Posted in Medical Negligence on 10 December 2015

If you had a medical/surgical procedure and you suffered an injury, the risk of which you were not told about when you consented to the procedure, your chances of succeeding in a legal case have now improved following a UK landmark decision in March 2015 in the case of Montgomery v Lanarkshire Health Board [2015] UKSC 11.
 
Background

In 1999, Mrs. Montgomery’s son Sam was born with severe disabilities.  At delivery complications occurred whereby Sam’s head was delivered but the medical staff were unable to deliver his shoulders.  Mrs. Montgomery was a small lady, just over five feet in height, and she was also an insulin dependent diabetic. (Women suffering from diabetes are likely to have babies that are larger than normal.) Sam was a big baby and the delivery became complicated because of Sam’s size. His shoulders could not pass through Mrs. Montgomery’s pelvis (an event known as ‘shoulder dystocia’). Because of the complication, there was a 12 minute delay with Sam’s delivery and he was deprived of oxygen which caused brain damage. Sam was subsequently diagnosed with cerebral palsy. 
 
Mrs. Montgomery claimed against the Hospital on the basis that, as a small diabetic woman, she had not been warned about the risk of shoulder dystocia with a vaginal delivery and, had she been warned, she would have opted for the safer option of a caesarean section and Sam would have been born uninjured, i.e. she was not informed of the risks, therefore the consent she gave for the vaginal delivery was not ‘an informed consent’.
 
The evidence of the Obstetrician was that she did not discuss this complication with diabetic women in general given that they would invariably elect for a caesarean section and it was “not in the maternal interests for women to have caesarean sections”.

The Court held:-
“Whatever Dr. McLellan may have had in mind, this does not look like a purely medical judgment. It looks like a judgment that vaginal delivery is in some way morally preferable to a caesarean section: so much so that it justifies depriving the pregnant woman of the information needed for her to make a free choice in the matter…”
 
The decision confirms that in future the patient has to be told about all risks however small.  If the patient was not told and the risk materialises, then they may well win a case that may subsequently be brought for failure to fully inform the patient of their options. Although this is a UK decision, it will have ramifications for Irish cases where the patient claims lack of informed consent.
 

Contact us at Cantillons Solicitors at +353 (0)21 -4275673 or [email protected] if you would like more information.

* In contentious business, a solicitor may not calculate fees or other charges as a percentage of any award or settlement.


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