Sheriff Appeal Court dismisses case against NHS for radiologist’s failure to report brain cyst in MRI scan

About this case:

• Citation:
  [2025] SAC (Civ) 21
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Joan F Kerr

Pursuer and appellant DS argued that the sheriff erred in holding that she had failed to establish a causal link between the failure to report her pineal cyst and her medical symptoms post-2015. The respondent in its cross-appeal contended that decree of absolvitor ought to have been granted as the sheriff erred in his approach to breach of duty by the consultant radiologist.

The appeal was heard by Sheriff Principal Gillian Wade, with Appeal Sheriffs Robert Fife and Joan Kerr. The pursuer and appellant appeared as a party litigant while the defender, respondent, and cross-appellant was represented by Reid KC and Dundas, advocate.

Same course of action

In 2011, the appellant began to experience ringing in her ears and other symptoms that resulted in the instruction of an MRI scan, which was carried out on 31 January 2013. The results of the scan were reviewed by a consultant neuroradiologist, Dr Robb, who reported no abnormalities. This report would later be established not to be accurate when the appellant had a more detailed scan in Poland in March 2015, when the presence of a pineal cyst was identified that was also shown in the 2013 scan.

After the appellant contacted a German neurosurgeon to ask if he would be able to remove the pineal cyst, the respondent agreed to pay for the surgery. This was despite a finding that during the period from 2013 to 2015, surgery for the removal of a pineal cyst would never be recommended by a medical practitioner in the UK. Following her operation the appellant initially experienced improvements but began to suffer from headaches and symptoms of chronic fatigue and irritable bowel syndrome from 2016 onwards.

The appellant’s position was that, had Dr Robb disclosed the pineal cyst in 2013, she would have sought surgery two years earlier. The sheriff held that Dr Robb’s review of the scan was negligent and accepted that she would have pursued the same course of action. However, he accepted evidence led by the respondent that the pineal cyst was not the source of the appellant’s later problems, which shifted from neurological symptoms to bowel-related problems.

In the cross-appeal, the respondent submitted that the failure by Dr Robb to report the pineal cyst was an omission that could reasonable have been made by a competent neuroradiologist. There was radiological literature suggesting a recognised error rate of 5% in the reporting of scans, which increased with respect to aggravating factors that were present in the appellant’s case. No challenge was made to the evidence of the respondent’s expert Dr Keston, who considered that around 25 per cent of experienced radiologists would have not reported on the cyst if placed in Dr Robb’s circumstances.

Logically held opinion

Delivering the opinion of the court, Appeal Sheriff Kerr said of Dr Robb’s actions: “Looking at Dr Keston’s evidence as a whole, he addressed all three requirements of the Hunter v Hanley test. He looked at the request from the neurologist which led to the scan taking place, he put himself in the place of a neuroradiologist in 2013 and told the court how a neuroradiologist would have approached the scan in light of the request. He gave clear and cogent reasons for why he considered that Dr Robb had followed normal practice and had not been negligent in failing to report the existence of the pineal cyst.”

She continued: “Dr Keston’s opinion was not criticised as being unreasonably held during the course of the proof. On the contrary we find it to be respectable, responsible, and logically held. Consequently, the court is not persuaded that “no” neuroradiologist of ordinary skill acting with ordinary care would have acted as Dr Robb did. The appellant has failed to establish the test laid down in Hunter v Hanley.”

Considering whether the sheriff was able to accept the appellant’s counterfactual, Appeal Sheriff Kerr commented: “Finding in Fact 74 is that the operation performed by Professor Schroeder in Germany in 2015 would have been available in 2013. However, Professor Schroeder did not give evidence. His decision to operate in 2015 seems to have been based to a large extent upon the substantially deteriorated symptoms the appellant described in 2015 as opposed to those in 2013. There is no evidential basis for finding that he would have operated on the appellant in 2013.”

She concluded: “The court was not entitled to extrapolate a position from medical literature in order to justify a finding that the operation would have been available to the appellant in Europe in 2013. Such evidence about medical literature can assist the court with regard to assessment of expert evidence. It is not for the court to draw its own conclusions based on the literature alone. For the various reasons discussed, the sheriff was not entitled to decide that the appellant would have had surgery to remove the pineal cyst in 2013 had she been told about it.”

Having upheld these points, the court allowed the respondent’s cross-appeal, and granted decree of absolvitor.