Bilal & Anor v St George’s University Hospital NHS Foundation Trust [2023] EWCA Civ 605 (13 June 2023)
This is an appeal… dismissed the claim… for personal injury following elective surgery performed by D on 13 August 2015 which resulted in spinal cord injury. C died on 14 July 2021 from causes secondary to his spinal condition. [1]
C aged 48 at the date of trial, had a history of spinal problems commencing in 2012 which caused pain, leg weakness and altered sensation. During the subsequent two years, his symptoms deteriorated [3]
C was experiencing terrible pain from the left side of his back with left side intercostalgia in addition to the ongoing left sided sciatic pain down the length of his leg and into his foot…. that there were elements of C’s pain emanating from the spinal cord as well as from the left T10 nerve root and L3/L4 spinal canal stenosis. This was dual pathology, neuropathic pain from the spinal cord together with possible neuropathic or radiculopathic pain from the nerve root compression. [6]
The surgery which D advised was to be undertaken at two sites namely: (i) a revision thoracic decompression of the exiting nerve root on the left side at T10/T11; (ii) a lumbar decompression at L3/L4. [8]
The proposed surgery took place on 13 August 2015. No criticism is made of the quality of the surgery performed by D but regrettably the outcome for C was to render him significantly worse off. His previous symptoms were not improved, he suffered a paraparesis and would be wheelchair dependent for the remainder of his life. [10]
J identified C’s case… did not give his informed consent for revision surgery. J stated that: “It is argued that his adverse outcome is the result of not being informed of alternative treatments which he could, and would, have chosen in preference to surgery if he had been told properly of the risks of this surgery and the scale of its potential benefits. Thus, it is argued, his injuries from unsuccessful surgery have been legally caused by D’s negligence.” [18]
Appellants’ contention that J was wrong in law: to hold that a responsible body of competent and reasonable neurosurgeons would have offered C revision surgery at the T10/T11 level of his thoracic vertebrae in July 2015 in the absence of any enquiry or knowledge about the duration of his associated pain. [24]
Appellants’ primary focus in this appeal has been the failure by J to address the issue of the failure by D to ask C on 13 July 2015 how long he had been suffering with intercostalgic pain. [42]
difficulty for the appellants is that the failure of D to ask this question was not a pleaded Particular of Negligence. It was not an issue raised with the neurosurgical experts prior to trial, as a result neither addressed the absence of the question, nor any consequence of the omission, in their reports nor in their joint statement. It was an allegation that was not put to D in cross examination, as a result he was given no opportunity to address the issue which the appellants now elevate to the core of this appeal. [43]
I would dismiss this appeal [68]
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