Barrett v Sandwell And West Birmingham Hospitals NHS Trust

In clinical negligence, a doctor is not negligent where the treatment accorded with a practice accepted as proper by a responsible body of suitably skilled clinicians, provided that the opinion had a logical and defensible basis. A different professional view does not itself establish breach.

The duty to advise a patient about reasonable alternative treatments requires dispassionate consideration of the available options. However, a breach of that duty causes no loss where the patient would have followed the reasonable medical advice given.

Where negligent treatment made a more than negligible contribution to injury, causation may be established under the material-contribution principle. The claim may nevertheless fail if an independent later condition would probably have caused the same substantial loss.

The claimant alleged that negligent treatment at the Birmingham & Midland Eye Centre caused the effective loss of vision in his left eye and consequential deterioration in his right eye. The central issue was whether, after elevated intraocular pressure developed following surgery, the defendant’s clinicians should have proceeded to urgent surgery rather than continuing medical treatment.

The claimant also alleged a failure to advise him about surgery as an alternative. The defendant denied breach and causation. The court determined whether the treatment and advice were negligent and, if so, whether they caused the claimed visual and financial losses.

1. Primary treatment decision. Applying the Bolam test, qualified by Bolitho, the court held that the clinicians’ decision to continue medical management on 24 and 25 October 2008 was a logical and justifiable clinical judgment. It was supported by a responsible body of ophthalmological opinion, although other responsible clinicians might have operated. Surgery was therefore not mandatory, and there was no breach of duty in the treatment decision.
2. The suspected haemorrhage identified by the scan increased the perceived risks of surgery but did not itself rule surgery out. The fact that the treating surgeon was unavailable for several days could not justify continuing medical treatment if immediate surgery had otherwise been required. On the evidence, however, that threshold was not reached.
3. Advice about alternatives. Applying Montgomery, the court accepted that surgery was an alternative which should have been discussed with the claimant. The duty required advice by reference to the reasonable ophthalmologist’s assessment of the options, rather than simply the treating clinician’s preferred course. The failure to discuss surgery constituted a breach of duty.
4. The advice breach caused no loss. The claimant would have followed medical advice, and the better advice on the evidence was to continue medical treatment because the substantial risks of major surgery outweighed the risks of continued medical management. The court also held that Chester v Afshar was inapplicable.
5. Causation and subsequent deterioration. The elevated pressure made a more than negligible contribution to the loss of vision in the left eye. Applying the material-contribution principle in Bailey, the claimant therefore established causation in that limited respect. However, the later retinal detachment was attributable to the claimant’s proliferative diabetic retinopathy and was unrelated to the elevated pressure. It was highly likely to have left the left eye severely compromised even if earlier surgery had been performed.
6. There was no causal link between the alleged negligence and the loss of vision in the right eye. Surgery was undertaken when clinically indicated, and earlier decisions not to operate were justified by the condition of that eye.
7. The claim therefore did not succeed. The court made provisional quantum findings because the parties had requested them, but no damages were awarded.