Chapter 3 - Errors and fault
Amy is in labour, and there are complications with her pregnancy. The treatment team have two options: perform a caesarean section or try to proceed with a vaginal birth and use forceps to help deliver the child if necessary. The treatment team are minded to try a vaginal delivery, but are concerned that there is a risk that the use of forceps might injure the baby and ask Marc, a solicitor at the firm used by the hospital (Rowlett McGuinness LLP) and Simon, the hospital ethicist, for their opinions. They tell them that the risk of harm to the baby is greater with the forceps delivery than with a caesarean, but that despite this there are some doctors who would opt for this method as a vaginal birth is seen as better by some, particularly the consultant in charge of the treatment team who is said to have rather traditional views on childbirth.
Marc tells the treatment team that, should the baby be injured and suffer brain damage as a result of too much force being used with the forceps (such as occurred in Whitehouse v Jordan), then in the event of litigation claiming negligence a court would use the Bolitho (see p. 52) test to assess the reasonableness of the decision. It would ask, first, whether there was a body of medical opinion that might have opted for trying a vaginal delivery and, if there was, whether the evidence from that body was able to withstand logical analysis. He makes it clear that the ‘lack of logical analysis’ must go beyond merely being the non-preferred option of the court, but must be essentially illogical. That said, the existence of a less risky option in the form of a caesarean would certainly be something that a court would have to take seriously – and it would not matter that the consultant in charge who preferred vaginal delivery was eminent. Marc advises that the caesarean would be the safer option at this stage. Simon queries whether Amy has been involved in the decision-making process. He feels that if the options, risks and benefits are put to her, she would be best-placed to take a decision because, after all, this is about her and her baby. In the event that Amy can no longer be involved in the process, the treatment team should opt for the manifestly less risky procedure (the caesarean section) over the risky procedure (the forceps) unless Amy has previously made it known that she also has a strong preference that a traditional vaginal birth take place. In any case, it certainly does not matter whether the consultant has traditional views or not, as the views of the patient are decisive in making treatment decisions here.
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