AH against Greater Glasgow Health Board and Johnson & Johnson Medical Ltd [2018] CSOH 57 (06 January 2018)

AH against Greater Glasgow Health Board and Johnson & Johnson Medical Ltd [2018] CSOH 57 (06 January 2018)

The court held that, following Montgomery, doctors are only obliged to advise patients of reasonable alternative treatments as judged by competent clinical standards (Bolam/Hunter v Hanley), not by what a patient might subjectively consider reasonable. The pursuers' pleadings failed to specify which alternatives would have been chosen or to anchor knowledge of risks to the doctors at the relevant time. Accordingly, only the case based on failure to advise of risks (not alternatives) could proceed against the doctors. Generic or insufficiently specified averments were excluded from probation. The common law case against manufacturers was not insisted upon; only the Consumer Protection Act...

Citation
[2018] CSOH 57
Parties
Pursuer: AH; First Defender: Greater Glasgow Health Board; Second Defender: Johnson & Johnson Medical Limited; Pursuer: SR; Second Defender: Lothian Health Board; Pursuer: YT; Second Defender: Dr Alastair Milne; Third Defender: Cousin Biotech SAS; Pursuer: EN; Second Defender: American Medical Systems Inc / Astoria Women's Health LLC; Third Defender: American Medical Systems UK Limited
Jurisdiction
Scotland
Judgment Date
06 January 2018
Procedural Posture
Personal Injury / Product Liability (lead Cases, Court of Session, Scotland) / Opinion on Procedure Roll (pre Proof, Debate on Relevancy and Specification)
Outcome
Actions against doctors allowed to proceed only on alleged failure to advise of risks, not alternatives; common law case against manufacturers not insisted upon; Consumer Protection Act claims proceed; insufficiently specified averments excluded from probation; time-bar issues reserved.
Legal Topics
Informed Consent, Duty of Care, Breach of Duty, Causation, Consumer Protection Act 1987, Limitation/prescription, Pleading Standards, Montgomery V Lanarkshire Health Board, Bolam Test, Hunter V Hanley Test
Medical Negligence Product Liability Personal Injury Consumer Protection Informed Consent Duty of Care Breach of Duty Causation +6 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 5 Authorities cited 16 Party arguments 2
Sign in to unlock

Parties

AH

Pursuer

Greater Glasgow Health Board

First Defender

Johnson & Johnson Medical Limited

Second Defender

SR

Pursuer

Lothian Health Board

Second Defender

YT

Pursuer

Dr Alastair Milne

Second Defender

Cousin Biotech SAS

Third Defender

EN

Pursuer

American Medical Systems Inc / Astoria Women's Health LLC

Second Defender

American Medical Systems UK Limited

Third Defender

Procedural Posture

Personal Injury / Product Liability (lead Cases, Court of Session, Scotland) / Opinion on Procedure Roll (pre Proof, Debate on Relevancy and Specification)

Legal Issues

  1. 1 Whether treating doctors breached duty of care by failing to advise of risks and reasonable alternatives (Montgomery issue)
  2. 2 Whether pleadings against doctors and manufacturers are sufficiently specified
  3. 3 Whether manufacturers are liable under Consumer Protection Act 1987

Ratio Decidendi

The court held that, following Montgomery, doctors are only obliged to advise patients of reasonable alternative treatments as judged by competent clinical standards (Bolam/Hunter v Hanley), not by what a patient might subjectively consider reasonable. The pursuers' pleadings failed to specify which alternatives would have been chosen or to anchor knowledge of risks to the doctors at the relevant time. Accordingly, only the case based on failure to advise of risks (not alternatives) could proceed against the doctors. Generic or insufficiently specified averments were excluded from probation. The common law case against manufacturers was not insisted upon; only the Consumer Protection Act...

Court Disposition

Actions against doctors allowed to proceed only on alleged failure to advise of risks, not alternatives; common law case against manufacturers not insisted upon; Consumer Protection Act claims proceed; insufficiently specified averments excluded from probation; time-bar issues reserved.

Orders

  • Actions against doctors proceed on risk advice only, not alternatives.
  • Common law claims against manufacturers dismissed/not insisted upon.