Sidaway V Bethlehem Royal Hospital Notes

Sidaway v Bethlehem Royal Hospital [1985] AC 871

House of Lords

Facts

C underwent an operation where there was an inherent small 2% risk that even if performed properly, might lead to spinal damage. C was unlucky and ended up severely disabled. C sued the hospital and the deceased surgeon. The surgeon had told C that there was a chance of disturbing a nerve and the consequences, he did not tell her about the possible damage to the spinal chord.

Held Lord Scarman (dis)

• The question whether or not the omission to warn constitutes a breach of the doctor's duty of care towards his patient

  • is to be determined not exclusively by reference to the current state of responsible and competent professional opinion and practice at the time, though both are, of course, relevant considerations.

    • It is wrong that medical judgment should determine whether there exists a duty to warn of risk and its scope as it would be strange to permit doctors to determine when a duty to warn arises.

• While it can’t be faulted on the Bolam test

  • his patient may have been deprived of the opportunity to exercise her right of decision in the light of information which she, had she received it,

    • might reasonably have considered to be of importance in making up her mind.

  • It is a sound and reasonable proposition that the doctor should be required to exercise care in respecting the patient's right of decision.

    • A patient may well have in mind circumstances, objectives, and values which he may reasonably not make known to the doctor

      • but which may lead him to a different decision from that suggested by a purely medical opinion.

• The doctor's duty can be seen, therefore, to be one which requires him not only to advise as to medical treatment

  • but also to provide his patient with the information needed so the patient can balance the medical advantages and risks alongside for example,

    • his family, business or social responsibilities of which the doctor may be only partially, if at all, informed

Held Lord Diplock (maj)

• The Bolam test is comprehensive and applicable to every aspect of the duty of care owed by a doctor to his patient in the exercise of his healing functions

  • In matters of diagnosis and the carrying out of treatment the court is not tempted to put itself in the surgeon's shoes;

    • it has to rely upon and evaluate expert evidence, remembering that it cannot give effect to any preference it may have for one responsible body of professional opinion over another,

      • provided it is satisfied by the expert evidence that both qualify as responsible bodies of medical opinion.

• Often the only effect that mention of risks can have on the patient's mind, if it has any at all,

  • can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient's interest to undergo.

  • To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have,

    • is as much an exercise of professional skill and...

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