Mrs Montgomery was expecting her first baby. She was of small stature for Caucasian lady, being just over five feet in height. She had Type I diabetes, a condition where the suffers are likely to have bigger babies than normal. Medical negligence was advanced on behalf of Mrs Montgomery. It was contended that she ought to have been given advice about the risk of shoulder dystocia and of the alternative possibility of delivery by elective caesarean section. She was not told about the risks of her experiencing mechanical problems during labour.
Shoulder dystocia did happen and the obstetrician had per formed symphysiotomy and the blades she used became detached before the division of the joint had been completed. Emergency caesarean section was not even considered. After the baby’s traumatic birth, he was diagnosed as suffering from cerebral palsy of a dyskinetic type due to birth asphyxia. He also suffered from Erb’s palsy.
The defence concluded that it was reasonable not to have discussed shoulder dystocia with Mrs Montgomery, as the risks of a serious outcome for the baby were so small. Expert witness mentioned that if doctors were to warn women at risk of shoulder dystocia, “you would actually make most women simply request caesarean section”. Even if Mrs Montgomery had been given advice about the risk of serious harm to her baby as a consequence of shoulder dystocia, it would have made no difference in any event, since she would not have elected to have her baby delivered by caesarean section.
Whether a doctor’s omission to warn a patient of inherent risks of proposed treatment constituted a breach of the duty of care is normally determined by the application of Bolam test (1957). This test concerned the advice as well as diagnosis and treatment, that a doctor was not guilty of negligence if he or she had acted in accordance with a practice accepted as proper by a responsible body of medical practitioners skilled in that particular art. In plain language, one is not guilty if the majority in the field did the same way of management.
The Montgomery case was originally dismissed in two previous court sessions due to Bolam test. During the appeal in March 2015, the Supreme Court finally accepted that where treatment involved a “substantial risk of grave adverse consequences”, a patient’s right to decide whether to consent to that treatment was so obvious that no prudent doctor could fail to warn the risk. After 16 years of fight, the Montgomery family won a compensation valued at 5.25 million pounds.
This is almost certainly the most significant medical negligence judgement in nearly half the century - a momentous decision which will affect the doctor-patient relationship throughout the UK and Hong Kong as well.
After this case, a doctor must, when questioned specifically by a patient about risks involved in a particular treatment proposed, answer truthfully and as fully as the questioner requires no matter how small the risk is perceived. It was emphasized that whether a risk is material cannot be reduced to percentages, and instead is based on a variety of factors such as (1) nature of the risk; (2) effect on the life of the patient; (3) the importance to the patient of the benefits of the treatment; (4) any possible alternatives; and (5) the risk of those alternatives.
The big question of “Informed consent” arises. I am pleased to announce our Board of Education will collaborate with Mayer Brown JSM to organize CME lectures on this topic. Please stay tuned.
These events raised another burning question. How does a busy medical practitioner get all the relevant and update medical knowledge and information? The simple answer is to attend CME, compulsory or otherwise! We owe it to the general public to keep us “fit” to practice.
Dr. Angus M W CHAN
President
