Lucy Diamond v Royal Devon & Exeter NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lady Justice Nicola Davies,Lord Justice Floyd,Lord Justice McCombe |
| Judgment Date | 08 April 2019 |
| Neutral Citation | [2019] EWCA Civ 585 |
| Docket Number | Case No: B3/2017/2810 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 April 2019 |
[2019] EWCA Civ 585
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
HHJ FREEDMAN (SITTING AS A JUDGE OF THE HIGH COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lord Justice Floyd
and
Lady Justice Nicola Davies DBE
Case No: B3/2017/2810
Robert Kellar (instructed by Enable Law) for the Appellant
Lord Faulks QC and Laura Johnson (instructed by DAC Beachcroft LLP) for the Respondent
Hearing date: 19 February 2019
Approved Judgment
In this appeal the appellant pursues a claim for clinical negligence arising out of spinal fusion surgery performed on 6 December 2010 and subsequent identification and repair of a post-operative abdominal hernia on 28 June 2011. At the trial before HHJ Freedman, sitting as a High Court Judge, two allegations of negligence were pursued, namely:
i) The spinal surgeon, Mr Khan, failed to examine the appellant at a post-operative review consultation on 21 January 2011 causing a delay in the identification and treatment of her hernia. The claim succeeded and the appellant was awarded £7,500 for a delay of two months in respect of her hernia repair surgery.
ii) Mr Wajed, the surgeon who performed the abdominal repair, failed to obtain informed consent from the appellant prior to proceeding to a mesh repair of the hernia. The appellant succeeded in establishing that Mr Wajed had not provided appropriate information for the purpose of informed consent, however the judge concluded that had she been so informed the appellant would have chosen to proceed with the mesh repair which in fact took place.
This appeal is directed at the final ground, namely that of consent and any injury or damage caused thereby.
Background facts
The appellant was born on 11 September 1971 and was aged 39 at the time of the material events. On 9 May 2011 the appellant saw Mr Wajed who elected to repair the hernia by means of an open mesh based repair with abdominal wall reconstruction. Following the surgery the appellant continued to complain of abdominal swelling and pain. She was advised to undergo another surgical procedure. On 5 August 2014 surgery was performed which involved removing the mesh, the hernia was repaired and a full abdominoplasty was undertaken. HHJ Freedman found that the appellant's mental and physical wellbeing had been adversely affected, she has suffered depression and anxiety. Further, the appellant had subsequently established a relationship with a new partner. An evidential issue arose as to what discussion had taken place between the appellant and Mr Wajed in May 2011 as to any future pregnancy.
At trial it was common ground that at the May 2011 consultation Mr Wajed spoke only in terms of mesh repair of the hernia, he made no reference to the possibility of primary sutured repair. As to the issue of what, if any, discussion took place as to the appellant's intention to become pregnant in the future, the judge preferred the appellant's account, namely that she was not asked by Mr Wajed whether she planned to become pregnant in the future. However, the judge stated at [23]:
“In the end, however, this factual dispute is of little, if any, relevance because even on Mr Wajed's account, the Claimant had only said that she had no plans for a pregnancy in the foreseeable future which he took to mean within the next few months.”
At [24–28] the judge set out his reasoning as to the breach of duty in respect of obtaining consent for the mesh repair as follows:
“24. Mr Wajed agrees that he did not discuss at all with the Claimant the potential implications of a mesh repair in terms of a pregnancy in the future. On the basis of the expert evidence from both the Claimant's expert, Professor Winslet and the Defendant's expert, Mr Royston, there is general consensus that the Claimant should have been counselled about the potentially adverse effects of a mesh being present in pregnancy. Indeed Mr Wajed himself agrees that if there was a prospect of a pregnancy in the future, the risks associated with a mesh repair needed to be discussed.
25. In such circumstances, it is unsurprising that Mr Charles does not seek to argue against the preliminary view which I expressed to the effect that there was a lack of informed consent. Putting it shortly, on the basis (as I find) that Mr Wajed could not reasonably have excluded the prospect of a pregnancy in the future, to fail to mention the risks associated with the presence of a abdominal mesh amounted to a breach of duty.
26. Similarly, Mr Charles does not seek to dissuade me from the view that Mr Wajed was under an obligation to mention the possibility of a primary suture repair. On the totality of the expert evidence, it is agreed that the Claimant should have been told that this was an option and, a possible alternative to, a mesh repair.
27. I am quite satisfied that the reason why Mr Wajed did not mention it was because he himself was convinced, or at least thought it highly likely, that a suture repair would fail with the result that the hernia would recur. Nevertheless, both Professor Winslet and Mr Royston maintain that the Claimant should have been informed that there was a possible alternative to a mesh repair.
28. Accordingly, in two respects, I find there was a breach of duty in relation to the counselling process for the mesh repair:
i) it should have been explained to the Claimant that there was attendant upon a mesh repair certain risks, should she become pregnant in the future; and
ii) the claimant should have been told a primary suture repair as opposed to mesh repair was possible even if there was a high risk of failure.”
As to the information which the appellant should have been given at the consultation the judge relied upon a letter written by Mr Wajed after his examination of the appellant on 3 December 2013 as a result of a referral by her GP following the appellant's complaint of discomfort in the lower part of the wound. At the consultation the appellant asked Mr Wajed about becoming pregnant. In his letter Mr Wajed stated:
“She asked me about pregnancy today and I think, although not completely contraindicated, given her previous abdominal surgery there will have to be some cautions (sic) as the mesh may restrict the growth of the uterus causing possible early delivery. There is also the risk that if she requires an emergency caesarean section that access to her abdomen may be difficult in the presence of the mesh and certainly there is a possibility that after the pregnancy the mesh and abdominal wall may be disrupted…”
At [31] the judge found:
“It is therefore reasonable to infer that, at the consultation in May 2011, had Mr Wajed turned his mind to the issue of pregnancy, he would have told the Claimant that the mesh would not mean that she could not become pregnant. However, he would have been obliged to point out that there were certain risks namely:
i) the mesh restricting growth of the uterus, possibly resulting in early delivery;
ii) if a caesarean section was required, access to the abdomen could be difficult in the presence of the mesh;
iii) after the pregnancy the mesh and abdomen wall could be disrupted.
It is also likely that he would have added in the event that if she was contemplating becoming pregnant, it would be prudent to consult a gynaecologist.”
Having considered the evidence of the expert witnesses the judge was satisfied that if Mr Wajed had informed the appellant of the matters set out in his letter he could not have been criticised. The judge stated that what Mr Wajed would have said:
“… would have been well within the range of the advice given by reasonably competent general surgeons. Accordingly, I find that what Mr Wajed would have said if asked about the risk of pregnancy was sufficient to allow the Claimant to give informed consent, subject of course to being offered the choice of a different surgical procedure.”
As to an alternative surgical procedure the judge described Mr Wajed as being “emphatic” that he considered that the primary suture repair would fail. In his supplementary witness statement Mr Wajed stated:
“Sutures alone would not have provided a sound and durable repair as the quality of her abdominal wall tissue was very poor. This was evident both clinically and on the scans… In my opinion the risks of recurrent hernia from a simple suture repair were very high – in the region of 50% within two years and inevitable in the course of her natural life. Therefore, I did not consider this was a viable option for the Claimant.”
As to this advice the judge concluded:
“37. Returning then to Mr Wajed's assessment of matters, I conclude that if he had discussed the possibility of a suture repair with the Claimant, he would have told her that the rate of a recurrent hernia from such a repair was very high, in the order of 50% within two years and, highly likely, if not inevitable that a hernia would recur during her lifetime. In short, he would have very strongly recommended a mesh repair and counselled against a primary suture repair. I am satisfied that this is the advice which he would have given even if he had been made aware that the Claimant had not ruled out becoming pregnant in the future. He would have explained that a pregnancy would put additional strain on a suture repair with a real risk of recurrence of the hernia. He is likely to have added that the vast majority (in the order of 95%) of surgeons would elect to repair the Claimant's hernia with a mesh.
38. In the light of the expert evidence from Professor Winslet and Mr Royston, it seems to me that what, as I find, Mr Wajed would have said about the suture repair was entirely reasonable and well within the range of what a...
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