Professional practice test applied to treatment advice
A doctor was not negligent in failing to inform a patient about a possible alternative treatment to what was being recommended, where the doctor's opinion was that the alternative treatment was not reasonable, and that opinion was supported by a responsible body of medical opinion, the UK Supreme Court held today.
Five Justices gave the unanimous decision in dismissing an appeal by the family of Neil McCulloch from decisions of the Court of Session that a Dr Labinjoh was not negligent in failing to inform Mr McCulloch of a possible course of treatment prior to his death following a cardiac arrest.
Mr McCulloch, aged 39, was twice admitted to hospital around the end of March 2012 complaining of chest pains, nausea and vomiting. On each occasion Dr Labinjoh, a consultant cardiologist, reviewed an echocardiogram and concluded that it did not fit with a standard diagnosis of pericarditis (an inflammation close to the heart). On the first occasion he was discharged home on antibiotics. On the second, he looked much better and denied having any chest pain. Dr Labinjoh saw no reason to prescribe any additional medical treatment, in particular non-steroidal anti-inflammatory drugs ("NSAIDs"), such as ibuprofen, because he was not in pain at the time and there was no clear diagnosis of pericarditis. He was discharged home and remained on antibiotics, but the following day suffered the fatal cardiac arrest.
The pursuers brought an action against Forth Valley Health Board alleging vicariously liability for negligent treatment by Dr Labinjoh, through breach of duty of care by failing to inform Mr McCulloch that NSAIDs were a possible treatment option for him which he would have accepted had he been so advised.
Expert evidence indicated that, while some doctors would have prescribed NSAIDs, there was also a responsible body of medical opinion that supported Dr Labinjoh's approach given that Mr McCulloch was not in pain and there was no clear diagnosis of pericarditis. The Lord Ordinary and the Inner House held that Dr Labinjoh had not been negligent.
On appeal to the Supreme Court, the main issue was what test should be applied in light of Montgomery v Lanarkshire Health Board (2015), when assessing whether an alternative treatment is reasonable and requires to be discussed with the patient. The appellants argued that the "professional practice test" in the leading cases of Hunter v Hanley (1955) and Bolam v Friern Hospital Management Committee (1957) was not the correct test to apply and that it was for the court to determine what were the reasonable alternative treatments about which the patient should be informed.
Dismissing the appeal, Lord Hamblen and Lord Burrows, with whom Lord Reed, Lord Hodge and Lord Kitchin agreed, said the professional practice test was the correct one to apply. A doctor who had taken the view that a treatment was not a reasonable alternative treatment for a particular patient would not be negligent in failing to inform the patient of that alternative if the doctor's view was supported by a responsible of body of medical opinion.
Supposing a doctor made a (possibly provisional) diagnosis having examined the patient, conducted tests, and had discussions with the patient, for which there were 10 possible treatment options. Exercising their clinical judgment, the doctor decided that only four of them were reasonable and that decision to rule out six was supported by a responsible body of medical opinion. The narrowing down from possible alternative to reasonable alternative treatments was an exercise of clinical judgment to which the professional practice test should be applied. The duty of reasonable care would then require the doctor to inform the patient not only of the recommended treatment option but also the other three reasonable alternative options (plus no treatment if that was a reasonable alternative), indicating their respective advantages and disadvantages and the material risks involved in each.
The appellants' submission was rejected for a number of reasons including consistency with what was said in Montgomery, consistency with the two stage test in Duce v Worcestershire Acute Hospitals NHS Trust (2018), consistency with medical expertise and guidance, avoiding the conflict of a doctor having to inform the patient about a treatment that the doctor considered clinically inappropriate, avoiding bombarding the patient with information, and avoiding making the law uncertain for doctors who had to apply it.
In the present case, Dr Labinjoh was not negligent because her view that prescribing NSAIDs for Mr McCulloch was not a reasonable treatment option because he was not in pain and there was no clear diagnosis of pericarditis, was supported by a responsible body of medical opinion, and she was not in breach of her duty of care by not informing him of that possible option.