Fact-finding in consent cases and confirmation, no free-standing claim for damages arising from a failure to warn: Lucy Diamond v Royal Devon & Exeter NHS Foundation Trust [2019] EWCA Civ 585

This blog is by Helen Waller and John-Paul Swoboda of 12 KBW

The Court of Appeal held that there was no free-standing claim for damages arising from a failure to warn of risks associated with a procedure that, on the facts, the Claimant would have undergone in any event.

The facts giving rise to this appeal were that the Claimant had had an abdominal hernia repaired using surgical mesh, which was then liable to affect future pregnancies. She was not advised of the possible alternative of a suture repair.

At first instance HHJ Freedman, sitting as a High Court Judge, held that the Claimant was entitled to damages in respect of a two-month delay in identifying and treating her hernia. The Judge also concluded that the operating surgeon had not provided appropriate information for the purpose of informed consent, but that there was no causation such as to give rise to an action for damages. This was so since, on the facts as held, had the Claimant been so informed then she would have chosen to proceed with the same mesh repair which in fact took place. The evidence before the Court was that the operating surgeon’s view was that a suture repair would be liable to fail, with a very high recurrence risk of the hernia and that the vast majority of surgeons would elect to repair the Claimant’s hernia with a mesh.

There are two points of particular interest. Firstly, the Court of Appeal’s approval of the trial judge’s approach to factual causation, which involved a consideration of the rationality of the decision about treatment. Secondly, the reiteration that the line of case law stemming from Montgomery v Lanarkshire Health Board [2015] 2 WLR 162 and Chester v Afshar [2005] 1 AC 134 does not give rise to a free-standing claim for damages arising from a failure to obtain fully informed consent without more.

The trial judge, in considering what the Claimant would have chosen to do had she been properly informed, considered the rationality of each possible decision: opting for the mesh repair or a suture repair. He found that to opt for the suture repair would have been irrational and that the Claimant herself was not a person who would act irrationally ([2017] EWHC 1495 (QB) at [49]). This was so even though at trial the Claimant gave evidence that she would have chosen the suture repair. In the Judge’s view, this evidence was coloured by her being (possibly erroneously) told in the interim period by another medical professional that it would be inadvisable for her to become pregnant because of the mesh (at [46]). Lady Justice Davies, giving the judgment on appeal, held at [22] that,

The judge met the requirement set out in Montgomery in that he took account of the reasonable person in the patient’s position but also gave weight to the characteristics of the appellant herself. He did not apply a single test of “rationality” without more to the issue of causation. No valid criticism of the judge’s approach, still less his assessment of the factual evidence can be made.

The Appellant abandoned her challenge to the Judge’s finding that there is no free-standing right to claim for damages to compensate her for an invasion of her right to personal autonomy or choice but did contend a right to damages on the basis that her shock distress and consequent depression was “intimately connected” to the failure to obtain informed consent. The Court of Appeal set out the relevant case law reiterating that the “but for” test still applies to causation in consent cases (at [15]) but also reiterated that this is not usually sufficient as it is also normally necessary to show that the breach was an effective cause (which is to say a cause whereby the claimant would have altered the risk s/he exposed themselves to): cf Duce v Wostershire Acute Hospital NHS Trust [2018] EWCA Civ 1307. In this case the appellant did not cross the first hurdle in showing that but for the breach the injury would not have occurred as she would nevertheless have undergone the surgery. Further if the appellant wanted to fit themselves into the exception in Chester v Afshar [2005] 1 AC 134 they would have needed to show a) that the breach was a ‘but for’ cause (on a probabilistic analysis) and b) that the operation would have been deferred had there been full disclosure of risk. In this case there was no evidence the appellant would have deferred the operation on full disclosure of risk but rather that the Claimant would have proceeded with the operation. The appellant’s argument that it was sufficient to show that injury was intimately connected with failure to fully disclose the risks was dismissed as being ‘without merit’.

This is, therefore, a helpful decision confirming the ability of first instance judges to take a logical and pragmatic approach to questions of fact, even when that goes against what a party is subjectively telling the court at trial and in providing clarity around the contours of causation in cases where there has been a failure to provide full disclosure of risk and/or alternative treatments.

Consent, causation and Chester  – the Court of Appeal examines the modified test in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307

This blog is by Vanessa Cashman of 12 King’s Bench Walk.

Summary

The claimant underwent a total abdominal hysterectomy and bilateral salpingo-oophorectomy in order to treat extremely painful and heavy periods. She was 41 years old at the time.

The operation was performed non-negligently on 25 March 2008. Following surgery the claimant developed Chronic Post-Surgical Pain as a result of nerve damage. The issues were whether she was properly consented in respect of the risk of post-operative pain and whether she could establish causation. Continue reading “Consent, causation and Chester  – the Court of Appeal examines the modified test in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307”

Surgical consent case report: materiality of risk – Montgomery vs Bolam

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.

Continue reading “Surgical consent case report: materiality of risk – Montgomery vs Bolam”

LOST IN TRANSLATION: the importance of ensuring that medical advice is understood by the patient.

In this post Ted Cunningham of 12KBW examines the recent High Court decision in NILUJAN RAJATHEEPAN v BARKING, HAVERING AND REDBRIDGE NHS FOUNDATION TRUST [2018] EWHC 716 (QB). The case highlights the importance of proper and effective communication between medical professionals and patients who do not have a good grasp of English. In circumstances where medical professionals believe that they have communicated effectively, that belief must be objectively reasonable.

Continue reading “LOST IN TRANSLATION: the importance of ensuring that medical advice is understood by the patient.”

Meadows v Khan – wrongful birth: are additional unconnected disability costs recoverable?

In this post Vanessa Cashman of 12KBW discusses the recent decision of Yip J in Meadows v Khan [2017] EWHC 2990 (QB), a  case concerning the recoverability of additional costs arising out of a disability unconnected with the negligent failure to diagnose that led to a wrongful birth.

Continue reading “Meadows v Khan – wrongful birth: are additional unconnected disability costs recoverable?”

Failure to obtain informed consent: is there a free-standing right to damages?

In this post Farhana Mukith discusses the case of Shaw v (1) Kovac & (2) University Hospitals of Leicester NHS Trust [2017] EWCA Civ 1028, in which the Court of Appeal considered whether compensation for the unlawful invasion of a patient’s personal rights ought to be recognised as a separate and free-standing cause of action.

Continue reading “Failure to obtain informed consent: is there a free-standing right to damages?”

ABC v St George’s Healthcare NHS Foundation Trust [2017] EWCA Civ 336: Does a doctor owe a duty of care to disclose a hereditary disease to a patient’s child?

In this post Rachit Buch of 12KBW discusses the Court of Appeal’s recent reversal of Nicol J’s decision to strike out a claim on the basis that a doctor did not owe a duty of care to disclose a patient’s hereditary disease to his child.

Overturning the decision the Court of Appeal held that it was arguable that medical practitioners could be liable for failing to inform family members of a diagnosis where there was definite, reliable and critical medical information as would be the case in clinical genetics.

Continue reading “ABC v St George’s Healthcare NHS Foundation Trust [2017] EWCA Civ 336: Does a doctor owe a duty of care to disclose a hereditary disease to a patient’s child?”

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