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Late Switch of Surgeon: Can This Invalidate Consent? Jones v Royal Devon and Exeter NHS Foundation Trust - James Counsell, Outer Temple Chambers

04/12/15. James Counsell reports on a successful claim based on lack of consent, in which a patient was told, only on the day of the operation, that her spinal surgery was not to be performed by the expected clinician.

How often does a patent turn up to hospital to be told that the operation is to be performed by a different clinician from the one expected? How much worse when the operation then goes wrong and the patient is left, not only with serious and permanent spinal injuries, but also wondering whether things would have been different if the clinician of choice had been there to perform it?

This was the position facing the 69-year-old Claimant in Jones v Royal Devon and Exeter NHS Foundation Trust (Lawtel 22 September 2015)when she went into hospital in July 2010 for spinal decompression surgery. After a trial in August 2015, Mr Recorder Blunt, QC dismissed her claim that the operation had been performed negligently and that the replacement, more junior, surgeon ought to have been (more closely) supervised but, giving judgement for the Claimant, found that there had been a breach of the Trust’s duty to provide sufficient information to ensure that full and informed consent had not been given.

The case is a useful application of the principles in Chester v Afshar [2004] UKHL 41 [2005]; 1 AC 134 and is a reminder of the ongoing duty to provide sufficient information so that the patient can “make an informed choice as to whether, and if so when, and by whom to be operated on.”



The Facts

Mrs Jones was referred, with a history of low back pain, to the Trust’s orthopaedic department under the care of consultant orthopaedic surgeon, Mr Daniel Chan in November 2009. Although she had an epidural injection in January 2010, her back pain continued and, at a clinic in March, she was reviewed by Mr Chan and “put on his waiting list” for bilateral decompression surgery. That operation was carried out on 29 July 2010, not by Mr Chan, as the Claimant had expected, but by a more junior clinician, a spinal fellow, called Mr Sunduram.

Unfortunately, the operation did not go well. A dural tear, caused by the surgical instrumentation, has left the Claimant, a previously active lady, with permanent numbness, bladder and bowel problems and a significant loss of mobility.

The Claim

Mrs Jones brought a claim on three grounds. The judge, having heard expert evidence, rejected her case that the procedure had been performed negligently and an allegation that Mr Sunduram ought to have been supervised was abandoned during the trial. However, he found that the Trust had breached its duty by not informing her that the operation was not to be performed by Mr Chan and that causation was made out.

Consent

Mrs Jones’s case was that she had been lad to believe that Mr Chan would perform the operation and had never been told otherwise. She was particularly anxious that he should do so because, it seems, Mr Chan has a particularly impressive reputation as a spinal surgeon in the South-West and even nationally. After she had been placed on his waiting list, she went away with her husband to France for a holiday but had to return early because of her pain. She then contacted the hospital to see if she could arrange an earlier operation, only to be told that the hospital could only give her an earlier date with a different surgeon. Having discussed this with her GP, she decided to wait until Mr Chan was available. Her evidence was that the first that she heard that it was not to be performed by him was on the very day of the procedure when she asked the theatre sister where Mr Chan was, only to be told that it was not he who was to perform the operation. By then, her husband had left to go to work and she was in her theatre gown, and she felt that she had no option but to go ahead.

The Trust evidence was different. Mr Sundaram had performed the consent procedure a few days before the operation. His evidence was that he had provided Mrs Jones with all the information which she needed to give consent and that he had specifically told that it was to be he who was to perform the operation. She had signed the consent form, a document which set out explicitly that the Trust could not provide “a guarantee that a particular person will perform the operation”. Not only that, but Mr Sundaram said that he saw her again on the morning of the operation and repeated that he was to carry out the operation.

The Recorder resolved those factual differences in the Claimant’s favour. He did not accept Mr Sundaram’s evidence that he told her that he was to do the operation at the time of the consent procedure or even on the day of the surgery. Had he done so, in advance of the day, the Recorder concluded that Mrs Jones would have “questioned why” that was to happen, given that she had already turned down the opportunity to have the operation done earlier by a surgeon other than Mr Chan.

Breach of Duty

In deciding that a breach was made out, the Recorder said this:

“The scope and rationale of a doctor's so-called "duty to warn ", was articulated by Lord Hope (with whom Lord Walker and Lord Steyn agreed) in a passage in his opinion in Chester v Afshar:-

I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether, and if so which and by whom, to be operated on. Patients may have, and are entitled to have, different views about these matters. All sorts of factors may be at work here - the patient's hopes and fears and personal circumstances, the nature of the condition that has to be treated and, above all, the patient's own views about whether the risk is worth running for the benefits that may come if the operation is carried out. For some the choice may be easy - simply to agree to or to decline the operation. But for many the choice will be a difficult one, requiring time to think, to take advice and to weigh up the alternatives. The duty is owed as much to the patient who, if warned, would find the decision difficult as to the patient who would find it simple and could give a clear answer to the doctor one way or the other immediately.”

Accordingly, the Recorder found the breach proved.

Causation

The real significance of the judgment is, perhaps, the way in which the Recorder tackled causation. Three issues arose for his decision:

First, the Trust had sought to rely upon the fact that the Claimant had been told, on the morning of the operation, that Mr Chan was not to be there and had chosen to proceed. The contention that causation was not, therefore, made out was not pursued at trial. As the Recorder made clear, any decision taken “so far down the line” was unlikely to be taken freely.

Secondly, it was contended that, if she had been informed in advance of Mr Chan’s unavailability, then she would have decided, as she did on the morning of the operation, to proceed. The Recorder, again rejected this argument, observing that:

“…the fact that Mrs. Jones originally wanted her operation to be carried out by Mr. Chan is corroborated by the reference to Mr. Chan in the GP's Note of the attendance on 9 June 2010: Mr. Chan had and has a high reputation locally and nationally: Mrs. Jones's evidence, which I accept, was that several people whom she knew had been operated on by him, and that when, in June, she raised with her GP the fact that there would be a delay if she wanted him to carry out the operation, the GP advised that it would be preferable to wait: in spite of the severity of her symptoms, and she did decide to wait until Mr. Chan was available. I therefore reject this contention.”

The third causation issue was more difficult. It was the Defence contention that the Claimant could not prove, on the balance of probabilities, that the operation would have been performed with any better result had it been done by Mr Chan.

The judge approached this issue in two ways by reference to Chester v Afshar.

First, he referred to the facts of Chester and reminded himself that that was a case where the surgeon failed, in breach of duty, to warn a patient as to the 1-2% chance of serious neurological damage arsing from spinal surgery. That chance occurred during the operation. Had the patient been told, she would not have agreed to the operation but would have sought further advice on alternatives and the operation would not have gone ahead when it did. Had she later gone ahead, however, the risk would have been the same and it would been equally improbable that she would have sustained the damage. Accordingly, the majority of the judicial committee was unable to find causation proved on conventional principles.

The Recorder distinguished Chester from Mrs Jones’s claim because he found that, on the balance of probabilities, the damage would not have occurred if the operation had been performed by Mr Chan. He listed a number of reasons for coming to that conclusion, including the smallness of the risk of damage in any event, the expert evidence that “experience counts” in this operation, the absence of any pre-existing condition likely to increase that risk, whoever performed the operation, the seniority and experience of Mr Chan and the statistical evidence that such complications are rare and rarer still in the hands of a surgeon of the experience of Mr Chan.

In Chester, of course, the committee went on to decide the issue of causation on non-conventional principles of causation. The Recorder addressed that issue as follows:

“If I am wrong in concluding that causation is established on conventional principles, I would nevertheless consider that it is established on the basis of the principle upon which it was found, by the majority of the committee in Chester v Afshar, which, I think, is encapsulated in paragraphs 86 and 88 of the opinion of Lord Hope, with which Lord Steyn and Lord Walker concurred, in which he stated: -

I start with the proposition that the law which imposed the duty to warn on the doctor has at its heart the right of the patient to make an informed choice as to whether, and if so when and by whom to be operated on. Patients may have, and are entitled to have, different views about these matters. All sorts of factors may be at work here - the patient's own views about whether the risk is worth running for the benefits that may come if the operation is carried out....

... The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfill the only purpose which brought it into existence. On policy grounds therefore I would hold that the test of causation is satisfied in this case. The injury was intimately involved with the duty to warn. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty.”

Although in the present case there was no breach of the duty to warn Mrs. Jones of the risks of the operation there was an infringement of her right "to make an informed choice as to whether, and if so when, and by whom to be operated on". Unless a remedy is provided in the present case that right would he a hollow one.”

Conclusion

This case is unusual because Mrs. Jones was able to get over the causation difficulties, which often make it impossible for a claimant to establish that, if the breach had not occurred, the outcome would have been likely to have been different. She did so because she was able to rely upon the fact that she had already turned down the offer of an earlier operation with another clinician, because Mr. Chan was exceptionally experienced in this procedure, whereas his replacement was junior and inexperienced and because Mrs. Jones was an exceptionally impressive witness.

Be that as it may, the case is a good illustration of the importance of the information provided to the patient. To give consent, more is needed than simply a recitation of the risks and benefits and the filling in of a form. For good financial reasons, it is, of course, often necessary for the NHS to switch clinicians, even at the last moment, but Trusts will need to bear in mind that patients are entitled to be kept informed not only of the nature of the operation and its risks but also of the identity of the surgeon to perform it. 

James Counsell

Outer Temple Chambers

Counsel for the Claimant at trial

(instructed by Crosse and Crosse LLP, Exeter).

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