A landmark birth injuries compensation case against the NHS has been resolved at the Supreme Court in London in favour of a mother and her severely disabled child.
Sam Montgomery was born at the Bellshill Maternity Hospital on October 1st 1999, having been deprived of oxygen during his delivery. Sam´s problems started when his shoulder became trapped in his mother´s birth canal after the delivery of his head. Sam suffered shoulder dystocia and – after a 12-minute procedure to release his shoulder – he had to be resuscitated.
The deprivation of oxygen during the release procedure caused Sam to suffer brain damage and he was diagnosed with cerebral palsy. Now, at age 15, Sam has limited communication skills and still suffers from the nerve damage he sustained during his delivery – which affects his shoulder, arm and hand.
On Sam´s behalf, his mother – Nadine – made a claim for medical negligence compensation against NHS Lanarkshire. Nadine alleged in her claim that her consultant obstetrician and gynaecologist – Dr Dina McLellan – had failed to warn her of the risks associated with a natural birth when Nadine was a petite woman with Type 1 diabetes.
When the birth injuries compensation case went to the Outer House of the Court of Session in Edinburgh, the court heard that women with Type 1 diabetes are more likely to have bigger babies and that Nadine had expressed concerns during her pregnancy about delivering the baby safely. The court also heard that Nadine was not given the option of a Caesarean Section birth despite a CTG trace showing the size of her son.
In their defence of the birth injuries compensation case, lawyers representing NHS Lanarkshire said that the consultant´s duty to advise the risks involved in a natural delivery would have been triggered if there was a high probability of a grave adverse outcome. As there was only a 9%-10% of shoulder dystocia occurring, Dr McLellan chose not to advise Nadine of the risks.
Despite Nadine testifying that she would have chosen a Caesarean Section procedure over a natural birth if she had been advised of the risks, the Outer House of the Court of Session found in the consultant´s favour, as did the Inner House when Nadine appealed the verdict. Undeterred, Nadine took her birth injuries compensation case to the Supreme Court in London, where Dr McLellan told the court that, in her view, it was “not in the maternal interests for women to have Caesarean Sections”.
The Supreme Court judges disagreed with the consultant and said that social and legal developments “point away from the relationship between the doctor and patient based on medical paternalism”. The judges ruled that Dr McLellan was wrong to put her personal views ahead of the course of treatment that Nadine underwent and ruled that a doctor has a duty of reasonable care to ensure that patient is aware of any material risks involved in any recommended treatment.
Lord Kerr and Lord Reed – the judges who delivered the Supreme Court´s verdict – 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 Supreme Court awarded Nadine £5.25 million compensation for the birth injuries that Sam had suffered and said 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 decision by the Supreme Court is significant as it acknowledges a patient´s right to decide upon the level of risk they wish to take given all the information available. It means that patients will have to be provided with information about possible alternative treatments and their risk factors before being considered to have given their “informed consent” prior to undergoing a medical procedure.