The Inner House of the Court of Session has today upheld the decision of an Outer House judge that an NHS Health Board which had negligently failed to prioritise the investigation of a patient’s symptoms should nevertheless bear none of the financial liability for the ultimate consequences, all of which should be borne by the private surgeon who later operated on her.
The pursuer, “CAR”, presented herself to the Accident & Emergency Department of Ninewells Hospital, Dundee in February 2013 with pain and altered sensation in her lower quarters. The staff there thought she should be admitted for urgent investigation, but surgeon Professor Muftah Salem Eljamel overruled them, saying that an MRI should be undertaken only on a routine, rather than an urgent, basis, a decision that Ninewells admitted fell below the required standard of care.
When the MRI was undertaken it showed the patient had partial cauda equina syndrome, compression of the lower section of the spinal cord, which controls the motor function of the lower limbs, continence and sexual function.
Professor Eljamel operated on the patient in the privately-operated Fernbrae Hospital in April 2013. He did so negligently, causing permanent nerve root damage to her spinal cord with the effect that she will suffer lifelong debilitating symptoms.
The Lord Ordinary, Lord Uist, held in December 2021 that the effect of the failings of the surgeon at Ninewells was “vastly outweighed” by his negligence acting on his own account during and after the operation and, in terms of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940, section 3 (contribution among joint wrongdoers), that he should bear 100% of the liability for the pursuer’s damages which had been agreed at over £2.8 million.
The surgeon’s insurers (the MDDUS) appealed against the decision, arguing that he and Tayside Health Board should share the liability equally, both having been negligent and causation having been admitted by both. However, in a 14-page judgment issued today, the Second Division of the Inner House of the Court of Session ruled that the Lord Ordinary’s decision should stand. Delivering the Opinion of the Court, Lord Turnbull said, “[The Lord Ordinary’s] analysis of the causative responsibility for the pursuer’s injuries cannot be faulted.”
Calum and his junior Shane Dundas of Ampersand Advocates represented Tayside Health Board, and they were both instructed by Alison Sargent of the NHS CLO. The MDDUS was represented by Graham Primrose QC of Ampersand Advocates and Helen Watts of Axiom Advocates. Earlier in the case, the pursuer had been represented by Lauren Sutherland QC of Ampersand Advocates and Tracey Brown of Themis Advocates.