Robbie Wilson: Expert witnesses need to know about any differences in witness evidence
The dangers of expert evidence in a medical negligence case being based on only one witness’s account where that account is disputed by another witness has been highlighted in the recent decision in Taylor v Dailly Health Centres, writes Robbie Wilson.
The decision from the Outer House of the Court of Session provides a helpful reminder of the test for medical negligence and the way in which this may be applied in a case of disputed facts. As expert witnesses need to work from the evidence provided by eyewitnesses, it is important that this information is as complete, accurate and consistent as possible.
The case involved the death of Linda Taylor in March 2009, aged 32. On the morning of her death, Mrs Taylor had felt unwell. Her friend, Ms Barr, who had been visiting her, called the GP surgery to report her symptoms, which included pain in her chest and down her left arm. The GP, Dr Malloch, arrived at the home around five minutes later and examined Mrs Taylor. Dr Malloch concluded that Mrs Taylor was suffering from gastrointestinal upset and musculoskeletal pain. He advised that a prescription would be available from his surgery in around fifteen minutes.
Around an hour later, Mrs Taylor died. An ambulance had been called after a deterioration in her condition but she died at home. Dr Malloch returned to the house and certified Mrs Taylor’s death. The cause of death was acute coronary syndrome (ACS) – in other words, a heart attack.
Mrs Taylor’s husband and children raised an action against Dr Malloch’s GP practice on the basis that Dr Malloch should have noted that Mrs Taylor was exhibiting symptoms of ACS and should have been referred immediately to Accident & Emergency. It was not in dispute that if she had been sent to A&E Mrs Taylor would have survived.
The test for medical negligence
The test for medical negligence is long established in Scotland. Lord Clyde, in Hunter v Hanley, held that in order to establish that a doctor has acted negligently, it must be shown:
1) That there is a standard approach which would usually be followed by a body of medical professionals in the given situation;
2) That the doctor in question did not follow this approach; and
3) That the approach which was adopted is one no ordinarily competent doctor exercising reasonable care and skill would have adopted.
The case in court
It was argued on behalf of Mrs Taylor’s family (the pursuers) that the only option available to an ordinarily competent doctor exercising reasonable care and skill would be to refer Mrs Taylor to hospital. The medical expert for the pursuers gave evidence that pain in the chest and down the left arm is indicative of ACS. He also relied upon evidence given by Mrs Taylor’s husband that she was breathless. Given her other risk factors, including smoking, obesity and family history of heart disease, he argued that referral to hospital was mandatory.
However, the judge, Lord Tyre, preferred the expert evidence provided on the behalf of the defenders. The defender’s expert argued that the symptoms reported did not require immediate admission to hospital. The lack of cardiac symptoms (characteristic ischaemic chest pain, abnormality of pulse rate or rhythm, hypotension, dizziness, unexplained nausea, sweating or breathlessness) weighed against any diagnosis of ACS and this meant that Dr Malloch was not under a duty to refer Mrs Taylor to hospital in order to exclude ACS.
Both expert witnesses in the case were accepted as credible by the court. The key to Lord Tyre’s decision were his findings in relation to the symptoms which had been displayed by Mrs Taylor and the extent of the examinations carried out by Dr Malloch. There was significant dispute between the two main witnesses for the pursuer regarding these issues. Critically, Mr Taylor gave evidence that his wife was suffering from breathlessness, which was a key indicator of ACS. This was disputed by the other witness for the pursuer and Dr Malloch. Lord Tyre preferred the evidence of the witness whose position more closely tied with Dr Malloch’s evidence.
This case serves as a reminder of the importance of experts having all the evidence, even where there are factual differences or disputes, before them at an early stage of a medical negligence case. Any inconsistencies need to be flushed out at an early opportunity so that the independent medical experts can provide an informed view, on the basis of the facts which are likely to be established.
Robbie Wilson is a partner at Anderson Strathern