“This applies to you.”
“…[A surgeon] is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art… a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”
“Differences of opinion and practice exist and will always exist in the medical and other professions. There is seldom only one answer exclusive of all others to problems of professional judgement. A court may prefer one body of opinion to the other; but that is no basis for a conclusion of negligence.”
“[82]. In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment. This can be understood, within the traditional framework of negligence, as a duty of care to avoid exposing a person to a risk of injury which you would otherwise have avoided, but it is also the counterpart of the patient’s entitlement to decide whether or not to incur that risk. The existence of that entitlement, and the fact that its exercise does not depend exclusively on medical considerations, are important. They point to a fundamental distinction between, on the one hand, the doctor's role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved. [83] The former role is an exercise of professional skill and judgment: what risks of injury are involved in an operation, for example, is a matter falling within the expertise of medical members of the medical profession. But it is a non sequitur to conclude that the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient is also a matter of purely professional judgment. The doctor’s advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient's entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations). Responsibility for determining the nature and extent of a person's rights rests with the courts, not with the medical professions. … [87] The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce [1999] PIQR P53, subject to the refinement made by the High Court of Australia in Rogers v. Whitaker 175 CLR 479… 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. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it. … [89] Three further points should be made. First it follows from this approach that the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have on the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient. [90] Secondly, the doctor's advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor's duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.”
“(1) What risks associated with an operation were or should have been known to the medical professional in question. That is a matter falling within the expertise of medical professionals [83]. (2) Whether the patient should have been told about such risks by reference to whether they were material. That is a matter for the Court to determine [83]. This issue is not therefore the subject of the Bolam test and not something that can be determined by reference to expert evidence alone [84-85].”
“[56] In our view... the correct legal test to be applied to the question of what constitutes a reasonable alternative treatment is the professional practice test found in Hunter v Hanley 1955 SC 200 and Bolam… [57] A hypothetical example may help to explain, in more detail, how we regard the law as working. A doctor will first seek to provide a diagnosis (which may initially be a provisional diagnosis) having, for example, examined the patient, conducted tests, and having had discussions with the patient. Let us say that, in respect of that diagnosis, there are ten possible treatment options and that there is a responsible body of medical opinion that would regard each of the ten as possible treatment options. Let us then say that the doctor, exercising his or her clinical judgment, and supported by a responsible body of medical opinion, decides that only four of them are reasonable. The doctor is not negligent by failing to inform the patient about the other six even though they are possible alternative treatments. The narrowing down from possible alternative treatments to reasonable alternative treatments is an exercise of clinical judgment to which the professional practice test should be applied. The duty of reasonable care would then require the doctor to inform the patient not only of the treatment option that the doctor is recommending but also of the other three reasonable alternative treatment options (plus no treatment if that is a reasonable alternative option) indicating their respective advantages and disadvantages and the material risks involved in such treatment options. [58]. It is important to stress that it is not being suggested that the doctor can simply inform the patient about the treatment option or options that the doctor himself or herself prefers. Rather the doctor's duty of care, in line with Montgomery, is to inform the patient of all reasonable treatment options applying the professional practice test.”
“These decisions demonstrate that in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure or risk). In my judgment that is because, in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied upon is reasonable or responsible. In the vast majority of cases the fact that distinguished experts in the field are of a particular opinion will demonstrate the reasonableness of that opinion. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily pre-supposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible. I emphasise that in my view it will seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the benchmark by reference to which the defendant’s conduct falls to be assessed.”
“… Assessment of patients with M3Ms Mandibular third molars, or wisdom teeth Where conventional imaging has shown a close relationshipbetween the third molar and the inferior dental canal, cone beam computed tomography (CBCT) may be of benefit. On plain film the three most significant radiological signs are diversion of the IAN canal, darkening of the root and interruption of the cortical white line.If CBCT is unavailable, then computed tomography (CT) can be used instead, but the limited field of view of CBCT is advantageous in terms of image reconstruction and radiation dose. The key information to be ascertained, is whether there is direct contact between the inferior dental canal contents and the third molar, or whether a bony wall exists between them. There is evidence that preoperative CBCT does not offer any benefit to patients in terms of reducing the incidence of inferior alveolar neurosensory disturbance. As the radiation dose and financial costs are higher than for conventional imaging, CBCT should not be used routinely when assessing M3Ms. Where conventional imaging has shown a close relationship between the M3M and the IAN canal, CBCT may be considered in carefully selected cases where the findings are expected to alter management decisions. … Coronectomy Coronectomy is an alternative method for management of M3Ms that are in close approximation to the inferior dental canal and is effective in minimising inferior alveolar nerve injury. However there are strict criteria on patient selection. The risks of coronectomy include the possibility of infection and pain, and the potential future need for removal of the roots… Valid Consent It is difficult to predict the long term outcome for asymptomatic third molars that are disease free. It is reliant upon the clinician's experience and expertise in collating the information gathered from the assessment process and then, weighing up the probability and severity of the risks. The clinician is required to communicate and explain the risks and benefits accurately and effectively to the patient, in order to obtain valid and informed consent. Patient involvement is paramount when making the decision about third molar management. The findings of the assessment, the risk status, and the options along with their risks and benefits all need to be communicated at a level the patient can understand to assist in their decision making. Clear and comprehensive documentation is essential. Clinicians must now ensure that patients are aware of any ‘material risks’ involved in a proposed treatment and of reasonable alternatives, including conservative management, following the Montgomery v. Lanarkshire Health Board judgment.The Bolam test no longer applies to the issue of consent. Any difficulty in comprehension of the risks and benefits of the proposed care, must be addressed. The patient must be appraised of potential complications and sequelae, for example; a dry socket or nerve injury. There are several patient leaflets available…”
“Simply being given a piece of paper and being asked to sign it is inadequate consent. This falls below a reasonable standard and is breach of duty.”
“Features associated with an increase in neurosensory damage include narrowing of the IAN canal, direct contact between the IAN canal and the root, fully formed roots, a lingual course of the IAN canal with or without cortical plate perforation and an intraroot course of the canal. The strongest indicators are narrowing of the IAN canal and direct contact of the roots with the canal…”
“I would hold that the test of causation is satisfied in this case. The injury was intimately involved with the duty to warn. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty.”
“Each of Lord Steyn, Lord Hope and Lord Walker endorsed the opinions of the other; and in my view the ratio of the decision is contained in [87] of Lord Hope’s opinion. If there has been a negligent failure to warn of a particular risk from an operation and the injury is intimately connected to the duty to warn, then the injury is to be regarded as being caused by the breach of the duty to warn; and this to be regarded as a modest departure from established principle of causation.”
“We agreed that whilst it is difficult to quantify the improvement in the Claimant’s actual perceived pain, any improvement is likely to be minimal. We agreed that any improvement in pain symptoms would be of the order of 10-20%.”
“[90] When considering whether it is appropriate to depart from the suggested Table A to D reduction factors, it is important to consider how the degree of residual disability may have a different effect on residual earnings depending upon its relevance to the claimant’s likely field of work. In this regard there is a distinction between impairment and disability. For example, a lower limb amputation may have less effect on a sedentary worker’s earnings than on the earnings of a manual worker. Likewise, cognitive problems may prevent someone from continuing to work in a professional or knowledge capacity where the same problems may not prevent continuing employment and job roles with low cognitive demands. In this context, disability is defined in relation to work and is specific to the skills that are required in a particular job and also to the outstanding effects of the impairment where barriers have not been overcome. Disability is more closely related to employment outcomes than is impairment. So, whilst occupation is irrelevant to impairment in this context, disability is defined in relation to work it is specific to the skills that are required in a particular job and also to the outstanding effects of the impairment where barriers have not been overcome. Disability is more closely related to employment outcomes than is impairment. So, whilst occupation is irrelevant to impairment (an amputation is the same regardless of the occupation), it is crucial to disability. Disability is the better predictor of employment prospects than the impairment itself and close regard must be given to the effects of the claimant’s impairments on his or her future intended occupation. [91] Where a departure is considered to be appropriate, it could be in either direction and it would normally be expected to be modest. Interpolation using a midpoint between the disabled and non-disabled reduction factors is not advised. Disability results in substantial employment disadvantage and therefore applying a midpoint between the pre and post injury reduction factors will normally be too great a departure.”