Willmott v The Rotherham NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice McCombe,Lord Justice Jackson |
| Judgment Date | 23 March 2017 |
| Neutral Citation | [2017] EWCA Civ 181 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 March 2017 |
| Docket Number | Case No: B3/2015/1023 |
[2017] EWCA Civ 181
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SHEFFIELD COMBINED COURT CENTRE
HIS HONOUR JUDGE MOORE
3LS90715
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice McCombe
and
Lord Justice Sales
Case No: B3/2015/1023
Simeon Maskrey QC and Richard Baker (instructed by Heptonstalls LLP) for the Appellant
Charlotte Jones (instructed by DAC Beachcroft LLP) for the Respondent
Hearing dates: 15 Wednesday 2017
Approved Judgment
This is an appeal from the decision of HHJ Moore QC in which he dismissed a claim by the appellant for damages for injury and loss allegedly sustained as a result of negligent treatment by the respondent NHS Trust ("the Trust"), acting by Mr Ali, a consultant knee surgeon employed by the Trust.
The appellant was born in 1963. She has a relatively complex medical history. From about 2000 or before, this included developing problems with her knees. In 2002 she was diagnosed with mild osteoarthritis in her right knee. In early 2007 the appellant's symptoms worsened, with growing pain now in her left knee. An arthroscopy in June 2007 by another surgeon revealed grade 3 osteoarthritis in the medial and patellofemoral compartment with chronic synovitis, with no indications of inflammatory arthritis reported.
In October 2007 the appellant was seen by Mr Ali, who arranged an MRI scan and also performed another arthroscopy in November 2007, which indicated the presence of osteoarthritis in the knee but no sign of inflammatory arthritis. There was no sign in the joint of red inflammation which would indicate the presence of inflammatory arthritis. Mr Ali did a biopsy of synovial fluid extracted from the knee, but it contained no rice-like seeds in it which might indicate inflammatory arthritis. At this stage, however, the appellant's symptoms were aggravated by chronic pain syndrome, or reflex sympathetic specific dystrophy ("RSD"), and Mr Ali considered that she had to recover from this before he could operate on the knee. In the meantime the appellant was provided with pain relief.
In June 2008, Mr Ali reviewed the appellant's case with the benefit of information from a consultant rheumatologist, Dr Fauthrop, who had arranged for an X-ray and blood test. Dr Fauthrop did not suggest that she could find any sign of inflammatory arthritis, as distinct from osteoarthritis. The blood test ruled out sero-positive inflammatory rheumatoid arthritis, but not sero-negative inflammatory arthritis; however, on Mr Ali's understanding Dr Fauthrop would have indicated if she considered that swelling in the appellant's knee was due to inflammatory arthritis, and she did not.
Therefore, by this stage, the arthroscopy in June 2007, Mr Ali's own examination of the knee and the professional opinion of Dr Fauthrop appeared to indicate that the appellant's knee was affected by osteoarthritis, and not inflammatory arthritis.
This was of significance for Mr Ali in relation to his assessment of the treatment which might be suitable for the appellant. Inflammatory arthritis would be a contraindication for employing a cementless knee replacement (using a kind of hydroxyl superglue) rather than a cemented one, since with inflammatory arthritis a cementless replacement is more likely to fail. Mr Ali considered that, absent such a contraindication, it would be best to use a cementless knee implant for the replacement, in particular because such an implant could last longer than a cemented implant and the appellant was a comparatively young patient to have a knee replaced.
In July 2008 the multi-disciplinary team dealing with the appellant's case made the assessment that her RSD had settled and she was referred back to Mr Ali, going on his waiting list for an operation.
On 10 September 2008 Mr Ali performed knee replacement surgery on the appellant's left knee. When he opened the knee, he found severe osteoarthritis throughout the knee which necessitated a full knee replacement. His evidence, which was accepted by the judge, was that he again found no sign of inflammatory arthritis in the course of the operation. This was in line with the evidence up to this point, so Mr Ali decided to use a cementless implant knee replacement.
In the course of the operation Mr Ali took some soft tissue from the knee and sent it to the Trust's histopathology department for analysis after the operation. The clinical details which Mr Ali provided for the histopathologist to consider read, "Soft tissue knee; Painful;? Inflammatory arthritis". In a report prepared on about 22 September 2008 ("the histopathology report"), the histopathologist reported back that to the effect (in summary) that there was "mild focal inflammation and focal reactive features", but giving no indication that there was inflammatory arthritis present. In other words, Mr Ali's query whether there was inflammatory arthritis present was answered in the negative in the histopathology report.
About six weeks after the knee replacement operation, Dr Fauthrop discharged the appellant as her patient, which again suggested that she did not think she was dealing with a case of inflammatory arthritis.
The appellant had a CT scan of her knee in about 2009, which appeared to show that the cementless implant had integrated properly.
However, in 2011 the implant was found to have loosened, the replacement had failed and a further operation had to be performed in 2013. These proceedings were commenced in March 2013. Also in 2013, inflammatory arthritis in the form of sero-negative rheumatoid arthritis was diagnosed as present in the appellant's knee.
The histopathology report emerged at a late stage in the course of preparation for the trial. As the judge found, it was not available at the time the orthopaedic surgeon expert witnesses on each side (Prof. Atkins for the Trust; Prof. Fairclough for the appellant) prepared their expert reports; nor when they prepared their joint statement.
Mr Ali was cross-examined about the histopathology report. The suggestion was that his question, "?Inflammatory arthritis", as set out in the text of the report, showed that when he performed the knee operation he thought there was or might well be inflammatory arthritis in the joint (since otherwise, why bother asking this question?); and that this in turn showed that on his own evidence, in which he accepted that the presence of inflammatory arthritis was a contraindication for use of a cementless implant, he had been negligent in using such an implant for the appellant's knee replacement. Mr Ali's answer, however, was that he had sent the biopsy from the operation to be checked by the histopathologist just as a final cross-check to make sure that his own diagnosis that there was no inflammatory arthritis in the joint was correct, because the patient had an unusual presentation with pain symptoms. The histopathology report confirmed for him that his diagnosis had been correct. The judge accepted this explanation (para. [121]), and Prof. Atkins' evidence was that it was good practice to double check in this way.
The hearing at first instance
The appellant complains in this appeal that the judge gave an appearance of bias or predetermination of issues by the way in which he conducted the hearing, so it is necessary to consider what happened during the trial. At the trial, the appellant was represented by Mr Baker, acting alone, and the respondent by Miss Jones. The trial commenced on Monday 2 March 2015 and finished on Thursday 5 March 2015. Judgment was given on 6 March 2015.
It was agreed at the outset that the trial should proceed as a trial on liability alone. The appellant's pleaded case included (a) a case that Mr Ali should not have undertaken a total knee replacement at all and (b) a case, put in general terms, that he should not have used an uncemented replacement. The appellant's skeleton argument for trial included the claim that if Mr Ali was reasonable in undertaking a knee replacement at all then he should have used a cemented prosthesis, "given the suspicion that the [appellant's] symptoms were caused by inflammatory arthritis and the lack of any benefit in using an uncemented prosthesis in place of a cemented one." The judge, therefore, appeared at first to be presented with a case in which the appellant was going to argue as one aspect of it that there was a lack of benefit attached to use of an uncemented prosthesis, so that even absent any suspicion of the presence of inflammatory arthritis it could not be said that any body of reasonable medical opinion would support the use of such a prosthetic implant.
Yet, as the judge pointed out during Mr Baker's opening, Prof. Fairclough agreed that a body of orthopaedic surgeons agreed with Mr Ali that there are benefits to using cementless implants (see in particular para. 11.9 of the experts' joint statement), so it would seem that Mr Ali and the Trust would have a defence according to the test in Bolam v Friern Hospital Management Committee [1957] 1 WLR 58. In response, Mr Baker explained that the appellant's case was that she had inflammatory arthritis, which Mr Ali should have detected or realised was possibly present in her knee, and that the experts agreed that this was a contraindication to using a cementless implant. The judge correctly pointed out that inflammatory arthritis had only been diagnosed in 2013; in other words, there was an issue whether it had been present in 2008. So by this exchange in opening the real issues in the case were identified and narrowed down.
The judge explained to the parties during the course of the opening that he had had a resurfacing procedure on his own knee and hence was...
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...Cavanagh v Brian O’Donnell and Mary Patrick O’Donnell [2015] IECA 73 (“O’Donnell’s case”). • Willmott v Rotherham NHS Foundation Trust [2017] EWCA Civ 181. [39] Principles emerging from these authorities relevant to the submissions made in the instant appeal can be stated as follows: (i) Ju......