McCulloch & Ors v Forth Valley Health Board (Scotland)

Factual and Procedural Background

The Appellants (the widow and family of a deceased Patient) sought damages from the Respondent (“Company A”), alleging that negligence by Consultant Cardiologist Doctor A caused the Patient’s death on 7 April 2012. The Patient, aged 39, had twice been admitted to The Hospital in late March and early April 2012 with chest pain and other symptoms suggestive of pericarditis accompanied by pericardial effusion. During the second admission, on 3 April 2012, Doctor A reviewed an echocardiogram, clinically examined the Patient, and decided that prescribing non-steroidal anti-inflammatory drugs (“NSAIDs”) was not indicated because the Patient reported no pain and a clear diagnosis of pericarditis had not been established. The Patient was discharged on 6 April 2012 and died the next day from cardiac tamponade.

The Court of Session (Outer House) rejected the claim; the Inner House affirmed. The Supreme Court granted permission to appeal.

Legal Issues Presented

1. What legal test governs the identification of “reasonable alternative treatments” that a doctor must discuss with a patient: the professional practice test (Bolam/Hunter v Hanley) or the patient-centred standard articulated in Montgomery v Lanarkshire Health Board?
2. Whether, applying the correct test, Doctor A breached the duty of care by failing to advise the Patient about treatment with NSAIDs.
3. If breach were established, whether causation between the omission and death could be proved (issue rendered academic by the Court’s ruling on breach).

Arguments of the Parties

Appellants’ Arguments

• The duty defined in Montgomery extends to disclosure of any treatment alternative that a reasonable patient might consider significant, even if the treating doctor, supported by a responsible body of opinion, regards it as clinically unreasonable.
• The choice between treatments implicates patient autonomy; therefore the court, not the medical profession, sets the disclosure standard.
• If NSAIDs had been discussed, the Patient would have taken them and avoided death, satisfying causation.

Respondent’s Arguments

• Determining which options are “reasonable” is an exercise of clinical skill falling squarely within the Bolam/Hunter v Hanley professional practice test.
• Doctor A’s decision that NSAIDs were not reasonable—because the Patient had no pain and diagnosis remained uncertain—was endorsed by expert Doctor C, constituting a responsible body of opinion.
• Montgomery governs only the duty to disclose material risks of treatments already judged clinically reasonable; it does not oblige doctors to discuss options they justifiably deem inappropriate.

Table of Precedents Cited

Court's Reasoning and Analysis

The Supreme Court (Judge Hamblen and Judge Burrows delivering the judgment) held that deciding which treatments are “reasonable alternatives” is itself “an exercise of professional skill and judgment.” Consequently, the professional practice test applies: a doctor need not discuss a therapy that a responsible body of medical opinion would not consider appropriate. Once those reasonable alternatives are identified, Montgomery mandates disclosure of their material risks.

The Court gave seven reasons for adhering to the professional practice test, including: (1) fidelity to the skill/judgment versus advisory distinction in Montgomery; (2) consistency with the two-stage framework in Duce; (3) respect for medical expertise and existing GMC/BMA guidance; (4) avoidance of forcing doctors to recommend treatments they consider unsuitable; (5) prevention of overwhelming patients with irrelevant information; (6) maintenance of certainty and avoidance of defensive medicine; and (7) absence of any principled basis for extending Montgomery further.

Applying that analysis, Doctor A’s view that NSAIDs were not a reasonable option—because the Patient lacked pain and diagnosis was unclear—was shared by expert Doctor C. The expert opinion was neither unreasonable nor illogical; therefore, no breach occurred. Since breach failed, questions of causation were moot.

Holding and Implications

APPEAL DISMISSED.

Direct Effect: Judgment for the Respondent stands; no damages awarded to the Appellants.

Broader Implications: The decision re-affirms that the Bolam/Hunter v Hanley professional practice test governs identification of reasonable alternative treatments. Montgomery continues to regulate disclosure of risks, but it does not compel doctors to canvass treatments that fall outside the range a responsible body of professional opinion would regard as clinically appropriate. No new cause of action or extension of patient-autonomy doctrine was created.