Factual and Procedural Background
This case concerns a claim for damages arising from the treatment of the Plaintiff by the NHS Trust between June and October 2011. The Plaintiff underwent a C5/6 decompression and disc replacement operation on 3 October 2011 performed by the Defendant, a spinal orthopaedic surgeon. During the operation, the Plaintiff suffered a spinal cord injury resulting in tetraparesis and permanent disability. The Plaintiff alleges that the Defendant failed to warn her of the risk of paralysis and did not discuss alternative conservative treatments before the operation, and that the operation was negligently performed causing spinal cord damage. The Defendant denies these allegations, asserting that the Plaintiff was warned of the risks, that alternative treatments were discussed, and that the operation was carried out with reasonable care and skill.
The quantum of damages was agreed at £4.4 million, with liability and causation remaining in issue. The key issues before the court were whether the Plaintiff gave informed consent, whether she would have undergone the operation if properly informed, whether the Defendant performed the operation in accordance with accepted medical standards, and if not, whether any breach caused the injury.
The court heard oral evidence from the Plaintiff, multiple expert neurosurgeons and orthopaedic surgeons for both parties, and reviewed joint expert statements. The court made findings of fact based on this evidence.
Legal Issues Presented
- Whether the Plaintiff gave informed consent to the operation.
- If informed consent was not given, whether the Plaintiff would have undergone the operation regardless.
- Whether the Defendant performed the operation in accordance with a reasonable and responsible body of spinal surgeons.
- If not, whether any failure in care and skill caused the spinal cord injury.
Arguments of the Parties
Plaintiff's Arguments
- The Defendant failed to warn the Plaintiff of the risk of paralysis arising from the operation.
- The Defendant did not discuss alternative conservative treatments such as physiotherapy or further injections before the operation.
- The operation was negligently performed causing spinal cord injury and permanent disability.
- The Plaintiff would not have consented to the operation if properly informed of the risk of paralysis and alternative treatments.
Defendant's Arguments
- The Defendant warned the Plaintiff of the risks of paralysis and other complications prior to the operation.
- Alternative conservative treatments were discussed, including physiotherapy, osteopathy, analgesia, and injections.
- The operation was performed with reasonable care and skill in accordance with accepted medical practice.
- The cause of the spinal cord injury is unknown and could not be attributed to any breach of duty by the Defendant.
- The Plaintiff would have undergone the operation even if fully informed.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134 |
Duty of doctor to inform patient of material risks to enable informed consent; causation if patient would not have undergone operation if informed. |
Applied to establish that failure to warn of risk of paralysis could establish causation if Plaintiff would not have consented. |
| Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] 2 AC 1450 |
Doctor's duty to take reasonable care to ensure patient is aware of material risks and reasonable alternatives through dialogue. |
Applied to assess whether Defendant fulfilled duty to inform Plaintiff of risks and alternatives. |
| Bolam v Friern Hospital Management [1957] 2 All ER 118 |
Standard of care measured by practice accepted as proper by responsible body of medical men skilled in the art. |
Applied to determine if Defendant's surgical technique met accepted professional standards. |
| Bolitho v City and Hackney Health Authority [1998] AC 232 |
Judicial scrutiny of professional opinion to ensure it withstands logical analysis. |
Applied to consider if the professional opinion supporting Defendant's conduct was reasonable. |
| O'Connor v Pennine Acute Hospitals NHS Trust [2010] EWCA Civ 1340 |
Approach to causation when multiple causes are suggested; elimination of other causes and balance of probabilities. |
Referenced in assessing causation of spinal cord injury. |
| Thefaut v Johnstone [2017] EWHC 497 |
Informed consent requires sufficient time and information prior to operation, not on day of surgery. |
Applied to reject consent given on day of operation as insufficient for informed consent. |
Court's Reasoning and Analysis
The court began by examining the duty of the Defendant to ensure the Plaintiff was aware of material risks and alternative treatments to enable informed consent, citing established legal principles from Chester v Afshar and Montgomery v Lanarkshire Health Board. The court found that the Defendant failed to adequately warn the Plaintiff of the risk of paralysis or discuss alternative conservative treatments such as physiotherapy and further injections prior to the operation.
The court assessed the credibility and consistency of evidence, noting the Defendant's poor communication regarding risks and inconsistencies in his testimony and documentation. The Plaintiff’s detailed and specific recollections of other risks (such as hoarseness) contrasted with her clear denial of being warned about paralysis, which the court accepted as credible.
Regarding the surgical performance, the court found that the Defendant acted with reasonable care and skill. Expert evidence confirmed that the use of monopolar diathermy as described was consistent with accepted practice and unlikely to have caused the spinal cord injury. The court acknowledged that the precise cause of the injury could not be determined on the balance of probabilities due to multiple plausible explanations and limitations of medical science.
The court applied the causation principles, concluding that because the Plaintiff was not properly informed and would not have consented to the operation if fully informed, causation was established under Chester v Afshar. The failure to warn was therefore causative of the injury.
Holding and Implications
The court held in favor of the Plaintiff and awarded damages in the agreed sum of £4.4 million.
The ruling is based on the finding that the Defendant breached the duty of care by failing to obtain informed consent through adequate disclosure of material risks and alternative treatments. The Defendant’s surgical performance was found to meet the standard of care and was not causative of the injury. The decision confirms the importance of thorough and clear communication to patients regarding risks and alternatives prior to surgery, reinforcing established legal principles on informed consent.
No new legal precedent was established; the decision applied existing principles to the facts of the case. The direct effect is the award of damages to the Plaintiff for the injury caused by the lack of informed consent.