Re-visiting Bolam and Bolitho in the light of Montgomery v Lanarkshire Health Board

Logical sense – the Bolitho core

Since the devil is in the detail, one should ask the pertinent question of as to whom should an explanation make logical sense? This is not an issue of playing with semantics. Is it the unaided Court which is to appreciate the logical sense? Is it to an expert who gives evidence to the Court? Is it to another body of Bolam-like respectable peers assisting the Court? This question attains serious substance as medicine becomes increasingly complex and medical concepts may be difficult to grasp not only by a non-medical person but even to a medical world now populated by specialists, sub-specialists and super-sub-specialists. Logical sense may not be as easily interpretable as one might think. I give but one example here, related to a hypothetical challenged liability of an adverse clinical outcome resulting from robotic surgery. As bio-engineering churns out new and complex equipment based on multiple scientific principles, full understanding of its operation, malfunction, de- and re-assembly responsibilities, create new and complex legal challenges. ³ Computer metadata of such situations is resulting in increasing hospitals and surgeons shouldering more of such liability. This departs from the traditional outlook exculpating the surgeon from the liability of inspecting and maintaining equipment. Bolitho may attain deeper significance in such situations as well face new challenges of interpretation.

Was Bolitho under-played in Montgomery?

The highlighting of the term, the heavily pregnant term, logical sense, may also put forward another aspect stressing the chasm between Law and Medicine. We may, with benefit, refer to the landmark case of Nadyne Montgomery v Lanarkshire Health Board, ⁴ which has, quite justifiably, demolished that part of the Bolam test, dealing with the disclosing of information to the patient. This may be the beginning of the end of the so-called Bolam principle: in the words of Badenoch – the writing is on the wall. ⁵

However, at this juncture, I would like to part ways both with the outcome of the appeal ruling in Nadyne Montgomery as well as with its implications for Bolam, while moving on to use the case to underscore a point of jurisprudential interest. The point revolves about the combination of two Bolitho-oriented facts, namely the logical sense of the defendant’s defence and the possibly untapped potential of Bolitho as applied to it. Studying a copy of the official transcript of Montgomery, one finds at least 33 references to Bolam but only 4 references to Bolitho. This is surprising vis-à-vis the logical sense of the defendant’s arguments, which had passed the Bolam test in the Scottish Court in Nadyne Montgomery v Lanarkshire Health Board ⁶ in 2013.

The defendant’s admitted obstetric practice in Montgomery

It would be salutary to note that in Montgomery, £5.25 million was awarded to the plaintiff who had suffered shoulder dystocia at birth, with subsequent foetal injuries including cerebral palsy of the spastic quadriplegic dyskinetic form consistent with underlying hypoxic-ischaemic encephalopathy. The plaintiff’s claim – among other allegations – crucially centred on the lack of disclosure of information by the defendant to the plaintiff. The defendant obstetrician accepted, without hesitation, that, there were antenatal risk factors, namely maternal diabetes, maternal short stature and a large baby. She also accepted that she did not draw the attention of the clinical significance of such risk factors to the plaintiff while also explaining that a caesarean delivery would have avoided the potential risks therein entailed. The plaintiff maintained that she would have chosen an abdominal delivery rather than risk her child’s life and health, by undergoing delivery per vies naturales.

This paper seeks to show that on a Bolitho therein logical basis, the defendant’s arguments were not Bolam defensible, neither in 2013, nor at the appeal stage in 2015. Bolam did not even have to be incapacitated on disclosure of information, although medico-legal jurisprudence has been rendered an inestimable service in the dismantling of at least part of Bolam’s outdated principle. However, that aspect of arguing is outré to the point being made here.

The case should have failed the Bolitho test as the defendant’s argument makes a complete and fundamental lack of obstetric logical sense by 1999 scientific reasoning. In fact, the whole sequence of the defendant’s argument goes diametrically against standard obstetric logic. Neither space nor time allows a full exposition of this argument, but here a small and extremely relevant section of the transcript is reproduced:

Mrs Montgomery was told that she was having a larger than usual baby. But she was not told about the risks of her experiencing mechanical problems during labour. In particular she was not told about the risk of shoulder dystocia. It is agreed that that risk was 9–10% in the case of diabetic mothers. Unsurprisingly, Dr McLellan accepted that this was a high risk. But, despite the risk, she said that her practice was not to spend a lot of time, or indeed any time at all, discussing potential risks of shoulder dystocia. She explained that this was because, in her estimation, the risk of a grave problem for the baby resulting from shoulder dystocia was very small. She considered, therefore, that if the condition was mentioned, “most women will actually say, ‘I’d rather have a caesarean section’”. She went on to say that “if you were to mention shoulder dystocia to every [diabetic] patient, if you were to mention to any mother who faces labour that there is a very small risk of the baby dying in labour, then everyone would ask for a caesarean section, and it’s not in the maternal interests for women to have caesarean sections”. (Note: Section 13 page 4 and 5 of the Court transcript.)

Here, we have the defendant’s admission that she actually did not disclose the danger of the clinical situation so as to influence the patient not to have a Caesarean Section because she maintains, it’s not in the maternal interests for women to have caesarean sections. Presumably, the substantial risk of having a baby stuck in the maternal passages with resultant inability to expand his chest and breathe and thus suffer hypoxia and brain damage, is in the maternal interests.

Obstetric logic, legal logic, jurisprudential logic, any logic?

It is time to ask the million dollar question: which obstetrician, who was compos mentis in 1999, when faced with a diabetic woman, of short stature and larger than average baby, would have omitted discussing the risks with the mother, of obstruction of the child, if delivered per vies naturales? Not only so, but with the scope of influencing the patient in her safer choice which would involve a Caesarean Section. Furthermore, we speak of a patient who repeatedly expressed worries about the clinical situation with its abnormalities and potential for labour problems. No amount of legal or jurisprudential argument will convince an obstetrician with a conscience, and practising in 1999, that a body of obstetricians, with a conscience, would fail to disclose information with potential risks of foetal death or lifelong misery. In fact, quite the opposite. They would try to encourage the patient to aim for the safer course of action and ensure that a witnessed entry be made in the clinical file, stating that such advice was clearly given and rejected, if this happens to be the case.

One may still quote Lord Scarman’s words ⁷

in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of professional opinion to another. Failure to exercise the ordinary skill of a doctor (in the appropriate speciality, if he be a specialist) is necessary.

I will also quote Lord Reid: ⁸

Nor can I accept the distinction drawn by the Lord Ordinary between materially increasing the risk that the disease will occur and making a material contribution to its occurrence. There may be some logical ground for such a distinction where our knowledge of all the material factors is complete. But it has often been said that the legal concept of causation is not based on logic or philosophy.

The situation in Montgomery did not truly concern a decision between one body of a professional opinion and another. If a body of obstetricians were to agree that it is right to withhold the risks associated with noted clinical abnormalities so as to influence the patient in choosing the lesser of available options, such a body would not only be non-professional, but liable, as a minimum to General Medical Council sanction. It is worrying that it has often been said that the legal concept of causation is not based on logic, for logic is demanded by Bolitho in accepting Bolam’s principle. If Lord Reid’s words are correct, then maybe it has been providential that the UK Supreme Court’s reasoning hammered a major nail in Bolam’s likely future coffin. However, the logic of Bolitho stands and may yet show that it will outlast the very principle of Bolam it was meant to rein in, if the logic it demands is logically and in practice, so interpreted.