Price v Cwm Taf University Health Board [2019] EWHC 938 (QB) (15 April 2019)

This is an appeal… The judge heard C’s medical negligence claim arising out of three operations on his right knee carried out on 15 February 2011, 26 November 2011 and 30 April 2012… The first two operations were arthroscopy procedures and the third was a partial knee replacement using an Oxford Unicompartmental prosthesis. After the third operation, C had ongoing and persistent pain and D referred him to another surgeon… C had a full knee replacement on 20 May 2013. [1]
For the second arthroscopy the issue was the decision to proceed with the operation. C’s case was that an arthroscopy was not indicated for a patient in his position, was contrary to the NICE Guidelines and was a pointless operation to perform on him. An aspect of this point was another issue about consent, in that the consent form did not record any benefits for the operation and did not inform Mr Price that it was not indicated by the NICE Guidelines… [4]
The third operation was a partial knee replacement. The issue before the judge resolved down to a question of fact. C’s case at trial and on appeal is that the femoral component of the prosthesis was installed in such a way that it was misaligned. The manufacturer’s specification permits the component to be aligned +/- 10° to the relevant reference axis. Mr Price’s case was that the component was in fact aligned at about 17° or more. That was based on a composite X-ray image dated 15 October 2012 which was referred to at trial as the Long Leg image. D’s case was that the femoral component was not misaligned. The judge decided that the Long Leg Image was not one on which reliance could be placed. He also held that the relevant angle was no more than 6°. Accordingly the femoral component had not been negligently installed and the claim for the third operation failed. As a result the overall claim was rejected. On appeal C contends that the judge erred in various ways in his decision about the angle. [5]

Both grounds of appeal relate to findings of fact by the trial judge. In such cases appellants often approach the matter by seeking to persuade the appellate court what the facts are and then inviting a conclusion that the appeal should be allowed because the judge came to a different conclusion and therefore erred. That is not the right approach, particularly when the first step is necessarily based on edited highlights from the evidence below. The most important principle which I must keep in mind at all times is to remember that I am not the trial judge. The question is not – what do I think the facts are? The question is – has the trial judge erred in finding the facts as he or she has found them to be? [7]
…I am not satisfied there is any ground for overturning the judge’s conclusions. [67]