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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Murray v. Lanarkshire Acute Hospitals NHS Trust [2003] ScotCS 26 (5 February 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/26.html Cite as: [2003] ScotCS 26

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Murray v. Lanarkshire Acute Hospitals NHS Trust [2003] ScotCS 26 (5 February 2003)

OUTER HOUSE, COURT OF SESSION
A3214/01	OPINION OF LORD WHEATLEY in the cause LISA MURRAY Pursuer; against LANARKSHIRE ACUTE HOSPITALS NHS TRUST Defenders:   ________________

 

 

Pursuer: Wade; Gray Muirhead, W.S.

Defenders: Arthurson; R.F. Macdonald

5 February 2003

1. In this case the pursuer seeks damages for the consequences which she claims followed surgical procedures for the removal of a warty lesion at the right hand corner of her mouth. The procedure which the pursuer was advised to undergo was to have treatment by cryotherapy, which involves the application of liquid nitrogen to freeze the lesion and this subsequently causes it to fall off. The liquid nitrogen is applied by a fine spray from a canister. It is averred by the pursuer that the canister has a trigger mechanism and a nozzle to regulate the force and diversity of the spray, and different nozzle attachments are used depending on the extent of the area to be treated. It is specifically averred that the choice of nozzle, and the regulation of the force and diversity of the spray, is the responsibility of the operating surgeon.
2. The pursuer has described on Record what she says happened during her operation. In the course of the treatment, a Dr Singh applied a small piece of paper to the pursuer's face, isolating the warty lesion through a hole in the centre of the paper. He then placed gauze and tissues over the pursuer's face, and provided her with glasses. He tested the cryotherapy equipment by pointing the canister to the ground and spraying out liquid nitrogen on several occasions. An excessive volume of liquid nitrogen was sprayed from the canister during these tests, having regard to the small facial area that required to be treated. Dr Singh then proceeded with the surgery. He applied the liquid nitrogen onto the pursuer's face while she was lying on the treatment table. He applied the liquid nitrogen at a different angle from that which he had used in the test. He placed the canister close to the pursuer's face. He sprayed liquid nitrogen onto the pursuer's face on three or four occasions. The pursuer felt the spray force her mouth open. Liquid nitrogen was sprayed all over her face and into her mouth. It is averred that the volume of liquid nitrogen, the area to which the nitrogen was applied, and the force with which it was applied, were all far in excess of what was required.
3. In these circumstances the pursuer avers that certain duties of care were incumbent upon the defenders. In Article 4 of the Condescendence, it is said that the defenders had to take reasonable care to devise, maintain and implement a reasonable system of maintenance to prevent the presence of defects in their surgical equipment. In Article 5, the pursuer avers that her loss, injury and damage was caused by the fault and negligence of Dr Singh. In particular it is said to have been his duty to apply liquid nitrogen to the pursuer's face in an appropriate quantity to the affected area alone. It is said that he knew or ought to have known that he was required to apply only a minimal quantity of liquid nitrogen, with minimal force, and only to the small area of the lesion at the right hand corner of the pursuer's mouth. In addition it is said that he could have applied the liquid nitrogen with an orange stick and pledget of cotton wool, given the small size of the lesion. It is also said that he had a duty to carry out a reasonable inspection and testing of the relevant equipment before use.
4. At debate counsel for the defender argued that the case was unsuitable for jury trial and should be sent for enquiry to a proof before answer. Although there is not a particular plea to this effect, and these submissions were not reflected in the Note of Argument which had been lodged in process (and indeed the contents of the Note of the Argument were abandoned at debate), pursuer's counsel elected with some hesitation not to take formal objection to these procedural defects. In support of his case, defenders' counsel referred to the customary authorities in this particular area including Boyle v Glasgow Corporation 1949 S.C. 254, Moore v Alexander Stephen & Sons Ltd 1954 S.C. 331 and O'Malley v Multiplex (UK) Inc. 1997 S.L.T. 362. He also referred to the case of Miller v Lanarkshire Health Board 1993 S.L.T. 453 where Lord Coulsfield decided that delicate medical issues involving considerable conflict of medical opinion should result in the case being taken away from a jury. In a brief and lucid submission, defenders' counsel, while accepting that the general duties of care had been relevantly pled against Dr Singh, argued that the specification of those duties of care was so vague that the matter was unsuitable for jury trial. In particular, he complained that the averments that Dr Singh should have applied liquid nitrogen to the pursuer's face in an appropriate quantity to the affected area alone lacked the descriptive precision necessary to establish such a duty before a jury. He further suggested that the subsequent averment that the doctor should have known that he was required to apply only a minimal quantity of liquid nitrogen was similarly lacking in specification. He also claimed that it was impossible to understand from the pleadings what was meant by the averments that Dr Singh had to select the nozzle size and apply the liquid nitrogen appropriately. There was in particular no indication as to what would be regarded as appropriate in these circumstances by reference to any standard practice referred to in the pleadings. Again, the doctor is said to have failed to carry out a proper inspection and testing of the equipment. Earlier in the pleadings, there was said to have been a failure in the duties of inspection and maintenance on the part of the defenders' pharmacy department. It was unclear what these respective duties consisted in. Further, in Argyle & Clyde Health Board v Strathclyde Regional Council 1998 S.L.T. 381 Lord McCluskey (at page 384) said that to aver a proper maintenance system in a case of this kind, it was necessary to suggest what maintenance would have been effective. This had not been done here. The prejudice to the defenders in the present case is heightened because the defenders would need to object to such inspecific averments or evidence if led before a jury. It was important to remember that the court can not in a jury trial allow evidence to be received subject to questions of competence and relevance. In these circumstances both in the perception of prejudice and the lack of options on the admissibility of evidence, the defenders were seriously disadvantaged should the proceedings be allowed to go to enquiry in their present form.
5. Finally, counsel argued that in terms of the case of Hunter v Hanley 1955 S.C. 200 three things had to be proved, where medical negligence is alleged. Firstly, it had to be shown that there was a usual and normal practice; secondly, it must be proved that the defender has not adopted that practice, and thirdly, it must be established that the cause adopted was one which no professional man of ordinary skill would have adopted if he had been acting with ordinary case. Here there were no averments of what the proper practice should be. In these circumstances there would be difficulties for the pursuer in any enquiry.
6. For the pursuer counsel maintained that the case was essentially suitable for trail by jury and that issues should be allowed. She took no exception to the line of authority referred to by defenders' counsel but indicated that such authorities were of very little value. What had to be assessed in terms of the Court of Session Act 1998, sections 9 and 11 was whether there was any issue special to the instant case which would justify removing the pursuer's right to a jury trial. Pursuers' counsel therefore suggested that although this was a case of medical negligence, it was both essentially simple and straightforward. The question of what was averred as being involved in the duties of care incumbent on the operating surgeon could admit of little, if any, further specification. The terms "appropriate" and "minimal quantities" described exactly what was required of this operational procedure. The relevant amounts were adequately explained by reference to the fact that they could have been applied by an orange stick and a pledget of cotton wool. Fair notice had therefore been given of what is best practice. It was difficult to see how further specification could be advanced. The present case was concerned not with a detailed comparison of sophisticated or complicated medical procedures as in the case of Miller v Lanarkshire Health Board. Indeed here there were no competing averments of practice pled by the defenders. The specification of what size the nozzle should be and how it should be used was similarly self-evident and consisted simply of what was appropriate. That is what the surgeon should have done both in respect of the regulation of the spray and the selection of the nozzle.
7. I find myself in agreement with the submissions of counsel for the pursuer. Section 11 of the Court of Session Act 1988 provides:

"Subject to Section 9(b) of this Act, the following actions of remitted to provision shall be tried by jury -

(a) An action of damages for personal injuries ..."

Section 9 of the Act provides:

The Lord Ordinary may allow a proof -

(a) In any action, other than an action enumerated in Section 11 of this Act, without the consent of both parties and without reporting to and obtaining the leave of the Inner House;

(b) In any action enumerated as aforesaid, of the parties to the action and consent thereto or if special cause is shown."

8. It therefore follows, and is agreed between the parties in the present case, that this action is one enumerated in terms of the foregoing sections. Accordingly, in order to deprive the pursuer's right to a jury trial the defenders have to demonstrate that special cause is shown in terms of Section 9(b) to justify such a course. It was also accepted that the reasons which were said to justify such special cause have to be real, and to be related to the circumstances of the instant case. While there may be theoretical difficulties which can be imagined in any particular case, it would clearly be wrong to exclude the pursuer's right to a jury trial purely on the basis of problems that may or may not arise. The proper test therefore would appear to be whether the duties of care averred by the pursuer can be readily understood by a jury, having regard to all the circumstances of the case.
9. In the present case the circumstances surrounding the treatment which the pursuer received appears on the face of the pleadings to be entirely simple and straightforward. The pursuer was suffering from a lesion which required to be treated by cryotherapy. Clearly in such a straightforward operation there are certain key features; the correct and appropriate amount of liquid nitrogen requires to be used; the liquid nitrogen so used requires to be applied in a careful and appropriate way; and suitable protection should be afforded to the patient. In these circumstances I can see no possible difficulty about the use of words such as "appropriate" or "minimal", which in the context of the treatment as described in the pursuer's pleadings seems to me to be entirely apt. Consequently, I can see no difficulty for a jury in understanding the duties of care said to be incumbent on the defenders as described by the pursuer, which, as pursuer's counsel submitted, are sufficiently supported by relevant facts. I would have thought that the defenders must know perfectly well what is appropriate, and what is the minimal amount in a situation of this kind; indeed, it might even be considered that it is somewhat alarming if the defenders are truly professing ignorance of what these terms might mean in the circumstances. I also agree with the submission by counsel for the pursuer that it is difficult to see what further specification could possibly be advanced. The amount of liquid nitrogen to be used in these circumstances is clearly the minimal appropriate amount that will be effective. I fail to see that that could be a matter that could cause the defenders any difficulties. In all the circumstances it is clear that the defenders have averred what is proper practice in a surgical procedure of this kind and in what respects the defenders' employee, Dr Singh is said to have failed in that practice. Accordingly the case of Syme v Scottish Borders Council 2002 Green's Rep L.R. 122, cited by defenders' counsel at the end of his submission has no bearing on the present case. For all of these reasons I have no hesitation in repelling the preliminary pleas for the defenders and approving issues.