McCulloch v Forth Valley Health Board

McCulloch decision brings relief to medical professionals – but doesn’t protect against mounting costs in the event of legal action

The United Kingdom Supreme Court opened a pivotal chapter in medical law in July 2023 with a ruling that is highly relevant to doctors, and which also throws up questions around their insurance.

In a surprising turn of events, the court’s ruling in McCulloch v Forth Valley Health Board [2023] has sparked a heated debate around the question of informed consent, and the extent to which doctors should disclose treatment alternatives to patients.

The clinical negligence claim was brought by Mr McCulloch’s widow and relatives. The claim involved the fatal cardiac arrest of 39-year-old Mr McCulloch following numerous hospital admissions for chest pain, nausea and vomiting between March and April 2012. Following investigations into his symptoms, including three echocardiograms, Dr Labinjoh, a consultant cardiologist, determined that Mr McCulloch’s condition was not life-threatening and discharged him. Unfortunately, he passed away the following day.

The claimants alleged that Dr Labinjoh should have discussed alternative treatments, including anti-inflammatory drugs, with Mr McCulloch, and that had she done so, his death could have been avoided.

Weight of responsibility

The court was asked to consider the duty established in Montgomery v Lanarkshire Health Board [2015] that a doctor ‘must take reasonable care to ensure the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.

The appellant argued that the assessment of what amounts to a reasonable alternative is a matter for the court. The respondent countered, saying the question of whether a possible treatment is a reasonable alternative should be assessed by the Professional Practice Test, which sets out that treatment options need to be supported by a responsible body of medical opinion and should include all ‘reasonable’ treatment options, but not all ‘possible’ treatment options.

In the first instance with Mr McCulloch’s case, Montgomery was applied, but it was later determined that the duty to discuss alternative treatments and the risks involved does not arise where a doctor has rejected a particular treatment on the basis that the circumstances of the case do not indicate that that treatment is required.

In this case, the expert evidence was that while some doctors would have prescribed anti-inflammatory drugs, a responsible body of medical opinion would have supported the decision not to do so. Initially it was held that the doctor was not negligent in failing to inform Mr McCulloch about the possible treatment option of anti-inflammatory drugs. That was maintained on appeal. The Supreme Court has now upheld that again.

Had the appeal been successful, doctors would be placed under even more pressure than they currently are, being required to provide patients with a complete analysis of all treatment options in any particular case.

So, what does this mean for doctors in their everyday practice? Or for the medical indemnity insurance cover they take out to protect themselves and their patients? Most medical professionals understand that, despite the recent changes, litigation remains a risk and they should ensure they have the correct cover.

Insuring against mounting costs

Medical indemnity insurance, also referred to as medical malpractice or medical liability insurance, serves as a vital safety net for healthcare professionals, shielding them against claims that may arise due to malpractice or negligence.

In the high-stakes world of healthcare, even the most dedicated and skilled practitioners can find themselves facing legal challenges. Whether a claim is well-founded or not, the burden of legal defence costs can be overwhelming.

Medical indemnity insurance can take some of the weight off by covering the costs of legal defence and compensation, as detailed in your policy wording.

Meeting legal requirements

The importance of medical malpractice insurance is underscored by legal requirement in the UK. It’s mandatory for anyone in the healthcare field who could cause harm or injury while fulfilling their professional duties to have adequate insurance or indemnity arrangements in place. This means that healthcare providers should be better equipped to face unforeseen circumstances when they arise.

There’s a lot to be said, too, for the peace of mind medical indemnity insurance brings to doctors while saving lives and providing quality care. By safeguarding their careers and financial wellbeing, this insurance provides a protective shield, allowing them to focus on what truly matters – delivering top-notch care to their patients.

If you’d like to discuss your options with a leading medical indemnity broker, please get in touch by calling +44 117 205 1820 or emailing [email protected].