Tort Law

Montgomery v. Lanarkshire Health Board

[2015] UKSC 11; [2015] AC 1430

Facts

• Mrs Montgomery was pregnant and under the care of Dr McLellan, a consultant obstetrician.
• Mrs Montgomery had diabetes.
• Diabetic mothers were more likely to carry babies with larger shoulders.
• Mrs Montgomery was also of small physical stature.
• Vaginal delivery carried an approximately nine-to-ten per cent risk of shoulder dystocia, where the baby’s shoulders become trapped during birth.
• Shoulder dystocia could cause serious injury to the mother or child.
• Mrs Montgomery repeatedly expressed concern about whether she could deliver the baby vaginally.
• Dr McLellan did not explain the material risk of shoulder dystocia.
• She also did not offer caesarean section as a reasonable alternative.
• The doctor believed that the risk of severe injury was relatively small.
• She was also concerned that women informed of shoulder dystocia would often choose caesarean section, which she did not consider medically preferable.
• During vaginal delivery, shoulder dystocia occurred.
• The baby suffered oxygen deprivation and developed cerebral palsy and other disabilities.
• Mrs Montgomery sued for negligent failure to disclose the risk and alternative treatment.

• Whether disclosure of medical risks should be governed by the Bolam professional-practice test.
• What makes a risk “material.”
• Whether a doctor must disclose reasonable alternative treatments.
• Whether proper disclosure would have caused Mrs Montgomery to choose a caesarean section.

• A doctor must take reasonable care to ensure that the patient is aware of:
o material risks involved in the recommended treatment; and
o reasonable alternative or variant treatments.
• A risk is material where:
o a reasonable person in the patient’s position would likely attach significance to it; or
o the doctor knows or should know that the particular patient would likely regard it as significant.
• Disclosure is based upon the patient’s autonomy and right to make treatment decisions.
• The medical profession does not determine disclosure solely through customary practice.
• The therapeutic exception is narrow.
• It does not permit withholding information merely because the doctor believes that disclosure might lead the patient to reject the doctor’s preferred treatment.

• The risk of shoulder dystocia was not remote in Mrs Montgomery’s pregnancy.
• It was particularly significant because:
o she had diabetes;
o the baby was expected to be large;
o she was small; and
o she had repeatedly expressed anxiety about vaginal delivery.
• Those circumstances made the risk material both objectively and specifically to her.
• Caesarean section was a recognised alternative that largely avoided the shoulder-dystocia risk.
• Dr McLellan knew that disclosure might lead Mrs Montgomery to request that alternative.
• Withholding information because the doctor believed vaginal birth was preferable substituted professional paternalism for the patient’s decision.
• The relevant question was not whether a responsible body of doctors commonly withheld the warning.
• It was whether Mrs Montgomery was given the information required to decide what risks she was prepared to accept.
• Evidence supported the conclusion that she would probably have chosen caesarean delivery if properly informed.
• That procedure would have avoided the shoulder dystocia and resulting injury.

• The United Kingdom Supreme Court unanimously allowed the appeal.
• Dr McLellan breached her duty by failing to disclose the material risk of shoulder dystocia and the reasonable alternative of caesarean section.
• The breach caused the injury because Mrs Montgomery would probably have chosen the alternative.
• The decision replaced the doctor-centred disclosure approach with a patient-centred test of materiality.