New case law further erodes the Bolam test for clinical negligence

Almost two years ago, in March 2015, I wrote about the landmark decision in Montgomery v Lanarkshire Board (Scotland) [2015] .  As a reminder, I have briefly set out the facts of the case below.

Mrs Montgomery was an insulin dependent diabetic and became pregnant with her first child in 1999.  It was well known at that time that diabetes mellitus in the mother carried a risk of a larger than average baby.  In addition, there could be a concentration of weight in the baby’s shoulders, making it the widest part of the baby’s body and leading to a risk of shoulder dystocia occurring in labour; that is when the baby’s shoulders become lodged in the birth canal.  Shoulder dystocia can pose a significant risk to both the baby and the mother.  Mrs Montgomery was classed as high risk and was closely monitored throughout her pregnancy.  She was told that her baby was likely to be larger than average and owing to this and her small stature, she was concerned about giving birth naturally.  Despite this, she was not told of the 9-10% risk of shoulder dystocia occurring in labour or given any other options in respect of delivery of her baby.

Mrs Montgomery attempted a natural delivery but the baby’s shoulders duly became lodged in the birth canal.  Mrs Montgomery’s treating doctor, Dr McLellan, attempted to complete delivery and the baby boy was eventually pulled out some 12 minutes later.  During the course of the delivery, he was starved of oxygen, suffered a brachial plexus injury and was later diagnosed with cerebral palsy as a result of the delivery.

The case turned on both of the issues of consent and causation and Mrs Montgomery initially lost both at first instance in Scotland and on appeal to the Inner House of the Court of Session.  She therefore appealed to the Supreme Court which concluded that the Bolam test was not appropriate in consent cases and allowed her appeal.  At paragraph 87 of the judgment, the Court stated:

“An adult of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken.  The doctor is therefore 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.  The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.”

The Supreme Court found that in respect of Mrs Montgomery, the risk of shoulder dystocia occurring was substantial and that she should have been advised of that risk.  The questions was not of the consequent risk of grave injury to the baby occurring but of the risk of shoulder dystocia occurring and that risk was a material one.  On the issue of causation, their Lordships found that had the risk of shoulder dystocia and its potential consequences been discussed with Mrs Montgomery, then she would probably have opted to have a caesarean section.  Therefore, causation was also established.

It was clear that the decision was going to be of significant importance in cases which turned on the issue of consent and since then, a string of consent cases have followed Montgomery.  It is interesting to see that Montgomery continues to make further inroads into the Bolam test, not only on the issue of consent.

Judgment was handed down last week in the matter of Sebastian Webster (a child and protected party, by his mother and Litigation Friend, Heather Butler v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62.  Sebastian Webster was born on 7 January 2003 at the Queen’s Hospital, Burton on Trent.  He was born with cerebral palsy and has profound physical and cognitive impairment.  It was agreed between the parties that his disabilities were cause by an injury to his brain as a result of a short period of cord compression, which occurred 48 to 72 hours before his birth.  It was further agreed that if he had been delivered before 4 January 2003, he would have avoided the brain injury and its consequences.

His mother, Ms Butler, was given an estimated due date of 27 December 2002.  At the 20 week anomaly ultrasound scan on 13 August 2002, she was found to have a low lying placenta and was to be rescanned at 34 weeks.

That scan was carried out on 18 November 2002 at 34 weeks, 3 days.  The placenta was no longer low lying but other issues had arisen.  The head and abdominal circumferences were in the 25^th and 3^rd centile respectively and this together with the estimated weight made the foetus “small for gestation age” or SGA.  Further there was asymmetry as the abdominal circumference was significantly smaller in proportion to the head circumference.  Lastly, there was excess fluid around the fetus, known as polyhydramnios.

At this point, Ms Butler was under the care of Mr James Hollingworth, consultant obstetrician and gynaecologist.  He noted that the scan had been carried out but did not arrange any further scans to monitor matters nor did he note that the fetus was small for gestational age, the asymmetry nor the polyhydramnios.

It was agreed that he had acted negligently in failing to arrange further ultrasound scanning every two weeks in the light of the fetus being small for gestational age.  The issue between the parties turned on what should have happened had that scanning taken place and particularly on 27 December 2002, which was Ms Bulter’s due date.

On 26 December, Ms Butler was admitted to hospital as she felt unwell.  She was seen by Mr Hollingworth on the morning of 27 December and he noted her as feeling well.  Ms Butler said she felt a little better but did not want to go home as she expected that she would have the baby, given that it was her due date and she was already unwell.  It was the appellant’s case that Mr Hollingworth should have offered her induction of labour that day and had he done so, the brain damage to the baby would have been avoided.  The respondent’s case was that had the scans been carried out, they would have provided reassurance and would not have given rise to a need to give advice about the dangers which might be avoided by induction.

The appellant lost the case at first instance but that decision was handed down before the judgment in Montgomery.  The judge at first instance had applied the Bolam test and had found that Mr Hollingworth had acted in accordance which a responsible body of medical opinion.  The appellant therefore appealed to the Court of Appeal.  The Court held that since Montgomery, it was not appropriate to follow Bolam and that they therefore had to consider what advice and information Mr Hollingworth should have given to Ms Butler on 27 December 2002 and what her response would have been.

It was accepted that the combination of SGA and polyhydramnios was a rare one but there was an emerging, if statistically small, body of study and opinion in respect of the risks the combination posed with regard to fetal mortality.  Lord Justice Simon at paragraph 38 of his judgment stated as follows:

“So far as the presentation of information is concerned, the Judge found… that Mr Hollingworth had failed to inform himself about the implications of the rare combination of SGA and polyhydramnios.  The information should have included a list of anomalies and complications which could not be avoided by earlier delivery, but also the increased risk of perinatal (the period around birth) mortality, including ante partum (before delivery) mortality, based on a very small statistical base.”

Simon LJ’s view was that Mr Hollingworth should have told Ms Butler “that there was an “an emerging but recent and incomplete material showing increased risks of delaying labour in cases with this combination of features”. In turn, in respect of what Ms Butler would have done had she been advised in this way by Mr Hollingworth, the Court found that she would have asked to be induced on 27 December 2002:

“I would add that this conclusion is supported by her clear evidence (that if there had been “any suggestion of risk I would have wanted him to be delivered”), her background (a university degree in nursing) and her willingness to take responsibility for her pregnancy…”

The appeal was therefore allowed.

Webster demonstrates that Montgomery applies not only to cases which turn on the issue of consent but also to cases where treatment generally is in question.  Medical practitioners cannot hide behind Bolam now and excuse their acts or omissions because a responsible body of other practitioners might say they would have done the same.  Whilst Bolam does remain good law, medical practitioners must show that they are properly advising their patients on the material risks and potential outcomes of treatment so that the patient can make their own decisions based on that advice.

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