Breach of healthcare guidelines in clinical negligence claims – guidelines or tramlines?
This recent case demonstrates that guidelines are a practical tool to be used in conjunction with clinical judgement.
The recent case of Sanderson v Guy’s and St Thomas’ NHS Foundation Trust serves as an important reminder not to fall into the trap of automatically assuming a failure to follow a guideline is a breach of duty of care.
On 10 January 2020 the High Court gave judgment for the defendant NHS Trust in a case concerning a claimant who alleged a failure to follow NICE Guidelines delayed her delivery, causing cerebral palsy.
The claim focused on the actions of one obstetrician who had been called to review the claimant’s mother in the second stage of labour. There were concerns about a pathological cardiotocograph trace (“CTG”). The obstetrician considered that there was no indication to deliver the claimant urgently and decided to first check fetal well-being by obtaining a sample of fetal blood. She left the room to obtain the fetal blood sampling kit but was called back by the midwife following a long period of bradycardia on the CTG. The obstetrician then decided an urgent delivery was required and elected to proceed with a trial of an instrumental delivery, this being successful on the second attempt. The claimant was born in a poor condition and had suffered brain damage due to a period of acute hypoxia in the minutes before birth.
The claimant’s primary allegation was that it was inappropriate to perform a fetal blood sample when the CTG indicated acute fetal compromise. The claimant’s expert relied on NICE Guidelines concerning fetal monitoring which stated that, where the fetus is acutely compromised, fetal blood sampling should not be undertaken and the baby should be delivered urgently. Their case was that this alleged breach of duty caused a delay in delivery. The defendant’s expert highlighted that the same guidelines advised elsewhere that, where there is a pathological CTG, conservative measures, including fetal blood sampling, should be undertaken where appropriate or feasible. It said that only in circumstances in which fetal blood sampling is not possible or appropriate is expedited delivery recommended. The defendant’s expert made the point that if the NICE Guidelines were interpreted in the strict way advised by the claimant’s expert, many unnecessary caesarean sections would be performed in maternity units across the country.
The court dismissed the claim, finding that the claimant’s expert was dogmatic and his interpretation of the NICE Guidelines was “highly selective” and “problematic” in overlooking the apparent contradiction within the Guidelines. The claimant’s expert had appeared to suggest that NICE Guidelines are intended to provide the practitioner with the complete description of appropriate management in the presence of a particular trace feature, and on this expert’s interpretation of those guidelines, the management had been unreasonable. However, the court was persuaded by the defendant expert’s explanation that the NICE Guidelines are a practical tool to be used in conjunction with clinical judgement. They do not provide a substitute for clinical judgement but must be interpreted by the clinician and then applied in the light of that judgement. The claimant expert’s reliance on the NICE Guidelines was misplaced. In this context, it was held that it was reasonable for the obstetrician to have elected to perform a fetal blood sample, this being a logical decision that would be supported by a reasonable and responsible body of obstetricians.
This case serves as an important reminder that guidelines are just that – a practical tool to be used in conjunction with clinical judgement. When faced with a claim alleging a breach of duty of care due to a failure to follow a policy or guideline, it is important to remind expert witnesses that a breach of a guideline or local policy does not necessarily mean the court will automatically conclude there was a breach of duty of care. The usual test still applies – did the clinician act in accordance with a responsible and logical body of expert opinion? The expert, and perhaps factual witnesses too, should be asked to consider issues such as:
- How clinical judgement comes into play in that particular case?
- Whether there are accepted variables in which it would be reasonable not to follow the guideline – are there some clinicians who would depart from the guideline and if so, why?
- Whether the claimant is interpreting the guideline in a strict, narrow or too precise a way?
- Whether the guidelines reflect what happens in the “real world”?
- Whether there are any other guidelines or articles which support the treatment provided?
Of course, it is important for all clinicians to use guidelines as a tool to aid their decision making and any decision to depart from guidelines should be taken with caution. When such a decision is made it is important for the reasoning to be clearly documented. By doing so, claimants may think twice before alleging negligence solely due to a failure to follow guidelines.