Satinder Hunjan QC instructed by Karen Reynolds, Partner, of Freeths LLP achieved a reversal of liability in the case of Sebastian Webster (a Child and Protected Party by his Mother and Litigation Friend, Heather Butler) v. Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62 ; this was a cerebral palsy claim with the Court of Appeal reversing the High Court decision of liability following the application of Montgomery v. Lanarkshire Health Board [2015] UK SC 11.
In this landmark appellate decision being the first Court of Appeal decision following Montgomery, the Court of Appeal emphatically decided that the mother’s wishes to be induced should have overridden the views of the consultant Obstetrician and Gynaecologist who was advising her and did not wish her to be induced and to proceed with her labour to a natural delivery. Regrettably, as the induction did not take place, as the mother would have wished, a cord incident occurred in the days prior to delivery, resulting in the Appellant suffering profound damage to his brain and consequent severe disabilities.
The Consultant had been negligent in failing to ensure that the pregnancy was monitored by repeat ultrasound scanning when an ultrasound scan had shown that the fetus was, in particular, small for its gestational age, there was disproportion between the head circumference and the abdominal circumference and there was slightly excess liquor (polyhydramnios). Had repeated ultrasound scanning been undertaken, those features should have been identified to the mother and although the Consultant would have been reassured by further examinations which he would have undertaken, the mother would nevertheless have wanted to have been induced. She would not have taken any additional risks with delaying pregnancy even though the evidence for any additional risks was founded on an extremely small statistical base and was only emerging at the relevant time.
This landmark decision emphasises that following Montgomery we are in a modern era of patient choice and that important decisions as to a patient’s body and the risks which that patient takes are for the patient. That the role of the medical practitioner is advisory providing medical information whereas the patient’s decision may be based upon many factors. This case demonstrates the importance of this new approach and the very wide implications it has for patients’ medical advisors in all areas of medical and related practice.
For a copy of the judgment please click here
The Appellant was represented by Satinder Hunjan QC.
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