Treatment as team effort: Medical and dental patient responsibility

Medical negligence claims by their very nature focus on perceived failures in medical care and alleged harm caused to patients as a result. The legal test for breach of duty was established in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 where McNair J stated that a clinician is not guilty of negligence if they have acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

It is almost 70 years since Bolam was decided and since that time there have been leaps and bounds in research and interest in the healthcare sphere, as well as unprecedented access to an unimaginable quantity of information, available instantly to the average patient.

Against this backdrop, the role of the patient and their responsibility cannot be ignored when considering a medical claim in respect of the treatment provided. 

This raises important questions about how patients engage with their own health and treatment. Healthcare is increasingly emphasising shared decision making and patient autonomy and responsibility. Patients need to be pro active in protecting their own health and engage with advice, appointments and prescriptions, to optimise their health and quality of life, as well as paying attention to safety netting instructions.

What does this mean for a negligence claim? 

Under the Law Reform (Contributory Negligence) Act 1945, damages may be reduced if a claimant’s actions materially contributed to the harm that was caused. 

This is relevant to a clinical setting, for example if a claimant ignores advice, or delays seeking treatment in the first place.

Traditionally the court has been reluctant to impose a duty on patients and findings of contributory negligence in medical claims has been rare. There are however a number of areas of practice which are particularly ripe for findings. 

Dentistry

In Rix v Wall (County Court, 2022; [2023] Med LR 607) concerned the long-term management of periodontal disease. The court accepted breaches in clinical care but also recognised that the claimant:

• Continued to smoke despite advice
• Failed to maintain oral hygiene
• Did not consistently follow oral hygiene instructions

Damages were reduced by 35% to reflect the claimant’s contribution, illustrating that patient responsibility and engagement can influence both liability and quantum in clinical negligence claims.

Medical management

In general practice or hospital settings, patients may fail to follow advice on medication adherence or follow up appointments. Patients may ignore discharge instructions about lifestyle changes or pro-active treatment follow up. 

When a patient presents with symptoms, it may be appropriate to discharge them with safety netting advice, but this relies on the patient following such advice.

Increasingly in chronic disease management and diseases affected by lifestyle choices, a patient could be seen to be ignoring clinician advice.

While the court has been historically cautious about attributing liability to patients in complex claims, and it is not always an attractive argument depending on the nature of the case, clear evidence of a patient’s contribution or lack of engagement/failure to follow up can often support arguments as to why settlement should be agreed at a significantly lower sum to that claimed, to reflect the claimant’s contribution to the outcome and the fact that there was a portion of the injury that the clinician was not responsible for.

In Pidgeon v Doncaster Health Authority [2002] EWCA Civ 1136, the claimant alleged that the defendant health authority had failed to diagnose and treat her breast cancer promptly. However, the court found that the claimant herself had contributed to the delay by failing to attend follow-up appointments and not seeking medical advice when symptoms persisted. As a result, the court held that the damages awarded should be reduced to reflect the claimant’s own responsibility for the harm suffered. Damages were reduced by 40% to reflect this. 

This case illustrates how the court may assess the conduct of patients in clinical negligence claims, recognising that a patient’s actions or omissions can have a material impact on the outcome and may lead to a finding of contributory negligence.

The courts’ approach has varied across other relevant case law:

P (Deceased), Re [2011] EWHC 1266 (QB)

• Missed breast cancer appointments. Letters sent to wrong address.
• Causation established, contributory negligence claim dismissed. 

Spencer v Hillingdon Hospital NHS Trust [2015] EWHC 1058 (QB)

• Failure to warn of DVT risk post-surgery; claimant did not seek advice for calf pain.
• No contributory negligence – the claimant’s actions were reasonable in light of Trust failure to advise and his understanding of symptoms, which he attributed to being immobile in recovery. 

Sims v MacLennan [2015] EWHC 2739 (QB)

• Fatal stroke claim. Alleged failure to follow up on high blood pressure in 2011. Had previously been told to get blood pressure checked in 2017.
• Defendant successfully defended liability, but judge indicated they would have made a reduction of 25% for contributory negligence had the claimant succeeded.   

Dalton v Southend University Hospital NHS Foundation Trust [2019] EWHC 832 (QB)

• Delayed diagnosis of breast cancer; original plea of contributory negligence for not seeking re-referral which was abandoned before trial.
• Judge criticised the plea, stating findings of contributory negligence in clinical negligence claims will be rare. 

Plant v El-Amir [2020] EWHC 2902 (QB)

• Eye surgery without adequate explanation of risks and likely outcomes. Allegations that the claimant had not complied with medication and acted against advice.
• The judge did not accept these allegations. 

Otu v Datta [2022] EWHC 2388 (KB)

• Fatal colon cancer claim, alleged failure to follow up about an appointment.
• Contributory negligence allegations dismissed – the patient had been of the view that it was a precautionary investigation and cancer had not been mentioned to them. The administrative duty of arranging an appointment lay with the defendant. 

The above illustrates that the court tend to set a high bar for establishing contributory negligence on the part of the claimant in medical negligence claims.

Other scenarios where patient responsibility may be relevant include failure to adhere to medication regimes, ignoring lifestyle advice, missing follow-up appointments, or refusing recommended investigations or treatment.

When investigating and instructing experts, the independent medico legal expert should be asked to comment explicitly on the impact of the patient’s behaviour on the outcome. 

Such considerations often unavoidably involve arguments around factual evidence – which can be many years after the fact and with conflicting recollections and accounts of the important information discussed. 

In an era of empowered patients and ever-increasing access to information, clinicians must remain vigilant in documenting advice, instructions, and patient interactions. Clear, comprehensive record keeping not only supports best practice but also provides crucial evidence when questions of responsibility arise. By maintaining robust records and communicating effectively, clinicians can help ensure that liability is fairly apportioned protecting themselves and supporting the principle that good healthcare is a shared responsibility.

Ultimately, clear records and open communication are the treating clinician’s best defence – because in modern healthcare, responsibility is a two-way street.