- Head of Medical Negligence
On 16 September 2016 Lord Brailsford issued his decision in the medical negligence case of KR v Lanarkshire Health Board  CSOH 133.
This was an obstetric injury case that went to proof on the question of liability only; causation having been agreed between parties in advance. This agreement, set out in a Joint Minute, stated that the child had suffered an acute hypoxic injury in the 30 minutes prior to birth in December 2007 and that had delivery occurred any time before the final 30 minutes of the labour such injury (brain damage causing cerebral palsy) is unlikely to have been suffered.
There were two principal breaches of duty the Pursuer sought to prove in the case.
Firstly, that the Registrar involved should have sought the advice of a Consultant that would have resulted in a Caesarean Section procedure being initiated or, following subsequent reviews, expedited delivery. Secondly, that the Registrar failed in her duty to discuss non-reassuring features and the options including urgent delivery by Caesarean Section to enable the patient to make an informed decision and provide informed consent to the continuing progress of her labour.
The first question of liability falls within the long established legal test for clinical negligence as set out in the case of Hunter v Hanley from 1955. This requires the pursuer to prove the doctor, in this case the Registrar, acted in a way that no Registrar of ordinary skill and care would have acted when exercising ordinary care.
The Pursuer’s second breach of duty falls within the recently developed legal test for informed consent and the duty of a doctor towards a patient in relation to advice about treatment as set out in the decision of the Supreme Court last year in the case of Montgomery v Lanarkshire Health Board. This authority states the doctor is under a duty to take reasonable care to ensure the patient is made aware of any material risks involved in any recommended treatment and of any reasonable alternative of variant treatments. The test of materiality was whether a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor was or should reasonably have been aware that the particular patient was likely to attach significance to that risk. For a full analysis of the Montgomery decision please see our previous article.
In terms of the first breach of duty, in his judgment Lord Brailsford decided the terms of the guidelines in place at the time advised that where there is clear evidence of acute fetal compromise blood sampling should not be undertaken but there should be urgent preparation to expedite birth and deliver the baby. Lord Brailsford considered the threshold identified in the guidelines was met in this case and the Registrar in failing to follow such guidance was in contravention of the advice. This was compounded by the Registrar being relatively inexperienced and failing to seek the advice of a senior colleague. These combined features allowed Lord Brailsford to be satisfied that the Registrar’s management was negligent.
Turning to the second breach, Lord Brailsford stated that he was satisfied that, on the evidence, there was no discussion at any point during the labour (with one exception) between the Registrar and the patient about management of this labour. That a point was reached where there were two alternative approaches to the management and these should have been explained to the patient and the risks associated with each also explained. In Lord Brailsford’s opinion had such an explanation been given to the patient she would have been provided with sufficient information to permit her to make an informed choice as to which course to take. The fact this approach was not taken renders the case in point with the decision in Montgomery and therefore the Pursuer had also proved the second breach of duty.
This is the first Scottish decision to consider and apply the law on informed consent as now set out in the case of Montgomery. The decision is therefore a useful insight into the manner in which the Scottish Courts will interpret this recent shift in the relevant test. The decision is also a helpful reminder of the traditional application of the test for clinical negligence and what a Pursuer requires to do in order to not only prove their case but also put the Judge in a position whereby he or she can assess the competing views contained within expert evidence and conclude the views of the experts instructed by one party (in this case the Defender) lacked a logical basis.
For further information on the matters covered in this article please contact Robbie Wilson or your usual contact at Anderson Strathern.