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In this post, Anna Walsh (Partner) and Nicole Ellerby (Associate) in CMS’ defendant medical malpractice team consider the awaited decision from the Supreme Court in the Scottish case of McCulloch and Ors v Forth Valley Health Board [2021] CSIH 21.

Overview

The appeal of the decision in McCulloch and Ors v Forth Valley Health Board [2021] CSIH 21 was heard by the Supreme Court on 10 May 2023. The issues appealed to the Supreme Court concern the legal test to be applied when determining whether an alternative course of treatment is reasonable in addition to whether the courts erred in their approach to causation in the previous judgments.

Factual background

The case of McCulloch and Ors v Forth Valley Health Board is a clinical negligence claim brought by Mr McCulloch’s widow and relatives. The claim involves the fatal cardiac arrest of Mr McCulloch following numerous hospital admissions for chest pain, nausea and vomiting between March and April 2012. Following investigations into his symptoms including three echocardiograms, Dr Labinjoh, a consultant cardiologist employed by the defendant, determined that Mr McCulloch’s condition was not life-threatening and discharged him. Mr McCulloch sadly passed away the following day.

The claimants alleged that Dr Labinjoh should have discussed the alternative treatments including anti-inflammatory drugs with Mr McCulloch and that had Dr Labinjoh investigated Mr McCulloch’s condition further with a repeat echocardiogram or prescribed anti-inflammatory drugs, Mr McCulloch’s death would have been avoided.

The first instance decision

Lord Ordinary determined that there had been a breach of duty in respect of the failure to arrange a further echocardiogram but that the causative link had not been proven as the claimant’s case on causation was largely based upon speculation.

Conversely, Lord Ordinary determined that there had not been a breach of duty in terms of failure to prescribe the anti-inflammatory drugs. He could not determine on the expert evidence that Dr Labinjoh’s decision to not prescribe the anti-inflammatory drugs was unreasonable or illogical under the test set out in Bolitho v City and Hackney Health Authority [1998] AC 232 and as such, no breach of duty had occurred.

The final issue that Lord Ordinary considered related to Dr Labinjoh’s alleged duty to discuss the option of anti-inflammatory drugs and the associated risks with Mr McCulloch. In the case of Montgomery (Montgomery v Lanarkshire Health Board [2015] UKSC 11), the Supreme Court held that a doctor “is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.” In the first instance decision, Lord Ordinary applied Montgomery but determined that the duty to discuss alternative treatments and the risks involved does not arise where a doctor has rejected a particular treatment on the basis that the circumstances of the case do not indicate that that treatment is required.

Previous appeals

The case was appealed to the Outer House and Inner House of the Court of Session but the claimants failed on both occasions. Both courts held that the duty in Montgomery does not require a doctor to discuss a particular alternative treatment with their patient if the doctor has concluded that it is not a reasonable option. The appellate courts also held that, even if negligence had been established, the claim would still have failed because the claimants had not proven on the balance of probabilities that the alleged negligence caused Mr McCulloch’s death.

Comment

The Supreme Court will no doubt be weighing up the implications of imposing a duty on clinicians to discuss all alternative treatments and the risks involved where clinicians deem that particular treatment option to be unreasonable. Enhancing the duty in this way would certainly be more onerous for clinicians and lead to a change in clinical practice and indeed allegations relating to consent advanced in clinical negligence claims. The decision is eagerly awaited and will provide helpful clarification on the law in this area.