discharge from the wounds. The Pursuer was complaining of a great deal of pain in his leg. There was x-ray evidence of compression at the fracture site but there was evidence of rotation of the distal tibial fragment. The fibular osteotomy had removed stability at the fracture site. The operation was of no benefit to the Pursuer in the presence of gross infection of the tibia.

 

The Pursuer was re-admitted to the hospital on 11 February 1998 and a further operation was performed to de-rotate the distal tibia. Thereafter a fresh plaster was applied and the Pursuer was requested to continue with his attempts to weight bear.

 

Mr Tiemessen again reviewed the Pursuer on 4 March 1998. The Pursuer was complaining of severe pain in his lower right leg. The wounds were continuing to drain pus. Mr Tiemessen considered the x-ray appearances to be encouraging with new bone formation at the fracture site but he identified a small area of dead bone which he considered was becoming a sequestrum for infection. Arrangements were made for excision of the piece of bone. Mr Tiemessen reviewed the Pursuer again on 9 March 1998 and decided to proceed with the operation to remove the piece of bone.

 

41. On 11 March 1998 the Pursuer was admitted for sequestrectomy. The piece of bone was removed through the discharging wound. The procedure was limited to removal of a small piece of dead bone together with a small amount of surrounding tissue. It was not Mr Tiemessen's intention to undertake a full radical debridement of all infected bone and tissue. The sequestrectomy was of no benefit to the Pursuer in the presence of gross infection of the tibia.

 

42. Following his discharge from hospital, the Pursuer continued to suffer considerable pain. On 25 March 1998 the Pursuer was re-admitted complaining that his plaster was soaked in the heel area. The Pursuer was again seen by Mr Tiemessen who subsequently wrote to Dr John Wilson, the Pursuer's GP, reporting that the wound was still discharging much pus although there was evidence of granulation tissue healing. He also reported that there appeared to be an increase in the stability of the fracture at the non-union site and the wound was slowly decreasing in size.

 

43. On 3 April 1998 the Pursuer was again reviewed by Mr Tiemessen. A new third sinus had developed on the lateral aspect of the distal tibia. This represented a worsening infection. It was Mr Tiemessen's decision to continue with his plan since x-rays appeared to show good compression of the non-union area with bone attempting to bridge the non-union site. He made plans to see the Pursuer again at the end of April.

 

44. On 9 April 1998 Dr John Wilson, the Pursuer's GP, unhappy about the Pursuer's lack of progress referred the Pursuer to Professor Court-Brown at the Royal Infirmary of Edinburgh for a second opinion. A copy of the letter sent by Dr Wilson to Professor Court-Brown was sent to Dr Tiemessen who saw it on his return from leave. Mr Tiemessen wrote to Professor Court-Brown on 21 April 1998 setting out the reasons for the fibular osteotomy and the sequestrectomy and his treatment plan for the Pursuer.

 

On 28 April 1998 the Pursuer was seen by Professor Court-Brown at the Royal Infirmary of Edinburgh. He took over the Pursuer's care and from the outset he was pessimistic that the Pursuer's right leg could be saved. The Pursuer had a grossly infected lower tibia with three sinuses pouring pus. The Pursuer's septic non-union of the tibia was treated negligently by Mr Dennyson, Mr Driver-Jowitt and Mr Tiemessen at Borders General Hospital.

 

45. On 5 May 1998 Professor Court-Brown removed the intramedullary nail and carried out a radical debridement of all devitalised bone and soft tissue in the Pursuer's right leg. Mr Court-Brown noted that no bony union had been achieved and infection was established throughout the tibia. The debridement operation was followed by plastic surgery at St John's Hospital, Livingston.

 

46. Following subsequent surgical attempts to eradicate the infection there was no realistic prospect of eradicating the infection or of the two ends of the Pursuer's tibia uniting. The distal fragment of the tibia was now too short to allow bone transport. Even if it had been possible to save the Pursuer's leg then he would have had significant stiffness in his ankle and would have had trouble walking over rough ground. Following consultation with the Pursuer, Mr Court-Brown undertook a below knee amputation on 18 August 1998. The below the knee amputation offered a better prospect for the Pursuer to return to a reduced level of normal functioning.

 

47. The Pursuer was fitted with a below the knee prosthetic leg. Periodically he suffers from pressure sores on his stump from time to time requiring him to avoid wearing his artificial limb for several days. When the skin breaks down it requires to be treated with dressings. He suffers occasional phantom pains from the site of the amputation and pain from the pressure sores. He is unable to walk more than about 100 yards and is unable to run. He has some difficulty walking over rough ground. The Pursuer suffered severe pain for a period of one year following his accident. He endured three operations which were of no benefit to him. He suffered a below knee amputation.

 

48. The Pursuer required to give up playing rugby and is limited in his range of recreational activities. The Pursuer still swims but his children are embarrassed when he swims with them due to his deformity. When cycling the Pursuer's prosthetic leg can pinch his stump. The Pursuer regrets his reduced opportunity for physical forms of play with his children as they grow up but his general attitude to his treatment, his amputation and his subsequent problems has been stoic.

 

49. The Pursuer is now less able to undertake work on the family farm. There has been a re-organisation of duties between himself and his wife but there is no claim for lost income or reduced profit in respect of the family business. The Pursuer is able to perform a limited number of functions as a farmer but has required to undertake more domestic chores. Assistance is sometimes required for heavier manual jobs on the farm.

 

50. The Pursuer's wife devoted a considerable amount of time and energy in assisting the Pursuer during his period of hospital care. She visited him during frequent and lengthy spells in hospital. At home she assisted with everyday tasks such as dressing. She attended hospital with him during frequent outpatient visits.

 

FINDS IN FACT AND LAW:-

 

1. There was a breach of duty of care by Mr Dennyson in failing to admit the Pursuer for intravenous antibiotic treatment on 13 October 1997 for the MRSA organism. Mr Dennyson fell below the standard of care expected from a consultant orthopaedic surgeon of ordinary skill.

 

2. Mr Driver-Jowitt was negligent in failing to admit the Pursuer for intravenous antibiotic treatment on 27 October 1997 and thereafter, if necessary, undertaking a debridement. Mr Driver-Jowitt fell below the standard of care expected of a competent consultant orthopaedic surgeon exercising ordinary skill.

 

3. The fibular osteotomy and sequestrectomy operations carried out on the Pursuer by Mr Tiemessen in the presence of chronic osteomyelitis and chronic infection were of no benefit to the Pursuer. Mr Tiemessen was negligent in his care of the Pursuer in the presence of gross infection of the tibia.

 

4. On the balance of probabilities the Pursuer would not have required an amputation of his right leg below the knee but for the negligence of Mr Dennyson and Mr Driver-Jowitt in failing to treat the MRSA infection.

 

5. The amputation of the Pursuer's right leg below the knee was caused by the fault and negligence of the Defender.

 

6. The Pursuer, having sustained loss, injury and damage through the fault and negligence on the part of the Defender, is entitled to reparation from the Defender.

 

THEREFORE sustains the pleas in law for the Pursuer; repels pleas in law 3, 4 and 5 of the Defender; finds the Defender liable to the Pursuer in reparation in the sum of ONE HUNDRED AND TWO THOUSAND FIVE HUNDRED AND EIGHTY THREE POUNDS SIXTY FIVE PENCE (£102,583.65) inclusive of interest to date of decree with interest thereon from date of decree at 8% per annum until payment; certifies the cause as suitable for the employment of Counsel; certifies Mr Arthur Espley and Mr Charles Court-Brown as expert witnesses; finds the Defender liable to the Pursuer for the expenses of the action so far as not previously determined; allows an account thereof to be given in and remits same, when lodged, to the Auditor of Court to tax and report.

 

 

 

 

 

 

NOTE

 

[1.] This is an action of damages for medical negligence by Michael McColm, a farmer at Fairnilee, Galashiels. The action concerns allegations of negligence on the part of three consultant orthopaedic surgeons at Borders General Hospital in the treatment of the Pursuer between 18^th August 1997 and 9^th April 1998. The Pursuer was represented by Mr David Wilson, Solicitor. The Defender was represented by Mr David A Stephenson, Advocate.

 

[2.] The Pursuer avers that his treatment at Borders General Hospital by Mr William G Dennyson, Mr J Driver-Jowitt and Mr Christopher Tiemessen was negligent and fell below the standards of skill, care and diligence to be expected of the reasonably competent surgeon. The Pursuer's averments incorrectly spelling the name Dennyson were as follows:-

 

"Microbiology reports available to Mr Dennison by 13^th October 1997 indicated that MRSA was present at the wound site, and was resistant to Penicillin, Flucloxacillin and Erytohromycin. Mr Dennison treated the MRSA by the administration of the antibiotic Ciprofloxacin. MRSA is only sometimes sensitive to Ciprofloxacin. Before prescribing or administering Ciprofloxacin it is necessary to check the sensitivities to it of the MRSA cultured from the wound. In the absence of microbiological evidence that the MRSA is sensitive to Ciprofloxacin, the drug should not be used. It will not have any effect in treating the MRSA. No reasonably competent surgeon would prescribe or use Ciprofloxacin to treat MRSA in the absence of evidence that the MRSA organism is sensitive to it. Mr Dennison did so, and as a result the treatment was ineffective. As a result, the MRSA infection continued to spread, and to damage the bones and soft tissues of the Pursuer's right leg. Other drugs, to which the MRSA may have been sensitive, were available and could have been used.

 

From 13^th October 1997 it was clear that the Pursuer was suffering bone necrosis and soft tissue infection. On that date Mr Dennison noted the increased exudates from the blister site, and that MRSA had been cultured from the previous swab, and was resistant to the antibiotics which had been used to treat the Pursuer. The presence on 27 October 1997 of a bone spicule, as noted by Mr Driver-Jowitt, provided further evidence that there was dead bone underneath the wound, and that by that time osteomyelitis had become firmly established. The correct treatment for osteomyelitis in 1997, and at the present date, is by aggressive operative wound excision, with excision of all devitalised or dubious soft tissue and bone, and thereafter filling of the resultant bony defect by either bone grafting or bone transport. The resultant soft tissue defect is treated by the application of a free flap or a distally based fascio-cutaneous flap. It was and is considered essential that all devitalised soft tissue and bone is removed. No reasonably competent surgeon, armed with the information available to Mr Dennison or to Mr Driver-Jowitt in October 1997, would have failed to carry out such an excision. It was the duty of Mr Dennison and Mr Driver-Jowitt to do so and they failed in said duties. Mr Driver-Jowitt's decision on 27 October 1997 to leave the fragments of bone to migrate to the surface was accordingly negligent. The fibular osteotomy operation carried out by Mr Tiemessen on 20 January 1998 was negligent. Such an operation was at that time, and continues to be, used to treat aseptic non-union, but had no place in the management of infected non-union. The sequestrectomy performed by Mr Tiemessen on 11 March 1998 was negligent. That operation involves removal of only a small piece of dead bone, rather than the removal of all devitalised soft tissue and bone. The extent of the debridement carried out by Mr Tiemessen was inadequate, and left infected soft tissue and bone in the Pursuer's leg. Infected bone and tissue remained in the Pursuer's leg when Mr Court-Brown operated on him on 5 May 1998. It is highly unlikely that the soft tissue and bone infection spread dramatically after 11^th March 1998, and highly likely that Dr Tiemessen's debridement was therefore inadequate to remove all infected tissue and bone at the time of the sequestrectomy. By 1997 and 1998 it was well known that the treatment of infected non-union should be by removal of all devitalised soft tissue and bone, and this was standard practice. No reasonably competent surgeon, armed with the information available to Mr Dennison, Mr Driver-­Jowitt and Mr Tiemessen from 13^th October 1997 would have failed to do so. In respect that they failed to do so, each and all of said surgeons were negligent, and fell short of the standards to be expected of the reasonably competent surgeon."

 

[3.] As far as causation is concerned, the Pursuer avers that "but for said negligence of Messrs Dennyson, Driver-Jowitt and Tiemessen the Pursuer's leg would have recovered, and he would have been able to continue to walk on it. It would not have been necessary to amputate his leg".

 

[4.] Both parties made reference to reports by expert witnesses, copious medical records from Borders General Hospital and The Royal Infirmary of Edinburgh on the Pursuer and to excerpts from orthopaedic text books Rockwood and Green's Fractures in Adults, Volume 1, 4^th Edition and McCollister Evarts, Surgery of the Musculo- Skeletal System, Volume 4 (1983).

 

[5.] Cases cited in argument included:-

 

1. Hunter -v- Hanley 1955 SC 200.

2. Scott -v- Lothian University Hospitals NHS Trust [2006] SCOH 92.

3. Honisz -v- Lothian Health Board [2006] CSOH 24.

4. Hucks -v- Cole [1993] 4 MEDLR 393.

5. Ryan -v- Trans Manche Link reported at 13-003 Vol. 4, Kemp and Kemp.

6. Scott -v- Kelvin Concrete Ltd 1993 SLT 935.

7. Robson -v- Glasgow City Council 2003 SLT 288.

8. Maynard -v- West Midlands Regional Health Authority [1984] 1WLR 634.

9. Sidaway -v- Governors of Bethlem Royal Hospital [1985] AC 871.

10. Bolitho -v- City and Hackney Health Authority [1998] AC 232.

11. Gregg -v- Scott 2005 4 ALL E R [HL] 810.

 

ASSESSMENT OF THE EVIDENCE

 

Witnesses for the Pursuer

 

Michael McColm

 

[6] It was apparent at an early stage of examination in chief that the Pursuer had difficulty remembering all the different operations and treatment he had whilst at Borders General Hospital. This was hardly surprising after some 9 years. He spoke of toppling his quad bike on a tree stump in a field at his farm and being taken to hospital by ambulance from the field. He was advised at Borders General Hospital that he had a displaced fracture of the tibia and fibula of his right leg just above the ankle. He was told that the recovery period would be within 6 months. He indicated he was in and out of hospital over the whole period during which time he had infection in his leg with pus coming out of the plaster. He was given painkillers and antibiotics but he said that the pain was "unbelievable" until the GK nail was removed. His evidence was that he has lost some 41/2 stones in weight in 8 to 9 months. By April 1998 he felt that no progress was being made. The fracture had never knitted and he was referred to Mr Court-Brown in Edinburgh who told him that amputation could not be ruled out since there was too much dead bone and infection. The Pursuer indicated that Mr Tiemessen gave him the option to continue since he did not think what was proposed by Mr Court-Brown needed to be done.

 

[7] The Pursuer confirmed that dead bone and soft tissue was removed by Mr Court-Brown and then he was transferred to St Johns Hospital, Livingston for skin grafting and a muscle flap. However, the infection returned and his leg was eventually amputated some 4 to 5 inches below the knee.

 

[8] The Pursuer's evidence was that he was able to get about "not too badly" but still used crutches now and again. His problem was that he got regular pressure sores on his stump although he could go a few weeks without any problem. If he took his artificial limb off for 2 or 3 days this allowed the pressure sores to recover. He tended to suffer backache walking with the artificial limb. He confirmed that he could drive an automatic car and his balance was "not too bad". He gave evidence that he occasionally got phantom pain or pressure sore pain in his leg. This might occur once or twice a week but was very brief. His evidence was that he no longer participated in sport having previously been an enthusiastic rugby player with Selkirk Rugby Club. He went swimming but his children were somewhat embarrassed being with him. His evidence was that his wife now did most of the farm work.

 

[9] In cross examination Mr Stephenson put to him the Borders General Hospital records and this assisted the Pursuer greatly in remembering the operations he had and the sequence of events. The witness confirmed the operation he had on admission on 18^th August 1997 with a plaster of paris being applied. On 21^st August the G K nail was inserted into the canal of his tibia with a screw inserted below the point of fracture. A below the knee cast was applied and he was sent home on 27^th August. His evidence, however, was that he never remembers the leg being comfortable. On 30^th August the wound was bleeding with blood coming out of the bottom of the cast. He attended the Accident and Emergency Unit at Borders General Hospital. He was reviewed on 5^th September with the plaster removed. There was a blister over the anterior tibia, dirty with exudate. He confirmed he was kept in hospital and still there on 12^th September. He was discharged on 22^nd September with a below the knee walking cast. He was being treated with the antibiotic Ciprofloxacin. He returned to hospital on 29^th September. The swab taken then was still sterile.

 

[10] On 3^rd October he was seen at Accident and Emergency when it was confirmed that there was a known fracture blister over the fracture site. There was increased exudate. A swab was taken. On 13^th October 1997 the organism MRSA was confirmed but Mr Dennyson wanted to keep the Pursuer out of hospital and an appointment was set for 6 weeks' time. The MRSA was resistant to 3 antibiotics. The Pursuer confirmed that Mr Dennyson was no longer involved with his treatment after 13^th October 1997 although on 14^th October Mr Dennyson had written to Dr John Wilson, the Pursuer's General Practitioner. Mr Dennyson's secretary had written to the Pursuer on 14^th October with a provisional appointment in 2 weeks' time if the position deteriorated.

 

[11] The Pursuer's evidence was that he had ongoing problems with his leg and on 27^th October had an appointment with Mr Driver-Jowitt. There was a spicule of bone which the Pursuer could see in his flesh on the open wound. The Pursuer confirmed that Mr Driver-Jowitt told him it would come up to the surface on its own. There was an entry in the medical records by Mr Driver-Jowitt that he felt the less surgical interference the better. These fragments would migrate to the surface. The locum consultant did not believe the spicules of bone were "aggravating matter". A letter was sent to the Pursuer's doctor referring to an ulcer over the fracture site. The Pursuer's evidence was that he was concerned about his wound, it was quite open.

 

[12] The witness confirmed that by 6^th November 1997 a second ulcer had developed resulting in the Pursuer's doctor writing a letter of concern to the hospital indicating that this could be a sign of deeper infection and that MRSA was present from swabs taken. The Pursuer confirmed he was back at the hospital on 7^th November and was seen by Mr Paul Ofori-Atta, a locum consultant who wrote on the same day to the Pursuer's doctor indicating that the Pursuer should still have district nurse wound care and be reviewed by Mr Dennyson on 12^th November 1997. The witness confirmed that on 12^th November 1997 he was seen by Mr Charles Clowes, Consultant Orthopaedic Surgeon who reported that the Pursuer had increasing pain and swelling at the fracture site and also some increasing pain at the right knee. The witness confirmed that Mr Clowes indicated that they were going to admit the Pursuer to hospital for treatment with intravenous antibiotics. The witness confirmed he was admitted for a 10 day course of Vancomycin. The Pursuer indicated he was told by Mr Clowes that the infection would not resolve until the metal work was removed, namely the intramedullary GK nail. The Pursuer indicated he kept asking Mr Clowes should he not take the nail out. Mr Clowes had said to him "no, trust me, we will get it healed".

 

[13] The Pursuer confirmed that he was discharged on 26^th November 1997 with a below the knew walking cast but he indicated he could not walk on it weight bearing since the nail was prodding up through his skin. It was very sore. His evidence was that he just could not walk on it. The Pursuer returned to hospital on 4^th December and a fresh cast was applied. On 22^nd December 1997 the Pursuer reported increased pain. The proximal wound appeared smaller but the distal wound stayed the same. The distal locking screw extruded a few days after the Pursuer's visit to the hospital on 22^nd December. By 14^th January 1998 any weight bearing brought increased pain to the Pursuer. There was copious discharge from his wounds but the swab taken did not produce signs of MRSA organism. A decision was taken to pass the care of the Pursuer to Mr Tiemessen, Consultant Orthopaedic Surgeon, who had recently arrived to work at Borders General Hospital. The Pursuer confirmed that Mr Clowes had written to Dr Wilson confirming this. Another swab taken on 15^th January 1998 showed a heavy growth of pseudomonas with no MRSA present.

 

[14] On 19^th January 1998 the Pursuer was started on Ciprofloxacin. The Pursuer confirmed that he discussed with Mr Tiemessen the advantages and disadvantages of a fibular osteotomy subsequently undertaken by Mr Tiemessen with a view to obtaining compression at the fracture site. On 26^th January 1998 the Pursuer did not feel any improvement and confirmed it was still really sore to weight bear. There was no sign of infection but the two sinuses on the medial side of his right leg were draining pus. On 6^th February 1998, the Pursuer was, again, seen by Mr Tiemessen, the Pursuer being in severe pain and his wound still draining pus. He confirmed that he was told by Mr Tiemessen that the tibial fracture was now pressing down but he was also told that the bone was rotating.

 

[15] He was admitted for further surgery on 11^th February to de-rotate his leg under general anaesthetic. The Pursuer was discharged the next day. On 4^th March 1998, the Pursuer was still enduring severe pain in his lower leg with muscle spasms. The wound was still draining pus.

 

[16] The witness confirmed that on 11^th March, Mr Tiemessen performed another operation to remove a sequestrum which was the removal of a small piece of dead bone and a small debridement which was the removal of some soft tissue. MRSA was still present but no treatment was given to the Pursuer for this. On 25^th March he had another operation for a change of plaster with "profuse discharge" from his wounds. Mr Tiemessen wrote to Dr Wilson reporting there was a lot of pus which was soaking the plaster but advising that there was an increase in stability of the fracture.

 

[17] The Pursuer confirmed that by 3^rd April there was continued seepage into the plaster and a new sinus had appeared on the lateral aspect of the distal tibia. This was ulcer number 3 but the Pursuer was not to be seen again until the end of April. On 21^st April Mr Tiemessen wrote to Mr Court-Brown with details of the proposed future plan of action for the Pursuer's treatment.

 

[18] The Pursuer confirmed that on 5^th July 1998 MRSA was shown. There was talk of another intramedullary nail being inserted with an external frame being fitted in the hope that the infection settles. The witness was told that if the infection did not settle there would be an amputation of the leg. The witness went on to confirm that on 6^th July he was not on antibiotics but intravenous Vancomycin treatment was commenced on 7^th July. It was proposed that in approximately 3 weeks' time there would be a bone graft transporting bone from the Pursuer's hip. On 21^st July a swab taken reveals MRSA. The Pursuer confirmed that on 4^th August the leg looked reasonably good but the Pursuer recalls being told that it would be a long haul before the fracture healed. The witness could not remember being told that the leg would never have good function. On 11^th August 1998 infection was confirmed in the calcaneum from the pin tract. The Pursuer was admitted on 12^th August for further intravenous antibiotics. The witness confirmed that on 18^th August he went to theatre and a below the knee amputation was performed after discussion by Miss McQueen, an orthopaedic surgeon, with Mr Court-Brown.

 

[19] On the issue of pressure sores, the Pursuer indicated that he put antibiotic cream on his stump. He also went to a man in Galashiels for back manipulation in view of the backache he got from time to time. He sometimes took painkillers for the backache. As far as his artificial limb was concerned, he regularly visited the prosthetist at the Eastern General Hospital, Edinburgh

 

Charles Court-Brown

 

[20] Mr Court-Brown was called by the Pursuer as an expert witness. Rather unusually, Mr Court-Brown did not hear the Defender's evidence but made observations on the treatment received by the Pursuer at Borders General Hospital from the medical notes and notes prepared by other consultant surgeons. Further, Mr Court-Brown had also treated the Pursuer when he was referred to The Royal Infirmary of Edinburgh.

 

[21] Mr Court-Brown, aged 58, indicated he had been a Consultant Orthopaedic Surgeon since 1985 at The Royal Infirmary of Edinburgh specialising in acute injury and its consequences. He was also Professor of Orthopaedic Trauma at the University of Edinburgh and had written a number of books and a lot of papers and chapters on trauma. He confirmed that he had been involved in the treatment of the Pursuer from April 1998 when the Pursuer was first referred to him for a second opinion on treatment following the receipt of letters from Dr Wilson of Selkirk Health Centre and from Mr Christopher Tiemessen who was responsible latterly for the care of the Pursuer at Borders General Hospital. His evidence was that from reading these letters he anticipated finding the Pursuer with advanced osteomyelitis with the discharge of infected material from his leg. He also inferred significant soft tissue problems around the bone. Mr Court-Brown subsequently prepared two Reports dated 10^th November 2002 and 4^th December 2003 summarising the treatment given. These Reports were Productions. Mr Court-Brown's evidence was that he did find a grossly infected lower tibia with three large sinuses which were pouring pus. The infection did not settle and eventually he had to perform a below the knee amputation on the Pursuer's right leg.

 

[22] The witness then went through the salient parts of the treatment received by the Pursuer at Borders General Hospital. The Pursuer had a displaced fracture to the distal third of his right tibia and fibula following an accident on 18^th August 1997. He was treated by the insertion of an intramedullary nail down his tibia to stabilise the fracture. He developed infection in the fracture site very quickly. It was noted he had a blister over the front of his leg in the area of the fracture on 5^th September 1997 and this broke down and the culture showed that he had an infection in the area and he therefore had an infected fracture. The view of Mr Court-Brown was that it was developing osteomyelitis. The witness went on to explain that the Pursuer was treated by a number of surgeons in the Borders General Hospital from September onwards. He saw a Mr Driver-Jowitt in late October 1997 and in November had developed 2 ulcers over the distal tibial area. He had a fibular osteotomy, which refers to just cutting the fibular bone beside the tibia, on 21^st January 1998 which did not have any effect on the infection and he eventually had a further operation by Mr Tiemessen who removed some dead bone from the area and he was subsequently referred to the witness for his opinion.

 

[23] Referred to the medical notes it was shown that on 13^th October 1997 the Pursuer should continue on the antibiotic Ciprofloxicin. The notes indicated that Mr Dennyson was "understandably concerned about bacteriology" since the swab showed MRSA but Mr Dennyson wanted the Pursuer kept out of hospital unless his wound deteriorated. Mr Court-Brown indicated that the Pursuer had MRSA in his wound on 13^th October and it was not being treated with the appropriate antibiotic. Instead the idea was to keep him weight bearing at home. Mr Court-Brown's evidence was that the Pursuer required intravenous Vancomycin because MRSA was present from his discharge.

 

[24] The witness went on to indicate that spicules of bone subsequently found were fragments of bone killed by the infection which had come adrift and were being extruded from the wound. Mr Court-Brown's view was that this showed that there was significant osteomyelitis in the area. His evidence was that infection of the bone is very significant in this type of injury although occasionally, osteomyelitis bone heals with infection but it is necessary to remove the dead bone and reconstruct in order to get the fracture to heal in an uninfected state. The view of Mr Court-Brown was that it was not considered acceptable to have persistent discharges from healed fractures although it was common immediately after the Second World War to heal fractures in an infected state. His evidence, however, was that the procedure now was to remove infected bone and then bone graft to heal the fracture. This had been the procedure from the 1970's onwards.

 

[25] The witness' evidence was that by 7^th November 1997 the situation had worsened since it was disclosed in the medical records that "patient has developed 2 ulcers". One of these was 4 x 4 cm. Mr Court-Brown's evidence was that the infection had worsened around the soft tissue. The witness observed that the note showed that on 12^th November the Pursuer had "increasing pain and swelling at the fracture site" and was to be admitted to hospital for Vancomycin treatment to the MRSA positive ulcers. By reference to the medical notes, Mr Court-Brown observed that after 3 days' treatment there was still a "significant discharge" so nothing had changed.

 

[26] He went on to indicate that there was no change in treatment from late November to late December and by mid January there was a "fairly copious discharge" although a recent swab had not shown MRSA organisms. The view of Mr Court-Brown was that this bacteriology report meant nothing since the swab had been taken from the top of the wound which may well be sterile but there would be pus deep inside where the infection is. His evidence was that in medical circles that was well recognised. Mr Court-Brown stated that MRSA would still be present and overall the whole situation was worsening. By 20^th January 1998 there were 2 draining sinuses which had been there for some time perhaps 2 to 3 months. They were still pouring pus. Now the records revealed that there was another organism pseudomonas. The evidence of Mr Court-Brown was that the whole position continued to get worse.

 

[27] The witness then went on to indicate that the fibular osteotomy carried out by Mr Tiemessen was a pointless procedure. He knew of no literature to support the use of fibular osteotomy in an infected non-union. He stated that it was just not done. It was used for aseptic or non-infected non-union and the distinction was important. His evidence was that fibular osteotomy is not a treatment for an infection. Mr Court-Brown's evidence was the operation had removed any form of stability at the fracture site by taking out a piece of the fibula so that the Pursuer's leg was rotating externally and outwards. The Pursuer had pain in his leg because he now had a completely mobile non-union. A cast was applied to the Pursuer's leg to relieve the pain. The witness then observed that from the records the Pursuer was, again, admitted to hospital on 11^th February 1998 for de-rotation of his right leg to correct the deformity and another cast applied. The Pursuer's treatment was, again, reviewed on 4^th March when he was in severe pain and had muscle spasms with pus draining from both wounds.

 

[28] Observing that the medical notes showed that the Pursuer was, again, admitted to hospital on 11^th March for a sequestrectomy which was the removal of a dead bone fragment, Mr Court-Brown's opinion was that the sequestrum and the continuing discharge of pus showed the situation was getting worse and that the Pursuer had gone through what Mr Court-Brown described as "the classical process of osteomyelitis". Mr Court-Brown criticised the operation since Mr Tiemessen only removed a small amount of dead bone but left infected material behind. As a consequence his view was that still nothing was being done to remove the infection. Mr Court-Brown went on to narrate that the medical notes referred to a plan for the future dated 3^rd April 1998. The plan was to put the Pursuer back into his open plaster with a window on both sides of the cast to look at the wounds. X-rays showed good compression on the non-union site with bridging bone attempting to bridge the non-union site. The Pursuer was to see Mr Tiemessen again at the end of April.

 

[29] Mr Court-Brown reviewed the Pursuer on 28^th April 1998.

 

On 5^th May 1998, he examined the Pursuer's fracture in theatre and discovered that the treatment at Borders General Hospital had not been successful. The fracture had not united. The fracture site was still very infected. All but the lower inch of the distal tibia was dead. It could not therefore take part in any healing process. It was the view of the witness that the non-union and the infection would have increased the pain level endured by the Pursuer.

 

[30] Mr Court-Brown was referred to his report dated 10^th November 2002 which was a Production. This was essentially an opinion on the treatment received by the Pursuer at Borders General Hospital. His conclusion was that the insertion of an intramedullary nail to stabilise the fracture was a very reasonable thing to do. It was a method widely used. His conclusion was that certain damage would be caused to the bone because of the use of reamers to widen the canal of the tibia. His explanation was that if you get excessive heat you can get thermal necrosis of the bone (death of the bone) leading to infection. Mr Court-Brown indicated that this is a very uncommon complication which Mr Dennyson had probably never seen before. Indeed, someone working in a small hospital might never come across it during their working lifetime. It was unfortunate that the Pursuer had that but the witness reckoned that this would be the cause of the infection. Mr Court-Brown went on to explain that when the operation took place to install the intramedullary nail the heat generated by the reaming would kill the bone and the overlying soft tissue. Evidence of this was the blister that appeared over the fracture site. Mr Court-Brown was at pains to point out that the failure to act on thermal necrosis could not be regarded as negligent in 1997.

 

[31] Referring again to the medical notes, Mr Court-Brown indicated that no evidence appeared in the microbiology reports that MRSA was sensitive to Ciprofloxacin. MRSA is sometimes sensitive to it but it is important to check the sensitivities of the MRSA cultured in the Pursuer's wound. It was the opinion of the witness that as soon as the consultant was aware of a serious infection like MRSA it was necessary to admit the patient for intravenous Vancomycin since MRSA was sensitive to this antibiotic. The view of Mr Court-Brown was that it was pointless to use 3 antibiotics where MRSA was not sensitive to them. As Mr Court-Brown put it "the side effects of Vancomycin are a lot better than the side effects of an amputation". His opinion was that you have to treat the patient according to what you find and the antibiotics he was on were not satisfactory to treat the MRSA. The witness was strongly of the view that it is the only treatment for this organism although the levels of Vancomycin have to be monitored and the patient can spend weeks in hospital.

 

[32] Mr Court-Brown criticised the fact that it was not until 12^th November, some 5 to 6 weeks after the MRSA was found that the Pursuer was admitted for Vancomycin treatment. It should have been done when he first had the infection. It was the view of Mr Court-Brown that this was standard medical practice and that delaying the treatment makes the infection worse and ends up with a very large infected area not responsive to antibiotic treatment alone. It was his view that the delay certainly had an effect on the outcome. The Pursuer should have had surgical treatment to remove all the devitalised and infected bone and soft tissue. As the witness put it, some 6 months later "everything is dead".

 

[33] The evidence of Mr Court-Brown was that despite swabs not showing the presence of MRSA the Pursuer's condition was slowly worsening the strong implication being that he had osteomyelitis. The small fragments of dead bone coming out was a classic example of this. It was a sign of worsening osteomyelitis with no appropriate treatment taking place. Mr Court-Brown accepted that in hindsight the Pursuer had bone necrosis and soft tissue infection in the immediate post operative period and agreed that it was unreasonable to criticise surgeons until it became clear clinically that there was infection present. He was clear in his evidence that this occurred on 13th October when Mr Dennyson made the decision to treat the Pursuer with Vancomycin if the wound deteriorated. On 27th October 1997, the small spicule of bone in the wound was ignored by Mr Driver-Jowitt the locum consultant surgeon. Mr Court-Brown's evidence was that the Pursuer's infected non-union was treated negligently. There was no other explanation other than osteomyelitis for the bone spicule. If the fragment had been a result of the initial injury, there would not have been an open wound and it would not have come up to the surface. His conclusion was that the only explanation was a worsening infection.

 

[34] Mr Court-Brown was referred to Rockwood and Green's Fractures in Adults, Volume 1, 4th Edition which he described as the world bible on orthopaedic trauma and the main reference text book. The witness referred to Page 475 and the observation that "the cornerstone of the successful treatment of chronic osteomyelitis is the complete removal of all involved bone and soft tissue". The witness' evidence was that the Pursuer had chronic osteomyelitis that was untreated. The removal of all devitalised or contaminated tissues was know as debridement but Mr Court-Brown's evidence was that no acceptable treatment was carried out at Borders General Hospital. Reference was also made to McCollister Evarts book on Surgery of the Musculo- Skeletal System and the distinction in the types of osteomyelitis. Mr Court-Brown indicated that the Pursuer did not have acute haematogenous osteomyelitis. His evidence was that he would have expected a reasonably competent orthopaedic surgeon in 1997 to be aware of both of these works and to follow what they say. On the issue of the fibular osteotomy, Mr Court-Brown explained that this procedure was not described for an infected bone if there was non-union. He also reiterated that the sequestrectomy carried out by Mr Tiemessen was insufficient since he left behind all the reasons why the Pursuer had developed a sequestrum.

 

[35] The witness was clearly of the view that if debridement had been carried out a couple of months after the MRSA was first identified, there would have been less devitalised tissue and some form of reconstruction procedure would have been possible. His evidence was that a reasonably competent orthopaedic surgeon in 1997 would have carried out a debridement.

 

[36] The view of Mr Court-Brown was that the Pursuer should have been on Vancomycin on 13th October and if that did not work then the debridement surgery should have been carried out. His evidence was that if this had been done in October he believed the Pursuer would have kept his leg.

 

[37] Mr Court-Brown was referred to the Report prepared on behalf of the Defender by Mr Kinninmonth dated 30th July 1999. Interpreting the Report, Mr Court-Brown indicated that Mr Kinninmonth agreed with the procedure of radical incision to remove segments of dead bone. There was a further Report from Mr Kinninmonth dated 5th March 2003 suggesting resect using the Ilizarov method or similar. He accepted that this could have been done if the operation of debridement had been done earlier since there would have been less dead bone. As it turned out there was very little bone on the distal tibial fragment in May 1998. Effectively there was no bone or soft tissue around the ankle. The witness pointed out that the Ilizarov technique was not a replacement for debridement.

 

[38] Mr Court-Brown was aware that Dr Lautenbach was keen on a lavage system to eradicate infection doing a resection then a lavage to clear the infection but Mr Court-Brown pointed out that Mr Tiemessen did not do either. Further, the sequestrum which was just part of the dead bone that had come adrift had been removed but Mr Tiemessen had not done anything for the parent process which had produced the sequestrum in the first place.

 

[39] Mr Court-Brown's evidence was that the established method of treating the problem was to excise the bone and soft tissue and then reconstruct it. This had been the procedure in the last 25-30 years. He did not expect a different standard at Borders General Hospital. The principles are present in a surgeon's final examination.

 

[40] Referring to Mr Tiemessen's letter of proposed treatment, Mr Court-Brown's evidence was that union of the fracture would not have occurred. He did accept that it is possible for an infected fracture to unite but it is unusual. If it does heal, osteomyelitis is always present.

 

[41] On the question of the position of the Pursuer in the future, Mr Court-Brown indicated that the Pursuer should do relatively well with a below the knee amputation.

 

[42] In cross examination by Counsel, Mr Court-Brown gave the view that the die was cast by the end of April 1998. His view was that by that stage an amputation was inevitable. The chances of saving the leg were very small after January. The problem was that the fracture was very distal. The chances of saving the leg were probably below 50% even in January. Mr Court-Brown's evidence was that mistakes were made before Mr Tiemessen took over the management of the Pursuer's treatment.

 

[43] Mr Court-Brown went on to describe how the infection was caused by thermal necrosis as a consequence of the nailing operation on 21st August 1997. He stated that the canal of the tibia did not have to be reamed but if so and difficulties are encountered then excessive heat will burn the inside of the bone and surrounding soft tissue. As a consequence the bone dies and blood supply is lost. If soft tissue dies then a blister is presented and bacteria probably enters through the soft tissue. A blister following thermal necrosis was not really recognised in 1997 but the infection manifested itself initially by blister then by a discharging sinus. Evidence was given that MRSA can be difficult to treat but Mr Court-Brown could not remember any time a microbiologist had not recommended Vancomycin treatment. His view was that if there is a discharge from the tibia after several weeks' treatment and then MRSA then Vancomycin treatment is required irrespective of the clinical picture and signs that the sinus appears to be healing. This is also the position irrespective of whether the patient appears to be well. It is also the position even if only one swab reveals MRSA. Although the clinical picture is one of improvement, the patient should still go straight to Vancomycin treatment. In that regard the position of the consultant orthopaedic surgeon at Borders General Hospital was wrong. The condition is worsening and the patient has got another bacteria which is being ignored. The view was that Mr Dennyson has not treated the new bacteria which is potentially nasty and difficult. Pseudomonas and MRSA are both quite serious bacteria and present a worsening of the Pursuer's condition. Changes in granulation tissue are very minor. In fact the Pursuer should not have a sinus at all on the 13th October.

 

[44] Mr Court-Brown stated categorically "there is absolutely no support in the literature for leaving osteomyelitis of the tibia untreated which is what happened here on the 13th". The evidence was that there was no legitimate contrary view. The witness stated "a body of reasonable surgeons would say 'this is infected, this is a tibial osteomyelitis which is potentially serious, we know the organism and we are going to treat it and that would be standard practice' the a, b and c of orthopaedic surgery". Mr Court-Brown's view was that treatment in October would probably have cured the infection but if the wound continued to discharge after a week then the Pursuer should have been taken to theatre for adequate debridement.

 

[44] He criticised Mr Driver-Jowitt for seeing a spicule of bone on 27th October which was further evidence suggesting a worsening of osteomyelitis and doing nothing about it.

 

[45] Although the Pursuer was admitted for Vancomycin treatment on 13th November, there was still a significant discharge on 17th November, there was no improvement although the Pursuer was suffering less pain because he was on analgesics. Indeed, the microbiology report from a specimen taken on 17th November showed MRSA was still present. There was a worsening infection. The basic text books tell what to do and it has not been done. The witness stated categorically "there is no justification for what the doctors did in the literature and they read the same literature as I do... it is the same basic stuff...".

 

[46] Mr Court-Brown explained that the Ilizarov technique still involved a radical debridement followed by reconstruction and rebuilding of the bone. This technique was used in 1998 at The Royal Infirmary of Edinburgh. Referring to Mr Tiemessen's Memorandum of 19th March 2003 which was a Production where Mr Tiemessen suggested that where you have thermal necrosis the blood supply on the outside of the bone remains undamaged, Mr Court-Brown disagreed with this. His explanation was that if you have a blister on the skin the heat must have been enough to get to the top of the skin and damaged everything between it. The witness interpreted Mr Tiemessen's observation as saying that because thermal necrosis does not cause much damage, one just has to take out the damaged inside of the bone and give the patient antibiotics. Mr Court-Brown's view was that the treatment proposed by Mr Tiemessen to lavage out the infected area removing any pus with the antibiotic in the saline solution would not get rid of infected bone. It would only remove some of the infected material. The view of the witness was that it was necessary to get the antibiotic into the blood supply to the bone unless it is dead.

 

[47] On the issue of fibular osteotomy in cases of septic non-union, Mr Court-Brown reiterated that there was nothing written up on this. He had never come across it ever. It is not going to work if there is a whole pocket of pus. It might be helpful where there was minor infection, no dead bone and the correct antibiotic.

 

[48] Concluding his evidence in cross examination, Mr Court-Brown was of the view that Mr Dennyson fell below the necessary standard by (a) failing to institute treatment for the infecting organisms by admitting the Pursuer for intravenous antibiotics and (b) following treatment to decide whether surgery was required based on the success of the initial management. Mr Driver-Jowitt was negligent since, by 27th October, the infection was quite severe, bits of bone were coming out and a debridement was required. Everyone who saw the Pursuer from 27th October failed to treat him properly. Mr Ofori-Atta did not treat him properly, Mr Clowes did not treat him properly. All the consultants failed to undertake surgical debridement. As a consequence the Pursuer lost his leg.

 

[49] Mr Court-Brown was rigid and adamant in his views. He would not be persuaded that there was a possible alternative course of treatment available to the Pursuer. The only concession he was prepared to make was that a fibular osteotomy might be helpful if there was minor infection, no dead bone and the correct antibiotics. I have to say that despite the rigid views, Mr Court-Brown was both credible and reliable and provided the court with very knowledgeable information based on his experiences as a consultant surgeon. He did indicated that he, himself, perhaps dealt with two or three cases of septic non-union of the tibia in a year but has dealt with quite a few cases of septic non-union around the world. He had read a lot about them and he had written about them. He regarded himself, with something less than modesty, as one of the world authorities on the management of tibial fractures.

 

Dr John Wilson

 

[50] Dr Wilson is the General Medical Practitioner to the Pursuer based at Selkirk Medical Practice. He has been a General Practitioner there for 26 years. He stated that most of the treatment he gave to the Pursuer was for sinus formation and infection. There were regular changes of dressings in the surgery treatment room but the infection the Pursuer had never went away. His evidence was that he arranged for the Pursuer to be seen by Mr Court-Brown at The Royal Infirmary of Edinburgh. He wrote to Mr Court-Brown on 9th April 1998 indicating that he felt no progress was being made; lots of pus was coming out of the wounds; the wounds were breaking down more and were discharging pus. His view was that the consultants at Borders General Hospital seemed to be saying "just carry on we will just see how it goes". His criticism was that there had been a lack of continuity with different consultants. He was content to get another opinion for the Pursuer. The final event he felt was the three significant wounds with no signs of any real progress and control of the infection. He wanted another opinion to make sure that everything was being done for the Pursuer. He confirmed that after the amputation there were problems initially with the stump. His evidence was that there were still odd problems but that the Pursuer had done remarkably well getting on with his life. The Pursuer had managed to cope with the infection, the pain and the amputation.

 

[51] As far as infections or abscesses from rubbing of the stump were concerned, Dr Wilson explained that if the skin breaks down the Pursuer needs to have dressings applied for a period of a week to 10 days leaving off the artificial limb until the infection or the abscess clears. Dr Wilson confirmed that the Pursuer had resumed farm working and had displayed great resilience and strength of character.

 

 

I found Dr Wilson an entirely credible and reliable witness who clearly had concerns on an going basis about the Pursuer's treatment at Borders General Hospital.

 

Mrs Christine McColm

 

[52] Mrs McColm, the wife of the Pursuer confirmed that she had now been married to the Pursuer for 16 years and ran the family farm. She stated that it came as a major shock when amputation was first mentioned in April 1998 when her husband was seen by Mr Court-Brown. She had attended Edinburgh Royal Infirmary with him. Her evidence was that the Pursuer had endured a great deal of pain from the day of the accident and when he was at home he was restricted to the house. Their daughter was only 1 year old when the accident occurred and he could not look after her because of his lack of mobility. Before the accident he was active and played rugby and enjoyed running and cycling. She confirmed that when he was at home the slightest movement caused a lot of pain. She accepted that amputation was the only option at the end of the day. It had been devastating but it was a step forward in respect of the relief of pain. Her evidence was that her husband now could not walk a great distance without pain or discomfort. His artificial limb nipped his leg if he was cycling. Swimming was his easiest leisure pursuit but the children were extremely conscious of his amputation when he was with them.

 

[53] As far as farm work was concerned, she indicated that there were lots of farming jobs he could no longer do. Casual labour was engaged from time to time to help with manual jobs. She reported that the Pursuer now did more administrative work in connection with the running of the farm maintaining records.

 

[54] She confirmed that her husband suffered pressure sores from time to time taking the artificial limb off for a few days to allow for recovery. When that happened he could not then go out to work.

 

[55] Her evidence was that he got quite down during the year after his accident and lost his sense of purpose at times. She stated that he could not really carry things and if he needed help then she would be able to assist or the children. She indicated that the traumatic event had in a way brought her and her husband closer together as a couple and it had not really changed their relationship.

 

Mrs McColm was entirely credible and reliable and straightforward with her evidence.

 

Witnesses for the Defender

 

Mr Charles B Clowes

 

[56] Mr Charles Clowes, aged 61, is a retired Consultant Orthopaedic Surgeon. He was a Consultant Orthopaedic Surgeon at Borders General Hospital until he retired in May 2004. He was first appointed as a Consultant to Borders Health Board in January 1983. Mr Clowes confirmed that he was the Consultant in charge of the treatment of the Pursuer from 12th November 1997 to 19th January 1998.

 

[57] He confirmed that sequestrum was dead bone and that the loss of blood supply was the main culprit of sequestrum which was contributed to by infection, trauma or surgery. He accepted that the Pursuer had osteomyelitis on 5th May 1998.

 

[58] His evidence was that Miss Dobie, a Staff Grade Surgeon, doing Mr Dennyson's fracture clinic in his absence sought advice on the Pursuer's treatment, the Pursuer having previously been seen by 2 locum consultants. Mr Clowes' evidence was that he recognised the Pursuer had a serious problem with significant infection around the fracture site caused by MRSA. He regard it as potentially very serious. The witness went on to review the position prior to his involvement indicating that from 30th August 1997 the Pursuer was complaining of discharge from his wound, the conclusion had been that it was "not infective" although the Pursuer was on antibiotic. By 5th September there was a blister over the anterior tibia which was dirty with exudates and surrounding induration which Mr Clowes explained was leaking fluid which was probably infected with pus. There was a blister on the front of the Pursuer's leg which related to the fracture site rather than the distal screw. He noted that on 12th September 1997 there was a wound over the lower tibia which may be a fracture blister. Callus was developing which the witness regarded as a hopeful sign of obtaining union of the fracture. The Pursuer had been prescribed Ciprofloxacin which was a stronger antibiotic and Mr Clowes noted that on 29th September infection was no longer detectable. However, Mr Clowes explained that on 3rd October there was an increase in exudates from the blister site when the Pursuer attended at Accident and Emergency. He explained that this was a turn for the worse. He also explained that the diagnosis then was that it was a fracture blister formed on the outer layer of the skin like a burn. His evidence was that a sinus and fracture blister are not compatible. The diagnosis may be wrong. It was more likely an ulcer which was a warning sign.

 

[59] By 10th October Mr Clowes noted that Dr Wilson, the General Practitioner, knew that the swab taken on 3rd October reveals MRSA. Mr Clowes noted that the heavy growth of MRSA would be resistant to 3 antibiotics Penicillin, Flucloxacillin and Erythromycin. These antibiotics would be ineffectual to treat the organism MRSA.

 

[60] Mr Clowes' evidence was that Vancomycin was an antibiotic to which MRSA was frequently sensitive but not always. His opinion was that it was not automatic to give Vancomycin for MRSA. His view was that it may not require to be treated if causing no great harm. It would only be troublesome if pus produced could not escape the body.

 

[61] Mr Clowes went on to explain that from the medical notes the Pursuer was seen by Mr Dennyson on 13th October 1997. The decision taken by Mr Dennyson was to keep the Pursuer out of hospital and on antibiotics unless the wound deteriorated in which event he would require inpatient treatment with Vancomycin. Mr Clowes believed that Mr Dennyson took this view since he felt the organism was not causing significant infection. Mr Clowes, however, did indicate that it was slightly contradictory that he was being kept on an antibiotic which perhaps was unlikely to be doing any good. Mr Clowes could not offer any explanation for this although he did explain that the Pursuer had been on Ciprofloxacin for some time and the Pursuer's wound seemed healthy and improving. The witness indicated that other organisms may have been responsible for the continuing ulcer. Mr Clowes' view was that if it appears to be healing you do not want to disturb the treatment you are giving.

 

[62] Mr Clowes went on to note that on 27th October 1997 the Pursuer had a meeting with Mr Driver-Jowitt. At that time it was seen that there was a small spicule of bone in the wound. The Radiology Report demonstrated that 2 or more tiny fragments of bone appeared to be in the process of being extruded. Mr Driver-Jowitt had also noted that the Pursuer had indicated to him that "the wound is constricting progressively". Mr Clowes' evidence was that it was uncommon to see small pieces of bone in a wound. He gave the view that it was "a source of infection deep within the limb and the body is trying to get rid of dead and foreign material". Mr Clowes stated that Mr Driver-Jowitt had taken the view that fragments of bone will extrude allowing the infection to resolve and the bone to heal. The witness' view was that surgery could in fact make the infection worse. Mr Clowes was uncertain but he believed that after he started looking after the Pursuer he produced further fragments of bone. His evidence was that fragments make their way to the surface and come out in the presence of infection but do not come out in the absence of infection.

 

On 7th November 1997 Mr Clowes noted from the medical notes that the Pursuer was seen by Mr Paul Ofori-Atta, a locum consultant. At this time the Pursuer had now developed a second ulcer so that his original wound has got larger and a second wound has developed. The original fracture type blister was now 4 cm x 4 cm and a second ulcer had appeared at the insertion point of the distal locking screw. Mr Clowes' view was that he suspected that the infection in the Pursuer's leg had tracked down the pin, the metal rod, and then out along the screw until it has broken through the surface of the skin where the screw is closest to the surface of the skin. It was noted that the Pursuer's treatment was to be reviewed by Mr Dennyson on 12th November 1997. Since Mr Dennyson was not back on 12th November 1997 the Pursuer was seen by Miss Dobie who consulted the witness for advice. Mr Clowes had before him the Radiology Report which showed the width of the fracture line had decreased. He indicated that this could be a good or a bad sign. He also had before him the Microbiology Report from 7th November which showed a heavy growth of MRSA from swabs taken from both ulcers. The witness explained that on examination of the Pursuer the ulcers were much as before and there was a lot of swelling around these. He viewed the position with some concern and felt that the Pursuer had a significant infection around his fracture site and should be admitted for intravenous antibiotics including Vancomycin after consultation with the Microbiologist. The idea of Vancomycin treatment is that the antibiotic circulates through the blood stream with blood and tackles the infection in the infected tissue.

 

[64] Mr Clowes explained that the intramedullary nail, if left in, gives a much better chance of the fracture healing but the metal rod is a continuing source of infection. Mr Clowes' view was that Mr Dennyson's decision to defer treatment with Vancomycin on 13th October 1997 was done in the hope of clinical improvement. Mr Clowes felt it reasonable to defer treatment in view of the signs of improvement on 13th October and believed that a reasonable body of surgeons would support Mr Dennyson. He felt that at least 20% of surgeons would do this. The younger generation of surgeons might tend to use antibiotics. His view was that on 12th November there was no sign of osteomyelitis at that time. The witness gave the view that he could not see how you could tell what was going on in the bone on 13th October 1997 from the medical records which showed that he had an improving situation and both subjectively and objectively the patient is feeling better. Mr Clowes accepted that the bone spicule seen on 27th October raised questions about significant deep infection. He would be beginning to think that he was dealing with a much more serious infection than has been apparent. The witness disagreed that no surgeon of ordinary competence exercising reasonable care would not have surgically removed these fragments of bone seen by Mr Driver-Jowitt. Mr Clowes expressed the view that radical debridement was not then appropriate to the patient.

 

[65] Mr Clowes explained that the Pursuer was admitted on 13th November for intravenous Vancomycin treatment. After 3 days the wound was slightly cleaner but there was still a significant discharge of pus. On 17th November MRSA was still present in both wounds although there was signs of the wounds healing. Microbiology lab reports from 21st and 25th November indicated "MRSA not isolated". Vancomycin had got rid of the ability to culture MRSA organisms from his wounds and the Pursuer was discharged on 26th November. It was the view of the witness that although the infection would not go away until the metalwork was removed, the metalwork should stay in place until the fracture healed. The clinical record of 4th December 1997 showed an apparent improvement in the wounds which were slowly healing. There was a Radiology Report dated 8th December indicating as far as the tibia was concerned "satisfactory position with the rod fixation". The witness noted that on 22^nd December 1997 the Pursuer had increased pain and accepted that there was ongoing deep infection or inflammation with no improvement in the distal ulcer. He expressed the view however that x-rays were encouraging with the fracture uniting.

 

[66] By 14th January 1998, the Pursuer was experiencing increasing pain on weight bearing with a copious discharge from his wound. Mr Clowes was informed that there was no MRSA organisms at this time. He had a discussion with Mr Phillips and Mr Tiemessen, both Consultant Surgeons on how treatment should proceed and a decision was taken to admit the Pursuer for elevation of his leg and bacteriology. Mr Clowes explained that he was going off to New Zealand and Australia later in January and he proposed to hand over care of the Pursuer to Mr Tiemessen who would carry out a fibular osteotomy on the Pursuer. This involved deliberately breaking the fibula to put strain on the tibia to encourage weight bearing and uniting of the fracture. Mr Clowes explained that this was a standard form of getting delayed unions of tibias to unite.

 

[67] Mr Clowes noted that when the Pursuer was admitted to Borders General Hospital on 15th January no MRSA was being cultured in either of his wounds. It appeared to have been clear since 17th November but the Pursuer was prescribed Ciprofloxacin. The witness explained that Mr Tiemessen had agreed to take on the care of the Pursuer since he had some experience of bone infections. His treatment plan was to try to get the fracture to unite and then get rid of the infection.

 

[68] Mr Clowes disagreed with the view put forward by Mr Court-Brown that fibular osteotomy had no part to play in the treatment of the septic non-union of the tibia and that no ordinary competent orthopaedic surgeon exercising reasonable care would carry out a fibular osteotomy in the case of septic non-union of the tibia. Mr Clowes observed that Professor Court-Brown was renowned for holding strong views on many subjects. Mr Clowes accepted that he had no prior experience of fibular osteotomy in a case of septic non-union of a tibia. He also indicated that he never had to deal previously with infected tibial fractures. He had never dealt with another case of septic non-union of the tibia. He expressed the view that if there are signs that there might be some healing going on and you can stimulate this or stress it further, then there is no reason why it should not go on to consolidate and produce sound bony union. The witness accepted that if there is infection present at the fracture site and the fracture is mobile then the chances of union with or without fibular osteotomy are very small. Mr Clowes also expected it to take longer to unite in the presence of infection. The view was expressed that fibular osteotomy was undertaken for septic delayed union rather than septic non-union since there was some evidence that the fracture was uniting. The operation performed by Mr Tiemessen was to assist the process. The view of Mr Clowes was that it was possible the fracture was uniting in January and went backwards over the subsequent 4 months.

 

[69] Mr Clowes disagreed with Mr Court-Brown that radical debridement of all infected soft tissue should have been undertaken. Over the 3 months to January 1998 there was radiological evidence that the fracture was trying to unite. Debridement would have been appropriate if there had been x-ray evidence of large portions of dead bone around the fracture site.

 

[70] The general view of the witness was to get bone union, remove the metalwork then get rid of the infection. There was a different view which was to remove all dead tissue, get rid of the infection then have a surgical procedure to get the fracture to unite. He stated that amputation is always a possibility if you cannot get the tibia to unite. Mr Clowes observed that dead bone is an abyss for continuing infection and you probably won't get rid of the infection until you get rid of the dead bone.

 

[71] In cross examination, Mr Clowes did not accept that when he took over management of the Pursuer's case there was a situation of septic non-union. He believed it was delayed union since you would not anticipate a tibial fracture to unite, a sort of standard minimum period for a totally uncomplicated tibial fracture put in plaster is 12 weeks. He did not consider that there would be union for a minimum period of 6 months. Mr Clowes confirmed that this was his first experience of septic problems and accepted that Mr Court-Brown had greater experience in septic non-union but he disagreed that this was a case of non-union in November 1997.

 

[72] The witness explained that if the bone is infected with an organism such as MRSA it can lead to bone death if the infection is trapped in the periosteum. If there is a sequestrum it acts as a foreign body which can harbour infection. Mr Clowes accepted that if a patient is suffering osteomyelitis that would be a serious concern to the orthopaedic surgeon although it is uncommon in factures but it is something certainly to look out for. The physical signs are temperature, discharge, tenderness and mobility at the fracture site. It was the view of Mr Clowes that in October 1997 there was a wound, a discharge and an infection but nothing to suggest a sequestrum or stripping of the periosteum.

 

[73] Mr Clowes was referred to Rockwood and Greens, Volume 1, 4^th Edition dating from 1996. He accepted it was an authoritative book and was a standard work of reference for orthopaedic surgeons. He was referred to Page 470 and the signs and symptoms of osteomyelitis. The witness noted that the text stated "the patient may complain of pain or have a low grade fever. The wound usually became edematous and erythematous, and it drains in most cases". Mr Clowes explained that the word "edematous" means swollen with fluid in the tissues. "Erythematous" meant turning red. The witness accepted that the Pursuer was complaining of pain throughout his time of treatment in varying degrees at different times and also that his wound was draining in October 1997. Mr Clowes was also referred to a paragraph in the text book headed Radiographic Evaluation where it stated "the earliest bone changes are hyperemia and demineralisation. Mr Clowes stated that he defied anyone to tell from a plain x-ray whether there is an increased blood supply. When referred to the same text where it was indicated that "actual changes in bone structure, such as lysis, are not visible on x-ray films until 40% of the bone substance has been destroyed". Mr Clowes explained that lysis was the breaking down of the bone substance. When asked about the pieces of bone seen on 27^th October, he explained that these spicules of bone may well have been there from the time of the fracture. He did not accept that spicules of bone at that stage were a sign of dead bone inside.

 

[74] The witness accepted that the second ulcer which appeared was not a fracture blister and was probably a sign of infection. He did not accept the presence of infection together with an ulcer and spicules of bone meant that it was likely the patient had osteomyelitis. He did accept however that the fact that the Pursuer had metalwork inside his tibia and an infected discharge would make him worry about deep infection. The location of the infection was assumed to be the metalwork. Mr Clowes accepted that by 6^th October it was known that MRSA was one of the infections suffered by the Pursuer but he was not specifically treated for MRSA until 13^th November. He accepted that the circumstances were becoming worse and accepted that even in early October there was an inflammatory process and MRSA present with the result that the Pursuer had gone 51/2 weeks without treatment for MRSA. The witness indicated that the recommended treatment within 72 hours referred to in Rockwood & Greens was different from the Pursuer's situation. Mr Clowes indicated that the Vancomycin treatment did produce signs of improvement with subsequent swabs disclosing no MRSA present at the site of his wounds but he accepted that delayed treatment reduced the chances of success. As Mr Clowes put it "...the longer the infection goes on getting worse the less likely it is for the fracture to heal...". He continued "the cause of the loss of his leg was his fracture which subsequently became infected, if he had not fractured it he would not have lost his leg. If he had not got an infection it would have been certainly much less likely that he would have lost his leg". Mr Clowes emphasised that he had seen people with tibial fractures who had no infection but to have had their leg amputated since it was the best form of treatment for them.

 

[75] Referring to the first operation carried out by Mr Court-Brown, Mr Clowes accepted that there was a huge gap between the bones after the first operation to remove dead and devitalised tissue and bone. On the causes of dead bone, Mr Clowes suggested various possibilities. The first was the initial event of the fracture on the basis that the junction of the distal and middle thirds of the tibia is probably one of the poorest blood supply areas in any bone in the body and is notorious for causing problems with healing because of the poor blood supply. In addition, the Pursuer had an operation which required to drill out the centre hollow part of the bone where further blood vessels are running with the result that the blood supply around the fracture site is reduced. Thirdly, the Pursuer had a significant infection around his fracture and the metalwork introduced may have also been partly responsible for the bone to die. Mr Clowes indicated it cannot be assumed that infection killed the bone since there can be dead bone because of the fracture or the surgical procedure. There could be dead bone because of the fracture and that dead bone could become infected. The discharge and the slowness of the wound to heal were due to infection and not dead bone. Over the period the infection was attacked by Flucloxacillin, Ciprofloxacin and Vancomycin. The view was expressed that the consultants at Borders General Hospital were not trying to get rid of the infection altogether but they were trying to get the bone to heal but it was unlikely to get rid of infection whilst metalwork was there.

 

[76] Mr Clowes did not accept that the Pursuer had osteomyelitis which is infection in the bone. His view was that the Pursuer had infection around the bone. There were no reasonable grounds to believe the Pursuer was suffering from osteomyelitis and in that respect he disagreed with Mr Court-Brown that there were clear signs of osteomyelitis in October 1997.

 

[77] His evidence was that the spicules of bone were in effect a red herring although he did accept that there was no clinical record of spicules of bone being present before 27^th October. He emphasised that it was common to have spicules of bone around a fracture site. The spicules of bone extruded was evidence that the infection was connected to the fracture site where fragments had been lying. Prior to 27^th October there was no great evidence that the infection went down to involve the fracture site.

 

[78] Mr Clowes went on to explain that you can have infection involving bone which is not osteomyelitis. He did accept that if the Pursuer suffered osteomyelitis following his operations it is likely to be non haematogenous. Haematogenous osteomyelitis exists where bacteria gets to the bone via the blood stream.

 

[79] Mr Clowes was emphatic that radical debridement was unnecessary by 27^th October 1997. He did not accept that from 13^th October there was evidence that the Pursuer was suffering bone necrosis and soft tissue infection. He did not accept that fibular osteotomy should play no part in the treatment of septic non or delayed union. He was of the view that there was no reason to believe that the site of the infection was other than the presence of the metalwork in the Pursuer's leg. Mr Clowes concluded by indicating that MRSA infections do not always have to be treated to effect a cure.

 

[80] I also found Mr Clowes to be a credible witness giving his points of view although under cross examination he became a bit impatient and uncomfortable when challenged on the significance of the spicules of bone and the possible presence of osteomyelitis in the Pursuer in October 1997.

 

Mr William G Dennyson

 

[81] Mr William Dennyson, aged 64 is a partly-retired orthopaedic surgeon. He was appointed a consultant orthopaedic surgeon to Scottish Borders Health Board in October 1977. From 1980 he was head of the orthopaedic department at Borders General Hospital. He retired in 2004. He was also the visiting examiner for the Fellowship of the Royal College of Surgeons.

 

[82] Mr Dennyson reviewed the treatment provided to the Pursuer from 18 August 1997. Following the application of the original plaster of paris the Pursuer complained of pain and the cast was subsequently split. It was noted that the position of the fracture was lost and an intramedullary nail was used to stabilise the fracture. The Pursuer was discharged after nine days.

 

[83] On 30 August 1997 Mr Dennyson confirmed that the Pursuer was seen at Accident and Emergency complaining of a leaking wound which was found not to be infective.

 

[84] On 5 September 1997 the Pursuer's treatment was reviewed by Miss Dobie with the plaster removed. The sutures were removed. The knee wound appeared to be healing clean but there was a blister over the anterior tibia dirty with exudate and the Pursuer's foot was swollen. There was evidence of callus around the fracture site. Further there was no clear evidence of infection but the Pursuer was admitted for treatment and prescribed Flucloxacillin and Penicillin. On 12 September it was noted that the blister had fluid leaking from it. A swab taken on 11 September revealed the infective organism enterobacter. This was not of major concern on 12 September. The organism is sensitive to Ciprofloxacin and the Pursuer was given this antibiotic on 13 September.

 

[85] Mr Dennyson observed that the Pursuer had lost the range of movement in his foot. He believed that tendons had been damaged by the heat generated by the reaming process when the intramedullary nail was inserted inside the canal of the tibia.

 

[86] Mr Dennyson wrote to Dr Wilson on 18 September when the Pursuer was discharged. There was to be a follow up in two weeks time but the Pursuer was back at outpatients on 22 September when the cast was removed and an x-ray was taken. There were signs that the fracture had compressed and there was evidence of callus. The tendons previously mentioned were functioning satisfactorily other than the tendon which straightened out the big toe. This tendon remained inactive. A swab was taken from the wound and a new cast was applied to the Pursuer's leg. Mr Dennyson confirmed that the subsequent microbiology report disclosed no significant infection. Mr Dennyson confirmed that the Pursuer attended the outpatients department on 29 September by appointment. The cast was removed and a back plate put on in its place.

 

[87] Mr Dennyson confirmed that on 3 October the Pursuer was back at accident and emergency and was seen by Dr Chappell. There was more leakage from what was understood to be a fracture blister. Leakage or exudate is discharge probably referring to an infective situation. Dr Chappell measured the dimensions of the blister at 2 x 3 cm.

 

[88] Mr Dennyson confirmed that this represented a worsening picture in respect of the anterior blister which was the blister on the front of the leg. The swab taken revealed a heavy growth of Methicillin Resistant Staphylococcus Aureus - MRSA which is resistant to three antibiotics, Penicillin, Flucloxacillin and Erythromycin.

 

[89] Mr Dennyson confirmed that he then received a letter from Dr Wilson of Selkirk Health Centre dated 10 October indicating that he had seen a small spike of bone in the Pursuer's leg which, two days later, was more noticeable.

 

[90] Mr Dennyson confirmed that he saw the Pursuer on 13 October. His wound seemed to be improving. The granulation tissue looked healthy and there was no definite evidence of infection of major concern. Mr Dennyson however did make reference to possible in-patient treatment using the intravenous antibiotics Vancomycin and Gentamicin.

 

[91] It was the view of Mr Dennyson that since the overall state of the patient and the leg seemed to be essentially satisfactory he wanted to avoid further admission to hospital and additional antibiotics unless there was a deterioration in the state of the wound which would make admission mandatory. Mr Dennyson was of the view that both of these antibiotics have significant risks in their own right to the patient.

 

[92] Referring to MRSA Mr Dennyson made the following observation "the actual organism of MRSA is in its own right one of quite low virulence and its presence does not automatically mean that it will be a risk to life or limb, so the positive nature of the swab has to be taken in conjunction with the appearance of the organism involved, the general condition of the patient before embarking on high risk antibiotic therapy".

 

[93] Mr Dennyson confirmed that there was no mention in the medical notes or in the radiology report following the x-ray taken on 13 October 1997 of any spike of bone. He stated that a tiny piece of bone may not be noted in the radiology report.

 

[94] Mr Dennyson stated in response to a question about contacting the bacteriologist and the Pursuer's general practitioner "in an nightmare scenario of MRSA, and indeed in any significant infection following receipt that Mr McColm had we work very closely with the bacteriologist in terms specifically on advice regarding antibiotics, the type of and the duration".

 

[95] Mr Dennyson confirmed that he would be away from Borders General Hospital for about six weeks but if there was a deterioration in the Pursuer's wound provision was made for him to return to the hospital. Mr Dennyson confirmed that Dr Morag Brown, the bacteriologist, agreed with his management which was that if the position deteriorated the Pursuer would be brought in for intravenous antibiotics Vancomycin and Gentamicin.

 

[96] Mr Dennyson stated that provision was made for continuity of treatment. Locum consultants had been arranged for his period of absence. One was Mr Ofori-Atta whom they knew. The other was Mr Driver-Jowitt who was in his late 50's and practiced in Cape Town, South Africa.

 

[97] Mr Dennyson indicated that on 13 October 1997 the wound looked healthy with granulation tissue and appeared to be improving. The witness wrote to Dr Wilson setting out the position and the clear plan. In addition Mr Dennyson's secretary wrote to the Pursuer with a provisional appointment in two weeks time if it was required.

 

[98] Mr Dennyson stated that he fell ill and was unable to return to duties on the planned date and he did not see or examine the Pursuer again.

 

[99] The witness observed that at that stage the Pursuer only had one ulcer on his leg and was unaware that he later developed a second and subsequently a third ulcer.

 

[100] Mr Dennyson noted from medical records that Dr Wilson wrote to the hospital on 6 November 1997 referring to a deep ulcer at the medial malleolus which is the bony lump on the inside of the ankle. The doctor was "concerned that this is a sign of deeper infection".

 

[101] Mr Dennyson noted that on 7 November the Pursuer was seen by locum consultant, Mr Paul Ofori-Atta who noted the two ulcers. One was 4 x 4 cm, the other was 1 cm in diameter and 6 mm deep over the distal interlocking screw insertion. The first ulcer is the anterior ulcer which was previously 2 x 3 cm. The second ulcer was apparent from 2 November when the Pursuer saw Dr Wilson, his General Practitioner. Mr Dennyson notices that between 3 October and 7 November one ulcer had increased in size and another had developed.

 

[102] Mr Dennyson noted that on 27 October the Pursuer was seen by Mr Driver-Jowitt, another locum consultant, who recorded that the wound had diminished in size suggesting an improvement. The point of concern was a small spicule of bone in the wound. Mr Driver-Jowitt's entry referring to two or more tiny fragments. The radiology report of 29 October stated "no definite radiological evidence of fracture healing demonstrated. No sequestrated fragments are identified".

 

[103] Mr Dennyson observed that a sequestrated fragment tends to refer to a fragment of bone that has died as a result of infection. A spicule of bone does not assume by definition that infection is apparent. To distinguish between a sequestrated fragment and a spicule on an x-ray is almost impossible.

 

[104] Mr Dennyson also observed that small pieces of bone extruding where there is a fracture could be evidence of osteomyelitis. It is not common practice for small fragments of bone to work their way out but small fragments are not absolutely evidence of osteomyelitis.

 

[105] On the matter of antibiotic treatment Mr Dennyson pointed out that he did not treat the MRSA with Ciprofloxacin. He said the Pursuer had Ciprofloxacin on 13 September and continued with it not because of MRSA but because he had infection in his leg.

 

[106] The witness also stated that it was not clear on 13 October1997 that the Pursuer was suffering from bone necrosis (bone death). He was suffering soft tissue infection.

 

[107] Clarifying his position Mr Dennyson stated that he did not note on 13 October increased exudates from the blister site. It was Dr Chappell who noted that on 3 October. Mr Dennyson's position was that his note was of an improving position. He did however confirm that he did not note the presence of MRSA on 13 October. MRSA was resistant to three antibiotics but this did not include Ciprofloxacin. It is not absolute that a spicule of bone is indicative of dead bone.

 

[108] In Mr Dennyson's view osteomyelitis refers to extensive infection of the bone tissue and also the inside of the bone. The periosteum must be involved in the infection.

 

[109] Mr Dennyson's view was that aggressive operative wound excision was only one of a number of surgical regimes. No-one could say it is the "correct treatment". He observed that the bone can heal spontaneously with a protracted period of time, immobilisation and antibiotics.

 

[110] Mr Dennyson did not accept that excision was necessary. The remainder of the bone can progress to union in the presence of dead bone. It was his view that it was not an option at the time he was responsible for the Pursuer's care.

 

[111] Mr Dennyson also recorded that he did not consider there was non-union on 13 October. His view was that as a rough rule one applies non-union to probably a period in excess of three months. There would be non-union after three months without any evidence of new bone. The presence of bony callus is very significant. As far as infected non-union was concerned this was non-union which has occurred or developed as a result of the added assault of infection.

 

[112] It was the opinion of Mr Dennyson that by 13 October there was neither non-union nor infection of the fracture and even if there was non-union and infection the treatment would not have been the removal of all devitalised soft tissue and bone.

 

[113] In cross examination Mr Dennyson accepted that things progressed reasonably well until perhaps 3 October 1997.

 

[114] He confirmed that the extensor hallucis longis which is the tendon that pulls up the big toe may have been damaged by heat during the operation to install the intramedullary nail. He explained that the other possibility is what is called compartment syndrome where as a result of the fracture and surgery bleeding occurs into the calf leading to a very tight calf which in turn can press on the nerves, vessels, tendons and muscles.

 

[115] When reaming takes place the witness explained that tissues can be damaged around the fracture site and heat could also damage the bone and surrounding tissues. Mr Dennyson explained that heat does not cause infection in its own right but damage to bone makes it more susceptible to infection.

 

[116] Where the fracture blister was first seen on 5 September and increased exudate was noted on 3 October and MRSA was evident on 13 October which was resistant to three listed antibiotics Mr Dennyson accepted that there was no reference in the relevant clinical details to any test being carried out to show whether MRSA was sensitive or resistant to Ciprofloxacin which was the one antibiotic being given to the Pursuer at the time. Mr Dennyson explained that MRSA may be sensitive to Ciprofloxacin and at other times resistant to it. He stated he did not know if it was logical to test for sensitivity of Ciprofloxacin at the same time. The witness explained that the Ciprofloxacin was aimed at stopping additional infection in the soft tissue and to attack other bacteria although it may have afforded some action against MRSA.

 

[117] Mr Dennyson's evidence was that MRSA was of low virulence and does not preclude fracture healing . With the assistance of the bacteriologist Ciprofloxacin was seen at the time as a reasonable option as an antibiotic. The witness accepted that it was important to find out the actual sensitivities of MRSA but was not familiar with the testing.

 

[118] Referred to Rockwood and Green's and the procedure widely followed Mr Dennyson agreed with the statement about early wound treatment surgery and antibiotics but did not accept that the care given to the Pursuer did not meet the standard set out in the text book. He did not consider that additional antibiotic therapy was necessary as at 13 October. The witness did not diagnose osteomyelitis and he accepted that no attempt was made by 13 October to test or treat MRSA by use of an appropriate antibiotic.

 

[119] Mr Dennyson accepted that MRSA can become worse by spreading to surrounding tissue and bone and accepted that spicules of bone can be a sign of breakdown of the bone as a result of an infection. In addition he acknowledged that lysis which is the loss of bone substance can be evidenced by a spicule of bone.

 

[120] Mr Dennyson accepted that knowledge of infection at the fracture site and knowledge of a spicule of bone does raise the suspicion of infection of the bone.

 

[121] His evidence was that all signs were taken into account both radiological and clinical to make progress. He took into account the subjective evidence of the patient, the appearance of soft tissue and the appearance of x-ray. There was no reason then to embark on in patient therapy with an antibiotic which carries risk but he was aware on 13 October of the possibility of infection of the bone.

 

[122] Mr Dennyson accepted that osteomyelitis would not be seen on x-ray until 40% of the bone had been destroyed but put emphasis on appearance of new bone at the fracture site and general clinical appearance.

 

[123] He was of the opinion that with all the parameters he didn't feel in patient treatment with Vancomycin was necessary.

 

[124] Mr Dennyson accepted the view of Mr Court-Brown of evidence that osteomyelitis may be present and requiring treatment. The witness considered the option of administering an antibiotic to which MRSA was sensitive on 13 October but rejected it. He was of the view that union of the fracture could still occur. He did not accept the view that if the infection remained after, say a week, radical excision was the only option.

 

[125] Mr Dennyson was not able to give a reference book for the practice of trying to get union with infection rather than radical excision.

 

[126] Referred to Rockwood and Green at page 475 which indicated that the "cornerstone of the successful treatment of chronic osteomyelitis was the complete removal of all involved bone and soft tissue", Mr Dennyson indicated he was not aware to reference being made in Rockwood and Green to waiting to allow bony union first in the presence of infection.

 

[127] When re-examined Mr Dennyson confirmed that although he could not direct Mr Wilson to anything in Rockwood and Green indicating the practice of trying to obtain union and then deal with the infection as an acceptable course of treatment this was indeed the practice to try to get union first and eradicate the sepsis afterwards.

 

Mr Christopher H Tiemessen

 

[128] Mr Tiemessen, aged 47, is a consultant orthopaedic surgeon at Borders General Hospital and came to the hospital at the beginning of 1998. He was a consultant orthopaedic surgeon in South Africa from January 1995 to December 1998. He stated that he specialised in orthopaedics from 1990 and spent a period specialising in units dealing with bone sepsis. At that time the surgeon in charge was Charles Lautenbach who had published a lot about bone sepsis. His approach was not old fashioned. From 1995 to 1997 he was involved in numerous cases of tibial fracture sepsis and dealt with 20 to 25 cases of septic tibias a year. He explained that bone infections were more common in third world populations.

 

[129] Mr Tiemessen accepted that in some cases radical excision was then followed by bone transport where there was a septic non-union but there were two ways of dealing with the problem, the other method being to try and gain union first and then eradicate the sepsis afterwards. The idea was to get compression by getting the two ends of the fracture to come together, the proximal fragment to compress down on the distal fragment. Later there would be a debridement to remove all infected and dead tissue. Both methods were perfectly acceptable.

 

[130] Mr Tiemessen explained the technique of reaming "Lautenbach style". If there was infection within the medullary cavity of the tibia it is cleaned up by metal reamers removing infected material. Thereafter the intramedullary canal of the tibia is washed out with fluid containing an appropriate antibiotic to control or cure the infection.

 

[131] The witness explained that a debridement followed by a bone transport system was a long process for at least a year and an amputation may well be the acceptable form of treatment. Mr Tiemessen stated that he took over the management of the Pursuer

when there was clear evidence of an infected non-union of the tibia. He reported that a UK trained consultant would not come across many patients with the Pursuer's condition. He believed his experience was greater than that of Mr Court-Brown in dealing with septic non-unions.

 

[132] Mr Tiemessen explained that his plan was to perform a fibular osteotomy which was the deliberate breaking of the fibula to assist the compression of the fracture ends of the tibia. His intention was to leave the intramedullary nail in place to get some union. When that was achieved he would take out the nail and then do a Lautenbach style debridement with reaming and irrigation and then progress from there.

 

[133] The plan was to see the Pursuer in six weeks but the Pursuer was seen again on 6 February. Mr Tiemessen believed the signs were of a controlled infection. He explained that he would only propose changing the treatment programme if there were signs of uncontrolled infection. Such signs would be increased redness around the wounds, increased swelling of the lower leg, increased pus drainage and temperature increase making the patient feel unwell, but this did not appear to be the case.

 

[134] Mr Tiemessen explained that following the fibular osteotomy operation on 26 January there was x-ray evidence showing that the proximal tibia had compressed down into the distal part of the tibia and the intramedullary nail had advanced down towards the distal part of the tibia as well. Mr Tiemessen confirmed that he wrote to Dr Wilson on 26 January confirming the treatment provided to the Pursuer and indicating he had taken over the Pursuer's care in the absence of Mr Clowes.

 

[135] The radiology report which followed the Pursuer's visit to the hospital on 6 February showed some callus formation. However, on 11 February Mr Tiemessen had to take the Pursuer to theatre again to de-rotate the tibia to get the foot back into its normal angulation in relation to the knee. Mr Tiemessen confirmed that the Pursuer was discharged the next day, 12 February, to continue full weight bearing with a plaster applied which was called a PTB designed to give some degree of rotational stability. Mr Tiemessen felt the wounds were healing reasonably.

 

[136] Mr Tiemessen stated that he saw the Pursuer again on 4 March 1998, the Pursuer having marked pain in his lower leg and increased muscle spasms. There was pus draining from both wounds. Mr Tiemessen noted from x-rays that there appeared to be a lot of new bone formation at the non-union site however he thought that it was a small sequestrum which is a piece of dead bone in the draining sinus cavity. He decided to do a small debridement to take it out having noted that the Pursuer's wounds were much the same since 11 February.

 

[137] Mr Tiemessen explained that a sequestrum is a piece of dead bone which he indicated was a "harbinger of infection". If there is dead bone it is difficult to get any antibiotics through the bloodstream into it because it has lost its blood supply. Therefore it is difficult to eradicate infection because of lack of blood supply.

 

[138] Mr Tiemessen went on to explain that he carried out the sequestrectomy through the wound and proposed to do a more extensive debridement at a later stage. Removing the sequestrum takes away the bacteria which will continue to otherwise multiply. Mr Tiemessen described it as "an ivis for infection".

 

[139] The radiology report from the x-rays taken on 4 March 1998 disclosed no significant change from the last x-ray carried out on 11 February and Mr Tiemessen reported that the bacteriology report from the same date disclosed a heavy growth of MRSA. Mr Tiemessen stated that this was the first sign of MRSA since he took over the Pursuer's care on 20 January 1998.

 

[140] Mr Tiemessen stated that he decided on 9 March to continue with the sequestrectomy and undertook the surgery on 11 March which included a small debridement. When writing to Dr Wilson updating him of the position he indicated that there was early evidence of callus forming.

 

[141] Mr Tiemessen accepted that the Pursuer had chronic osteomyelitis and the leg was in a chronic infection state. He was of the view that it was pointless to treat the infection with antibiotics unless you were going the full hog and doing a radical debridement. His reasoning for not treating with antibiotics was that the natural history of chronic osteomyelitis is to try and seal off the infection since you seldom get an acute worsening with MRSA spreading from the leg to other parts of the body. His view was that because someone had MRSA in a fracture didn't mean you required to treat them with MRSA antibiotics such a Vancomycin or Gentamicin. He expressed a view that if it is an acute infection and the patient is unwell then you must treat them but where the infection is chronic and the organisms change as one goes along the plan is to eradicate these completely at an appropriate stage.

 

[142] Mr Tiemessen explained that he deliberately did not take out all the infected or compromised tissue.

 

[143] The witness accepted that it was a reasonable assumption that the infected bone and soft tissue which were removed by Mr Court-Brown when he operated in May were there on 11 March 1998 but he did not accept that he had lost control of the infection. As he indicated chronic osteomyelitis has been known to continue for years.

 

[144] Mr Tiemessen noted that the Pursuer was re-admitted on 25 March since he was complaining that his plaster was soaked in the heel region and was causing him significant discomfort. A fair bit of pus was draining from his wound but Mr Tiemessen was of the view that there was significant improvement in the stability of the non-union site. He explained that it was not uncommon for pus to seep out and down to the bottom of the plaster. Further he noted that there was excellent granulation at the wound site which was decreasing in size. This he felt was a good sign. Mr Tiemessen wrote to Dr Wilson on 25 March with the up to date position and indicating that the Pursuer should continue with the dressings and continue with full weight bearing in the hope that walking would become easier and less painful.

 

[145] Mr Tiemessen observed that the Pursuer was back at the hospital on 3 April complaining of a lot of seepage into the plaster. When the plaster was removed it was discovered that a new sinus had appeared on the outside of his lower leg. Mr Tiemessen explained that at this stage one begins to wonder whether the Pursuer has an infection that is out of control or whether there is another reason for the appearance of another sinus. To decide what to do he stated that you go through the clinical examination and look at the x-rays which continue to show more impaction at the fracture site. There was no evidence of any infection in the fibula which would indicate an uncontrolled infection. The sinus on the medial, proximal side was draining very little pus. It was the other screw hole on the lateral side, the outside of the tibia which because of increased pressure was starting to force a tract out to the skin surface. The bottom of the tibia was acting as a sump with the result that all the pus tended to collect in that area. Since the pressure was highest the pus will want to be forced out in some direction.

 

[146] Mr Tiemessen confirmed that at that point he went off on annual leave for two weeks but made arrangements to see the Pursuer at the end of April for a repeat x-ray.

 

[147] Mr Tiemessen confirmed that when he came back from leave he learned that the Pursuer had sought a second opinion. This information was conveyed to him in a letter from Dr Wilson dated 9 April which included a copy of a letter Dr Wilson had written to Mr Court-Brown of the same date.

 

[148] Mr Tiemessen confirmed that he wrote to Mr Court-Brown on 21 April explaining what he had done and what he intended to do. He explained that when he took over in January 1998 the Pursuer had a confirmed septic non-union of the distal right tibia and a united fracture of the distal fibula. He explained the reason for undertaking a fibular osteotomy indicating he had adopted the same approach as was found successful in South Africa and was consistent with the teaching of Professor Charles Lautenbach. The letter also stated that x-rays have always shown a 'sump' effect in the distal tibia. The letter also explained that the new sinus had appeared as a result of pus under pressure forcing its way out to the skin's surface. Mr Tiemessen also indicated that in a memo to Dr Gaddie, the medical director at Borders General Hospital he set out his proposed treatment. The memo was dated 19 March 2003.

 

[149] Mr Tiemessen accepted that the radical debridement as done by Mr Court-Brown was an appropriate procedure but the witness indicated that he did not have any bone transport performed afterwards which he thought would have been the most appropriate next step. His view was that the patient needs to be offered the procedure rather than amputation.

 

[150] Referred to the Record and the averments of negligence Mr Tiemessen agreed with part of what was said about the correct procedure for osteomyelitis but he argued that there was scope for less aggressive treatment. He did accept that to get rid of osteomyelitis you need a form of debridement and excision of devitalised tissue.

 

[151] He disagreed with the view that fibular osteotomy has no part to play in the management of infected non-union. His view was that the procedure can be used at any stage to get compression of the tibia whether infected or non-infected. He stated that the procedure had worked for patients in South Africa then emphasised that bone sepsis may be treated in one way in the United Kingdom and in another way in South Africa.

 

[152] In relation to the criticism of Mr Court-Brown of only carrying out a small debridement he accepted that infected soft tissue and bone were left in the Pursuer's leg but he indicated that Mr Court-Brown was not understanding what he was trying to achieve.

 

[153] On the averment that "by 1997 and 1998 it was well known that the treatment of infected non-union should be by removal of all devitalised soft tissue and bone, and this was standard practice" Mr Tiemessen accepted that the treatment should be the removal of all devitalised soft tissue and bone but there were a number of ways to do this and the timing of it would be a factor.

 

[154] Mr Tiemessen denied that any of the treatment was negligent.

 

[155] In cross examination Mr Tiemessen confirmed that when he took over the care of the Pursuer there was septic non-union, there were clinical and radiological signs that the fracture was not healing and unlikely to do so if left as it was. He was of the view that there was chronic infection which he believed was under control. He accepted that marked osteomyelitis usually had a draining sinus and perhaps a second draining sinus.

 

[156] Mr Tiemessen indicated that he recalled having a discussion with Mr Charles Clowes when he took over the care of the Pursuer but he could not remember if Mr Clowes was of the opinion that the Pursuer was being treated for a septic non-union. Mr Tiemessen was unable to say how long the chronic osteomyelitis had been in place. His plan was to establish bony union in the presence of sepsis and then deal with the infection. He regarded this as a traditional approach to the treatment.

 

[157] Mr Tiemessen believed that the main reason for non-union after a period of five months was the development of sepsis. However given the clinical picture and the way the infection had presented and the nature of the infection he considered it more appropriate to go down the route that he was planning. He accepted that it was possible to go down another route but that was a decision he made at the time.

 

[158] Mr Tiemessen accepted that his own preferred option was still a risk and that continued sepsis would prevent bony union. The important thing was that provided the infection was controlled matters were as he put it ok but if out of control it was necessary to change procedure. His view was that there was always the risk that the infection would spread but he did not consider that it spread at the time. He was of the view that it remained in the same area of the tibia as he started with.

 

[159] The witness explained that the loss of control of infection would mean the extension of the infection higher up into the tibia. It would be into the soft tissues.

 

[160] Mr Tiemessen did think about the question of the infection being out of control when the Pursuer's pain was so severe and when the sequestrectomy was done and the extra sinus appeared. He did accept that each of these signs could be a sign of worsening infection.

 

[161] Questioned on the fibular osteotomy surgery Mr Tiemessen explained that with the operation and subsequent compression of the two members of the tibia bits of bone will break off. There would also be devitalised bone around the non-union site.

 

[162] On the matter of sequestrectomy Mr Tiemessen confirmed that it was not his intention to perform a large operation.

 

[163] On the issue of bone union Mr Tiemessen confirmed that if there is insufficient compression you will not get union under any circumstances. You can still get bone to grow in the presence of sepsis but if no blood supply to a piece of bone you will not get union.

 

[164] On the question of identifying dead bone he indicated that a sequestrum is not always evident on x-ray. It is difficult to detect if a piece of bone is dead.

 

[165] Mr Tiemessen accepted that if dead bone material extends too far to either side of the fracture site, there is no chance of union.

 

[166] Mr Tiemessen disagreed entirely with the view put forward by Professor Court-Brown that the intention to perform the Lautenbach procedure was not a substitute to a radical debridement procedure. He indicated that his proposed plan involved radical debridement but in a completely different way. He explained that the Pursuer's predominant infection was intramedullary within the tibial canal. The blood supply inside the bone had been destroyed by putting in the intramedullary nail. The only proper blood supply was in the periosteum, the covering of the bone. He explained that some of the periosteum may be deficient around the edges where the proximal tibia meets the distal tibia but he believed the main part of the infection was inside the bone and that the procedure he proposed was the best overall but stating that he accepted also that there were other ways of treating the Pursuer.

 

[167] Mr Tiemessen stated that both the debridement suggested by Professor Court-Brown and the Lautenbach debridement involved removal of all dead and infected bone. The difference between the two was in terms of time and the way you do it together with the result you get afterwards. The radical debridement suggested by Mr Court-Brown commits the patient to a massive series of operations of soft tissue and bone reconstruction. With the Lautenbach method, Mr Tiemessen explained that you have very few soft tissue reconstructions. Mr Tiemessen confirmed that if he thought the infection was out of control he would have gone on with the Lautenbach procedure at an earlier stage.

 

[168] Mr Tiemessen did not accept that the failure to do a radical debridement earlier increased the risk of infection.

 

[169] Mr Tiemessen expressed the view that insisting on a radical debridement followed by soft tissue and bony reconstruction represented a lack of flexibility on the part of Mr Court-Brown. He also disagreed with Mr Court-Brown that allowing the infection to spread made it impossible to save the Pursuer's leg. He did accept by reference to Rockwood and Green that early treatment drastically reduces the incidence of subsequent chronic osteomyelitis and osseous destruction.

 

[170] Mr Tiemessen expressed the opinion that Mr Court-Brown's view of procedure was one dimensional. The Lautenbach type of procedure was much less disruptive to tissues. He indicated that there are text book references to the Lautenbach procedure and also noted that it is not always the case that infection will spread if debridement is delayed. Mr Tiemessen stated that it was not his view that in April 1998 it was already too late to save the Pursuer's leg. He believed his treatment plan could still have worked. If union however wasn't progressing the attempt to get union could be abandoned, the infection could be eradicated and thereafter union could be attempted.

 

[171] Referred to the 1 - 11/2 inches of dead bone below the fracture site reported by Mr Court-Brown the witness accepted that if there was this dead bone there was no chance of union but he wondered whether it was really dead.

 

[172] Mr Tiemessen accepted that there was widespread infection when Mr Court-Brown explored the fracture site on 5 May 1998. As the witness put it, it was "what I would have expected".

 

[173] Referred to Mr Kinninmonth's report dated 30 July 1999 submitted on behalf of the Defender he confirmed and accepted that dead bone should be excised radically but as he had already pointed out there were different ways of doing it and his intention was to do it by the Lautenbach principle. He had his own preferred method. Mr Kinninmonth did not have experience of the Lautenbach principles.

 

[174] On the matter of a fibular osteotomy Mr Tiemessen declared that it was a simplistic approach to state that it is not the specific treatment for septic non-union. Such an operation is designed to get some degree of compression whether non-unions are infective or non-infective. Accordingly he did not accept that fibular osteotomy has no place in the treatment of an infected non-union.

 

[175] On re-examination Mr Tiemessen was referred to letters written by Andrew Kinninmonth dated 5 March 2003 and 5 January 2004 addressed to the Central Legal Office. Mr Kinninmonth is a consultant orthopaedic surgeon at Golden Jubilee National Hospital Clydebank. Aware of the reports prepared by Mr Court-Brown Mr Kinninmonth stated "I think the ordinary practicing orthopaedic surgeon in Scotland or indeed in the UK would probably have treated this fracture in a similar fashion". Mr Tiemessen emphasised that radical excision and bone transport was not the only treatment available to the Pursuer.

 

[176] Mr Tiemessen went on to explain that it was misleading to focus on dead bone as sequestrum when the Pursuer had an intramedullary nail in place with a much greater surface area. The nail eventually has to come out to clear the infection. The witness indicated he would not put another nail in immediately. He would deal with the infection by removing all necrotic tissue, soft tissue and bony tissue, wait a while and then put a nail in at a much later stage when he was sure the infection had settled down completely.

 

[177] Mr Tiemessen was also a credible witness explaining to the court, from his experience as a consultant orthopaedic surgeon, his view on the clinical situation that he found when he took over the care of the Pursuer in January 1998. He was quite adamant in his views that the treatment he gave and the plan for the future was the best course for the Pursuer. He would not be swayed that the course of treatment suggested by Mr Court-Brown was the better way to proceed. He accepted that it was an alternative but not the only way.

 

Mr Arthur J Espley

 

[178] The last witness to give evidence for the Defender was Arthur J Espley, a partly retired consultant orthopaedic surgeon, now undertaking locum work. He was a consultant at Bridge of Earn Hospital in 1981 and was consultant orthopaedic surgeon at Perth Royal Infirmary from 1993 until he retired in 2005. The hospitals he worked in were district general hospitals. They were teaching hospitals and had trauma cases coming in. The hospitals he worked in were not tertiary referral centres. A tertiary referral centre was for specialist treatment for complex problems. He acknowledged that Edinburgh Royal Infirmary was a tertiary referral centre.

 

[179] The witness knew Andrew Kinninmonth the consultant surgeon at Golden Jubilee Hospital, Clydebank. He was aware that Mr Kinninmonth ran a problem fracture clinic and could be described as a super specialist like Mr Court-Brown. Mr Kinninmonth had a greater level of specialism than surgeons at a district general hospital.

 

[180] Mr Espley confirmed that he had read reports and statements produced in connection with the court action and was aware of the test for medical negligence and that was that the actions of medical staff at Borders General Hospital were compatible with those of an orthopaedic surgeon of ordinary competency exercising reasonable care. He was also aware that the test was based on what a surgeon knew at the time and that hindsight should be avoided.

 

[181] Mr Espley, called as an expert witness was asked to address several issues. These were (a) the decision of Mr Dennyson on 13 October 1997 to continue the Pursuer on Ciprofloxacin notwithstanding recent evidence of an MRSA infection, (b) Mr Dennyson's failure to proceed in October 1997 to treat the Pursuer by means of aggressive wound excision removing all devitalised soft tissue and bone, (c) the failure of Mr Driver-Jowitt having seen bony spicules on 27 October 1997 not to proceed to aggressive wound excision and (d) Mr Tiemessen's failure to proceed to aggressive wound excision from mid January 1998 onwards. There were sub-issues. These were whether the fibular osteotomy carried out on 26 January 1998 was negligent on the basis of being pointless and secondly whether the sequestrectomy carried out on 11 March was negligent since it did not amount to aggressive wound excision.

 

[182] On the matter of Mr Dennyson's decision on 13 October 1997 Mr Espley gave the view that the Ciprofloxacin antibiotic was not given to treat the MRSA. This was an acceptable way of proceeding. The patient was apparently clinically improving. Mr Dennyson believed that the best way to get the bone to unite was to keep the patient out of hospital and weight bearing. The weight bearing was to allow the fracture to heal and also avoid toxic intravenous medication. Mr Espley was of the view that this was all a reasonable way to proceed if the wound was not deteriorating and the patient was comfortable. He accepted however that the position needs to be kept under review after a couple of weeks.

 

[183] Mr Espley disagreed with the proposition that the only course open to Mr Dennyson was to admit the Pursuer for intravenous Vancomycin treatment if the patient has MRSA. The aim was not to eliminate infection but to get union. There was no compelling reason to treat the Pursuer with Vancomycin on 13 October 1997. Mr Espley indicated that this was consistent with a body of opinion.

 

[184] From the evidence he had heard and reading the notes aggressive wound excision was not necessary at that stage. The wound looked healthy and did not look overtly infected.

 

[185] Referring to the Pursuer's meeting with Mr Driver-Jowitt on 27 October from the medical notes Mr Espley explained that it is not known if Mr Driver-Jowitt looked at the wound but he assumed that he had done so if he saw the spicule of bone. He explained however that Mr Driver-Jowitt was relying on the patient's own word about what the wound was like previously. He explained that in the notes Mr Driver-Jowitt had indicated that the Pursuer had told him that the wound was "constricting progressively".

 

[186] Mr Espley explained that in his letter to Dr Wilson, the general practitioner, on 27 October, Mr Driver-Jowitt referred to an ulcer over the fracture site but was of the view that this was a traumatic injury incurred at the time of the accident. There was no reference in the medical notes to pus or exudate from the wound.

 

[187] On the matter of the spicules of bone Mr Espley thought it reasonable to take the view that these spicules would extrude and that they were innocuous. The witness stated that Mr Driver-Jowitt would, with his massive experience of osteomyelitis, have noted and recorded if he felt they were significant.

 

[188] Mr Espley expressed the opinion that it was very unlikely that the small fragments of bone indicated infection at that stage. He indicated that he was giving this view even with hindsight.

 

[189] Having examined x-rays Mr Espley indicated that the earliest x-ray showed quite a gap between the bone ends, about 1 cm, but the ends came closer together in the first few weeks through weight bearing. He expressed the view that this may have pushed out the fragments.

 

[190] Mr Espley was of the opinion that there was nothing to suggest Mr Driver-Jowitt did not exercise the requisite skill and care. There was no evidence to suggest that he should have proceeded to aggressive wound excision on 27 October even with MRSA and spicules of bone. Mr Espley accepted however that there was osteomyelitis by 20 January 1998.

 

[191] On the debate on the difference between delayed union and non-union Mr Espley expressed the opinion that even when the Pursuer was referred to Edinburgh there was still some doubt whether the fracture was proceeding to union. In this connection reference was made to the medical records of Royal Infirmary of Edinburgh and an entry on 5 May 1998. In May 1998 the witness stated that things had ground to a halt but even at that stage it wasn't certain that the fracture would not unite. Mr Espley indicated that his opinion was based on the radiology evidence.

 

[192] Mr Espley admitted that he was a non-expert in the management of septic bone but he said that he was taught to get bony union first and then proceed to eliminate infection. He had treated septic fractures on rare occasions over two decades.

 

[193] On the approach undertaken by Mr Tiemessen he was of the opinion that this was a standard and well documented method of treatment in a district general hospital. His view was that it was not simply a South African way of treating a patient.

 

[194] On the issue of the fibular osteotomy Mr Espley stated that there was nothing indicated to him that it was incorrect to undertake such surgery in cases of infected non-union.

 

[195] On the question of the sequestrectomy Mr Espley indicated that Mr Tiemessen obviously wanted to remove pieces of devitalised tissue without disrupting the soft tissue sleeve, the periosteum and the surrounding soft tissue. He didn't want to cut off the blood supply. His approach was a conservative operation. Mr Court-Brown had a more radical approach to find out what tissues were dead.

 

[196] Mr Espley did not accept that the surgeons at Borders General Hospital should have taken the radical approach from about October 1997 since union can occur in the presence of dead bone.

 

[197] Mr Espley expressed the view that when Mr Court-Brown performed his radical debridement in May 1998 he went beyond the point of no return.

 

[198] Mr Espley expressed the opinion that there was nothing in the management at Borders General Hospital which fell below the standard of a surgeon of ordinary competence exercising reasonable care.

 

[199] Mr Espley accepted that reaming causes damage to the soft tissue and bone leading to bone death. He also accepted that it allowed infection to set in. This was recognised in 1997 but he was not aware of this in 1997.

 

[200] Mr Espley went on to give the opinion that he did not agree that the bone necrosis was the cause of the infection. Necrosis did contribute to the infection but did not necessarily cause it. There could be an ingression of bacteria through the wound. Mr Espley reiterated that there was no imperative in October or November 1997 to be more aggressive with treatment. The surgeons were entitled to continue to their goal of achieving union.

 

[201] In conclusion of examination in chief Mr Espley observed "if more aggressive treatment, such as wound debridement, had taken place there is a chance that the outcome might have been better, but I think that is by no means certain".

 

[202] On a question of the distinction between non-union and delayed union Mr Espley explained that this can be entirely based on x-ray appearances but he was of the view that non-union only occurs when it is clear that the fracture would never unite.

 

[203] In cross examination Mr Espley stated that on 13 October 1997 the condition was one of fracture of the junction of middle and lower third tibia with an open wound which had the appearance of being healthy. The witness accepted that osteomyelitis did occur later. It was certainly established when Mr Tiemessen removed the sequestrum in March 1998. He did accept that there was a strong possibility of the bone being infected before that time.

 

[204] Mr Espley gave the opinion that acute (haematogenous) osteomyelitis was not a likely scenario. The orthopaedic surgeons would be looking for signs of chronic osteomyelitis. He expressed the opinion that it was unlikely to stop the development of it due to the presence of the metalwork in the leg. Mr Espley did not think it possible to eradicate it with metalwork in place. It developed very slowly.

 

[205] Mr Espley expressed the view that it is not always necessary to treat MRSA when found to prevent its spread and possible osteomyelitis. The appropriate antibiotic therapy is only necessary to target the MRSA if the clinical situation is deteriorating but not if static or improving. In this respect he disagreed with the view of Mr Court-Brown.

 

[206] On the general signs of chronic osteomyelitis the symptoms could include increased pain, discharge from the wound (usually purulent) inflammation or oedema (tissue swelling). Some symptoms would be absent. In relation to these it could be difficult to spot increasing pain if there was pain anyway and in respect of the Pursuer there was discharge but it was not purulent in the early stages.

 

[207] Referring to his report Mr Espley confirmed that there was little movement in the extensor hallucis longus tendon on 25 August 1997. He agreed that the damage could have been caused by heat during the reaming process. There was also likely to be damage to the surrounding muscle and tissue but this was not well recognised at the time. The blister noted on 5 September 1997 was a fracture blister, a well known phenomenon. The surgeon would not be thinking of infection at that stage. The enterobacter bacteria present in the wound would not be evidence of osteomyelitis since this particular type of bacteria affects only the soft tissue.

 

[208] Mr Espley explained that the MRSA swab identified on 13 October 1997 exposed a potentially problematic situation but did not necessarily imply osteomyelitis.

 

[209] The witness gave the opinion that the small spike of bone seen on 27 October was not evidence of osteomyelitis developing. It was in keeping with fragmentation at the fracture site and in that respect he disagreed with the view of Mr Court-Brown. He also disagreed with the view of Mr Court-Brown that it was negligent not to administer Vancomycin on 13 October to treat the MRSA. If MRSA is present in a wound you don't necessarily have to treat it.

 

[210] Mr Espley indicated that microbiologists would say yes to treating MRSA with Vancomycin but the surgeon has to consider the whole clinical picture. Mr Espley gave the opinion that matters were rolling along nicely and Mr Dennyson felt it was not appropriate to use this toxic treatment on one or two bacteria in the wound. In any event there is the risk that MRSA will spread even if Vancomycin is given.

 

[211] On the question of whether the risk is greater if nothing is given Mr Espley expressed the opinion that in the context of an intramedullary tibia it was possible a risk would be greater if no antibiotic is administered.

 

[212] As far as the recommendation of Mr Court-Brown was concerned it was only one of the treatments available. It was the opinion of Mr Espley that even if there is dead bone in the tibia an attempt should be made to get bony union first in the presence of sepsis.

 

[213] Referred to Mr Kinninmonth's report where there was support for the view of Mr Court-Brown, Mr Espley expressed the opinion that he didn't disagree with radical debridement but there was the Lautenbach philosophy of trying to get union first although Mr Kinninmonth and Mr Court-Brown were saying it was not the best treatment.

 

[214] Mr Espley accepted that Mr Kinninmonth and Mr Court-Brown treated more cases of septic non-union and had more expertise than he had. He agreed with the view stated by Mr Kinninmonth in his report that earlier tertiary referral may have salvaged the situation and prevented amputation.

 

[215] Mr Espley accepted that a more aggressive line of management may have salvaged the situation. The infection may have been controlled, the dead bone removed and the limb rendered uninfected and united. It would have involved radical debridement.

 

[216] Mr Espley referred to the Ilizarov technique regarding it as revolutionary and amazingly successful but this was not mentioned by Mr Court-Brown.

 

[217] On the matter of causation Mr Espley stated that on a balance of probabilities he found it very difficult to answer that the infection may have been eradicated by carrying out a radical excision.

 

[218] Mr Espley indicated that he once in the early eighties at Bridge of Earn Hospital performed a radical excision operation of the type advocated by Professor Court-Brown.

 

[219] On re-examination Mr Espley confirmed that he took a retrospective view when he considered the question of tertiary referral but also accepted that if he was going to judge negligence you have to take a prospective view.

 

[220] Mr Espley indicated that no dead bone was recognised radiologically at Borders General Hospital.

 

[221] Referred again to Mr Kinninmonth's report which was a pre-litigation report dated 30 July 1999, Mr Kinninmonth believed that a period of conservative treatment of the infected fracture is reasonable but after six - nine months "I think more radical treatment modalities are mandatory especially if instability is present". Mr Espley confirmed that the six to nine months took us to 18 February 1998 or 18 May 1998.

 

[222] He referred to his own report dated 11 November 2006 and page 15. Mr Espley confirmed that Dr Morag Brown gave reasons why she thought Mr Dennyson had withheld stronger antibiotics describing his decision as a perfectly reasonable course of action.

 

[223] In conclusion Mr Espley explained that most patients will have soft tissue infection after fracture rather than a bony infection.

 

[224] Mr Espley gave his evidence in a credible and straightforward manner. It was obvious his evidence was based on his long experience as an orthopaedic surgeon in a district general hospital despite the fact that he stated he was speaking to the court as a non-expert in the management of septic bone. From the evidence he heard and the medical notes and records he had examined he was expressing a view of how another orthopaedic surgeon might react to the clinical situation found.

 

SUBMISSIONS

 

Pursuer

 

[225] Submissions were made both in writing and orally by Mr Wilson for the Pursuer. First of all he requested the court to certify Mr Court-Brown as an expert witness. Mr Wilson also wished to correct some factual inaccuracies on Record and amend these in terms of Rule 18. There was no prejudice to the Defender in relation to these amendments which were a matter of concession by Mr Stephenson for the Defender. On page 3 of the Record the third paragraph line 2 the reference to "Dennyson" should be deleted and substituted by the word "Tiemessen". On page 10 paragraph (b) "13" should be substituted for "3" in line 1. On page 11 of the Record line 5 the sentence beginning "Mr Dennyson's decision in November 1997 ..." should be deleted.

 

[226] Summarising the Pursuer's written submissions on the legal issue there was no dispute that the test to be applied for negligence was that laid down by Lord President Clyde in Hunter -v- Hanley 1955 SC 200. The Pursuer must prove that the doctors said to have been negligent were guilty of such failure that no doctor of ordinary skill would be guilty of acting with ordinary care. To establish liability where he alleges deviation from normal medical practice the Pursuer must prove (a) that there was a usual and normal practice, (b) that the doctor had not adopted that practice and (c) that the course that the doctor adopted was one which no professional man of ordinary skill would have taken if he had been acting with ordinary care.

 

[227] In applying the test it was submitted that helpful guidance is given by Lord Hodge in Scott -v- Lothian University Hospitals NHS Trust [2006] CSOH 92. At paragraph [35] Lord Hodge quotes from his own judgement in Honisz -v- Lothian Health Board [2006] CSOH 24 that 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. However, the court does not defer to the opinions of the relevant professionals to the extent that, if a defender leads 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 in exceptional cases, the court may conclude that the practice which responsible medical practitioners have perpetuated does not stand up to rational analysis. 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. It will normally require compelling expert evidence to demonstrate that an opinion held 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.

 

[228] There was given as an exceptional case the example described in Hucks -v- Cole [1993] 4MEDLR 393 where 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 this decision by distinguished expert witnesses. Nevertheless the judge concluded that he was negligent and the court of appeal upheld his decision. The defendant knowingly took an easily avoidable risk which elementary teaching had instructed him to avoid. 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.

 

[229] It was submitted that in the present case different opinions were expressed particularly in relation to the appropriateness of the decision by the consultant orthopaedic surgeons at Borders General Hospital to attempt to treat septic non-union (or delayed union) by trying to unite the bones in the presence of sepsis rather than to remove the infected material before carrying out reconstructive work.

 

[230] It was submitted that the one acknowledged expert witness in the field was Professor Court-Brown and his opinion was strongly held and backed up by two eminent text books in use at the time. His position was consistent with common sense and borne out by the fact that the risks he identified of not treating the infection by early antibiotics and/or radical excision did in fact materialise in the Pursuer's case with devastating effect. It was submitted that none of the consultants employed by the Defender could be described as independent and none of them had sufficient expertise or experience to qualify as an expert in the treatment of cases of septic non-union. Mr Espley, the independent consultant who gave evidence for the Defender expressly stated that he was "a non-expert" and had very limited experience of dealing with cases of septic non-union.

 

[231] It was submitted that it was not certain that in this case there was a situation of having two opposing schools of thought. The method of treatment adopted by the consultants of the Defender was not supported by any text books, studies or other literature and was not spoken to by any expert in the field of septic non-union. In the circumstances the evidence of the Defender fell short of establishing a school of thought among the relevant group of responsible medical practitioners. It was submitted that the evidence of Professor Court-Brown should be preferred.

 

[232] It was submitted however that even if the evidence of the Defender amounted to a school of thought among relevant responsible medical practitioners, it was clear from the evidence that the policy of leaving the infection in place while attempting to obtain bony union ran a substantial risk that the infection would continue to spread and eventually reach a point where amputation was the only option. That is precisely what happened and, in the circumstances, even if another surgeon such as Mr Espley felt that he would have treated the condition in the same way it was a practice which did not stand up to rational analysis.

 

[233] In the case of Hucks -v- Cole, failure to give Penicillin ran a small risk of the development of septicaemia and was found to be negligent. In Mr McColm's case failure to treat the condition in the manner described by Professor Court-Brown and by the text books ran a significant higher risk of the spread of infection and was clearly negligent. For these reasons Mr Wilson submitted that the consultant surgeons who treated the Pursuer between October 1997 and April 1998 failed to reach the required standard and were negligent.

 

[234] On the question of liability Mr Wilson for the Pursuer submitted that in three respects the treatment of the Pursuer fell short of the required standard. Firstly there was the delay in administering antibiotics to which the MRSA infection in the Pursuer's leg was sensitive. Secondly there was failure to carry out a debridement or removal of dead and infected bone and tissue and thirdly there was a failure by Mr Tiemessen to carry out a more radical debridement when he elected to perform a fibular osteotomy and sequestrectomy on 21 January and 11 March 1998. In support of his contentions the Pursuer's solicitor referred to specified pages of the notes on evidence.

 

[235] On the issue of the delay in administering antibiotics to which the MRSA infection was sensitive reference was made to the evidence of Professor Court-Brown indicating that by 5 September 1997 the Pursuer had an infected fracture and was developing osteomyelitis (notes pages 149 - 150). By 13 October Mr Dennyson was aware that there was an MRSA infection and that this was not being treated by the antibiotics prescribed to the Pursuer. In the opinion of Mr Court-Brown it was necessary to ascertain the antibiotics to which the MRSA would be sensitive and to administer them (pages 153 - 154). There was no evidence that the MRSA was or was likely to be sensitive to Ciprofloxacin and it would be pointless to continue treating the Pursuer with antibiotics he was already receiving to which MRSA was not sensitive. Mr Court-Brown indicated that admission for intravenous Vancomycin was the only treatment for the MRSA organism (page 180).

 

[236] Delaying the administration of an appropriate antibiotic makes the infection become worse so that the patient ends up with a very large infected area which is then not responsive to antibiotic treatment alone. A delay of five to six weeks in administering Vancomycin will certainly reduce the chance of success and by then, according to Mr Court-Brown Vancomycin treatment by itself would be unlikely to succeed (pages 180-181). Despite the fact that MRSA was identified in early October Vancomycin treatment was not commenced until 14 November 1997. In the intervening period the Pursuer suffered from two unpleasant bacteria, one of which was not being treated. As Mr Court-Brown put it the MRSA had been identified but it was not being treated. According to Mr Court-Brown "that they had to do" (page 234).

 

[237] It was noted that Mr Dennyson, following consultation with the bacteriologist, Dr Morag Brown, decided not to administer Vancomycin to the Pursuer. Further he did not intend that the antibiotics already being administered to the Pursuer should treat the MRSA. On the contrary, it was not his intention to treat the MRSA at all unless there was a deterioration in the Pursuer's condition. It was also pointed out that the sensitivity of the MRSA organism to antibiotics was checked in relation to three of the antibiotics then being given to the Pursuer but not the Ciprofloxacin. Mr Wilson pointed out the reasons advanced by Mr Dennyson for not using Vancomycin targeted at the MRSA was that it would involve hospital admission for intravenous administration with unpleasant side effects. It was submitted that Professor Court-Brown was clear that these reasons in no way justified a failure to treat the MRSA and that the side effects could be avoided by careful monitoring of the patient.

 

[238] It was submitted that Mr Dennyson in his evidence did not give a clear answer whether or not it was necessary to treat MRSA with an antibiotic to which it was sensitive (page 558) although he did indicate that to some extent he still intended the Ciprofloxacin to afford some action against MRSA. No tests apparently had been carried out to see whether the MRSA was or was not sensitive to Ciprofloxacin (page 559). Further in response to the question as to whether in the case of MRSA infection it is vital to identify as early as possible an antibiotic to which it may be sensitive and to use that antibiotic to treat it, Mr Dennyson gave a less than clear answer stating he was "unfamiliar" with this. The evidence was that Ciprofloxacin had not been used particularly to attack the MRSA.

 

[239] It was noted that Mr Dennyson indicated that in deciding on drug treatment he would consult the bacteriologist, Dr Morag Brown, on specifically the drug therapy required. Dr Brown's input had an influence on his decision but Mr Dennyson did stop short of accepting he would defer to the bacteriologist's opinion. However any advice given was never placed before the court, she was not called as a witness and no report or other documents setting out her advice and the reasons for it were made available.

 

[240] The Defender sought support from Mr Espley. In his evidence (page 774) he indicated that Dr Brown had stated that she is likely to have agreed that if MRSA was present the appropriate therapy was the administration of intravenous Vancomycin. The court had not seen the document containing Dr Brown's statement but clearly in this case MRSA was present and Vancomycin was not used until approximately six weeks after the organism had been identified.

 

[241] It was submitted that Mr Dennyson accepted that an infection left untreated can become more firmly entrenched and that the prospect of bone healing may be less in the presence of infection. Professor Court-Brown's opinion was supported by the two text books to which he referred to in his evidence, namely Rockwood and Green and McCollister Evarts. Rockwood and Green described as the "bible" of orthopaedic surgery and treated as authoritative by all witnesses, states on page 473 in relation to chronic osteomyelitis that "adequate treatment requires accurate identification and antibiotic coverage of all pathogens". It was submitted that adequate treatment should have taken place by 13 October 1997 and was not attempted until 14 November 1997. Referring again to Rockwood and Green (page 470) Mr Wilson drew attention to the fact that early identification is of utmost importance because early treatment (within 72 hours) drastically reduces the incidence of subsequent chronic osteomyelitis and osseous destruction.

 

[242] It was submitted that the only other possible reason for non-administration of an antibiotic targeted at the MRSA was if the Defender did not consider that it was a case of bone infection. Mr Tiemessen expressed the opinion that this was a case of chronic osteomyelitis from the outset of his care (page 660) and that the development of sepsis was the main reason for the fact that there had been no union of the bones after five months. In contrast, Mr Clowes who previously cared for the Pursuer refused to accept that this was necessarily a case of osteomyelitis during his care. He sought to draw a distinction between bone infection and osteomyelitis (page 417) but accepted that infection together with the appearance of spicules of bone are indicative of infection down to the bone (page 418).

 

[243] It was pointed out that Mr Dennyson accepted that by 13 October 1997 the presence of the bone spicule, the infection and at times increasing exudates from the wound raised the possibility of osteomyelitis but stated that even if there was evidence of osteomyelitis it would not preclude "the prime aim in managing this man and that union can occur in the presence of infection" (page 572-573) .

 

[244] It was submitted therefore that there was sufficient evidence to make the Defender aware of the distinct possibility of bone infection or osteomyelitis but continued with a treatment plan involving attempts to achieve bony union while not treating the MRSA infection. In the circumstances it was submitted that there was no justification for the failure to administer an antibiotic to which the MRSA was sensitive by at least 13 October 1997 and that the delay is likely to have allowed the infection to spread to the extent that it became impossible to treat it by antibiotics alone by the time Vancomycin was administered on 14 November 1997. To that extent the orthopaedic surgeons fell short of the expected standards.

 

[245] No authority was produced by the witnesses for the Defender in the form of text books, reports, studies or other documentation to support the practice of leaving such an infection untreated and that practice was in clear conflict with the Rockwood and Green text that adequate treatment requires accurate identification and antibiotic coverage of all pathogens.

 

[246] As far as the failure to carry out a debridement is concerned Mr Wilson submitted that this related to the treatment by Mr Dennyson from the point in early October 1997 when MRSA infection was found, through treatment by Mr Clowes and ultimately by Mr Tiemessen.

 

[247] It was submitted that Mr Court-Brown's evidence was that if antibiotics were tried and failed to resolve the infection within about one week then a radical debridement of dead and devitalised bone and tissue was the only appropriate method of treatment.

 

[248] The evidence pointed to continuing deterioration of the condition of the Pursuer's leg through September to December 1997, with a worsening infection. Mr Court-Brown's evidence was that the longer the delay the more devitalised bone it is necessary to remove until a point is reached where so much has to be removed that there is no prospect of reconstruction and amputation is necessary. As he put it "you have to remove the whole thing" as "it's a progressive problem" (page 181). At the latest, by 27 October 1997 when the bone spicule appeared the "correct treatment for osteomyelitis" should have been given (page 183). The treatment is by intravenous antibiotics and observation for a period of one week and if the treatment is unsuccessful aggressive operative wound excision to remove all devitalised or dubious soft tissue and bone is required. Thereafter the bony defect can be filled by bone grafting or bone transport (page 183).

 

[249] In support of the opinion of Professor Court-Brown reference was made to Rockwood and Green, page 475 which states "the cornerstone of a successful treatment of chronic osteomyelitis is the complete removal of all involved bone and soft tissue". The same procedure of creating and then filling a dead space is described in McCollister Evarts page 10: 26. By contrast the policy adopted by the Defender's various consultant surgeons was to try to achieve bony union before dealing with the infection. No support for that philosophy was to be found in either of the textbooks and no other literature was produced by the Defender in support the position.

 

[250] Professor Court-Brown indicated (page 195) that he would expect a reasonably competent surgeon in 1997 to be aware of the text books to which he referred and to follow what they say. Mr Tiemessen's evidence was that he intended to carry out a radical debridement later but the simple fact was that he did not do it. None of his predecessors caring for the Pursuer indicated an intention to carry out such an operation but in the absence of such procedure Professor Court-Brown stated that infection would be likely to become more widespread and more difficult to remove. The prospect of saving the leg would reduce as the infection spread and in the event that is what happened.

 

[251] It was acknowledged by Mr Wilson that it would be wrong to use hindsight to judge decisions made by the consultant surgeons who treated the Pursuer but Professor Court-Brown's evidence was that it was always likely that infection would continue to spread and ultimately the leg would be beyond repair. That this was borne out by events is a factor which supports his view and contradicts those of the Defender's consultant surgeons who preferred to leave the infection in place. Their decision to do so is simply not supported by any literature produced.

 

[252] It was submitted that in his Report and in his evidence Mr Espley speculated as to whether an earlier tertiary referral may have resulted in a different outcome ie avoided the amputation. In cross examination he accepted that tertiary referral would have achieved a different result only if it had involved a different form of treatment. the form of treatment he had in mind (a radical debridement type of operation) was precisely what Professor Court-Brown said should have happened (page 786). The Pursuer's criticism is not that a tertiary referral was not made but that appropriate treatment was not instituted to the condition.

 

[253] Reference was made to the fact that although the Borders General Hospital is not a specialist centre for this type of injury, once the surgeons decided to treat the injury they were required to do so by the appropriate means. It was submitted that there is not a lower standard to be applied. As far as the expert evidence of Mr Court-Brown was concerned, Mr Wilson referred to Wilkinson - The Scottish Law of Evidence at p. 65 and the function of the expert witness "to furnish the judge and jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the judge and jury to form their own independent judgment by the application of these criteria to the facts proved in evidence." This dictum came from Lord President Cooper in Davie -v- Edinburgh Corporation 1953 SLT 54 but reference was also made to Lord President Cooper's observations on the expert witness at p. 57. "I do not consider that in the case of expert opinion evidence formal corroboration is required the same way as it is required for proof of an essential fact, however desirable it may be in some cases to be able to rely upon two or more experts rather than upon one. The value of such evidence depends upon the authority, experience and qualifications of the expert and above all upon the extent to which his evidence carries conviction, and not upon the possibility of producing a second person to echo the sentiments of the first, usually by a formal concurrence."

 

It was submitted that the significance of these observations was that Mr Espley's evidence did not make the defence case any stronger. It was submitted that what was significant was the expertise in treatment of septic non-union. Therefore the Defender's evidence had to be weighed against the evidence of Mr Court-Brown for the Pursuer.

 

Septic non-union of the tibia was not often seen in a district general hospital but consultants cannot ask to be judged by a lower standard than that of a specialist in the field. Reference was made to Dugdale & Stanton - Professional Negligence, 3^rd Edition, paragraph 15.10 "Inexperience in a particular form of work is therefore no defence for a person who engages in it." Paragraph 15.11 stated "... the task which the individual undertakes fixes the standard irrespective of his qualifications or job title". Once they elected to treat the injury rather than make a referral elsewhere they could not expect a lower standard to be applied to this hospital as opposed to another. Mr Dennyson (page 542) accepted that aggressive excision was one of a number of therapeutic surgical regimes but could not be said to be the correct treatment but no documentation was produced to show that an alternative treatment was acceptable. He also accepted that Rockwood and Green advocated radical excision and that the section of the book which deals with treatment of osteomyelitis does not suggest an alternative of waiting to allow bony union first in the presence of infection. Further Mr Espley (page 777) thought the alternative would be "well documented" yet no documentation was produced.

 

[254] Referring to a statement in Mr Kinninmonth's report that radical excision is the only appropriate treatment where there is dead bone in the presence of infection he did not disagree, but he thought the Lautenbach philosophy allowed a different method (page 780). However as Professor Court Brown explained the Lautenbach procedure also involved the removal of all dead and infected tissue.

 

[255] On the issue of tertiary referral, Mr Espley accepted it may have produced a different outcome and that it was likely that had there been a referral "something different might have been done" and that this would have been radical excision (pages 783 - 785). Mr Tiemessen also agreed that his method of attempting to achieve bony union first was not the one recommended or advocated by Mr Kinninmonth (page 693) and he agreed that Mr Kinninmonth's view appeared to be that if there was a segment of dead bone and infection it required to be excised radically, but this was not done at Borders General Hospital (page 690).

 

[256] On the question of expert evidence it was pointed out that Mr Kinninmonth was cited as a witness for the Defender but did not give evidence. The only independent witness for the Defender was Mr Espley and his views required to be judged against those of Professor Court-Brown who had greater experience in treating septic non-union, had written on it, had a specialist interest in it and was able to back up his opinions with references to the text books in use at the time. By contrast Mr Espley was at pains to say he was not an expert in the management of septic bone and had little experience of it. He confirmed that he had treated septic fractures "on rare occasions over two decades, but not frequently". He stated that he was "speaking as a non-expert in the management of septic bone but, from my experience, I think that this would have been the way that I would have been taught to handle a problem, to get bony union first of all and then after that to proceed to eliminate the infection" (page 736). It was submitted that Mr Espley disclaimed the level of expertise and experience which would be required of an expert in this context. The court was asked to prefer the opinion of Professor Court-Brown on account of his greater expertise and experience, the fact that his views are supported by literature of high repute and the fact that his opinion as to the likely effect of the Defender's failure to treat the infection was precisely what did materialise.

 

[257] On the matter of the failure of Mr Tiemessen to carry out a radical debridement instead of performing a fibular osteotomy and sequestrectomy Mr Wilson submitted that Professor Court-Brown's criticisms on these operations was that fibular osteotomy should not be used in a case of septic non-union and that the sequestrectomy operation removed only a small part of the dead or devitalised bone and tissue.

 

[258] Mr Wilson accepted that if the court holds that the treatment plan carried out was an acceptable form of treatment then the fibular osteotomy and sequestrectomy were simply part of it. However if the treatment plan was not regarded as acceptable then, while it may have been too late to save the Pursuer's leg at the time Mr Tiemessen took over the care of the Pursuer, by performing these operations the Pursuer was put through two further surgical procedures which were unlikely to be of any benefit to him and as a consequence suffered further injury and damage.

 

[259] It was submitted that Professor Court-Brown's evidence was that there was no documentation supporting the use of fibular osteotomy in a case of septic non-union. This had been his position since he produced his first medical report in November 2002 and that report had been lodged in process since September 2004. Despite this no documentation supporting the use of fibular osteotomy in a case of septic non-union had been produced. The only independent witness produced by the Defender was Mr Espley speaking about the use of a fibular osteotomy to gain compression at the fracture site but indicating his limited experience of dealing with cases of septic non-union. In these circumstances his opinion must be given considerably less weight than the opinion of Professor Court-Brown.

 

[260] It was submitted that for these reasons the carrying out of these two operations in the absence of any prospect of benefit to the patient constituted negligence and should be reflected in the award of damages.

 

[261] On the issue of causation, attention was drawn to the evidence of Professor Court-Brown about the necessity of an operation as soon as it becomes clear that antibiotic treatment by itself is not going to work since the longer you leave the problem the more extensive the problem becomes. Reference was made to a timescale (pages 196 - 199) Professor Court-Brown giving the view that if Vancomycin and/or radical surgical excision had taken place by late October then it is likely the Pursuer would have kept his leg albeit that he would have required a number of operations to reconstruct the tibia. It was pointed out that the Pursuer would have had some stiffness in the ankle, trouble walking over rough ground and similar activities but the fracture would have healed. In cross-examination (pages 214 - 217) he concluded that up to about the beginning of January 1998 it was more likely than not that the leg could have been saved. It was conceded therefore that any failure in treatment by Mr Tiemessen cannot now be said to have cost the Pursuer his leg but the operations performed by him were unnecessary or unlikely to benefit the Pursuer and should be reflected in the award of damages.

 

[262] Mr Tiemessen (page 662) considered that the main reason for non-union after five months was the development of sepsis, that there was a risk thereafter that sepsis would continue to prevent union (page 663) and that the infection would continue to spread (page 664).

 

[263] It was submitted therefore that it would follow that the failures in treatment between October 1997 and January 1998 resulted in an amputation as opposed to the considerably less drastic outcome described by Professor Court-Brown. The award of solatium should therefore be on that basis.

 

[264] On the matter of the measure of damages Mr Wilson referred to a Schedule of Damages lodged in process. It consisted of claims for solatium, interest, services received from Mrs McColm and a loss of personal services which the Pursuer is no longer able to render his family, together with interest.

 

[265] There was no claim for loss of wages, the reason being that the Pursuer was and remained engaged in a farming business run as a family concern. Although there was a period when he was unable to work his wife had covered for him both then and also in taking over a greater share of the heavier farming duties. The Pursuer had restricted his involvement to lighter duties and playing a greater part in running the household as opposed to the business.

 

[266] Mr Wilson submitted that this was typical of the positive attitude of the Pursuer towards every aspect of the difficulties he had faced and was a credit to him. He had tended to play down rather than to emphasise the degree of pain and disruption to his life which he had suffered but nevertheless he has had very severe pain, continues to suffer recurrent painful pressure sores sometimes having to avoid wearing his artificial limb and he had also suffered phantom pains. He was now unable to carry heavy weights and to run. Previously he played rugby for Selkirk Rugby Club. He has avoided the social side of the rugby club since the amputation and has lost the supporting and social benefits which he previously enjoyed. He has had to come to terms with the amputation and attendant difficulties such as his children's embarrassment when they go swimming with him. He had required many hospital attendances and spells of in-patient treatment and a number of operative procedures.

 

[267] In light of this it was submitted that a comparable case was Ryan -v- Trans Manche Link reported at 13-003 Volume 4, Kemp and Kemp. In that case a 37 year old male suffered fractures of the left tibia and fibula, underwent grafting and external fixation, fourteen months of intense pain and extensive treatment and then below knee amputation. Damages of £50,000 were awarded on 19 July 1994 which, uplifted to March 2006, equated to £77,220. The current table (Vol 4 para 1-001) gave a value in October 2006 of £79,360.

 

[268] By way of comparison attention was drawn to the Judicial Studies Board Guidelines at page 059-(iv) Volume 4, Kemp and Kemp which indicated a below knee amputation figure of £77,080 at the top of the scale and £53,460 at the bottom of the scale. The top of the scale was indicated for traumatic amputation and devastating accidents, or cases where attempts to save the leg have led to numerous unsuccessful operations so that the amputation occurs years after the event. It was accepted that in this case the amputation itself was not quite that traumatic and that the number of operations over a period of one year were less, but in light of the authorities £70,000 at today's values was considered fair. It was submitted that such a figure was consistent with the amount in Scott -v- Kelvin Concrete Limited 1993 SLT 935 where an award of £42,500 was made in November 1992 with interest on two thirds of this to past at 7.5%.

 

[269] Explaining his calculation Mr Wilson indicated that in common with reported cases he attributed two thirds of the interest to the past at 4% (half the judicial rate) from 3 October 1997 to 17 November2006, giving a sum of £17,030.26. Reference was made to Robson -v- Glasgow City Council 2003 SLT 788 in respect of the rate of interest.

 

[270] With reference to the services rendered by Mrs McColm these were very considerable and continue. It was submitted that awards of £5,000 - £10,000 are not uncommon and in this case the award should be at the top end of the scale. Mrs McColm had to reorganise her home and family life, to undertake greater duties in the family farming business, attend hospital many times either with Mr McColm or to visit him, and to assist him with everyday tasks both in the immediate aftermath of the amputation and on an ongoing basis. In the circumstances £10,000 was a fair sum in terms of s. 8 of the Administration of Justice Act 1982. In addition interest was set at £2,432.63 to November 2006, two thirds interest being attributed to the past.

 

[271] It was submitted that the loss of personal services to be expected by the Pursuer was again considerable. There were many things he formerly did with his wife and children which he is now unable to do. In particular, there was his ability to play with the children and by that means to engage with them has been compromised. £5,000 was regarded as a reasonable sum for that aspect of damages in terms of s. 9 of the Administration of Justice Act 1982. It was stated that the sums sought under s. 8 and s. 9 of the 1982 Act were in line with awards of £2,000 under each head in Scott -v- Kelvin Concrete Limited 1993 SLT 935. Interest on two thirds of the figure was attributed to the past.

 

[272] The total sought when the damages were estimated in November 2006, at commencement of the Proof, was therefore £105,679.21. Interest on the sums at 4% to 30 May 2007 was calculated at £1,204.74. Lastly interest would be due from date of decree until payment.

 

Defender

 

[273] Counsel for the Defender identified the Pursuer's averments on fault and causation and confirmed the tests for negligence previously summarised on behalf of the Pursuer. As far as causation is concerned Counsel submitted that to succeed the Pursuer required to establish that the doctors under attack caused him the injury complained of. In addition he required to establish a causal connection between their alleged negligent acts and omissions and the injury. On the usual balance of probabilities test no damages were recoverable for a reduction in prospect of a favourable outcome. Reference in this connection was made to Gregg -v- Scott 2005 4 ALL E R [HL] 810.

 

[274] On the matter of expert evidence Counsel submitted that this required to be tested by reference to the criteria set out in Bolitho -v- City and Hackney Health Authority 1998 AC 232. Where there are competing bodies of opinion in relation to matters of medical or surgical practice it is not for the court to prefer one to the other. It was submitted that this is the logical result of the second leg of the test for medical negligence as set out in Hunter -v- Hanley. The law could be summarised by reference to the opinion of Lord Hodge in Honisz -v- Lothian Health Board previously referred to.

 

[275] As far as general credibility and reliability was concerned Counsel submitted that all the witnesses so far as they were speaking to matters of fact were broadly credible and were doing their best to be truthful. As far as the Pursuer was concerned it was recognised that initially he was sometimes confused as to the precise chronology of events during the course of his treatment which was understandable given the passage of time before he gave evidence. If there was any conflict between the Pursuer's own evidence and hospital records then the records should be preferred although the Pursuer was trying his best to give an account of the facts as he saw them.

 

[276] On the question of expertise the only expert evidence led by the Pursuer pertaining to the merits was that of Professor Court-Brown who was also a witness to facts in that he took over the Pursuer's care in May 1998. To that extent it was submitted that he was not entirely independent although it did not disqualify him from giving expert evidence on matters of medical opinion. It was pointed out however that he had a position to defend.

 

[277] Mr Dennyson, Mr Clowes and Mr Tiemessen, although witnesses of fact, also gave expert opinion in relation to the Pursuer's treatment including the treatment each of them gave and the treatment given by Mr Driver-Jowitt. Accepting that, like Professor Court-Brown, these witnesses had varying interests in the outcome of the case and were therefore not entirely independent, their expert views were relevant. Mr Espley, of course, the independent witness called by the Defender had no involvement in the Pursuer's care.

 

[278] Dealing firstly with the evidence of Professor Court-Brown it was pointed out by Counsel that it was somewhat odd that in the Pursuer's presentation of the case (a) the doctors under attack were not called as witnesses for the Pursuer, (b) Professor Court-Brown had no opportunity to hear their evidence before he gave his evidence and (c) he was not present during the Pursuer's evidence. Accordingly, Professor Court-Brown's opinions were expressed on the basis of his interpretation of entries in the medical records and such productions as he had seen. Counsel submitted that the normal practice was for an expert to give his opinion evidence based upon the evidence heard by the court and not upon his interpretation of the medical records and productions coupled with his suppositions as to what decisions were taken and why.

 

[279] It was pointed out that Professor Court-Brown had never worked in a district general hospital (page 245). He was not able at first hand to say what treatment modalities may in practice be adopted in a district general hospital. It was submitted that he is in this context a "superspecialist" and even in this capacity he sees only two or three cases of septic non-union of the tibia per annum (page 244).

 

[280] It was submitted that there was evidence suggesting Professor Court-Brown had been less than careful in his consideration of the case. For example, from his reports dated 10 November2002 and 4 September 2003 he indicated that on 13 October 1997 Mr Dennyson had sought to treat the Pursuer's MRSA with Ciprofloxacin and that Mr Dennyson had admitted the Pursuer to hospital in November 1997 for treatment of Vancomycin. A careful reading of the medical records would have avoided these factual errors.

 

[281] It was submitted by Counsel that Professor Court-Brown did not in evidence say that on 13 October 1997 Mr Dennyson had a duty to proceed to aggressive surgical intervention, despite saying so at page 1 of his produced report of 4 September 2003 and despite this being part of the Pursuer's written case.

 

[282] The Pursuer's pleadings contain averments at pages 11 - 12 of the Record as to differential outcomes that must have derived from a medical source and which appear contrary to the evidence given by Mr Court-Brown on this issue (page 199). The averments are also contrary to his evidence that if Mr Tiemessen was negligent then that negligence had not caused the Pursuer's leg to be lost.

 

[283] Counsel expressed the view that Professor Court-Brown was rigid and inflexible in his opinions. Mr Clowes in evidence said that he was "known to hold strong opinions on many subjects" (page 393). Mr Clowes was not challenged on this in cross examination. This view of Professor Court-Brown is consistent with the manner in which he gave his evidence. He misunderstood his role as an expert. When possible alternative professional opinions were put to him and he was asked whether these opinions could be reasonably held by others, his response was "well my understanding is it is the purpose of the court to decide who is correct" (page 235).

 

[284] It was submitted that at each stage of his criticisms of the Defender's surgeons Professor Court-Brown was dogmatic in his views. At times he may have been analysing what surgeons did with the advantage of hindsight rather than prospectively on the basis of what the surgeon could or should have known at the time. It was submitted that it was notable that he was prepared to express such strong views without having had the advantage of hearing the explanations of the surgeons in their evidence.

 

[285] As far as Mr Dennyson was concerned Professor Court-Brown in his criticism had assumed that Mr Dennyson was treating the MRSA infection with Ciprofloxacin. It is not clear why. His position was extreme. His view was that since MRSA had been cultured from a swab meant that there must be admission for treatment with Vancomycin. This in his evidence was the only criticism of Mr Dennyson.

 

[286] As far as the criticisms of Mr Driver-Jowitt are concerned these depended upon Professor Court-Brown's assumptions based upon interpretation of Mr Driver-Jowitt's entries in the medical notes. It appeared that Mr Court-Brown had not looked at the x-rays to see whether his opinion might or might not have radiological support. His position depended upon acceptance that the spicules of bone referred to could only have been caused by bone infection and that this must have been apparent to Mr Driver-Jowitt. Mr Court-Brown disregarded the fact that from the recorded findings Mr Driver-Jowitt must have seen the spicule and must have looked at the Pursuer's x-rays before recording in the clinical records and in the letter to the GP that in his professional judgement the spicules were not significant. It was submitted that Professor Court-Brown travestied Mr Driver-Jowitt's position by saying that the spicules had been "ignored". It was submitted that Professor Court-Brown's views appeared, at best, to be influenced by hindsight.

 

[287] As far as the treatment of Mr Tiemessen from January to April 1998 was concerned Counsel indicated that Professor Court-Brown was dismissive of the Lautenbach approach to treating septic non-union referring to it as "old fashioned" yet there was evidence that this approach had been used successfully in South Africa. The criticism of the fibular osteotomy was part and parcel of his wider view that there requires to be initial aggressive operative debridement. The point came ultimately to be that he saw hypothetically some sense in doing the operation but did not think in the circumstances it would work (page 263 - 264). It was submitted that Professor Court-Brown's criticism of the sequestrectomy was effectively that it was not the radical procedure which he advocated and therefore did not go far enough (page 266 - 267).

 

[288] As far as the involvement of Mr Dennyson was concerned he had no involvement with Pursuer's care after 14 October 1997 and therefore cannot be held to have been negligent in respect of any treatment subsequent to that date.

 

[289] Counsel emphasised that Mr Dennyson was not seeking to treat osteomyelitis on 13 October 1997. He was treating a patient who had an ulcer following from what was thought to have been a plaster blister and who appeared on his current drugs regime to be getting better. He believed he was treating a soft tissue infection (page 537) associated with the site of the former blister. He did not believe that there was bony infection (page 545). If he had thought there was osteomyelitis he would have recorded this in the Pursuer's records (page 545 - 546). He did not consider there was non-union but that the fracture was showing signs of progressing to union (page 547 - 548).

 

[290] Mr Dennyson was aware that MRSA was present in the site and knew that the antibiotics the Pursuer was on would probably be ineffective against it. His plan, made clear in the clinical notes and in his letter to the GP was to try to avoid hospital admission for intravenous Vancomycin unless the wound deteriorated. He has defended the decision as a reasonable one to take at the time he made it. The hospital microbiologist, Dr Brown, was consulted in connection with the decision and agreed with it.

 

[291] Counsel also emphasised that Mr Dennyson was supportive of the reasonableness of Mr Driver-Jowitt's professional judgement on 27 October 1997.

 

[292] Referring to the evidence of Mr Clowes, Counsel indicated that he was supportive of Mr Dennyson's actions on 13 October, he was supportive of Mr Driver-Jowitt's actions on 27 October and also supportive of the actions of Mr Tiemessen in 1998. He indicated that he and a consultant colleague, Mr Phillips, had agreed with Mr Tiemessen that there should be a fibular osteotomy to aid compression at the fracture site.

 

[293] Referring to the evidence of Mr Tiemessen, attention was drawn to the fact that he had more experience of treating infected fractures than any of the other witnesses including Professor Court-Brown. He had stated in evidence that in South Africa he had seen 20 - 25 cases of septic tibias each year, ten times the number seen by Professor Court-Brown.

 

[294] Mr Tiemessen explained and defended his fibular osteotomy surgery (page 605 - 606) and also explained and defended his sequestrectomy (page 622).

 

[295] Mr Espley was until 2005 a consultant at Perth Royal Infirmary, a district general hospital broadly similar in its catchment area to Borders General Hospital. Now retired he continued to undertake locum consultant work. It was pointed out that he was present during the factual evidence of Mr Clowes, Mr Dennyson and Mr Tiemessen.

 

[296] Mr Espley explained and defended Mr Dennyson's action and clinical judgement in relation to the Pursuer's treatment as within the range of acceptable professional practice.

 

[297] Mr Espley also explained and defended Mr Driver-Jowitt's action as within the range of acceptable professional practice.

 

[298] Mr Espley also explaining and defended Mr Tiemessen's actions as within the range of acceptable professional practice.

 

[299] On the issue of fault Counsel pointed out that there had been no attempt by the Pursuer to amend his pleadings to make a case against Mr Clowes in respect of his treatment of the Pursuer in November 1997. The evidence of Mr Espley was taken on the basis that there was no case on Record for the Defender to answer in respect of the period of Mr Clowes' treatment.

 

[300] On the basis of the evidence the Pursuer's case comes to be (a) against Mr Dennyson in respect of his actions on 13 October 1997, (b) against Mr Driver-Jowitt in respect of his actions on 27 October 1997 and (c) against Mr Tiemessen in respect of specific alleged failures in January and March 1998. The Defender's witnesses were consistent in their view that in respect of each part of the Pursuer's treatment attacked, the treatment was within the range of acceptable responses to the Pursuer's condition as it was then known to be.

 

[301] It was submitted that their views are different from those of Professor Court-Brown but the role of the court was not decide which view is in some sense right or wrong. The court cannot decide in a positive sense what is or is not appropriate treatment. The correct approach in this situation was that set out in the Bolitho and Honisz cases referred to earlier.

 

[302] Counsel submitted that irrespective of the view taken on Professor Court-Brown's opinions could the contrary views as to what was acceptable surgical practice advanced by the Defender's experts be rejected? It was submitted that the starting point should be an acceptance that the opinions expressed by the Defender's experts were honest expressions of their opinion. Counsel submitted that the contrary was not suggested to them. If this is accepted then they constitute a body of honest professional opinion contrary to Professor Court-Brown's opinion. They each claimed others would also agree with them. As a consequence there are then two opposing "schools of thought" as to the appropriateness of the practices being criticised. It was not however the function of the court to prefer one to the other. Exceptionally the court may conclude that the views of one school do not stand up to rational analysis, in effect that the body of professional opinion they constitute is not reasonable or is not responsible. It was submitted that there was no basis upon which to take this exceptional course in this case. The Pursuer did not show any of the views expressed by the Defender's witnesses to be irrational, unreasonable or irresponsible. If the Defender's witnesses have applied their minds to the comparative risks and benefits of the courses of action attacked and have reached a defensible conclusion that each was acceptable, then the court has no basis for rejecting their evidence in concluding that the Pursuer has proved Hunter -v- Hanley negligence.

 

[303] On the matter of causation the Pursuer had another difficulty. According to Professor Court-Brown if the Pursuer had been treated by the means advocated by him after November 1997 then the outcome would have been the same as it actually was. The Pursuer would still have lost his leg (pages 197, 199, 212, 214 - 216 and 265). Accordingly on this view even if Mr Tiemessen was held to have been negligent between 20 January and April 1998, his negligence did not cause the Pursuer to lose his leg. It is possible that there might still be some loss arising from prolonged treatment, pain during a more extended period prior to amputation and the two surgical operations performed by Mr Tiemessen. However on the evidence it is only the last two operations that can be said to have been caused by delay in radical debridement. It was unknown what the timing of events would have been and how soon after failure of the Court-Brown treatment the amputation would have taken place.

 

[304] It was submitted by Counsel that on Professor Court-Brown's approach to causation it is only if Mr Dennyson and Mr Driver-Jowitt were negligent in October 1997 that the Pursuer's leg would have been lost. It is only in that event that the Pursuer would have proved his "full loss". Mr Espley's view was that, looking at matters retrospectively, it was unlikely that treatment even in October would have saved the leg (page 752). Mr Tiemessen's view was that his treatment plan would have eventually been successful and that the loss of the Pursuer's leg would have been avoided.

 

[305] On the question of loss to the Pursuer Counsel for the Defender put forward two scenarios. In the first place if Mr Dennyson and/or Mr Driver-Jowitt are found to have been negligent in October 1997 and to have caused the loss of the Pursuer's leg, the Pursuer had two heads of claim, solatium and services. It was recognised that no patrimonial loss claim was being advanced.

 

[306] In respect of the solatium claim, Counsel referred to the Judicial Studies Board Guidelines for below the knee amputation of one leg. The figure at the top of the scale was £77,080, the figure at the bottom of the scale was £52,950. Referring to Kemp and Kemp, a straightforward case of below knee amputation with no complications would justify an award at the bottom of the scale. At or towards the top of the range would come the traumatic amputation which occurs in a devastating accident where the injured person remained fully conscious or cases where attempts to save the leg led to numerous unsuccessful operations so that amputation occurred years after the event.

 

[307] Reference was made to a number of cases including Scott -v- Kelvin Concrete Ltd 1993 SLT 935, Will -v- Charles Will Ltd 1980 SLT (notes) 37, Cook -v- NCB 1978 SLT (notes) 19.

 

[308] As far as interest was concerned it was submitted that one half of any award should be apportioned to the past and interest thereon allowed one half of the prevailing judicial interest rates from the date the court holds that loss started to be incurred. The judicial interest rate throughout the period has been 8%.

 

[309] As far as services are concerned it was submitted that the evidence about the personal services rendered to the Pursuer was scanty. However an award would be justified. It was accepted that to reflect the uncertainties a lump sum should be awarded. Counsel indicated that an award of £10,000 in terms of s. 8 of the Administration of Justice Act 1982 could not be disputed with two third interest being attributed to the past. Counsel confirmed the Defender could not take issue with an award of £5,000 in terms of s.9 of the 1982 Act.

 

[310] As far as the second scenario was concerned if it was held that only Mr Tiemessen was negligent, in January or March 1998 causing only some unnecessary prolongation in the Pursuer's treatment but not the loss of his leg a notional figure of say £2,000 might be appropriate.

 

DECISION

 

Legal Issues

 

[311] Mr Wilson for the Pursuer and Mr Stephenson for the Defender referred me to a number of cases in relation to the test for negligence. These included Hunter -v- Hanley 1955 SC 200; Scott -v- Lothian University Hospitals NHS Trust [2006] CSOH 92; Honisz -v- Lothian Health Board [2006] CSOH 24; Hucks -v- Cole [1993] 4MEDLR 393; Maynard -v- West Midlands Regional Health Authority [1984] 1WLR 634; Sidaway -v- Governors of Bethlem Royal Hospital [1985] AC 871; Bolitho -v- City and Hackney Health Authority [1998] AC232 and Gregg -v- Scott [2005] 4 All ER [HL] 810. It was a matter of agreement that the principal test was as 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 has been guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care. It was also a matter of agreement that as also stated by Lord President Clyde to establish liability where a Pursuer alleges deviation from normal medical practice he must prove (a) that there was a usual and normal practice, (b) that the doctor has not adopted that practice and (c) 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.

 

[312] In this action the Pursuer alleges that three consultants responsible at different times for his care were the negligent parties. Accordingly the relevant medical standard is the standard of the consultant orthopaedic surgeon of ordinary skill as pointed out by Counsel as being part of the Hanley -v- Hunter test. This position has been confirmed in two of the cases referred to, namely Maynard -v- West Midland Regional Health Authority by Lord Scarman at page 638 and by Lord Diplock in Sidaway -v- Governors of Bethlem Royal Hospital at page 892. Although the standard of care was not in dispute reference was made on behalf of the Pursuer to the fact that although Borders General Hospital was not a specialist centre for this type of injury, once the consultant surgeons decided to treat the injury they were required to do so by the appropriate means. Effectively it was submitted that a lower standard could not be applied to consultant orthopaedic surgeons at Borders General Hospital as opposed to another. Once the respective surgeons decided to treat the Pursuer's injury rather than make a referral elsewhere they could not expect a lower standard to be applied. It is my view that this is the correct approach. The standard of reasonable care is fixed according to the task which is being performed.

 

[313] In this action there was conflicting medical evidence as to the appropriate treatment to be given for a septic non-union of the tibia. It is now well established that the function of the court is not to prefer one school of thought as to the appropriate practice over another. In this connection I can do no better than cite what was said by Lord Hodge in the recent case of Honisz -v- Lothian Health Board and Others: "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 opinions 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 a 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 held 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 Hunter -v- Hanley...As Lord Browne-Wilkinson said in Bolitho (page 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'.

 

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 the 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 training had instructed him to avoid. As, in the court's judgement, 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."

 

Whether the Pursuer has established negligence

 

[314] I accept and prefer the evidence of Mr Court-Brown in respect of the first averment of negligence on the part of Mr Dennyson in failing to treat the MRSA infection. I say so despite the criticisms made by Counsel as to the circumstances under which the evidence was given and aware of the danger that Mr Court-Brown's views might be bolstered by hindsight. It might have been preferable for Mr Court-Brown to have heard all the evidence of the consultant surgeons called by the Defender before giving his evidence based on medical records and reports but the consultant surgeons also gave evidence referring to the same medical records and reports.

 

Mr Court-Brown's evidence in summary was that infection had developed in the fracture site by 5 September 1997. There was also a fracture blister on the front of the Pursuer's leg. By 3 October 1997 there was MRSA in the wound, a second bacteria. This required to be treated by the administration of intravenous Vancomycin. This was standard medical practice. Delay in administration would make the infection worse. Although the clinical picture appeared to be one of improvement, the patient should still be given Vancomycin treatment. It is necessary to treat the patient according to what you find. The Pursuer was receiving Ciprofloxacin but there was no evidence that MRSA was sensitive to it. It is averred that Mr Dennyson treated the MRSA infection by the administration of the antibiotic Ciprofloxacin and that the treatment was ineffective. It transpired in evidence that Mr Dennyson did not deliberately administer Ciprofloxacin to attack the organism.

 

Mr Dennyson stated that there was clearly evidence of infection on 5 September 1997. The swab taken on 3 October revealing MRSA infection demonstrated "a worsening picture". By 13 October, when he saw the Pursuer, the wound seemed to be improving and there was no definite evidence of infection of major concern. Mr Dennyson did not arrange to administer any antibiotic to attack the MRSA infection but continued with the antibiotic Ciprofloxacin. Since MRSA is of low virulence and intravenous Vancomycin treatment is "high risk antibiotic therapy" he decided not to admit the patient for this antibiotic treatment but to continue weight bearing. Mr Dennyson indicated he would see the Pursuer in six weeks' time but made the proviso that if the position of the Pursuer deteriorated he would be brought in for intravenous antibiotic treatment. The Pursuer was given a provisional appointment for two weeks' time. Mr Dennyson, due to illness, did not see the Pursuer again.

 

The clinical judgment and decision of Mr Dennyson not to admit the Pursuer was supported by Mr Clowes whose evidence was that it was not automatic to give Vancomycin for MRSA. It may not require to be treated causing no great harm. His view was that if the fracture appears to be healing you do not disturb the treatment being given. Mr Espley's opinion was that Mr Dennyson's decision on 13 October 1997 was an acceptable way to proceed if the wound was not deteriorating. There was no compelling reason to treat the patient with Vancomycin on 13 October 1997. It is only necessary to target MRSA if the clinical situation is deteriorating. However Mr Espley did confirm that the risk to the Pursuer is greater if no antibiotic is given and the intramedullary nail is still in place.

 

I do not consider that Mr Dennyson's position can be sustained on a rational analysis adopting a prospective view. The Defender has proceeded on the basis that there is a school of thought that bony union should be obtained and then infection eradicated. It must be concluded that reference by the Defender to infection must be to controlled infection in circumstances where Mr Clowes felt obliged and made the decision to eventually admit the Pursuer for intravenous Vancomycin treatment on 13 November 1997 to attack the MRSA infection. This decision in my opinion illustrates the normal practice. On 13 October 1997 Mr Dennyson was "understandably concerned about the bacteriology" MRSA having been cultured on 6 October from a swab taken on 3 October 1997. He confirmed he had seen a letter from Dr Wilson dated 10 October 1997 referring to a small spike of bone in the Pursuer's leg but there was no mention of this in the medical notes of 13 October although Mr Dennyson indicated that if he had seen a spike of bone he would have noted it. He accepted that no tests were carried out to find out if the MRSA infection was sensitive to Ciprofloxacin but it was important to find out. He considered the option of administering an antibiotic to which MRSA was sensitive but rejected it. He accepted the view of Mr Court-Brown that osteomyelitis may be present requiring treatment. He deferred any future decision on treatment for six weeks with a 'fallback' position for the Pursuer to attend in two weeks' time if his condition deteriorated. Mr Dennyson stalled on a decision to admit the Pursuer waiting for a sign of worsening infection. There was a risk of spreading infection.

 

The bacteriology that existed on 13 October 1997 was ringing an alarm bell for Mr Dennyson. This is illustrated by his reference to 'the nightmare scenario of MRSA infection' and his reservation about the Pursuer waiting for six weeks to see him again in the form of a provisional appointment in fourteen days' time if his condition deteriorated. Mr Dennyson continued the patient on Ciprofloxacin but not for specifically treating the MRSA organism. Indeed, he did not treat the MRSA infection and did not verify if the infection was sensitive to Ciprofloxacin and was of any effect. As fellow consultant Mr Clowes said it was slightly contradictory that the Pursuer was being kept on an antibiotic unlikely to be doing him any good.

 

I accept Mr Court-Brown's evidence that intravenous Vancomycin treatment is the standard medical practice for MRSA infection in a tibial fracture but the court has to scrutinise the medical evidence to decide whether the decision of Mr Dennyson not to admit the Pursuer for intravenous antibiotic treatment on 13 October was a reasonable one to make at the time. The decision is unreasonable if it exposes the patient to an unjustifiable or unnecessary risk of harm. The justification for Mr Dennyson was that he preferred to see the Pursuer weight bearing rather than being admitted to hospital for high risk antibiotic therapy. I do not consider that, at the time, this decision was justified in the knowledge that when it was made the Pursuer had a fracture blister, had developed a second bacteria, namely MRSA, a spicule of bone had reportedly been seen by Dr Wilson and also that Mr Dennyson accepted that osteomyelitis may be present requiring treatment. The fact that Mr Clowes and Mr Espley agreed with the course of action pursued by Mr Dennyson is not conclusive evidence of its prudence where the practice adopted involved a risk that was foreseeable and could be readily avoided. This precise point was discussed in Bolitho -v- City & Hackney Health Authority, supra. The overall clinical situation was one of deterioration. Risk of harm which was foreseeable could have been avoided by admission of the Pursuer for intravenous antibiotic treatment.

 

The fault on the part of Mr Dennyson lay only in the failure to admit the Pursuer for antibiotic treatment to attack the infection. There is a great deal of sympathy for Mr Dennyson who was about to depart for six weeks when a decision was made. Even if the Pursuer had been admitted, Mr Dennyson would not have been available to monitor the situation and determine any future treatment for the Pursuer including possible debridement.

 

[315] The second averment of negligence is the failure of Mr Driver-Jowitt to carry out a debridement after he examined the Pursuer on 27 October 1997. It is averred that it was negligent of the locum consultant surgeon not to remove fragments of bone and to leave them to extrude to the surface.

 

No evidence was deduced from Mr Driver-Jowitt to assist the court. The Defender's evidence came from the observations of the consultant surgeons Mr Clowes, Mr Dennyson, Mr Tiemessen and Mr Espley based largely on the medical records. Mr Clowes' evidence, in summary, was that it was uncommon to see small pieces of bone in a wound. His view was that it was a sign of deep infection within the limb and that the body is trying to get rid of dead and foreign material. Fragments would come out in the presence of infection but do not come out in the absence of infection. He accepted that spicules of bone seen on 27 October 1997 raised questions about 'significant deep infection' but did not believe that radical debridement was then appropriate to the Pursuer. He did not accept that infection, an ulcer and spicules of bone meant it was likely the Pursuer had osteomyelitis. His view was that a patient can have infection involving bone which is not osteomyelitis. He did not accept that spicules of bone at that stage were a sign of dead bone. Mr Clowes confirmed that in his time as a consultant orthopaedic surgeon he had never previously dealt with septic non-union of the tibia.

 

Mr Dennyson agreed that it was not common for small pieces of bone to work their way out but, contradicting the evidence of Mr Clowes, accepted that small pieces of bone extruding could be evidence of osteomyelitis. Debridement was not an option whilst the Pursuer was in his care but Mr Dennyson indicated that such surgery was one of a number of surgical regimes available. It could not be said that debridement was "the correct treatment". The witness knew of no reference book advocating bony union with infection rather than radical excision of all devitalised bone and soft tissue.

 

Mr Tiemessen accepted that debridement was standard practice but the timing of it and the method of doing it were both factors. If, however, the infection was out of control it would be necessary to change procedure. He accepted that, by reference to Rockwood and Green, early treatment of osteomyelitis drastically reduces the incidence of subsequent chronic osteomyelitis and osseous destruction.

 

Mr Espley, having examined the medical notes, stated that Mr Driver-Jowitt relied on the word of the Pursuer in relation to the state of the wound when he met the Pursuer on 27 October 1997. Further, there was no reference in the medical note of 27 October to pus or exudates from the wound although Mr Driver-Jowitt had noted that the ulcer was the result of a traumatic injury incurred at the time of the accident. Mr Espley was of the view that it was reasonable for Mr Driver-Jowitt to assume that the fragments of bone were innocuous and would extrude. Contrary to the evidence of Mr Clowes and Mr Dennyson, Mr Espley indicated it was unlikely that the fragments disclosed infection at that stage. Again, at odds with the evidence of Mr Dennyson, the witness' view was that a spicule of bone was not evidence of osteomyelitis. It was accepted by Mr Espley that more aggressive treatment may have salvaged the situation for the Pursuer.

 

I accept and prefer the evidence of Mr Court-Brown relating to the clinical situation as at 27 October 1997. The spicules of bone seen by Mr Driver-Jowitt were fragments killed by infection which had come adrift and were being extruded from the wound. The spicules were a sign of significant osteomyelitis in the area. If the fragments had been the result of the initial injury sustained by the Pursuer there would not have been a subsequent open wound and the fragments would not have come to the surface. Mr Court-Brown's assessment ties in, on analysis, with the evidence of Mr Clowes of significant deep infection and the view of Mr Dennyson of the presence of osteomyelitis. Mr Driver-Jowitt proceeded on the basis that the spicules were not an "aggravating matter". He also assessed the condition of the wound on an observation made to him by the Pursuer. Whatever observation the layman Pursuer did make it would not have been that the wound was "constricting progressively". Mr Driver-Jowitt must have been aware from records that the Pursuer was given the appointment for 27 October if his condition deteriorated but the locum consultant orthopaedic surgeon took no action, prescribed no antibiotic and simply referred the Pursuer back to Mr Dennyson to be seen on his return from holiday. There was sufficient evidence on 27 October to make the consultant aware of the distinct possibility of osteomyelitis. No authority was produced to support the practice of leaving such an infection untreated. The opinion of Mr Court-Brown on the treatment required was backed up by the text books. There was no support in the literature for leaving osteomyelitis of the tibia untreated. Both Rockwood and Green and McCollister Evarts advocate the removal of all devitalised bone and soft tissue as the correct treatment for chronic osteomyelitis. The treatment is intravenous antibiotics and observation followed by aggressive operative wound excision if required. It was the duty of Mr Driver-Jowitt to treat the infection and osteomyelitis on 27 October 1997 but he failed to do so.

 

[316] The third averment of negligence relates to the fibular osteotomy and sequestrectomy operations performed by Mr Tiemessen in January and March 1998. It is claimed by the Pursuer that the fibular osteotomy operation has no part to play in the management of septic non-union of the tibia. The sequestrectomy operation removed only a small piece of dead bone from the Pursuer's leg and a small amount of soft tissue and was insufficient leaving behind infected bone and infected soft tissue.

 

Mr Tiemessen's plan was to establish bony union in the presence of sepsis then deal with the infection. He was of the view that there were two ways of dealing with the problem of the septic non-union, the other being the method advocated by Mr Court-Brown. Mr Tiemessen's evidence was that not many UK trained consultants would have come across the Pursuer's condition. He accepted, however, that the Pursuer had chronic osteomyelitis and a chronic leg infection in January 1998. He also accepted that the fracture was unlikely to heal left as it was when he took over the care of the Pursuer on 20 January 1998. He accepted that treatment by debridement was the standard practice but the way of doing it and the timing of it were both factors. His technique was to indulge in reaming Lautenbach style followed by lavage with an antibiotic solution. He did, however, consider that the infection might be out of control when the Pursuer's pain was so severe. His view, however, was that if he believed the infection was out of control he would have undertaken the Lautenbach procedure at an earlier stage.

 

As far as the fibular osteotomy was concerned Mr Clowes' view was that this was a standard form of getting delayed unions of the tibia to unite. The surgical procedure was designed to gain compression in the two ends of the tibia to encourage union and this was the reason that Mr Tiemessen performed this operation immediately after he took over the care of the Pursuer.

 

As far as the sequestrectomy operation was concerned, this was undertaken by Mr Tiemessen to remove the sequestrum and a small amount of infected soft tissue. He deliberately did not take out all the infected bone and tissue.

 

The position of Mr Court-Brown was that the fibular osteotomy was a pointless procedure in that he knew of no literature to support the use of such surgery in an infected non-union. He was in agreement that it was used for aseptic non-union but the distinction was important. His view was that the operation removed any form of stability at the fracture site. The result was that the Pursuer then had a completely mobile non-union resulting in severe pain. This mobility was evidenced by the fact that on 11 February he again had surgery to de-rotate his right leg to correct the deformity. Mr Court-Brown confirmed from the medical records that the Pursuer's treatment was again reviewed early in March when he was in severe pain, had muscle spasms and pus was draining from his two wounds. By 11 March when the sequestrectomy was carried out, the sequestrum and discharge of pus simply illustrated that the situation was getting worse and the infection was not being dealt with. The sequestrectomy did not remove all the dead bone or contaminated tissue.

 

I accept and prefer the evidence of Mr Court-Brown in relation to the surgical procedures carried out by Mr Tiemessen in January and March 1998. It was clear that on analysis the infection was worsening as the months passed. There was no change in treatment from late November and by mid January 1998 there was copious discharge from the Pursuer's wounds although a recent swab had not shown MRSA organisms. The view of Mr Court-Brown which I accept was that this bacteriology report meant nothing where the swab was taken from the top of the wound which may well be sterile but with pus deep inside where there was infection. His logical evidence was that in medical circles this was well recognised. By 20 January 1998 there were two draining sinuses which were both discharging pus. These sinuses had been present for two or three months but a third bacteria had appeared, namely pseudomonas. My conclusion is that this represented a situation of worsening infection which was not under control. Mr Tiemessen himself expressed concerns about whether the infection was out of control due to the Pursuer's severe pain, the sequestrectomy and the appearance of a third sinus. It is my opinion therefore that Mr Tiemessen carried out fibular osteotomy and a sequestrectomy which were of no benefit to the Pursuer. They were not acceptable forms of treatment at the time. It is my opinion therefore that these two operations carried out without any prospect of benefit to the Pursuer constituted negligence on the part of Mr Tiemessen. His Lautenbach type of procedure might have been preferable but he did not undertake it. Mr Tiemessen failed to deal with the infection.

 

I accept Mr Court-Brown's evidence that the chances of saving the Pursuer's leg were very small after January 1998. At that time the chances were probably below 50%. The significant mistakes which led to the Pursuer's leg being amputated occurred before Mr Tiemessen took over the management of the Pursuer's treatment in the latter part of January 1998. There is sympathy for Mr Tiemessen who took over responsibility for the care of the Pursuer at a time when amputation was already a probability.

 

Over a period of five months from August 1997 to January 1998 the Pursuer was seen by five different consultants, two of them locums. As Dr John Wilson poignantly observed there was a lack of continuity of treatment. There were no averments of fault or negligence on the part of Mr Ofori-Atta or Mr Clowes but I am of the view that the main reason for the Pursuer's eventual predicament lay in the lack of experience in dealing with septic non-union of the tibia which resulted in a delay of some five weeks in providing any antibiotic to attack the MRSA infection and the onset of osteomyelitis. On the balance of probabilities, the Pursuer has proved that, but for the omissions on the part of Mr Dennyson and Mr Driver-Jowitt, he would not have lost his right leg below the knee.

 

CAUSATION

 

[317] The question of causation can be dealt with in fairly short compass. Mr Clowes gave the opinion in simple terms that if the Pursuer had not got infection he would not have lost his leg. Mr Court-Brown was emphatic that the delay to administer the intravenous antibiotic had an effect on the outcome. There was a worsening situation from 3 October 1997. The MRSA infection was recognised on 6 October 1997 but was not treated until 13 November 1997. After this treatment, the Pursuer was released from hospital with a continuing discharge from his wound. Mr Court-Brown emphasised that the longer you delay the appropriate treatment the more extensive the problem becomes. Interestingly, Mr Espley gave the opinion that the risk is greater if no antibiotic is given and the intramedullary nail is still in place. He was also of the view that tertiary referral may have salvaged the situation and prevented amputation. In particular, more aggressive treatment may have salvaged the situation. Mr Tiemessen also recognised that sepsis prevented the union of the Pursuer's tibia. There was a negligent failure to deal with the infection between 13 October 1997 and 20 January 1998 and I am satisfied on the balance of probabilities that there is a link between that negligence and the subsequent below the knee amputation of the Pursuer's leg.

 

QUANTIFICATION OF DAMAGES

 

[318] The Pursuer's agent suggested that a figure of £70,000 at today's values was fair for solatium. Counsel for the Defender on the other hand submitted that, by reference to the Judicial Studies Board guidelines, the figure at the top of the scale was £77,080 and the figure at the bottom of the scale was £52,950. A straightforward case of below knee amputation with no complications would justify an award at the bottom of the scale. In the present case, solatium has to take account not only of the loss of the leg below the knee but the consistent and severe pain and suffering the Pursuer endured over an extensive period of time. Add to this the inconvenience now being experienced by the Pursuer on a day to day basis I am of the view that a figure for solatium of £66,000 is appropriate. As far as interest is concerned and in line with the reported cases two thirds will be attributed to the past at 4% being half the judicial rate from 13 October 1997 which is the date I hold that the loss started to be incurred until 17 November 2006 being the commencement date of the proof. The interest figure amounts to £15,844.82.

 

[319] As far as services are concerned, Counsel for the Defender agreed that an award of £10,000 in terms of s.8 of the Administration of Justice Act 1982 could not be disputed with two thirds interest being attributed to the past. He also indicated that he could not take issue with an award of £5,000 in terms of s. 9 of the 1982 Act. Accordingly attributing two thirds interest to the past in respect of these sums the interest figures are, respectively, £2,402.19 and £1,201.09. The total amounts to £100,448.10 as at 17 November 2006. There falls to be added further interest on the said sum at 4% to 30 May 2007 (194 days). This amounts to £2,135.55. Accordingly the total amount of damages inclusive of interest is £102,583.65. Interest, of course, will run at judicial rate from date of decree until payment.

 

CERTIFICATION

 

[320] The proof in this action was complex and involved a considerable amount of detailed medical evidence. The proof also introduced neat points of law. I have no hesitation in certifying the cause as one suitable for the employment of Counsel. I will also certify Mr Charles Court-Brown and Mr Arthur Espley as expert witnesses. Although Mr Espley admitted he was no expert in the treatment of septic non-union of the tibia, he was present during the time the Defender's witnesses gave factual evidence and gave valuable evidence himself in relation to likely practice in a district general hospital.

 

EXPENSES

 

[321] The expenses of the action will follow success except where previously determined.