Introduction
For over 20 years I have written extensively in the area of personal injury and medical negligence. I am the author of ‘A Guide to Consent in Clinical Negligence Post-Montgomery’ published by Law Brief Publishing (2018), and I am contributing editor for Green’s Reparation Bulletin on Medical Law. I also wrote the initial chapter on Medical Law and Human Rights in Greens Human Rights Loosleaf and updated that chapter for many years. I am Head of Medical Negligence for The Pan European Organisation of Personal Injury Lawyers (PEOPIL) .
Published book
L. Sutherland QC: ‘A Guide to Consent in Clinical Negligence Post-Montgomery’, Law Brief Publishing, 2018
Published Articles
Does the Bolam Test apply to disputes of fact between experts? Reparation Bulletin 2020 , 152, February 2020
Medical Negligence roundup. Reparation Bulletin 2019
The quality of evidence of normal practice in information disclosure cases post Montgomery. Reparation Bulletin 2019, 150, 2-4
Comments on the Supreme Court of Australian Capital territory decision in Kempster v Healthscope Operations Pty Ltd on whether a nurse who claimed to have used standard or invariable practice had failed to adopt the standard of care to be expected of a nurse in that position and the evidential weight to be attached to such assertions.
Is coincidental causation sufficient to found liability? Reparation Bulletin 2019, 147, 4-6
Comments on the case of Khan v MNX (CA) on whether a general practitioner who failed to establish that a patient was a carrier of the haemophilia gene was liable in law for the child’s autism as well as haemophilia where the mother would not have become pregnant if she knew she was a carrier. Discussed the ‘scope of liability’ test and its application in the UK.
Montgomery: Myths, Misconceptions and Misunderstandings Journal of Personal Injury Law Issue 3 2019
Comments on the arguments made in Montgomery v Lanarkshire Health Board in the Supreme Court and the implications of the decision with an analysis of some of the decisions since the case was decided.
The Bolam and Hunter v Hanley tests following Montgomery Reparation Bulletin 2018, 144, 5-8
Comments on AH v Greater Glasgow Health Board on whether doctors failed in their duty of care by failing to advise on the risks inherent in the use of vaginal mesh products. Considers the impact of Bolam v Friern Hospital Management Committee and Hunter v Hanley and whether the cases still apply to consent cases.
LT v Lothian NHS Health Board Reparation Bulletin 2018, 143 5-8
Brain damage during birth case where the allegation was the Registrar negligently misinterpreted the CTG trace and failed to expedite the birth. Considers the issue of conflicting expert evidence, impartiality, disclosure and consent.
Causation in wrongful birth cases Reparation Bulletin 2018, 140, 6-8
Considers the case of Meadows v Khan (QBD) on whether there was liability for losses sustained by a woman who had a child with both autism and haemophilia when the woman had only sought to avoid having a child with haemophilia.
AW as legal representative of LW v Greater Glasgow Health Board Reparation Bulletin 2017, 138, 6-8
Comments on AW v Greater Glasgow Health Board in which a reclaiming motion was refused in relation to the dismissal of an action against 2 midwives in relation to damage suffered by a child pre -delivery.
Malone v Greater Glasgow and Clyde Health Board Reparation Bulletin 2017, 135, 5-7
Comment on the Outer House decision in Malone which was an action for damages against a Health Board in respect of the clinical negligence on the part of a Haematologist which resulted on the claimant suffering a stroke.
The introduction of consent cases to existing cases following Montgomery Reparation Bulletin 2016, 133, 3-6
Considers with reference to the case law the position on introducing a consent case late in a medical negligence proceedings in the aftermath of Montgomery v Lanarkshire Health Board.
KR v Lanarkshire Health Board Reparation Bulletin 2016, 132, 6-8
Examines the Outer House ruling in KR v Lanarkshire Health Board where the issue was whether the Registrar managing the labour was under a duty to make the patient aware of the material risks involved in her labour in accordance with the principles found in Montgomery v Lanarkshire Health Board and offer a caesarean section or assisted delivery.
Medical Negligence Update Reparation Bulletin 2016, 131, 6-8
Comments on the Privy Council ruling in Williams v Bermuda Hospitals Board the Queen’s bench ruling in Tasmin v Barts Health NHS Trust and the QBD ruling in SXX v Liverpool Women’s NHS Foundation Trust.
Consent to medical treatment and provision of inaccurate information in risks Reparation Bulletin 2015, 127, 5-7
Examines the Queen’s Bench Division ruling in Connolly v Croydon Health Services NHS Trust on whether a hospital failed to obtain informed consent to a procedure and whether its continuing treatment of the patient after she had withdrawn her consent invalidated the lawfulness of treatment. Considers whether the right to withdraw consent can be overruled in life threatening situations.
Consent post Montgomery Reparation Bulletin 2015, 126, 6-8
Comments on the Queen’s Bench Division ruling in FM v Ipswich Hospital NHS Trust on whether to award damages for clinical negligence which resulted in brachial plexus injury during childbirth on the ground that the hospital failed to discuss the risks of possible shoulder dystocia with the mother prior to labour.
Causation issues midwifery negligence Reparation Bulletin 2015, 125, 6-8
Assesses the Outer House ruling in W v Greater Glasgow Health Board on whether the failure by midwives to refer to hospital a woman who was 20 weeks’ pregnant and displaying symptoms of pre-eclampsia had: (1) caused a delay in the birth of her son; and (2) if so, that delay had caused her son to develop a brain injury.
Causation issues in consent cases: where are we now following the decision of the Supreme Court in Montgomery? Reparation Bulletin 2015, 124, 3-6
Comments on the Supreme Court judgment in Montgomery v Lanarkshire Health Board on consent and causation in a clinical negligence claim, if a baby suffered shoulder dystocia during birth and the mother asserted that she would have asked for a caesarean section if she had been advised about the risk. Considers whether the test of causation should be subjective, or objective based on what a reasonable patient would have done.
The law finally reflects good professional practice Reparation Bulletin 2015, 123, 4-8
Reports on the landmark Supreme Court judgment in Montgomery v Lanarkshire Health Board on whether an obstetrician should have informed a pregnant woman of the risk of shoulder dystocia occurring in a vaginal delivery in her case and the further risk of the baby being born with brain damage. Highlights the significance of the case in developing the law on consent to medical treatment, with particular reference to the legal status of General Medical Council guidance.
Causation in Consent Cases – Where are we now? Rep. B. 2015, 124, 3-6.
C (By his Father and Litigation Friend ‘F’) v North Cumbrian University Hospitals NHS Trust Rep. B 2014, 121(Dec), 6-8
An analysis of the application of the Bolitho principles to expert evidence (November 2014).
J.M. as legal representative of RM v Highland Health Board Rep. B, 2014, 117 (Apr) 7-8
Bolitho in the CP case.
Alexander Glancy v The Southern General Hospital NHS Trust – Consent and emergency surgery Rep. B. 2013, 113 (Aug), 24.
Robin Donald and Others v Ayrshire & Arran Health Board and Others Rep.B 2013, 112 (Jun) 7-8
GP negligence and failure to diagnose DVT (May 2013).
Helen McGlone v Greater Glasgow Health Board (January 2013) – Rep. B. 2017, 135, 5-7
Failure to diagnose cancer and causation issues.
Hannigan v Lanarkshire Acute Hospitals NHS Trust Rep.B 2012, 109 (Dec) 6-7
Analysis of competing expert evidence and the application of Bolitho in a total hysterectomy.
Marjory Campbell v Borders Health Board Rep. B 2011, 100 (Jun), 7-8
An analysis of the concept of direct responsibility of health boards.
Nicolas Taaffe v East of England Ambulance Service NHS Trust (May 2012) Medical Negligence Rep. B. 2012, 106(May), 7-8.
Recovery of Damages for a ‘seriously handicapped’ child – The Case of Rand
The blessing of the unplanned pregnancy – MacFarlane in the House of Lords (2000) Rep. B. 2000, 33(May), 5-7.
Multipliers Multiplied – Wells and McNulty Rep. B. 1999, 25(Jan), 4-7.
Failed Sterilisation (1995) Rep. B. 1995, 3(May), 4-7.
The Brain Damaged Baby Rep. B. 1995, 2(Mar), 3-6.
“No Fishing” Recovery of Medical Records pre litigation” Rep. B. 1995, 1(Feb), 3-5.
A Single Standard of Care Rep. B. 1995, 6(Nov), 11-12.
A relationship of Mutual Trust Is Pregnancy a Personal Injury? Rep. B. 1995, 5(Sep), 4-6