This article originally appeared in Issue 3 (November 2019).
It is trite law that if a doctor acts in accordance with a responsible body of medical opinion at the time of the treatment, their actions are not negligent, even if later developments in knowledge would render those actions negligent in the present day.
The opposite scenario is much rarer however. What happens if the actions of a doctor were not in accordance with a responsible body of medical opinion at the time of the treatment, but later developments vindicate their actions, such that by the time of trial their actions would be in accordance with a responsible body of medical opinion?
This unusual point was raised in the judgment of Stewart J in Jones which only concerned breach of duty. The Claimant’s central allegation on breach was that in 1995 her mother was negligently administered Nifedipine, a drug which suppresses or postpones pre-term labour. As to causation, it was alleged that the administration of Nifedipine was followed by a fall in maternal blood pressure, leading to a hypoxic episode which caused periventricular leukomalacia.
The Claimant’s expert, Mr Hare, gave evidence that in 1995 it would have been negligent to administer Nifedipine as there was insufficient evidence to justify its use whereas the Defendant’s expert, Professor Thornton, gave evidence that in 1995 it was not negligent to administer Nifedipine. It was common ground that by 2002 it was not negligent to administer Nifedipine.
Thus, as Stewart J commented in :
“…In clinical negligence cases the question is often whether a clinician kept up with advancements in treatment/knowledge, and whether s/he should be held in breach of duty for seeing matters through the eyes of a clinicians at the time of the alleged negligence. This case is the opposite. The question in effect is whether the clinicians were ahead of their time in prescribing a drug about which it is alleged insufficient was known to prescribe it in late 1995, but which, seen through the eyes of clinicians from (at least) 2002 onwards, would have been an entirely appropriate treatment. This is despite the fact that then, as now, it remains unlicensed for the purpose for which it is used and there have still been no convincing double-blind studies or further primary research. Though the claim, when so analysed, may seem strange, yet it is an entirely logical proposition. I shall consider the claim by looking at the state of knowledge in November 1995.”
As made clear, the judge went on to consider the claim through the state of knowledge in November 1995 and he ultimately concluded at  that it was not negligent to administer Nifedipine in 1995.
In an epilogue at  to  Stewart J noted:
“I have previously stated in this judgment that I shall try the issue of the prescription of Nifedipine as a tocolytic drug by the standards of November 1995, not subsequently. This accords with the traditionally understanding of the authorities. On that basis I have found for the Defendant. However, there were brief submissions by Mr Moon QC that there is nothing in the Bolitho test that requires me to do this. If a doctor who would have been held liable in 1995 for breach of duty in prescribing a drug whose use was not accepted as appropriate by a responsible body of practitioners is subsequently vindicated, such that a doctor prescribing the same drug in 2002 would not be in breach of duty because of changes of opinion in the profession, should the 1995 doctor be held to be negligent in a trial taking place after 2002? The point has not seemingly arisen before. Mr Sweeting QC submitted that a Claimant is entitled to be treated by reference to the standards at the time of treatment.
It is not necessary for me to decide the point and I do not do so, leaving it for consideration of a higher court if and when it arises.”
Stewart J effectively avoided having to decide this interesting issue in Jones as he concluded, in accordance with ordinary principles, that the Claimant’s treatment was not negligent by standards in 1995. However, the question of what happens where treatment is negligent by past standards but has subsequently been shown to be correct later is fascinating and it is notable that it has not yet arisen for consideration.
On the one hand, it may appear counterintuitive for a Claimant to succeed where the treatment complained of is subsequently shown to be correct and/or responsible. On the other hand, it might be said that permitting Defendants to succeed in such a scenario could legitimise the actions of ‘maverick’ doctors who act irresponsibly and, in extreme cases, treat their patients as guinea pigs. This consideration may hold particular weight in light of developing attitudes towards consent and the patient/doctor relationship.
What will happen remains to be seen.