A GP failed to convince a top judge to overturn an inquiry’s conclusions that an Inverness toddler’s death might have been avoided had precautions been taken.
Jessi-Jean MacLennan died on November 25 2019 from a rare kidney cancer called Wilms tumour found mostly in children.
Culloden Surgery Dr Karen Duncan, one of the medics who treated her, later took exception to the findings of an inquiry into the 20-month-old’s medical treatment.
The dispute culminated in a legal battle at Scotland’s highest civil court which today ruled against Dr Duncan by siding with the outcome of the original probe.
A lawyer acting on behalf of Dr Duncan had previously argued that Sheriff Eilidh MacDonald made an error in reaching her determination which was not supported by evidence taken during earlier court hearings.
However, the Court of Session judge Lady Haldane disagreed with the claims, ruling the sheriff was not wrong to suggest Jessi’s death might have been avoided if Dr Duncan had referred the little girl to specialist care.
Ailing Jessi was only properly diagnosed on a third hospital visit
In November 2019, Jessi collapsed at home and was airlifted to a hospital in Glasgow, where she tragically passed away days later after suffering a cardiac arrest.
It then emerged that Jessi’s mum and dad, Sara, 38, and Paul, 49 – both originally from Brora – had taken Jessi to Raigmore Hospital in Inverness three times in the month of her death.
However, she was only diagnosed on the third visit.
On the first occasion, Sara had told Dr Duncan she could feel a mass on Jessi’s tummy, however, the clinician was unable to fully examine Jessi “as the child was unwilling to cooperate,” a court was told at a previous hearing.
Court of Session in Edinburgh asked to review inquiry’s findings
Dr Duncan didn’t believe that her patient’s tummy had increased in size and she was unable to find any lumps or masses.
Inverness Sheriff 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.
The fatal accident inquiry (FAI) wrapped up in December 2023 when Sheriff MacDonald published her determination.
She concluded that medics might have saved Jessi’s life had they acted differently.
Sheriff MacDonald said Dr Duncan could have referred Jessi to paediatric doctors.
However, Dr Duncan objected to the sheriff’s determination, requesting the Court of Session in Edinburgh to review it.
Dr Duncan’s lawyers asked Lady Haldane to overturn the FAI’s outcome.
During a hearing at the Court of Session, Dr Duncan’s lawyer Paul Reid KC told Lady Haldane that Sheriff MacDonald had misunderstood the law on how FAIs should be conducted.
Mr Reid argued that the evidence heard by the sheriff did not support her findings.
‘An exercise of clinical judgement’
He told the court that Dr Duncan had two options when treating Jessi.
The first was to treat her for constipation and the second was to send the young patient back to the hospital for further assessment.
What followed was “an exercise of clinical judgement,” Mr Reid claimed.
He also acknowledged that the legal challenge would be distressing to Jessi’s family.
The Lord Advocate, Scotland’s most senior law officer, Dorothy Bain KC intervened in the action as she considered the matter in the “public interest”.
Her lawyer John MacPherson argued Sheriff MacDonald had correctly followed the law governing FAIs.
Mr MacPherson added that the sheriff’s determination was supported by evidence and that she had not implied any medical official was negligent.
‘Sheriff made no error’
After the latest hearing, Lady Haldane agreed with that view.
She wrote: “Where there was evidence before the sheriff 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.”
Lady Haldane added that the sheriff could have provided more detail but it wouldn’t have made a difference to the sheriff’s determination.
The Press and Journal asked NHS Highland to comment and the health board referred The P&J to its previous statement on the publication of the FAI’s determination more than a year ago.
Changes made at NHS Highland
A spokesman for the authority said: “NHS Highland participated fully in the FAI and we acknowledge the findings laid out in the determination.
“Since this tragic case, a number of improvements and additions have been made to develop the service within the Paediatric Assessment Unit at Raigmore Hospital.
“We would like to pass on our sincere condolences to Mr and Mrs MacLennan and their family.”
Last January, Jessi’s mum Sara told this newspaper: “We are happy that the changes we wanted have been made at Raigmore Hospital to try and prevent this tragedy from happening to another family.
“We are also pleased that it has been acknowledged that mistakes were made by all the doctors involved in Jessi’s case, which ultimately led to her death.
“Whilst we will never get our beautiful daughter back, the thought that this may not happen to another family brings us some comfort.”
‘A happy, beautiful girl’
Sara and Paul said they would do everything to ensure Jessi is “never forgotten” by them and their other children – Aiden, 16, Lacey, 13 and Indi, three.
“Jessi was the happiest most beautiful little girl who loved to dance, especially to her favorite song, Baby Shark,” Sara added.
“She brought a smile to the face of everyone who met her. She was so loved by all of us, and we all miss her so much.
“We talk about her every single day and will do everything we can to make sure she’s never forgotten.”
Paul said: “Jessi was a really special little girl, everyone who knew her would agree. She never cried and was so happy.
“To lose her in such a preventable way has made it so much more difficult to deal with for all of us. She will be forever in the hearts of her mum, dad and her brother and sisters.”
The couple launched a string of fundraising activities to raise money for the charities Ronald McDonald House and Cancer Research UK in Jessi’s memory.
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