COURT OF APPEALS GIVES LAWYERS A TIMELY REMINDER THAT CLINICAL JUDGEMENT IS EVERYTHING AND APPELLANT DIES AFTER LOSING HIS APPEAL

pi_kate_mckinlay Kate McKinlay

The Court of Appeal had a difficult decision to make in Meiklejohn v St George’s Healthcare Trust (EWCA [2014] Civ 120) recently which turned on an internationally renowned medical professional’s alleged failure to warn of side effects and advise of alternative diagnoses. Bolam considered.

 

LESSONS TO BE LEARNT

This then is a timely reminder that

I)                    A breach of duty of a medical professional can only be measured against the medical knowledge that was available at the time.

II)                  World-renowned expert or not, a medical professional will be measured against the standard of a specialist in his or her field, NOT a super-specialist. 

Judgment found here 

The detailed summary is on the read more page.

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 DETAILED SUMMARY

Mr Meiklejohn was diagnosed in 1993, when he was 21 with aplastic aneamia (AA). He saw Professor Marsh in 2003 when she diagnosed aplastic anaemia and prescribed various treatments. One of those treatments (Prednisolone) had a rare side effect of which he was not warned, but which he went on to develop and as a direct result had to have bilateral hip-replacements. By 2005 it became clear, through testing blood samples, that there had been a misdiagnosis and that the treatment he had received was not necessarily appropriate for the Dsykeratosis Congenita (DC) and related but specific disorder, and one of a group known as bone marrow disorders.

 

 AT FIRST INSTANCE THE HIGH COURT FOUND PROFESSOR’S FAILURE TO DIAGNOSE A RARE LIFE THREATENING TYPE OF ANEAMIA WAS NOT A BREACH OF DUTY

This case was first heard by HHJ Robinson in the High Court, sitting in Sheffield ({2013] EWHC (QB) when he was asked to consider, amongst other things whether or not Professor Marsh’s care fell below the standard required of her.

 The judge held that it was not negligent for the consultant to misdiagnose and then go onto prescribe inappropriate treatment on the basis of that misdiagnosis because at the time of the diagnosis there was insufficient medical knowledge for the Consultant, to have a taken another course. As for the failure to warn HHJ Robinson said

 “it does not seem to me that the decision at the material time not to warn about the development of an extremely rare side effect which had hitherto never manifested itself in patients given the low dose administered at St George’s Hospital can be said to be logically indefensible.”

 

THE COURT OF APPEAL AGREED WITH HHJ ROBINSON

Mr Meiklejohn revisited this territory in the Court of Appeal and argued once again there was a breach of the duty to advise and a failure to warn about the side effects. The Court of Appeal described this as a “thinly disguised appeal on the facts”.

 The duty to advise and warn about diagnosis, treatment and possible side-effects was to be assessed in accordance with the practice of a responsible body of doctors (Bolam and Sidaway v Bethlem Royal Hospital [1985] AC 871). The duty did not extend to warning of possible diagnoses reasonably not suspected. Failure to warn arose where there was a specific percentage risk of serious identifiable side-effects of injury. The Court of Appeal agreed with HHJ Robinson that there insufficient evidence in the Claimant’s physical presentation or medical history in 2003 to have alerted even a clinician to the possibility of DC.

 

Mr Meiklejohn also argued in the Court of Appeal that HHJ Robinson had failed apply the correct standard of care in respect of Professor Marsh. He argued that she ought to be judged according to her own standards ie against a body of medical practitioners skilled in her particular art ie a leader in her field and of international renown. The Court of Appeal rejected this out of hand. The correct comparator was a tertiary specialist in the field of AA.

 

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