“But for” vs Material Contribution and the burden of proof – Andrews v Greater Glasgow Health Board [2019] CSOH 31

In this post Vanessa Cashman of 12KBW examines the recent decision of Lord Pentland [siting in the Outer House of the Scottish Court of Session] in Andrews v Greater Glasgow Health Board [2019] CSOH 31.

Summary

The deceased attended hospital with vomiting and diarrhoea, both black in colour and was discharged with a diagnosis of gastroenteritis. She was taken back to hospital the following day where extensive necrosis of her bowel was discovered. She died the next day.

Breach of duty, principally in relation to whether she should have been admitted on her initial attendance, and causation were in issue. D’s case on causation was that C couldn’t prove when her acute deterioration occurred and therefore couldn’t prove that admission would have prevented her death.

The Court considered the relevant test for causation and considered that both “but for” causation and the material contribution test were satisfied.

The facts

The deceased initially attended A&E on 5 January 2013 with chest and stomach pain, vomiting and diarrhoea. X-rays were normal and she was discharged. It was agreed that there was no breach on this occasion.

However, the following day the deceased returned to hospital complaining of black vomit and black diarrhoea. The diarrhoea smelled noxious. It was said that this was melaena, a significant indication of serious pathology. The deceased was in terrible and constant pain from her stomach. The on-call GP assessed her at home and considered that she might have upper gastrointestinal bleeding. He decided she should go to the Acute Admissions Unit by ambulance.

Following an initial assessment, a junior doctor advised that she would be discharged as she had not had any diarrhoea or vomiting for three hours. He gave anti-vomiting and anti-diarrhoea tablets. His diagnosis was gastroenteritis and he recorded that the deceased would like to go home. This was in stark contrast to the pursuer’s evidence that neither he nor the deceased wanted her to be discharged. The doctor accepted at trial that he should have suspected melaena and that that was an important sign of gastrointestinal bleeding.

The principal allegation was that the doctor ought to have recognised that the deceased might be suffering from upper gastrointestinal bleeding and admitted her. Breach of duty was denied.

On the morning of 7 January 2013 an ambulance was called to the deceased’s home. She was extremely unwell; sepsis was suspected on arrival at the hospital. A CT angiogram showed a thrombus in the superior mesenteric artery and appearances were consistent with an ischaemic bowel. She was taken into theatre and laparotomy showed very extensive necrosis throughout almost all of the small bowel, suggesting no blood supply for approximately 8-16 hours. Her condition was not survivable, and she died on 8 January 2013.

The cause of death was given as ischaemic bowel secondary to an arterial thrombus, contributed to by heart disease.

 
Breach of duty

The Court found that the deceased should have been admitted on 6 January 2013 and that the junior doctor ought to have suspected serious intra-abdominal abnormality and advised the deceased that she required admission. When approving the decision to discharge the senior doctor had relied upon the junior doctor’s erroneous advice that the deceased could cope at home. The Court held that the junior doctor was liable for that erroneous advice. D argued that the junior doctor had discharged his duty by seeking assistance from the senior doctor. The Court did not accept that. Nor did it accept that the standard required of a junior doctor was lower than that of a senior doctor. The standard required was that of the reasonably competent doctor carrying out these examinations. [Wilsher v Essex Area Health Authority [1987] QB 730 and FB v Rana [2017] PIQR P17 applied].

 
Causation

D argued that the deceased would have died even if she had been admitted in the first instance. In addition, it was contended that as the point at which the deceased began to deteriorate could not be proved, C could not establish that the death was avoidable but for the alleged negligence.

Expert evidence on causation was provided by two vascular surgeons. They differed as to when the acute mesenteric ischaemia occurred i.e. when the artery became occluded and the rate of progression after it had become occluded. The Court found that the occlusion occurred between the evening of 6 January and the next evening, as D argued.

The Court then considered what would have happened had the deceased been admitted on 6 January 2013. For various factual and medical reasons, it found that had she been admitted on the evening of 6 January 2013 her small bowel would probably have been saved.

D submitted that C could not establish a causative link between the breach of duty and the deceased’s death as there was no evidence as to exactly when the deceased began to deteriorate. As the factual chain of events which would have hypothetically occurred following admission had no starting point, it could not be said that the ischaemia would have been successfully treated in time.

The Court considered that this argument was “unrealistically narrow”, “unrealistically technical” and “excessively theoretical” and that if it were accepted it would impose an impossibly high standard of proof or “onerous burden” on a claimant.

Lord Pentland reminded himself of the observation in McGhee v National Coal Board[1972] 3 All E.R. 1008, 1 W.L.R. 1, that the legal concept of causation is not based on logic or philosophy but is based on the practical way in which the ordinary man’s mind works in the everyday affairs of life. He accepted that but for the failure to admit the deceased on 6 January 2013 she would have survived.

He further went on to say that even if he was wrong about the conventional “but for” test being made out, in his view D’s negligence made a material contribution to the death by substantially delaying admission to hospital. He relied on Bailey v MOD [2009] 1 WLR 1052 and Williams v The Bermuda Hospitals Board [2016] AC 888 in so holding and did so on the basis that if medical science could not untangle the ischaemia which would have occurred in any event from the ischaemia which occurred due to the negligent delay the “but for” test falls to be modified. In such a serious condition as acute mesenteric ischaemia, a delay of 24 hours must have made a material contribution to the death.

 
Result

Accordingly, there was judgment for the claimant.

 
Comment

The issues as to breach and factual/medical causation are of little general relevance to practitioners. The importance of the case is the reminder that legal causation should not be considered in an excessively narrow or theoretical manner. Even though “but for” causation was made out in this case and was considered to be the correct test, the Court reminded practitioners that where there is a difficulty with separating out the effects of concurrent negligent and non-negligent causes the material contribution test will apply. This means real, meaningful or significant i.e. more than negligible.

There is nothing controversial about this case or its ratio. One practical point is that if there is any doubt about the applicability or merits of the “but for” test the experts should be asked to address the material contribution test in the alternative (provided that there is justification for applying that test in the alternative i.e. where medical science cannot quantify the various causative potencies of the causes). This is not to say that all cases involving ischaemia or sepsis should work on the basis of the material contribution test rather than the “but for” test; each case is different and will require the appropriate evidence to support such a contention.

 

 

 

 

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