Sandra Maria Correia (Appellant v University Hospital of North Staffordshire NHS Trust (Respondent
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Lady Justice Black |
| Judgment Date | 12 May 2017 |
| Neutral Citation | [2017] EWCA Civ 356 |
| Docket Number | Case No: B3/2015/2727 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 May 2017 |
[2017] EWCA Civ 356
Lady Justice Black
and
Lord Justice Simon
Case No: B3/2015/2727
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
Mr Recorder McLoughlin
Claim No: 2YM 80028
Royal Courts of Justice
Strand, London, WC2A 2LL
Robert Glancy QC and Christopher Limb (instructed by Bde Law Ltd) for the Appellant
Martin Spencer QC and Fiona Neale (instructed by Weightmans LLP) for the Respondent
Hearing date: 22 March 2017
Approved Judgment
Introduction
The claim in this case concerns the treatment of a painful recurrent neuroma (benign tumour of the nerve tissue) in the appellant's right foot. On 10 January 2008, she attended an outpatient consultation with a consultant surgeon employed by the respondent, Mr Sukhbir Rayatt. On 5 November 2008 Mr Rayatt carried out a surgical procedure, following which she continued to suffer pain, developing a type of neuropathic pain: chronic regional pain syndrome (CRPS). Underlying the claim is the allegation that she suffered this pain due to Mr Rayatt's negligence in performing the operation. It was common ground that the surgery was rare.
The appellant began proceedings alleging negligence both in the advice given at the consultation and in the performance of the operation, as well as advancing a claim based on the nature of her consent to the operation, see Chester v. Afshar [2004] UKHL 41, [2005] 1 AC 134. A trial on liability was heard before Mr Recorder McLoughlin in January 2015. In a judgment dated 6 March 2015, the recorder gave judgment for the respondent on the issue of liability: in short, he found that the operation had been performed negligently, but that the negligence had not caused the claimant pain or suffering. This is the appeal from that finding.
Before turning to the recorder's judgment, and to the evidence and submissions of the parties, it is convenient to turn to facts which were not in issue on the appeal.
The underlying facts
The appellant had suffered from pain in her right foot for many years; and on two previous occasions had been operated on for the removal of a neuroma. At the consultation with Mr Rayatt on 10 January 2008, he explained his proposed surgical procedure. This would consist of (1) exploration to locate the suspected neuroma, and neurolysis (a separation of the nerve ending from the neuroma if it were found), (2) excision of the neuroma and (3) the nerve ending either tied or buried, depending on the available length of the nerve. It was common ground at trial that the operation if it were to be competently performed involved these three stages: surgical exploration and neurolysis, excision of the neuroma and relocation of the nerve.
The appellant agreed to this operation and there was no subsequent clinical assessment before the day of the operation. On 5 November 2008, she was seen by Mr Rayatt's surgical registrar, Mr Karhikeyan Srinivasan, and signed a consent form, which reads so far as material:
Name of proposed procedure … R foot – exploration + excision of? neuroma
The intended benefits … to remove the neuroma + improve symptoms
Serious or frequently occurring risks … scar, infection, bleeding, recurrence, numbness.
The question mark indicates that it was unclear whether there was a neuroma. Prior MRI and ultrasound scans had not been diagnostic of the existence of a neuroma.
Following the operation, an 'operation sheet' was completed:
R foot – exploration and excision of neuroma … through old scar, scar excised, explored, medial plantar nerve identified, neuroma identified … excised + nerve released from scar tissue (ie neurolysis), haemostasis (ie stopping of bloodflow) …
There was no reference in either the consent form nor in the operation sheet to nerve relocation following excision of the neuroma.
It was common ground at trial that relocation was a necessary part of the surgical process if a neuroma were located and excised. Mr Rayatt's evidence that he believed that he had carried out a relocation procedure was not accepted, and there is no appeal from that finding. It followed that, as the recorder found, the operation was performed negligently.
As already noted the appellant failed on the issue of causation.
The issues on the appeal
Two broad issues arise on this appeal. These were identified as the 'informed consent issue' and 'the causation issue'.
(a) The informed consent issue
Mr Glancy QC submitted that the recorder should have found that there was a breach of duty in relation to the issue of consent. The appellant had consented to a three-stage procedure: (1) exploration and neurolysis, (2) excision of neuroma and (3) relocation of the proximal nerve ending so as to minimise the recurrence of neuroma. This was not the operation which Mr Rayatt performed; and the appellant was not warned of the material risks of an operation which omitted the crucial step of relocation (as found at §250 of the judgment): namely, that once the neuroma was excised it was likely to reform unless the nerve ending was kept away (as far as possible) from the pressure points in the foot. If the relocation of the proximal nerve ending were not carried out, the object of the surgery would be defeated.
It is logical to take this ground first because, Mr Glancy argued, if the appellant can bring herself within the causation principle established by Chester v. Afshar, she would not have to show that the respondent's negligence caused the damage (pain and suffering), an issue on which she had failed at trial. It would be sufficient to show that the injury was within the scope of Mr Rayatt's duty to warn when he obtained her consent to the operation.
On any view the facts of Chester v. Afshar were unusual. The defendant neurosurgeon advised the claimant to undergo an operation on her spine but failed to explain that, if performed without negligence, the procedure carried a small (1–2%) unavoidable risk of a neurological damage leading to a disabling condition. The claimant agreed to the procedure on a Friday and the operation was performed on the following Monday. She subsequently developed the disabling condition which left her partially paralysed, and sued the surgeon for negligence. In these circumstances, claimants had needed to show that, if a relevant warning had been given, they would not have undergone the procedure. That finding was not made in Chester v. Afshar. The trial judge held that the defendant had not performed the operation negligently, but that he had negligently failed to warn the claimant of the risks of developing the disabling condition and that, if she had been aware of the risks, the claimant would have sought advice on alternatives to surgery and the operation would not have taken place when it did. The judge held that there was a sufficient causal connection between the failure to warn of the inherent risks of the operation and the damage sustained by the claimant, and that the link was not broken by the possibility that the claimant might have consented to the surgery in the future. The Court of Appeal dismissed the defendant's appeal and he appealed to the House of Lords.
It was common ground that, whenever the operation was carried out, the same small percentage risk of resulting disability would exist, and that in the light of the degree of risk, the probabilities were that the disabling condition would not arise. The point was expressed by Lord Hope of Craighead at [61]:
… the failure to warn cannot be said to have increased the risk of injury. The risk was inherent in the operation itself … the evidence indicated that it was also liable to occur at random, irrespective of the degree of care and skill with which the operation was conducted by the surgeon. This means that the risk would have been the same whenever and at whoever's hands she had the operation.
The issue was summarised at [40]:
The question of law which arises from these findings is whether it was sufficient for [the claimant] to prove that, if properly warned, she would not have consented to the operation which was in fact performed and which resulted in the injury, or whether it was necessary for her to prove also that she would never have had that operation.
Lord Bingham and Lord Hoffmann concluded that it was necessary to prove that she would never have had the operation. They both would have allowed the appeal.
At [8], Lord Bingham set out how in the ordinary run of cases the 'but for' test of causation was a necessary if not a sufficient condition for establishing causation. The claimant had shown that 'but for' the failure to warn her she would not have consented to surgery on the Monday. However, the timing of the operation was irrelevant to the injury she suffered. The injury would have been as likely (or perhaps unlikely) to have occurred whenever the operation was performed since it was a small risk which existed whenever performed and whomsoever performed it. If failure to warn and the occurrence of the injury which should have been the subject of the warning were, without more, enough to found a successful claim where a patient would have consented to the operation even if properly advised, it would amount to a substantial and unjustifiable departure from sound and established principle (see [9]). Lord Hoffman agreed with this analysis in trenchant terms.
I have sought to summarise the minority opinions because the majority accepted these general principles, and indicated that they did not intend a wide departure from established principles of causation.
At [18] Lord Steyn said this:
… in the context of attributing legal responsibility, it is...
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