A narrowing of the scope of duty of care in clinical negligence, or the correct interpretation? Today’s Supreme Court decision in Khan (Respondent) v Meadows (Appellant) [2021] UKSC 21

Today’s Supreme Court decision in Khan (Respondent) v Meadows (Appellant) [2021] UKSC 21

Defendant and Claimant clinical negligence solicitors alike have been waiting for the Supreme Court decision in Khan, and today we received that judgment.

Summary background
By way of brief recap, although for a more detailed analysis I would refer you to Jock Mackenzie’s previous blog on this issue, the Appellant’s (Ms Meadows) child was born with haemophilia and autism. During her pregnancy, Ms Meadows consulted the Respondent (Dr Khan) to establish whether her child carried the haemophilia gene. After various blood tests, Ms Meadows was wrongly led to believe that any child she had would not have haemophilia.
Had Ms Meadows been correctly informed that she was a carrier of the haemophilia gene, she would have undergone foetal testing, been advised that the foetus was affected, elected to terminate her pregnancy and the child would not have been born.

Dr Khan admitted that “but for” her negligence, the child would not have been born. It was accepted that Dr Khan was liable for any costs associated with the child’s haemophilia. The issue in the case was whether Ms Meadows could also claim for the costs associated with her child’s autism: Dr Khan’s contention being that these costs fell outside of the scope of her duty of care, as the child’s autism is unrelated to his haemophilia (although it is accepted that the child’s autism makes management of his severe haemophilia more complex).

First Instance Decision
The High Court held that Dr Khan was liable for both the costs associated with the child’s haemophilia and his autism. Yip J. applied the straightforward test of “but for” causation: namely that “but for” Dr Khan’s negligence the Claimant would not have had a child. She considered that the pregnancy was “indivisible” [§56] and, in reaching her conclusion, considered the case of Parkinson v St James and Seacroft University Hospital NHS Trust [2002] QB 266: “The courts have already determined that damages may be recovered for the costs of raising a disabled child born as a result of a doctor’s negligence even though there is no direct link between the negligence and the disability. fair, just and reasonable to draw a distinction between the mother in this case who would have wanted to terminate this pregnancy and the mother who would have wanted to terminate any pregnancy” [§68].

Court of Appeal Decision
Dr Khan appealed on the basic premise that the purpose of Ms Meadows’ consultation was narrow: was she a carrier of the haemophilia gene. The wider issue of the risks of pregnancy generally were not a part of the consultation. Dr Khan’s position was the Yip J. had misapplied the “scope of the duty” test as set out in SAAMCO. The Court of Appeal concluded that the test in SAAMCO was “not only relevant but determinative of the issues which have to be addressed by a court”. In considering the three stage test, Davies LJ concluded [§26] that:

1. The purpose of the consultation was to enable Ms Meadows to make an informed decision about any future child she conceived who was found to carry the haemophilia gene;
2. With respect to the appropriate apportionment of risk, taking account of the nature of the advice/procedure/information, the doctor would be liable for risk of a mother giving birth to a child with haemophilia. All other pregnancy and birth related risk would be borne by the mother.
3. “The loss which would have been sustained if the correct information had been given and appropriate testing performed would have been that the child would have been born with autism”

Ultimately, the Court of Appeal concluded that the child’s autism was a “coincidental” injury, and not one which fell within the scope of Dr Khan’s duty of care. The issue which the Court of Appeal neatly side-stepped, was whether in the context of clinical negligence the SAAMCO principles were appropriate and if so, how they should be applied, as Nicola Davies LJ concluded that Khan was not a novel case, but involved the application of established legal principles.

Supreme Court Decision
The opening paragraph of the Supreme Court Judgment, to this medical claims solicitor’s mind, rather gave the game away as to which way the decision was going to go: I did not even need to skip ahead to the “sports pages”.

Interestingly, the Supreme Court have attempted to provide clarity on the role of scope of duty principles in negligence cases by asking 6 questions in sequence [§28].
1. Is the harm (loss, injury, and damage) which is the subject matter of the claim actionable in negligence? (the actionability question)
2. What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (the scope of duty question)
3. Did the defendant breach his or her duty by his or her act or omission? (the breach question)
4. Is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (the factual causation question)
5. Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the defendant’s duty of care as analysed at stage 2 above? (the duty nexus question)
6. Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause (including novus actus interveniens) in relation to it or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid? (the legal responsibility question)

In their view, “adoption of an analysis of this nature provides a helpful structure in which to assess the role of the scope of duty principle, “but for” causation and foreseeability of harm in the context of claims of clinical negligence. The product of this analysis assists in the determination of the extent of the claimant’s entitlement to damages in accordance with the principle that the law in awarding damages seeks, so far as money can, to put the claimant in the position in which he or she would have been absent the defendant’s negligence.” [§58]:

When it comes to foreseeability, the Supreme Court concluded that the same whilst relevant to scope of duty is not determinative. The scope of duty question principally turns upon the nature of the service the Defendant undertakes to provide. Foreseeability is, seemingly, a “legal filter” akin to remoteness of damage [§65]. Finally, the Supreme Court also concluded that there is no principled basis for excluding clinical negligence claims from the scope of duty principles as applied in SAAMCO, nor is there any basis of confining them to pure economic losses arising in a commercial context [§62].

In applying the above 6-stage test to the facts in Ms Meadows’ case, the Court concluded that the Appeal should be dismissed, essentially agreeing with the Court of Appeal that: 1) Dr Khan’s advice related to the specific risk of autism; 2) the law did not impose on Dr Khan any duty in relation to unrelated risks (such as autism) which might arise in any pregnancy; 3) when applying the SAAMCO counterfactual scenario, if Dr Khan’s advice had been correct and all else remained the same, the child would have been born with autism and 4) the law imposed on Dr Khan responsibility for the foreseeable consequences of the birth of a child with haemophilia.

Some Closing Thoughts
As a clinical negligence solicitor, I am somewhat disappointed, if not surprised, that the Supreme Court has upheld the Court of Appeal decision. Whilst the Supreme Court seem to have attempted at §63 to indicate that a “large majority” of clinical negligence cases will not require application of the scope of duty principles, I suspect that Claimants will be now regularly be faced with the argument that the purpose of various specific consultations was narrow and the losses they are claiming fall outside the scope of the treating clinicians duty.

I also wonder whether there is wider danger to medical consultations generally. How will this affect, for example, a radiologist who is asked to review a film with a specific purpose in mind, but extraneous to that purpose there are other anomalies to be seen on that scan? Furthermore, will this lead to greater enforcement of the “one issue one GP consultation” practice that has arisen. Confining consultations to “specific purposes” in an attempt to limit liability cannot be allowed to become the norm. Such a practice may run the risk of clinicians not looking at the totality of a patients’ symptoms and results.

Only once the dust has settled will we start to see the impact of this decision: both in the legal and medical world.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.