18th Oct 2022

CLINICAL NEGLIGENCE CASE UPDATE OCTOBER 2022 – Whilst the paucity of reported cases over the summer and early autumn nearly persuaded me to defer my update, I found three cases worthy of my attention.

Watts v North Bristol NHS Trust [2022] EWHC 2048 (QB) (Bourne J) was an appeal in an informed consent case arising one of spinal fusion surgery. It was accepted that the surgery was carried out competently although it left the Claimant with significant pain and restricted mobility.

The essence of the Claimant’s case was that he did not give his informed consent to the treating physician for the surgery by providing information about any alternative procedures and that if such information had been provided, he would have elected to undergo the less invasive procedure of microdiscectomy rather than spinal fusion.

The trial judge found that that the treating surgeon had failed to identify the reasonable options together with their advantages and disadvantages. Whilst the reasonable option was microdiscectomy, he did not sufficiently advise on its pros and cons and did not present Mr Watts with any real option other than fusion. However, the claim failed because the Claimant failed to prove that if proper information was provided, he would have elected to undergo microdiscectomy rather than fusion. In his second witness statement, filed shortly before trial, he said that he would have preferred microdiscectomy because it was a less invasive and shorter procedure and because, if necessary, fusion could be attempted after microdiscectomy, whereas a fusion operation precluded a later attempt at microdiscectomy. When cross examined, Mr Watts rhetorically asked why anyone would opt to have a much bigger operation to achieve the same outcome and said that he would have taken the less risky, less invasive procedure.

The trial judge was not persuaded by the Claimant’s evidence. The two procedures are not designed to achieve the same outcome. Microdiscectomy treated nerve compression and thereby sought to relieve sciatic pain and some referred pain, but not “constitutional” back pain. It also did not correct “tilting” of the spine. Fusion could address constitutional back pain and tilting.  The expert witnesses agreed that the prospect of improving back pain with microdiscectomy was 30% whilst with fusion it was 60%. Both procedures had an 80% chance of improving leg pain. Both carried a risk of 5-10% of making the symptoms worse. Fusion is more invasive, and the recovery time for patients is 6 months, whereas it is only 6 weeks for microdiscectomy.

The judge bore in mind the difficulty for a Claimant of giving a reliable answer, after the outcome of an operation is known, to the question of what he would have done if given the correct advice and having regard to the fact that the choice would have been objectively difficult, he decided that he could not be satisfied on the balance of probabilities that Mr Watts would have chosen microdiscectomy.

The trial judge’s findings were upheld on appeal. Given the high hurdle necessary to overturn a finding of fact, it was always going to be difficult to persuade an appellate judge that the trial judge ‘s finding of fact was ‘plainly wrong’ or one ‘no reasonable judge could have reached’ (Henderson v Foxworth Investments [2014] 1 WLR 2600).

The case establishes no new principle of law. Whilst there is a narrow interest for practitioners pursuing a claim on a similar factual matrix, there is arguably a wider educational interest to all practitioners pursuing claims based on lack of informed consent in in ensuring that the hypothetical causation question as to the choice a Claimant would have made if advised differently is addressed from the beginning and then properly defined, pleaded, and evidenced.

The failure to fully plead the reasons why microdiscectomy would have been chosen was ultimately not fatal to the appeal because of the way the Defence failed to challenge the Claimant’s assertion. The principal reason for the first instance decision and why the appeal failed was evidential. It was not dealt with at all in the first witness statement, not adequately addressed in the late witness statement and in more critically, in evidence, when cross examined the Claimant effectively declined to answer or not properly answer the direct question put to him as to why he would not have trusted the surgeon’s advice in relation to fusion being the best option as microdiscectomy (which the surgeon did not recommend) could lead to instability because of a tilt in the claimant’s spine and because fusion was more likely to improve back pain.

The objective position (from the expert medical evidence) where there is a difficult choice to make is important. The trial judge found that the objective evidence did not persuade him that the Claimant would have chosen microdiscectomy over fusion.

In this type of case, it is wise for Claimant practitioners to have in mind what Hutchinson J said in Smith v Barking, Havering and Brentwood Health Authority [194] 5 Med LR 285.

“Accordingly, it would, in my judgement, be right in the ordinary case to give particular weight to the objective assessment. If everything points to the fact that a reasonable plaintiff properly informed, would have assented to the operation, the assertion from the witness box made after the adverse outcome is known, in a wholly artificial situation and in the knowledge that the outcome of the case depends upon that assertion being maintained, does not carry great weight unless there are extraneous or additional factors to substantiate it. …

… Of course the less confidently the judge reaches a conclusion as to what objectively the reasonable patient might be expected to have decided, the more readily will he be persuaded by the subjective evidence.”

McCaul v Lancashire Teaching Hospitals NHS Foundation Trust (28.7.22), is a first instance decision of Mr Justice Turner in a vascular surgery negligence case. There is an approved judgment on Bailli. The claim failed but it might be of some interest to a practitioner with a similar case.

Because of the large number of people carrying out voluntary work in a health care setting, albeit not in a clinical role, I thought I would briefly mention the case of – MXX v A Secondary School [2022] EWHC 2207 (QB) which is a personal injury case on vicarious liability

One of the Defendant’s former pupils (“PMX”) was undertaking a work placement at the school (hoping to train as a PE teacher) committed torts against the Claimant.

The decision of HH Judge Carmel Wall (sitting as a judge of the High court) refers to the substantial case law and analysis of the two-stage test that has involved in this area from the Christian brothers case [2012] through the Supreme Court decisions in Cox [2016], Mohamud [2016], William Morrison [2020] to the recent sexual abuse cases such as Blackpool Football Club v DSN [2021].

The claim failed on the first stage test as to whether the relationship between PMX and the school was capable of giving rise to vicarious liability, the judge holding that it was not a relationship akin to employment. Although he performed certain ancillary tasks during his work experience, performing a limited shadowing role under supervision, “the purpose of the WEP was for PXM to learn from the Defendant’s teachers. When viewed from the Defendant’s perspective it was an altruistic gesture. It cannot have been intended that the Defendant would derive benefit from the presence of PXM in any real sense”.

The claim also failed on the second stage ‘close connection’ test. Although the Claimant might have been groomed by PMX whilst he was at the school, the entirety of the wrongdoing occurred many weeks after PXM’s relationship with the Defendant had ceased. The judge found that “the most that can be said about the relationship between the Defendant and PXM was that it provided an opportunity for PXM to meet the Claimant”.

Whilst Riley v Salford Royal NHS Foundation Trust [2022] EWHC 2417 (QB) was a clinical negligence claim, by trial, liability was no longer in issue. There was a delay in treating Compartment Syndrome in leg following a serious tibia and fibula fracture resulting in amputation and substantial damages being claimed. The judgment sets out in some detail (which is rare in reported cases) the considerations of quantification of all the heads of claim that would be expected in a claim of this nature including loss of earnings and pension, care and case management, future treatment, prosthetics, transport, aids/equipment, and accommodation.

The interesting feature that I noted was a failed attempt by the Defendants to argue reduced life expectancy based on their expert who disavowed expertise as an expert in life expectancy. The judge (David Allan KC sitting as a judge of the High Court) referred to the fact that “No witness claiming to have expertise on the issue of life expectancy has given evidence in the present case.” As there was no satisfactory evidence to suggest that the Claimant should be treated as someone with a reduced life expectancy (such as expert evidence or reliable epidemiological evidence that below knee amputation leads to a reduction in life expectancy), the Claimant was to be treated as a person of normal life expectancy and a full life multiplier was applied.

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