Baron Alderson in 1856 provided the classic definition of the term “negligence” in “Blyth v Birmingham Waterworks Company”. The company was sued for negligence after Blyths’ house suffered damage from a leaking hydrant installed by them. In his judgment, Baron Alderson stated his famous definition: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”.
In 1957 the principle was applied to the medical profession. Bolam was admitted to the Friern Hospital, for ECT. During the procedure, he was not administered any muscle relaxant or restrained. He flailed violently and sustained serious injuries, including a fracture of the hip joint socket (acetabulum). The Hospital was sued because he was not administered a muscle relaxant, not restrained and not warned about the risks. Justice McNair held that medical opinion was divided on the use of muscle relaxants and restraints, and that the risk of fracture was so small that it was standard practice not to warn the patient of such risks unless specifically asked. “The test is the standard the ordinary skilled man professes to have, and exercising that special skill”; not necessarily the highest expert skill. Therein emerged the gold standard for assessing medical negligence, the “Bolam Test”.
Bolitho v City and Hackney Health Authority [1997] refined this. Should a 2-year-old child have been intubated following a cardiac arrest? Five expert witnesses testified they would, and one said he would not. The judges ruled the defendants’ inaction did not stand the scrutiny of logical analysis. In other words, the defence testimony can be found to be unreasonable, and a judge may choose between two bodies of expert opinion, rejecting one that is 'logically indefensible'. Thus, the Court sets the law, not the profession; and determining the nature and extent of a person’s rights rests with the courts, not with the medical profession.
Such judgments formed the creed by which allegations of medical negligence were assessed till 2015. Nadine Montgomery, a diabetic of small stature presented for normal delivery, which was obstructed because of shoulder dystocia, where the baby’s shoulder hitches onto the mothers’ pelvic brim and labour does not progress without intervention. The baby suffered from lack of oxygen and developed cerebral palsy. The mother sued for negligence on the grounds that had she been informed of this complication she would have opted for a caesarean section. The doctors’ defense was that though the risk of shoulder dystocia was high (9–10%) in diabetics, the risk of grave problems arising therefrom for the baby were very small. Hence the risk was not discussed. The Supreme Court ruled in the patients’ favour on the grounds that “rather than being a matter for clinical judgment to be assessed by professional medical opinion, a patient should be told whatever they want to know, not what the doctor thinks they should be told”.
Patients are now regarded as persons holding rights, rather than passive recipients of healthcare. Therefore, reasonable care must be taken to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any alternative treatments. The General Medical Council, UK advises that “You must not make assumptions about a patient’s understanding of risk or the importance they attach to different outcomes”.‘Montgomery’ recognizes that explaining the risks, and alternatives to the patient, requires judgment and skill; and the ‘prudent patient’ standard rather than professional judgement, now becomes the yardstick of standard of care.
The “test of materiality is whether a reasonable person in the patient’s position would be likely to attach significance to the risk”. The extent to which a doctor may be inclined to discuss risks is recognized as being determined by divergent attitudes among doctors as to the degree of respect owed to their patients, and not by medical learning, experience, or divergent schools of thought in medical science. The judgment shifted the approach from a clinician‐centric to a patient‐centric one. It is no longer for the clinicians to decide how much information should be given to a patient; it is the patient's right to know, so as to make a decision. This assessment is not only fact-sensitive, but also sensitive to the characteristics of the individual patient.
Let’s now transpose this to ground realities. Of the four models the WHO describes, to depict physician-patient relationship, the informative model is most commonly followed whereby the physician advises the patient on all aspects of his/her ailment as comprehensively as possible leaving the final decision with the patient. This judgment introduces the “Prudent Patient” test, thereby shifting from a doctor-focused to patient-focused approach. It establishes that advising an operation and discussing the risks and benefits at and before the consenting process requires quite detailed knowledge of the patient, their psyche and their social/occupational circumstances. The average public sector OPD allows for about 4 minutes per patient. Within this time, the practitioner has to gain “detailed knowledge of the patient”, examine, diagnose, and advise. Sending them back to their G.P.’s for detailed discussion is not an option because most come without referrals.
Obviously “Medical Negligence” is too complex an issue to be left to lumpen elements attacking healthcare personnel and facilities; that too in the midst of the grave crisis we currently face.
(The writer is a founder member of the VHAG.)