Duty Of Care And Standard Of Care

Part 1

The principal legal issue in this situation is whether Jeremy has an action for negligence against Dr Ali and the Central London Hospital. There are two questions that arise from here: (i) Did Dr Ali owe a duty of care to Jeremy?; and (ii) is there a breach of that duty and negligence on the part of Dr Ali?.

The principles of law that are applicable in this case are related to the tort of negligence. This includes the duty of care as well as standard of care concepts that are to be applied to the case in order to understand whether the actions of Dr Ali fit into the requirements that can determine liability for negligence.

Negligence is generally defined as the failure of a duty to take care. The question often arises as to whom this duty is owed. A simple answer to the question is given in Donohue v Stevenson as the duty owed to one’s neighbour, that is, a person who can be reasonably foreseen to be harmed by the negligent action of the defendant. For Jeremy to be able to prove negligence on the part of Dr Ali, and the Central London Hospital, he would have to prove: (a) duty of care on the part of Dr Ali and the hospital; (b) breach of that duty; (c) proximate cause; and (d) harm or damage that is linked directly to the breach of duty.

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There is also a standard of care that is applicable to the defendant, and if the standard of care is breached, the defendant can be held liable for negligence. This standard of care is not the same for all persons and the professional person’s standard of care is higher than that of the layperson. This standard of care is objective in nature. This standard of care is that which can be expected from a responsible member of the profession. In medical negligence cases, the standard of care will be that which is expected from reasonable and prudent members of the medical profession considering the skills sets that they have.

The Bolam test laid down in Bolam v Friern Hospital Management Committee is relevant here. As per the Bolam test, the objective standard of is based on the reasonable practices within the medical profession. Montgomery v Lanarkshire Health Board (Scotland), is an important case in this regard, and in this case, it was held that the doctor was negligent because he failed to give medical advice as per the objective standard of care applicable to members of his profession or doctors with the same skills sets.

Coming back to duty of care, a sufficiently close relationship between the patient and doctor is essential for ascertaining such duty. If the doctor can reasonably foresee the damage that can be caused to the patient by his failure to take care, then there is a sufficiently close relationship and the doctor can be considered to owe a duty of care. The Caparo 3 Stage test is applicable wherein the House of Lords laid down that a claimant in negligence must prove duty of care by establishing the following: reasonable foreseeability of damage, sufficiently close relationship between the parties to establish a duty in that class, and fairness and reasonableness of imposing duty.

However, it needs to be noted that a doctor is liable only where the harm is attributable to his negligence. The ‘but for test’ is relevant here and as per this test, the question to be asked is whether Jeremy would not have lived longer had his cancer been detected earlier. If the answer to the question is in affirmative, then there is material contribution which can be used to determine the liability of the doctor. As per the judgment in Bolitho, court needs to evaluate causation on the balance of probabilities. If the patient is not left worse off than they otherwise were, then the liability of the doctor does not arise.

In this case, Jeremy had been suffering from painful back ache for two months and had lost weight as well. When he visited the Accident and Emergency Department at the Central London Hospital, the doctor on duty, Dr Ali was busy with a lady who has suffered serious burns and was therefore seen by a newly qualified doctor who failed to consider the additional symptoms and did not make proper inquiries, which may have led to the disclosure of tumour. After 2 months, blood tests and scans revealed an aggressive cancerous tumour. The situation is that although Jeremy may have been told of the tumour earlier, the advanced stage of the tumour meant that even so, his prognosis was not good and there was still only a 47% chance of survival for 12 months. As per the judgements in Barnett, as well as Bolitho,if Jeremy is not left worse off than he was before he came to the hospital the first time, then the liability of the doctor does not arise.

The ‘but for’ test is also relevant here. As per this test, the courts have to consider whether the damage would not have occurred but for the negligence of the defendant. If the damage would have occurred anyway, then as per the judgment of the court in Barnett v Chelsea and Kensington Hospital Management Committee, the hospital is not liable as the harm to the patient is not just attributable to the negligence of the hospital. In other words, the liability of the doctor arises only where the harm to the plaintiff is attributable to the negligence of the doctor. In this case, it is difficult to pinpoint that the harm to Jeremy has occurred only because of the negligence of the doctor.

To conclude, as the harm to Jeremy is not attributable solely to Dr. Ali’s failure to see him, Dr Ali may be able to avoid liability for negligence in this case. This is because Jeremy was already suffering from advanced cancer and even if Dr Ali had seen him on the first visit, it may not have improved his prognosis significantly. There would still be more than 50 percent chance that Jeremy will not be able to live for 12 months.

The duty of disclosure that the doctor owes to the patient, relates not only to the informed consent of the patient, but also to the right of the patient to autonomy and self-determination with respect to the treatment that is available to the patient. This duty has been a part of the ethical and legal principles involved in medical practice. The jurisprudence developed by courts in England is now aligned to these ethical principles. An important case in this context is that of Montgomery v Lanarkshire Health Board (Scotland). In this recent case of Montgomery, the UK Supreme Court held that a patient could seek compensation for negligence against the doctor for the latter’s failure to give appropriate medical advice. The reasoning of the court in the case was that the doctor is under a duty to take reasonable care to make the patient aware of any ‘material risks’ that may be involved in recommended treatment, as well as any alternative treatments. The judgment written by Lord Kerr and Lord Reid significantly, also noted that the “test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.” Therefore, the significant point here is that it is the patient’s perception of the risk that is important for deciding whether the risk is material or not. In other words, the test of materiality puts the onus on the doctor to make the patient aware of any risks that the patient may consider to be material. The test asks the doctor to go beyond what a reasonable person would consider about the risk to be material; and consider whether materiality can also be attached to risks that the particular patient would be likely to attach significance to before making this call on whether the patient ought to be informed of the risk or not. This is a particular patient standard and goes beyond the existing reasonable patient standard that was established in English medical law jurisprudence before the decision in Montgomery. This essay critically considers this aspect of the judgment of the Supreme Court.

At the outset, it will be useful to consider the principle of informed consent, which is at the heart of patient autonomy, as high quality and patient centric health care considers informed consent to be one of the most important aspects of medical law. Therefore, informed consent has become an important issue in medical law and the decision of the Supreme Court in Montgomery needs to be seen in this context as the starting point. It may be noted at the outset that in the Montgomery decision the Supreme Court put emphasis on the need for telling patient everything that they should be told whatever they want to know, and not what the doctor thinks they should be told. In Montgomery, the liability of the doctor arose because the doctor had not informed the appellant about the risk of shoulder dystocia which would be involved in vaginal birth. The doctor had also failed to inform the patient of the alternative possibility of delivery by caesarean section. The failure of the doctor to inform the patient about the risks and alternative treatment availability was held in Montgomery to be negligence on the part of the doctor. The question was not what a reasonable patient would have considered material, but what Nadine Montgomery may have considered material and being her doctor, what the doctor would have known to be material risk for this particular patient. Therefore, there is a widening of the duty of disclosure as laid down by the court in Montgomery.

The important implication of the Montgomery decision is that the doctors are considered to have a duty of a more detailed disclosure, where the consideration is to be given to what the patient may consider important for forming the decision and not what the doctor considers essential for the patient to know. While the previous line of cases, particularly, Chester, and Pearce, had already laid down the duty of disclosure as linked to patient autonomy, the Montgomery judgment clarified this law further by laying down the particular patient standard.

In Bolam, the adequacy of preoperative disclosure was one of the areas of concern in the judgment. In that case, Lord Bridge had observed that any grave and substantial risk or consequence had to be disclosed, whatever be the otherwise commonly accepted medical practice in that regard. The problem with that decision was that it was difficult to discern what these grave and substantial risks could be that had to be subjected to the duty of disclosure on the part of the doctors. The vague nature of this Bolam decision was subjected to much criticism and even called into question over the years. The biggest issue here was that both clinicians as well as lawyers could not discern what risks would fall into the category of disclosure. Judges over time have been moved to shift the law towards a more prudent patient standard of disclosure, as one may see in the dictum of Lord Woolf MR in Pearce, that there is a need to inform the patient of any significant risk that would affect the judgment of the reasonable patient.

The Montgomery decision is a departure from the principle of law laid down in Sidway. In Sidway, the standard of disclosure was to be judged predominantly by reference to commonly accepted practice of the medical profession. An exception to this was where the doctor found there to be substantial risk of grave and adverse consequences in the commonly accepted practice. In Montgomery, the doctor has to go beyond commonly accepted practice and consider what a reasonable patient in the same place, or the particular patient in the case may consider to be a material risk. However, the subjectivity of the requirement of what a reasonable or prudent patient may consider to be a material risk is one of the areas of concern in the Montgomery decision. The decision introduces a subjective limb to the standard of disclosure by requiring the doctors to inform the patient of the material risks that the reasonable patient may think important. The particular patient standard is also imortant. In Sidway, the jugged had recognised that the duty of the doctor arises out of the right of the patient to make his own decision and not vice versa; in Montgomery as well, Lord Kerr and Lord Reed emphasised that the doctor has a duty of care that takes its content from the needs, concerns and circumstances of the individual patient. This adds another dimension to the duty of the doctor to the patient. It is this aspect of Montgomery which adds substance to the duty of the doctor as well as increases the protection for the patient’s right to receive sufficient preoperative information.

An important difference in Sidway and Montgomery is that in the former, the use of the concept of patient autonomy did not really guide the decision of the court, while in Montgomery, patient autonomy, as mentioned in Chester, became an important aspect of the “dignity” of the patient, which was specifically mentioned in Montgomery. Chester is an important milestone in the linking of the doctor’s duty to disclose to the patient’s right to autonomy. In Montgomery, the law has become clearer, and the rights of patients have taken centre stage. Lady Hale in particular used the word autonomy and also mentioned it as the platform for basing her analysis on in Montgomery.

To conclude, in Montgomery, the duty of care was not just related to disclosure of risks but also disclosure of reasonable alternatives or variant treatments. This is a more well-rounded take in English law on the duty of disclosure for the patient.

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List of Cases

  • Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428.
  • Montgomery v Lanarkshire Health Board [2015] UKSC 11, [68] and [93].
  • Bolitho v City and Hackney Health Authority [1998] AC 232.
  • Donohue v Stevenson [1932] UKHL 100.
  • Lochgelly Iron and Coal Co v McMullan [1934] AC 1.
  • Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11.
  • Pearce v United Bristol Healthcare NHS Trust [1999] ECC 167.
  • Sidway v Bethlem Hospital Royal Governors [1985] 1 All ER
  • Wilsher v Essex AHA [1988] AC 1074.
  • Books

  • Deakin SF, Johnston A and Markesinis, B Markesinis and Deakin's tort law (Oxford University Press 2012).
  • Herring H, Medical Law and Ethics (Oxford University Press 2016).
  • Lunney M and Oliphant K, Tort Law: Text and Materials (Oxford University Press 2013).
  • Statsky W, Essentials of Torts (New York: Cengage Learning 2011).
  • Journals

  • Heywood R, ‘RIP Sidaway: patient-oriented disclosure—a standard worth waiting for? Montgomery v Lanarkshire Health Board [2015] UKSC 11’ (2015) 23 Med Law 455.
  • Jones MA, ‘Informed Consent and other Fairy Stories’ (1999) 7 Med L Rev 103.
  • Matiasek J and Wynia MK, ‘Reconceptualizing the informed consent process at eight innovative hospitals’ (2008) 34(3) Jt Comm J Qual Patient Saf. 127.

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