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Secondary victims: the Supreme Court provides guidance for clinical negligence claims

<!-- wp:paragraph --> <p><strong><em>Paul, Polmear and Purchase and another v Royal Wolverhampton NHS Trust</em> [2024] UKSC 1</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>By way of three conjoined cases, the Supreme Court considered the issue of secondary victim claims in the context of medical negligence where the event giving rise to the psychiatric injury was distinct in time from the initial negligence to the patient.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>Factual Circumstances of the Cases</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Paul</em>: Mr Paul attended hospital with chest pain. One year later, whist out with his daughters, he collapsed due to a heart attack, hit his head and suffered a brain bleed and died. Mr Paul’s daughters claimed for psychiatric injuries.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Polmear</em>: Esme, a 6-year-old child, was misdiagnosed and as a result collapsed 6 months later. Her parents saw Esme lying on the floor and resuscitation attempts being made. One of her parents attempted CPR. Esme’s parents suffered with PTSD and depression. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Purchase:</em> Miss Purchase was misdiagnosed with a respiratory tract infection as opposed to pneumonia. Three days later, her mother, the claimant, went out for the evening. Upon her return, she found Miss Purchase unconscious with her phone in her hand. Efforts to resuscitate Miss Purchase were unsuccessful. The claimant found that she had a voicemail from her daughter recording her last minutes. The claimant suffered PTSD, anxiety and depression.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>Court of Appeal</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Before the Court of Appeal, there was no dispute that, in principle, secondary victim claims could be made for psychiatric injuries sustained in clinical negligence claims.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal held that it was bound by the five stage <em>Alcock </em>test as applied by the Court of Appeal in <em>Taylor v A </em>Novo [2013] EWCA Civ 194<em>. </em>This therefore meant that a claim could not succeed where the shocking event that gave rise to a secondary victim’s injuries was removed in time and space from the negligence that gave rise to that eventual shocking event.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On that basis, the claims in each of these cases failed before the Court of Appeal but permission was granted to appeal to the Supreme Court.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>Supreme Court</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Supreme Court provided a lengthy judgment addressing secondary victim claims. This is a very significant judgement that clarifies a number of aspects of the test applied in secondary victims cases, but also suggests that the reasoning in many previous cases has been flawed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><strong>The Requirements for a Claim to Succeed</strong></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Supreme Court endorsed the requirements established in <em>Alcock</em> as set out in <em>Frost v Chief Constable of South Yorkshire </em>[1999] 2 AC 455 that a claimant:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li>Must have a close tie of love and affection with the person killed, injured or imperilled;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The claimant must be close to the incident in time and space; and</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The claimant must have perceived the accident themselves.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The Supreme Court has clarified that there is no requirement for there to be:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>A ‘sudden shock’ giving rise to psychiatric injury.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Nor does the event have to be horrifying, noting that this inevitably involves an undesirable comparison of different traumatic events.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The court has also narrowed what is likely to be viewed as the immediate aftermath, criticising the extension of that principle. The court commented that the focus on whether there had been a single sequence of events gave rise to difficulties with interpretation and was an artificial exercise in separating out the index event and the aftermath.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><strong>There must be an ‘accident’</strong></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Supreme Court has made clear that the witnessing of an accident or the immediate aftermath is integral to secondary victim claims and the Court of Appeal had erred in failing to treat the issue of whether there was the occurrence of an accident as material.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court clarified that an accident is “an external event which causes, or has the potential to cause, injury”. The Court affirmed that a claimant must witness the accident itself or the immediate aftermath for a secondary victim claim to succeed.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This need for an accident was held to be because:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li>An accident is a discrete event, which could provide clarity and certainty in determining who is and is not a relevant claimant. &nbsp;</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Most people would accept that the correct line to be drawn in identifying claimants is to distinguish between those who witnessed an accident and those who did not.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>It can be difficult to distinguish between primary and secondary victims in accident cases where, for example, a mother and child are both put in danger and the mother would therefore fear for herself and her child.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The court also noted that it would be undesirable for end-of-life decisions to be complicated by questions of whether allowing a family member to see and be with a patient might give rise to potential liability.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><strong>Duty of Care</strong></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court indicated that there has been insufficient focus in secondary victim claims in a medical negligence context on the question of whether doctors owe a duty of care to the family of patients.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The majority in this case held that it cannot be said that a doctor treating a patient has entered into a doctor patient relationship with any of the patient’s family and responsibility for their health is thereby assumed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court stated that the imposition of such a responsibility would go beyond what would be reasonably regarded as the nature and extent of the role of hospitals and doctors in current society.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><strong>Judgment Conclusion</strong></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court concluded that it was necessary to restrict the class of claimants whose claims might succeed to those who are more closely and directly connected to the accident caused by the defendant and apply restrictions capable of being understood by ordinary people. This means, that for secondary victims to succeed, they must have been “present at the scene, witnessed the accident and have a close tie of love and affection with the primary victim”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The court expressly stated that it was not expressing a view about claims where there was an accident that took place in a medical setting, such as the injecting of an incorrect drug or dose causing a witnessed adverse reaction.&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><strong>Discussion</strong></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On the face of the judgment, it would appear that the Supreme Court has limited secondary victim claims in a medical negligence context with its finding that doctors do not owe a duty of care to the family of patients.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Nonetheless, the specific issue of whether or not a doctor owes a duty of care to a family member in a medical accident scenario has been expressly stated to have not been determined. In order for such a claim to succeed, a claimant will have to satisfy the criteria set out in <em>Frost. </em>This willinclude proving physical proximity to the accident or the immediate aftermath, along with establishing that there had been the assumption of a duty of care by the doctor to those family members.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Importantly, in a clinical negligence context, very few claims arise out of ‘accidents’. As such, it is likely that defendants will take a more robust approach in defending these claims and dispute the basic existence of a duty of care owed to the family members.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Even in claims where there are potential accidents, the definition of what will or will not amount to an accident is likely to remain contentious and disputed, and what is likely to be held to be within the immediate aftermath will now be much narrower.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Moreover, a claimant will still have to prove they are worse off than they would have been as a result of bereavement alone and can only recover damages in respect of that portion of the injury (<em>Hinz v Berry </em>[1970] 2 QB 40)<em>.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In reaching their decision, the majority judgment (6-1) has effectively overturned much of the reasoning of previously decided medical negligence claims. It appears to be a judgment in line with other recent authorities by the Supreme Court in the field of clinical negligence and personal injury claims: adopting a more traditional less expansive approach to the law including a shift away from paternalism.</p> <!-- /wp:paragraph -->

Parklane Plowden Chambers ranked across seven practice areas in the Chambers and Partners 2024 rankings

<!-- wp:paragraph --> <p>Parklane Plowden Chambers has been ranked as a Band 1 set across five practice areas and a Band 2 set across two further areas in the Chambers and Partners 2024 rankings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Chambers has been ranked as Band 1, the highest ranking a Chambers can achieve, across the Chancery; Clinical Negligence; Employment; Family: Children and Personal Injury practice areas.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Additionally, the set has been ranked as Tier 2 for both Family: Matrimonial Finance and Inquests &amp; Public Inquiries.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The individual barrister members received 65 rankings in this year’s edition across:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Chancery</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Clinical Negligence</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Costs Litigation</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Employment</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Family: Children </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Family: Matrimonial Finance </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Inquests &amp; Public Inquiries</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Motor Insurance Fraud</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Personal Injury</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Personal Injury: Industrial Disease</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Professional Negligence </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Real Estate Litigation</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>In addition to his Band 1 Personal Injury ranking, <a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-axon/">Andrew Axon</a> has once again retained his individual Clinical Negligence ranking of 'Star Individual'.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

Parklane Plowden Chambers named as a Tier 1 barristers’ set across five practice areas in the Legal 500 2024 rankings

<!-- wp:paragraph --> <p>Parklane Plowden Chambers has been ranked as a Tier 1 set across five practice areas and a Tier 2 set across one area in The Legal 500 2024 rankings.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Chambers has been named as Tier 1, the highest ranking a Chambers can achieve, across chancery, probate and tax; clinical negligence; employment; family and children law and personal injury practice areas.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Parklane Plowden is also the only set to be ranked for chancery, probate and tax and clinical negligence on the North Eastern circuit.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Additionally, the set has been ranked as Tier 2 for inquests &amp; inquiries.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The individual barrister members received 79 rankings in this year’s edition across:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>Court of Protection and Community Care </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Chancery, Probate and Tax</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Clinical Negligence</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Commercial Litigation</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Employment</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Family: Children and Domestic Violence </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Family: Divorce and Financial Remedy </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Personal Injury</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Property and Construction</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Professional Negligence </li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Inquests and Inquiries</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph -->

May Martin successful in claim for delayed diagnosis of lung cancer

<!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/may-martin/">May Martin</a> acted for the Claimant in a multi-track clinical negligence claim before HHJ Richardson.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>May was instructed by <a href="https://www.hudgellsolicitors.co.uk/our-people/chris-moore/">Chris Moore </a>of <a href="https://www.hudgellsolicitors.co.uk/">Hudgell Solicitors</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Factual Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant had successful surgery for lung cancer in 2014 and was to be subject to regular follow-up thereafter. After attending follow-up appointments for approximately a year, the Trust failed to send the Claimant a letter informing her of the date of her next appointment. As the Claimant was unaware that a further appointment had been made, she did not attend. The Trust then discharged the Claimant from its care. The Claimant had no further follow-up in respect of her lung cancer. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In 2019, the Claimant attended A&amp;E with acute shortness of breath. She was diagnosed with recurrent lung cancer and given a life expectancy of 18-24 months.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Proceedings</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Trust admitted that it had acted negligently in discharging the Claimant from its care. The claim was defended on causation grounds on the basis that, even with regular follow-up, the recurrence of the Claimant’s lung cancer would not have been diagnosed at an earlier stage.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The expert evidence in the case was that follow-up monitoring by way of chest x-ray would not have led to an earlier diagnosis, but that follow-up monitoring by way of CT scan would have led to an earlier diagnosis. The Trust’s case was that the Claimant would have received an annual chest x-ray and clinical examination. The Claimant’s case was that she would have been monitored by way of CT scan.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The experts agreed that if the recurrence had been detected earlier, the Claimant would have avoided hospital admission and treatment in 2019, but her prognosis and life expectancy would have remained the same.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Judgment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>HHJ Richardson found that the Claimant’s follow-up appointment in 2017 would have involved a chest x-ray and thus recurrence would not have been detected at that stage. However, the Judge also found that the Claimant would have mentioned that she was experiencing increasing shortness of breath at her appointment in 2017. There would have been investigations done into the shortness of breath, but not a CT scan at that stage.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Judge found that, at the Claimant’s appointment in 2018, a further chest x-ray would have been undertaken. That chest x-ray would not have shown any abnormalities. The Claimant would again have mentioned the increasing shortness of breath which, by this point, had become considerably worse. At this stage, with the investigations in 2017 not having identified a cause of the shortness of breath, the Claimant would have been referred for a CT scan. The CT scan would have shown recurrence of the Claimant’s lung cancer and palliative treatment would have commenced shortly thereafter. The Claimant would therefore have avoided the further symptoms and need for hospital admission and treatment in 2019. &nbsp;&nbsp;&nbsp;</p> <!-- /wp:paragraph -->

AXS v South Tees Hospitals NHS Trust &#8211; Interim Payment of £1.8 million awarded to brain damaged claimant

<!-- wp:paragraph --> <p>Howard Elgot acted for the Claimant in AXS v South Tees Hospitals NHS Trust before Master Cook on 31<sup>st</sup> July 2023. An anonymity order was made. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Howard was instructed by <a href="https://www.hay-kilner.co.uk/our-people/david-bradshaw">David Bradshaw</a> of <a href="https://www.hay-kilner.co.uk/">Hay and Kilner</a> Solicitors.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case is noteworthy for value of the interim payment and for the short period of time from the first admission of liability to the successful resolution of a substantial contested interim payment application. AXS was admitted to the James Cook University Hospital, Middlesbrough, on 24<sup>th</sup> November 2021.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>During the course of an operation that day AXS suffered a severe anaphylactic reaction. Notwithstanding an early differential diagnosis of anaphylaxis by the Defendant’s doctors, the doctors failed to start and continue CPR, failed to administer glucagon, and failed to administer vasopressin. As a result, AXS suffered a serious hypoxic-ischaemic brain injury, leaving AXS with permanent brain damage and a requirement for 24 hour waking care.<br><br>Breach of duty and causation were hotly contested until after service of the Particulars of Claim, but the Defendant consented to judgment, which was entered on 14<sup>th</sup> March 2023.<br><br>An application for an interim payment to fund a family house and a substantial care and rehabilitation regime was made on 28<sup>th</sup> March 2023, and the solicitors, having laid the groundwork earlier, and following conferences with counsel, were able to obtain and serve up to date reports from a rehabilitation consultant, an accommodation expert and a nursing expert exactly 4 weeks before the return date of the hearing.<br><br>The Trust offered £750,000 in addition to an £150,000 interim payment already made. This offer was refused, and Master Cook awarded an interim payment of £1.8 million payable in 21 days, to bring the total interim payments up to £1.95 million.<br><br>Master Cook held that the value of the interim payment sought was too high to allow him to make the award under stage 1 of the well-known Eeles criteria, but held that having regard to stage 2 of the Eeles criteria there was a real need for non-care home accommodation immediately and certainly before any quantum trial might take place.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>He considered that that part of the amount of interim payment requested for the property acquisition was reasonable. In line with Eeles itself, the Master noted that the court did not have to decide whether any particular property would be a reasonable purchase. The award would allow the Deputy to have adequate funds immediately available if and when the ideal property became available.<br><br>The full claim is pleaded as being in excess of £10 million pounds and therefore falls outside the costs budgeting provisions of the CPR.<br></p> <!-- /wp:paragraph -->

Doctor Knows Best- Supreme Court clarifies “Professional Practice Test”

<!-- wp:paragraph --> <p>On 12<sup>th</sup> July 2023, the Supreme Court handed down its judgment in <em><u><a href="https://www.bailii.org/uk/cases/UKSC/2023/26.html">McCulloch and Others v Forth Valley Health Board [2023] UKSC 26,</a></u></em> the first Supreme Court decision on the issue of informed consent since <em><u><a href="https://www.bailii.org/uk/cases/UKSC/2015/11.html">Montgomery v Lanarkshire Health Board [2015] UKSC 11</a></u></em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Five Justices unanimously dismissed the appeal holding that the “professional practice test” is the correct legal test for doctors when providing treatment options to a patient. Treatment options need to be supported by a responsible body of medical opinion, and should include all “reasonable” treatment options, but not all “possible” treatment options. The Court affirmed that the narrowing down from “possible” alternative treatments to “reasonable” alternative treatments is an exercise of “clinical judgement” and therefore to be judged subjectively from the perspective of the doctor.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In this fatal accident case, the question was whether the doctor should have advised the patient of a particular treatment option, as it was contended that if such advice had been given, the treatment would have been accepted by the patient, thereby avoiding the patient’s death.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>The Facts</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mr McCulloch died on 07/04/12 aged 39 years, shortly after admission to hospital having suffered a cardiac arrest at home. The cause of death was recorded as idiopathic pericarditis and pericardial effusion: it was agreed that Mr McCulloch died as a result of cardiac tamponade.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mr McCulloch had first been admitted to hospital on 23/03/12 with a history of severe pleuritic chest pains, worsening nausea and vomiting. Tests showed abnormalities compatible with a diagnosis of pericarditis. By 24/03/12, after a deterioration, Mr McCulloch was intubated and ventilated in the intensive treatment unit. Following some improvement that day, a decision was made not to transfer Mr McCulloch to a different hospital to facilitate pericardiocentesis, a potential treatment which had been discussed with him.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Dr Labinjoh, an experienced consultant cardiologist, for whose acts and omissions it was contended the respondent was vicariously liable, was first involved in Mr McCulloch’s care on 26/03/12 when she was asked to review an echocardiogram. Dr Labinjoh recorded that Mr McCulloch’s presentation did not fit with a diagnosis of pericarditis and she would discuss with Dr Wood, who was exploring immunocompromise, malignancy.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mr McCulloch’s condition improved and on 30/03/12 he was discharged home on antibiotics to be reviewed by Dr Wood in four weeks’ time with a repeat echocardiogram and a chest X-ray to be arranged in advance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The discharge letter recorded the diagnosis as acute viral myo/pericarditis and pleuropneumonitis with secondary bacterial lower respiratory tract infection.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On 01/04/12 Mr McCulloch was re-admitted to hospital by ambulance with central pleuritic chest pain, similar to the previous admission. After treatment with intravenous fluids and antibiotics, Mr McCulloch was transferred to the acute admissions unit on 02/04/12 and a repeat echocardiogram was arranged.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Dr Labinjoh’s second involvement was on 03/04/12. Dr Labinjoh’s evidence, which was accepted in the lower court, was that she was not asked to review Mr McCulloch but to assist in the interpretation of the third echocardiogram. She did not consider that it differed from the first two echocardiograms in a way that gave cause for concern.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Dr Labinjoh visited Mr McCulloch on the acute admissions unit on 03/04/12 to assess whether his clinical presentation was consistent with her interpretation of the echocardiogram. Mr McCulloch denied having any chest pain, palpitations or breathlessness on exertion or lying flat.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Dr Labinjoh recorded “no convincing features of tamponade or pericardial constriction. The effusion is rather small to justify the risk of aspiration… I am not certain where to go for a diagnosis from here”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Dr Labinjoh’s understanding was that the management plan agreed with Dr Wood was still in place and did not prescribe any medical treatment. Dr Labinjoh did not discuss the risks and benefits of NSAIDS as she did not regard it necessary or appropriate in her professional judgement to prescribe NSAIDS, but did advise Mr McCulloch against pericardiocentesis at that time, a potential treatment which had previously been discussed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>By 06/04/12 Mr McCulloch’s condition had improved, and the plan was for discharge. Dr Lainbjoh was unable to review Mr McCulloch prior to discharge as she was due to operate elsewhere but indicated in a telephone call that the decision to discharge should be made by the responsible consultant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mr McCulloch was discharged on the evening of 06/04/12 remaining on oral antibiotic medication. On 07/04/12 at 14.00 Mr McCulloch suffered a cardiac arrest at home and was taken to hospital where he died at 16.46 after a prolonged period of attempted resuscitation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Conclusions from the Lower Courts</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The appellants’ claim failed at first instance before the Lord Ordinary and on appeal to the Inner House.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Lord Ordinary held that whilst the experts agreed that it was standard practice to prescribe NSAIDs to treat pericarditis, this was not a straightforward case of acute pericarditis: the diagnosis remained uncertain, and Mr McCulloch had not complained of pain.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Lord Ordinary rejected the appellants’ argument that the decision in <em>Montgomery</em> meant that Dr Labinjoh was under a duty to discuss with Mr McCulloch the option of using NSAIDs to reduce the size of pericardial effusion and to discuss its risks and benefits where, in her professional judgement, she did not regard it as appropriate to do so.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Lord Ordinary concluded that “no case based on failure to advise of the risks of a recommended course of treatment, or of alternative courses of treatment along the lines of <em>Montgomery, </em>has been made out”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Inner House, having agreed with this approach to the legal test, upheld the decision of the Lord Ordinary.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Supreme Court</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The two principal issues which arose on this appeal were:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>1. What legal test should be applied to the assessment as to whether an alternative treatment is reasonable and requires to be discussed with the patient?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>2. Did the Inner House and Lord Ordinary err in law in holding that a doctor’s decision on whether an alternative treatment was reasonable and required to be discussed with the patient is determined by the application of the professional practice test?<em></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The appellants contended that the assessment of whether an alternative is reasonable is to be undertaken by the circumstances, objectives and values of the individual patient, and therefore objectively, whereas the respondent contended that this was to be assessed by reference to the “professional practice test” and therefore subjectively from the perspective of the doctor.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Supreme Court held that the correct legal test to be applied to the question of what constitutes a reasonable alternative treatment is the “professional practice test” found in </strong><strong><em><u>Hunter v Hanley [1955] SC 200</u></em></strong><strong><em> </em></strong><strong>and </strong><strong><em><u>Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. </u></em></strong><strong>&nbsp;</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court held that as Dr Labinjoh took the view that prescribing NSAIDs was not a reasonable alternative treatment because Mr McCulloch had no relevant pain and there was no clear diagnosis of pericarditis and, because that view was supported by a responsible body of medical opinion, there was no breach of the duty of care to inform required by <em>Montgomery.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Numerous reasons were cited by the Court in support of the application of the professional practice test including consistency with <em>Montgomery, </em>consistency with medical professional expertise and guidance (the BMA and GMC were interveners in the appeal), avoiding conflict in a doctor’s role, avoiding bombarding the patient with information and, ultimately, avoiding uncertainty.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court further considered a hypothetical example where there are ten possible treatment options and there is a responsible body of medical opinion that would regard each of the ten as possible treatment options. The Court held that the question then is the exercise of the individual doctor’s clinical judgement, supported by a responsible body of medical opinion, if it is determined that only four of those options are reasonable. The doctor is not negligent by failing to inform the patient about the other six even though they are possible alternative treatments.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As set out at paragraph 57 “the narrowing down from possible alternative treatments to reasonable alternative treatments is an exercise of clinical judgement to which the professional practice test should be applied”.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The duty of reasonable care would then require the doctor to inform the patient not only of the treatment option that the doctor is recommending but also of the other three reasonable treatment alternative options (plus no treatment if that is a reasonable alternative option) indicating their respective advantages and disadvantages and the material risks involved in such treatment options.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Court held overall that in line with the distinction drawn in </strong><strong><em>Montgomery</em></strong><strong> between the exercise of professional skill and judgement and the court-imposed duty of care to inform, the determination of what are reasonable alternative treatments clearly falls within the former and ought not to be undermined by a legal test that overrides professional judgement. In other words, deciding what are the reasonable alternative treatments is an exercise of professional skill and judgement.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Conversely, it was held that if the professional practice did not apply in determining reasonable alternative treatments, one consequence would be an unfortunate conflict in the exercise of a doctor’s role: by requiring a doctor to inform a patient about an alternative medical treatment which the doctor exercising professional skill and judgement, and supported by a responsible body of medical opinion, would not consider to be a reasonable medical opinion.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Comment</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This case provides a significant clarification of a doctor’s obligation to obtain informed consent for treatment, applying the “professional practice test” as defined in <em>Bolam</em> and qualified in <em>Bolitho.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>But, if a doctor’s duty is to inform a patient about material risks to enable a patient to make an informed choice as confirmed in <em>Montgomery,</em> does this decision not dilute the protection of a patient’s autonomy by giving doctors the power to limit the provision of information to patients and rule out available treatment options? &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On the other hand, is it realistic to require doctors to inform patients of any possible treatment without recourse to the exercise of their professional skill and judgement, with the added protection of the support by a responsible body of medical opinion?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If the decision in <em>Montgomery </em>“reflected a move away from medical paternalism protecting a patient’s autonomy and right to self-determination”, does this decision in <em>McCulloch</em> not go one step forward by endorsing patient choice, but go two steps back by narrowing that choice?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Leila is a barrister at Parklane Plowden Chambers and a specialist in the field of Clinical Negligence. She is ranked as a leading junior in Legal 500 and Chambers and Partners for Clinical Negligence. Leila’s full profile can be accessed <a href="https://www.parklaneplowden.co.uk/barristers/leila-benyounes">here</a></em></p> <!-- /wp:paragraph -->