Lisa Thefaut v Francis Johnston
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 14 March 2017 |
| Neutral Citation | [2017] EWHC 497 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ15C01109 |
| Date | 14 March 2017 |
[2017] EWHC 497 (QB)
Mr Justice Green
Case No: HQ15C01109
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Peacock (instructed by Tees Law) for the Claimant
Jeremy Hyam QC (instructed by Medical Protection Society) for the Defendant
Hearing dates: 2 nd– 9 th February 2017
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.
Paragraph No.
| A. Introduction | 1 – 8 |
| (i) The Claimant: Mrs Thefaut | 1 |
| (ii) The first complaint: Informed consent | 2 – 4 |
| (iii) The second complaint: Negligence in the performance of the discectomy | 5 – 7 |
| (iv) Overall conclusion: Liability upon the basis of informed consent | 8 |
| B. The Facts | 9 – 50 |
| (i) The back pain episode of late 2011 | 9 |
| (ii) The reoccurrence of back pain: End of January 2012 | 10 |
| (iii) The referral to Dr Tillett | 11 – 12 |
| (iv) First consultation with Mr Johnston | 13 |
| (v) The consultation with Dr Tillett: 26 th March 2012 and the MRI scan | 14 – 16 |
| (vi) The referral of the Claimant by Dr Tillett to Mr Samandouras | 17 |
| (vii) The telephone call between Mrs Thefaut and Mr Johnston on 3 rd May 2012 | 18 |
| (viii) The letter of advice of 3 rd May 2012 | 19 |
| (ix) The admission of Mrs Thefaut to hospital / the consent form: 17 th May 2012 | 20 – 21 |
| (x) The surgery | 22 – 24 |
| (xi) Post-operative notes | 25 – 26 |
| (xii) Mrs Thefaut's immediate post-operative symptoms: leg twitching / bladder sensation | 27 – 29 |
| (xiii) Mrs Thefaut's longer term post-operative symptoms | 30 |
| (xiv) The review by Mr Johnston: 12 th– 25 th July 2012 | 31 – 33 |
| (xv) Reference to Pain Clinic | 34 – 35 |
| (xvi) The revisional surgery: February 2013 | 36 – 44 |
| (xvii) Subsequent reviews by Mr Samandouras | |
| (xviii) Mr Samandouras' letter of 30 th January 2017 | 45 – 46 |
| (xix) Damages to the S2 and S3 nerves: The expert evidence of Mr Reynard on urology symptoms | 47 – 49 |
| (xx) The present condition of Mrs Thefaut | 50 |
| C. Issue 1: Informed consent | 51 – 100 |
| (i) The law | 52 – 64 |
| (ii) The advice given to Mrs Thefaut | 65 – 68 |
| (iii) Joint experts agreement | 69 |
| (iv) Analysis of the evidence | 70 – 78 |
| (v) Conclusion on materiality | 79 – 89 |
| (vi) Causation: Was Mrs Thefaut suffering from Weakened Back Syndrome ("WBS") | 90 – 100 |
| D. Issue II: Was the surgery performed negligently? | 101 – 115 |
| (i) The law | 102 |
| (ii) Evidential problems with causation | 103 – 108 |
| (iii) Negligence | 109 – 115 |
| E. Conclusion | 116 – 117 |
A. Introduction
(i) The Claimant: Mrs Thefaut
The Claimant in this case is Mrs Lisa Thefaut. She suffers from constant pain in her back and in her leg. The pain is very serious and the prospects of it dimming and disappearing over time are slim. She faces a future of discomfort. She complains of two matters.
(ii) The first complaint: Informed consent
First she says that she consented to surgery performed by the Defendant, Mr Francis Johnston, in circumstances where he failed to give her full and accurate advice about the risks and benefits of the proposed surgery (a discectomy). She says that as a direct consequence of the comforting and optimistic advice that he gave to her that she was reassured and this led her to give consent. In the event the surgery did not succeed and there is evidence that as a consequence of what occurred during the surgery and/or during later revisional surgery she sustained further damage to her nerves. She says that had she been properly advised she would have known that the chances of a full recovery from her back pain in particular were nowhere near as optimistic as portrayed and that she would not have consented to the surgery at all. In such circumstances she was advised that she would recover over time and her pain would resolve. She accordingly argues that Mr Johnston acted in breach of duty towards her and this caused to her to sustain pain and suffering for which she is entitled to compensation.
Mr Johnston is a surgeon of long standing, good repute, and vast experience. He performs in the region of 600 procedures per annum many of which are similar in nature to that which he performed upon Mrs Thefaut. In the present case Mr Johnston sent written advice to Mrs Thefaut about the risks and benefits of the discectomy that he proposed should be performed by him upon her. The letter is set out in full at paragraph [19] below. In oral evidence Mr Johnston accepted very candidly that he had not given Mrs Thefaut the advice that he recognised that she deserved. He acknowledged that the advice given was sub-standard. He also accepted that his general record keeping was not at the time up to par. Mr Johnston said that in the light of developments in the law (set out in full below) he now adopted a quite different approach.
I have concluded that in relation to the issue of informed consent Mr Johnston fell below the standard that the law requires of him. I have also found on the evidence before the Court that this advice did in actual fact lead Mrs Thefaut to consent in circumstances where she would not have consented if she had been given proper advice. I also find on the evidence that there is a causal nexus between the consent and the damage sustained by Mrs Thefaut. I find that Mr Johnston is liable to Mrs Thefaut upon this basis.
(iii) The second complaint: Negligence in the performance of the discectomy
The second complaint made by Mrs Thefaut against Mr Johnston concerned the performance of the actual surgery. It is argued that during the surgery in some way he must have caused trauma to the L5 nerve and to the S2 and S3 nerves through misuse of his instrumentation. In particular he caused a breach of the dura with the consequence that the underlying nerves were exposed to the surrounding tissue, leading to neuropathic pain. This, it is argued, is the only explanation consistent with the symptoms that Mrs Thefaut experienced post-operation. It is said that when she went into the procedure she was experiencing severe back pain but relatively mild and tolerable leg discomfort. But after the procedure there was no improvement in the back pain and she now experienced severe leg pain. It is said that this is what one would expect to experience if the procedure had been caused negligently. The Claimant argues that there is evidence that the critical part of the surgery performed by Mr Johnston was also conducted excessively quickly and this was one cause of the injury.
A particular feature of, and indeed difficulty with, this aspect of the case concerns the sufficiency of the evidence. It is of the very nature of a case such as this that the evidence is circumstantial. The actual injury (to the nerves) said to be the consequence of the negligence is not visible and there to be seen and evaluated. The evidence of negligence stems from inferences to be drawn from such matters as: the post-operative symptoms experienced by Mrs Thefaut; the point in time when those symptoms first occurred; the rate at which they intensified or changed over time; the extent to which there are precise and reliable records of those symptoms in post-operative medical records; whether any post-operative symptoms might be caused by other factors, etc. There is an added area of uncertainty which relates to evidence recorded during the course of a subsequent revisional surgical procedure (performed by a Mr Samandouras) that the dura surrounding the nerves had been breached leading to some degree of herniation by the underlying nerves and exposure of those nerves to surrounding tissue. There is a good deal of uncertainty about the nature, extent and timing of this breach of the dura. As for speed Mr Johnston is renowned for being an extremely fast surgeon. But it is no part of the Claimant's case that Mr Johnston has a track record of negligence. It is an occupational fact of life that such is the complexity of the central nervous system that occasionally surgeons will face claims. Mr Johnston is no exception but there is no basis for saying that his record is any way abnormal.
Liability in cases such as this depends upon the Court being satisfied on a balance of probabilities that the defendant fell below the requisite standard and that the negligence was causative of the damage sustained. In the overwhelming preponderance of cases the facts involve a number of singular events which enable the Court with confidence to come to a clear conclusion about causation and breach of duty. However, if the evidence is equivocal, uncertain or inadequate or leaves too many loose ends, then it is no part of the judicial function to decide a case upon the basis of a hunch, educated guess or gut feel. In such cases the only correct result is that the Claimant has not proven the case to the required standard and the claim necessarily fails. I have not found this part of the case at all easy. However, having reflected, I am clear that there is insufficient evidence for me to conclude that Mr Johnston either caused the breach of the dura, or that even if he did that he was necessarily negligent. I have set out in the second part of this judgment my analysis of why and how the evidence does not lend itself to any sufficiently clear conclusion and why I feel that I cannot fairly or properly conclude that this part of the claim is made out.
(iv) Overall...
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