The scope of the duty of care in clinical negligence

One of the more discussed issues that has arisen in the last few months in a number of clinical negligence cases is that of the scope of the duty of care. Although previously primarily considered in the context of non-medical professional negligence, it has been recently explored in a clinical negligence context in four rather interesting cases. The main case was one that went on appeal, Khan v Meadows [2019] EWCA Civ 152, and three cases since have sought to rely on the appeal Court’s judgment.

Meadows v Khan [2017] EWHC 2990 (QB) was a wrongful birth case. The Claimant wished to avoid having child born with haemophilia. She consulted the Defendant GP who performed a blood test and advised her that she would not have child with haemophilia. However, her child was unfortunately born with both haemophilia and autism. The Defendant admitted that, but for his negligence, the child would not have been born, because the Claimant would have discovered during her pregnancy that her child had haemophilia and she would have had a termination of pregnancy. Yip J. applied the ‘but for’ test of causation and assessed damages in the sum of £9,000,000 which covered losses for both the autism and haemophilia.

The Defendant appealed on the basis that the losses that were associated with the autism were not recoverable, arguing that the judge should have applied the “scope of duty test” as set out in South Australian Asset Management Corporation v York Montague Ltd [1997] AC 191 (‘SAAMCO’). This test protects a defendant from liability for every foreseeable factual consequence of their negligence. SAAMCO was a negligent property valuation case, in which the then House of Lords held that the Claimants could only recover for losses that were within the foreseeable scope of the breached duty of care.

In Khan, the Court of Appeal allowed the appeal. The purpose of the Claimant’s consultation with her GP was a very narrow one – it was simply to establish whether she was a carrier of the haemophilia gene; the wider issue of whether generally the Claimant should become pregnant, and what the risks were, was not part of the consultation. It was a matter of fact that the Claimant would have accepted the risk of having a child born with autism but would not have accepted the risk of having a child with haemophilia. The risk the Defendant GP had taken on was merely to provide accurate information regarding the risk of haemophilia, not autism; the risk of a child being born with autism was not increased by the GP’s advice.

The Court of Appeal considered that the Khan case was akin to the analogy of ‘coincidental causation’ provided by Lord Walker in Chester v Afshar [2005] 1 AC 134: “…if a taxi-driver drives too fast and the cab is hit by a falling tree, injuring the passenger, it is sheer coincidence. The driver might equally well have avoided the tree by driving too fast, and the passenger might have been injured if the driver was observing the speed limit”.

Another rather useful example is that of the mountaineer given by Lord Hoffman in the SAAMCO case: “A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.

 On the Court of Appeal’s principle, the doctor is responsible for the injury suffered by the mountaineer because it is damage which would not have occurred if he had been given correct information about his knee. He would not have gone on the expedition and would have suffered no injury. On what I have suggested is the more usual principle, the doctor is not liable. The injury has not been caused by the doctor’s bad advice because it would have occurred even if the advice had been correct”.

The advice given by the GP in the Khan case was limited and the scope of duty test identified in SAAMCO was determinative. SAAMCO required an adequate link between breach of duty and the particular type of loss claimed, not just a link with a part of the chain of causation, i.e. in this case, the pregnancy. The scope of the GP appellant’s duty was not to protect the Claimant from all the risks associated with becoming pregnant and continuing with the pregnancy.

Khan is a significant and important case on scope of the duty of care, on the basis that it enables a Defendant to seek to apply SAAMCO to cases where they perceive to be some “piggy-back causation” resulting in irrecoverable losses potentially being recovered.

The Australian case of Wallace v Kam [2013] HCA 19 is a good example of what we might expect following the Khan case. In Wallace, the Claimant saw a neurosurgeon for a lumbar spine condition. The surgeon failed to advise the Claimant of the surgical risks of both local nerve damage and of paralysis. The Claimant underwent the surgery and suffered local nerve damage. ‘But for’ causation was met: had the Claimant been properly advised, he would have been concerned about the risks of paralysis and would have decided not to undergo the surgery and would not have suffered any nerve damage. However, the Claimant accepted at trial that the risk of local nerve damage alone would not have dissuaded him from undergoing the procedure. In the circumstances, the court held that the failure to warn of paralysis did not extend to liability for local nerve damage. Of course, if he had suffered paralysis, that would have been different.

The first case in which I had first-hand experience of the argument in Khan was a case I took to trial in December 2018, Kennedy v Frankel [2019] EWHC 106 (QB). In this case, the Claimant had Parkinson’s disease and was taking a dopamine agonist, ropinirole, as treatment. She claimed that the Defendant neurologist, Dr Jonathan Frankel, should have advised her to reduce or stop her ropinirole when it transpired that she was developing a side-effect called Impulse Control Disorder (ICD). ICD is a disorder of compulsion leading in the Claimant’s case mainly to excessive shopping and excessive craftwork. In other cases it may involve pathological gambling and/or hypersexuality. However, in addition to her ICD, the Claimant later on in the sequence of events developed a very unpleasant and damaging psychosis.

Shortly before trial, the Defendant raised the Khan issue. He argued that the psychosis was not within the scope of the duty of care (assuming breach was established), which was to recommend reduction of the ropinirole due to the side-effect of ICD. In effect, the Defendant was arguing that the psychosis was ‘coincidental damage’ and all that could be recovered was ICD-related losses. We considered that the Claimant’s consultation with the Defendant and the advice he gave was in relation to the Claimant’s treatment for her Parkinson’s disease with dopamine agonist medication generally and it was not limited to advice about ICD even if that was the primary reason for which advice was to be given; as such, it was our view that all losses due to the dopamine agonist medication fall within the scope of the duty.

In an interesting twist, the Judge assigned to our case was Yip J. who, of course, was the trial judge in Khan! The Khan issue was raised at the beginning of trial: we argued that it had been raised too late and had not been pleaded; the Judge chose to defer both the procedural pleading point and the substantive legal point until any potential subsequent quantum trial. The trial focused on breach of duty and causation. The Judge found for the Claimant on the basis that, in October 2011, the Defendant should have advised her that her ICD was due to ropinirole and she should reduce or stop the medication. The Judge concluded that, absent the breach of duty, the Claimant would have suffered no ICD from October 2011 and would have avoided the psychosis.

The Khan issue was not determined at trial. The case settled on quantum shortly subsequent to trial, so the issue (and the pleading point) were never determined. If the Defendant had succeeded in persuading the Court to allow his substantive Khan argument on the psychosis to proceed, would he have won the point? It is impossible to know of course, but it is notable that, because the issue was raised by the Defendant so late in the day, the appropriate and necessary expert evidence (from a psychiatrist) was not available to the parties or the court, which may have been problematic.

Another recent case in which the issue arose was Mills v Oxford University Hospitals NHS Trust [2019] EWHC 936 (12 April 2019, heard on 4-8 March 2019), a case in which there were allegations of negligence with respect to both the performance of an endoscopically-assisted neurosurgical procedure for removal of a brain tumour and the obtaining of informed consent with respect to whether the open craniotomy was to be endoscopically-assisted or microscopically-assisted. The Claimant had suffered intra-operative haemorrhage and a resulting stroke and was significantly injured. The Trust contended (amongst other things) that the choice of procedure did not make any difference to the ability to control bleeding and, further, that, if that was correct, and the Claimant had opted for the microscopically-assisted technique, then the complication he suffered (haemorrhage and stroke) would fall outside the scope of the duty to warn, applying Khan. The Claimant contended the opposite: that he suffered the very injury that was the focus of the duty to warn such that causation would be established.

On the judge’s findings at trial, which were for the Claimant on his informed consent case that he would have chosen microscopically-assisted surgery, the scope issue in fact did not arise. However, the judge confirmed that, if it had arisen, it would have been rejected, concluding that the Claimant “should have been advised of the possibility that using the endoscopically-assisted technique could pose a greater risk to structures and vessels that were not within the surgeon’s direct line of sight. The risk of damage to a vessel that was not within [the surgeon’s] direct line of sight is one which eventuated. This is a case where ‘the misfortune which befell the claimant was the very misfortune which was the focus of the surgeon’s duty to warn’: Chester v Afshar [2005] 1 AC 134, per Lord Walker at [94]”.

A fortnight later (26 April 2019, but heard in December 2018 and January 2019), another case was reported in which the Khan issue reared its head: Pomphrey v Secretary of State for Health, North Bristol NHS Trust [2019] 4 WLUK 483. In this case, there was a negligent delay in the performance of surgery to decompress spinal stenosis. On a point of causation, the Claimant asserted that the dural tear which occurred would not have occurred had the surgery taken place earlier. The Defendant argued that the risk that the Claimant would sustain a dural tear was a risk inherent in the surgery and the delay did not alter the magnitude of the risk: the injury was liable to occur whenever the surgery was performed and whoever performed it. Importantly, on the scope of duty point, the Defendant asserted that the Defendant’s scope of duty did not extend to avoiding a risk inherent in the surgery that the Claimant was to undergo; the fact that the Claimant sustained a dural tear was coincidental and not within the scope of the Defendant’s duty. The Judge agreed with the Defendant: the relevant duty breached was the duty to avoid unreasonable delay (not the duty to avoid a dural tear) and the fact that the operation would have taken place on a different day was not sufficient, without more, for the Claimant to establish causation.

The impact and degree of traction that scope of duty and Khan-type arguments will have in any given case will, needless to say, depend upon what exactly the duty is that has been breached and what exactly the harm is that has been suffered: however, it is apparent from the recent cases that attempts to narrow the scope of duty in the clinical negligence setting by applying Khan are here to stay and no doubt that will be some further case law to come.