Consent in Spinal Surgery – Mukhtar Malik v St George’s University Hospitals NHS Foundation Trust [2021] EWHC 1913 (QB)

In this post, Daniel Sokol looks at the recent consent case of Mukhtar Malik v St George’s University Hospitals NHS Foundation Trust, and draws valuable lessons for lawyers, experts and doctors.

The facts

In 2012, Mr Malik started having back pain and weakness in his legs. With time, the situation worsened and, in July 2014, MRI scans showed severe spinal cord compression at T10/T11 and cauda equina compression at L3/L4.

Mr Minhas, a consultant neurosurgeon at St George’s Hospital in London, performed emergency spinal surgery. Although the operation was performed non-negligently, Mr Malik suffered neurological damage, with ongoing numbness and weakness in his left leg.

After further investigations, Mr Malik again visited Mr Minhas on 13th July 2015 to review the MRI scans. The surgeon advised further surgery at T10/T11 and L3/L4.

The second operation took place on 13th August 2015.  The operation was performed correctly but Mr Malik was much worse than before. He suffered from incomplete paraparesis and was wheelchair-dependent for life.

The law

His Honour Judge Blair QC (sitting as a Deputy Judge of the High Court) set out the familiar test of negligence, referring to Bolam and Bolitho, before summarising key parts of the landmark case on consent, Montgomery. He then addressed the matter of ‘but for’ causation and the ‘narrow modification to the conventional principles of causation’ contained in Chester v Afshar.

The issues

The key issues for the Court were as follows:

  1. Was the Claimant complaining of terrible intercostal pain on 13th July 2015 when he visited Mr Minhas’ clinic?
  2. If so, how long had he been suffering from this pain and would a responsible body of neurosurgeons have concluded that a significant proportion of that pain was radicular in nature and caused by compression to the T10/T11 nerve root?
  3. If so, would a responsible body of neurosurgeons have offered revision surgery in light of its potential benefits and risks?
  4. Even if they would, were there reasonable alternatives to surgery which, in the light of their respective benefits and risks, no responsible and reasonably competent neurosurgeon would have omitted to offer to the Claimant?
  5. Was the offer of surgery (and, if established, any reasonable alternatives which should have been offered) adequately explained to the Claimant in terms of its benefits and risks?
  6. If there was a breach of duty, has the Claimant established that the negligence caused his injury and loss?

The parties’ evidence

Mr Malik told the Court that, although he was suffering from some pain at the time of the consultation with Mr Minhas on 13th July 2015, the pain had improved greatly and was confined to the lower back and leg. He said Mr Minhas did not ask about any intercostal pain. Mr Malik explained that he was not told of any potential risks of surgery, let alone the risk of paralysis. He was unaware of the possibility of surgery making matter worse. He claimed there was no discussion of alternative treatments. Had he been told these things, Mr Malik said, he would have declined surgery.

Mr Minhas, on the other hand, told the Court that in the consultation Mr Malik had been in terrible pain from the left side of his back, with intercostal pain and sciatic pain down the leg and foot. He recommended a further thoracic decompression to address the intercostal symptoms and an L3/L4 decompression for the leg symptoms. He accepted that, without the intercostal pain, he would have waited to see if the leg pain improved.

Mr Minhas did not offer non-surgical alternatives. Aside from the long waiting list, Mr Malik’s condition was deemed too severe to be dealt with by nerve root injections, which only had temporary effects. Mr Minhas also dismissed the possibility of a regime of analgesic medications as the patient had already tried strong painkillers. The analgesics also carried risks and were of minimal long-term benefit. 

In relation to explaining the risks of surgery, Mr Minhas said in cross-examination that he told Mr Malik that the risk would be lower than the first operation but that no spinal operation without risk. Due to Mr Malik’s past experience, Mr Minhas believed he was well aware of the risk of paralysis.

The expert evidence

The Claimant’s neurosurgical expert Mr Todd, in his oral evidence, accepted that distinguishing between radicular and neuropathic pain can be difficult and that Mr Minhas acted reasonably in concluding that the pain was more radicular than neuropathic. Mr Todd accepted that radicular pain can be an indication for surgery.

The Court criticised Mr Todd’s evidence on the risks of revision surgery on the basis that he used an inappropriate comparator as a statistical basis for his opinion on risk and derived ‘unjustifiable assumptions’ based on Mr Minhas’ operation numbers and his adverse outcomes.

Mr Todd opined that there were reasonable alternatives to surgery, such as steroid injections and a greater use of analgesia, and that no responsible and reasonably competent neurosurgeon would have failed to offer them.

Dr Valentine, Consultant in Pain Medicine, was instructed by the Claimant. He set out the pain management options but acknowledged the long-term limitations of medication in Mr Malik’s case.

Mr Ivanov was the Defendant’s neurosurgical expert. Attributing Mr Malik’s condition to a probable radicular compression of the intercostal nerve root at T10/T11, he expressed the view that offering surgical decompression was reasonable given the ineffective alternatives and the 6-month wait – in terrible pain – for thoracic injections.

Mr Ivanov questioned the logic of even mentioning spinal injections to the patient in the circumstances. Although he agreed that the risks and benefits of the revision surgery should be shared with the patient, as well as the risks and benefits of any alternative treatment options, he believed that Mr Malik was sufficiently informed about the surgery.

Dr Sanders was the Pain Medicine expert instructed by the Defendant. His view was that, at the time of the consultation in July 2015, there were no pain treatment options which would have resulted in significant long-term improvements in pain or function.

The judgment

The judge identified inconsistencies between Mr Malik’s oral and written evidence. For example, Mr Malik’s oral account that his pain and mobility were not worsening before his second operation in 2015 were at odds with what appeared in his witness statement and that of his brother.

In contrast, Mr Minhas was deemed ‘impressive, cogent and convincing’.

The Court found, as a matter of fact, that Mr Malik complained of terrible intercostal pain on 13th July 2015 and that this had gone on for less than a couple of months.

The Court found that a responsible body of neurosurgeons would have deemed the intercostal pain to be radicular and caused by compression of the T10 nerve root, and that such a body of neurosurgeons would have offered revision surgery in July 2015.

On the issue of consent, the Court found that Mr Minhas gave appropriate advice on the types and magnitude of risk and that, in this case, the alternatives were inappropriate or ineffective and hence not reasonable.

Finally, the Court held that even if breach had been established the claim would have failed on causation.  Mr Malik would still have had the surgery in August 2015 even if presented with alternatives. 

Comment

There are several lessons of note.

For lawyers:

Just as in Bayley v George Eliot Hospital [2017] EWHC 3398 (QB), the judge looked at the issue of what counts as a ‘reasonable alternative’ through a Bolam lens: ‘I consider that a responsible, competent and respectable body of skilled spinal surgeons would have reasonably concluded that there were no reasonable alternative treatments available in the context of the parameters and discussion that the Claimant had with Mr Minhas’ [93]. Medical ethicists may well question the consistency of that approach – in which doctors ultimately decide what is a reasonable alternative – with the emphasis on patient autonomy found in Montgomery.

Unlike in other type of clinical negligence cases, in consent cases – where there are factual disputes about what was said or not said in consultations – the reliability of the Claimant’s evidence is key. The judge was unimpressed with the inconsistencies in Mr Malik’s evidence. Although unpleasant surprises at trial can never be eliminated (I still have nightmares about a consent trial I had 5 years ago in which the client inexplicably changed his evidence at trial), lawyers can minimise this risk by detailed and thorough conferences with the client and counsel.

Even if the Claimant had proved breach, the claim would have failed on causation. The Court held that Mr Malik was in terrible pain and wanted quick relief from it. This could only be achieved by surgery. In such cases, where the surgical option is plainly optimal for the patient, it is an uphill struggle to persuade a judge that the patient would in fact have opted for conservative treatment.

For experts, when giving evidence on the risks of surgery, make sure that any statistical analysis is factually and methodologically sound. Be prepared to justify each assumption in your calculation. [70] Again, lawyers can assist by taking a critical approach to their expert’s evidence in conference.

For doctors, mention in your clinic letters the advice you gave the patient about the risks and benefits of the options. The judge was ‘taken aback’ by Mr Minhas’ practice of dictating a letter to the GP after a clinic appointment, giving details of symptoms, clinical assessment, and appropriate treatments but not the risks and benefits of the options. The judge observed ‘That is a practice which […] is fraught with risks of being unable confidently to answer important questions many years later without having the benefit of a contemporaneous set of detailed notes.’ [85]

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