PATIENT WHO SOUGHT DAMAGES FROM DOCTORS COULD SUE SOLICITORS INSTEAD

A man who raised an action for damages after doctors failed to diagnose his kidney failure at an early stage could sue his solicitors for their failure to bring his claim timeously, a judge has ruled.

Stanley Bates, a patient of a GP practice in Edinburgh, was seeking damages after he attended his surgery in 2007 with symptoms of renal failure which were initially not acted upon. He claimed that he suffered as a result of his doctor’s negligence and asked the Court of Session to use its discretion to allow his “time-barred” claim to proceed.

However, in dismissing his action, Lady Smith ruled that “the fault lies at the door of the pursuer's solicitor”.

Mr Bates first attended the surgery complaining of the symptoms of renal damage on December 3, 2007, which was confirmed by the results of subsequent blood, but it was not until March 11, 2008 that he was referred to the Royal Infirmary of Edinburgh – by which time he was suffering from acute renal failure.

Towards the end of April 2008, Mr Bates was advised that his kidney failure was attributable to the failure of a doctor in the practice to follow up on his blood tests. He consulted his solicitors in August 2008 and a complaint was made to the Medical and Dental Defence Union (MDDUS) that month.

His solicitors instructed a doctor for an expert opinion on negligence and he provided a report dated December 11, 2008. The firm also instructed a separate doctor for an opinion on the issue of causation and she provided a report dated June 25, 2009. However, the summons was not intimated to the defenders until June 6, 2011 – after the expiry of the triennium.

The firm explained that a practice management system which alerted the fee earner to the proximity of critical dates failed when the solicitor dealing with the pursuer's file left the firm without notice at the end of 2010.

She left without entering the time bar date in the online diary system, which meant that no-one within the firm was alerted to the approaching triennium. The solicitor also failed to input the time bar dates of any impending time-bars within her caseload of approximately 180 files.

A “full review” of her caseload was carried out in January 2011 and a number of actions were raised as a matter of urgency in order to prevent the expiry of the triennium, but the key date in Mr Bates’ case was missed.

An employee to whom the pursuer's file was transferred was also off on long-term sick leave from February 2011 to April 1, 2011 and then again in May 2011. During a “comprehensive file review” that month a further member of staff noticed that the case had no critical dates associated with it and this prompted a review in which she discovered that the action ought to have been raised, resulting in the summons on June, 6 2011.

Counsel for the GPs argued that the pursuer's averments were “plainly indicative of negligence”.

The failure to review and identify the problem between the date of the solicitor leaving the firm and the sick leave of the employee to whom the pursuer's file was transferred was also indicative of negligence.

If the file was reviewed at the end of 2010 there was either a failure to note the time bar and enter it into the firm's diary system or there was a failure, having noted the time bar, to raise a timeous action, which they still had time to do, the GPs maintained.

While accepting that the claim was “time-barred”, counsel for Mr Bates argued that the judge should allow a preliminary proof to determine whether the equitable discretion should be exercised in favour of the pursuer due to the “extenuating circumstances” of the case.

However, the judge concluded that there was “no basis” in the averments which would enable the court to exercise its discretion under section 19A of the Prescription and Limitation (Scotland) Act 1973.

Delivering her opinion, Lady Smith said: “In a case such as the present, where the fault lies at the door of the pursuer's solicitor, that means that a full and frank explanation has to be provided of how advisors who ought to be acutely aware of the risk of adverse consequences to their client if a time bar is missed, failed to raise a timeous action. None of the pursuer's averments suggest that there was anything difficult about identification of the relevant date.

“Moreover, when it was realised that the employee who had been dealing with this and other files had not been entering time bar dates into the system, a supposedly ‘full review’ of all her files in January 2011, failed to identify that no ‘critical dates’ had been identified for this case. The latter is plainly indicative of the review carried out in January 2011 not being a full or adequate review at all. A timeous action could have been raised at that stage.”

She added: “Whilst he will, I accept, have to raise a separate action, that is . . . not sufficient for the exercise of the discretion. His prospects of success in an action against his solicitor appear, on the basis of his averments and the submissions made in the course of debate, to be good. He does not, accordingly, lack a remedy if the discretion is not exercised.”

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