A WOMAN who had a stroke after suffering a rare heart tumour that went undetected by doctors has lost her medical negligence claim following a judge’s ruling that she was not entitled to damages because she did not keep hospital appointments.
The case of Melissa Malone against Greater Glasgow and Clyde Health Board is likely to have significant effects on future claims of medical negligence when the person suing doctors or health boards has not kept appointments.
Judge Lord Brailsford ruled in the Court of Session on Friday that the Board was not liable to pay any damages to Malone, who had contracted an atrial myxoma – a rare, non‑malignant tumour of the heart – that in turn led to her suffering a stroke in 2006.
Malone, who was referred to hospital after originally suffering anaemia, sued the board for damages arguing that Dr Grant McQuaker, consultant in haematology at Glasgow Royal Infirmary, had twice failed in respect of getting results from an echocardiogram (ECG) that would have found the tumour.
Her lawyers argued that McQuaker “failed to exercise the skill and care of an ordinarily competent consultant haematologist acting with ordinary skill and care by discharging the pursuer [Malone] from his haematology clinic on December 9, 2002 without having obtained ECG results previously instructed.”
She also alleged that McQuaker failed to follow up a referral from her GP in 2003 and that the consultant “failed to take reasonable care to ensure that the pursuer was aware of an alternative treatment or investigatory option” namely the ECG.
In his judgment Lord Brailsford noted: “No case of failure to diagnose atrial myxoma is pled in the current action but it was common ground between the parties that had the ECG instructed in August 2002 been performed the pursuer’s atrial myxoma would have been detected, treatment given and she would thereafter have avoided a stroke she suffered on October 27 2006.”
Lawyers for Malone stated that it was McQuaker’s duty to “take reasonable care to ensure that the pursuer was aware of any material risks involved in recommended treatments and of any reasonable alternative or variant treatments or reasonable investigatory options open to her.
“The treatments or investigatory options that were recommended by Dr McQuaker were, in December 2002, discharge from the haematology clinic and in April 2003 referral to a rheumatologist. It was submitted that in each case the alternative was an ECG and that possibility was not explained to the pursuer. Further there was no attempt to explain to the pursuer the risk she was taking in not going for an ECG.”
Counsel for the health board denied any negligence on McQuaker’s part and stated that Malone’s atrial myxoma was accepted by all experts to be an extremely rare condition.
“That explains why despite exhaustive medical investigation the condition was not diagnosed,” noted the judgment.
The evidence of two expert witnesses was also attacked by the health board’s counsel, and Lord Brailsford said he would not be relying on the evidence of one of them, a Dr Housni Habboush, where it was contradicted by evidence from other appropriately qualified specialists.
The court had been told that Malone missed numerous appointments for an ECG due to her ill-health. The judge noted: “There are a very significant number of failures to attend for medical appointments recorded in the pursuer’s medical records.
“I accept that, particularly in a person suffering from ill‑health, as appears to be the position of the pursuer on a number of occasions, medical appointments may be missed.
“I must however have regard to the number of medical appointments the pursuer missed and any explanations she offered. The pursuer offered no plausible explanation for the number of medical appointments she had missed.”
He concluded that Malone, given what he called her “proven history of non-attendance at medical appointments over a long period of time”, had failed to prove her case.
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