Ainsley McCabe | Senior Litigation Paralegal

When being wrong isn’t negligent

An opinion published today highlights that just because a mistake is made, this is not enough to establish negligence.

The case concerned a woman (LT) who had died from a heart attack following a misdiagnosis from her GP. LT’s GP, following a home visit, diagnosed her with “musculo-skeletal pain” and “gastro-intestinal upset” when she was complaining of pain in her chest, left arm and neck. Approximately one hour after the visit, LT died.

LT’s family (‘the pursuers’) raised a case against the GP practice (‘the defenders’) for damages following her death, claiming the GP was negligent in failing to summon an ambulance to take her to hospital to investigate whether she was suffering a heart attack or an “acute coronary syndrome” (ACS).

The pursuers’ position was: i) the diagnosis of musculo-skeletal pain was “illogical”; the GP had a duty to exclude ACS; and iii) the GP failed to adequately assess the risk factors, namely LT’s mother’s history of angina. In summary, no ordinarily competent GP would have not referred LT to hospital.

On the other hand, the defenders submitted the GP “did not depart from usual practice and that his actions were consistent with those of a general practitioner exercising the ordinary skill and care reasonably to be expected of him.” In respect of the musculo-skeletal pain diagnosis, the defenders contended that it was logical as LT’s complaint of pain when moving her neck from side to side was not consistent with ACS (and was instead suggestive of a musculo-skeletal problem). There was also no prior history of LT suffering from chest pain and, following examination, the GP’s decision of not admitting her to hospital in connection with ACS or pulmonary embolism was “logical”. Additionally, whilst the defenders accepted family history was relevant, it was less relevant than LT’s relatively young (age 32). The GP had taken LT’s social/lifestyle factors (smoker and clinically obese) into account when making his diagnosis.

In making his opinion, Lord Tyre said,

“In short, Dr Malloch’s diagnosis was wrong, but it was not negligent. The pursuers’ case accordingly fails.”

The case highlights that proving negligence is not as easy to establish as first appears, even when a mistake has been made.

Jackson Boyd do, however, have many years of experience helping people deal with the challenges that can result from clinical negligence. To arrange a free consultation, or to find out more about our no win no fee service, call us on 01412496903 or contact us online.

Ainsley McCabe

Ainsley McCabe

Personal Injury Team

“Those unfortunate enough to be involved in an accident often find themselves dealing with challenging circumstances in the aftermath. I enjoy assisting clients through what can be a difficult time in their lives, helping them to resolve their issues and look positively to the future.”

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