ROBIN DONALD and OTHERS against AYRSHIRE & ARRAN HEALTH BOARD and OTHERS 2013

A Successful Outcome

It is well recognised that to succeed with a medical negligence claim is extremely difficult in light of the very high legal test that requires to be met as set out in the case of Hunter v Hanley 1955 SC 200. Even if that hurdle is overcome by obtaining an independent expert report supportive of substandard care, the link between that substandard care and the loss suffered (causation) still requires to be established.

We acted for the Donald family over a period of 10 years in relation to the death of Mrs Donald in 2003. The allegation of medical negligence was in two parts - (1) A claim against a vascular surgeon for alleged failings when reporting on the outcome of a leg scan a couple of years prior to the death; and (2) a claim against the partners of the GP Practice, which the late Mrs Donald had been attending in the weeks prior to her death, for failures to make a referral to hospital with a suspected deep vein thrombosis (DVT).

Following a lengthy and difficult court hearing (Proof before Answer), during which the claim against the vascular surgeon was dropped following his evidence to the court, the Lord Ordinary (Lord Glennie) held that, in light of the factual evidence and independent expert opinion presented to the court,  the main GP involved in the care of the late Mrs Donald during the weeks prior to her death was negligent in failing to refer her to hospital for further investigation.

Despite that hurdle having been overcome, it was still necessary for the Pursuers to establish what would have happened if referral to hospital during the weeks prior to her death had occurred and, therefore, whether the death of Mrs Donald could have been avoided. In order to answer this question, further expert input was required. The key issue was whether there was a developing DVT during the weeks prior to death leading to the fatal pulmonary embolism or whether there was a sudden and massive embolism that caused the unpredictable and fatal outcome.

Lord Glennie, having given the matter considerable thought, ultimately preferred the evidence of the Pursuers' expert witness. He concluded that earlier referral to hospital would have resulted in a diagnosis of the DVT and appropriate treatment would then have resulted, avoiding the tragic outcome.

Although pleased with the successful outcome to their claim and the financial compensation received, the Donald family are left with the knowledge that the loss of their loved one was avoidable and, but for negligence on the part of the GP, Mrs Donald would have survived.