Applying Montgomery in clinical negligence cases

In Peter Luke Hogg (a Protected Party by his Mother & Litigation Friend Cherryl Hogg) v Secretary of State for Health [2015] EWHC 267 (QB), Mr Justice Hickinbottom determined that, while there had been a breach of duty in 1985 not had any causative significance.

The error had been by a sonographer who incorrectly had informed the claimant's mother that she was 16 weeks pregnant when she was in fact 14 weeks and six days pregnant, in breach of duty.

However, the amniocentesis had not been performed using real-time ultrasound scanning (contrary to the parents' recollection) and, furthermore, the obstetrician had not been in breach in not re-scanning to check the amniocentesis needle position prior to a second insertion, as this was in accordance with a responsible body in 1985.

Finally, the claimant was unable to prove that his condition of septo-optic dysplasia had been caused by the amniocentesis needle: while it was technically possible, it was very unlikely and there was no published literature to support the assertion; more likely was an inherent cause.

Antenatal care

In another antenatal claim, the claimant (F) succeeded in claiming that, if, during her antenatal care, his mother had been properly advised of the risk of shoulder dystocia during vaginal delivery, she would have opted for a caesarean section such that F would have avoided his brachial plexus injury, which had permanently disabled his right arm.

In FM (by his Father & Litigation Friend GM) v Ipswich Hospital NHS Trust [2015] EWHC 775 (QB), the trust admitted that there ought to have been a discussion with F's mother about the mode of delivery, as a consequence of shoulder dystocia having occurred in her second son's birth, but asserted that, had such a discussion taken place, F's mother would have been advised to proceed with a vaginal delivery and F would have suffered brachial plexus injury anyway.

However, Judge McKenna accepted F's mother's evidence that she would have opted for
a caesarean rather than run any risk of repeating the birth she had experienced with her second son, even if the advice from the obstetrician would have been to proceed with a vaginal birth, and F, therefore, succeeded on causation.

Discussion of risks

In Mrs A v East Kent Hospitals University NHS Foundation Trust [2015] EWHC 1038 (QB), Mr Justice Dingemans dismissed Mrs A's claim for the alleged failure by an obstetrician to warn her of the risk of a chromosomal abnormality in her pregnancy such that she would have decided to undergo amniocentesis, which would have detected the chromosomal abnormality with which Mrs A's baby, B, was ultimately born, causing significant disabilities.

The court concluded that there was no authority for the proposition that medical practitioners had to warn about risks which were theoretical and not material (Pearce v United Bristol Healthcare NHS Trust [1999] E.C.C. 167 and Wyatt v Curtis [2003] EWCA Civ 1779 followed), the risk of an abnormality in this case being one in 1,000.

The test of materiality, following Montgomery v Lanarkshire Health Board [2015] UKSC 11, was whether a reasonable person in the patient's position would be likely to attach significance to the risk, or whether the doctor should reasonably be aware that the particular patient would be likely to attach significance to it, and it could not be reduced to percentages.

In this case, on the evidence, the mother would not have opted for an amniocentesis if she had been told about the negligible risk of abnormality and, even if she had had such a test and the abnormality had been detected, in any event she would not have termin ted the pregnancy.

In another case in which the court considered Montgomery, the court concluded that the failure by a surgical team to warn a claimant (S) of the risk of, and provide detailed information to S about, deep venous thrombosis or pulmonary embolism prior to bilateral inguinal hernia repair surgery with consequential immobility had resulted in a delay in him attending his GP. Had he attended, he would have been referred to hospital and appropriately treated such that his two episodes of pulmonary embolism would have been avoided.

In finding for S in Spencer v Hillingdon Hospital NHS Trust [2015] EWHC 1058 (QB), Judge Collender QC both rejected the defendant’s contention of contributory negligence and applied Montgomery on the basis that members of the medical profession had a duty of care to advise and inform a patient of anything which the ordinary sensible patient would be justifiably aggrieved not to have been told when fully appraised of its significance.

Judge Collender QC dismissed a claim arising from the performance of an angiogram which had been converted to an angioplasty, and the apparent resultant dissection of an artery with consequential extreme pain caused to the claimant (C).

In Connolly v Croydon Health Services NHS Trust [2015] EWHC 1339 (QB), the judge considered that accurate information had been given to C prior to the procedure, she had not withdrawn her consent during the procedure, she had required the angioplasty to unblock the occluded artery and would have consented to it, and, in any event, the dissection had occurred before the procedure had been converted to the angioplasty.

Orthopaedic surgery

In Baker v Epsom and St Helier University Hospitals NHS Trust [2015] EWHC 1011 (QB), Mr Justice Knowles dismissed the claimant's claim against a surgeon that the latter had performed a knee amputation negligently in relation to leaving too short a length of leg stump, cutting back the fibula insufficiently, failing to bevel or round the tibia, and leaving inadequate soft tissue over the bone end of the stump. Having heard the factual and expert evidence, and in particular criticising the evidence of the claimant's orthopaedic expert, the judge considered that the surgery had not been carried out negligently.

In Hewson v Medway NHS Foundation Trust [2015] EWHC 1087 (QB), the evidence of a claimant, H, was considered by the court as truthful, accurate, and reliable in concluding that a trainee surgeon had cut a nerve in H's knee during a first operation following a fall which had dislocated his knee, and the evidence of the surgeon was mistaken through the passage of time and anxiety in asserting the nerve had been divided in the original fall.

The surgeon had performed a second procedure and, although she gave evidence that she had had no concern at that time about any nerve damage, at subsequent surgery a consultant orthopaedic knee specialist found that the nerve had been divided and the original incision had been closer to the knee than recorded in the notes.

Judge Robert Owen QC accepted H's recollection that he had had feeling and movement in his foot prior to surgery but not on waking afterwards, and that it was therefore logical that the damage had been done during the original surgery.

Judge Deborah Taylor found in the claimant's favour in Tresidder v Royal Cornwall Hospitals NHS Trust (LTL 12/3/2015) by concluding that a spinal orthopaedic surgeon had, in breach of duty, failed to identify that an eight-year-old boy (T) had a scoliosis, notwithstanding concerns raised by two GPs and T's mother, all of whom had suspected it.

On balance, T did indeed have scoliosis that was just within the visible range at the time. According to the literature, it was very unusual to have scoliosis diagnosed at this age and the spinal surgeon knew that; however, the GPs did not, which made their evidence more convincing, and suggested that the surgeon had accordingly dismissed the possibility more readily than he might have done.

Psychiatric harm

A claimant (S) was unsuccessful in recovering for psychiatric injury as a secondary victim in Julie Shorter v Surrey & Sussex Healthcare NHS Trust [2015] EWHC 614 (QB), as Mrs Justice Swift concluded that S had not actually witnessed any events giving rise to the sudden and direct appreciation of a horrifying event: there had not been a seamless single horrifying event but a series of events over a period of time, with most of S's fear, panic, and anxiety having been caused by information communicated to her by telephone. SJ

Dr Jock Mackenzie is a partner and solicitor advocate at Anthony Gold