Monday, November 20th, 2017

Heather Bruce & Others v Tayside Health Board [2017] CSOH 123

Amber Galbraith of Compass Chambers appeared for the pursuer in this clinical negligence action heard by Lord Arthurson. 

Facts and issues in dispute

 This was a claim brought by the family of Mr David Bruce (‘the deceased’), who was admitted to Ninewells Hospital on 12th August 2011. Mr Bruce ultimately died the next morning, 13 August 2011. The issues in dispute at Proof were restricted to one very limited matter pertaining to causation. The defenders had at an earlier stage tendered a Minute of Admission in the following terms:

 “the defenders admit that on the night of 12/13 August 2011 at the emergency department of Ninewells Hospital, Dundee the defenders’ staff failed to commence the late Alexander Bruce [the deceased] with IV fluids and hyperkalaemia treatment timeously and the deceased should have been commenced on (a) IV fluids (0.9% saline) by 2225 hours and received 2 litres within 2 hours, i.e. by 0025 hours; and (b) treatment for hyperkalaemia by 2325 hours by way of calcium gluconate (10mls of 10% solution) and dextrose/insulin infusion (50mls at 200mls per hour, i.e. over 15 minutes).”

 As such, the only issue on which the parties went to proof was that of causation, and in particular the single issue of: What would have been the likely outcome for the deceased in terms of his survival had the treatment, referred to in the Minute of Admission, been administered by the defenders’ medical staff?

 Each side led evidence from a single expert to address the single issue and Counsel simply invited the Court to prefer the opinion of their respective expert.


 The Lord Ordinary accepted the evidence of the defender’s expert, that even if the treatment outlined in the Minute of Admission had been administered the deceased’s death would still have occurred. The Lord Ordinary found the pursuer’s expert’s supportive evidence was an opinion “properly but in the end reluctantly expressed” and, ultimately, preferred the more confident opinion of the defender’s expert, which, in contrast to the pursuer’s expert’s evidence was supported by methodology and literature.

As such, the Lord Ordinary ruled that notwithstanding the fact that hospital staff failed to provide the appropriate treatment to the patient, their negligence did not cause the death and that even if they had acted earlier it would have made "no difference" to the "tragic outcome".

Points of interest 

The Lord Ordinary reserved particular praise in his Judgement for both Counsels’ preparation ahead of the Proof and the work undertaken to focus the issues in dispute, thereby reducing the time and scope of the Proof. The Lord Ordinary praised “the diligent and highly professional care” of Counsel, noting they had, “agreed the facts and evidence of nursing staff and each simply invited the court to prefer the opinion of their respective expert on the single issue of likely outcome.”. The Lord Ordinary then commended Counsel for “their exemplary preparation for and conduct of the case. The proof before me, which although it was set down originally for two weeks, was completed, standing the scope of the agreements which I have mentioned, within three days, including submissions.”

A copy of the Judgement can be found here.

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