J U D G M E N T

Thursday, 30 October 2003 Lord

LORD JUSTICE SEDLEY:

The issues

1. The first defendant, Dr Curtis, then a locum general practitioner, failed to warn the claimant, Miss Wyatt, who presented with chickenpox, about the consequent risk to her unborn child. It was admitted at trial that this had been negligent. It was accepted also that the child was born with serious abnormalities caused by the chickenpox. What was not admitted was that, had she been warned by Dr Curtis, Miss Wyatt would have sought and obtained a termination of her pregnancy, which was then in its fourteenth week. But the trial judge found that she would more probably than not have done so, and this court (Lady Justice Hale and Lord Justice Latham) on 1 May 2003 refused Dr Curtis permission to appeal against this finding.

2. Dr Curtis had, however, brought Part 20 proceedings against the local hospital authority seeking a contribution, should she be held liable, on the ground that when, four and a half weeks later, Miss Wyatt went to Kings Mill Hospital for an ante-natal check-up and Dr Howarth, the senior house officer, learned that she had just had chickenpox, he failed in his duty to warn her of the same risk. These proceedings the judge dismissed on two cumulative grounds: first, that Dr Howarth had done enough to comply with his duty of care; and secondly that, even if he ought to have told Miss Wyatt of the risk, she would probably not have opted at that stage for a termination of her pregnancy, which by then was in its eighteenth week.

3. Judge Orrell, sitting as a judge of the High Court at Derby, gave his reserved judgment on 16 December 2002. He granted Dr Curtis permission to appeal against his dismissal of her Part 20 claim, and it is this alone which we now have to decide.

The facts

4. In view of the foregoing, it is possible to take up the narrative on 15 February 1991 when Miss Wyatt saw Dr Howarth for a routine consultation at the ante-natal clinic. Dr Howarth (who is now a consultant - hence the judge's mode of referring to him) knew that Miss Wyatt had recently had chickenpox because the midwife had recorded it in the notes. He seemed to the judge "a conscientious obstetrician, blessed with a manner that most patients would find particularly reassuring". There then follow these findings:

"32. Mr Howarth's evidence appeared to proceed on the premise that Miss Wyatt must have raised the question of chickenpox with him. Mr Howarth has no recollection of the consultation but has considered the records. Two records indicated to him that that must have been the case. At page 436 of the bundle is the short relevant history. As at least some of the information does not appear in any previous medical record, it is probable that the history was taken by the midwife on duty on the 15th February. She has written 'had chickenpox two weeks ago' and she has underlined that in red; Mr Howarth cannot think of any reason how that should have appeared in the medical record unless it has been volunteered by Miss Wyatt. At page 434 of the bundle there is, in Mr Howarth's own notes, the record: 'Recent chickenpox. Scanned since and all fine.' The reference to a scan is to a scan taken to confirm that the foetus was still alive.

33. Against Mr Howarth's honourable reconstruction of what took place are these facts: (1) this was not a referral specifically because of the existence of chickenpox and made by the general practitioner; (2) Miss Wyatt did not appear to have been in a hurry to attend the consultation - a week earlier she had cancelled the first appointment because of bad weather; (3) on my finding against the defendant, it must follow that Miss Wyatt had been reassured by Doctor Curtis; (4) it seems to me perfectly reasonable for a patient to mention to the midwife, perhaps in answer to questions, that she had recently contracted chickenpox because that was the most recent event in her medical history and at the same time not wish to seek advice on its effects; (5) Miss Wyatt, for whom this was not a routine appointment but a very important one, has no recollection of anything of significance being said about chickenpox.

34. The subject of chickenpox must have been mentioned because Mr Howarth's own note in the antenatal notes has the word 'contact' crossed out, suggesting that he had discovered that this was not a case of contact but of contraction of the infection. If Miss Wyatt had not raised the topic, Mr Howarth says that he would have introduced the subject in a gentle and tentative (my adjective) or probing (his adjective) manner. He would not know precisely what Doctor Curtis had told Miss Wyatt. He said to me that he would have introduced the subject, probably by asking her whether she had made a good recovery. His main concern would have been the problems sometimes arising from maternal chickenpox, in particular pneumonia. He would have asked Miss Wyatt whether she was aware that chickenpox could cause problems to babies and may have asked her whether she had had this explained to her. He would have emphasised that these problems were rare and his approach would have been reassuring.

35. On the 15th February 1991, Mr Pickles wrote to Dr Bassi: 'Thank you for referring this lady along to my antenatal clinic. She is eighteen years old, this is her first baby and there are no problems in the pregnancy so far. She is eighteen weeks pregnant. I would be very happy to share the antenatal care with you. Arrangements have been made for her to be seen again in the Consultant Clinic when she is thirty-two weeks.' Mr Pickles said he would have been entirely satisfied with Mr Howarth's ability to conduct this antenatal appointment and on past form would have expected him to approach him (Mr Pickles) if there had been any problems outside his expertise. Equally there is no mention in that letter of Miss Wyatt being reassured about chickenpox and the risks attendant.

36. One possibility is that in this gentle, reassuring conversation, Mr Howarth asked Miss Wyatt whether she had been made aware of the rare problems to babies from chickenpox and that Miss Wyatt, in turn, had reassured Mr Howarth that she was aware of the problems and was not worried by them. The matter then may have proceeded no further. Neither person was aware that the other had a very different understanding of what was involved in the word 'problems', Mr Howarth having a clear and accurate understanding of current medical knowledge and Miss Wyatt having the reassurance of Doctor Curtis that the worst that could befall her baby was chickenpox lesions.

37. In his witness statement, Mr Howarth said that he would have advised the Claimant in accordance with his normal practice, that there was a small risk of congenital abnormality but that the precise risk was not known. If questioned further he would have warned of possible limb abnormalities, together with a risk of developmental hearing and visual problems and, if pressed, he would have quantified the risk of significant brain damage in the region of less than 1%. All three obstetric experts agreed that such advice would have constituted a reasonable standard of care.

38. I repeat that Miss Wyatt is now both older and more mature today than she was in February of 1991, and I have formed the view that if on the 15th February 1991 she had been told that there was any risk of significant brain damage or other grave abnormality, she would have become extremely alarmed and this alarm would have communicated itself in the first instance to Mr Howarth, and then very soon afterwards to Mr Seals and thereafter to the expectant grandparents. It would be too much to have expected Mr Howarth to have remembered the consultation, even if Miss Wyatt had become alarmed; on the other hand, I am quite sure that not only Miss Wyatt but also Mr Seals and the grandparents would have remembered very clearly Mr Howarth's warning. They have all said that they do not remember any such thing, and indeed when Mr Morton broke the devastating news to them of Luke's disabilities none remembered any indication in the past that this was even a remote possibility.

39. I am satisfied that Mr Howarth raised the subject of chickenpox but in such a way that Miss Wyatt did not realise that he was warning her of something very much graver than Doctor Curtis had spoken about. I am also satisfied that Mr Howarth did not expressly say there was a risk of serious abnormalities, nor did he indicate to Miss Wyatt that there was any risk of a grave problem to her baby."

Causation

5. But the judge went on to find that even if she had been advised of the risk by Dr Howarth, Miss Wyatt would probably not have sought a termination at that stage. He said:

"48. It has been argued that there can be no real difference between Miss Wyatt's view on termination at the stage when she was thirteen to fourteen weeks pregnant and her view at eighteen weeks: if she had wanted a termination earlier, she would have wanted one later on. I do not agree with that analysis. A number of factors have to be considered. Time had passed on. That is not a neutral factor. Miss Wyatt had seen a scan, she was becoming more familiar and content with the idea of pregnancy, and an increasing number of people would have known about it and would be there to give her support. Her boyfriend and the prospective grandparents would all have been more confirmed in their desire for her to have the child. Miss Wyatt had seen the child on the screen during her scan although she described the image to me as 'something'. Additionally, nurses are reluctant to assist in abortions in the later stages and so doctors tend to be more persuasive in their advice not to have a termination. I appreciate that would not have applied to Miss MacPherson.

49. Miss Wyatt might have had a termination if Mr Howarth had alerted her to the risk. I acknowledge that her evidence was to the end that she would have sought a termination of pregnancy even at eighteen weeks and I have accepted her evidence about her state of mind at thirteen to fourteen weeks. Miss Wyatt, however, although she said she believed she would still have had a termination, very frankly conceded that she would have found the decision more difficult on the occasion of the second consultation. I find it somewhat less likely that she would have still sought a termination of the pregnancy at that stage, given the factors I have set out and her concession that the decision would have been more difficult.

50. It is a delicate balance but in the end I find that it is less probable rather than more probable than not that she would have sought a termination of pregnancy at eighteen weeks, although I have found that it was more probable than not that she would have sought a termination of pregnancy at thirteen to fourteen weeks."

The arguments on causation

6. If this finding is sustainable, it is dispositive of the Part 20 appeal. But it is criticised by Andrew Collender QC, for Dr Curtis, on a number of grounds. One is that the judge has not dealt at all in this passage with what had been a critical issue in relation to the causative effect of Dr Curtis' negligence, namely the advice and support which Miss Wyatt would have received from the consultant gynaecologist, Miss Macpherson, who had previously treated her for pelvic adhesions. In that regard the judge had held:

"30. I am satisfied that if Miss Wyatt had received the advice she was entitled to receive she would have gone to Miss MacPherson - it may be she would have gone to her first. Miss MacPherson made it very clear in her evidence that had Miss Wyatt come to her saying that she was worried about the risk and that she wished a termination, a termination would have been done speedily. I am therefore satisfied on the balance of probabilities that notwithstanding the material carefully put before me to suggest that Miss Wyatt was mistaken when she said she would have sought a termination of pregnancy, that the truth of the matter is that had Doctor Curtis correctly advised her, she would have embarked on a course of inquiry which sooner or later would have taken her to Miss MacPherson, who would then have performed a termination of pregnancy. In those circumstances I find that causation has been made out."

7. There is no explanation of why Miss MacPherson, though mentioned at the end of paragraph 48, fails to find a place in the judge's reasoning about the likely outcome of a warning by Dr Howarth.

8. More important, perhaps, is the judge's erroneous account, as Mr Collender submits it is, of the attitude which Miss Wyatt's family would have taken had she had to consider a termination. In addition to the appraisal in paragraph 48 (quoted above) of her partner's attitude to the pregnancy, there is an earlier passage at paragraph 28:

"Mr Seals was delighted at the prospect of being a father and would have wanted the pregnancy to have continued. On the other hand, he would not have stood in Miss Wyatt's way had she wanted to terminate her pregnancy."

9. In fact, Mr Seals had consistently testified that he himself would have wanted Miss Wyatt to have an abortion if there was a risk to the foetus. The four grandparents too, in different ways, had all said that they would have supported a decision by Miss Wyatt to seek a termination. None of this is reflected in the critical passage of the judgment: paragraph 48 assumes, rather than finds, the contrary - that by the eighteenth week all five would have been "more confirmed in their desire for her to have the child". If the evidence of these witnesses was to be rejected, some explanation was due: it could not properly be done by implication.

10. Michael de Navarro QC, for the Health Authority, reminds us relevantly that this assault is on a straightforward finding of fact, and fact of a particular kind: not historic or accomplished fact but extrapolation to what would have happened had events fallen out differently. It was an exercise in hindsight, and the judge was, Mr de Navarro submits, in no way bound to accept all that he was told, albeit by entirely honest witnesses.

Conclusion on causation

11. I accept everything Mr de Navarro says in this regard; but it does not answer Mr Collender's critique of the judgment, a critique which I accept. In my respectful view, the three paragraphs dealing with causation in relation to Dr Howarth are insufficiently and in one respect faultily reasoned. That is not to say that the judge could not properly have reached the conclusion he did. It is to say that, precisely because it was such a finely balanced decision, the gaps in his reasoning mean that it cannot stand. It has the air, if I may say so, of a makeweight passage; for if the judge was right in his view that Dr Howarth had not been negligent, whether any negligence on his part had caused damage was a wholly hypothetical question.

12. It follows that the respondent cannot hold the Part 20 decision in its favour on this ground. It does not follow that the appellant, Dr Curtis, has established causation. Before deciding what if anything ought to be done in this situation, it is necessary to turn to the question of Dr Howarth's liability.

The duty of care

13. The judge, taking his law from the decision of the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871, held that where advice had not been solicited by the patient, it was only where the risk was such that no responsible body of medical opinion would have supported the withholding of advice that failure to offer it would be negligent: in other words, that the ordinary threshold of liability as between doctor and patient was the Bolam threshold. He had unanimous expert evidence that the account of the consultation given by Dr Howarth (which was not ultimately accepted by the judge) did not fall into this class. He rejected the further opinion of Mr Jarvis (which was relevant to what the judge ultimately did find) that where the doctor was aware of a particular risk, it was his duty to give such information about it as a reasonable patient would require, even though the patient had not asked about it.

14. Although the judge dismissed this aspect of Mr Jarvis' opinion as idiosyncratic, it seems to me to do no more than reflect the statement of the law by Lord Woolf CJ in Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P53:

"[I]f there was a significant risk which would affect the judgment of a reasonable patient then, in the ordinary event, it is the responsibility of the doctor to inform the patient of that significant risk. ... In the Sidaway case Lord Bridge recognises that position. He refers to a significant risk as being something in the region of ten per cent. When one refers to a 'significant risk' it is not possible to talk in precise percentages ..."

15. Lord Bridge in Sidaway had held that a duty to advise arose, irrespective of the Bolam threshold, in the presence of "a substantial risk of grave consequences as, for example, the ten per cent risk of a stroke".

16. Lord Woolf's formulation refines Lord Bridge's test by recognising that what is substantial and what is grave are questions on which the doctor's and the patient's perception may differ, and in relation to which the doctor must therefore have regard to what may be the patient's perception. To the doctor, a chance in a hundred that the patient's chickenpox may produce an abnormality in the foetus may well be an insubstantial chance, and an abnormality may in any case not be grave. To the patient, a new risk which (as I read the judge's appraisal of the expert evidence) doubles, or at least enhances, the background risk of a potentially catastrophic abnormality may well be both substantial and grave, or at least sufficiently real for her to want to make an informed decision about it.

17. I mention these matters because this appeal has an unusual feature: it is a contest between one doctor (or her insurers) and another (or his employer) as to whether the latter should share some of the blame for the patient's misfortune. Neither has a long-term interest, as a claimant might have, in arguing for a lower threshold of liability than the Bolam threshold. Hence Mr Collender's disavowal of any reliance on Pearce . Instead he puts his case clearly and simply: accepting the Sidaway paradigm of liability, Dr Howarth had for practical purposes been asked whether there were any risks consequent on Miss Wyatt's chickenpox. He knew that Miss Wyatt had had chickenpox earlier in her pregnancy: it was recorded in the notes. The conclusion in paragraph 39, quoted above, appears to accept what is tentatively set out in paragraph 36 - that Dr Howarth had asked Miss Wyatt whether she had been made aware of the rare problem of chickenpox in pregnancy, and had been told that she had been. It was incumbent on Dr Howarth in that situation, Mr Collender submits, to ascertain what advice she had received and to correct it.

18. Mr de Navarro contends that this goes well beyond anything laid down in Sidaway , and it seems to me that he is right. To the judge's reconstruction of the hospital consultation he contrasts the finding that Miss Wyatt had expressly asked Dr Curtis "Will the baby be all right?" No such question was expressly or impliedly put to Dr Howarth. Indeed it will have been the false sense of security created by Dr Curtis' answer which led Miss Wyatt not to ask Dr Howarth the same question. We have no submission before us that, even without being asked, Dr Howarth had a duty to tell Miss Wyatt, however emolliently, of the risk to her child.

Conclusions

19. This, it seems to me, determines the appeal in the respondent's favour. I confess that I find the basis of the appeal unsatisfactory. For reasons which I have touched on, there is arguably something unreal about placing the onus of asking upon a patient who may not know that there is anything to ask about. Lord Woolf's approach in Pearce , which binds this court no less than does Sidaway , seeks to recognise this. (See also his 2001 Jacobovitz lecture, 'The judiciary, medicine and ethics'). Whether it yields a different answer on facts like those found here will have to await another case.

20. For the reasons I have given, the judge's untenable but contingent decision on causation is of no consequence. The appeal fails on the question of liability, and I would dismiss it.

21. LORD JUSTICE KAY: I agree entirely with the conclusions reached by Sedley LJ and the reasons he has given for reaching his conclusion. I would only add one further comment. The level of risk in this case was a relatively low one. It is not clear precisely what it was, but nobody suggested that it was higher than 2 per cent at the very most. Further, the evidence showed that a reasonably competent general practitioner should have been capable of adequately advising a patient on this risk. The admissions made on behalf of Dr Curtis accepted that this was the case. It is accepted that the judge found that Dr Howarth had established that Dr Curtis had given advice, but not the terms of that advice. Any doctor considering what was necessary in such circumstances would be bound to place in the balance the potential emotional distress that might be caused to the patient by reopening a question over which it was likely that she would have agonised in making her difficult decision following the initial advice.

22. There was nothing in this case to suggest to Dr Howarth that she had been deprived of the information she needed to reach her conclusion. The court should, I believe, be very careful that decisions in cases of this kind do not drive doctors into a position where they feel reluctant to give proper consideration of the effect of the advice on the patient the weight that it merits.

23. Thus, whatever the precise legal test, I would be reluctant in the extreme to hold that there was any greater duty on the second doctor, whatever his or her status, to do any more than satisfy himself that a warning had already been given by an apparently competent doctor who ought to have had sufficient expertise to give the necessary advice. I am unpersuaded that it would be negligent not to probe the nature of the advice given in such circumstances, although the position would clearly be different if the patient asked for a further opinion as to the risks.

24. LORD JUSTICE SCHIEMANN: I also agree that this appeal should be dismissed. These cases are extremely fact-sensitive. Mr Collender has not persuaded me that Dr Howarth acted negligently either in failing to identify what precisely she thought, accurately as the judge found, she had been advised by Dr Curtis, or in failing himself to give the advice which Dr Curtis should have given. I understand the point made by Sedley LJ that perhaps the case might have been argued differently and this might have produced a different answer. Like him, I consider that the answer to that question will have to await another case.

(Appeal dismissed; Respondent's costs of the appeal to be taxed an the standard basis if not agreed; application for permission to appeal to the House of Lords refused).