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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Patterson v. Lanarkshire Acute Hospitals NHS Trust [2004] ScotCS 4 (08 January 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/4.html Cite as: [2004] ScotCS 4, 2004 SCLR 1062 |
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD McCLUSKEY in the cause RUSSELL PATTERSON (A.P.) Pursuer; against LANARKSHIRE ACUTE HOSPITALS NHS TRUST Defenders: ________________ |
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Pursuer: Mitchell, Q.C., Doherty; Macbeth Currie & Co
Defenders: J.R. Campbell, Q.C., Arthurson, RF Macdonald
8 January 2004
Introduction
[1] On Monday 9 February 1998, at about 9am, the pursuer collapsed in the street shortly after being driven by one of his pupils, a learner driver, to a driving licence test centre in Rutherglen. He had got out of the car and taken a few steps when he suddenly lost control of his legs and of much of the lower part of his body. His collapse was caused by an acute spinal lesion that resulted in a somewhat rare, but catastrophic, condition known as cauda equina syndrome. He was taken by ambulance to the Victoria Infirmary, Glasgow, and from there to the Southern General Hospital, Glasgow, where he underwent an emergency operation. No criticism is made of the treatment that he received after his collapse on 9 February 1998; but he has been left severely disabled. He claims damages against the defenders on the basis of their vicarious responsibility for the allegedly negligent acts and omissions of two doctors who saw, examined and treated the pursuer at the Accident and Emergency Departments of Hairmyres Hospital, on Saturday 7 February, and Law Hospital, on Sunday 8 February 1998, respectively.
Cauda Equina Syndrome
[2] "Cauda equina" is the term used to describe that part of the nervous system consisting of peripheral nerves, both motor and sensory, below the level of the conus medullaris and within the spinal canal. The conus medullaris contains the myelomeres of the five sacral nerve roots. Damage to any part of this structure may result in "cauda equina syndrome". (The term "cauda equina" derives from the Latin for "tail" and "horse", respectively; that term came to be used because of the resemblance of this part of the anatomy to a horse's tail.) Cauda equina syndrome is a rare, but potentially very serious, neurological disorder. One of the symptoms of the condition is low back pain. However, low back pain is very common and is very seldom the forerunner of cauda equina syndrome. Cauda equina syndrome occurs when certain nerve roots are severely compressed and become paralysed as a result. Lumbar disc herniation is a common cause of the harmful compression; other causes include traumatic injury, spondylosis, and metastatic disease. The nerve roots that are liable to be affected include those that control the function of the bladder and the bowel, as well as sexual function and the movement of the lower limbs; complete paraplegia is a possible consequence in a very bad case. In the type of case that this litigation is concerned with, the cauda equina syndrome is secondary to a prolapsed intervertebral disc, resulting in urinary dysfunction and decreased rectal tone with motor and sensory loss in the perineal area and the lower limbs. Cauda equina syndrome from lumbar disc herniation accounts for up to about 1% of all disc herniations. (These statements are derived from the various learned studies, nos. 6/22 -27 of Process, as explained and added to in expert medical evidence, which was not in dispute.)
The Pursuer's Account
[3] The account given by the pursuer of the onset of the symptoms which led to his collapse from cauda equina syndrome on Monday 9 February 1998 differed in various important respects from what is recorded in various sets of hospital and other medical records created at or about the time the pursuer went to the various hospitals. The most important parts of the records from Hairmyres Hospital and Law Hospital are narrated below: see paragraphs [10] and [12]. Before attempting to identify the differences between what the pursuer said in evidence and what the records say, I shall summarise the pursuer's evidence as I noted it. He explained that the work that he was doing at that period, and he had done similar work for a number of years, involved a good deal of heavy lifting. On some occasions he might lift a total of as many as 25 or 30 tonnes of steel in a shift, often in co-operation with another employee or employees. The steel bars he handled were of different sizes; some of the bars which had to be lifted were 12 metres long and had a diameter of 40 millimetres. Some of them weighed 1 tonne. The whole work involved a lot of strain on the upper front of the body and the back. This was true of the pursuer and of his fellow workers.[4] For a while in 1997 he gave up this job and worked as a driving instructor but when the numbers of learner driver pupils began to reduce he resumed his heavy working back in his employment with BRC (Square Grip), in January 1998, although he decided to see his current driving pupils through their tests. He explained that the strains involved in the heavy working resulted in his having back pain from time to time over the years. He estimated that he might have had one incident or so over each of three years. On one occasion he went to Monklands Hospital because, as he put it, he felt he "had pulled a muscle". That particular problem resolved itself. He said that almost all those doing the same work got sore backs and that he had been to his own doctor from time to time with a sore back ("a couple of times"). On one occasion he thought he was off work for a week. During the working week ending on Friday 6 February 1998 he worked on the night shift on Monday, Tuesday, Wednesday and Thursday and came off at 7am on the Friday. According to him, his back was gradually getting sore from about the time of the Tuesday nightshift. However, it did not stop him working and he was able to complete four shifts that week. By the morning of Friday, his back felt sore and it gradually got worse. By the Saturday it was "incredibly painful". The pain experienced on the Saturday morning was "nothing akin to muscle strain". He had not felt anything "go" in his back prior to the onset of the pain. On Saturday 7 February, he had a driving lesson to give at 1pm to one of his pupils. It was supposed to last for two hours. He awoke that morning in considerable pain. In evidence he said that he thought he might have slept on the floor on the Friday night. He described the pain as being in his "high back" but explained that that meant "on the top of my bum"; it was just above the backside and his backside got really sore and the pain started going down his leg. He could not remember initially if it was one leg or both. The pain went into "both cheeks". This back pain felt like no sore back he had had before. He felt, he said in evidence, a bit of numbness and there was also loss of sensation in the scrotum. (He said that on the Saturday evening he asked his partner, Jacqueline Brown, to touch his scrotum to see if there was true loss of sensation there or if perhaps the problem was simply that the problem was in his fingers: they were sometimes numb through handling heavy steel at work: she was able to confirm that the problem was at the scrotum, not in the pursuer's fingers. He also asked her to touch his penis for the same purpose, because he wasn't properly feeling sensation in it. That confirmed that it was also numb to some extent.) By the Saturday morning he had become a lot worse and probably both legs were affected.
[5] He set off to give the driving lesson on the Saturday afternoon but stopped about half way through because he could not continue. He drove straight to Hairmyres Hospital, which was the nearest hospital to the place at which he had been giving the lesson. He arrived shortly after 2pm. According to him, he parked his car and walked with difficulty, because of the pain, to Reception where he was seen by a triage nurse. [Triage staff have the responsibility of classifying the incoming patients into categories of urgency or perceived seriousness. That categorisation affects the order in which patients are seen by a casualty doctor if the A & E Department is busy.] He was seen by her after some ten minutes. He did not remember very much of what he had told that nurse but he told her his backside/bum was sore. He could not remember in evidence if he said anything to her about his scrotum. The interview with that nurse lasted about five minutes. He was placed in a non-urgent category. Then he waited for some two hours and there was an announcement over the tannoy that he should go to a cubicle, walking along following a yellow line painted on the floor. In the cubicle he was seen by a doctor (Dr Hanif). The doctor asked him what was wrong and also asked if he had been to see his GP. The pursuer told him that he had seen his GP (referring to some occasions earlier than February 1998); the doctor then said something to the effect, "What are you doing here then? It is not my problem." The interview with the doctor was interrupted when the nurse asked the doctor to see another patient. The pursuer inferred from the exchanges that he overheard that there was some friendly relationship at least between the nurse and that patient. He said that he heard the doctor say to the other patient, who was in the next cubicle, that he was to go for an x-ray. That caused the pursuer some distress because he had seen the other patient walking better than he, the pursuer, could walk; and no one was suggesting that he, the pursuer, should go for an x-ray. The doctor returned and told the pursuer to get onto the bed. The pursuer told the doctor about a tingling feeling in his scrotum and back. The doctor did a couple of reflex tests with a reflex hammer. He also used the handle of the reflex hammer on the soles of the feet. The doctor asked if the pursuer could feel a sensation when the handle was drawn over the soles of the feet and he, the pursuer, said that he could not feel any sensation. He had no doubt that he had told the doctor this. He also explained in evidence that he had had great difficulty getting up upon the bed. The doctor lifted each leg for the straight leg raising test and the pursuer told him that it was incredibly sore to have his leg lifted. The doctor then got him to lie on his front and he, the doctor, ran his hand over the pursuer's spine. In the course of the examination, the doctor tested the pursuer's scrotum with something like a pin and the pursuer could remember clearly that he told the doctor that he could not feel this. He considered that the doctor's spoken English was "not too great". He was in no doubt that he had said to the doctor that his back, his "bum" and his legs were sore. Indeed he had been in such a poor condition that as he was walking along the yellow line to the cubicle he thought that he would not be able to get there. His foot also felt funny. He thought that one leg was in a different condition from the other. The examination by the doctor took only some ten minutes, including some time out while the doctor visited the other patient mentioned. The examining doctor then said that he would send a letter to the pursuer's doctor with a view to his being seen by a bone specialist; and, according to the pursuer, "That was that". He considered that when the doctor asked him if he had seen his own GP he was in substance saying, "Why are you bothering me?". In evidence, the pursuer was taken through the hand written entries in various hospital records and confirmed the entries in the records only in so far as they agreed with what he had said in evidence to this Court. Where there was any discrepancy he considered that the person making the note was in error. His memory, he said, was quite clear and insofar as it differed from the hospital record, the hospital record was wrong.
[6] The pursuer claimed that he told Dr Hanif that he had never felt such pain before; however, the doctor's attitude was "very blasé". As far as he could remember, he was not asked about urinary problems; he did not have any at that time. He was given some analgesics to take home. He managed to drive home but had difficulty and experienced much pain on walking. He got home about 5.30pm and tried to sleep. It was then that he asked Jacqueline Brown to test the sensation in his scrotum and penis. He could feel nothing. He tried to sleep on the bed but moved onto the floor. He had to cancel the giving of driving lessons on the Sunday. By the Sunday night he said that he felt that he could cope no more. He did not feel able to drive himself, so he phoned his bother, Alan, who arrived about 8.45pm. Alan then took him to Law Hospital; that hospital was chosen, it was said, because it was closer than Hairmyres Hospital to where the pursuer lived. He said that he was by that time in a lot of pain; it was "incredible pain" and was worse than on the previous day. He found it difficult to walk and he had numbness in his feet. He was triaged as Category 4, a low category in terms of urgency or seriousness, but was seen within about ten minutes, and was directed to a cubicle where a female doctor (Dr Holder) saw him. He, in effect, had dragged himself into the cubicle, he said, and indeed to the hospital, because he was in great pain. He felt he was dragging both feet. Dr Holder asked him to go onto the bed. He told her that he could not climb onto the bed. However, he did manage to do so and he told her he had incredible pain and loss of sensation in the scrotum. According to him, she said something like "You'll be wanting me to have a look then?". He said that he felt from the way she phrased it that he was being treated as if he was "some kind of pervert". Dr Holder then went through the same kinds of testing procedures that had been used in Hairmyres. He did not tell her at first that he had been to Hairmyres. When he did tell her, she asked him what they had given him and he explained what they had done and about the prescribed analgesic. Dr Holder tried to straight lift his leg and he said that he had to ask her to stop because of the pain. He said that he felt somehow that she was thinking that all he wanted was some kind of excuse not to go to work on the following Monday. He told her that he could not feel any sensation in the soles of his feet. She said, "Are you sure?". He was not 100% sure if she applied some sharp point to test the sensation in the scrotum. He was not asked anything about whether he had any urinary or bowel abnormalities. (In evidence he said that he did not remember that he did have any such trouble before then. However, during the Sunday night at home, he discovered that he had wet himself. His evidence therefore was that he did not have such trouble until the night following the examination by Dr Holder.) Dr Holder finally gave him a stronger analgesic and sent him home. She mentioned that he might be suffering from sciatica. He claimed that insofar as the Law Hospital records differed from his account they were in error. In particular, they were wrong to say that at the time of his examination there sensation was "intact".
[7] He had previously arranged to take a student for his driving test on Monday 9 February. Although he was in great pain on the Monday morning, he did not want to let the student down. He found, however, when he got into the car that he had to lift his leg with his hands on order to get his foot on and off the pedals. By Monday morning, the situation was a good deal worse than before. He drove to Glasgow and picked up the student. Then they drove for about half an hour before the test was due to begin. Next they drove to the test centre. When he got out of the car to go into the test centre he walked a few steps and just collapsed. His legs gave way underneath him and he lost control of his bladder and bowels. When he collapsed most of the pain went from his legs. People came out from the test centre and he was assisted into an ambulance and taken to the Accident and Emergency Unit of the Victoria Infirmary. He was conscious. He was then sent to the Southern General Hospital for an MRI. He was diagnosed as having an acute central disc prolapse. An operation was carried out. Before the operation was carried out he was told he might never walk again. He saw the picture taken by the MRI scan and that showed a disc crushing nerves in the spinal cord. Since that time he had been virtually unable to walk. In the witness box, he was invited to look at the records made by the paramedics who conveyed him to the Victoria Infirmary and at the relevant entries as he entered the Victoria Infirmary and the Southern General Hospital. He disagreed with and rejected the entries in the notes insofar as they differed from what he said in evidence about what had happened. In particular he drew attention to the record in the Southern General Hospital notes to the effect that he had fallen down stairs. He could not explain how that entry could have come to be made. It was plainly incorrect. Even his name was spelled incorrectly - with one "t". The pursuer at no time made any formal complaint about the doctors. However, it should be noted that there was hardly time to make a formal complaint before the pursuer collapsed on the Monday.
Alan Patterson
[8] Alan Patterson, a police officer, is the brother of the pursuer. He spoke about collecting the pursuer from his house on the evening of Sunday 8 to take him to Law Hospital. He thought that he collected his brother between 7 and 8 o'clock; but this is clearly inaccurate by a couple of hours: it was nearer 10pm. He, as a police officer, was very familiar with Accident and Emergency Departments. He thought that the A & E Department at Law Hospital was not busy at all. Indeed, they were able to park his car right beside the front door. As he recollected, the whole stay in the hospital lasted no more than twenty minutes. He described the pursuer's walking as very bad indeed, both on the way in and on the way out. It would have been obvious, he said, even to a stranger that there was something seriously wrong; his brother was obviously in a good deal of pain; there was no doubt that he was suffering. On the way to the hospital, the pursuer told him that he had some kind of numbness of the testicles. What he said the pursuer actually said to him, while in the car on the way to hospital, was, "I cannae feel my balls". After he had been seen by Dr Holder, the pursuer told his brother that he was shocked at the way he had been treated; he was more or less disgusted because he had been made to feel that he was wasting the doctor's time. He corroborated (albeit it was hearsay) the pursuer's impression that the female doctor had spoken as if she thought that he had some prurient motive in asking her to touch his testicles. He confirmed that the pursuer had had a bad back on Christmas Day or Boxing Day 1997, but it was not debilitating and not such as to cause a great deal of concern. After Christmas, he probably did not see the pursuer more than once before 8 February. He described the pursuer's gait on the Sunday evening by demonstrating in the witness box. He maintained that the pursuer when he walked was taking the weight off his right leg and dragging it. From time to time, however, he managed to get his foot off the ground. Within the hospital, although there were wheelchairs and other aids available, the pursuer did not seek to use any such aids. His pain was such that, as they drove to the hospital, the pursuer swore at his brother for driving over holes in the road. The witness did not accompany the pursuer either when he went to the triage nurse or to see the doctor. The pursuer also reported to the witness at the time that he felt he had been sent away from Hairmyres Hospital the previous day without being treated. This witness repeated his clear evidence to the effect that his brother had been in severe pain and that that must have been seen by the doctor within the hospital. This witness had first been approached by a lawyer on behalf of the pursuer some time after the action was raised, that is perhaps two years or thereabouts after the incident spoken to in his evidence.
Jacqueline Brown
[9] She was the pursuer's partner in and before February 1998. She corroborated his general evidence about the onset of the problem. According to her, by the Saturday, the pursuer was saying that he had a tingling sensation in his feet and a definite change of sensation around his testicles. He told her that he could not feel his testicles. On the Saturday night he asked her to touch them just to check that the absence of sensation was real. She did so and he stated that he could not feel her touch. She gave a hearsay account of what he had told her had happened during his visit to Hairmyres Hospital and said that he was angry after being seen in that hospital by the doctor there. Her evidence included a hearsay account of the incident spoken to by the pursuer involving the sending of another patient for an x-ray, being a patient who also had a back problem but apparently was walking quite satisfactorily. In her view, it would have been obvious to any outsider that the pursuer was in pain on the Saturday and thereafter. By Sunday that pain appeared to be almost unbearable. She explained that he had tried to continue to give his pupils driving lessons and took a pupil for a driving test on the Monday because he was very conscientious and did not want to let people down. Asked about her being asked to feel his scrotum she said that he even asked her to squeeze him there and she did so but he reported that he could feel nothing. She did not recall that he was complaining of "pain" in the testicles. Indeed it was quite the opposite. He was reporting an absence of sensation. He was disappointed after being in the hospitals because he was looking for someone to tell him what was wrong with him and he had not been told. With the symptoms that he described, he felt that something should have been done, and nothing that helped was done. She described him as walking in a stooped way as if trying to compensate for the pain in his back. His legs sort of buckled and he walked as if in pain. She did not give a formal statement until January or February 2003. She said that she and the pursuer had talked about the matter over the years but not very much recently. She denied exaggerating her evidence.
Hairmyres Hospital Records
[10] The hospital records use various shorthand symbols and abbreviations: there was no dispute as to their meaning. What follows is a summary rendering of the most relevant parts of the hospital record, but with the symbols or abbreviations "translated" into plain English. The pursuer is shown as arriving at 2.32 pm on 7 February 1998, having come by his "Own Transport". Under the title "Presenting Complaint", the triage nurse has recorded, "Back pain, lifts heavy metal objects at work last night his back locked and the pain is radiating into his testicles. Took analgesia with little effect". Dr Hanif saw the pursuer at 4.15pm. His Notes ("translated") contain the following:
"Presenting complaint: "Back pain"
History of presenting complaint
1 year history of back pain
2 -3 days of increased pain
sharp
constant
radiating to testicles
Lifts heavy weights at work.
Ibuprofen not helping.
Drug history no known allergy
Brufen
On examination Well
No anaemia, cyanosis, clubbing or jaundice
pain Lumbar spine
Straight leg raising OK
Sensation intact
No abnormality in S1/S2 region.
Impression long-term pain
Plan analgesia
Home".
This document is signed by the SHO who examined him, Dr Hanif, who has also printed his name. The "Nursing Assessment", not written by Dr Hanif, but by A Quinn (?), shows that the patient was discharged, but not the time of discharge. The word "analgesia" is written, and ticked, and under "Nursing actions and evaluations" the word "advised" follows. (It may be appropriate to note here that "S1" and "S2" are two of the key sensory points or areas: when the sensation at these sites is properly tested and abnormal findings are made the examiner will be alerted thereby to some possible pathology affecting parts of the body, nerves or organs. The medical witnesses were in some disarray about the precise areas of the surface of the body that fell to be designated by terms such as "S1" and "S2"; but nothing turns upon this. Number 6/4 of Process contains a diagram of the distribution of these sensory points, though not all agreed that it was exactly in accordance with their own understanding.)
Dr Hanif
[11] Mohammed Hanif was the doctor who saw the pursuer in Hairmyres Hospital on Saturday 8 February. Although he spoke a slightly accented English he was perfectly fluent and, I should judge, readily comprehensible. He had gone to school in Scotland in and after 1982, and went to Glasgow University. He studied pharmacology and took a B.Sc Honours degree between 1987 and 1991. He obtained his M.B. Ch.B. at Glasgow University between 1991 and 1996. When he graduated he continued training in different parts of the country but had never been specifically in an Accident and Emergency Department until about 4 February 1998 when he went to Hairmyres. (The pattern of his experience between qualifying and going to Hairmyres Hospital was very similar to that of Dr Holder, the SHO at Law Hospital and appeared to follow a well established pattern). He had now become a Fellow of the Royal College of Surgeons (Glasgow), obtaining that qualification in 2000. He did not claim to recollect the pursuer but was relying totally upon the notes that he made at the time, contained in 6/1 of process. It will be noted that the triage note, which is typed, states that "the pain is radiating into his testicles ...". The doctor said that he would take his own history and would not rely upon the history in the triage note. He would be sitting writing as he sat interviewing the patient. He explained that it would not be for him to note the time of discharge; that would be something for the nurse to do after the patient had collected his prescribed medication etc. He accepted that if, on an examination of a patient with this kind of complaint and history, the doctor discovered loss of sensation in the feet, then the appropriate course would be to refer the patient, possibly to Orthopaedic Surgery and perhaps for a lumbar spine x-ray. If the patient had to wait to be seen by an orthopaedic surgeon, an x-ray might possibly be done while the patient was waiting. The reason for referring him to an orthopaedic surgeon was that loss of sensation in the feet would be an abnormal finding pointing to a compression in the spine. If there was back pain plus loss of sensation in the feet, the witness would have been concerned about compression to the spinal cord and the cauda equina. If the loss of sensation were noted in association with lumbar pain, that would certainly call for a fuller investigation as a matter of urgency. The purpose would be to see that whatever was pressurising the spinal cord was dealt with, so as to try to avoid long-lasting consequences. If there was compression about the cauda equina then everything below that level would be affected. Any loss of sensation in the perineal area would worry the doctor because that would indicate compression in the S2, S3, S4 or L1, L2 areas. Any loss of sensation in the buttock, scrotum or pubic area would be of concern, as would pain radiating into these areas. There were various causes of pain. The pain could be caused by something happening to the nerves of the spine or the fibres from these nerves. There was a possibility that pain in one part of the body could be pain referred from another part of the body. A complaint of pain radiating into the testicles could give rise to concern as to its cause, but, in the absence of any other findings, it did not do so in this case. The examination itself produced negative findings, both in respect of straight leg raising and in respect of sensation. The complaint by the patient of pain radiating to the testicles was not sufficient in the absence of any positive finding on examination to warrant serious concern. After considering the history and conducting the examination Dr Hanif was satisfied that there were no abnormal findings to indicate problems in the cauda equina. The straight leg raising, contrary to the pursuer's evidence, produced satisfactory results and no pain. Had it disclosed any abnormal or significant results, he would have recorded that finding. He accepted that had the straight leg raising produced pain, that, in conjunction with other significant symptoms, would have been enough to lead him to send the patient for orthopaedic examination. Loss of sensation in certain key areas plus pain on straight leg raising were well known warning signs of the possibility of nerve compression. His notes did not suggest that the pursuer was in severe pain. Had he been in severe pain the witness would have noted that. He would not have written, "Straight leg raising OK". The witness accepted that he might well have asked the patient if he had seen his GP, and might indeed have said "Why are you presenting at Accident and Emergency today?". However, he sought to make plain that it was essential in his practice to treat the patient respectfully; he said "We are all there for the patient". Nonetheless, it was important to enquire about the history of any previous medical intervention because it might be relevant. For example, drugs might have been prescribed. He would not be saying "Why are you here?" in a way that suggested that the patient was wasting his time or should not be in hospital at all. He completely rejected the suggestion that he had said something to the patient to the effect that, "It's not my problem". He indicated that he had gone through all the routine testing of dermatomes appropriate to a complaint of back pain. He thought that the total examination including questioning might have taken perhaps as much as half an hour, though possibly less. He could not remember that the interview with the pursuer had been interrupted to allow him to see another patient. On the whole he formed the impression, in the absence of any significant positive findings, that there could simply have been exacerbation of a long-term problem; the pursuer's history was of previous back problems. There were simply no abnormal findings of sensation. If there had been any such reporting by him, then that would have been recorded. Negative, i.e. normal, findings were not necessarily recorded. Positive and unusual findings would be reported. Part of the purpose of the physical examination would be to pinpoint where the pain was. If the straight leg raising was too painful then he would certainly have written that down. Examination of L5/S1 is an essential examination in such a case. Similarly the straight leg raising and pinprick testing of the pubic area and the perineum were essential. In the absence of any particular history there would be no occasion to make a peri-anal examination. The witness accepted that there was nothing in the notes that he had made to explain the complaint that pain was radiating into the testicles. He also accepted that the "impression" recorded in the notes was not really an aetiological diagnosis but essentially a description of the patient's condition.
Law Hospital Records
[12] Similarly "translated", they contain the following. The pursuer is recorded as arriving at 22.33 hrs. He is shown as being "Triaged by Donnelly, Elizabeth at 10.33pm Type 4". It is recorded that he has no known allergy, that he is a self referral and that he is a steel bender. Full details of his GP (Dr Sheridan) are recorded. The same sheet records that he was seen by Dr Holder at 10.45pm and records "Sciatica" under the printed heading "Diagnosis". Disposal is shown as "Home". The entries in the handwriting of Dr Holder read as follows:
"8/2/98, 10.45pm
Presenting Complaint Back pain for three days now
History of Presenting complaint. For three days now patient c/o lower back pain à constant, radiating down the back of thigh à back of leg c/o tingling feeling
Patient able to weight bear but precipitates pain more
Patient was seen 1/7 ago at Hospital à given Voltarol with little relief
Past medical and surgical history, NIL
Past drug history, as above
O/E no lumbar spine tenderness no muscular tenderness
Pain aggravated by straight leg raise
No Neurological deficit
Sensation intact
Tone, Reflexes and Plantars Normal
Assessment: Sciatica
Patient
(1) advised re bed rest
(2) Kapak six hourly
(3) Continue care with GP".
Dr Holder
[13] The evidence of Dr Elizabeth Holder, who examined the pursuer in Law Hospital on the Sunday evening, was taken immediately after that of the pursuer because of the difficulty of making her available at any other time. She came from the West Indies and graduated M.B., B.S. from the University of the West Indies in July 1995. She then worked in Trinidad at the University of the West Indies for about 18 months. Next she worked in a Port of Spain General Hospital and finally in the Eric William's Medical Complex in Trinidad for a year. She applied for and obtained a post as Senior House Officer in Accident and Emergency at Law Hospital and started work there on 4 February 1998. She worked for 6 months in that post before going to the Royal Buckingham Hospital in Aylesbury, Buckinghamshire where she stayed for 6 months. She then had 6 months as Senior House Officer at the Accident and Emergency at Hillingdon in Oxfordshire and 6 months in the Orthopaedic Department of that hospital followed by 6 months in the Intensive Care Department. After a period of maternity leave she took a post at staff grade level in Accident and Emergency at the Hillingdon Hospital in Oxfordshire. She made it absolutely clear that she had no recollection whatsoever of dealing with the pursuer when he visited Law Hospital on the 8 February 1998. It was not until July 2003 that she was told that questions were being raised as to her examination, diagnosis and treatment of this patient.[14] She had then been contacted by lawyers and had been supplied with a copy of the notes that she made: those in No.6/2 of Process. Her evidence was therefore largely confined to commenting upon and explaining these notes insofar as she was asked to do so. However, she had consulted her diary and had discovered she had been on duty from 8pm on Saturday and remained on duty until 8am on the Monday. She could comment from the fact that the pursuer had been assessed by the triage nurse as category 4 that his case was not considered urgent by the triage nurse. Category 4 was effectively the lowest category. Her understanding was that if a person was classified in category 5 that was because the judgment of the triage nurse was that that person should not be in hospital at all. The categorisation was simply a system of prioritisation in terms of the apparent urgency of the case. Despite the pursuer's having been given a low prioritisation by being put in category 4 he was seen very quickly; that circumstance indicated that the hospital was not very busy that night. Had there been people in categories 1, 2 or 3 they would have certainly been seen before the pursuer was seen and he would have had to wait. She repeatedly, in answer to repeated questions, made it plain that despite the hand written notes in front of her she could not recall any of the events or the matters recorded there. She explained that she assumed that the reference to 'pain on straight leg raising' referred to one leg. She acknowledged that she had not recorded the degree of pain. Her recording of that, she thought, would depend upon the individual patient. If the patient had maintained that the pain was "severe" she would probably have noted that. Accordingly, the absence of a note indicated that the pain was in fact not severe. She had not recorded where the tingling feeling was and could not now say for certain. She explained, however, that her purpose in recording the history was to document what the patient was complaining of and thus to assist her to decide upon the character of the examination. She accepted that it probably should have been recorded where the tingling was located. She assumed that the tingling must have been on the thigh and leg, being the parts of the body referred to in the history Note. She accepted that a complaint of tingling could be important but said that many patients in fact complain of tingling.
[15] The importance of the history given by the patient was that it provided guidance for further examination. She considered that had he specifically mentioned some change of sensation in the scrotum she would have documented that. She also acknowledged that if the pursuer had complained of tingling in the scrotum that would have been an important factor because such a complaint would, she said "key" her into an examination to determine the cause of the loss of sensation. Her evidence plainly was that the significant thing was not the complaint itself but the findings on examination, the character of the examination being suggested by the patient's complaints. She acknowledged that if she found any loss of sensation she would be concerned to discover if there was any impact on the spinal cord. In his submissions, counsel for the pursuer suggested that she evaded the questions on this matter; I do not think she did so. I think that to some extent she and counsel for the pursuer (who examined her first) were slightly at cross-purposes. He appeared to me to be concentrating on the history at times when she was concentrating upon the history plus the findings that followed the examination directed by that history. She made it plain that in her opinion one could not make a diagnosis on the basis of the history alone. She had diagnosed sciatica. That was a common type of complaint entirely consistent with the symptoms that she had observed, the tests she had done and the history that she had obtained. As the patient has already had anti-inflammatory drugs from Hairmyres Hospital, being drugs to reduce the swelling, she provided him with a strong painkiller. She had recorded that the patient could walk although he reported that walking made the pain worse.
[16] At some stage the patient had told her of the visit to a different hospital the previous day; but she said that would not have influenced her. She would still just go on and do her examination. She could not say how long the examination must have taken. She explained that the patient would be lying down on his back for the straight leg raising exercise. She would ask the patient to raise his leg. She would also raise it herself to see if the pain was made worse by that. She had recorded no neurological deficit and had also recorded that sensation was intact. She had carried out the usual examination of the kind indicated in Production 6/6, namely touching the key sensory points (otherwise the "dermatomes"). She had tested L1, L2, L3, L4, L5, and S1 and S2. She acknowledged that the examination of the S1 and S2 sensory points would relate to the scrotum. She acknowledged that loss of sensation in the soles of the feet would have been symptoms of an effect at S1 and L5. An observation of loss of sensation would have pointed to a possible lumbar disc prolapse. Had that been the possibility that emerged from the examination she would have sought orthopaedic advice or treatment. She would have got an orthopaedic doctor or other senior doctor to come and assess the patient. She would have done that urgently if she judged that there was a possibility of a lumbar disc prolapse. She could not comment upon what an x-ray or MRI would reveal in such a case because she had no expertise in relation to these matters. Any loss of sensation at the scrotum would have the same significance as loss of sensation in the soles of the feet. She simply laughed at the possibility that she had said something of a possible prurient nature to the patient to the effect that, "You'll be wanting me to have a look at the scrotum". In general, she explained that a doctor would tend to record the unusual or abnormal observations rather than normal findings. Thus any deficits (departures from the normal) would be recorded. If there were no deficits she would simple record, as she had done here, "sensation intact" or "no neurological deficits". In examination on behalf of the defenders, she expressed the view that some of the findings by the triage nurse might form part of the assessment of what the condition was. Thus the fact that the patient had walked into the hospital, that he had been assessed as T4, that he was considered by the nurse to be comfortable enough to sit in the waiting room and that he was apparently not in severe pain and was not prescribed pain killers, pointed towards and supported her assessment of sciatica. She said that she had never at any stage in her career, including up to the present time, had any criticism from superiors or about her note-taking. From her notes, she thought that she must have tested both legs for straight leg raising and it must have been only one leg that caused the pain when that exercise was carried out. Her reflex testing would be on the knee, ankle and plantars (tested by drawing the handle of the hammer over the soles of the feet). She told the Court that if she felt it necessary to touch the private parts of a male patient, including the scrotum, then she would seek permission to do that. She also expressed the view that her invariable practice would be to have somebody else present when such an examination involving the patient's private parts took place. However, she also, at one stage, said that that would "usually" happen. The hospital records do not disclose the presence of any other person during the pursuer's examination; the pursuer did not say that there was anyone else present - though this was not an issue when he was giving evidence, and the matter was not mentioned then. Dr Holder was not asked whether or not the presence of a witness would be recorded in such circumstances. She accepted that had the pursuer been displaying signs of significant neurological compression on 8 February 1998 it would have been appropriate for her to refer the patient to a more expert doctor and indeed accept that it would have been negligent not to do so.
[17] The pursuer's averments of fault on the part of Dr Hanif and of Dr Holder are as follows:
COND. 6. The pursuer's loss, injury and damage was caused by the fault and negligence of said casualty officers who saw him on 7th and 8th February 1998, for whose acts and omissions in the course of their employment with their predecessors the defenders are vicariously liable. It was their duty to take reasonable care for the health of patients under their care, such as the pursuer, and not to expose them to unnecessary risk of injury. It was their duty to provide the pursuer with the standard of care to be expected of ordinary competent casualty officers exercising ordinary care and skill. It was the duty of Dr Hanif when he saw the pursuers on 7th February 1998 to take careful note of the pursuer's symptoms and clinical signs. It was his duty, if acting with ordinary competence, to diagnose acute and significant neurological compression on said date. It was his duty, if acting with ordinary competence, to refer the pursuer immediately for urgent orthopaedic assessment and management on said date. It was his duty, if acting with ordinary competence, not to discharge the pursuer from said hospital on said date, with no further proposed management other than pain-killing medication and correspondence with the pursuer's GP. It was the duty of said casualty officer who saw the pursuer at Law Hospital on 8th February 1998 to take careful note of the pursuer's symptoms and clinical signs. It was her duty, if acting with ordinary competence, to diagnose acute and significant neurological compression on said date. It was her duty, if acting with ordinary competence, to refer the pursuer immediately for urgent orthopaedic assessment and management on said date. It was her duty, if acting with ordinary competence, not to discharge the pursuer from said hospital on said date with only a prescription for further painkilling medication. Said doctors knew or ought to have known that the pursuer was displaying signs of significant neurological compression on 7th and 8th February 1998. They knew or ought to have known that any delay in treating said compression could result in permanent harm to the pursuer. In each and all of the above duties said doctors failed and by their failures caused the pursuer to suffer the loss, injury and damage hereinafter condescended upon. No ordinary competent casualty officers exercising ordinary care and skill would have so failed. Had said doctors fulfilled the duties incumbent upon them said loss injury and damage would not have occurred. The averments in answer are denied, except insofar as coinciding herewith. Explained and averred that the severity of the pursuer's clinical signs which were found on the morning of 9th February 1998 at the Victoria Infirmary, Glasgow were such that a competently performed examination on 7th or 8th February 1998 would have detected significant abnormalities requiring urgent hospital admission and surgery."
"COND. 4. At the time of the pursuer's examination by the casualty officer at Hairmyres Hospital, the pursuer was suffering from acute and significant neurological compression caused by a prolapsed inter-vertebral disc. The pursuer's clinical presentation at the time of that examination was highly suggestive of that condition involving as it did an acute episode of back pain with sciatica associated with loss of sensation, weakness and drop foot. The casualty officer could and should have diagnosed neurological compression at the time of the examination. He could and should have immediately referred the pursuer there and then to the appropriate Department of the hospital for confirmation of the diagnosis and urgent decompression of the spine. The averments in answer are denied, except insofar as coinciding herewith."
In Condescendence 5 he avers that his symptoms worsened between the time he left Hairmyres Hospital and the time when Dr Holder saw him at Law Hospital:
"His drop foot had worsened and his straight leg raising was considerably restricted on examination. He also had developed left leg weakness and reported that he had difficulty when passing urine for about 48 hours."
The doctor [Holder] tested his reflexes, "tested sensation in his scrotum by pinprick". The pursuer avers that he told her he could not feel anything either on pinprick testing of his scrotum or of his feet. No assessment of tone was carried out.
The Law
[19] The law governing medical negligence is that explained in Hunter v Hanley 1955 SC 200. In that case, the Lord President said, at page 204:
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care".
Mere errors in judgment are not necessarily to be characterised as negligence. There must be:
"... so marked a departure from the normal standard of conduct of a professional man as to infer a lack of the ordinary care which a man of ordinary skill would display ... To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care ... The deviation must be of a kind which satisfies the third of the requirements just stated."
I have quoted this well-known passage because the standards that it refers to are those that I have to take account of in deciding this case. However, as already explained, the standards were not in issue, nor was there any difference in approach as to how they would apply to each of what might be described as the two conflicting versions of the history of the pursuer's presentations at Hairmyres Hospital and Law Hospital.
Expert Medical Evidence
[20] At this stage I shall not attempt to narrate in detail the expert medical evidence. The decision in this case does not turn upon resolving conflicts in medical opinion. As will appear from a summary of the submissions made to me, the experts were effectively at one on the issues bearing upon negligence in the kind of situation that the Court had to deal with in this litigation. However, for completeness, I should note the principal features of the expert evidence. The CVs of the experts are in Process and may be referred to if necessary.
Dr Abernethy
[21] A witness for the pursuer, is a distinguished orthopaedic surgeon. The substance of his evidence is narrated in his report, 6/18 of Process, written following his examination of the pursuer, on 15 December 1999: he had not seen him before that date. What he makes clear, and there was no challenge to his view, is that if the pursuer had reported to the two hospitals with the symptoms and the history that he told Dr Abernethy he reported with, then the doctors who saw the pursuer at both hospitals were negligent in not sending the pursuer on for urgent expert attention. However, the basis of his evidence supporting an inference of negligence is contained in the phrase in the report, "Under those circumstances", which appears on page 6, Opinion, line 13. If the situation had been essentially that described in the hospital Notes, his conclusion would have been quite different. He was asked for his opinion on the basis that the pursuer was fully examined and no loss of sensation had been detected, there had been no problems with the standard tests, including straight leg raising: would it then have been acceptable to discharge the patient home with analgesics. He replied, "Absolutely; and yes, it would have been acceptable to discharge - and I would even qualify that by saying even if there was some restriction on straight leg raising, and there was some evidence of sensory loss in the limb - possibly a diminished reflex or something, then even under those circumstances, it would have been reasonable to have discharged the patient". When pressed about this, although he was critical of the Notes, and although he thought that because there was a complaint of pain in, or radiating into, the testicles, the examination - because it failed to disclose why that complaint was made - was incomplete, he clearly accepted that pain in the testicles was not a sign of disc compression in the vicinity of the cauda equina (and he explained fully why that was so). He was asked, "Would it have been acceptable simply to discharge the patient home with a recorded "impression" of log-term pain, giving a plan of analgesics at home, without, on this hypothesis, diagnosing the cause of the pain radiations into the testicular area?". He replied:
"Yes. It probably would have been. I mean, if you'd carried out a full examination. But I don't think you could have been sufficiently confident on the basis of that (scil. The Notes by Dr Hanif) to have perhaps, to have done so".
In this context, I should make it clear that Dr Abernethy, as an orthopaedic surgeon, appeared to me to be looking for a more complete note than a doctor in A & E might commonly make in such a case. I am satisfied that Dr Hanif did in fact carry out a full and sufficient examination: in this respect, I rely upon the evidence of Dr Hanif himself, Dr Little and the pursuer, whose evidence is not that the examination was not carried out, but that Dr Hanif (like Dr Holder the next day) did the tests but just took no notice of what the tests disclosed or of what the pursuer told him/her about his responses to the testing. As is made clear later, the pursuer's counsel, accepted that the pursuer's case did not rest upon a complaint of pain in/into the testicles: ["I confirm that it is no part of the pursuer's case that he presented with testicular pain: all entries to that effect are wholly wrong. So this is not the basis of the pursuer's claim that negligence lay in a failure of Dr Hanif to refer because of pain in/into the testicles.] I do not find in the evidence of Dr Abernethy, properly understood, support for the conclusion that, if the pursuer presented with the symptoms and history noted in the two sets of hospital Notes (as explained by their authors), the doctors in those two hospitals were negligent.
[22] Dr John Scott was the Consultant in A & E for the Wishaw area, including Law Hospital. (He was interposed during the pursuer's proof). He vaguely remembered Dr Holder. He had looked into the case and studied the hospital Notes when the pursuer's allegations of negligence were first reported to him, probably in 1998. He thought that Dr Holder's Notes followed the accepted sequences for recording the examination appropriate in such a case: her thoughts were clear; the layout was standard. Like the other experts, he attached little significance to the fact that pain was aggravated by straight leg raising. He accepted that it was appropriate to note any positive or significant signs, not necessarily to record all normal responses: for example, Dr Holder had presumably asked if there had been any precipitating trauma; she had not known anything about trauma or the absence of any history of trauma; and "99.9% of doctors would read her Notes as meaning that there was no history of trauma". Doctors were trained to recognise the importance of recording positives. He was happy with what Dr Holder had recorded. I regarded this evidence from an A & E specialist as important. But it is also important to note that the pursuer's case does not include any suggestion that the recording of the Notes by either doctor was negligent or was in any way whatsoever causative of the pursuer's collapse: the suggestion, which I reject, was that in each case they were so poor as to indicate carelessness on the part of the two doctors who made the Notes.
Dr William Tullett
[23] This witness was also a highly qualified A & E Consultant. Near the beginning of his evidence he said:
"I think that the overriding fact is that the presenting complaint is of 'pain radiating into the testicles'. As soon as you have a patient presenting with back pain with anything that is in the slightest way suggestive of sacral involvement, that patient has a central disc prolapse until proven otherwise ... alarm bells should ring ...".
However, the substance of his evidence was that loss of sensation would be a red flag symptom. No one disagreed with that. In his attitude to the significance of "pain" in/into the testicles, this witness, in my view, stood alone: see his responses to questions by the court towards the end of his evidence.
[24] In the light of all the evidence, especially that of Dr Little (see paragraphs [25] and [ ] and of the acknowledgement recorded elsewhere by the pursuer's counsel relating to the matter of pain in the testicles, I am unable to hold that this witness's evidence establishes the case that the pursuer makes. I prefer the evidence of the other experts, who were much more moderate and less dogmatic than Dr Tullett.[25] Dr Keith Little gave evidence for the defenders. His CV is in process. His report was not lodged. I found him to be a most impressive and coherent witness whose obvious grasp of the realities of the situation derived from a lifetime of relevant experience. His evidence strongly supported the view that, if the Notes properly recorded the pursuer's apparent condition and history on presenting at the two hospitals, then the standard and normal treatment would be to refer the patient back to his GP. Indeed, he thought that the patient's GP would be in a better position that a hospital doctor to decide upon the management of the patient, because he would be likely to know him better and be acquainted with his medical history over the years. I refer to other aspects of his evidence later.
Submissions for the Pursuer
[26] Mr John Mitchell, QC, for the pursuer, submitted that there was no dispute that each of the senior house officers named on the record owed a duty of care and that the defenders would be vicariously liable for negligence on the part of either or both in carrying out their duties. The law on the matter was that stated in the well-known passage from the opinion of the Lord President in Hunter v Hanley 1955 S.C. 2000 at pages 204/5. Reference was also made to an English case namely Bolam v Friern Hospital Management Committee [1957] 2 ALL E.R. 118 and to the approval, in the House of Lords, of the Lord President's dictum: Maynard v West Midlands Regional Health Authority [1985] 1 ALL E.R. 635. The parties were not in dispute as to the standard of skill and care required of a Senior House Officer in February 1998 in dealing with a patient presenting at an Accident and Emergency Department and suffering from low back, lumbar pain. The pursuer's position was that he presented on each occasion with lumbar pain and clear, unmistakable signs of neurological involvement. Any SHO exercising reasonable care would have recognised that the signs indicated the presence or imminent threat of cauda equina syndrome and would have referred the pursuer on for further investigation either by a senior doctor in Accident and Emergency or to an orthopaedic surgeon. These further investigations would, on the balance of probabilities, have revealed the presence or imminent threat of cauda equina syndrome and the pursuer would probably have been treated urgently by surgery to achieve decompression. The likelihood was that the pursuer would have made a good recovery.[27] Counsel pointed out that none of the medical witnesses disputed that, if the pursuer did in fact present with the complaints which he maintained he did present with and if he also was exhibiting certain neurological signs as described by him (and corroborated by others) in evidence, then any reasonably competent casualty officer exercising reasonable care would have recognised the risk that cauda equina syndrome was developing and would have referred the case on for further consideration by a senior and more experienced doctor.
[28] It was fully accepted that the condition was rare. However, as the pursuer's GP had put it, it was a condition that was so serious potentially, that a doctor was always on the lookout for it; in that respect it was analogous to meningitis. Dr Abernethy thought that was a good analogy and confirmed the general proposition. No one contradicted it. Counsel referred in detail to the evidence of Dr William Tullett and Dr Keith Little (both experts in A & E medicine and practice; their CVs are in process), which broadly indicated that if there was low back pain accompanied by certain signs, including any loss of sensation or altered sensation in the perineum area, then these symptoms were to be regarded as "red flags" for cauda equina syndrome. Indeed, counsel was able to show, and there is no dispute about this, that Dr Hanif and Dr Holder themselves both accepted that if the pursuer had indeed presented with the symptoms that he says he presented with, then those symptoms would have pointed to an immediate risk of cauda equina syndrome and would have necessitated referral on for more expert examination, diagnosis and, if appropriate, surgical treatment. He accepted that, in the circumstances of this case, the issue was essentially one of fact. The issue was really about the condition of the pursuer when he presented at each of the two hospitals involved, what he told the doctors who examined him there, what his observable condition was, what the doctors observed and should have observed when he was in their care, what inferences they should have drawn from all the material thus before them. The evidence of the pursuer and his witness showed that there were red flag symptoms that no senior house officer of reasonable competence would have missed; yet in each case the examining casualty surgeon had missed, or in any event behaved as if he/she had missed, the telltale signs of the serious condition from which the pursuer was in fact suffering. The pursuer contended that each of the doctors was negligent. The case against each was separate. Plainly, however, if Dr Hanif was negligent at Hairmyres Hospital in failing to act in relation to red flag signs that should have been discovered at that stage, then, because it was clearly accepted in evidence that the condition would not improve but would deteriorate over time, it would follow that Dr Holder was also negligent in failing to recognise the same or worse signs some 30 hours later. The pursuer was entitled to succeed if either doctor was negligent, or both. He acknowledged that the pursuer's position was perhaps stronger in relation to the matter of causation if negligence on the part of Dr Hanif was shown; for the reason that, if only Dr Holder was shown to be negligent, then, because her negligence would have occurred fairly late on the evening of Sunday 8 February 1998, difficult questions might arise as to whether or not there would have been time to deal with the situation before the dramatic collapse of the pursuer shortly before 9am on Monday 9 February. However, the evidence pointed to negligence on the part of each of the two doctors.
[28] He turned to the question of what the pursuer had said on each occasion. He also asked the Court to consider what signs there were, and indeed must have been, present on the occasions on the Saturday and Sunday when he went to hospital. It was also necessary to take account of what the hospital notes recorded of the interaction between the pursuer on the one hand and the medical staff on the other. It was also possible, he submitted, to look at the disputed issues of fact in the light of the evidence that emerged after the pursuer collapsed and was taken to the Victoria Infirmary and the Southern General Hospital. Although he did not submit that hindsight could have a bearing upon the alleged negligence of the doctors who saw the pursuer on the Saturday or the Sunday, it was still possible for this Court to take account of the fact that it had been shown that the pursuer did in fact suffer from cauda equina syndrome; that was abundantly clear from all the evidence from the Victoria Hospital and the Southern General Hospital in Glasgow. Nor was it in dispute. [I should note, however, that Mr Mitchell did not submit that the evidence led supported the averment in the final sentence of Condescendence 6: there was no evidence to prove that averment.] He referred to various statements in the learned articles that had been lodged in evidence and spoken to by Dr Abernethy. They indicated that the condition, though it might have an acute onset, could also develop over a longer period, possibly 72 hours or even more. Indeed the development over such a period of time appeared to be more common that a sudden or acute onset of the condition, which was what the defenders averred happened in the present case. If the condition had developed gradually, then the symptoms would have appeared over a period of days and would have worsened. If that were the true situation then the red flag symptoms would have been present, as indeed the pursuer's evidence showed that they were; and there could be no excuse whatsoever for the doctors who saw the pursuer in Hairmyres Hospital or in Law Hospital to miss the highly significant signs.
[29] The evidence of the pursuer, of Jacqueline Brown, his girlfriend, and of his brother Alan Patterson, taken along with certain significant entries in the hospital records, made it absolutely plain that the condition had in fact developed over a substantial period of time, starting before the pursuer's attendance as Hairmyres Hospital. The developments spoken to by the pursuer and corroborated in part directly and in part on the basis of acceptable hearsay by Jacqueline Brown and Alan Patterson, and supported by the significant entries in the hospital records, all showed a classic pattern of development of cauda equina syndrome over a period of days. He referred to the recording of a report of "pain" in the testicles; as Dr Little's evidence showed, male patients did not usually distinguish between the scrotum and the testicles when reporting or describing symptoms. What the pursuer had reported, however, was not pain, but altered sensation in a significant area, and that was what was important. He had also reported "tingling" on arrival at Law Hospital. In relation to such entries, which the experts acknowledged pointed to the presence of compression, it was inconceivable that the pursuer had invented these symptoms at the time. At that time, as a layman, he could not possibly have appreciated what the symptoms of his underlying condition were, whatever he may have learned subsequently about such matters, after his admission to the Southern General Hospital and since that time. One of the classic red flag symptoms was altered sensation in the scrotum. It would be inconceivable that the pursuer should describe such symptoms at hospital unless he was conscious of them. There was no reason to disbelieve the pursuer and his witnesses, and no good reason had been advanced in cross-examination for suggesting that their evidence was untruthful, was the product of some conspiracy, or was in any other way unreliable except in matters of unimportant detail.
[30] The pursuer's evidence as to the attitude of the two doctors was, he submitted, entirely understandable and acceptable. It fitted in with the picture of their whole approach to the pursuer as a patient. Dr Hanif had appeared to be blasé and off-hand. He had been dismissive of the pursuer and addressed him in terms that suggested that the pursuer was somehow wasting the doctor's time. He had been easily distracted by going off to deal with another patient and the pursuer was well entitled in the circumstances to feel that he had not received satisfactory treatment. The symptoms that he had described at Law Hospital, including the progressive deterioration of his condition, were also symptoms that he could hardly have been invented by a layman, according to Dr Abernethy, because a layman simply would not have had the knowledge to say what the pursuer said: that observation applied not just to what he said to his witnesses but also to several significant entries in the hospital Notes. In particular, reference was again made to the altered sensation in the area of the testicles (erroneously recorded, he submitted, as "pain"), the tingling sensation and the pain on straight leg raising. If the evidence of the pursuer in relation to what his condition was when he arrived at the hospitals, and what he said about its history, was accepted on the balance of probabilities, then the Court could not avoid a finding of negligence on the part of the doctors.
Notes of the Evidence
[31] Counsel for the pursuer had prepared a typed and detailed note of the evidence of the pursuer, Jacqueline Brown, Alan Patterson, Dr Hanif and Dr Holder. These excerpts were in fact used by both sides and, in my view, they contain a reliable note of the evidence of which these witnesses gave: they supplement my summaries in earlier paragraphs. Counsel made particular reference to the evidence and the manner of giving evidence of Jacqueline Brown and Alan Patterson and asked the Court to hold that they were credible. Dr Hanif was absolutely new to the job. His manner, according to the pursuer, had been off-hand and dismissive. The irresistible inference was that when Dr Hanif conducted the examination, prepared his notes and arrived at a conclusion, he was simply "going through the motions", because he had, from the very beginning, formed a view that the pursuer was effectively wasting his time. Dr Holder similarly had reacted in a very odd way when the pursuer came to hospital. She had given him the impression that, when he said to her that he had certain abnormal symptoms affecting his private parts, he was making a prurient request for her to examine his private parts. The evidence of the pursuer about her attitude fitted the picture of a doctor going through the motions in respect of a matter that she had initially thought to be of no great significance. He acknowledged, however, that it was clear from the medical records that the doctors did in fact carry out at least some of the necessary tests; the carrying out of these tests should have revealed (and according the pursuer did in fact reveal) symptoms that were highly significant; yet the doctors failed to record these findings and miss the "red flags" that were evident when the pursuer arrived at each hospital. The signs were there and the tests that were carried out should have disclosed them, and indeed did. In each case, the correct interpretation must be that the doctor concerned had not taken the pursuer seriously and had ignored the significance of what was by then obvious to any senior house officer exercising reasonable care. The hospital Notes in each case were below standard, and that pointed in the same direction, namely that the doctors were taking a careless approach. There was no reason to reject the evidence of the pursuer's brother that as they drove to hospital on the Sunday night, the pursuer had serious problems of loss of sensation in the testicles; he had said, "I cannae feel my balls". There was ample evidence to corroborate the pursuer's account of his great and increasing difficulty in walking and his dragging of his feet. These themselves were telltale symptoms that should have been observed by the medical staff, and, in particular, by the doctors now accused of negligence. He was not accusing the doctors of deliberately setting out to falsify the hospital records. He was submitting that they did not take the pursuer seriously and simply went through the motions of making the examinations, writing down an account of the results of the examinations consistent with a diagnosis that was inadequate and had been arrived at without the exercise of due care and without taking account properly of the pursuer's history and condition on presentation. He submitted that each of the doctors was an unsatisfactory witness in the witness box. Dr Hanif had paused long and often in giving his evidence. He had, at one stage, claimed to remember parts of what happened when the pursuer attended at Law Hospital but had backtracked on that and accepted that he remembered nothing of it. Dr Holder, counsel claimed, gave her evidence in an arrogant and offhand manner.[32] With reference to other entries in the hospital Notes, counsel pointed out that there were clear errors and discrepancies between the known facts and some of the entries. There was no good reason to prefer the entries in the Notes to the evidence of the pursuer insofar as they were in conflict. Counsel referred in detail to the evidence of Dr Abernethy and to the learned articles spoken to by Dr Abernethy and lodged in process, to indicate that if had there been appropriate treatment administered prior to the pursuer's collapse shortly before 9am on Monday 9 February 1998, then the pursuer would probably have made an excellent albeit incomplete, recovery. It was not suggested that the pursuer would have returned to full health with free use of his back such as he enjoyed before in February 1998. However, he would have made a good recovery and there was every reason to suppose that he could done useful work for the rest of his normal working life, albeit he would not be able to tackle very heavy work that would put any serious strain upon his back. For the purposes of assessing damages therefore, it could be said that the evidence showed that the pursuer would eventually have made an excellent recovery and would have done so within a period of perhaps three months or not much longer. All the medical evidence showed the necessity and the value of early surgical intervention. It also showed that the earlier the prevention, the better were the prospects of recovery. Counsel went on to deal fully with the assessment of damages, a matter considered later.
Submissions for the Defenders
[33] In reply, Mr James Campbell, QC, for the defenders, accepted that the law that fell to be applied was that referred to by counsel for the pursuer. He also submitted that when the Court was faced with a conflict of expert evidence, particularly when there were two bodies of expert evidence each contradicting the other, the Court had to have a reason to prefer one body of expert opinion to the other. In this case, however, he did not dispute that there was very broad agreement between the experts, except in relation to one matter, namely the significance of a complaint recorded in the Hairmyres Hospital notes of "pain radiating into the testicles". He submitted that it was no part of the pursuer's case on record that pain in or radiating into the testicles was a sign or a symptom of a threatened onset of cauda equina syndrome. Furthermore, the pursuer himself had clearly rejected the suggestion that he suffered or reported such pain. In these circumstances, the Court should prefer the evidence of Dr Little on this matter and indeed of Dr Abernethy in preference to the evidence of Dr Tullett. [At this point in the submissions, however, Mr Mitchell QC rose to confirm that it was no part of the pursuer's case that he presented at Hairmyres Hospital with a complaint of "pain" in the testicles. The entries in the records recording such a complaint were erroneous, according to the pursuer's own evidence. Mr Mitchell confirmed that this allegedly reported complaint of "pain" in/into the testicles did not form part of the pursuer's claim: it was not submitted that negligence could be inferred from any failure of the doctors to attach due significance to the history by the patient of experiencing pain in, or into, the testicles]. In the circumstances, it is unnecessary for me to consider this matter in any detail.[34] Mr Campbell asked the Court to be very cautious about accepting as reliable and significant the evidence of Jacqueline Brown and Alan Patterson. Neither was present at the material time when the pursuer was in fact interviewed and examined by Dr Hanif or by Dr Holder. It is true that each of the witnesses gave independent evidence of observation of the pursuer's suffering and some of his symptoms and that evidence, of course, had to be weighed in the balance; but they had acknowledged that they had not been interviewed as possible witnesses until well after the events that they purported to recollect in such detail. It was absolutely plain from the pursuer's own evidence and indeed from the evidence of the contemporary record, that this was not a case where the doctors had failed to carry out the appropriate tests or to recognise the significance of the complaints and the history and indeed of the results of the tests that were carried out. The pursuer's own evidence was really to the effect that the testing which all the doctors agreed was necessary had been carried out. The pursuer was maintaining that the doctors had simply ignored that they were told and what they observed and must have observed. Accordingly, this was a case in which the evidence showed two different doctors in two different hospitals on two different days had in fact carried out the necessary examinations, and both had arrived independently at the same negative result. Furthermore, there was ample evidence from the entries made in the triage notes in relation to the pursuer on his arrival at each of the hospitals to contradict the suggestion of the pursuer and his witnesses that, on arrival at hospital, he was exhibiting serious and observable signs of being very unwell.
[35] It was odd, counsel submitted, that the pursuer regarded each of the senior house officers who met him only once as being off-hand or even gratuitously offensive in the ways he described, and as making up their minds virtually from the very beginning in each case. The pursuer had apparently taken offence on each occasion; but there was no justification for taking offence at what had happened. For example, Dr Hanif had apparently asked near the beginning of the examination, if the pursuer had been to his own doctor. That was a perfectly proper question and indeed was highly relevant to the doctor's task. It might have led to the discovery that the pursuer had been x-rayed or that he had been prescribed certain medicines, or that there were other matters that might have a bearing upon the correct diagnosis of his condition. The pursuer was quite wrong to regard that as a dismissive remark suggesting that he should not have come to hospital. Furthermore, the pursuer was plainly and avowedly indignant that he had not been sent for an x-ray, albeit another patient in the next cubicle had. However, as the pursuer acknowledged in the closed record, and in evidence, that other patient had come into hospital after a fall. Plainly, the sending of that patient for an x-ray was entirely appropriate on the balance of probabilities. There was clear evidence in the present case that an x-ray was not appropriate for a person who simply came in complaining of low back pain, connected with his work, which he had endured for a considerable period of time and for which he had earlier treatment. There was no sound basis for preferring the pursuer's alleged recollection of what happened on his visit to hospital to the evidence that was obtainable from the written records. There were no contemporary records at all of the pursuer's complaints other than those made by the triage nurses and by the two doctors in question. There was no case on record that the doctors were in any way negligent because their records were imperfect. All accident and emergency records, according to the expert evidence, were tended to be in shorthand and they no doubt could be improved. The pursuer's sense that there was something prurient about the brief exchange between Dr Holder and himself about the proposed examination of his scrotum was entirely subjective; there was no real basis in the evidence for his interpretation. Dr Holder rejected it completely. It had no significance in this case in relation to the alleged negligence.
[36] The absence of any observable build-up of "red flag" symptoms over a period of several days was further corroborated by reference to the evidence of Carol Kelly, the ambulance attendant, who saw the pursuer after his collapse and took him to the Victoria Hospital, and also of Dr Balmer, the first doctor to examine him there. The accounts that they recorded were inconsistent with any appearance of loss of sensation or bladder problems until after the pursuer had been seen by Dr Holder in Law Hospital on the Sunday night. The ambulance attendant had recorded:
"Male collapsed in street going into work. Not KO'd. has had lower back pain since Friday 6/2. Went to Law Hospital last night & given Co-codamol - didn't help. Started to experience loss of sensation in legs. Today is worse. Collapsed & became incontinent."
[38] According to the pursuer, from early on Saturday morning and right through the weekend, things got steadily worse and worse. He described the pain as getting worse, the sensation as being altered in a serious way and becoming incredibly painful. Yet at no stage did he go to see his own doctor. He finished his week's heavy work. Then, during both Saturday and Sunday, he appeared to have got on with his work as a driving instructor. Even when he arrived on the Sunday evening at Law Hospital, the triage nurse put him into category 4, which indicated clearly that he was not regarded by her as an urgent case. He was not prescribed any medication. He was not put on a trolley or into a wheelchair. These objective findings and Notes and the pursuer's behaviour generally were plainly inconsistent with the pursuer's account of being in a very, very poor condition on arrival at either hospital. There were contradictions between him and his brother as to the timing of events on the Sunday evening, and between him and Jacqueline Brown, for example, in relation to whether or not he had to be helped into his car on the Monday morning: he maintained that he had to be helped into the car by her and he could hardly lift his foot onto the pedal; Jacqueline Brown said that she had watched from the window as he got into the car, having previously advised him not to go and give a driving lesson or take the pupil for a test. The pursuer claimed that he was unfit to drive on the Sunday; yet on the Monday morning, when his condition certainly could not have improved, he had gone out driving to pick up and accompany a pupil. There was no dispute that if the pursuer's account of matters was accepted by the Court, then it followed that the doctors were negligent.
[39] However, on the balance of probabilities, the Court should conclude that the medical records were accurate and reliable and, if that were so, there could be little doubt that the doctors had responded appropriately to what was reported to them by the pursuer after what they had observed on examination. The Court did not have to choose between, on the one hand, holding that the pursuer had somehow entered into a conspiracy with his supporting lay witnesses and, on the other, holding that he was telling the truth. The Court had to weigh all the evidence and decide if the case was established on the balance of probabilities. In relation to the pursuer's capacity to describe significant symptoms when he came to the hospitals, the pursuer did not, according to the record, describe any symptoms pointing to cauda equina syndrome. His symptoms as reported, and as observed and recorded, in the context of his history and work, pointed simply to sciatica of a classic and usual kind. In contrast, however, by the time the pursuer was describing his symptoms to Dr Abernethy, in December 1999, he had been repeatedly examined and treated in several hospitals and plainly had the opportunity to pick up all the necessary information to enable him to describe matters in the way he did to Dr Abernethy. It was, however, of particular interest to note that in Dr Abernethy's report, No.6/18 of process, at page 2, there is recorded that the pursuer narrated to Dr Abernethy that he had difficulty passing urine for 48 hours. This was a highly significant matter in the diagnosis of cauda equina syndrome; however, the pursuer in evidence denied that he had had any such difficulty or that he had told Dr Abernethy about it; and the other evidence in the contemporary record plus what the pursuer himself said in evidence demonstrated that he had had not such difficulty until the Sunday night, after he returned home from Law Hospital, at the earliest. In this respect the pursuer's evidence was very clearly unreliable. He would also have been likely to acquire some knowledge of the probable symptoms of cauda equina syndrome from his visits to Hairmyres Hospital and Law hospital from the questions asked of him by the doctors there. Even if the name "cauda equina syndrome" had not been used, the questions by the doctors about symptoms would alert any intelligent patient to the symptoms that would be expected of a patient with the very serious back condition from which the pursuer suffered. This possible inference fitted in with Jacqueline Brown's statement that, on the Friday, the pursuer had simply complained about having a bad back; but after he had been to hospital his complaints became "more focused". Thus his ability by 1999, and since, to describe red flag symptoms was easily explainable. Counsel for the pursuer had properly taken the position, in accordance with the pursuer's evidence, that the pursuer did not complain of and did not have pain in the testicles, but maintained that when the hospital records referred to "pain" in the testicles that must in fact reflect some other complaint, which had been badly recorded in the records. However, the fact that the pursuer complained of 'pain' in the testicles was noted by the triage nurse and was noted separately by Dr Hanif. It was now accepted on behalf of the pursuer, and there was ample evidence to establish, that a reported symptom of "pain" in the testicles was not indicative of cauda equina syndrome; all the medical evidence showed that the nerve connection to the testicles had a different point of origin from that of the scrotum or the perineal area generally. These nerves were related to the part of the body from which the testicles descended about the time of birth. It was also plain when one looked at the detail of Dr Hanif's written note that it was significantly different, certainly more detailed than, the triage note. That meant that it was clear that he had not simply copied the history from the triage nurse. Thus he had described the pain in greater detail and then qualified its description as being "sharp" and "constant", as well as "radiating". This detail must have come directly from the patient to the doctor. In contrast, there was no reference in the triage note to sharpness or constancy in the pain. Counsel submitted that the criticisms of Dr Hanif and Dr Holder in relation to the way they gave their evidence and indeed the way they treated the pursuer were simply wrong. When one looked at the detail of what the pursuer said happened between him and them, it was plain that his reactions were almost entirely subjective and based upon some rather extreme reaction to perfectly routine and acceptable and remarks by the doctors.
[40] What was vitally important was that there was abundant evidence that doctors acting as SHOs in A & E would be on the lookout for symptoms of possible cauda equina syndrome. The two doctors here plainly were. There could be no other reason at all why Dr Hanif examined the S1/S2 dermatomes. The pursuer himself maintained that both doctors tested his scrotal area for sensation, and that both also required him to undergo a straight leg raising test; he said that he reacted abnormally, but they had recorded that he exhibited no abnormal reaction. Accordingly, there was no dispute that the necessary and appropriate testing was done; yet we were left with unexplained contradictions between the pursuer's assertions that he reported loss of sensation and the like, whereas the written record showing that sensation was intact and there were no signs pointing towards an underlying serious condition or a developing condition. Dr Holder did not claim to remember the patient or the incident but her understanding and explanations of her notes were reliable; Dr Tullett, on reading those notes, arrived at the same understanding as Dr Holder did, as the report 6/20 page 2, paragraph 2 disclosed. On the basis of the findings recorded by Dr Holder, the high water mark of the pursuer's case was that if, after examination, the doctor had any basis for concern, following a complaint of "tingling" which was not able to be confirmed by clinical examination, then possibly the doctor might have considered keeping the patient in overnight until the Monday morning. However, it was absolutely plain that if that had been done, it would not have resulted in the pursuer's being seen and treated before the collapse, which occurred before 9am on the Monday morning. The irretrievable damage occurred then, as all the evidence showed. It was quite clear that the pursuer had been examined thoroughly by each doctor. There was no basis whatsoever for suggesting that somehow each doctor, and for matter the other medical staff with whom the pursuer came into contact, had made serious mistakes in observing the pursuer or that they had wrongly recorded what had been observed or reported. No reason whatsoever had been advanced on behalf of the pursuer or appeared in the evidence to explain how the doctors' notes could have been in error on essential matters. The alleged errors could not have been the results of some pure accident because they were, in important respects, in direct contradiction of what the pursuer said.
[41] Mr Campbell made a close examination of the pursuer's evidence as recorded in the typed note referred to earlier and also examined the evidence of Jacqueline Brown and Alan Patterson. The observations that they claim to have made about the deterioration in the pursuer's condition and its gravity were simply inconsistent with anything observed by people in the hospital, including the two doctors, and indeed by the pursuer's behaviour.
Discussion
[42] It is clear from the summaries of the evidence, from the terms of the various medical records and from the averments (quoted in part) that there is no realistic possibility of reconciling the version of events presented by and on behalf of the pursuer and the version presented by the defenders - largely, but not entirely, based upon the entries made in the contemporary medical Notes. In my view, the overall differences in the two versions cannot be explained in terms of simple error. If the pursuer presented at the two Accident and Emergency Departments in the observable condition that he described on each occasion; if he gave, even approximately, the history that he says he gave, and complained of the symptoms that he says he complained of, to the various members of medical staff with whom he had dealings; if the responses to examinations for sensation, by pinprick, by straight leg raising, or otherwise, were what he alleges they were; then the medical Notes, and in particular those made by Dr Hanif and by Dr Holder, were a travesty. If these hypotheses were true, it would follow that both doctors not only ignored highly significant symptoms, whether they were reported or were demonstrable by examinations of the kind the pursuer says were carried out (or both), but that they also wrote up their contemporary Notes in a wholly false, highly misleading and dangerous way; they must have grossly misreported what the testing disclosed; they must have blatantly ignored or falsified the history given by the patient; they would be guilty of failing to observe, and to record, symptoms such as drop foot, difficulty in walking, intense and increasing pain, significantly altered sensation, and the inability to perform the straight leg raising tests satisfactorily. It would follow that each of them independently deliberately discharged with mere painkillers a patient who was exhibiting in an unmistakable and florid way several of the red flag symptoms of severe spinal compression heralding the likely onset of what they well knew to be a very serious condition, cauda equine syndrome.[43] It is necessary to ask how this could have happened. Both doctors were relatively recently qualified and inexperienced; but the alleged failures, whether by act or by omission, could hardly have been the consequences of inexperience: the alleged failures are much too positive for that to be the explanation. Each - independently - must have taken positive steps to ignore or suppress the evidence of their eyes, ears and the standard tests that they carried out. I can discover no reason in the evidence why they should have done so. Although they were newly qualified and therefore relatively inexperienced they both struck me as intelligent, well-trained and conscientious. Dr Hanif went on to become an F.R.C.S. after leaving Hairmyres. In the witness box, he came through as a very careful, thoughtful, measured person. He struck me as a person who regarded each patient as an individual who had to be treated with respect; he said that more than once, and did so in a manner that I found entirely convincing. I judged him to be confident of his own abilities; but he was obviously very careful. His caution shone through his evidence. Nothing in the evidence suggests to me that he would have been reluctant to seek a second opinion, had the patient's history, complaints or observable symptoms warranted it. One aspect of his evidence that did cause me some concern was the fact that, having noted that the patient was reporting a history of back pain radiating to testicles, and having correctly assumed that that complaint had to be treated as true, he eventually allowed the patient to be discharged without having satisfied himself as to the medical explanation for such a symptom. He was clearly satisfied that it had nothing to do with danger to the cauda equina. The results of his testing of the dermatomes made that clear to him. However, the expert medical evidence demonstrated very clearly that pain in, or radiating into, the testicles is not a symptom of spinal compression or cauda equina syndrome. Dr Keith Little, who was an outstandingly clear, coherent, balanced and convincing witness, explained - and did so without challenge - that "pain in the testicles is very different from pain in the scrotum". They are, he said, "very different entities and served by different nerve supplies as well". He was asked:
"Q. How do you see the significance of, 'Patient presenting with back pain and pain radiating into the testes'?".
He replied:
"To be honest I don't understand it. If it is pain in the testes, then the nerve supply producing radiation of pain to the testes is higher up in the lumbar area. Classically you get pain in or radiating to the testes if you get kidney stones - commonly - because the nerve supply to the two is the same: 'higher' is L1 or L2. If we are talking about a prolapsed disc at L4, L5, as we now know, then it does not make sense that it is producing pain in the testes."
This evidence is particularly interesting because Dr Little is here taking account of what later emerged as the full truth, as a result of the treatment and observations in hospital following the collapse. Dr Little later added:
"I could not explain 'pain radiating into the testicles' on the basis of a lumbar disc at lower lumbar level. Upper lumbar, perhaps one might think about it - but you have many other signs and symptoms associated with it - but because the patient has pain in the testes does not anatomically make sense, and is not related to an L4, 5 prolapsed disc ... As I have explained, nerve supply to the testes arises from higher up in the lumbar area. One would not expect pain in the testes with a prolapse of a disc at L4, 5, S1. Anatomically, I cannot put those two things together."
[In dealing with this matter I have not overlooked the fact that the pursuer denied reporting "pain" in the testicles and asserted that what he reported - and what the doctor must have observed, by testing - was "numbness in the scrotum".]
[44] Elsewhere in his evidence, Dr Little said of the complaint of pain in/into the testicles:
"It's a very unusual symptom. One would hope, expect, that it would stimulate the SHO to be perhaps slightly more careful in this apparently normal back pain than otherwise in the examination; and, in particular, to examine particular parts, particular reflexes and sensation in particular over the scrotum and perineal area, as is in fact reflected in the Notes, 'No abnormality in S1 & S2 region'. S1 supplies sensation to the outer part of the foot on either side - the sole of the foot and the outer part of the foot. S2 - sacral nerve number 2 - supplies sensation to the back of the thigh running up into the perineal area around the anus, shared with other nerves and the scrotum. That would suggest to me very clearly that those sensory areas have clearly been examined by Hr Hanif on this occasion. It's an unusual note to see S1 & S2 mentioned specifically in that sense ... One would be left looking for something objective as opposed to symptomatic - one would be looking for some objective evidence that there was neurological abnormality - and, according to these Notes, none was found."
He later added:
"What I would take from it [the entry in the Notes] is that the examination was carried out, and was almost better than I'd expect from a routine examination; it is very specific and reflects good clinical examination ...".
"I can't agree with that at all. In order to refer a patient to any speciality - in this case Orthopaedic - one has to have good reason with objective signs - in this case to convince an orthopaedic SHO or Orthopaedic Registrar that referral is justified. Without objective signs, and there are none recorded, in this patient, then the treatment would be - by Orthopaedics or by A & E - 'Send that patient home.'".
He added that the advice to the patient would be: if the symptoms worsened, to contact his GP.
"Simply because a patient presents with pain in the testes - unexplained, one has to agree - then there's no reason to refer that patient to Orthopaedics and one would get very short shrift from Orthopaedics if we tried to do so."
[47] Dr Holder struck me as a well-qualified, intelligent person with a strong personality. But I saw or heard nothing to imply that she was "arrogant" - as suggest by Mr Mitchell - or that she would create in her Notes a wholly false picture of the complaint and symptoms of a patient blatantly suffering from the classic symptoms of a condition needing immediate treatment.
[48] The improbabilities are doubled by the fact that the two doctors acted entirely independently in two separate hospitals on two different occasions. The other Notes, by triage nurses, the ambulance attendance and Dr Balmer, albeit of lesser significance, also point in the same direction, that the pursuer's condition when he went to Hairmyres and to Law was not the condition he avers on record or asserts in evidence. I have no reason to doubt that the Notes made by the medical staff, and in particular by Dr Hanif and Dr Holder, properly recorded the condition of the pursuer as reported by him, and as it was, when he was seen on the two occasions with which this case is primarily concerned. How it was that the pursuer and his witnesses later came to give an account of signs and symptoms wholly at odds with those recorded at the time by those who wrote entries in the Notes I am unable to determine. I do not consider that I have to. I have to determine this case on the balance of probabilities. What is clear is that the balance of probabilities overwhelmingly favours the general picture that emerges from the contemporary written medical records, particularly those made by Dr Hanif and Dr Holder. I attach little weight to the suggestion by Dr Abernethy that the pursuer could not, as a layman, have described the symptoms of what had not yet been discovered to be impending cauda equina syndrome unless he had in fact been suffering from such symptoms. The pursuer simply did not do so; the hospital Notes contain no record of real red flag symptoms for cauda equina syndrome. If they had done, and if the pursuer had been sent home despite them, then the case of negligence would have been unanswerable. By December 1999, when the pursuer first saw Dr Abernethy, he must have had plenty of opportunity to discover what the precursor symptoms for full cauda equina syndrome were. He could easily have picked them up from other patients, from the questions put to him by medical staff, from conversations with medical staff, from medical reference books or even from the Internet. It is not for me to come to any view about such matters, as they were not explored in evidence in any detail; however, the pursuer's knowledge of the typical symptoms at a later date does not yield the conclusion that he reported such symptoms in February 1998. It is at least a possibility that as he came to know the typical, or red flag, symptoms he gradually came to believe that he must have suffered from them and that he had indeed reported them to the doctors at Hairmyres and Law; because they did not act in a way that he felt or came to feel was necessary he came to the conclusion that they had not taken him seriously, that they somehow dismissed him as unworthy of proper attention. It is not unknown for people to convince themselves of the truth of matters that are not true, and indeed to reach the stage of quite genuinely believing that the facts must have been as they want them to be. It would hardly be surprising, in ordinary human terms, for a person who has suffered a grievous, unexpected and highly unusual blow to his health to feel deeply and genuinely that someone else must have been at fault. However, I repeat that my task is to look at the overall balance of probability, not to attempt to play the detective in relation to matters that the evidence did not establish. I merely point out that there are other possible explanations for the conflicts in the evidence in this case than some conspiracy on the part of the pursuer and his witnesses, on the one hand, or some callous and deliberate neglect of duty by two doctors, on the other. I do not consider that the pursuer was justified, on the basis of what the doctors said to him, to make the subjective assumptions that he apparently did make about their attitude to him.
[49] I consider that it is not necessary to go through the pursuer's evidence, listing individually and exhaustively the alleged symptoms and complaints that he now says he reported and/or had at the time in February 1998, and then tabulating alongside them the relative contemporary Notes, so as to examine each individually and in great detail. The gulf between the pursuer's version and that contained in the contemporary record is so great that such an exercise would serve little purpose. The complaints that are actually recorded, of matters that indicate some possible problem, do not, in the light of the expert evidence, point to a condition that required referral. I accept that the pursuer's actual, reported and observable condition on Saturday and Sunday 7 and 8 February 1998, including his own contemporary narrative of his symptoms and their history, is that described in the medical records which were created at the time (including those made after his collapse) - acknowledging that there are minor errors in some of those records, including the misspelling of his name, references to a fall or other such incident and varying inconsistent references to the history of his back problems. However, I should deal with the main, or significant, ones upon which his counsel founded.
[50] The pursuer said that he had very severe pain and could hardly walk to and inside the two hospitals. Apart from his brother and partner, there is no support for this. The hospital records are not consistent with such severity of pain. No severe pain is recorded and he was not dealt with at Reception or by triage staff as a person or given any means of support; he was given a low priority. He neither asked for nor received any help to get to the waiting area or to any cubicle for examination. Nobody at the hospital made any record of noticing the alleged drop foot, or difficulty in walking. The pursuer would not have it that he complained of pain in the testicles, despite the contemporary notes that he did. In view of the position taken by Mr Mitchell on this matter of "pain" in/into testicles, it might be thought that I have dwelt on it too much. But it is important because it is one of the few pointers on the matter of the credibility of the pursuer and Jacqueline Brown. They were both adamant that at home he spoke to her of numbness, not pain. Indeed she says that he asked her to "squeeze" his scrotum on the Saturday night; she did, and he still could not feel anything. He could hardly have asked her to "squeeze" such a sensitive area if he was in pain. Yet "pain" is what the triage nurse and Dr Hanif wrote down independently of each other. Those circumstances point, in my view, to some construction of evidence by the pursuer and his partner to demonstrate the presence of what the pursuer came to realise was a very significant red flag symptom. The pursuer also said in evidence that he experienced severe pain on straight leg raising: but the doctors' Notes lend no support to that. I believe them when they say that if the patient had complained of severe pain they would have recorded that expressly. The whole point of taking such notes is to record anything abnormal, anything that might point to some underlying pathology when put alongside other findings. There is abundant expert evidence that some pain on straight leg raising is a common symptom and is not in itself indicative of cauda equina syndrome. Indeed, Dr Tullett was somewhat dismissive of straight leg raising as a valuable guide for assessing a central disc prolapse. The evidence shows clearly that in a case of normal typical back pain, straight leg raising, by stretching the sciatic nerve, would produce increased pain. In relation to the entry in Dr Holder's Notes, "Pain aggravated by straight leg raise", Dr Little said that he attached no significance to this: "So I would interpret this finding as pain in the back from the muscles. It's a very general comment that. It's my interpretation". "Sciatica" is a diagnosis based on presentation of symptoms plus a positive history". In his view, pain on straight leg raising along with a complaint of back pain and pain down the leg had no relevance to a diagnosis of cauda equina syndrome.
"It simply confirms that the patient has difficulty in distribution of the sciatic nerve presumably due to pressure on one or more of the roots of the sciatic nerve as they emerge from the spine, so it is non-specific; it simply confirms the diagnosis of sciatica but has no more significance than that".
Conclusion
[52] On this basis, there is no inference of negligence to be drawn against either doctor. There is no medical evidence to support an inference of negligence against either doctor once the pursuer's version is rejected and that recorded in the contemporary Notes, and as further explained in evidence by their authors, is preferred. In my opinion, having regard to the onus upon the pursuer to prove negligence on the balance of probabilities, the pursuer's claim must fail.[53] For completeness I should repeat that if the pursuer had proved the factual background to be substantially as averred by him it would have followed that negligence was established against both doctors. On a balance of probabilities I would have been satisfied that, if the pursuer's version of the facts had been true, prompt action taken at Hairmyres, and even at Law, to have the pursuer urgently seen by specialists (whether in A & E or in Orthopaedics) would have been likely to result in early surgical intervention, sufficiently soon to prevent the onset of the final catastrophic syndrome.
Damages
[54] The pursuer explained that following his operation at the Southern General Hospital and the realisation of the catastrophic effects of the condition upon him, he developed a really bad attitude problem when he came home. He did not feel as if he was "all there". In addition, to the double incontinence, he had panic attacks. His libido remained but he had no sexual sensation. He took all his frustration out on Jacqueline Brown and his relationship with her was affected. He felt, and indeed stills feels, sorry for himself. He had a bad period of depression and distress. It got worse during the first year but afterwards improved. He and Jacqueline Brown were getting on much better now. He was well treated in the spinal unit where the atmosphere was good. However he got more and more withdrawn. He could not work and simply did not like being unable to work. At one stage he ripped up the portfolio of artwork that he had prepared for the Dundee Art School. Going to the Edinburgh College of Art had made a tremendous difference. The College was very helpful in every way and the staff were helpful. He did not like having to admit to himself that he was suffering from weakness. His depression had got a loss worse in the run up to the hearing of the proof in the present case. However, he made it plain that he would try his hardest. As he said "I cannae afford to give up". He appeared to me to be perhaps a little over optimistic about his prospects of teaching in the future; but I believe that he will face his problems with determination. He had had suicidal thoughts; but he had not in fact apparently attempted seriously to take his own life. The same picture emerges from the reports No. 6/10 and 7/1 of process by Dr Ian C. Matson and Dr Andrew K. Zealley respectively. It is unnecessary to do more than to take note of the terms of both reports. Although there are slight differences between them, it appeared to me that Dr Zealley hit the nail on the head when it was suggested that there were some differences between his conclusions and those of Dr Matson: he replied that he felt that perhaps he and Dr Matson were making some distinctions without any real difference. The only point upon which the two had a significant difference of emphasis was that Dr Matson thought that the likelihood of a recurrence of severe depression was 50%. Dr Zealley thought that the risk was less. He could not, of course, confirm that the pursuer had had severe depression earlier; but he was prepared to accept the finding of his colleague, Dr Matson, on that matter because Dr Matson had seen the pursuer on two occasions before September 2003, the month in which each doctor prepared the reports which are mentioned earlier. Dr Zealley thought that the likelihood that the pursuer would suffer from a substantial depression was perhaps 15-20% because of (1) his youth, (2) the illness was not "bi-polar", and (3) because there was an evident reason for the developing of the earlier depression, namely the catastrophic physical consequences of his condition. He explained that a bi-polar depression was one with bouts of elation and bouts of depression. My reading of the views of the doctors is that there is a significant risk of some recurrence; but it appears to me, in the light of my assessment of the pursuer himself, that the depression is unlikely to return if he succeeds in making a success of his chosen career in art and, with luck, in teaching. If, however, he fails in his ambitions to graduate and to teach, then it appears to me that the likelihood of some recurrence of depression is that much higher. It should also be noted, though I need not detail that evidence, that his sister, brother and Jacqueline Brown were able to confirm the considerable degree of depression and what Dr Matson called "personality change" in the year or two following the treatment in the Southern General. Dr Zealley considered that to call the effects upon the pursuer's moods - however dramatic - a "personality disorder" was to use the term somewhat loosely; but he did not challenge the views of those who observed the pursuer's low mood, low self-esteem and depression about his condition and his future. I refer to the opinions expressed by the two doctors in their respective reports. Subject to the comment about the likelihood of a recurrence of depression, I have no difficulty in accepting both opinions; I need not quote them in full in this Opinion.
Employment Prospects
[55] Dr Eric Grant, an employment Consultant, gave evidence in accordance with his report, No. 6/28 of process dated 25 September 2003. It should first be noted that in looking at the material which is dealt with very fully in that substantial report, Dr Grant did not seek to give any weight at all to the assessment made by the two psychiatrists, Dr Matson and Dr Zealley, and merely applied his own experience of partially disabled people when making his assessment of matters that were material to the prospects for the pursuer in the future. In paragraph 5.3 of the report he refers to the considerable disadvantage that the pursuer would have in competition with others for work as an art teacher. He would be less flexible in his teaching and would be able to operate only in classrooms that were wheelchair accessible and allowed wheelchair movement between student desks or workstations. Furthermore, his double incontinence would create an obvious problem for him as a teacher. He might require specialist facilities to enable him to do teaching work having regard to the physical limitation, which his condition imposed upon him. He also thought that the pursuer was optimistic about the prospects of finding work full-time. His own experience suggested to him that the work could well be regarded as exhausting and that the pursuer would find it difficult to cope with full-time teaching, including the physical tasks of moving and laying out materials or putting up pictures and the like. He also felt, from his experience of disabled people, that generally speaking persons suffering from similar paralysis tended to become worse rather than better as they aged and became less fit and therefore less able to cope with a full-time job, including teaching. He thought that even if the pursuer could start as a full-time teacher he would, much more quickly than any able bodied person, be forced to reduce to part-time teaching. That might occur within a few years. His prospects of promotion from the so-called "main grade" of the teaching profession into a higher supervisory grade or indeed onto the "chartered teacher scale" would be adversely affected by his condition. Furthermore, he noted that the pursuer would now be unlikely to be able to seek any teaching post before his late 30s. Accordingly the prospects of his being promoted were very much poorer than in the case of an able bodied person. He was plainly unable to perform any physical work of the character that he done before the illness in February 1998. Obviously, if one takes account of a material risk that the pursuer might suffer depression, then that would be an additional factor and it would have to be taken into account in the assessment of the future earning prospects of the pursuer.
Disputed Heads of Claim
[56] Those representing the parties have co-operated very well indeed in relation to the assessment of the damages that would be payable if the pursuer were held entitled to reparation from the defenders. Even in relation to the heads of claim in respect of which full agreement has not been reached, they have greatly assisted the Court by agreeing upon the basic elements of each such head of claim and have agreed the arithmetic.
Past Loss of Earnings
[57] The first matter that I have to determine is the period of time that would have been likely to elapse before the pursuer could have resumed working if he had received appropriate treatment for his back condition in time to prevent the onset of the grave and irremediable condition that was the direct consequence of the nerve damage that immediately preceded his collapse on the morning of 9 February 1998. The evidence on this point, as counsel for the pursuer acknowledged, is very thin. What is clear is that, on the foregoing hypothesis, the pursuer would probably have had to undergo the surgical removal of a disc or discs in order to avoid the acute and catastrophic onset of cauda equina syndrome. A substantial period of recovery and convalescence would inevitably have followed. As Mr Mitchell also accepted, the pursuer would have been most unlikely ever to recover sufficiently to perform heavy work of the kind that he was performing before 9 February 1998. Thus he would have been off work for a time, partly to recover and partly to seek and obtain lighter work. The calculations placed before me by counsel for the pursuer are made under reference to arbitrary periods of 3 months, 6 months and 12 months. The Court has to take a broad approach to assessing the likely period and the consequent loss, not least because the pursuer clearly was and is a man of some resilience and flexibility, and he would have been likely to do his best to get back into work; he did not strike me as a person who would sit around feeling sorry for himself. Accordingly, while I think that he would have been out of work for some months, I think that it would be reasonable to estimate that he would have returned to work, but doing supervisory/administrative or driving work by about 8 or 9 months after 9 February 1998. Some allowance must also be made for the fact that the past earnings basis of the calculations includes overtime payments that would probably not have been earned by the pursuer in lighter work. Taking a broad approach, I arrive at a net figure (including interest) of £85,000 for his past loss of earnings: this compares with the pursuer's figure of £95,360 down to the commencement of the Proof on 14 October 2003.
Future Loss of Earnings
[58] Although the arithmetic of the parties' calculations is clear, the estimating of future loss (otherwise referred to as 'prejudice to earning capacity') inevitably involves imponderables. I proceed on the basis that if the pursuer had had no cauda equina syndrome he would have been likely to work full time till about the age of 60, even with a weakened back. On the basis of the pursuer's calculations, which I accept, he would have earned £273,572. His possible earnings in his present condition I take from the same source as £122,240 (being the appropriate figure if he works until the age of 55). However, a modest deduction is necessary from the possible earnings figure allow for the possibilities spoken to by Dr Grant, particularly the possibility of his not finding work or at least not finding regular full-time work. I deduct about one-third from the figure of £122,240, leaving approximately £81,500. Deducting this from £273,572 leaves approximately £192,080.
Adaptation costs
[59] The Joint Minute records that "adaptation costs which are likely to be necessary at any new accommodation for the pursuer are agreed at £9,560".
Accommodation
[60] Paragraph 10 of the Joint Minute provides, " In the event of the pursuer being found entitled to full compensation for suitable accommodation costs, the appropriate figure under the Roberts v Johnstone [1989] 1 Q.B. 876 formula would be £148,000".[61] The issue is whether or not there should be any award at all in respect of a possible move to different accommodation, namely to a house on ground level, without stairs, with perhaps a small garden and involving a move to Edinburgh or nearby. There is no certainty that the pursuer would move to Edinburgh, though he plainly would like to. He, through his own efforts, does very well indeed at the present time in travelling the distances he does daily in order to attend his Art studies in Edinburgh, and it would certainly make life much more tolerable for him at least while he remains in Edinburgh, whether studying or seeking for or holding down a job as a teacher. There is evidence, uncontradicted, that job prospects in the Edinburgh for someone with the qualifications that he hopes to acquire are better that outwith that area. I should have thought that the job prospects for the pursuer, however, would not necessarily be better there as the competition is likely to be at least as severe there as elsewhere; and he is always going to be at a competitive disadvantage, for reason explained by Dr Grant. In the circumstances, I am not persuaded that I can treat this element, involving a permanent move to Edinburgh, as warranting a full award on the basis of the principles applied in the case of Roberts v Johnstone. At the very least it is somewhat speculative. I prefer in principle the submission advanced by Mr Campbell to the effect that the correct way to mitigate the pursuer's loss would be for him to rent accommodation in Edinburgh for the rest of the period for which he is likely to study there. Mr Campbell suggested £50,000, being approximately 4 years rent at the rate of £1,000 per month. There is no evidence before me on rents in Edinburgh, and the renting of a ground floor house which the tenant would be allowed to adapt to suit the special needs that the pursuer continues to have would obviously be a special category of rented accommodation. It is also necessary to add to the study period some time to allow the pursuer to seek and obtain work in an area that he could travel to without having to make the heroic efforts that he has to at the present time. Furthermore, if he had to move several times during a teaching career, the cost of adapting, and even "un-adapting" rented accommodation might have to be met more than once. So while I am forced to the conclusion that the Roberts v Johnstone approach is not the correct one, I lack the material to calculate on a sound, evidence-led basis, what the award should be. Even adding to Mr Campbell's figure in respect of the factors identified above, there is still a considerable gulf between the result derived in that way and the result derived from a Roberts v Johnstone approach. The fact that job prospects in the Edinburgh area appear to be better for the pursuer is also reflected to some extent in the factors that have been taken into account in estimating the future loss head of claim. Taking a broad approach, as I feel compelled to do, and seeking to allow for the many imponderables, including the possibility of the pursuer's having to adapt more than one property in the coming decades, I have chosen a figure of £100,000 under this head.
Assessment of total damages
[62] The total sum of the foregoing sums is as follows:
Solatium £115,000
Past loss of earnings £80,000
Future loss of earnings £192,080
Section 8 services and care costs £75,000
Adaptation costs £9,650
Accommodation costs £100,000
TOTAL £491,810
Pleas in Law
[63] I uphold the defenders' second and third pleas in law, and repel the pursuer's pleas in law. I shall assoilzie the defenders from the conclusions of the Summons.
