Lanarkshire Brain Injury Mum Wins £5M Court Battle

The mother of a disabled boy has won a major damages payout for her son after Britain's highest court allowed her appeal. Nadine Montgomery has spent years fighting for compensation on behalf of her son who was diagnosed with cerebral palsy after his birth at Bellshill Maternity Hospital, in Lanarkshire. She sued Lanarkshire Health Board for compensation following complications during delivery in an attempted natural birth which left the baby boy with severe disabilities. She maintained that injury resulted from negligence on the part of a consultant obstetrician and gynaecologist, who was responsible for her care during pregnancy and labour and delivered the child. Damages in the action were agreed at pounds 5.25 million but liability was contested by the health authority. Following evidence at the Court of Session in Edinburgh Lord Bannatyne rejected her claim in 2010 and his decision was upheld by appeal judges at the same court. But following a challenge to the decisions at the UK Supreme Court in London seven justices have allowed her appeal. The mother, a Glasgow University science graduate, was 24 when she was pregnant with her first child who was born in 1999. She worked as a hospital specialist with a pharmaceutical company and was described as "a clearly highly intelligent person" by Lord Bannatyne. She is just over five feet tall and suffered from diabetes. Diabetic women are likely to have babies that are bigger than normal. In the action it was contended that she should have been given advice about the risk of a condition called shoulder dystocia the inability of the baby's shoulders to pass through the pelvis involved in a natural birth and of the alternative of an elective caesarian. The risk of such a condition in diabetic mothers is nine to 10 per cent. Dr McLellan said that despite the risk it was her practice not to spend a lot of time, or indeed any time at all, discussing the potential risks of shoulder dystocia, judges heard. She explained that in her estimation the risk of a grave problem for the baby from the condition was very small. If the condition was mentioned most women will actually say: "I'd rather have a caesarean section." The doctor said it was not "in the maternal interests for women to have caesarean sections". Mrs Montgomery was advised she would be able to have her child vaginally and if problems were encountered during labour a caesarean could be carried out. The mother said that if she had been told of the risk of the condition she would have sought an explanation of what it meant and the possible risks. If she considered it was a significant risk to her she would have asked the doctor for a caesarean. The Supreme Court justices said that since an earlier important legal case it has become increasingly clear that the paradigm of the doctor-patient relationship raised in it has ceased to reflect the reality. Lord Kerr and Lord Reed, who gave the decision said: "One development which is particularly significant in the present context is that patients are now widely regarded as persons holding rights, rather than the passive recipients of the care of the medical profession." They said it would be a mistake to view patients in the modern world as "uninformed, incapable of understanding medical matters or wholly dependent upon a flow of information from doctors". They said social and legal developments "point away from a model of the relationship between the doctor and patient based on medical paternalism". "Responsibility for determining the nature and extent of a person's rights rests with the courts, not with the medical profession," said the Supreme Court justices. "An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken." "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," they said. The justices said doctors were entitled to withhold information from a patient over a risk if it was considered that disclosure was seriously detrimental to the patient's health or in circumstances of necessity, such as urgent treatment needed for an unconscious patient. They said: "There can be no doubt that it was incumbent on Dr McLellan to advise Mrs Montgomery of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section." "Had she advised Mrs Montgomery of the risk of shoulder dystocia and discussed with her dispassionately the potential consequences, and the alternative of an elective caesarean section, Mrs Montgomery would probably have elected to be delivered of her baby by caesarean section. It is not in dispute that the baby would have been born unharmed," they said.