In Malone –v- Greater Glasgow and Clyde Health Board
 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
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
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.
Ms Malone sued the health board, alleging Dr McQuaker acted
negligently when he:
Discharged her from the haematology clinic;
Failed to see her after Dr Smith's referral; and
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
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.
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