Journal of Personal Injury Law. The differing treatments of judgment by professionals at work and when they are driving home

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1 Page1 Journal of Personal Injury Law 2011 The differing treatments of judgment by professionals at work and when they are driving home Geoff Clarke Subject: Personal injury. Other related subjects: Health. Negligence. Professions Keywords: Clinical negligence; Doctors; Medical treatment; Personal injury; Recklessness; Road traffic offences; Scotland; Standard of care Cases: Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582 (QBD) Hunter v Hanley [ ] P.N.L.R. 1 (IH (1 Div)) M's Guardian v Lanarkshire Health Board [2010] CSOH 104 (OH) *J.P.I. Law 1 Geoff Clarke QC contrasts the operation of the test for breach of duty in medical negligence cases following the line of authorities in Hunter v Hanley and Bolam with that for driving and illustrates the different way in which the law approaches errors of judgment. ML The very well known Scottish case of Hunter v Hanley 1 has been followed by so many Scots and English authorities and commented on without demur in many more that it is almost sacrilege to contemplate questioning its famous dictum: To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. 2 Nevertheless a comment by the writer in the company of the JPIL digest editor 3 that it seems strange that professionals should be so protected in their opinions when drivers can be jailed for making a simple error of judgement, where that mistake causes a death, led to an invitation to look at the area again. This article sets out to do that. It concentrates on medical negligence but of course the authorities are apt to cover all forms of professional negligence including that by lawyers. Mrs Hunter raised an action for professional negligence against a medical practitioner. As the latter was administering an injection into the patient's hip the hypodermic needle snapped and part of it was lodged in the soft tissues requiring hospital treatment to remove it. Somewhat surprisingly, at least to current practitioners, the matter was heard before a jury. 4 The judge was asked to give a direction about deviation from the usual and proper practice. He refused to give such a direction asking instead whether the departure from normal practice had been so great that it could be described as gross negligence. So directed, the jury answered the issue in the negative and the pursuer appealed. The court held that the direction as to gross negligence was incorrect and reversed the decision. Crucially, for the purposes of this article, the Lord President explained the third essential fact, that the course adapted is one which no professional man of ordinary skill would have taken as follows: *J.P.I. Law 2 In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. 5 As is well known, these dicta were applied by McNair J. in Bolam v Friern Hospital Management Committee. 6 Again the case was before a jury and what has become known as the Bolam test is found in the judge's directions to them. He said, at p.121:

2 Page2 [McNair J. began with some words about ordinary negligence and the man on the Clapham omnibus.] But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test 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 at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. it [must be] remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent. [On behalf of the defendants it was] submitted that the real question on each of the three major points to be considered is whether the defendants, in acting in the way in which they did, were acting in accordance with a practice of competent respected professional opinion. Thus even if a claimant can satisfy the court that there exists a normal practice and that it was not followed, if the defence can lead credible evidence that some practitioners do not follow such a practice (even if that is accepted as best practice) the claimant will fail. PI practitioners may find it singularly difficult to explain to a client that although they were treated by a consultant being paid a six figure sum by the National Health Service and that that consultant did not follow best practice and that that led to loss and injury that the case has failed because not all consultants follow best practice. And what this means is that, contrary to populist complaints by politicians and others with which we have become familiar in recent years, successful claims in medical negligence arise only when it can be shown that a practice was so poor it is not followed by any medical practitioners. Most medical practitioners, in the writer's experience, take the view that they are under a duty to act in the best interests of the patient and it is suggested that this would be the view of the majority of the public were they to be asked the question. Against that commendable standard litigation has barely scratched the surface as far as lack of proper care is concerned. I will go on to examine this further in the light of a recent Scottish case but before I do it is convenient perhaps to consider circumstances where the rule does not apply. First, there must be a genuine professional opinion rather than a simple (or not so simple) matter of fact. In Penney v East Kent HA the issue was the allegedly negligent interpretation of cervical smear slides and the Court of appeal agreed with the judge that whilst the Bolam test was appropriate where the exercise of skill and judgment employed by the screener was being questioned, it had no application where a judge had to determine what the slides actually showed, even where that determination was the subject of conflicting medical evidence. 7 *J.P.I. Law 3 Secondly, it is important to distinguish between opinion and matters of fact. In Fallows v Randle the Court of Appeal held that what the judge was doing was deciding which of two explanations was more probable. 8 Had he made a choice between two bodies of professional opinion he would have erred. Thirdly if there is a system in place then there is no room for different opinions as to whether it should be followed. Thus in Cavanagh v Bristol and Weston HA the court held that it had been negligent not to follow up treatment after a detached retina operation. 9 The Bolam principle did not apply to causation of damage. Thus using the wrong concentration of penicillin or failing to remove a swab will amount to simple negligence. It is important therefore to be aware that the Hunter v Hanley or Bolam principle will not always apply. Where it does though considerable difficulties face claimants. These are well illustrated in the case of M's Guardian v Lanarkshire Health Board which was heard in the summer of 2010, quantum was agreed at 5.25 million. 10 On behalf of her child, Nadine Montgomery claimed that her care during delivery of Sam fell below the standard to be expected of a reasonably competent obstetrician. Mrs Montgomery was diabetic and of short stature. Diabetic mothers are likely to have larger babies. They are at an increased risk of encountering mechanical problems with delivery. The estimated foetal weight was 3.9 kg. At 4kg the consultant would normally advise mothers to have a Caesarian section. The head was delivered at but the rest of Sam's body could not be delivered due to shoulder dystocia until During those 12 minutes the umbilical cord was occluded and Sam was deprived of all oxygen. The pursuer argued that no ordinarily competent obstetrician would allow a diabetic woman of short stature with a large foetus where the foetal heartbeat was grossly abnormal to continue in labour and

3 Page3 attempt a vaginal delivery. Further she argued that at certain later stages there were further signs that the attempt at vaginal delivery should be abandoned and that there had been a failure to take foetal blood samples at crucial times. The argument was largely dependent upon interpretation of the cardiotochograph trace. Unlike in Penney the judge held that interpretation of this trace was a matter of professional opinion. The court heard from four expert medical witnesses, two on each side. Each of those witnesses gave their opinions in relation to the issues of informed consent and the interpretation of the CTG. The experts led for the pursuer were each of the opinion that in several respects the conduct of the defenders' obstetrician had clearly fallen below the required standard. The experts led for the defenders gave somewhat different evidence each from the other but both were of the view that whilst the conduct did not represent best practice, and may have fallen well below it, nevertheless a reasonable body of obstetricians would have acted in the same way. It was submitted for the pursuer that the defenders' experts' evidence failed to explain why a suspicious trace did not have to be responded to in a high risk pregnancy. Secondly, they relied on general variability of cardiotochograph traces but failed to appreciate that the context was a high risk pregnancy where labour had stalled and where there had at least been some abnormality on the trace. In all it was submitted that these features showed that the views were illogical and unreasonable. The judge, following Hunter v Hanley accepted the submission of the defenders that the pursuer could only succeed on these grounds of fault if she was able to discredit the defender's experts and he could thus entirely reject their evidence. The pursuer required to show that this was one of those rare cases where the views expressed by the defender's experts were unreasonable, irrational or illogical. He then states at [207]: *J.P.I. Law 4 I have been unable to conclude that the defenders' experts' views on the interpretation of the CTG trace cannot be supported at all. It could not be said that the defenders' expert's position resulted in a course being taken which elementary teaching would have advised should never be taken, that being the type of situation which could be said to not be able to withstand logical analysis. This case in my judgment could not be said to be one of those rare cases in which I am entitled to reject a body of expert evidence which supported the actings of the doctor criticised. Their position that there was no need to intervene at any of the points identified by the pursuer's experts was overall in my view clearly defensible. Their views may be wrong. I am, however, unable to identify any basis for wholly rejecting them as illogical. What this tells us is that the test which claimants in such professional negligence cases must satisfy is very high indeed. Furthermore cases where claimants succeed in questions involving clinical judgement are restricted to those where the practice followed is indefensible. If a practice can be shown to be in operation even if the balance of opinion is that it is far from best practice then the claimant will fail. Probably if the conduct was classified as poor practice a claimant would succeed but clearly such a classification is relative and if an expert gives evidence that it is operated by some part of his profession then it will not be negligent. There is also the danger when the test is so high that an expert sympathetic to a member of his or her profession will be tempted to say just a little too much in defence of that member. Of course this is always a risk in an adversarial system but in the context of scientific evidence being reviewed to see whether it cannot be supported at all it is difficult to see how this could be safeguarded against. These are difficult cases and they lead to results which can seem unfair. It is suggested that the logic expressed by Lord President Clyde in Hunter v Hanley cannot truly be faulted. If there are genuinely two schools of thought then a professional who follows one, perhaps the less well received, cannot be faulted. What has to be guarded against is the risk that the dictum be used to defend what is in reality poor, unacceptable practice. What then of best practice? As suggested above doctors and nurses tend to consider that they must act in the best interests of the patient. Could not this objective standard be applied? It is suggested that to most lawyers such a proposition would be anathema. It would certainly fly in the face of Hunter, Bolam and all that followed. It is clear that as Lord President Clyde said it would be disastrous if professional persons were denied discretion and judgement. And yet in the area of driving, where surely judgements as to safe speeds and conditions must be made continually, such an objective test has long been part of the jurisprudence.

4 Page4 Since 1991, dangerous driving has been defined as driving falling far below what would be expected of the competent and careful driver if it would be obvious to the competent and careful driver that driving in that way would be dangerous. 11 It should be noted that in implementing this objective standard the courts in Scotland still follow the definition of reckless driving in Allan v Patterson (William Arthur) 12 which involved an element of recklessness and this might denote some subjective intent or wickedness. It will be well known that if a person is found guilty of the offence of causing death by dangerous driving he is likely to go to jail for several years. More recently the new offence of contravention of s.2b causing death by careless or inconsiderate driving was introduced by s.20 of the Road Safety Act The test would appear to be wholly objective and tested purely against the standard of the competent, careful and considerate driver. In terms of the sentencing guidelines 13 if the offence involved only a momentary lapse with no aggravating factors then *J.P.I. Law 5 a community service penalty is appropriate. If, however, there are aggravating factors present, or if the offence involved a more serious breach than momentary inattention then the appropriate sentence is custodial. Many will consider that there is not a proper comparison between driving offences and reparation for professional negligence. It respectfully seems to the writer, however, that there is at least a tension in a system which on the one hand affords such protection to its professionals in civil cases and yet will imprison persons who have made a mistake which the House of Lords considered denoted no moral culpability whatsoever where, most unfortunately, a death has occurred. In Scotland, there exists a fast track personal injuries procedure. Medical negligence (other professional negligence does not normally cause injury to the person) is considered to be too complex for this procedure and so such cases are dealt with on what is known as the Ordinary Procedure. Paradoxically this means that reports do not require to be lodged more than 28 days before a hearing (as opposed to eight weeks in simple PI cases) and there is no requirement for a pre-trial meeting to see what can be achieved by way of agreement. In most cases the claimant will require to lead the professional whom he or she says has been negligent. Thus there is no opportunity for that person to be cross examined by the claimant's lawyers. Surely most would agree that such a procedure unnecessarily favours the defence and that reform on a procedural level at least is overdue. Some such reform is heralded in the Civil Justice Review by Scotland's second most senior judge Lord Gill but the Parliamentary report following that review, whilst welcoming the recommendations, points to a lack of funding for change, perhaps for years. It is suggested that despite the venerability of Hunter v Hanley and the Bolam test there remains room for real debate as to how to achieve justice in these difficult cases. J.P.I. Law 2011, 1, Hunter v Hanley (1955) S.C Hunter v Hanley (1955) S.C. 200 at [206]. Nigel Tomkins. Jury trials in personal injury cases are still relatively common in Scotland but it is almost inconceivable that a case of medical negligence would be heard by a jury. Generally where there are questions of legal relevancy to be answered after proof the matter will be dealt with by a judge. Hunter v Hanley (1955) S.C. 200; 1955 S.L.T. 213 at [217]. Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582; [1957] 2 All E.R Penney v East Kent HA [2000] Lloyd's Rep. Med. 41 CA. Fallows v Randle [1997] 8 Med. L.R

5 Page5 Cavanagh v Bristol and Weston HA [1992] 3 Med. L.R M's Guardian v Lanarkshire Health Board [2010] CSOH 104. Road Traffic Act 1988 ss.1 and 2 as amended by the Road Traffic Act Allan v Patterson (William Arthur) 1980 J.C. 57. See [Accessed January 20, 2011] Sweet & Maxwell and its Contributors

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