Developments in clinical negligence
Dr Jock Mackenzie rounds up recent case law, including a decision on whether a claimant was contributorily negligent for failing to draw attention to changes in his treatment plan
In Holdsworth v Luton and Dunstable University Hospital NHS Foundation Trust  EWHC 3347 (QB), HHJ Freedman had to consider whether an orthopaedic surgeon (K) had been negligent in performing a unicompartment knee replacement (UKR) in a patient (H) whose knee, which had grade II and III osteoarthritis with symptoms only temporarily relieved by steroid injections, derived no benefit and in circumstances in which only a minority of surgeons would have performed it.
K, who the judge considered to be a caring and careful consultant, had discussed with H in detail the treatment options and asserted that H was intent on proceeding with such surgery. The court agreed, but also concluded that it was for the clinician, not the patient, to decide on the appropriate course of treatment, whatever the insistence of the patient.
Neither expert witness would have offered UKR but both agreed a minority of surgeons would have done so in H’s particular circumstances. In such circumstances, the defendant expert considered K’s decision was reasonable whereas H’s expert did not. However, the court concluded that the decision to perform the surgery had both been reasonable and did withstand logical analysis; additionally, H had properly consented to such surgery.
In another surgical case, Worrall v Antoniadou  EWCA Civ 1219, the Court of Appeal (Lord Justice Tomlinson and Lord Justice David Richards) had to consider a defendant plastic surgeon’s (A) appeal against a finding of negligent breast surgery. The claimant’s (W) case was that she underwent a breast augmentation procedure in reliance upon A’s negligent advice, namely that W would not need further surgery, a mastopexy, for five to ten years. W in fact needed such surgery after only ten months. W claimed she would not have undergone the augmentation at age 28 had she been given correct advice.
The judge at first instance found that A had not given the advice alleged, but that A had let W leave the consultation with the impression that she would not need a mastopexy for at least five years, and for that (only) she had been negligent.
However, in finding for A on appeal, the Court of Appeal concluded that while the judge may have been justified in finding it was inherently likely that W would have pressed A for a timescale within which a mastopexy would be necessary, he was not justified in concluding that W couched that enquiry in a manner which would have made it reasonably apparent to A that her non-committal answer (given as such because she did not know the answer) could reasonably be interpreted as an assurance that a mastopexy would not be necessary for up to five to ten years. This was the judge speculating in a manner which lacked any sure foundation and the finding was not open to him on the evidence. Accordingly, W’s claim had to fail.
In Crossman v St George’s Healthcare NHS Trust  EWHC 2878 (QB), HHJ Peter Hughes QC had to determine the issue of causation of the claimant’s (C) nerve injury, the defendant trust (G) having admitted breach of duty with respect to the implementation of C’s treatment plan.
C had undergone an MRI of his cervical spine to investigate left arm numbness and pain and restricted movement in his neck. The scan revealed degenerative changes and constitutional spinal canal narrowing. A consultant (P) discussed the options available and advised conservative treatment, including physiotherapy, with a three-month review.
Despite this, C was placed on the surgery waiting list and no review appointment was made, with G sending C two letters inviting him to attend for pre-operative assessment and surgery in a month. C assumed there had been a mistake and contacted G, but was told that if he did not attend for surgery, he would be put to the end of the waiting list. C duly attended and shortly thereafter underwent a laminectomy and foraminotomy performed by P. The surgery initially appeared to have been successful, but it subsequently transpired that C had suffered a C5 radicular nerve injury, a risk of 0.5 per cent.
G admitted breach of duty in relation to the failure: (i) to follow a conservative management plan; (ii) to enquire with C prior to surgery whether the conservative plan had been completed; and (iii) to inform C prior to surgery that he should undergo conservative management as a first option.
The judge had to determine whether C was contributory negligent in failing to raise with G that conservative management had been advised and whether C had established causation. G asserted that even though C’s surgery would have been three months later absent the breaches, this would not have materially affected the radicular injury.
The judge concluded that C could not be at fault for not raising with G the change in treatment plan: the responsibility was on G. Once C had been informed of the plan for surgery, and while other patients might have reacted differently, C would not have seen it as his place to question the change (Montgomery v Lanarkshire Health Board  2 All ER 1031 applied).
On causation, the judge concluded that C’s claim would succeed on traditional causation principles. The fact that things went wrong during surgery was not a predictor that things would go wrong on another occasion. Indeed, because the risks were so low, and even if they were a little higher in C’s particular case, the surgery almost certainly would not have gone wrong: C had been unlucky. On balance, the nerve injury would not have occurred with later surgery and C succeeded on traditional causation principles (Chester v Afshar  4 All ER 587 distinguished).
In another neurosurgical case, Harris v Johnston  EWHC 3193 (QB), the defendant neurosurgeon (J) successfully defended a claim against him that his technical performance of a foraminectomy had been substandard when a Cobb dissector had penetrated the dura and come into contact with the spinal cord, causing the claimant’s (H) injury.
However, Mrs Justice Andrew’s judgment focused on H’s neurosurgical expert, of whom the judge was very critical. The expert had failed to appreciate before trial that the instrument that J had used was a Cobb dissector, a blunt instrument, and not a Cobb retractor, a sharp instrument: he had based his opinion of negligence largely on this misassumption, even though the error had been flagged during the experts’ discussion. This suggested that the expert had not read properly the material before him; he had also failed, in breach of duty, to check his assumption and raise questions clarifying the issue.
Additionally, the expert had been criticised a few months previously in another case regarding making factual assumptions without confirming their accuracy, which made his present failure even more troubling. Further, the expert introduced during cross-examination two new (and implausible) mechanisms to explain the injury.
Overall, the judge concluded that the expert’s conduct not merely damaged his credibility as a witness but led to her having to disregard his evidence in its entirety. As a result, only J’s expert evidence could be considered, and H’s case failed.
Delay in care
In another case heard by HHJ Freedman, Welds v Yorkshire Ambulance Service NHS Trust and Sheffield Teaching Hospitals NHS Foundation Trust  EWHC 3325 (QB), the court had to consider whether the ambulance service (Y) had delayed in taking the claimant’s mother (D) to the hospital (S) following a large antepartum haemorrhage, and whether there had been a delay by S in obtaining an obstetric review following arrival.
The claimant (W) submitted that Y should have spent no more than ten minutes at the scene, a saving of three minutes, and that the obstetrician should have seen D within four minutes, a saving of seven minutes, with a total saving of ten minutes, a delay which materially contributed to W’s hypoxic ischaemic brain injury causing dystonic cerebral palsy.
The judge concluded that Y had been in breach in failing to appreciate the seriousness of W’s mother’s condition, but that W had failed to show that the time in transporting D to hospital had been outside the reasonable range. Additionally, there had been no unreasonable delay in the obstetrician attending D and it was in accordance with standard practice. Accordingly, W’s claim failed.
Meanwhile, in Baynham v Royal Wolverhampton Hospitals NHS Trust  EWCA Civ 1249, the Court of Appeal (Lord Justice Jackson, Lady Justice Black, and Lady Justice Gloster) had to consider whether to allow an appeal by the claimant (B) that an admitted 30-minute delay by the defendant (R) in performing a caesarean section had resulted in B’s cerebral palsy.
In rejecting the appeal, the court concluded that (a) the judge at first instance made an assessment of the expert witnesses and, absent some serious and obvious error by the judge (which was not the case), the court cannot go behind that assessment; (b) the judge’s comment that the fact that B’s case had ‘evolved’ was unfortunate but not significant; (c) neither inconsistencies between R’s defence and expert reports nor between R’s experts’ evidence were grounds for disturbing the judge’s conclusions; and (d) the judge had not erred in his weighing of the evidence and had reached a perfectly reasonable conclusion.
Dr Jock Mackenzie is a partner and solicitor advocate at Anthony Gold. He is a dual qualified doctor of medicine and a solicitor