Tim Willitts Writes on Hernia Surgery
Montgomery applied: two surgical cases
By Tim Willitts, Clinical Negligence / PI Specialist - Cobden House Chambers, Manchester
Tim Willitts was invited to address the British Hernia Society at their annual conference in October 2016. Subsequently he addressed the 3rd International Controversies in Hernia Surgery Conference in March 2017. Both of those presentations resulted in thoughtful and animated medico-legal discussions relating to the current law on consent, breach of duty and causation. This article, which is based upon Tim’s recent presentations, and should be of interest to surgeons and lawyers alike.
Many practitioners in this field will already be familiar with Montgomery v Lanarkshire Health Board  UKSC 11, an important decision of the Supreme Court. There are important links between that decision and the somewhat less prominent case of Chester v Afshar  UKHL 41.
It is helpful to consider two cases, decided since Montgomery, to aid our understanding of the current law in this area:
• Spencer v Hillingdon Hospital NHS Trust  EWHC Civ 1058
• Crossman v. St. George’s Healthcare NHS Trust  EWHC Civ 2878
Firstly, the facts and reasoning in Montgomery.
MONTGOMERY – THE FACTS
Briefly, this was a birth trauma case involving shoulder dystocia (SD). SD is a major obstetric emergency, associated with maternal morbidity and neonatal morbidity and mortality.
The mother was diabetic. The risk of SD in a diabetic mother is 9-10%.
On 1 October 1999, a vaginal delivery was complicated by SD, which led to hypoxia, cerebral palsy and a brachial plexus injury, all of which would have been avoided if a caesarean section had been undertaken.
Prior to the birth, despite maternal concerns about the size of the baby, there was no advice relating to the risks of SD. The mother’s evidence was that, had she been advised of the risk of SD, she would have sought an explanation of it and the risks of the possible outcomes. With hindsight, she would have sought a caesarean section.
The Supreme Court gave judgment in March 2015.
MONTGOMERY – THE DECISION
The speeches confirm the following:
• the risk of SD should have been raised;
• there should have been a discussion about the possibility of a caesarean section;
• there was no entitlement to withhold information on the basis of harm to the health of the mother.
The decision in Montgomery represents a further move away from medical paternalism, and towards treating patients as adults, capable of understanding that medical treatment is uncertain and may involve risks.According to Montgomery, the doctor’s duty is:
• to ensure that the patient is aware of the material risks inherent in the treatment. This is not merely a medical judgment
• to take reasonable care to ensure that an adult patient is aware of any material risks in a recommended treatment, and of any reasonable alternative or variant treatments
The test of materiality is:
• whether a reasonable person in the patient’s position would likely attach significance to the risk
• the doctor should be reasonably aware that this particular patient would likely attach significance to this particular risk
Exceptions (interpreted narrowly) are:
• harm to the patient’s health;
• necessity.Complying with this duty includes a dialogue with the patient and the provision of comprehensive information so as to enable an informed decision to be made.
SPENCER v. HILLINGDON - THE FACTS:
In late 2009, Mr Spencer began to suffer symptoms of pain in his right groin. His GP suspected a right inguinal hernia and Mr Spencer was referred to the hospital where, on 19 January 2010 he was seen for a pre-operative assessment in the surgical outpatients department by Mr S Chaudhry, a locum general surgeon. Mr Chaudhry diagnosed that as well as suffering from a hernia on the right side, Mr Spencer was also suffering from a hernia on the left side. It was proposed that bilateral extra-peritoneal repairs be performed upon both hernias by the use of a laparoscope so as to avoid an open wound operation. Mr Spencer was told at the hospital that in its course, the operation might have to be converted from a laparoscopic to an open procedure. Before he signed a consent form in respect of the operation, Mr Spencer sought reassurance from Mr Chaudhry that in the case of such a conversion to an open procedure, priority would be given to repairing the hernia on the right side. Following these discussions, Mr Spencer signed a form of consent for the operation which warned him of the risks of:
‘Bleeding, infection, scar, recurrence of problem, conversion to open procedure, injury to bowel’.
No mention was made in the course of Mr Spencer's discussions with any staff at the hospital on 19 January 2010 that he might suffer a deep vein thrombosis (DVT) or pulmonary embolism (PE) as a consequence of the proposed surgery and the immobility that it would cause. He was not given any information as to the likely signs and symptoms that he might suffer in the event of the development of such conditions.
Before the operation was performed on 1 February 2010, Mr Spencer had pneumatic boots placed on his legs. These are a device that is intended to improve a patient's blood circulation so as to reduce the risk of a patient suffering from DVT.The operation was begun laparoscopically but, in its course, the procedure was converted to an open procedure because the balloon procedure carried out extra-peritoneally caused some bleeding that obscured the surgeon's view. A right inguinal repair was performed but no repair was attempted on the left side. The operation took some 53 minutes.
Mr Spencer's immediate post operation recovery took the expected course so that he was discharged from the hospital on the day of the operation. Mr Spencer was provided in the course of his treatment at the hospital with a pamphlet entitled:
‘Hernia Repair – Information for Patients' which stated:
“If you have any problems following your discharge then please telephone the Hillingdon Hospital switchboard … and ask to speak to the Senior House Officer”.
What Mr Spencer was not told was that he might suffer a DVT or PE as a consequence of the surgery. He was not given any information as to the likely signs and symptoms that he might suffer in the event of the development of such conditions.
On 2 February 2010, Mrs Spencer rang the hospital to report that the Claimant was ‘feeling unwell’. She was told to ring the Claimant's GP or the hospital Accident and Emergency Department ‘for any further problems’. There is no record that Mr Spencer complained of problems with his calves at that time and entries in Mr Spencer's GP records for 2 February and 8 February 2010 of telephone calls from Mr Spencer or his wife do not mention any problems involving Mr Spencer's calves.
On 8 and 16 February 2010, Mr Spencer saw the practice nurse at his GP's surgery for his dressings to be changed. He was seen again at the hospital on 25 March 2010 by Mr Chaudhry's surgical Senior House Officer and on 19 April 2010 by Mr Ariyarathenam, a surgeon, for further assessments in respect of his left inguinal hernia. As a result of these visits it was decided that he need not have a further repair operation performed.
There is a GP record of a telephone call made on 23 April 2010 from or on Mr Spencer's behalf that records:
“Had hernia op Feb 1st – feels heart beat and sob had calf pain 2 weeks ago”
Later that day Mr Spencer was admitted to the hospital via the Accident and Emergency department suffering from severe shortness of breath. It was discovered that he was suffering from bilateral PEs, originating from the main right and left pulmonary arteries. He was treated appropriately with blood thinning medication and his condition improved so that he was able to be discharged home with medication on 27 April 2010.
SPENCER v. HILLINGDON - THE DECISION:
The Claimant’s claim succeeded.
The trial judge, HHJ Collender QC, explained the impact of Montgomery as follows:
“…Montgomery is clearly a decision which demonstrates a new development in the law as it relates to the law on informed consent and strictly the ratio decidendi of the decision (the rationale - that part of an authority which is regarded as a binding precedent) is confined to cases involving the adequacy or otherwise of information given to a patient upon which they are to decide whether or not to undergo a particular type of treatment. It is not of central importance to a consideration of the facts of this case. However…the basic principles – and the resulting duty of care – defined in Montgomery are likely to be applied to all aspects of the provision of advice given to patients by medical and nursing staff. Insofar as the judgment in Montgomery emphasises the need for a court to take into account a patient's as well as their doctor's point of view as to the significance of information for a patient I consider it relevant to a consideration of the facts of this case.In the light of the Montgomery decision already discussed above, I would express the test that I should apply to be the Bolam test, with the added gloss that I should pay regard to what the ordinary sensible patient would expect to have been told. Put in the form of a question, the test I consider to be, would the ordinary sensible patient be justifiably aggrieved not to have been given the information at the heart of this case when fully appraised of the significance of it?...”
Next, before we consider Crossman v. St. George’s Healthcare NHS Trust, it is helpful to explain Chester v. Afshar, another important decision of the House of Lords.
CAUSATION – CHESTER v AFSHAR
The traditional, and still the primary, test for causation is the ‘but for’ test. But for the breach of duty, would the damage in question still have occurred?
This test can present difficulties in consent cases, because with hindsight many injured patients will claim that, with prior knowledge of risk, their consent would have been withheld. In many cases, the court might conclude that a patient would have decided to proceed, even if the risks had been discussed in advance.
Chester v Afshar  UKHL 41A neurosurgery case, decided more than a decade before Montgomery. The risk of Cauda Equina syndrome was not discussed prior to surgery.
The Claimant was unable to satisfy the traditional ‘but for’ test for causation, and in recognition of the importance of informed consent, the House of Lords justified what was described as a ‘narrow modification of traditional causation principles’.
Thus the Claimant may be able to argue that, had the risks been explained before surgery, the likely outcome would have been a delay in order to consider those risks, even if the same surgery would eventually have been carried out and with the same risks.
The reasoning is that, because the risk of Cauda Equina syndrome is extremely low, having surgery on another day would probably not have resulted in Cauda Equina syndrome. Thus the injury is ‘regarded as having been caused by the Defendant’s breach of the duty to warn of the risk’.
An injured patient who is unable to satisfy the traditional ‘but for’ test for causation may rely upon the principle in Chester v Afshar: this reasoning is bound up with the increased emphasis upon the importance of informed consent.
CROSSMAN v. ST. GEORGE’S - THE FACTS:
The claimant was referred to a consultant after a scan revealed minor compression of his spinal cord. Various options were discussed, including the potential risks and benefits of surgery, however the consultant advised conservative treatment including physiotherapy with a review in three months' time. Despite that, the claimant was immediately put on the waiting list for surgery. When he received appointment letters he contacted the hospital believing there had been a mistake and was told that unless he kept them he would be put to the back of the list. He was admitted for the operation two months after his initial consultation. The assisting surgeon advised him to delay the surgery because of unrelated blood-clotting issues, but he wanted to proceed. As a result of the surgery, the claimant suffered nerve root injury. The risk of that happening was less than 1% and there was no suggestion that the operation was performed negligently.
The trust admitted that there was a negligent failure to follow the plan for conservative management. However, its case was that while but for the negligence the surgery would have been delayed, that would not have materially affected the risk of nerve damage and there was no causal link between the admitted negligence and the claimant's injury.
CROSSMAN v. ST. GEORGE’S - THE DECISION:
The Claimant’s claim succeeded.
The decision of the trial judge, Peter Hughes QC, may be summarised as follows:
(1) Recent case law had placed much greater emphasis on the importance of a doctor's duty to involve the patient in decisions relating to treatment. In Montgomery v Lanarkshire Health Board  UKSC 11, the Supreme Court considered that an approach which required the patient to question the doctor disregarded the social and psychological realities of the doctor-patient relationship, whether in the time-pressured setting of a GP's surgery, or in hospital. The claimant came across as someone who did not find it easy to express himself. When the hospital informed him that he would go to the bottom of the queue if he did not keep his appointment, it was not surprising that his reaction was not to question, but to accept that arrangements were being made for him to have the operation rather than physiotherapy. By the time he was admitted for surgery, he would have prepared himself and it was understandable that he did not want to postpone. The fact that he did not raise the change in treatment plan did not absolve the trust of its responsibility for the mistake nor did it break the chain of causation, Montgomery applied;
(2) The risk of the claimant sustaining nerve injury was very small; he was unlucky. Had he had the operation at a later date, on the balance of probabilities he would not have sustained the same injury. Therefore, the claim succeeded on conventional "but for" causation principles: but for the admitted negligence the claimant would not have had the operation when he did and had he had the operation on a different occasion it was likely that it would have been successful;
(3) Obiter dictum (comments in passing – which are not part of the rationale, and thus not regarded as a binding precedent) Having found in the claimant's favour on conventional causation principles, it was unnecessary to decide whether he would also be entitled to succeed on the narrow extension to that principle where there had been an infringement of a patient's right to make an informed choice, as set out in Chester v. Afshar. However, the court would briefly consider the same. It was the claimant's case that his right to make an informed choice had been infringed as he had been deprived of the opportunity to have physiotherapy and then consider the position in consultation with the surgeon before undergoing surgery. It was important to bear in mind the exceptional and limited nature of the extension in Chester: that case involved a failure to properly warn of the risks of surgery. Such a failure was fundamental as it removed the patient's right of autonomy and dignity to make an informed choice. The instant case fell into a different and lesser category. A mistake was made in the implementation of the claimant's treatment plan and as a consequence he had the operation earlier than would otherwise have been the case. He was warned of the risks of surgery and the surgery was carried out by the surgeon he had consulted. Therefore, modification of the normal approach to causation was not justified in the instant case, Chester considered.
The judge here distinguishes the ‘true’ lack of informed consent case – a fundamental deprivation of the patient’s right to make an informed choice, which continues to benefit from the Chester extension – and the fairly unusual facts of Crossman, in which a mistake in breach of duty resulted in surgery being undertaken early, so that traditional ‘but for’ causation principles applied. Thus Chester remains an important decision to stand alongside Montgomery. These cases show that informed consent is a crucial consideration for medical and legal practitioners alike.
Copies of the four cases referred to can be downloaded here: