Thefaut v Johnston [2017] EWHC 497 (QB) (14 March 2017); informed consent, materiality and experts whose independence is called into question

In this blog Thea Wilson of 12KBW considers the recent judgment of Thefaut v Johnston in which Green J provides his characteristic clarity of thought on informed consent, materiality in the context of consent and how to deal with medical experts whose independence is called into question.

The facts

The Claimant developed back pain in late 2011. Although it resolved relatively speedily, it reoccurred at the end of January/start of February 2012. After having some treatment through the NHS, the Claimant consulted the Defendant privately in March 2012. The Defendant was described by the Court as a surgeon of long standing, good repute and vast experience. At a consultation on 15th March 2012, the Defendant recommended conservative treatment. He later wrote to the Claimant’s GP noting that her real concern was back pain rather than slight numbness in her left leg.

The Claimant continued to suffer symptoms and developed bilateral weakness of her legs and bladder frequency and irritability, but no clear symptoms of cauda equina syndrome. When the NHS waiting list for a referral was too long, she contacted the Defendant again. On 3 May 2012, she had an approximately 5-minute telephone call with him to discuss her situation. The Defendant wrote to the Claimant recommending surgery. He advised that with surgery there would be “at least a 90% chance” of ridding the Claimant of leg pain; that the back pain was not quite as likely to settle but had every chance of settling; and that the risks of surgery were very small with a 0.1% chance of damaging the nerve (causing weakness cocking up the left foot) and a 2% chance of a leak of spinal fluid which would delay discharge from hospital. Both parties agreed that the Defendant had advised that the back pain would resolve without surgery within 12 months. The Claimant elected to have a left sided L4/L5 discectomy and signed a consent form which did not specify attendant benefits or risks of surgery on 17 May 2012. She underwent surgery from 17:30 to 18:20 on the same day.

The Claimant claimed that she suffered post-operative neurological symptoms (leg twitching for a matter of weeks and poor sensation of bladder fullness) although the Defendant’s notes disagreed. Her evidence was that the surgery generally exacerbated her leg pain and, save for a short period of time, did not resolve her back pain. She felt that her left leg was weak and that she had reduced sensation in her vulval and surrounding area. Her bladder symptoms continued.

Following the surgery, the Claimant was treated by the Pain Clinic and another surgeon, Mr. Samandouras. She underwent revision surgery on 1st February 2013. At that surgery, it was noted that some of the nerves could be seen through the dura. Despite further treatment thereafter, the Claimant was left with back pain, disabling leg pain, altered sensation and weakness in her left foot and ankle, altered sensation of bladder fullness, and reduced sexual sensation.

The Claimant’s case

The Claimant argued that her ongoing condition was due to injury to the L5 nerve root and to the S2 and S3 nerves. She argued that the Defendant was liable for:

  1. Failing to give her proper advice as to the risks and benefits of the elective surgery, thereby failing to obtain her properly informed consent. She argued that as a consequence of what occurred during the surgery and/or during later revisional surgery, she sustained damage to the nerves.
  2. Negligence in his surgical technique during the first surgery, namely causing a breach of the dura and damaging the L5, S2 and S3 nerves. She relied on the speed with which the Defendant conducted the surgery which she said was excessively quick.

The Defendant’s case

The Defendant denied negligence, although he admitted in oral evidence that the advice he had given the Claimant before the surgery was sub-standard and that, in light of Montgomery he now adopted a different approach to informed consent. The Defendant disputed that the surgery was performed negligently or that it caused the ongoing back problems, arguing that the Claimant suffered Weakened Back Syndrome and would have suffered these symptoms in any event.

The decision of Mr. Justice Green

Green J considered the issue of informed consent first. He reviewed the House of Lord’s judgment in Chester v Ashfar and the Supreme Court’s judgment in Montgomery v Lanarkshire Health Board and the case law which has followed it, in particular Mrs. A v East Kent Hospital University NHS Foundation Trust, Tamsin v Barts Health NHS Trust, and Spencer v Hillingdon Hospital NHS Trust, disagreeing with the approach of the Deputy High Court Judge in Spencer. Green J noted that the doctor must communicate material risk, including reasonable alternatives or variants, the test of materiality being a mixture of subjective and objective, whether “… in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk”.

The Parties’ experts had agreed with the advice the Defendant had given that without surgery, the Claimant would have recovered within 12 months. They disagreed with the advice given in the Defendant’s letter: the surgery had only an 85% chance of improving leg pain; around 50% of removing or improving back pain; an up to 5% risk of (non-negligently) exacerbating the condition; a 1% risk of damaging the nerve; and a 2% risk of causing a spinal fluid leak. Applying the test to the case, Green J found that the Defendant had materially overstated the prospects of recovery of both back pain (which was more important to the Claimant) and leg pain. He also found that the Defendant should have mentioned the up to 5% risk of exacerbating the condition, which was material in light of: (1) the fact that he mentioned lesser risks and therefore clearly considered risks of less than up to 5% sufficiently significant to record; (2) the conclusions of the High Court in Mrs. A v East Kent and Tamsin v Barts Health; and, particularly (3) the materiality of an up to 5% risk of exacerbation when combined with the 50:50 chance of an improvement of back pain with surgery and the likely recovery without surgery within 12 months.

Green J concluded that informed consent had not been given and that a reasonable patient with the same symptoms as the Claimant, if fully and properly advised, would have either rejected surgery or deferred surgery until she obtained a second opinion. He accepted the Claimant’s evidence that had she been properly informed of benefits and risks of surgery she would not have undertaken it.

Having found the Defendant in breach of duty, the Judge considered the Defendant’s argument on causation. On the evidence, he rejected the notion that the Claimant suffered Weakened Back Syndrome. The only other explanation of the Claimant’s condition was that it was caused by damage either during the Defendant’s surgery or the revision surgery. As there was no evidence of gross negligence in the revision surgery to act as a novus actus and break the chain of causation from the first surgery, the Claimant’s damage flowed from the breach.

Green J finally considered the question of whether the first surgery was performed negligently. He stated that he found this the most difficult part of the case. In order to decide the question of (a) which surgery caused the damage to the dura and (b) whether it was negligently caused, he had to consider numerous imponderables on which there was minimal and conflicting evidence. He concluded that when considering the evidence piece by piece, he was not able to draw any clear links between post-operative symptoms and the first surgery which would enable him to confidently conclude that the symptoms were caused in all likelihood by the Defendant. Additionally, he did not have sufficient evidence to say that any breach of the dura must be negligent. Without such positive evidence, he considered that a finding of negligence would be potentially a far-reaching conclusion. Green J found for the Defendant on the issue of negligently performed surgery. The suggestion that the speed of the surgery was evidence of negligence in performing the surgery was rejected as speed would depend on factors such as skill and experience.

Comment

This judgment is a helpful in analysing the current position of the law following Montgomery and the issue of breach of duty. In light of the Defendant’s candid admissions during his evidence, it is unsurprising that the Court found against him on the issue of informed consent. Nevertheless, the application of the materiality test adds to the weight of case law.

Practitioners may find the judgment particularly useful in examining the difficulties facing a Judge deciding the issue of breach of duty during surgery. Green J listed a number of the issues he would have had to decide in order to find for the Claimant and the lack of clear evidence available. It is important for practitioners representing either party, but particularly Claimants, to note Green J’s guidance that whilst in most cases the facts involve a number of clear events which enable the Court with confidence to reach a conclusion on breach of duty, “if the evidence is equivocal, uncertain or inadequate or leaves too many loose ends, then it is no part of the judicial function to decide a case upon the basis of a hunch, educated guess or gut feel. In such cases the only correct result is that the Claimant has not proven the case to the required standard and the claim necessarily fails.

Finally, the judgment contains helpful guidance on expert evidence. The Claimant’s expert was Mr. Kirkpatrick, of whose professionalism there has been recent criticism in the High Court. The Defendant’s expert was Mr. Gullan whose professionalism was attacked on the basis that he had failed to record in his report his prior knowledge of the Defendant as a colleague. Faced with attacks (which he thought well-founded and relevant) on both experts, Green J advised that his approach was to listen with care to both experts and to bear in mind the criticism of their professionalism when evaluating any disputes between them. Green J advised that expert witnesses in clinical negligence cases would frequently find themselves having had prior involvement with a defendant (or defendant’s treating surgeon) as colleagues in specialist professional bodies. In such circumstances, the best course was to set out the bare facts of their knowledge of that defendant in a concise, accurate and comprehensive paragraph in the medical report.

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