Andrews, George Andrews Against Greater Glasgow Heath Board [2019] ScotCS CSOH_31 (22 March 2019)

…the deceased who died on 8 January 2013 in Glasgow Royal Infirmary. She was 77 years of age. The cause of the deceased’s death was recorded on her death certificate as being: I (a) Ischaemic Bowel and (b) Superior Mesenteric Artery Thrombus and II Atrial Fibrillation and Ischaemic Heart Disease. [1]

D’s negligent failure to advise the deceased that she required to be admitted resulted in the deceased’s admission to hospital being set back by around 24 hours. If the Ds are correct in saying that there is a conceptual problem for the pursuer in proving ‘but for’ causation because the starting point of the deceased’s acute mesenteric ischaemia (“AMI”) cannot be scientifically identified … In effect, there would then be two concurrent causes of a single indivisible outcome (ie the deceased’s death): (i) the clinical negligence and (ii) the non-negligent cause. Especially where it is not feasible for medical science to disentangle the ischaemia due to the negligent delay from the ischaemia that would have arisen in any event, the ‘but for’ rule falls to be modified… the question on that hypothesis would resolve into whether D’s negligence caused a material delay in diagnosis and treatment – ‘material’ in the sense that it made a real (or meaningful or significant) contribution towards the death. In the context of such a serious condition as AMI it is reasonable to conclude that a period of delay in the region of 24 hours made a material contribution to the deceased’s death. It follows that even taking Ds’ approach to causation at its highest, the pursuer would still succeed because on the balance of probabilities the negligence made a material contribution to the outcome. [168]