- Head of Medical Negligence
The Inner House has upheld a Lord Ordinary’s decision to refuse to allow a late Minute of Amendment in a medical negligence action brought by a woman who was left permanently disabled after sustaining a “profound and irreversible” brain injury during her birth.
The appeal in respect of the Interlocutor in question was made after the proof had concluded but while the case was at avizandum.
The pursuer, Jill Clark, sought damages in the sum of £15 million against Greater Glasgow Health Board on the basis her birth in 1992 had been “negligently mismanaged” by obstetricians at Queen Mother’s Maternity Hospital, Yorkhill. During labour, the pursuer’s mother was administered with Syntocinon, a drug which is designed to assist with the progression of labour by stimulating the uterus. Unfortunately, the pursuer’s mother’s uterus ruptured, causing the pursuer to suffer acute profound asphyxia. This incident resulted in the Pursuer suffering severe cerebral palsy. The pursuer argued that the administration of Syntocinon carried with it a serious risk of over stimulation of the uterus and consequent rupture in women, such as her mother, who had previously undergone a caesarean section during child birth. The pursuer argued that, after administering this drug, the obstetricians failed to keep her mother under proper review.
The proof was heard by the Lord Ordinary, Lord Stewart, over the course of 21 days in January and February of 2015.
In March 2015, after the conclusion of the proof but before the Lord Ordinary had issued his judgment, the pursuer enrolled a motion to lodge a Minute of Amendment. The Minute proposed to introduce a new “risk disclosure” case in light of the UK Supreme Court’s decision in Montgomery v Lanarkshire Health Board earlier that month. In Montgomery it was held that a doctor is under a duty to take “reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments”. For a full analysis of the Montgomery decision please click here to see our previous article.
The pursuer sought to introduce the argument that the obstetricians had failed to disclose to the pursuer’s mother the risks of having a vaginal birth after a caesarean section and the risks of uterine rupture associated with a Syntocinon infusion. The Pursuer asserted that, had her mother been advised of the risks, she would have elected to undergo a repeat caesarean delivery, and therefore the pursuer would not have suffered a catastrophic brain injury.
The Lord Ordinary refused to allow the Minute to be received on the basis that the new risk disclosure case represented a “radical change of front”, which contradicted or undermined the case which had been presented at proof and therefore raised time-bar issues. If the Minute was accepted, the proof would require to be re-opened and further evidence would require to be adduced. His Lordship added that the pursuer had had ample opportunity to prove her claim and that the recent decision in Montgomery did not justify the Minute being lodged so late, as there was already an “entrenched tract of authority” to support a risk disclosure case. The Lord Ordinary did, however, grant the pursuer permission to appeal to the Inner House, something which the pursuer elected not to do at that stage.
On 12 February 2016, the Lord Ordinary issued his judgment on the substantive issues in the case. Lord Stewart undertook a detailed analysis of the expert evidence and decided that the labour plan was reasonable and had been responsibly managed so found in favour of the Health Board.
The pursuer appealed to the Inner House. The appeal, however, was not against the merits of the Lord Ordinary’s judgment, but against his refusal to allow the Minute.
The Lord President, delivering the opinion of the court, observed that the pursuer must be taken to have acquiesced to the interlocutor refusing the Minute as she did not appeal against it, despite being given permission to do so. The interlocutor had therefore become, by inference, final. On this basis alone, the Court decided that the appeal must be refused.
Furthermore, the court affirmed the importance of the principle of finality, noting that if the appeal was allowed, the Inner House would be required to re-asses the entire case, including both the new evidence and the evidence which was before the Lord Ordinary at proof. As the parties had been legally represented and the merits of the case had been decided, the court was not prepared to do this.
The court nevertheless considered whether the Lord Ordinary had erred in deciding not to receive the Minute prior to his judgment being issued, but ultimately found no fault in the reasoning upon which the Lord Ordinary exercised his discretion. For the full decision click here.
The outcome of this case was undoubtedly devastating for the pursuer. From a legal perspective, however, the case is particularly interesting for the way in which the Court of Session dealt with various technical matters including time bar issues, the consequences of failing to reclaim against an interlocutor, and the legal test when considering the interests of justice. It also provides a salient reminder to lawyers to fully consider and explore the various arguments which may be pled in support of a medical negligence claim, as a late amendment will potentially only be permitted in exceptional circumstances.