The case is (to my knowledge) the first reported clinical negligence claim arising from the well known Montgomery v Lanarkshire Health Board[2015] AC 1430 principles since last year’s Duce v Worcestershire Acute Hospitals NHS Trust[2018] EWCA Civ 1307 and Khan v MNX[2018] EWCA 2609, and provides a useful illustration of the complexities of factual causation in such cases.
The facts
The Claimant is a retired primary school teacher, who is married to a retired Consultant Neurologist. She developed a left upper limb tremor in 2006, and saw the Defendant (a Consultant Neurologist with a specialism in movement disorders) at various times between 2007 and 2012.
The Claimant was suspected by the Defendant to be suffering from Parkinson’s Disease, and was prescribed medication from 2007 onwards including a dopamine agonist, Requip WX (ropinirole) in April 2010. One potential side effect of this medication is that it can lead to compulsive behaviour, described as an impulse control disorder (or “ICD” – see the definition of this at §57).
In the instant case, the Claimant began to develop compulsive behaviour which started by excessive internet purchases and later developed into compulsive buying, and eventually psychosis leading very nearly to the end of her marriage.
The Claimant contended that at various points in time there had been insufficient information and advice provided to the Claimant about the risks of ICD, and insufficient consideration of alternative medication.
The Judge found that advice on ICD was both material and substantial (§50), and that at various points in time (namely in April 2010, and possibly on January 2011) there were breaches of duty for failing to provide necessary advice or explore alternative medication. However, the Judge did not find any breaches on these occasions to have been causative of loss since medication change was unlikely to have occurred had the correct advice been given. The reasons for this conclusion are fact specific and not summarised here, but illustrate the complex re-construction of events which lawyers and the Court must perform in cases such as these (see §82).
At a consultation in October 2011, however, the Judge found that the Defendant had failed to heed input from the Claimant’s Parkinson’s nurse, who had written to the Defendant that she suspected ICD and felt that ropinirole should be stopped (see §87).
The Judge found that there ought to have been a “drilling down” into the details of the Claimant’s ICD at the October 2011 consultation, and that advice about switching medication ought to have been provided. It was found that this had not taken place (§97), and breach of duty was established on this occasion.
Factual and medical causation was also established, since:
- had this breach not occurred it was likely that a recommendation to reduce or discontinue ropinirole would have been made (§98);
- this change in medication would have avoided the psychosis (§100).
Although not relevant to this analysis it is worth noting that the Defendant had agreed to see the Claimant at all times privately and did so without charge as a favour to his recently retired colleague, although this did not alter the duty owed by him to the Claimant. It is also worth noting that in fact, as it subsequently transpired, the Claimant did not have Parkinson’s Disease, although no criticism was made of the Defendant of his (suspected) diagnosis.
Observations
- There is a useful summary of the legal principles engaged in the issues of breach of duty and causation since Montgomery and Duce at §11-14 which will be useful to anyone who (like me) needs to regularly remind themselves of these legal principles when advising clients, and likes a pithy summary;
- The Defendant raised an interesting argument based on Khan v MNX on the grounds that “psychosis” was a different risk from “ICD”, about which there had been a duty to advise (see §5) which counsel agreed to defer pending the Judge’s resolution of the breach of duty and causation issues (see §7), which she has now done. Readers may recall that in Khan the Court of Appeal decided that advice about the risk of autism fell outside the scope of the doctor’s duty to advise, and thus damages associated with the costs of a child born with autism could not be recovered where there had been a (negligent) failure to perform a test for haemophilia (see our blog post here). By co-incidence, Yip J had been the first instance Judge in Khan, and in light of her findings (see in particular §98 & §100) it remains to be seen whether this argument will be pursued further should the case not settle and quantum assessment take place. I will continue to ‘watch this space’ for you;
- The findings leading to the causation conclusions on each occasion when breach of duty was alleged illustrates the difficult re-construction of events which clinical negligence lawyers must painstakingly do with the input from our experts and witnesses;
- Finally, although it does not seem to have mattered very much ultimately in this case, the case serves as a reminder to consider whether your expert is sufficiently qualified when compared to their counterpart; the Judge concluded that the Defendant’s neurologist was not a movement disorder specialist, unlike the expert instructed by the Claimant (see §32- 33).
Jonathan Holl-Allen QC acted for the successful Claimant in this claim against a Consultant Neurologist who Yip J concluded had failed to discharge his duty when advising in respect of medication to a suspected Parkinson’s Disease patient.