From missed diagnosis to dismissal: DS v NHS Grampian – A blueprint for defending clinical negligence claims

In DS v NHS Grampian [2025] SAC (Civ) 21, the Scottish Sheriff Appeal Court considered a complex medical negligence claim arising from a missed diagnosis of a pineal cyst on an MRI scan. This case offers a valuable reminder of the legal thresholds for proving clinical negligence and causation. It also highlights the importance of judicial scrutiny in evaluating competing medical expert opinions and the risks of relying on hindsight in assessing hypothetical outcomes.

Case background

The appellant, DS, underwent an MRI brain scan in 2013, which was reviewed by a consultant neuroradiologist. The consultant failed to identify a pineal cyst, an error that only came to light in 2015 when DS underwent further imaging in Poland. Following this discovery, DS sought and received NHS funding for surgery in Germany, which she underwent in July 2015. Post-surgery, she reported improvements in symptoms such as headaches and tinnitus, though she later developed other health issues.

DS brought a claim against NHS Grampian in 2018, alleging that the consultant neuroradiologist’s failure to report the cyst constituted negligence and caused her prolonged suffering and financial loss for two years. The Sheriff who heard the proof (evidential hearing) found in DS’s favour on breach of duty but limited damages to £7,500 for pain and suffering between 2013 and 2015. DS appealed, seeking further damages for wage loss and her post-2015 symptoms, while NHS Grampian cross-appealed, challenging the finding of negligence and causation.

Court’s decision

The Appeal Court upheld the cross-appeal and dismissed DS’s claim. The court found that the Sheriff had erred in concluding that the consultant’s actions amounted to negligence. Expert evidence for NHS Grampian demonstrated that the omission was within the bounds of ordinary competence, citing a recognised radiological error rate and the complexity of interpreting midline brain abnormalities. The court emphasised that negligence cannot be established merely by preferring one expert’s view over another if both represent respectable bodies of medical opinion.

Key takeaways

1. Claimants must demonstrate that no competent professional acting reasonably would have made the same decision, not simply that another expert would have acted differently.
2. On causation, the Appeal Court held that DS failed to discharge the burden of proof. She did not lead evidence from a neurologist to prove the cyst was the direct link to her symptoms. The respondent’s neurological experts attributed her symptoms to migraine and functional neurological disorder. The Sheriff’s reasoning—that the absence of an alternative cause implied causation—was rejected as legally flawed.
3. The Appeal court upheld the Sheriff’s refusal to admit late evidence and amend the claim amount. These decisions were deemed reasonable exercises of judicial discretion, showing the court will enforce procedural timelines strictly.
4. The Appeal Court cautioned against evaluating clinical decisions with the benefit of hindsight. Claimants must frame their arguments around what was reasonable at the time of treatment, not what was revealed later. The Sheriff was not entitled to decide that the claimant would have sought surgery four months after her scan in 2013, as it was not for the court to draw its own conclusions from medical literature.