Mr Marc Ollosson v Doctor Alan Lee
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stewart |
| Judgment Date | 29 March 2019 |
| Neutral Citation | [2019] EWHC 784 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ18C00233 |
| Date | 29 March 2019 |
[2019] EWHC 784 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stewart
Case No: HQ18C00233
Mr Julian Matthews (instructed by Taylor & Emmet LLP) for the Claimant
Ms Nadia Whittaker (instructed by Medical Protection Society) for the Defendant
Hearing dates: Wednesday 13 th, 14 th, 15 th and 18 th March 2019
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.
Introduction
On 15 th November 2012 the Claimant underwent a vasectomy carried out by the Defendant. The Defendant is a general practitioner specialist in vasectomy. As a result of the vasectomy the Claimant suffers from chronic scrotal pain, a recognised complication of the vasectomy procedure.
The case has been listed for a liability only trial.
The particulars of negligence are contained in paragraph 3 of the Particulars of Claim as follows:
“i) failing to provide the Claimant, an intelligent man attending for an elective procedure, with the appropriate information about the risks associated with the proposed procedure, such that he could provide properly informed consent to the same;
ii) failing to advise the Claimant sufficiently, adequately or at all as to the specific known risks identified in paragraph 2.6 above 1;
iii) failing to ensure that, before offering, as a purported specialist, vasectomy, that he ensured he was fully informed about the associated risks, such that he was able to ensure that patients could be adequately and properly advised about the attendant risks …”
An outline chronology in this case is:
• 7 th June 1968: Claimant's date of birth
• 7 th August 2012: Claimant visits his GP Doctor Macris. Discussion with GP about vasectomy. Doctor Macris says he will send out a referral letter. Subsequently Claimant receives a “choose and book” letter listing different places which could do the vasectomy. He chooses the Drayton and St Faith's Medical Practice (“the practice”). Claimant makes appointment for 15 th November 2012. The practice sends out literature in advance.
• 15 th November 2012 consultation with the Defendant and the Claimant. The Claimant's wife is in attendance. Discussion about the procedure and risks. Claimant alleges no discussion about risk of chronic long-term disabling pain. Consent form completed by Claimant and his wife. Vasectomy performed.
Key issues
In summary there are three matters in dispute namely:
a) what information was given to the Claimant relating to the risk of chronic testicular pain before he underwent the vasectomy;
b) was the extent of the information provided regarding the risk adequate for the Claimant's informed consent to the vasectomy?
c) if there was a breach of duty, would the Claimant have decided not to undergo the vasectomy had adequate information been given to him.
Witnesses
There were the following witnesses of fact:
• the Claimant, witness statement 4 th June 2018;
• the Claimant's wife, Karen Ollosson, witness statement 4 th June 2018;
• the Defendant, witness statements 6 th July 2018 and 15 th November 2018;
• Julie Keene, nurse of the practice, witness statement 7 th July 2018;
• Gillian Moore, vasectomy administrator at the practice, witness statement 8 th March 2019;
Ms Keene's and Ms Moore's statements were agreed.
I heard from the following expert witnesses: ( for the Claimant)
• Doctor Feltbower, general practitioner: report 4 th August 2018;
• Mr Reynard, consultant urological surgeon: reports 24 th February 2017 and 11 th September 2018;
( for the Defendant)
• Doctor Hampton, general practitioner: report November 2018;
• Mr Parkinson, consultant urologist: report November 2018; ( joint statements)
• Doctor Feltbower and Doctor Hampton: 22 nd January 2019;
• Mr Reynard and Mr Parkinson: January 2019.
Case law
Consent
In Montgomery v Lanarkshire Health Board 2, where the facts of the case involved the question of caesarean section/vaginal delivery, Lord Kerr and Lord Reed said:
“81. The social and legal developments which we have mentioned point away from a model of the relationship between the doctor and the patient based upon medical paternalism. They also point away from a model based upon a view of the patient as being entirely dependent on information provided by the doctor. What they point towards is an approach to the law which, instead of treating patients as placing themselves in the hands of their doctors (and then being prone to sue their doctors in the event of a disappointing outcome), treats them so far as possible as adults who are capable of understanding that medical treatment is uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices.
82. In the law of negligence, this approach entails a duty on the part of doctors to take reasonable care to ensure that a patient is aware of material risks of injury that are inherent in treatment. This can be understood, within the traditional framework of negligence, as a duty of care to avoid exposing a person to a risk of injury which she would otherwise have avoided, but it is also the counterpart of the patient's entitlement to decide whether or not to incur that risk. The existence of that entitlement, and the fact that its exercise does not depend exclusively on medical considerations, are important. They point to a fundamental distinction between, on the one hand, the doctor's role when considering possible investigatory or treatment options and, on the other, her role in discussing with the patient any recommended treatment and possible alternatives, and the risks of injury which may be involved.
83. The former role is an exercise of professional skill and judgment: what risks of injury are involved in an operation, for example, is a matter falling within the expertise of members of the medical profession. But it is a non sequitur to conclude that the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient is also a matter of purely professional judgment. The doctor's advisory role cannot be regarded as solely an exercise of medical skill without leaving out of account the patient's entitlement to decide on the risks to her health which she is willing to run (a decision which may be influenced by non-medical considerations). Responsibility for determining the nature and extent of a person's rights rests with the courts, not with the medical professions.
84. Furthermore, because the extent to which a doctor may be inclined to discuss risks with a patient is not determined by medical learning or experience, the application of the Bolam test to this question is liable to result in the sanctioning of differences in practice which are attributable not to divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients.
87. …an adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments. The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it….
89… the assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have on the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives. The assessment is therefore fact-sensitive, and sensitive also to the characteristics of the patient.
90 Secondly, the doctor's advisory role involves dialogue, the aim of which is to ensure that the patient understands the seriousness of her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that she is then in a position to make an informed decision. This role will only be performed effectively if the information provided is comprehensible. The doctor's duty is not therefore fulfilled by bombarding the patient with technical information which she cannot reasonably be expected to grasp, let alone by routinely demanding her signature on a consent form.”
In Thefaut v Johnson 3 Green J (as he then was) said this:
“58. Paragraph [90] of Montgomery is significant in shedding light on the modus operandi of communication. Two points
emerge. First the centrality of “ dialogue” is stressed. No doubt, in this day and age, dialogue can occur, for example, face to face, or by skype, or over the phone. A patient who suffers from a disability or who is abroad may engage in a perfectly adequate “ dialogue” via electronic means. The issue is not so much the means of communication but its adequacy. Mr Peacock used the apt expression “ adequate time and space” to describe the characteristics of a “ dialogue” that satisfied the test in law……78. It is also accepted that the...
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Edyta Ewelina Mordel v Royal Berkshire NHS Foundation Trust
...of Appeal in Goodman v Steel [2013] EWCA Civ 153, in particular to the judgment of Moore-Bick LJ at para 17; and to Ollosson v Lee [2019] EWHC 784 (QB), in particular to the judgment of Stewart J at para 87. In making assessments of witness reliability, these decisions warn against placin......