UK: Hand On Heart: Credibility Of Pursuer's Evidence Crucial To Causation In Consent Cases

Last Updated: 19 April 2017
Article by Graeme Watson and Karen Rowney

In Malone –v- Greater Glasgow and Clyde Health Board [2017] CSOH 31, the Court of Session considered informed consent to diagnostic medical procedures. The pursuer cited Montgomery –v- Lanarkshire Health Board and claimed her doctor failed to warn of the risks in not undergoing an echocardiogram ("ECG"). Was that sufficient to amount to a breach of duty?

The Facts

In 2002, 25-year-old Melissa Malone was anaemic. Despite six months of extensive investigations, no cause was found. In September 2002, her consultant haematologist, Dr Parker, arranged an ECG and a referral to an infectious disease consultant, Dr Seaton, to exclude a heart infection called sub-acute bacterial endocarditis ("SBE"). Dr Parker did not think SBE was likely, but had exhausted her haematology investigations and was "scraping the bottom of the barrel" to find a diagnosis.

After examining her heart, Dr Seaton found no clinical grounds to suspect SBE. He wrote to Dr Parker to report his findings and arranged a review in six weeks.

Ms Malone did not attend her review with Dr Seaton. She also failed to attend for her ECG on 7 October 2002. She then missed three follow up appointments at the haematology clinic. By December 2002, she had not engaged with haematology for four months. The department head, consultant haematologist Dr McQuaker, reviewed her notes. He wrote to her GP, Dr Smith, to say no further appointment would be made but she could be referred again if necessary.

Ms Malone did not see Dr Smith again until March 2003, when she complained of new symptoms of tingling and pain in her right arm and blueness to her fingers. Dr Smith immediately referred her back to Dr McQuaker, who took the unusual step of telephoning Dr Smith to discuss the case. Dr McQuaker suggested a referral to the rheumatology department, as the symptoms suggested a vascular condition. Dr Smith agreed and a rheumatology appointment was set for November 2003. She did not attend.

On 27 October 2006, Ms Malone suffered a stroke. An atrial myxoma – a rare, benign tumour – was discovered in her heart. A piece of tumour had broken off, created an embolus and caused the stroke. Atrial myxomas are detectable by ECG. Had Ms Malone undergone one in 2002, the condition would have been found and she would have been treated. Her stroke, and the serious health problems that followed, would have been avoided.

The Arguments

Ms Malone sued the health board, alleging Dr McQuaker acted negligently when he:

  1. Discharged her from the haematology clinic;
  2. Failed to see her after Dr Smith's referral; and
  3. Failed to explain to her the risks inherent in not undergoing an ECG, first in December 2002 and again in May 2003

She relied on the Supreme Court decision in Montgomery in support of her assertion that he had a duty to explain those risks. She said that, had she known the ECG October 2002 concerned the health of her heart, she definitely would have attended.

In response, the health board attacked the robustness of Ms Malone's expert evidence and highlighted flaws in her haematologist's reasoning. They argued Dr McQuaker had not departed from the standard practice of a consultant haematologist acting with reasonable skill and care. As SBE had been eliminated, Dr McQuaker considered there was no ongoing requirement for an ECG.

The Decision

Lord Brailsford agreed with the criticisms of Ms Malone's expert and concluded Dr McQuaker had not departed from ordinary practice, either when discharging her or when suggesting a referral to rheumatology. He found Ms Malone would not have attended for an ECG, even if Dr McQuaker had warned her of the seriousness of the condition the test was designed to exclude. She had given no plausible explanation for missing multiple medical appointments and was an unreliable witness. She had failed to prove her case.

While Montgomery brought a more patient-centred standard of care in consent cases, both breach of duty and causation remain significant hurdles. The pursuer's evidence about what she would have done if properly informed is crucial to causation. Careful cross-examination on this point by defence counsel will often be the key to a successful defence.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Graeme Watson
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