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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
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Lord President
Lord Macfadyen
Lord Mackay of Drumadoon
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[2007] CSIH 21
XA89/04
OPINION OF THE COURT
delivered by LORD MACKAY
OF DRUMADOON
in
APPEAL
from the Sheriffdom of South Strathclyde, Dumfries & Galloway
at Airdrie
in the cause
HELEN BARCLAY
Pursuer and Respondent;
against
LANARKSHIRE HEALTH BOARD
Defenders and Appellants:
_______
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Act: Hajducki, Q.C.,
Blessing ; Drummond Miller (for Trainor
Alston, Coatbridge)
Alt: Anderson Q.C., Scott ; Ranald F.
Macdonald, Central Legal Office
23
March 2007
Introduction
[1] During August
1987 the pursuer and respondent was referred by her General Practitioner to Monklands District General Hospital on account of problems with her
feet. On 9 December
1987 she was
seen as an out-patient at that hospital by Mr. Pringle, a consultant
orthopaedic surgeon, who was acting in the course of his employment with the
defenders and appellants. During the
course of that consultation the respondent was advised by Mr. Pringle that she
required to undergo an operation to her left foot and that at a later date she
would require a further operation to her right foot. It is a matter of agreement between the
parties that during the consultation Mr. Pringle did not inform the respondent
that conservative treatment of her feet was an option available to her. Neither did Mr. Pringle recommend to the
respondent that she should undergo a course of conservative treatment prior to,
or at least on the road to, her left foot being operated on.
[2] On 19
May 1988 the
respondent underwent an operation to her left foot. This operation took place in Monklands District General Hospital. It involved a bunionectomy, Helal
osteotomy on her 2nd and 4th metatarsals and fusion of
her 4th toe. The day before
the operation took place the nature and purpose of the operation were explained
to the respondent by Dr. C. Smart. The
respondent then signed a consent form in respect of the operation and "such
further or alternative operative measures as may be found necessary during the
course of the operation". During the
course of the proof in this action no evidence was elicited to suggest that
prior to the operation on 19 May 1988 the respondent was ever advised as to the
nature and extent of the risks associated with the operation, which Mr. Pringle
had advised that she required to undergo and in respect of which she had signed
the consent form. The operation on 19
May 1988 was
performed by Dr. S. Thajam, a surgical registrar, who was acting under the
direction and control of Mr. Pringle, who was present in the theatre throughout
the operation.
[3] Initially following
19 May 1988 it appeared that the operation to the respondent's left foot
had been a success. On 30
March 1989
the respondent underwent a further operation, this time to her right foot. This
further operation involved the removal of exostoses from the metatarsal head
and the base of the proximal phalanx of her right toe. It also appeared to have been successful. However,
during 1991 the respondent began to experience further problems with her left
foot. She was again referred to Mr.
Pringle whom she saw at Monklands District General Hospital on 23 August 1991.
After a number of further attendances as an out-patient the respondent
was advised to undergo a further operation to her left foot, on this occasion a
Fowler's procedure. That further surgery
was required to deal with deformities in the respondent's left foot which had
developed following the original operation on 19 May 1988 and as a consequence of that
operation.
[4] The
respondent underwent the Fowler's procedure on 31 October
1991. Since then the respondent has continued to
suffer from disabilities in her left foot. Those disabilities will be
permanent. The respondent's left foot is
about one inch smaller than her right foot and her ability to stand for a
lengthy period, to ascend and descend stairs, to walk normally and to maintain
her balance have all been compromised.
Outline of action raised
[5] During 1994
the respondent raised this action for damages against the appellants. In the written pleadings on her behalf it was
alleged that the disabilities in her left foot, from which she has suffered and
will continue to suffer, and which in turn had led to her suffering pain in her
right foot, on account of increased reliance on that foot, were caused by the
fault and negligence of Mr. Pringle, for which the appellants were
responsible. It was averred that
Mr. Pringle had been under a duty to deal with the problems the respondent
was suffering in her left foot in December 1987 by carrying out a bunionectomy
and thereafter by non-surgical means. It
was also averred that Mr. Pringle should not have instructed that Helal osteotomy
and fusion be carried out on the respondent's left foot. In the alternative it was averred that, if it
had been appropriate for Helal osteotomy and fusion to be carried out to the
respondent's left foot, Mr. Pringle had been under a duty to explain fully the
nature and extent of that surgical procedure to the respondent and to advise
her of the risks inherent in undergoing that procedure. It was also averred that Mr. Pringle had been
at fault in recommending to the pursuer that a Fowler's procedure be performed
and in failing to advise the pursuer of the nature of that further operation
and the risks attendant upon it.
Proof before the sheriff
[6] The action
went to proof before the sheriff at Airdrie in 2003. During the course of that proof the parties
reached agreement that the damages payable to the respondent in the event that
liability was established against the appellants should be £35,000, exclusive
of interest, which was to run from the date of the sheriff's interlocutor
following upon the proof. In the event,
by interlocutor, dated 10 June 2003, the sheriff assoilzied the
appellants from the crave of the initial writ.
In the course of doing so the sheriff made various findings in fact, in
particular, relating to the consultation with Mr Pringle which the respondent
attended on 9 December 1987.
The findings in fact made by the sheriff included the following:
"4. (The
appellant) was seen at the clinic by Mr. Pringle on 9 December
1987. She complained of pain in her toes
particularly of her left foot. She
believed the pain was caused by the bunions which she had on both feet. On examination Mr. Pringle noted that "in the
left foot there is an obvious subluxation of the MP" (meta phalangeal) [sic: it should be " meta carpo
phalangeal"] "joints with no
meaningful pull-through of the long flexor tendon to the tip of the minor
toes. The terminal IP (intermediate [sic :it should be
"inter"] phalangeal) joints of these toes are unstable, with laxity of the
collateral ligaments and there is a tendency for clawing of the toes, with
resultant corns over the prominences".
5. The
pursuer experienced at this time difficulties walking with high heels. Her feet felt uncomfortable when she wore
high heels. The bunions on both feet
caused pain. The condition of her feet
except when she was wearing high heels did not, at this time, affect her
ability to walk, climb or descend stairs, stand or maintain her balance.
......
7. On
9 December 1987 Mr. Pringle considered the possibility of a Helal osteotomy
being performed on the pursuer's right foot.
This was to occur at a later stage after the results of the projected
operation on the left foot were known.
......
9. On
18 May 1988 the pursuer gave her signed consent (production 6/3 at page
30) to the operation of "excision bunion + silastic replacement 1st
MTP; rotational osteotomy 2nd MT, fusion 4th IP joint all
on left foot". The nature and purpose of the operation were explained to her by
Dr C Smart and she consented to "such further or alternative operative measures
as may be found necessary during the course of the operation".
10. The
operation was scheduled to take place on 19 May 1988 and was carried out by Dr S Thajam,
a surgical registrar assisted by Dr Smart. ......
11. Mr
Pringle directed Dr Thajam to carry out a bunionectomy together with Helal
osteotomy on the 2nd and 4th metatarsals and PIP fusion
of the 4th toe of the left foot. The two kirschner (K) wires were
inserted through the sides of the metatarsal heads into the metatarsal shafts
proximally. The purpose of the wires was to hold the osteotomy site in position
post-operatively.
12. Dr
Thajam assessed the condition of the pursuer's left foot before he commenced
the surgical procedures. He concluded that the condition of the left foot was
such that it could only be corrected by surgery. He observed that the clawing
of the toes, the subluxation of the MP joints and the presence of corns showed
that the condition had already deteriorated to the extent that the pursuer had
developed a structural problem with her left foot which required surgery. Mr
Pringle who also examined the pursuer was of the same view and both considered
that the pursuer's conditoncondition was such that only by surgical
treatment involving a Helal procedure (described by Mr Pringle as a "rotational
osteotomy") could a possible cure for the problem be
obtained.
......
14. The
procedure adopted and followed by Dr Thajam and approved and directed by Mr
Pringle was one which a respectable body of medical opinion would have followed
in May 1988 for a patient with the pursuer's condition and symptoms.
......
18. The
pursuer returned to the Outpatient Orthopaedic Clinic on 1st, 15th
and 29th June when she was seen by Dr Thajam. X-rays on 15th and 29th
June showed satisfactory progress and healing. Prior to her discharge from the
clinic after her visit on 13th July 1988 the pursuer stated that she was very
pleased with the operative result. At that time her name was placed on the
waiting list for a similar procedure to her right foot.
......
20. On
1 March 1989 the pursuer again attended at the Out Patient Orthopaedic
Clinic when her left foot was found to be comfortable but somewhat stiff. She
complained of discomfort in her left foot and pain in the great toe. The possibility of a loose body at the MP
joint of that toe was noted. Her name was placed on the waiting list for
"exploration of the first MTP joint and removal of any arthritic changes".
21. On
30 March 1989 the operation to her right foot was carried out. ....
......
31. In
December 1987 the pursuer required surgical treatment for the bunion on her
left foot similar to that which she later underwent for her right foot in March
1989. There was a standard practice
amongst orthopaedic surgeons to propose conservative treatment for the
remaining complaints and symptoms which the pursuer had on 9
December 1987.
32. No
conservative treatment was proposed by Mr. Pringle on 9 December. No doctor of ordinary skill would in 1987
faced with the condition of the pursuer's left foot as it was on 9 December
1987 have not proposed conservative treatment prior to concluding that surgery
was the only option. It is unlikely that
had Mr. Pringle proposed conservative treatment the pursuer would have
agreed. While it would have possibly
alleviated pain it would not have cured the problem. Conservative treatment without surgery (other
than bunionectomy) would have prevented the pursuer returning to high heels or
fashionable shoes ever.
33. Had
the pursuer agreed to conservative treatment (other than for her bunion) it is
probable because of structural deformities that her left foot would have
deteriorated and the pain increased. She would then have required the same
operation which she underwent in 1988 to tackle her increased deformity and
pain.
34. By
19 May 1988 the deformities of the pursuer's left foot had developed to
the extent that she required surgery of the type and nature undertaken."
[7] The sheriff's
findings in fact and in law included the following:
"2. On
9 December 1987 the pursuer's left foot had bunions which could only
be dealt with by a bunionectomy.
3. Mr.
Robert Pringle, a Consultant Orthopaedic Surgeon employed by the defenders, and
for whose actings they are vicariously responsible, owed a duty to the pursuer
to discuss with her on 9 December 1987 the use of conservative treatment prior
to deciding to proceed to surgical intervention (other than a bunionectomy) for
her left foot. He failed in that duty.
4. If
Mr. Pringle had recommended conservative measures before surgical treatment
(other than the bunionectomy) it is unlikely that the pursuer would have
agreed.
5. On
19 May 1988 when the pursuer was scheduled for surgery (which included
the necessary bunionectomy) the condition of her left foot had deteriorated and
it had become so structurally deformed that a Helal osteotomy was justified and
appropriate.
6. The
condition of the pursuer's left foot would not have been improved had she been
offered and accepted conservative measures after 9 December. It would probably have deteriorated and she
would have required surgery to tackle the resulting structural defects. It is probable that the surgery would have
been the same as the pursuer underwent on 19 May 1988.
7. The
surgical procedure carried out on 19 May 1988 and the post operative care given by
the staff and doctors at Monklands District General Hospital (including Dr Thajam and Mr Pringle)
were both competent and appropriate."
Appeal to sheriff principal
[8] Following
upon the sheriff's decision assoilzing the appellants the respondent appealed
to the sheriff principal. Her appeal was
successful. The sheriff principal held
that the sheriff had not been entitled to make the finding in the third sentence
of Finding in Fact 32 and he amended the interlocutor of the sheriff dated 10
June 2003 as
follows:
"i. In finding in fact 9 by adding at the
end:
'Mr. Pringle did not warn the pursuer
of the risks associated with the operation which was contemplated when he saw
her on 9 December 1987 nor was she warned of these risks
shortly before her operation on 19 May 1988.'
ii. In
finding in fact 31 by adding at the end:
'On that date Mr. Pringle should have
recommended to the pursuer that she undergo a course of conservative treatment
for a period before recommending that she undergo an operation on her left
foot, other than a bunionectomy.'
iii. In
finding in fact 32 by deleting the words:
'It is unlikely that had Mr. Pringle
proposed the conservative treatment the pursuer would have agreed.'
iv. In
finding in fact 32 by adding at the end:
'Mr. Pringle should have recommended
to the pursuer that she should only undergo surgery (other than a bunionectomy)
as a last resort. He should have warned
her of the risks associated with the surgical procedures which he had in
mind. He failed to do so. Had he done so it is likely that the pursuer
would have agreed to try a course of conservative treatment for a period.'
v. In
finding in fact 33 by changing the last sentence to read:
'She may have required an operation
similar to the one which she underwent in May 1988.'
vi. In
finding in fact 34 by substituting for the words:
'she
required' the words 'it was not unreasonable to have carried out.'
vii. In
finding in fact and in law 3 by adding at the end:
'He should have recommended a period
of conservative treatment, should have advised her that surgical procedures
other than to deal with her bunions should be a last resort and should have
warned her of the risks associated with these procedures. His failures to take reasonable care for the
pursuer in these respects caused loss, injury and damage to her. The defenders are liable for the loss, injury
and damage which the pursuer sustained as a result of the fault of Mr. Pringle.'
viii. By
deleting finding in fact and in law 4 and by renumbering the later
findings in fact and in law
accordingly.
ix. In
the existing finding in fact and in law 6 by changing the last
sentence to read:
'If after a period of conservative
treatment it was decided that surgery was necessary the operation may [sic] have been similar to the one which
the pursuer underwent on 19 May 1988.'
x. By
adding an additional finding in fact and in law as follows:
'The pursuer is entitled to payment
by the defenders of damages for the loss, injury and damage which she
sustained, i.e. to payment of the sum of £35,000.'
xi.
In
the concluding part of the Sheriff's interlocutor by deleting from: "repels the
pursuer's pleas in law" to "assoilzies the defenders"
and by substituting therefor:
"Sustains the first plea in law for
the pursuer and the tenth plea in law for the defenders; quoad ultra repels the pleas in law for the pursuer and the defenders;
decerns the defenders to pay to the pursuer the sum of THIRTY FIVE THOUSAND POUNDS
(£35,000) with interest thereon at the rate of eight per centum per annum from
the date of this interlocutor till payment."
The present appeal
[9] The
appellants and defenders appealed against the interlocutor of the sheriff
principal dated 7 June 2004.
They did so on the grounds that the sheriff principal erred in law in
interfering with the sheriff's findings in fact and findings in fact and in
law; separately that the sheriff principal erred in law in finding that the
respondent would have agreed to try a course of conservative treatment; and
that he erred in law in finding that the respondent had suffered loss, injury
and damage as a result of the fault and negligence of Mr. Pringle.
[10] During the course
of his submissions, senior counsel for the appellants invited this Court to make
further alterations to the sheriff's findings in fact and findings in fact and
in law as follows:
"(1) In sheriff's Finding in Fact 31, in the sheriff principal's
amendment, delete "recommended to the pursuer that she undergo" and substitute
"discussed with the pursuer the possibility that she undergo";
(2) In
sheriff's Finding in Fact 32, (i) in the 2nd sentence delete "have
not proposed" and substitute "would have failed to discuss"; (ii) delete the 3rd sentence and
(iii) delete the sheriff principal's amendment;
(3) In
the Findings in Fact and in Law
(1) In
number 3 delete the sheriff principal's amendment.
(2) Delete
number 4
(4) In
the sheriff principal's amendments so far as not already dealt with delete (v),
(vi), (ix) and (x)."
[11] In the course
of his submissions senior counsel for the respondent submitted that this Court should
make the following amendments to the sheriff's findings, as previously amended
by the sheriff principal:
"(1) In finding in fact 6 by deleting the first sentence and the
word "He" from the beginning of the second sentence and replacing it with ",
Mr. Pringle".
(2) In
finding in fact 6 by deleting the words "and he", where they appear on the
third line and replacing them with the following ". She understood that she was to have a
bunionectomy. He".
(3) In
finding in fact 9 by inserting the word "not" immediately prior to the word
"explained" where it appears on the fourth line.
(4) In
finding in fact 33, by deleting the word "may" from the sheriff principal's
amendment and replacing it with "might".
(5) In
finding in fact and law 3 by deleting the words "discuss with", where they
appear on the third line and replacing them with the following "recommend to".
Submissions for the appellants
[12] Senior counsel
for the appellants argued that the interlocutor of the sheriff should be
restored. He submitted that the sheriff
and the sheriff principal had not been entitled to draw certain of the
inferences they had and that the sheriff principal should not have interfered
with the sheriff's finding that the respondent had failed to prove her case.
[13] However, it
was not argued on behalf of the appellants that the sheriff's finding of
negligence on the part of Mr. Pringle should be disturbed. Rather the argument was that the respondent
had failed to prove what she would have done had she received advice from Mr
Pringle about the possibility of receiving conservative treatment to her left
foot, before undergoing operative treatment, and a recommendation that she should
accept and cooperate with conservative treatment in advance of any operation. It
was pointed out that during the proof neither party had focused on the detail
of the advice that the respondent should have received from Mr Pringle. Senior counsel for the appellants founded on
the fact that the respondent had not been asked about these issues during the
course of her evidence. During the proof Mr. Pringle had been unfit to give
evidence. Dr. Smart had not been called
as a witness. The respondent, for her
part, had not been asked what she would have done if she had received advice
about conservative treatment. Moreover,
during her evidence the respondent had been unable to recall the meeting which
she had with Dr. Smart on 18 May 1988, during which she signed the consent
form for her operation the following day. In these circumstances, there had
been limited evidence before the sheriff about what should have been said to
the respondent by Mr. Pringle before the operation on 19 May 1988 and no
evidence at all from the respondent herself as to what she would have done in
the event that she had received advice and a recommendation about conservative
treatment from Dr Pringle. On behalf of
the appellants it was submitted that in these circumstances there had been an
absence of evidence before the sheriff to entitle the respondent to succeed in
her claim.
[14] It was also submitted
by senior counsel for the appellants that the test as to whether the respondent
would have accepted the advice relating to conservative treatment, which Mr.
Pringle had failed to give her, and would have agreed to undertake conservative
treatment was a subjective one (that is, what she as an individual would have
done in the hypothetical circumstances).
The onus had been on the respondent to satisfy the sheriff as to what
would have happened. For that reason it was essential that the sheriff should have
been placed in the position of being able to consider what the respondent had
said on these issues, even although such evidence would not have been an end of
the matter. He had not been. For these
reasons, the sheriff principal had not been entitled to make the alterations to
the sheriff's Finding in Fact 32, which he had done.
Submissions for the respondent
[15] On behalf of
the respondent, senior counsel argued that the sheriff's Finding
in Fact and in Law 3 meant that the respondent had not been presented by Mr.
Pringle with a choice which should have been available to her. Under references to the evidence of a number
of the witnesses, he addressed the Court on the detail of the changes in the
sheriff's Findings in Fact 6, 9 and 33 and Finding in Fact and in Law 3 that he
sought. He submitted that the Court had to look objectively at the issue as to
what the respondent would have done had she received the advice and recommendation
which she had not in fact been given. It
was submitted that looking at the matter objectively, there was no reason why
the Court should not hold that the respondent would have followed the advice
she should have received.
Discussion
[16] The starting
point for deciding as to the disposal of this appeal is the sheriff's
acceptance that prior to the respondent undergoing the operation on 19 May 1988
conservative treatment measures were not suggested to her. It follows that she
received neither advice nor recommendation as to such measures prior to
undergoing the operation that caused the disabilities from which she now
suffers.
[17] It is clear that
by December 1987 the respondent required to undergo a bunionectomy on each
foot. It is also clear from
Dr. Thajam's evidence that Mr. Pringle had recommended what should be done
during the course of the operation on 19 May 1988.
It is clear, and indeed a matter of agreement, that in December 1987 and
in May 1988 it would have been normal to advise a patient such as the
respondent that she undergo conservative treatment before proceeding to surgery
with the known risks of the operation which the respondent underwent on 19
May 1988. It was clear from the evidence that the sheriff
heard from Mr Mann, Dr Thajam and Mr. Espley (the expert orthopaedic surgeon
instructed by the defenders) that none of them suggested that any doctor acting
with ordinary care would have failed to recommend conservative treatment
initially.
[18] Having
accepted the respondent's uncontradicted evidence that conservative treatment
measures were never mentioned to her prior to 19 May 1988, the sheriff made a
number of Findings in Fact, including Finding in Fact 32, which was amended by
the sheriff principal, and Finding in Fact in Fact and in Law 3, which was also
amended by the sheriff principal.
[19] Before turning
to address the issue of what the respondent would have done, had she had been
advised as to the availability of conservative treatment measures, it is appropriate
to consider the preliminary issue as what advice and recommendation Mr Pringle
should have given. This involves a consideration of the terms of the sheriff's
Finding in Fact, as amended by the sheriff principal, in particular Findings in
Fact 31 and 32.
[20] We consider
that there is force in the submissions of senior counsel for the respondent
that the first sentence in Finding in Fact 6 should be
deleted and that Finding in Fact should be amended in the manner proposed.
Standing the fact that Mr Pringle was unable to give evidence and the Sheriff's
acceptance of the respondent as having been a credible witness, in the absence
of any entries in the hospital records which conflict with the evidence she
gave about her first consultation with Mr Pringle, there was no basis in the
evidence for the first sentence of Finding in Fact 6 to be in as broad terms as
it is. Those terms are capable of encompassing Mr Pringle having discussed with
the respondent the full extent of her condition as it is recorded in her
hospital notes. That would not accord with her evidence. Nor is there any basis
for not accepting her evidence as to her understanding during that meeting of
nature of the operation she was to undergo to her left foot.
[21] Turning to the
respondent's suggested amendment to Finding in Fact 9,
we are not disposed to accept it. We accept that during her evidence the respondent
had no recollection of her meeting with Dr Smart on 18 May
1988. Dr
Smart was not called as a witness. However, standing the terms of the consent
form which the respondent did sign on 18 May 1988, the sheriff was in our opinion
entitled to make the finding that he did.
[22] In our
opinion, the sheriff was also entitled to make Finding in Fact 31 in the terms
that he did. However, we consider that those terms did not go far enough. If,
as the sheriff found, it was standard practice amongst orthopaedic surgeons to
propose conservative treatment, it is reasonable to infer that the practice
would have involved more than merely mentioning the possibility of such conservative
treatment. In our opinion it is reasonable to infer that it would have involved
the giving of advice about the possible benefits of such treatment, coupled with
such advice as was appropriate as to the risks associated with the operative
treatment that was an alternative. Those risks were, of course, the subject of
an amendment to Finding in Fact 32, which the sheriff principal made and which
was accepted before this Court on behalf of the appellants. In this regard, we
agree with and bear in mind the views expressed by Hutchison J at page 289,
col. 2 of his judgment in Smith v
Barking, Havering and Brentwood Health Authority [1994] 5 Med LR 285 to the
effect that a surgeon who is an expert in the field and who is advising a
layman could not discharge his duty to give a full and proper description of
all the risks and advantages of the operation and the options open to the
patient unless he included within that advice a statement of his own views as
to the desirability of the operation.
[23] It is, in our
opinion, possible to engage in considerable speculation as to the precise
detail in which advice and recommendations could have been given by Mr Pringle.
However, in the absence of his evidence and bearing in mind that all the
professional witnesses who addressed this issue were doing so over 15 years
after the respondent first met with Mr Pringle, we consider it would be
artificial to seek to go beyond the approach the sheriff principal adopted when
framing his amendment to Findings in Fact 31. Moreover we do not consider it is
realistic to suggest, or to infer, that if Mr Pringle had proposed conservative
treatment to the respondent he would have limited himself to raising the
possibility of such treatment, as opposed to discussing the pros and cons of
such treatment, as compared with the pros and cons and risks associated with
the operative treatment that the respondent actually underwent. Having considered
the evidence that was before the sheriff, we consider it is probable that if Mr
Pringle had discussed conservative treatment with the respondent he would have
tendered advice, whether by volunteering it himself or in response to questions
from the respondent, to the effect that she should try conservative treatment,
not necessarily as a complete alterative to surgery, but before proceeding with
surgery. One reason for inferring that such advice would have been given is
that the respondent would have had nothing to lose by following it. In these
circumstances, having reviewed the evidence which was before the sheriff, we
consider that the sheriff principal was entitled to amend Finding in Fact 32 in
the terms that he did, which included findings that Mr Pringle should have
recommended surgery (other than bunionectomy) as a last resort, that he should
have warned her about the risks associated with the operation to her left foot
that he had in mind, that he failed to do so that if the respondent had been
advised of the availability of conservative treatment it is likely that she would
have agreed to try it for a period.
[24] We turn to
deal with the next issue of whether, had the respondent received advice about
trying conservative treatment measures, she would have accepted and acted on
that advice. On this issue we agree with the view of Hutchison J. at page 288
col.1 in the report of Smith v Barking
Health Authority that it should be decided on a subjective basis, namely by
deciding what the respondent, as opposed to a reasonable person in the
respondent's position, would have done. We also agree with Hutchison J. that on
this issue the onus of proof rested on the respondent.
[25] However, we see
no reason to interfere with the sheriff principal's decision to amend Finding
in Fact 32 in the terms that he did. He fully explains his reasons for doing so
in paragraphs 36 - 41 of the Note included in his Judgment. In our opinion, the
sheriff's assessment of the crucial issue as to whether the respondent would
have followed any advice or recommendation she had received about conservative
methods of treatment fails to take full account of the fact that, even if had
been appropriate for Mr Pringle to have advised the respondent that in the
longer term operative treatment might well be necessary, it was Mr Pringle's
duty to advise her that in the short term conservative measures of treatment
were available and should be attempted. Furthermore, the sheriff, in relying on
Mr Espley's evidence, failed to take account of the detail of that evidence,
which included reference to his experience that the female patients who
attended his outpatient clinic with forefoot pain had usually already tried
conservative measures of treatment, and wanted something more to be done, and
that Mr Espley had talked about patients not "accepting conservative measures
indefinitely" for foot problems such as those the respondent suffered from
(Notes of Evidence Volume V pp. 10 - 12). There is, of course, no finding in
fact that the respondent had undergone any conservative measures of treatment
prior to her first consultation with Mr Pringle. On the contrary, it is clear
from the respondent's evidence and her signing of the consent form that the
respondent agreed to undergo the operation which she understood from her
dealings with Mr Pringle she required. It is clear that the respondent
understood that she had been advised by Mr Pringle to undergo that operation
and that she was prepared to accept and act on that advice.
[26] Senior counsel
for the respondent invited us to make a small amendment to Finding
in Fact 33, which we are prepared to accede to. We are also persuaded that
Finding in Fact and in Law 3 should be amended as senior counsel for the
respondent proposed, but not in the manner senior counsel for the appellants
argued for. In our opinion, the sheriff was in error in taking the view that the
respondent required to show not only that she would have accepted and followed
the recommendation of conservative treatment, but that Mr Pringle's failure to
advise her about and recommend such treatment had caused her to require the
Helal operation and subsequently the Fowler's procedure. Standing the agreement
that the parties reached as to damages, if the respondent's disabilities were caused
by the operation she underwent on 19 May 1988, the fact that the respondent
might well have required to undergo a similar operation at a later date,
resulting in similar disabilities, does not mean that the respondent is not
entitled to recover the agreed damages of £35,000 in the event of her
establishing that she suffered loss on account of the fault and negligence of
Mr Pringle. For the sake of completeness we should indicate that we are not
prepared to accede to senior counsel for the appellants submissions that we
should otherwise alter the amendments made by the sheriff principal to the
sheriff's Findings in Fact and Findings in Fact and in Law.
[27] In the whole
circumstances we are satisfied that the appeal should be refused and that the terms
of the sheriff's findings in fact and findings in fact and law should be
amended as was proposed by counsel for the respondent during the course of his
submissions to us, with the exception of the proposed amendment to Finding in
Fact 9. Accordingly, subject to that
qualification, we are prepared to amend the findings in fact and the findings
in fact and in law in the terms that we were invited to do on behalf of the
respondent and refuse the appeal and thereafter affirm the interlocutor of the
sheriff principal dated 7 June 2004as amended.
[28] Having regard
to the provisions of section 32(4) of the Court of Session Act 19898 it is
necessary for this court to make the appropriate Findings in Fact and Findings
in Fact and Law. We propose to make the following alterations to the Findings
in Fact, as originally made by the sheriff and subsequently amended by the
sheriff principal:-
(6) Delete the first sentence and the
word "He" from the beginning of the second
sentence and substitute "Mr. Pringle". Delete
the words "and he" where they appear in the third line and substitute "She
understood that she was to have a bunionectomy. He"
(33) Delete the word "may" from the
sheriff principal's amendment and substitute "might"
[29] We also
propose the following alteration to Finding in Fact and Law (3), as made
originally by the sheriff and as subsequently amended by the sheriff
principal:-
Delete the words "discuss
with" where they appear in the third line and substitute "recommend to"
[30] [The
findings in fact as made by the sheriff, and as amended by the sheriff
principal and this Court, will be in the following terms:- set out in Appendix A to this
Opinion
[1] The pursuer is Mrs Helen Barclay who resides at 4B Wilson
Street, Airdrie. Her date of birth is 3
December 1949. She is in receipt of
state benefits.
[2] The defenders are Lanarkshire Health Board. They have responsibility for Monklands
District General Hospital and for their employees including Mr Robert
Pringle, a Consultant Orthopaedic Surgeon.
[3] By a letter dated 31 August 1987 (Production 6/3 at page 124)
the pursuer was referred by her general practitioner Dr Edward McCabe to the
Orthopaedic Out Patient Clinic at Monklands District General Hospital. The letter requested that the pursuer be seen
re the exostosis at her 1st left metatarsal joint. The referral to the clinic related to the
problems which she had in both feet.
[4] She was seen at the clinic by Mr Pringle on 9 December
1987. She complained of pain in her toes
particularly of her left foot. She
believed the pain was caused by the bunions which she had on both feet. On examination Mr Pringle noted that "in
the left foot there is an obvious subluxation of the MP" (meta phalangeal)
"joints with no meaningful pull-through of the long flexor tendon to the tip of
the minor toes. The terminal IP
(intermediate phalangeal) joints of these toes are unstable, with laxity of the
collateral ligaments and there is a tendency for clawing of the toes, with
resultant corns over the prominences".
[5] The pursuer experienced at this time difficulties walking
with high heels. Her feet felt
uncomfortable when she wore high heels.
The bunions on both feet caused pain.
The condition of her feet except when she was wearing high heels did
not, at this time, affect her ability to walk, climb or descend stairs, stand
or maintain her balance.
[6] Mr Pringle told her that she would need an operation on her
left foot (and later to the right foot).
She understood that she was to have a bunionectomy. He placed her name on the waiting list "to
have a silastic replacement of the first MP joint, with removal of the
exostosis". He noted that he thought
that the surgeon "should carry out flexor extensor transfers of the 2nd
and 3rd and possible 4th toes as fusion of the 4th
toe will be difficult". He also noted
that "she should have Helal osteotomies carried out to reduce the pressure
which she experiences on the sole of the foot".
[7] On 9 December 1987 Mr Pringle considered the possibility of a
Helal osteotomy being performed on the pursuer's right foot. This was to occur at a later stage after the
results of the projected operation on the left foot were known.
[8] The waiting time in 1987/88 for such an operation at
Monklands District General Hospital was at least five months and could be as
long as nine months.
[9] On 18 May 1988 the pursuer gave her signed consent
(production 6/3 at page 30) to the operation of "excision bunion +
silastic replacement 1st MTP;
rotational osteotomy 2nd MT, fusion 4th IP joint
all on left foot". The nature and
purpose of the operation were explained to her by Dr C Smart and she consented
to "such further or alternative operative measures as may be found necessary
during the course of the operation". Mr
Pringle did not warn the pursuer of the risks associated with the operation
which was contemplated when he saw her on 9 December 1987 nor was she warned of
these risks shortly before her operation on 19 May 1988".
[10] The operation was scheduled to take place on 19 May 1988 and
was carried out by Dr S Thajam, a surgical registrar assisted by
Dr Smart. They were acting under
the direction and control of Mr Pringle who was present during the operation.
[11] Mr Pringle directed Dr Thajam to carry out a bunionectomy
together with Helal osteotomy on the 2nd and 4th
metatarsals and PIP fusion of the 4th toe of the left foot. Two kirschner (K) wires were inserted through
the sides of the metatarsal heads into the metatarsal shafts proximally. The purpose of the wires was to hold the
osteotomy site in position post-operatively.
[12] Dr Thajam assessed the condition of the pursuer's left foot
before he commenced the surgical procedures.
He concluded that the condition of the left foot was such that it could
only be corrected by surgery. He
observed that the clawing of the toes, the subluxation of the MP joints and the
presence of corns showed that the condition had already deteriorated to the
extent that the pursuer had developed a structural problem with her left foot
which required surgery. Mr Pringle
who also examined the pursuer was of the same view and both considered that the
pursuer's condition was such that only by surgical treatment involving a Helal
procedure (described by Mr Pringle as a
"rotational osteotomy") could a possible cure for the problem be obtained.
[13] The Helal osteotomy involved the breaking laterally of the
bones in the metatarsals and the insert of the wires into the foot to support
the site until it is healed.
[14] The procedure adopted and followed by Dr Thajam and approved
and directed by Mr Pringle was one which a respectable body of medical opinion
would have followed in May 1988 for a patient with the pursuer's condition and
symptoms.
[15] Mr Pringle was throughout his care and supervision of the pursuer
acting in the course of his employment with the defenders. They are responsible for those actings.
[16] Following the operation of 19 May 1988 the pursuer's left foot
was bandaged and the K wires were left in place for 6 weeks until 29 June
1988. She was supplied with crutches and
used them until her condition allowed her to use walking sticks. For a period after the operation she was in
constant pain but this diminished and by 12 July 1988 she was mobilised
fully weightbearing without any discomfort.
[17] Initially after the operation the pursuer's walking, standing,
ability to climb stairs and balance was compromised. Her left foot was swollen to the extent that
it was a full shoe size larger than the right one.
[18] The pursuer returned to the Outpatient Orthopaedic Clinic on 1st,
15th and 29th June when she was seen by Dr
Thajam. X-rays on 15th and 29th
June showed satisfactory progress and healing.
Prior to her discharge from the clinic after her visit on 13 July 1988
the pursuer stated that she was very pleased with the operative result. At that time her name was placed on the
waiting list for a similar procedure to her right foot.
[19] On 30 November 1988 the pursuer, who had missed an initial
appointment on 9 November was seen at the Out Patient Clinic to assess her
right foot. At that time she complained
of some discomfort in her left foot. It
was noted that the pursuer had been wearing high heels and narrow foot slippers
and she was advised to wear broad forefoot flat-soled shoes. She was advised to defer any surgery on her
right foot for the time being and a further review was fixed for 1 March 1989.
[20] On 1 March 1989 the pursuer again attended at the Out Patient
Orthopaedic Clinic when her left foot was found to be comfortable but somewhat
stiff. She complained of discomfort in
her right foot and pain in the great toe.
The possibility of a loose body at the MP joint of that toe was noted. Her name was placed on the waiting list for
"exploration of the first MTP joint and removal of any arthritic charges".
[21] On 30 March 1989 the operation to the right foot was carried
out. The pursuer was seen at a clinic on
12 April 1989 when it was noted that the wound was nicely healed. She failed to attend a final review one-month
later but a letter confirming the position was sent by the hospital to her
general practitioner.
[22] In March 1991 the pursuer who had for some time experienced
gynaecological problems was referred by her general practitioner to
Dr Cassil's Gynaecological Clinic at Monklands District General Hospital.
[23] On 6 June 1991 because of problems which the pursuer was
experiencing with her left foot, her general practitioner asked Dr Pringle
(production 6/3 at page 116) to see her.
At that stage she found it difficult to walk.
[24] On 23 July 1991 the pursuer was seen at the Gynaecological
Clinic (production 6/3 at page 118).
She was in the process of moving house and there is no reference to
ambulatory problems.
[25] One morning in mid August 1991 the pursuer was unable to walk
because of the pain in her left foot.
After telephoning her general practitioner she visited Monklands
District General Hospital and uplifted crutches. At this stage the pursuer considered that
something was fundamentally wrong and that there could have been negligence in
the operation of May 1988. She consulted
with her family and spoke to a solicitor on 27 August 1991. He agreed to seek an independent medical
opinion. That opinion was not obtained
until after October 1991 by which time the pursuer had undergone the Fowler's
procedure referred to in finding 26.
[26] On 30 August 1991 the pursuer was seen by Dr Thajam at the Out
Patient Clinic in relation to the appointment sought by her general
practitioner on 6 June.
Dr Thajam carried out a detailed examination of the pursuer's left
foot (production 6/3 at page 18).
Mr Pringle was also present and saw the pursuer. Because of the structural condition of the pursuer's
left foot a Fowler's procedure was arranged and carried out on 31 October 1991
by Mr Pringle.
[27] The carrying out of the Fowler's procedure, which has left the
pursuer with permanent problems was both necessary and appropriate because of
the condition of the pursuer's left foot.
[28] Following the Fowler's procedure (which involved the removal of
medial sesamoid bone underneath the 1st metatarsal and also the base
of the proximal phalanx of the 4th toe) the pursuer's foot was
placed in a bandage. She can no longer
grip with her toes. Her ability to stand
for a lengthy period, to ascend and descend stairs, to walk normally and to
maintain her balance was and still remains compromised. She was supplied with crutches and thereafter
sticks. As the result of the Fowler's
procedure her left foot is about one inch smaller than her right foot.
[29] The pursuer thereafter moved to the London area where she was
treated by Miss Emma Supple, a podiatric surgeon, at St Michael's Hospital,
Enfield. She had chiropody and
concentrated conservative treatment including lesion debridement, strapping,
padding and insole and orthosis provision.
Despite advice that she shold only use the specially provided orthosis
and other appropriate footwear the pursuer failed to do so. She found the orthosis uncomfortable and
instead used fashionable footwear on occasions.
[30] The pursuer's right foot has suffered due to the increased
reliance placed upon it by the pursuer due to the condition of her left foot.
[31] In December 1987 the pursuer required surgical treatment for
the bunion on her left foot similar to that which she later underwent for her
right foot in March 1989. There was
a standard practice amongst orthopaedic surgeons to propose conservative
treatment for the remaining complaints and symptoms which the pursuer had on 9
December 1987. On that date Mr Pringle
should have recommended to the pursuer that she undergo a course of
conservative treatment for a period before recommending that she undergo an
operation on her left foot, other than a bunionectomy.
[32] No conservative treatment was proposed by Mr Pringle on 9
December. No doctor of ordinary skill
would in 1987 faced with the condition of the pursuer's left foot as it was on
9 December 1987 have not proposed conservative treatment prior to concluding
that surgery was the only option. While
it would have possibly alleviated pain it would not have cured the
problem. Conservative treatment without
surgery (other than the bunionectomy) would have prevented the pursuer
returning to high heels or fashionable shoes ever. Mr Pringle should have recommended to the
pursuer that she should only undergo surgery (other than a bunionectomy) as a
last resort. He should have warned her
of the risks associated with the surgical procedures which he had in mind. He failed to do so. Had he done so it is likely that the pursuer
would have agreed to try a course of conservative treatment for a period.
[33] Had the pursuer agreed to conservative treatment (other than
for her bunion) it is probable because of structural deformities that her left
foot would have deteriorated and the pain increased. She might have required an operation similar
to the one which she underwent in May 1988.
[34] By 19 May 1988 the deformities of the pursuer's left foot had
developed to the extent that it was not unreasonable to have carried out
surgery of the type and nature undertaken.
[35] The initial writ commencing this action was warranted on
1 August 1994 and served by postal citation on the defenders on 9 August
1994.
[36] A reasonable measure of the loss, injury and damage which the
pursuer has suffered in relation to her left foot is £35,000 inclusive of
interest.
[31] The findings
in fact and in law as made by the sheriff, and as amended by the sheriff
principal and this Court, will be in the following terms set out in Appendix B to this
Opinion:.
[1] The pursuer's claim in relation to the actings of Mr Robert
Pringle in December 1987 and May 1998 is not time barred. The pursuer's case falls within the terms of
section 17(2)(b) of the Prescription and Limitation (Scotland) Act 1973.
[2] On 9 December 1987 the pursuer's left foot had bunions which
could only be dealt with by a bunionectomy.
[3] Mr Robert Pringle, a Consultant Orthopaedic Surgeon employed
by the defenders, and for whose actings they are vicariously responsible, owed
a duty to the pursuer to recommend to her on 9 December 1987 the use of
conservative treatment prior to deciding to proceed to surgical intervention
(other than a bunionectomy) for her left foot.
He failed in that duty. He should
have recommended a period of conservative treatment, should have advised her
that surgical procedures other than to deal with her bunions should be a last
resort and should have warned her of the risks associated with these
procedures. His failures to take
reasonable care for the pursuer in these respects caused loss, injury and
damage to her. The defenders are liable
for the loss, injury and damage which the pursuer sustained as a result of the
fault of Mr Pringle.
[4] On 19 May 1998 when the pursuer was scheduled for surgery
(which included the necessary bunionectomy) the condition of her left foot had
deteriorated and it had become so structurally deformed that a Helal type
osteotomy was justified and appropriate.
[5] The condition of the pursuer's left foot would not have been
improved had she been offered and accepted conservative measures after 9
December. It would probably have
deteriorated and she would have required surgery to tackle the resulting
structural defects. If after a period of
conservative treatment it was decided that surgery was necessary the operation
may have been similar to the one which the pursuer underwent on 19 May 1988.
[6] The surgical procedure carried out on 19 May 1998 and the
post operative care given by the staff and doctors at Monklands District
General Hospital (including Dr Thajam and Mr Pringle) were both competent
and appropriate.
[7] The pursuer's left foot required further surgical treatment,
namely a Fowler's procedure, in August 1991.
That operation (which took place in October 1991) and her post
operational care was carried out competently.
The operation was appropriate for the condition of the pursuer's foot.
[8] The pursuer is entitled to payment by
the defenders of damages for the loss, injury and damage which she sustained,
i.e. to payment of the sum of £35,000.
Appendix A
[1] The pursuer is Mrs Helen Barclay who resides at 4B Wilson Street, Airdrie.
Her date of birth is 3 December 1949. She is in
receipt of state benefits.
[2] The defenders are Lanarkshire Health Board. They have responsibility for Monklands District General Hospital and for their employees including Mr Robert
Pringle, a Consultant Orthopaedic Surgeon.
[3] By a letter dated 31 August 1987 (Production 6/3 at page 124) the pursuer was
referred by her general practitioner Dr Edward McCabe to the Orthopaedic Out Patient Clinic at Monklands District General Hospital. The letter
requested that the pursuer be seen re the exostosis at her 1st left
metatarsal joint. The referral to the
clinic related to the problems which she had in both feet.
[4] She was seen at the clinic by Mr Pringle on 9 December 1987. She
complained of pain in her toes particularly of her left foot. She believed the pain was caused by the
bunions which she had on both feet. On
examination Mr Pringle noted that "in the left foot there is an obvious
subluxation of the MP" (meta phalangeal) "joints with no meaningful
pull-through of the long flexor tendon to the tip of the minor toes. The terminal IP (intermediate phalangeal)
joints of these toes are unstable, with laxity of the collateral ligaments and
there is a tendency for clawing of the toes, with resultant corns over the
prominences".
[5] The pursuer experienced at this time difficulties walking
with high heels. Her feet felt uncomfortable
when she wore high heels. The bunions on
both feet caused pain. The condition of
her feet except when she was wearing high heels did not, at this time, affect
her ability to walk, climb or descend stairs, stand or maintain her balance.
[6] Mr Pringle told her that she would need an operation on her
left foot (and later to the right foot).
She understood that she was to have a bunionectomy. He placed her name on the waiting list "to
have a silastic replacement of the first MP joint, with removal of the
exostosis". He noted that he thought
that the surgeon "should carry out flexor extensor transfers of the 2nd
and 3rd and possible 4th toes as fusion of the 4th
toe will be difficult". He also noted
that "she should have Helal osteotomies carried out to reduce the pressure
which she experiences on the sole of the foot".
[7] On 9 December 1987 Mr Pringle considered the possibility of a Helal
osteotomy being performed on the pursuer's right foot. This was to occur at a later stage after the
results of the projected operation on the left foot were known.
[8] The waiting time in 1987/88 for such an operation at
Monklands District General Hospital was at least five months and could be as
long as nine months.
[9] On 18 May 1988 the pursuer gave her signed consent (production
6/3 at page 30) to the operation of "excision bunion + silastic
replacement 1st MTP; rotational osteotomy 2nd
MT, fusion 4th IP joint all on left foot". The nature and purpose of the operation were
explained to her by Dr C Smart and she consented to "such further or
alternative operative measures as may be found necessary during the course of
the operation". Mr Pringle did not warn
the pursuer of the risks associated with the operation which was contemplated
when he saw her on 9 December 1987 nor was she warned of these risks shortly before
her operation on 19 May 1988".
[10] The operation was scheduled to take place on 19 May 1988 and was carried out by Dr S Thajam, a
surgical registrar assisted by Dr Smart.
They were acting under the direction and control of Mr Pringle who was
present during the operation.
[11] Mr Pringle directed Dr Thajam to carry out a bunionectomy
together with Helal osteotomy on the 2nd and 4th
metatarsals and PIP fusion of the 4th toe of the left foot. Two kirschner (K) wires were inserted through
the sides of the metatarsal heads into the metatarsal shafts proximally. The purpose of the wires was to hold the
osteotomy site in position post-operatively.
[12] Dr Thajam assessed the condition of the pursuer's left foot
before he commenced the surgical procedures.
He concluded that the condition of the left foot was such that it could
only be corrected by surgery. He
observed that the clawing of the toes, the subluxation of the MP joints and the
presence of corns showed that the condition had already deteriorated to the
extent that the pursuer had developed a structural problem with her left foot
which required surgery. Mr Pringle
who also examined the pursuer was of the same view and both considered that the
pursuer's condition was such that only by surgical treatment involving a Helal procedure (described
by Mr Pringle as a "rotational osteotomy") could a possible cure for the
problem be obtained.
[13] The Helal osteotomy involved the breaking laterally of the
bones in the metatarsals and the insert of the wires into the foot to support
the site until it is healed.
[14] The procedure adopted and followed by Dr Thajam and approved
and directed by Mr Pringle was one which a respectable body of medical opinion would
have followed in May 1988 for a patient with the pursuer's condition and
symptoms.
[15] Mr Pringle was throughout his care and supervision of the
pursuer acting in the course of his employment with the defenders. They are responsible for those actings.
[16] Following the operation of 19 May 1988 the pursuer's left foot was bandaged and the K
wires were left in place for 6 weeks until 29 June 1988. She was
supplied with crutches and used them until her condition allowed her to use
walking sticks. For a period after the
operation she was in constant pain but this diminished and by 12 July 1988 she was mobilised fully weightbearing without any
discomfort.
[17] Initially after the operation the pursuer's walking, standing,
ability to climb stairs and balance was compromised. Her left foot was swollen to the extent that
it was a full shoe size larger than the right one.
[18] The pursuer returned to the Outpatient Orthopaedic Clinic on 1st,
15th and 29th June when she was seen by Dr
Thajam. X-rays on 15th and 29th
June showed satisfactory progress and healing.
Prior to her discharge from the clinic after her visit on 13 July 1988 the pursuer stated that she was very pleased with
the operative result. At that time her
name was placed on the waiting list for a similar procedure to her right foot.
[19] On 30 November 1988 the pursuer, who had missed an initial appointment
on 9 November was seen at the Out Patient Clinic to assess her right
foot. At that time she complained of
some discomfort in her left foot. It was
noted that the pursuer had been wearing high heels and narrow foot slippers and
she was advised to wear broad forefoot flat-soled shoes. She was advised to defer any surgery on her
right foot for the time being and a further review was fixed for 1 March 1989.
[20] On 1 March 1989 the pursuer again attended at the Out Patient
Orthopaedic Clinic when her left foot was found to be comfortable but somewhat
stiff. She complained of discomfort in
her right foot and pain in the great toe.
The possibility of a loose body at the MP joint of that toe was
noted. Her name was placed on the
waiting list for "exploration of the first MTP joint and removal of any
arthritic charges".
[21] On 30 March 1989 the operation to the right foot was carried
out. The pursuer was seen at a clinic on
12
April 1989 when it was noted
that the wound was nicely healed. She
failed to attend a final review one-month later but a letter confirming the
position was sent by the hospital to her general practitioner.
[22] In March 1991 the pursuer who had for some time experienced
gynaecological problems was referred by her general practitioner to
Dr Cassil's Gynaecological Clinic at Monklands District General Hospital.
[23] On 6 June 1991 because of problems which the pursuer was experiencing
with her left foot, her general practitioner asked Dr Pringle (production
6/3 at page 116) to see her. At
that stage she found it difficult to walk.
[24] On 23 July 1991 the pursuer was seen at the Gynaecological Clinic
(production 6/3 at page 118). She
was in the process of moving house and there is no reference to ambulatory
problems.
[25] One morning in mid August 1991 the pursuer was unable to walk
because of the pain in her left foot.
After telephoning her general practitioner she visited Monklands District General Hospital and uplifted crutches. At this stage the pursuer considered that
something was fundamentally wrong and that there could have been negligence in
the operation of May 1988. She consulted
with her family and spoke to a solicitor on 27 August 1991. He agreed
to seek an independent medical opinion.
That opinion was not obtained until after October 1991 by which time the
pursuer had undergone the Fowler's procedure referred to in finding 26.
[26] On 30 August 1991 the pursuer was seen by Dr Thajam at the Out
Patient Clinic in relation to the appointment sought by her general
practitioner on 6 June.
Dr Thajam carried out a detailed examination of the pursuer's left
foot (production 6/3 at page 18).
Mr Pringle was also present and saw the pursuer. Because of the structural condition of the
pursuer's left foot a Fowler's procedure was arranged and carried out on 31 October 1991 by Mr Pringle.
[27] The carrying out of the Fowler's procedure, which has left the
pursuer with permanent problems was both necessary and
appropriate because of the condition of the pursuer's left foot.
[28] Following the Fowler's procedure (which involved the removal of
medial sesamoid bone underneath the 1st metatarsal and also the base
of the proximal phalanx of the 4th toe) the pursuer's foot was
placed in a bandage. She can no longer
grip with her toes. Her ability to stand
for a lengthy period, to ascend and descend stairs, to walk normally and to
maintain her balance was and still remains compromised. She was supplied with crutches and thereafter
sticks. As the result of the Fowler's
procedure her left foot is about one inch smaller than her right foot.
[29] The pursuer thereafter moved to the London area where she was treated by Miss Emma Supple, a
podiatric surgeon, at St Michael's Hospital, Enfield. She had
chiropody and concentrated conservative treatment including lesion debridement,
strapping, padding and insole and orthosis provision. Despite advice that she should only use the specially
provided orthosis and other appropriate footwear the pursuer failed to do
so. She found the orthosis uncomfortable
and instead used fashionable footwear on occasions.
[30] The pursuer's right foot has suffered due to the increased
reliance placed upon it by the pursuer due to the condition of her left foot.
[31] In December 1987 the pursuer required surgical treatment for
the bunion on her left foot similar to that which she later underwent for her
right foot in March 1989. There was
a standard practice amongst orthopaedic surgeons to propose conservative
treatment for the remaining complaints and symptoms which the pursuer had on 9 December 1987. On that
date Mr Pringle should have recommended to the pursuer that she undergo a
course of conservative treatment for a period before recommending that she
undergo an operation on her left foot, other than a bunionectomy.
[32] No conservative treatment was proposed by Mr Pringle on 9
December. No doctor of ordinary skill
would in 1987 faced with the condition of the pursuer's left foot as it was on
9 December 1987 have not proposed conservative treatment prior to concluding
that surgery was the only option. While
it would have possibly alleviated pain it would not have cured the
problem. Conservative treatment without
surgery (other than the bunionectomy) would have prevented the pursuer
returning to high heels or fashionable shoes ever. Mr Pringle should have recommended to the
pursuer that she should only undergo surgery (other than a bunionectomy) as a
last resort. He should have warned her
of the risks associated with the surgical procedures which he had in mind. He failed to do so. Had he done so it is likely that the pursuer
would have agreed to try a course of conservative treatment for a period.
[33] Had the pursuer agreed to conservative treatment (other than
for her bunion) it is probable because of structural deformities that her left
foot would have deteriorated and the pain increased. She might have required an operation similar
to the one which she underwent in May 1988.
[34] By 19 May 1988 the deformities of the pursuer's left foot had
developed to the extent that it was not unreasonable to have carried out
surgery of the type and nature undertaken.
[35] The initial writ commencing this action was warranted on 1 August 1994 and served by postal citation on the defenders on 9 August 1994.
[36] A reasonable measure of the loss, injury and damage which the
pursuer has suffered in relation to her left foot is £35,000 inclusive of
interest.
Appendix B
[1] The pursuer's claim in relation to the
actings of Mr Robert Pringle in December 1987 and May 1998 is not time
barred. The pursuer's case falls within
the terms of section 17(2)(b) of the Prescription and
Limitation (Scotland) Act 1973.
[2] On 9 December 1987 the pursuer's left foot had bunions which could
only be dealt with by a bunionectomy.
[3] Mr Robert Pringle, a Consultant Orthopaedic Surgeon employed
by the defenders, and for whose actings they are vicariously responsible, owed
a duty to the pursuer to recommend to her on 9 December 1987 the use of
conservative treatment prior to deciding to proceed to surgical intervention
(other than a bunionectomy) for her left foot.
He failed in that duty. He should
have recommended a period of conservative treatment, should have advised her
that surgical procedures other than to deal with her bunions should be a last
resort and should have warned her of the risks associated with these
procedures. His failures to take
reasonable care for the pursuer in these respects caused loss, injury and
damage to her. The defenders are liable
for the loss, injury and damage which the pursuer sustained as a result of the
fault of Mr Pringle.
[4] On 19 May 1998 when the pursuer was scheduled for surgery (which
included the necessary bunionectomy) the condition of her left foot had
deteriorated and it had become so structurally deformed that a Helal type
osteotomy was justified and appropriate.
[5] The condition of the pursuer's left foot would not have been
improved had she been offered and accepted conservative measures after 9
December. It would probably have
deteriorated and she would have required surgery to tackle the resulting
structural defects. If after a period of
conservative treatment it was decided that surgery was necessary the operation
may have been similar to the one which the pursuer underwent on 19 May 1988.
[6] The surgical procedure carried out on 19 May 1998 and the post operative care given by the staff and
doctors at Monklands District General Hospital (including Dr Thajam and Mr Pringle) were
both competent and appropriate.
[7] The pursuer's left foot required further surgical treatment,
namely a Fowler's procedure, in August 1991.
That operation (which took place in October 1991) and her post
operational care was carried out competently. The operation was appropriate for the
condition of the pursuer's foot.
[8] The pursuer is entitled to payment by the defenders of
damages for the loss, injury and damage which she sustained, i.e. to payment of
the sum of £35,000.
