Medical Negligence News

Compensation Claim for the Failure to Advise of Risks Resolved at Court

Posted on: March 11th, 2015 by Medical Negligence

A landmark compensation claim for the failure to advise of risks associated with a natural birth has been resolved at the Supreme Court in London.

On 1st October 1999, Sam Montgomery was born at the Bellshill Maternity Hospital in North Lanarkshire having been deprived of oxygen when a medical emergency occurred during his birth – Sam´s shoulder having got trapped during the delivery process and it taking twelve minutes to free him.

Sam suffered shoulder dystocia and a brachial plexus injury which still affects him today; but the deprivation of oxygen during the procedure to release the shoulder – and his subsequent resuscitation – caused Sam to suffer permanent brain damage and he was diagnosed with cerebral palsy.

Despite the medical team at the hospital having done everything they could have “at the time and in the circumstances” to ensure a safe delivery, Sam´s mother – Nadine Montgomery – sought legal advice and subsequently made a compensation claim for the failure to advise of risks against NHS Lanarkshire.

Nadine alleged in her claim that her consultant obstetrician and gynaecologist – Dr Dina McLellan – should have warned her there was a higher than average chance her son would suffer shoulder dystocia during the delivery, as Nadine is a petite woman who also suffers from Type 1 diabetes.

When the compensation claim for the failure to advise of risks went to the Outer House of the Court of Session in Edinburgh, the court was told that women with Type 1 diabetes are more likely to have bigger babies, that Nadine had expressed concerns during her pregnancy about delivering the baby safely and that – had she been told of the risks – Nadine would have chosen a Caesarean Section operation over a natural birth.

Lawyers representing Dr McLellan and NHS Lanarkshire argued that the consultant´s duty to advise Nadine of the risks associated with a natural birth only applied if there was “a high probability of a grave adverse outcome”.  As the risk of shoulder dystocia occurring during Sam´s birth was considered to be 9%-10%, Dr McLellan chose not to advise Nadine of the risks.

The Outer House of the Court of Session found in the consultant´s favour, as did the Inner House of the Court of Session when Nadine appealed the original verdict. Nadine took the compensation claim for the failure to advise of risks to the Supreme Court, where a panel of judges at the highest court in the land found in Nadine´s favour and awarded her £5.25 million.

What was highly significant in this case was the language of the judges´ ruling. Lady Hale – commenting on Dr McLellan´s testimony that it was “not in the maternal interests for women to have Caesarean Sections” – said that the advice over why a caesarean section may not be in women’s maternal interests did “not look like a purely medical judgment”.

Delivering the verdict, Lord Kerr and Lord Reed commented “There can be no doubt that it was incumbent on Dr McLellan to advise Mrs Montgomery of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section.”

The judges continued by saying it would be a mistake to view patients in the modern world as “uninformed, incapable of understanding medical matters or wholly dependent upon a flow of information from doctors” and that social and legal developments have moved the doctor-patient relationship away from a “medical paternalism” and towards an informed partnership.

The Supreme Court´s verdict is significant as it changes doctor-patient relationships and the criteria for what is considered to be “informed consent”. Patients now have the legal right to be provided with information about possible alternative courses of action – and their associated risk factors – and decide what level of risk they are prepared to accept taking into account all the available information.

Niall Dickson, Chief Executive of the General Medical Council, welcomed the judgment. He said “We are pleased that the court has endorsed the ­approach advocated in our ­guidance on consent. [Doctors] must work in partnership with their patients, listening to their views and giving them the information they want and need to make decisions.”