McCulloch and Others v Forth Valley Health Board
| Jurisdiction | Scotland |
| Judge | Lord Hamblen,Lord Burrows,Lord Reed,Lord Hodge,Lord Kitchin |
| Judgment Date | 12 July 2023 |
| Neutral Citation | [2023] UKSC 26 |
| Court | Supreme Court (Scotland) |
[2023] UKSC 26
Lord Reed, President
Lord Hodge, Deputy President
Lord Kitchin
Lord Hamblen
Lord Burrows
Supreme Court
Trinity Term
On appeal from: [2021] CSIH 21
Appellants
Robert Weir KC
Lauren Sutherland KC
(Instructed by Drummond Miller LLP (Edinburgh))
Respondent Una Doherty KC
David Myhill
Ewen Campbell
(Instructed by NHS Central Legal Office (Edinburgh))
1 st Intervener
Roddy Dunlop KC
(Instructed by GMC Legal (Manchester))
2 nd Intervener (written submissions only)
Ben Collins KC
Sophie Beesley
(Instructed by Capital Law (Cardiff))
Interveners
1) General Medical Council
2) British Medical Association
Heard on 10 and 11 May 2023
Lord Hamblen AND Lord Burrows ( with whom Lord Reed, Lord Hodge and Lord Kitchin agree):
The legal test for establishing negligence by a doctor in diagnosis or treatment is whether the doctor has acted in accordance with a practice accepted as proper by a responsible body of medical opinion. In this judgment, we will refer to this test, for shorthand, as the “professional practice test”. This test was most clearly laid down by McNair J in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (“ Bolam”) at p 587 and is consistent with what Lord President Clyde said in the leading Scottish case of Hunter v Hanley 1955 SC 200 (“ Hunter v Hanley”) at p 206. A qualification of this test is that, as recognised in Bolitho v City and Hackney Health Authority [1998] AC 232 (“ Bolitho”, a court may, in a rare case, reject the professional opinion if it is incapable of withstanding logical analysis.
In the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430 (“ Montgomery”) this court decided that the professional practice test did not apply to a doctor's advisory role “in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved” (para 82). The performance of this advisory role is not a matter of purely professional judgment because respect must be shown for the right of patients to decide on the risks to their health which they are willing to run. “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” (para 87). The courts are therefore imposing a standard of reasonable care in respect of a doctor's advisory role that may go beyond what would be considered proper by a responsible body of medical opinion.
The main issue which arises on this appeal is what legal test should be applied to the assessment as to whether an alternative treatment is reasonable and requires to be discussed with the patient. More specifically, did the doctor in this case fall below the required standard of reasonable care by failing to make a patient aware of an alternative treatment in a situation 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 Inner House and the Lord Ordinary held that the professional practice test applies. Whether an alternative treatment is reasonable depends upon the exercise of professional skill and judgment and a treatment which, applying the professional practice test, is considered not to be reasonable does not have to be discussed with the patient. The appellants contend that this is wrong in law. They accept that whether the doctor should know of the existence of an alternative treatment is governed by the professional practice test. In contrast, they submit that whether the alternative treatments so identified are reasonable depends on the circumstances, objectives and values of the individual patient and cannot be judged simply by the view of the doctor offering the treatment even though that view is supported by a responsible body of medical opinion. If the appellants are correct as to the applicable legal test then further issues arise in relation to causation.
These issues arise in the context of a claim brought by the widow and other family members of Mr Neil McCulloch against the respondent, Forth Valley Health Board, for damages for negligently causing his death on 7 April 2012. It is alleged that his death was caused by the negligence of Dr Labinjoh, a consultant cardiologist, for whose acts and omissions the respondent is vicariously liable. In particular, it is alleged that (i) on 3 April 2012 Dr Labinjoh should have advised Mr McCulloch of the option of treatment with a non-steroidal anti-inflammatory drug (“NSAID”) (such as ibuprofen) for pericarditis, (ii) had such advice been given, Mr McCulloch would have taken the NSAID, (iii) had he taken the NSAID, he would not have died.
Mr McCulloch died on 7 April 2012 shortly after admission to Forth Valley Royal Hospital (“FVRH”), having suffered a cardiac arrest at his home at around 14.00. He was aged 39. The cause of death was recorded as idiopathic pericarditis and pericardial effusion. It was agreed that Mr McCulloch died as a result of cardiac tamponade.
The heart is a muscular pump which sits within the pericardial sac. The outer surface of the heart is the visceral pericardium and the sac is the parietal pericardium. There is normally a small amount of fluid within the pericardial sac to allow free movement of the heart during contraction. Fluid can accumulate in the pericardial sac. If the two layers of pericardium become separated by the accumulating fluid, this is a pericardial effusion. In most cases, inflammation of the pericardial sac is called pericarditis. In many cases no cause can be found for the pericarditis and in such circumstances it is referred to as idiopathic pericarditis. Tamponade occurs when a large pericardial effusion compresses the heart and does not allow adequate filling. There are degrees of tamponade. When cardiac tamponade is complete there is no cardiac output.
The detailed history of Mr McCulloch's admissions to FVRH and his treatment there are set out in the (unchallenged) findings of the Lord Ordinary at paras 8 to 41 of his opinion.
In outline, Mr McCulloch was first admitted to FVRH on 23 March 2012 at 20.10. Prior to his admission Mr McCulloch had become acutely unwell with severe pleuritic chest pains and worsening nausea and vomiting. Tests showed abnormalities compatible with a diagnosis of pericarditis. Treatment with fluids and antibiotics was started to treat sepsis. The presence of a pericardial effusion, fluid in the abdomen and around the hepatic portal system were also noted.
Mr McCulloch continued to deteriorate and by 01.30 on 24 March he was intubated and ventilated in the Intensive Treatment Unit (“ITU”). The possibility was investigated of transferring Mr McCulloch to Glasgow Royal Infirmary to facilitate pericardiocentesis if this was required. This is a process whereby the pericardial fluid is removed by aspiration through a needle usually under ultrasound guidance. Following improvements in Mr McCulloch's condition during the course of that day it was decided not to transfer him.
Dr Labinjoh's first involvement was on 26 March when she was asked to review an echocardiogram which had been performed on Mr McCulloch. An echo or echocardiogram is an ultrasound examination of the heart and its immediately surrounding structures. The process is used to identify cavities which may be fluid filled. Sound waves, which leave a transducer placed on the chest, return at different velocities and depths and are then assimilated into a moving image on the screen. The video recordings are available for subsequent review by a cardiologist. A sonographer produces a written report for the patient's records.
Dr Labinjoh was a highly experienced cardiologist. At the time of the proof in January 2020 she had held the post of consultant cardiologist at NHS Forth Valley for 13 years and had been clinical lead for cardiology at NHS Forth Valley for eight years. In 2012 the cardiology unit provided specialist advice to other departments on request.
Dr Labinjoh made a note of her review of Mr McCulloch. Her note stated: “This man's presentation does not fit with a diagnosis of pericarditis. He has been unwell with weight loss for months and presents with vomiting, abdo [ie abdominal] pain, fever and hypotension, pleuritic chest pain. Anaemic on admission at 97. CRP [ie C-reactive protein] 40. His JVP [ie jugular venous pulse] was not elevated making significant pericardial constriction very unlikely. I will discuss with Dr Woods [sic] who was exploring immunocompromise, malignancy. Care to continue under general medicine. I'll review echo.”
During the next few days Mr McCulloch's condition improved and on 30 March he was discharged home on antibiotics, to be reviewed by Dr Wood in four weeks' time, with a repeat echocardiogram and chest X-ray to be arranged in advance of the consultation. The immediate discharge letter on 30 March recorded the diagnosis as acute viral myo/pericarditis and pleuropneumonitis with secondary bacterial lower respiratory tract infection.
Mr McCulloch was re-admitted to FVRH by ambulance on 1 April 2012 at 22.22. The complaint was of central pleuritic chest pain, similar to the previous admission. On admission it was noted under “History of Presenting Complaint” that Mr McCulloch had “c/o [ie complained of] central chest pain, recent ITU admission. Pericarditis”. He was given intravenous fluids and antibiotics and admitted under the care of the medical team.
On 2 April, Mr McCulloch was transferred from Accident and Emergency to the...
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