A doctor failed to advise a mother of natural birth risks. If the mother had known, she would have chosen a C-section instead of a natural birth and her baby would not have been injured.
In Montogmery v Lanarkshire Health Board [2015] UKSC 11, Nadine Montgomery’s son was born with cerebral palsy and permanent disability due to birth complications on 1 October 1999 in Lanarkshire, Scotland. Mrs Montgomery sought compensation on behalf of her son. She alleged that her doctor, Dr McLellan, acted negligently by failing to warn her of the risk of birth complications. Dr McLellan was responsible for Mrs Montgomery’s care during her pregnancy and delivered the baby.
Facts of Montgomery v Lanarkshire Health Board
Mrs Montgomery suffered from diabetes prior to the birth. Diabetes increases the chance of large babies and creates a 9-10% risk of shoulder dystocia occurring. Shoulder dystocia is where the baby’s shoulders are too wide to pass through the mother’s pelvis without medical intervention. When it occurs during natural birth, shoulder dystocia can severely injure both mother and baby.
Dr McLellan did not tell Mrs Montgomery about the risk of shoulder dystocia. This was even after Mrs Montgomery raised concerns about natural birth due to her diabetes. Dr McLellan believed that there was a very small risk that shoulder dystocia would cause a serious injury. She also believed that if she advised Mrs Montgomery of the risk of shoulder dystocia, she would have chosen a C-section, which was not “in the maternal interest”. Controversially, she went to say “if you were to mention to any mother… that there is a very small risk of the baby dying in labour, then everyone would ask for a C-section, and it’s not in the maternal interests for women to have C-sections”.
Mrs Montgomery would have had an elective C-section if told about the risk of shoulder dystocia. However, Dr McLellan did not provide Mrs Montgomery that option. Mrs Montgomery and her baby were placed at risk due to her doctor’s outdated views on what is in the ‘maternal interest’. The birth was problematic due to the baby’s large size and shoulder dystocia occurred. The baby’s arm became permanently disabled because of the physical manoeuvres done to free the him during delivery. He was also diagnosed with cerebral palsy from oxygen deprivation during delivery. If Mrs Montgomery had had an elective C-section, her son would have been born uninjured.
Failure to advise of risks amounts to negligence
Doctors do not have to be physically negligent during a procedure to be negligent. Their duty of care extends to advising patients of material risks and alternative treatments. Failing to do so can amount to negligence under Medical Law. This means that doctors must tell patients of any risk that they would expect their patient to attach significance to. Patients should also know of reasonable alternatives to the procedure. In this case, Dr McLellan should have known that the risk of shoulder dystocia was significant to Mrs Montgomery. Her patient was entitled to make an independent judgement and elect a c-section.
The Supreme Court found Dr McLellan negligent for failing to advise Mrs Montgomery of the risk of shoulder dystocia. They reasoned that “an adult of sound mind is entitled to decide which…treatments to undergo, and her consent must be obtained”. They noted that doctors must advise of material risks. To do this, they should discuss the procedure in depth with their patient to understand what risks are relevant to advise.
Women’s Choice
Lady Hale’s judgement was significant in this case. She believed that Dr McLellan‘s opinion on C-sections not being in the ‘maternal interests’ was not a medical judgement; it was a personal belief. The doctor’s opinion suggested that natural birth was morally preferable and justified not advising a pregnant woman of the risks. Lady Hale placed emphasis on the need to respect a mother’s independent judgement on what is best for her and her child. She powerfully ended the judgment by stating “Gone are the days when it was thought that, on becoming pregnant, a woman lost… her right to act as a genuinely autonomous human being.” Lady Hale rightly reprimanded the doctor who failed to advise a mother.
Application in Australia
In the UK, when considering whether a risk was material enough to disclose to a patient, the courts used expert medical opinion. This means that if other doctors believe that it was okay for a patient to not be advised of a risk, the accused doctor won’t be found negligent. However, in Montgomery, the Supreme Court preferred the approach in the Australian case of Rogers v Whitaker [1992] HCA 58 . In Whitaker, it was said that medical evidence should not determine materiality of a risk. Instead, the court should look at the specific patient and what risks they would attach significance to. This was a great shift towards respecting patients’ autonomy rather than mere medical opinion. This means doctors need to advise on risks that they should know are important to you.
The application of an Australian case by the UK Supreme Court suggests that the Montgomery case applies in Australia. This means , if an Australian doctor failed to advise a mother of material risks, they will likely be found negligent. Outdated concepts such as the “maternal interest” should not be used to influence and pressure women into making medical decisions. Doctors should respect women’s independence and bodily autonomy, especially during pregnancy and birth.
Montogmery v Lanarkshire Health Board [2015] UKSC 11