Hassell v Hillingdon Hospitals NHS Foundation Trust, Court of Appeal - Queen's Bench Division, February 06, 2018, [2018] EWHC 164 (QB)

Resolution Date:February 06, 2018
Issuing Organization:Queen's Bench Division
Actores:Hassell v Hillingdon Hospitals NHS Foundation Trust
 
FREE EXCERPT

Neutral Citation Number: [2018] EWHC 164 (QB)

Case No: HQ14C03779

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/02/2018

Before :

MR JUSTICE DINGEMANS

- - - - - - - - - - - - - - - - - - - - -

Between :

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Christopher Hough (instructed by Leigh Day) for the Claimant

Alexander Hutton QC (instructed by Clyde & Co) for the Defendant

Hearing dates: 15th, 16th, 18th, 19th and 23rd January 2018

- - - - - - - - - - - - - - - - - - - - -

Page 18

Mr Justice Dingemans:

Introduction

  1. This is the hearing of a claim for damages arising out of the treatment of Tracy Hassell (``Mrs Hassell'') by the Hillingdon Hospitals NHS Foundation Trust (``the NHS Trust'') from June until October 2011. Mrs Hassell had a C5/6 decompression and disc replacement operation on 3 October 2011 (``the operation'') which was performed by Mr Shaun Ridgeway (``Mr Ridgeway'') who is a spinal orthopaedic surgeon. Mrs Hassell suffered a spinal cord injury during the operation which has caused tetraparesis and rendered her permanently disabled. Mrs Hassell complains that Mr Ridgeway did not warn her that the operation might leave her paralysed and did not discuss other conservative treatments before the decision to have the operation was made, and says that the operation was negligently performed to cause damage to the spinal cord. The Trust says that Mr Ridgeway warned Mrs Hassell about the risks of paralysis and discussed other conservative treatment options, and says that Mr Ridgeway carried out the operation using reasonable care and skill.

    The issues

  2. The quantum of the claim has been agreed at £4.4 million and liability and causation are in issue. The real matters are in issue: (1) whether Mrs Hassell gave informed consent to the operation; (2) if not, whether Mrs Hassell would have had the operation in any event; (3) whether Mr Ridgeway carried out the operation in accordance with a reasonable and responsible body of spinal surgeons; and (4) if not, whether any failure to carry out the operation with reasonable care and skill caused the spinal cord damage suffered by Mrs Hassell.

    Relevant legal principles

  3. A doctor is under a duty to take reasonable care to ensure that a patient is aware of material risks of an operation and of any reasonable alternative to the operation, in order to obtain informed consent from the patient. This is to enable adult patients of sound mind to make for themselves decisions intimately affecting their own lives and bodies. It is also to avoid the occurrence of a particular physical injury the risk of which a patient is not prepared to accept, see paragraphs 5 and 18 of Chester v Afshar [2004] UKHL 41; [2005] 1 AC 134. In Montgomery v Lanarkshire Health Board [2015] UKSC 11; [2015] 2 AC 1450 at paragraphs 87 to 90 it was said that a doctor is ``... 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 treatment ... the doctor's advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risk of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed if the information provided is comprehensible''.

  4. A doctor also owes a duty to act with reasonable care and skill in performing an operation. It is established that a doctor will not be liable for negligence ``if he had acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art ...'', see Bolam v Friern Hospital Management [1957] 2 All ER 118 at 122, unless ``in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis'' where the Judge would be entitled to hold that the practice is not reasonable or responsible, see Bolitho v City and Hackney Health Authority [1998] AC 232.

  5. A claimant in a clinical negligence claim needs to establish that the injury in question was caused by the breach of duty. If Mrs Hassell can show that she did not give informed consent to the operation and that she would not have had the operation on 3 October 2011 then causation will be proved, see Chester v Afshar. If Mrs Hassell can show a failure to act with reasonable care and skill in performing the operation, Mrs Hassell will need to show that any such failure caused the spinal cord injury.

  6. There was reference to the principle of res ipsa loquitur and to prima facie cases in the helpful oral and written submissions from both Mr Hough and Mr Hutton QC. In O'Connor v Pennine Acute Hospitals NHS Trust at paragraph 64 Jackson LJ noted that ``it is not an uncommon feature of litigation that several possible causes are suggested for the mishap which the court is investigating. If the court is able, for good reason, to dismiss causes A, B and C, it may be able to reach the conclusion that D was the effective cause. But the mere elimination of A, B and C is not of itself sufficient. The court must also stand back and, looking at all the evidence, consider whether on the balance of probabilities D is proved to be the case''.

    The evidence

  7. I heard oral evidence on behalf of Mrs Hassell from: Mrs Hassell, the Claimant in the action; Mr Nicholas Todd, a consultant neurosurgeon who gave expert evidence; and Mr James Wilson-Macdonald, a consultant orthopaedic surgeon who gave expert evidence. I heard oral evidence on behalf of the Trust from: Mr Ridgeway, the consultant orthopaedic surgeon who carried out the operation; Mr Vikas Vedi, a consultant orthopaedic surgeon who had carried out an earlier hip arthroscopy on Mrs Hassell in 2011; Mr Andre Jackowski, a consultant neurosurgeon who gave expert evidence; and Mr Jonathan Johnson, a consultant orthopaedic surgeon who gave expert evidence. I read the witness statement of Ms Linda Howard, a clinical physiologist who had been present at the operation. Mr Todd, Mr Wilson-Macdonald, Mr Jackowski and Mr Johnson also produced reports and a joint statement.

  8. There were also agreed joint statements from: (1) Dr Wellesley St Clair Forbes, a consultant neuroradiologist instructed on behalf of Mrs Hassell, and Dr Neil Stoodley, a consultant neuroradiologist instructed on behalf of the Trust; (2) Dr Julian Blake, a consultant clinical neurophysiologist instructed on behalf of Mrs Hassell, and Dr Bryan Youl, a consultant clinical neurophysiologist instructed on behalf of the Trust; (3) Dr Guy Sawle, a consultant neurologist instructed on behalf of Mrs Hassell, and Professor Anthony Schapira, a professor of clinical neurology.

  9. There was much common ground in the evidence, and the matters set out below represent my findings of fact unless I have stated otherwise.

    Mrs Hassell's past back problems and her 2009 operation

  10. Mrs Hassell was born in 1970 and she is now aged 47 years. Mrs Hassell was aged 41 years at the time of the operation. Mrs Hassell now has 3 children and 2 grandchildren. When pregnant Mrs Hassell had been treated by an osteopath which Mrs Hassell had found helpful. At the material time in 2011 Mrs Hassell was working full time as head of year for years 7, 8 and 9 at a local secondary school which meant that she was responsible for behavioural and other issues for a number of pupils. Mrs Hassell referred in her evidence to having to keep control of pupils in the playground.

  11. Mrs Hassell noted that she had had intermittent joint pain over the course of her life with occasional flare ups. In about late 2008 to 2009 Mrs Hassell began to develop lower back pain. Mrs Hassell could not get comfortable and reported matters to her GP. She was referred to physiotherapy but Mrs Hassell found that the physiotherapy made the pain worse. An MRI showed L5/S1 spondylolisthesis. The L4/5 and L5/S1 discs were degenerate. There was a small right paracentral disc protrusion at L4/5.

  12. Mrs Hassell was referred to Mr Ridgeway on 27 February 2009. In the referral there was noted to be a 1 year history of low back pain which had increased over the past 2 months. On 21 April 2009 Mrs Hassell had a consultation with Mr Ridgeway. There is a dispute between Mrs Hassell and Mr Ridgeway about whether Mr Ridgway said that Mrs Hassell might end up in a wheelchair within a year without an operation.

  13. Mrs Hassell said that after the examination Mr Ridgeway discussed the findings and said that Mrs Hassell would be in a wheelchair within a year's time and that she needed an urgent operation. Mrs Hassell said that she had a good relationship with Mr Ridgeway who was supportive and helpful. Mrs Hassell said ``I do not remember him telling me in much detail about the risks of the back operation, but I know that I was in shock when I was told I would need an operation. I remember him mentioning the general risks about having full anaesthetic, but he told me that it was a routine operation.''

  14. Mr Ridgeway said that he concluded that Mrs Hassell had demonstrated L5/S1 spondylolisthesis with degenerative changes at this level and nerve root impingement. Mr Ridgeway reported that Mrs Hassell had exhausted conservative management by way of analgesics and physiotherapy and was keen to explore surgery. Mr Ridgeway said that in accordance with his usual practice he outlined the risks to Mrs Hassell. Mr Ridgeway said that these were infection of 1-2 %, nerve root injury of 1 to 2 in 100, dural tear of less than 5 %, DVT, PE and haematomas which may require further drainage, non-union and adjacent-level problems. Mr Ridgeway said that in other words he had explained to Mrs Hassell that spinal surgery was not without risks.

  15. At the conclusion of the...

To continue reading

REQUEST YOUR TRIAL