April 13, 2017

Too radical, too late

Can a pursuer bring in a new case by amendment after the triennium has expired? It is a matter for the court’s discretion, Lady Stacey reminds us in Sellar –v- Greater Glasgow Health Board [2017] CSOH 56.

Mr Sellar had an artificial urinary sphincter (“AUS”) implanted after treatment for bladder cancer. He had problems with the device, suffering pain and incontinence.  To investigate, he underwent flexible cystoscopy performed by Mr Rajan in March 2011. Afterwards, he was uncomfortable, could not empty his bladder properly and was persistently incontinent. The AUS was eventually removed in November 2011, when it was discovered the cuff of the sphincter had eroded completely through his urethra.

Mr Sellar sued the health board, alleging Mr Rajan had carried out the cystoscopy negligently. He asserted that prior to inserting the cystoscope, the AUS must be deactivated. It can then be reactivated once the procedure is complete. He claimed Mr Rajan did not reactivate the AUS correctly and mishandled it, damaging the device and causing it to erode through his urethra. He raised proceedings in February 2014, very shortly before the three-year limitation period expired.

In March 2017, Mr Sellar introduced a minute of amendment. He sought to delete his allegation that Mr Rajan did not reactivate the AUS correctly and instead alleged the damage to the AUS was caused when Mr Rajan failed to deactivate it and inserted the cystoscope through the inflated cuff. The health board opposed this.

Counsel for the health board argued this was an altogether different allegation and an attempt to introduce a new case after the triennium had expired. It came nearly six years after the cystoscopy took place, and nearly three years after the action was raised. The delays in court procedure caused by Mr Sellar were a factor militating against introduction of a new case at this late stage.

In reply, counsel for Mr Sellar argued the amendment did not represent a radical change. Rather, it was the same allegation of negligence as before – that the cystoscopy had not been carried out correctly. The amendment simply provided further specification of Mr Sellar’s case. The procedural delays had been due to setbacks in obtaining a medical report.

Lady Stacey refused the amendment. She did not accept Mr Sellar’s argument that this was the same allegation of negligence, only more specific. Instead, she found it was a radically different case. She stated, “Whether there is a new case in the minute of amendment is a matter of degree, to be decided in the context of the case.” The health board was entitled to know what Mr Rajan was alleged to have done wrong, what normal practice he has failed to follow and how any such failure has caused loss. The delay was also a factor to weigh up.

Whether a late minute of amendment will be allowed in any given case is judge-dependent. However, when it comes to allegations of clinical negligence, generalities will not suffice. The pursuer must identify the specific duty he says has been breached, how standard practice has been departed from and how that departure has caused his loss. He would also be wise to do as early as possible; otherwise, he may find his claim timebarred.

Authors: Graeme Watson and Karen Rowney.