Sidaway v Bethlem Royal Hospital
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE DUNN,LORD JUSTICE BROWNE-WILKINSON |
| Judgment Date | 23 February 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0223-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 84/0076 |
| Date | 23 February 1984 |
and
[1984] EWCA Civ J0223-1
The Master of the Rolls
(Sir John Donaldson)
Lord Justice Dunn and
Lord Justice Browne-Wilkinson
84/0076
1977 S. No. 8248
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE SKINNER)
Royal Courts of Justice.
MR. LESLIE JOSEPH, Q.C. and MR. GERALD RABIE (instructed by Messrs. Armstrong & Co.) appeared on behalf of the Appellant.
MR. ADRIAN WHITFORD, Q.C. and MISS NICOLA DAVIES (instructed by Messrs. Le Brasseur & Bury) appeared on behalf of the Respondent.
Medicine is not now, and never has been, an exact science. Despite the exercise of the greatest skill, things can go wrong. They went wrong in the case of Mrs. Sidaway. She underwent an operation for the relief of pain and ended up severely disabled. The issue in this appeal is not whether anything could have been done to avoid this result. It is whether she should have been more fully informed of the risks, before she agreed to the operation. Mr. Justice Skinner held that had the plaintiff been more fully informed, she would not have agreed to undergo the operation. But he also held that she was told as much as any patient would have been told by many responsible skilled and experienced neuro-surgeons. This, in his judgment, was all that in law she was entitled to expect and he dismissed her claim.
The plaintiff's medical problems begin in 1958 when she injured an elbow and, as a result, suffered persistent pain. She underwent an operation on the elbow and it was immobilised in plaster. This was successful in relieving the pain in her elbow, but she then began to experience pain in her neck and right shoulder. This was treated by a number of conservative procedures, but without success. She was then referred to Mr. Falconer who was a neuro-surgeon at the Maudsley. He correctly diagnosed that the cause of the pain was a narrowing of the spinal column between the fifth and sixth vertebrae. He therefore decided to remove the disc between these vertebrae and to fuse them by a bone graft.
This operation, which took place in December 1960, was successful, although it was two years before the pain disappeared. The plaintiff described Mr. Falconer as "a man of very, very few words". She was to be given a myelogram as an aid to diagnosis, but had to ask the nursing staff what was involved. And neither Mr. Falconer, nor anyone else, told her that she was to have a bone graft. This she only discovered when she came round from the anaesthetic. However, as I say, the operation was a success and the plaintiff, who was seen by Mr. Falconer annually between 1960 and 1970, remained free from pain. This continued until 1973, when the pain recurred. At the same time the plaintiff received a letter from Mr. Falconer asking her how she was getting on. Bearing in mind that the plaintiff was not a private patient, it is a great tribute to Mr. Falconer's compassion and interest that he wrote as he did. In reply the plaintiff wrote reporting that she was experiencing "pain in the right arm and shoulder, the same pain as I have experienced before, also the left forearm."
Mr. Falconer replied by inviting her to attend his out-patient clinic. He decided to do another myelogram, but, for a variety of reasons, she was not admitted to hospital for this purpose until the 11th October, 1974. By then the pain was worse. Mr. Falconer decided to do a further operation and the plaintiff remained in hospital as an in-patient until this was done on the 29th October. The nature of the operation, and the risks involved, are described in the following passage from the learned judge's judgment:
"The operation consisted of a laminectomy of the fourth cervical vertebra and a facetectomy or foraminectomy of the disc space between the fourth and fifth cervical vertebrae.
[The object of the exercise is to widen the space between the vertebrae through which the nerves emerge.] A laminectomy is an excision of the posterior arch of the vertebrae. It gives the surgeon access to the foramen or channel through which nerves travel from the spine laterally. Randomly placed in the foramina, running alongside the nerves, are small blood vessels known as the radicular arteries. These supply blood to the cord and are extremely vulnerable because of (a) their size and (b) the unpredictable nature of their siting. In one foramen, there may be one, two or more radicular arteries. Their rupture or blockage may cause damage to the cord by depriving it temporarily or permanently of its blood supply at the relevant level.
At the operation, Mr. Falconer freed the fourth cervical nerve root by removing the facets, or small bony protuberances, from the fourth vertebra and used a dental drill to free the nerve within the foramen.
…Mr. Falconer was working at times within three milimetres of the spinal cord. What is more, the operation involved exposing the cord and interfering with the nerve roots. It is common ground between all the distinguished neuro-surgeons who have given evidence before me that this procedure involves specific risks of damage above those common to and inherent in any operation under general anaesthetic…The specific risks in the procedure, according to Mr. Uttley who was called for the Plaintiff, are of:
(a) damage to the spinal cord by direct contact or indirectly by damage to the radicular arteries; and
(b) damage to the nerve roots. The possible effects of such damage he said covered the whole spectrum from pins and needles to paraplegia. He put the degree of risk at between 1 and 2%.
Mr. Schurr, a consultant colleague for Mr. Falconer for many years and his successor as director of the unit, did not dissent from this figure, though he disliked its expression in percentage terms. He considered the danger of damage to the root or cord in the hands of a good surgeon as between 1 and 2%: a rare occurrence but a material risk. Mr. Polkey, now a consultant in the unit, and Professor Logue accepted that the risk was a material one but emphasised that it was not a single risk. The risk of spinal cord damage by itself was, in their opinion, less than 1%."
The learned judge's conclusion as to the risks involved is contained in the following passage from his judgment:
"In my judgment, the operation which the Plaintiff underwent carried an inherent risk that, even if the surgeon exercised proper care and skill, the spinal cord might be damaged causing weakness or paralysis from the C4/5 level and that the nerve root might be damaged causing pain and/or weakness along the path of the nerve. The risk was a material one, best expressed to a layman as a one to two per cent risk of ill effects ranging from the mild to the catastrophic."
However I think it is common ground that the risk of damage to the spinal column is much less than that of risk to the root of a nerve. On the other hand, the consequences of damage to the spinal column are very much more serious. Whereas damage to the root of a nerve may produce localised numbness, damage to the spinal cord can produce paralysis. In the case of the plaintiff, whatever went wrong has produced a severe impairment of movement on her right side and some ill effects on the left. Her loss has been assessed in monetary terms at £67,000.
There was considerable difficulty in deciding what information the plaintiff was given before she agreed to the operation, because it is no doubt difficult for her to remember and Mr. Falconer died in 1977. However there is no challenge to the learned judge's conclusion that:
(a) Mr. Falconer did not tell the plaintiff that this was an operation of choice or an "elective operation", meaning thereby that it could be postponed or even refused at the price of enduring pain and possibly increasing pain meanwhile;
(b) whilst Mr. Falconer told the plaintiff of the possibility of disturbing a nerve root and of the consequences of doing so, he did not refer to the danger of damage to the spinal cord.
The learned judge also held that (a) in refraining from drawing the plaintiff's attention to these two very important factors, Mr. Falconer "was following a practice which, in 1974, would have been accepted as proper by a responsible body of skilled and experienced neuro-surgeons" and that (b) Mr. Falconer "did not make a full disclosure to the Plaintiff of all the risks involved in the operation she was about to undergo so that she was in a position to make a fully informed decision whether to agreed to it".
In dismissing the plaintiff's claim the learned judge directed himself in the way in which Mr. Justice McNair directed the jury in Bolam v. Friern Hospital Management Committee (1957) 1 Weekly Law Reports 582. He declined an invitation to re-define or develop the law on the lines which appealed to the Supreme Court of Canada in Reibl v. Hughes (1981) 114 D.L.R. 3 rd page 1 at page 13. The issue in this appeal is whether he was right and, if he was not, (a) what is the correct self-direction and (b) what is the effect on the plaintiff's claim?
Bolam's case
Mr. Bolam was a voluntary patient in a mental hospital and, during the course of being administered electro-convulsive therapy, he suffered bilateral "stove in" fractures of the acetabula. He made three allegations against the hospital, namely, that (1) they failed to administer a relaxant drug before treating him,...
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