Meiklejohn v St George's Healthcare NHS Trust & Anor

Clinical negligence is assessed prospectively against the practice of a responsible body of doctors skilled in the relevant specialty. The duty to advise and warn about diagnosis, treatment and side-effects does not require discussion of alternative diagnoses that the clinical presentation and history reasonably do not raise. A tertiary specialist is judged against the appropriate specialist comparator; an additional standard for an internationally renowned super-specialist requires authority. Appellate courts should respect primary findings and expert evaluations that are open on the evidence. A consent complaint still requires proof of causation, and a narrow policy-based exception to ordinary causation cannot be extended to materially different facts.

The claimant brought clinical-negligence claims after treatment for aplastic anaemia led to avascular necrosis and bilateral hip replacements. He alleged inadequate examination and diagnosis, failure to suspect dyskeratosis congenita, failure to discuss alternative treatment, failure to warn about the steroid side-effect, and lack of informed consent to a research blood sample.

After an eight-day trial, HHJ Robinson rejected the claims and made findings about the clinical presentation, the purpose of the blood sample, expert evidence and causation. The claimant appealed on grounds concerning consent, diagnosis, treatment advice, the applicable standard of care, medical literature, expert evidence and costs. The central issues were whether the judge had applied the correct legal standard and whether his findings and conclusions were open to him.

Appeal dismissed. Lady Justice Rafferty gave the leading judgment, with which Lord Justice Tomlinson and Lord Justice Laws agreed.

1. The trial judge found that Professor Marsh obtained the claimant’s verbal consent to sending a blood sample for research. Although written consent should have been obtained for identified research, the claimant’s case still required proof of causation. The claimant trusted Professor Marsh and would have followed her recommendation of ALG and Prednisolone. The evidence did not establish that written consent, a different treatment date or discussion of the research would have avoided avascular necrosis.
2. [2005] 1 AC 134 was a narrow, policy-based response to materially different facts and disclosed no general principle permitting departure from ordinary causation rules. It did not assist the claimant.
3. The duty to advise and warn about diagnosis, treatment and possible side-effects was assessed by the practice of a responsible body of doctors skilled in the relevant art, applying Bolam and the majority approach in Sidaway v Bethlem Royal Hospital [1985] AC 871. Those authorities did not establish a duty to warn about alternative diagnoses that were reasonably not suspected. Birch v University College London Hospital NHS Foundation Trust [2008] EWHC 2237 (QB) concerned alternative investigations and was materially different.
4. On the factual findings, the claimant had none of the classic triad of dyskeratosis congenita and only nonspecific features. The medical literature and later diagnostic criteria did not show that a competent UK aplastic-anaemia specialist in 2003 should have suspected dyskeratosis congenita. It was reasonable to proceed on the basis of acquired aplastic anaemia and to recommend ALG with Prednisolone rather than discuss Oxymetholone for an inherited condition not reasonably suspected. The failure to warn about the remote risk of avascular necrosis was not negligent.
5. The proper comparator was a consultant haematologist specialising in aplastic anaemia in a tertiary referral centre. The court rejected the proposed additional standard for a nationally leading or internationally renowned specialist. The judge was entitled to prefer the evidence of Professor Cavenagh, to take account of the UK–US differences in practice, and to rely on his findings after the eight-day trial. The factual and expert-evidence grounds, together with the costs challenge, were rejected.

1. Court of Appeal (Civil Division) — The claimant’s appeal was dismissed in substance. The court rejected the grounds concerning consent, diagnosis, treatment, medical evidence, the standard of care and costs.
2. High Court of Justice, Queen’s Bench Division — HHJ Robinson, sitting as a High Court judge, heard the clinical-negligence claim over eight days and rejected the claimant’s allegations against the treating specialist.