In August 2015 I wrote a blog about the finding by the High Court that an A&E receptionist was not liable for failing to provide accurate information about waiting times to a patient, that the claimant patient would be seen in 4-5 hours rather than 30 minutes, which resulted in the claimant leaving hospital and returning home rather than waiting to be seen, whereupon he suffered a brain haemorrhage for which, if he had been in hospital, he would have received urgent treatment and avoided his neurological injuries, click here to read my previous blog.

I commented on the judgment of HHJ Robinson at that time:

“In considering whether the reception staff should have told the claimant he would be seen in 30 minutes rather than 4 to 5 hours, the judge concluded that, whilst it was reasonably foreseeable that a patient might leave A&E in the belief that he would not be seen for 4-5 hours rather than 30 minutes and that harm could result, receptionists were not under a duty to guard against harm coming to patients caused by the failure to wait to be seen in A&E and it would not be fair, just and reasonable to impose liability on the receptionist for harm arising in this case as a result of the failure to inform the claimant of the likely waiting time to be seen by a triage nurse. The judge stated that he reached this conclusion on the basis that (a) the duty of civilian receptionists was to complete relevant registration forms competently; (b) provision of (accurate) waiting time information was a courtesy, and not mandatory; and (c) the imposition of liability on reception staff may result in that courtesy (and possibly other courtesies) being removed, which ultimately would be detrimental.

The Judge also concluded that non-clinical staff were not to be the subject of the same legal test as that of clinical staff and were assessed against “the standard of a member of the public exercising common sense” rather than the traditional Bolam test, based on medical expert peer review, used when assessing clinical staff.”

The decision was appealed by the losing claimant, coming to the Court of Appeal before Lord Justices Jackson, McCombe and Sales in March 2017. The primary basis of the appeal was that the judge had erred in assessing the scope of the duty owed by reception staff and had erred in his application of the “fair, just and reasonable” test. A lesser part of the appeal related to the other aspect of the case, that there had been a failure by the nurses to priority triage the claimant within 15 minutes, but this was dismissed with some brevity by the appeal court on the basis of the evidence before the judge.  The hospital again asserted on appeal that the function of the A&E receptionist was a clerical one, namely to take down details of new arrivals and pass them on to the triage nurses; giving information about waiting times was not part of that function. This was to be distinguished from the role of an ambulance telephonist.

Jackson LJ, giving the lead judgment, concluded that, when the receptionist told the claimant that he would be waiting for up to 4-5 hours, she did not assume responsibility for the catastrophic consequences that might befall the claimant should he then walk out of hospital, even if it was foreseeable that that might happen. It would not be fair, just and reasonable to impose upon a receptionist a duty not to provide inaccurate information about waiting times.  The appeal judge, whilst stating he was not usually sympathetic to “floodgates” arguments, expressed understanding about why the trial judge was concerned with opening the floodgates in this instance. In any event, Jackson LJ considered that, even if there had been a duty on the receptionist, the claim could not succeed on the basis that the claimant had walked out of A&E without informing the staff he was about to leave, the damage was outside the scope of the duty and there was no causal link between the damage and the duty.

Sales LJ agreed with Jackson LJ in his finding, albeit for slightly different reasons.  He stated that he did not consider that it was “fair, just and reasonable to impose a duty of fine-grained perfection regarding the information provided [by a civilian receptionist about waiting times]” as it was not part of their “core function” of admitting presenting individuals into A&E but it was, rather, a matter of courtesy and part of a general spirit of helpfulness to the public; an imposition of a duty would lead to defensive practices by hospitals and the withdrawal of the helpful courtesy role.

However, McCombe LJ dissented. In his judgment he points out some salient facts in the case: the information given by the receptionist was not just incorrect, inaccurate and incomplete, but delivered in an uncaring tone, and this was a particularly “bad case”, in the sense that the misinformation was of a 4-5 hour wait rather than a 30 minute wait. The appeal judge felt it was not possible to divide up the functions of reception and medical staff: the duty of the hospital has to be considered “in the round” and the duty was not to misinform, whether by reception staff or medical staff.  Accordingly, McCombe LJ considered that the claimant should succeed.

So, the claimant lost 2-1, with each appeal judge considering it necessary to give their own judgment on the case. In my previous LexisNexis article on the High Court case, I stated: “Whilst one can understand the judge’s concern regarding imposing liability on non-clinical staff, the corollary is perhaps that not imposing any liability does nothing to guard against the provision of grossly inaccurate misinformation. It is perhaps interesting that the judge did not impose any liability rather than impose liability yet find the claimant contributory negligent”.  It seems that McCombe LJ was concerned that the misinformation was “a bad case” (a view with which I have considerable sympathy) but it also seems that Jackson LJ considered the claimant was contributorily negligent.  Either way, whilst the majority in the appeal court agreed with the trial judge that the receptionist should not be held liable, and the claimant lost, there is a distinct lack of consensus as to the legal reasoning; on this basis, it will be interesting to see if the claimant attempts to appeal further.

* 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.*

You may have heard the saying “70 is the new 50”.  Some researchers at King’s College London claim that the most active people in their 70s are as fit as those in their 50s. Ageing does not have to bring poor health and frailty, for those who do regular exercise as instead they can see remarkable health benefits.

I recently acted for a client who could be typified as “ the new 50”. She was a very active lady in her seventies, who enjoyed dancing, exercising and power walking.  One day, whilst walking spritely with her grandson into a local supermarket, she unfortunately slipped on a clear liquid which was outside on the floor.

My client instructed us to pursue a claim against the supermarket shortly after her fall. A letter of claim was sent to the supermarket alleging that they had been negligent in failing to ensure the path to the supermarket was free from a slipping hazard and for their failure to ensure that adequate warning notices or signs were in place.  It was undeniable that the supermarket has been negligent and they therefore quickly conceded liability for the accident.

In order to assess the value of my client’s claim, I arranged a medical appointment for her to be examined by a consultant orthopaedic surgeon. In the expert’s opinion, my client had suffered injuries to her back, knee and hip which were short lived and likely to be fully resolved within 3 months of her accident. He stated that any symptoms after that period were due to her pre–existing degenerative condition even though she had not experienced any symptoms from this before the accident.

My client, being fiercely independent and an energetic lady for her age was more than reluctant to accept this opinion. I therefore arranged for her to see an alternative orthopaedic consultant who carried out a further examination.

The second expert’s opinion was much more favourable for my client because, whilst he appreciated her age, he was able to attribute much more of her ongoing symptoms to her accident. His opinion was that her accident had accelerated her pre–existing degenerative changes by at least 5 years.

In addition to the physical injuries sustained, my client also suffered psychological symptoms as a result of her inability to exercise and socialise, which she truly loved.  I arranged for her to have a significant number of sessions of cognitive behaviour therapy, which were of great assistance to her.

My client required care and assistance at home from her grandchildren and neighbours due to the difficulties she was experiencing as a result of her injuries. I therefore prepared a detailed schedule of financial loss which included help with domestic duties and personal care for a 5 year period.

Once all the relevant information was available, my client approved a settlement proposal, which I  put forward to the supermarket’s solicitors. After a short period of negotiation, we were able to reach an amicable settlement.

My client happily accepted damages of £33,000 to bring her claim to conclusion. Although she may not be able return to all her pre-injury activities, she is happy that her general level of fitness and agility was considered and made a real difference to her claim.

It is always important for solicitors to consider all the individual characteristics of the claimants that they represent, in order to secure the best possible outcome for them. They cannot afford to generalise or overlook a claimant’s pre–injury abilities just because of their age. Age is nothing but a number.

* 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.*

Is it possible to successfully bring a claim against horse owners for injuries sustained as a result of the actions of a horse they have allowed to be ridden?  Horse rider claims are difficult but depending on the circumstances of the accident, can be successful.  For anyone considering pursuing such a claim, it is essential that thought is given to the horse owners’ both actual and “constructive” knowledge of not just the horse, but the rider as well.

For those who have experience with horses, the all too often attitude of horse owners is that they do not consider they owe any responsibility to anyone choosing to ride their horse or horses.  The general view is that this is an inherently dangerous past time and people choose to ride at their own risk.  Whilst of course it is an informed decision to ride and this approach is often accurate, the recent case of Harris v Miller is a stark reminder to horse owners of the care that needs to be taken before allowing another to ride your horse.

Miss Harris was a 14-year old girl who sustained serious injuries, leaving her paraplegic, when she fell off whilst riding a horse belonging to her boyfriend’s mother.  Miss Harris’ case was that she felt apprehensive about riding a large thoroughbred horse, but her concerns were not taken on board by the owner, who dismissed her fears and made no attempt to explain to her the behaviour of this particular horse. Miss Harris alleged that the horse bucked whilst cantering on flat ground, unseating her.   The owner’s insurers denied this was the case;  they said that the horse had dropped its head whilst walking downhill.  They also alleged that Miss Harris had informed the owner that she was an experienced rider.  The owner had accepted this assertion despite not having previously seen Miss Harris ride.

Again in reality sadly, many horse owners take a person’s report of their riding experience at face value without properly assessing their ability and all too often riders overstate their experience.  This was the case here and all the more reason for the owner to have assessed Miss Harris before reaching a decision on whether she had the requisite experience to manage a thoroughbred horse who had “quirks”.

The Court found Miss Harris to be a compelling witness and accepted the fall happened because of the particular behaviour of this horse.  The judge took the view that the owner had breached her duty of care to Miss Harris by failing not only to undertake an appropriate assessment of her riding ability, but also to take into account the particular behaviours of the horse, as well as Miss Harris’ expressed insecurity in relation to riding it.  Had she done so, the Court concluded that a reasonable person would have reached the decision that Miss Harris was not experienced enough for the horse and would not have allowed her to ride.   The Court found for Miss Harris with damages to be assessed.

The moral for horse owners is to ensure that proper assessment of riding abilities is always undertaken before allowing another to ride your horse or one for whom you have responsibility. Failure to do so, could end up in the catastrophic outcome that happened for the young lady in this claim.  Whilst such claims are hard, they can and will be brought.

* 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.*

I recently settled a case for a client who fractured the scaphoid bone in his wrist in March 2011 when he tripped on an uneven paving stone.  My client, who was in his early 40s at the time, was an experienced joiner/carpenter having worked in the industry since leaving school at 15.  Following surgery in April, he was able to return to work in May 2011.

My client continued to work as a joiner but found, despite his surgery, his wrist was still painful.  He had further surgery in September 2012, returning to work on light duties in October 2012.  He continued to try to work as a carpenter but his symptoms increased as his wrist continued to deteriorate.  In September 2014 his symptoms became so severe that he was forced to stop working.

The insurers of the local authority responsible for the pavement admitted fault early on in the case but alleged contributory negligence on the part of my client.  They agreed to provide interim payments to fund private treatment and alleviate his financial difficulties.  My client’s private surgeon recommended that he have wrist denervation surgery to see whether this would help his symptoms.  The surgery did help to some extent and my client was able to return to work on light duties in January 2015.

Both I and the insurers had instructed a separate orthopaedic medical experts to prepare reports on my client’s injuries.  The experts agreed that although my client’s symptoms had lessened following the surgery, his wrist would continue to deteriorate and he would ultimately require full wrist fusion surgery.  Following this surgery he would have no pain in his wrist, but he would have limited movement in the joint.  He would not be capable of continuing to work as a carpenter/joiner or in any role that involved sustained heavy use of the wrist/hand.  He would have to seek employment in a sedentary role.

However, in January 2012, my client had sustained a further injury to his wrist when he hit a punch bag at a theme park.  Whilst the orthopaedic experts agreed on the treatment and likely outcome for the wrist, the insurer’s orthopaedic expert concluded that the first accident was only responsible for my client’s symptoms up until the time of the second accident.  According to him, after this, all my client’s symptoms were due to the second accident. In legal terms, he was saying that the second accident “broke the chain of causation”.

If the insurer’s expert was correct, my client’s claim would be limited to a 10 month period between the first and second accidents as the insurers could not be held responsible for any losses occurring after January 2012.  My client would not compensated for any of the pain he currently experienced, his need for a full wrist fusion, and his inability to earn the as high a wage as he had been receiving as a joiner through to retirement age.

The insurer’s expert based his opinion on his study of various x-rays taken in the months after the first accident which he said showed the fracture was healing.  The fracture following the second accident was also in a different part of the scaphoid bone which again suggested that a separate second accident was the cause of my client’s ongoing symptoms.

I advised the insurers that both sides needed expert evidence from radiologists to give expert opinions on the x-rays.  The expert radiologist whom I instructed concluded that although the fracture did initially appear to be healing after the first accident, the x-rays in the months that followed showed very subtle signs of osteonecrosis: a disease caused by reduced blood flow to the bone, resulting in it being unable to heal properly, becoming brittle and vulnerable to further fragmentation.  In his opinion, the initial fracture in 2011 had damaged the blood supply to the bone so that it was not adequate to allow the bone to heal properly.  Our radiologist was confident that pre-January 2012, although the fracture line did appear to have disappeared, the fracture had not healed.  The whole bone was still in the process of trying to heal, it was brittle as it was without an adequate blood supply and vulnerable to further trauma.  The further trauma in January 2012 then caused it to fragment, resulting in a further fracture in a separate part of the bone, which would not otherwise have occurred.

The insurer’s experts radiologist said the opposite.  In his opinion, the x-rays showed no sign of osteonecrosis and by the time of the second accident, the first injury had healed.  The second injury was therefore a separate event that on its own was responsible for my client’s current symptoms.

The case progressed to a stage where discussions between the experts of the same disciplines took place to see if there were any points of the case that they agreed on so that the issues could be narrowed down.  The radiologists’ discussions were uneventful: both radiologists continued to hold their previous views.

However, during the orthopaedic experts’ discussions, the insurer’s expert conceded that, instead of the initial fracture having healed by January 2012, it was more likely that it was “in the process of healing” so that it was vulnerable to further trauma.  The insurer’s expert reluctantly agreed that, had it not been for the fracture in 2011, the bone would not have been brittle and vulnerable, and the incident in January 2012 would not have caused a further fracture.

It followed that both orthopaedic experts agreed that the second accident on its own could not be said to be responsible for my client’s ongoing symptoms: had the first accident not happened, the second accident would not have caused any problems for my client.  He was therefore entitled to be compensated for his all ongoing difficulties by the insurers.

Despite this U-turn by their orthopaedic expert, the insurers continued to argue that they were likely to succeed in showing that the second accident alone was responsible for the ongoing symptoms on the basis of their radiologist’s opinion.  They offered my client just £25,000 (not including the money they had already provided in interim payments) to settle his claim.

The trial of this case was listed for May 2017 but I pushed the insurers to participate in a meeting to see whether an out-of-court settlement could be agreed.  This took place last week and following intensive negotiations, the insurers agreed to settle the claim for a further £150,000 on top of what they had already paid in interim payments.  My client was very happy with this result.

* 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.*

I wrote a blog in September 2016 about my client who was admitted to hospital with appendicitis but who was not treated appropriately, click here to view my previous blog. That failure resulted in serious injury. Negligence was admitted by the hospital. I have since recovered a substantial damages award for him – £190,000 in settlement of his loss.

My client had been discharged home 3 days after removal of his appendix. It was subsequently found that his appendix stump had been left in situ. That resulted in 4-quadrant peritonitis necessitating open surgery by way of a laparotomy. While he recovered, my client endured having a stoma for 7 months during which time he was unable to work.

Employed as a construction project manager, my client received only part of his earnings while absent from work and lost out on opportunities for promotion resulting in a loss of £12,500. He claimed his further loss of earnings until such time as he anticipated reaching the same level of pay as he would have been expected but for his injury, resulting in further recoverable losses of £57,000.

The injury had a huge impact on my client’s family, including his partner and daughters in particular. My client’s partner cared for him day and night throughout the early days of his recovery and went on to assist over the many months that followed. A particular problem was leakage from the stoma site which resulted in increased washing requirements. An award of £15,000 was agreed.

A particular feature over my client’s recovery period was the constant blockage of his stoma. Being vegetarian my client’s existing diet was not conducive to his newly found clinical position and it had to be changed. To prevent blockages, symptoms of weight loss and to maximise his recovery my client adapted his diet and supplemented what he ate with additional nutritional intake; the increased cost of which was recovered in the claim.

There were other losses too; the cost of additional hospital stays, out of pocket expenses in respect of travel and medication and exercise classes to help rebuild my client’s strength following his eventual discharge from treatment.

The future remained a little uncertain for my client. He was at risk of needing hernia repair and nasogastric surgery, the cost of which was included in the claim. In the longer term it was expected that my client would need to refrain from heavy lifting and that he would suffer from global weakness compared to how he was before. With this in mind, allowance was made for him to have assistance with future DIY and gardening tasks at home.

The anticipated award from a judge for my client’s pain, suffering and loss of amenity may have been as high as £60,000. The eventual settlement reached provided for the upper estimate of what may have been achieved, had the matter proceeded to a contested trial to decide the amount of damages.

The overall settlement of £190,000 represented an excellent outcome for my client and his family. The much needed funds will go some way to ensuring that he can put the ordeal of his treatment behind him.

* 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.*

In June 2015, I wrote an article on a case about the importance of an expert’s conflict of interest, in which the Court had to consider both the procedural and substantive implications of an expert’s conflict that emerged during the trial. Continue reading “An expert’s conflict revisited” →

I have written before about how we at Anthony Gold are enthusiastic supporters of Headway East London “HEL” and the fantastic work it does.

HEL is a charity supporting people affected by brain injury. Working across 13 London boroughs, HEL offers specialist support and services for survivors and their families.

We are particularly happy to be supporting HEL during its 20th anniversary year.

With so much to celebrate, it would be nice if HEL could make 2017 their biggest and most successful year yet. What better way to do so than by getting friends old and new together for a fundraising challenge? There are so many events to choose from in London and further afield.

Rosy Ross, Fund Raising & Development Officer at Headway East London highlights three of her favourite events this year:

The  Headway Take20 Challenge! It works like this:

• HEL gives you £20, for you and your team to invest however you wish. You could use it to buy ingredients for a bake sale / buy raffle prizes / host a bric a brac sale, for example.
• The challenge is launched on 1 April, and teams have 6 weeks to continue reinvesting (and growing) their funds to raise the most money for Headway!
• All the teams will then come together for a celebration event in Acquired Brain Injury Week in May, where the winner is announced proceeds are donated to Headway and its members.

Another really fun event is the 5k/10k Superhero Run (on Sunday 14 May – which also falls within Acquired Brain Injury Week).  HEL has spaces for their own  Headway Heroes – the superhero outfit is provided by the organisers, and you get to choose your favourite.

Thousands of runners in capes limbering up in Regents Park is an unmissable sight, and it’s one of the most fun and accessible sponsored events. You can walk, jog or run, and it’s a pram- and wheelchair-friendly route. You can register your interest here.

The Vitality Run Hackney half marathon (aka the Hackney Half) is another favourite race of Headway East London, as the route goes past their headquarter. That’s on Sunday 30 April,  and is fast becoming one of the most popular half marathons in the country with lots of music in the streets and the party atmosphere spilling into the parks long after the race has finished.   There are a few spaces left, so if you are interested in running the Hackney Half on behalf of HEL, please contact HEL  here.

Headway East London Supper Clubs

Hot off the press is the news that tickets are now on sale for the next Headway Eats Supper Club. The next event is taking place on Thursday 30 March 2017.   For more info and tickets  click here.

* 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.*

Jon Nicholson has achieved a settlement worth a total of £16 million for an eight year old client with severe cerebral palsy caused by medical negligence at the time of his birth.

When approving the settlement, the court made an order to protect our client’s anonymity, so that he is now referred to as STU. He was born in October 2008 following an induction of labour because his mother was suffering from high blood pressure during pregnancy. During the night, STU’s mother experienced very painful contractions, but the midwife just told her to stop complaining, because “That is how it is”. The baby’s heartbeat was not checked until the following morning, when it was found to be pathologically abnormal. The hospital eventually performed an emergency caesarean section, but by then it was too late and STU sustained a severe brain injury.

STU was left with spastic quadriplegia, a profound learning disability, visual impairment and epilepsy. At the time of Jon’s instruction in October 2010, the family were living in wholly inappropriate accommodation with no help with care, no specialised equipment and minimal support from statutory services.

Within 12 months of his instruction, Jon had fully investigated the case with the assistance of some of the country’s leading medical experts and was able to send a detailed letter to the NHS setting out the mistakes made and why STU should be compensated for his devastating injuries. The NHS took 12 months to investigate and respond and then strongly disputed any liability. Jon then promptly commenced court proceedings and within three months the NHS had changed their mind and admitted liability in full. The hospital also formally apologised to STU’s mother for what had happened to him.

At this time, STU was still only four years old and our medical experts advised that it was not yet possible to assess his long term disabilities and needs. The case was therefore put on hold until his seventh birthday, but during this period Jon obtained interim payments totalling £1,250,000 to ensure that his immediate needs were met.

Jon appointed a case manager who was able to organise the renting and adaption of appropriate accommodation near to a good specialist school; a team of employed carers; the latest equipment and adapted transport; and private therapies to supplement the statutory provision. The interim payments funded this support and also the additional costs of holidays (including a trip abroad) and of a professional deputy appointed by the Court of Protection to manage STU’s funds.

Following STU’s seventh birthday, Jon arranged for his future needs to be fully quantified and costed with the assistance of a team of experts. The NHS legal team obtained their own expert reports on these issues and the two sides then met to negotiate an out-of-court settlement. A settlement package was amicably agreed and included a lump sum of £4,750,000; lifetime tax-free annual payments linked to carer’s earnings (£240,000 per annum to age 19 and £300,000 per annum thereafter) and an indemnity whereby the NHS would pay for STU to attend the family’s preferred specialist secondary school if the local education authority would not fund this. The total value of the settlement over STU’s estimated lifetime exceeds £16 million in today’s money.

* 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.*

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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