There is little doubt that the field of Neonatology has, and is,
undergoing vast clinical changes as underlying research in all its
background sciencesprogresses in leaps and bounds. One has
also to realise that this progress as in all medical disciplines is
multi-dimensional, and far beyond the simple clinical end-point
expression of progress in neonatal medicine, pharmacology and
surgery. Among these dimensions, the medico-legal aspect, looms
large and over the recent years, has loomed larger still.
Medico-legal neonatology itself comprises many subdivisions,
although here, the topic, deals with parental disclosure
of medical information. It is crucial to reflect on the potential
implications of failing to disclose sufficient inormation about any
proposed treatment to the parents. It is just as crucial to train new
neonatologists to aasume this stance de rigeur. For it does not come
instinctively. It is also somewhat demoralising to reflect on the
potential legal comebacks to the young neonatologist, brimming
with knowledge, enthusiasm and an irrepressible will to safe the
vulnerable neonate. Yet, one painful and disturbing lesson taught by
medico-legal medicine is that healers who are good, well informed,
updated, capable and sincere in their efforts to heal, may still have
to face Court to answer for medical negligence.
One way by which, such a neonatologist find himself facing
a negligence claim is through insufficient or absent disclosure of
information to the parents. I give one example based on the fact
that in preterm infants, systemic postnatal corticosteroid therapy
to prevent or treat chronic lung disease, though effective in
improving lung function, may cause Cerebral Palsy. This is a delicate
situation where the doctor may well feel that “doctor knows best”.
In truth doctor does know best but in 2017, this is not synonymous
to the fact that “hence he can administer what he wants.” The
paternalistic attitude is no longer condoned by the Courts, in any
aspect of medicine, if and when, a clinical situation reaches Court
on a basis of alleged liability of medical negligence. Hence, in this
situation, the neonatologist needs must explain to the parents why he needs to give steroids, what might happen if they are withheld, if
alternatives exist, what is the known relationship to cerebral palsy.
The increasing Court emphasis is on patient autonomy in
accepting or refuting treatment. To exert such autonomy, it is up to
the doctor to furnish the necessary details, as applied to the situation
at hand. In the case of the neonate, that the right of autonomy, falls
on the parents, within very wide and strong limits. The patient’s
right to disclosure has been enormously strangthened by the UK
High Court ruling in Montgomery v Lanarkshire Health Board,
2015. UKSC 11, where Bolam’s Law with regard to disclosure was
essentially demolished. Among the implications of this, is the fact
that a doctor can no longer quote similar peer action in his defence.
Now more than ever, the doctor must inform well his patient as
to what he is proposing. This may not be easy, especially in the
presence of limited ability to understand by the patient or limited
ability to portray facts by the doctor and various degrees of either
or both combined. Factors such as diminished intellect, limitations
of hearing or vision, language barriers, to mention but a few, may
compound a difficult situation into a herculean task.
My personal opinion is that the future will witness an increase
in litigation as based on alleged failure of disclosure of information.
I have on numerous occasions proposed that one aspect of medicolegal
medicine is a platform for medical education. This is a case
in point. Both under and post-gradiuate medical teaching need to
inculcate a mind-set which vitalises and challenges the student’s
ability to verbalise, communicate and defend his decision making.
This is not necessarily as simple as it sounds. It also demands an
education in ego-control. A medical specialist, sub-specialist or
super sub-specialist may not, understandably, take too kindly to
an illiterate person defiant attitude in refusing treatment for a
I think one is unjustified in borrowing the 1st Duke of
Wellington’s aphorism about publishing and being damned to suit
the modern medico-legal dangers and warn one and all : Disclose
or be damned!