In a 2015 UK Supreme Court decision that is likely to be relevant in Australia, it was proven that contrary to popular belief, the doctor does not always know best. A woman, Montgomery, went to court seeking damages on behalf of her child for injuries suffered during labour. Lord Kerr and Lord Reed SCJJ held Montgomery’s doctor to have been negligent in her failure to advise Montgomery of the risks of a natural birth, which caused her child life-long injuries.

Failure to advise of risks caused child’s disability

In 1999 Montgomery gave birth to her first child. However, a complication during delivery caused her child life-long injuries. Montgomery was a high-risk pregnancy. She was diabetic and of small stature. Diabetic mothers have an increased risk of having larger than average babies. During her pregnancy, Montgomery had expressed concerns to her doctor about vaginal delivery due to her baby’s larger size. Montgomery later claimed that had she known of the risks, she would have elected to have a caesarean.

As it happens, there was a 9-10% chance of Montgomery’s child suffering shoulder dystocia. This is where, during delivery, the baby’s shoulders become lodged behind the mother’s pelvic bone. Consequentially, natural delivery becomes near impossible.  However, the doctor was of the view that the risk was too small to concern Montgomery with.

During labour shoulder dystocia did occur. Instead of pushing the baby back into the uterus and performing a C-section, the doctor decided to continue with vaginal delivery. The doctor eventually succeeded in getting the baby free. However, the baby suffered injuries causing cerebral palsy and paralysis of his arm. The child would have avoided injury if the doctor had given Montgomery a C-section.

Is failure to advise of risks, negligence?

When establishing a case in negligence three elements must be met. Firstly, the appellant must prove that there was a duty of care owed. Secondly the respondent must breach their duty. Finally, the appellant must prove that the breach caused the injuries. If these criteria are met, the appellant is entitled to damages.

Montgomery raised two grounds for negligence. First, during antenatal care the doctor had failed to advise Montgomery of the risks of having a natural birth and of the possibility of having a C-section. Secondly, in the management of her labour the doctor failed to perform a caesarean despite the cardiotocograph indicating a cause for concern.

At first instance, the Lord Ordinary dismissed Montgomery’s claim. The Lord Ordinary held that the doctor’s decision to withhold information was consistent with responsible medical opinions. Furthermore, the Lord Ordinary held that even if fully informed, Montgomery would not have chosen a C-section. However, Montgomery appealed to the Supreme Court whereby The Court granted a decision in her favour.

The verdict

Lord Kerr and Lord Reed SCJJ made references to the Australian High Court case of Rogers v Whitaker [1992] HCA 58 in their reasoning. In Rogers v Whitaker, it was held that a risk is material if a reasonable person, in the patient’s position, would consider the risk significant. The case also determined that a risk is material if the doctor knows or reasonably ought to know that the actual patient would likely attach significance to it. Lord Kerr and Lord Reed SCJJ wholly agreed with the Australian case and applied its reasoning here.

As such, Montgomery’s concerns, and anxieties about having a natural birth indicated that the risks were material. The doctor should have noticed this and advised Montgomery of the risks of shoulder dystocia occurring and discussed reasonable alternatives. She failed to advise Montgomery of the risks which caused her child disability. The doctor breached her duty. Furthermore, contrary to the Lord Ordinary’s judgement, Lord Kerr and Lord Reed SCJJ determined that if fully informed, Montgomery would have chosen a C-section.

The future for medical negligence claims

Montgomery v Lanarkshire Health Board overturned the notion that a doctor’s duty of care is derived from the judgement of the medical profession. The case reinforces the importance of obtaining fully informed consent for medical procedures. It is the doctor’s responsibility to ensure their patients are fully informed of all risks and alternatives.

Despite being a UK case, it supports the decisions in Rogers v Whitaker. Inadvertently, both cases prove that the doctor does not always know best. Rather, it is the patient who ultimately decides whether a medical treatment is worth the risk.

Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11

Doctor Liable for Uninformed Birth Risks