Doctor-patient relationship under strutiny following Supreme Court ruling

The doctor-patient relationship will change forever after a ruling by the UK’s highest court, according to the Scottish legal firm which represented the mother involved in the case.

Lanarkshire woman Nadine Montgomery, whose baby suffered brain damage during birth, won a 16-year fight for £5.25m compensation after taking her case to the Supreme Court.

She said medics neglected to give her proper advice which may have led to her son Sam having a safer caesarean birth in 1999.

Her damages claim had been rejected on two previous occasions at the Court of Session in Edinburgh. Judges at the Supreme Court in London have upheld her major damages claim against NHS Lanarkshire. Seven UK Supreme Court judges found in favour of Mrs Montgomery in the landmark Montgomery v Lanarkshire Health Board case.

Following the ruling, Mrs Montgomery said: "This judgment is an enormous relief after a very long legal fight.

"I believe that I had the right to know of all the risks surrounding Sam's birth - and I am pleased the Supreme Court has recognised that. I hope this means that other patients will not have to go through what I have gone through.

"The decision will allow me to ensure Sam receives the best possible care for the rest of his life."

Fred Tyler, a senior litigation partner with Edinburgh legal firm Balfour+Manson LLP, who represented Mrs Montgomery throughout the lengthy legal battle said: “My primary wish has always been to secure a positive outcome for Mrs Montgomery and her son. The settlement will allow her to ensure Sam receives the best possible care for the rest of his life.

“In a wider context, this is almost certainly the most significant medical negligence judgment in 30 years - a momentous decision which will affect the doctor-patient relationship throughout the UK. Doctors will have to discuss with their patients the options that exist in their treatment and advise them about the alternatives and any associated risks.

“The Supreme Court has modernised the law on consent and introduced a patient-focused test to UK law, which allows the patient rather than the medical professionals to decide upon the level of risk they wish to take in terms of a particular course of action, given all the information available. This change reflects the Guidance of the General Medical Council on patient consent, which was in force at the time of Sam’s birth and which remains in force today.

"The court has stated very firmly that medical paternalism no longer rules and the decision will certainly have long term consequences.”

The case hinged on whether the Health Board went far enough in advising Mrs Montgomery - a Type 1 diabetic mother of small stature - of all the potential risks of giving birth to her son. It is recognised that diabetic mothers can give birth to larger than average babies, putting them at risk of complications from traditional births, including shoulder dystocia.

After delivery of his head, Sam’s shoulder became stuck (shoulder dystocia). The staff performed appropriate manoeuvres to release the shoulder, but during the 12-minute delay, he was asphyxiated. The need for resuscitation resulted in brain damage, leading to cerebral palsy and brachial plexus injury (damage to the nerves sending messages from the spine to the shoulder, arm and hand).

Mrs Montgomery expressed concerns during pregnancy about her ability to deliver the baby safely. Her obstetrician was aware of the risks of shoulder dystocia, but made a decision not to discuss this with Mrs Montgomery – or to discuss Caesarean section as an alternative. Mrs Montgomery indicated that had she been advised of the risks, she would have elected for a Caesarean section.

Mr Tyler added: “Mrs Montgomery had the right to be advised of the risk of shoulder dystocia, and the right to make her own decision on what risks she was prepared to undertake in terms of the delivery. If she had been properly advised of the risks, she would have opted for Caesarean section – and her child would have been delivered uninjured.”