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Parsons v Isle of Wight NHS Trust
Factual and Procedural Background
The Plaintiff was a patient at The Hospital in 2018, diagnosed with bowel cancer and advised to undergo a right hemi-colectomy, which was successfully performed. Prior to the operation, ten attempts were made by consultant anaesthetists to place a Trocar for epidural anaesthetic to provide post operative pain relief (POPR). One attempt penetrated beyond the epidural space, damaging the spinal cord at T11/T12 and causing a haematoma extending from L1 to L3. The Plaintiff suffered lasting neurological symptoms affecting mobility and daily function. The quantum of damages was agreed at £1.3 million, but liability was contested.
The claim concerns clinical negligence, focusing on whether informed consent was obtained for the unconscious epidural attempts (UEPIs) following failed waking epidural attempts (WEPIs), and whether the number and technique of the epidural attempts constituted negligent treatment. The Plaintiff alleged failure to inform about POPR alternatives, excessive number of epidural attempts, and negligent technique. The Defendant denied breach and asserted proper consent and reasonable clinical practice.
The procedural history includes pre-action correspondence from March 2020, the claim form issued in June 2021, and amendments to the Particulars of Claim shortly before trial. The trial was to determine liability only, with experts and lay witnesses called to give evidence.
Legal Issues Presented
- Whether the Defendant's anaesthetist obtained the Plaintiff's informed consent to perform unconscious epidural anaesthetic attempts after failed waking attempts.
- Whether performing the last several epidural attempts with the Trocar, including unconscious attempts, constituted negligent treatment.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff did not consent to unconscious epidural attempts after three failed waking attempts.
- The Defendant failed to provide adequate information about alternative POPR options, including patient controlled analgesia (PCA).
- The number of epidural attempts was excessive and increased the risk of injury.
- The Plaintiff suffered neurological injury caused by the epidural attempts, particularly the unconscious ones.
Defendant's Arguments
- The Plaintiff was provided with information and consented verbally to epidural attempts, including unconscious attempts.
- An information leaflet was given prior to surgery outlining POPR options.
- The number of epidural attempts was within reasonable professional practice.
- There was no negligent technique used during the epidural attempts.
- Causation of injury was disputed but the Defendant denied liability.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Bolam v Friern Hospital [1957] 1 WLR 582 | Standard of care for professionals: a defendant is not negligent if acting in accordance with a responsible body of medical opinion. | The Court applied the Bolam test to assess whether the Defendant's actions met the standard of a reasonable body of anaesthetists. |
| Bolitho v City and Hackney HA [1998] AC 232 | Expert medical opinion must have a logical basis and be defensible to be accepted by the Court. | The Court evaluated expert opinions on the reasonableness of the number of epidural attempts and consent procedures against the Bolitho standard. |
| Montgomery v Lanarkshire [2015] AC 143 | Doctors must take reasonable care to ensure patients are aware of material risks and reasonable alternatives to treatment to obtain informed consent. | The Court held that the Defendant failed to obtain informed consent by not adequately informing the Plaintiff of POPR alternatives before the unconscious epidural attempts. |
| Ikarian Reefer: National Justice v Prudential Assurance [1993] 2 Lloyd's Rep. 68 | Guidance on expert witness duties: independence, objectivity, and full disclosure of assumptions and qualifications. | The Court assessed expert evidence in light of these principles, preferring evidence that was objective and within expertise. |
| CNZ v Royal Bath [2023] EWHC 19 (KB) | Considerations in assessing witness credibility and informed consent in clinical negligence. | The Court applied principles from this case to evaluate lay and expert witness evidence, particularly on consent and memory reliability. |
Court's Reasoning and Analysis
The Court analysed the factual and expert evidence on the consent process, clinical practice, and causation. It found that the Plaintiff was given an outdated leaflet about POPR options on 28 June 2018, which she did not read, and that the pre-anaesthetic assessment on 29 June 2018 failed to document discussion of alternatives to epidural anaesthesia.
On 2 July 2018, the Defendant's anaesthetist (Doctor Rice) verbally consented the Plaintiff for epidural anaesthesia but did not inform her of alternatives such as PCA, nor did she document this consent or discussion on the Anaesthetic Record. The Court found the Plaintiff's evidence that she was not informed of alternatives more credible than Doctor Rice's delayed recollection.
Doctor Rice made three waking epidural attempts which failed and caused distress, but the Court rejected the Plaintiff’s assertion that she asked Doctor Rice to stop after the third attempt. Subsequently, unconscious epidural attempts were made without further informed consent, constituting a battery. The Court found that the number of attempts (ten in total) was at the upper limit of reasonable practice but not negligent, based on expert evidence and the Bolam test.
The Court found that the spinal cord injury occurred during the unconscious epidural attempts, which were carried out without informed consent. The Defendant’s failure to obtain further consent before these attempts was a breach of duty. The Court rejected claims of negligent technique due to insufficient evidence.
The Court critically assessed the credibility of witnesses, preferring contemporaneous medical notes over later recollections, and found Doctor Rice’s evidence on consent and note-taking to be unreliable in key respects. Expert evidence was weighed carefully, with preference given to the more independent and detailed expert.
Holding and Implications
Judgment was entered for the Plaintiff. The Court held that the Defendant breached the duty of care by failing to obtain informed consent for the unconscious epidural attempts, which caused the Plaintiff's spinal cord injury and consequent damages.
The agreed damages amount to £1.3 million. The Defendant’s conduct in consent and record-keeping was deficient. However, the number of epidural attempts was not found negligent. The decision does not establish new precedent but reinforces the importance of informed consent and accurate documentation in clinical negligence cases.
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