The case was brought by the family of Mr McCulloch who died following a cardiac arrest in his home in April 2012, not long after he had been discharged from Forth Valley Royal Hospital.  The cause of his death was cardiac tamponade, a clinical syndrome caused by an accumulation of fluid in the pericardial space.  In the period preceding his death, he had been admitted and discharged from hospital on numerous occasions.  He suffered from cardiac illness.

There were a number of allegations of negligence.  It was suggested that the doctor treating Mr McCulloch ought to have prescribed one of two different types of anti-inflammatory drugs.  It was also alleged the doctor ought to have instructed a repeat echocardiogram to investigate Mr McCulloch's condition further prior to his discharge from hospital.  If all or any of these steps had been taken, his death may have been avoided.

The test for medical negligence

The starting point for any medical negligence claim is the famous case of Hunter v Hanley.  That sets out the requirement to establish that there is a usual and normal practice, that it was not adopted, and that no professional man of ordinary skill taking ordinary care would have adopted the practice which was adopted by the allegedly negligent doctor.  It is therefore always important for claimants in these cases to establish that the treatment given was not in accordance with the usual and normal practice.  In this case, as often happens, there was conflicting evidence from a number of experts.  Some considered the doctor had adopted the usual and normal practice, others did not.

How does a court deal with conflicting opinions of medical experts?

Where there is a conflict between medical experts, lawyers will look to the case of Bolitho.  It establishes that the court is not bound to hold that a doctor escapes liability just because some experts are genuinely of the opinion that the treatment given accorded with sound medical practice.  Their opinion must have a logical basis and they must have considered the comparative risks.  This "Bolitho test" was applied in the McCulloch case.  Lord Tyre considered the opinions of the cardiac experts.  For example, there were differences of opinion between them as to whether a certain anti-inflammatory drug should be prescribed to a patient who was not in pain.  The conflicting views were both reasonable and logically supported.  Therefore, a failure to prescribe anti-inflammatory drugs could not be said to be negligent.  Lord Tyre also considered the opinion of the cardiac expert who agreed with the course of treatment provided and thought it was not necessary to order a further echocardiogram before discharging Mr McCulloch.  He found that opinion was not a reasonable one, and not supported by logical basis.  The "Bolitho test" was met: this failure did amount to negligence.  There were other experts whose view was that a further echocardiogram ought to have been requested.

Causation: did the negligence cause the death?

In all medical negligence cases, establishing that the doctor was negligent is only the first hurdle.  The case then has to get over the second hurdle of causation.  If the negligence had not occurred, what would the outcome have been?  In this case the question became "had the echocardiogram been carried out, would Mr McCulloch have died?".  Considering the evidence available, the court could not say that the death would have been avoided.  The case therefore failed to get over the causation hurdle.

Material contribution argument: the negligence contributed to the death

The claimants argued that the failure to prescribe anti-inflammatory drugs made a material contribution to the death.  Of course, they ultimately did not establish that the failure to prescribe anti-inflammatories was negligent, so this argument was ultimately of no relevance to the outcome.  However Lord Tyre still commented on it.  He considered that a "material contribution argument" is relevant where there are cumulative causes which cannot be separately assessed, for example many factors that, taken together, result in a death.  This test exists so that there is a method by which a claimant can establish medical negligence even when they cannot prove the extent of causation due to inadequacies in medical science.  However, that was not the case here.  If the anti-inflammatory medicine had been taken, the suggestion was that the death would not have occurred at all. 

Duty to advise of risks of treatment

The claimants also asked the court to consider the arguments based on the famous Montgomery case.  That case establishes the doctor's duty to advise a patient of any material risks associated with a recommended course of treatment.  If the doctor fails to advise the patient of those risks, he may be negligent.  It was argued that Mr McCulloch ought to have been provided with information about all the treatment options and the risks associated with them.  Lord Tyre considered that would have been an inappropriate extension of the test in the Montgomery case.  The doctor's duty to advise of risk kicks in when he is advising a patient about a course of treatment that he is recommending.  It is relevant to the doctor's discussions with the patient.  It is not relevant to the doctor's consideration of a variety of treatment options.  There is no duty to discuss alternative treatment options which the doctor does not consider reasonable and would not recommend.

Conclusion

Medical negligence is a complex area of law where expert advice is required to navigate the various hurdles which a claimant must overcome to establish their case.  This case highlights a number of the arguments that are relevant to these claims. For Mr McCulloch's family, some of those hurdles proved to be insurmountable so they did not succeed in their claim