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Clinical negligence insurer DAS UK comments on Jonathan Zimmern's recent case ABC v St George's

Since the vast majority of Fieldfisher's medical negligence cases are pursued under a Conditional Fee Agreement (CFA), also known as 'no win, no fee', we obtain an insurance policy on each case on behalf of our clients to protect them from certain costs if they lose.

Jane Harper, ATE Technician, DAS UK Group looks at the ABC v St George’s Healthcare NHS Foundation Trust case which will have huge repercussions for clinical negligence. DAS UK provided Fieldfisher, the claimant’s solicitors, with its ATE Clinical Negligence product to help fund the case.

“Earlier this year we saw the judgment of ABC v St George’s Healthcare NHS Foundation Trust and others, a high profile and widely debated clinical negligence case concerning whether there was a duty to disclose a patient’s hereditary disease to his child.

The factual background was one of great family tragedy. The claimant was ABC and the claimant’s father had shot and killed her mother. The father was convicted of manslaughter by reason of diminished responsibility and made subject to a hospital order under the Mental Health Act. The father received care from a multidisciplinary team. Despite the impact of her father’s offence, the claimant continued to be involved in his care and attended family therapy sessions.

In 2009, ABC informed her father that she was pregnant. During the father’s detention he was diagnosed with Huntington’s disease, meaning his daughters each had a 50% chance of having inherited the disease. Huntington’s disease is a condition that progressively stops part of the brain working properly. The brain gradually deteriorates over time and is generally fatal after a period of up to 20 years. ABC brought a claim against three NHS Trusts. She argued that they had breached a duty of care owed to her and / or acted contrary to her rights under Article 8 of the European Convention on Human Rights. The allegation being that they failed to alert her to the risk she had inherited the gene for Huntington disease in time for her to terminate her pregnancy.

Within the High Court Judgment Mrs Justice Yip, considered four questions:

  • Did any or all of the defendants owe ABC a duty of care?
  • If so, was there a duty to disclose to ABC the Huntington’s diagnosis?
  • Did the defendants breach this duty in not disclosing the diagnosis to her?
  • If there was a breach, did she suffer loss and damages by not having the opportunity to obtain genetic testing and terminate her pregnancy?

The case is an important one as, for the first time, the court has recognised that clinicians can owe legal duties of care to people other than their patients.  Unfortunately, the claim failed on the particular facts but Mrs Justice Yip's decision means that clinicians now have a legal duty to consider whether to disclose confidential information about their patient to certain third parties, where that information reveals a serious risk to the third party.  She described this as a duty to perform a detailed balancing exercise between the interests of the third party with whom the medical professional has a sufficiently close relationship and the original patient’s interest in confidentiality.

Mrs Justice Yip concluded at paragraphs 188 and 189 that: ‘… it is fair, just and reasonable to impose on the second defendant a legal duty to the claimant to balance her interest in being informed of her genetic risk against her father’s interest in preserving confidentiality in relation to his diagnosis and the public interest in maintaining medical confidentiality generally….The scope of the duty extends not only to conducting the necessary balancing exercise but also to acting in accordance with its outcome.  It would be irrational to hold otherwise.  If a doctor is under a duty to perform tests, there is no point in those tests being completed but no action being taken in response.  The same is true of the balancing exercise.’

Furthermore, Mrs Justice Yip did not limit this duty to just cases involving genetic information, but rather to any kind of health confidentiality. This case therefore, has significant implications on UK clinicians in a range of areas. It has opened the door for other cases to succeed based on their particular facts where the balancing exercise would fall in favour of disclosure and a failure to do so might give rise to an action.

Importantly for practitioners, though in recognising a legal duty in these terms, the law is not imposing a new obligation on doctors or hospital trusts.  Rather, the legal duty recognises and runs parallel to the professional duty to undertake a proper balancing exercise which all the experts in this case agreed already exists.

Jonathan Zimmern from Fieldfisher told us: ‘We are very disappointed that ABC did not succeed in her claim. However, this was a very important decision which has created a new legal duty of care. Whilst ABC is clearly very upset by the decision, the new duty of care should help to ensure that the interests of other people in similar situations will automatically be considered by doctors.

‘Both ABC and Fieldfisher are very grateful for DAS's support in this ground-breaking case. Although ABC lost her claim, it should in many respects be considered a victory as the judge found the new duty that we sought from the beginning. Without DAS UK's willingness to support difficult cases, we could not have proceeded. I do not think every ATE insurer would have agreed to work with us to take the case forward.’

Read more academic discussion of the case here

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