Gail Marie Duce v Worcestershire Acute Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Newey,Lord Justice Leggatt,Lord Justice Hamblen |
| Judgment Date | 07 June 2018 |
| Neutral Citation | [2018] EWCA Civ 1307 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2016/0826 |
| Date | 07 June 2018 |
[2018] EWCA Civ 1307
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT BIRMINGHAM
His Honour Judge Worster
Claim No: 1IQ15454
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hamblen
Lord Justice Newey
and
Lord Justice Leggatt
Case No: B3/2016/0826
Joel Donovan QC and Nathan Roberts (instructed by Fairweathers Solicitors LLP) for the Appellant
Philip Havers QC and Richard Mumford (instructed by Capsticks Solicitors LLP) for the Respondent
Hearing date: 17 May 2018
Judgment Approved
Introduction
This appeal concerns the claim of Mrs Gail Duce, the appellant, made against Worcestershire Acute Hospitals NHS Trust, the respondent, for damages for negligence in relation to a total abdominal hysterectomy and bilateral salpingo-oophorectomy (TAH & BSO) performed at Worcester Royal Hospital on 25 March 2008.
As a consequence of the operation the appellant suffered nerve damage and now suffers serious and permanent pain, described by pain experts as Chronic Post Surgical Pain (“CPSP”). There is no suggestion that the operation was performed negligently. The appellant's case is that she was not adequately warned of the risk of pain in relation to the operation.
Following a four day trial before HHJ Worster in Birmingham County Court in September 2015, in a judgment dated 5 February 2016 the judge dismissed the claim, finding that the respondent was not negligent and that in any event causation had not been established. Both those findings are now appealed.
Factual background
The background facts are set out at [5]–[34] of the judgment.
In summary, the appellant was born on 15 October 1966. Prior to the operation, she had a history of painful and heavy periods, which had worsened in the period leading up to the operation. She also suffered from lower back pain from around January 2006.
In December 2007 the appellant sought medical advice in respect of her heavy periods. On 18 December she saw a Mrs Arya in clinic to discuss the possibility of undergoing a TAH to relieve the symptoms of her heavy periods [7]–[8].
On 8 February 2008 a medical note made by Dr Stanley indicated that the appellant was insistent that she wanted a TAH, notwithstanding that he had explained it as a “major operation which has associated risks”. She wanted it “all taken away” [9].
On 15 February 2008 Dr Stanley wrote to the Consultant Gynaecologist asking him to review the option of a TAH with the appellant. Dr Stanley wrote that he had explained to the appellant that TAH is “a very major surgical procedure” and that “our recommendation would be to try less invasive methods” [10].
On 4 March 2008 the appellant had a further review with Mrs Arya which again confirmed that she wished to have a TAH and would not consider other treatment options. She did not want to go through the process of attempting these, only to have them fail. Mrs Arya's note of that meeting concludes with ‘risks explained’ [12]–[13]. Mrs Arya gave evidence that normal practice would be to provide a leaflet at this stage, although she could not remember the meeting and so could not say for sure whether it had been given on this occasion.
Following these consultations, the appellant chose to go ahead with the operation. Her initial appointment was cancelled and it appears that a letter giving the date of the new appointment was not received by her, meaning that she was only notified that she was to have the operation on the morning of the new appointment on 25 March 2008. As a result of this and travel difficulties, she was five minutes late to the appointment. On arrival, the receptionist noted that she was late, which unnerved and upset her, leaving her feeling flustered [23].
Once at the hospital, the appellant met with the surgeon, Mr Elneil, and the Registrar, Mrs Singh, at around 08:20am. As the appellant had difficulty understanding Mr Elneil's accent, Mrs Singh dealt with consent. Mrs Singh filled out the consent form and passed it to the appellant to read and sign, which she did, although she said that she felt that the staff were in a hurry and therefore felt under pressure to complete the form quickly. The consent form makes no reference to pain, but the judge accepted that there had been a discussion between the appellant and Mrs Singh to the effect that the operation might not relieve the appellant's existing pain, as confirmed by Mrs Singh's notes. Mrs Singh accepted in cross-examination that in 2008 she would not have said that there was a risk of developing chronic pain or neuropathic pain as a result of the surgery [31]. She would only have warned of the post-operative pain normally associated with surgery. The evidence of the anaesthetist, Dr Bhardwaj, was that she too would only have warned of normal post-operative pain [32].
The operation was performed, non-negligently, by Mr Elniel between 09:12 and 10:10am on 25 March 2008 [33].
Following the surgery, it became apparent that the appellant had sustained nerve damage as a result of which she suffered from pain in her abdominal wall which is “significantly different in type to the pain she was suffering prior to her operation” [34]. Essentially, as explained by the pain experts, she has developed what is now recognised as CPSP [35]–[37].
The appellant's case at trial
The appellant's case as originally pleaded was that the respondent was negligent in failing to warn her of the risk of CPSP. This was defined in [10] of the Particulars of Claim as meaning “neuropathic chronic post-surgical pain”.
This case was not supported by the appellant's gynaecological expert, Mr Abouzeid. In his expert report he stated:
“….in relation to the specific risk of developing chronic post-surgical pain (CPSP) my judgment is that there was no breach of duty, as there was no clear evidence of that specific risk in March 2008.”
Mr Abouzeid was asked by his instructing solicitors “what advice about the likely duration of post operative pain should Mrs Duce have been given in March 2008” to which he replied:
“The risk of short term post operative pain which could last for weeks should have been explained.”
In the light of Mr Abouzeid's evidence the Particulars of Claim were amended to delete the allegation of failure to warn of CPSP and instead to allege a failure to warn of “post operative pain”.
As the judge noted at [47]–[48], the appellant's case “evolved” at trial so as to encompass a duty to warn of neuropathic pain and “some” chronic neuropathic pain. Chronic was said to mean pain persisting beyond 3 months, but it could not mean long term pain given the concession that there was no duty to warn of CPSP. In various closing submissions the case was therefore put as being “short lived” chronic pain. Despite indications to the contrary in his written skeleton argument, Mr Donovan QC for the appellant has confirmed that he does not seek to put the case in a different or wider way to that put at trial.
As the judge observed at [47], and as is apparent from the trial transcripts, this “evolved” case was based on what was argued to be the effect of Guidance dated May 2009 provided by the Royal College of Obstetricians and Gynaecologists (“the RCOG Guidance”). Although published the year after the events in question, this was agreed by the experts to represent best practice as to the content of warnings of risk in relation to TAH.
The RCOG Guidance distinguished between “Serious risks” (including death) and “Frequent risks”. Among the “Frequent risks” was “numbness, tingling or burning sensation around the scar (the woman should be reassured that this is usually self-limiting but warned that it could take weeks or months to resolve)”. It was argued that this amounted to a risk of neuropathic symptoms which could last more than 3 months. As the judge noted, the RCOG Guidance does not refer to a risk of chronic (or long term) or neuropathic (or nerve) pain.
The judgment
The judgment is divided up into various sections: The Background Facts [5]–[22]; The Operation [23]–[34]; The Expert Evidence [35]–[46]; Medical Causation [53]–[59].
As the judge states at [3]–[4], at the trial he heard evidence from the appellant; her employer Kerry Mahoney; Mrs Arya, Mrs Singh, and Dr Bhardwaj. He also had witness statements of Susan Forester-Morgan, Kieran Duce and Melissa Duce going to the issue of care.
There was written and oral expert evidence from experts in pain medicine, Dr Gauci for the appellant and Dr Evans for the respondent, and in gynaecology, Mr Abouzeid for the appellant and Mr Pyper for the respondent.
The judge discussed the expert evidence of the gynaecologists in some detail. He found aspects of Mr Abouzeid's evidence to be “confused” and that of the respondent's expert, Mr Pyper, to be “altogether more convincing”. His “overall” conclusion was that “where the two experts disagreed, I should accept Mr Pyper's evidence”.
The judge found at [41] that in their joint report Mr Abouzeid and Mr Pyper agreed that CPSP was not common knowledge amongst gynaecologists in 2008 and that it would not normally be mentioned in taking consent for hysterectomy. They also noted that it is not mentioned in the 2009 RCOG Guidance.
In addressing breach of duty, having set out how the appellant's case on the duty to warn had “evolved” from the pleaded case, he said that whilst that “may suffice of itself to defeat the claim”, he would nevertheless consider “the issue as it was presented at trial”.
He then found as follows:
“49. The parties referred me to the decision in Montgomery, and in particular to the discussion of the doctor's duty to take reasonable care to ensure...
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