Wyatt v Curtis

A second doctor is not necessarily negligent by failing to investigate or repeat advice already given by an apparently competent doctor. The position is fact-sensitive. The duty may differ where the patient requests a further opinion or circumstances indicate that the earlier advice was inadequate.

A doctor should ordinarily disclose a significant risk that would affect a reasonable patient's judgment. Significance cannot be reduced to a fixed percentage and may require consideration of the patient's perception of the gravity of the consequences. That wider issue did not determine this appeal.

A finely balanced finding about what would have happened but for negligence cannot stand where the reasoning omits material evidence or rests on an unexplained finding contrary to that evidence.

A locum general practitioner negligently failed to warn a pregnant patient that chickenpox presented a risk of serious foetal abnormality. The patient later attended an antenatal appointment with a hospital doctor, who raised chickenpox but did not explain the risk or investigate the advice previously given.

The general practitioner brought a Part 20 contribution claim against the health authority. The deputy High Court judge dismissed it on two grounds: the hospital doctor had fulfilled his duty of care, and the patient probably would not have sought a termination by the eighteenth week even if properly warned.

The general practitioner appealed with the judge's permission. The issues were whether the hospital doctor had been negligent and whether any negligence would have caused the continuation of the pregnancy.

1. Appeal dismissed unanimously. Sedley LJ gave the leading judgment. Kay and Schiemann LJJ agreed that the hospital doctor had not been negligent on the case as argued.

2. The deputy judge's finding on causation could not stand. The decision was finely balanced, but the reasons omitted the potentially important assistance which the patient's consultant gynaecologist would have provided. They also assumed that the patient's partner and family would increasingly have favoured continuation of the pregnancy, although their evidence supported a termination if the foetus was at risk. Evidence from honest witnesses did not have to be accepted, but its unexplained rejection left a material gap in the reasoning. This did not establish causation in the appellant's favour; it merely removed causation as a ground supporting the respondent.

3. The proposed duty to investigate precisely what advice the patient had previously received went beyond the duty established in Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871. The patient had neither expressly nor impliedly asked the hospital doctor about the foetal risk. The appeal was not advanced on the basis that he had an unsolicited duty to disclose it. The false reassurance given by the first doctor explained why the patient had asked no further question, but it did not establish liability under the case presented.

4. Sedley LJ observed that Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P53 recognises a doctor's ordinary responsibility to disclose a significant risk affecting a reasonable patient's judgment. Significance is not governed by precise percentages. The doctor's and patient's perceptions of whether a risk is substantial and its consequences grave may differ. Whether that approach would produce a different result on comparable facts was left for another case.

5. Kay LJ added that the risk was at most 2 per cent and that nothing suggested the hospital doctor knew the patient lacked adequate information. A second doctor would not ordinarily be negligent for failing to probe advice given by an apparently competent doctor, although the position would differ if the patient requested a further opinion. Schiemann LJ emphasised the fact-sensitive nature of the inquiry.

1. Court of Appeal (Civil Division): The appeal in [2003] EWCA Civ 1779 was dismissed. The respondent received its costs of the appeal, subject to assessment if not agreed. Permission to appeal to the House of Lords was refused.

2. High Court, Derby District Registry: His Honour Judge Orrell, sitting as a deputy High Court judge, dismissed the Part 20 contribution claim on 16 December 2002. He held both that the hospital doctor had fulfilled his duty and that a proper warning at 18 weeks would probably not have led to termination. He granted permission to appeal.