Crossman v St George’s Healthcare NHS Trust [2016] EWHC 2878 (QB) (25 November 2016)

It is the case for C that but for D negligence he would not have undergone the operation when he did and that he is entitled to compensation either on conventional causation principles or on the basis of the decision in Chester v Afshar. (paagraph 4)

C aged 63 began to suffer symptoms of numbness in his left arm, and pain and restriction of movement in his neck in May 2010. (paragraph 6)

MRI scan of his cervical spine… identified widespread degenerative changes and constitutional narrowing of the spinal canal…minor compression of the spinal cord at C3/4 and C5/6 and neuroforaminal encroachment was present at multiple levels bilaterally. (paragraph 7)

C was referred. Various management options were discussed in the light of the MRI scan and the C’s clinical presentation, including surgery. D explained the potential risks and benefits of surgery. However, he advised conservative treatment including physiotherapy at that stage with a review in three months’ time. (paragraph 8)

C was put on the waiting list for surgery. (paragaph 10)

…10 April 2011, C was admitted… The surgery was carried out 11 April 2011… (paragraph 15)

Having reviewed the MRI scans, D decided to perform a laminectomy as well as a foraminotomy (paragraph 16)

…the operation appeared to go well at the time, and there is no suggestion that it was carried out negligently, C suffered radicular nerve root injury. It is agreed by the parties’ expert witnesses that the risk of this as a result of the operation is less than 1% and is probably of the order of 0.5%. (paragraph 17)

It is further agreed that, if the management plan had been followed as intended, the Claimant would have had to have the same surgery three months later, and that the level of risk would have been the same then as it was in April 2011. (paragraph 18)

It is admitted on the pleadings that

i) there was a negligent failure to follow the plan for conservative management with physiotherapy and a review in the outpatient clinic thereafter;

ii) D was negligent in not enquiring of C whether conservative management had occurred and in not discussing with D whether the operation should be postponed for this to take place; and

iii) D was negligent in not informing the Claimant that he should undergo conservative treatment as a first option before surgery, or that this remained the recommendation.

D’s pleaded case, though, is that whilst but for the negligence the surgery would have been delayed, this would not have materially affected the risk of damage to the C5 nerve root, and there is no causal link between the admitted negligence and the C’s injury. It is also pleaded that C was himself negligent in not raising the fact that he had been recommended for conservative treatment with the Hospital staff. (paragraphs 18 and 19)

C was unlucky. Had he had the operation on a different occasion, on the balance of probabilities the operation would have been successful. (paragraph 45)

…but for the admitted negligence of D, C would not have had the operation when he did. Had he had the operation on a different occasion, he would not have been advised that he was at any greater risk, and, although the risk was in fact higher in his case, it was not one which was more likely than not to be realised. Hence, in my judgment, the claim succeeds on conventional “but for” causation principles. (paragraph 46)

…the exceptional and limited nature of the extension to conventional causation principles that the majority in the House of Lords intended to make in Chester v Afshar. A failure properly to warn of the risks of surgery is fundamental as it vitiates the consent itself, and removes the right of autonomy and dignity of the patient to make an informed choice. It can be said that a failure to inform the patient in due time of the change in the identity of the surgeon in whom you are placing your trust to carry out the operation falls into the same category, as again it removes the patients right of choice. (paragraph 53)

Each case must though depend on its own facts. The scenario in this case falls… into a different and lesser category. A mistake was made by the Hospital in the implementation of the treatment plan, in consequence of which the patient had the operation earlier than would otherwise have been the case. He was aware of the change of plan. For reasons that can readily be understood, he did not question this, after phoning the hospital. He was duly warned of the risks of surgery and the surgery was carried out by the surgeon he had consulted.

…the case stands or falls by conventional causation principles and modification of the normal approach to causation would not be justified. If my decision that the case succeed on conventional causation principles is right, happily, no modification is required or justified in any event. (paragraph 55)

judgment for C (paragraph 56)