Sir Robert Nelson on 18^th September handed down judgement in this case. Claire Watson instructed by Irwin Mitchell LLP appeared for the Claimant; Charles Feeny, instructed by Bevan Brittan LLP appeared for the Defendant.  XX attended smear tests administered by doctors working for the Defendant in 2008 and 2012, and subsequently attended biopsies in 2012 and 2013. Through negligence, the claimant’s cervical cancer was not detected on these occasions, and the consequently delayed treatment led to a number of seriously adverse effects. Some of these effects occurred whilst the cancer remained undiagnosed, and others as a direct result of the treatment. These effects are summarised at paragraph 18 of the judgement:

“a) The development of invasive Stage 11B cancer, which necessitated surgery to remove her lymph nodes and transpose her ovaries, and chemo-radiotherapy.

b) The complete loss of fertility where XX has no children but had always wanted to found a family of her own.

c) Radiation induced bladder injury leading to urinary urgency, urinary frequency, excessive night time urination (nocturia) painful urination (dysuria), blood in her urine (haematuria) and urge incontinence for which she wears pads.

d) Radiation induced pelvic pain.

e) Radiation induced bowel injury: radiation proctitis, functional diarrhoea and bile salt malabsorption causing bowel frequency and urgency, loose stools and occasional incontinence.

f) Vaginal stenosis and impairment of sexual function.

g) A constant heavy feeling in both legs with pins and needles, which interferes with her sleep at night.

h) Loss of hormone production leading to premature menopause.

i) Anxiety and depression associated with the diagnosis of cancer, the radiation induced injuries to her bowel, bladder and vagina and her inability to conceive or carry a pregnancy.

j) The risk of recurrence of cancer and the associated fear of the same.”

Key Issues:

The principal issue that has attracted attention in this case concerns surrogacy arrangements. The claimant gave significant evidence as to her extreme desire for children, particularly of her own. She claimed that she intended to seek to use the system of commercial surrogacy in California, given its administrative advantages to that in the UK – where such commercial arrangements remain illegal – but that she would be prepared to seek a solution here, if her initial plans failed. The question arising from this is the correct approach to take towards claiming the costs of these options, given the state of domestic law on the subject.

Sir Robert Nelson set out some further legal and factual background; notably the case of Briody v St Helens and Knowsley Area Health Authority (2002) QB 856. This case concerned Ms. Briody, who similarly sought to recover the costs of a surrogacy arrangement based in California (with her own eggs) or alternatively using donor eggs in the UK. The Court of Appeal rejected the claim on the basis that the Californian arrangement was illegal in the UK and the chances of success were miniscule (around 1%). Sir Robert Nelson noted that the use of donor eggs would have been rejected as it did not make up for what she had lost (a child of her own). He also noted Lady Justice Hale’s opinion that the Californian arrangement was contrary to public policy ‘clearly established by legislation’, but also that the question of recovering the cost of surrogacy in the UK, compliant with domestic law and using the mother’s own eggs, was left open – albeit with Lady Justice Hale commenting that she saw such a claim as ‘a step too far’.

Aside from the direct surrogacy point, three further notable issues arose:

• The availability of provisional damages for a (further or repeated) deterioration of psychiatric condition following an ultimately failed surrogacy strategy.

In particular, the loss of fertility was of concern during her treatment and was noted to have been a significant cause of the psychiatric conditions for which she was treated. Dr. Gessler, who had treated XX previously and gave an opinion in this case, was clear that a potential risk of psychiatric deterioration was present in the event that her attempts at surrogacy proved unsuccessful. The evidence of Dr. Gessler was of a 30-40% chance of a ‘catastrophic’ response to a failed surrogacy, which would be likely to require one year’s (45 sessions) treatment.

• The applicability of a ‘multiplier/multiplicand’ approach under the Ogden Tables to the claimant’s position.

The claimant works as a manager at a Neal Yard Remedies store in London, and despite some recent instances of time off in connection with her condition, she was recently promoted (albeit that she then had to decline a further offer of promotion due to her difficulties). She is working in the same employment, at the same hours and now at an increased level of pay.

• The availability of costs based upon recourse to private medical treatment where the NHS has proved insufficient.

Judgement:

Sir Robert Nelson decided that, in relation to the claim for costs of surrogacy in California, he was still bound by Briody. He expounded that regardless of the location of the contract, the arrangement is illegal under UK law and cannot therefore ground a claim for expenses – including those which would be “reasonable” under the UK system – as the entire contract is contrary to public policy. The judge stated that the changes in legislation since Briody did not alter this point, since they do not render the contract in question legal; any reference to cases in Family Courts surrounding parental orders did not alter this position, which was determinative. Sir Robert Nelson was, however, prepared to accept that attitudes may well have changed, but that he was bound by the decision in Briody. It was for Parliament, or possibly the Supreme Court to change the law, if that was appropriate..

In relation to the claim for the costs of a UK arrangement, Sir Robert Nelson came to a different view. He noted that such an arrangement was neither illegal nor contrary to public policy, and that it was difficult to see, where prospects of success were reasonable, and especially in light of the claimant’s particular efforts to delay her treatment and freeze her eggs, allowing such a claim should constitute a “step too far.” He therefore allowed the claim for two surrogacies (based upon a balance of probabilities assessment of the success of such by both sides’ experts) at £37,000 each. The judge did also note that he was still bound by Briody in relation to a claim based upon the use of donor eggs; on the basis (as noted) that it was not restorative of the actual loss.

Sir Robert Nelson set out the threefold test for provisional damages: whether the risk is real rather than fanciful; whether the deterioration will be serious; and whether the case is a proper one to depart from the normal rules. Whilst he found no problem satisfying the first element, he found that whilst not insubstantial, the ability to cure within a year’s treatment did not qualify this particular instance as ‘serious’, and that this was not a case where the normal rules should be displaced.

The judge noted both that XX was in nearly identical employment to before the accident, and yet had had to turn down a further promotion, and considered that this was sufficient to be considered disabled under the Ogden Tables’ definition. However, the judge accepted that he should follow the approach of the Court of Appeal in Billett v Ministry of Defence (2015) EWCA Civ 773, in applying the ‘Smith v Manchester approach’ of broad assessment. He echoed the sentiment in Billett that a multiplier approach may produce “hopelessly unrealistic” results. He therefore assessed the loss of future earnings at 4 years, to reflect the difficulties she would face on the labour market were she to need to find alternative employment.

In assessing the claim for supply of one drug in particular (Cholestagel), whilst Sir Robert Nelson did find the claimed figure excessive, he did make some allowance for the fact that whilst generally available, restrictions on supply via the NHS were sufficient to allow for some amount to cover the contingency of seeking private replacements. Where treatment was acknowledged to be unavailable via the NHS, private treatment was permitted to be claimed in a handful of other examples of required future treatments.

Charles Feeny’s comments

The award of damages for surrogacy costs, albeit on a limited basis and subject to proof of reasonable prospects, will no doubt be considered the most significant feature of this case.  Given the possibility of the issues being considered on appeal in this context, it would be inappropriate to say too much at this stage.

However, the judgment is interesting for a number of other reasons reflecting the breadth of the dispute between the parties and with the Judge having to resolve issues which are regularly discussed in personal injury claims, but not necessarily subject to many judicial decisions.

Provisional Damages

• The medical evidence established that the Claimant had significant risks in relation to radiation enteritis and further psychological damage.  Sir Robert Nelson took what might be described as a conventional approach to the question of whether these risks should be subject to an award for the payment of provisional damages and if so, on what terms.  The analysis of Sir Robert Nelson, in particular at paragraph 29 of the judgment, referred to the well-known authorities on whether a risk is appropriate for the payment of provisional damages; in particular Wilson v Ministry of Defence [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1991] 1 All ER 638.  The Judge considered that provisional damages should be awarded only where, to paraphrase, there was evidence of a clear, severable, and serious risk of further injury.
• Against this background, whilst the Judge recognised that the risk of further psychological injury was real and of a serious nature, he did not consider that it was sufficiently serious to justify an award for the payment of provisional damages.  He indicated that such award should only be made in “rare” cases.  This is consistent with a judicial approach which represents a substantial policy element in only awarding provisional damages where there is a risk of serious injustice if such an award is not made.  It could be considered that an award for provisional damages should only be made where there is a clear indication that a contingent award could grossly under-compensate the Claimant.
• Similarly, in relation to radiation enteritis; whilst Sir Robert Nelson was prepared to make a provisional award, the actual award made as agreed between the parties did not simply relate to radiation enteritis, but was restricted to radiation enteritis “causing intestinal failure and requiring Home Parenteral Nutrition (HPN)”.  The Claimant was at risk of radiation enteritis falling short of its most severe form, but it was agreed that an order for the payment of provisional damages should only be made in respect of the worst possible outcome.
• A Defendant would ordinarily seek to restrict an order for provisional damages to the highest level of additional injury so as to reduce the possibility of a Claimant returning.  What is not always appreciated is that a Claimant is often best advised to take this approach.  By virtue of CPR 41.3(2), a Claimant is entitled to return only once for further damages.  If the Claimant exercises a right to return in circumstances in which there has been deterioration, but there still remains scope for further deterioration, the Claimant might be facing the very problem the provisional damages are intended to avoid; the Claimant might still have to seek damages for the worst possible outcome on a contingent basis.  This would occur in situations in which the Claimant had deteriorated but the final prognosis was still uncertain.
• What also perhaps is overlooked in this context is that the Claimant still remains entitled to damages on a contingent basis up to the level of deterioration which would trigger the Claimant’s entitlement to further damages.  This is reflected in the present case in paragraph 75 of the judgment, where the Judge made an award for future radiation enteritis notwithstanding that radiation enteritis was subject to an order for the payment of provisional damages.

Loss of Earnings

• Following Billett v The Ministry of Defence [2015] EWCA Civ 773, this is another case where a Judge has found that a Claimant was disabled for the purposes of the Equality Act 2010 and the Ogden Tables, but deviated very substantially from the award which would have been appropriate had the Ogden Tables been followed without any adjustment.  Sir Robert Nelson based his award substantially upon an assessment of the Claimant herself, who despite her ongoing symptoms, had managed to maintain employment and indeed been promoted.  The Judge’s clear view was to make this independently assessed award since the Ogden Tables would produce a sum greatly in excess of the Claimant’s likely loss of earnings.
• It might be argued that the Judiciary are now reverting to type, notwithstanding the information available to them in the Ogden Tables and the supporting research.  However, it is probably more realistic to look at this situation as emphasising what is perhaps now a recurrent issue in personal injury litigation; that is the application of statistical evidence to an individual case.  The definition of disability is very broad and encompasses a wide range of presentations.  Clearly, there are some disabilities with which a person could not reasonably cope in the labour market, whereas, as with this Claimant, there are those who are disabled but have the fortitude and determination to cope with this disability.  Against this background, whilst the Ogden Tables and the underlying research provide useful background information in relation to the issue of loss of earnings, ultimately the formulaic approach cannot replace the value of a judicial assessment, considering the Claimant and all her circumstances.

Costs of Treatment

• The Claimant sought a wide range of expensive drugs and treatment, notwithstanding that her engagement with such drugs and treatment to date had been very limited and notwithstanding that many of the items sought were available on the NHS.  The Schedule was characteristically presented on the basis of a reasonable requirement for such drugs and treatment, largely on the basis of expert evidence suggesting that such drugs and treatment would be appropriate.  The Defendant’s position was that the Claimant must not only prove that the drugs and treatment amounted to a reasonable requirement, but that in probability she would incur the expenditure claimed in the respects set out in her Schedule.  The Judge accepted the Defendant’s basic approach and had to make substantially speculative judgments as to the extent to which the Claimant would engage with the drugs and treatment claimed.  Against this background, the Judge took an inevitably cautious approach in relation to the assessment of these heads of damage.  From a Claimant perspective, the case perhaps emphasises the value of having an established position or regime at the time of assessment, as opposed to seeking damages in respect of such expenditure on the basis that it is likely in the future.

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Facts:

On 11^thNovember 2010 the claimant, Mr PD, underwent a laparoscopic subtotal colectomy and end ileostomy, which involved removal of the colon and diversion of the small bowel to an opening in the stomach.

Following the procedure it emerged that the claimant had suffered an intraperitoneal haemorrhage to the bowel during the first surgery, and that further surgery was required. Following the second surgery, the claimant developed a wound infection, pneumonia and an incisional hernia.

It was undisputed that the claimant had suffered greatly as a result of two rare surgical complications, injury to the spleen and damage to the bowel, and undoubtedly attracted the sympathy of the courtroom. But, as the judgement made explicit, mere sympathy does not equate to a legal finding of negligence.

Claim:

The claimant alleged negligence in the following ways. First, that after 3 hours of failing to remove the colon laparoscopically, the surgeons should have converted to an open surgery.

Second, that they damaged the colon by removing it through an incision that was too small. Third, that the surgeons tore the hilum of the spleen, failing to notice that this had happened and consequently not remedying the tear during the operation.

Finally, that there was a delay in detecting the complications following the first surgery and as a result, the second surgery was delayed. 

The experts and their evidence:

The evidence before the judge was as technical as it was specific. This section aims to provide an overview of the salient information in order to highlight how the case turned on events that took place in the heat of the moment.

In doing so it is hoped that the paramount importance of the evidence given by the doctors in court and the information they committed to their notes during surgery is apparent. Where there is no allegation that a doctor is being dishonest, and any possible negligence is far from clear-cut, a judge should exercise great caution before going behind a doctor’s account of a highly technical operation.

Professor Keighley:

The expert put forward by the claimant was Professor Keighley, who was not involved in the claimant’s operation. He had retired from the NHS in 2004. He had never been personally involved in laparoscopic colorectal procedures, but had been involved in major publications on the subject.

Professor Keighley stated that, on the basis of the pathology report of the spleen after its removal, he felt that the tear in the spleen would have been visible during the procedure and that the tear should have been detected. When asked why the surgeons would not have seen it, he stated:

“…if having removed the colon…we do not know if they turned the camera and looked at the spleen…they would have seen a tear”.

He preferred the histopathologist’s evidence on the location of the tear (that indicated it was in a visible place) to that of the surgeon’s note in the second operation (which indicated that it was not in a visible place), because the surgeon was a junior member of staff working under pressure and late at night, whereas the pathologist had the benefit of daylight and time.

He stated that he was concerned about the size of the incision, but admitted that the appropriate size was a matter of clinical judgement, and that his own clinical judgement was not always right.

When asked about whether the laparoscopic procedure should have been converted to an open one, he stated:

“This is difficult. We are dealing with complex calls in the heat of an operation…there is a huge range of how people do things when they decide to make a change in the decision…conversion is a judgement call…I cannot find a specific reason for conversion.”

In relation to the delay in the second surgery, Professor Keighley stated that he was “straying outside my expertise…I am struggling to inform the court…I am not sure where we are up to.”

Dr A:

Dr A was the lead surgeon in the claimant’s case. He had carried out laparoscopic procedures approximately 280 times.

He confirmed that the operation note contained no reference to bleeding of the spleen, and stated that any visible bleeding would have impaired the operation by saturating the lens of the camera they were using, so would have caused them to abort the procedure.

At the point that the spleen was removed, Dr A explained that he had not made a note of any bleeding, and did not remember the specific operation. Any bleeding that occurred must have therefore taken place either after the operation or in a place that was not visible during the operation. Otherwise, Dr A explained, he would have seen the bleeding and recorded it.

As for converting to an open procedure, Dr A stated that there were no known complications justifying such a conversion, which carried with it other risks.

In relation to size of the incision used to remove the colon, Dr A explained that the surgeons never reached a stage where the exterioration of the colon was not progressing. In other words, there was never any perceived need to use a bigger hole.

Dr B:

Dr B was the other surgeon performing the laparoscopic procedure. He asserted that the surgery took longer than usual due, amongst other things, to the fact that he was a slow surgeon and the high degree of difficulty of the surgery.

In relation to the lack of detail in the operation notes, Dr B explained that generally only important things are noted during surgery, and such notes are prepared for the surgeons’ own eyes, without any litigation in mind.

Mr Scott: 

Mr Scott appeared as an expert on behalf of the Defendant. He had been performing the colorectal laparoscopic surgery since 2007. He stated that he did not see any damage to the spleen due to any lack of care, and that despite the best care, damage can occur.

In relation to the length of the operation, Mr Scott told the court that he had seen some operations go on for eight hours. He also preferred the operation note to the pathology report in deciding where the splenic bleeding had occurred, and that even if it a defect to the spleen had been detected, it would not justify a conversion to open surgery.

Finally, he confirmed that the size of the surgical incision looked adequate to him, and that there was no good reason to lengthen it.

The decision:

HHJ Parker made it clear that Professor Keighley was at a disadvantage in giving evidence, stating that:

“written experience can never be a substitute for actual hands-on experience…of a difficult and complicated surgery…this does effect the weight that I feel able to attach.”

The judge commented on the manner in which Professor Keighley gave evidence:

“his willingness to put forward theories and express views outside of his expertise left me feeling less than confident in what he was saying.” 

In relation to the conversion point and the length of the surgery, HHJ Parker accepted that if the surgery was longer than usual, this was justifiably due to its complexity and because Dr B was a slow and careful surgeon.

As for the size of the incision, HHJ Parker acknowledged that it was a matter of clinical judgement, and that here had been no positive indication that widening the incision would have been justified.

Addressing the visibility of the tear to the spleen, HHJ Parker preferred the surgical note to the pathology report. This was a further nod to the competence, expertise and firsthand view of the doctor who was dealing directly with the patient. Furthermore, the judge accepted the straightforward point that if there had been visible bleeding, than the surgeons would have seen it and noted it down.

However, it was accepted that the delay in commencing the second surgery had caused a significant degree of suffering to the claimant and the need for an additional blood transfusion. An award was made for £2,500 for pain, suffering and loss of amenity.

Comment:

The difficulty of proving breach of duty in the context of an operative complication which occurred unwittingly with the Claimant obviously unconscious often presents a dilemma for a Judge. On the one hand, as here, the Court is confronted by a straightforward Claimant who has suffered significant and indeed life changing injury and disability. On the other hand, again as here, the surgeons were apparently competent and the relevant events are known to occur, despite reasonable care.

The Court of Appeal in Ratcliffe v. Plymouth & Torbay Health Authority (1998) PIQR P170 made it clear that the principle of res ipsa loquitur is unlikely to apply in such cases, except in very obvious circumstances such as a retained swab or operating on the wrong part of the body. In most cases of alleged surgical negligence, it will be known that a given complication can occur despite reasonable care; although equally it can be caused by negligence. Claims of negligent performance of surgery are generally advanced on the basis of expert evidence, which is essentially of a reconstructive nature, indicating how in the opinion of the expert an avoidable mistake occurred.

The legal analysis is complicated by the Court of Appeal in Ratcliffe and subsequent cases, whilst disavowing the application of res ipsa loquitur, nonetheless indicating that the absence of reasonable explanation by the surgeon is a factor which can be weighed in the balance. In practical terms, this approach can sway the Court towards a speculative reconstruction by an expert, resulting in an outcome which does not appear to be markedly different to the application of res ipsa loquitur as occurred in the case of O’Connor v. Pennine Acute Hospitals (2015) EWCA Civ 1244.

Unsurprisingly against this background, the results in individual cases show no clear pattern and each appears ultimately to be fact or even Judge sensitive.

In the present case the resolution was ultimately not problematical. The Judge was confronted by an expert on behalf of the Claimant, a retired Professor of Surgery who admitted to limited experience of laparoscopic surgery and who also admitted, or indeed volunteered, that much of his evidence was speculative. As against this, the operating surgeons and a suitably experienced expert, Mr Scott, were able to provide clear explanations in relation to the Claimant’s allegations, and in particular as to how the damage to the spleen could occur without negligence and without being noticed.

From a Defendant’s perspective, in terms of deciding whether to contest a case, it is likely that the decision will ultimately turn on the degree of confidence in being able to provide a plausible explanation consistent with reasonable care having been displayed.

Case Background

The Claimant, Mr Spencer, sought damages for personal injury caused by the alleged negligent actions of the Defendant hospital in the lead up to an operation and in the aftermath. The Claimant underwent an operation to correct a hernia in his right groin. The operation was initially undertaken with use of a laparoscope but during the course of the procedure it was necessary to change to an open procedure as visibility deteriorated. The possibility of this change was discussed with the Claimant in the build up to the operation and there was no question of negligence during the course of the operation. Unfortunately, in the aftermath of the surgery the Claimant developed a deep vein thrombosis and was admitted to hospital as suffering from bilateral pulmonary emboli.

It was alleged by the Claimant that the Defendant had failed to provide any written or verbal information as to the signs and symptoms of deep vein thrombosis and pulmonary embolism. During the course of the trial there was a dispute between the parties as to the precise warnings that had been given to the Claimant on discharge.  In addition, the Defendant argued that the risk of developing a DVT was so remote that it was unnecessary to warn in all cases as this could influence the patient’s decision over the operation without basis. The judge HHJ Collender QC concluded that the Claimant had not been given adequate information on the likelihood of a DVT or the warning signs associated with such a condition and, as such, the Defendant had their duty.

Contributor Comments

The facts of the decision in Spencer are not complex but the underlying question before the court is one that has caused immeasurable difficulty: namely, the amount of information a doctor is required to disclose to a patient. The decision in Spencer was the first opportunity the lower courts had to apply the decision of the Supreme Court in Montgomery v Lanarkshire Health Board [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2015] UKSC 11 and its application is as many would have expected. While the application of Montgomery in Spencer may not have been controversial the principle behind Montgomery requires closer examination.

The law surrounding disclosure has come a long way from the original principle set down in Decorum XVI of the Hippocratic Corpus that physicians are advised to reveal nothing to the patient of their present or future condition, ‘for many patients through this cause have taken a turn for the worse’. Around two millennia later Lord Templeman echoes the founding scripture when he said, ‘the provision of too much information may prejudice the attainment of the objective of restoring the patient’s health’ (Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 at page 904). The law as it stands, according to the Supreme Court in Montgomery, is neatly summarised by Lords Kerr and Reid (who gave the combined opinion of the the court) at paragraph 87:

‘An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it.’

The decision in Montgomery had the effect of overruling the House of Lords decision in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871. The decision of the court in Sidaway is not necessarily complex but their Lordships did take differing opinions about the duty to provide information. Lord Diplock followed the Bolam approach but tempered it in situations which involved ‘highly educated’ patients who would require additional information about the risks. The Diplock approach is at odds with the opinion of Lord Scarman who took the starting point of the patient’s basic human right to make his own decision and reasoned (at page 884-885):

‘If, therefore, the failure to warn a patient of the risks inherent in the operation which is recommended does constitute a failure to respect the patient’s right to make his own decision, I can see no reason in principle why, if the risk materialises and injury or damage is caused, the law should not recognise and enforce a right in the patient to compensation by way of damages.’

The middle way is offered by Lord Bridge when he states (at page 900):

‘I am of opinion that the judge might in certain circumstances come to the conclusion that disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it. The kind of case I have in mind would be an operation involving a substantial risk of grave adverse consequences, as, for example, the 10% risk of a stroke from the operation which was the subject of the Canadian case of Reibl v Hughes 114 DLR (3d) 1 . In such a case, in the absence of some cogent clinical reason why the patient should not be informed, a doctor, recognising and respecting his patient’s right of decision, could hardly fail to appreciate the necessity for an appropriate warning.’

The approach of Lord Bridge was followed by the Court of Appeal in the decision of Pearce v United Bristol Healthcare NHS Trust [1999] PIQR P53. Lord Woolf MR, giving the leading judgment with which the other members of the court agreed, stated the law as being (at paragraph 21):

‘In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt.’

Much criticism had been made of the approach in Sidaway, especially the emphasis on the patient to ask questions as opposed to the doctor providing information; Sedley LJ in Wyatt v Curtis [2003] EWCA Civ 1779 commented (at paragraph 19) that ‘there is arguably something unreal about placing the onus of asking upon a patient who may not know that there is anything to ask about’. In addition, Lord Woolf MR criticised the approach in his 2001 Jacobovitz lecture, ‘The judiciary, medicine and ethics’.

What then caused the change in approach in Montgomery? On the one hand, as mentioned above, the perceived burden on the patient as opposed to duty on the doctor was unsustainable in the face of such persistent criticism. Another key reason, as identified by Lords Kerr and Reid (at paragraphs 75-76) is the changing nature of the doctor-patient relationship:

‘Since Sidaway’s case, however, it has become increasingly clear that the paradigm of the doctor-patient relationship implicit in the speeches in that case has ceased to reflect the reality and complexity of the way in which healthcare services are provided, or the way in which the providers and recipients of such services view their relationship. One development which is particularly significant in the present context is that patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession…Other changes in society, and in the provision of healthcare services, should also be borne in mind. One which is particularly relevant in the present context is that it has become far easier, and far more common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side-effects via such media as the internet (where, although the information available is of variable quality, reliable sources of information can readily be found), patient support groups, and leaflets issued by healthcare institutions. The labelling of pharmaceutical products and the provision of information sheets is a further example, which is of particular significance because it is required by laws premised on the ability of the citizen to comprehend the information provided.’

While it is clear that there is a difference in relationship between doctor and patient, the following comment of the court is open to question (at paragraph 81):

‘The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based on medical paternalism. They also point away from a model based on a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.’

With respect to the court this appears to be wishful thinking. The doctor-patient relationship has been continuously evolving, as evidenced by the professional guidelines on consent which emphasises a full dialogue, yet litigation levels are on the increase. It is dangerous to make the assumption that information alone will prevent litigation in the event of harm; to do so will lead to difficult situations akin to Chester v Afshar [2004] UKHL 41 in that doctors will be second guessing what could have happened.

What then are the consequences of this change in approach? Is it now the case that the fabled words ‘trust me I’m a doctor’ no longer apply? Is a doctor now more akin to a Google search within their respective specialty, reeling off information that in no way applies to the medical case as presented? Of course not. While the end result is to be welcomed (if only because it provides clarity which means doctors should err on the side of caution) the second leg of the court’s reasoning should be disregarded. Yes, there is more readily available information but this has not changed the fundamental nature of the doctor-patient relationship which is to provide specialist advice based upon the case at hand. The law recognises this and is not as daunting as it may first appear to medical practitioners. The Bolam principle still plays a central role but it is qualified in a manner not dissimilar from Bolitho v City and Hackney HA [1998] AC 232. The law is now firm in its position that where doubt is present providing information is the best course of action. However, doctors are still the adjudicators of what information is reasonable to provide and that is how it should be. A patient seeking too much, unrelated, information is like Icarus flying closer and closer to the sun: it is good at first but will ultimately act against their best interest.

Spencer v Hillingdon: Clinical comment

Graeme Poston

Professor of Surgery, University of Liverpool

Consultant Surgeon, Aintree University Hospital, Liverpool

The background to this claim goes back to 2005 when the Parliamentary Health Select Committee produced a report on the poor use of deep venous thrombosis (DVT)/pulmonary embolism (PE) prophylaxis and prevention in English hospitals. DVT is the development of blood clot, usually in the deep veins of the calf, due to protracted periods of inactivity, as the muscles of the calf are necessary to pump venous blood against gravity back to the heart.  Patients suffering protracted periods of confinement to bed, and those under general anaesthetic are at particular risk, in addition to those undergoing certain operative procedures (e.g. orthopaedic hip surgery) and suffering specific conditions (e.g. cancer). PE is the frequently fatal complication of DVT, when the clot dislodges from the point where it originated in the calf and travels to the heart where it blocks the pulmonary artery that takes the blood from the right side of the heart to the lungs.

At that time, over 25,000 people were still dying each year from DVT/PE following admission to hospital and the Select Committee’s report ended by instructing the National Institute of Health and Care Excellence (NICE) to produce national guidance for England which would both identify those at risk of developing DVT/PE and the steps necessary to reduce/prevent the development of DVT/PE. NICE produced this guidance (CG46) in 2007 identifying those at increased risk of DVT/PE, the steps to be taken to identify this cohort, and the measures to be taken to reduce (and hopefully abolish) this risk. However, no major reduction in the incidence of DVT/PE ensued, and so NICE reconvened the guideline development group who then issued revised guidance (CG92) in January 2010. This guidance now defined both a ‘higher risk’ group (those defined at higher risk in CG46) and an ‘at risk’ cohort which now now encompassed anyone admitted to a hospital bed, either as an inpatient or as a day case. The ‘higher’ risk group should be offered prophylaxis against DVT/PE in the form of compression stockings or injectable heparin anticoagulant, but all of the ’at risk’ (including the ‘higher risk’) patients should be given advice before hospital discharge (ideally written, but alternatively verbally) on the possible symptoms of DVT/PE (which included a painful or swollen calf), which if they occurred in the postoperative period should alert the patient to seek immediate hospital attention. Effectively, but not specifically stated, this ‘at risk’ group included anyone having a general anaesthetic, but the words ‘general anaesthetic’ did not appear in the guidance. Furthermore, despite an extensive pre-publication editorial process, there was lack of clarity in the guidance, with the definition of the ‘at risk’ numerator (from within the total hospital inpatient and outpatient denominator) appearing within the guideline after the guidance on prevention.

Mr Spencer attended Hillingdon Hospital in late 2009 with a symptomatic inguinal (groin) hernia and a possible early hernia on the other side. He had no pre-existing history of DVT/PE or any of the medical conditions that predisposed him to increased risk of DVT. He was listed for a laparoscopic (keyhole) repair of both hernias under general anaesthetic. His body mass index (BMI) was 29.8, and such a procedure would normally take 60-90 minutes. CG92 stated that those at higher risk of DVT/PE included BMI >30, those having a general anaesthetic exceeding 90 minutes duration, and those undergoing open abdominal surgery (which is a recognised risk of any laparoscopic surgery because of the risk of damaging internal organs) should be considered at ‘higher risk’ for DVT/PE and as such offered DVT/PE prophylaxis before and during the procedure. Mr Spencer was admitted for his surgery in February 2010, 1 month after the publication of CG92. Although Mr Spencer was on the cusp of the higher risk group on three counts, the hospital failed to perform a preoperative DVT/PE risk assessment prior to admission, but on the day of surgery decided to place compression boots on Mr Spencer’s calves during the general anaesthetic. During the early stages of the laparoscopic procedure, the surgeon encountered bleeding difficulties, so reverted to a traditional open repair of the symptomatic hernia. The anaesthetic lasted 60 minutes, and Mr Spencer went home that evening with a generic non-specific patient information leaflet giving a contact phone number for the day unit, which was open 7 am to 7 pm weekdays, or alternatively to call the hospital switchboard. Mr Spencer did indeed contact the day unit on two occasions in the immediate postoperative period, firstly because of mild post-anaesthetic confusion on the first postoperative day, and again on the third day when he was concerned about wound discomfort. On both occasions he was reassured. However, when he developed a painful swollen calf of the leg on the opposite side to the hernia repair on the 5^th postoperative day, not aware of what this could possibly mean, he ascribed it to cramps from being bed bound and thought nothing of it. This symptom appeared to slowly resolve over the subsequent 3 weeks and Mr Spencer returned to work. Mr Spencer collapsed while at work some four weeks after his surgery from a near fatal PE, which although immediately recognised and treated with full therapeutic anticoagulation, suffered a further PE 2 weeks later, and he is now receiving warfarin anticoagulation for life.

Mr Spencer argued that although the risk of developing a DVT in his circumstances was very small (<1%), the material risk to him was such that he would have had the operation, but had he been given the specific advice on the symptoms of DVT/PE, when he suffered the swollen painful calf 5 days after his surgery under general anaesthetic, he would have sought immediate medical attention, which on balance would have led to the correct diagnosis for which he would then have received a 3-6 month course of anticoagulation (initially using intravenous heparin, but subsequently converting to oral warfarin). As a consequence, on balance, he would have avoided the near fatal PE, and more significantly the second PE which now condemned him to lifelong warfarin anticoagulation, with all the lifestyle restrictions thereby ensuing (restricted foreign travel, need for weekly blood clotting measurements, more protracted interventions around all future surgical procedures including dentistry etc.).

The Defendant argued that regardless of the NICE guidance contained in CG92, the material risk of Mr Spencer suffering DVT/PE outside of the ‘higher risk’ group was so small (the Defence argued 1:50,000) that there was no material risk, and therefore no obligation to offer the advice in line with the NICE Guidance, which was supported by the Defendant’s expert opinion, and therefore satisfied the Bolam Test.

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Case Background

This was a claim against the Defendant NHS Trust for failure to arrange a brain scan (either a CT or MRI) on two occasions in early 2001. The Claimant subsequently underwent a scan which revealed the presence of a tumour located in the frontal section of the brain. It was accepted by the parties that had a scan been undertaken on the dates in question (the 6th and 28th January 2001) the tumour would have been identified and that it could not be said that the tumour was the cause of her symptoms at that time.

The Claimant had a history of severe headaches which, on occasion, were accompanied by vomiting. On the 6th January the Claimant was suffering from a severe headache (indeed it was the evidence of her mother, which was accepted by the judge, that she was screaming in pain) so was taken to A&E by her mother. On that occasion the records note that the Claimant was vomiting and that antibiotics were prescribed for a sinus infection. Further information was recorded which suggested that the Claimant was vomiting because of the antibiotic prescribed (ciproxin) on a previous visit to hospital where the Claimant was diagnosed as suffering from sinusitis. A discharge summary was sent to the Claimant’s GP which recorded the treatment of Augumentin for 1 week; Augumentin being an antibiotic used for the treatment of sinusitis.

On the 28th January 2001 the Claimant again complained of a terrible headache. The Claimant’s mother took her to see the out of hours doctor on two occasions that day. The Claimant was referred to the paediatric ward and was admitted with vomiting and a headache for 24 hours. The judge found as a fact that the treating doctor (Dr Rao) did consider the possibility of an underlying neurological condition as the notes identified that there was no evidence of morning headaches. In addition, Dr Rao investigated the fundus and found no signs of papilloedema. It was concluded that the Claimant was suffering from either a migraine or sinusitis. The notes advised a follow up by the Claimant’s GP and that a referral to an ENT specialist may be necessary.

Between the 29th February and November 2001 (when the Claimant was diagnosed as having a brain tumour) the Claimant had several further severe headaches which necessitated medical attention. In September 2001 the Claimant spent a further short period in hospital where again it was suggested that sinusitis was the cause and that neurological problems were discarded. The Claimant’s notes record that a CT scan should be considered if there were no clinical signs of sinusitis. The circumstances changed dramatically in late October when the Claimant was again admitted to hospital and a fundoscopy was carried out which revealed a blurred outline (suggesting raised intracranial pressure). In response an MRI was urgently requested which confirmed the presence of a tumour.

Lewis J rejected the Claimant’s argument that the Defendant had failed to exercise reasonable care by not arranging for a brain scan to take place on either the 6th or 28th January 2001. In reaching this decision Lewis J preferred the evidence of Dr Koyar for the Defendant and reasoned that the action taken by the Defendant accorded with the standard practice for children who presented with headaches and that all options had been considered when the Claimant was examined.

Contributor Comments

This is by no means a ground breaking decision but it does illustrate the difficulty Claimants can face when attempting to overcome the Bolitho threshold (Bolitho v City and Hackney Health Authority [1998] A.C. 232). As is invariably the situation, when a case is before the court there will be expert evidence which supports both the Claimant’s and Defendant’s case and it is unlikely that such evidence will be considered to be unreasonable in a Bolam sense. In such a case the court is presented with the task of deciding which opinion is considered logical and that will invariably depend upon an accurate understanding of the facts as they unfolded. The decision in Davies is a classic example of one expert giving their opinion without due regard to the facts; this was a key aspect of Lewis’ J reasoning when he stated:

“In my judgment, the opinion of Dr Conway as to what professional practice would have mandated on 6 January 2001 is based on an assessment which does not accurately reflect the facts as they existed and were known, or ought to have been known, by the doctor involved.”

…

“Dr Conway gave evidence which was that further investigations, including arrangements with a view to a brain scan, were mandated on 28 January 2001 and that the failure to make these arrangements meant that the treatment received fell below the standard of care which Tracy could reasonably expect from a competent practitioner. Again, that opinion is not, in my judgment, accurately based on the facts as they were known, or ought to have been known, to the treating clinician on 28 January 2001.” (At paragraph 55 and 61 respectively.)

In such a situation it is not surprising that the opinion was not considered to be logical. In assessing what is, and is not, logical the medical notes will often be of great assistance. It is illustrative that in Davies both experts agreed that no criticism could be made of the notes. The importance of full notes has been stressed by the court time and time again (for example Skelton v Lewisham & North Southwark HA [1998] Lloyd’s Rep. Med 324). When faced with a set of poor records, and competing expert opinions, that opinion which supports the record is less likely to be viewed as logical; in contrast the opinion which supports a detailed set of notes is more likely to be seen as logical.

A final interesting (albeit hypothetical) point is raised by the decision. Limitation was not in issue before the court but imagine the situation if it were. In the normal course of events, a Claimant seeking to rely on section 33 will be faced with a counter argument that the fact (as in this situation) that a witness cannot be located prejudices the Defendant (see the House of Lords decision of Horton v Sadler [2006] UKHL 27 for a detailed discussion of prejudice under section 33). However, in the present situation, because the medical notes are detailed, the Claimant’s position is in fact weakened by the inability to cross-examine the witness. This issue was touched upon by the High Court in the case of Rogers v East Kent Hospitals [2009] EWHC 54 (QB) on appeal from the Canterbury County Court. It was argued, and accepted, before Griffith Williams J that no prejudice existed despite one doctor not being located as the records were extensive and an expert report could be produced from them without difficulty. With that in mind, Defendants should be mindful of the difficulties surrounding section 33 where a practitioner cannot be located; equally, they should be alive to the possibility of situations where detailed notes strengthen their position through the inability to cross-examine the practitioner.

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