Negligent antenatal disclosure and management of labour

Medical Law Review

Volumn 19, Issue 1, 2011, Pages 140-149

  Heywood, Rob ^a  

^a UNIVERSITY OF EAST ANGLIA   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; BIRTH INJURY; DELIVERY; DYSTOCIA; FEMALE; FETUS HYPOXIA; HUMAN; INTERPERSONAL COMMUNICATION; LEGAL ASPECT; MALPRACTICE; PREGNANCY; PRENATAL CARE; UNITED KINGDOM;

BIRTH INJURIES; DELIVERY, OBSTETRIC; DYSTOCIA; FEMALE; FETAL HYPOXIA; HUMANS; MALPRACTICE; PREGNANCY; PRENATAL CARE; SCOTLAND; TRUTH DISCLOSURE;

EID: 79951890013     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwr002     Document Type: Article

References (36)

1. [2010] CSOH 104.
2. 2010 WL 3073077.
3. Montgomery at [22].
4. Montgomery at [22].
5. Montgomery at [24-32].
6. See, for discussion, J Montrose, 'Is Negligence an Ethical or Sociological Concept' (1958) 21 Modern Law Review 259.
7. Bolitho v City and Hackney Health Authority [1998] AC 232.
8. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
9. The Bolam test, as articulated by McNair J, states that a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. The controversial aspect of Bolam was that a doctor was not negligent merely because there was a body of medical opinion who would take a view to the contrary. This effectively meant that as long as one body of medical opinion could be found to support the defendant's actions, there was no negligence. This position was mirrored in Scotland.
10. See Hunter v Hanley 1955 SC 200.
11. See, for a general discussion on how the law has moved on since Bolam, M Brazier and J Miola, 'Bye-Bye Bolam: A Medical Litigation Revolution?' (2000) 8 Medical Law Review 85.
12. Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634.
13. Montgomery at [205].
14. Montgomery at [205].
15. Montgomery at [206].
16. See, for discussion, H Teff, 'The Standard of Care in Medical Negligence - Moving On From Bolam' (1998) 18 Oxford Journal of Legal Studies 475 at 481.
17. Montgomery at [205].
18. It was established as fact that no scan took place at the thirty-eighth week of pregnancy as the defendant decided that the pursuer was being made more anxious by these and it was not psychologically beneficial for her to have a further scan. Montgomery at [9].
19. See, for discussion, R Heywood, 'The Logic of Bolitho' (2006) 22 Journal of Professional Negligence 225 at 230.
20. There were at least two specific sections of the CTG trace which were suggestive of the fact that things were not as they should be. At 12:30 the pursuer's experts claimed that intervention was necessary, not because of the presence of non-reassuring factors such as decelerations, but because of the occurrence of a secondary arrest which was indicative of likely mechanical difficulties in the delivery. The defendant's experts differed in their views as to the cause of the secondary arrest and the judge sided with them (Montgomery at [211]). Equally, at 15:50 it appeared, on the defendant's own evidence, that she admitted the trace was pathological yet still did not intervene. It was held that this was an 'oversimplification' of what the defendant actually meant in her evidence (Montgomery at [214]).
21. Montgomery at [238].
22. Montgomery at [248].
23. The estimated birth weight of the baby was 3.9 kg. Montgomery at [229] and [241]. This estimate was not challenged.
24. Montgomery at [229].
25. Montgomery at [223].
26. Per Lord Bridge in Sidaway v Board of Governors of the Bethlem Royal Hospital and Others [1985] AC 871 at 900.
27. Pearce v United Bristol Healthcare Trust (1998) 48 BMLR 118.
28. Chester v Afshar [2004] UKHL 41.
29. [1] AC 134.
30. See also Wyatt v Curtis [2003] EWCA Civ 1779.
31. Montgomery at [227].
32. There is authority to suggest that the 10 percent risk of shoulder dystocia developing is the risk that ought to have been focused on rather than the risk of the adverse outcome. Despite the claimant eventually losing, this approach was adopted by Mr Justice Nicol in Jones v North West Strategic Health Authority [2010] EWHC 178; [2010] Med LR 90, a case which was referred to by Lord Bannatyne in Montgomery, but which was ultimately rejected for what seems to be a questionable interpretation of the differences between Pearce and Sidaway. Montgomery at [234].
33. In Chester, above, n 28, the question of negligent disclosure focused on elective surgery. The patient stated that had she been warned of the risk, she would not have had the surgery on the particular day, but did not rule out having it as some point in the future. As she may well have run the risk at some time in the future, strictly speaking the test for causation was not satisfied. Nonetheless, House of Lords found for the patient. In Montgomery, the mother was not in an identical position in that it was not specifically elective surgery where she would have the time for considered reflection. Had it been necessary to rule on this point, which it was not, it seems her case may have failed on a simple application of the 'but-for' test. She claimed that she would not have opted for a natural delivery and instead would have chosen a caesarean section had she been told about the risks inherent in the former. Whilst the test for causation remains predominantly subjective, there is room to balance this against any objective considerations and for Lord Bannatyne there were too many factors which suggested that, even if she had have been told, she would not have opted for a caesarean. This is, of course, open to interpretation. Montgomery at [266].
34. EWHC 2237 (QB).
35. [2008] 104 BMLR 168.
36. It is worth noting that Birch, above n 34, and Jones, above n 31, are both English decisions (as indeed are the other key authorities referred to in this piece). Strictly speaking, therefore, they are only persuasive authority in Scotland. It may well be that the intention of the Scottish courts is to travel in a different direction than their English counterparts in this field, but that seems highly unlikely.