B v An NHS Trust
Isaac Hogarth of 12KBW instructed by Joel Onyems of OP Law (representing the Claimant) discusses a recent case which settled at JSM. The case is of particular interest due to the arguments concerning the objective nature of the test of materiality under Montgomery v Lanarkshire Health Board [2015] UKSC 11 and its interplay with Bolam principles.
The background
The Claimant had a complex medical history, including a metal valve in his heart, requiring permanent anti-coagulation therapy. Due to pain in his hip, the Claimant decided to undergo a right-sided hip replacement. On the Defendant’s evidence (which was not agreed), the Claimant was counselled against proceeding with this surgery due to various risks, including the risk of bleeding (or alternatively clotting) due to his underling anti-coagulation levels, and the need to wean him off warfarin in order to perform the surgery. The Claimant went ahead with the surgery.
In the days following the surgery, he started to lose function in his right foot, and after several days, was unable to dorsiflex at all. He was told he had developed a ‘drop foot’. The Defendant’s surgeon decided unilaterally to treat the Claimant conservatively. Whilst the medical notes were silent on whether the surgeon considered surgical intervention, his evidence was that he had done so, and had decided that in light of various risks, he did not consider that the option of surgical evacuation of the haematoma was a reasonable alternative to conservative treatment. As a result, he had not consulted the Claimant on his treatment.
As a result of a haematoma forming in the Claimant’s thigh, and compressing his sciatic nerve, the Claimant developed a permanent drop foot.
The arguments
The Claimant’s case was that had he been given the option of surgical intervention to evacuate the haematoma, he would have taken it, and the outcome would have been significantly better.
The Defendant denied liability on both breach and causation. There was also a significant dispute on quantum.
Whilst the Defendant had pleaded that various risks (especially the risk of bleeding) had effectively excluded the possibility of surgical intervention, the issue had been conceded in advance of the JSM. Further, the Claimant acknowledged that conservative treatment was reasonable, subject to the issue of consent. The liability issue therefore rested on consent.
On this key issue, the Defendant argued that although the materiality of risk under Montgomery is objective, that if the surgeon did not consider that surgery was a reasonable option, then his decision not to put that option to the Claimant was to be judged according to Bolam principles.
The Defendant argued that Montgomery entitled the Claimant to make an informed decision in relation to those risks which the doctor, when judged according to a reasonable standard, considered to be objectively material. In other words, considering that it was accepted by both parties that a respected body of surgeons would consider the risk of surgery to be unacceptable (whilst others would not), then is the surgeon entitled to fall within that body, and therefore fail to mention that alternative at all?
The Claimant challenged that reading of Montgomery on the basis that it entirely undermined the concept of an objective standard of care.
The case settled at a JSM for £70,000.
Comment
Had this case fought to trial, whilst there were significant further issues between the parties, it is likely that this argument on consent would have been fully argued.
My argument would have been that where there is a range of opinion as to what is acceptable treatment, it is incumbent on the clinician to be aware of that range, and to discuss it with the patient. If the surgeon had been unwilling to proceed with the surgery, the Claimant would have been entitled to a second opinion.
To fail to make the Claimant aware of the range of opinion risks removing the objective nature of the test of materiality under Montgomery and allowing consent to be determined in accordance with Bolam principles, which is plainly wrong.
This is, no doubt, an issue that is likely to be raised in future cases, until decided.
30th May 2018.
Clinical Negligence Law 
I am just thinking outload as to how a D could consider arguing this matter further.
The relevant wording from Montgomery states:
“….. any recommended treatment, and of any reasonable alternative or variant treatments”.
The key words are “recommended treatment” (dealing with risk) and “reasonable alternative” if the surgeon in the case above did not recommend surgery due to significant risk, and therefore did not consider it to be reasonable alternative treatment to conservative treatment he has recommended-
1. Would the above satisfy montogomery test? Therefore C would fail to establish informed consent
2. The key words from Montgomery suggests that it is for the surgeon to advice on reasonable alternative treatments. If he does not consider surgery is a reasonable alternative treatment option : should Bolam apply?
3. If not, than one would take that the case hangs on the judge considering if surgery is a reasonable alternative.
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Hi Hazel,
Thanks for the comment. You have struck on exactly the issue that my opponent and I were arguing about.
In my view, the real risk (if there is one) comes from an earlier part of the test, which says that the doctor is required to take “reasonable care to ensure that a patient is aware of any material risks…”. The objective nature of the test of materiality, as set out in paragraph 87 of the judgment has an objective limb and a subjective limb, and is the part of the judgment which has received the most attention. The duty to take care, however, is simply based on reasonableness.
In Montgomery, the risk (which was a risk of shoulder dystocia if the claimant proceeded with a vaginal delivery, which was a 9-10% in her case) was one of which the doctor was aware, but withheld from the claimant as he considered that a caesarean section would not have been in her best interests. In my case, the risk of drop foot arising from conservative treatment was also probably recognised, but the alternative treatment (in the form of surgery) carried such risks that the doctor either dismissed it out of hand, or decided on balance that it was too risky to be put to the Claimant.
In my view, if the treatment is one which a reasonable body of medical opinion would support (which the Defendant ultimately conceded it was), then the individual surgeon ought to be aware of that. His failure to be aware of the range of reasonable alternative or variant treatments deprived the Claimant of the opportunity to give informed consent. Further, considering the Supreme Court’s emphasis on patient autonomy, I do not think it likely that the Defendant’s argument would have found favour.
Isaac.
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