Scotland's highest civil court has found a consultant neurosurgeon to be 100% liable in a clinical negligence action which was brought against both the consultant and an NHS hospital. In A-R v Muftah Salem Eljamel and NHS Tayside  CSIH 34 the consultant appealed the original judge's decision finding him fully liable to the pursuer for the agreed damages of just over £2.8million. His appeal was unsuccessful.
The consultant neurosurgeon was employed by NHS Tayside, at Ninewells Hospital, Dundee. He also had practising privileges at BMI Fernbrae Hospital ("BMI") where he was self-employed. Between 4 February and 16 April 2013 the pursuer came into the care of the consultant at both hospitals.
Parties had agreed a number of facts before the hearing. The agreed facts included;
- the pursuer's attendance at the A&E department of Ninewells Hospital;
- the presentation of the pursuer's symptoms, which suggested nerve root compression
- the investigations that ought to have been arranged (including an urgent MRI)
- the treatment that would have been provided had the MRI been undertaken (the pursuer would have undergone spinal decompression surgery rather than being discharged into the care of her GP)
- the pursuer's referral by her GP to the BMI hospital where she underwent a lumbar microdiscectomy operation which was performed negligently by the consultant, causing nerve root damage
- the pursuer's post-operation condition, which deteriorated
- the consultant negligently failed to organise an emergency MRI scan and emergency revision surgery
- the diagnosis of complete cauda equina syndrome ("CES") as a result of the surgery and negligent after care.
- (importantly), if the surgery had been completed competently, the outcome for the pursuer would have been the same had it been performed during the pursuer's initial hospital admission.
Settlement with the pursuer had been agreed with both defenders accepting they were jointly and severally liable to the pursuer in the sum of £2,810,118, subject to any apportionment between them as determined by the court under section 3(1) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (the "1940 Act").
Outcome at first instance
At first instance, the judge required to consider two factors in exercising his apportionment powers under section 3(1) of the 1940 Act and undertake a comparative exercise of the defenders' respective blameworthiness and the causative potency of their acts and omissions. In line with Brian Warwicker Partnership Plc  EWCA Civ 962, more weight was placed on causative potency.
Key factors included 1) the pursuer's condition did not deteriorate from the time she came into the hospital's care and her eventual surgery and 2) it was accepted that the hospital had not caused the pursuer significant harm. At most, they could be responsible for any pain experienced during the two weeks between when she ought to have received her MRI and her eventual MRI. This was to be compared to the potency of the negligently performed surgery and subsequent negligent aftercare which ultimately caused the pursuer to suffer from complete CES. Having considered this background, the judge decided that the causative potency of the hospital was nil. The judge also concluded that the moral blameworthiness of the consultant was much greater than the hospital. He therefore apportioned 100% of the damages to the consultant.
The consultant argued that the judge had erred in his interpretation of the agreed facts , insofar as an alleged failure to acknowledge that the pursuer was suffering from CES as at 4 February 2013 led to wrongly concluding that the consultant's negligence alone caused the development of complete CES it. It was also argued that the judge had failed to explain why the consultant's blameworthiness was so much greater than the hospital's and had erred in his analysis of the case law relied on by the consultant.
The hospital, unsurprisingly, submitted that the judge had arrived at a reasonable conclusion based on a correct understanding of the agreed facts and relevant caselaw. They also submitted that the consultant's challenge was based on a fundamental misunderstanding between a pure causal connection and the exercise of comparing causal potency and blameworthiness. It was argued the consultant had incorrectly understood the decision to mean that there was no causal connection at all between the harm suffered by the pursuer and the negligence of the hospital. That causal connection had already been admitted. The judge was required to compare the relative causal potency and blameworthiness of the two defenders.
Ultimately, the Inner House (appeal court) did not accept that the judge at first instance had misinterpreted or misunderstood the agreed facts insofar as they related to the development of CES. It was not accepted that he had misunderstood the case law either. The appeal court was satisfied that the judge had undertaken the correct comparative exercise and had rightly given more weight to the causative potency of the defenders' acts and omissions.
This decision is an interesting example of the exercise that the court may undertake to apportion damages where there is more than one wrongdoer. It is also a reminder of ensuring that where parties agree certain facts in advance of an evidential hearing that is clear to all, including the judge, what those agreed facts are.