Bone marrow disorder appeal fails

298x232-dna_genetic_test-298x232_dna_genetic_testMeiklejohn v St George’s Healthcare NHS Trust and Another [2014] EWCA Civ 120 - read judgment

Richard Booth QC of 1 Crown Office Row represented the appellant in this case. He has nothing to do with the writing of this post.

This was an appeal against the finding by HHJ Robinson, sitting as a High Court Judge, that there was no duty of care owed to the appellant in respect of his rare genetic disorder ([2013] EWHC 469 (QB), [2013] Med. L.R. 191). See my previous post for the factual and medical background of the claim. Briefly, the appellant suffered from a rare genetic version of the platelet insufficiency disorder, aplastic anemia (AA), the disorder in question being known as Dyskeratosis Congenita (“DC”).

In this appeal Mr Meiklejohn contended that had he been required to give written rather than verbal consent to the treatment with anti-lymphocyte globulin (ALG), he would have been better informed and would have rejected the drug and therefore avoided the side effects of avascular necrosis, which led to him having bilateral hip replacements. He also maintained that the specialist had breached her duty by failing to advise him of other possible diagnoses and treatments, and that the judge below had erred in finding no breach of duty by Prof Marsh in recommending ALG.  The judge had also erred in concluding that the blood test was for research without clinical utility and carried no expectation of a result before treatment. Prof Marsh, said the appellant, had failed to analyse the medical literature available in 2003. Moreover, he contended that she should have been judged against a higher professional standard because of her international renown.

The Court of Appeal dismissed the appeal. Rafferty LJ gave judgment for the Court.

Reasoning behind the Court’s decision

The informed consent issue

The judge below was criticised in finding that verbal consent was given and was sufficient consent for sending a sample off for research purposes. It was said that he failed to consider that informed consent for the specific genetic research project was necessary and that insufficient information had been provided to enable it: Sidaway v Bethlem Royal Hospital [1985] AC 871. The developed complaint was that in accordance with Chester v Afshar [2005] 1 AC 134, causation should follow to give purpose to the breach.

But the hurdle the appellant could not clear was his attitude to Prof Marsh. He told the Judge in terms that he trusted her and would have done what she advised. Therefore, even if alternative treatment had been discussed, Prof Marsh would have recommended ALG with Prednisolone and the appellant would have accepted that advice. He had not made out his case on causation here.

The duty to advise and warn about side effects

Although advanced as an error of law, this was a thinly disguised appeal on the facts. The duty to advise and warn about diagnosis, treatment and possible side-effects was to be assessed in accordance with the practice of a responsible body of such doctors: Bolam, and the majority in Sidaway v Royal Bethlem Royal Hospital [1985] AC 871. The duty to warn of possible alternative diagnoses reasonably not suspected was not a proposition for which either is authority. Sidaway and Chester alleged failure to warn of the specific percentage risks of serious identifiable side-effects of surgery. The judge had correctly decided that there had been insufficient evidence in the appellant’s physical presentation or medical history to have alerted even a clinician of his specialist’s standing to the possibility of DC (para.93).

Erring on the facts in relation to the medical evidence and literature

This case concerned a diagnosis reached in March 2003. The governing standards were those applicable to clinicians who, assuming competence, should have been familiar with the then state of medical knowledge and medical science about AA and DC. In 2003 the appellant had prematurely grey hair perhaps with some thinning but not one of the 17 somatic abnormalities also seen in DC set out by the experts in the field. No author suggested that a patient should be diagnosed with, or even suspected of having, DC with none of the triad of known somatic symptoms. No publication suggested that applied to the appellant it showed he had qualifying criteria for suspicion, let alone diagnosis, of DC.

The Judge failed to apply the correct standard of care 

The appellant argued that  the standard of care set out in Bolam required Prof Marsh to be judged against a responsible body of medical practitioners skilled in her particular art, namely an AA specialist working out of a specialist AA tertiary referral centre in 2003, a leader in the field of AA in the UK and enjoying international renown.  The Court did not accept this submission at all. The correct comparator had been properly advanced before the Judge, a tertiary specialist in AA.

The appellant died shortly after the hearing of this appeal.

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