The widow of a man who died from cardiac arrest (and other family members) brought an action against Forth Valley Health Board in the Court of Session for the allegedly negligent care provided to him by a Consultant Cardiologist.
Although the findings in the judgment are not new law, Lord Tyre’s decision is a helpful reminder to clinical negligence solicitors of the scope of a doctor’s duty to advise patients of the risks of treatment (in terms of the Montgomery v Lanarkshire Health Board test) and the very limited circumstances in which a pursuer can rely on the ‘material contribution’ principle to establish causation.
The pursuer’s case on breach of duty centred on two core allegations, namely that the consultant failed to:
- commence Non-Steroid Anti Inflammatory (NSAID) and colchicine medication; and
- instruct a repeat echocardiogram before discharging the deceased from hospital.
Weighing the expert evidence, Lord Tyre found no breach of duty in relation to allegation 1. Neither of the conflicting expert opinions could be described as unreasonable or lacking in logical support and therefore the test set out in Bolitho v City and Hackney Health Authority was not met. However, Lord Tyre determined that the test for negligence set out in Hunter v Hanley required the repeat echocardiogram to be carried out and therefore allegation 2 was established.
Lord Tyre went on to conclude that the failure to instruct a repeat echocardiogram was not causally connected to the deceased’s demise and the pursuers’ claim ultimately failed.
Material contribution
The pursuers argued that the failure to prescribe NSAIDs materially contributed to the deceased’s death. Given that the judge found that there was no breach of duty in respect of allegation 1 this was not a live issue, but Lord Tyre found that, even if the failure to prescribe NSAIDs had been a breach, no modification of the “but for” test would have applied.
Lord Tyre referred to AW v Greater Glasgow Health Board to emphasise that the material contribution principle is a restricted policy based exception to the ‘but for’ test, which applies only where inadequacies in medical science render the pursuer unable to satisfy the “but for” test.
Here, the pursuers pled that the deceased would not have died had the doctor provided NSAID medication. Lord Tyre stated: “That, in my opinion, is a statement of “but for” causation”, and there was no question that this test couldn’t be met due to inadequacies in medical science in this claim.
Duty to advise of risks of treatment
The pursuers also argued that Dr Labinjoh breached her duty to ensure the deceased was aware of the alternative treatment option of NSAIDs and the risks and benefits associated with that.
Lord Tyre emphasised that whilst Montgomery imposes an obligation on the doctor to discuss the risks associated with a recommended course of treatment and to disclose and discuss reasonable alternatives, the law does not impose an obligation on the clinician to disclose and discuss alternatives which he or she does not, in the exercise of professional judgement, regard as reasonable. Whether or not that professional judgement is reasonable is to be judged by the application of the Hunter v Hanley test, not the test in Montgomery.
Lord Tyre accepted the consultant’s evidence that she did not prescribe NSAIDs because, in her professional judgement, that treatment option was inappropriate and, as such, there was no breach of duty.
This judgment provides some helpful commentary on the scope of the Montgomery test and the limited application of the material contribution principle, both of which ought to be borne in mind when dealing with clinical negligence claims whether from a pursuer’s or a defender’s perspective.
