Hand On Heart: Credibility Of Pursuer's Evidence Crucial To Causation In Consent Cases

Author:Mr Graeme Watson and Karen Rowney
Profession:Clyde & Co

In Malone -v- Greater Glasgow and Clyde Health Board [2017] CSOH 31, the Court of Session considered informed consent to diagnostic medical procedures. The pursuer cited Montgomery -v- Lanarkshire Health Board and claimed her doctor failed to warn of the risks in not undergoing an echocardiogram ("ECG"). Was that sufficient to amount to a breach of duty?

The Facts

In 2002, 25-year-old Melissa Malone was anaemic. Despite six months of extensive investigations, no cause was found. In September 2002, her consultant haematologist, Dr Parker, arranged an ECG and a referral to an infectious disease consultant, Dr Seaton, to exclude a heart infection called sub-acute bacterial endocarditis ("SBE"). Dr Parker did not think SBE was likely, but had exhausted her haematology investigations and was "scraping the bottom of the barrel" to find a diagnosis.

After examining her heart, Dr Seaton found no clinical grounds to suspect SBE. He wrote to Dr Parker to report his findings and arranged a review in six weeks.

Ms Malone did not attend her review with Dr Seaton. She also failed to attend for her ECG on 7 October 2002. She then missed three follow up appointments at the haematology clinic. By December 2002, she had not engaged with haematology for four months. The department head, consultant haematologist Dr McQuaker, reviewed her notes. He wrote to her GP, Dr Smith, to say no further appointment would be made but she could be referred again if necessary.

Ms Malone did not see Dr Smith again until March 2003, when she complained of new symptoms of tingling and pain in her right arm and blueness to her fingers. Dr Smith immediately referred her back to Dr McQuaker, who took the unusual step of telephoning Dr Smith to discuss the case. Dr McQuaker suggested a referral to the rheumatology department, as the symptoms suggested a vascular condition. Dr Smith agreed and a rheumatology appointment was set for November 2003. She did not attend.

On 27 October 2006, Ms Malone suffered a stroke. An atrial myxoma - a rare, benign tumour - was discovered in her heart. A piece of tumour had broken off, created an embolus and caused the stroke. Atrial myxomas are detectable by ECG. Had Ms Malone undergone one in 2002, the condition would have been found and she would have been treated. Her stroke, and the serious health problems that followed, would have been avoided.

The Arguments

Ms Malone sued...

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