EVIDENCE GIVEN WITH THE BENEFIT OF HINDSIGHT: MEDICAL NEGLIGENCE AND CAUSATION

In the judgment today in Diamond -v- Royal Devon & Exeter NHS Foundation Trust [2017] EWHC 1495 (QB) His Honour Judge Freedman (sitting as a High Court Judge) found that a totally honest witness was not correct in her assessment of what she would have done if she had been given the correct information. It is a common issue in clinical negligence cases where consent and causation are in dispute. It highlights the point that the question of what would have been done if a party had been properly advised is an issue for the judge. The party’s evidence on this issue is far from decisive.

… recalling specific events or conversations is markedly different from attempting to reconstruct what her response would or might have been if given certain information. Expert witnesses, lawyers and others are trained not to use the benefit of hindsight to inform their opinion of what might or should have happened. It is, however, human nature for people to permit that which eventuated to influence their thinking on what they might have done if warned about a particular risk. To my mind, it would be quite impossible for the Claimant to divorce from her thinking, the fact that she was subsequently told … that it would be inadvisable for her to become pregnant because of the mesh and that, in the event, she has not had another child. Unquestionably, in my view, this sad outcome colours and informs her view of what she would have done if she had been appropriately warned”

THE CASE

The claimant brought an action for clinical negligence relating to her abdominal hernia repair.  There were two central allegations of negligence remaining at the end of the trial.

  • A failure to respond to the claimant’s abdomen at a review appointment.
  • A failure to ensure that the claimant had been given informed consent before proceeding to repair the hernia with a mesh.

The judge found the defendant negligence on the first issue.

CAUSATION AND THE QUESTION OF INFORMED CONSENT: HAD THE CLAIMANT PROVEN THAT SHE WOULD HAVE ACTED DIFFERENTLY?

    1. The critical question is of course what the Claimant would have elected to do armed with the knowledge that a mesh repair carried certain risks in the event of a pregnancy and that a suture repair was a possibility, albeit likely to fail.
    2. I am urged very strongly by Mr Kellar to find that the Claimant would not have undergone a mesh repair if appropriately counselled but rather a suture repair. I should make it plain that it is not argued that the Claimant would have opted for no treatment: she was understandably desperate to have her hernia repaired.
    3. Mr Kellar relies upon various passages in her evidence. By way of illustration, she said that if she had been advised about the risk of carrying a child, “that would have changed everything“. She went onto to say that she would not have elected to have a permanent repair “at the cost of [my] fertility“. She sought to emphasise that any risk to a baby would have overridden any concern she had for herself, saying words to the effect “it’s not just yourself when you’re told that there is an inkling of risk to the baby, that is something you just don’t think about risking“. She added that the ability to have children was “just about everything I am“.
    4. In her third witness statement at paragraph 7 she said:
If I had been told in May 2011 that prolene mesh repair might compromise a future pregnancy I would never have agreed to have this procedure. The ability to have children has always been very important to me and I would not have wanted to be stripped of my womanhood in this way. This is especially as I witnessed what damage a hysterectomy has done to the psyche, self-esteem and consequent relationships experienced by my mother when she was 43 and my cousin (who is like a sister to me) at least 10 years ago.
    1. Mr Kellar also urges me to accept that the risk of recurrence would not have deterred the Claimant from opting for a sutured repair. He says that such would be consistent with the fact that she opted to undergo spinal surgery notwithstanding the serious risks of the procedure and the very high chance of failure.
    2. Mr Kellar also relies upon the fact that the risks of pregnancy posed by the mesh repair were both objectively serious and subjectively serious. As to the latter, he points to the fact that once the Claimant was made aware of the risks of a pregnancy, she chose to abandon her plans of having another child. It is right to observe, however, that she was told, in fairly clear terms by Mr Peter Jones that it would be inadvisable to become pregnant in the presence of a mesh.
    3. I pause to observe that I unhesitatingly find the Claimant to be a credible and a truthful witness. Earlier in this judgment, I have found her evidence to be reliable in two material respects: telling Mr Khan about her stomach problems on 21st January 2011 and in relation to the lack of any discussion about pregnancy with Mr Wajed.
    4. But recalling specific events or conversations is markedly different from attempting to reconstruct what her response would or might have been if given certain information. Expert witnesses, lawyers and others are trained not to use the benefit of hindsight to inform their opinion of what might or should have happened. It is, however, human nature for people to permit that which eventuated to influence their thinking on what they might have done if warned about a particular risk. To my mind, it would be quite impossible for the Claimant to divorce from her thinking, the fact that she was subsequently told by Mr Jones that it would be inadvisable for her to become pregnant because of the mesh and that, in the event, she has not had another child. Unquestionably, in my view, this sad outcome colours and informs her view of what she would have done if she had been appropriately warned.
    5. I conclude that the Claimant genuinely believes and has convinced herself that she would have opted for a suture repair, if she had been provided with all the relevant information. Accordingly, what she said to me in evidence accords with her honestly held belief. But it does not of course, automatically follow that what she now believes to be the case would in fact have been the position at the material time.
    6. I have weighed up, as I must, all the available evidence (both objective and subjective) on this issue and I have come to the conclusion, on the balance of probabilities that even if she had been in a position to give informed consent, exactly the same procedure would have been undertaken.
    7. Having heard and seen the Claimant, my reasons for coming to this view are as follows:
i) She would have been told that a primary suture repair was almost certain to fail ultimately and likely to fail within 2 years.
ii) She would have been told that a mesh repair stood a very high chance of success.
iii) She would have been told that virtually all surgeons would do a mesh repair in these circumstances.
iv) Mr Wajed would have given her the strongest possible advice that she should have a mesh repair.
v) Mr Wajed would have expressed enormous reluctance to do a suture repair.
vi) She would not have been told that she could not have children in the future – only that there were certain risks. (That to my mind is a crucial distinction.)
vii) She was single at the time. A pregnancy was not within her immediate contemplation albeit that she had thought about having a child two years earlier with her ex-partner.
viii) Overall, in the face of this information, looking at the matter both objectively and subjectively in the face of the advice which would have been given to her, it would have been irrational for her to opt for a suture repair; and I find that she is not a person who would act irrationally.
I stress that, in my judgment, even if the operation had been performed two months’ earlier when the lesion may have been a little smaller, a mesh repair would still have been the outcome.
  1. Mr Kellar advances two further arguments which he says should give rise to an entitlement to damages for the failure to provide informed consent. First, he argues that the Claimant should be entitled to compensation for the “shock” of discovering that she could not have children. The Claimant told Dr Wright, “being told I wouldn’t have children was a major slap in the face“. It is contended that being told that she could not have children exacerbated her psychiatric condition.
  2. It should be observed that this somewhat ingenious argument featured for the first time in Mr Kellar’s closing submissions. The whole thrust of the Claimant’s case has been that had she been adequately counselled, she would not have had the mesh repair and, in that event, she would have been able to child-bear. This “secondary” case is only propounded in the event of a finding that the Claimant would still have had a mesh repair, even if appropriately warned and counselled.
  3. As it seems to me, it is not surprising that Mr Kellar did not, at any earlier time, put forward this argument. The reason why I express that view is because, in my judgment, it has neither factual or legal validity. The breach of duty on the part of Mr Wajed was to fail to warn the Claimant about possible complications in pregnancy. That is wholly different from being under a duty to tell a patient that if she undergoes a certain procedure, she would not be able to child-bear in the future. It cannot conceivably be said that it was a foreseeable consequence of the failure to warn about certain risks that another doctor (Mr Jones), nearly three years later would tell the Claimant that it was inadvisable to become pregnant. That such advice was given is, to my mind, unconnected to the breach of duty of the part of Mr Wajed or, at the very least, far too remote a consequence.
  4. Furthermore, it is the Claimant’s case that by the time she was given advice by Mr Jones, she was already suffering depression and anxiety. It seems to me that it would be very difficult to measure, in any meaningful way, the extent to which the advice given by Mr Jones rendered her depression/anxiety more severe. Additionally, it is, of course, trite law that ‘shock’ on its own does not sound in damages.”