Search court cases and case law in the UK


N M v Lanarkshire Health Board [2013] CSIH 3 - 23rd Janunary 2013


The reclaimer sought reparation on behalf of her son who sustained grave injury resulting in permanent disabilities at the time of his birth in a maternity hospital ran by the respondents. The central issues were: i) the scope of the duty to give advice; ii) whether a modification of causation principles was justified, and; iii) whether an omission to take a foetal blood sample or to perform a caesarean section amounted to professional negligence.

Reclaiming motion refused. Held; i) Pearce v United Bristol Healthcare NHS Trust [1999] ECC 167, [1998] EWCA Civ 865 did not innovate the duty to give advice on the risk of a serious adverse outcome, which is primarily a matter of professional judgment (Sidaway v Board of Governors of the Bethlem Royal Hospital & Ors [1985] UKHL 1), to a duty to inform of any substantial risk which would affect the judgment of a reasonable patient. What is of interest to the patient must be the outcome, adverse or otherwise, and not some possible complication for the medical practitioner which, if it arises, can be dealt with by ordinary procedures entailing no adverse consequences for the patient. In the present case, absent of specific inquiry as to risks, there was no failure in the advice given nor, as a matter of professional responsibility, was the consultant under a duty to spell out the very small risk of a grave outcome such as that which materialised. Whether the duty to answer both truthfully and as fully as the questioner requires (Sidaway) arises depends, in an individual case, on the precise tone and terms of the relevant communications between the patient and the medical practitioner. While concerns may conceivably be raised in such a way as to call for a specific factual response there will often be no need to go beyond general reassurance and a reminder of current plans. In the present case the pursuer's general anxieties and concerns fell into the latter and not the former category; ii) The modification of causation principles in Chester v Afshar [2004] UKHL 41 were not intended to apply generally in all cases in which a medical practitioner has failed in a duty to advise of risk. A modification of the normal approach to causation is justified if, in the unusual circumstances of the case, a warning of risk would have resulted in the patient seeking further advice elsewhere, with resultant uncertainty as to whether the patient would have undergone at a future date an identical procedure in which the same risk might or might not have materialised. The present case materially differed from that situation as it was not an area of truly elective surgery; iii) The proper approach to whether an omission to take a foetal blood sample or to perform a caesarean section amounted to professional negligence is to determine whether, in the whole circumstances, the clinical decision taken is defensible as being within the range of decisions reasonably available to an ordinarily competent obstetrician at the material time. In the present case, it could not be said that in the exercise of clinical judgement, the decision to continue the labour and not to proceed to a caesarean section nor to take a foetal blood sample was a course of action which no professional person of ordinary skill acting with ordinary care would have taken.