Court rejects attempt to seek amendment of a medical negligence case after the timebar

The Court of Session has ruled that a Minute of Amendment which would have introduced a new case into a medical negligence action when the triennium for the new allegations had already passed is not to be allowed.

In the case of Sellar v Greater Glasgow Health Board, at the hearing on the pursuer’s Minute of Amendment Lady Stacey said it would be prejudicial to the defenders to allow the amendment.

Background

A medical negligence action was raised by the pursuer against Greater Glasgow Health Board in 2014. The action related cystoscopy investigatory procedure which had taken place in March 2011. The cystoscopy was required to look inside the bladder (following treatment for bladder cancer in 2009) to try and determine the cause of ongoing incontinence. Following that procedure, the pursuer was unable to void his bladder properly. A subsequent procedure later in 2011 discovered the artificial urinary sphincter device which had been inserted following the cancer treatment in 2009 had eroded completely.

The allegation of medical negligence that formed the basis for the action was that the doctor who performed the cystoscopy had damaged the device and failed to reactivate it after the procedure.

The case called before Lady Stacey on an opposed motion by the pursuer to have a Minute of Amendment received. This Amendment sought to change the allegation of negligence from a failure to reactivate the artificial device thereby causing damage, to one about the steps undertaken to deactivate the device before inserting the investigatory telescope. It was said in the amendment that the device was deactivated after the procedure in a manner that resulted in the device locking in the closed position rendering it impossible for the pursuer to void his bladder.

Argument

Counsel for the defenders successfully argued that the amendment was an attempt to introduce a new case after the triennium had expired. It was said that the existing case concerned a failure to reactivate whereas the new case related to not taking any steps to deactivate the device before the procedure and subsequently deactivating, thereby locking the device in the closed position. This meant a different allegation was being made nearly 6years after the event and 3 years since the action was raised.

The pursuer sought to rely on a delay in obtaining a medical report as the explanation for why there was a need to amend, but said the nature of the proposed pleadings did not represent a radical change.

Decision

Lady Stacey held that the defender in a case is entitled to know what the doctor is alleged to have done wrong, what normal practice he has failed to follow and how any such failure has caused loss. The amendment from an error when manipulating to not deactivating was a radically different failure that would introduce a new case after the triennium has expired and would be prejudicial to the defender.

Lady Stacey went on to state that the case did not appear to be well prepared and presented, as well as also considering there was no compelling reason to allow the amendment. She therefore refused the pursuer’s motion to have the Minute of Amendment received.

Comment

This decision reinforces the clear requirement for those who are seeking to make allegations of professional negligence to obtain independent expert support before raising a court action. Further, it is important to fully understand the opinion of the instructed expert, typically by consulting, during the adjustment period to ensure the breach of duty is fully and accurately pled before the Record closes.

It is also interesting to note that usual practice would be to oppose a motion to move a Minute of Amendment, rather than at the point when the Minute was being received. Counsel for the defenders explained to the court that this was a competent course of action which would save time and expense as the defenders would not need to investigate and plead the new case if his opposition was successful.

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