The legal test for establishing negligence by a doctor in diagnosis or treatment is whether the doctor has acted in accordance with a practice accepted as proper by a responsible body of medical opinion. In this judgment, we will refer to this test, for shorthand, as the “professional practice test” [Bolam] [1]
In the case of Montgomery this court decided that the professional practice test did not apply to a doctor’s advisory role “in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved” (para 82). The performance of this advisory role is not a matter of purely professional judgment because respect must be shown for the right of patients to decide on the risks to their health which they are willing to run. “The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments” (para 87). The courts are therefore imposing a standard of reasonable care in respect of a doctor’s advisory role that may go beyond what would be considered proper by a responsible body of medical opinion. [2]
The main issue which arises on this appeal is what legal test should be applied to the assessment as to whether an alternative treatment is reasonable and requires to be discussed with the patient. More specifically, did the doctor in this case fall below the required standard of reasonable care by failing to make a patient aware of an alternative treatment in a situation where the doctor’s opinion was that the alternative treatment was not reasonable and that opinion was supported by a responsible body of medical opinion? [3]
It is alleged that his death was caused by the negligence of D. In particular, it is alleged that (i) on 3 April 2012 D should have advised C of the option of treatment with a non-steroidal anti-inflammatory drug (“NSAID”) (such as ibuprofen) for pericarditis, (ii) had such advice been given, C would have taken the NSAID, (iii) had he taken the NSAID, he would not have died. [5]
C died on 7 April 2012 having suffered a cardiac arrest at his home at around 14.00. He was aged 39. The cause of death was recorded as idiopathic pericarditis and pericardial effusion. It was agreed that C died as a result of cardiac tamponade. [6]
D did not prescribe NSAIDs because she did not in D professional judgment regard it as appropriate to do so. [22]
If we were to reject the professional practice test in determining reasonable alternative treatments, one consequence would be an unfortunate conflict in the exercise of a doctor’s role. This is because the law would be requiring a doctor to inform a patient about an alternative medical treatment which the doctor exercising professional skill and judgment, and supported by a responsible body of medical opinion, would not consider to be a reasonable medical option. [71]
the professional practice test is the correct legal test in respect of reasonable alternative treatments [78]
the professional practice test is the correct legal test in determining what are the reasonable treatment options that a doctor has a duty of reasonable care to inform a patient about. This is to apply the law laid down in Montgomery and we reject the appellants’ submissions which would constitute an unwarranted extension of that law. We would therefore dismiss the appeal. [83]
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