Calum H S MacNeill QC

Calum MacNeill QC succeeds in obtaining 0% apportionment of liability for health board in medical negligence case


A health board which admitted liability to a patient jointly with a private doctor for serious personal injuries suffered by her has had its contribution for the award of £2.8 million damages assessed at 0%, with the doctor bearing 100%.

Carolyn Almond-Roots attended the Accident and Emergency Department of Ninewells Hospital in February 2013 complaining of pain and numbness in the leg and buttocks. Acting in the course of his employment with Tayside Health Board, Professor Muftah Salem Eljamel ought to have recognised the potential for damage to the patient’s lower spinal cord (cauda equina syndrome) and arranged for an urgent MRI scan. Had he done so, the hospital admitted, it would have been carried out within 48 hours and surgery would have followed. It was also admitted that the legal presumption that such surgery would have been carried out competently meant that the patient would have made a full or near-full recovery.

Instead, the neurosurgeon arranged routine follow-up with the MRI being carried out some time later and showing a requirement for surgery. The surgery took place in April at Fernbrae Hospital, a private hospital which has since closed down. On behalf of the surgeon it was admitted that after surgery the patient’s condition worsened and, instead of arranging an emergency scan, nothing effective was done for three days after which time an MRI performed back at Ninewells disclosed permanent serious damage.

The defenders jointly settled with the pursuer for over £2,800,000 but could not agree an apportionment between them in accordance with the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940, section 3(1) which gives power to the court to apportion liability between “joint wrongdoers”. On behalf of the doctor in his private capacity, the court was asked to split liability equally. The health board argued it should be apportioned 100% to the doctor and 0% to it.

After a proof at which all evidence had been agreed by Joint Minute, Lord Uist issued a 32-page Opinion [Opinion dated 21.12.21] in which he considered the tests of moral blameworthiness and causative potency. In relation to each, he held that that of the hospital was “vastly outweighed” by that for which the hospital was responsible. In the event, the delay in arranging the first scan did not cause significant harm to the pursuer and the neurological harm caused was nil. The negligence at Fernbrae during and after the operation caused the nerve root injury. Although the negligence at Ninewells was part of the sequence of events leading up to the negligent surgery at Fernbrae, and without which it would not have happened, that did not mean that it was just for the health board to contribute to the damages for the negligent operation.

The pursuer was represented by Sutherland QC and T Brown; the doctor was represented by Primrose QC and Watts; and the health board was represented by MacNeill QC and Dundas.