Duty of Care and the Consultant

A recent ruling on the duty of care owed by a medical consultant highlighted a problem with the relevant NICE guidelines which, on the critical question for determination, pointed to contradictory management directions.

Sanderson v Guy's and St Thomas' NHS Foundation [2020] EWHC 20 (QB) is a tragic case where the claimant suffers cerebral palsy with visual problems and learning difficulties, following a lack of oxygen supply to the brain just before her birth.

At issue was whether there was any breach of duty on the part of the consultant obstetrician in her care of the mother during the second stage of labour; and if so whether, but for that breach of duty, the baby’s delivery would have taken place earlier so that the period of oxygen deprivation would have avoided or shortened.

It was argued that the consultant’s decision to perform a fetal blood sample rather than deliver the baby urgently was a breach of duty; and the delay in the ensuing instrumental delivery represented a further breach of duty.

The consultant’s timeline of events was substantially agreed between the parties but, importantly, Mrs Justice Lambert pointed out the need to be realistic about the timings. She said a forensic scrutiny of timings 17 years later was bound to involve some imprecision; and in this type of case, “every fraction of a minute of delay in delivery may have an impact upon the Claimant's condition”.

The claimant’s expert witness relied heavily on the NICE Guidelines, The Use of Electronic Fetal Monitoring, to support his argument that urgent delivery was mandated. (NICE guidelines provide ‘evidence-based guidance’ for medical professionals and are not legally binding.)

But the expert’s reliance was “highly problematic” for Lambert J - she found apparent contradictions within the Guidelines as to the appropriate obstetric management in the presence of this particular trace feature.

On the face it, she took the view that the Guidelines appeared to advocate two contradictory management options in response to “a single prolonged deceleration lasting longer than 3 minutes: conservative measures where possible or feasible (expressly including fetal blood sampling) and a few short paragraphs later urgent delivery (fetal blood sampling being contraindicated)”.

So on the critical issues, the guidelines point in two entirely different management directions, pulling the rug from under the expert witness’s “thesis”. His opinion on the consultant’s management relied on an “almost formulaic application of sections of the Guidelines taken out of context”.

Lambert J said that apart from that reliance, he offered little in the way of alternative ‘real world’ analysis as to how the reasonably competent clinician should respond to the trace in this case.

The ruling

The Bolam test was applied in this case, that is to say, a doctor " is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in this particular art… Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice merely because there is a body of opinion that would take a contrary view". It is for the court to decide the issues taking into account all of the evidence.

As for the Guidelines on which the expert relied, Lambert J found them “useful so far as they go, but they are limited. The Guidelines do not provide a substitute for clinical judgement but must be interpreted by the clinician and then applied in the light of that judgement”.

Decision

Her conclusion on the facts was that without hindsight, the reasonable obstetrician in these circumstances would not be concerned that the trace suggested an imminent acute event. The trace mandated action but a reasonable response included performing a fetal blood sample. Urgent delivery was not mandated and a fetal blood sample was not illogical, rather it was an appropriate and reasonable response to the trace.

As for the ensuring delay in instrument delivery, the consultant was found to have acted as quickly as she could to achieve all that was required of her at the relevant time. It was not, for instance, unreasonable for to have spent three to four minutes away from the delivery room to gather the necessary equipment ahead of the urgent delivery. It was noted that it was an exceptionally busy ward with the practical difficulties of limited staff.

Hard as it was for the claimant and her litigation friend (who is her carer), the claim was dismissed.

It is interesting that the judge clearly gave a measure of weight to the working conditions in which the consultant was working at time. These are straitened times for the NHS with squeezed budgets creating or exacerbating practical difficulties that can, sadly, have a negative impact on the care of patients.

This reality is a factor that the court appeared willing to take into account when assessing whether the duty of care has been breached. To do otherwise would be an intolerable strain on medics.

As for the NICE guidelines, the court’s approach in this case was that they are useful as far as they go. They are a “a practical tool to be used in conjunction with clinical judgement” and formulaic, non-contextual reliance on them is not acceptable.

On the other hand, it is clear from earlier authorities that a failure to follow relevant guidelines – even if it was because they disagreed with them – could amount to negligence.

 

 

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