Update | Clinical negligence: Wrongful conception, delayed diagnosis of cancer

In Denise Less and Michael Carter v Sarah Hussain [2012] EWHC 3513 (QB), HHJ Cotter QC had to determine whether a private gynaecologist had breached her duty of care in advising the claimants to proceed with conception in the presence of a known thromboembolic condition and whether any such breach had been responsible for injury, including the stillbirth of the claimants’ subsequent child and consequential psychiatric injury.

It was the claimants’ case that Mrs Hussain (H) had not given proper advice about the risks of pregnancy and that, had such risks been explained, Ms Less (L) would not have fallen pregnant. The judge accepted the argument on breach of duty, and further accepted that H should have had a “failsafe” mechanism to ensure that L attended a second appointment. However, on all the evidence, the judge concluded on factual causation that, even if proper advice had been given, the claimants would have proceeded with conception anyway, and thus there was no causative effect of the breach. The claimants, therefore, failed.

Subject to the finding on causation, the judge also commented obiter on the scope of the duty of care i.e. did the injuries, namely the conception, pregnancy, “red degeneration” (of fibroids), pain in pregnancy, stillbirth and consequential psychiatric injury, fall within the scope of the duty that had been breached?

In relation to L, the judge concluded that to satisfy the duty of care the doctor must give sufficient information to enable the patient to make a balanced judgment. That did not happen here, and L fell pregnant. The starting point for personal injury of this nature was conception (Walkin v South Manchester Health Authority [1995] 1 WLR 1543 as approved in McFarlane v Tayside Health Board [2000] 2 AC 59) and, given the advice in this case was about conception, the judge considered that the loss of the baby during term was a kind of loss in respect of which a duty was owed, and it made no difference that the precise mechanism was not foreseen. He also considered that it would have been fair, just and reasonable for the defendant to compensate Ms Less for her injuries on the basis that a mother of a disabled child can recover for wrongful conception. While she would have been entitled to some pain, suffering and loss of amenity, and special damages, she was however not entitled to a Rees award (Rees v Darlington [2004] 1 AC 309), as there would have been no loss of autonomy as identified in Rees and McFarlane.

In relation to Mr Carter (C), who did not suffer any physical injury, the judge concluded that although he was not a primary victim he was a secondary one (as per Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310); however, his bereavement reaction was not caused by the result of “shock” i.e. the sudden appreciation by sight or sound of the hugely distressing events he witnessed, so his claim could not be made out. Further, he would not be able to recover for mental distress for breach of contract to L which was also for C’s benefit, following Yearworth v North Bristol NHS Trust CA [2009] LS Law Med 126, as not only were damages for mental distress not recoverable in negligence (Page v Smith [1996] AC 155) but also H had not been put on notice of the intended wider nature of the benefit of the contract as she did not know of the existence or identity of C at the time of the performance of the contract with L.

‘Well done’

In Jane Dove v Andrew Jarvis (6 February 2013), the claimant (C), who was aged 37, brought a claim against a private consultant orthopaedic surgeon (D) alleging that a hip arthroplasty he had performed had been carried out negligently, in that he had fixed the acetabular cup facing too far forwards (anteversion), resulting in excessive impingement of the cup and the femoral neck. This had resulted in D requiring a revision and she had ongoing pain in her hip. It was accepted between the orthopaedic experts that the cup was too vertically orientated and that this led to the impingement, but they disagreed as to the severity of the impingement and whether the excessive vertical orientation was consistent with, and implied, acceptable skill and technique. It was, however, largely agreed that there is a risk of impingement in total hip replacement surgery of approximately 36 per cent, although it was very seldom the reason for revision. It was also accepted by D that C had had an “imperfect operation”.

In finding for D, the judge (James Goudie QC) concluded that the degree of anteversion was about 35-45 degrees, that this was not “severe” and that anteversion of over 40 degrees is found in 5 per cent of total hip replacement patients, albeit that anteversion of over 25 degrees was not optimal. However, being outside the “optimal range” (of five degrees to 25 degrees) was not ipso facto substandard. He concluded, therefore, that neither the extent of anteversion nor the bad outcome meant that D had been negligent. The judge also concluded that an assurance by D to C that the operation would be “well done” with the subsequent acceptance (by D’s own oral admission) that it was not “well done” did not create a contractual duty of skill and care higher than the tortious (Bolam) duty of skill of care. C, therefore, failed.

In another private medicine case, Hani Hussain v King Edward VII Hospital [2012] EWHC 3441 (QB), the claimant (H), aged 32 at the time, brought an action against the defendant hospital (K) for shoulder pain that he developed while undergoing an unrelated cystoscopy procedure. He had not had any shoulder problems prior to this procedure. The problems had subsequently become continuous and persistent.

The claimant pleaded a case of res ipsa loquitur, namely that the facts, as known to the claimant, give rise in themselves to a prima facie case of negligence, following which the judge, on all the evidence, may draw an inference of negligence (as per Ratcliffe v Plymouth & Torbay HA [1998] Lloyd’s Rep Med 162). It is sufficient for the defendant to rebut this inference with a causal explanation that is merely plausible; it does not have to be probable.

In this case, the claim was essentially that one or more members of staff must have done something, or omitted to do something, during the period when H was anaesthetised, which damaged his shoulder. It was apparent from the facts of the case that something happened to H’s shoulder during the anaesthetic. However, it was also apparent from the evidence that his shoulder already had (asymptomatic) degenerative changes and these had been acutely exacerbated causing an impingement syndrome; the judge considered that this evidence was sufficient to rebut an inference of negligence. Further, K was able on the evidence to demonstrate that all reasonable care had been taken. Eady J., therefore, found for the defendant.

In another case involving hip surgery, Mackenzie v Chelsea & Westminster Hospital NHS Foundation Trust (21 December 2012), Foster J had to consider whether the claimant’s permanent nerve damage following a hip replacement had been caused by the defendant hospital taking too conservative an approach post-operatively.

The claimant (M), aged 38, who had undergone a resurfacing hip replacement surgery for congenital dislocation of her right hip, suffered post-operatively with a drop in her haemoglobin levels and a tachycardia, treated with blood transfusions and anticoagulants. After a further drop in her haemoglobin, she was taken back to theatre and a large haematoma caused by a bleeding artery were treated. However, following this second operation, M was left with right sciatic nerve damage.

In finding for the defendant, Foster J concluded that, in relation to breach of duty, treating M conservatively initially after the first operation was an acceptable practice, as there were no indicators of ongoing bleeding. In relation to causation, M would also have failed, because the nerve damage symptoms did not appear until after the second surgery and, to establish the arterial bleed as the cause, M would have had to have shown that the symptoms had occurred in the 24 hours prior to the ?second surgery.

Shortened life expectation

In Paula Drabble v Ian Hughes (23 January 2013), Recorder Sweeting QC had to consider whether a general dental practitioner (D) had been negligent in his delay in referring the claimant (C) for investigation of a lesion in the lower left side of her mouth for a period of some ten months. The lesion, which was operated upon just over a year after the events in question, was a tumour and required surgical excision, radiotherapy and chemotherapy. The claimant had been ?left with some residual functional ?problems, despite otherwise having made a good recovery.

It was common ground that earlier treatment would have resulted in less invasive treatment and a better functional outcome. The level of damages had been agreed. There was, however, a narrow dispute of fact remaining between C and D as to what had happened at the consultation in June 2008 at which C alleged that D failed to identify the lesion and refer.

In finding for D, the judge preferred the evidence of the defendant dentist, concluding that it was improbable that he would have failed on the occasion in question, and four subsequent occasions, to have observed the change in the lesion, and also to have failed to note C’s concerns about such change. He concluded on the facts that D had reviewed the lesion regularly and the dental records reflected what actually had happened: C had not made a complaint about the lesion at the time in question, notwithstanding her evidence to the contrary.

Another case concerning cancer required the court to determine the issue of causation rather than breach of duty. In JD v Dr Melanie Mather [2012] EWHC 3063 (QB), Bean J had to consider the causative effect of the defendant’s failure to diagnose a malignant melanoma in the claimant’s groin, resulting in a delay in treatment of some six months.

On the evidence, the judge concluded that on balance the claimant’s melanoma in March 2006 was probably at Stage IIIB of the AJCC Staging, namely an ulcerated primary tumour with at least one regional node micrometastasis. By October 2006, it had reached Stage IIIC, an ulcerated tumour with two macroscopic regional nodes.

It was agreed by counsel that by March 2006 the chances of surviving another ten years were already less than 50 per cent, and thus the principal claim could not succeed in accordance with the causation principles in Gregg v Scott [2005] UKHL 2, [2005] 2 A.C. 176. However, the alternative case, which was not initially pleaded but which was allowed, was that the claimant’s prospects were worsened in the form of a reduced expectation of life. The judge accepted this argument and concluded that the delay had resulted in a reduced expectation of life of three years.