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
 
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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

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Between :

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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

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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 consultation Mr Ridgeway dictated a letter in the presence of Mrs Hassell, in accordance with his usual practice, in which he recorded under Plan ``We discussed treatment options. Spondylolisthesis at this level is a progressive disorder and ... I have recommended surgery with decompression and fusion ... Tracey is aware of the surgery risks which entail 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''.

  16. There was a pre-operative assessment on 11 May 2009 and a consent form was signed on the day of the lower back operation on 19 June 2009. On the consent form, adjacent to the printed ``serious or frequently occurring risks'' heading, was written ``infection, nerve damage (numbness), vascular damage (haemorrhage, bleeding), dural tear, CSF collection, leak, deep vein thrombosis, thromboembolism''. Mr Ridgeway said that nerve injury could manifest as numbness, weakness or paralysis. In this respect Mr Ridgeway equated weakness with paralysis.

  17. The decompression and trans foraminal interbody fusion operation was carried out. After the operation Mrs Hassell wore a metal brace jacket and there was some delay in making that which meant that Mrs Hassell was in hospital longer than expected.

  18. The operation improved Mrs Hassell's back pain but her left foot and leg pain was no better. A nerve root block injection was carried out into L4/5 L5/S1 by Mr Ridgeway in August 2009. By September 2009 Mrs Hassell was walking on high heels, although she had developed left groin pain and left lateral buttock and thigh pain. Mr Ridgeway said that he arranged physiotherapy because he still suspected that Mrs Hassell was having difficulty at L5/S1 level.

  19. Mr Ridgeway said that he reviewed the imaging and formed the view that there were marked congenital abnormalities which could explain ongoing symptoms. His plan was to review her after physiotherapy.

  20. I am satisfied on the balance of probabilities and find that Mr Ridgeway must have said something about the possibility of Mrs Hassell ending up in a wheelchair if she did not have the operation in this discussion in 2009. This is because otherwise Mrs Hassell would not have the memory of that conversation. I am also satisfied that Mr Ridgeway did give Mrs Hassell warnings about the risks set out in the letter dated 27 February 2009 which was dictated in front of her, but it is apparent that the risk of paralysis was not identified at this time. (I should also record as a matter of fairness to Mr Ridgeway that there was evidence from the experts that for lower back operations that the risk of paralysis was not commonly spelt out in 2009 and different words were used to described the risk of cauda equina).

    Hip pain, the hip operation in 2011 and the reporting of problems with the upper arm

  21. On 20 July 2010 Mr Ridgeway reviewed Mrs Hassell again. Mrs Hassell was very pleased with the result of the operation on her lower back, and she was walking and sitting normally. Mrs Hassell said that she had developed a dull ache in the middle of her left groin and hip area. A MRI scan had shown that she had a left labral tear and Mr Ridgeway referred Mrs Hassell to Mr Vedi for an opinion.

  22. In November 2010 Mr Vedi noted that the labral tear looked small and treatment options were discussed including targeted injection against hip arthroscopy. It was agreed that a targeted injection would be pursued.

  23. The injection was given and in January 2011 it was reported that apart from a few hours Mrs Hassell did not get much relief from the steroid injection. Mr Sarraf, a Registrar in Trauma and Orthopaedics working under Mr Vedi, reported that hip symptoms had remained. After a long discussion a hip arthroscopy had been decided to be pursued, and risks of the procedure were noted to include DVT, PE, non-weight bearing for a week, as well as potential nerve injury and failure of the operation. Mrs Hassell was noted to be happy to proceed.

  24. On 25 January 2011 Mrs Hassell was reviewed again by Mr Ridgeway. Mrs Hassell was noted to be easily managing her back symptoms and L5 root symptoms which had failed to improve. The main problem was Mrs Hassell's groin. It was at this consultation on 25 January 2011 that there was first reported the problems with the arm. Mrs Hassell complained of pain in her left arm with a dull ache with restricted abduction/external rotation which Mr Ridgeway was concerned was an impingement or tear in the cuff. Mr Ridgeway arranged an ultrasound scan and MRI scan. Mrs Hassell said that she struggled to hold the steering wheel while driving because she had reduced strength and the pain was too much. Mr Ridgeway said that this was an entirely discrete source of pain which was not referable to Mrs Hassell's groin, hip or lower back.

  25. On 17 March 2011 an MRI scan was carried out. This showed a left paracentral disc lesion at C5/6. There was no evidence of exit foraminal stenosis but some deformity of the dural sac was recorded together with flattening of the spinal cord on the left side at that level.

  26. On 22 March 2011 Mrs Hassell completed a health survey. This showed that Mrs Hassell reported her health to be very good and that she was ``somewhat better now than one year ago''. Mrs Hassell recorded no limitation with bathing and dressing, that she was limited a little with moderate activities, with lifting and carrying groceries, climbing one flight of stairs, and walking one or more blocks. Mrs Hassell recorded that she was limited a lot with vigorous activities, climbing several flights of stairs, bending, kneeling or stooping and walking more than a mile. There were other answers recorded which included that there had been interference because of the problems with Mrs Hassell's social activities ``most of the time'' but that the proposition that ``my health is excellent'' was ``mostly true''. An ultrasound of the left shoulder was carried out on 24 March 2011 which was normal.

  27. On 29 March 2011 Mrs Hassell saw Mr Ridgeway again. The left arm pain had not improved and the MRI scan was noted to show a disc protrusion at C5/6 with foraminal and disc compression on the left side. Mr Ridgeway said that Mrs Hassell's presentation was complex and combined, but that: the hip/groin; back; and arm/shoulder issues; were completely unrelated, although it was important to treat Mrs Hassell in the round. A CT guided injection was booked.

  28. The treatment for Mrs Hassell's hip problems continued under Mr Vedi. A hip arthroscopy was carried out on 16 May 2011 and a consent form was completed. The risk outlined included that there would be no benefit, infection, DVT/PE, haematoma, nerve injury and further treatment. An operation was carried out by Mr Vedi and the labral tear in the hip was repaired.

  29. On 7 June 2011 Mrs Hassell had the injection into C5/6 but there was no relief. By 22 June 2011 Mrs Hassell was reporting a 70-80 per cent improvement in her symptoms in her hip and was delighted with the results.

    The decision to have the operation

  30. Mrs Hassell saw Mr Ridgeway again about her problems on 28 June 2011. Mrs Hassell reported that her main problem was neck pain, and this was recorded by Mr Ridgeway to be radiating down into the left ulna C6 distribution. Mr Ridgeway noted that Mrs Hassell had a C5/6 left sided disc protrusion and degenerative disc which probably accounted for her symptoms. Mrs Hassell also complained of blurred vision, left ear pain as well as the neck pain. Mr Ridgeway therefore arranged for a brain MRI scan, which was carried out on 25 July 2011 and was normal.

  31. By the conclusion of the consultation it is common ground that Mrs Hassell agreed to have carried out an anterior cervical discectomy (removing the disc) and, depending on what was discovered in the operation, either fusion (fusing the C5 and C6 bones) or disc replacement (inserting a prosthetic disc). However there is a conflict of evidence about what was said between Mrs Hassell and Mr Ridgeway on 28 June 2011 about the risks of the operation and alternative conservative treatments.

  32. Mrs Hassell said that on 28 June 2011 she was told that after the failure of the cortisone injection the only alternative step would be to remove the disc and replace it with a titanium one, but that in the worst case scenario the spine would have to be fused although that could only be decided during the operation when the damage was clear. Mrs Hassell said that there had been no discussion about other treatment options such as the use of different pain killers or physiotherapy. Mrs Hassell said that it was described as quite regular surgery and she agreed to have the operation. Mrs Hassell said that she was told about general risk about infection and the risk of having full anaesthetic, and reported that Mr Ridgeway said that Mrs Hassell knew all about the risks because she had had the operation before. Mrs Hassell said that Mr Ridgeway was going into her neck going past her voice box which could cause her to have a hoarse voice for a time. Mrs Hassell said that she was told that this risk was said to be 1 in 1000 and not 2 in 100. Mrs Hassell said she particularly remembered what was said about her voice because she was a bit of a chatterbox and she also needed to be able to shout across the playground on occasions. Mrs Hassell remembered being worried about that risk and asking how long it would last, and that Mr Ridgeway said that it would be only for a couple of weeks. Mrs Hassell did not recall any discussion about DVT or PE. Mrs Hassell said Mr Ridgeway did not tell her about nerve damage, did not mention risks to the spinal cord and never mentioned that there a risk of paralysis. Mrs Hassell said that she was certain about this because if he told her about a risk of paralysis Mrs Hassell would have asked more questions about it.

  33. Mrs Hassell said that if she had known about the risks of paralysis she would not have had the operation. She said that she would have asked more about the 1 in 1000 risk of paralysis and would have pursued the alternative conservative management.

  34. Mr Ridgeway said that it was important to treat Mrs Hassell's problems in the round. He did not recall specifically the consultation but Mr Ridgeway said that the recent CT scan had confirmed that the spinal fusion was healing well. The left hip problem had responded well to the arthroscopy. Mr Ridgeway said that Mrs Hassell and he had discussed the treatment options of the C5/6 degenerative disc. Mr Ridgeway said that the treatment options were to continue to explore conservative management being physiotherapy, osteopathy and analgesia with some exercise, simply to live with the pain or undergo further surgery and he had discussed these with Mrs Hassell. Mr Ridgeway said that Mrs Hassell felt that the symptoms were affecting her ongoing quality of life and that she had not responded well to conservative management, she had already had an injection and conservative management and so had exhausted all the alternative management options save for simply living with the pain, and she was not prepared to do this was therefore keen to explore the prospect of surgery. Mr Ridgeway said that he thought from the discussions that Mrs Hassell had had physiotherapy for her neck and he said he had also discussed further injections with Mrs Hassell, even though this had not been set out in his witness statement.

  35. Mr Ridgeway said that although he was confident of a good outcome he explained that no spinal surgery is without risks and he explained that surgery would alleviate the arm pain in about 80 per cent of similar cases but there were risks associated with the procedure. Mr Ridgeway said (in paragraph 35 of his witness statement) that he explained these risks ``in terms of soft tissue damage to the neck in the surgical procedure including vascular and recurrent laryngeal nerve damage. This usually results in hoarseness but most improve. It occurs in approximately 2 per cent of cases. Damage to the nerve roots (approximately one in 100 to 200); non-union, malposition of the prosthesis; adjacent level problems and cord injury which can result in paralysis from the neck down in varying degrees. I explained that this occurred in approximately one in 500 to one in 10000 cases. I explained that we perform the procedure under spinal cord monitoring, to monitor her cord and nerves''. In paragraph 38 of his witness statement Mr Ridgeway said ``as per my usual procedure I would have included the risks of infection, haematoma, DVT, pulmonary embolism ...'' before continuing with the other risks including paralysis. Mr Ridgeway in his oral evidence in chief was asked to set out the risks he would have warned about. Mr Ridgeway included in this list paralysis but omitted DVT and pulmonary embolism.

  36. Mr Ridgeway said that when he is discussing surgery with a patient once the particular procedure had been discussed he actively encouraged the patient to carry out their own research, and directed them towards his website. He said in paragraph 7 of his witness statement that the website ``contains all the relevant information to enable them to fully understand the risks and benefits of the planned procedure''. In fact the website did not identify a risk of paralysis as a risk of this procedure, although it did make it clear that the patient should consult the physician for a full list of risks. This had the potential to make the matter circular because Mr Ridgeway said after discussing risks he would refer to the website so that there could be a full understanding of risks and benefits. Mr Ridgeway said in evidence that Mrs Hassell had a good understanding of the risks from previous operations.

  37. Mr Ridgeway then dictated the letter which was dated 1st July in front of Mrs Hassell, in accordance with Mr Ridgeway's normal practice. The letter contained the following passages: ``Her main problem now is her neck pain radiating down into the left ulna C6 distribution. She has a C5/6 left sided disc protrusion. This will probably account for all the symptoms ... We have also discussed treatment options and she would like to proceed with a C5/6 disc replacement. I have explained that this is a C5/6 degenerative disc and therefore an anterior cervical discectomy and fusion or disc replacement are the options. She has all the indications for a disc replacement and should therefore have a good result with 80-90 % of them proving her left arm pain and her neck pain ... There are risks, which include infection, haematoma, hoarse voice, probably 1 in 1000. There may be some ongoing nerve problems, which usually then settle down a few months thereafter. There is the risk of loosening of the disc replacement, which is unusual. All in all disc replacements do just as well if not better than cervical fusion surgery and given her age I will proceed initially with disc replacement''.

  38. The letter contains a typographical error: ``proving'' instead of ``improving''. Mr Ridgeway said that the letter dated 1 July 2011 contained an error in the sense that it does not record the risk of damage to spinal cord but it said that the risk of recurrent laryngeal nerve damage which led to a hoarse voice was ``one in a thousand''. Mr Ridgeway said that was obviously incorrect and confirmed that there was information missing from the letter as typed because the 1 in 1000 related to the risks of cord injury.

  39. Mrs Hassell could not remember whether she had received the letter dated 1st July 2011 before the operation on 3 October 2011. Mrs Hassell said that it might have been copied to her or might have been sent with other letters and notes when issues arose about the operation. Previous letters from Mr Ridgeway had been sent to Mrs Hassell, and had had ``cc patient'' at the bottom. This letter did not have ``cc patient'' at the bottom.

  40. On 25 July 2011 Mrs Hassell had the scan of the head, which was normal. On 27 July 2011 Mrs Hassell had a pre-operative assessment. The documents from that show a tick by the heading ``no limitation of physical activity'' with a handwritten ``limited by back/neck Problems only'' with a statement next to the airway assessment ``very limited neck movement - hence planned op!''. A note on 8 August 2011 stated: ``can proceed with surgery May require difficult airway equipment ...''.

    The operation

  41. Mrs Hassell gave evidence about the day of the operation. After leaving home and her children, she had come to hospital with her husband. Mrs Hassell was told that she was likely to be second or third on the list because they were waiting for a spinal monitor. Mrs Hassell's husband left to get something for Mrs Hassell from the shop but Mr Ridgeway then arrived with the porter and nurse and Mrs Hassell was told that she was going to the operating theatre. Mrs Hassell felt nervous and had not said goodbye to her husband. Mrs Hassell was given a consent form to sign, but everything was a rush and Mrs Hassell did not pay attention to what it said. Mrs Hassell did not recall what was discussed because she was being prepared for surgery. She did not recall any discussion about paralysis.

  42. The consent form included the following. Next to intended benefits there was ``pain relief arm pain''. Next to serious or frequently occurring risks there was: ``Infection/DVT/PE/Vascular injury .../oesophageal injury/RLN injury + ... ongoing pain .../cord injury''.

  43. Mrs Hassell remembered going to the operation and seeing the clock. The evidence about the operation comes from Ms Howard and Mr Ridgeway. Ms Howard was the physiologist who carried out intraoperative neuromonitoring which is known as spinal cord monitoring (``SCM''). This involves, among other matters, getting readings about electric currents in the spinal cord. Mr Ridgeway used this when conducting spinal surgery. Ms Howard was not able to get full readings from Motor Evoked potentials (``MEP's'') because it required total intravenous anaesthesia (``TIVA'') protocol which was a protocol not followed by the anaesthetist. Some MEP's were obtained. Ms Howard was however able to get readings from Somatosensory evoked potentials (``SSEP's''). Ms Howard reported that the potentials for Ms Hassell were stable until 1027 hours (in fact the exact timings show that it was 1025 hours) when they dropped. Ms Howard said that this was before commencing the procedure for the discectomy.

  44. Ms Howard reported that Mr Ridgeway was obviously concerned about the loss of the traces. Blood pressure was increased, and after some limited recovery the surgery continued. It is common ground that Mr Ridgeway's actions following the loss of the traces were reasonable and proper actions.

  45. Mr Ridgeway said that the preparatory parts of the operation involved opening up, among other matters, the skin and anterior longitudinal ligament to expose the cervical bones and the annulus (or outer shell) of the disc. In the course of preparing for the discectomy part of the operation Mr Ridgeway inserted a needle into the C5/6 disc to confirm that he was at the right level (in accordance with proper practice because the bones and discs look the same around this level) and inserted screws into C5 and C6 so that Mr Ridgeway could use a retractor.

  46. Mr Ridgeway said that when matters were set up (including positioning a microscope with drapes) he would use the monopolar diathermy (which looked a bit like a pen which used heat generated from electricity) to free the front of the annulus of the disc from the C5 bone and from the C6 bone. Mr Ridgeway said that he was 3/4 of the way through doing that (demonstrating a movement along the bottom bone, and then along the top) when he paused and ask for traces to be taken. This showed that they had fallen off at 1025 hours.

  47. Mr Ridgeway said it was not possible to remove the disc material from the space between C5 and C6 with diathermy satisfactorily and he had not attempted to do so. He had only been using the diathermy at the front of the disc when he had stopped and asked for the traces to be checked. He did not know how Mrs Hassell had suffered her spinal cord injury but there were a number of possibilities. He had carried out the operation with reasonable care and skill.

    After the operation

  48. After the operation Mrs Hassell then had some recollection of being told that there was going to be an MRI. Mrs Hassell then remembered waking up late that evening, being asked to move her right hand and then saying that she could not move it. Mrs Hassell said that Mr Ridgeway said that there had been some complication, he was sorry, and that she was paralysed down her right side.

  49. On 11 October 2011 there was a meeting with members of Mrs Hassell's family and Mr Ridgeway. Mr Ridgeway said that ``before surgery on the disc had begun the spinal monitor showed that the spinal cord had become damaged''. Mr Ridgeway explained that he didn't know why this had happened and offered explanations that either part of the disc had dropped into the spinal column or there had been a vascular problem at that level, or there was another level affected.

  50. Mrs Hassell made a complaint about the operation. In her letter dated 8 February 2012 Mrs Hassell said ``what was not discussed or explained at anytime was there could be a chance that this routine operation could and has left me as a tetraplegic''. There was a delay in replying to the letter and it appears from Mrs Hassell's witness statement that it was because Mr Ridgeway was taking time to write his reply. Mr Ridgeway's reply to the Chief Executive was dated 26 April 2012. In the letter Mr Ridgeway said that the risks explained to Mrs Hassell ``included infection, soft tissue injury to structures in throat, vascular, hoarse throat (which usually recovers in around 6 months from recurrent laryngeal nerve injury), nerve injury and cord injury (1 in 1000) and I explain this can result in paralysis from the level down and this can be permanent. Similar risks explained with previous spinal injury on lumbar spine pertaining to the spinal anatomical level of surgery''.

  51. The letter from the Chief Executive was sent on 11 May 2012. It was approved by Mr Ridgeway. That repeated Mr Ridgeway's comments about risks of injury and repeated the statement ``he confirms that similar information about the risks of surgery had been explained to you in connection with your previous spinal surgery on your back''. The letter stated that Mr Ridgeway discussed treatment options for conservative treatment which included analgesia, physical therapy and possibly further injections. The letter included the statement ``diathermy (cutting away with heat, which is the method of moving the protruding disc material) to the disc was three quarters completed across ...''.

    The expert evidence

  52. The experts produced joint minutes of matters agreed which showed that there was very considerable common ground between all of the experts. As set out in paragraph 7 above I heard oral evidence only from 4 experts. Mr Todd and Mr Jackowski are both consultant neurosurgeons who had been doing spinal surgery of this type about twice a week for 30 years. Mr Wilson-Macdonald and Mr Johnson were both consultant orthopaedic surgeons who had carried out many similar operations, although not so many as the consultant neurosurgeons. All were leaders in their field, and in my judgment all were doing their honest best to assist me. I was very much assisted by their evidence and explanations.

  53. The experts did agree on certain matters relied on in relation to the issue of consent. It was common ground that the risks of C5/C6 cervical discectomy included spinal cord injury causing paralysis. It was common ground that the statement ``1 in 1000'' was often used to refer to risks of paralysis when undergoing spinal surgery, although it is also sometimes expressed as 1 in 500 to 1 in 1000. It was agreed by the experts that studies of patients showed that many patients do not have an accurate recall of what they are told about the risks of an operation. It was agreed that if the risk of cord damage had first been mentioned to Mrs Hassell on the day of the operation that would not be sufficient in order to obtain informed consent, for reasons which very much mirrored those given in Thefaut v Johnstone [2017] EWHC 497 at paragraph 78. It was agreed that if Mrs Hassell had been given the information set out in consent form dated 3 October 2011 on 28 June 2011 Mrs Hassell would have been given information about the material risks of the operation.

  54. It was apparent from the expert evidence that practice about consent has developed. For example Mr Jackowski said that in 2009 (the date of Mrs Hassell's lower back operation) he would not have mentioned the risk of paralysis for a lower back operation, but would have referred to damage for nerves and ankle and feet when referring to cauda equina. Nowadays he said he would expressly use the words ``paralysis'' but then, as he put it, rush to reassure.

  55. The experts agreed that options for conservative treatment of Mrs Hassell's symptoms included analgesia (and there was reference to the pain ladder and the use of pain killers from paracetamol to prescribed drugs and drugs for radicular pain such as that suffered by Mrs Hassell); physical therapy including physiotherapy (available on the NHS) and osteopathy, or treatment by a chiropractor; and repeating the injection (it was common ground that an injection was expected to have a third chance of providing complete relief; a third chance of providing some relief, and a third chance of having no relief. In circumstances where there had been one unsuccessful injection the chances of obtaining complete relief reduced).

  56. The experts agreed that the decision to recommend a cervical discectomy was a reasonable one, although Mr Todd would have recommended it but Mr Jackowski would not have done (in part because he was concerned whether a good result would be obtained given the unexplained complaints about blurred vision and left ear pain). It was common ground that the complaints about blurred vision and left ear pain were properly explored with the brain MRI. Mr Jackowski also referred to randomised studies which have shown that although an operation will give more immediate relief from symptoms at 2 years out there was no reported difference in outcomes between those who had pursued surgery and those who had conservative treatment. It appears that it was agreed that surgery was still a reasonable recommendation because some patients want early pain relief and want something to be done.

  57. So far as the operation is concerned the mechanics of the operation were agreed by all of the experts from the incision of the skin, the separation of other tissues through to the insertion of Caspar pins and the use of retractors, the exposure of the disc, to the removal of the disc (which contains a material described as having the consistency of crab claw meat or putty) leading to the insertion of a prosthetic disc or fusion of the bones.

  58. Some of the experts used monopolar diathermy in such operations and some did not, but it was common ground that it was reasonable to use it. I should record that Mr Todd had been critical of the use of monopolar diathermy when he first considered the case but as a result of his research accepted that it was reasonable to use it because it was used by a responsible body of surgeons and there was nothing illogical in its use. This was because there was, apart from a reference in an article ``Incidental durotomy after spinal surgery: a prospective study in an academic institution'' (McMahon, Didize and Levi) reporting spinal cord damage following the use of monopolar diathermy on the posterior longitudinal ligament (which is at the back of the cervical disc and spine) which reference none of the experts had been able to chase down, nothing to suggest that the use of monopolar diathermy caused unexpected problems.

  59. The experts considered the operation note made by Mr Ridgeway which recorded ``Discectomy - ¾ through 1025 - SCM - traces reduces - Nil legs/arms''. As far as terminology was concerned although the whole operation is sometimes referred to as a discectomy, the use of discectomy in the operation note refers to the actual removal of the disc. Mr Ridgeway's evidence was that he was ¾ of the way through freeing the front of the annulus of the disc from the C5 bone when he paused, asked for traces, and none came back, and that he did not mean that he was ¾ of the way through removing the cervical disc by use of the monopolar diathermy.

  60. It was common ground that if Mr Ridgeway had removed ¾ of the cervical disc using a monopolar diathermy that would not be a reasonable exercise of care and skill. The experts also agreed that it was not possible to remove disc material with diathermy because, unless the discs were separated by wedging them open there would be no air between the diathermy and the disc material causing the diathermy to become clogged with coagulant (comprising melted disc material). The experts also agreed that if Mr Ridgeway was using the diathermy as he said he was at the front of the disc to free the annulus from the bone then it would be a reasonable use of the diathermy.

  61. In relation to causation the experts agreed that if the diathermy was being used at the front of the cervical disc to free the annulus from the cervical bone it could not have been responsible for the spinal cord lesion which caused the paralysis. This is because there were too many structures and too much distance from the spinal cord for either the electric currents or heat generated by the diathermy to have caused the problems. The structures included the rest of the disc, which was in front of the posterior longitudinal ligament, which was in front of the dura, which was in front of the spinal fluid before coming to the spinal cord itself. It was also common ground that heat and electric currents generated by the diathermy could go up and down into the cervical bones above and below the disc.

  62. It was common ground that there were other possible explanations for the spinal cord injury suffered by Mrs Hassell. These included: traction from the positioning of Mrs Hassell for the operation but it was unlikely because Mrs Hassell did not have a narrow spinal canal; ischaemic injury such as profoundly low blood pressure causing damage to the spinal cord, although the neurologists in their joint statement had not considered this, on the balance of probabilities to be the cause; and trauma during surgery. I asked about the fact that the Caspar screws measured 14 mm and one of the bones was only 13 mm, meaning that there was a protrusion of the screw to the rear of the cervical bone. The experts were clear that would not cause the problems and referred to the fact that the dura was relatively hard and would be pushed backwards by the screw.

  63. Mr Jackowski noted that in up to half of cases it was not possible to determine the cause of the spinal cord injuries following operations. The experts all recognised that the failure to identify the causes was because science had not yet developed enough to enable the causes to be determined in circumstances where (for obvious reasons) there could not be an intrusive investigation of the spinal cord to determine what had caused the injury. It was recognised that in this case the existence of SCM had enabled the timing of the injury suffered by Mrs Hassell to be shown to have occurred within a 9 minute window, which was much better information than in many cases.

  64. Mr Todd and Mr Wilson-MacDonald considered that if the diathermy had been used ¾ (or thereabouts) through the disc it was the cause of the spinal cord injury suffered by Mrs Hassell. The essence of the reasoning was that it was too much of a coincidence: (1) of time, namely the loss of traces, which it was common ground was caused by the spinal cord injury, which had occurred by 1025 hours when the diathermy was being used, and must have occurred after 1016 hours when the last trace was reported; and (2) location, namely within a millimetre of the back of the disc where Mr Ridgeway was using the diathermy; for there to be any other reasonable explanation. Mr Todd and Mr Wilson-MacDonald were not able to explain the mechanism by which the diathermy had caused the injury, but suggested that it must have been through the transmission of heat or electric current to the spinal cord.

  65. Mr Jackowski and Mr Johnson did not consider that even if Mr Ridgeway was using diathermy ¾ of the way through the disc, it could have caused the spinal cord injury. They relied on the fact that even at this position in the disc there would be obstructing structures being the balance of the disc, the posterior longitudinal ligament, the dura, the spinal fluid before the spinal cord, agreed to be a distance of about 8.25 mm. Mr Jackowski and Mr Johnson could not identify the mechanism by which use of the diathermy would cause spinal cord damage, and Mr Jackowski gave evidence about his use of monopolar diathermy closer to the spinal cord without problems, and the absence (the reference in McMahon's article apart) to reports of problems caused by monopolar diathermy which has been regularly used since the 1930's.

    There was no informed consent

  66. I find that Mrs Hassell was not told about the risk of paralysis as a result of spinal cord injury as a result of the cervical discectomy in the consultation with Mr Ridgeway on 28 June 2011, and that Mrs Hassell was not advised of conservative treatment options including physiotherapy and further injections. I therefore find that Mr Ridgeway failed to take reasonable care and skill to ensure that Mrs Hassell was aware of the material risks of the operation and the alternative conservative treatment options. I make these findings for a number of reasons.

  67. First although Mr Ridgeway gave evidence that he had discussed conservative treatment options including physiotherapy with Mrs Hassell he accepted that he understood that Mrs Hassell had already had physiotherapy for her neck. Although this misunderstanding was understandable because Mrs Hassell had been having physiotherapy for other complaints, he could not have had this misunderstanding if he had discussed other treatment options with Mrs Hassell. This is because his misunderstanding would have been corrected by Mrs Hassell who was articulate and would have pointed out that she had not had physiotherapy. Montgomery makes it clear that there must be a dialogue and if there had been a dialogue Mr Ridgeway would have known that Mrs Hassell had not yet had physiotherapy for the neck and upper arm problems.

  68. Secondly it was apparent that, whatever Mr Ridgeway's strengths as a surgeon when carrying out the operation (as to which see below), Mr Ridgeway was not a good communicator about the risks of operations. I make this finding because when he gave evidence in chief about the risks of the operation he did not include DVT or PE which he had said in his witness statement he would have mentioned (and which he mentioned for the lower back operation in 2009 as evidenced in his letter). Mr Ridgeway said it was his invariable practice to mention these risks for the cervical discectomy and there was no obvious reason why he should have failed to do so, other than that his belief about his invariable practice and what he said sometimes differed. Even making proper allowances for the fact that Mr Ridgeway was in the witness box and not talking to a patient it was plain that his belief about what he would invariably have said was not reliable. I also note that Mr Ridgeway did not identify in any of the earlier correspondence after the operation that the letter dated 1 July 2011 contained an omission about the risks of paralysis, even though he said he had mentioned these when talking to Mrs Hassell. The fact that Mr Ridgeway's communication skills did not match his skills in the mechanics of surgery (as I have found them to be) is also evidenced by his operation note ``Discectomy - ¾ through'' which was not a good description of the fact that he was ¾ way through releasing the annulus from the front of C5 and C6 and not ¾ way through removing the disc. It also appears from his failure to pick up and correct the comment in the Chief Executive's letter that Mr Ridgeway was removing the protruding disc material with diathermy.

  69. Thirdly Mrs Hassell gave clear evidence that she had not been warned about the risk of paralysis and that she would have been very concerned about that as the mother of 3 children in full-time work as head of year. I accept that studies show that many patients will not accurately remember the risks of an operation as they are explained to them, and all Judges have seen and heard honest witnesses fail to recall accurately and reliably conversations and events. However Mrs Hassell did have a particular recollection of a hoarse voice because it was relevant to her work (when she was required to shout across the playground on occasions) and asked questions about that risk. She wrote a letter complaining that she had not been told about the risk of paralysis. I consider it more likely than not, and find, that she would have had a particular recollection about paralysis if it had been mentioned to her and asked further questions if it had been mentioned.

  70. Fourthly Mr Ridgeway said in the letter dated 26 April 2012 that the operation could result in paralysis and said ``similar to risks explained with previous spinal surgery''. However Mr Ridgeway's letter about risks for the lower back surgery did not mention paralysis, and he did not suggest that that letter had omitted information. If Mr Ridgeway had explained the risks to Mrs Hassell as he had for the lower back (as he said he had in his letter dated 26 April 2012) he would have failed to mention paralysis.

  71. Fifthly Mr Ridgeway's evidence about whether he had mentioned the possibility of further injections as an alternative treatment differed between his witness statement, where it was not mentioned, and his oral evidence, where it was mentioned. This gave me no confidence in the reliability of Mr Ridgeway's recollections about what he had discussed with Mrs Hassell and when. Although the letter dated 28 July 2011 referred to a discussion about alternative treatments, this could not have been a discussion about physiotherapy for the reasons given above and must have referred to the alternative treatment options being fusion or disc replacement.

  72. Sixthly the website did not contain information allowing Mrs Hassell to understand fully the risks and benefits of the planned procedure. It is clear that the website referred back to discussions with surgeon. However if as Mr Ridgeway said, he referred patients to his website so that they may fully understand the risks and benefits of the planned procedure (paragraph 7 of his witness statement) it is unfortunate that crucial information about the risk of paralysis was missing.

  73. Seventhly the risk of spinal cord injury and paralysis was not referred to in the letter dated 28 June 2011 in circumstances where the letter was dictated in front of Mrs Hassell to ensure that she would know the risks which she was running. I accept that in the text there is reference to 1 in 1000 figure which the experts agree would be a reference to the risk of paralysis, but there is no mention of paralysis. This meant that: Mr Ridgeway did not mention paralysis to Mrs Hassell; or Mr Ridgeway did mention it and the dictating machine did not pick up the reference; or Mr Ridgeway did mention it and record it but the typist of the letter simply failed to type it. I find that there was no reference to the risk of paralysis in the letter because Mr Ridgeway did not give Mrs Hassell an explanation about the risk of paralysis. The figure of 1 in 1000 must have been mentioned at the end of the conversation but without any discussion about paralysis. This accords with the fact that Mr Ridgeway's explanations about risks were not clear or consistent, as appears above.

  74. I find that Mrs Hassell was told about the risk of ``cord damage'' on 3 October 2011, but it is common ground that that warning on the day of the operation was not sufficient. It is also apparent from Mrs Hassell's evidence about her movement up the list of operations that she was disconcerted by the fact that she had not had a chance to say goodbye to her husband before the operation, and that her mind was not engaged on the consent form on the day.

  75. I should make it clear that the absence of the ``cc patient'' on the letter dated 1 July 2011 suggests that it was not sent to Mrs Hassell. Mrs Hassell could not recall when she had received the letter. In the absence of ``cc'' it is more likely than not, and I find, that it was not sent to Mrs Hassell before the operation on 3 October 2011. This means that it is not necessary to consider the alternative way in which the case on consent had been put. I should record that it seems to have been acceptable practice to dictate the letter in the presence of the patient and not to send it.

    Mrs Hassell would not have had the operation if she had been given relevant information

  76. Both sides pointed to the pre-operative assessment on 27 July 2011 as supporting their case that Mrs Hassell would not or would have had the operation if there had been informed consent to the operation. The assessment does have a tick to no limitation of physical activity and then ``limited by back/neck Problems only'' suggesting that the problems were not too bad. The assessment also included ``very limited neck movement - hence planned op!''. In my judgment this is an illustration of the problem that can be caused by tick box forms, and Mrs Hassell's condition was as she had fairly described it in her evidence. This included real problems with holding a steering wheel for a long period of time, limitation of neck movement but an ability to work and carry out her normal activities. I accept that Mrs Hassell was still working and she was still able to look after her children. Mrs Hassell said that she would have been very concerned about the risk of paralysis and would have wanted to explore physiotherapy, even though it had not given relief for the lower back, and even osteopathy which had given her relief when pregnant, and I accept that evidence.

  77. It is right to note that Mrs Hassell had had an operation on her lower back and a hip arthroscopy, and had benefits from those operations. That shows that Mrs Hassell was prepared to have an operation in certain circumstances. I also accept that Mrs Hassell was prepared to take the risk of a hoarse voice, but there is a very considerable difference between being left with a hoarse voice and paralysis. Mrs Hassell also had confidence in Mr Ridgeway and liked him. However I accept Mrs Hassell's evidence and find that if Mrs Hassell had been given the relevant information about the risks of paralysis and conservative treatment options, Mrs Hassell would not have had the operation on 3 October 2011. This is because Mrs Hassell said that if she been told that not having conservative treatment was an option, and that surgery carried a risk of 1 in 500 to 1 in 1000 of permanent paralysis, she would have opted for conservative treatment. Mrs Hassell had pursued conservative treatment before, and had derived benefit in the past from osteopathy. Mrs Hassell said that she was aged 41 years at the time and surgery with a risk of paralysis would have been a frightening prospect. I accept that evidence which accords with my finding that Mrs Hassell was able to relate to risks that were real to her, such as the difficulty she would have had shouting across a playground with a hoarse voice.

    Mr Ridgeway used reasonable care and skill in performing the operation

  78. I accept Mr Ridgeway's evidence that he was ¾ way through the process of freeing the annulus of the disc from the C5 and C6 bones at the front of the neck rather than ¾ way through removing the disc material. I make this finding for the following reasons. First Mr Ridgeway was more comfortable when dealing with the mechanics of the operation where his descriptions in oral and written evidence (the operation note apart) were clear and consistent, and which was in clear contrast to his inconsistent evidence about risks and alternative treatments as set out in my finding about the absence of informed consent.

  79. Secondly it made no sense for Mr Ridgeway to attempt to use diathermy ¾ way through the disc because it would have become clogged with coagulant, being the melted disc material. In those circumstances I do not accept that Mr Ridgeway would have been using an ineffective tool ¾ way through the disc (looking from the front to the back of the disc).

  80. Thirdly Mr Ridgeway's approach to the mechanics of the operation seemed careful and measured, for example the amount of time that he said he was prepared to dedicate to setting up the microscope and the fact that he used SCM.

  81. Fourthly Mr Ridgeway's evidence about where he was in the course of the operation is supported by what can be worked out from the log kept by Ms Howard and Ms Howard's evidence about the operation.

  82. Against these factors is the proposition that anyone can make a mistake, and a cause for inquiry about why Mr Ridgeway stopped and asked for traces when he did. Mr Ridgeway said that there was no reason to stop and take traces when he did, but he would do it before starting on the removal of the disc material. Further Mr Ridgeway's evidence about where he was in the operation was clear and for the reasons set out above I accept it.

    Unknown cause for the spinal cord lesion

  83. In these circumstances where I have found that Mr Ridgeway was not ¾ of the way through the disc and was at the front removing the annulus of the disc from the C5 and C6 bone it is common ground that I cannot, on the balance of probabilities, determine what caused the spinal cord injury and paralysis suffered by Mrs Hassell. I am satisfied that it was one of the possibilities identified by the experts, but there is nothing on the material before me which enables me to find, on the balance of probabilities, one cause over another.

    Conclusion

  84. For the details reasons set out above I find that Mr Ridgeway used reasonable care and skill in carrying out the operation, and that I am unable to identify the cause of Mrs Hassell's spinal cord injury. I find that Mrs Hassell did not give informed consent to the operation, and that if she had been given information about material risks and conservative treatment Mrs Hassell would not have agreed to the operation on 3 October 2011. In these circumstances I give judgment for Mrs Hassell for the agreed sum of £4.4 million. I am very grateful to Mr Hough and Mr Hutton and their respective legal teams for their assistance.

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