A GP has failed to overturn a sheriff’s finding that a baby girl’s death from a rare cancer might have been avoided if she referred the infant to specialist care.
Dr Karen Duncan’s lawyers asked Court of Session judge Lady Haldane to overturn a determination made by a sheriff following a fatal accident inquiry.
Jessi-Jean MacLennan was 20 months old when she died of Wilms tumour, a rare kidney cancer found in children.
• Death of Inverness toddler from cancer could have been avoided, fatal accident inquiry finds
• More court news
• Sign up to our free newsletters
The medic’s legal team addressed Scotland’s highest civil court following an opinion published in December 2023 by Sheriff Eilidh MacDonald who was sitting at Inverness Sheriff Court.
The inquiry focused on the circumstances surrounding the death of Jessi-Jean.
The infant was born in March 2018 and became unwell in October 2019 when she was referred to the paediatric assessment unit at Raigmore Hospital in Inverness.
Medics at the facility diagnosed Jessi-Jean with constipation and provided her with treatment. However, on November 1, 2019, the child’s mum arranged an emergency appointment with Dr Duncan in the city.
The court heard how Jessi-Jean’s mother told the doctor that she could feel a mass on the left side of the child’s tummy.
However, the court heard how Dr Duncan was unable to carry out a full examination of Jessi-Jean’s abdomen because the child was unwilling to co-operate with examination.
Dr Duncan didn’t believe that her patient’s tummy had increased in size and she was unable to find any lumps or masses.
The court heard how Dr Duncan thought her examination was not as extensive as she would have liked and she did not think her findings were reliable as a result.
On November 6, 2019, Jessi-Jean was referred to Raigmore Hospital as an emergency following a further appointment with one of Dr Duncan’s colleagues.
She was discharged from there with an increased dose of her previous treatment for constipation.
However, on November 15, 2019, Jessi-Jean was re-admitted to Raigmore Hospital after becoming unresponsive at her home. She was then diagnosed as suffering from a cancer called Wilms’ tumour and transferred to Glasgow for treatment.
However, she passed away on November 25, 2019 at the Royal Hospital for Children in Glasgow.
In an opinion published by Sheriff MacDonald in December 2023, she concluded that precautions could have been taken which “might realistically have resulted in Jessi-Jean’s death being avoided”.
Sheriff MacDonald concluded that one of these precautions was for Dr Duncan to have referred Jessi-Jean to paediatric doctors at Raigmore.
This prompted Dr Duncan to challenge the finding at the Court of Session in Edinburgh.
Her lawyer Paul Reid KC told Lady Haldane that Sheriff MacDonald had misunderstood the law on how fatal accident inquiries should be conducted.
He argued that she shouldn’t have made the determination as the evidence before her didn’t support such a finding.
Mr Reid also argued that his client had “two options” available to his client. These were to allow the treatment for constipation that her colleagues at Raigmore had began to continue, while the second option was to send Jessi-Jean back to hospital to a further assessment.
The advocate argued that the choices were an “exercise of clinical judgment” and that his client was entitled to make the decision she made.
Mr Reid also “stressed” that he accepted the fact of challenging Sheriff MacDonald’s determination would be distressing to the family of Jessi-Jean.
The Lord Advocate, Dorothy Bain KC, intervened in the action as it was a matter in the “public interest”.
Her lawyer John MacPherson argued that Sheriff MacDonald had acted in line with the laws on the fatal accident inquiry and was entitled to make the determination.
He argued that the sheriff’s determination was supported by evidence and did not imply negligence.
In a written judgement published today, Lady Haldane upheld the submissions made to her by the Lord Advocate’s legal team.
In the judgement, she wrote of how a fatal accident inquiry is a fact-finding process rather than a judgment of fault.
She wrote: “It follows that I accept the submission for the respondent that where there was evidence before the sheriff, which she accepted, to the effect that a referral to the Paediatric Assessment Unit was a precaution which could reasonably have been taken which might have avoided the death… she was entitled, indeed mandated, to include a finding to that effect in her determination.
“Therefore I can discern no error of law in the approach of the sheriff to this question, and the first ground of challenge accordingly fails.
“It may be a moot point as to how useful any analogy employing the language of ‘winning’ and ‘losing’ might be in the context of an FAI.
“That said, there can be no real dispute that any judicial decision, whether it be in the context of a litigation or an inquiry such as this, should be comprehensible, and set out what evidence has been accepted and which rejected, and the conclusions reached in light of the findings on the evidence.
“Some decisions of course go further and provide detailed analysis of the parties competing contentions and the view taken by the fact finder of those.
“In the present case, Mr MacPherson accepted that the sheriff had not engaged in any detail with the submissions of the parties, but submitted that was not fatal to her determination so far as the petitioner is concerned. It was important to remember that this was not an adjudication between parties.
“I shall repel the first and second pleas in law for the petitioner, sustain the third and fourth pleas in law for the respondent, and refuse the petition.”