CLINICAL NEGLIGENCE AND WITNESS EVIDENCE: INFORMED CONSENT NOT GIVEN: HIGH COURT JUDGMENT TODAY

There are many posts on this blog about how, ultimately, many clinical negligence cases turn on the issue of what was said. Liability often depends on which account of a conversation the trial judge prefers.  This can be seen in stark terms in the judgment  of Mr Justice Dingemans today in Hassell v Hillingdon Hospitals NHS Foundation Trust [2018] EWHC 164 (QB).  It is one of those cases that emphasises the need for careful consideration of witness evidence, even in the most technical of cases relating to clinical negligence.

THE CASE

The claimant underwent a decompression and disc replacement operation. During that operation she suffered a spinal cord injury which rendered her permanently disabled.  The claimant’s case was that she was not adequately warned about the risks of the operation and that it was not carried out with adequate care and skill.

THE RESULT

The judge rejected the argument that the operation had not been carried out with reasonable care and skill. However he found that the claimant had not given informed consent,. She had not been  properly warned about the risks of the operation. If she had received appropriate warnings she would not have had the operation. She obtained judgment for £4.4 million.

THE JUDGMENT

Having reviewed the evidence, and the expert evidence, the judge considered the issue of informed consent.

“There was no informed consent

1. 1. I find that Mrs Hassell was not told about the risk of paralysis as a result of spinal cord injury as a result of the cervical discectomy in the consultation with Mr Ridgeway on 28 June 2011, and that Mrs Hassell was not advised of conservative treatment options including physiotherapy and further injections. I therefore find that Mr Ridgeway failed to take reasonable care and skill to ensure that Mrs Hassell was aware of the material risks of the operation and the alternative conservative treatment options. I make these findings for a number of reasons.

   2. First although Mr Ridgeway gave evidence that he had discussed conservative treatment options including physiotherapy with Mrs Hassell he accepted that he understood that Mrs Hassell had already had physiotherapy for her neck. Although this misunderstanding was understandable because Mrs Hassell had been having physiotherapy for other complaints, he could not have had this misunderstanding if he had discussed other treatment options with Mrs Hassell. This is because his misunderstanding would have been corrected by Mrs Hassell who was articulate and would have pointed out that she had not had physiotherapy. Montgomery makes it clear that there must be a dialogue and if there had been a dialogue Mr Ridgeway would have known that Mrs Hassell had not yet had physiotherapy for the neck and upper arm problems.

   3. Secondly it was apparent that, whatever Mr Ridgeway’s strengths as a surgeon when carrying out the operation (as to which see below), Mr Ridgeway was not a good communicator about the risks of operations. I make this finding because when he gave evidence in chief about the risks of the operation he did not include DVT or PE which he had said in his witness statement he would have mentioned (and which he mentioned for the lower back operation in 2009 as evidenced in his letter). Mr Ridgeway said it was his invariable practice to mention these risks for the cervical discectomy and there was no obvious reason why he should have failed to do so, other than that his belief about his invariable practice and what he said sometimes differed. Even making proper allowances for the fact that Mr Ridgeway was in the witness box and not talking to a patient it was plain that his belief about what he would invariably have said was not reliable. I also note that Mr Ridgeway did not identify in any of the earlier correspondence after the operation that the letter dated 1 July 2011 contained an omission about the risks of paralysis, even though he said he had mentioned these when talking to Mrs Hassell. The fact that Mr Ridgeway’s communication skills did not match his skills in the mechanics of surgery (as I have found them to be) is also evidenced by his operation note “Discectomy – ¾ through” which was not a good description of the fact that he was ¾ way through releasing the annulus from the front of C5 and C6 and not ¾ way through removing the disc. It also appears from his failure to pick up and correct the comment in the Chief Executive’s letter that Mr Ridgeway was removing the protruding disc material with diathermy.

   4. Thirdly Mrs Hassell gave clear evidence that she had not been warned about the risk of paralysis and that she would have been very concerned about that as the mother of 3 children in full-time work as head of year. I accept that studies show that many patients will not accurately remember the risks of an operation as they are explained to them, and all Judges have seen and heard honest witnesses fail to recall accurately and reliably conversations and events. However Mrs Hassell did have a particular recollection of a hoarse voice because it was relevant to her work (when she was required to shout across the playground on occasions) and asked questions about that risk. She wrote a letter complaining that she had not been told about the risk of paralysis. I consider it more likely than not, and find, that she would have had a particular recollection about paralysis if it had been mentioned to her and asked further questions if it had been mentioned.

   5. Fourthly Mr Ridgeway said in the letter dated 26 April 2012 that the operation could result in paralysis and said “similar to risks explained with previous spinal surgery”. However Mr Ridgeway’s letter about risks for the lower back surgery did not mention paralysis, and he did not suggest that that letter had omitted information. If Mr Ridgeway had explained the risks to Mrs Hassell as he had for the lower back (as he said he had in his letter dated 26 April 2012) he would have failed to mention paralysis.

   6. Fifthly Mr Ridgeway’s evidence about whether he had mentioned the possibility of further injections as an alternative treatment differed between his witness statement, where it was not mentioned, and his oral evidence, where it was mentioned. This gave me no confidence in the reliability of Mr Ridgeway’s recollections about what he had discussed with Mrs Hassell and when. Although the letter dated 28 July 2011 referred to a discussion about alternative treatments, this could not have been a discussion about physiotherapy for the reasons given above and must have referred to the alternative treatment options being fusion or disc replacement.

   7. Sixthly the website did not contain information allowing Mrs Hassell to understand fully the risks and benefits of the planned procedure. It is clear that the website referred back to discussions with surgeon. However if as Mr Ridgeway said, he referred patients to his website so that they may fully understand the risks and benefits of the planned procedure (paragraph 7 of his witness statement) it is unfortunate that crucial information about the risk of paralysis was missing.

   8. Seventhly the risk of spinal cord injury and paralysis was not referred to in the letter dated 28 June 2011 in circumstances where the letter was dictated in front of Mrs Hassell to ensure that she would know the risks which she was running. I accept that in the text there is reference to 1 in 1000 figure which the experts agree would be a reference to the risk of paralysis, but there is no mention of paralysis. This meant that: Mr Ridgeway did not mention paralysis to Mrs Hassell; or Mr Ridgeway did mention it and the dictating machine did not pick up the reference; or Mr Ridgeway did mention it and record it but the typist of the letter simply failed to type it. I find that there was no reference to the risk of paralysis in the letter because Mr Ridgeway did not give Mrs Hassell an explanation about the risk of paralysis. The figure of 1 in 1000 must have been mentioned at the end of the conversation but without any discussion about paralysis. This accords with the fact that Mr Ridgeway’s explanations about risks were not clear or consistent, as appears above.

   9. I find that Mrs Hassell was told about the risk of “cord damage” on 3 October 2011, but it is common ground that that warning on the day of the operation was not sufficient. It is also apparent from Mrs Hassell’s evidence about her movement up the list of operations that she was disconcerted by the fact that she had not had a chance to say goodbye to her husband before the operation, and that her mind was not engaged on the consent form on the day.

   10. I should make it clear that the absence of the “cc patient” on the letter dated 1 July 2011 suggests that it was not sent to Mrs Hassell. Mrs Hassell could not recall when she had received the letter. In the absence of “cc” it is more likely than not, and I find, that it was not sent to Mrs Hassell before the operation on 3 October 2011. This means that it is not necessary to consider the alternative way in which the case on consent had been put. I should record that it seems to have been acceptable practice to dictate the letter in the presence of the patient and not to send it.

Mrs Hassell would not have had the operation if she had been given relevant information

1. 1. Both sides pointed to the pre-operative assessment on 27 July 2011 as supporting their case that Mrs Hassell would not or would have had the operation if there had been informed consent to the operation. The assessment does have a tick to no limitation of physical activity and then “limited by back/neck Problems only” suggesting that the problems were not too bad. The assessment also included “very limited neck movement – hence planned op!”. In my judgment this is an illustration of the problem that can be caused by tick box forms, and Mrs Hassell’s condition was as she had fairly described it in her evidence. This included real problems with holding a steering wheel for a long period of time, limitation of neck movement but an ability to work and carry out her normal activities. I accept that Mrs Hassell was still working and she was still able to look after her children. Mrs Hassell said that she would have been very concerned about the risk of paralysis and would have wanted to explore physiotherapy, even though it had not given relief for the lower back, and even osteopathy which had given her relief when pregnant, and I accept that evidence.

   2. It is right to note that Mrs Hassell had had an operation on her lower back and a hip arthroscopy, and had benefits from those operations. That shows that Mrs Hassell was prepared to have an operation in certain circumstances. I also accept that Mrs Hassell was prepared to take the risk of a hoarse voice, but there is a very considerable difference between being left with a hoarse voice and paralysis. Mrs Hassell also had confidence in Mr Ridgeway and liked him. However I accept Mrs Hassell’s evidence and find that if Mrs Hassell had been given the relevant information about the risks of paralysis and conservative treatment options, Mrs Hassell would not have had the operation on 3 October 2011. This is because Mrs Hassell said that if she been told that not having conservative treatment was an option, and that surgery carried a risk of 1 in 500 to 1 in 1000 of permanent paralysis, she would have opted for conservative treatment. Mrs Hassell had pursued conservative treatment before, and had derived benefit in the past from osteopathy. Mrs Hassell said that she was aged 41 years at the time and surgery with a risk of paralysis would have been a frightening prospect. I accept that evidence which accords with my finding that Mrs Hassell was able to relate to risks that were real to her, such as the difficulty she would have had shouting across a playground with a hoarse voice.

Mr Ridgeway used reasonable care and skill in performing the operation

1. 1. I accept Mr Ridgeway’s evidence that he was ¾ way through the process of freeing the annulus of the disc from the C5 and C6 bones at the front of the neck rather than ¾ way through removing the disc material. I make this finding for the following reasons. First Mr Ridgeway was more comfortable when dealing with the mechanics of the operation where his descriptions in oral and written evidence (the operation note apart) were clear and consistent, and which was in clear contrast to his inconsistent evidence about risks and alternative treatments as set out in my finding about the absence of informed consent.

   2. Secondly it made no sense for Mr Ridgeway to attempt to use diathermy ¾ way through the disc because it would have become clogged with coagulant, being the melted disc material. In those circumstances I do not accept that Mr Ridgeway would have been using an ineffective tool ¾ way through the disc (looking from the front to the back of the disc).

   3. Thirdly Mr Ridgeway’s approach to the mechanics of the operation seemed careful and measured, for example the amount of time that he said he was prepared to dedicate to setting up the microscope and the fact that he used SCM.

   4. Fourthly Mr Ridgeway’s evidence about where he was in the course of the operation is supported by what can be worked out from the log kept by Ms Howard and Ms Howard’s evidence about the operation.

   5. Against these factors is the proposition that anyone can make a mistake, and a cause for inquiry about why Mr Ridgeway stopped and asked for traces when he did. Mr Ridgeway said that there was no reason to stop and take traces when he did, but he would do it before starting on the removal of the disc material. Further Mr Ridgeway’s evidence about where he was in the operation was clear and for the reasons set out above I accept it.

Unknown cause for the spinal cord lesion

1. 1. In these circumstances where I have found that Mr Ridgeway was not ¾ of the way through the disc and was at the front removing the annulus of the disc from the C5 and C6 bone it is common ground that I cannot, on the balance of probabilities, determine what caused the spinal cord injury and paralysis suffered by Mrs Hassell. I am satisfied that it was one of the possibilities identified by the experts, but there is nothing on the material before me which enables me to find, on the balance of probabilities, one cause over another.

Conclusion

1. For the details reasons set out above I find that Mr Ridgeway used reasonable care and skill in carrying out the operation, and that I am unable to identify the cause of Mrs Hassell’s spinal cord injury. I find that Mrs Hassell did not give informed consent to the operation, and that if she had been given information about material risks and conservative treatment Mrs Hassell would not have agreed to the operation on 3 October 2011. In these circumstances I give judgment for Mrs Hassell for the agreed sum of £4.4 million. I am very grateful to Mr Hough and Mr Hutton and their respective legal teams for their assistance.”