22 September 2022

The scope of the duty of care owed by a clinician to a patient has been an evolving issue before the Courts. It has now been revisited by the Outer House of the Court of Session in the case of SD as Legal Representative of LD v Grampian Health Board, 2022. The decision is of relevance to those practicing in both clinical negligence and professional indemnity claims as it revisits the question of the scope of duty of care as explored in the case of Khan v Meadows 2021 UK SC21.

In SD, the Pursuer gave birth to her son LD, who suffered acute asphyxia as a result of compression of the umbilical cord shortly before birth and consequential quadriplegic dyskinetic cerebral palsy leaving him severely disabled.  The Pursuer brought a claim based on the negligence of the midwives, the doctors, and Dr S, the obstetric registrar, who took the decision about not performing an emergency C-section, but belatedly delivered LD in theatre. 

The pursuer’s breach of duty allegations were all rejected by the court. However, the Court set out its views on causation, had it reached a different conclusion. The Pursuer contended that, but for the midwives’ breaches of duty, the baby would have been born before 4.40am and so would have been born uninjured.  By allowing the induction to be delayed, the midwives (and Dr S) exposed the pursuer and LD to the specific harm that prompt induction would have avoided. The Defenders argued that the Pursuer failed to prove that LD would have been born uninjured but even if she had, a scope of duty issue had been overlooked as distinct from the traditional but for causation approach. Reference was made to the decision of the UK Supreme Court in Meadows v Khan 2021 UKSC 21, a decision of seven Justices of that Court. 

Meadows concerned a wrongful birth claim involving a patient who had attended a GP for advice on avoiding giving birth to a child with haemophilia.  Blood tests failed to identify whether she was a carrier of the relevant gene, so she attended another GP, Dr Khan, who failed to refer her for genetic testing.  Some years later, Miss Meadows gave birth to a haemophilic son who also had severe autism. It was accepted that, had she known she carried the haemophilia gene, the claimant would have undergone testing of the foetus and terminated the pregnancy on discovering her unborn child carried that gene.  However, the issue for Supreme Court was whether the scope of Dr Khan’s duty was limited to advising how to avoid giving birth to a child with haemophilia or whether the additional cause associated with the child’s autism could also be recovered.  

On the scope of duty question, the Court stated the following at paragraph 63 – “it is necessary in every case to consider the nature of the service which the medical practitioner was providing in order to determine the risk or risks which the law imposes a duty on the medical practitioner to exercise reasonable care to avoid.  That is the scope of the duty question”. 

The Supreme Court held that the Doctor was liable only for losses following on the scope of her duty of care to advise Miss Meadows on whether or not she was a carrier of the haemophilia gene, therefore she was not liable for costs associated with autism. 

By analogy with the position in Meadows, the Defenders in SD case queried why any midwife who saw a patient on 22 and 23 August in an induction ward for the purposes of managing that induction would be responsible for injuries that LD suffered the following day in the labour ward caused by something that could not have been predicted even minutes before 04.42am. 

In Meadows, the UK Supreme Court set out 6 sequential questions which provide a model for analysing the scope of duty principal in negligence as follows:

1. Is the harm which is the subject matter of the claim actionable in negligence?
2. What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care?
3. Did the defendant breach their duty by the act or omission?
4. Is the loss for which the claimant seeks damages the consequence of the defendant’s acts or omission?
5. Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages on the subject matter of the defendant’s duty of care as analysed at stage 2 above?; and
6. Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause in relation to it, or because the claimant has mitigated their loss, or has failed to avoid loss they could reasonably have been expected to avoid?

In Meadows, stage 5 was not satisfied. Meadows is clear that the application of the “but for” test is only a precondition to legal causation, it is not the entirety of the test. In Meadows, Dr Khan had not undertaken responsibility for the pregnancy as a whole, only in relation to the particular risk of haemophilia. Standing this, Dr Khan was not liable for the unrelated risk of autism, even though that risk was reasonably foreseeable and would have been avoided, but for the breach of duty. 

In SD, the Court concluded that on the basis of unchallenged evidence about how the harm to LD occurred, that said harm was too remote from his time on the ward for there to be necessary sufficient nexus between any breaches of duty on the part of the midwives and the adverse outcome.  The Court accepted up to a point the proposition that induction of labour and subsequent delivery are in a general sense linked to the extent that they cannot be seen as two complete separate services. 

There was a general duty on the midwives to take account of risk factors and not prolong the induction beyond an acceptable timeframe without good reason.  However, the real difficulty for the Pursuer was that, on the evidence, the only consequence of any breach of duty on the part of the midwives was a delay in having the Pursuer transferred to the labour ward, but there was no evidence about how and why that would have altered the outcome.  No easy or identifiable harm was caused to LD by any of the delays.  The evidence about the risks of prolonged pregnancy was very general and not directed at a case that LD should have been delivered soon after 04.10am. 

The Court found that no such scope of duty issue arose for the obstetric case. The Defenders admitted a direct relationship between the alleged breach of duty of the doctor and the ultimate outcome as they accepted that, had a decision been taken to deliver the baby at 04.10am, LD would have been unharmed.  They were not admitting that if LD had been delivered at any point, by whatever means on 22 or 23 August, he would have been so unharmed.  However, the context of the defender’s admission was that given there was concern about the CTG and the overall clinical situation at 04.10am, delivery by C-section could have occurred in half an hour.  It was the doctor’s decision to give the trace another half hour that resulted in there being no attempts to deliver LD by the time the bradycardia caused by cord occlusion occurred.  The link between the doctor’s decision to delay and the harm caused was a direct one and causation on the traditional but for basis flows naturally from that.  Had the Court found the only course available at 04.10am was to deliver the baby by urgent C-section, the Court would have found causation established.

Clearly the scope of duty argument can be applied beyond cases simply dealing with advice/information, which was the case in Meadows. It provided an important defence in so far as the midwives were concerned in SD.

Moving forward, it will be essential for practitioners to have in mind the precise scope of the duty that the defender can be said to have assumed. Precise pleading in relation to that scope of duty will be crucial because this principle limits the recoverability of damages wherever it applies.

For more information, please contact:

Natalie McCartney, Senior Associate and Solicitor Advocate: nem@bto.co.uk / 0131 222 2939