It is not the case that obstetricians have to prove that 'any small flaw in the baby is not their fault'. The burden of proof regarding causation as well as fault rests on the plaintiff, to prove the case on the balance of probabilities. This is still a difficult burden to discharge.
The discharge of both burdens of proof depends upon expert- opinion evidence directed at the subjective circumstances of the plaintiff's care. The issue to be considered in Michelle Huberman's case will be whether or not in those circumstances Dr Gordon should have offered a then not widely available predictive blood test.
If the defendant can establish that there was a responsible body of opinion which would not have offered the predictive blood test at the time and in the circumstances of Mrs Huberman's case then the likelihood is that her claim will not succeed.
It is worth pointing out that this issue will be resolved by a judge who will have had the opportunity to hear expert evidence on both sides of the question and who will come to a judgment based on the strength of the obstetric evidence for both plaintiff and defendant put before the court.
As the Royal College of Physicians puts it in its study, Compensation for Adverse Consequences of Medical Intervention:
While judges must rule on whether the standard of care is acceptable in any given situation, what is reasonable care in the context of medical negligence is in practice determined by the medical profession itself . . . insofar as proof of negligence depends on agreed standards of medical practice, it is the medical profession itself which establishes these standards and informs the courts accordingly.
The present state of the law in the UK does not lay down the challenge to the medical profession widely perceived in the US.
D. I. B. BODY
Medical Negligence Special
Association of Personal
25 AugustReuse content