Khan v Meadows [2021] UKSC 21 and its potential impact on clinical negligence cases

Abstract

Khan v Meadows, which was decided recently by the Supreme Court, will have a profound effect on day-to-day clinical practice and future clinical negligence cases. It has clarified the scope of duty of care and to a significant extent links it to the questions being asked by patients of their doctors and by doctors of their colleagues. Will courts now consider that when a patient consults a doctor, he or she is seeking an answer to a specific question or a more general question hidden within that specific question? Clearly the onus will be on clinicians to define exactly what is wanted by the patient or by a colleague.

Keywords

Clinical information advice Khan v Meadows Supreme Court

The case of Khan v Meadows [2021] UKSC 21, which was decided recently by the Supreme Court, is likely to have a profound effect on future clinical negligence cases. At [98] Lord Leggatt summarised its impact in the following terms:

“The subject matter of Dr Khan’s advice was limited to whether Ms Meadows was carrying a haemophilia gene and accordingly only losses causally connected (or, if the terminology is preferred, which have a sufficient nexus) to that subject matter are within the scope of the defendant’s duty.”

The limitation of the scope of duty of care in this way will have significant impact on future cases of clinical negligence. For example, a patient, who is now the claimant, had been worried that she might have had pulmonary tuberculosis and went to her GP and asked:

“I want to know: Do I have TB of the lungs?”

The general practitioner said he would organise a chest X-ray and also to be absolutely certain a Quantiferon blood test. On the request form to the radiology department, he correctly informed the radiologist that the chest X-ray was being organised to seek evidence of pulmonary tuberculosis. This is consistent with the Ionising Radiation (Medical Exposure) Regulations 2017, reg 10(5):

“The referrer must supply the practitioner with sufficient medical data (such as previous diagnostic information or medical records) relevant to the exposure requested by the referrer to enable the practitioner to decide whether there is a sufficient net benefit as required by regulation 11(1)(b).”

The blood test was negative and there was no evidence of pulmonary tuberculosis on the chest X-ray. The radiologist’s report stated:

“No pulmonary tuberculosis”

He made no mention of the opacity due to an early treatable lung cancer. The GP read the report and reassured the claimant patient that there was no pulmonary tuberculosis. He told her that he had also looked at the X-ray to confirm the report from the consultant radiologist.

Clearly, in this case specific advice was sought by the claimant as to whether she had tuberculosis. The opportunity to successfully treat her lung cancer was missed and historically both radiologist and general practitioner would have been considered negligent and this negligence was causal in a delayed diagnosis and an adverse outcome. However, specific advice was sought as to whether the claimant had pulmonary tuberculosis and she was correctly told that she did not. She experienced no losses due to pulmonary tuberculosis. Her lung cancer was a completely separate issue with no links to pulmonary tuberculosis and so it could now be argued that neither the general practitioner nor the radiologist strayed outside their duty of care.

However, the General Medical Council requires a wider duty of care from doctors:

“Take prompt action if you think that patient safety, dignity or comfort is being compromised. Protect and promote the health of patients” (https://www.gmc-uk.org/ethical-guidance/ethical-guidance-for-doctors/good-medical-practice/duties-of-a-doctor)

The situation is further complicated by the current trend in many general practices of patients only having time allocated to discuss a single symptom.

The origins of the current debate on the scope of duty arose from SAAMCO (South Australia Asset Management Corpn v York Montague Ltd [1997] AC 191). As a result of this case the questions which need to be addressed in making an assessment became:

Is the harm actionable in negligence? (actionability question)

What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (scope of duty question)

Did the defendant breach his or her duty? (the breach question)

Is the loss for which the claimant seeks damages due to the defendant’s act or omission? (factual causation question)

Is there sufficient nexus between the harm for which the claimant seeks damages and the defendant’s duty of care as analysed at stage 2? (duty nexus question)

Is an element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or there is a different cause (including novus actus interveniens), or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid? (legal responsibility question)

Essentially, at [24] the court distinguished between information and advice on action:

“the duty is to advise whether or not a course of action should be taken, the adviser must take reasonable care to consider all the potential consequences of that course of action. If he is negligent, he will therefore be responsible for all the foreseeable loss which is a consequence of that course of action having been taken. If his duty is only to supply information, he must take reasonable care to ensure that the information is correct and, if he is negligent, will be responsible for all the foreseeable consequences of the information being wrong.”

The situation has now been further clarified by Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20. This decision is of particular relevance to clinicians in that it determined that the focus should be on identifying the purpose to be served by the duty of care assumed by the defendant, rather than whether it was for information or action. In commercial cases, courts are likely to place greater emphasis on understanding the purpose and commercial rationale for which a party sought advice and identifying the potential risks from which the party was relying on an adviser to protect it. Will courts consider that when a patient consults a doctor, he or she is seeking an answer to a specific question such as “Do I have TB of the lungs?” or a more general question hidden within that specific question, such as “Is there something wrong with my lungs?” In the alternative, courts might consider that any consultation with a doctor is based on the premise that the patient is unwell and is seeking appropriate investigations advice and treatment. Such a view would be more consistent with a doctor’s duty of care as conceived by the GMC. Based on Manchester Building Society v Grant Thornton UK LLP courts are likely to consider that there is such an overlap between information and action.

It seems likely that a claimant’s Witness Statement and subsequent oral testimony as to why he or she sought medical advice will assume much greater importance in clinical negligence cases. Clinicians will need to explain the limits around any consultation and the purpose of proposed investigations. Such an approach would also be consistent with the requirements of Montgomery v Lanarkshire Health Board [2015] UKSC 11 at [82]:

“In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment. This can be understood, within the traditional framework of negligence, as a duty of care to avoid exposing a person to a risk of injury which she would otherwise have avoided, but it is also the counterpart of the patient’s entitlement to decide whether or not to incur that risk. The existence of that entitlement, and the fact that its exercise does not depend exclusively on medical considerations, are important. They point to a fundamental distinction between, on the one hand, the doctor’s role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved.”

That duty would now include defining the limits of any advice, e.g. “If you want me to rule out pulmonary tuberculosis, then that is all that I will do. It will not cover any other possibilities.” It may seem improbable that most patients would want such a limited assessment, but it is consistent with the fact that patients have a right to decline information on the risks of any specific procedure. It, therefore, becomes critical for clinicians to contemporaneously document whether patients simply want information, restricted information and action, or a wider assessment of their health problem.