Anne Edith Powell v University Hospitals Sussex NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Dexter Dias |
| Judgment Date | 31 March 2023 |
| Neutral Citation | [2023] EWHC 736 (KB) |
| Docket Number | Case No: QB-2020-004128 |
| Court | King's Bench Division |
[2023] EWHC 736 (KB)
Dexter Dias KC
(sitting as a Deputy High Court Judge)
Case No: QB-2020-004128
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Heidi Knight (instructed by Dale & Newbery, Solicitors) for the Claimant
Mr Neil Davy (instructed by Hempsons LLP) for the Defendant
Hearing dates: 17, 18, 19, 20 January 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 31 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Dexter Dias KC:
(sitting as a Deputy High Court Judge)
This is the judgment of the court.
It is delivered in 11 sections, as set out in the table below, to explain the court's line of reasoning.
Core bundle in the form (page/para.): (B123/§45)
Supplementary bundle: (S123/§45)
Written submissions of claimant/defendant: (Cla/§) or (Def/§)
Defendant supplementary submissions: (DefSupp/§)
Trial transcript (trial day/page): (D1/234)
§I. Introduction
| Section | Contents | Paras. |
| I. | Introduction | 3–10 |
| II. | Brief chronology | 11–15 |
| III. | Law a. Informed consent: Montgomery b. Negligence test for professionals: Bolam c. Factual causation: classic “but for” test d. 13 axioms of fact-finding | 16–27 |
| IV. | Issues a. Issues formulated by parties b. Introductory commentary | 28–40 |
| V. | Assessment of witnesses a. Mrs Anne Powell b. Mr Sandeep Chauhan | 41–45 |
| Analysis Part One Issues capable of immediate resolution (1–4) | ||
| VI. | Issues 1–4 | 46–50 |
| Analysis Part Two The burning issues (5–7) | ||
| VII. | Issue 5: Information/advice as at 28 January 2014 a. Findings of fact b. Answering the two Issue 5 questions c. Further findings on consenting | 51–74 |
| VIII. | Issue 6: What claimant would have done if advised appropriately | 75–89 |
| IX. | Issue 7: Whether Staphylococcus epidermidis infection was present as at 28 January 2014 a. Introduction to Issue 7 b. Approach to conflicting expert evidence c. Assessment of experts d. Preliminary issue: pleading “concession” e. Factors for and against f. Factor evaluation g. Conclusion Issue 7 | 90–126 |
| X. | Overall conclusion | 127–34 |
| XI. | Disposal | 135–37 |
In this clinical negligence claim, Mrs Anne Powell, a woman now aged 65, was admitted into the Princess Royal Hospital in Hayward's Heath, Sussex to have what is called “left revision total knee replacement”. She had a prosthesis – a metal implant – in her left knee that was causing her discomfort. The objective of the surgery was to put it right by replacing it. This was in November 2013 when she was 55. At some point, following surgical procedures she had between that November and the next June, an infection entered her body and could not be controlled. Her left leg had to be amputated above the knee in 2016. Mrs Powell is now largely confined to a wheelchair. She needs the help of her husband Colin just to have a bath. The impact on virtually every aspect of her life has been devastating. She says that this catastrophic result was caused by the negligence of Mr Sandeep Chauhan, a very experienced orthopaedic surgeon who performed surgical procedures on her in that period.
But was Mr Chauhan negligent? Did his negligence, if any, cause the injury and loss Mrs Powell undoubtedly suffered?
The specific negligence alleged is not a want of due care and skill in the surgical procedures themselves, but a lack of appropriate consenting. Put another way: Mrs Powell says that if she was advised as she should have been about the risks and limitations of the procedures Mr Chauhan offered her, and if she were informed of a reasonable alternative treatment, what is called “first stage procedure” (the removal of the implant), she would have taken this option, and that would have eradicated any infection, and her leg would not have been lost.
Therefore, two issues sharply arise for the court's determination: informed consent and causation. The onus rests on Mrs Powell to prove each of these issues to the requisite civil standard of a balance of probabilities. If she fails on either, her action fails. If she succeeds, parties have agreed the quantum of damages at £485,000. Thus, this is a liability-only trial.
Let me emphasise at the outset that we live in an age where informed consent and patient autonomy are given great priority. Quite properly. To “consent” a patient is not a mere technicality, a box-ticking exercise for insurance or compliance purposes. Instead, it goes to the heart of legally authorising the substantial and at times severe interference with the patient's right to bodily integrity. The court takes such questions very seriously. It was put succinctly and starkly by Lord Steyn in Chester v Afshar [2004] UKHL 41 at [14]:
“Surgery performed without the informed consent of the patient is unlawful.”
For in our modern law, “medical paternalism” no long rules (ibid. at [16]). This is what is at stake in this case. This ethos permeates modern medical practice. For example, in the General Medical Council's latest guidance to medical practitioners (updated 9 November 2020), it states:
“Shared decision-making and consent are fundamental to good medical practice.” 1
Although patients lack specialist medical expertise themselves, they are the experts about what they would prefer. Save in certain emergency and exceptional situations, their right to bodily integrity can only be infringed with their clear and informed permission. They should be given the right information and the right advice about alternative treatments and risks, so they can properly choose. The determination of these issues is the exclusive focus of this judgment.
The parties to the action are Mrs Anne Edith Powell, the claimant, who has lived at all material times in Portslade on Sea, a community a little to the west of Brighton, where she lives with Mr Powell. She is represented by Ms Knight of counsel. The defendant is the University Hospitals Sussex NHS Foundation Trust, the employer of Mr Chauhan, who was for all relevant purposes Mrs Powell's treating surgeon. He is an orthopaedic surgeon with very considerable experience in knee surgery. As Mr Chauhan puts it himself:
“I specialise solely in knee surgery. This has been my sole practice for the last 15 years and I have been the Lead Knee surgeon throughout this time.” (B52/§3)
The defendant is represented by Mr Davy of counsel.
The court is indebted to both counsel for their focused and effective conduct of this troubling and important case. There was much ground to cover. That the evidence was completed within the trial time allocated is in no small part attributable to the realistic and flexible conduct of the case by counsel and their responsible professional cooperation. It does them great credit.
§II. Brief chronology
To set the scene leading up to the events of January 2014 and their aftermath, I provide a brief tabulated chronology. I emphasise that I follow what the Court of Appeal said in Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407. McFarlane P stated at [58] that a judgment is “not a summing-up in which every possibly relevant piece of evidence must be mentioned” (Proposition (4)). Thus, I focus on what is important.
The documentation before the court included a trial bundle running to 445 pages, a bundle of medical notes extending to 2684 pages and full skeletons arguments from counsel both at the outset and conclusion of the trial. There was also a further reply from the defendant. The claimant chose not to exercise that equal right.
I must first explain some technical terms that will recur in the text:
• DAIR. An acronym. A way of treating an infected wound. Debridement: treating wound by cleaning out and removing non-viable (necrotic) tissue. Antibiotics: targeted at bacterial organisms. Irrigation: washing out wound. Retention: retaining the implant.
• Two-stage revision (knee replacement/surgery).
○ First stage procedure: removing the infected implant, washing out the joint, inserting spacer (cement, antibiotic-suffused).
○ Second stage procedure: antibiotic spacer removed, joint washed out, new implant inserted.
• “DAIR plus”. A convenient shorthand adopted during trial. It denotes performing a DAIR and then the surgeon deciding whether to remove the implant during the surgery itself once more information becomes available intra-operatively.
Going back to the beginning, Mrs Powell first needed surgical intervention in 2005 following “a history of chronic pain in her left knee” (B53/§8, Chauhan). A selection of relevant dates includes the events below, organised in a table for ease of reference.
| Date | Event |
| November 2003 | Mrs Powell referred for orthopaedic opinion after 6–7 months' history of left knee pain and swelling. |
| 2004 | Mr Chauhan performs arthroscopy on Mrs Powell's knee. |
| April 2005 | After experiencing continuing pain in her left knee, Mrs Powell underwent a partial left knee replacement (left Oxford unicompartmental knee replacement) performed by Mr Chauhan. |
| 7 September 2005 | Mrs Powell reviewed by Mr Chauhan who concluded she would need a two-stage revision “in all probability”. |
| February 2006 | This was converted to a total knee replacement, performed by Mr Chauhan. Her right knee was replaced on the same occasion, without further issues. |
| 24 May 2012 | The left knee prosthesis became loose. Mrs Powell was reviewed in clinic by Mr Chauhan, who advised that the implant required revision and replacement. |
| 2013 | |
| 19 November | Mrs Powell was admitted to hospital... |
To continue reading
Request your trial