James Badenoch QC acted for the Appellant, Nadine Montgomery, who was appealing the Court of Session’s judgment refusing her reclaiming motion.
As a result of complications during delivery, the Appellant’s baby was born with serious disabilities. Mrs Montgomery sought damages on behalf of her son alleging negligence of the respondent Board’s employee, Dr McLellan, who was responsible for her care during her pregnancy and labour. Mrs Montgomery stated that the doctor ought to have made it clear to her that, as she suffered from diabetes, there was a 9-10% risk of shoulder dystocia during vaginal delivery (the baby’s shoulders being too wide to pass through the mother’s pelvis), which poses various health risks to the woman and baby. Mrs Montgomery had raised concerns about vaginal delivery but Dr McLellan’s policy was not routinely to advise diabetic women about shoulder dystocia as, in her view, the risk of a grave problem for the baby was very small, but if advised of the risks of shoulder dystocia women would opt for a caesarean section, which was not in the maternal interest.
The Inner House of Session refused Mrs Montgomery’s reclaiming motion and upheld the Lord Ordinary’s conclusion. Since both courts held that no duty owed was to her, the issue of causation did not arise. Both nonetheless held that Mrs Montgomery had not shown that, had she been advised of the risk, she would have elected to undergo a caesarean, thus avoiding the risks to the baby.
However, the Supreme Court unanimously allowed the appeal on the basis that the doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in proposed treatment, and of reasonable alternatives. In the present case, Dr McLellan ought to have advised Mrs Montgomery of the substantial risk of shoulder dystocia.
Read the judgment here.
