Diamond v Royal Devon & Exeter NHS Foundation Trust [2019] EWCA Civ 585 (08 April 2019)

In this appeal the appellant pursues a claim for clinical negligence arising out of spinal fusion surgery performed on 6 December 2010 and subsequent identification and repair of a post-operative abdominal hernia on 28 June 2011. At the trial…two allegations of negligence were pursued, namely:

i) The spinal surgeon, failed to examine the appellant at a post-operative review consultation on 21 January 2011 causing a delay in the identification and treatment of her hernia. The claim succeeded and the appellant was awarded £7,500 for a delay of two months in respect of her hernia repair surgery.

ii) …the surgeon who performed the abdominal repair, failed to obtain informed consent from the appellant prior to proceeding to a mesh repair of the hernia. The appellant succeeded in establishing that [the surgeon] had not provided appropriate information for the purpose of informed consent, however the judge concluded that had she been so informed the appellant would have chosen to proceed with the mesh repair which in fact took place.

This appeal is directed at the final ground, namely that of consent and any injury or damage caused thereby. [1]

The appellant was born on 11 September 1971 and was aged 39 at the time of the material events. On 9 May 2011 the appellant saw [the surgeon] who elected to repair the hernia by means of an open mesh based repair with abdominal wall reconstruction. Following the surgery the appellant continued to complain of abdominal swelling and pain. She was advised to undergo another surgical procedure. On 5 August 2014 surgery was performed which involved removing the mesh, the hernia was repaired and a full abdominoplasty was undertaken. J found that the appellant’s mental and physical wellbeing had been adversely affected, she has suffered depression and anxiety. Further, the appellant had subsequently established a relationship with a new partner. An evidential issue arose as to what discussion had taken place between the appellant and [the surgeon] in May 2011 as to any future pregnancy. [2]

At trial it was common ground that at the May 2011 consultation [the surgeon] spoke only in terms of mesh repair of the hernia, he made no reference to the possibility of primary sutured repair. As to the issue of what, if any, discussion took place as to the appellant’s intention to become pregnant in the future, J preferred the appellant’s account, namely that she was not asked by [the surgeon] whether she planned to become pregnant in the future. However, the judge stated :”In the end, however, this factual dispute is of little, if any, relevance because even on the [surgeon’s] account, C had only said that she had no plans for a pregnancy in the foreseeable future which he took to mean within the next few months.” [3]

…dismiss the appeal. [42]