The family of an Ayrshire grandad who died from kidney cancer has been allowed to continue its legal action against NHS Ayrshire and Arran after a Court of Session judge rejected an attempt to have the case dismissed.
Roy Lever, 76, died from renal cancer in November 2022. His widow, children, grandchildren and brother are suing the health board over an ultrasound scan carried out in July 2021, which they claim should have identified signs of a tumour.
The family accepts that Mr Lever’s cancer was incurable. However, they allege that negligence in reporting the scan delayed his diagnosis and treatment. They claim he would have lived for another year if further investigations had been carried out earlier.
What the family alleges
Mr Lever was treated at both Ayr and Crosshouse hospitals. The family alleges that the sonographer reported the July 2021 ultrasound as normal when it should have raised suspicion of a renal tumour.
The pursuers claim an earlier diagnosis would have allowed Mr Lever to receive treatment, avoid some of his symptoms and have his life prolonged by a year. They say he later underwent a CT scan on September 26, 2022, which revealed a large tumour in his right kidney. Multiple metastases were then found in both lungs.
The family is seeking damages from NHS Ayrshire and Arran, including compensation for distress and anxiety experienced while contemplating Mr Lever’s suffering, as well as grief and sorrow following his death. His widow is also making a claim for the loss of his personal services.
Judge says case can go to full hearing
At a hearing earlier this month, lawyers representing the health board challenged the claim that Mr Lever died “in consequence of” personal injuries caused by the sonographer’s alleged negligence.
The legal dispute centred on the interpretation of section 4(3)(b) of the Damages (Scotland) Act 2011. The health board’s legal team argued that the family would have to prove that Mr Lever would not have died “but for” the alleged omission.
Lord Harrower rejected the attempt to end the action at this stage. He ruled that it was sufficient for the family to argue that Mr Lever died earlier than he would have done if the cancer had been detected.
“Death comes to us all at some point. Indeed, there is a sense in which every action in damages for a wrongful death is an action for a wrongful acceleration of death.”
“It is enough that the act or omission caused or at least materially contributed to A's death.”
The judge concluded that the pursuers’ action should proceed to proof, meaning a full evidential hearing will take place before any decision is made on the alleged negligence.
NHS Ayrshire and Arran said it was unable to comment on the ongoing case. The ruling allows the family’s claim to continue, but does not establish that the health board or any individual acted negligently.