Grimstone v Epsom and St Helier University Hospitals NHS Trust

JurisdictionEngland & Wales
JudgeMrs Justice McGowan
Judgment Date23 December 2015
Neutral Citation[2015] EWHC 3756 (QB)
Docket NumberCase No: TLQ/14/0597
CourtQueen's Bench Division
Date23 December 2015

[2015] EWHC 3756 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mrs Justice McGowan

Case No: TLQ/14/0597

Between:
Grimstone
Claimant
and
Epsom and St Helier University Hospitals NHS Trust
Defendant

Miss Caroline Hallissey (instructed by Cogent Law) for the Claimant

Miss Camilla Church (instructed by DAC Beachcroft) for the Defendant

Hearing dates: 09/11/2015 – 13/11/2015

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.

Mrs Justice McGowan Mrs Justice McGowan

INTRODUCTION

1

The Claimant, Rosalyn Grimstone, was referred to Mr Richard Field, (now Professor and referred to as such in the trial), in late 2007. She was then in her mid-50's and led a very active life; she was a keen sportswoman and, in particular, enjoyed horse riding. Professor Field is a renowned specialist orthopaedic surgeon with a specialism in hip replacement surgery. He is employed by the Defendant, the Epsom & St Helier University Hospitals NHS Trust, ( "the Trust"). The Claimant had been suffering from pain and stiffness in both hips. Surgery was recommended and carried out. There is no complaint about the manner in which the surgery was completed. After the operation the Claimant began to suffer a series of complaints which have required repeated surgical interventions and have caused her great pain and continuing suffering. This action relates only to the consultations carried out before the first surgery.

2

The Claimant alleges negligence under the three following headings;

i) That Professor Field failed adequately to advise the Claimant about the surgical options available to her,

ii) That he failed to obtain her informed consent for the operation which he performed and

iii) That he failed to advise the Claimant of the alleged lack of data about the failure and survival rate of the components used in the procedure he performed.

3

This is a preliminary trial on liability only relating to the advice given by Professor Field about the surgery performed by him. The events after the initial operation are generally agreed but in any event are not in issue in this trial.

ISSUES

4

The issues to be determined have been variously described but seem to be capable of resolution into the following questions;

i) What did Professor Field say to Mrs Grimstone about the procedure to be carried out?

ii) Did he do what was reasonable to ensure she understood?

iii) Which procedure would she have chosen in any event?

iv) Was he obliged to tell her about the limited data available on the device used?

BACKGROUND FACTS

5

The following are agreed facts which cover a narrow compass;

i) Mrs Grimstone had developed problems in her hips. She researched the availability of the best treatment and accordingly went to the South West London Elective Orthopaedic Centre, ("EOC").

ii) Family members, her father and mother-in-law, had undergone hip replacement surgery in the past with varying degrees of success. Her father had received an implant, which had been used over many decades and was generally referred to as the " Charnley", named after its designer.

iii) The first consultation with the Professor was on 23 January 2008. During the consultation he dictated a letter to her GP. Mrs Grimstone was also given a booklet entitled, "An Information Booklet – A New Joint" and a DVD containing patient information on hip surgery.

iv) Professor Field sent that letter to Mrs Grimstone's GP on 29 January 2008 in the following terms,

"Mrs Grimstone is a keen horsewoman. Her father underwent a hip replacement in his 50's….. I have advised Mrs Grimstone that she has clearly reached the stage when hip replacement would be her best option. In view of Mrs Grimstone's relative youth, I would advocate the use of bone conserving replacements, preferably with large diameter metal on metal bearings so that she has maximal joint stability."

v) A consent form was completed by the Professor with Mrs Grimstone and signed by her during a consultation at the clinic before surgery.

vi) The bi-lateral hip operation was carried out on 22 April 2008, the operation implanted Mitch PER devices. These were a relatively new device designed to conserve as much bone as possible, it involved the resurfacing of the thigh bone with a metal cap on a thinner socket than had been conventionally used. It fitted into a new metal socket component also implanted into the pelvic bone.

vii) The surgery was performed properly.

viii) On 24 September 2010 Professor Field at the EOC wrote to Mrs Grimstone asking her to participate in a follow up programme for patients who had undergone the same form of surgery as she had,

"As you know the implant we used for your operation in April 2008 was a bone conserving design. To date, almost all the patients who have undergone this operation have enjoyed an excellent outcome and are not experiencing any problems. However the long-term results of your bone-conserving and other resurfacing hip designs remains unknown. This information would be helpful to surgeons seeking to identify the safest and most effective implants and patients who want to know how long their hip replacement was likely to last. I am writing to ask you to help us gather the data to answer these questions. As the centre with the largest experience of you type of implant, we are visited by surgeons from other hospitals who want to use this hip. We are also being invited to report our results to the orthopaedic community at national and international meetings. To address these demands we have decided to set up a formal follow-up programme to monitor patients with your type of hip replacement."

ix) There was a failure of the prostheses and revision surgery was required after two years.

THE LAW

6

The Supreme Court has provided definitive guidance in Montgomery v Lanarkshire Health Board [2015] UKSC 11. The Court conducted a review of the authorities as part of its history of the development of the way in which the relationship between doctor and patient has changed. As unhelpful as it sometimes can be to recite very long passages of other judgments, such a definitive statement of the law is of direct assistance in illustrating the bald statement that for consent to be of any value it must be informed.

"Conclusions on the duty of disclosure

The Hippocratic Corpus advises physicians to reveal nothing to the patient of her present or future condition, "for many patients through this cause have taken a turn for the worse" (Decorum, XVI). Around two millennia later, in Sidaway's case Lord Templeman said that "the provision of too much information may prejudice the attainment of the objective of restoring the patient's health" (p 904); and similar observations were made by Lord Diplock and Lord Bridge. On that view, if the optimisation of the patient's health is treated as an overriding objective, then it is unsurprising that the disclosure of information to a patient should be regarded as an aspect of medical care, and that the extent to which disclosure is appropriate should therefore be treated as a matter of clinical judgment, the appropriate standards being set by the medical profession.

Since Sidaway, however, it has become increasingly clear that the paradigm of the doctor-patient relationship implicit in the speeches in that case has ceased to reflect the reality and complexity of the way in which healthcare services are provided, or the way in which the providers and recipients of such services view their relationship. One development which is particularly significant in the present context is that patients are now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession. They are also widely treated as consumers exercising choices: a viewpoint which has underpinned some of the developments in the provision of healthcare services. In addition, a wider range of healthcare professionals now provide treatment and advice of one kind or another to members of the public, either as individuals, or as members of a team drawn from different professional backgrounds (with the consequence that, although this judgment is concerned particularly with doctors, it is also relevant, mutatis mutandis, to other healthcare providers). The treatment which they can offer is now understood to depend not only upon their clinical judgment, but upon bureaucratic decisions as to such matters as resource allocation, cost-containment and hospital administration: decisions which are taken by non-medical professionals. Such decisions are generally understood within a framework of institutional rather than personal responsibilities, and are in principle susceptible to challenge under public law rather than, or in addition to, the law of delict or tort.

Other changes in society, and in the provision of healthcare services, should also be borne in mind. One which is particularly relevant in the present context is that it has become far easier, and far more common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side-effects via such media as the internet (where, although the information available is of variable quality, reliable sources of information can readily be found), patient support groups, and leaflets issued by healthcare institutions. The labelling of pharmaceutical products and the provision of information sheets is a further example, which is of particular...

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