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Two Judgements in the UK Could Shape the Way Medicine is Practiced

Two Judgements in the UK Could Shape the Way Medicine is Practiced

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  • UK Supreme Court passed judgements on two cases, both of which showed changing trends in doctor-patient relationship
  • Nadine Montgomery, a molecular biologist gave birth to a baby with severe disabilities, she was uninformed of her options
  • Dr Hadiza Bawa-Garba, a junior paediatrician was convicted of manslaughter for gross negligence.

In clinical practices, medical practitioners seldom consider non-clinical influences during a clinical consultation. Patient-centred factors like patient's quality of life, characteristics and interaction with professional community, socioeconomic status, patient's expectations and wishes, may well play a major role in the decisions taken by the medical professionals.

Should the medical professional take the final decision based on the medical evidences alone or should the patient also be consulted based on his/her background? Today, practicing medicine has shifted from 'paternalism' to 'patient-centered care', which typically means that decision-making is shared between the medical professional and the patient.


Decision-making may be the biggest obstacle to the reality of practicing evidence-based medicine. In a patient engagement discussion published in NEJM Catalyst, Kevin Volpp, Director of the Center for Health Incentives and Behavioral Economics at the University of Pennsylvania asks, "Where do we draw the line between improving people's health behavior in the direction that we want, versus leaving them happy with what they have?"

"If a patient makes a well-reasoned, well-informed decision not to change an unhealthy behavior, maybe we shouldn't push that person," suggests Volpp. However, if the patient is in fact in danger, David Kirchhoff, CEO of Snap Kitchen and former CEO of Weight Watchers argues that clinicians can't shy away from a serious discussion.

Recently, the UK Supreme Court passed judgements on two cases, both of which showed changing trends in doctor-patient relationship. These cases - Montgomery v Lanarkshire Health Board 2015 and Dr Bawa Garba v GMC, have become benchmarks and will shape the way medicine is practiced in the UK and in Asian countries as well, including India.

Case 1: Montgomery v Lanarkshire Health Board 2015

In October 1999, Nadine Montgomery, a molecular biologist at the Glasgow University, gave birth to a baby boy in Lanarkshire. She was small in stature with insulin dependent diabetes mellitus and pregnancy had required intensive monitoring. Babies born to mothers with diabetes mellitus are at risk of being large for gestational age. The baby is at risk of shoulder dystocia (when the baby's head emerges but a shoulder gets stuck during labour), and the mother is also at risk of other labour related problems. Despite such a grave situation, the mother was not informed that having a caesarean section was a possible alternative to vaginal delivery, which can reduce these risks.

After about 12 minutes the baby was born with severe disabilities and was diagnosed as suffering from cerebral palsy due to hypoxic damage to the brain (when the brain is deprived of oxygen supply) due to umbilical cord occlusion. All of the baby's limbs were affected by the cerebral palsy. He also suffered a brachial plexus injury resulting in Erb's palsy.

Nadine Montgomery claimed damages on behalf of her son for the injuries which he sustained alleging negligence on the part of her obstetrician and gynaecologist responsible for her care during her pregnancy and labour, who also delivered the baby.

In its final judgement, the UK Supreme Court said, "An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments."

On the issue of disclosure of risks, the Court ruled that "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 risk of shoulder dystocia was substantial around 9-10%. Applying the approach which we have described, the exercise of reasonable care undoubtedly required that it should be disclosed. Shoulder dystocia is itself a major obstetric emergency, requiring procedures which may be traumatic for the mother, and involving significant risks to her health."

It was argued on behalf of the doctor that Dr McLellan's decision not to disclose information about the risk of shoulder dystocia to her patients was because they may request for a caesarean section. And the risk of serious injury in this case was small; 0.2% risk of a brachial plexus injury and less than 0.1% risk of cord occlusion.

However, the UK Supreme Court ruled that Mrs Montgomery should have been informed of the shoulder dystocia risk for her baby and also should have been give the option of a caesarean section.

Mrs Montgomery, in all likelihood would have opted for a caesarean section, if she had been told of the risk of shoulder dystocia. She was awarded Ģ5.25 million in damages.

The Montgomery v Lanarkshire Health Board case saw a landmark judgement by the UK Supreme Court, which reflected a change in the doctor- patient relationship. The " Bolam test" which determines if this decision is acceptable, given the medical evidence was not applicable to the issue of 'consent' or 'provision of information to the patient' in any case of alleged negligence in UK. However, Mrs Montgomery must still prove that the damage was a direct result of breach of duty.

Bolam test was previously used in cases of medical negligence such as the judgement in Bolam v Friern Hospital Management Committee in 1957. It is the "standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill, it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising' that art (a health care professional), is not guilty of negligence if he has 'acted in accordance with a practice accepted as proper by a responsible body of medical man skilled in the particular act".

The Bolam test, requires that the adequacy of information given to the patient for consent must be in accordance with the practice accepted by a responsible body of medical opinion. The UK Supreme Court, in the Montgomery case ruled that the doctor has a duty "to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments".

Material risk is defined as a risk which a reasonable person would consider significant or which a doctor knows that the patient would consider it significant.

In the judgement that was passed the doctor is privileged to use his/her discretion on whether the patient would be affected by the disclosure of information, an if so, to withhold the same.

Case 2: Dr Bawa Garba v GMC

The case which involved Dr Hadiza Bawa-Garba, rocked the medical circles, as the junior paediatrician was convicted of manslaughter for gross negligence. She was stripped of her medical licence and given a two-year suspended sentence for mistakes which led to the death of a six-year-old boy, Jack Adcock, with Down's syndrome. Dr Bawa-Garba's name was erased from the medical register and was debarred from practicing medicine for life for system failures.

Many in the medical community argued, that as medical practice has become defensive practice, were such mistakes made in the Dr Bawa Garba case real enough to be called manslaughter?

Wrong Diagnosis

Jack Adcock, was referred to Dr Bawa-Garba by a general practitioner (GP) for nausea, vomiting, and diarrhea and low BP. A speculative diagnosis of fluid depletion from gastroenteritis was made by Dr Bawa-Garba and the boy was given intravenous fluid bolus immediately. The doctor had sent the blood sample to test the blood count, renal function and inflammatory markers, she took blood gases which showed that Jack was acidotic with a pH of 7 and a lactate of 11. A chest radiograph was also requested.

Jack's metabolic profile confirmed a diagnosis of shock from gastroenteritis; however, according to the tests pneumonia was also a possibility. Post the initial fluid bolus, Jack's metabolic profile seemed to be moving in the right direction, where his repeat blood gas showed he was less acidotic, with a pH of 7.24, heading towards a normal pH of 7.4.

Delay in Chest x-ray and Antibiotics

Fact: Dr Bawa-Garba was able to check the chest x-ray at 3 pm, which confirmed that the boy had pneumonia. The antibiotics which Dr Bawa-Garba prescribed were given at 4 pm.

It was argued that if the patient, Jack was given the antibiotics, much earlier, maybe within 30 minutes, rather than 6 hours, his chances of survival would have increased dramatically. However, the antibiotic was administered on confirmation of pneumonia.

If different antibiotics are given in every situation that is presented, will this not amount to misuse of antibiotics?

Senior Unavailable

When Dr Bawa-Garba met her senior Dr O'Riordan in the hospital corridor at 4:30 pm, Jack's blood gas results were shown and Dr Bawa-Garba explained the plan of action. However, Dr O'Riordan did not see the patient.

When asked why he did not see Jack, Dr O'Riordan said that Dr Bawa-Garba did not ask him to; nor did she express any clinical urgency. Shouldn't the consultant have to sniff out trouble? Wasn't this the senior's responsibility?

Guilty of homicide for mistaking normalizing pH after a fluid bolus for hypovolemic rather than septic shock

On hearing of delayed treatment given to Jack, the jury was unaware of other patients being treated by Dr Bawa-Garba in the same hospital.

When Jack's blood gases showed clear signs of sepsis, why didn't the consultant of the day Dr O'Riordan, not immediately diagnose sepsis when he saw the blood gases?

How can the blame fall on a resident, who was doing the work of three registrars? How can she be guilty of homicide for not understanding acid-base physiology? And what does this say about the supervisor's competence?

Enalapril should have been prevented

While in the ward, Jack was given enalapril. However, this medication was not prescribed by Dr Bawa-Garba, it was in fact given by Jack's mother. Dr Bawa-Garba mentioned that enalapril must be stopped. She strictly instructed the nursing staff not to give enalapril. Jack had a cardiac arrest an hour after enalapril was given.

Unprescribed drugs are strictly not to be given to a patient. This being the case the medical staff should have informed the family that such a practice is not allowed by law.

Since, the hospital did allow the parent to give the medicine, as they were understaffed, was this the fault of the doctor?

Patient Mix-up

Several attempts to resuscitate Jack were done by Dr Bawa-Garba, however there was a pause for just a minute, where the doctor had stopped to see if the patient was in fact Jack. The boy was pronounced dead. Could a pause of less than a minute be the cause of failed CPR?

Honest e-process log

Dr Bawa-Garba was depressed and disturbed after Jack's death. She recorded her feelings in her electronic portfolio. Without making excuses and not writing about the system failures in the hospital, Dr Bawa-Garba recorded her failings, without pointing fingers at others. This honest e-process log was used against her as evidence.

Was it a doctor's failure?

An investigation by the hospital trust had identified that several system issues. However medical errors can be both system failures and physician factors as well. While the American patient safety movement placed their blame for medical errors on the faulty systems, the Tort system maintains that individuals and systems can contribute: which is the truth.

Not reporting inadequate staff and system failures

As the hospital was understaffed, on that unfortunate day, with Dr Bawa-Garba's supervisor, Dr O'Riordan, not available in the city, and Dr Bawa-Garba's colleagues away on educational leave, she covered the wards, the emergency department, and the Children's Assessment Unit (CAU). Usually one registrar will be assigned to each one respectively.

Dr Bawa-Garba was also a new joinee to the hospital, with no formal induction. She did not know how things worked around the hospital. In spite of this she was expected carry on with the work and find her way around the hospital.

In the absence of a senior resident, the registrars are the principle decision-makers in hospitals. Since Dr Bawa-Garba was in-charge shouldn't she have raised an alarm on the failures in the systems of the hospital? Would she have faced an opposition from her senior and the management?

References :
  1. Drawing the Line Between paternalism and Patient-Centered care - (https://catalyst.nejm.org/videos/drawing-the-line-between-paternalism-and-patient-centered-care/)
  2. Medical decision making: paternalism versus patient-centered (autonomous) care. - (https://www.ncbi.nlm.nih.gov/pubmed/19005314)
Source: Medindia

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