The recent judgement by Lord Pentland in the case of George Andrews -v- Greater Glasgow Health Board 2019 COSH 31 has done much to clarify two key issues which are ever present in many a clinical negligence case.
This case involved the sudden death of Mr Andrews’ 77 year old partner, Ms Graham, who died of ischaemic bowel cancer shortly after having been discharged from Glasgow Royal Infirmary. She had consulted Dr Izzath, who was a junior doctor at the Infirmary at the time. He failed to advise Ms Graham that she ought to be admitted to hospital. As it transpired, Ms Graham died shortly after returning home, having been told by Dr Izzath that she was suffering from viral gastroenteritis.
The Health Board argued that Dr Izzath had discharged his duty of care by seeking the advice of his superior, the on-duty consultant. The Defenders suggested that Dr Izzath, being a junior doctor, owed a different and not such a high standard of reasonable care as would have applied to a more senior doctor.
Lord Pentland rejected this contention outright. He concluded that Dr Izzath owed Ms Graham a “stand alone duty of care”, and specifically referred to a previous decision where it had been found that a learner driver must show “the same standard of care as any other driver”. In other words, inexperience is not an effective defence to a professional negligence claim. The fact that Dr Izzath had discussed Ms Graham’s claim with a senior clinician did not exonerate him from his failure to exercise reasonable care.
Lord Pentland also took a very pragmatic approach to the issue of causation, i.e. if Ms Graham had been admitted to hospital after consulting with Dr Izzath, would her outcome have been likely to have been different?
The Defender’s position was that the Pursuer had failed to prove this aspect of the case. Lord Pentland rejected the Defender’s position, saying that the Defenders had taken an approach which was “unrealistically narrow and theoretical”. He added that to expect the Pursuer to be able to be precise about exactly what would have been the outcome, had Ms Graham been treated, would mean that “the Pursuer had to meet an impossibly high standard of proof”. The Judge did not accept that the law of causation in Scotland imposed such an onerous burden on a Pursuer.
Clinical negligence cases can often be very difficult to prove. This case has eased that burden considerably, particularly when it comes to the question of the standard of care of a junior doctor. This case, at one stroke, has clarified that the medical profession is working to the one standard of proof such a standard applying to the most junior through to the most senior doctor.
Further, clarifying the correct approach to be taken when considering causation gives hope to those victims of poor and negligent treatment who cannot necessarily pinpoint exactly what the outcome would have been had they been properly treated.
Lord Pentland’s statement in his judgement that “the legal concept of causation is not based on logic or philosophy but rather on the practical way in which the ordinary man’s mind works in the everyday affairs of life” is one which gives genuine hope to victims of sub standard medical treatment in their quest to establish their claim against those doctors involved in the poor treatment.
If you, or anyone you know has suffered from negligent medical treatment, you can contact our specialist lawyers for advice on 0800 988 8082, or complete our online enquiry form, where one of our team will get back to you as soon as possible.
