Description
Medical Negligence/Standard of Care/Treatment Options/Clinical Judgement
Other than in extreme cases, the stage at which it is necessary to consider other treatment options following a course of conservative treatment is within the bounds of clinical judgement.
The pursuer averred that she should have been offered the option of surgical fixation while receiving conservative treatment for injury sustained when she fell from a horse and that the orthopaedic surgeon treating her was negligent not to do so: where a number of reputable surgeons would be sufficiently concerned about a patient's condition to have proceeded to surgery, it becomes a 'treatment option' and requires to be discussed with the patient. A failure to raise surgery as an option is accordingly negligent. The defenders submitted that the orthopaedic surgeon was acting within the bounds of clinical judgement when he decided not to mention surgery as an option.
The pursuer's pleas-in-law were repelled and the defenders assoilzied. Held: i) in the absence of further questions from the patient it was not unreasonable to assume that the advice had been understood, particularly when dealing with matters which were not particularly complicated; ii) active conservative management of a condition includes regular monitoring but that does not mean that at each review all future possible forms of treatment are to be discussed. The stage at which a course of treatment opens up as a realistic option involves a considerable element of clinical judgement. Looking at the whole picture, it was a matter of clinical judgement for the orthopaedic surgeon to determine whether surgery was an option and as such he could not be considered negligent for failing to discuss such an option with the pursuer; iii) cases based on failure to disclose a particular risk were relevant to a situation where a decision is being made whether or not to embark upon a course of treatment, which was not the position in this case: the course of treatment had been agreed and embarked upon. What was at issue was at what stage, following a course of conservative treatment, was it necessary to consider that the treatment may not be working and that other options required to be addressed, which, part from in clear extreme cases, was very much an assessment of clinical judgement.
