A brain damage case wins £5.25 million after a long court battle
On Wednesday, March 11, 2015, seven UK Supreme Court judges in London ruled the case in favor of Mrs. Montgomery against Lanarkshire Health Board.
The lengthy 16 years of lawsuit case was termed as the landmark ruling that is set to make a difference in doctor-patient relationships throughout UK and possibly, the world..
Nadine Montgomery and Sam
Nadine Montgomery, 40 of Cumbernauld, Lanarkshire, Scotland gave birth 1st of October 1999 at Bellshill Maternity Hospital.
Mrs. Montgomery was 24 during the time of her pregnancy and measures just over 5 feet in height, 1.55 meters tall to be exact. She is petite and diabetic but despite the risks, her medics failed to advice her accordingly. Without knowing the likelihood of complications associated to her condition, she went on and deliver her baby naturally instead of choosing caesarean section (C-section) which could have been safer for her baby.
Like any other women with diabetes, Nadine would more likely have larger baby with concentration of weight on the shoulders resulting to 9-10% risks of shoulder dystocia during vaginal birth. She was aware that she is having a larger baby than usual but was not told of the risks of experiencing problems during labor.
Note that Mrs. Montgomery studied at Glasgow University earned her BSc in molecular biology. Her mother and sister are both general medical practitioners. Nadine was also described as “a clearly highly intelligent person” by a Lord Ordinary which is a judge in the Outer House of Scottish Court of Session.
Baby boy, Sam was born with severe disabilities as a result of difficulties during the delivery. Sam had cerebral palsy at birth; he had a 12-minute delay during his delivery and suffered oxygen deprivation due to his shoulder being stuck. Reviving baby Sam resulted in brain damage which lead to his cerebral palsy and damaged his nerves which controls the movement of shoulder, arm and hand.
Who’s at fault?
Mrs. Montgomery regards her son’s injuries to medical negligence on the part of her doctor. Dr. McLellan is a consultant obstetrician and gynecologist employed by the Lanarkshire Health Board who was responsible for her care during her pregnancy and performed baby Sam’s delivery.
Dr. McLellan recognized shoulder dystocia as high risk but said that she would rather pay less time or not discuss the potential risks of the complications at all. She estimated that there is a very small risk of a grave problem for the baby. She considered that if the condition was discussed every single time to every diabetic patient, then they will probably opt for C-section. She went on saying “it’s not in the maternal interests for women to have caesarean sections”.
Mrs. Montgomery underwent ultrasound examinations during her regular clinic check-ups which was held every 2 weeks. Her final ultrasound was at her 36 weeks of pregnancy. Dr. McLellan decided she no longer need further scans at 38 weeks because she felt that Nadine was feeling more anxious due to the scans revealing the size of her baby and was worried about her ability to deliver vaginally.
Sam’s weight was estimated to be 3.9 kg at birth by Dr. McLellan as based on the 36 weeks ultrasound. This is significant as Dr. McLellan set herself a threshold of offering Nadine C-Section if the baby’s weight reaches above 4 kg. The doctor would usually offer C-Section to diabetic mothers at 4.5 kg but lowered her guideline for Nadine considering her small physique.
- Estimating birth weight by ultrasound has 10% +/- margin of error
- Nadine’s delivery was scheduled at 38 weeks and 5 days
- Dr. McLellan estimated baby’s weight assuming delivery is at 38 weeks
- Sam weighs 4.25 kg at birth
Dr. McLellan said Nadine’s distress regarding the baby’s size and her ability to deliver vaginally was certainly expressed and mentioned several times. She stated however, that Mrs. Montgomery did not specifically ask her about the exact risks and if she did so, she would have advised her about shoulder dystocia and the risk of cephalopelvic disproportion.
The doctor told Nadine that she’s able to deliver naturally and if ever there will be any problems then recourse would be C-Section of which Nadine accepted. Dr. McLellan added that if Nadine requested C-Section then she would have been given one. In Mrs. Montgomery’s point of view, had the doctor explained her the risks and what outcomes they present, she would have asked the doctor to perform C-Section.
What happened during delivery
- Labor was induced by administration of hormones as Dr. McLellan planned.
- Baby’s heartbeat was grossly abnormal
- Failure of the doctor in charge to take fetal blood sample
- Arrested labor after several hours prompted administration of more hormones to strengthen contractions
- Dr. McLellan used forceps to deliver baby’s head as it failed to descend naturally
- 5: 45 pm- half of the baby’s head was outside but shoulder was stopping delivery
- General anesthesia was given to Nadine to enable Zavanelli maneuver which is pushing baby back to the womb and performing emergency C-Section
- Dr. McLellan decided to complete the delivery and pulled the baby’s head with significant traction
- Symphysiotomy was attempted; there was no scalpels with fixed blades available and the blades Dr. McLellan used was detached before division of joint had been completed
- 5: 57- baby delivered; “with just a huge adrenalin surge” Dr. McLellan succeeded in pulling the baby free
Dr. McLellan never dealt of such situation before and she described it stressful for everyone including all the staff in the theater, Mrs. Montgomery and even herself. Mr. Peter Steward who is an expert witness in support of Nadine’s case even described it “every obstetrician’s nightmare.”
12 minutes that changed Sam’s life
- Sam had oxygen deprivation due to his umbilical cord occluded
- Resulted to Sam’s suffering:
1. Hypoxia- he was considered clinically dead at birth
2. Renal damage
3. Epileptic Seizures
4. Cerebral Palsy of Dyskinetic type – causes involuntary, uncontrollable movements
5. Both hands and feet are all affected with cerebral palsy
6. Erb’s Palsy- paralysis of the arm
If Nadine had cesarean section, Sam would have been born uninjured
Failure to Inform
There was a huge argument of whether or not it was Dr. McLellan’s duty to inform Mrs. Montgomery of the risks for shoulder dystocia and whether she was responsible of discussing the options Nadine had.
Expert witnesses of both sides gave their evidences:
For Mrs. Montgomery:
- Mr. Peter Stewart- the failure to inform the risk of shoulder dystocia was contrary to proper medical practice.
- Professor James Neilson- if concerns were expressed, then it was proper practice to discuss the potential problems that should have included shoulder dystocia and option of C-Section
For Lanarshire Health Board:
- Dr. Philip Owen- Dr McLellan gave adequate response to Nadine’s expressions of concerns
- Dr. Gerald Mason- it was reasonable not to have discussed shoulder dystocia as the risks of a serious outcome for the baby was so slim. If doctors would always warn women of the risks, “you would actually make most women simply request caesarean section.” He accepted however that if a patient asks about risks then the doctor is bound to respond.
Mrs. Montgomery’s damages claim against Lanarkshire Health Board was rejected by Scottish Courts twice but finally accepted by the Supreme Court.
It was said by Lord Kerr and Lord Reed who gave the final decision gave final remarks regarding the doctor and patient relationship pointing out that it should not be based on medical paternalism anymore. Patients should be more independent and informed of medical matters. They said “An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken.”
It was truly a case that is bound to change the healthcare system in terms of doctor-patient relationship. Fred Tyler of Balfour and Manson who’s the lawyer of Mrs. Montgomery said. “This is almost certainly the most significant medical negligence judgement in 30 years, a momentous decision which will affect the doctor-patient relationship throughout the UK.”
Because of this case, the Supreme Court has changed the law on consent and have modernized it introducing the UK law, a patient-focused test which gives more power to patients to decide upon the level of risk they wish to take given all information available as opposed to the old system from which doctors usually control the situation.
It is no doubt that this was a great victory for Nadine and Sam. Mrs. Montgomery remarked that the judgment was an enormous relief after a 16 year legal fight. She was very pleased that the Supreme Court recognized her right to know all of the risks surrounding her son’s birth.
She hope that the case should keep the other patients away from what she have gone through.
This case received mixed reactions from the general public. Others are happy for Nadine and Sam but the other half of the population just don’t think Mrs. Montgomery deserved the court’s ruling.
To be fair, people are becoming more and more sensitive with regards to medical claims and payouts. Some people believe that rewards are too exaggerated or even undeserved in some occasions. With Nadine’s case, it is truly a surprise that this happened despite knowing that Nadine is well-educated and have family members who are medical practitioners.
Whatever really happened here, for sure Dr. McLellan did committed significant medical negligence. Sam deserves a great future that even £5.25 million cannot guarantee. Nadine was a strong woman and a good mom for standing up for her son with this long and hard legal battle.
Best of all, healthcare system in UK was improved empowering patients more and lessening the chance of having other unfortunate cases as Nadine’s.
P.S What is your take on the case? Share your thoughts in the comment section below. Full document of the case are available to view at these links: