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Emily_Dorotheou_phNadine Montgomery (“NM”) brought a claim against Lanarkshire Health Board arguing that the delivery of her baby Sam Montgomery fell below the standard to be expected of a reasonably competent obstetrician.

Background

The claimant was diabetic and of small stature and, as diabetic mothers are likely to have larger babies, NM was at an increased risk of experiencing problems with delivery. Sam’s head was delivered by natural birth at 17.45 but the rest of his body could not be delivered due to shoulder dystocia until 17.57. During these 12 minutes, Sam’s brain was deprived of oxygen. Following these complications Sam was diagnosed with cerebral palsy.

The claimant argued that no ordinarily competent obstetrician acting with reasonable care and skill would have:  (i) undertaken the same management of the labour as Dr McLellan (“ML”), her consultant obstetrician, (“Management of Labour Argument”); and/or (ii) failed to disclose the risks and obtain informed consent from NM (“Informed Consent Argument”).

Both arguments were rejected by the Outer House (Scotland) in 2010 and NM appealed both issues to the Inner House (Scotland) in 2013.

Management of Labour Argument

The Management of Labour Argument largely revolves around the interpretation of the cardiotochograph trace, and the steps that ought to have been taken in response to what was indicated by the trace.

The Outer House considered the cases of Hunter v Hanley [1955] SC 200 and Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. In order to establish the liability of a doctor: (i) there must be a usual and normal practice; (ii) the defendant must have not adopted this practice; and (iii) the course adopted is not one which a responsible body of medical men skilled in that particular form of treatment would have taken. The House further considered the case of Bolitho v City and Hackney Health Authority [1998] AC 232 which found that the court has to be satisfied that the body of medical opinion relied upon has a logical basis.

Lord Bannatyne stated that it was not his task “to prefer one body of evidence to another rather it was for the pursuer to demonstrate that the views of the defenders’ experts were illogical or irrational.”[1] He found that ML and her experts could be described as reasonable and responsible, and had weighed any risks and benefits before reaching their conclusions. Therefore their conclusions could not be described as “irrational or illogical or unreasonable”[2]. The Outer House also noted that the doctors had taken into account other factors and had not looked at the cardiotochograph trace in isolation. The Inner House confirmed Lord Bannatyne’s conclusions, commenting that one should consider “whether in the whole circumstances the clinical decision taken is defensible as being within the range of decisions reasonably available to an ordinarily competent obstetrician at the material time”[3].

Informed Consent Argument

The basis of the Informed Consent Argument was that no ordinarily competent obstetrician acting with reasonable skill and care would have failed to warn NM of the risks of vaginal delivery and shoulder dystocia. ML agreed that she did not mention shoulder dystocia as she did not consider the risk to be of such significance that it was appropriate to raise it with NM.

Both Houses considered the case of Sidaway v Board of Governors for Bethlem Royal Hospital and Others [1985] 1 AC which held that the Bolam test would determine whether an omission to warn a patient of inherent risks of a proposed treatment constituted a breach of the doctor’s duty of care. However NM argued that Pearce v United Bristol Healthcare NHS Trust [1999] ECC 167 extended this duty to disclose risks where “there is a significant risk which would affect the judgment of a reasonable patient”[4].

The Outer House found that “it is to the risk of adverse outcome to which the court should have regard when considering whether a warning should be given”[5], as a low likelihood of an adverse outcome would not affect the judgment of a reasonable patient. The risk involved here was that of an adverse outcome following shoulder dystocia and not the risk of shoulder dystocia itself. Lord Bannatyne found the consequential risk from shoulder dystocia fell “far short of amounting to a substantial risk of grave consequences”[6] and that therefore ML was not under a duty to unilaterally disclose it to NM.  The Inner House confirmed this point, emphasising “what is of interest to the patient must be the outcome, adverse or otherwise, and not some possible complication for the medical practitioner which, if it arises, can be dealt with by ordinary procedures entailing no adverse consequences for the patient”[7]. It did not agree that Pearce signified a departure from the Bolam test under Sidaway.

Both houses agreed that in the event that specific questions about the risks of a particular course of treatment were raised then the doctor must truthfully respond to those enquiries. However Lord Bannatyne found that “there is a material difference between expressing concern and specifically raising the question of risks”[8]. The Inner House agreed stating that “the harbouring or communication of general anxieties or concerns, in a manner which does not clearly call for the full and honest disclosure of factual information in reply”[9] does not engage the duty to disclose risks when asked.

Causation

The Houses also discussed obiter the issue of causation and found that, even if NM had been aware of the risks of shoulder dystocia, she would have proceeded with a natural birth as “[the House] is unable to identify any factors which would point towards her not adopting that course”[10]. Lord Bannatyne considered Chester v Afshar [2004] UKHL 41, which found that the causation test was influenced by the duty to warn of risk, but decided that the circumstances of Chester “are odd and the decision is very much fact specific”[11]. The Inner House confirmed that Chester did not alter causation principles.

Appeal to the UK Supreme Court

NM appealed both issues to the Supreme Court and the appeal was heard on 22 and 23 July 2014. Previous case law has so far established a very high hurdle for claimants to overcome in order to show that a defendant doctor’s medical opinion is indefensible.

It remains to be seen whether the Supreme Court’s decision in this appeal will represent any departure from that principle.

 

 

[1] Para. 183, Outer House judgment

[2] Para 198, Outer House judgment

[3] Para 65, Inner House judgment

[4] Para 21, Pearce

[5] Para. 233, Outer House judgment

[6] Para 234, Outer House judgment

[7] Para 29, Inner House judgment

[8] Para 263, Outer House judgment

[9] Para 36, Inner House judgment

[10] Para 267, Outer House judgment

[11] Para 268, Outer House judgment