A landmark case has potentially changed the rules for birth injury compensation claims when a mother is not given the level of risk associated with a specific course of action.
The case in question is Montgomery v. Lanarkshire Health Board, which was brought by Nadine Montgomery of behalf of her son Sam, who was born at the Bellshill Maternity Hospital in Lanarkshire suffering from a brachial plexus injury and cerebral palsy.
Despite everything being done at the hospital to ensure the delivery of a healthy child, Nadine claimed that she had not been given the option of a Caesarean Section delivery despite women suffering from Type 1 diabetes being more likely to have bigger children.
Nadine alleged that her consultant obstetrician and gynaecologist – Dr Dina McLellan – should have advised her of the risks of delivering her son naturally, especially as Nadine is only five feet tall and petite in stature.
Dr McLellan denied that she had been negligent in failing to offer the option of a delivery by Caesarean Section, saying it was “not in the maternal interests for women to have Caesarean Sections” when there was not a “a high probability of a grave outcome”.
When the case went to the Outer House of the Court of Session in Edinburgh, judges heard that there had only been a 9% – 10% chance of Sam suffering shoulder dystocia during his delivery, and Nadine´s claim against NHS Lanarkshire was dismissed. Nadine appealed to the higher Inner House of the Court of Session, but her case was also dismissed.
Undeterred, Nadine took her case to the Supreme Court in London, where a panel of judges overturned the Edinburgh courts´ interpretation of the rules for birth injury compensation claims and awarded Nadine £5.25 million compensation.
In a written 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 also stated that there was no medical evidence to support Dr McLellan´s statement that it was “not in the maternal interests for women to have Caesarean Sections” and said that social and legal developments “point away from the relationship between the doctor and patient based on medical paternalism”.
Changing not only the rules for birth injury compensation claims but also the course of future doctor-patient relationships and what might be considered as “informed consent”, the judges added “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.”
The Supreme Court ruling is significant inasmuch as patients will now have the right to be advised of all possible treatments and to decide for themselves the levels of risk they are prepared to accept – a ruling welcomed by Niall Dickson – the Chief Executive of the General Medical Council – who 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.”