Adrian Mills (by Maria Mills his wife and litigation friend) v Oxford University Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Karen Steyn |
| Judgment Date | 12 April 2019 |
| Neutral Citation | [2019] EWHC 936 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Claim No: HQ18C00995 |
| Date | 12 April 2019 |
[2019] EWHC 936 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Karen Steyn QC
(sitting as a Deputy High Court Judge)
Claim No: HQ18C00995
Charlotte Jones (instructed by Thompsons) for the Claimant
John de Bono QC (instructed by Beachcroft) for the Defendant
Hearing dates: 4 th – 8 th March 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Karen Steyn QC:
INDEX
| Contents | Para No. |
| A. Introduction | 1–5 |
| B. The Issues | 6–28 |
| (a) Alleged negligence in the performance of the operation | 7–11 |
| (b) Alleged failure to obtain informed consent | 12–17 |
| (c) Causation | 18–23 |
| (d) Issues that do not arise or have fallen away | 24–28 |
| C. Summary of my Conclusions | 29 |
| D. The Evidence | 30–34 |
| E. The Facts | 35–79 |
| (a) Discovery of Mr Mills' tumour | 35–39 |
| (b) The MDT's assessment and plan | 40–46 |
| (c) Consultation with Mr Plaha on 8 November 2012 | 47 |
| (d) Letter of 8 November 2012 from Mr Plaha to Mr Mills' GP | 48–49 |
| (e) Pre-operative assessment | 50 |
| (f) Mr Mills' admission to the John Radcliffe Hospital on 3 December 2012 | 51–55 |
| (g) The resection operation on 4 December 2012 | 56–63 |
| (h) Did Mr Cadoux-Hudson assist Mr Plaha once or twice? | 64–65 |
| (i) Mrs Mills' telephone calls to the hospital | 66–67 |
| (j) After the operation | 68–79 |
| F. Clinical Negligence — Issue 1: Was the use of a minimally invasive endoscopically-assisted open craniotomy technique negligent? | 80–122 |
| (a) The Law | 80–85 |
| (b) Mr Plaha | 86–88 |
| (c) The standard technique | 89–92 |
| (d) The endoscopically-assisted technique | 93–94 |
| (e) Mr Plaha's evidence, series and paper | 95–104 |
| (f) The expert evidence regarding the endoscopically-assisted technique | 105–110 |
| (g) Conclusion on Issue 1 | 111–122 |
| G. Clinical Negligence — Issue 2: Did Mr Plaha stray into the midline structures and transect a vessel there? | 123–149 |
| (a) The law | 123 |
| (b) The factual evidence | 124–131 |
| (c) The expert evidence | 132–138 |
| (d) Conclusion on Issue 2 | 139–149 |
| H. Informed Consent — Issues 3 and 4: The Law | 150–154 |
| I. Informed Consent — Issue 3: Advice regarding the three alternative treatment options | 155–194 |
| (a) The allegations | 155–157 |
| (b) The contemporaneous documentary evidence | 158 |
| (c) Mrs Mills' evidence | 159–161 |
| (d) Mr Plaha's evidence | 162–166 |
| (e) Errors in Mr Plaha's paper | 167–173 |
| (f) Mr Cadoux-Hudson's evidence | 174 |
| (g) The expert evidence | 175–180 |
| (h) Evidence based on recollection | 181–182 |
| (i) Conclusion on Issue 3 | 183–194 |
| J. Informed Consent – Issue 4: Advice regarding the alternative surgical techniques | 195–204 |
| (a) The scope of the Trust's admission | 195–196 |
| (b) The expert evidence | 197–198 |
| (c) Conclusion on Issue 4 | 199–204 |
| K. Causation – Issue 5: What treatment would Mr Mills have opted for? | 205–216 |
| (a) Impact of failure to advise the glioma was incidental and not the likely cause of headaches | 205–206 |
| (b) Impact of failure to advice about the alternative surgical techniques | 207–216 |
| L. Causation – Issue 6: Did the choice of technique make it more difficult to control the bleeding? | 217–225 |
| (a) The expert evidence | 217–220 |
| (b) Conclusion on Issue 6 | 221–225 |
| M. Causation – Issue 7: Scope of the Duty | 226–228 |
| N. Conclusion | 229 |
A. Introduction
The Claimant in this case is Mr Adrian Mills. He was born on 11 April 1967 and is currently 52 years old. On 4 December 2012, Mr Mills underwent brain surgery at the John Radcliffe Hospital, specifically, a resection (otherwise known as de-bulking) of a left frontal glioma (i.e. a tumour). He suffered a haemorrhage during the course of the operation which caused him to suffer a stroke in the left anterior cerebral artery territory.
Prior to the surgery, Mr Mills worked as a Firefighter, employed by the London Fire Brigade. As a consequence of the haemorrhage and stroke, he has been left with a very significant physical and cognitive disability. He was medically retired in 2013.
Mr Mills has brought a claim for damages against Oxford University Hospitals NHS Trust (“the Trust”) for alleged negligence. He alleges that Mr Puneet Plaha, a Consultant Neurosurgeon employed by the Trust:
i) Performed the surgery negligently; and/or
ii) Failed to take reasonable care to ensure that Mr Mills was aware of the material risks involved in the proposed procedure and/or of any reasonable alternative or variant treatments.
Mr Mills lacks capacity to litigate and/or manage his financial affairs. He has brought this litigation by his wife, and litigation friend, Mrs Maria Mills. Both Mr and Mrs Mills were present in court throughout the hearing. As Mr John de Bono QC (Counsel for the Trust) rightly acknowledged, Mr and Mrs Mills both demonstrated immense dignity and courage in the manner in which they sat and listened throughout the trial and, in Mrs Mills' case, in giving evidence.
I have summarised the issues in paragraphs 6 to 23 and my conclusions in paragraph 29 below. My overall conclusion is that the claim against the Trust (which accepts vicarious liability) based on lack of informed consent succeeds, whereas the claim based on clinical negligence fails.
B. The Issues
The hearing addressed issues of liability only. In broad terms, as I have said, the allegations of negligence break down into two parts (a) negligence in the performance of the operation and (b) failure to obtain informed consent. I shall address the performance of the operation first because the allegations under that head go not only to the actual performance of the surgery on the day, but also more fundamentally to the question whether the technique used by Mr Plaha was negligent.
(a) Alleged negligence in the performance of the operation
There are two distinct allegations under this head, and it is common ground that the standard of care in respect of them is to be judged by applying the well-known Bolam test.
Issue 1: In performing the resection Mr Plaha used a minimally invasive endoscopically-assisted open craniotomy technique. In 2012, the conventional technique involved using a microscope (rather than an endoscope) for the purpose of visualising the tumour site and required a larger craniotomy than the technique used by Mr Plaha in operating on Mr Mills.
Mr Mills alleges that using this endoscopically-assisted technique was itself negligent. Specifically, the particulars of claim allege negligence in failing “ to use a technique that allowed direct line of sight of the vessels [Mr Plaha] injured and the ability to control bleeding if and when it happened” (PoC §19(i)). The Trust denies that the technique used was negligent.
Issue 2: Mr Mills alleges that, in the course of the operation, Mr Plaha unintentionally and negligently “ migrated into the midline structures and directly damaged vessels causing life threatening haemorrhage” (PoC §19(h)). The Trust denies this.
It is clear that, when removing the tumour, Mr Plaha unintentionally transected a vessel causing a torrential bleed. The key question in respect of this allegation is where the vessel was located when it was transected. When the transected vessel was found, it was about 3–4cms from the deepest part of the tumour. It is common ground that if the transection of the vessel occurred where it was found that would signify that Mr Plaha had negligently migrated into the midline structures. To put it colloquially, it would mean he was lost “ very far” from the tumour site. On the other hand, if the vessel was within the tumour when it was transected, then Mr Plaha was de-bulking the tumour in the correct area and the haemorrhage was a very unfortunate, but non-negligent, occurrence.
(b) Alleged failure to obtain informed consent
The allegations under this head concern the advice given by Mr Plaha to Mr Mills during the consultation on 8 November 2012. It is common ground that when assessing these allegations, I should apply Montgomery v Lanarkshire Health Board [2015] UKSC 11, [2015] AC 1430.
Issue 3: It is alleged that Mr Plaha failed to advise Mr Mills that there were three treatment options available to him, namely, (i) surveillance (i.e. wait and watch, by means of repeat scans); (ii) biopsy; and (iii) resection (PoC §19(d) and (f)). The Defendant acknowledges that failing to offer all three options would be negligent but denies there was any such failure.
More broadly, Mr Mills contends that, even if Mr Plaha offered these three treatment options, he failed to provide adequate pre-operative advice in respect of each option (leaving aside the matters that are the subject of issue 4), (PoC §19(a), (b), (c) and (e). The Trust denies any failing in this regard.
Issue 4: Mr Mills alleges that Mr Plaha “ wholly failed to advise that a minimally invasive endoscopic technique using a rigid endoscope was a novel technique and not a standard well tested technique for resection of a brain tumour; that the use of an endoscope would involve more limited access than would otherwise be the case and consequently greater risk to vessels that could not be directly visualised” (PoC §19(g)).
The Trust makes an admission in respect of this allegation in these terms: “ in advising the patient of the surgical debulking option, Mr Plaha provided advice regarding the surgical approach, intended benefits and...
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