AH AGAINST GREATER GLASGOW HEALTH BOARD AND ANOTHER; SR AGAINST JOHNSON AND JOHNSON MEDICAL LTD AND ANOTHER; YT AGAINST SPIRE HEALTHCARE LIMITED AND OTHERS; AND EN AGAINST GREATER GLASGOW HEALTH BOARD AND OTHERS [2018] ScotCS CSOH_57 (01 June 2018)

AH AGAINST GREATER GLASGOW HEALTH BOARD AND ANOTHER; SR AGAINST JOHNSON AND JOHNSON MEDICAL LTD AND ANOTHER; YT AGAINST SPIRE HEALTHCARE LIMITED AND OTHERS; AND EN AGAINST GREATER GLASGOW HEALTH BOARD AND OTHERS [2018] ScotCS CSOH_57 (01 June 2018)

Doctors' duty to advise of risks is limited to risks associated with the procedure and reasonable alternatives as determined by clinical judgment; generic pleadings and lack of specification regarding alternative treatments and doctors' knowledge of risks are insufficient; claims against manufacturers proceed only under Consumer Protection Act 1987; time-bar issues require further factual determination; actions against doctors proceed only on alleged breach of duty to advise of risks, not alternatives.

Citation
[2018] CSOH 57
Parties
Pursuer: AH; First Defender: Greater Glasgow Health Board; Second Defender: Johnson & Johnson Medical Limited; Pursuer: SR; First Defender: Johnson & Johnson Medical Limited; Second Defender: Lothian Health Board; Pursuer: YT; Second Defender: Dr Alastair Milne; Third Defender: Cousin Biotech SAS; Pursuer: EN; Second Defender: Astoria Women’s Health LLC; Third Defender: American Medical Systems UK Limited
Jurisdiction
Scotland
Judgment Date
06 January 2018
Procedural Posture
Personal Injury (medical Negligence and Product Liability) / Opinion on Procedure Roll (pre Proof, Lead Cases)
Outcome
Actions against doctors allowed to proceed only on breach of duty to advise of risks; actions against manufacturers proceed under Consumer Protection Act 1987; pleadings regarding alternative treatments and doctors' knowledge excluded from probation; time-bar pleas reserved for further determination.
Legal Topics
Informed Consent, Duty of Care, Alternative Treatments, Defective Medical Devices, Consumer Protection Act 1987, Prescription and Limitation (scotland) Act 1973, Montgomery V Lanarkshire Health Board, Bolam Test, Hunter V Hanley, Time Bar
Medical Negligence Product Liability Personal Injury Consumer Protection Limitation and Prescription Informed Consent Duty of Care Alternative Treatments +7 more

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Parties

AH

Pursuer

Greater Glasgow Health Board

First Defender

Johnson & Johnson Medical Limited

Second Defender

SR

Pursuer

Johnson & Johnson Medical Limited

First Defender

Lothian Health Board

Second Defender

YT

Pursuer

Dr Alastair Milne

Second Defender

Cousin Biotech SAS

Third Defender

EN

Pursuer

Astoria Women’s Health LLC

Second Defender

American Medical Systems UK Limited

Third Defender

Procedural Posture

Personal Injury (medical Negligence and Product Liability) / Opinion on Procedure Roll (pre Proof, Lead Cases)

Legal Issues

  1. 1 Whether treating doctors breached duty of care by failing to advise of risks and reasonable alternatives for pelvic mesh products
  2. 2 Whether manufacturers are liable under Consumer Protection Act 1987 for defective mesh products
  3. 3 Whether claims are time-barred under Prescription and Limitation (Scotland) Act 1973

Ratio Decidendi

Doctors' duty to advise of risks is limited to risks associated with the procedure and reasonable alternatives as determined by clinical judgment; generic pleadings and lack of specification regarding alternative treatments and doctors' knowledge of risks are insufficient; claims against manufacturers proceed only under Consumer Protection Act 1987; time-bar issues require further factual determination; actions against doctors proceed only on alleged breach of duty to advise of risks, not alternatives.

Court Disposition

Actions against doctors allowed to proceed only on breach of duty to advise of risks; actions against manufacturers proceed under Consumer Protection Act 1987; pleadings regarding alternative treatments and doctors' knowledge excluded from probation; time-bar pleas reserved for further determination.

Orders

  • Actions against doctors limited to breach of duty to advise of risks.
  • Actions against manufacturers limited to Consumer Protection Act 1987 claims.