Maynard v West Midlands Regional Health Authority

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Fraser of Tullybelton, Lord Elwyn-Jones, Lord Scarman, Lord Roskill, Lord Templeman
Judgment Date05 May 1983

[1983] UKHL J0505-1

House of Lords

Lord Fraser of Tullybelton

Lord Elwyn-Jones

Lord Scarman

Lord Roskill

Lord Templeman

Maynard (Married Woman) A.P.
West Midlands Regional Health Authority
Lord Fraser of Tullybelton

My Lords,


I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Scarman, and I agree with it. For the reasons that he gives I would dismiss this appeal.

Lord Elwyn-Jones

My Lords,


I have had the benefit of reading in draft the speech to be delivered by my noble and learned friend, Lord Scarman. I agree with it and for the reasons he gives I would dismiss the appeal.

Lord Scarman

My Lords,


The question in this appeal is whether a physician and a surgeon, working together in the treatment of their patient, were guilty of an error of professional judgment of such a character as to constitute a breach of their duty of care towards her. The negligence alleged against each, or one or other, of them is that contrary to the strong medical indications which should have led them to diagnose tuberculosis they held back from a firm diagnosis and decided that she should undergo the diagnostic operation, mediastinoscopy. It was an operation which carried certain risks, even when correctly performed, as it is admitted that it was in this case. One of the risks, namely damage to the left laryngeal recurrent nerve, did, as the judge has found and the respondent authority now accepts, unfortunately materialise with resulting paralysis of the left vocal chord. Comyn J., the trial judge, held that the two doctors were negligent. The Court of Appeal (Cumming-Bruce L.J. and Sir Stanley Rees, Dunn L.J. dissenting) held that they were not. The only issue for the House is whether the two medical men. Dr. Ross who was the consultant physician and Mr. Stephenson the surgeon, were guilty of an error of judgment amounting to a breach of their duty of care to their patient. Both accept that the refusal to make a firm diagnosis until they had available the findings of the diagnostic operation was one for which they were jointly responsible.


The issue is essentially one of fact: but there remains the possibility, which it will be necessary to examine closely, that the judge, although directing himself correctly as to the law, failed to apply it correctly when he came to draw the inferences upon which his conclusion of negligence was based. Should this possibility be established as the true interpretation to be put upon his judgment, he would, of course, be guilty of an error of law.


In English law the appeal process is a re-hearing of fact and law. But the limitations upon an appellate court's ability to review findings of fact are severe, and well-established. Lord Thankerton stated the principles in Watt or Thomas v. Thomas [1947] A.C. 484; and recently the cases and the principles have been reviewed by this House in Whitehouse v. Jordan [1981] 1 W.L.R. 246, itself a medical negligence case. It is, therefore, unnecessary now to re-state them. I would, however, draw attention to some observations by Lord Bridge of Harwich in Whitehouse's case and by Brandon L.J. in a Court of Appeal case, Joyce v. Yeomans [1981] 1 W.L.R. 549, since they are directly relevant to the problems facing your Lordships in this appeal. Lord Bridge said, p.269 op.cit.,

"I recognise that this is a question of pure fact and that, in the realm of fact, as the authorities repeatedly emphasise, the advantages which the judge derives from seeing and hearing the witnesses must always be respected by an appellate court. At the same time the importance of the part played by those advantages in assisting the judge to any particular conclusion of fact varies through a wide spectrum, from, at one end, a straight conflict of primary fact between witnesses, where credibility is crucial and the appellate court can hardly ever interfere, to, at the other end, an inference from undisputed primary facts, where the appellate court is in just as good a position as the trial judge to make the decision."


The primary facts in this case are undisputed. But there are gaps in our knowledge of some details of the medical picture due to a loss of hospital notes. These gaps occur in the critical period during which the two doctors made the decision which is said to be negligent. The gaps have to be bridged by inference. In this task, the trial judge, it must be recognised, had the advantage of seeing and hearing the two medical men whose professional judgment, reached during that period, is impugned. We are not, therefore, at the extreme end of Lord Bridge's "wide spectrum", though we are near it. There is room for a judgment on credibility for the reasons given by Brandon L.J. in Joyce v. Yeomans, supra, at p.556. Speaking of expert evidence, the learned Lord Justice made this comment:

"There are various aspects of such evidence in respect of which the trial judge can get the ' feeling ' of a case in a way in which an appellate court, reading the transcript, cannot. Sometimes expert witnesses display signs of partisanship in a witness box or lack of objectivity. This may or may not be obvious from the transcript, yet it may be quite plain to the trial judge. Sometimes an expert witness may refuse to make what a more wise witness would make, namely, proper concessions to the viewpoint of the other side. Here again this may or may not be apparent from the transcript, although plain to the trial judge. I mention only two aspects of the matter, but there are others."


These are wise words of warning, but they do not modify Lord Thankerton's statement of principle, nor were they intended to do so. The relevant principle remains, namely that an appellate court, if disposed to come to a different conclusion from the trial judge on the printed evidence, should not do so unless satisfied that the advantage enjoyed by him of seeing and hearing the witnesses is not sufficient to explain or justify his conclusion. But if the appellate court is satisfied that he has not made a proper use of his advantage, "the matter will then become at large for the appellate court" ( loc. cit, p.488).


The only other question of law in the appeal is as to the nature of the duty owed by a doctor to his patient. The most recent authoritative formulation is that by Lord Edmund-Davies in the Whitehouse case. Quoting from the judgment of McNair J. in Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582, 586 he said (p.258) that '"the test is the standard of the ordinary skilled man exercising and professing to have that special skill.' If a surgeon fails to measure up to that standard in any respect ('clinical judgment' or otherwise) he has been negligent." The present case may be classified as one of clinical judgment. Two distinguished consultants, a physician and a surgeon experienced in the treatment of chest diseases, formed a judgment as to what was, in their opinion, in the best interests of their patient. They recognised that tuberculosis was the most likely diagnosis. But, in their opinion, there was an unusual factor, viz. swollen glands in the mediastinum unaccompanied by any evidence of lesion in the lungs. Hodgkin's disease, carcinoma, and sarcoidosis were, therefore, possibilities. The danger they thought was Hodgkin's disease; though unlikely, it was, if present, a killer (as treatment was understood in 1970) unless remedial steps were taken in its early stage. They, therefore, decided on mediastinoscopy, an operative procedure which would provide them with a biopsy from the swollen gland which could be subjected to immediate microscopic examination. It is said that the evidence of tuberculosis was so strong that it was unreasonable and wrong to defer diagnosis and to put their patient to the risks of the operation. The case against them is not mistake or carelessness in performing the operation, which it is admitted was properly carried out, but an error of judgment in requiring the operation to be undertaken.


A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent clearly presents certain difficulties of proof. It is not enough to show that there is a body of competent professional opinion which considers that theirs was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken it was reasonable in the sense that a responsible body of medical opinion would have accepted it as proper. I do not think that the words of Lord President Clyde in Hunter v. Hanley 1955 S.L.T. 213, 217 can be bettered:

"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 … 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."


I would only add that a doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professional judgment. A court may prefer one body of opinion to the other: but that is no basis for a conclusion of negligence.


Before outlining the facts a general observation on the evidence has to be made. No medical witness had any recollection of the...

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