Rodney Crossman v St George's Healthcare NHS Trust
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Peter Hughes |
| Judgment Date | 25 November 2016 |
| Neutral Citation | [2016] EWHC 2878 (QB) |
| Date | 25 November 2016 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ14X01267 |
[2016] EWHC 2878 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Peter Hughes QC (SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: HQ14X01267
Anna Beale (instructed by Stewarts Law LLP) for the Claimant
John Whitting QC (instructed by Bevan Brittan LLP) for the Defendant
Hearing dates: 2nd, 3rd & 4th November 2016
His Honour Judge Peter Hughes QC:
Introduction
In the case of Chester v Afshar [2005] 1 AC 134 the House of Lords decided by a majority of three to two to modify traditional causation principles in clinical negligence cases to vindicate the claimant's right of choice and to provide a remedy for breach.
It was a case where the claimant had not been appropriately warned of the risks of surgery but the trial judge had not found that, if properly informed, the claimant would never have undergone the operation when the risks would have been the same. Hence, the failure to warn did not affect the risk and was not the effective cause of the injury sustained.
The present case raises a different factual scenario, where it is accepted that the risks of surgery were appropriately explained, but the hospital had been negligent in arranging for the Claimant to have surgery, when the surgeon's intention had been to follow a conservative plan of treatment for three months and then review the patient with a view to surgery if conservative treatment was not successful.
It is the case for the Claimant that but for the hospital's negligence he would not have undergone the operation when he did and that he is entitled to compensation either on conventional causation principles or on the basis of the decision in Chester v Afshar.
The facts
The facts of the case are mainly agreed. There are just a couple of discrete areas on which there is some significant dispute.
Mr Crossman, who was aged 63 at the time, began to suffer symptoms of numbness in his left arm, and pain and restriction of movement in his neck in May 2010. He consulted his general practitioner.
On the 26 th October 2010, he underwent an MRI scan of his cervical spine. This identified widespread degenerative changes and constitutional narrowing of the spinal canal. There was minor compression of the spinal cord at C3/4 and C5/6 and neuroforaminal encroachment 1 was present at multiple levels bilaterally.
He was referred to Professor Papadopoulos at St George's Hospital ("the Hospital") and seen by him there on the 9 th February 2011. Various management options were discussed in the light of the MRI scan and the Claimant's clinical presentation, including surgery. He explained the potential risks and benefits of surgery. However, he advised conservative treatment including physiotherapy at that stage with a review in three months' time
Professor Papadopoulos subsequently wrote to the GP in the following terms –
"We discussed different options. The plan is for him to try conservative treatment first. I would be grateful if you could arrange some physiotherapy locally. He might also try a chiropractor himself. Will see him again in three months' time. If his symptoms persist despite conservative management, we can proceed with a cervical foraminotomy 2. This procedure has a 90% chance of abolishing his arm problems versus 2% to 3% chance of complications including nerve injury, wound infection and in his case deep vein thrombosis. He will have to stop the Warfarin for a week before the surgery and only restart it three days after the surgery 3.
We will make a final decision during the next appointment."
Despite this, Mr Crossman was put on the waiting list for surgery, immediately following the appointment and no further outpatient appointment was booked.
He attended his GP on the 24 th February 2011 to discuss his consultation with Professor Papadopoulos, but, at that time, the letter had not been received by the surgery. The GP note reads " they appear to be advising surgery for the neck".
Two weeks later, on the 9 th March 2011, the Claimant received two letters from the Hospital. One asked him to attend for pre-operative assessment on the 23 rd March 2011, the other informed him that the Hospital wished to admit him to a ward in the Department of Neurosurgery on the 10 th April 2011.
He contacted the hospital believing that there had been a mistake, and was told that unless he kept his appointment he would be put to the back of the list.
The Claimant attended the pre-operative assessment. This was undertaken by Dr Thakur. Subsequently, there is a note in his GP records for the 28 th March 2011 of a telephone conversation that he had with his GP in which the arrangements for the operation were discussed.
On the 10 th April 2011, the Claimant was admitted to the Hospital for surgery. The surgery was carried out the following day, the 11 th April 2011 by Professor Papadopoulos assisted by Mr Corns, a neurosurgical registrar at the time (and now a consultant). He was consented for a cervical foraminotomy by Mr Corns. Mr Corns was concerned about Mr Crossman's INR reading 4 of 1.5. His agreed evidence is that he strongly advised the Claimant to delay surgery. In his witness statement, he says at paragraph 12 –
"I particularly remember the contents of my discussion with Mr Crossman because he was very annoyed and upset by the suggestion that the surgery could be delayed, even though the
delay was not caused by any fault on the part of the clinical team. Usually when patients are given firm advice to postpone their operation they accept that advice, but Mr Crossman did not accept the advice which he had been given, but was adamant that he warned to proceed with surgery that day which is very unusual."
Having reviewed the MRI scans, Professor Papadopoulos decided to perform a laminectomy 5 as well as a foraminotomy, and Mr Crossman signed an amended consent form.
Unfortunately, although the operation appeared to go well at the time, and there is no suggestion that it was carried out negligently, the Claimant suffered radicular nerve root injury. It is agreed by the parties' expert witnesses (Mr Todd for the Claimant, and Mr Byrne for the defendant) that the risk of this as a result of the operation is less than 1% and is probably of the order of 0.5%.
It is further agreed that, if the management plan had been followed as intended, the Claimant would have had to have the same surgery three months later, and that the level of risk would have been the same then as it was in April 2011.
Breach of Duty
It is admitted on the pleadings that
i) there was a negligent failure to follow the plan for conservative management with physiotherapy and a review in the outpatient clinic thereafter;
ii) Dr Thakur was negligent in not enquiring of the Claimant whether conservative management had occurred and in not discussing with Professor Papadopoulos whether the operation should be postponed for this to take place; and
iii) Mr Corns was negligent in not informing the Claimant that he should undergo conservative treatment as a first option before surgery, or that this remained the recommendation.
The Defendant's pleaded case, though, is that whilst but for the negligence the surgery would have been delayed, this would not have materially affected the risk of damage to the C5 nerve root, and there is no causal link between the admitted negligence and the Claimant's injury. It is also pleaded that the Claimant was himself negligent in not raising the fact that he had been recommended for conservative treatment with the Hospital staff.
The Areas of Dispute
The first area of dispute relates to what, if any, responsibility the Claimant has for the failure to follow the plan for conservative management and physiotherapy and the decision to undergo surgery on the 11 th April.
The second concerns medical causation and the views of the experts as to the chances that what happened intra-operatively on the 11 th April could have happened had the operation been performed on a different occasion.
The Claimant's Evidence
In his witness statement, at paragraph 48, Mr Crossman says –
"I regret not asking more questions at the time about why it seemed like they had changed their minds about physiotherapy but I just trusted them and thought that they knew best."
In cross-examination, Mr Whitting QC pressed the Claimant repeatedly as to why he had not questioned the change of plan. He pointed out to him that he had a number of opportunities to seek clarification – on the 23 rd March when he saw Dr Thakur for the pre-operative assessment, on the 28 th March when he spoke to his GP, and on the 11 th April when he was being advised by Mr Corns, for other reasons, to postpone the operation. All he had to say, suggested Mr. Whitting, was something to the effect – I thought I was going to have physiotherapy first and then I would see Professor Papadopoulos and we would decide whether I needed an operation. Mr Whitting suggested that the real reason he did not raise the matter was because he didn't want to wait to see whether physiotherapy would be of benefit and preferred to have the surgery.
In relation to the pre-operative assessment on the 23 rd March, the following exchange took place –
"Q Okay, well why didn't you mention it to Dr Thakur?
A Because I assumed that nothing had been arranged, that he had changed his mind and he put me down for surgery, because we discussed both items with both – I assumed that he has put me down, I put my trust in him, that he put me down for surgery instead of conservative management .
Q Surgery is not something to go into lightly, is it?
A...
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