Mrs Rana al Hamwi v Dr Fiona Johnston (2) The North West London Hospitals NHS Trust

Date: November 20, 2007

Expertise: Clinical Negligence

18 February 2005 Mr Justice Simon

1. In this case the Claimant claimed damages in respect of the birth of her gravely disabled son, and the costs of bringing him up from her GP, Dr Fiona Johnston, and/or from the Trust responsible for the Central Middlesex Hospital and for the provision of obstetric services at the Hospital.

2. The basis of the Claimant’s claim against her GP was that she had failed to refer the Claimant promptly to an obstetrician following her attendance at her GP when she 11 weeks and 2 days pregnant, thereby denying the Claimant the opportunity of a diagnostic test and the time to avail herself of that opportunity. The GP had accepted that the delay of one month in referring the Claimant to an obstetrician was in breach of her duty to the Claimant.

3. As against the Trust, the Claimant alleged that their Consultant Obstetrician, Miss Kerslake, failed properly to counsel the Claimant and explain the risks of amniocentesis, with the result that the Claimant declined to have the test, rather than accepting it as she otherwise would have done. The Medical Notes revealed that at the beginning of the consultation the Claimant had said that she wanted an amniocentesis.

4. The Claimant’s case against the Trust was that either:

(1) she was given inaccurate or inadequate information about the risks of the amniocentesis test, or

(2) the information was given in an unbalanced way, or

(3) it should have been apparent that the Claimant had misunderstood the risks and Miss Kerslake should have corrected the misunderstanding.

5. As to the first allegation, this was unusual compared to other cases in that the Claimant was complaining that the risks had been exaggerated rather than not mentioned. Miss Kerslake had used a Checklist (which included the information to be given to patients regarding Amniocentesis) during her consultation which acted as an aide memoire to her and was a contemporaneous note of the counselling that was given. Mr Justice Simon described this Checklist as “powerful evidence” that the Claimant was given appropriate counselling on Amniocentesis; he found that Miss Kerslake had imparted accurate information during the consultation and that, in particular, she conveyed the necessary information as to the risks inherent in the Amniocentesis test including the information that the risk of miscarriage was 1 in 100. He also made a finding that the Claimant had been given an information leaflet regarding amniocentesis which referred to the risk of miscarriage being 1 in 100.

6. Further, Mr Justice Simon rejected the second allegation that the counselling had been given in an unbalanced way. He found that Miss Kerslake was able to give and did give “accurate, statistical and factual information”. Mr Justice Simon was assisted by the evidence of the midwife at the Hospital who had attended to the Claimant; the midwife had not detected any difference between the uptake of amniocentesis testing of Miss Kerslake’s patients and the patients of other obstetricians.

7. As for the third allegation, which had been made at a late stage in the proceedings, that the Claimant had misunderstood the risks and that Miss Kerslake should have corrected the misunderstanding, Mr Justice Simon made some helpful comments regarding the obligations of clinicians. He rejected the suggestion that the clinician’s duty is to ensure that the information given to the patient is understood, and commented as follows: “Clinicians should take reasonable and appropriate steps to satisfy themselves that the patient has understood the information which has been provided; but the obligation does not extend to ensuring that the patient has understood”. Mr Justice Simon did not accept that the Claimant had misunderstood the counselling, and found that Miss Kerslake’s approach had been appropriate.

8. As to why the Claimant changed her mind, Mr Justice Simon stated that it was not necessary for the determination of the issue of liability to decide that question. The Claimant’s decision may have been affected by a number of factors or as Miss Kerslake said, “people do change their minds”.

9. A further issue in the case was the Claimant’s religious beliefs and how, if at all, this would have impacted on her decision as to whether or not to have a termination. Mr Justice Simon accepted the Claimant’s evidence that she would have undergone a termination if her baby had been diagnosed (as a result of the test) as suffering from a genetic abnormality.

10. The issue between the Claimant and her GP was whether the delayed referral caused loss and damage. Mr Justice Simon found that if the Claimant had been referred promptly to the Hospital it is likely she would have been seen by Miss Kerslake and that she would have been counselled as to Amniocentesis rather than be referred to Queen Charlotte’s Hospital. Further, that the counselling would have followed substantially the same course and with the same result. Mr Justice Simon noted that if, contrary to his findings, the Claimant had been referred to Queen Charlotte’s Hospital, he would not necessarily have accepted that the outcome would have been the same.

11. The Claimant application for permission to appeal as against the GP was rejected by Mr Justice Simon.

12. This judgment is important as:

(a) it demonstrates the usefulness of checklists when counselling patients with regard to proposed treatment, both as an aide memoire to clinicians and as a contemporaneous note of the counselling given;

(b)it provides guidance to clinicians as to the extent of their duty to assist patients in understanding the counselling given.

Andrew Collender QC and Anastasia Karseras acted on behalf of the Trust. Anastsia continues tto be an active member of the Clinical